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Criminal Law Casebook
Franklin County Criminal Law Casebook
Reproduced with permission from:
David L. Strait
Franklin County Public Defender Office
-- Requirements as to form of one year firearm specification.
-- Requirements as to form of six year firearm specification.
-- Requirements as to form for three years firearm specification.
-- Requirements as to form for drive by specification.
-- Requirements as to form for sexual motivation specification.
-- Requirements as to form for sexually violent predator specification.
-- Requirements as to form for repeat violent offender specification.
-- Requirements as to form for major drug offender specification.
Apprendi v. New Jersey
(2000), 120 S.Ct. 2348 -- Except for prior convictions, any fact which increases the penalty for a crime beyond the statutory maximum must be charged and proved beyond a reasonable doubt at trial. Also see
Castillo v. United States
(2000), 530 U.S. 120, 120 S.Ct. 2090.
Blakely v. Washington
(2004), 124 S.Ct. 2531 -- Washington sentencing scheme permitting an increased sentence based on fact finding by the court, not the jury, violates the Sixth Amendment right to trial by jury. Also see
United States v. Booker
, (2005), 125 S.Ct. 738. For a conflicting Ohio case involving sentencing of repeat violent offenders see
State v. Smith
, Cuyahoga App. No. 344957,
State v. Clark
(1995), 107 Ohio App. 3d 141 -- When defendant refused to plead guilty to felonious assault, he was reindicted for that offense, plus an aggravated burglary arising from the same incident, with prior offense specifications on both counts. Though time had been waived as to the initial charge, waiver did not apply to additional count and specifications. Relating back to the initial date of arrest, trial did not commence within the time allowed, entitling defendant to discharge on the aggravated burglary and specifications because he had been denied his right to a speedy trial.
State v. Seagle
(March 7, 1995), Franklin Co. App. No. 94APA08-1224, unreported (1995 Opinions 787) -- Misdemeanor assault may not be the basis for an offense of violence specification pursuant to
, which requires a prior conviction or guilty plea on an aggravated felony of the first, second or third degree, or murder or aggravated murder.
State v. Mosley
(1993), 88 Ohio App. 3d 461 -- Since breaking and entering is not defined as an offense of violence by
, it may not be the basis for a specification permitting imposition of a term of actual incarceration upon conviction of an aggravated felony or requiring the imposition of an indefinite sentence upon conviction of a third or fourth degree felony.
State v. Valentine
(1991), 77 Ohio App. 3d 489 -- If the principal offense carries a specification which would result in an indefinite term, the defendant may be convicted of a lesser included offense and sentenced to an indefinite term without a separate count and specification being included in the indictment.
State v. Lytle
(1990), 49 Ohio St. 3d 154 -- Syllabus: "Where a defendant is convicted of a third or fourth-degree felony that is a lesser included offense of a felony of greater degree, and where the felony of greater degree is charged in the indictment and is accompanied by a firearm specification, pursuant to
, the firearm specification applies to the lesser included offense."
State v. Carroll
(1995), 104 Ohio App. 3d 372 -- Court finds indictment for a F-2 served the function of an
harm specification with respect to the F-4 lesser included offense the defendant pleaded guilty to.
State v. Dilley
(1989), 47 Ohio St. 3d 20 -- Syllabus: "The state may not amend an indictment pursuant to Crim. R. 7(D) so as to include a specification contained in
without first presenting the specification to the grand jury or following other alternatives contained in
State v. Fryling
(1992), 85 Ohio App. 3d 557 -- Amendment of indictment by agreement to include a specification alleging prior conviction for an offense of violence, as a part of plea negotiations, waived the defendant's right to have the specification presented to the grand jury.
State v. Dilley
(1989), 47 Ohio St. 3d 20, distinguished. Also see
State v. Childress
(1993), 91 Ohio App. 3d 258.
State v. Patton
(1995), 106 Ohio App. 3d 736 -- Defendant who claimed self-defense was acquitted of murder, but convicted of having a weapon under disability and related firearm and physical harm specifications. Court holds self-defense is a defense to a physical harm specification. Thus, it was error not to so instruct the jury, and conviction on the specification was not supported by the evidence.
State v. Fittro
(1993), 66 Ohio St. 3d 16 -- For discussion of whether a defendant is entitled to a bifurcated trial in a drug case where there is a specification alleging a prior conviction, see dissenting opinion.
State v. Riggins
(1986), 35 Ohio App. 3d 1, 5-6 -- It is reversible error for a court to overrule a defense request that a specification alleging a prior offense of violence be separately tried to the court. Also see
State v. Swiger
(1987), 34 Ohio App. 3d 371,
State v. Watters
(1985), 27 Ohio App. 3d 186.
State v. Ireson
(1991), 72 Ohio App. 3d 235 -- Where a prior domestic violence conviction is relied upon in the indictment both to increase the degree of the offense and as the basis for a specification requiring the imposition of an indefinite sentence, a defendant is not entitled to a bifurcated trial on the matter of the prior conviction. Also see
State v. Allen
(1987), 29 Ohio St. 3d 53. But see
Old Chief v. United States
(1997), 519 U.S. 172.
