State v. Griffin

108 Appellee. Griffin, Ohio, Appellant, v.

The State Griffin, [Cite as State v. 108, 2013-Ohio-5481.] St.3d 2013.) 19, (No. January 2013 Decided December 2011-0818 Submitted J. Kennedy, Griffin, this is whether the that Sandra At issue in case sentence final, 24 years appealable for the is based on a order past has served

appellee, subject-matter jurisdiction over her gave the Fifth District Court of Appeals a argues judicata bars 1990. The state Ohio res appeal direct Baker, resentencing pursuant from a issued using entry defendant State 197, 2008-Ohio-3330, relitigate 893 N.E.2d a matter that was Ohio St.3d appeal. argues raised could on direct The state further have been raised cases, final, and a appealable guilt-phase entry order consists of Ketterer, to State v. 126 Ohio St.3d 2010-Ohio- sentencing opinion pursuant N.E.2d 9. recognize that the state’s to review the granted appeal this We final, in this appealable Upon of Ketterer to order case. further application review, presented have that the on this should be appeal we determined issues However, by any we are not inferences grounds. decided on different bound appeal from decision to review this on the previous have been drawn our 502, 2007-Ohio-4642, Payne, basis Ketterer. See State v. 9-12. have judicata of a matter that was raised could relitigation Res bars 3}{¶ final, on when appealable been raised direct order issued in 1990 entry accordance with the law the time. Because issued order, entry pursuant resentencing the 2009 issued Baker, 197, 2008-Ohio-3330, nullity. was a We do second,proposition regarding of law Ketterer. reach state’s acceptance cause now this court our the state’s following before law: appeal. presents propositions two discretionary state I. precludes litigant using resentencing entry Res Judicata from Baker, issued 2008-Ohio-3330[893 163], relitigate an issue when that already defendant has litigated the on same issue direct appeal. 2929.03(F)

II. In cases in which R.C. the requires court file sentencing opinion, appealable order consists of both the sentenc- 2929.03(F) ing opinion filed to R.C. pursuant judgment and the of convic- 32(C). tion pursuant filed to Crim.R. judgment We the reverse of the court appeals remand the cause to

{¶ 5} the of appeals court appeal. instructions dismiss Griffin’s

CASE BACKGROUND 4, 1989, January On James Steurer Sr. was murdered {¶ 6} Coshocton month, County, Ohio. The next Griffin was for indicted to commit complicity aggravated murder with an accompanying felony-murder death-penalty specifica- 2929.04(A)(7) tion under R.C. and a firearm specification.1 Griffin waived her aby jury be tried a three-judge panel. In exchange, the state not to agreed pursue the penalty, but it did not dismiss the death-penalty specification. In a single trial before a judge, Griffin was found guilty of aggravated

murder and was sentenced life imprisonment with parole eligibility years. in 30 The trial court judgment filed two separate 21, 1989, entries. On December trial court filed entry announcing the guilt-phase findings. On 25, 1990, a January sentencing hearing conducted. In mitigation, Reardon, defense called Dr. James psychologist, licensed and three other witnesses. Dr. provided comprehensive Reardon testimony about Griffin’s chaot- ic family disorders, and marital history, mental and substance abuse. Directly thereafter, presented Griffin a short mitigation statement. After counsel’s summation, the trial court permitted presentation victim-impact statements and allowed Griffin to pursuant allocute to Crim.R. 32. The trial court issued a sentencing entry including without the findings made A on record. sentenc- 2929.03(F) ing to R.C. was never filed. February On Griffin filed a notice of included the

following assignment of error: “The erred indicted, convicted, 1. Griffin was also noncapital charges and sentenced on relevant not here. 2929.04, as as well of R.C. 2929.03 and following mandates appellant Fifth, Eighth, and of Evid.R. in violation impact victim evidence allowing I, Article Constitution and to the United States Fourteenth Amendments Ten, Griffin, 73 Ohio Nine, of the Ohio Constitution.” §§ and Sixteen Dist.1992). (5th Then, now, 546, 550-551, as R.C. N.E.2d 1178 App.3d as when “death applied 2929.03 and 2929.04 2929.03(D)(1), 1,No. Am.Sub.S.B. murder.” Former 2929.03(F), I, id. at former R.C. 13-14. 10. See also 12,1992, Griffin’s convictions February the court of affirmed On error, court held: overruling assignment In this and sentences. First, offense,” case “capital longer is a it is no within although this By et sentencing provisions seq. pretrial the ambit of the R.C. 2929.03 the jury to return for the waived her agreement appellant to death The case was request penalty. of the state not the agreement jury. to a At minimum death single judge, sitting tried without placed the moment was penalty option extinguished appellant was in the trial. jeopardy added, to death only way at “The defendant held

Id. 553. The panel. if tried to a or a R.C. 2945.06 jury three-judge is he or she is penalty required jury charged is waived and defendant with [three-judge court words, 1. In Id. fn. other court held ‘punishable death’].” offense procedures and not required, 2929.03 2929.04 were option. was not an because the 1428, 594 accept appeal. to Griffin’s direct 64 Ohio St.3d We declined

{¶ 11} (1992). N.E.2d 970

COLLATERAL ATTACKS collaterally conviction years, For more than 15 Griffin has attacked her {¶ 12} sentence, 22, 1997, first April Griffin filed her federal and without success. On by jury waiver of a trial three- corpus claiming habeas her petition, law, intelligent nor judge knowing as allowed under Ohio was neither panel, statutory to “mandatory requirements that the trial court’s failure follow rights. The district due-process equal-protection violated her proceeding” they were defaulted because arguments procedurally court held that these 2:97-cv-00444 Rogers, court. v. S.D.Ohio No. not been raised state Griffin 30, 1998). (Sept. a delayed application Griffin then filed her to reopen appeal pursuant

