State v. Johnson

[Cite as State v. Johnson, 2017-Ohio-1148.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO : APPEAL NO. C-160242
TRIAL NO. B-9708745
Plaintiff-Appellee, :
vs. :
O P I N I O N.
RAYSHAWN JOHNSON, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Sentence Vacated in Part, and
Cause Remanded
Date of Judgment Entry on Appeal: March 29, 2017
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W.
Springman, Chief Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Michaela M. Stagnaro, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Judge.
{¶1} Following remand from the Ohio Supreme Court, the trial court
imposed a life-without-parole prison sentence on defendant-appellant Rayshawn
Johnson for the aggravated murder of Shanon Marks. Johnson now challenges that
sentence. The sentence imposed on the aggravated-murder offense itself is not
subject to review by this court. But that portion of the sentence that ordered the life
term to be served consecutively to the other felony prison terms was contrary to law
where the trial court failed to make the findings mandated by R.C. 2929.14(C)(4).
Therefore, we vacate only that portion of Johnson’s sentence and remand the cause
for resentencing.
I. The Murder of Shanon Marks
{¶2} In 1997, Johnson attempted to rob Nicole Sroufe. Johnson was
apprehended but later released on bond. Two months later, Johnson forcibly
entered Shannon Marks’ home through a back door to look for money. He was
wearing gloves and was armed with a baseball bat. He took $50 from Marks. In
statements to police, Johnson admitted striking Marks twice in the back of the head
with the bat, and hitting her again after she fell to the floor. He stated that he had
heard her cry for help as he left the scene. An autopsy revealed that Marks had
suffered defensive wounds, a broken left forearm, and massive head injuries that
caused her death. See State v. Johnson, 88 Ohio St.3d 95, 99-118, 723 N.E.2d 1054(2000).
{¶3} The offenses committed against Sroufe and Marks were charged in a
single indictment and were tried together. In June 1998, following a jury verdict of
guilty on all charges and specifications, the trial court imposed the death penalty on
Johnson for the aggravated murder of Marks. It also imposed prison terms for the
aggravated robbery and aggravated burglary of Marks and for the kidnapping and
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OHIO FIRST DISTRICT COURT OF APPEALS
robbery of Sroufe. Though the trial court’s journal entry did not reflect that it had
made any of the statutory findings required to impose consecutive sentences, the
court ordered each prison term, and the death sentence, to be served consecutively.
The aggregate prison term was 33 years.
{¶4} In 2000, the judgment of conviction, including the sentence of death,
and the prison terms for the other felony offenses, was affirmed on direct appeal to
the Ohio Supreme Court. Johnson at 123.
II. Resentencing on the Aggravated-Murder Conviction
{¶5} Johnson sought habeas corpus relief in federal court. He was granted
relief there on the grounds that he had received ineffective assistance of trial counsel
during the mitigation phase of his trial. See State v. Johnson, 144 Ohio St.3d 518,
2015-Ohio-4903, 45 N.E.3d 208, ¶ 1. On remand, the state trial court conducted a
new mitigation hearing. A new jury again recommended death, and the trial court
again imposed that sentence. Id. at ¶ 2. Nonetheless, on appeal, the Ohio Supreme
Court held that the death sentence was not appropriate. It vacated the sentence of
death and remanded the cause to the trial court for resentencing under R.C. 2929.06.
Id. at ¶ 141. Life without parole eligibility was the most severe sanction that
remained to be imposed at resentencing. See R.C. 2929.06(A).
{¶6} A new judge presided over the resentencing hearing. The trial court
scheduled a report for December 4, 2015. Johnson appeared with his appointed
counsel, and stated his desire to proceed directly to sentencing. Johnson addressed
the court and stated that he had had 18 years to reflect on his actions. He apologized
for “ruining” Marks’ life, her family’s lives, and his own.
{¶7} Johnson urged the court to impose a sentence of life imprisonment
without parole. He declared, “I just ask the Court, like I told my attorney that
represented me right here, that, you know, I believe that there is no other option but
life in prison without the possibility of parole. Because I have 33 other – 33 more
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OHIO FIRST DISTRICT COURT OF APPEALS
years facing me, so it wouldn’t make a difference. I just ask that you pass sentence
on me right now, today.” The state indicated that it had spoken with the Marks
family and that “obviously, [life without parole is] what we’re asking for.”
