STATE OF OHIO, Plaintiff-Appellee, - vs - RALPH FRANCIS GARDUNO, Defendant-Appellant.
CASE NO. 2012-P-0139
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
August 30, 2013
[Cite as State v. Garduno, 2013-Ohio-4300.]
CYNTHIA WESTCOTT RICE, J.
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 75 CR 144A.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Ralph Francis Garduno, appeals the judgment of the Portage County Court of Common Pleas denying his motion for resentencing. Appellant was sentenced to death in 1976 following his conviction, after a jury trial, of aggravated murder. At issue is whether appellant was entitled to a resentencing after this court in State v. Garduno, 11th Dist. Portage No. 710, 1979 Ohio App. LEXIS 12085 (Jul 2, 1979) (“Garduno I“), modified his sentence by reducing it to life imprisonment. This
{¶2} On February 18, 1975, appellant, Kenneth McDaniels, James Krug, and Karl Netolicky were driving from Akron to Youngstown. Appellant was driving and his accomplice, McDaniels, was in the front passenger seat. The victims, Krug and Netolicky, were in the back. Appellant stopped the car in an isolated area, and McDaniels pulled a gun on Krug and Netolicky. Appellant told the victims he was under orders to either kill them or he would be killed.
{¶3} Appellant and McDaniels had the victims get out of the car. Krug and Netolicky walked to the edge of the road. Suddenly, Netolicky was shot. Krug was then shot and collapsed. Krug was then kicked in the head. Appellant ordered McDaniels to “shoot them in the head.” Krug and Netolicky were found at about 5:00 a.m. by a passing motorist. Krug was rushed to the hospital where he was found to have multiple bullet wounds, one of which shattered his spine causing him to be paralyzed from the waist down. Netolicky also sustained several bullet wounds resulting in his death.
{¶4} Krug identified appellant and McDaniels as the assailants. Warrants were issued for their arrest, and both were apprehended toward the end of 1975.
{¶5} After the case was tried by a jury, appellant was found guilty of aggravated murder with specifications and attempted aggravated murder. Following a mitigation hearing, on May 27, 1976, the trial court sentenced appellant to death for aggravated
{¶6} While appellant‘s direct appeal was pending, the United States Supreme Court in Lockett and Bell held that Ohio‘s statutory scheme for determining the death penalty was unconstitutional. These cases were remanded to the Supreme Court of Ohio for further proceedings.
{¶7} Pursuant to this remand, the Ohio Supreme Court issued a judgment entry, dated August 16, 1978, ordering that the judgments in 54 listed cases affirming the death sentence of each defendant named therein be modified and that the death sentence of each such defendant be reduced to life imprisonment. Appellant‘s case was not included in this list as it was still pending in this court when the Supreme Court of Ohio issued this entry.
{¶8} This court, in Garduno I, modified the trial court‘s judgment “by reducing the penalty from death to life imprisonment and affirmed as modified.” Id. at *13. This court stated that, “[i]n doing so we follow the action of the Supreme Court of Ohio in its entry of August 16, 1978.” Further, this court in its judgment entry, dated July 2, 1979, “modified and affirmed as modified” the trial court‘s judgment and incorporated this court‘s decision. Appellant did not appeal this court‘s judgment to the Ohio Supreme Court.
{¶9} Instead, 32 years later, on September 19, 2011, appellant filed a motion in the trial court for resentencing pursuant to
{¶10} “The trial court committed error when denying motion to correct illegal sentence, in a vacated death-penalty case, pursuant to R.C. 2967.19; 139 v S 1, eff. 10-19-81; Criminal Rule 36; and, the dictates of State v. Harris, 2012 Ohio LEXIS 1000.”
{¶11} This case involves the interpretation of criminal statutes, which presents an issue of law that is reviewed de novo on appeal. State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, ¶8. A court does not need to interpret a statute “when statutory language is plain and unambiguous and conveys a clear and definite meaning.” Campbell v. Carlisle, 127 Ohio St.3d 275, 2010-Ohio-5707, ¶8.
