Cases Pending on the Merits in the Supreme Court of Ohio 
of Interest to Criminal Defense Lawyers

  Stephen P. Hardwick
Assistant Public Defender
stephen.hardwick@opd.ohio.gov

 2007-0184, State v. Brown

Proposition of Law I: Convictions for aggravated assault under both theories must stand when the convictions arise from a single act.

Proposition of Law II: The two counts of aggravated assault should merge.

 2007-0291 / 2007-0472, State v. D.H.

Appellant’s Proposition of Law: A juvenile has a constitutional right to a jury trial when the state seeks to punish him as an adult by imposing adult prison terms upon him. Therefore, a statute that requires a judge, rather than a jury, to make factual findings that require the imposition of an adult prison term upon a juvenile, is unconstitutional under State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, and Blakely v. Washington (2004) 542 U.S. 296.

Appellee’s Proposition of Law: A juvenile defendant does not have a constitutional right to a jury trial, as articulated under the Sixth Amendment to the United States Constitution and Sections 5 and 10, Article I of the Ohio Constitution, in juvenile proceedings. State v. Foster 109 Ohio St.3d 1, 2006-Ohio-856, and Blakely v. Washington (2004) 542 U.S. 296 are inapplicable to findings made by a judge in juvenile court when, pursuant to R.C. 2152.13, imposing the adult portion of a blended sentence.

Certified Question: Do constitutional jury trial rights, as articulated under the Sixth Amendment to the United States Constitution and Section 5 and 10, Article I of the Ohio Constitution, and as applied to an adult felony sentencing in accordance with State v. Foster,109 Ohio St.3d 1, 2006-Ohio-856, and Blakely v. Washington (2004), 542 U.S. 296, also apply, in a Pre-Foster sentencing, to findings that a juvenile court had made under Ohio’s adult felony sentencing statutes when the juvenile court imposed the adult portion of a blended juvenile/adult sentence under R.C. 2152.13 of Ohio’s youthful offender statutes?

 2007-0325, State v. Davis

Appellant’s Proposition of Law: The opportunity to file a discretionary appeal in the Supreme Court of Ohio does not create a bar to a merit ruling on a timely filed application to reopen appeal under App. R. 26(B).

Appellee’s Proposition of Law: Unless it produces an unjust result, principals of res judicata apply to App. R. 26(B) motions to reopen appeals.

 2007-0375, State v. Gardner

Proposition of Law: The trial court’s jury instructions regarding aggravated burglary were proper and Gardner’s conviction was valid because the language tracked R.C. 2911.11(A)(2), Gardner was charged with, and the jury was instructed on, another criminal offense stemming from the same incident, and Gardner failed to object to the jury instructions.

 2007-0376, Hageman v. Southwest General Health Center

Appellant’s Proposition of Law: An attorney cannot be held liable for unauthorized disclosure of health care information, under Biddle v. Warren General Hospital (1999), 86 Ohio St.3d 395, for having given health care records, which were lawfully obtained and which were not subject to a protective order, to a prosecuting attorney at the prosecuting attorney’s request.

Appellee’s Proposition of Law: The disclosure and use of medical records pursuant to an implicit waiver should be limited to that use for which the law created the implicit waiver.

 2007-0394, State v. Hairston

Proposition of Law: A violation of the Eighth Amendment to the United States Constitution occurs where a defendant is sentenced to 134 years incarceration for three aggravated robberies where injuries are non-life threatening.

 2007-0475, State v. Elmore

Proposition of Law No. I: Application of the Foster remedies to a defendant who committed his offense(s) prior to the announcement of Foster violates a defendant’s right to trial by jury.

Proposition of Law No. II: The Foster remedies constitute[] judicial legislation and application of the Foster remedies to a defendant who committed his offense(s) prior to the announcement of Foster is violative of the ex post facto clause of the federal constitution.

Proposition of Law No. III: Application of the Foster remedies to a defendant who committed his offense(s) prior to the announcement of Foster is violative of the Due Process clause of the Fourteenth Amendment to the federal constitution under Rogers v. Tennessee (2001), 532 U.S. 451.

Proposition of Law No. IV: A common pleas court lacks jurisdiction to impose consecutive sentences for the commission of multiple felonies.