{¶ 13} 26(B). denied, App.R. was application accept Griffin’s and this court declined appeal. Griffin, her State v. 15, 1999, On October filed her second for a federal writ petition Griffin

{¶ 14} of habeas corpus, claiming agreement three-judge her waive a and a jury petition one-year void. This was dismissed as barred statute of 2244(d)(1). limitations, 28 U.S.C. 18, 2002, October Appeals On the United States Court of Sixth

Circuit vacated the dismissal and remanded the case for consideration whether Griffin equitable tolling was entitled to statute of v. limitations. Griffin (6th Cir.2002). Rogers, 308 F.3d 647 held on district court remand that Griffin entitled to equitable tolling again dismissed the habeas 3, 2005, reversed, as petition time-barred. On March the Sixth holding Circuit tolled, that the statute of equitably limitations was case to remanded the (6th district court for proceedings. further v. Rogers, F.3d Griffin Cir.2005). 22, 2006, August judgment On the district court issued a final dismissing Andrews, 2:99-cv-1127, petition. Griffin’s habeas S.D.Ohio No. Griffin 2006). (Aug. WL 2422590 On October the district court denied Andrews, request appealability. for a certificate of S.D.Ohio Griffin (Oct. 2006). 2:99-cv-1127, No. 2006 WL 3041072 August final, On Griffin filed motion the trial court for a Baker, appealable 2008-Ohio-3330, order 32(C) which require construed Crim.R. of conviction “single to be a document.”2 Id. at 1. Griffin argued order never issued because the court to trial failed include the court’s guilt-phase sentence, findings original entry therefore, the judgment and Baker's one- document rule was violated. agreed The state and submitted a one- proposed entry. judgment document 27, 2009, August new, On the trial court filed judgment one-document

{¶ 18} entry and again parole sentenced Griffin to life imprisonment eligibility after years the 3 for plus years the firearm specification. appealed Griffin her convictions on and sentences anew the basis 1990, the court appellate subject-matter jurisdiction had lacked over her case. The court appeals agreed, holding was not original Griffin’s sentence sentence, language 2. At the time Griffin’s conviction and the relevant was set forth former 32(B): judgment plea, findings Crim.R. “A of conviction shall set forth the the verdict or and * * * signed judgment judge by sentence. shall be the the entered clerk.” St.2d bod her jurisdiction hear final, and that the court had lacked order appealable 09CA21, No. 2010-Ohio- 5th Dist. Coshocton Griffin, original appeal. State ¶ and remanded her convictions 25. The court reversed 2010 WL Parker, trial, trial, we had decided State v. since her for because new 2002-Ohio-2833, sentencing that capital which held St.3d unless the three-judge panel apply of a requirement the provisions including — — Thus, law decided at the on case not is dismissed. based capital specification trial, a three- that the failure to convene appeals the court decided time panel was reversible error. judge vacated accepted appeal, we the state’s On December

{¶20} the case to that court of the court of and remanded judgment appeals, Ketterer, 448, 2010-Ohio-3831,935 N.E.2d application Ketterer, 266, 2010-Ohio-5948,938 1036. In we Griffin, 127 Ohio 2929.03(F) held, court file a requires panel “In cases in which R.C. final, sentencing order consists both sentencing opinion, appealable 2929.03(F) filed judgment of conviction pursuant filed 32(C).” syllabus. to Crim.R. Id. remand, not syllabus the court of held that Ketterer' s did On “in already case was one apply to Griffin because held 2929.03(F) sentencing the court or file a requires opinion,” which R.C. 09-CA-21, 2011- syllabus. Griffin, Ketterer at State v. 5th Dist. Coshocton No. ¶ reasoned, Ohio-1638, Therefore, 20-21. the court Baker*s 2011 WL original to Griffin. Id. It concluded: “Our reversal applied one-document rule Ketterer, reimposed.” Id. at 32. hereby and remand are unaffected and are discretionary accepted appeal. We state’s

LEGAL ANALYSIS Final, Appealable I. Order trial pivotal question years ago before the court is whether final, statutory frame- order in Griffin’s case. Ohio’s appealable issued not require work case law at the time of Griffin’s conviction and sentence did procedural protections, Griffin could not be sentenced death-penalty because procedural protections all of the proper death. The court afforded Griffin entry its was the final guaranteed by law Therefore, sentencing entry hold issued in 1990 was a case. we order. Perspective Penalty A. in of the Death Historical it A since state. Ohio has before became {¶ 23} of under governor judges territory law the territorial and two promulgated by the Northwest Ordinance of 1787 read: “If or any person persons with malice he, she, kill or aforethought, slay person, another or so shall they offending, murder, guilty deemed of and upon pains conviction thereof shall suffer the of 1788.) Chase, death.” P. (Promulgated Sept. Salmon Statutes of Ohio 98 In an by Ohio statute read: “Be enacted Assembly General Ohio, the State That if any person shall purposely, premedi- deliberate and malice, tated in perpetration arson, or or attempt perpetrate any rape, another; or kill robbery burglary, every person such shall be deemed guilty thereof, in degree, murder the first upon conviction shall suffer death.” 29 Ohio Laws 136. The Ohio Constitution addressed cases 1851: “All persons sureties, by

shall be bailable sufficient except offenses where the proof evident, is or presumption great,” person shall be held to answer “[N]o infamous, crime, for a capital, or otherwise presentment unless on or indictment Constitution, I, of a grand jury.” Ohio Article former Section 9 and Section “Capital offenses” was not “Capital defined. case or crime” traditional- has been ly defined as in or for “[o]ne which death penalty may, [the] but need not (6th Ed.1990). necessarily, be imposed.” Black’s Law Dictionary From through the first-degree-murder statute changed only slightly: purposely, malice, “Whoever and either of deliberate and premeditated byor means of poison, or in perpetrating, or attempting perpetrate, any rape, arson, another, robbery, burglary, or guilty kills is murder the first degree, and shall suffer death.” R.S. 33 Ohio Laws 33. Not until 1898 did legislature the Ohio authorize a sentence for first-

degree murder that was not death:

