THE STATE OF OHIO, APPELLEE, v. HUNTER, APPELLANT.
No. 2008-0661
Supreme Court of Ohio
Submitted April 22, 2009—Decided August 25, 2009.
123 Ohio St.3d 164, 2009-Ohio-4147
O‘DONNELL, J.
{¶ 1} This сase presents two issues for our consideration in connection with the statutorily prescribed repeat violent offender specification. The first is whether this court‘s decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, severed the repeat violent offender specification from the Revised Code and precluded trial courts from imposing an enhanced penalty for that specification. The second is whether a сourt engages in improper judicial fact-finding in violation of the right to a jury trial by designating an offender as a repeat violent offender pursuant to former
{¶ 2} Hugh Hunter appeals from a decision of the Eighth District Court of Appeals that affirmed a judgment of the trial court imposing a two-year prison term for a repeat violent offender specification, running prior to and consecutive to an eight-year prison term for his felonious assault conviction. He contends that the repeat violent offender specification no longer exists after our decision in Foster and, further, that the findings necessary for a court to designate an
{¶ 3} After consideration, we have concluded that this court did not excise the repeat violent offender specification from the Revised Code in Foster. Moreоver, in this instance, the trial court did not violate Hunter‘s right to a jury trial when it designated him as a repeat violent offender, because he waived his jury right, because he stipulated to the facts necessary to designate him as a repeat violent offender, and because it is within the purview of the court to determine the existence and nature of an offender‘s prior conviction. Thus, we affirm the deсision of the court of appeals.
Facts and Procedural History
{¶ 4} On September 1, 2004, Hugh Hunter attacked Andrew McAuliffe at St. Malachi Church in Cleveland, causing multiple fractures and lacerations. A grand jury indicted Hunter for felonious assault and included in the indictment a repeat violent offender specification and notice of a prior conviction resulting from his 1990 conviction for felonious assault. The trial court found Hunter comрetent to stand trial and scheduled the matter for a jury trial to begin on October 23, 2006.
{¶ 5} At trial, Hunter stipulated to McAuliffe‘s medical records and to a prior conviction for felonious assault in 1990. He moved to bifurcate the trial, trying the felonious assault charge to the jury and the repeat violent offender specification to the court. He waived his right to a jury trial in regard to the specification, and asked the court to conduct a bench trial on that issue. The trial court accepted Hunter‘s written jury waiver and journalized it prior to commencing a jury trial on the felonious assault charge. The jury returned a verdict finding him guilty of felonious assault, and on October 25, 2006, the trial court conducted a bench trial on the repeat violent offender specification.
{¶ 6} Hunter further stipulated that during the commission оf the offense of which he was previously convicted, he had caused physical harm to Gregory Rickett. The medical record to which Hunter stipulated indicated that Gregory Rickett had suffered a head wound that required stitches. The state then called Jimmy Shields, a Cuyahoga County Sheriff‘s deputy, who testified that he had investigated an incident in 1989 in which Hunter punched Rickett, an employee of the Cuyahoga Cоunty Jail, in the face, causing a laceration that required more than five stitches. Hunter did not call any witnesses.
{¶ 7} The trial court found that the state had proven beyond a reasonable doubt that “Mr. Gregory Rickett, the named victim * * * suffered physical harm
{¶ 8} Hunter appealed, arguing inter alia that our decision in Foster had entirely eliminated the repeat violent offender specification and that it was not possible for the trial court to designate him as a repeat violent offender pursuant to former
{¶ 9} Hunter has now appealed to this court on the following proposition of law: “The RVO-enhanced sentence imposed on appellant constituted a deprivation of his liberty without due process of law and a violation of his constitutional right to a trial by jury.” He contends that the trial court lacked authority tо impose an enhanced penalty for the repeat violent offender specification, asserting that Foster eliminated this specification in its entirety as violative of a defendant‘s Sixth Amendment right to have a jury find all facts required to designate him as a repeat violent offender pursuant to former
{¶ 10} In response, the state contends that Foster excised only the portions of former
{¶ 11} Thus, two issues emerge for our consideration: one, whether Foster eliminated the repeat violent offender specification and second, whether the trial court conducted impermissible fact-finding in connection to the enhanced penalty it imposed on Hunter in this case.