Proposition of Law No. V: The rule of lenity codified in R.C. 2901.04(A) requires the imposition of minimum and concurrent sentences for those persons who committed their offenses prior to the announcement of the opinion in State v. Foster (2006), 109 Ohio St.3d 1, 2006-Ohio-856.

 2007-0656 / 2007-0657, State v. Veney

Certified Question: Whether a trial court must strictly comply with the requirement in Crim.R. 11(C) that it inform the defendant that by entering a plea, the defendant waives the right to have the State prove guilt beyond a reasonable doubt.

Appellant’s Proposition of Law No. I: A substantial compliance standard applies to the advisement required by Crim.R. 11(C)(2)(c) regarding the State’s burden of proving guilt beyond a reasonable doubt at trial.

Appellant’s Proposition of Law No. II:The failure to give the beyond-reasonable doubt oral advisement required by Crim.R. 11(C)(2)(c) is subject to harmless-error review and does not always require reversal.

Appellee’s Proposition of Law No. I: Courts must strictly comply with the constitutional requirements in Crim.R. 11(C)(2)(c) and explain all of the constitutional rights listed in the rule that a defendant waives by pleading guilty, in a manner reasonably intelligible to the defendant, including the right to have the state prove guilt beyond a reasonable doubt.

Appellee’s Proposition of Law No. II: The failure to orally inform the defendant under Crim.R. 11(C)(2)(c) that the entry of a guilty plea constitutes a waiver of the State’s obligation to prove his guilt beyond a reasonable doubt at a trial constitutes plain error because it affects a substantial right of the accused.

 2007-0705, McFadden v. Cleveland State Univ.

Proposition of Law No. I: An appellate court’s convening of an en banc proceeding to resolve an intra-district conflict in the case law of that appellate district on an issue of law does not violate Section 3(A), Article IV of the Ohio Constitution.

Proposition of Law No. II: An appellate court abuses its discretion by erroneously denying an App.R. 26(A) application for reconsideration seeking en banc review of a conflict on an issue of law in the case law of that appellate district.

 2007-0728, In re: Andrew

Appellant’s Proposition of Law: A person over the age of eighteen is still considered a “child” and is subject to the protections of the juvenile code, including R.C. 2151.352 and the requirement that “[c]ounsel must be provided for a child not represented by the child’s parent, guardian, or custodian,” and the jurisdiction of the juvenile court when that person was adjudicated delinquent prior to the age of eighteen. R.C. 2152.02(C); Article I, Sections 10 and 16 of the Ohio Constitution; and Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.

Appellee’s Proposition of Law: Pursuant to R.C. 2151.352, an adult, under juvenile court jurisdiction, may waive his right to counsel without the representation of his parents, guardian or custodian—precisely because he is an adult.

 2007-0742, State v. Brady

Proposition of Law No.  I: Appellee’s Motion to Dismiss was based on facts that went beyond the face of the indictment and, thus, was not permitted under the Ohio Rules of Criminal Procedure.

Proposition of Law No. II: Due Process does not require the provision of expert assistance relevant to an issue that is not likely to be significant at trial.

 2007-0754, State v. Nucklos

Proposition of Law: The “licensed health professional” exception to drug trafficking in R.C. 2925.03(B)(1) is an affirmative defense.

 2007-0895 / 2007-0912, In re: L.A.B.

Proposition of Law No. I: A child has the right to counsel at all stages of the proceedings against him. A child’s waiver of his right to counsel at a probation revocation hearing should be permitted only upon strict compliance with constitutional safeguards that can ensure such waiver is knowing, intelligent, and voluntary and thus comports with the due process requirements of Article I, Section 16 of the Ohio Constitution and the Fifth and Fourteenth Amendments to the United States Constitution.

Proposition of Law No. II: When a child appears in juvenile court before a magistrate, the magistrate’s failure to warn the child of the child’s responsibility to file objections to the magistrate’s decision pursuant to Juvenile Rule 40 before permitting the child to waive his right to counsel is structural error and thus warrants automatic reversal.

Certified Question: Does Juvenile Rule 29 apply to probation revocation hearings in juvenile court?

 2007-0983 / 2007-1047, State v. Clark

Proposition of Law: A guilty plea to an offense carrying a life sentence is not knowing, voluntary, and intelligent when the trial court tells the defendant that he or she will be subject to time-limited postrelease control upon release, instead of indefinite parole.