Whoever purposely, and either of premeditated malice, deliberate and or poison, means of or in perpetrating, attempting to perpetrate, any arson, rape, another, robbery, burglary, kills guilty murder degree, death, first punished shall be unless the jury trying the accused mercy, recommend which punishment case the shall impris- onment in the penitentiary during life.

R.S. 93 Ohio Laws 223. Then the legislature required a three-judge panel determine guilt an accused “charged punishable offense with 13442-5, death” the accused jury. I, 530, waived a G.C. 531. Like the jury, panel was authorized to “extend mercy and reduce the punishment for such offense to life imprisonment.” 1953, in former R.C. of the Revised Code original promulgation In the

{¶ 28} crime under is a degree “Murder in the first stated: specifically 2901.01 Otherwise, first-degree- the I, Article Ohio Constitution.” 9 and 10 of Sections First-degree murder to the 1910 version: was almost identical murder statute malice, premeditated of deliberate and and either killing “purposely, was another arson, rape, attempting perpetrate in or perpetrating poison, or means jury trying “death unless the remained punishment robbery burglary.” imprison- in shall be mercy, punishment which case accused recommends for life.” ment for procedures a review of the began In state anew legislature compliance with the death sentence and determined imposition of the Norris, & Alan E. Some Henry strict. See J. Lehman rules must be

procedural Code, 23 on Ohio’s New Criminal Cleve. History and Comments Legislative (1974). Then, with an amendment to the Ohio beginning St.L.Rev. 8 Constitution, subject that defendants to death deserved recognized this state gave first time when the Ohio Constitution for the special procedural protections affirmed on to a second sentence of death had been those whose Constitution, IV, Article former to the Court of Ohio. Ohio appeal, Supreme 2(B)(2)(a)(ii). act Assembly passed modernized The General Section II, Am.Sub.H.B. No. addressing penalty, the death 1866, 1978-1981, mitigating factors and circum- aggravating which identified 2929.02 a death sentence. Former R.C. imposing stances to consider before through 2929.04. justices of the of the yet plurality That act had not been enacted when penalty being that because the death was Supreme

United Court stated States standards, objective it violated the country without imposed throughout cruel and unusual Amendment to the United States Constitution as Eighth 33 L.Ed.2d 346 Georgia, Furman v. 408 U.S. S.Ct. punishment. of the attempted arbitrary application the 1972 law to avoid the Though Furman, scrutiny decried in the law did not survive penalty that had been Ohio, In 438 U.S. 98 S.Ct. Supreme the United States Court. Lockett (1978), death-penalty plurality opinion 57 L.Ed.2d 973 stated Ohio’s as mitigating not consideration of factors such provide statute did individualized record, character, age, Eighth as the and Fourteenth prior the defendant’s Id. at 597-598. require. to the United States Constitution Amendments punishment first-degree From death the sole authorized being tempered only by being preferred punishment murder in 1788 to its until Furman in the death jury might mercy that the show possibility of Ohio requirements accepted part were as procedural and its limited penalty however, society, law. Modern coming imposition to believe that of a death sentence required unique procedures scrutiny. Simultaneously, judiciary reassessing the constitutional signifi- of imposing penalty.

cance the death “The death differs from all other forms of criminal punishment, degree but in kind. It is unique its total irrevocability. It is unique rejection its of rehabilitation of the convict aas basic purpose justice. criminal And it in unique, finally, its absolute Furman, renunciation of all that is in embodied our concept humanity.” 408 306, 2726, (Stewart, J., U.S. 92 S.Ct. 33 L.Ed.2d 346 Four concurring). years later, a plurality opinion added: penalty qualitatively

[T]he death is different from a sentence of impris- onment, Death, however in long. its finality, differs more from life imprisonment than a 100-year prison term differs from only year one of or two. difference, Because of that qualitative there is a corresponding difference the need for reliability the determination that death is the appropriate in a punishment specific case. Carolina, 280, 305,

Woodson v. 2978, North 428 U.S. 96 S.Ct. 49 L.Ed.2d 944 (1976) Stewart, Powell, JJ.). (opinion Stevens, and The corollary conclusion is that when the death penalty option, is not an extraordinary procedural safe- guards are not constitutionally necessary. time, During this no one doubted that a defendant 1976, order upon sentencing. held, In “Generally, we sentence (1933), criminal case is the judgment. Miller v. Aderhold 206 U.S. S.Ct. [53

