:..:

IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

Appellee,

vs.

DONALD LEE JOHNSON,

Appellant.

CASE NO. 2013-0332

{Certification; of Conflict}

On Appeal from the Twelfth District Court of Appeals,Butler County, Ohio Case No. CA2011-12-021 2

MERIT BRIEF OF APPELLEE STATE OF OHIO

OFFICE OFPRQSCCUTlPEG ATTORMEY

DU i LER COUNTY, UH1D

RAUG 3 0 2013

CLERK OF COURTSUPRENiE COUR7 CF OH1O

Attorrzey for Appellant:

O.ffice of the Ohio Public DefenderE. KELLY MIHOCIK (007745)[Coztrasel of RecoYd]Assistant State Public Defender250 E.13road St., Suite 1400Columbus, Ohio 43215Telephone: (614) 466-5394FacsinZile:(614) 752-5167kelly.mihocik cz opd.ohio.gov

Attorneys for Appellee:

MICIIAEL T. GMOSER (0002132)Butler County Prosecuting Attorney

MICHAEL A. OSTER, JR. (0076491)Assistant Prosecuting Attorneyand Chief, Appellate Division

LINA N. ALKAMHAWI (0075462)[Counsel of'.Recorcl]Assistant Prosecuting AttorneyCovernment Sezvices Center315 High Street, l.1'h FloorHamilton, Ohio 45011Teleplione: (513) 887-3474Facsirnile. (513) 887-3748Alkamhawiln@butlercountyohio.org

aovMNlAEnT sEnvlcCS uf:N7En^ . i--•. , j4 >'!^ 5^

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................... .. . .... ....................................... ... .. iii, iv

STATEMENT OF THE CASE

Procedural Posture .................................... ................................................... ..... 1

Statement of Facts ....................................................................................................... 1-2

ARGUMENT

Certified Conflict Question:Whether, pursuant to R.C. 2951.03, newly-appointed appellate counsel is entitled toobtain a copy of the defendant's presentence investigation report . ....................... 3-11

A. The Statutory language as unambiguous - review of the presentence investigationreport is permitted solely prior to sentence .................................................. 3

B. Apresentence investigation report is confidential and must be placed under seal........ .... . ........................................ ....................................................... 7

C. Appeliant's constitutional rights are not violated by giving effect to the GeneralAssemblY.'s intent in enacting R C 2951 .03 ............................................. 9

CONCLUSION ............. ......... .... ....................................................... ..................... 13

PROOF OF SERVICE .................................................. ..................................................... 13

ii

TABLE OF AUTHORITIES

CASES:Page

In re Disqual fcation of YVinkler, 135 Ohio St.3d 1271, 2013-Ohio-890,986 N.E.2d 996 ........................... ....................................... . .............. 9

LaCourse v. Fleitz, 28 Ohio St.3d 209, 503 N.E.2d 1.59 (1986) ........................................ 5

State v. Birch, 12th Dist. No. CA2010-1.0-256, 2012-Ohio-543 ........................................ 7

State v. Buehler, 113 Ohio St.3d 114, 2007-Ohio-1246, 863 N.E.2d 124 ....................... 3,4

State v. Dietz, 89 Ohio Ap.p.3d 69, 623 N.E.2d 613 (l lth Dist. 1993) ................................ 7

State v. Fisher, 12th Dist. No. CA98-09-190, 2002-Ohio-2069 ........................................ 12

'Ytate v. Gibson, 2d Dist. No. 2006 CA 26, 2007-Ohio-4547 ............................................................................... 7

State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471 ......................... 4

State v. Hicks, 12th Dist. No. CA2002-07-162, 2002-Ohio-506 ................................... 11 , 12

State v. Steele, Slip Opinion No. 2013-Ohio-2470 ........................................................... 4

State v. Willan, Slip Opiriion lV`o. 2013-Ohio-2405 ....................................................................... 3, 4

State v. YVillis,l2thDist. No. CA2002-02-028.. 2002-Ohio-6303 .......................................12

State ex rel. C,arna v. Teays Valley Local School Dist. Bd. Of Edn., 131 Ohio St.3d 478,2012-Ohio-1484,967 N.E.2d 193 ............ ......... ......,.. .................... ................... 3,4

State ex rel. Committee for Proposed Ordinance to Repeal Ordinance No. 146-02 v.City UfLakewood, 100 Ohio St.3d 252, 2003-Ohio-5771, 798 N.E.2d 362 . ........... 8

