Ruhlman v. Brunsman, No. 09-4528 (6th Cir. 2011)
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Indicted for rape of an 11-year-old, defendant was convicted of attempted rape, a second-degree felony (O.R.C. 2923.02/2907.02). At the time, statutes included a rebuttable presumption in favor of minimum sentences for second degree felonies (two years) unless the court determined that probation adequately satisfied the purposes of sentencing or supported a longer sentence; trial courts were required, in some cases, to make additional, findings. The trial court found that defendant had served time for a prior conviction, was a sexual predator, and posed the greatest likelihood of recidivism, and imposed a sentence of eight years. While appeal was pending, a 2006 Ohio supreme court case gave courts discretion to impose any sentence within the ranges without making specific findings. On remand, the trial court again imposed a sentence of eight years, finding only that defendant is a sexual predator. After exhausting state remedies, defendant sought habeas corpus asserting that retroactive application of the 2006 decision violated the Ex Post Facto and Due Process Clauses. The district court denied the petition. The Sixth Circuit affirmed. Defendant was always at risk for the eight-year maximum sentence, based on his history. The change in law did not limit the right to appellate review.
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