325, 702]; 77 L.Ed. Berman (1937), 164, v. United States 302 U.S. 211 [58 S.Ct. 204]; (1964), 82 L.Ed. State v. Chamberlain 695; Ohio St. (1967), Hunt, Columbus Stires App.2d 224 N.E.2d 369.” State v. 351 N.E.2d 106 In legislature rewrote the criminal code attempted mesh the state law on penalty the death requirements the new set by the Laws, United States Court. H.B. Supreme II, 134 Ohio Part By 1866. its new language, legislature distinguished capital subset of cases in which the death penalty may imposed, be “punishable those with death.” Id. at 2901.02(B). R.C. The courts at applied capital first statutes to all capital offenses even the death penalty imposed. could not be For example, after the United Supreme States statutes, Court had overturned Ohio’s death-penalty Norman Henry and a codefendant were indicted for an aggravated murder committed in Then, now, 1980. as R.C. 2945.20 required separate trials for defendants jointly offense, indicted for a capital stated, and the murder “Aggravated statute is a penalty, capital as a may imposed be murder, any offense for which death (Jan. II, 1866, Laws, 2901.02(B), Part 134 Ohio R.C. offense.” Former jointly, reasoning 1974). his codefendant Henry tried trial court had was not penalty if the death procedures require capital did not that the law 2901.02(B), murder aggravated to R.C. “Pursuant disagreed: allowed. This court a result of the may imposed as of whether death regardless offense capital is a (1983), 44, 446 N.E.2d 436 Henry, thereof.” State conviction syllabus. one of the paragraph R.C. Henry by amending holding to our reacted legislature from

2901.02(B) being death specifications murder without to delete II, Am.H.B. No. offense. 1984 classified as in dicta as follows: change interpreted This court of this Henry during pendency to our decision Subsequent 2901.02(B) 4,1984 only so that April was amended effective appeal, as a is a offense. for which death offense result, facing possibility afforded to those special protections As a are justice system criminal is relieved penalty, of the death but now the charged do not face the of such venire where those expense burden and penalty. of the death possibility (1984), 15, 16, 465 N.E.2d 382 McMonagle, Corrigan

State ex rel. fn. specialized to consider whether Corrigan, appeals began After courts of charged, offense was but death capital when a

death-penalty procedures applied to distinguish 2945.06 was viewed imposed. example, could not be For R.C. an and those in option in which the death was capital penalty between cases not. It states: which was by jury in a waives his

In case which defendant Code, of the Revised by tried the court under section 2945.05 elects be hear, proceed in is shall any judge pending of the court which the cause the rules and in like the cause in accordance with try, and determine accused, jury. a is being cause were tried before manner as If death, court by he shall be tried a punishable an with charged offense * * *. composed judges to be of three added.) (Emphasis require interpreted Corrigan Trial courts and courts of imposed: when death could be

capital procedures only Supreme recognized Henry, As the Court State v. offense supra, though penalty may be classified as offense even the death imposed. Assembly not be The General has used both term capital punishable offense and an offense with death we and must assume Assembly General intended that there distinction between two statute, which terms. is a different statute than the Court Supreme Henry, considered clear It unambiguous. person stated that punished who violated the section shall death. by question whether, 2901.02(B), Henry under designated crime which was punishable by as a still capital offense death was offense after death penalty was invalidated the United Supreme States Court. That question is not the in this It appears case. obvious that the Assembly General intended that a three-judge panel provided should be a defendant of an accused offense which life may his be taken. Since not in death effect Ohio at the time defendant allegedly crime, committed the the General Assembly’s purpose providing three-judge panel a person’s where life is at stake would not have been served him a providing three-judge panel. Hubert, 82AP-942, 1984 16, 1984). 10th Franklin (Aug. Dist. No. WL 5871 This that capital observed cases and those in which

penalty could be were not the same thing. “[CJapital offenses may continue independent Shoemaker, of the death penalty.” State ex rel. Johnson v. words, 451 N.E.2d 1231 In other possibility the death penalty controls whether capital sentencing procedural protections are required, not whether the case is labeled a capital case. Juvenile cases presented the same issues. legal Though yet

{¶39} required so by Court, to do the Supreme United States the 1981 Ohio death- penalty law excluded under those 18 at the time of being subject the offense from 2929.03(E), to the death penalty. I, 139 Laws 13. Courts relied on Corrigan deny juveniles to who charged were with a capital offense death- penalty procedural protections because death could not be imposed. State ex rel. Evans, Fyffe 5th 90-CA-4, 1990) Dist. 11, Coshocton No. WL 1990 52518 (Apr. Corrigan, to (pursuant indigent juvenile being offender tried as an adult for a capital offense was properly denied the two appointment lawyers of because the penalty imposed), 62, death could not on grounds, be other 577 aff'd (1991); Cohen, N.E.2d 12-011, 1094 and 11th Dist. Lake No. 1988 WL 1988) *12 (Apr. (by the of language R.C. 2945.06 [three-judge-panel judges three because “the was trial before juvenile denied requirement], properly law”). him as matter of against not be penalty imposed death could Capital Sentencing B. for Procedures Offenses Imposed Death Be When Cannot juvenile of adult and questions and case law closed the whether Statutes whether the three-judge panel to tried before a and required offenders were be lawyers capital charged offense was but required of two was when appointment question open The that remained was penalty imposed. could not be the 2929.03(D) in former R.C. sentencing procedural protections the afforded whether (F) was but offender could required charged and were when a offense N.E.2d settled that Griffin, App.3d put not be death. question law. three-judge panel by jury to be Griffin waived her tried not to a death sentence. Griffin exchange agreement pursue for the state’s and a was issued. consequently single judge, guilt-phase entry tried before a

was offer evidence During sentencing phase, permitted mitigation Griffin was all therefore afforded The required process. and to allocute. Griffin was due entry and findings sentencing trial court then on the record issued entered Hunt, at order in accordance with was stated, “Generally, in a criminal case is the which the sentence Griffin, prosecution, recognized sentencing and the courts all judgment.” final entry appealable. as applied The Fifth in the three- Appeals reasoning District Court juvenile cases in chal-