Certified Question: Is a guilty plea knowing, intelligent, and voluntary when the trial court misinforms the defendant that he or she will be subject to five years postrelease control if released and up to nine months in prison for any violation when, in fact, the defendant faces a lifetime of parole and re-incarceration for life for any violation?

 2007-1039, State v. Davis

Proposition of Law: Crim.R. 7(D) permits the amendment of an indictment changing the level of offense because that amendment does not change the name or identity of the crime charged.

2007-1046, State v. Swann

Proposition of Law: The Federal Constitution does not prohibit a trial court from applying the “corroboration” requirement in Evid.R. 804(B)(3) to exclude hearsay testimony offered by a criminal defendant. [Holmes v. South Carolina (2006), 126 S.Ct. 1727, distinguished].

 2007-1184, State v. Baker

Certified Question: Criminal Rule 32(C) does not require a sentencing entry to contain the plea at arraignment, and a criminal case satisfies the final order requirement of R.C. 2505.02, if there has been a disposition of guilt and a criminal sentence.

 2007-1211, State v. Dankworth

Proposition of Law No. I: The filing of a second request for discovery upon the appearance of new counsel is a tolling event pursuant to R.C. 2945.71.

Proposition of Law No. II: The triple-count provision of R.C. 2945.71(E) does not apply to a multiple count indictment where all counts are not related, are not part of a common litigation history, and thus should not be treated as a single charge.

 2007-1254, State v. Silsby

Certified Question No. I: Whether a delayed appeal under Ohio Rule of Appellate Procedure 5(A) is identical to a direct appeal under Ohio Rule of Appellate Procedure 4(A) for purposes of appellate review as to whether a defendant was sentenced upon the basis of an unconstitutional statute under the guidelines of State v Foster.

Answer and Proposition of Law No. I: Yes. A delayed appeal under Ohio Rule of Appellate Procedure 5(A) is identical to a direct appeal under Ohio Rule of Appellate Procedure 4(A) for purposes of appellate review as to whether a defendant was sentenced upon the basis of an unconstitutional statute under the guidelines of State v. Foster.

Certified Question No. II: Whether a defendant’s sentence must be reversed on the basis of State v. Foster when: a) the defendant was sentenced prior to the announcement of State v. Foster; b) the defendant was sentenced under the statutes found to be unconstitutional in State v. Foster; c) the defendant does not pursue a direct appeal but rather files a delayed appeal; d) and raises the issues of unconstitutional sentencing on the basis of Foster for the first time on delayed appeal.

Answer and Proposition of Law No. II: Yes. A defendant’s felony sentence must be vacated on the basis of State v. Foster when the defendant was sentenced prior to the announcement of Foster; was sentenced under the statutes found to be unconstitutional in Foster; and the defendant raises the issues of the constitutionality of the sentencing statutes on the basis of Foster on delayed appeal.

 2007-1261, State v. Ketterer

Proposition of Law No. I: A defendant’s sentence is void when the trial court fails to properly advise him concerning postrelease control on all counts.

Proposition of Law No. II: A trial court’s sentencing must be vacated if it does not contain the information mandated by Crim. R. 32(B).

Proposition of Law No. III: A defendant may not be resentenced pursuant to a statutory scheme in which the requirement for additional fact finding to impose greater than the minimum and consecutive sentences was eliminated subsequent to his guilty pleas.

Proposition of Law No. IV: The prosecution is required to provide the defendant with exculpatory evidence which is material to sentencing.

Proposition of Law No. V: When a defendant in a capital case waives his right to a jury and a three judge panel accepts his guilty pleas as to both the capital and non capital charges contained in the indictment, the panel and not the presiding judge should decide the defendant’s subsequent motion to withdraw his guilty pleas.

Proposition of Law No. VI: A defendant’s guilty plea, to be knowing and intelligently entered, must be based upon an accurate understanding of the facts and applicable law.

 2007-1302, State v. Mays

Certified Question: May a police officer who witnesses a motorist cross a right white edge line and without any further evidence of erratic driving or that the crossing was done in an unsafe manner make a constitutional stop of the motorist?