State ex rel. Rose v. Lorain Cty. Bd. OfEle.ctions, 90 Ohio St.3d 229,736 N.E.2d 886 (2000) ...... ........ ...... ............................................................... 3

State ex rel. .Sharpness v. Gierke, 137 Ohio App.3d 821,739 N.E.2d 1231 (1 Ith Dist. 2000) ........................:................................................ 7

&ate ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960,815 N.E.2d 1107 ..... ............................................ ..... .......................... ........... 3

State ex rel. Thuyn v. Cuyahoga Cty. Bd, Of Elections, 72 Ohio St.3d 289,694 N.E.2d 1205 (1995) ......................... . .,............................... .... 8

111

TABLE OF AUTHORITIES (Continued)

Page

STATUTES:

O.R.C. 2951.03 .................................... ..... ........ ................................ 3, 4, .5, 7,11,12

O.R.C. 2951.03(B)(1) ....... ...................... ...... . .......... ... ............................... ..... 5,6

O.R.C. 2951.03(B)(2) .. ........................................................... ............................. 5,6,10,11

O.R.C. 2951.03(B)(5) . ..................... ............................................... ...... ..............10,11

O.R.C. 2951.03(D)(1) .................... ..... . . ...................................................... 4,5,7

O.R.C. 2951.03(D)(2) ................................................. .............................. 6, 6 fn 1, 9, 10

O.R.C. 2951.03(D)(3) .................................................. ..................................... .......... 7_ 9

O. R. C. 2953.08 . .......... ....... ... .. .......................... ....... ..... ... ............................... 7

O.R.C.2953.08(A) ............ .. .. ............................................................................ 11

O.R.C.2953.08(C) .............. .......... ..........................:............ ................. 11

O.R.C. 2953.08(F)(1) ........ ....................................... ..... ....................... .... 899

O.R.C. 2953.08(F)(2) .............................................................. ........ ........................ .. 10

O.R.C. 2953.08(T)(3) .. ... ..... ...... ............................................. ........................... 10

iv

STATEMENT OF THE CASE

Procedural Posture:

This cause is pending on the certification of a conflict by the Twelfth District Court of

Appeals, Butler County, Ohio on the issue of "whether, pursuant to R.C. 2951.03, a newlv-

appointed appellate counsel is entitled to obtain a copy of the defendant's presentence investigation

report."

Statement of Facts:

On September 19, 2011, in exchange for the merger of Count Two and the major drug

offender specification in Count Four, Appellant pled no contest to Aggravated Robbery and the

accompanying frearm specification (Count One), Aggravated Possession of Drugs (Count Four),

and Robbery (Count Three). (No contest Plea and Jury Waiver, filed Sept. 19,2011). On that same

day, the triai court ordered a presentence investigation report. (Id.)

On October 31, 2011, Appellant's sentencing hearing was conducted. (Judgment of

Conviction Entry, filed on Nov. 10, 2011). Appellant was sentenced to an aggregate prison term of

thirteen years. (Id.) Appellant directly appealed his sentences and convictions to the Twelfth District

Court of Appeals. State v. Johnson, Butler App. No. CA2011-11-212. While the appeal was pending,

Appellant's appellate counsel filed a motion to view and supplement the record with the presentence

investigation report. Id., (Motion filed on Nov. 29,2012). Appellee opposed the motion. Id., (Motion

filed Dec. 4, 2012). The Twelfth District granted the motion to supplement the record with the

presentence investigation report but denied the motion for Appellant's appellate counsel to view the

report, finding:

R.C. 2951.03 addresses presentence investigation reports in felony cases. R.C.2951.03(D)(1) addresses disclosure of a presentence investigation report. Noprovision of that section permits disclosure of a presentence investigation report to

1

counsel after the defendant has been sentenced. Accordingly, the motion to disclosethe presentence investigation report to appellate counsel is DENIED.Pursuant to R. C. 2953.08(p)(1), the record on. appeal shall include "a.ny pre-sentence,psychiatric, or other investigative report that was submitted to the court in writingbefore the sentence was imposed." Accordingly, the motion to supplementthe recordon appeal with the presentence investigation report is GRANTED.

Id., (Entry filed on Dec. 7, 2012).

