Lonberger v. Jago

Decision Date01 December 1980
Docket NumberNo. 79-3100,79-3100
Citation635 F.2d 1189
PartiesRobert LONBERGER, Petitioner-Appellant, v. Arnold R. JAGO, Superintendent, Southern Ohio Correctional Facility, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Norman G. Zemmelman, Britz & Zemmelman, Toledo, Ohio (Court-appointed), John Czarnecki, Haywood, Cooper, Straub, Walinski & Cramer Co., L.P.A., Toledo, Ohio (Court-appointed), for petitioner-appellant.

William J. Brown, Atty. Gen. of Ohio, Randall G. Burnworth, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellee.

Before LIVELY and BROWN, Circuit Judges, and PECK, Senior Circuit Judge.

JOHN W. PECK, Senior Circuit Judge.

This is an appeal from an order of the United States District Court for the Northern District of Ohio, Western Division, dismissing petitioner's Motion for a Writ of Habeas Corpus. Petitioner, Robert Lonberger, is an Ohio prisoner who was convicted by a jury of aggravated murder with a "specification," which resulted in the death penalty under Ohio's sentencing enhancement statute. Subsequently, the Ohio Court of Appeals reversed the conviction of aggravated murder, and reduced the verdict to the lesser included offense of murder. On remand, the trial court sentenced the defendant to fifteen years to life imprisonment.

Petitioner challenges the constitutionality of his Ohio conviction, and we here consider (1) whether it was error for the trial court to allow evidence of a prior conviction of attempted murder to go to the jury at the same time that the jury was deciding petitioner's guilt or innocence on the substantive charge; and (2) whether the district court erred in holding that petitioner's guilty plea to a charge of attempted murder, the basis of the "specification," was knowingly and voluntarily made.

I.

Petitioner was indicted by the Lucas County, Ohio, Grand Jury and charged with murder while committing rape, defined by § 2903.01(B), Ohio Rev.Code, as "aggravated murder." 1 The indictment further contained a "specification" that petitioner had been previously convicted of attempted murder. The Ohio statutes under which petitioner was tried provided for life imprisonment upon conviction of aggravated murder unless, in addition to the principal offense, one of seven "specifications" listed in O.R.C. § 2929.04 was charged and proved at trial, in which case the defendant could be sentenced to death. O.R.C. § 2929.02 2 and 2929.03 3. A prior conviction of attempted murder was one of the "specifications" prescribed by the statute. O.R.C. § 2929.04(A)(5). 4

The evidence adduced at trial on the principal charge revealed that on the night of January 29, 1975, Charita Lanier was brutally murdered. The cause of death was exsanguination resulting from a severe laceration of the neck. A bloodstained and bent twelve-inch knife belonging to the victim was found at the scene and identified as the probable murder weapon. An autopsy performed the following morning revealed the presence of sperm in the vaginal canal. No bruises or external signs of trauma were found with the exception of the fatal laceration of the neck. The State also offered testimony that the petitioner was with the victim in her home the night of her death, and introduced into evidence blood-spotted clothing belonging to the defendant.

The state sought to prove the specification of a prior conviction in addition to proving the substantive charge. To this end, the state introduced into evidence a conviction statement, with the indictment appended, from Cook County, Illinois. These documents indicated that a Robert Lonberger had been convicted of attempted murder in 1972.

Petitioner's pre-trial motion to dismiss the specification on the ground that his 1972 guilty plea to attempted murder had not been knowingly and voluntarily made was rejected by the trial court. The prosecutor and the trial court also rejected appellant's offer to stipulate to having committed the prior offense (the stipulation would have kept from the jury the details of the prior offense, including the fact that it too involved an attack upon a woman with a knife). The admission into evidence of the conviction statement was accompanied by an instruction to the jury that it was not to consider the prior conviction in determining the defendant's guilt or innocence on the substantive charge.

On May 30, 1975, a jury returned a verdict of guilty against the petitioner on the charge of aggravated murder, and it further found him guilty of the specification. Petitioner appealed to the Ohio Court of Appeals, which reversed the verdict of guilty of aggravated murder on the grounds that the State had failed to establish the elements of rape or the identity of the appellant as the offender beyond a reasonable doubt. The Ohio appeals court reduced the verdict to the lesser included offense of murder and remanded the case for sentencing, whereupon defendant was sentenced to fifteen years to life. After exhausting his state court remedies, appellant petitioned the district court for a writ of habeas corpus, which was denied.

II.

Petitioner first charges that the evidence of his prior conviction was not admissible under Ohio law. Alternatively, he argues that a one-stage trial at which evidence of a prior conviction is introduced solely on the issue of punishment violates the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. Petitioner argues that he is entitled, therefore, to a bifurcated trial at which a jury must pass upon the principal offense charged prior to the introduction of any evidence of his previous conviction, which only goes to prove the specification.

With regard to Ohio law, the Ohio Supreme Court rejected the identical argument in State v. Gordon, 28 Ohio St.2d 45, 276 N.E.2d 243 (1971). There the court held that where it is necessary to charge a prior offense in the indictment for purposes of enhanced punishment, as a matter of state law the prior offense becomes an element of the second offense, and, therefore, "(i)t is not reversible error to read to the jury an indictment which contains the averment of a prior conviction or to place such indictment in the jury's possession during its deliberations (in a single-stage trial)...."