State v. Nagel
(1999), 84 Ohio St. 3d 280 -- Syllabus: "The requirements of
for waiving a jury trial in 'criminal cases' do not apply to requests made by a defendant under former
to have the trial judge, in a case tried by a jury, determine the prior-conviction specifications." In the court's view "criminal cases" encompasses the "underlying charge" but not the specifications.
State v. Black
(1997), 124 Ohio App. 3d 419 -- Ineffective assistance of counsel found where prior offense of violence specification was tried to the jury instead of the court. Defendant did not testify, so prior conviction could not have been used for impeachment. Even if he had, it was beyond the 10 year limit of Evid. R. 609(B).
State v. Miller
(1997), 122 Ohio App. 3d 111, 123-124 -- Defendant never agreed to have a prior offense of violence specification tried to the court and the judge failed to instruct the jury on the specification. Even though the defendant admitted the prior offense during his testimony, the court was without authority to find him guilty of the specification.
State v. Williams
(1996), 74 Ohio St. 3d 569 -- Paragraph two of the syllabus: "Whether a person has a 'significant history of prior criminal convictions' under
is a question for the jury and is specifically outside the province of expert testimony."
Death Penalty Specifications
State v. Sapp
, 105 Ohio St. 3d 104,
-- "Course of conduct" in relation to a death penalty specification held to encompass crimes committed in a similar manner over an extended period of time. But see the dissenting opinions in
State v. McKnight
, 107 Ohio St. 3d 101,
State v. Maurer
(1984), 15 Ohio St. 3d 239, 248-249 -- Court may refuse to accept tendered jury verdict which fails to make a finding on death penalty specification.
Ullman v. Seiter
(1985), 18 Ohio St. 3d 59 -- Absent a death penalty specification, a defendant is not entitled to have a charge of aggravated murder tried to a three judge panel.
State ex rel. Henry v. McMonagle
(2000), 87 Ohio St. 3d 543 -- If the indictment is amended to eliminate death penalty specifications, a single judge may take a guilty plea to aggravated murder.
State v. Smith
(1997), 80 Ohio St. 3d 89, 115 -- In a capital case, felony murder and murder to escape detection specifications properly merged, but multiple murder specification should have remained a separate aggravating circumstance for the jury to consider at the penalty phase.
State v. Jenkins
(1984), 15 Ohio St. 3d 239, 197-198 -- When separate death penalty specifications are based on aggravated robbery and kidnapping, and those offenses would merge, the specifications should be merged to be considered as a single aggravating factor at the penalty phase of a capital trial. Compare
State v. Rogers
(1985), 17 Ohio St. 3d 174, 180-181 where the rape and kidnapping specifications did not merge.
State v. Mapes
(1985), 19 Ohio St. 3d 108 -- (1) Paragraph one of the syllabus: "Crim. R. 11(B)(2) and Evid. R. 410 do not preclude admission of a conviction entered upon a no contest plea to prove a prior murder specification under
." (2) Verdicts not subject to reversal though jury found defendant guilty of aggravated murder in the course of both burglary and robbery but not guilty of specifications based on those offenses.
State v. Wogenstahl
(1996), 75 Ohio St. 3d 344 -- Paragraph two of the syllabus: "It is improper for prosecutors at the penalty phase of a capital trial to make any comment before a jury that the nature and circumstances of the offense are 'aggravating circumstances (i.e. death penalty specifications)." See p. 356 for clarification of
State v. Gumm
(1995), 73 Ohio St. 3d 413.
State v. Mitts
(1998), 81 Ohio St. 3d 223, 231 -- "Multiple course- of-conduct (death penalty) specifications are duplicative and must be merged at the sentencing phase...In fact, such multiple course-of-conduct specifications should not even be included in an indictment...Further, if such multiple course-of-conduct specifications are included in an indictment, the 'trial court should instruct the jury in the penalty phase that those duplicative specifications must be considered merged for purposes of weighing the aggravating circumstances against the mitigating factors'..."
State v. Lomax
(1998), 128 Ohio App. 3d 651 -- In a death penalty case tried to a three judge panel, the only specification defendant was found guilty of omitted allegation that he was the principal offender. Amendment before sentencing phase permissible because he was the only person charged, and thus under constructive notice.
Sufficiency of Proof
State v. Barker
, 183 Ohio App. 3d 414,
– (1) Waiver of jury trial on a repeat violent offender specification waives claimed
error. (2) When passing sentence on a repeat violent offender specification the evidence must support whatever factual foundation is called for by the referenced subsection within
. Here the defendant was sentenced to additional time under former R.C. 2929.14(D)(2)(b) though his prior convictions were more than twenty years in the past. While he would have been eligible for additional time under (D)(2)(a), that wasn‘t the subsection referenced in the judgment entry.
State v. Smith
(2000), 136 Ohio App. 3d 343 -- Record adequately supported imposition of nine additional years for being a repeat violent offender. Defense counsel acknowledged the authenticity of records reflecting prior convictions and agreed that the defense had stipulated to the finding. Presentence investigation was a part of the record, and, combined with statements from the bench, supported imposition of additional sentence.
