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Pre-Sentencing Investigations and Character Witnesses at Sentencing

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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.