A ruling from the 5th District Court of Appeals upholds the jury’s convictions of the former Hoover High School star and Ohio’s two-time Mr. Football.
Former high school football standout Erick Howard must be resentenced for his 2012 convictions for robbing a North Canton couple.
But it’s unclear whether Howard’s 30-year sentence will be reduced the second time around.
A ruling this week from the 5th District Court of Appeals upholds the jury’s convictions of the former Hoover High School star and Ohio’s two-time Mr. Football.
On Aug. 20, 2011, the victims were held at gunpoint and bound with duct tape by two masked men. The female victim was sexually assaulted.
In February 2012, Stark County Common Pleas Judge Taryn Heath sentenced Howard to 30 years in prison after he was found guilty of rape, kidnapping, aggravated robbery and aggravated burglary. All of the charges also had firearm specifications.
The three-judge 5th District panel vacated the sentence and ruled the case must be sent back to Heath for a resentencing hearing at a later date.
The appeals court found that Heath should have merged the kidnapping charge with others when she determined Howard’s prison term. The kidnapping was part of the aggravated burglary and aggravated robbery, and therefore should have been considered an “allied offense,” the 5th District panel ruled.
At the time of sentencing, however, Heath did not add additional prison time for the kidnapping conviction. So it’s unclear if the appeals ruling will have any impact on resentencing.
Both the defense and the Stark County prosecutor’s office have legal options.
The prosecutor’s office could file a motion for clarification, accept the decision, ask the appeals court to reconsider or appeal to the Ohio Supreme Court.
“We’re in the process of reviewing the court’s decision,” said Mark Caldwell, assistant prosecutor. “There are three separate opinions that were written (by each of the three appeals judges), so it will take a little time to digest all the opinions and then decide what further actions we might take.”
Howard’s attorney, Donald Wiley, said that “obviously Erick and his family will be very pleased to hear (about the resentencing).” However, “I am disappointed we didn’t get a reversal and a new trial we had asked for.”
“I’m sure the court of appeals gave this a good, hard look, and we’ll accept that and move forward with any options we have,” Wiley said.
The attorney said he will review options with Howard and his family, including whether to appeal to the Ohio Supreme Court.
Howard, who has denied wrongdoing, did not testify at his trial.
About one week before his trial, Howard turned down a plea agreement that called for him to serve 12 years in prison.
Page 2 of 2 - The appeals court ruling cites concern about the discussions in court that day, including “the statements that even if Howard were to agree to plead on the day of trial he would receive a more severe penalty” than the 12-year offer.
“While we in no way imply that the trial court is limited to sentencing Howard to the sentence offered during plea negotiations ... the trial court must not give the appearance that it was punishing the defendant for exercising his constitutional right to a jury trial and must not impose any punishment solely because a defendant chose to stand trial rather than plead guilty,” the court wrote.
The 5th District ruling, written by Judge Scott Gwin, also notes the difference between Howard’s sentence and that of a co-defendant, Seth Obermiller. Obermiller, who was not charged with rape, got a seven-year sentence.
Obermiller provided a gun, gloves and two ski masks for the robbery, according to the ruling. He demanded the safe combination, shoved a pistol in a victim’s eye and tried to flee to Pennsylvania after the crime, the ruling says.
“If a 30-year sentence is justified for Howard, however, it begs the question of why his co-defendant Obermiller received a much more lenient treatment than he did,” the court wrote.
In its ruling, the appeals court concluded that Heath did not increase Howard’s sentence because of the rape charge, and he still got significantly more prison time than Obermiller. But the court docket shows Heath did add eight years for that crime.
All three appeals judges — William Hoffman, Sheila Farmer and Gwin — agreed that the convictions should be upheld and the case be sent back to Heath for resentencing on the kidnapping issue.
Hoffman wrote that he agreed with Gwin’s concern about the plea hearing discussion but found Howard’s sentence length to be justifiable. Farmer wrote in a dissent that she did not agree with either point.