State v. Patterson , 2013 Ohio 1647 ( 2013 )

[Cite as State v. Patterson, 2013-Ohio-1647.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. Patricia A. Delaney, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 2012CA00098
JONATHAN T. PATTERSON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No.
2011CR1240A
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 22, 2013
APPEARANCES:
For Defendant-Appellant: For Plaintiff-Appellee:
GEORGE URBAN JOHN D. FERRERO
116 Cleveland Ave., NW, Suite 808 Prosecuting Attorney
Canton, OH 44702 KATHLEEN TATARSKY
116 Cleveland Ave. NW, Suite 808 Assistant Prosecuting Attorney
Canton, OH 44702 110 Central Plaza South – Suite 510
Canton, OH 44702-1413
Baldwin, J.
{¶1} Appellant Jonathan T. Patterson appeals a judgment of the Stark County
Common Pleas Court convicting him of aggravated murder (R.C. 2903.01(B)) with a
death penalty specification (R.C. 2929.04(A)(7)) and a firearm specification (R.C.
2941.145), and aggravated burglary (R.C. 2911.11(A)(1),(2)) with a firearm
specification. He was sentenced to life in prison without possibility of parole.
Appellee is the State of Ohio.
{¶2} On August 14, 2011, seventeen-year-old Chris Reid woke up at his
home on 10th Street N.W. in Canton, Ohio, when his friends D’Von Saunders and
appellant, who Reid knew by the street name of “J Pat,” came into his bedroom.
Appellant was eighteen years old at the time. He and Saunders were driving a blue
Chrysler Sebring convertible they got the night before at a party. They asked Reid
where they could “get to lick on some weed.” Reid understood this to mean they
wanted to rob someone for marijuana. When Reid could not help them, they left.
{¶3} Myron Roberson called appellant looking for a ride. After picking up
Roberson, they parked the car and began to walk around the neighborhood near 9th
and 10th Streets with Ronnie Lawson and Jentry Ross. Ross was looking for a ride to
the Chips Apartments because his “baby mom” and daughter were on their way from
Columbus. The group discussed robbing someone for marijuana and for gas money
to get to Chips.
{¶4} The five boys ended up at the home of Melvin Hope on 11th Street. They
knocked on the door and when Hope answered, they asked for Hope’s two sons,
Melvin and Jeremy. He replied that the boys were not home. Saunders smelled weed
when Hope opened the door. Saunders also told the group that there were “bands in
the house,” meaning a stack of bills of over $5,000.
{¶5} The group walked to Westbrook Park frustrated because some of them
wanted to rob someone for money and drugs, and some did not want to rob anyone.
Appellant wanted to rob someone and said, “I’m going to get some money.” Saunders
gave appellant a .22 caliber Heritage Rough Rider revolver with an obliterated serial
number.
{¶6} Appellant and Roberson went to Hope’s house and rushed the door.
Roberson saw the handle of the revolver on appellant’s hip and saw appellant
wrestling with Hope. He heard a “pop,” followed by two more “pops.” Roberson was
heading up the stairs at the time, but ran away after hearing the pops. He heard Hope
screaming for help, saying, “I ain’t got no money. I ain’t got nothing.”
{¶7} Appellant eventually caught up with Roberson on the street. Appellant
was carrying a jewelry box and a penny jar. They rejoined Saunders, Ross and
Lawson.
{¶8} The group headed to the Chips Apartments in the blue convertible.
Saunders could tell something had happened. Saunders took the gun which appellant
had placed under the car seat, wiped it off, wrapped it in his black t-shirt and put it
under the driver’s seat. In the car, Roberson said, “this shit crazy.” When Lawson
asked what was crazy, appellant told him to shut up. While the group was at Chips,
Roberson burned the “beater,” or tank top, appellant was wearing.
{¶9} Appellant, Saunders, Roberson and DeMarco Wright went to the home
of Wright’s girlfriend, Davian Jackson, to see Wright’s baby, who was six or seven
months old. Davian was excited to see Wright as he usually doesn’t come by to visit
in the summer. Saunders handed her the jewelry box taken from Hope’s home and
told her to keep it in her room. Several of the boys went in the kitchen where Davian’s
mother was making dinner, but appellant stayed in the living room. The boys
eventually left for Chips, taking the baby with them. The boys returned the baby to
Davian’s house shortly thereafter.
