[This decision has been published in Ohio Official Reports at
95 Ohio St.3d 524.]
THE STATE OF OHIO, APPELLANT, v. PARKER, APPELLEE.
[Cite as State v. Parker, 2002-Ohio-2833.]
Criminal law—Defendant charged with a crime punishable by death who has
waived his right to trial by jury must have his case heard and decided by
a three-judge panel even if the state agrees that it will not seek the death
penalty.
(Nos. 2001-0733 and 2001-0957—Submitted March 12, 2002—Decided June 26,
2002.)
APPEAL from and CERTIFIED by the Court of Appeals for Cuyahoga County, No.
76395, 2001-Ohio-4120.
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SYLLABUS OF THE COURT
A defendant charged with a crime punishable by death who has waived his right to
trial by jury must, pursuant to R.C. 2945.06 and Crim.R. 11(C)(3), have his
case heard and decided by a three-judge panel even if the state agrees that
it will not seek the death penalty.
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DOUGLAS, J.
{¶1} On January 12, 1995, Vincent Parker, appellee, was indicted on one
count of assaulting a police officer. On February 22, 1995, appellee was indicted
on three further counts. Count One charged appellee with aggravated murder with
a felony-murder specification. Count Two charged appellee with aggravated
robbery. Count Three charged appellee with possession of a weapon while under
disability. Each of the three counts also carried a firearm specification. Pursuant
to R.C. 2929.04(A)(7), these charges made appellee eligible for the death penalty.
In exchange for appellee’s plea of guilty to the charges, the state of Ohio, appellant,
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agreed that it would not seek the death penalty. However, appellant did not amend
the indictment to delete the death-penalty specification.
{¶2} On June 30, 1995, in a proceeding before the trial court, appellee
waived his right to a trial by jury and his right to a three-judge panel. Appellant
nolled the count of possession of a weapon under disability and deleted the firearm
specification from the aggravated robbery count. Appellee then entered pleas of
guilty to the remaining charges as set forth in both indictments and was sentenced,
by a single trial judge, to imprisonment for a term of twenty years to life on the
aggravated murder charge with no possibility of parole for twenty years, three
years’ actual incarceration on the firearm specification, to be served consecutively
to the murder sentence, and eighteen months for the assault charge, to be served
concurrently with the previous terms.
{¶3} On appeal, appellee claimed that, pursuant to R.C. 2945.06, a single
trial judge lacks jurisdiction to accept a plea in a capital case and that an accused
may not waive the right to a trial by a three-judge panel. The Court of Appeals for
Cuyahoga County agreed, vacating appellee’s sentence and remanding to the trial
court for further proceedings consistent with the judgment of the court of appeals.
The court then granted appellant’s motion to certify to this court pursuant to Section
3(B)(4), Article IV, Ohio Constitution. The court of appeals found its judgment to
be in conflict with the judgments of the court of appeals in State v. Griffin (1992),
73 Ohio App.3d 546,
597 N.E.2d 1178, State v. Heddleson (Aug. 4, 1997), Stark
App. No. 1997CA00113, and State v. Rash (Mar. 27, 1995), Stark App. No. 94-
CA-223,
1995 WL 347945. This cause is now before this court pursuant to the
allowance of a discretionary appeal and upon our determination that a conflict
exists.
{¶4} The question certified by the court of appeals is, “[W]hen the State
agrees not to pursue the death penalty in an aggravated murder case, but does not
delete the death penalty specification, does the requirement that the proceedings be
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held by a three judge panel as set forth in R.C. 2945.06 and Crim.R. 11(C)(3) still
apply?” We answer the certified question in the affirmative and hold, for the
reasons that follow, that the single trial judge lacked authority to accept appellee’s
plea.
{¶5} R.C. 2945.06 provides:
{¶6} “In any case in which a defendant waives his right to trial by jury and
elects to be tried by the court under section 2945.05 of the Revised Code, any judge
of the court in which the cause is pending shall proceed to hear, try, and determine
the cause in accordance with the rules and in like manner as if the cause were being
tried before a jury. If the accused is charged with an offense punishable with death,
he shall be tried by a court to be composed of three judges.” (Emphasis added.)
{¶7} Crim.R. 11(C)(3) provides:
{¶8} “If the indictment contains one or more specifications that are not
dismissed upon acceptance of a plea of guilty or no contest to the charge, or if pleas
of guilty or no contest to both the charge and one or more specifications are
accepted, a court composed of three judges shall: (a) determine whether the offense
was aggravated murder or a lesser offense; and (b) if the offense is determined to
have been a lesser offense, impose sentence accordingly; or (c) if the offense is
determined to have been aggravated murder, proceed as provided by law to
determine the presence or absence of the specified aggravating circumstances and
of mitigating circumstances, and impose sentence accordingly.” (Emphasis added.)
