THE STATE OF OHIO, APPELLEE, v. GOFF, APPELLANT.
No. 2017-0021
SUPREME COURT OF OHIO
September 20, 2018
Slip Opinion No. 2018-Ohio-3763
Criminal law—Aggravated murder—Death sentence imposed after resentencing hearing affirmed. Submitted June 12, 2018. APPEAL from the Court of Appeals for Clinton County, No. CA2015-08-017, 2016-Ohio-7834.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Goff, Slip Opinion No. 2018-Ohio-3763.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
{¶ 1} Appellant, James R. Goff, was convicted of the aggravated murder of Myrtle Rutledge and sentenced to death. We affirmed his convictions and sentence on direct appeal. State v. Goff, 82 Ohio St.3d 123, 694 N.E.2d 916 (1998) (“Goff I”).
{¶ 2} In 2010, concluding that Goff had received ineffective assistance of appellate counsel with respect to his right to allocution at trial, a federal court granted a writ of habeas corpus effective 120 days later “unless the Ohio courts reopen Goff’s direct appeal * * * to permit his counsel to raise this issue.” Goff v. Bagley, 601 F.3d 445, 482 (6th Cir.2010) (“Goff II”). In 2015, after Goff’s direct appeal was reopened and the case was remanded for resentencing, the trial court conducted a resentencing hearing at which Goff offered a statement in allocution. The trial court again sentenced him to death. The court of appeals affirmed. State v. Goff, 12th Dist. Butler No. CA2015-08-017, 2016-Ohio-7834 (“Goff III”).
{¶ 3} In this appeal as of right, Goff asserts four propositions of law. For the reasons explained below, we reject each of Goff’s propositions of law and affirm his death sentence.
I. FACTS AND PROCEDURAL HISTORY
A. The murder of Myrtle Rutledge
{¶ 4} In Goff I, this court set forth the facts of Rutledge’s murder in detail. 82 Ohio St.3d at 124-127, 694 N.E.2d 916. For purposes of this opinion, we summarize those facts as follows.
{¶ 5} In September 1994, Rutledge, an 88-year-old woman, was in the process of moving out of her farmhouse and into a new home. On September 14, Rutledge purchased furniture for her new home from a store in Wilmington, Ohio. The next day, Goff and a coworker, Manuel Jackson, delivered the furniture to Rutledge’s home and assembled a bed for her.
{¶ 6} Two days later, Rutledge’s daughter went to her mother’s house to pick her up for a family reunion and “found her mother’s battered and naked body lying on the floor of the bedroom.” Id. at 125. A deputy coroner determined that Rutledge had “died from blunt and sharp trauma to the head, neck, shoulders, and ankle.” Id. Additionally, Rutledge had suffered “blood loss due to multiple stab wounds, one of which severed [her] carotid artery.” Id.
B. Goff’s trial and initial sentence
{¶ 7} A jury found Goff guilty of aggravated murder, aggravated robbery, aggravated
{¶ 8} At the mitigation phase of Goff’s trial, the defense presented testimony from Goff’s former teacher, his former landlord, and a psychologist, Dr. Jeffrey Smalldon. Dr. Smalldon had examined Goff and also compiled a social history.
{¶ 9} The jury recommended a sentence of death. After conducting its own independent weighing of the aggravating circumstance and mitigating factors, the trial court sentenced Goff to death.
C. Direct appeal and collateral review in state court
{¶ 10} Goff unsuccessfully appealed his convictions and death sentence to the Twelfth District Court of Appeals. State v. Goff, 12th Dist. Clinton No. CA95-09-026, 1997 WL 194898 (Apr. 21, 1997). We affirmed the appellate court’s judgment. Goff I, 82 Ohio St.3d 123, 694 N.E.2d 916.
