State v. Lowery, 2023 Ohio 4444

Lowery and an unidentified accomplice forcibly entered a home, held six occupants at gunpoint, and threatened sexual violence; Lowery was indicted on multiple felonies.
Lowery pled guilty to one count of aggravated burglary with a firearm specification in exchange for dismissal of the other charges.
At sentencing the prosecutor and judge criticized Lowery for refusing to identify his accomplice; the judge directly asked Lowery for the name, Lowery declined, and the judge characterized that refusal as undermining remorse.
The trial court imposed the maximum agreed sentence (11–16.5 years) plus a 3-year firearm specification.
On appeal Lowery argued the court violated his Fifth Amendment privilege by using his silence about the accomplice as a sentencing factor; the court reviewed under plain-error and affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court violated the Fifth Amendment by relying on Lowery’s refusal to identify his accomplice as proof of lack of remorse at sentencing	State: Lowery never invoked the privilege at sentencing and had pled guilty, so silence could be considered as lack of remorse and relevant to sentence	Lowery: Using his silence to infer lack of remorse penalized his Fifth Amendment right against self-incrimination	No plain error. Because Lowery didn’t assert the privilege, and he pled guilty (admitting involvement), the court permissibly considered his refusal as evidence of lack of remorse and affirmed sentence

Mitchell v. United States, 526 U.S. 314 (1999) (Fifth Amendment bars using silence at sentencing to determine facts of offense; left open whether silence may show lack of remorse)
State v. Brunson, 171 Ohio St.3d 384 (2022) (Ohio Supreme Court: inferring lack of remorse from silence at sentencing is impermissible when defendant maintained innocence at trial because it requires factual inferences about involvement)
Roberts v. United States, 445 U.S. 552 (1980) (privilege must be timely asserted; silence may be considered if the defendant fails to claim the privilege at sentencing)
Salinas v. Texas, 570 U.S. 178 (2013) (Fifth Amendment protection is not automatic; courts must know reasons for silence to evaluate a claim)
United States v. Morgan, 145 F.3d 1343 (9th Cir. 1998) (if defendant does not assert privilege, sentencing court may consider lack of cooperation in imposing sentence)