{¶9} R.C. 2945.06 and Crim.R. 11(C)(3) clearly establish that, in a capital
case where a criminal defendant has waived the right to trial by jury, a three-judge
panel is required. However, appellant contends that a three-judge panel is required
only where the death penalty is actually available as a sentencing option. Appellant
relies on State v. Griffin (1992), 73 Ohio App.3d 546, 553,
597 N.E.2d 1178, State
v. Heddleson (Aug. 4, 1997), Stark App. No. 1997CA00113, and State v. Rash
(Mar. 27, 1995), Stark App. No. 94-CA-223, for the proposition that once the state
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has agreed that it will not seek the death penalty, the death penalty is no longer an
available sentencing option. We disagree.
{¶10} In State ex rel. Henry v. McMonagle (2000), 87 Ohio St.3d 543,
721
N.E.2d 1051, Henry, the criminal defendant, was originally indicted for aggravated
murder with a death-penalty specification. The indictment was later amended to
remove the death-penalty specification, and Henry pled guilty before and was
sentenced by a single judge. Henry subsequently sought to vacate his conviction
and sentence, alleging that he was entitled to a three-judge panel pursuant to R.C.
2945.06. We held that “neither R.C. 2945.06 nor Crim.R. 11(C) required an
examination and determination by a three-judge panel because Henry was no longer
charged with an offense punishable by death at the time he entered his guilty plea.”
(Emphasis added.)
Id.,87 Ohio St.3d at 545,
721 N.E.2d 1051. “We have
consistently required strict compliance with Ohio statutes when reviewing the
procedures in capital cases.” State v. Filiaggi (1999),
86 Ohio St.3d 230, 240,
714
N.E.2d 867, citing State v. Pless (1996),
74 Ohio St.3d 333,
658 N.E.2d 766,
paragraph one of the syllabus. “When a defendant pleads guilty to aggravated
murder in a capital case, a three-judge panel is required.” State v. Green (1998),
81 Ohio St.3d 100,
689 N.E.2d 556, syllabus.
{¶11} In the case at bar, appellee pled guilty to aggravated murder with a
death-penalty specification. Therefore, under R.C. 2945.06 and Crim.R. 11(C)(3),
regardless of the state’s agreement that it would not seek the death penalty, appellee
was still charged with an offense that was punishable with death. Accordingly, we
hold that a defendant charged with a crime punishable by death who has waived his
right to trial by jury must, pursuant to R.C. 2945.06 and Crim.R. 11(C)(3), have his
case heard and decided by a three-judge panel even if the state agrees that it will
not seek the death penalty.
{¶12} The three-judge-panel requirement of R.C. 2945.06 is a jurisdictional
matter that cannot be waived. State v. Filiaggi, 86 Ohio St.3d at 239,
714 N.E.2d
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867. Since there was no amendment to the indictment deleting the death-penalty
specification, it was required that appellee’s case be heard by a three-judge panel.
The judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., F.E. SWEENEY and PFEIFER, JJ., concur.
RESNICK and LUNDBERG STRATTON, JJ., dissent.
COOK and LUNDBERG STRATTON, JJ., dissent
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ALICE ROBIE RESNICK, J., dissenting.
{¶13} The majority opinion is a classic example of deciding a case based
on a hypertechnicality even though the result is contrary to a reasonable
interpretation of the statute in question and does not serve the ends of justice.
{¶14} In 1995 during the proceedings at issue, appellee was represented by
two attorneys. At that time he waived not only his right to trial by jury but also his
right to be tried by a three-judge panel. The prosecuting attorney, appellee, the
defense attorneys, and the judge agreed that the death penalty would not be sought
or applied. Therefore, there was no need to assign two other judges for a three-judge panel. Now, after many years have passed, a majority of this court is setting
aside the appellee’s guilty plea and conviction due to a questionable technical
violation of R.C. 2945.06.
{¶15} A close reading of R.C. 2945.06 makes clear that only when an
accused is prosecuted for an offense “punishable with death” does the statute
actually come into play. In this case an agreement was entered into by all parties
that the death penalty was not a possible punishment. Therefore, it was unnecessary
to require that a three-judge panel preside over the acceptance of appellee’s plea
and subsequent sentencing.
{¶16} The majority errs by distinguishing State ex rel. Henry v. McMonagle
(2000), 87 Ohio St.3d 543,
721 N.E.2d 1051. The majority focuses on the fact that
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the indictment in that case was amended to remove the death-penalty specification,
so that the defendant was no longer “charged” with an offense punishable by death,
while in this case there was no such amendment. Presumably, the majority believes
that because appellee technically remained “charged” with an offense punishable
by death, this remained a death-penalty case.