judge-panel considering 2929.03(D) (F) lenge. sentencing requirements Former R.C. addressed the and the court decided that applied may imposed,” appellate “when death penalty option extinguished did not to Griffin because “the death they apply trial.” jeopardy Griffin, the moment appellant placed at the time statutory provisions 597 N.E.2d 1178. effect App.3d provided: offenses * * * (D)(1) as a When death ** * court, murder, this proceed the court shall under division. report aby jury, any the trial if the was tried shall consider jury offender to this and fur- [presentence investigation] prepared pursuant division it and evidence raised at trial is relevant any nished to committing guilty the offender was found aggravating circumstances death, shall mitigation imposition factors the sentence the nature and testimony hear and other evidence relevant circumstances of the aggravating circumstances the offender was found guilty (B) of committing, the mitigating factors set forth in division Code, section 2929.04 of the Revised and any other factors in mitigation of the imposition death, of the statement, sentence of and shall hear the if offender, any, of the and the if arguments, any, of counsel for the defense and prosecution, that are relevant to that should be * * * on the offender.

(3) Upon consideration of trial, the relevant evidence raised at evidence, testimony, other offender, statement of the arguments of coun- sel, and, applicable, the reports submitted the court pursuant if (D)(1) division this section [requiring compliance “death may be if, imposed”], (D)(2) after receiving pursuant to division of this section the trial jury’s recommendation that the sentence of death imposed, finds, court by proof beyond doubt, a reasonable ifor the panel of three judges finds, unanimously that the aggravating circumstances the offender was found guilty of committing outweigh factors, the mitigating it shall impose sentence of death on the offender. Absent such a finding by the court or panel, the court or panel shall impose one of the following sentences on the offender:

(a) Life imprisonment with parole eligibility after serving twenty full years of imprisonment;

(b) Life imprisonment with parole eligibility after full serving thirty years imprisonment.

(F) The court or panel judges, three when imposes sentence of death, shall state a separate opinion specific its findings as to the existence of any (B) the mitigating factors set forth in division of section 2929.04 of Code, the Revised existence of factors, other mitigating the aggravating circumstances the offender was found guilty of commit- ting, and the reasons why the aggravating circumstances the offender was found guilty of committing were sufficient to outweigh the mitigating factors. The court or panel, imposes when it imprisonment under life (D) section, division this shall state in a separate opinion specific its findings of which of (B) the mitigating factors set forth in division section 2929.04 of the Revised exist, Code it found to what other mitigating exist, factors it found to what aggravating circumstances the offender was found guilty of committing, itwhy could not find that these aggrava- ting circumstances were sufficient to outweigh the mitigating factors. The shall file the opinion required to prepared by this 120 the appeals court of and with of the appropriate

division with clerk days fifteen after court court within supreme clerk of the sentencing hearing in judgment in a case which sentence. The final filed. not until the is this section is is held 1,10-14. added.) 2929.03, 139 R.C. Ohio Former (Emphasis that consistently ruled with courts Fifth District Court Appeals The delineating in former R.C. 2929.03 language similar that interpreted had It held: may imposed.” death “when procedures offense,” no a case within the ambit longer this is a it is [A]lthough “capital By pretrial agreement 2929.03 et sentencing provisions seq. of the R.C. trial in for the right jury agreement her return appellant waived single the death The case was tried to a penalty. the state not to request minimum was judge, sitting jury. penalty option without a At the death trial. jeopardy in the appellant placed the moment was extinguished 553, 73 597 Griffin, App.3d Ohio N.E.2d Therefore, appealed, provided special proce- when Ohio law Griffin when the required only associated with offense were protections

dural reasonably of Appeals could be Fifth District Court imposed. 2929.03(D) (F) also holding courts in this state followed other at 553. court then only option. the death sentence Id. This apply when (1992). 1428, 594 970 discretionary denied review. 64 Ohio St.3d concluding was alone Fifth District Court not Appeals 45} {¶ imposed, and this only when death could death-penalty procedures applied Heddleson, State deny challenges. review over defendants’ v. continued 7, 1999), 99-CA-00074, discretionary 1999 (Sept. Dist. No. 770845 5th Stark WL Steele, (1999); 1476, v. not 87 Ohio 721 N.E.2d State accepted, St.3d (June 00AP-499, 28, 2001), discretion- 10th Dist. Franklin No. WL (2001); St.3d 756 N.E.2d 1235 State ary appeal accepted, not 28, 2001), Ahart, *2 (Sept. 7th 93 C.A. 2001 WL Mahoning Dist. No. not 762 N.E.2d 370 discretionary appeal accepted, time on the law at the appeals correctly The court of assumed based Therefore, court of entry a final order. that the trial court’s assignments of error. to review Griffin’s subject-matter jurisdiction our justify or more later does not changed That this have decade law trial. on it at the time of abandoning place law in and the convictions based In Appeals rejecting Sixth Circuit Court of point made same claim of ineffective assistance counsel made convicted murderer Elmer Ahart: Griffin,

State v. (1992), 73 Ohio App.3d forgo established when defendant his to a agreed jury exchange prosecution’s agreement to pursue not the death penalty, the case be heard a single judge. could Griffin overruled until the Supreme Court issued its decision in Parker, 524, (2002). Thus, 769 N.E.2d 846 at the time Ahart would sentence, have appealed his the law did not require that his case be by heard a three-judge panel. The fact that the law have in changed 2002 does not mean that Ahart a ground nonfrivolous appeal Bradshaw, Ahart v. (6th 188, 194 Cir.2005). 122 Fed.Appx. We reaffirm that Griffin was afforded all procedural protections re

quired by law in 1990 and that a final judgment Therefore, was entered. order that she appealed from final 1990 was and appealable. The finality her conviction and sentence is “society’s consistent with interest in enforcing law, and in meting punishment out the legislature State just.” has deemed Beasley, (1984). Ohio St.3d 471 N.E.2d 774 Even if in 1992 the court of wrong was final, that assuming appealable a order existed in its holding subject judicata was to res and principles therefore could have been challenged only in a appeal. direct Consequently, precluded Griffin is from reopening by judicata, her appeal res “a rule of fundamental and substantial State v. Simpkins, justice.” 2008-Ohio-1197, 884 N.E.2d ¶ 25.

