776 N.E.2d 524 | Ohio Ct. App. | 2002
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *149
Assignment of Error No. 1
{¶ 2} "The three-judge panel erred in accepting statements from three representatives of the victim's family, two of whom asked the court for particular sentences and the third of whom addressed appellant rather than the court, before deliberating on the sentence to be imposed.
Assignment of Error No. 2
{¶ 3} "Appellant was denied his constitutional right to the effective assistance of counsel when his trial counsel failed to object to improper victim impact testimony and also failed to object to admission of appellant's juvenile record. *150
Assignment of Error No. 3
{¶ 4} "The three-judge panel improperly balanced aggravating circumstances against mitigating factors, weighing the nature and circumstances of the offense on the side of aggravation and considering appellant's improperly admitted juvenile record against mitigation."
{¶ 5} Under his first assignment of error, appellant argues that the three-judge panel made three separate errors regarding the statements made to the court by the victim's family members prior to sentencing. First, he argues that the three-judge panel erred by allowing three members of the deceased victim's family to give a victim impact statement.
{¶ 6} R.C. Chapter 2930 sets forth various rights of victims in criminal proceedings. R.C.
{¶ 7} While only one person may act as the victim's representative, R.C.
{¶ 8} Second, appellant argues that the three-judge panel erred by permitting the victim's family to make sentencing recommendations. Two of the family members asked the panel of judges to give appellant life without parole.
{¶ 9} Appellant contends that these statements were improper because this was a capital case. A victim's or victim representative's opinion of the proper punishment for the defendant in a capital case "violate[s] the defendant's constitutional right to have the sentencing decision made by the jury and judge." State v. Huertas (1990),
{¶ 10} Appellee contends, however, that this was not a capital case because the death penalty could not have been imposed due to appellant's age. Appellant was indicted pursuant to R.C.
{¶ 11} On the authority of the recently decided Ohio Supreme Court case of State v. Parker,
{¶ 12} Finally, appellant contends that the three-judge panel erred by allowing one of the victim's family members to address appellant rather than the panel of judges. We agree with appellant that R.C. Chapter 2930 permits a victim or others to address the court with relevant information regarding sentencing. However, an appellate court's role is to review the trial court's action for prejudicial error. Appellant has failed to show how the statements made to him by the victim's sister prejudiced his sentence. Plain error is recognized only where, but for the alleged error, the outcome of the proceeding would have been different. Statev. Long (1978),
{¶ 13} Accordingly, appellant's first assignment of error is well-taken in part. We find that the trial court committed reversible error by permitting the victim's relatives to make sentencing recommendations.
{¶ 14} In his second assignment of error, appellant argues that he was denied his constitutional right to effective assistance of counsel because his counsel failed to object to the improper victim impact testimony and because he failed to object to the introduction of his juvenile record into evidence.
{¶ 15} To establish a claim of ineffective assistance of appointed counsel, the defendant must show that his counsel's representation "fell below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance." Strickland v.Washington (1984),
{¶ 16} Appellant argues that his appointed counsel should have objected to the introduction of his juvenile record into evidence. He argues that his juvenile record was irrelevant to the issue of whether the aggravating circumstances were outweighed by the mitigating factors. He argues that it would only have been relevant if there had been evidence that he had led a law-abiding life up until the time of this offense.
{¶ 17} We find that there was no error regarding the admission of appellant's juvenile record into evidence. Appellant himself brought up the issue of his juvenile record when presenting mitigating evidence. Since this is an acceptable trial strategy, appellant cannot now claim that his counsel rendered ineffective assistance. State v. Hamblin
(1988),
{¶ 18} In his third assignment of error, appellant argues that the three-judge panel improperly weighed the nature and circumstances of the offense as aggravating circumstances against the mitigating factors and considered appellant's juvenile record which he previously contended was improperly admitted into evidence.
{¶ 19} R.C.
{¶ 20} "(B) If one or more of the aggravating circumstances listed in division (A) of this section is specified in the indictment or count in the indictment and proved beyond a reasonable doubt, and if theoffender did not raise the matter of age pursuant to section
{¶ 21} "* * *. *153
{¶ 22} "(7) Any other factors that are relevant to the issue of whether the offender should be sentenced to death." (Emphasis added.)
{¶ 23} Under this section, the three-judge panel is required to weigh against the aggravating circumstances "* * * the nature and circumstances of the offense, the history, character, and background of the offender, * * *" and the statutory mitigating circumstances that were found to exist in this case as well as any other factor "relevant to the issue of whether the offender should be sentenced to death." R.C.
{¶ 24} In its opinion, the three-judge panel found that the "aggravating circumstances outweigh the mitigation factors" beyond a reasonable doubt. It then stated that:
{¶ 25} "In this regard, the Court stresses the heinousness of the execution-style killing of Mrs. Harris by means of two gunshots from a distance of two or three inches, one immediately below each eye of the victim; the intense violence of the facial knife slash this defendant inflicted on Mrs. Harris; and the violent, perverted and wholly gratuitous nature of the rape.
{¶ 26} "Set against these aggravating circumstances, this Court finds * * *."
{¶ 27} We agree with appellant that the panel in this case improperly considered the nature and circumstances of the crime as aggravating circumstances which it then weighed against the mitigation factors contrary to the dictates of the R.C.
{¶ 28} Having found that the trial court committed error prejudicial to appellant by allowing the victim's family members to make sentencing recommendations, and further erred when it improperly considered the nature and circumstances of the crime as aggravating circumstances, we reverse the judgment of the Lucas County Court of Common Pleas and remand for resentencing. Pursuant to App.R. 24, appellee is hereby ordered to pay the court costs incurred on appeal.
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98. *154
MELVIN L. RESNICK, J. concurs.
PETER M. HANDWORK, J., dissents.
"* * *.
"(7) The offense was committed while the offender was committing * * * rape * * * or aggravated burglary, and * * * the offender was the principal offender * * *."
Dissenting Opinion
{¶ 29} I respectfully dissent from the majority regarding the rights of a juvenile in an aggravated murder case.
{¶ 30} R.C.
{¶ 31} "Aggravated murder when the indictment or the count in the indictment charging aggravated murder contains one or more specifications of aggravating circumstances listed in division (A) of section
{¶ 32} A similar prior version of this statute was interpreted as providing that aggravated murder was a capital offense only when the indictment contained specifications which would carry the death penalty.State ex rel. Corrigan v. McCallister (1985),
{¶ 33} Other appellate courts relied upon Corrigan, Id., to hold that a juvenile charged with murder is not entitled to the rights afforded to a capital defendant since he could not be sentenced to death. State v. Williams (May 15, 1997), Franklin App. No. 96APA08-1077 at 15-17; State v. Walk (Nov. 14, 1995), Franklin App. No. 95APA03-268 at 18-23; State ex rel. Fyffe v. Evans (Apr. 11, 1990), Coshocton App. No. 90-CA-4, affirmed on other grounds (1991),
{¶ 34} Following the reasoning of the other appellate districts, I would find that since appellant was not subject to the death penalty, he was not charged with a capital offense, irrespective of whether he was indicted with specifications that carry the death penalty. Therefore the rights afforded to a defendant in a capital case should not be extended to appellant. I believe that the Parker case should be limited to adult defendants. Therefore, I would find that the three-judge panel did not err by permitting the victim's family to express their recommendations regarding sentencing. *155
{¶ 35} Furthermore, I would find that although the three-judge panel improperly weighed the nature and circumstances of the offense and the aggravating circumstances against the mitigating circumstances, it did not commit prejudicial error. Since appellant is under the age of eighteen and may not be sentenced to death, the R.C.