State v. Cunigan, 958 N.E.2d 1290

Cunigan was convicted in 1999 of cocaine trafficking in two quantities, receiving an 18-year prison sentence.
On remand, the trial court resentenced Cunigan in 2010 to the same 18-year term after considering his prison conduct and other factors.
Cunigan challenged the sentence, arguing the court relied on unchallenged extrajudicial information from prison reports.
The state argued the court properly considered Cunigan’s prison conduct because he testified about it and invited review of such information.
The court applied a Kalish/Foster framework, reviewing for compliance with sentencing statutes and then for abuse of discretion.
The court held Cunigan’s sentence was not contrary to law and that the trial court did not abuse its discretion; thus the appeal was denied.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether due process was violated by considering unchallenged prison reports	Cunigan	Cunigan	No due process violation; reports were invited by Cunigan's testimony.

State v. Kalish, 120 Ohio St.3d 23 (Ohio Supreme Court, 2008) (two-pronged review for felony sentences)
State v. Foster, 109 Ohio St.3d 1 (Ohio Supreme Court, 2006) (sentence must comply with statutory framework; abuse-of-discretion standard following Kalish)
State v. Bezak, 114 Ohio St.3d 94 (Ohio Supreme Court, 2007) (void sentencing when postrelease-control term omitted; new review limited to postrelease-control issue)
State v. Fischer, 128 Ohio St.3d 92 (Ohio Supreme Court, 2010) (clarifies Bezak remand scope and postrelease-control considerations)