State v. Richmond, 2014 Ohio 4842

Demetrius Richmond was convicted after a jury trial of multiple offenses for prolonged physical and sexual abuse of his girlfriend’s son, including felonious assault and rape; originally sentenced to an aggregate 28 years.
On direct appeal the convictions were affirmed but the cause was remanded for resentencing on allied-offense issues (Richmond I).
After postconviction proceedings and a first resentencing, this court held the trial court erred in imposing the RVO (repeat violent offender) specification because required statutory findings under R.C. 2929.14(B)(2)(a)(iv)–(v) were not addressed; remanded for resentencing on the RVO specification (Richmond III/IV).
At the March 5, 2014 resentencing the trial court made findings as to the RVO factors (recidivism risk and seriousness/demeaning nature of conduct) and imposed a 10-year RVO term, preserving the aggregate 28-year sentence.
Richmond appealed again raising nine assignments of error challenging the RVO sentence, alleged indictment amendment, reliance on unalleged/prior offenses, waiver of costs, and failure to order a presentence investigation; the appellate court affirmed.

Issue	State's Argument	Richmond's Argument	Held
Whether RVO enhancement violates double jeopardy	RVO enhancement is permissible	Multiple punishments for same act violate double jeopardy	Held: No double jeopardy violation; enhancement valid (Sargent precedent)
Whether RVO enhancement is an ex post facto punishment	RVO statute applies; prior convictions may support enhancement	Applying RVO to prior convictions is ex post facto punishment	Held: Not ex post facto; enhancement permissible
Whether trial court made required R.C. 2929.14(B)(2)(a)(iv)&(v) findings	Court made express findings: long term inadequate, recidivism likely, conduct more serious/demeaning	Findings were flawed/incomplete or based on faulty recollection	Held: Findings sufficient to support RVO enhancement
Whether court improperly relied on unindicted/prior convictions or amended indictment	State: sentencing courts may consider reliable evidence and prior convictions; indictment need only give notice for RVO	Reliance on 1991 convictions (not in indictment) amended the indictment or relied on unalleged offenses	Held: No improper amendment; court may consider other convictions at sentencing; not prejudicial

State v. Sargent, 126 Ohio App.3d 557 (R.V. offender enhancements do not violate double jeopardy)
State v. Cook, 83 Ohio St.3d 404 (1998) (Evid. R. do not apply at sentencing; court may consider reliable evidence)
State v. Burton, 52 Ohio St.2d 21 (sentencing courts may consider other criminal activity)
Maple Heights v. Dickard, 31 Ohio App.3d 68 (sentencing consideration of prior bad acts)
United States v. Doyle, 348 F.2d 715 (sentencing may consider unproved criminal activity for character/history)
United States v. Metz, 470 F.2d 1140 (similar principle on sentencing consideration)
State v. Bowser, 186 Ohio App.3d 162 (sentencing courts may consider prior convictions and arrests)