II. Res Judicata Bars Griffin’s Challenges Successive and Collateral Because the 1990 sentencing entry final, order, was a appealable Griffin’s claims are judicata. barred res judicata, res

Under the doctrine of a final judgment of conviction bars the convicted defendant from raising litigating any proceeding, except appeal from judgment, any or defense claimed lack of due process was raised could have been raised the defendant at the trial which resulted in of conviction or on an appeal from judgment. Both Griffin 226 N.E.2d 10 Ohio St.2d Perry, final, order, a entry sentencing appealable that the counsel believed defense 1, 1990. February on her direct Griffin filed because the claim included assignments error appeal, that direct On 49} {¶ following the by not appellant of the sentencing erred trial court that “[t]he * * 550-551, Griffin, 73 App.3d R.C. 2929.03 2929.04 mandates of 32(B) entry the lack of Crim.R. challenged never 1178. Griffin therefore, claims forever barred. these are three-judge panel, the lack of entry issued of law: adopt proposition the first consequently We issued order, resentencing entry and the in 1990 was 2008-Ohio-3330, Baker, entry issued resentencing from judicata precludes litigant using nullity. Res litigated has already that defendant litigate an issue when pursuant to Baker appeal. the issue on direct litigated or could have of law proposition first resolves holding regarding state’s Our proposition do not address the state’s second and we therefore appeal,

current law.

CONCLUSION final, had a order appealable hold that Sandra Griffin We therefore 51} {¶ further hold that sentencing entry in 1990. We the trial court issued the when entry using pursuant from issued litigant resentencing judicata precludes res Baker, 197, 2008-Ohio-3330, an litigate 893 N.E.2d issue 119 Ohio St.3d appeal. direct already litigated litigated or could have on that defendant has of final today importance judgments: holding emphasizes Our 52} {¶ “ that those who litigation; that there be an end policy dictates ‘[PJublic contest, of the and by shall bound the result have contested an issue considered forever settled as between that matters once tried shall be * * * judicata is not doctrine res parties.’ ‘[the] We have stressed from a more technical practice procedure matter inherited mere justice, “of It is rule of fundamental and substantial than ours. time cordially and private peace,” regarded which should be public policy and ” the courts.’ enforced (1996), Federated quoting 77 Ohio St.3d 671 N.E.2d 233 Szefcyk, v. Moitie, 394, 401, Stores, 2424, 69 L.Ed.2d 103 101 S.Ct. Inc. U.S. Dept. Assn., 522, 525, 51 S.Ct. (1981), Traveling Men’s 283 U.S. quoting Baldwin (1931), Co., 75 L.Ed. 1244 and Hart Steel Co. v. RR. Supply U.S.

S.Ct. 61 L.Ed. 1148 We reverse of the court of appeals and remand the cause 53} {¶ to the court of appeals with instructions to dismiss Griffin’s appeal.

Judgment reversed and cause remanded. Pfeifer, O’Donnell, French, JJ., and concur. Lanzinger

O’Connor, C.J., JJ., O’Neill, dissent. J., dissenting.

Lanzinger, I respectfully majority dissent. The opinion correctly states that the pivotal question before the court is final, whether the trial court issued a order in appealable Majority case. opinion, But instead deciding Baker, whether State v. 2008-Ohio-3330, 163, applies, as the Fifth held, District Court of Appeals whether State v. Ketterer, 448, 2010-Ohio-3831, applies, as the state argues, the majority refuses to apply either because the cases had not been decided 1990. I would hold that there was no upon order which could be taken to Ketterer a sentencing because has never been filed as required by R.C. 2929.03. I would the judgment vacate entry of conviction for aggravated murder3 and remand this case to court. Sandra Griffin has served 24 years life sentence that permits parole

eligibility years. after 30 She was of aiding convicted abetting two others murder James Sr. and also convicted of the capital Steurer 2929.04(A)(7) specification under R.C. specification firearm under R.C. 2941.141. The state not to agreed seek the death penalty against Griffin but never dismissed felony-murder specification within her indictment. There- fore, she always has been charged with offense of aggravated murder. Yet the capital-ease followed, were statutes appellate and the erred exercising jurisdiction. “Capital

I. Case” Defined 3, 1984, 2901.02(B) April Since R.C. has plainly defined a capital case terms of charged offense: noncapital abetting

3. aiding possession ordnance, Griffin’s convictions dangerous for and unlawful aiding theft, abetting grand aiding abetting aggravated robbery, specification and a firearm are unaffected and therefore are irrelevant to this discussion. 124 indictment or the count indictment murder when the

Aggravated specifications aggra- or more murder contains one aggravated charging (A) 2929.04 [the] of section listed in division vating circumstances aas may imposed be for which death Code, other offense Revised is a offense. capital penalty, II, an version Laws, addressing In earlier 380, Part 3639. Ohio

