State v. Hilliard , 2015 Ohio 3142 ( 2015 )

[Cite as State v. Hilliard, 2015-Ohio-3142.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102214
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RUDOLPH HILLIARD
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-10-535768-A
BEFORE: E.A. Gallagher, P.J., Kilbane, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: August 6, 2015
ATTORNEY FOR APPELLANT
Joseph V. Pagano
P.O. Box 16869
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Mary McGrath
Brent Kirvel
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:
{¶1} Defendant-appellant Rudolph Hilliard appeals his convictions and sentences
following his guilty pleas to aggravated murder in violation of R.C. 2903.01(A), and
kidnapping in violation of R.C. 2905.01(A)(2). He contends that he was improperly
convicted of allied offenses of similar import and that his sentence on the aggravated
murder count was contrary to law because the trial court failed to properly consider the
principles and purposes of sentencing under R.C. 2929.11 and the relevant statutory
factors under R.C. 2929.12 when sentencing him. For the reasons that follow, we affirm
Hilliard’s convictions and sentences.
Factual and Procedural Background
{¶2} Hilliard’s convictions arose out of a March 22, 2010 incident1 in which
Hilliard killed 22-year-old Shafon Tucker, with whom he had been in a romantic but
abusive relationship. On March 22, 2010, Hilliard left work, claiming that his mother
had died in a car accident. He repeatedly texted and called Tucker and then went to her
apartment and waited for her to come home. When Tucker came home, pulled into her
driveway and got out of the car, Hilliard “was right there and knifed her to death.”
Hilliard “poke[d] her with so many holes that the undertaker had to wrap her with plastic
prior to wrapping her in clothes to keep the embalming fluid in her body.”
The facts, as related herein, are based on what was described by the state, defense counsel
1
and Tucker’s friends and family during the sentencing hearing.
{¶3} In April 2010, Hilliard was indicted by the Cuyahoga County Grand Jury on
one count of aggravated murder in violation of R.C. 2903.01(A), an unclassified felony,
and one count of kidnapping in violation of R.C. 2905.01(A)(2), a first-degree felony.
Both counts included specifications for forfeiture of a knife. On April 20, 2011, Hilliard
pled guilty to both counts as charged in the indictment, agreed to forfeit the knife he used
to murder Tucker and waived preparation of a presentence investigation report. On
April 28, 2011, the trial court held a sentencing hearing.
{¶4} After hearing from the state, Hilliard, Hilliard’s counsel, and several of
Tucker’s friends and family, the trial court sentenced Hilliard to 25 years to life on the
aggravated murder count and seven years on the kidnapping count, to be served
concurrently, as well as five years of mandatory postrelease control on the kidnapping
count, a life parole tail on the aggravated murder count and forfeiture of the knife used in
the murder.
{¶5} During the sentencing hearing, the trial court explained the basis for its
sentences as follows:
After consideration of the record, oral statements made today, the purpose
and principles of sentencing, the seriousness and recidivism factors relevant
to this offense and this offender, and the need for deterrence, incapacitation,
rehabilitation and restitution, it is ordered defendant serve a stated term of
25 years to life on Count 1 and seven years in prison on Count 2 with the
terms to be served concurrently.
{¶6} In its sentencing journal entry, dated May 2, 2011, the trial court further
stated: “The court considered all required factors of the law. The court finds that prison
is consistent with the purpose of R.C. 2929.11.”2
{¶7} The issue of whether the aggravated murder and kidnapping counts were
allied offenses of similar import was not raised by either party and was not otherwise
addressed by the trial court during sentencing.
{¶8} In December 2014, Hilliard was granted leave to file a delayed appeal. He
raises the following two assignments of error for review:
ASSIGNMENT OF ERROR I:
The trial court erred by failing to merge allied offenses of similar import
and by imposing separate sentences for allied offenses which violated
appellant’s state and federal rights to due process and protections against
double jeopardy.