 2007-1415, State v. Mosmeyer

Proposition of Law No. I: A defendant who has been sentenced to a term of imprisonment that does not include postrelease control may not be sentenced anew in order to add postrelease control unless the State has challenged the failure to include postrelease control in a timely direct appeal.

Proposition of Law No. II: R.C. 2929.191 is unconstitutional in that it violates the separation of powers doctrine.

Proposition of Law No. III: Am. Sub. H.B. Bill 137 violates the one subject rule.  

Proposition of Law No. IV: The addition of postrelease control after a defendant has served seven years of an eight years sentence violates the defendant’s due process rights.

 2007-1427, State v. Ferguson

Proposition of Law: R.C. 2950.01 et seq., as applied to persons who committed their sexually oriented offenses prior to July 31, 2003, violates Art. I, Sec. 10, of the United States Constitution as ex post facto legislation, and violates Art. II, Sec. 28 of the Ohio Constitution as retroactive legislation.

 2007-1451, In the Matter of: A.J.S.

Proposition of Law No. I: Courts of appeals must apply an abuse of discretion standard when reviewing the trial court’s probable cause determination in mandatory bindover proceedings.

Proposition of Law No. II: An appellate court is without jurisdiction to review a trial court’s finding of probable cause because it is not a final appealable order.

 2007-1462, State v. Bartholomew

Proposition of Law: The restitution statute, R.C. 2929.18(A)(1), and the crime victims compensation statute, R.C. 2743.72(E), authorize the trial court to designate the Attorney General’s Crime Victims Fund as the agency to receive the restitution payment.

 2007-1475, State v. Roberts

Proposition of Law: Where the Appellant served the prison sentence specified by the Court of Appeals, and the Ohio Department of Corrections released him, to re-arrest and re-sentence Appellant to additional prison time violates due process and the double jeopardy provisions of the U.S. Constitution and the Ohio Constitution.

 2007-1478, State v. Jeffries

Proposition of Law: Statements made by defendants to third parties outside of plea negotiations and later provided to the State are not protected by Evid.R. 410 because they are not “made in the course of plea negotiations.”

 2007-1611, State v. Rivas

Proposition of Law: A trial court properly denies a Motion to Compel Discovery of a confidential, law enforcement investigatory record absent a showing of particularized need.

 2007-1640, State v. Roddy

Proposition of Law: The double jeopardy principles contained within the United States Constitution and Ohio Constitution allow the government to appeal, and allow the Court of Appeals to review, a trial court’s substantive law rulings after the trial court enters [a] judgment of acquittal pursuant to Crim.R. 29(C).

 2007-1703, State v. Kalish

Appellant’s Proposition of Law No. I: The decision in State v. Foster does not change the standard of review for Ohio felony sentencing appeals, pursuant to R.C. 2953.08(G)(2) the required analysis remains de novo, applying the clear and convincing evidence standard.

Appellant’s Proposition of Law No. II: Under the doctrine of stare decisis, an Ohio Court of Appeals does not have authority to overrule a decision of the same district, reached by a differently composed panel.

Appellee’s Proposition of Law No. I: Applying an abuse of discretion standard of review ensures that the purposes and principles of felony sentencing are achieved and maintains the trial court’s full discretion to impose a sentence within the statutory range as set forth in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856.

Appellee’s Proposition of Law No. II: An appellate court not only has the right, but also a duty to reexamine its former decisions. Such action is consistent with the doctrine of stare decisis.

 2007-1744, State v. Centafanti

Proposition of Law: Where a criminal defendant is aware of criminal charges and fails to accompany his written notice under R.C. 2941.401 with a certificate of the Warden stating the facts of his commitment, the speedy trial time is tolled while he is in prison.

 2007-1751, In re: Burt

Proposition of Law No. I: The State’s “Violation of Prior Court Order” charge violated the Ms. Burt’s Fifth and Fourteenth Amendment rights to due process.

Proposition of Law No. II: Filing a new criminal charge against a juvenile for “violation of a prior court order,” regardless of the original offense, is a violation of the juvenile’s constitutional right to due process under the Fifth and Fourteenth Amendments to the United States Constitution.

 2007-1755, State v. Brewer

Proposition of Law No. I: An appellate court, reviewing a criminal conviction for legal sufficiency, should exclude improperly admitted evidence from its analysis, regardless of whether that conviction occurred in a bench trial or jury trial.

