Pre-Sentencing Investigations and Character Witnesses at Sentencing

It is widely accepted in Ohio that 96% of felony cases are resolved by
way of a plea agreement and not a trial. Accordingly, 96% of the men and
women indicted in Ohio are going to have a sentencing hearing. There are
limited rights to defendants once they plead guilty.

Pursuant to R.C. 2947.06, the trial court
may hear testimony in mitigation of a sentence when a defendant pleads guilty.
The prosecuting attorney may offer testimony on behalf of the state to
give the court a true understanding of the case. The court
shall determine whether sentence should immediately be imposed.

The court on its own motion may direct the department of probation of the
county in which the defendant resides, or its own regular probation officer,
to make any inquiries and presentence investigation reports that the court
requires concerning the defendant.

Before a judge can order community control (probation) the judge must order
a PSI unless the defendant and the prosecutor agree to waive it.

In Ohio, R.C. 2951.03 defines a “PSI”. A court officer inquires
into the circumstances of the offense and the criminal record, social
history, and present condition of the defendant, all information available
regarding any prior adjudications of the defendant as a delinquent child
and regarding the dispositions made relative to those adjudications.

The officer’s investigation
may include a physical and mental examination of the defendant.

If the victim of the offense of which the defendant has been convicted
wishes to make a statement regarding the impact of the offense for the
officer’s use in preparing the presentence investigation report, the
officer shall comply with the requirements of that section.

The Court must 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:

1. Any recommendation as to sentence;
2. Any diagnostic opinions that, if disclosed, the court believes might seriously
   disrupt a program of rehabilitation for the defendant;
3. Any sources of information obtained upon a promise of confidentiality;
4. 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.

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.

Surprisingly, Ohio courts have ruled that it is not a violation of due
process to prohibit a defendant from having live witnesses offer testimony
at a sentencing hear. Some judges only want mitigation presented in a
sentencing memo or letters. Other judges have their own rules on handling
live witnesses at sentencing.