[Cite as State v. Caldwell, 2026-Ohio-2367.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
CRAWFORD COUNTY
STATE OF OHIO,
CASE NO. 3-25-27
PLAINTIFF-APPELLEE,
v.
OPINION AND
BRIAN CALDWELL,
JUDGMENT ENTRY
DEFENDANT-APPELLANT.
Appeal from Crawford County Common Pleas Court
Trial Court No. 24-CR-0112
Judgment Affirmed
Date of Decision: June 22, 2026
APPEARANCES:
William Cramer for Appellant
Daniel Stanley for Appellee
Case No. 3-25-27
WILLAMOWSKI, J.
{¶1} Defendant-appellant Brian Caldwell (“Caldwell”) brings this appeal
from the judgment of the Common Pleas Court of Crawford County resentencing
him on remand after a prior appeal. On appeal Caldwell claims that the sentence
imposed was vindictive. For the reasons set forth below, the judgment is affirmed.
{¶2} On June 21, 2024, after a jury trial, the trial court sentenced Caldwell
on eight counts of a ten count indictment: 1) aggravated trafficking in drugs in
violation of R.C. 2925.03(A)(2), (C)(1)(e), a felony of the first degree; 2) illegal
manufacture of drugs in violation of R.C. 2925.04(A), (C)(3)(a), a felony of the
second degree; 3) aggravated trafficking in drugs in violation of R.C.
2925.03(A)(2), (C)(1)(d), a felony of the second degree; 4) aggravated trafficking
in drugs in violation of R.C. 2925.03(A)(1), (C)(1)(d), a felony of the second degree;
6) aggravated trafficking in drugs in violation of R.C. 2925.03(A)(1), (C)(1)(d), a
felony of the second degree; 7) aggravated trafficking in drugs in violation of R.C.
2925.03(A)(1), (C)(1)(d), a felony of the second degree; 9) aggravated trafficking
in drugs in violation of R.C. 2925.03(A)(2), (C)(1)(e), a felony of the first degree;
and 10) aggravated trafficking in drugs in violation of R.C. 2925.03(A)(2),
(C)(1)(c), a felony of the third degree.1 The indicted offenses occurred on multiple
1
Count 5 and Count 8 were dismissed upon the trial court’s granting Caldwell’s Criminal Rule 29 motion at trial.
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days over approximately one month. The trial court sentenced Caldwell to serve a
prison terms as follows: Count 1 = six years; Count 2 = 8 years; Count 3 = 24
months; Count 4 = 24 months; Count 6 = 6 years; Count 7 = 6 years; Count 9 = 11
years; and Count 10 = 36 months. Counts 1, 2, 6, 7, and 9 were ordered to be served
concurrent to each other for an indefinite sentence of 11 to 16.5 years. Counts 3, 4,
and 10 were ordered to be served concurrent to each other for a definite sentence of
36 months. These two sentence groupings were ordered to be served consecutive
to each other for an aggregate prison term of 11 years to 16.5 years plus 36 months.
At that time, the trial court made all the required findings to impose sentences in a
consecutive manner.
{¶3} Caldwell appealed from this judgment and claimed on appeal that the
sentences on all counts except Count 2 were contrary to law. This Court agreed and
held that all but Count 2 should have been sentenced as felonies of the fourth degree
as the verdict forms failed to comply with R.C. 2945.75. This Court remanded the
matter to the trial court for resentencing. On September 29, 2025, a new sentencing
hearing was held.2 The trial court sentenced Caldwell to serve a prison terms as
follows: Count 1 = 18 months; Count 2 = 8 to 12 years; Count 3 = 12 months; Count
4 = 12 months; Count 6 = 18 months; Count 7 = 18 months; Count 9 = 18 months;
2
This Court notes that the judgment entry is inconsistent as at one point it indicates that Caldwell was convicted by a jury and at another it indicates that he entered a plea of guilty. The record indicates that the second statement was incorrect and is a clear clerical error that may be corrected by a nunc pro tunc entry.
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and Count 10 = 12 months. Counts 1, 2, 6, 7, and 9 were ordered to be served
concurrent to each other for an indefinite sentence of 8 to 12 years. Counts 3, 4,
and 10 were ordered to be served consecutive to each other for a definite sentence
of 36 months. These two sentence groupings were ordered to be served consecutive
to each other for an aggregate prison term of 8 years to 12 years plus 36 months.3
{¶4} Once again the trial court made all of the required findings to impose
consecutive sentences. Specifically, the trial court found that R.C. 2929.14(C)(4)(b)
applied in that “at least two of the multiple offenses were committed as part of one
or more courses of conduct and the harm caused by two or more multiple offenses
so committed was so great or unusual that no single prison term for any of the
offenses committed as part of the courses adequately reflects the seriousness of
[Caldwell’s] conduct.” Tr. 15. Caldwell appeals from this sentence and raises the
following assignments of error on appeal.
First Assignment of Error
[Caldwell’s] due process right to be free of vindictive sentencing
following a successful appeal was violated when the trial court
increased the number of consecutive terms on remand without
any new facts to justify the increase.
3
The judgment entry makes the required findings for imposition of consecutive sentences. During the sentencing hearing, the trial court indicated that subsection (b) of R.C. 2929.14(C)(4) applies. However, the trial court states in its entry that “at least one of the factors in R.C. 2929.14(C)(4)(a)-(c) apply”, but fails to identify which of the factors it is.
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Second Assignment of Error
[Caldwell’s] due process right to a lawful sentence was violated
by the imposition of additional consecutive terms following a
successful appeal where there were no new facts presented at
resentencing to support the additional consecutive terms.
As both assignments of error allege that the sentence was errant, violating due
process, we will address them together.
