A newly appointed appellate attorney has the right to view the presentence investigation report considered by the court in a defendant’s trial, the Ohio Supreme Court ruled today.

In a unanimous decision, the Supreme Court ordered the appellate court to give the attorney for Donald L. Johnson’s appeal access to the report, subject to any statutory restrictions or directives from the appeals court. The Supreme Court held that the term “defendant’s counsel,” as used in the relevant state law, is not limited to a defendant’s trial counsel but also includes a defendant’s appellate counsel. The ruling reversed the judgment of the Twelfth District Court of Appeals and addressed a conflict between that district and the Fourth District Court of Appeals.

Johnson pled no contest in September 2011 to aggravated robbery with a firearm specification, robbery, and aggravated possession of drugs. The Butler County Court of Common Pleas sentenced him to 13 years in prison, five years of postrelease control, and $19,000 in fines.

Johnson appealed his sentence to the Twelfth District, and the new attorney appointed for his appeal asked, as part of representing Johnson in his appeal, for access to the presentence investigation report filed with the trial court. The Twelfth District denied the request, stating that R.C. 2951.03(D)(1) does not allow the report to be disclosed to counsel after a defendant has been sentenced.

The Twelfth District certified that a conflict existed between its decision and a ruling from the Fourth District. The Supreme Court agreed and decided to hear the case.

Justice Terrence O’Donnell, who authored the court’s opinion, wrote that a presentence investigation report addresses the circumstances of the defendant’s offense; the defendant’s criminal record, social history, and present condition; and possible victim impact statements. Justice O’Donnell noted that R.C. 2951.03(D)(1) states that the report is confidential and not public record, but that the defendant and the defendant’s counsel may seek access to the report. Also, R.C. 2953.08(F)(1) provides that the report is part of the record to be reviewed when a sentence is appealed, he continued.

“Construing R.C. 2951.03 and 2953.08(F)(1) to preclude appellate counsel from accessing the presentence investigation report may implicate constitutional concerns of due process and/or the right to effective assistance of appellate counsel on a first appeal as of right,” Justice O’Donnell wrote. “Because of concerns for due process and the right to effective assistance of counsel on an appeal, and because the term ‘defendant’s counsel’ as used in R.C. 2951.03(D)(1) includes both a defendant’s trial counsel and a defendant’s appellate counsel, we … permit newly appointed appellate counsel to have access to a presentence investigation report upon a proper showing therefor, subject to similar restrictions as contained in R.C. 2951.03 and 2953.08(F)(1) and any further directives of the appellate court. “

Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Judith Ann Lanzinger, Sharon L. Kennedy, and William M. O’Neill joined Justice O’Donnell’s opinion. Justice Judith L. French concurred only in the judgment of the court.

2013-0332. State v. Johnson, Slip Opinion No. 2014-Ohio-770.

View oral argument video of this case.

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