102 OHIOST3D 128 - State v. Harwell

O’Donnell, J.,

¶1dissenting.

¶3{¶ 13} Respectfully, I dissent. The majority has concluded that Harwell “is entitled to the same protections as any defendant charged with a capital offense” even though he “was not eligible for the death penalty because of his age.” In my view, the dispositive issue in this case is not whether Harwell was charged with a capital offense, but rather, whether the capital sentencing phase of trial ever occurred. Because the matter below did not include a death penalty — or “capital”- — sentencing phase, the capital due process protections were inapplicable.

¶4 *132II

¶5A

¶6{¶ 14} Ohio bifurcates capital trials into guilt and penalty phases. R.C. 2929.03(D), 2929.04(B) and (C). During the guilt phase, the trial court’s instruction “shall not mention the penalty that may be the consequence of a guilty or not guilty verdict on any charge or specification.” R.C. 2929.03(B).

¶7{¶ 15} Further, the jury or the three-judge panel reaches the capital sentencing phase of trial only if it finds that (1) the defendant is guilty of aggravated murder, (2) the defendant was found to be 18 years or older at the time of the commission of the offense, if the defendant has raised the matter of age at trial, and (3) the defendant is guilty of at least one death-penalty specification. R.C. 2929.03(B).

¶8{¶ 16} Only after those findings have been made does the court conduct a capital sentencing hearing pursuant to R.C. 2929.03(D). It is here, at such a capital sentencing proceeding, that the holding in State v. Huertas (1990), 51 Ohio St.3d 22, 553 N.E.2d 1058, applies — “Expressions of opinion by a witness as to the appropriateness of a particular sentence in a capital case violate the defendant’s constitutional right to have the sentencing decision made by the jury and judge.” Id. at syllabus.

¶9{¶ 17} When, however, death may not be imposed as a penalty — as, for example, when a jury finds the defendant guilty of aggravated murder but not guilty of the specifications or when a jury finds a defendant guilty of both the aggravated murder and the specifications but does not find that the defendant was 18 at the time of the commission of the offense — the court does not follow the capital sentencing procedure set forth in R.C. 2929.03(D). Rather, when the death penalty may not be imposed, the court “shall” simply impose one of the statutorily enumerated sentences of imprisonment. R.C. 2929.03(A), (C), (E).

¶10{¶ 18} Because the legislature has provided sentencing procedures for a defendant who is not subject to capital punishment, and as Harwell is not subject to capital punishment, we should follow the noncapital sentencing procedures. The capital procedures are unnecessary here, as there can be no capital sentencing in this case.

¶11B

¶12{¶ 19} The majority notes that the state charged Harwell pursuant to R.C. 2929.03(C)(2)(a)(i), a crime which can result in the imposition of the death penalty. Under R.C. 2929.03(C)(2)(b), however, a “penalty imposed pursuant to division (C)(2)(a)® … of this section shall be determined pursuant to divisions (D) and (E) of this section … R.C. 2929.03(C)(2)(b). And, pursuant to R.C. 2929.03(D)(1), “[djeath may not be imposed as a penalty for aggravated murder” *133when committed by a juvenile. Only “[w]hen death may be imposed as a penalty” shall the court proceed under R.C. 2929.03(D).

¶13{¶ 20} Because Harwell was a juvenile, the trial court imposed sentence pursuant to R.C. 2929.03(E), which precludes imposition of the death penalty. Therefore, Harwell’s noncapital sentencing phase did not require the procedural protections that “ ‘narrow the decisionmaker’s judgment as to whether the circumstances of a particular defendant’s case meet the threshold’ ” “ ‘below which the death penalty cannot be imposed.’ ” Payne v. Tennessee (1991), 501 U.S. 808, 824, 111 S.Ct. 2597, 115 L.Ed.2d 720, quoting McCleskey v. Kemp (1987), 481 U.S. 279, 305, 107 S.Ct. 1756, 95 L.Ed.2d 262.

¶14C

¶15{¶ 21} My thinking is in accord with the rationale followed by the Illinois Supreme Court in People v. Turner (1989), 128 Ill.2d 540, 577-579, 132 Ill.Dec. 390, 539 N.E.2d 1196, where a jury returned a guilty verdict against the defendant for murder, aggravated criminal sexual assault, criminal sexual assault, aggravated kidnapping, kidnapping, unlawful restraint, and robbery, thereby making him amendable to the death penalty. During the capital sentencing phase of that trial, the jury made the requisite findings and the trial court sentenced the defendant to death. The trial court also sentenced the defendant to 30 years’ imprisonment for aggravated criminal sexual assault, 15 years for criminal sexual assault, 15 years for aggravated kidnapping, 7 years for kidnapping, 3 years for unlawful restraint, and 7 years for robbery.

¶16{¶ 22} On appeal, the defendant argued that the trial court erred by allowing victim-impact statements at the noncapital sentencing hearing. The Illinois Supreme Court overruled this argument, noting that Booth v. Maryland, (1987), 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 — the case on which we relied in Huertas, 51 Ohio St.3d 22, 553 N.E.2d 1058 — held, “introduction of victim impact evidence was constitutionally impermissible ivhere imposition of the death penalty was at issue.” (Emphasis added.) Turner, 128 Ill.2d at 578, 132 Ill.Dec. 390, 539 N.E.2d 1196. Because the imposition of the death penalty was not at issue during Turner’s noncapital sentencing hearing, the court held, the capital procedural protections did not apply.1

Julia R. Bates, Lucas County Prosecuting Attorney, and Eric A. Baum, Assistant Prosecuting Attorney, for appellant.Gamso, Helmick & Hoolahan and Jeffrey M. Gamso, for appellee.Jim Petro, Attorney General, Douglas R. Cole, State Solicitor, Stephen P. Carney, Senior Deputy Solicitor, and Christopher D. Stock, Deputy Solicitor, urging reversal for amicus curiae Ohio Attorney General.McGarry Law Office and Kathleen McGarry, urging affirmance for amicus curiae Ohio Association of Criminal Defense Lawyers.

¶17{¶ 23} The same rationale, it seems to me, should apply here. While the state may have charged Harwell with a capital offense pursuant to R.C. 2901.02(B) and 2929.03(A), he was not entitled to death-penalty due process protections because imposition of the death penalty was never an issue in this case. See R.C. 2929.03(D)(1).

¶18D

¶19{¶ 24} Finally, reduced to its terms of practical application, today’s decision affords procedural due process protections to a juvenile charged with a capital offense where imposition of the death penalty was never an issue in the case. By extension, all defendants — -adults or juveniles — who are charged with capital offenses would be or could be entitled to procedural due process death penalty protections at a sentencing hearing even where the capital indictment is resolved at the guilt phase by conviction of an offense not involving imposition of the death penalty.

¶20Ill

¶21{¶ 25} Simply put, because “death may not be imposed” in this case, Harwell never faced a capital sentencing phase, and therefore, was not entitled to death-penalty due process protections. Accordingly, I would reverse the judgment of the court of appeals.

Moyer, C.J., concurs in the foregoing dissenting opinion.

¶22. In Payne v. Tennessee (1991), 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720, the court held that victim-impact statements are permitted in capital sentencing phases. Payne, however, did not address whether victims’ family members may recommend the appropriate sentence at the capital sentencing hearing. Accordingly, Booth’s ban on such recommendations at capital sentencing hearings remains. See Payne, 501 U.S. at 835, 111 S.Ct. 2597, 115 L.Ed.2d 720, fn. 1 (Souter, J., concurring). See, also, State v. Treesh (2001), 90 Ohio St.3d 460, 739 N.E.2d 749.