{¶8} The trial court stated that it had reviewed the record and then imposed
the jointly recommended, life-without-parole sentence for the aggravated murder of
Marks, as alleged in Count One of the amended indictment. The trial court noted
only that the sentences for the remaining felony offenses “would remain untouched.”
It did not address whether it would order the life-without-parole sentence to be
served consecutively to the other felony sentences.
{¶9} One month later, the trial court journalized its resentencing judgment
entry and imposed the life-without-parole sentence. It also ordered that the life-
without-parole, aggravated-murder sentence was to be served consecutively to the
33-year aggregate prison term for the other felony offenses. The entry did not
contain any findings to support the consecutive imposition of the life term. Johnson
brought this timely appeal.
III. No Findings to Support the Consecutive Life Term
{¶10} In his first assignment of error, Johnson asserts that the trial court’s
imposition of sentence was contrary to law under R.C. 2953.08(A). He argues that
the trial court erred in imposing a life-without-parole sentence for aggravated
murder, and erred in ordering each of the sentences to be served consecutively
without making the statutory findings required by R.C. 2929.14(C)(4). We agree, in
part.
a. The aggravated-murder sentence is not reviewable
{¶11} Johnson first challenges the life-without-parole sentence itself.
Despite having asked the trial court to impose sentence on December 4, 2015, and
having addressed the court about his decision to seek a life-without-parole sentence,
Johnson now asserts that the court failed to hold a resentencing hearing, as required
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OHIO FIRST DISTRICT COURT OF APPEALS
by R.C. 2929.06(A). And despite the Ohio Supreme Court’s decision vacating his
death sentence having effectively dismissed the aggravating circumstance which
triggers the need for additional defense counsel, Johnson now contends that the trial
court erred when it appointed only one attorney to represent him in contravention of
Appt.Coun.R. 5.02(A)(1).
{¶12} But we do not reach the merits of these arguments because Johnson’s
sentence for aggravated murder is not subject to review by this court. While there is
no constitutional right to the appellate review of a criminal sentence, R.C. 2953.08
confers statutory rights upon a defendant to appeal from some felony sentences. See
State v. Smith, 80 Ohio St.3d 89, 97, 684 N.E.2d 668 (1997). R.C. 2953.08(A)
authorizes a defendant to challenge a sentence that is “contrary to law.” But the
statute bars that appeal when the sentence to be reviewed, as here, was imposed for
the crime of aggravated murder. Specifically, 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 [R.C. 2953.08].”
{¶13} Notwithstanding this clear statutory language, Johnson asserts that we
may still review “procedural matters” used to reach the aggravated-murder sentence.
See State v. Hancock, 12th Dist. Warren Nos. CA2001-12-115, CA2001-12-116 and
CA2001-01-004, 2003-Ohio-1616, ¶ 11. Johnson’s argument is based on an
understanding that R.C. 2953.08 does not provide the “exclusive basis for appealing
a sentence. * * * Thus, an appeal of a murder sentence may still be based on
traditional grounds for appeal independent of those set forth in R.C. 2953.08.” State
v. Steele, 10th Dist. Franklin No. 00AP-499, 2001 WL 721806, *7 (June 28, 2001);
see Hancock at ¶ 11 (citing Steele with approval).
{¶14} But the Ohio Supreme Court has clearly rejected this rationale. In
State v. Marcum, it held that R.C. 2953.08 “specifically and comprehensively defines
the parameters” of felony-sentencing appellate review. State v. Marcum, 146 Ohio
5OHIO FIRST DISTRICT COURT OF APPEALS
St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 21 (2016). Here, Johnson has sought
review only under R.C. 2953.08(A)(4), and has not identified any other authority
governing our review. Thus we apply the “unambiguous” language of R.C.
2953.08(D). State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d
690, ¶ 17.
{¶15} The language of R.C. 2953.08(D)(3), precluding review of a sentence
imposed for aggravated murder, “clearly means what it says: such a sentence cannot
be reviewed.” Id. Accord State v. Terrell, 1st Dist. Hamilton No. C-020194, 2003-
Ohio-3044, ¶ 28; State v. Hawkins, 4th Dist. Gallia No. 13CA3, 2014-Ohio-1224, ¶
15; State v. Hollingsworth, 143 Ohio App.3d 562, 566, 758 N.E.2d 713 (8th
Dist.2001); State v. Burke, 2d Dist. Montgomery No. 26812, 2016-Ohio-8185, ¶ 28.