{¶10} In the car, appellant stated in reference to Hope that he “bodied him,”
meaning that he killed him. He told Wright that he and Roberson went into a house
intending to rob the man who lived there and the “dude end up getting shot.” He
admitted to Wright that he shot Hope. He also told Wright that he left the gun under
the couch in Davian’s house.
{¶11} Meanwhile, Chris Reid was playing video games at his house with
Jeremy and Melvin Collins, who were Hope’s sons. Reid told Melvin to get another
game controller from his house. Melvin left and then texted Jeremy from his house,
“dad hurt.”
{¶12} Canton City Patrolman Scott Fout was dispatched to the Hope home in
response to a report of a shooting. He noted a sofa table with items knocked off and
found Hope lying in a pool of blood in an archway between the dining room and living
room. Hope was conscious, but suffering from gunshot wounds to his chest and leg.
Fout searched the home and found a blood trail going to the basement and a large
puddle of blood at the bottom of the basement steps. He found no shell casings,
leading him to conclude that the gun used was a revolver. He found no signs of
forced entry. The master bedroom of Hope’s home had been ransacked and
something square appeared to be missing from a cluttered dresser top.
{¶13} Hope was transported to Mercy Medical Center where he died. The
coroner found multiple close range gunshot wounds to Hope’s body. One was found
on the left upper chest and was partially surrounded by soot and by blackening and
searing of the skin, indicating that the barrel of the gun was placed close to the skin.
This shot went through his lungs, filling the lung cavity with blood so he could not
breathe. Hope’s body was accompanied to the coroner’s office by three containers of
blood which were pumped from his body in an effort to save him. Another wound was
found in his back, also bearing signs that it was fired at close range. A third gunshot
wound was found on his thigh, which broke his right thigh bone. Hope had several
injuries to his face, possibly caused by a bullet or by impact from falling down a flight
of steps.
{¶14} Chris Reid’s mother gave police a description of the car Saunders and
appellant were driving when they came to her home on the day of the murder. The
police were able to obtain a license plate number because the car had been reported
stolen. Canton police officer Victoria Sellers spotted the car at 8:46 p.m. by the
entrance to Maggiore’s Drive Thru, across the street from a Huntington Bank branch.
Appellant was in Maggiore’s wearing a white shirt and red shorts. A store clerk told
Sellers that appellant had arrived in the Sebring. Appellant walked across the street to
the bank. Appellant and Wright were arrested.
{¶15} Two days later, a landscaper found appellant’s identification card along
with a Huntington Bank ATM card belonging to Hope on the bank lawn.
{¶16} Appellant was indicted by the Stark County Grand Jury with one count of
aggravated murder with a death penalty specification and a firearm specification, and
one count of aggravated burglary with a firearm specification. The case proceeded to
jury trial in the Stark County Common Pleas Court. Appellant was convicted as
charged, and the case proceeded to a separate penalty trial.
{¶17} The jury returned with a decision that the aggravating circumstances of
the killing did not outweigh the mitigating factors and spared appellant from the death
penalty. The jury recommended a sentenced of life in prison without the possibility of
parole. The court sentenced appellant to life without parole for aggravated murder
and three years for the firearm specification. The court sentenced appellant to ten
years incarceration for aggravated burglary, to be served consecutively. The court
merged the firearm specification for aggravated burglary into the firearm specification
for aggravated murder.
{¶18} Appellant raises five Assignments of Error:
{¶19} “I. APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST
WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶20} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING
GRUESOME PHOTOS WHICH WERE INFLAMMATORY AND HIGHLY
PREJUDICIAL.
{¶21} “III. APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND
A FAIR TRIAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH
AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I,
SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION WHEN THE TRIAL COURT
ALLOWED THE PROSECUTOR A CONTINUANCE TO SPEAK WITH A WITNESS
THAT HAD ALREADY BEEN SWORN.
{¶22} “IV. APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND
OF ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND
FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND
ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION BECAUSE HIS
TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE.
{¶23} “V. APPELLANT’S SENTENCE OF LIFE IMPRISONMENT WITHOUT
PAROLE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
I.