The Repeat Violent Offender Specification before Foster
{¶ 12} At the time we decided Foster, three separate statutes pertained to repeat violent offender specifications. Former
{¶ 13} With respect to the designation of a repeat violent offender, former
{¶ 14} “‘Repeat violent offender’ means a person about whom both of the following apply:
{¶ 15} “(1) The person has been convicted of or has pleaded guilty to, and is being sentenced for committing, for complicity in committing, or for an attempt to commit, aggravated murder, murder, involuntary manslаughter, a felony of the first degree other than one set forth in Chapter 2925 of the Revised Code, a felony of the first degree set forth in Chapter 2925 of the Revised Code that involved an attempt to cause serious physical harm to a person or that resulted in serious physical harm to a person, or a felony of the second degree that involved an attempt to cause serious physical harm to a person or that resulted in serious physical harm to a person.
{¶ 16} “(2) Either of the following applies:
{¶ 17} “(a) The person previously was convicted of or pleaded guilty to, and previously served or, at the time of the offense was serving, a prison term for, any of the following:
{¶ 18} “(i) Aggravated murder, murder, involuntary manslaughter, rape, felonious sexual penetration as it existed under section 2907.12 of the Revised Code prior to Seрtember 3, 1996, a felony of the first or second degree that resulted in the death of a person or in physical harm to a person, or complicity in or an attempt to commit any of those offenses;
{¶ 19} “(ii) An offense under an existing or former law of this state, another state, or the United States that is or was substantially equivalent to an offense listed under division (DD)(2)(a)(i) of this section and that resulted in the death of a рerson or in physical harm to a person.
{¶ 20} “(b) The person previously was adjudicated a delinquent child for committing an act that if committed by an adult would have been an offense listed in division (DD)(2)(a)(i) or (ii) of this section, [and] the person was committed to
{¶ 21} Former
{¶ 22} “If the court imposing a prison term on a repeat violent offender imposes the longest prison term from the range of terms authorized for the offense under division (A) of this section, the court may impose on the offender an additional definite prison term of one, two, three, four, five, six, seven, eight, nine, or ten years if the court finds that both of thе following apply * * *:
{¶ 23} “(i) The terms so imposed are inadequate to punish the offender and protect the public from future crime * * *.
{¶ 24} “(ii) The terms so imposed are demeaning to the seriousness of the offense * * *.” 150 Ohio Laws, Part IV, 5734.