{¶12} In appellant‘s initial motion for resentencing, he argued he was entitled to a resentencing pursuant to
{¶13} The Supreme Court of Ohio addressed this same argument in Johnson v. Mitchell, 85 Ohio St.3d 123 (1999). Johnson‘s death sentence was modified to life imprisonment by the Ohio Supreme Court‘s order of August 16, 1978. Twenty years later, he filed a petition for a writ of habeas corpus, arguing he was entitled to be
{¶14} Likewise, here,
{¶15} Appellant concedes that
{¶16} Alternatively, appellant argues that, pursuant to Am. Sub. S.B. No. 1, which also became effective October 19, 1981 as former
{¶17} According to the plain and unambiguous provisions of former
{¶18} Appellant has not drawn our attention to any pertinent case law holding that former
{¶19} In any event, by modifying appellant‘s sentence, this court in effect resentenced him. First, there is no question that this court had the power to modify appellant‘s sentence as it did in Garduno I.
{¶20} In addition, appellant concedes in his brief that his modified sentence was subject to the statutory parole eligibility in former
{¶21} Since this court exercised its power to modify appellant‘s sentence and his modified sentence was subject to the parole eligibility provided in former
{¶22} Appellant argues his sentence was illegal because the trial court‘s entry sentencing him to death is the only sentencing entry in this case and the Adult Parole Authority (“the APA“) could not have determined his parole eligibility date from that entry. However, as a result of this court‘s decision in Garduno I, appellant‘s sentence was modified. No other sentencing entry was necessary to reflect this modification of appellant‘s sentence. Thus, contrary to appellant‘s argument, the trial court‘s entry sentencing him to death was not the only sentencing entry in this matter. Further, since the parole eligibility provisions in former
{¶23} Finally, appellant argues he should be discharged because the APA failed to obtain a “proper sentencing journal entry that described this court‘s ‘modified sentence.‘” He argues that, without such an entry, the APA lost custody over him. As a result, he argues the “maximum sentence” imposed by this court is void and he should be immediately released. This argument lacks merit for several reasons.
{¶24} First, appellant fails to draw our attention to any statutory obligation requiring the APA to obtain a resentencing entry or that such an entry was necessary in light of this court‘s modification of his death sentence.
{¶25} Second, appellant does not make a credible argument, by reference to pertinent authority, that the APA lost custody over him.
{¶26} Third, it is unclear as to what appellant is referring when he refers to his “maximum sentence” and asks that it be vacated as void. There is no minimum or maximum sentence here. He was originally sentenced to death. Thereafter, this court modified his sentence by reducing the penalty to life imprisonment.
{¶27} Fourth, because appellant is arguing he should be immediately released from custody, he appears to be asserting entitlement to habeas corpus relief. Habeas corpus is an available remedy only in “certain extraordinary circumstances where there is an unlawful restraint of a person‘s liberty * * *.” State ex rel. Jackson v. McFaul, 73 Ohio St.3d 185, 186, (1995). “Additionally, habeas corpus lies only if the petitioner is entitled to immediate release from confinement.” Id. at 188. Appellant has failed to demonstrate his entitlement to immediate release from prison. While appellant was
{¶28} Fifth, appellant argues that, because he was never resentenced in a proper resentencing hearing, he has never become eligible for parole. However, appellant concedes in his brief that his modified sentence was subject to the parole eligibility provisions in
{¶29} For the reasons stated in the opinion of this court, appellant‘s assignment of error is overruled. It is the judgment and order of this court that the judgment of the Portage County Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, P.J., concurs,
COLLEEN MARY O‘TOOLE, J., dissents with a Dissenting Opinion.
STATE OF OHIO, Plaintiff-Appellee, - vs - RALPH FRANCIS GARDUNO, Defendant-Appellant.
CASE NO. 2012-P-0139
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
COLLEEN MARY O‘TOOLE, J.
{¶30} I respectfully dissent regarding whether this matter should be remanded for resentencing. As the majority notes, in Garduno I, this court followed the example set by the Supreme Court of Ohio after the United States Supreme Court‘s declaration that Ohio‘s death penalty scheme was unconstitutional: i.e., this court modified appellant‘s death penalty to life imprisonment, and affirmed as modified. However, it does not appear that this was the only course of action open to this court in 1979: it appears this court could have remanded the matter to the trial court at that time for resentencing. I respectfully believe there is a difference between cases which have
{¶31} Appellant has not filed a request for habeas corpus. It is a request for resentencing. Therefore, I disagree with the majority giving an advisory opinion on appellant‘s rights to relief under habeas corpus.
{¶32} I respectfully dissent.