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Court Holds 2006 ‘Foster’ Decision Did Not Eliminate Sentence Enhancement for Repeat Violent Offenders

2008-0661.  State v. Hunter, Slip Opinion No. 2009-Ohio-4147.
Cuyahoga App. No. 89456, 2008-Ohio-794.  Judgment affirmed.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-4147.pdf

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(Aug. 25, 2009) The Supreme Court of Ohio ruled today that its 2006 decision in State v. Foster did not sever (invalidate) the provision of state law that authorizes enhanced criminal sentences for repeat violent offenders (RVO).  The Court’s 7-0 decision, authored by Justice Terrence O’Donnell, also held that a trial court does not violate a defendant’s right to a jury trial when the judge designates a defendant as an RVO based on relevant information about the offender’s prior convictions that is part of the judicial record.

In Foster, the Supreme Court of Ohio reviewed Ohio’s felony sentencing scheme in light of several recent U.S. Supreme Court decisions. The Supreme Court of Ohio ruled that parts of Ohio’s criminal sentencing statutes were unconstitutional because they authorized the imposition of enhanced sentences on criminal defendants based on factual findings made by a judge, rather than by a jury. To cure this constitutional defect, the Court severed sections of state sentencing statutes that required judges to make specific findings to support sentence enhancements, and left the remainder of the statute in place.

Some of the language found to be unconstitutional and severed was in the RVO statute, former R.C. 2929.14(D)(2)(b). That language empowered judges to add from one to 10 years to a defendant’s prison sentence for a current violent offense if the defendant had previously been convicted and imprisoned for a 1st or 2nd degree felony that “resulted in the death of a person or physical harm to a person” and if the judge also made other factual findings. In its Foster decision, the Court stated that “(a)fter the severance, judicial fact finding is not required before imposition of additional penalties for repeat violent offender and major drug offender specifications.”

In this case, Hugh Hunter of Cleveland was charged with felonious assault in 2004 for attacking a church employee when he was asked to leave the building. The victim suffered  multiple fractures and lacerations.  In its indictment, the state included an RVO specification based on Hunter’s earlier conviction for striking and injuring a corrections officer while he was incarcerated at the Cuyahoga County jail. Hunter moved for separate proceedings on the assault count and RVO specification, and waived a jury trial on the RVO charge.  He was convicted by a jury on the assault count. In a separate hearing before the judge, he was also found guilty on the RVO specification. Hunter was sentenced to eight years in prison for the assault, and two years were added to that term based on the RVO specification.

Hunter appealed the two year sentence enhancement, arguing that the Foster decision had invalidated the entire RVO statute because that provision required judicial factfinding in order to support an enhanced sentence based on a prior conviction. The 8th District Court of Appeals rejected that analysis, and affirmed the constitutionality of the  trial court’s rulings with regard to the RVO specification and two-year sentence enhancement. Hunter sought and was granted Supreme Court review of the 8th District’s ruling.

In today’s unanimous decision, Justice O’Donnell wrote: “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 R.C. 2929.01(DD), he chose to submit that determination to the court to avoid presenting evidence of his prior conviction for felonious assault to the jury at trial. Therefore, Hunter has waived whatever right he had with respect to the repeat violent offender specification. … In addition, it is noteworthy that Hunter stipulated to all of the facts necessary for the trial court to designate him as a repeat violent offender pursuant to former R.C. 2929.01(DD). Specifically, Hunter stipulated to an indictment charging him with felonious assault and specifying that he had caused physical harm to the victim, that he had pleaded guilty to the offense ‘as charged in the indictment,’ and that the trial court had sentenced him to prison. … Because of Hunter’s stipulations, the trial court had no need to conduct factfinding in connection with former R.C. 2929.01(DD), and no Sixth Amendment violation occurred in this case.” 

Justice O’Donnell observed, however, that even if Hunter had not waived his jury rights and had not stipulated to all the facts required to designate him as an RVO, the factfinding conducted by the trial court in this case would not have violated the Sixth Amendment.

He wrote: “In Shepard v. United States (2005) … the court held that a sentencing court, when determining whether a prior conviction warrants an enhanced penalty under the federal Armed Career Criminal Act … 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.’ … Thus, pursuant to Shepard, … 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. … Accordingly, the trial court did not violate Hunter’s constitutional rights or decisions of this court or the United States Supreme Court by designating him a repeat violent offender pursuant to former R.C. 2929.01(DD) and by imposing an enhanced penalty. The court of appeals properly affirmed that judgment, and we therefore affirm its decision.”

Cullen Sweeney, 216.443.3660, for Hugh Hunter.

T. Allan Regas, 216.443.7800, for the state and Cuyahoga County prosecutor’s office.