The Repeat Violent Offender Specification after Foster
{¶ 25} In Foster, we followed the United States Supreme Court‘s decisions in Apprendi v. New Jersey (2000), 530 U.S. 466, Ring v. Arizona (2002), 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556, and Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403, and held that “judicial fact-finding before imposition of a sentence greater than the maximum term authorized by a jury verdict or admissiоn of the defendant” violates the right to a jury trial under the Sixth Amendment to the United States Constitution. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph one of the syllabus, and ¶ 53. We also specifically declared former
{¶ 26} Applying the remedy set forth in United States v. Booker (2005), 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, we severed those parts of the sentencing statutes that required unconstitutional fact-finding by a court, including former
Whether the Designation of a Repeat Violent Offender Pursuant to Former R.C. 2929.01(DD) Violates the Sixth Amendment
{¶ 28} In Foster, our analysis of the repeat violent offender specification focused on former
{¶ 29} In this case, the trial court designated Hunter as a repeat violent offender pursuant to former
Waiver
{¶ 30} As the court stated in Blakely, “nothing prevents a defendant from waiving his Apprendi rights [to a jury determination of every element of the charge]. * * * Even a defendant who stands trial may consent to judicial
{¶ 31} In this case, even if we assume that Hunter had a constitutional right to have the jury determine his status as a repeat violent offender pursuant to former
Stipulation
{¶ 32} In addition, it is noteworthy that Hunter stipulated to all the facts necessary for the trial court to designate him as a repeat violent offender pursuant to former
{¶ 33} Because of Hunter‘s stipulations, the trial court had no need to conduct fact-finding in connection with former
{¶ 34} Even if Hunter had not waived his right to a jury trial or stipulated to the required facts, the fact-finding conducted by the trial court to designate him as a repeat violent offender pursuant to former
{¶ 35} In Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 714, 172 L.Ed.2d 517, the Supreme Court reiterated its holdings in Apprendi and Blakely that “it is within the jury‘s province to determine any fact (other than the existence of a prior conviction) that increases the maximum punishment authorized for а particular offense.” (Emphasis added.) And as the Supreme Court noted in Apprendi, the Sixth Amendment does not bar judicial consideration of a defendant‘s prior convictions at sentencing because “recidivism * * * is a traditional, if not the most traditional, basis for a sentencing court‘s increasing an offender‘s sentence.” 530 U.S. at 488, 120 S.Ct. 2348, 147 L.Ed.2d 435, quoting Almendarez-Torres v. United States (1998), 523 U.S. 224, 244, 118 S.Ct. 1219, 140 L.Ed.2d 350.
{¶ 36} Significantly, the Sixth Amendment does not limit a sentencing court‘s consideration to the existence of a prior сonviction. On the contrary, the United States Supreme Court has held that courts may consider the information contained in court documents that are related to the prior conviction. In Shepard v. United States (2005), 544 U.S. 13, 19-20, 125 S.Ct. 1254, 161 L.Ed.2d 205, the court held that a sentencing court, when determining whether a prior conviction warrants an enhanced penalty under the federal Armed Career Criminal Act (“ACCA“), may consider “the charging documents, jury instructions, a bench-trial judge‘s findings of fact and conclusions of law, the terms of a plea agreement, a transcript of the plea colloquy or other comparable judicial records.” See also Taylor v. United States (1990), 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (holding that for purposes of penalty enhancement, a sentencing court may determine the nature of a predicate offense from the statutory elements, charging documents, and jury instructions).
{¶ 37} Relying on the decisions in Apprendi, Blakely, Shepard, and Taylor, several of our sister states have also held that sentencing courts may look beyond the mere existence of a prior conviction without violating the Sixth Amendment. For example, in Ryle v. State (Ind.2005), 842 N.E.2d 320, the Supreme Court of Indiana affirmed an enhanced sentence based on a judicial finding from information about a prior offense contained in a presentence investigation report. The court stated that “[t]he presentence investigation report relies on ‘judicial record[s]’ that guarantee the conclusive significance that is the focus of Apprendi.” Id. at 325, quoting Shepard, 544 U.S. at 26, 125 S.Ct. 1254, 161 L.Ed.2d 205. See also People v. McGee (2006), 38 Cal.4th 682, 687, 42 Cal.Rptr.3d 899, 133 P.3d 1054
{¶ 38} Thus, pursuant to Shepard, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205, we hold that when designating an offender as a repeat violent offender pursuant to former
{¶ 39} In this case, in order to declare Hunter a repeat violent offender, the court had to determine whether he had a prior conviction and had served a prison term for a felony of the first or second degree that resulted in physical harm to the victim. Former
Judgment affirmed.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O‘CONNOR, LANZINGER, and CUPP, JJ., concur.
William D. Mason, Cuyahoga County Prosecuting Attorney, and T. Allan Regas, Assistant Prosecuting Attorney, for appellee.
Robert L. Tobik, Cuyahoga County Public Defender, and Cullen Sweeney, Assistant Public Defender, for appellant.