Appellant then filed a motion to certity a conflict between the Twelfth District's decision

denying his request to view the presentence investigation report and a decision by Fourth District

Court of Appeals. Id., (Motion filed on Jan. 25, 2013). The Twelfth District agreed and gran:ted

Appellant's motion to certify conflict: "[u]pon consideration, the motion is GRANTED. The issue

for certification is whether, pursuant to R.C. 2951.03, newly-appointed appellate counsel is entitled

to obtain a copy of the defendant's presentence investigation report." Id., (Entry filed Feb. 21, 2013).

2

ARGUMENT

Certified Conflict Question:Whether, pursuant to R.C. 2951.03, newly-appointed appellate counsel is entitled toobtain a copy of the defendant's presentence investigation report.

Appellant advocates that since presentence investigation reports are "indispensible in crafting

the defendant's sentence, the legislature recognized that both parties need access to them. R.C.

2951.03(D)(1.). Therefore, because a sentence is subject to review on appeal, the legislature drafted

the statute so that the reports are available to appellate courts and both parties." (Appellant's brief

pages 5-6) The State disagrees. The plain statutory language of R.C. 2951.03 makes it clear that a

defendant and his counsel are permitted to review the report solely prior to the sentence. As such,

review of the presentence investigation report after a sentence is announced is not permitted by the

prosecution, the defendant, his trial counsel, or either appellate counsel for the defendant or

prosecution.

A. The Statutorv language is unambiguous - review of the presentence investigationrenort is permitted solelv prior to sentence .

"In cases on statutory construction, `our paramount concerii is the legislative intent in

enacting the statute.' State ex rel. Steele v. -Mnrrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815

N.E.2d 1107, ¶ 21. Furthermore, `in deterrnining this intent, Axe Frst review the statutory language,

reading words and phrases in context and construing them according to the rules of grammar and

common usage.' Id., citing State ex rel. Rose v. Lorain Cty. Bd. C3fElections (2000), 90 Ohio St.3d

229, 231, 736 N.E.2d $86." Stcate v. Buehler,113 Ohio St.3d 114, 2007-Ohio-1246, 863 N.E.2d 124,

T,1 29. "If words and phrases `have acquired a technical or particular meaning, whether by legislative

definition or otherwise,' we will construe them accordingly. R.C;.1.42. We will attempt to give effect

to `everyy word, phrase, sentence, and part of the statute' and to avoid an interpretation that would

3

`restrict, constrict, qualify, narrow, enlarge, or abridge the General A.ssembly's wording.' State ex

rel. Carna v. Teays Valley Local School .Dist; Bd. (9f Edn., 131 Ohio St.3d 478, 2012-Ohio-1484,

967 :>3T.E.2d 193, ^ 18. If language in a statute is plain and unambiguous, we will apply it as written.

State v. Haiy-ston, 101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d. 471, 13." :State v. Willan, Slip

Opinion No. 2013-Ohio-2405, 5. Therefore, "[i]n the construction of statutes the purpose' in every

instance is to ascertain and give effect to the legislative intent." Buehler, 2007-Ohio-1246, ¶ 35.

As such, this Court made it clear that it must "give effect to the plain meaning of the words

used in a statute, and we niust not modify an unambiguous statute by adding or deleting words."

State v. Steele, Slip Opinion No. 2013-Ohio-2470, fi 17. Applying these well-established principles

of statutory construction, it is clear that in enacting R.C. 2951.03, the General Assembly limited

review of the presentence investigation report to prior to the announcement of sentence. Any other

interpretation means enlarging the General Assembly's wording by adding words to the statute.

R.C. 2951.03(D)(1) states:

The contents of a presentence investigation report prepared pursuant to this section,

section 2947.06 of the Revised, Code, or Criminal Rule 32.2 and the contents of any

written or oral summary of a presentence investigation report or of a part of a

presentence investigation report described in division (B)(3) of this section are

confidential information and are not a public record. The court, an appellate court,

authorized probation officers, investigators, and court personnel, the defendant, the

defendant's counsel, the prosecutor who is handling the prosecution of the case

against the defendant, and authorized personnel of an. institution to which the

defendant is cominitted may inspect, receive copies of, retain copies of, and use a

presentence investigation report or a written or oral summary of a presentence

4

investigation only for purposes of or only as authorized by Criminal Rule 32.2 or this

section, division (l:s )(1) of section 2953.08, section 2947.06, or another section of the

Revised Code.