{¶5} Caldwell claims in his first assignment of error that the sentence
imposed by the trial court was vindictive because the trial court increased the
number of consecutive terms. Caldwell claims in the second assignment of error
that increasing the number of sentences to be served consecutively violated his due
process rights. To punish a defendant because he has done what is permitted by
law, such as appeal a decision, is a due process violation which is vindictive. State
v. Rahab, 2017-Ohio-1401, ¶ 8. The question is how a defendant proves
vindictiveness. Id. at ¶ 8.
{¶6} Generally, an appellate court will defer to the trial court in making
sentencing decisions. Id. at ¶ 10. However, the imposition of a harsher sentence
following a successful appeal provides a presumption of vindictiveness. North
Carolina v. Pearce, 395 U.S. 711, 725 (1969). In the case that a presumption of
vindictiveness is present, the State can rebut the presumption by providing
affirmative, non-vindictive reasons for the sentence on the record. Id. at 726. If
there is no presumption of vindictiveness present, the appellate court must review
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the entire record to see whether there is evidence of actual vindictiveness. Rahab at
¶ 19. “We will reverse the sentence only if we clearly and convincingly find the
sentence is contrary to law because it was imposed as a result of actual
vindictiveness on the part of the trial court.” Id.
{¶7} Here, Caldwell claims that his sentence was vindictive because on
remand more counts were ordered to be served consecutive than in the original
sentence. However, this ignores the fact that the overall sentence was not harsher.
All of the individual sentences, excluding Count 2 which was not overturned on
appeal and was not modified, were reduced. Additionally, the aggregate sentence
was also reduced. Caldwell went from an aggregate sentence of 11 years to 16.5
years plus 36 months to an aggregate sentence of 8 years to 12 years plus 36 months.
While this sentence may have been harsher than Caldwell wanted on remand, it was
not a harsher sentence than was imposed originally. Thus there is no presumption
of vindictiveness.
{¶8} This Court next will consider whether the record shows evidence of
actual vindictiveness. Caldwell claims that actual vindictiveness was present
because the trial court increased the number of sentences to be served consecutively
in order to maintain the original sentence, thus using a sentencing package doctrine
and violating his due process rights. Caldwell is correct in asserting that Ohio does
not use a sentencing package system. State v. Saxon, 2006-Ohio-1245, ¶ 10.
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“Ohio’s felony-sentencing scheme is clearly designed to focus the judge’s attention
on one offense at a time.” Id. at ¶ 8. Judges in Ohio are required to assign a sentence
to each offense separately. Id. at ¶ 9. Once that is done, then the judge can consider
whether the terms should be served concurrently or consecutively. Id. “[A] trial
court has the discretion, within the statutory framework, to impose a consecutive
sentence as part of a resentencing hearing even if it imposed a concurrent sentence
previously.” State v. D.H., 2019-Ohio-1017, ¶ 28 (10th Dist.).
{¶9} At the sentencing hearing on remand, the trial court specifically
indicated that it was starting anew on all but Count 2. The State argued that each of
the convictions was part of a “months long trafficking in meth, drug trafficking that
[Caldwell] was doing”. Tr. 9. The State then requested that the trial court impose
12 month sentences on all the fourth degree felonies and that they all be ordered to
be served consecutively for an aggregate sentence of 15 to 19 years in prison.
Caldwell presented evidence showing that he had no prior prison history before
these cases and that he had made changes to his life. Caldwell then requested that
he be given minimum sentences and that they be run concurrently to each other.
{¶10} The trial court indicated the factors it was considering, including those
working in Caldwell’s favor. After considering all of the factors, including the
amount of drugs that were trafficked and the number of separate instances of
trafficking, as discussed at trial, the trial court imposed the sentence. The trial court
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noted that, given the evidence shown at trial, maximum sentences on all of the fourth
degree felonies may have been supported by the record and that consecutive
sentences may be justified. However, given Caldwell’s record and how his
rehabilitation was progressing in prison, the trial court decided to only make three
of the fourth degree felonies consecutive to the second degree felony. The trial court
further noted that the sentence was less than previously ordered and that with good
behavior, Caldwell would be eligible for release after eight years and six months.
What may not have been deemed so serious as to justify consecutive sentences for
second degree felonies, may have been deemed more serious for fourth degree
felonies. The trial court determined that consecutive sentences were appropriate in
this case and provided its findings on the record.
{¶11} After reviewing the record in its totality, there is no evidence that the
trial court was acting vindictively. The trial court properly considered all of the
factors and even indicated that it was looking for as many factors in Caldwell’s favor
as it could find. There is also no indication that the trial court violated Caldwell’s
due process rights by again imposing consecutive sentences. As there is no evidence
of actual vindictiveness, the trial court considered the required statutory factors, the
trial court made the required findings, and the sentences imposed are within the
statutory range, the trial court did not err in imposing the sentences in this case. The
assignments of error are overruled.
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{¶12} Having found no error prejudicial to appellant in the particulars
assigned and argued, the judgment of the Common Pleas Court of Crawford County
is affirmed.
Judgment Affirmed
ZIMMERMAN, P.J. and MILLER, J., concur.
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JUDGMENT ENTRY
For the reasons stated in the opinion of this Court, the assignments of error
are overruled and it is the judgment and order of this Court that the judgment of the
trial court is affirmed with costs assessed to Appellant for which judgment is hereby
rendered. The cause is hereby remanded to the trial court for execution of the
judgment for costs.
It is further ordered that the Clerk of this Court certify a copy of this Court’s
judgment entry and opinion to the trial court as the mandate prescribed by App.R.
27; and serve a copy of this Court’s judgment entry and opinion on each party to the
proceedings and note the date of service in the docket. See App.R. 30.
John R. Willamowski, Judge
William R. Zimmerman, Judge
Mark C. Miller, Judge
DATED:
/hls
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