Proposition of Law No. II: Ohio’s Double Jeopardy Clause forbids the retrial of a defendant when the State failed to present sufficient admissible evidence at the first trial to support a criminal conviction.

 2007-1802 / 2007-1852, State v. Clay

Certified Question: Whether knowledge of the pending indictment is required for a conviction for having a weapon while under disability pursuant to R.C. 2923.13(A)(3) when the disability is based on a pending indictment.

Proposition of Law No. I: Knowledge of the disabling condition (e.g. a pending indictment for a drug offense) is an essential element of having a weapon while under disability.

Proposition of Law No. II: As a matter of due process, a criminal defendant may not be convicted of having a weapon while under disability unless he has received notice of the disabling condition.

2007-1832, Roe v. Planned Parenthood Southwest Ohio Region

Proposition of Law No. II: The disclosure of redacted non-party medical records necessary for plaintiffs to establish their claims outweighs the need for protection provided by the physician-patient privilege.

Proposition of Law No. IV: In cases involving claims for punitive damages, plaintiffs are entitled to discover information from defendant that establishes that defendant's conduct is part of a pattem of wrongful/criminal conduct.

Proposition of Law No. V: A minor plaintiff who is a victim of the defendant's systematic and intentional breach of his duty under R.C. 2151.421 to report suspected abuse is entitled to seek punitive damages against defendant for that breach.

Proposition of Law No. VI: A minor plaintiff victimized by defendant's breach of its duty to report sexual abuse pursuant to R.C. 2151.421 may use redacted reports made pursuant to R.C. 2151.421 to help establish that the defendant's breach was intentional and part of a pattem of misconduct

 2007-1842, State v. Winn

Proposition of Law No. I: Any inquiry into the appropriateness of cumulative punishments imposed for multiple offenses under Ohio’s multiple count statute must end when the statutory elements of the offenses, compared in the abstract, do not correspond to such a degree that the commission of one offense will necessarily result in the commission of another.

Proposition of Law No. II: Ohio’s multiple count statute offers no protection from cumulative punishments for aggravated robbery and kidnapping because they are not allied offenses of similar import. (State v. Logan (1979), 60 Ohio St.2d 126, 129, overruled to the extent that it found inherent in every robbery is a kidnapping.)

 2007-2030 / 2007-2426, State v. Sessler

Proposition of Law: A conviction under a specific sub-part of a charging statute may not be altered to an uncharged section of the same statute. State v. Pelfrey is limited to general charging statutes.

Certified Question:Is the holding in State v. Pelfrey, 112 Ohio St.3d 422, applicable to charging statutes that contain separate sub-parts with distinct offense levels. (See the attached journal entry, Case# 3-06-23)

 2007-2182, State v. Goldsberry

Appellant’s Proposition of Law: A criminal defendant is deprived of due process of law when an appellate court makes inconsistent rulings . . . when it accepts jurisdiction in some cases and refuses jurisdiction in other cases based on similar underlying fact patterns, specifically the fact pattern when a trial court places a criminal defendant on community control after the criminal defendant has been found guilty or pled guilty to multiple felony counts. The resulting imprisonment in cases when the court of appeals declines jurisdiction is illegal and a violation of the criminal defendant’s due process rights and denies the criminal defendant his right to appeal.

From text of memorandum in support: “The issue is how to interpret community control and does it encompass a single indictment or, should it only apply to each count of the indictment? And when is there a final appealable order?”

“Mr. Goldsberry asks this Court to find that any time a trial court finds that community control is imposed, whether it be right out of the gate at the original sentencing or after an application to be released from prison to be placed on community control, the trial court need only place a criminal defendant on community control for a specified period of time per case number, not to exceed five years, rather than to place the criminal defendant on community control for each count of the case, which still should be limited to a maximum period of five years. And either way the criminal defendant is placed on community control, it is a final appealable order.”

Appellee’s Proposition of Law No. I: Imposing a community control sanction on an offender for multiple offenses disposes of all charges in an indictment in compliance with Crim. R. 32 and does not violate the “sentencing package” doctrine rejected by this court in State v. Saxon.

Appellee’s Proposition of Law No. II: The entry sentencing appellant to prison as a result of a community control violation was a final appealable order.