ASSIGNMENT OF ERROR II:
Whether the trial court’s sentence is supported by the record or is contrary
to law.
Law and Analysis
Allied Offenses of Similar Import
{¶9} In his first assignment of error, Hilliard argues that the trial court violated his
due process rights and the prohibition against double jeopardy by failing to merge his
aggravated murder and kidnapping convictions for sentencing and by imposing separate
The trial court’s May 2, 2011 sentencing journal entry incorrectly referred to the aggravated
2
murder count as a first-degree felony. On June 14, 2011, the trial court issued a nunc pro tunc entry
correcting the error and indicating that the aggravated murder count was an unclassified felony.
sentences for allied offenses of similar import. He argues that the sentences should be
vacated and the matter remanded to the trial court for resentencing and merger of the
allied offenses.
{¶10} The Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution states, in relevant part, that “[n]o person shall * * * be subject for the same
offense to be twice put in jeopardy of life or limb.” This clause, among other things,
“protect[s] against the imposition of multiple punishments for the same offense.” State v.
Rogers, Slip Opinion No. 2015-Ohio-2459, ¶ 16, citing Hudson v. United States, 522 U.S.
93, 99, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), and State v. Raber, 134 Ohio St.3d 350,
2012-Ohio-5636, 982 N.E.2d 684, ¶ 24. This protection applies to Ohio citizens through
the Fourteenth Amendment to the United States Constitution and is also guaranteed by
Article I, Section 10 of the Ohio Constitution. State v. Ruff, Slip Opinion No.
2015-Ohio-995, ¶ 10, citing Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23
L.Ed.2d 707 (1969).
{¶11} “[W]hen multiple punishments are imposed in the same proceeding,”
however, “the Double Jeopardy Clause does no more than prevent the sentencing court
from prescribing greater punishment than the legislature intended.” Rogers at ¶ 16,
citing Garrett v. U.S., 471 U.S. 773, 793, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985),
Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), and State
v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 8; see also Ruff at ¶ 11.
As the Ohio Supreme Court has recognized, “[a]bsent a more specific legislative
statement, R.C. 2941.25 is the primary indication of the General Assembly’s intent to
prohibit or allow multiple punishments for two or more offenses resulting from the same
conduct.” State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶
11, citing State v. Childs, 88 Ohio St.3d 558, 561, 728 N.E.2d 379 (2000).
{¶12} R.C. 2941.25 provides:
(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information
may contain counts for all such offenses, but the defendant may be
convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus as
to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
{¶13} Thus, under R.C. 2941.25, a defendant charged with more than one offense
arising from the same incident may be convicted of multiple offenses only “if any one of
the following is true: (1) the conduct constitutes offenses of dissimilar import, (2) the
conduct shows that the offenses were committed separately, or (3) the conduct shows that
the offenses were committed with separate animus.” Ruff at ¶ 13, citing State v. Moss,
69 Ohio St.2d 515, 519, 433 N.E.2d 181 (1982).
{¶14} We note that the Ohio Supreme Court has held on a number of occasions
that aggravated murder and kidnapping are not allied offenses of similar import under
R.C. 2941.25. See, e.g., State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857
N.E.2d 547, ¶ 51; State v. Coley, 93 Ohio St.3d 253, 265, 754 N.E.2d 1129 (2001); State
v. Keenan, 81 Ohio St.3d 133, 154, 689 N.E.2d 929 (1998); State v. Jells, 53 Ohio St.3d
22, 32-33, 559 N.E.2d 464 (1990). However, these cases pre-dated Ruff.
{¶15} In Ruff, supra, the Ohio Supreme Court clarified the test courts must employ
in determining whether two or more offenses arising out of the same incident are allied
offenses that merge into a single conviction under R.C. 2941.25, stating:
When the defendant’s conduct constitutes a single offense, the defendant
may be convicted and punished only for that offense. When the conduct
supports more than one offense, however, a court must conduct an analysis
of allied offenses of similar import to determine whether the offenses merge
or whether the defendant may be convicted of separate offenses. R.C.