Thus this court is without statutory authority to review the sentence imposed for the
aggravated murder of Marks, and we decline to consider the merits of Johnson’s
arguments that it was imposed improperly.
b. Nothing in R.C. 2953.08(D) precludes review of the
consecutive imposition of the life sentence
{¶16} As Johnson next argues, this court does have statutory authority to
review whether the trial court erred in ordering the aggravated-murder sentence to
be served consecutively to the other felony sentences without making the statutorily
mandated findings. While an appellate court may not review the actual sentence
imposed for aggravated murder pursuant to R.C. 2953.08(D), nothing in R.C.
2953.08(D) precludes review of whether the trial court complied with the
requirements of R.C. 2929.14(C)(4) when ordering that sentence to be served
consecutively. Porterfield at ¶ 19; see Terrell at ¶ 36.
{¶17} Thus the determination of whether to order nonmandatory
consecutive sentences is governed by the same statute, R.C. 2929.14(C)(4), both for
general felonies and for aggravated murder. See State v. Broe, 1st Dist. Hamilton
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OHIO FIRST DISTRICT COURT OF APPEALS
No. C-020521, 2003-Ohio-3054, ¶ 93. If the trial court exercises its discretion to
impose consecutive sentences, it must make the consecutive-sentences findings set
out in R.C. 2929.14(C)(4), and those findings must be made at the sentencing
hearing and incorporated into the sentencing entry. State v. Bonnell, 140 Ohio St.3d
209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 23; see State v. Sergent, 148 Ohio St.3d 94,
2016-Ohio-2696, 69 N.E.3d 627, ¶ 17.
{¶18} We note that although Johnson and the state had jointly
recommended the life-without-parole aggravated-murder sentence, there is no
indication in the record that they made any recommendation that the life term be
imposed consecutively. Thus R.C. 2953.08(D)(1) does not bar our review. Compare
Sergent at ¶ 30 and 43 (holding that if a jointly recommended sentence includes
nonmandatory consecutive sentences and the trial judge fails to make the consecutive-
sentences findings set out in R.C. 2929.14(C)(4), the sentence is nevertheless authorized
by law, and therefore is not appealable).
{¶19} Here, before imposing sentence, the trial court indicated that it had
reviewed the facts of the case. It commented on how Johnson had planned the
robbery, had bludgeoned Marks, and had disposed of the baseball bat used to kill
her. The court agreed with Johnson that these horrific acts, committed to obtain
only $50, had ruined many people’s lives, including Johnson’s. But the trial court
did not make any further comments before imposing sentence.
{¶20} As the state concedes, the court failed to make the findings required
under R.C. 2929.14(C)(4). See Bonnell at ¶ 32. Because the record does not
demonstrate that the trial court engaged in the required analysis and made the
necessary statutory findings before ordering Johnson’s life-without-parole,
aggravated-murder sentence to be served consecutively to the 33-year aggregate
prison term imposed for the other felony offenses, and include them in its sentencing
entry, we “clearly and convincingly find” that that portion of the court’s judgment is
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OHIO FIRST DISTRICT COURT OF APPEALS
contrary to law and must be vacated. R.C. 2953.08(G)(2)(a); see Bonnell at ¶ 37;
State v. Simmons, 2014-Ohio-3695, 19 N.E.3d 517, ¶ 121 (1st Dist.).
{¶21} Johnson further argues that neither the trial court’s resentencing entry
nor its original 1998 sentencing entry included statutory findings to support the
consecutive imposition of the other felony sentences. But we will not vacate any
other portion of the trial court’s judgment. First, review of those sentences was not
included in the Ohio Supreme Court’s limited remand to the trial court. See
Johnson, 144 Ohio St.3d 5128, 2015-Ohio-4903, 45 N.E.3d 208, at ¶ 141. Moreover,
the issue of whether the trial court properly imposed consecutive sentences for those
offenses could have been raised on direct appeal from the trial court’s initial 1998
judgment entry. Yet Johnson did not advance that argument in his direct appeal.
