l

IN THE SUPREME COURT OF OHIO

/0

STATE OF OHIO, CASE NO.

Plarrntiff-Appseitee, On Appeal fraam thePortage County Court

vs. of Appeals, EleventhAPpeHate District

RALPH F. ^ ^ UND,Court of Appeals

Defeasaiant-.AppeHante Case No. 2012-PA-0139

-- - - - ----- - ------- - ------ - ---

ME1^^ RANDUM IN SUPPORT OF JURISDICTION OFAPPELLANT RALPH F. GARDUNO

- -- - ------ - - - ------- - ---------- - -- - ----- - ----- - ---- - --- - ---------- - ------- - - - - - ----------------

RaLPx F. GARDUNO#A.145_384Grafton Conrectional Tnstitution2500 South Avon Belden RoadGrafton, Ohio 44044

De.fendant-Appeliant, Pro-se:

VICTOR V. VIGLUICCIPortage County ProsecutorPAMELA J. HOLDERAssistant Prosecuting Attorney241 South Chestnut StreetRavenna, Ohio 44266

Counsels for Plaintiff-Appellee:

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CLERK OF G°C^^RT^U P R^^Ir^ tLO EO H^0

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TABLE OF CONTENTS

Page

EXPLANATION OF WHY THIS CASE IS A CASE OF PUBLIC OR GREAT GENERALINTI3REST AND INVOLVES A SIIBSTAN'I'IAL QUESTION

S`I'ATI11viE-NT OF THE CASE AND FACTS ... ... .... ..... .. . ...... . . . . . . ... .... . . .. . ... ...3

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW ................ ...............5

Proposition of Law: Does a modified `death' sentence to `life i.mprisomner<t'protride adequate knowledge of a`parole eligible' prisoner without indicationof whether the prisoner is parole eligible or has a`ininirnum' sentenee........... 5

\CONCLUSION . . . . . . . . . . . . . . . . . . . .. . . . . .. . . . . . . . . . . . . .. . . . . . .. . . . . . . . .. . . . . . . . ....$

CERTIFICATE OF SERVICE ...................................................................9

APPENDIX Appx.Page

Opinion of the Portage County Court of^Appea.ls(September 30, 2013) .......... .. .... , . ....................................1

EXPLANATION OF WHY THIS CASE IS A CASE OFPUBLIC OR GREAT GENE RAL INTEREST AND

EWt3LVES A SL^TBSTANTIAL CONSTITUTIONAL QUESTION

This cause presents a novel issue pertaining a defendant who's `death' sentence was

vacated and modified to `life imprisonment' following the decision by the United States

Supreme Court in.lockett v. Ohio, 438 U.S. 586 (1978) and Bell v. Ohio, 438 U.S. 637 (1978),

that Ohio's death penalty statute was unconstitutional.

At issue is whether appellant was entitled to a resentencing after the Ohio Legislature

statutorily mandated a procedural duty to `resentence' anyone who was charged with aggravated

murder allegedly committed prior to the effective date of the statute, i.e., October 19, 1981,

who's death sentence was vacated, to be sentenced to "life imprisonment with parole eligibility

after serving 15 full years of imprisonment, pursuant to former R.C. § 2967.19; .Am. Sub. S.B.

No. L"

The court of appeals held that the defendant was not entitled to the benefit of the statute,

because it had already modified the sdeath' sentence to life smprisoannent. However, there is

nothing documented to enable prison administrators to interpret whether or not appellant is

parole eligible. `Life inaprisomnent" is iife in prison. Thus, the legislature realized that there had

to be some guidance to alert prison officials that those lnn,ates affected by Lockett v. Ohio,

supra, are 'eligible' for parole consideration. Otherwise, the sentence as modified, in the instant

case, in State v. Garduno, I 1¢h Dist. Portage No. 710, 1979 Ohio App. LEXIS 12085 (Jul 2,

1979) ("Garduno .i") to `le imprisonment' does not entail knowledge of parole eligibility

whatsoever.

As argued in the Brief of Appellant below, a court speaks through its 3ournal entry. d 1

Ohio Jur., 758; Fountain v. Pierce (1931), 123 Ohio St. 609, 176 N.E. 444; Will v. McC,'oy, 135

I

Ohio St. 241, 20 N.E.2d 371; and, State ex rel. Indus. ^oaam. v. Day, Judge, 136 Ohio St. 477,

26 N>E.2d 1014. There is nothing in the decision for ("Garduno I') to provide prison

administrators with any indication that the appellant was `parole eligible'.