{¶24} In his first assignment of error, appellant argues that the judgment
convicting him of aggravated murder was against the manifest weight and sufficiency
of the evidence. He specifically argues that the evidence did not demonstrate that he
acted with purpose because he did not enter the residence intending to kill Hope, that
the testimony of Roberson that appellant was the principal offender was not credible,
and that the evidence did not show that he possessed the gun.
{¶25} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire
record, weighs the evidence and all reasonable inferences, considers the credibility of
witnesses, and determines whether in resolving conflicts in evidence the jury ‘clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St. 3d 380, 387,
1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175,
485 N.E.2d 717 (1983).
{¶26} An appellate court's function when reviewing the sufficiency of the
evidence is to determine whether, after viewing the evidence in a light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of
the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574
N.E.2d 492, paragraph two of the syllabus (1991).
{¶27} Appellant was convicted of aggravated murder in violation of R.C.
2903.01(B):
{¶28} “(B) No person shall purposely cause the death of another or the unlawful
termination of another's pregnancy while committing or attempting to commit, or while
fleeing immediately after committing or attempting to commit, kidnapping, rape,
aggravated arson, arson, aggravated robbery, robbery, aggravated burglary, burglary,
trespass in a habitation when a person is present or likely to be present, terrorism, or
escape.”
{¶29} The jury also found that appellant was the principal offender pursuant to
the death penalty specification found in R.C. 2929.04(A)(7):
{¶30} “The offense was committed while the offender was committing,
attempting to commit, or fleeing immediately after committing or attempting to commit
kidnapping, rape, aggravated arson, aggravated robbery, or aggravated burglary, and
either the offender was the principal offender in the commission of the aggravated
murder or, if not the principal offender, committed the aggravated murder with prior
calculation and design.”
{¶31} Appellant was also convicted of a firearm specification in violation of
R.C. 2941.145(A), which provides in pertinent part:
{¶32} “(A) Imposition of a three-year mandatory prison term upon an offender
under division (B)(1)(a) of section 2929.14 of the Revised Code is precluded unless
the indictment, count in the indictment, or information charging the offense specifies
that the offender had a firearm on or about the offender's person or under the
offender's control while committing the offense and displayed the firearm, brandished
the firearm, indicated that the offender possessed the firearm, or used it to facilitate
the offense.”
{¶33} Appellant first argues that the evidence does not support a finding that
he purposely caused the death of Hope. Purposely is defined by R.C. 2901.22(A):
{¶34} “(A) A person acts purposely when it is his specific intention to cause a
certain result, or, when the gist of the offense is a prohibition against conduct of a
certain nature, regardless of what the offender intends to accomplish thereby, it is his
specific intention to engage in conduct of that nature.”
{¶35} Appellant argues that there is no evidence that when he entered the Hope
residence, he intended to kill Mr. Hope. However, the definition of purposely does not
require that he have intended to kill Hope when he entered the residence. There is
evidence that supports the jury’s finding that appellant pulled the trigger of the gun
intending to kill Mr. Hope. Larry Mackey of the Stark County Crime Laboratory tested
the gun and testified that it was a single action revolver, meaning the shooter would
have to pull the hammer of the gun and then pull the trigger each time to expel a bullet.
Three bullets were removed from Hope’s body. There was evidence that the gunshot
wound to Hope’s left upper chest was partially surrounded by soot and the skin was
somewhat seared and blackened in the area, which demonstrated that the barrel of the
gun was placed close to the skin. The bullet wound on Hope’s back also had
gunpowder surrounding it, which demonstrated that it was a very close gunshot wound.
From this evidence, the jury could conclude that appellant purposely caused the death
of Hope, and the jury’s finding is not against the manifest weight of the evidence.
{¶36} Appellant next argues that there was no credible evidence to prove that he
was the principal offender. He argues that Roberson’s testimony is not credible
because his charge of complicity to aggravated murder was amended to complicity to
murder in exchange for his testimony against appellant. He argues Roberson had
previously lied to police, that he was the only one who heard appellant say he “bodied”
Hope, and that Roberson’s behavior in burning appellant’s shirt and his nervousness on
the day of the shooting is consistent with Roberson being the principal offender.