See Johnson, 88 Ohio St.3d at 125-131, 723 N.E.2d 1054. The doctrine of res judicata
bars most sentencing challenges subsequent to the direct appeal including “whether
sentences must be served concurrently or consecutively.” State v. Holdcroft, 137
Ohio St.3d 526, 2013-Ohio-5014, 1 N.E.3d 382, ¶ 8.
{¶22} Thus the first assignment of error is sustained but solely on the basis
that the trial court erred in ordering the life-without-parole term to be served
consecutively to the other felony prison terms without making the required findings.
IV. Johnson’s Trial Counsel Was Not Ineffective
{¶23} In his second assignment of error, Johnson argues that he was denied
the effective assistance of counsel for various claimed deficiencies, including (1) trial
counsel’s failure to request the appointment of a second trial counsel, (2) his
acquiescence in Johnson’s stated intention to be sentenced to a life-without-parole
sentence, (3) his failure to present evidence in mitigation, and (4) his failure to object
to the trial court’s imposition of consecutive sentences.
{¶24} To prevail on his claim of ineffective assistance of trial counsel,
Johnson must demonstrate that his trial counsel’s performance was both deficient
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OHIO FIRST DISTRICT COURT OF APPEALS
and so prejudicial that he was denied a reliable and fundamentally fair proceeding.
See Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); see
also Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two
and three of the syllabus. A reviewing court will not second-guess trial strategy and
must indulge a strong presumption that counsel’s conduct fell within the wide range
of reasonable professional assistance. See State v. Mason, 82 Ohio St.3d 144, 157-
158, 694 N.E.2d 932 (1998).
{¶25} In light of the Supreme Court’s remand instructions to the trial court
removing the death penalty as a resentencing option, we cannot say that trial
counsel’s performance was deficient for failing to request a second trial attorney.
Moreover, there is nothing in this record to indicate that trial counsel’s acquiescence in
Johnson’s recommended sentence, and his failure to argue in mitigation, were so
prejudicial that Johnson was denied a reliable and fundamentally fair proceeding.
See State v. Keith, 79 Ohio St.3d 514, 537, 684 N.E.2d 47 (1997). The record reveals
Johnson’s genuine remorse for killing Marks and ruining the lives of her family and
his own. He told the court that he had had 18 years to reflect on his actions, and
sought a life-without-parole sentence. Johnson acknowledged that regardless of the
penalty imposed for killing Marks, he also faced the 33-year aggregate prison term for the
other felony convictions. In light of these statements, there is no reasonable probability
that the sentencing result would have been different had counsel argued in mitigation.
{¶26} Finally, trial counsel was not deficient for failing “to argue the consecutive
findings issue” at the resentencing hearing. The trial court gave no indication at the
hearing that it was going to order the life-without-parole term to be served consecutively.
A specific act or omission by the trial court, constituting legal error, is that prerequisite
that gives rise to trial counsel’s duty to object and suggest that error to the court. See State
v. Morgan, 181 Ohio App.3d 747, 2009-Ohio-1370, 910 N.E.2d 1075, ¶ 14 (1st Dist.), citing
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OHIO FIRST DISTRICT COURT OF APPEALS
Pfeifer v. Jones & Laughlin Steel Corp., 678 F.2d 453, (3d Cir.1982), fn. 1. Counsel must
be diligent but is not required to be clairvoyant. Since the court’s sentencing entry was the
first indication in this record that the court intended to impose the life term consecutively,
trial counsel was not deficient for failing to object at the sentencing hearing. The second
assignment of error is overruled.
V. Conclusion
{¶27} Accordingly, we sustain the first assignment of error solely on the basis
that, with respect to the life-without-parole, aggravated-murder sentence, the trial
court failed to make the requisite consecutive-sentencing findings and to incorporate
those findings into its resentencing entry. We vacate that portion of the trial court’s
judgment ordering consecutive imposition of the life term, and remand the cause to
the trial court for resentencing on that matter alone. See Simmons, 2014-Ohio-3695,
19 N.E.3d 517, at ¶ 123. In all other respects, we affirm the trial court’s judgment.
Judgment accordingly.
MOCK, P.J., and ZAYAS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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