Because appellant is one of those described in former R.C. § 2967. i 9, pursuant to Am.

Sub. S.B. No. 1, which became effective October 19, 1981, he is entitled to a resentencing.

Otherwise, there is nothing to give the prison administrators notice that appellant is a`parole

eligible' prisoner. "Fonner R.C. § 2967.19 provided that anyone who was charged with

aggravated murder allegedly committed prior to the effective date of the statute, i.e., October 19,

1981, shall, *#*, "be sentenced to life imprisomnent with parole eligibility after serving 15 full

years of imprisomnent." The statute #iarther provided: "Any such person shall, upon

resentencing after the person's sentence of death is vacated, be sentenced to l fe imprisonment

withpar®le el%gil5ility after serving 15 years of ina,prisonment: "(Ernphcasis udded)

The decision of the court of appeals, in this case, threatens the structure of foriner R.C. §

2967.19, eff. 10/19/81, and left the prison administrators Nvith no guidance for determining

`parole eligibility' for the appellant, without trial court documentation setting forth the

jurisdiction, i.e., when the parole authority authorization begins, even though px-i:sora

administrators had knowledge of the particular 'parole hearing' date, they remain with nothing

more than a`guess' as to whether or not appellant is `parole eligible'. Since, of course, the court

of appeals, in State vGarduno, I, 11'h Dist. Portage No. 710, 1979 Ohio App. LEXIS 12085

(Jul. 2, 1979, modified his sentence by reducing it to simply `life itnprisomnent'. 'I1iis

modification left prison and parole administrators with no journalized minimum sentence to

parole eiigibiUty, or provided them with any knowledge of whether appellant was/is eligible at

all for `parole' consideration. Si-tnply put, appellant asserts that his sentence per journal entry

2

andlor court of appeals' modification lacks finality, correctness, or authority to incarcerate

beyond the 'minimum sentence' to parole eligibility without correcting the illegal sentencc

which should have been corrected by prison or parole administrators at some time between the

effective date of forner R.C. § 2967.19, provided that appellant should have been resentenced,

and the date of appella:nt:'s first parole eligibility date which occurred [unauthorized] in 1990.

Since, 1990, appellant has been back before the parole board several times, and still without a

corrected sentencing journat entry.

ln sum, this case puts in issue whether or not prison administrators are conducting `parole

eligibility' proceedings without any documented authority. (i.e., a valid maximum sentence after

the expiration of the valid minimum sentence. For these reasons, this court must grant

jurisdiction to hear this case and review the erroneous and dangerous decision of two of the three

panel members of the court of appeals.

STATEMENT OF '.i`HE CASE AND FACTS

011 February 18, 1975, the defendant Ralph F. Garduno (hereinafter referred to as

"appellant"}, along with Kenneth McI3aaticls, James Krug, and Karl Netolicky were driving from

Akron to Youngstown. As a result of a shooting occurring on their drive to Youngstown,

Netolicly was pronounced dead and Krug was rushed to a hospital. Krug had recovered on

February 20, 1975, and told the police that the Appeliant and McDaniels liad shot and killed

Netolicky. Warrants were issued on charges of Aggravated Murder for the arrest of Appellant

Garduno and McDa.niels. On August 29, 1975, Mcl3aniets was arrested and on November 18,

1975 Garduno was arrested.

o Following a trial by jury, both men were convicted and sentenced to the `death penalty". Specific

to the appellant, the imposition of the "Sentence of Death" was to be carried into execution on

3

the 15th day of September, 1976. A timely `direct' appeal was taken, and pursuant to the

Modification Ordered by the court of appeals in Crcarduno, I, supra, Appellant's sentence of

'Death' was vacated and inodif ed to ` life imprisonment'. Prior the court of appeaLs' decision

for July 2, 1979, the United States Supreme Court ruled that the Ohio system for deterrnining the

death penalty is unconstitutional because Revised Code Section 2929.04(B) is too limiting in

factors to be considered. See Sandra Lockett v. State of Ohio, 438 U.S. 586, 9$ S. Ct. 2954, 7-3-

7$.

As a result of the Lockett, supra, decision, this Ohio Supreme Court issued a`blanket

order' on August 16, 1978 to modify the judgane:nt of the trial courts as to a large number of

defendants on Ohio's Death Row.