The Ohio legislature has explicitly required that the specification charged here be alleged in the indictment. 5 We conclude, therefore, on the authority of State v. Gordon, that the admission of petitioner's prior conviction in a single-stage trial conformed with Ohio's rules of evidence and criminal procedure.

Petitioner's constitutional attack on Ohio's procedure is adequately answered by the Spencer v. Texas, 385 U.S. 544, 87 S.Ct. 48, 17 L.Ed.2d 606 (1967), decision and its progeny. In Spencer v. Texas the Supreme Court declined to hold that the Texas procedure of enforcing its recidivist statutes, a procedure identical to that utilized by Ohio in the instant case, violated the due process clause of the Fourteenth Amendment. The Court there recognized the inherent prejudice of prior crimes evidence, but reasoned that a defendant's interest in avoiding such prejudice is outweighed by the state's interest in trying all the issues in a one-stage trial. Following the Spencer v. Texas decision, we stated: "(C)ombining in one indictment charges of prior offenses together with the immediate charges, reading the entire indictment to the jury and offering proof of such earlier offenses, all before submitting the case to the jury, (is) not a state practice offensive to the proscriptions of the Fourteenth Amendment." Haggard v. Henderson, 382 F.2d 288, 289 (6th Cir. 1967). See also Evans v. Cowan, 506 F.2d 1248 (6th Cir 1974); Wilson v. Wiman, 386 F.2d 968 (6th Cir. 1967).

Appellant's attempts to distinguish Spencer v. Texas are not persuasive. He argues, for example, that the Spencer court noted in its opinion that the prior convictions in Texas were made an element of the principal crime under the Texas habitual criminal statutes. Thus, he continues, the legitimate state purpose in introducing evidence of prior crimes in Spencer-type cases is absent here, where the penalty provisions are separate and distinct from the substantive offense. The distinction drawn by petitioner is nowhere to be found in Spencer. To the contrary, the Texas recidivist statutes at issue in Spencer are very similar to the enhanced punishment statute at issue here. 6 Each of the statutes is concerned solely with the enhancement of punishment; none expressly make a prior conviction an element of a substantive offense.

Appellant would fare no better were we to accept his proposed distinction. For the Ohio Supreme Court has held that a prior conviction is a factual element of the substantive crime to be proved where the prior offense has been charged in the indictment under Ohio's enhanced punishment statutes. State v. Gordon, 28 Ohio St.2d 45, 276 N.E.2d 243 (1971).

Petitioner further argues that the evidence of his previous conviction was particularly inflammatory, an allegation conspicuously absent in Spencer v. Texas. Here the jury was given a copy of the indictment accompanying petitioner's conviction statement. The indictment charged that the defendant "attempted to kill Dorothy Maxwell by cutting Dorothy Maxwell with a knife." Thus, the jury was apprised of the fact that the defendant had previously attempted to murder a woman with a knife, a crime strikingly similar to the one for which he was on trial. In Haggard v. Henderson, 382 F.2d 288 (6th Cir. 1967), a Tennessee defendant was found guilty of burglary and larceny in a case in which the prosecution introduced evidence of eight prior convictions for offenses ranging from larceny to attempted murder. The eight prior offenses were offered under the auspices of Tennessee's habitual criminal statute, which required only three prior convictions to be proved. We reversed the district court's...

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8 cases
  • Marshall v. Lonberger
    • United States
    • U.S. Supreme Court
    • February 22, 1983
    ...conviction. The United States Court of Appeals for the Sixth Circuit, which granted respondent's petition for a writ of habeas corpus, 635 F.2d 1189, and 651 F.2d 447, held that it did. The Court of Appeals held that respondent's plea of guilty to a previous Illinois felony charge, offered ......
  • State v. Baker
    • United States
    • Wisconsin Supreme Court
    • June 18, 1992
    ...County, 157 Ariz. 71, 754 P.2d 1346 (1988); People v. Ingram, 439 Mich. 288, 484 N.W.2d 241 (1992).9 See, e.g., Lonberger v. Jago, 635 F.2d 1189, 1193 (6th Cir.1980), and United States v. Johnson, 612 F.2d 305, 306-07 (7th Cir.1980) (both permitting collateral attack of a prior conviction o......
  • Hatfield v. Daugherty
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • May 24, 1994
    ...in avoiding such prejudice is outweighed by the state's interest in trying all the issues in a one-stage trial." Lonberger v. Jago, 635 F.2d 1189, 1192 (6th Cir.1980), reversed on other grounds, Marshall v. Lonberger, 459 U.S. 422 (1983); Murray v. Superintendent, Kentucky State Penitentiar......
  • Johnson v. Rewerts
    • United States
    • U.S. District Court — Eastern District of Michigan
    • April 12, 2022
    ... ... a basis for habeas relief. See Haggard v. Henderson, ... 382 F.2d 288, 289 (6th Cir. 1967); See also Lonberger v ... Jago, 635 F.2d 1189, 1192 (6th Cir. 1980)(One-stage ... trial in which evidence of a prior conviction was introduced ... ...
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