2941.25(B).
A trial court and the reviewing court on appeal when considering whether
there are allied offenses that merge into a single conviction under R.C.
2941.25(A) must first take into account the conduct of the defendant. In
other words, how were the offenses committed? If any of the following is
true, the offenses cannot merge and the defendant may be convicted and
sentenced for multiple offenses (1) the offenses are dissimilar in import or
significance — in other words, each offense caused separate, identifiable
harm, (2) the offenses were committed separately, and (3) the offenses were
committed with separate animus or motivation.
At its heart, the allied-offense analysis is dependent upon the facts of a case
because R.C. 2941.25 focuses on the defendant’s conduct. The evidence at
trial or during a plea or sentencing hearing will reveal whether the offenses
have similar import. * * * [A] defendant’s conduct that constitutes two or
more offenses against a single victim can support multiple convictions if the
harm that results from each offense is separate and identifiable from the
harm of the other offense. We therefore hold that two or more offenses of
dissimilar import exist within the meaning of R.C. 2941.25(B) when the
defendant’s conduct constitutes offenses involving separate victims or if the
harm that results from each offense is separate and identifiable.
Ruff, Slip Opinion No. 2015-Ohio-995, at ¶ 24-26.
{¶16} Hilliard, however, did not raise an allied offense issue or otherwise object to
the sentences imposed by the trial court. Rather, Hilliard argues for the first time on
appeal that his convictions for aggravated murder and kidnapping are allied offenses of
similar import that should have merged for sentencing. By failing to seek the merger of
his convictions as allied offenses of similar import in the trial court, Hilliard has forfeited
his allied offenses claim, except to the extent it constitutes plain error. Rogers, Slip
Opinion No. 2015-Ohio-2459, at ¶ 21-25, citing State v. Quarterman, 140 Ohio St.3d
464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15-16.
{¶17} “Crim.R. 52(B) affords appellate courts discretion to correct ‘[p]lain errors
or defects affecting substantial rights’ notwithstanding the accused’s failure to meet his
obligation to bring those errors to the attention of the trial court.” Rogers at ¶ 22. The
defendant “bears the burden of proof to demonstrate plain error on the record.” Id.,citing Quarterman at ¶ 16. To demonstrate plain error, the defendant must show “an
error, i.e., a deviation from a legal rule” that was “an ‘obvious’ defect in the trial
proceedings,” and that the error “affected a substantial right,” i.e., the defendant must
demonstrate a “reasonable probability” that the error resulted in prejudice, affecting the
outcome of the trial. Rogers at ¶ 22; State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d
1240 (2002). “We recognize plain error ‘with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.’” Lyndhurst v.
Smith, 8th Dist. Cuyahoga No. 101019, 2015-Ohio-2512, ¶ 32, quoting State v. Landrum,
53 Ohio St.3d 107, 110, 559 N.E.2d 710 (1990).
{¶18} Hilliard was convicted of aggravated murder in violation of R.C.
2903.01(A), and kidnapping in violation of R.C. 2905.01(A)(2). R.C. 2903.01(A)
provides, in relevant part: “No person shall purposely, and with prior calculation and
design, cause the death of another * * *.” R.C. 2905.01(A)(2) provides, in relevant part:
“No person, by force, threat, or deception * * * shall remove another from the place
where the other person is found or restrain the liberty of the other person * * * [t]o
facilitate the commission of any felony or flight thereafter.” Hilliard claims that the
aggravated murder and kidnapping counts were committed by the same conduct with a
single animus against the same victim and that the two offenses, therefore, should have
merged for sentencing.
