DocketNumber: Court of Appeals No. WD-00-029, Trial Court No. 99-CR-169.
Judges: Pietrykowski, Sherck, Glasser
Filed Date: 3/16/2001
Status: Precedential
Modified Date: 10/19/2024
DECISION AND JUDGMENT ENTRY
This case is on appeal from the March 29, 2000 judgment of the Wood County Court of Common Pleas which sentenced appellant, Eric D. Roberson, following his conviction of robbery, a violation of R.C.
"FIRST ASSIGNMENT OF ERROR
"REVISED CODE 2951.03(B)(1), WHICH MANDATES THE NON-DISCLOSURE OF RELEVANT SENTENCING INFORMATION TO A DEFENDANT OR HIS COUNSEL (OTHER THAN A ``SUMMARY') IS AN UNCONSTITUTIONAL VIOLATION OF A DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. REVISED CODE 2951.03(C), WHICH PROHIBITS APPELLATE REVIEW OF THE MATTER, IS A SELF-EVIDENT VIOLATION OF DEFENDANT'S CONSTITUTIONAL RIGHTS.
"SECOND ASSIGNMENT OF ERROR
"REVISED CODE 2951.03(B)(1), AS APPLIED BY THE TRIAL COURT, IS AN UNCONSTITUTIONAL VIOLATION OF A DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.
"THIRD ASSIGNMENT OF ERROR
"THE TRIAL COURT ERRONEOUSLY INTERPRETED [SIC] REVISED CODE 2929.12(B)(7) REGARDING ``OFFENSES COMMITTED FOR HIRE OR AS A PART OF ORGANIZED [SIC] CRIMINAL ACTIVITY' TO APPLY TO A DEFENDANT NOT ACTING FOR HIRE AND ENGAGED ALONE IN CRIMINAL ACTIVITY."
In his first assignment of error, appellant argues that the provisions of R.C.
Ohio's Crim.R. 32.2 provides that:
"In felony cases the court shall, and in misdemeanor cases the court may, order a presentence investigation and report before imposing community control sanctions or granting probation."
R.C.
"(B)(1) If a presentence investigation report is prepared pursuant to this section, section
2947.06 of the Revised Code, or Criminal Rule 32.2, the court, at a reasonable time before imposing sentence, shall permit the defendant or the defendant's counsel to read the report, except that the court shall not permit the defendant or the defendant's counsel to read any of the following:
"(a) Any recommendation as to sentence;
"(b) Any diagnostic opinions that, if disclosed, the court believes might seriously disrupt a program of rehabilitation for the defendant;
"(c) Any sources of information obtained upon a promise of confidentiality;
"(d) Any other information that, if disclosed, the court believes might result in physical harm or some other type of harm to the defendant or to any other person.
"* * *.
"(3) If the court believes that any information in the presentence investigation report should not be disclosed pursuant to division (B)(1) of this section, the court, in lieu of making the report or any part of the report available, shall state orally or in writing a summary of the factual information contained in the report that will be relied upon in determining the defendant's sentence. The court shall permit the defendant and the defendant's counsel to comment upon the oral or written summary of the report.
"* * *.
*Page 629"(C) A court's decision as to the content of a summary under division (B)(3) of this section or as to the withholding of information under division (B)(1)(a), (b), (c), or (d) of this section shall be considered to be within the discretion of the court. No appeal can be taken from either of those decisions, and neither of those decisions shall be the basis for a reversal of the sentence imposed."
