State v. Johnson, 2017 Ohio 1148

Background

In 1997 Rayshawn Johnson robbed and fatally bludgeoned Shanon Marks; he was convicted at trial of aggravated murder and related felonies.
In 1998 the trial court imposed death for the aggravated murder and consecutive prison terms totaling 33 years for the other felonies; the Ohio Supreme Court affirmed the convictions.
Johnson obtained federal habeas relief on ineffective-assistance grounds for the mitigation phase; on remand the trial court conducted a new mitigation hearing, a jury again recommended death, but the Ohio Supreme Court vacated the death sentence and remanded for resentencing under R.C. 2929.06.
At resentencing Johnson asked the court to impose life without parole; the trial court sentenced him to life without parole for aggravated murder and later, by journal entry, ordered that life term to be served consecutively to the previously imposed 33-year aggregate term.
The resentencing entry contained no R.C. 2929.14(C)(4) consecutive-sentence findings; Johnson appealed, challenging the resentencing and alleging ineffective assistance of counsel.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether this court may review the life-without-parole sentence for aggravated murder under R.C. 2953.08	State: sentencing for aggravated murder is not appealable under R.C. 2953.08(D)(3)	Johnson: court may still review procedural defects or other nonstatutory grounds	Court: affirmed — R.C. 2953.08(D)(3) bars review of the aggravated-murder sentence itself
Whether the trial court erred by ordering the life-without-parole term to run consecutively without making R.C. 2929.14(C)(4) findings	State: consecutive-order reviewable; but if jointly recommended and authorized by law may be unappealable	Johnson: consecutive imposition lacked required findings and is contrary to law	Court: sustained in part — vacated only the consecutive portion because the court failed to make required findings
Whether the jointly recommended life-without-parole sentence precludes appellate review of consecutive imposition	State: jointly recommended sentences that include nonmandatory consecutive terms may be authorized by law	Johnson: no record of joint recommendation for consecutive imposition, so review permitted	Court: agreed with Johnson — no indication parties jointly recommended consecutive term, so review allowed
Whether trial counsel was ineffective at resentencing	Johnson: counsel failed to obtain second counsel, acquiesced in life-without-parole plea, failed to present mitigation, and failed to object to consecutive sentence	State: counsel’s performance was reasonable under circumstances; many decisions were defendant-driven; no prejudice shown	Court: overruled — counsel not ineffective; no reasonable probability of different outcome and no duty to anticipate entry ordering consecutive term

Key Cases Cited

State v. Johnson, 88 Ohio St.3d 95 (1999) (direct appeal affirming convictions and original sentence)
State v. Johnson, 144 Ohio St.3d 518 (2015) (Ohio Supreme Court vacated death sentence and remanded for resentencing under R.C. 2929.06)
State v. Marcum, 146 Ohio St.3d 516 (2016) (R.C. 2953.08 defines the scope of appellate sentencing review)
State v. Porterfield, 106 Ohio St.3d 5 (2005) (R.C. 2953.08(D)(3) bars review of aggravated-murder sentences but does not preclude review of consecutive-sentence findings)
State v. Bonnell, 140 Ohio St.3d 209 (2014) (consecutive-sentence findings must be made at sentencing and incorporated into the entry)
State v. Holdcroft, 137 Ohio St.3d 526 (2013) (res judicata bars most sentencing challenges after direct appeal)
Lockhart v. Fretwell, 506 U.S. 364 (1993) (prejudice standard in ineffective-assistance claims)
Strickland v. Washington, 466 U.S. 668 (1984) (two-pronged test for ineffective assistance of counsel)