{¶ 11} Goff then pursued postconviction relief in state court without success. See State v. Goff, 12th Dist. Clinton No. CA2000-05-014, 2001 WL 208845 (Mar. 5, 2001) (petition for state postconviction relief); State v. Goff, 12th Dist. Clinton No. CA2000-10-026, 2001 WL 649820 (June 11, 2001) (motion for relief from judgment under Civ.R. 60(B)(5)); State v. Goff, 98 Ohio St.3d 327, 2003-Ohio-1017, 784 N.E.2d 700 (application to reopen direct appeal pursuant to App.R. 26(B)).
D. Collateral review in federal court
{¶ 12} In 2002, Goff filed a petition for habeas corpus relief in the United States District for the Southern District of Ohio, which was denied. Goff v. Bagley, S.D.Ohio No. 1:02-cv-307, 2006 WL 3590369 (Dec. 1, 2006). On appeal, however, the United States Court of Appeals for the Sixth Circuit determined that his appellate counsel had provided constitutionally ineffective assistance by not raising the trial court’s failure to afford Goff his right to allocute before sentencing. Goff II, 601 F.3d at 464-467. The Sixth Circuit granted a writ of habeas corpus effective 120 days later “unless the Ohio courts reopen Goff’s direct appeal * * * to allow Goff to raise his allocution argument.” Id. at 473.
E. Reopening of Goff’s direct appeal and resentencing
{¶ 13} In accordance with the Sixth Circuit’s directive, the Twelfth District reopened Goff’s direct appeal to permit him to raise his allocution claim. State v. Goff, 12th Dist. Clinton No. CA95-09-026, 2012-Ohio-1125, ¶ 12. The appellate court confirmed its prior affirmance of Goff’s convictions. However, due to the trial court’s failure to afford Goff his right to allocution, the court vacated its prior affirmance of appellant’s sentence and remanded the matter for resentencing. The court of appeals instructed the trial court, “[u]pon remand, * * * to personally address [Goff] and afford him his right to allocution before imposing its sentence.” Id. at ¶ 20.
{¶ 14} On remand, the trial court granted Goff’s motion to proffer new mitigation evidence and awarded him funds to hire a consulting psychologist.
{¶ 15} At the resentencing hearing, Goff’s counsel proffered a report prepared by psychologist Dennis Eshbaugh, Ph.D., as representative of testimony Dr. Eshbaugh would have given had he been permitted to testify at the hearing. Counsel urged the court to impose a life sentence, emphasizing Goff’s difficult childhood, his youth at the time of the offenses, his substance abuse at the time of the offenses, and his positive adjustment to prison life. The state advocated for a death sentence. Goff then made a statement in allocution. He noted that he had not been violent in prison, referred to his difficult childhood,
{¶ 16} The court of appeals affirmed Goff’s sentence. Goff III, 2016-Ohio-7834. Goff appealed.
III. ANALYSIS
{¶ 17} Goff raises four propositions of law, urging reversal of his death sentence:
- Defendant-Appellant Goff was denied his substantive and procedural due process rights to a fair trial when the trial court refused to empanel a new jury for the sentencing proceeding.
- The trial court erred when it excluded testimony of additional mitigating evidence in the time between the two sentencing hearings, in violation of Goff’s rights under [the United States and Ohio Constitutions].
- Trial counsel rendered ineffective assistance by failing to adequately prepare their client for allocution and by failing to proffer available, mitigating information from Goff’s institutional file, in violation of Goff’s rights under [the United States and Ohio Constitutions].
- The Defendant-Appellant was denied due process, freedom from cruel and unusual punishment, and a fair and reliable sentence when his death sentence was imposed, in part, on the basis of information that he had no opportunity to deny or explain.
We will address Goff’s propositions out of order for ease of analysis.
A. Exclusion of new mitigation evidence
{¶ 18} Goff’s second proposition of law asserts that the trial court violated his Eighth Amendment rights by excluding testimony that he sought to present as additional mitigating evidence, including evidence of Goff’s good behavior in prison since the first sentencing hearing. Goff argues that he “should have been permitted to present any and all relevant mitigation evidence at the time of resentencing.” In support of this argument, he relies on the United States Supreme Court’s decisions in Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (a sentencer may “not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death [emphasis sic]”) (plurality opinion); Eddings v. Oklahoma, 455 U.S. 104, 114, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (a sentencer may not “refuse to consider, as a matter of law, any relevant mitigating evidence [emphasis sic]”); Skipper v. South Carolina, 476 U.S. 1, 7-8, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) (testimony about a defendant’s good behavior in jail pending trial was relevant mitigation evidence that should not have been excluded).