{¶17} Although the majority’s rationale for distinguishing this case from
Henry is not totally clear, it appears that the majority may view the lack of an
amendment to the indictment as equivalent to leaving the door open for the
prosecution to change its mind and revert to pursuing the death sentence at some
future date.
{¶18} What the majority overlooks is that once a single judge begins the
consideration of whether to accept a guilty plea, the death penalty is conclusively
removed as an option with just as much finality as if the indictment had been
amended. See State v. Griffin (1992), 73 Ohio App.3d 546, 553,
597 N.E.2d 1178.
That is because once proceedings such as those in the instant case convene without
a three-judge panel, the offense is no longer one that is “punishable with death”
within the meaning of R.C. 2945.06. Furthermore, Crim.R. 11(C)(3) clearly
contemplates that the three-judge panel is appropriate only so long as the death
penalty is a viable option. In particular, Crim.R. 11(C)(3)(c) requires the three-judge panel to “determine the presence or absence of the specified aggravating
circumstances and of mitigating circumstances” before imposing sentence. This
provision obviously has no relevance to a case in which the death penalty is no
longer a viable option at the penalty phase of the proceedings. Since Crim.R.
11(C)(3)(c) has no application whatsoever to this case, it follows that the portion of
Crim.R. 11(C) relied upon the majority, prefacing the duties of the three-judge
panel, should have no application either when the death penalty is not an option.
{¶19} I fail to see what policy the majority is furthering when it allows
appellee to renounce a plea agreement that was negotiated in good faith, with the
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benefit of counsel, when the death penalty was eliminated as an option just as surely
as if the indictment had been amended. I believe that no substantial rights of
appellee were affected by the circumstances under review in this case. The
judgment of the court of appeals should be reversed, and appellee’s guilty plea and
sentence reinstated.
LUNDBERG STRATTON, J., concurs in the foregoing dissenting opinion.
__________________
COOK, J., dissenting.
{¶20} Today’s majority concludes that “[t]he three-judge-panel
requirement of R.C. 2945.06 is a jurisdictional matter that cannot be waived.” In
so holding, the majority has necessarily decided that the trial court lacked subject
matter jurisdiction over Parker’s trial. See, e.g., Patton v. Diemer (1988), 35 Ohio
St.3d 68,
518 N.E.2d 941, paragraph three of the syllabus (“A judgment rendered
by a court lacking subject matter jurisdiction is void ab initio”); State v. Wilson
(1995),
73 Ohio St.3d 40, 46,
652 N.E.2d 196 (noting that subject matter
jurisdiction “cannot be waived”). Because the majority confuses the want of
subject matter jurisdiction (which is never waived) with defects in the court’s
exercise of jurisdiction (which are waivable), I respectfully dissent.
{¶21} Of the various appellate cases that have analyzed the three-judgepanel requirement, I find the Ninth District Court of Appeals’ discussion in State v.
Swiger (1998), 125 Ohio App.3d 456,
708 N.E.2d 1033, to be the most instructive.
In that case, Michael Swiger, who was tried for capital offenses before a single
judge but ultimately convicted of noncapital crimes, sought postconviction relief
asserting that his convictions were void. Like Parker in this case, Swiger waived
his right to a jury trial and also waived his statutory entitlement to a three-judge
panel. Nevertheless, Swiger argued that R.C. 2945.06 divested the trial court of
subject matter jurisdiction to try him absent the three-judge panel.
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{¶22} In rejecting Swiger’s challenge, the court of appeals refused to equate
the lack of a three-judge panel with a lack of subject matter jurisdiction. Writing
for a unanimous court, Judge Dickinson correctly recognized that the term
“jurisdiction” encompasses at least three distinct concepts: (1) subject matter
jurisdiction, (2) jurisdiction over the person, and (3) jurisdiction over the particular
case. Id. at 462,
708 N.E.2d 1033. “The third category of jurisdiction encompasses
the trial court’s authority to determine a specific case within that class of cases that
is within its subject matter jurisdiction. It is only when the trial court lacks subject
matter jurisdiction that its judgment is void; lack of jurisdiction over the particular
case merely renders the judgment voidable.” (Citation omitted.)