{¶37} Roberson testified that when he and appellant entered the Hope
residence, he could see a gun handle on appellant’s hip. While in the residence,
Roberson testified that he heard several “pops” and then he fled the home. Roberson
testified that appellant later said he “bodied” Hope, meaning he killed him.
{¶38} While there are inconsistencies between the testimony of the witnesses
concerning what happened on the day in question, Roberson’s testimony is not the only
testimony supporting the jury’s finding that appellant was the principal offender.
DeMarco Wright testified that appellant admitted to him that he shot Hope. D’Von
Saunders testified that he gave appellant the gun and that appellant planned to rob
someone to get some money. Further, appellant’s shorts were tested. Lead residue
was found in the right front pocket and Hope’s blood was found in several areas of
appellant’s shorts.
{¶39} Roberson testified concerning his plea agreement with the state and
admitted to lying to the police in a previous statement. However, the jury had the
opportunity to assess Roberson’s credibility on the stand and apparently determined he
was telling the truth at trial. Based on the evidence presented, the finding that appellant
was the principal offender is not against the manifest weight or sufficiency of the
evidence.
{¶40} Finally, appellant argues the evidence does not demonstrate that he
possessed the gun. Saunders testified that he gave appellant the gun. Roberson
testified that he saw the handle sticking out of appellant’s shorts. Appellant admitted to
Wright that he hid the gun under Davian’s couch, where police eventually recovered the
gun. Lead residue was found in the right front pocket of appellant’s shorts. The finding
that appellant possessed a firearm during the commission of the offense is not against
the manifest weight or sufficiency of the evidence.
{¶41} The first assignment of error is overruled.
II.
{¶42} In his second assignment of error, appellant argues that the court abused
its discretion in admitting State’s Exhibit 18F into evidence, which is an autopsy
photograph showing plastic containers of blood withdrawn at the hospital in an effort to
save Hope’s life. Appellant argues the photo has no probative value and its only
purpose was to inflame the emotions of the jury.
{¶43} The admission of photographic evidence is left to the discretion of the
trial court. State v. Maurer, 15 Ohio St.3d 239, 264, 473 N.E.2d 768, 791 (1984);
State v. Morales, 32 Ohio St.3d 252, 257, 513 N.E.2d 267, 273 (1987). In order to find
an abuse of that discretion, we must determine the trial court's decision was
unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d
217, 450 N.E.2d 1140 (1983).
{¶44} Relevant, non-repetitive photographs, even if gruesome, are admissible
if the probative value of each photograph exceeds the prejudicial impact to the
accused. Maurer, supra, at paragraph seven of the syllabus; Morales, supra, at 257.
{¶45} The photograph in question shows three plastic hospital containers
sitting on the autopsy table near the lower half of Hope’s body. In overruling
appellant’s objection to this photo, the trial court stated:
{¶46} “And I would include in that that Exhibit 18F is probably the least
gruesome of all the photos in the entire array because it doesn’t show anything other
than the fact that it shows some vials on a table of some type. I can’t even tell what
they are.”
{¶47} Having viewed the photograph, we agree with the court’s description of
the photograph. Further, the coroner testified that the containers of blood depicted in
the photograph were important to his determination as to the cause of death, because
the amount of blood pumped out of Hope supported the fact that he probably bled to
death from his lungs and other wounds. Tr. 1167-1168.
{¶48} The trial court did not abuse its discretion in determining that the
probative value of Exhibit 18F outweighed its prejudicial effect. The second
assignment of error is overruled.
III.
{¶49} In his third assignment of error, appellant argues the court erred in
allowing the State to have a continuance to talk to Roberson after he had been sworn
as a witness.
{¶50} After Roberson had been sworn in as a witness, he answered questions
concerning how long he had known appellant and the details of his plea agreement.
The State asked him to explain where he was and what he was doing at the beginning
of the day of the murder. Roberson said, “I don’t want to talk.” Tr. 877. The court
gave the State a short recess to talk to Roberson. The record reflects that the court
recessed at 1:28 p.m. and reconvened at 1:38 p.m. Later in the trial, the State put on
the record what occurred during this recess. The State represented that Roberson
was reminded that the terms of his plea agreement required his truthful testimony. His
mother did most of the talking, and urged him to “be a man” and do the right thing. Tr.