{¶19} Under Ruff, as stated above, the allied-offense analysis “is dependent upon
the facts of a case because R.C. 2941.25 focuses on the defendant’s conduct.” Ruff, Slip
Opinion No. 2015-Ohio-995, at ¶ 26. “[T]he analysis must focus on the defendant’s
conduct * * * because an offense may be committed in a variety of ways and the offenses
committed may have different import. No bright-line rule can govern every situation.”
Id. at ¶ 30.
{¶20} Hilliard asserts that the facts set forth in the bill of particulars and the state’s
description of the incident during the sentencing hearing indicate that the aggravated
murder and kidnapping counts were allied offenses of similar import because “[t]here is
no statement or factual basis * * * that would indicate or suggest an independent crime of
kidnapping.” He contends that the bill of particulars describes “a single event” and that
because “the prosecutor stated at sentencing that appellant knifed the victim as soon as
she got out of her car,” “[a]ny restraint of the victim was incidental to the purpose alleged
in [the aggravated murder] count” and did not support a separate kidnapping conviction.
{¶21} The bill of particulars provides, in relevant part:
Responding to the request of the Defendant, Rudolph Hilliard, for a Bill of
Particulars, the Prosecuting Attorney says that the State of Ohio will prove
on the trial of the above-entitled case, the following:
Aggravated Murder, 2903.01(A)
That on or about March 22, 2010, and at the location of 1105 East
71st St., Cleveland, OH 44103, the Defendant, Rudolph Hilliard, did
purposely, and with prior calculation and design, cause the death of Shafon
Z. Tucker contrary to the form of the statute in such case made and
provided, and against the peace and dignity of the State of Ohio. * * *
Kidnapping, 2905.01(A)(2)
That on or about March 22, 2010, and at the location of 1105 East
71st St., Cleveland, OH 44103, the Defendant, Rudolph Hilliard, did, by
force, threat, or deception, purposely remove Shafon Z. Tucker from the
place where she was found or restrain the liberty of her for the purpose of
facilitating the commission of a felony to wit: Aggravated Murder, R.C.
2903.01(A) or flight thereafter contrary to the form of the statute in such
case made and provided, and against the peace and dignity of the State of
Ohio. * * *
{¶22} With respect to the description of the incident provided by the prosecutor,
the prosecutor stated only that “[Hilliard] went up and sat at 71st and St. Clair where she
lived in this new apartment * * * and waited for her to come home and got her, caught her
coming in this long driveway, followed her. When she got out of her car, he was right
there and knifed her to death.” Significantly, the prosecutor did not state, as Hilliard
contends, that Hilliard “knifed the victim as soon as she got out of the car.” (Emphasis
added.) Neither the bill of particulars nor the transcript from the sentencing hearing
outlines the specific facts that led to Hilliard’s kidnapping conviction or its relationship to
his aggravated murder conviction, and there is nothing else in the record that contains this
information. In particular, there is nothing in the record that indicates how the
kidnapping was committed — i.e., did Hilliard move Tucker or restrain her liberty, did he
do so by force, threat or deception, where did the conduct giving rise to the kidnapping
conviction occur and when and for how long did it occur? The “very limited facts” in
the record regarding Hilliard’s conduct during the incident are insufficient for us to
perform an analysis under Ruff of whether the kidnapping and aggravated murder
offenses are allied offenses of similar import.
{¶23} Acknowledging the sparse factual information in the record, Hilliard argues,
in the alternative, that even if the record contains insufficient information to determine
whether the offenses are allied, “this * * * still compels reversal for plain error” based on
this court’s decision in State v. Rogers, 2013-Ohio-3235, 994 N.E.2d 499 (8th Dist.).
However, this decision was reversed, in relevant part, by the Ohio Supreme Court in
Rogers, Slip Opinion No. 2015-Ohio-2459.