In the provision cited above, the legislature lists the personnel/entity who may view the

presentence investigation report. The General Assembly's choice of words for thejudicial entity that

will have access to the report for review is critical. The General Assembly distinguishes between the

lower court and the appellate court, "[t]he court, an appellate court." Id. Aware of this distinction

between the lower and appellate courts, the General Assembly chose not to make this distinction

when stating: "the defendant, the defendant's counsel, the prosecutor who is handling the

prosecution of the case against the defendant[.]" Id. Thus, the General Assembly did not intend for

for appellate counsel on either side of the case or controversy to have access to the presentence

investigation report. `To hold othenvvise, this Court would have to impermissibly add words to R.C.

2951.03(D)(1.). See.LaCourse v. Fleitz, 28 Ohio St.3d 209, 212, 503 N.E.2d 159 (1986) ("We are

not free to add words to a statute on the basis that the addition strikes us as desirable, or because we

believe the legislature `meant' to include it.")

Furthermore, the legislative intent that the presentence investigation report is to be solely

reviewed prior to sentence is more apparent when reviewing other provisions within R.C. 2951.03.

In analyzing R.C. 2951.03 as a whole, it is clear that the legislature intended that a defendant and his

trial counsel only review the presentence investigation report prior to sentence, and not after a

sentence has been imposed. R.C. 2951.03(B)(1) & (2) provides: "(1) If a presentence investigation

report is prepared pursuant to this section, section 2947.06 of the Revised Code, or Criminal Rule

32.2, the court, at a reasonable time before imposing sentence, shall perznit the defendant or the

5

defendant's counsel to read the report[e1 * **(2) Prior to sentencing, the court shall permit the

defendant and the defendant's counsel to comn-ient on the presentence investigation report and, in

its discretion, may permit the defendant and the defendant's counsel to introduce testimonv or otlier

inforntation that relates to any alleged factual inaccuracy contained in the report."(Eniphasis added)

More significant is the clear and unambiguous language in R.C. 2951.03(D)(2):

Irnmediately following the imposition of sentence upon the def "endant, the defendant

or the a'efendant's counsel and the prosecutor shall return to the court all copies of

a presentence investigation report and of any written summary of a presentence

investigation report or part of a presentence investigation report that the court made

available to the defendant or the d.efendant's counsel and to the prosecution pursuant

to this section. The defendant or the defendant's counsel and the prosecution shall

not make copies qf the presentence investigation report or of any written summary

of a presentence investigation report or part of a presentence investigation report that

the court made available to them pursuant to this section. (Emphasis added)

As the cited language clearly establishes, after the announcement of sentence, all copies of

the presentence investigation report must be returned, including those in the defendant's position,

his counsel's position, and in the prosecution's position'. Thus, appellate district courts have held

1. Appellant in his brief makes statements that he is denied access to the report, while theprosecution has access: "[t].he only way that a defendant can obtain meaningful appellate review ofa sentence is if that defendant has access to the same information that is available to the State andthe court." (Appellant's brief page 13). However, as R.C. 2951.03(D)(2) makes clear, all partiesincluding the prosecution must return any copies of the presentence investigation report in itspossession after a sentence is announced. Therefore, both the Appellant and the State are in the sameposition on appeal, as both do not have access to the presentence investigation report at the appellatelevel.

6

that R.C. 2951.03 does not permit review of the presentence investigation report by either party after

a sentence is imposed. See State v. Gibson, 2d Dist. No. 2006 CA 26, 2007-Ohio-4547, J[ 15

("Moreover, pursuant to R.C. 2951.03, a defendant has no right to review a presentence investigation

report after sentencing[;]'") See alsoState v. Birch, 12th Dist. No. CA2010-10-256, 2012-Ohio-543,

^ 54 ("Moreover, and most importantly, we reiterate that as of today, an accused does not have a

constitutional right to access a sealed PSI on appeal[;]") See also State v. Dietz, 89 Ohio App.3d 69,

71, 623 N.E.2d 613 (11'h Dist. 1993) ("We hold that he is not entitled to a copy of his presentence

report after conviction under R.C. 2951.03, Crim.R. 32.2 or R.C. 149.43 and, therefore, we affznn

the trial court[;]") See also State ex rel. Sharpless v. Gierke, 137 Ohio App.3d 821, 825, 739 N.E.2d

1231 (11"' Dist. 2000) ("Accordingly, this court concludes that the basic holding in Dietz is still

valid. That is, we hold that a criminal defendant has no legal right to obtain and review a copy of his

presentence investigation report after he has been sentenced in a criminal action.")