1147. She further told Roberson not to look at appellant while testifying, and that she
wanted him to do the right thing for the sake of the victim’s family and so he would
have a chance to get out of prison when he is 36 or 37 years old. Tr. 1148. The State
further noted that the conversation took about six minutes and Roberson was crying
while his mother talked to him.
{¶51} We first note that appellant did not object to the recess to allow the State
to talk to Roberson. Because appellant failed to object, we must find plain error in
order to reverse. To prevail under a plain error analysis, appellant bears the burden of
demonstrating that the outcome of the trial clearly would have been different but for
the error. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978). Notice of plain
error “is to be taken with the utmost caution, under exceptional circumstances and
only to prevent a manifest miscarriage of justice.” Id. at paragraph three of the
syllabus.
{¶52} While appellant argues that this was a continuance, the record reflects
that the State was not given a continuance, but rather the court recessed for ten
minutes to allow the State to talk to Roberson. In State v. Heiberger, 6th Dist. No. E-
84-54, 1985 WL 7544 (July 19, 1985), the court granted the state a recess to allow the
fourteen-year-old victim-witness to talk to her caseworker to calm the witness down.
The Court of Appeals for the Sixth District found that the conduct of trial proceedings
is largely discretionary with the trial court. Id. The court held that the record reflected
that the witness was very nervous, the defendant was permitted to cross-examine her
concerning what happened during the recess, and the record did not reflect that the
witness had been coached; therefore, the defendant failed to demonstrate prejudice.
Id.{¶53} In the instant case, appellant cross-examined Roberson about what
occurred during the recess. Tr. 903-905. The record reflects that Roberson was
merely reminded of his plea agreement and his mother urged him to follow through
with his agreement to testify truthfully against appellant. Appellant has not
demonstrated plain error in this ten-minute recess.
{¶54} The third assignment of error is overruled.
IV.
{¶55} In his fourth assignment of error, appellant argues that his counsel was
ineffective for failing to object to jury instructions on R.C. 2929.04(A)(7) which omitted
the element of prior calculation and design, and for failing to object to the State’s
amendment of the indictment for aggravated burglary which eliminated the “aid and
abet” language. He argues that the combination of these errors gave the jury no
opportunity to find that appellant was not the principal offender, and the jury was faced
with a choice of finding him not guilty or finding that he was the principal offender.
{¶56} A properly licensed attorney is presumed competent. State v. Hamblin,
37 Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of
ineffective assistance of counsel, appellant must show counsel's performance fell
below an objective standard of reasonable representation and but for counsel’s error,
the result of the proceedings would have been different. Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley , 42 Ohio St.3d
136, 538 N.E.2d 373 (1989). In other words, appellant must show that counsel’s
conduct so undermined the proper functioning of the adversarial process that the trial
cannot be relied upon as having produced a just result. Id.{¶57} The death penalty specification found in R.C. 2929.04(A)(7) provides,
“The offense was committed while the offender was committing, attempting to commit,
or fleeing immediately after committing or attempting to commit kidnapping, rape,
aggravated arson, aggravated robbery, or aggravated burglary, and either the offender
was the principal offender in the commission of the aggravated murder or, if not the
principal offender, committed the aggravated murder with prior calculation and
design.” However, the indictment charged appellant solely with being the principal
offender and did not include the statutory language concerning prior calculation and
design. The trial court’s instruction used the language in the indictment and required
the jury to find that appellant was the principal offender to find him guilty of the
specification. Presenting the jury with the language concerning prior calculation and
design would have created confusion, as the State’s theory of the case was that
appellant was the principal offender, and appellant’s theory of the case was that he
was not the principal offender.
{¶58} Further, appellant cannot demonstrate that he was prejudiced by the
State’s amendment to the indictment to remove the “aid and abet” element of
aggravated burglary. If the jury accepted appellant’s defense that he was not the
principal offender, the jury would have had no choice but to acquit appellant. The
removal of the aid and abet language thus aided appellant’s defense.
{¶59} The instructions squarely set before the jury the issue presented at trial:
whether appellant was the principal offender. Appellant has not demonstrated that
counsel was ineffective for failing to object to the instructions.
{¶60} The fourth assignment of error is overruled.