{¶24} As it relates to this case, Rogers involved “the effect of a trial court’s failure
to inquire or address an allied-offense question where it is clear from a facial review of
the charges that the offenses may be allied, even when the facts necessary to determine
the conduct of the offender are missing.” Rogers, 2013-Ohio-3235, at ¶ 24. In Rogers,
the defendant was indicted on two counts of receiving stolen property — one count for a
pickup truck and one count for tires and rims — and one count of possessing criminal
tools, i.e., a jack, tow chain and lug-nut wrench. Rogers, Slip Opinion No.
2015-Ohio-2459, at ¶ 8. The defendant, Rogers, entered guilty pleas to each of the
counts, and the trial sentenced him to 12 months in prison for receiving the stolen truck,
six months for receiving the tires and rims and six months for possession of criminal
tools, to be served consecutively. Id. at ¶ 10. There was no discussion of allied
offenses at the sentencing hearing, and Rogers did not otherwise object to the sentences
imposed by the trial court. Id. On appeal, Rogers argued for the first time that his
convictions should have merged for sentencing. Id. at ¶ 11. Applying a plain error
analysis, this court affirmed Rogers’s convictions and sentences, stating that it could not
find plain error because there were insufficient facts in the record from which it could be
determined whether an error had occurred. State v. Rogers, 2013-Ohio-1027, 990
N.E.2d 1085, ¶ 18-19 (8th Dist.). We then, sua sponte, granted en banc consideration.
This court, sitting en banc, observed that the receiving stolen property offenses involved
the same victim and the possession of criminal tools offense occurred on the same date as
the receiving stolen property offenses but noted that it was unclear from the record
whether the tires and rims were from the stolen pickup truck or another vehicle or how
the criminal tools were related to either of the receiving stolen property offenses, stating
“[t]here are simply no facts in the record to aid in our mandated de novo review of the
issue.” Rogers, 2013-Ohio-3235, at ¶ 25. This court concluded where it is clear from a
facial review of the charges that two offenses may be allied offenses of similar import but
the facts necessary to determine the conduct of the offender are missing, the trial court
has “a duty to inquire and determine under R.C. 2941.25 whether those offenses should
merge” for sentencing and that a defendant’s failure to raise an allied offense of similar
import issue in the trial court is not a bar to appellate review of the issue. Id. at ¶ 63.
{¶25} Based on a conflict with a Sixth District decision, this court certified two
issues relevant to our analysis in this case to the Ohio Supreme Court:
(1) Whether a trial court commits plain error where multiple offenses
present a facial question of allied offenses of similar import, yet the trial
court fails to determine whether those offenses should merger under R.C.
2941.25 at sentencing; and
(2) Whether the failure of a defendant to raise an allied-offense issue or to
object in the trial court can constitute an effective waiver or forfeiture of a
defendant’s constitutional rights against double jeopardy and a bar to
appellate review of the issue when the record is silent on the defendant’s
conduct?
Rogers, Slip Opinion No. 2015-Ohio-2459, at ¶ 1.
{¶26} The Ohio Supreme Court answered each of these questions in the negative,
“revers[ing] the judgment of [this court] that [was] based on its holding that a trial court
has a duty to inquire about allied offenses if the defense fails to raise it at sentencing” and
reinstating the sentences imposed by the trial court. Id. at ¶ 3, 6. The court explained:
An accused’s failure to raise the issue of allied offenses of similar
import in the trial court forfeits all but plain error, and a forfeited error is
not reversible error unless it affected the outcome of the proceeding and
reversal is necessary to correct a manifest miscarriage of justice.
Accordingly, an accused has the burden to demonstrate a reasonable
probability that the convictions are for allied offenses of similar import
committed with the same conduct and without a separate animus; and,
absent that showing, the accused cannot demonstrate that the trial court’s
failure to inquire whether the convictions merge for purposes of sentencing
was plain error.
***
In this case, it is undisputed that Frank Rogers failed to object to his
sentences in the trial court; thus, he forfeited appellate review of the
argument that he had been sentenced for allied offenses of similar import.