Am.H.B. No. 140 stated, 2901.02(B), aggravated to R.C. statute,4 “Pursuant this of this a as death regardless a whether capital is offense murder 4 446 N.E.2d 436 Henry, v. St.3d thereof.” State Ohio result of conviction not continued hold that does (1983), syllabus. We have one of paragraph Harwell, Ohio imposed. State v. 102 St.3d if the will death matter murder 2004-Ohio-2149, aggravated with (juvenile charged N.E.2d 330 a to age, sentence due although ineligible specification, and a capital Clinkscale, 122 v. State capital procedure); protections still entitled ¶ (the case 351, 2009-Ohio-2746, case remains St.3d trial). in a a death sentence second could not receive though even the defendant specification, so death-penalty An must be amended to remove indictment death, punishable offense longer “charged” is no the defendant 87 Ohio Henry McMonagle, ex rel. noncapital. for a case to become State (2000). 543, 544-545, 721 N.E.2d 1051 charged her with Griffin’s indictment offense— 2903.01(A) under specification felony-murder R.C. murder violation of trial, 2929.04(A)(7). did jury the state not amend When she waived Therefore, case remained specification. indictment to dismiss the capital case. this already have addressed issue: squarely We has by death who waived charged punishable

A with a crime defendant must, R.C. 2945.06 and Crim.R. by jury right his 11(C)(3), three-judge panel heard and decided even have his case penalty. that it will not seek the death agrees the state 2002-Ohio-2833, Parker, syllabus.5 three-judge panel, his by jury, to a trial waived waived his right Parker 1892. II, 4. H.B. No. 511, 134 Griffin, as in conflict with State v. Parker App.3d

5. We accepted ¶ Id. Parker’s did the court of 3. until apply N.E.2d 1178 Not April holding WL to Griffin’s case. 2011-Ohio-1638, pled murder a death guilty specification. with He by a with single judge imprisonment parole eligibility sentenced to life after The of years. guilty plea vacated the and conviction and remanded affirmed, case further proceedings. holding regardless We state’s agreement penalty, charged to seek the death Parker “was still with ¶ sic.) an 11.6 punishable (Emphasis offense that with death.” Id. Capital II. Procedures charge When a defendant is convicted of both aggravated-murder a specification, penalties death as a term life potential include well as 2929.03(C)(2)(a). imprisonment. R.C. is to be “the determined of three panel judges that tried the offender upon the offender’s waiver of the (E). 2929.03(D) by jury” accordance with R.C. R.C. 2929.03(C)(2)(b)(i). Furthermore, mitigation required after the R.C. hearing, 2929.03(D), choices, fully must panel only they consider choosing death unanimous, are otherwise one of selecting possible life terms.7 R.C. 2929.03(D)(3). case, In a capital appealable order does not until the exist Ketterer,

sentencing opinion 448, 2010-Ohio-3831, is filed. State v. 2929.03(F) 9. 935 N.E.2d sets R.C. forth for the requirements cases, in all capital whether imposed. death or life sentence is At time of trial, Griffin’s the statute stated: court or the judges, three when it imposes sentence

death, shall state in a separate opinion specific its as to the findings any (B) existence of of the mitigating factors set forth in division of section Code, 2929.04 of the factors, Revised existence of other mitigating the aggravating circumstances the offender was found commit- guilty of ting, why and the reasons the aggravating circumstances the offender was Although also stated in Parker that the we three-judge-panel requirement of R.C. 2945.06 was a jurisdictional waived, 524, 2002-Ohio-2833, matter cannot be 769 N.E.2d subsequent we by holding modified that statement case that the failure convene a three- judge panel subject-matter jurisdiction does not create lack the trial renders court’s subject Hurley, corpus. void ab initio Pratts v. collateral attack in habeas 81, 2004-Ohio-1980, 992, syllabus. Instead, we held the error to be an error jurisdiction, Id. by appeal. in the exercise of correctable crimes, 2929.03(D)(3) 7. At the time of provided possible former R.C. that the life terms imprisonment parole years could be eligibility were life after 20 30 full imprisonment. I, No. Am.Sub.S.B. 13. The current statute life allows parole eligibility years imprisonment terms with after 25 or parole. life without 2929.03(D)(3)(a). mitigating outweigh were sufficient guilty committing found under imprisonment it panel, imposes when factors. The court or life (D) section, separate specific its state in a shall division this of (B) in factors set forth division mitigating of which of findings exist, mitigating what other it found to of the Revised Code section 2929.04 exist, the offender aggravating what circumstances it found factors aggrava- find that these could not committing, why guilty found factors. outweigh mitigating were sufficient ting circumstances * * * is held sentencing hearing in in which a The a case judgment opinion is,filed. is not until the this section final added.) 1, 139 1,1,13-14. No. Am.Sub.S.B. (Emphasis to create Assembly intended These statutes show that General {¶ 61} have in cases. And we capital followed specific procedure would be when we have reviewed consistently compliance strict with Ohio statutes required Filiaggi, v. capital cases. State procedures N.E.2d 867 Compliance Required Capital Statutes Is