V.
{¶61} In his final assignment of error, appellant argues that the sentence of life
imprisonment without parole is against the manifest weight of the evidence.
{¶62} Appellant was sentenced to life without the possibility of parole pursuant
to R.C. 2929.03(D)(2), which provides in pertinent part:
{¶63} “(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 one of the following:
{¶64} “(a) Except as provided in division (D)(2)(b) or (c) of this section, to life
imprisonment without parole, life imprisonment with parole eligibility after serving
twenty-five full years of imprisonment, or life imprisonment with parole eligibility after
serving thirty full years of imprisonment ***
{¶65} “If the trial jury recommends that the offender be sentenced to life
imprisonment without parole, life imprisonment with parole eligibility after serving
twenty-five full years of imprisonment, life imprisonment with parole eligibility after
serving thirty full years of imprisonment, or an indefinite term consisting of a minimum
term of thirty years and a maximum term of life imprisonment to be imposed pursuant
to division (B)(3) of section 2971.03 of the Revised Code, the court shall impose the
sentence recommended by the jury upon the offender.”
{¶66} Pursuant to this section, the court has no discretion in imposing the
sentence recommended by the jury; the statute expressly states that the court shall
impose the sentence recommended by the jury.
{¶67} R.C. 2953.08(D) governs review of felony sentencing. R.C.
2953.08(D)(3) provides, “A sentence imposed for aggravated murder or murder
pursuant to sections 2929.02 to 2929.06 of the Revised Code is not subject to review
under this section.” The Ohio Supreme Court has held that this is unambiguous: a
sentence for aggravated murder imposed pursuant to R.C. 2929.02 to R.C. 2929.06
cannot be reviewed. State v. Porterfield, 106 Ohio St. 3d 5, 829 N.E.2d 690, 2005-
Ohio-3095, ¶17. Therefore, evidentiary review of a sentence imposed by a trial court
pursuant to R.C. 2929.03(D)(2) is precluded. State v. McDowell, 10th Dist. No. 03AP-
1187, 2005-Ohio-6959, ¶73, overruled on other grounds, In re Ohio Criminal
Sentencing Statutes Cases, 109 Ohio St.3d 411, 848 N.E.2d 809, 2006-Ohio-2394 .
{¶68} The Court of Appeals for the 8th District discussed the longstanding
history of treating aggravated murder sentencing differently from other felony
sentencing in concluding that a sentence of life imprisonment without parole imposed
by a three-judge panel pursuant to R.C. 2929.03 is not reviewable by the appellate
court:
{¶69} “The General Assembly's practice of treating sentencing for aggravated
murder and murder convictions differently from other felonies is longstanding. Before
the 1996 Senate Bill 2 felony sentencing amendments, the courts likewise held that the
general felony sentencing requirements did not apply in aggravated murder cases.
E.g., State v. Richards (Dec. 15, 1997), Clermont App. No. CA97-06-059, unreported,
1997 WL 779084. Defendant has shown nothing to indicate that the General Assembly
intended to change this well-established sentencing practice and the comprehensive
sentencing scheme in aggravated murder and murder cases.” State v. Hollingsworth,
143 Ohio App. 3d 562, 569, 758 N.E.2d 713 (8th Dist. 2001).
{¶70} Pursuant to R.C. 2953.08(D)(3) and case law interpreting this statute,
this Court is without statutory authority to review appellant’s sentence on an
evidentiary basis. The fifth assignment of error is overruled.
{¶71} The judgment of the Stark County Common Pleas Court is affirmed.
Costs assessed to appellant.
By: Baldwin, J.
Gwin, P.J. and
Delaney, J. concur.
HON. CRAIG R. BALDWIN
HON. W. SCOTT GWIN
HON. PATRICIA A. DELANEY
CRB/rad
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
:
STATE OF OHIO :
:
Plaintiff - Appellee : JUDGMENT ENTRY
:
:
-vs- :
: Case No. 2012CA0098
JONATHAN T. PATTERSON :
:
Defendant - Appellant :
:
For the reasons stated in our accompanying Opinion on file, the judgment of the
Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. CRAIG R. BALDWIN
HON. W. SCOTT GWIN
HON. PATRICIA A. DELANEY