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August 25, 2009

Ohio Supreme Court rules on the scope of Apprendi's "prior conviction" exception

In a unanimous ruling in Ohio v. Hunter, No. 2009-Ohio-4147 (Ohio Aug. 25, 2009) (available here), the Supreme Court of Ohio ruled today that the Sixth Amendment does not preclude a judge from basing a sentencing enhancement on relevant information about the offender’s prior convictions that is part of the judicial record.  This official press release provides background on the Hunter ruling, and here are sections of the discussion on the reach of Apprendi and the Sixth Amendment (with some cited omitted):

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...

Thus, pursuant to Shepard, 544 U.S. 13, we hold that when designating an offender as a “repeat violent offender” pursuant to former R.C. 2929.01(DD), a trial court does not violate the Sixth Amendment by considering relevant information about the offender’s prior conviction that is part of the judicial record.

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. These facts may be readily determined from the indictment and sentencing entry for his 1990 conviction for felonious assault with a specification of physical harm and his resulting sentence of eight to 15 years’ incarceration. The trial court did not violate Hunter’s constitutional rights by considering these documents, which are “judicial record evidence” created in connection with his prior conviction. Shepard, 544 U.S. at 20.  Moreover, the findings required by former R.C. 2929.01(DD) pertain directly to the issue of recidivism, which has traditionally been within the purview of the sentencing court, not the jury, Almendarez-Torres, 523 U.S. at 244, and Hunter has not suggested that the trial court’s findings in this case are erroneous.

August 25, 2009 at 03:29 PM | Permalink


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Does this opinion break any new ground? Haven't the courts been able to consider the "record of conviction" of priors for some time? Or is it that it expands what can be used beyond United States v. Pallares-Galan, 359 F.3d 1088 (9th Cir. February 20, 2004)?

"The Court additionally noted that a factual description in a pre-sentence report could not be used to determine whether a noncitizen plead guilty to the elements of an aggravated felony offense. Id., citing United States v. Corona-Sanchez, 291 F.3d 1201, 1212 (9th Cir. 2002)."

But wouldn't "the indictment and sentencing entry" be part of the record of conviction and not be beyond it like a pre-sentence report is, or can be?

Posted by: George | Aug 25, 2009 4:06:19 PM

I haven't read the opinion, but if the jury necessarily had to find (or the defendant necessarily admitted) in the prior conviction that the prior offense "resulted in physical harm to the victim," then this is the correct outcome. The holding should not be interpreted to mean that a court may look to “judicial record evidence” to determine whether, in fact, physical harm to the victim occurred.

Posted by: DEJ | Aug 25, 2009 6:46:56 PM

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