2007-2186, State v. Malone

Certified Question: Is a conviction for intimidation of a witness under R.C. 2921.04(B), which requires the witness to be involved in a criminal action or proceeding, sustainable where the intimidation occurred after the criminal act but prior to any police investigation of the criminal act, and thus, also prior to any proceedings flowing from the criminal act in a court of justice?

2007-2193, State v. Bartrum 

Proposition of Law:  In a prosecution under R.C. 2907.21(A)(3) it is not necessary that there is an actual minor in order to convict the defendant.

2007-2232, State v. Peterson

Proposition of Law:  Law enforcement officers acting within the scope of their duties and in good faith are privileged to enter a residential property for the purpose of making contact with the residents therein.

 2007-2239, In re: J.F.

Proposition of Law: A juvenile’s suspended commitment may not be imposed after the juvenile has successfully completed his period of probation and has been released there from.

 2007-2254, In re: Carson

Proposition of Law: The statutory definition of “deadly weapon” is the same for both juveniles and adults. Possessing a pocketknife, without anything further, does not support a felony delinquency adjudication.

 2007-2295, State v. Hoover

Proposition of Law: R.C. 4511.19(G)(1)(b)(2), which enhances the sentence to repeat DUI offenders who refuse to submit to a chemical test, is not constitutional because there is no Fourth Amendment right to refuse a breath test to measure a suspect's blood alcohol content.

 2007-2310, State v. Jones; 2007-2311, State v. Skropits

Proposition of Law: A police officer has probable cause to make a traffic stop for a traffic stop for a traffic violation he personally observes even though he is outside of his jurisdiction.

 2007-2317, In the Matter of: T.M.

Proposition of Law: Compelling a parent to admit to the abuse of a child, as a requirement under a case plan for reunification of the child with the parent, is unconstitutional and a violation of the parent’s Fifth Amendment right against self-incrimination.

2007-2373, State v. Boswell

Proposition of Law: By eliminating the prejudice requirement, the Eighth District changed the law regarding post-sentence motions to withdraw guilty pleas.

2007-2389, State v. Thompson

Proposition of Law I:  A misdemeanor conviction that is obtained after a written waiver of the right to counsel is made on the record in open court may be used by the State to enhance penalties for later offenses if the waiver was filed.

Proposition of Law II:  A criminal defendant claiming that a prior conviction was constitutionally infirm must provide the trial court with a transcript, testimony under oath, or an affidavit that convinces a trial court there may have been a Sixth Amendment violation before any burden shifts to the State to prove the validity of a prior uncounseled conviction.

2007-2443, State v. Pasqualone

Proposition of Law No. I: Admission of a laboratory analysis report pursuant to R.C. 2925.51 does not violate a defendant's right to confrontation under the Sixth Amendment to the United States Constitution.

Proposition of Law No. II: A defendant's waiver is knowing, intelligent, and voluntary when the prosecution complies with the procedure set forth in R.C. 2925.51(B).

2008-0190, State v. Bowsher

Proposition of Law: A criminal defendant is deprived of due process of law when an appellate court makes inconsistent rulings on when it accepts jurisdiction in some cases and refuses jurisdiction in other cases based on similar underlying fact patterns, specifically the fact pattern when a trial court places a criminal defendant on community control after the criminal defendant has been found guilty or pled guilty to multiple felony counts.  The resulting imprisonment in cases when the court of appeals declines jurisdiction is illegal and a violation of the defendant's due process rights and denies the criminal defendant his right to appeal.

2008-0228, State v. Murray

Proposition of Law: This Court's modification of Ohio's sentencing statutes in Foster did not alter the standard of appellate review for felony sentences, which remains a clear-and-convincing-evidence standard of review under R.C. 2953.08(G)(2).

2008-0425, Dunn v. Smith

Issue Presented:  Whether a prisoner is entitled to a writ of habeas corpus when his entry is not a final appealable order pursuant to Criminal Rule 32(C).

 2008-0429, State v. Sanchez

Certified Question: Pursuant to Foster, has R.C. 2929.14(D)(3)(b) been severed in its entirety, thereby precluding a trial court from imposing an additional sentence upon a person found to be a major drug offender? Alternatively, has the court’s decision in Foster severed only the violative portion of R.C. 2929.14(D)(3)(b) that required the trial court to engage in judicial fact finding before imposing an add-on sentence?