On the date {$-I6-78} of this Court order, appellant's direct appeal was pending, hence

neither the appellant, nor his co-defendant, MeDaniels' nme appea:red on the list of the 54

names included in the August 16, 1979 Order of this Ohio Supreme Court. Thus, both appellant

and McDaniels remained on `death row' pending the outcome of their respective direct appeals.

See State v. McDaniels, Portage App. No. 707, 12-18-78. In other words, the Ohio Supreme

Court had no jurisdiction over appe.llant's direct appeal process when it issued its order for 8-16-

78.

Although the appellant was later movM off `death row', as was MeDaniels who has since

been paroled, it was due to the judgment in State v. Garduno, I, supra, where the court of

appeals rnodified his `death' sentence to i'ife imprisonment with no mention of ^vrole eligibility'

in its order. Revelant to this appeal is appellant's August 10, 2012 Motion for resentencing

under the authority of this Court's State v. I-ferrras, 2012 Ohio LEXIS 1000, finding that the

`illegal sentence doctrine' was the remedy to correct an illegal sentence.

4

The Court of Common Pleas overruled appellant's `motion to correct' on August 27,

2012 without `service of notice' being perfected causing appellant to seek review of his motion

via `delayed appeal', pursuant to Rule 5(A) of the Ohio Rules of Appellate procedure which was

granted by the court of appeals on December 21, 2012. The court of appeals affrrned the trial

court's jud,gznen.t on September 30, 2013 with a dissenting opinion favorable to the appellant.

In support of its position on these issues, the appellant presents the following argument.

ARGUMENT IN SUPPORT OF PROPOSITION OF LAW

Proposition of Law: Does a modified 'death' sentence to 'life imprisonmenfprovide adequate knowledge of a 'parole eligible' prisoner without andflcationof whether the prisoner is parole eligible or has a `minimum' sentexace¢

The court of appeals committed prejudicial error when affrning the trial co-urt's decision

to deny appellant's motion to correct iHegal sentence, pursuant to Crimiaaal.llule 36; and State v.

Harris, 2012 Ohio LEXIS 1000, where in this case, became correctable on October 19, 1981, in

former § 2967.19; 139 v S I, e^`f, 10-19-81.

In the 1970's the United States Supreme Court held that Ohio's death-penalty statute was

unconstitutional. Lockett v. Ohio (1978), 438 U.S. 586, 98 S. Ct. 2954, 57 L.Ed.2d 973. In an

entry dated. August 16, 1978, this Ohio Supreme Court modified and reduced the death sentence

for 54 prisoners [then] on Ohio's death-row to `life imprisonment'. Appellant was not among

the 54, because his `direct appeal', State v. Garduno, I, fl lth Dist. Portage No. 710, 1979 Ohio

App. LEXIS 12085 (Jul 2, 1979), modifying the sentence by reducing it to `life imprisonment'.

Among the 54 prisoners, this Court removed from death-row, was Duran Harris, who on

October 30, 1998 filed a motion for post conviction reliel: See State v. Duran Harris, Cuy. App.

No. CA76020, 2000 WL 354764 (Ohio App. 8 Dist.). In Duran Harris, supra, the court of

5

appeals affirtned the trial cn-urt's "re-%.rn:pmsed" , 'life sentence on the aggravated murder count.

I'he Court noted:

"R.C. § 2929.06(A) now requires that the trial court conduct aresentencing hearing when a death sentence is vacated upon appeal.We note, however, that R.C. § 2929.06(A) was enacted on October19, 1981. When the supreme court vacated appellant's dcathsentence, on August 16, 1978, Ohio law did not require that the trialcourt conduct a resentencing hearing."

Had the (2000) Duran Harris, supra, court taken a closer inspection of R.C. § 2929.06, it

would have ascertained that R.C. § 2929.06 was not intended to have retrospective application

on convictions for aggravated murder obtained prior to its enactrnent on October 19,1981. Thus,

R.C. § 2929.06 had no application to the (2000) State v. Durcan Harris, supra, decision. It also

has no application to the instant case.