State v. Weaver
, Cuyahoga App. No. 82144,
-- Drug trafficking in the presence of a juvenile specification was not proven where the key witnesses had no personal knowledge of a juvenile's presence, and had only heard from others the brother of a codefendant was waiting in a car.
State v. Sargent
(1998), 126 Ohio App. 3d 557 -- Defendant's arson and felonious assault sentences were increased by ten years upon being found a repeat violent offender. (1) Both
criteria were met. Prosecution as an adult for an offense committed as a juvenile in Kentucky was a qualifying prior conviction. (2) Police reports and indictments from the Kentucky incident were sufficiently authenticated and properly admitted as ancient documents. (3) Court rejects double jeopardy and ex post facto challenges to the repeat violent offender provisions.
State v. O'Neil
(1995), 107 Ohio App. 3d 557 -- Prior offense specification not proven where there was evidence establishing that the defendant was previously arrested for a particular offense, but nothing more than the same name appearing on a certified judgment entry. At most evidence allowed an inference that the defendant was the same person. There was no evidence linking the booking number to the court case number, or establishing that the defendant was the person who previously appeared in court.
State v. Jones
(1997), 79 Ohio St. 3d 324 -- Syllabus: "The specification of physical harm or threat of physical harm of former
is satisfied when the defendant causes or threatens physical harm during the commission of a felony. (
State v. Witwer
, 64 Ohio St. 3d 421...clarified.)" The felony itself need not cause or threaten harm.
State v. Ford
, 128 Ohio St. 3d 398,
– Syllabus: “(1) The criminal offense of discharging a firearm at or into a habitation as defined in
, and a firearm specification as defined in
, are not allied offenses of similar import as defined in
, because a firearm specification is a penalty enhancement, not a criminal offense. (2) Penalties for a specification and its predicate offense do not merge under
State v. Hunter
, 123 Ohio St. 3d 164,
– Syllabus: "(1)
State v. Foster
, 109 Ohio St. 3d 1,
, 845 N.E. 2d 470, excised judicial fact-finding from former R.C. 2929.14(D)(2) but did not eliminate the repeat violent offender specification, as defined in former R.C. 2929.01(DD). (2) 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. (
Shepard v. United States
(2005), 544 U.S. 13, 125 S.Ct. 1254, 161 L. Ed. 2d 205, followed.)
State v. Lawrence
, 180 Ohio App. 3d 468,
– A prior aggravated vehicular homicide conviction may not be the predicate for a repeat violent offender specification as
is not among the offenses enumerated in
State v. Evans
, 113 Ohio St. 3d 100,
, ¶15 -- A specification by its nature is ancillary to and dependent upon the existence of the underlying charge. Also see
State v. Nagel
(1999), 84 Ohio St. 3d 280, 286.
State v. Witwer
(1992), 64 Ohio St. 3d 421 -- Syllabus: "A court of common pleas may impose the indefinite term of incarceration prescribed by
where an accused has been convicted of a fourth degree felony the commission of which caused physical harm to any person, provided the indictment which initiated the criminal proceedings contains the specification contained in
and the accused was convicted thereon." (Real issue was whether increased penalty constituted double jeopardy.) Compare
State v. Conley
(1991), 77 Ohio App. 3d 489 -- Allegation of prior offense of violence plus nature of the principal offense (felonious assault) placed defendant sufficiently on notice he would receive an indefinite sentence if convicted of the lesser offense of aggravated assault. (Impliedly overruled by
State v. Shue
(1994), 97 Ohio App. 3d 459 -- Physical harm specification attached to a receiving stolen property charge should not have been dismissed by the court where a stolen gun was used in a homicide.
State v. Hawes
(1996), 111 Ohio App. 3d 777 -- Defendant was charged with felonious assault but pleaded guilty to aggravated assault. He did not plead guilty to a physical harm specification. Court was without authority to impose an indeterminate sentence.
State v. Price
(1990), 69 Ohio App. 3d 243 -- Though there was apparently a specification alleging a prior offense of violence and sufficient proof presented on the specification, the court failed to make a finding. Consequently court may not impose an indefinite sentence until its finding is journalized. Remanded for court to enter finding.
State v. Tyson
(1984), 19 Ohio App. 3d 90 -- (1) An indefinite sentence is precluded under pre July 1, 1996 law upon conviction of a third or fourth degree felony if the indictment does not include a specification pursuant to
. Also see
State v. Howiler
(1985), 26 Ohio App. 3d 181. (2) Additional sentence for firearm specification only applies if the defendant has received an indefinite sentence for the underlying offense. (3) Firearm specification requires separate guilty verdict or guilty plea.
State v. Hawkins
(1986), 30 Ohio App. 3d 259 -- Overruling of motion to dismiss specification not a final appealable order.
David L. Strait
Copyright © Franklin County Public Defender and David L. Strait, 2015
Contents may not be duplicated without express permission.