506 N.E.2d 276 | Ohio Ct. App. | 1986
Defendant-appellant, Timothy J. Holmes, was convicted of aggravated murder, with the aggravating circumstance of aggravated robbery and a firearm specification, on April 2, 1985. The jury recommended that appellant be sentenced to life imprisonment without parole for thirty full years for the aggravated murder, as the jury found that the mitigating factors outweighed the aggravating circumstances. The trial judge imposed the sentence recommended by the jury, with additional sentences for aggravated robbery and for the firearm specification, the sentences to be served consecutively.
Appellant has made a motion to remand his case to the trial court with instructions that the trial court prepare and file a separate opinion setting forth the mitigating and aggravating factors which the trial court found to exist. Appellant asserts that the filing of such a separate opinion is required by R.C.
Appellant's claim that a final judgment was not reached in his case is based upon his interpretation of certain portions of R.C.
"The court or the panel of three judges, when it imposes sentence of death, shall state in a separate opinion its specific findings as to the existence of any of the mitigating factors set forth in division (B) of section
There is no question but that R.C.
By contrast, if the trial jury has determined that the aggravating circumstances do not outweigh the mitigating factors, it is then required to recommend a sentence of life imprisonment; the court is bound by the decision of the jury to impose this life sentence. The issue before us upon appellant's motion to remand is whether R.C.
R.C.
"(2) Upon consideration of the relevant evidence raised at trial, the testimony, other evidence, statement of the offender, arguments of counsel, and, if applicable, the reports submitted pursuant to division (D)(1) of this section, the trial jury, if the offender was tried by a jury, shall determine whether the aggravating circumstances the offender was found guilty of committing are sufficient to outweigh the mitigating factors present in the case. If the trial jury unanimously finds, by proof beyond a reasonable doubt, that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, the trial jury shall recommend to the court that the sentence of death be imposed on the offender. Absent such a finding, the jury shall recommend that the offender be sentenced to life imprisonment with parole eligibility after serving twenty full years of imprisonment or to life imprisonment with parole eligibility after serving thirty full years of imprisonment.
"If the trial jury recommends that the offender be sentenced to life imprisonment with parole eligibility after serving twenty full years of imprisonment or to life imprisonment with parole eligibility after serving thirty full years of imprisonment, the court shall impose the sentence recommended by the jury upon the offender. If the trial jury recommends that the sentence of death be imposed upon the offender, the court shall proceed to impose sentence pursuant to division (D)(3) of this section."
R.C.
In a situation in which the trial court overrides the death-sentence determination of the jury and imposes a life sentence upon a defendant, such a decision would be based upon the court's independant weighing of the factors and circumstances before it, and it would be both feasible and necessary for the court to produce the separate opinion of specific findings referred to in R.C.
R.C.
One commentator has noticed the possible ambiguity of R.C.
"* * * This section is clear with respect to the opinion that must be written when the court or three-judge panel imposes death. The statute is unclear, however, as to whether an opinion must be written when the jury brings back a life sentence, or whether the opinion must be written when the court imposes a life sentence over a jury recommendation of death. The ambiguity centers on the phrase `imposes life imprisonment.' Although, in effect, the jury `imposes' life imprisonment, the language of the statute is that of a recommendation only. Arguably, only the court may impose a sentence. Therefore it would be realistic and beneficial to all concerned if trial judges wrote opinions in all three situations. * * *" Id. at 267-268, fn. 29.
The reasoning of this writer has its appeal, in that it would assist appellate review if a written opinion of the findings made were to be issued in every situation in which a defendant was tried for a capital offense, whatever the sentence imposed. Although the language of the statute is that the jury shall "recommend" a sentence, a reading of the statute in its entirety makes it clear that, should the jury recommend a sentence of life imprisonment, "the court shall impose the sentence recommended by the jury upon the offender." R.C.
Therefore, we find that R.C.
Appellant, in the supplemental memorandum in support of his motion to remand, cites numerous United States Supreme Court cases which have *29
established the careful scrutiny which is required in appellate review of death penalty cases, and asserts that it is a constitutional requirement that appellate review must be based upon a comparison of similar cases. He alleges that such review has been denied him. Proportionality review, which appears to be what appellant desires, is not constitutionally required. The Supreme Court specifically held that the decisions of that court do not provide a basis for a requirement of comparative proportionality review. Pulley v. Harris (1984),
After due consideration of the motions and memoranda filed with this court and the relevant law, we feel that an oral hearing upon appellant's motion to remand is not required for a resolution of the issues before us. Therefore, appellant's request for oral hearing upon his motion is hereby denied.
Thus, we find that the judgment of the court below was a final judgment. Appellant's motion to remand his case to the trial court is without merit and is hereby overruled.
Motion to remand overruled.
REILLY, P.J., and WHITESIDE, J., concur.