[Cite as State v. Thomas,
2021-Ohio-3175.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY
STATE OF OHIO, CASE NO. 2019-L-085
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
JOSEPH L. THOMAS,
Trial Court No. 2011 CR 000321
Defendant-Appellant.
OPINION
Decided: September 13, 2021
Judgment: Affirmed
Charles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert and Teri R.
Daniel, Assistant Prosecutors, Lake County Administration Building, 105 Main Street,
P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Timothy Young, Ohio Public Defender, and Victoria Bader and Addison M. Spriggs,
Assistant State Public Defenders, 250 East Broad Street, Suite 1400, Columbus, OH
43215 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} This matter is before the court upon a remand order from the Supreme
Court of Ohio. In State v. Thomas, 11th Dist. Lake No. 2019-L-085, 2020-Ohio-4635
(“Thomas I”) this court affirmed various judgments of the Lake County Court of Common
Pleas. Appellant, Joseph L. Thomas, filed a jurisdictional memorandum to the Court, to
which the state responded. After considering both parties’ memoranda, the Court denied
the appeal on all issues with the exception of appellant’s Proposition of Law No. V, which
the state conceded should be remanded to this court.1 In its remand order, the Court
explained this court should address the merits of this proposition pursuant to the authority
set forth in State v. Patrick, ___ Ohio St.3d ___,
2020-Ohio-6803.2
{¶2} On June 8, 2021, this court issued a judgment entry permitting appellant to
file supplemental briefing if he wished to do so. On June 28, 2021, appellant, via counsel,
filed a response stating he wished to stand on the arguments asserted under his sixth
assignment of error set forth in his original appellate brief, relating to validity of his
sentence. That assigned error provides:
{¶3} “The trial court erred when it sentenced Joseph Thomas to life without the
possibility of parole despite the fact that the record clearly and convincingly did not
support such a punitive sentence, and R.C. 2953.08(D)(3) is unconstitutional if it prohibits
appellate review of Mr. Thomas’ sentence. Fifth, Eighth, and Fourteenth Amendments,
U.S. Constitution; Article I, Sections 2, 9, and 16, Ohio Constitution. R.C. 2953.08.”
{¶4} In Thomas I, supra, this court determined that R.C. 2953.08(D)(3) was not
unconstitutional even though it ostensibly prohibited appellate review of appellant’s
sentence of life imprisonment without the possibility of parole. Thomas, supra, at ¶86-92.
As a result, we did not reach the merits of appellant’s second challenge to his sentence;
to wit, that, to the extent his sentence was appealable, the record failed to support the
trial court’s determination that life without the possibility of parole is the minimum sanction
necessary to punish and protect pursuant to R.C. 2929.11 and R.C. 2929.12.
1. That proposition provided, in substantive part: “This Court’s decisions in State v. Patrick and State v.
Kinney make clear that R.C. 2953.08(D)(3) does not preclude appellate review of sentences imposed for
aggravated murder ….”
2. Given the narrow scope of the remand order, we deem a re-statement of the facts and procedural
posture unnecessary. For the purpose of a comprehensive framework, we incorporate by reference,
however, the statement set forth in Thomas I, supra, at ¶2-28.
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{¶5} In Patrick, supra, the Ohio Supreme Court clarified that R.C. 2953.08(D)(3)
only precluded review of sentences imposed for murder and aggravated murder under
that section. Id. at ¶17. Accordingly, sentences imposed for murder and aggravated
murder may still be appealed on constitutional grounds. Id. at ¶15. The court recognized
that R.C. 2953.02 provides a “right to appeal a judgment or final order to the court of
appeals ‘[i]n a capital case in which a sentence of death is imposed for an offense
committed before January 1, 1995, and in any other criminal case ….’”
Patrick, supra,
at ¶16, quoting R.C. 2953.02. That statute also permits an appeal from a judgment or
final order “involving a question arising under the Constitution of the United States or of
this state.”
Id. The court noted that the term “final judgment” in R.C. 2953.02 referred to
the order on sentence.
Id. Finding that “the preclusive language in R.C. 2953.08(D)(3)
demonstrates that its scope is limited to the bases of appeal described in R.C. 2953.08,”
the court determined that the defendant’s constitutional challenge to his sentence
imposed for aggravated murder was not precluded by R.C. 2953.08(D)(3).
Patrick, supra,
at ¶17 and 22. In effect, Patrick held that R.C. 2953.08 is not the only basis for appealing
a felony sentence; in particular, constitutional challenges to the sentence are permissible.
{¶6} With the foregoing points in mind, appellant was sentenced under R.C.
2929.03(A)(1)(a), the statutory section governing sentences for aggravated murder that
do not include one or more specifications relating to aggravating circumstances (i.e.,
death-penalty specifications). The arguments appellant asserts relate to R.C. 2929.11
and R.C. 2929.12; respectively, the statutory section relating to the purposes and
principles of felony sentencing and the section addressing the “seriousness” and
“recidivism” factors. The essential question, accordingly, is whether, notwithstanding the
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Court’s analysis and disposition in Patrick, these arguments are precluded on appeal by
the relevant statutes governing sentences for, in this case, aggravated murder. For the
reasons that follow, we answer this question in the affirmative.
{¶7} R.C. 2953.08(A) provides: “[i]n addition to any other right to appeal …, a
defendant who is convicted of or pleads guilty to a felony may appeal as a matter of right
the sentence imposed upon the defendant on one of the following grounds ….” R.C.
2953.08(A)(1) and (5) set forth the grounds for appeal if sentences are imposed pursuant
to R.C. 2929.14(A) or R.C. 2929.142 (sections inapplicable to this case). R.C.