Therefore, in giving effect to the plain meaning of the words in R.C. 2951,03, this Court

should hold that R.C. 2951.03 does not permit review of the presentence investigation report by

counsel for either side of the appeal.

B. A nresentence investigation report is confidential and mast be placed under seal

R.C. 295 1.03(D)(1) provides that the contents of the presentence investigation report "are

confidential infonnation and are not a public record." In addition, R.C. 2951.03(D)(3) also provides

that "the court or other authorized holder of the report or summary shall retain t11e report or summary

under seal." This is further evidence of the General Assembly's intent to limit access to the report

to only those specifically listed in R.C. 2951.03(D(1). Moreover, the statutory provision R.C.

2953.08 also supports the conclusion that in an appeal only the appellate court shall have access to

7

the presen.tence investigation report.

This Court has held that [i]t is a fundamental rule of statutory construction that statutes

relating to the same subject matter should be construed together' and °[i]n construing such statutes

inpari materia, they should be harmonized so as to give full application to the statutes.' State ex rel.

Thurn v. Cuyahoga Cty.13d. OfElections (1995), 72 Ohio St.3d 289, 294, 649 N.E.2d 1205." State

ex rel. Cornmittee for the Proposed Ordinance to Repeal Ordinance No. 146-02 v. Citv ofLakewood,

100 Ohio St.3d 252, 2003-Ohio-5771, 798 N.E.2d 362, ¶ 20.

In applying this well-established rule of statutory construction, it is more evident that after

announcing the sentence, only the appellate court will have access to the presentence investigation

report, which must remain under seal when the appellate court is not reviewing the report. R.C.

2953.08(F)(1) provides:

On the appeal of a sentence under this section, the record to be reviewed shall include

all of the following, as applicable:

(1) Any presentence, psychiatric, or other investigative report that was submitted to

the court in writing before the sentence was imposed. An appellate court that reviews

a presentence investigation report prepared pursuant to section. 2947.06 or 2951.03

of the Revised Code or Criminal Rule 32.2 in connection with the appeal of a

sentence under this section shall comply with division (D) (3) of section 2951.03 of

the Revised Code when the appellate court is not using the presentence investigation

report, and the appellate court's use of a presentence investigation report of that

nature in connection with the appeal of a sentence under this section. does not affect

the otherwise confidential character of the contents of that report as described in

division (D)(1) of section 2951.03 of the Revised Code and does not cause that report

8

to become a public record, as defined in section 149.43 of the Revised Code,

following the appellate couYt's use of the report. (Emphasis added).

Thus, when an appellate court is not reviewing a presentence investigation report, the report

must be retained under seal. See R.C. 2951.03(D)(3) ("the court or other authorized holder of the

report or summary shall retain the report or summary under seal.") This Court recently emphasized

the importance of sealing the presentence investigation report in In re .I)isqualification of Winkler,

135 Ohio St.3d 1271, 9$6 N.E.2d 996, 2013-Ohio-890,1 16 ("[i]n addition, in accordance with R.C.

2951.03(D) and Sup.R. 45(E), it is ordered that Campbell's presentence-investigation report, which

was attached to Judge Winkler's response to the affidavit of disqualification, shall be placed under

seal by the clerk of this court.")

Therefore, since the presentence investigation report is not public record and must be under

seal when not being reviewed by the appellate court, it is reasonable to conclude that the General

Assembly did not intend for the presentence investigation report to be reviewed by Appellant, his

appellate counsel or appellate counsel for the State.

