June 18, 2014
Access to Reports

by Justice Paul E. Pfeifer

Even though Donald Lee Johnson pled no contest to aggravated robbery, robbery, and aggravated possession of drugs while using a firearm, that wasn’t the end of the issue.

At Johnson’s disposition hearing, the trial court stated that it “had a chance to review and consider ... a presentence investigation report” and proceeded to impose an aggregate sentence of 13 years’ imprisonment, $19,000 in fines, and a mandatory term of five years of postrelease control.

Johnson had pled no contest to the charges, but he filed an appeal on his sentence. His newly appointed appellate attorney filed a motion to view the presentence investigation report to further investigation of the propriety of Johnson’s sentence and fines.

The court of appeals denied the motion to disclose the report to Johnson’s new appellate counsel, stating that no provision of the pertinent law “permits disclosure of a presentence investigation report to counsel after the defendant has been sentenced.”

Johnson then filed an appeal with us – the Supreme Court of Ohio. The issue before us was whether Johnson’s appellate counsel – who was not his trial counsel – could obtain a copy of the presentence investigation report for purposes of representing Johnson on appeal.

Johnson maintained that his rights to due process and effective assistance of counsel required that his appellate counsel have access to the presentence investigation report so that the attorney can determine potential errors to raise on appeal.

The state countered that, according to the plain language of the law, a defendant and his counsel are permitted to review the presentence investigation report only prior to the sentence. The state further maintained that the legislature did not intend for appellate counsel on either side to access the report, because the law refers to “the court” and the “appellate court” but does not refer to “appellate counsel.” The law also requires all copies of the report be returned to the court after imposition of sentence, and it says that the report is confidential and must be placed under seal.

The state also argued that Johnson’s constitutional rights are not violated if his appellate attorney cannot view the report on appeal for several reasons: first, neither party has access to the report pending appeal; second, appellate counsel can challenge the sentence by using the transcript of the sentencing hearing – which would include any errors and corrections to the report that the defendant has highlighted; and finally, the appellate court is required to examine the presentence investigation report when reviewing the sentence.

The law at the center of this matter states: “No person who has been convicted of or pleaded guilty to a felony shall be placed under a community control sanction until a written presentence investigation report has been considered by the court.” The report must address the circumstances of the offense; the criminal record, social history, and present condition of the defendant; and, possibly, the victims’ statements regarding the impact of the offense.

A different section of the law permits access to the report in certain circumstances. Specifically, it provides that “the court, at a reasonable time before imposing sentence, shall permit the defendant or the defendant’s counsel to read the report,” with some exceptions.

Another part of the law says that “prior to sentencing, the court shall permit the defendant and the defendant’s counsel to comment on the presentence investigation report and, in its discretion, may permit the defendant and the defendant’s counsel to introduce testimony or other information that relates to any alleged factual inaccuracy contained in the report.”

As indicated by the state in its arguments, the contents of a presentence investigation report “are confidential information and are not a public record.” But, the defendant and the defendant’s counsel may seek access to the report. Here’s what the pertinent part of the law says about that:

“The court, an appellate court, ... the defendant, the defendant’s counsel, the prosecutor who is handling the prosecution of the case against the defendant, ... may inspect, receive copies of, retain copes of, and use a presentence investigation report” under a specific set of circumstances.

The law further states that the defendant, the defendant’s counsel, and the prosecutor may not make copies of the report and must return all copies of the report to the court “immediately following the imposition of sentence upon the defendant,” and, the “court or other authorized holder of the report ... shall retain the report ... under seal,” except when it is being used for specified purposes.

In a different section of the criminal code, there is another law that also pertains to presentence investigation reports. That law says the report is part of the record to be reviewed on an appeal of a sentence. It also provides that the appellate court’s use of the report does not affect the otherwise confidential nature of its contents or make it a public record.

Taking all of this into account, we concluded that if we were to construe the various sections of law to preclude appellate counsel from accessing the presentence investigation report, it may implicate constitutional concerns of due process and/or the right to effective assistance of appellate counsel.

More specifically, barring an appellate attorney from accessing a presentence investigation report relied upon by the trial court would deny an appellant – such as Johnson – a fair opportunity to obtain adjudication on the merits of his appeal, because it would restrain his attorney’s ability to fully investigate and determine potential issues for appeal.

We therefore concluded – by a seven-to-zero vote – that Johnson’s appellate counsel may have access to the presentence investigation report. We thus reversed the court of appeals’ judgment and ordered the court to provide Johnson’s new appellate counsel access to the report subject to similar restrictions as contained in the law.

EDITOR'S NOTE: The case referred to is State v. Johnson, 138 Ohio St.3d 282, 2014-Ohio-770. Case No. 2013-0332. Decided March 5, 2014. Majority opinion written by Justice Terrence O'Donnell.