{¶ 19} We have previously rejected claims similar to Goff’s argument, and we find the argument unpersuasive in the current procedural context of this case.
{¶ 20} We have held that when “the errors requiring resentencing occu[r] after the close of the mitigation phase of the trial”—after the jury has returned its verdict and made a sentencing recommendation—“the trial court is to proceed on remand from the point at which the error occurred.” State v. Chinn, 85 Ohio St.3d 548, 565, 709 N.E.2d 1166 (1999). We reaffirmed
{¶ 21} The underlying error currently at issue is the trial court’s failure to provide Goff an opportunity to allocute at his initial sentencing hearing.
{¶ 22} Goff urges us to apply—instead of the above caselaw—the Sixth Circuit’s holding in Davis v. Coyle that “at resentencing, a trial court must consider any new evidence that the defendant has developed since the initial sentencing hearing,” 475 F.3d 761, 774 (6th Cir.2007), citing Skipper, 476 U.S. at 8, 106 S.Ct. 1669, 90 L.Ed.2d 1.
{¶ 23} We have already rejected similar claims based on Coyle: “To hold, as Coyle does, that a new mitigation hearing must be held, even though no constitutional error infected the original one, would transform the right to present relevant mitigation into a right to update one’s mitigation. Such a right has no clear basis in Lockett or its progeny.” (Emphasis sic.) Roberts, 137 Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100, at ¶ 36. “Establishing a right to update mitigation could result in arbitrary distinctions between similarly situated capital defendants” because a defendant’s ability to update his mitigation evidence would turn on whether or not a posthearing sentencing error took place that required a remand. Id. at ¶ 37. Because Goff fails to present a persuasive argument to depart from this analysis, we decline to do so.
{¶ 24} We reject proposition of law No. 2.
{¶ 25} As his first proposition of law, Goff contends that the trial court violated his substantive- and procedural-due-process rights by refusing to empanel a new jury for the resentencing hearing. He presents both statutory and constitutional arguments in support of this proposition.
1. R.C. 2929.06(B)
{¶ 26} Goff asserts that
{¶ 27}
Whenever any court of this state or any federal court sets aside, nullifies, or vacates a sentence of death imposed upon an offender because of error that occurred in the sentencing phase of the trial and if division (A) of this section does not apply, the trial court that sentenced the offender shall conduct a new hearing to resentence the offender. If the offender was tried by a jury, the trial court shall impanel a new jury for the hearing.
{¶ 28} We have previously considered and rejected Goff’s argument. In State v. Roberts, 150 Ohio St.3d 47, 2017-Ohio-2998, 78 N.E.3d 851, we had vacated Donna Roberts’s death sentence because the trial court failed to consider her allocution at her initial resentencing, id. at ¶ 21. On remand for a second resentencing, the trial court considered Roberts’s allocution and again sentenced her to death without empaneling a new jury. Id. at ¶ 23-25. On appeal, Roberts urged this court to conclude that “
{¶ 29} We found Roberts’s argument unpersuasive. We reasoned that there was “no indication in
{¶ 30} As in Roberts, the sentencing error at issue in this case occurred after the verdict and
2. Constitutional right to trial by jury
{¶ 31} Relying on Hurst v. Florida, 577 U.S. __, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), Goff next argues that the trial court’s failure to empanel a new jury for resentencing violated his Sixth Amendment and due-process rights.