And because he has failed to demonstrate that he has, in fact, been
sentenced for allied offenses of similar import committed with the same
conduct and without separate animus, his claim that the trial court
committed plain error fails.
Id. at ¶ 3, 5. As applied to the specific facts of Rogers’s case, the court further stated:
There may be instances when a court’s failure to merge allied offenses can
constitute plain error, but this case does not present one of those instances.
Rogers failed to demonstrate any probability that he has, in fact, been
convicted of allied offenses of similar import committed with the same
conduct and with the same animus, and he therefore failed to show any
prejudicial effect on the outcome of the proceeding.
It is entirely reasonable for a court to infer in this case that Rogers
received or retained the stolen truck and then removed the tires and rims in
order to dispose of them, thereby committing separate and distinct acts
resulting in two separate and distinct counts of [receiving stolen property
(“RSP”)], one for receiving or retaining the truck and the other for
disposing of the tires and rims. The elements of [possession of criminal
tools (“PCT”)] (R.C. 2923.24) are distinct from the elements of RSP (R.C.
2913.51), and thus, that offense was not committed by the same act and is
not an allied offense of the RSP counts. Tellingly, Rogers has not argued
that he committed these offenses together and with the same animus, and
the trial court therefore reasonably sentenced him on each of these separate
convictions.
Id. at ¶ 25-26.
{¶27} The court held that unless a defendant shows, based on the record, a
reasonable probability that his convictions are for allied offenses of similar import
committed with the same conduct and without a separate animus, he cannot demonstrate
that the trial court’s failure to inquire whether the convictions merged for sentencing was
plain error. Id. at ¶ 29. Because Rogers had not met his burden, there was no plain
error. Id.
{¶28} This case shares a number of similarities with Rogers. As in Rogers,
Hilliard argued for the first time on appeal that his convictions should have merged for
sentencing, forfeiting all but plain error review. As in Rogers, the facts in the record
here are insufficient to enable us to determine whether Hilliard’s kidnapping and
aggravated murder convictions involve allied offenses of similar import. Accordingly,
based on Rogers, we are compelled to find that Hilliard failed to meet his burden of
demonstrating a reasonable probability that his convictions constituted allied offenses of
similar import.3 The trial court, therefore, did not commit plain error in failing to merge
Hilliard’s aggravated murder and kidnapping convictions for sentencing. Hilliard’s first
assignment of error is overruled.
Claim that Sentence Not Supported By the Record and Contrary to Law
{¶29} In his second assignment of error, Hilliard contends that his sentence of 25
years to life on the aggravated murder count is clearly and convincingly contrary to law
under R.C. 2953.08(G)(2)(b). He argues that “his offender characteristics and the facts
3
In its brief, the state acknowledges that the trial court engaged in no allied offense analysis
during sentencing and asserts that the matter should be remanded so that either (1) the trial court may
conduct a hearing to determine whether Hilliard’s offenses were allied offenses of similar import
based on the analysis set forth in Ruff, supra, or (2) for the state to elect to have Hilliard sentenced on
the aggravated murder count. The state’s brief, however, was filed before the Ohio Supreme Court
decided Rogers, supra.
that were placed on the record” do not support the imposition of a sentence greater that
the minimum term of 20 years to life and that, because the trial court “made no findings
and gave no reasons” for its sentence, this court should modify his sentence to the
minimum term of 20 years to life or remand the case to the trial court to impose a reduced
sentence. Specifically, he argues that the fact that he was remorseful and had no prior
criminal record (apart from prior incidents of abuse involving Tucker), the fact that the
crime “stemmed from a failed relationship that seemed to have provoked [Hilliard’s]
behavior” and unspecified mitigating factors revealed in his psychological examination
warranted a lesser sentence, based on the purposes and principles of sentencing set forth
in R.C. 2929.11 and the seriousness and recidivism factors set forth in R.C. 2929.12.
Hilliard’s argument lacks merit.