Appellant contends that R.C. 2959.03, which bars him from seeing the entire presentence investigation report prevents his appointed counsel from being able to fully and fairly participate in the adversarial fact finding process. He contends that he has been denied due process and his
The
The ultimate test of whether appointed counsel rendered ineffective assistance of counsel is whether the defendant had a fair trial.Lockhart v. Fretwell (1993),
Most recently, the United States Supreme Court has held that a defendant is denied due process if he is sentenced to death based in part upon information in a presentence investigation report which he had no opportunity to deny or explain. Gardner v. Florida, supra. However, the court did not overrule its holding in an earlier case, Williams v. NewYork (1949),
Kent v. United States (1966),
While appellee cites to some cases that have held that the Gardner
holding is limited to death penalty cases, those cases centered around the issue of whether the court can consider confidential nonfactual material during sentencing and not the issue of disclosure. See Levinv. State (Fla.App. 1977),
Lower courts decisions prior to the Gardner decision in 1977, held that the Due Process Clause is not violated by a sentence which was imposed based upon information in a presentence report to which the defendant was not privy. United States v. Lowe (C.A.6, 1973),
More recent decisions, however, tend to go the other way and hold that the due process clause "requires that a defendant be afforded an opportunity to ensure that the information considered at a sentencing hearing is accurate and reliable." United States v. Sciacca (C.A.8, 1989),
The Ninth District Court of Appeals has, on several occasions, addressed the constitutionality of Ohio's presentence investigation statute. See State v. Gotsis (1984),
We conclude that the Gardner holding requiring full disclosure applies only to death penalty cases where rehabilitation is no longer an issue. Under Ohio's statute, the defendant is entitled to see the factual parts of the report. The defendant's access is limited only in the areas of sentencing recommendations, diagnostic opinions if necessary to preserve rehabilitation efforts, confidential source information, and any other information which would put someone's life *Page 632 at risk. We find that these four narrow limitations are reasonable. The court's need for such information to formulate an appropriate sentence and the need to protect certain sources of information outweigh any burden non-disclosure would have on the defense.
In this case, the trial court's judgment indicates that the only portion of the pre-sentence report that defendant was barred from viewing was the probation officer's recommendations. We recognize a defendant's right to know the facts presented in the presentence report, but we find that there is no compelling reason that sentencing recommendations need to be disclosed.
Appellant also claims that R.C.
Appellant also asserts that the trial court failed to comply with R.C.
Therefore, we find appellant's first and second assignments of error not well-taken.
Finally, in his third assignment of error, appellant argues that the trial court erred by applying R.C.
R.C.
"(B) The sentencing court shall consider all of the following that apply regarding the offender, the offense, or the victim, and any other relevant factors, as indicating that the offender's conduct is more serious than conduct normally constituting the offense:
"* * *.
"(7) The offender committed the offense for hire or as a part of an organized criminal activity."
Appellant contends that he was acting alone or at most had a simple accomplice. Appellant pled guilty to one count of robbery. He was accused of purse-snatching with an element of force. In the presentence investigation report, *Page 633 appellant had stated that he had committed a similar offense the following month; that he had committed the offenses with an accomplice; that he used and sold drugs at the time; and that he had stolen the purses in order to obtain money to purchase drugs.
The trial court indicated that it had found three of the factors of R.C.
Upon a review of the statute, we find that the legislature never intended the type of criminal activity in this case to be classified as organized criminal activity. The mere fact that he may have had an accomplice is insufficient to constitute an "organized" crime. Since the court also found that two other seriousness factors existed, we remand this case to the trial court for re-sentencing. Only the trial court can determine whether the existence of the other two factors alone would support the sentence imposed.
Accordingly, appellant's third assignment of error is well-taken.
Having found that the trial court did commit error prejudicial to appellant, the judgment of the Wood County Court of Common Pleas is reversed in part. The judgment is reversed only with regard to the sentence imposed. In all other respects, the judgment is affirmed. This case is remanded for re-sentencing as outlined above. Pursuant to App.R. 24, appellant and appellee are hereby ordered to equally share the court costs incurred on appeal.
James R. Sherck, J., Mark L. Pietrykowski, P.J. CONCUR.
____________________________ George M. Glasser, J. JUDGE
Judge George M. Glasser, retired, sitting by assignment of the Chief Justice of the Supreme Court of Ohio. *Page 634