State v. Hunter

915 N.E.2d 292

123 Ohio St.3d 164

2009-Ohio-4147

The STATE of Ohio, Appellee, v. HUNTER, Appellant.

No. 2008-0661.

Supreme Court of Ohio.

Submitted April 22, 2009.

Decided August 25, 2009.

William D. Mason, Cuyahoga County Prosecuting Attorney, and T. Allan Regas, Assistant Prosecuting Attorney, for appellee.

Robert L. Tobik, Cuyahoga County Public Defender, and Cullen Sweeney, Assistant Public Defender, for appellant.

O'DONNELL, J.

{¶ 1} This case presents two issues for our consideration in connection with the statutorily prescribed repeat violent offender specification. The first is whether this court's decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, severed the repeat violent offender specification from the Revised Code and precluded trial courts from imposing an enhanced penalty for that specification. The second is whether a court engages in improper judicial factfinding in violation of the right to a jury trial by designating an offender as a repeat violent offender pursuant to former R.C. 2929.01(DD).

{¶ 2} Hugh Hunter appeals from a decision of the Eighth District Court of Appeals that affirmed a judgment of the trial court imposing a two-year prison term for a repeat violent offender specification, running prior to and consecutive to an eight-year prison term for his felonious assault conviction. He contends that the repeat violent offender specification no longer exists after our decision in Foster and, further, that the findings necessary for a court to designate an offender as a repeat violent offender pursuant to former R.C. 2929.01(DD) violate the Sixth Amendment and the holdings in Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, and subsequent United States Supreme Court decisions.

{¶ 3} After consideration, we have concluded that this court did not excise the repeat violent offender specification from the Revised Code in Foster. Moreover, in this instance, the trial court did not violate Hunter's right to a jury trial when it designated him as a repeat violent offender, because he waived his jury right, because he stipulated to the facts necessary to designate him as a repeat violent offender, and because it is within the purview of the court to determine the existence and nature of an offender's prior conviction. Thus, we affirm the decision of the court of appeals.

Facts and Procedural History

{¶ 4} On September 1, 2004, Hugh Hunter attacked Andrew McAuliffe at St. Malachi Church in Cleveland, causing multiple fractures and lacerations. A grand jury indicted Hunter for felonious assault and included in the indictment a repeat violent offender specification and notice of a prior conviction resulting from his 1990 conviction for felonious assault. The trial court found Hunter competent to stand trial and scheduled the matter for a jury trial to begin on October 23, 2006.

{¶ 5} At trial, Hunter stipulated to McAuliffe's medical records and to a prior conviction for felonious assault in 1990. He moved to bifurcate the trial, trying the felonious assault charge to the jury and the repeat violent offender specification to the court. He waived his right to a jury trial in regard to the specification, and asked the court to conduct a bench trial on that issue. The trial court accepted Hunter's written jury waiver and journalized it prior to commencing a jury trial on the felonious assault charge. The jury returned a verdict finding him guilty of felonious assault, and on October 25, 2006, the trial court conducted a bench trial on the repeat violent offender specification.

{¶ 6} Hunter further stipulated that during the commission of the offense of which he was previously convicted, he had caused physical harm to Gregory Rickett. The medical record to which Hunter stipulated indicated that Gregory Rickett had suffered a head wound that required stitches. The state then called Jimmy Shields, a Cuyahoga County Sheriff's deputy, who testified that he had investigated an incident in 1989 in which Hunter punched Rickett, an employee of the Cuyahoga County Jail, in the face, causing a laceration that required more than five stitches. Hunter did not call any witnesses.

{¶ 7} The trial court found that the state had proven beyond a reasonable doubt that "Mr. Gregory Rickett, the named victim * * * suffered physical harm at the hand of Mr. Hugh Hunter for which Mr. Hugh Hunter was convicted and I believe served a prison sentence." Hunter did not object, and thus, the court sentenced him to two years for the repeat violent offender specification, to be served prior to and consecutively with eight years for his conviction on the felonious assault of McAuliffe.

