State v. Hunter

[Cite as State v. Hunter, 123 Ohio St.3d 164, 2009-Ohio-4147.]

THE STATE OF OHIO, APPELLEE, v. HUNTER, APPELLANT.
[Cite as State v. Hunter, 123 Ohio St.3d 164, 2009-Ohio-4147.]
Criminal law — Penalties — Repeat violent offenders — Former R.C.
2929.01(DD) — State v. Foster did not eliminate specification for repeat
violent offenders — Foster eliminated judicial fact-finding from former
R.C. 2929.14(D)(2) — Court does not violate defendant’s Sixth
Amendment rights by considering prior conviction that is part of judicial
record when designating offender as repeat violent offender.
(No. 2008-0661 — Submitted April 22, 2009 — Decided August 25, 2009.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 89456,
2008-Ohio-794.
__________________
SYLLABUS OF THE COURT
1. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, excised
judicial fact-finding from former R.C. 2929.14(D)(2) but did not eliminate
the repeat violent offender specification, as defined in former R.C.
2929.01(DD).
2. When designating an offender as a “repeat violent offender” pursuant to
former R.C. 2929.01(DD), a trial court does not violate the Sixth
Amendment by considering relevant information about the offender’s
prior conviction that is part of the judicial record. (Shepard v. United
States (2005), 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205, followed.)
__________________
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
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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
fact-finding 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

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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.

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{¶ 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

1. Former R.C. 2929.01(DD) has since been amended. It now appears, substantially changed, in
R.C. 2929.01(CC). 2008 Am.Sub.H.B. No. 130.

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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.
{¶ 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.

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{¶ 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:
{¶ 22} “If the court imposing a prison term on a repeat violent offender
imposes the longest prison term from the range of terms authorized for the offense
under division (A) of this section, the court may impose on the offender an
additional definite prison term of one, two, three, four, five, six, seven, eight,
nine, or ten years if the court finds that both of the following apply * * *:
{¶ 23} “(i) The terms so imposed are inadequate to punish the offender
and protect the public from future crime * * *.

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{¶ 24} “(ii) The terms so imposed are demeaning to the seriousness of the
offense * * *.” 150 Ohio Laws, Part IV, 5734.
The Repeat Violent Offender Specification after Foster
{¶ 25} In Foster, we followed the United States Supreme Court’s
decisions in Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435, Ring v. Arizona (2002), 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d
556, and Blakely v. Washington (2004), 542 U.S. 296, 124 S.Ct. 2531, 159
L.Ed.2d 403, and held that “judicial fact-finding before imposition of a sentence
greater than the maximum term authorized by a jury verdict or admission of the
defendant” violates the right to a jury trial under the Sixth Amendment to the
United States Constitution. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d
470, paragraph one of the syllabus, and ¶ 53. We also specifically declared
former R.C. 2929.14(D)(2)(b) unconstitutional, stating that it “requires the court
to make findings before imposing an additional penalty on repeat violent
offenders and thus violates Blakely.” Id. at ¶ 78.
{¶ 26} Applying the remedy set forth in United States v. Booker (2005),
543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, we severed those parts of the
sentencing statutes that required unconstitutional fact-finding by a court,
including former R.C. 2929.14(D)(2)(b). Foster at paragraphs two, four, and six
of the syllabus. We held that “[a]fter the severance, judicial fact-finding is not
required before imposition of additional penalties for repeat-violent-offender and
major-drug-offender specifications.” Id. at paragraph six of the syllabus.
Moreover, as we subsequently emphasized in State v. Mathis, 109 Ohio St.3d 54,
2006-Ohio-855, 846 N.E.2d 1, “Foster excised the requirement that the court
make findings of fact before imposing (1) more than the minimum term on an
offender who has never served a prison term, (2) the maximum term, (3)
consecutive terms, and (4) penalty enhancements for repeat violent offenders or
major drug offenders.” (Emphasis added; footnotes omitted.) Id. at ¶ 26.

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{¶ 27} Our opinions in Foster and Mathis patently demonstrate our intent
to excise only the portions of former R.C. 2929.14(D)(2)(b) that required judicial
fact-finding in violation of the Sixth Amendment and the United States Supreme
Court’s decisions in Apprendi and Blakely. We never specifically precluded a
trial court from imposing enhanced penalties for a repeat violent offender
specification, nor did we excise the definition of a repeat violent offender as set
forth in former R.C. 2929.01(DD). Furthermore, none of our decisions after
Foster indicate that this specification no longer exists. Thus, Foster excised
judicial fact-finding from former R.C. 2929.14(D)(2) but did not eliminate the
repeat violent offender specification, as defined in former R.C. 2929.01(DD).
Accordingly, Hunter’s argument that Foster eliminated the repeat violent offender
specification is not well taken.
Whether the Designation of a Repeat Violent Offender Pursuant to
Former R.C. 2929.01(DD) Violates the Sixth Amendment
{¶ 28} In Foster, our analysis of the repeat violent offender specification
focused on former R.C. 2929.14(D)(2)(b), which set forth the judicial findings
necessary to determine the propriety of imposing an enhanced penalty on a repeat
violent offender. We did not address, however, former R.C. 2929.01(DD), which
set forth the criteria for designating an offender as a “repeat violent offender.”
Generally, that statute required the court to find that the offender had a prior
conviction and served a prison term for “[a]ggravated murder, murder,
involuntary manslaughter, rape, felonious sexual penetration * * *, [or] a felony
of the first or second degree that resulted in the death of a person or in physical
harm to a person.” Former R.C. 2929.01(DD)(2)(a)(i), 150 Ohio Laws, Part IV,
5719.
{¶ 29} In this case, the trial court designated Hunter as a repeat violent
offender pursuant to former R.C. 2929.01(DD) based on his stipulation that he
had a prior conviction for felonious assault with a specification of physical harm