{¶30} R.C. 2953.08(D)(3) expressly “excludes sentences imposed for aggravated
murder * * * from appellate review.” State v. White, 8th Dist. Cuyahoga No. 101576,
2015-Ohio-2387, ¶ 67-68 (defendant’s claim that sentences imposed on murder and
aggravated murder counts were contrary to law because trial court did not engage in a
proportionality analysis was not subject to appellate review under R.C. 2953.08(D)(3)),
citing State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, ¶ 19.
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.” As this court has previously explained, “the general felony sentencing
statutes are inapplicable to aggravated murder because ‘aggravated murder is governed by
a special statutory scheme, carries a mandatory punishment, is not classified by degree of
felony, and is expressly exempted from * * * sentencing requirements inapplicable to
felonies of lesser degrees.’” State v. Jackson, 8th Dist. Cuyahoga No. 100125,
2014-Ohio-3583, ¶ 62, quoting State v. Hollingsworth, 143 Ohio App.3d 562, 567-568,
758 N.E.2d 713 (8th Dist.2001). Hilliard was sentenced for aggravated murder pursuant
to R.C. 2929.03. Accordingly, R.C. 2953.08(D)(3) applies. Neither Hilliard nor the
state discussed the applicability of R.C. 2953.08(D)(3) in their briefs.
{¶31} The Ohio Supreme Court has held that R.C. 2953.08(D)(3) is
“unambiguous” and “clearly means what it says: such a sentence cannot be reviewed.”
Porterfield at ¶ 17; see also Jackson at ¶ 61-64 (rejecting defendant’s claim that trial
court failed to consider his mental illness as a mitigating factor under R.C. 2929.12,
noting that “evidentiary review of a sentence imposed by a trial court pursuant to R.C.
2929.03(A)(1)(a) is precluded”); State v. Hawkins, 4th Dist. Gallia No. 13CA3,
2014-Ohio-1224, ¶ 13-15 (appellate court lacked statutory authority to consider
defendant’s argument that sentence for aggravated murder was “unreasonable” because
he “lived a primarily law-abiding life,” was “a ‘quiet, hard-working, decent person’” and
his actions against victim were “an aberration from his normal, quiet self” under R.C.
2953.08(D)(3)); State v. Jones, 2d Dist. Clark No. 2012CA61, 2013-Ohio-4820, ¶ 26
(“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.”); State
v. Patterson, 5th Dist. Stark No. 2012CA00098, 2013-Ohio-1647, ¶ 70 (same).
Accordingly, pursuant to R.C. 2953.08(D)(3), we lack statutory authority to review
Hilliard’s sentence for aggravated murder on an evidentiary basis.
{¶32} Even if we were to address Hilliard’s argument, both the trial court’s May 2,
2011 sentencing journal entry and the transcript from the sentencing hearing reflect that
the trial court considered both the purpose and principles of sentencing under R.C.
2929.11 and the relevant factors under R.C. 2929.12 when sentencing Hilliard. The
record reflects that the trial court heard and considered Hilliard’s claims of responsibility
for his actions, his remorse regarding how his actions had adversely impacted the victim’s
family and references to information regarding his background, “offer[ed] by way of
mitigation,” disclosed through “some psychiatric testing that was done.” However, the
record reflects that the trial court also heard and considered how Hilliard had previously
abused Tucker, how she had taken steps to try and get away from him, how he continued
to contact her, how he crafted a story falsely claiming that his mother had died in order to
leave work early and ambush Tucker the evening of the incident and the impact of her
death on her friends and family. Hilliard does not dispute that his sentence of 25 years
to life falls within the statutory range for aggravated murder. Thus, the trial court’s
sentence was supported by the record and is not contrary to law. Hilliard’s second
assignment of error is overruled.
{¶33} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
MARY EILEEN KILBANE, J., and
EILEEN T. GALLAGHER, J., CONCUR