Id. See, also,
Browning v. Walters (Ind.App.1993),
620 N.E.2d 28, 31; In re Waite (1991),
188
Mich.App. 189, 199-200,
468 N.W.2d 912; Morrison v. Bestler (1990),
239 Va.
166, 169,
387 S.E.2d 753.
{¶23} With these distinctions in mind, the Swiger court carefully analyzed
which category of jurisdiction encompassed R.C. 2945.06’s requirement that a
three-judge panel preside over cases involving capital offenses. As a fundamental
matter, an Ohio court of common pleas “has original jurisdiction over all crimes
and offenses, except in cases of minor offenses the exclusive jurisdiction of which
is vested in courts inferior to the court of common pleas.” R.C. 2931.03. Given
this unquestioned and unambiguous statutory grant of subject matter jurisdiction
over serious offenses, Judge Dickinson reasoned that the three-judge panel required
by R.C. 2945.06 could be nothing other than “a procedural protection that, even if
arguably ‘jurisdictional,’ falls within [the] third category of jurisdiction.” Swiger,
125 Ohio App.3d at 463,
708 N.E.2d 1033. Thus, the Swiger court concluded that
the “[d]efendant’s conviction may have been voidable, but it was not void for lack
of subject matter jurisdiction.”
Id. at 465,
708 N.E.2d 1033; cf. Commonwealth v.
Smith (1985),
230 Va. 354, 361,
337 S.E.2d 278 (holding that the court of appeals
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was not divested of subject matter jurisdiction when a single judge, instead of the
three-judge panel required by statute, decided the merits of a cause).
{¶24} Swiger’s persuasive analysis should dictate the outcome of this case.
Not only does it accurately differentiate between the different jurisdictional
categories, it is also consistent with this court’s implicit recognition that the term
“jurisdictional” does not always mean subject matter jurisdiction. See State v. Pless
(1996), 74 Ohio St.3d 333,
658 N.E.2d 766. In Pless, this court reversed a capital
conviction based on the absence in the record of a written jury-trial waiver as
required by R.C. 2945.05. The Pless majority held that “a trial court lacks
jurisdiction to try the defendant without a jury” absent strict compliance with R.C.
2945.05. (Emphasis added.)
Id. at paragraph one of the syllabus. In the very same
case, however, the majority also held that “[t]he failure to comply with R.C.
2945.05 may be remedied only in a direct appeal from a criminal conviction.”
(Emphasis added.)
Id. at paragraph two of the syllabus. As Judge Dickinson keenly
observed in Swiger, these two paragraphs are subject to only one interpretation:
{¶25} “If the ‘jurisdiction’ to which the [Pless] court referred were subject
matter jurisdiction, by its very nature, it would be open to challenge at any time.
By holding that this defect in the trial court’s ‘jurisdiction’ can be waived if not
timely raised, the Supreme Court was apparently referring to something other than
subject matter jurisdiction. Moreover, it recognized this type of ‘jurisdiction’ in a
situation [i.e., written waiver of a jury trial] analogous to defendant’s waiver of a
three-judge panel.” Swiger, 125 Ohio App.3d at 465,
708 N.E.2d 1033.
{¶26} In light of the foregoing, I would hold that the trial court’s failure to
convene a three-judge panel in this case was not a defect that deprived the court of
subject matter jurisdiction. Parker was charged with criminal offenses over which
the court of common pleas had unquestioned subject matter jurisdiction; thus,
“[a]ny subsequent error in the proceedings [was] only error in the ‘exercise of
jurisdiction,’ as distinguished from the want of jurisdiction in the first instance.” In
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re Waite, 188 Mich.App. at 200,
468 N.W.2d 912. Parker’s convictions for the
noncapital offenses were voidable at most and, in this case, they were not even that
given his waiver of both a jury trial and a trial by a three-judge panel.1 This court
should reverse the judgment of the court of appeals and reinstate Parker’s
convictions.
LUNDBERG STRATTON, J., concurs in the foregoing dissenting opinion.
__________________
William D. Mason, Cuyahoga County Prosecuting Attorney, and Lisa Reitz
Williamson, Assistant Prosecuting Attorney, for appellant.
James A. Draper, Cuyahoga County Public Defender, and Patricia Koch
Windham, Assistant Public Defender, for appellee.
David H. Bodiker, Ohio Public Defender, and Stephen P. Hardwick,
Assistant Public Defender, urging affirmance for amicus curiae Ohio Public
Defender.
__________________
1. Because this case involves a defendant convicted only of noncapital crimes, I express no opinion
on the question whether a single judge could sentence a defendant to death notwithstanding a waiver
of the three-judge panel. But, see, State v. Griffin (1992), 72 Ohio App.3d 546, 553,
597 N.E.2d
1178 (expressing the view that “the death penalty option was extinguished the moment [the
defendant] was placed in jeopardy in the trial” before a single judge).
10