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and on a finding that he had served a prison term for that prior conviction. Hunter
now contends that he has the right under the Sixth Amendment to have the jury
make those findings. For three reasons, however, the trial court did not violate
Hunter’s right to a jury trial: first, he waived that right; second, he stipulated to
the facts required to make the designation; and third, the Sixth Amendment does
not preclude a sentencing court from considering information in the judicial
record from the prior conviction.
Waiver
{¶ 30} As the court stated in Blakely, “nothing prevents a defendant from
waiving his Apprendi rights [to a jury determination of every element of the
charge]. * * * Even a defendant who stands trial may consent to judicial
factfinding as to sentence enhancements, which may well be in his interest if
relevant evidence would prejudice him at trial.” 542 U.S. at 310, 124 S.Ct. 2531,
159 L.Ed.2d 403. We recognized this in Foster and explained that while the Sixth
Amendment generally prohibits judicial fact-finding, there is an “exception for
prior criminal convictions and the defendant’s consent to judicial fact-finding.”
(Emphasis added; footnote omitted.) 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470, ¶ 7. Furthermore, in State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-
4642, 873 N.E.2d 306, we recognized that Apprendi/Blakely errors may be
waived, stating that “if Payne had knowingly waived his rights, * * * we would
conclude our analysis.” (Emphasis added.) Id. at ¶24.
{¶ 31} In this case, even if we assume that Hunter had a constitutional
right to have the jury determine his status as a repeat violent offender pursuant to
former R.C. 2929.01(DD), he chose to submit that determination to the court to
avoid presenting evidence of his prior conviction for felonious assault to the jury
at trial. Therefore, Hunter has waived whatever right he had with respect to the
repeat violent offender specification. See Blakely, 542 U.S. at 310, 124 S.Ct.

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2531, 159 L.Ed.2d 403; Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d
306, ¶ 24.
Stipulation
{¶ 32} In addition, it is noteworthy that Hunter stipulated to all the facts
necessary for the trial court to designate him as a repeat violent offender pursuant
to former R.C. 2929.01(DD). Specifically, Hunter stipulated to an indictment
charging him with felonious assault and specifying that he had caused physical
harm to the victim, that he had pleaded guilty to the offense “as charged in the
indictment,” and that the trial court had sentenced him to prison. Neither has
Hunter challenged the trial court’s finding that he had served a prison term for his
earlier offense. The additional testimony and evidence offered by the state to
prove that Hunter had caused physical harm while committing his prior offense
was superfluous.
{¶ 33} Because of Hunter’s stipulations, the trial court had no need to
conduct fact-finding in connection with former R.C. 2929.01(DD), and no Sixth
Amendment violation occurred in this case. Blakely, 542 U.S. at 310, 124 S.Ct.
2531, 159 L.Ed.2d 403 (defendant may waive Apprendi rights); see also Smith v.
Petkovich (N.D.Ohio 2008), 562 F.Supp.2d 912, 944 (citing former R.C.
2929.01(DD) and holding that no Sixth Amendment violation occurred because
“Smith stipulated as to the truth of all facts necessary to allow the court to find
that Smith was a repeat violent offender”).
Judicial fact-finding within the province of the court
{¶ 34} Even if Hunter had not waived his right to a jury trial or stipulated
to the required facts, the fact-finding conducted by the trial court to designate him
as a repeat violent offender pursuant to former R.C. 2929.01(DD) would not have
violated the Sixth Amendment.
{¶ 35} In Oregon v. Ice (2009), __ U.S. __, 129 S.Ct. 711, 714, 172
L.Ed.2d 517, the Supreme Court reiterated its holdings in Apprendi and Blakely