{¶ 32} The
{¶ 33} In Hurst, the United State Supreme Court considered the constitutionality of Florida’s capital-punishment scheme, which provided that “ ‘[a] person who has been convicted of a capital felony shall be punished by death’ only if an additional sentencing proceeding ‘results in findings by the court that such person shall be punished by death.’ ” Hurst at __, 136 S.Ct. at 620, quoting former
{¶ 34} Relying on Apprendi and Ring, the Supreme Court determined that Florida’s scheme violated the Sixth Amendment because it “required the judge alone to find the existence of an aggravating circumstance,” Hurst, 577 U.S. at __, 136 S.Ct. at 624, and the jury was “not require[d] * * * to make the critical findings necessary to impose the death penalty,” id. at __, 136 S.Ct. at 622. The jury’s advisory sentence was immaterial for Sixth Amendment purposes because it did not include “ ‘specific factual findings with regard to the existence of mitigating or aggravating circumstances and its recommendation [was] not binding on the trial judge.’ ” Id., quoting Walton v. Arizona, 497 U.S. 639, 648, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990).
{¶ 35} We have previously concluded that “Ohio’s death-penalty scheme * * * does not violate the Sixth Amendment” because it “requires the critical jury findings that were not required by the laws at issue in Ring and Hurst.” Mason, __ Ohio St.3d __, 2018-Ohio-1462, __ N.E.3d __, at ¶ 21, citing
{¶ 36} Again, Goff’s argument fails. The weighing that occurs in the sentencing phase “ ‘is not a fact-finding process subject to the Sixth Amendment.’ ” (Emphasis added in Belton.) Mason at ¶ 29, quoting State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 60. “The Sixth Amendment was satisfied once the jury found [Goff] guilty of aggravated murder and a felony-murder capital specification.” Mason at ¶ 29.
{¶ 37} Goff also contends that he was entitled to a jury at resentencing because the trial court imposed his 2015 death sentence not only “based upon a jury recommendation made twenty-two years ago but also recent independent factfinding by the trial court.” He characterizes these “critical findings” as ones “necessary to impose the death penalty.”
{¶ 38} In its sentencing opinion, the trial court noted:
The Court has reviewed and considered all of the trial transcripts of this matter, as well as all of the mitigating factors presented at the original trial, in addition to those that were presented or re-presented with regard to the resentencing hearing. The Court has further searched the entire record for any further evidence as to mitigation. Although parts of this opinion are similar to the Court’s original opinion herein, it has considered anew, the evidence, testimony, arguments of counsel as well as the Defendant’s allocution.
The court “also reviewed the proffered evidence (report of Dr. Eshbaugh, Ph.D.) by the Defendant.” After considering all these materials, the court “found additional mitigating evidence as of the date of this hearing.”
{¶ 39} As explained above, the weighing process is not fact-finding subject to the Sixth Amendment. Moreover, to the extent that the trial court improperly considered Dr. Eshbaugh’s report as new mitigation evidence in its sentencing determination, Goff fails to explain how the court’s consideration of the report as new mitigation evidence prejudiced him. See Washington v. Recuenco, 548 U.S. 212, 215, 221, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) (Apprendi claims are subject to harmless-error analysis).
{¶ 40} We reject proposition of law No. 1.
C. Ineffective assistance of counsel
{¶ 41} Goff asserts as his third proposition of law that trial counsel were ineffective at the resentencing hearing for inadequately preparing Goff for his allocution and failing to proffer mitigating information from Goff’s institutional file.
{¶ 42} To prevail on a claim of ineffective assistance of counsel, Goff must (1) show that counsel’s performance “fell below an objective standard of reasonableness,” as determined by “prevailing professional norms,” and (2) demonstrate “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When performing a Strickland analysis, courts “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689.
1. Inadequate preparation for allocution
{¶ 43} Goff acknowledges that he made a statement when the trial court, in accord with
{¶ 44} Goff has failed to satisfy Strickland. First, there is nothing in the record detailing what steps counsel did or did not take to prepare Goff for allocution. To prove that counsel’s performance was deficient, Goff would need to rely on evidence outside the record, which is “ ‘not appropriately considered on a direct appeal,’ ” State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 102, quoting State v. Madrigal, 87 Ohio St.3d 378, 391, 721 N.E.2d 52 (2000).