{¶ 8} Hunter appealed, arguing inter alia that our decision in Foster had entirely eliminated the repeat violent offender specification and that it was not possible for the trial court to designate him as a repeat violent offender pursuant to former R.C. 2929.01(DD) without violating his constitutional right to have a jury find all facts that would increase the severity of his sentence. The appellate court rejected his arguments, however, stating that Foster's severance of R.C. 2929.01(DD) meant only that judicial fact-finding is no longer required before a judge imposes an additional penalty on a repeat violent offender and holding that the trial court had properly imposed the additional penalty and had not violated Hunter's constitutional rights in doing so.

{¶ 9} Hunter has now appealed to this court on the following proposition of law: "The RVO-enhanced sentence imposed on appellant constituted a deprivation of his liberty without due process of law and a violation of his constitutional right to a trial by jury." He contends that the trial court lacked authority to impose an enhanced penalty for the repeat violent offender specification, asserting that Foster eliminated this specification in its entirety as violative of a defendant's Sixth Amendment right to have a jury find all facts required to designate him as a repeat violent offender pursuant to former R.C. 2929.01(DD).¹

{¶ 10} In response, the state contends that Foster excised only the portions of former R.C. 2929.14(D)(2)(b) that required judicial fact-finding in violation of the Sixth Amendment, not the repeat violent offender specification itself. The state argues that the trial court did not violate Hunter's constitutional rights by imposing an enhanced penalty for this specification.

{¶ 11} Thus, two issues emerge for our consideration: one, whether Foster eliminated the repeat violent offender specification and second, whether the trial court conducted impermissible fact-finding in connection to the enhanced penalty it imposed on Hunter in this case.

The Repeat Violent Offender Specification before Foster

{¶ 12} At the time we decided Foster, three separate statutes pertained to repeat violent offender specifications. Former R.C. 2929.01(DD) identified findings that were required to be made by a court to designate an offender as a "repeat violent offender." 150 Ohio Laws, Part IV, 5707, 5719. R.C. 2941.149(B) specifically directs that "[t]he court shall determine the issue of whether an offender is a repeat violent offender." Former R.C. 2929.14(D)(2)(b) set forth a range of penalty enhancements and listed the judicial findings necessary to impose them. 150 Ohio Laws, Part IV, 5734. Thus, imposition of an enhanced penalty for a repeat violent offender specification required a trial court to determine first, whether an offender was or was not a repeat violent offender, and second, which additional penalty, if any, would be appropriate. See, e.g., State v. Payne, Lake App. No. 2004-L-118, 2005-Ohio-7043, 2005 WL 3610429.

{¶ 13} With respect to the designation of a repeat violent offender, former R.C. 2929.01(DD) provided:

{¶ 14} "`Repeat violent offender' means a person about whom both of the following apply:

{¶ 15} "(1) The person has been convicted of or has pleaded guilty to, and is being sentenced for committing, for complicity in committing, or for an attempt to commit, aggravated murder, murder, involuntary manslaughter, a felony of the first degree other than one set forth in Chapter 2925 of the Revised Code, a felony of the first degree set forth in Chapter 2925 of the Revised Code that involved an attempt to cause serious physical harm to a person or that resulted in serious physical harm to a person, or a felony of the second degree that involved an attempt to cause serious physical harm to a person or that resulted in serious physical harm to a person.

{¶ 16} "(2) Either of the following applies:

{¶ 17} "(a) The person previously was convicted of or pleaded guilty to, and previously served or, at the time of the offense was serving, a prison term for, any of the following:

{¶ 18} "(i) Aggravated murder, murder, involuntary manslaughter, rape, felonious sexual penetration as it existed under section 2907.12 of the Revised Code prior to September 3, 1996, a felony of the first or second degree that resulted in the death of a person or in physical harm to a person, or complicity in or an attempt to commit any of those offenses;

{¶ 19} "(ii) An offense under an existing or former law of this state, another state, or the United States that is or was substantially equivalent to an offense listed under division (DD)(2)(a)(i) of this section and that resulted in the death of a person or in physical harm to a person.

{¶ 20} "(b) The person previously was adjudicated a delinquent child for committing an act that if committed by an adult would have been an offense listed in division (DD)(2)(a)(i) or (ii) of this section, [and] the person was committed to the department of youth services for that delinquent act." 150 Ohio Laws, Part IV, 5719.

{¶ 21} Former R.C. 2929.14(D)(2)(b) set forth circumstances pursuant to which a trial court could impose an enhanced penalty on a repeat violent offender:

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