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that “it is within the jury’s province to determine any fact (other than the
existence of a prior conviction) that increases the maximum punishment
authorized for a particular offense.” (Emphasis added.) And as the Supreme
Court noted in Apprendi, the Sixth Amendment does not bar judicial
consideration of a defendant’s prior convictions at sentencing because
“‘recidivism * * * is a traditional, if not the most traditional, basis for a
sentencing court’s increasing an offender’s sentence.’ ” 530 U.S. at 488, 120
S.Ct. 2348, 147 L.Ed.2d 435, quoting Almendarez-Torres v. United States (1998),
523 U.S. 224, 244, 118 S.Ct. 1219, 140 L.Ed.2d 350.
{¶ 36} Significantly, the Sixth Amendment does not limit a sentencing
court’s consideration to the existence of a prior conviction. On the contrary, the
United States Supreme Court has held that courts may consider the information
contained in court documents that are related to the prior conviction. In Shepard
v. United States (2005), 544 U.S. 13, 19-20, 125 S.Ct. 1254, 161 L.Ed.2d 205, the
court held that a sentencing court, when determining whether a prior conviction
warrants an enhanced penalty under the federal Armed Career Criminal Act
(“ACCA”), may consider “the charging documents, jury instructions, a bench-trial
judge’s findings of fact and conclusions of law, the terms of a plea agreement, a
transcript of the plea colloquy or other comparable judicial records.” See also
Taylor v. United States (1990), 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d
607 (holding that for purposes of penalty enhancement, a sentencing court may
determine the nature of a predicate offense from the statutory elements, charging
documents, and jury instructions).
{¶ 37} Relying on the decisions in Apprendi, Blakely, Shepard, and
Taylor, several of our sister states have also held that sentencing courts may look
beyond the mere existence of a prior conviction without violating the Sixth
Amendment. For example, in Ryle v. State (Ind.2005), 842 N.E.2d 320, the
Supreme Court of Indiana affirmed an enhanced sentence based on a judicial

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finding from information about a prior offense contained in a presentence
investigation report. The court stated that “[t]he presentence investigation report
relies on ‘judicial record[s]’ that guarantee the conclusive significance that is the
focus of Apprendi.” Id. at 325, quoting Shepard, 544 U.S. at 26, 125 S.Ct. 1254,
161 L.Ed.2d 205. See also People v. McGee (2006), 38 Cal.4th 682, 687, 42
Cal.Rptr.3d 899, 133 P.3d 1054 (“the trial court in the present case did not violate
defendant’s rights by examining the record of the robbery convictions previously
sustained by defendant in Nevada and by concluding that each of these offenses
constituted a conviction of a ‘serious felony’ for purposes of the applicable
California sentencing statute”); State v. Pierce (2006), 188 N.J. 155, 163, 902
A.2d 1195 (“we find no Sixth Amendment violation in the sentencing court’s
consideration of objective facts about defendant's prior convictions, such as the
dates of convictions, his age when the offenses were committed, and the elements
and degrees of the offenses, in order to determine whether he qualifies as a
‘persistent offender’ ” for sentence-enhancement purposes); People v. Huber
(Colo.2006), 139 P.3d 628, 633 (“Because a defendant's sentence to probation or
supervision can be found in the judicial record, we conclude that a trial court may
properly consider this fact without violating the defendant's Blakely rights”); State
v. Fagan (2006), 280 Conn. 69, 100, 905 A.2d 1101 (“the defendant’s status as to
whether he lawfully had been on release at the time of the offense for which he
was convicted * * * was a question that also did not require a jury
determination”); State v. Jones (2006), 159 Wash.2d 231, 247, 149 P.3d 636
(“because the community placement sentence determination * * * can be readily
determined by a limited examination of the record flowing from the prior
conviction, we conclude that a court, rather than a jury, may, pursuant to
Almendarez-Torres, make, constitutionally, the * * * community placement
determination”).

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{¶ 38} Thus, pursuant to Shepard, 544 U.S. 13, 125 S.Ct. 1254, 161
L.Ed.2d 205, we hold that when designating an offender as a repeat violent
offender pursuant to former R.C. 2929.01(DD), a trial court does not violate the
Sixth Amendment by considering relevant information about the offender’s prior
conviction that is part of the judicial record.
{¶ 39} In this case, in order to declare Hunter a repeat violent offender,
the court had to determine whether he had a prior conviction and had served a
prison term for a felony of the first or second degree that resulted in physical
harm to the victim. Former R.C. 2929.01(DD)(1) and (2)(a)(i). These facts may
be readily determined from the indictment and sentencing entry for his 1990
conviction for felonious assault with a specification of physical harm and his
resulting sentence of eight to 15 years’ incarceration. The trial court did not
violate Hunter’s constitutional rights by considering these documents, which are
“judicial record evidence” created in connection with his prior conviction.
Shepard, 544 U.S. at 20, 125 S.Ct. 1254, 161 L.Ed.2d 205. Moreover, the
findings required by former R.C. 2929.01(DD) pertain directly to the issue of
recidivism, which has traditionally been within the purview of the sentencing
court, not the jury, Almendarez-Torres, 523 U.S. at 244, 118 S.Ct. 1219, 140
L.Ed.2d 350, and Hunter has not suggested that the trial court’s findings in this
case are erroneous.
{¶ 40} Accordingly, the trial court did not violate Hunter’s constitutional
rights or decisions of this court or the United States Supreme Court by
designating him a repeat violent offender pursuant to former R.C. 2929.01(DD)
and by imposing an enhanced penalty. The court of appeals properly affirmed
that judgment, and we therefore affirm its decision.
Judgment affirmed.
MOYER, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,
LANZINGER, and CUPP, JJ., concur.

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__________________
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.
______________________

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