III. with Imposed May

Even If Death Not Be that “the by declaring our majority opinion precedent contradicts capital procedural controls whether death possibility a capital Majori- whether case is labeled case.” are protections required, majority point: on this ty 38. The states opinion, conviction and case law at the time Griffin’s statutory Ohio’s framework procedural protections, be- death-penalty did not require sentence afforded to death. The trial court Griffin could not be sentenced cause by law procedural protections guaranteed all of the proper Griffin in the case. sentencing entry was the final its ¶ 22. Majority opinion by majority hardly relied on the three court decisions appellate But for capital were cases capital procedures required the matter whether

closed Hubert, v. 10th Dist. imposed. State life were See which sentences 16, 1984); 82AP-942, Fyffe ex rel. (Aug. WL 5871 State Franklin No. 11, 1990); Evans, 90-CA-4, (Apr. No. 5th Dist. WL Coshocton 29, 1988). Cohen, 12-011, 1988 (Apr. *12 These Lake WL 11th Dist. No. in. did address these weighed court had When we were decided before this cases regardless issues, strictly capital procedures trial follow required we courts Parker, instance, death imposed. whether could be For held that a we defendant who jury waives a must have the case heard and decided three-judge even if the will agrees state that it not seek the death penalty. 524, 2002-Ohio-2833, 95 Ohio St.3d syllabus. also We held juveniles charged specification murder and are still entitled to the protections are procedure, although they ineligible Harwell, 128, 2004-Ohio-2149, due to their age. sentences 807 N.E.2d 330. The majority unjustifiably acknowledge refuses to this more court’s unduly

recent decisions and limits the review of cases to those decided general rule Ohio is that applies court decision unless a retrospectively party has contract rights prior vested rights under decision. Peerless Elec. Bowers, (1955); Co. v. 164 Ohio St. 129 N.E.2d 467 Bey, see also State Therefore, St.3d 709 N.E.2d 484 long as as the statutory provisions similar, subsequent are our decisions are relevant to whether the trial court was required to follow capital procedures when Griffin was sentenced and final, whether she a appealable had order. Parker, although trial, not announced until after Griffin’s was

{¶ 65} decided under the of same version R.C. 2945.06 that had been in effect since 1981. The

portion of the statute relevant to Griffin states:

If the accused with charged death, is an punishable offense with he shall * * by be tried a composed judges three *. The or judges a of them majority may decide all questions fact and law arising upon the trial; however accused shall not guilty be found or guilty not offense unless judges unanimously find the accused or guilty not guilty. ** * The court shall the procedures contained in sections 2929.03 follow 2929.04 Revised Code all cases in which the accused is charged an with offense punishable death. added.)

(Emphasis Parker, Just as in “charged Griffin was with offense punishable by 2929.04(A)(7) death” because her indictment included the R.C. specification. R.C. 2945.06 capital sentencing procedures mandated that in R.C. 2929.03 because applied charged she was with a capital offense. The state’s agreement not would seek the death penalty require- did not alter this ment.8 capital procedures.

8. The trial court also should have followed the trial Thus Griffin’s decision to jury guilt waive nonguilt a meant that her judges or should have been determined three unanimously, 2945.06, judges R.C. and that those should have sentence she was found did issue the judges of three to Griffin’s respect appeal, With 2929.03(F) specification because the death by R.C. sentencing required opinion her murder and found convicted her of single judge A remained. erroneously that this was not While stating specification. of the death guilty evidence case, mitigation then heard considerable judge single 2929.03(F) filed. R.C. was ever opinion under sentencing. sentencing But no final, case, yet order does not for pending this is Consequently, exist. jurisdiction have no to act without appeals It axiomatic that courts of is ex Appeals rel. Bates Court Sixth appealable orders. ¶ 326, 2011-Ohio-5456, Disk., Article

Appellate 3(B)(2) jurisdiction IV, upon confers the courts the Ohio Constitution Section affirm, “judgments lower courts’ appeals modify, to “review and reverse” until the case is not final final orders.” Because the 2929.03(F), was to R.C. Griffin’s never is filed finalized, judicata apply. cannot and res Baker rather than Ketterer incorrectly court of decided because there was reasoning sentencing opinion unnecessary

applied, 2929.03(D). 2011-Ohio-1638,2011 no under R.C. WL mitigation hearing hearing required A because point. mitigation at 19-21. This misses the sentencing required at the time of the version of R.C. .2945.06 effect “in cases in which the court to follow the 2929.03 all procedures added.) As punishable by (Emphasis an offense death.” charged accused Harwell, charged, to the offense which was principally we “we looked stated that death, to the of the defendant or the fact punishable by and not status 128, 2004-Ohio-2149, as an option.” been eliminated 330, 12. with a offense. denying charged capital is no Griffin was There I fact control whether Contrary majority, to the believe that this alone does Because capital sentencing procedures. trial and required trial court is follow final, case, had a has never opinion required capital is Griffin sentencing appealable order.

IV. Conclusion the court of had the acknowledged What must is that never this case because to act when no order existed power 2929.03(F). majority to R.C. was not filed 2929.03(D)(3). statutory apply Although it guilty, is trae structural error does violations, process due argued denied her constitutional because could be that Griffin was procedural errors in this case. the numerous in this case numerous errors attempts procedural to whitewash the this court as it existed in 1990. Because unduly its review to case law limiting when the death must be followed even capital procedures has held case, to the appeals’ in a I would affirm the court of decision option not an felony- murder and the extent it vacates the conviction for further proceed- this case to the trial court for specification murder remand ings.

O’Connor, C.J., J., foregoing opinion. concur O’Neill, Given, County Prosecuting Attorney, appellant. Jason W. Coshocton Defender, Hardwick, P. Assistant Timothy Stephen Ohio Public Young, Defender, for appellee. Public Deters, R. County Prosecuting Attorney, Philip T. Hamilton

Joseph curiae, Cummings, Prosecuting Attorney, urging Assistant reversal for amicus Prosecuting Attorneys Association. Disciplinary Anthony. Counsel Disciplinary Anthony, Counsel v. [Cite as 129, 2013-Ohio-5502.] (No. 2013.) April 2013-0226 Submitted 2013 Decided December

Case Details

Case Name: State v. Griffin

Court Name: Ohio Supreme Court

Date Published: Dec 19, 2013

Citation: 4 N.E.3d 989

Docket Number: 2011-0818

Court Abbreviation: Ohio