C. Appellant's constitutional rights are not violated by giving effect to the GeneralAssetnbt v's intent in enactinLr R C 2951.03

Appellant argues that if his appellate counsel "is forced to file an appellate brief without

being allowed to review that report, it gives the State an unjustified advantage, which is

fundanlentally unfair and in violation of the Due Process Clauses of the State and federal

constitutions." (Appellant's brief page 15) Appellant's argument, however, is defeated by the plain

statutory language of R.C. 2951.03(D)(2):

Imtnediately following the imposition ofsentence upon the defendant, the defendant

9

or the defendant's counsel and the prosecutor shall return to the court all copies of

a presentence investigation report and of any written summary of a presentence

investigation report or part of a presentence investigation report that the court made

available to the defendant or the defendant's counsel and to the prosecution pursuant

to this section. The defendant or the defendant's counsel and the prosecution shall

not make copies of the presentence investigation report or of any witten summary

of a presentence investigation report or part of a presentence investigation report that

the court made available to them pursuant to this section. (Emphasis added)

As the statutory provision establishes, both counsel for the defendant and the prosecution

must return the presenten.ce investigation report to the court once sentence is imposed. Thus, neither

party has access to the report during the pendency of an appeal. Wherefore, Appellant's argument

that his due process right is violated because the State has access to the report while he does not is

without merit.

Moreover, Appellant's argument that his constitutional right to effective assistance of

appellate counsel is violated because his counsel cannot review the report on appeal is also without

merit. (Appellant's briefpages 16-17) Access to the presentence investigation report is not necessary

to render effective assistance of appellate counsel to challenge a defendant's sentence. 'The record

on appeal would include a transcript of the sentencing hearing. See R.C. 2953.08(F)(2) &(3). In

addition, the record of the sentencing hearing would include any errors and corrections to the

presentence investigation report that a defendant highlights pursuant to R.C. 2951.03(B)(2) &(5):.

(2) 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,

10

may permit the defendant and the defendazit's counsel to introduce testimony or other

information that relates to any alleged factual inaccuracy contained in the report.

(5) If the comments of the defendant or the defendant's counsel, the testimony they

introduce, or any of the other information they introduce alleges any factual

inaccuracy in the presentence investigation report or the sununary of the report, the

court shall do either of the following with respect to each alleged factual inaccuracy:

(a) Make a finding as to the allegation;

(b) Make a determination that no finding is necessary with respect to the allegation,

because the factual matter will not be taken into account in the sentencing of the

defendant.

Thus, appellate counsel for Appellant can challenge his sentence pursuant to R.C. 2953.0$(A)

& (C) with the assistance of citations from the record on appeal. Moreover, since the presentence

investigation report is part of the appellate record, an appellate court is required to examine it when

reviewing a trial court's sentencing detern-iination. In State v. I-licks, the Twelfth District Court of

Appeals overruled the argument that "appellate counsel was de facto incompetent with regard to

errors pertaining to the presentence investigation report because her appellate counsel was not

permitted to review the report in preparation for this appeal." Hicks,12th Dist. No. CA2002-07-162,

2003-Ohio-506, ^ 10. The Twelf-th District overruled the argument holding:

Consequently, the presentence investigation report is already included in the record

this court is required to examine when reviewing a trial court's sentencing

determination. See R.C. 2953.08(F) (1) - (3).

11

We have already reviewed the presentence investigation report when considering

whether the trial court erred in its sentencing determination. As previously stated, we

found no error in the imposition of a greater than minimum prison term. No further

review of the presentence investigation report is required by law. See Fisher, 2002-

Ohio-2069 atT45; State v. Willis, Butler App. No. CA2002-02-02$, 2002-C?hio-6303,

at1j27. Accordingly, appellant's second assignment of error is overruled.

Id., at12.

Wherefore, contrary to Appellant's argument, giving effect to the plain meaning of the words

in R.C. 2951.03, does not violate his constitutional rights.

12

CONCLUSION

For the foregoing reasons, this Court should hold that R.C. 2951.03 does not permit parties

to an appeal access to the presentence investigation report.

R.espectfully submitted,

MICHAEL T. GMOSER (0002132)Butler County Prosecuting Attorney

MICHAEL A. OSTER, JR. (0076491)Assistant Prosecuting AttorneyChief; Appellate Division

LINA N. ALKAMHAWI (0075462)Assistant Prosecuting Attorney[Counsel qf Record]Government Services Center315 High Street, l Ith FloorHamilton, Ohio 45012-0515Telephone: (513) 785-5193Alkamhawiln(a)btrtlercountyohio.org

PROOF OF SERVICE

This is to certify that copies of the foregoing Brief of Appellee was served upon:

E. KELLY MIHOCIKAssistant State Public Defender250 E. Broad St. Suite 1400Columbus, Ohio 43215

Attorney for Appellant, by ordinary U.S. mail this 29`' day of August, 2013.

LINA N. A:LKAMHAWI (0075462)Assistant Prosecuting Attorney

13