2953.08(A)(2) applies to sentences including a prison term imposed for a fourth- or fifth-
degree felony or felony drug offense that could be subject to only a community control
sanction under R.C 2929.13(B) (offenses not applicable to this case). R.C. 2953.08(A)(3)
applies to sentence imposed pursuant to R.C. 2971.03 (a section in applicable to this
case). Finally, R.C. 2953.08(A)(4) provides that a defendant may appeal a felony
sentence on the basis that the sentence “is contrary to law.” The term “contrary to law”
is defined as “‘in violation of statute or legal regulation at a given time.’” Patrick, supra, at
¶22, quoting Black’s Law Dictionary 328 (6th Ed.1990).
{¶8} Notwithstanding these appellate rights, 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.” (Emphasis
added). Subsection (D)(3) expressly contemplates that its scope is limited to bases of
appeal set forth under R.C. 2953.08, no “other potential avenues of appellate review.”
Patrick, supra, at ¶17.
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{¶9} As noted above, in Thomas I, under his sixth assignment of error, appellant
raised a bifurcated argument challenging both the constitutionality of R.C. 2953.08(D)(3),
as well as the legitimacy and validity of the trial court’s substantive sentence, in relation
to the application of R.C. 2929.11 and R.C. 2929.12. This court addressed appellant’s
various constitutional arguments, which included an Eighth Amendment challenge and
an alleged Equal Protection violation, and concluded R.C. 2953.08(D)(3) was not
unconstitutional. See Thomas I, supra, at ¶86-92. Specifically, with respect to the Eighth
Amendment challenge, this court observed:
{¶10} R.C. 2953.08(D)(3) provides that “a sentence imposed for
aggravated murder or murder pursuant to sections 2929.02 to
2020.06 of the Revised Code is not subject to review under this
section.” Appellant acknowledges there is no constitutional right to
direct appellate review of a criminal sentence. See Ross v. Moffitt,
417 U.S. 600, 610-611 (1974). He points out, however, that appellate
review is a necessary procedural safeguard to prevent arbitrary and
capricious imposition of the death sentence. See Gregg v. Georgia,
428 U.S. 143, 166-68 (1976). While appellant was not sentenced to
death, he contends a sentence of life without the possibility of parole
shares some characteristics with death sentences that are not
shared by other sentences. Notwithstanding these fair
characterizations, appellant fails to specifically argue how denying
appellate review of a sentence is cruel and unusual. If there is no
constitutional right to appellate review of a criminal sentence, it
makes little sense to assert the absence of such an entitlement is
unconstitutional. Further, the denial of appellate review cannot be
said to cause unnecessary and wanton infliction of physical pain, a
requirement necessary to sustain a claim for an Eighth Amendment
violation. Rhodes v. Chapman, 452 U.S. 337, 346 (1981).
Appellant’s Eighth Amendment argument lacks merit. Thomas I, at
¶88.
{¶11} Regarding appellant’s Equal Protection argument, this court determined
that appellant, a defendant who received a sentence of life without the possibility of
parole, is not a member of a suspect class. Id. at ¶89. As a result, a rational basis analysis
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is appropriate. Id. In holding that the statute at issue did not violate appellant’s right to
Equal Protection, his court stated:
{¶12} The General Assembly has a valid and reasonable interest in treating
criminal offenses differently, based upon the perceived severity of
the crime or felony. Moreover, it is neither arbitrary nor unreasonable
to treat aggravated murder and murder differently than other
classified felonies. Because these crimes necessarily involve the
purposeful termination of another’s life, they could reasonably be
viewed as the most severe crimes, thus necessitating a different
statutory procedure for purposes of sentencing and appeal. We
therefore hold appellant has failed to demonstrate that R.C.
2953.08(D)(3) is not rationally related to a legitimate state interest.
Thomas I, at ¶92.
{¶13} In light of the foregoing conclusions, this court held “[a]lthough appellant
takes issue with the trial court’s imposition of life imprisonment without the possibility of
parole, our conclusion(s) that R.C. 2953.08(D)(3) is not unconstitutional precludes
consideration of appellant’s argument. Pursuant to R.C. 2953.08(D)(3), we are without
statutory authority to review appellant’s sentence of life imprisonment without parole for
aggravated murder.” Thomas I, supra, at ¶93. Even in light of Partick, given the nature
of appellant’s challenge, we hold this conclusion remains sound.
{¶14} Appellant, in declining to supplement his original brief, advised this court
that he wished to rely “on the arguments made on pages 42-44 of his [original] merit brief.”
Those arguments relate exclusively to challenges anchored to R.C. 2929.11 and R.C.
2929.12, allegations that his sentence is “in violation of statute” and thus “contrary to law.”
Appellant did not allege his constitutional rights were violated by virtue of the sentence of
life without possibility of parole; and appellant did not set forth a potential, alternative
statutory basis to challenge the trial court’s imposition of the sentence. Because the
authority to appeal a sentence as “contrary to law” is afforded by R.C. 2953.08(A)(4) and
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R.C. 2953.08(D)(3) precludes the appeal of a sentence for aggravated murder “under this
section,” it follows that appellant’s statutory, legal challenge is precluded. In Thomas I,
this court addressed appellant’s constitutional arguments, which only attacked the
constitutionality of R.C. 2953.08(D)(3), not the constitutionality of the ultimate sentence
imposed. We therefore confirm our original conclusion that appellant’s arguments
challenging his sentence as “contrary to law” are statutorily barred.
{¶15} For the reasons discussed in this opinion, the judgment of the Lake County
Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, J.,
MATT LYNCH, J.,
concur.
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