Rather, on the same date as R.C. § 2929.06 becaane e#Tective, 10-19-81, Ohio's

laegislature provided:

"R.C. § 2967.1's THE HISTORY: [130 v Pt. 2, 156 (Eff: 3-18-65);134 v 11511 (eff 1-1-74), 139 v 1(elT 10-19-81); 139 vS 199 (eff.7-1-83); 140 v S 210 (eff. 7-1-83)", provides:

"SECTION 3. Any person who is charged with Aggravated Murderand who is alleged to have cc ►rnmitted the aggravated murder priorto the effectkve date of this act shall, ***be sentenced to life imprison-ment with parole eligibility after serving fifteen full years of Arnpr2so:n-ruont. The person shall not be eligible for diminution of the tirne thatis required to be served before parole eligibility under section 2967.19of the Revised Code. Any such person, upon resentencing after thepersnn's sentence of death is vacated, be sentenced to life imprisonn3.entwith parole eligibility after serving fifteen years of imprisonxnent.9'

Appellant asserts ffiat Appellee wili likely argue, like it did below, that: In 1978, forrner

R.C. § 2953.07 provided:

"Upon the hearing of an appeal the court may affirm the judgmentor reverse it, in whole or in part, or modify it as provided in division(D) of section 2945.79 of the Revised Code and order the accused tobe discharged or grant a new trial."

6

Former R.C. § 2945.79 goverried causes for new trial and division (D) provided an

appellate court may modify the verdict or fmding accordingly, without granting or ordering a

new trial, and pass sentence on such verdict or finding as modified, provided that this power

extends to any court which the cause may be taken on appeal.

Here, appellant's direct appeal, State v. Garduno, I supra, did not result in a new trial,

nor did it result in affirming the `death penalty' sentence. Hovyever, when referring back to State

v. Duran Harris, supra,the Eighth District, as quoted supra, noted:

"When the supreme court vacated appellant's death sentence, onAugust 16, 1978, Ohio law did not require that the trial court conpduct a resentencing hearing."

As stated supra, Ohio passed *** SECTION 3, Senate Bill 1, effI0-19-8I, which

requircd resentencing, not only for appellant herein, but also for all others who4s `death-penalty'

sentence was vacated pursuant to Lockett vOlairr, supra.

While appellant's modified sentence was subject to the statutory parole eligibility in

former R.C. § 2967.13(B), it cannot be ascertained how the Ohio Adult Parole Authority

(OAPA) was able to interpret that appellant was a`parole eligible' inmate by a sentence which

was nzodrfaed to only `life imprisorgaraent'e

Thus, since appellant should have been resentenced pursuant to R.C. § 2967,19; 139 v S 1, eff.

10-19-$I; Criminal Rule 36; and State v. Harris, 2012 (:Dhio LEXIS 1000, it appears that

whoever was charged with the task of making arrangements to have the appellant resentenced

dropped the ball, not only for appellant, but for all those dese.ribed supra, in this Court's August

16, 1978 order. In other words, there was no documentation (i.e., joua°nal eiriry of sentence)

7

instructing the (OAPA) to provide appellant with `parole eligibility'. The modified sentence to

`life irnpriso.nrnent' is just that: "LIFE IMPRISONMENT". NOT ELIGIBLE FOR PAROLE!

Finally, when this Court stated in State v. Harris 2012 Ohio LEXIS 1000:

"A motion to correct an illegal sentence presupposes a valid con-viction and may not, therefore, be used to challenge alleged errorsin proceedings that occur prior to the imposition of sentence." SeeEdwards v. State (1996), 112 Nev. 704, 708, 918 P.2d 321, quotingAllen v. United States ( D.G. 1985), 495 A.2d 1145, 1149. It is,however, an appropriate vehicle for raising the claim that a sentenceis facially illegal at any tiinee"

Accordingly, the court of appeals committed prejudici.al crror when failing to reverse the

judgment of the trial court, because the (OAPA) had no way of lsnomi.ng whether or nat appellant

ivas a`parole eligible' inmate with 'only' a modified sentence of 'life imprisonn2ent'. As a

result of the court of appeals' decision, appellant is left without a proper journalized sentencing

order as required in a manner provided by law. Appellant was denied i7:is fourteenth amendment

right to `due process of law' under the United States' Constitution's Fifth, Sixth, and Fourteenth

Amendments.

CONCLUSION

For the reasons discussed above, this case involves matters of public and great general

interests and a substantial constitution qnestion< The appellant requests that this court will accept

jurisdiction in this case so that the important issue(s) presented will be reviewed on the merits.

Respectfully submitted,

P:At:,{P14 F. GARDUNO#A145-384Grafton Correctional Institution2500 South Avon Belden RoadGra:£ton, Ohio 44044

8

CERTIFICATE OF SERVICE

I certify that a copy of this Memorandum in Support of Jurisdiction was sent by ordinaryU.S. mail to counsels for Appellee, Victor V. ttigl.taicci, and Pamela J. I-Iolder,1'ortage CountyProsecutor's Office, 241 South Chestnut Street, Ravenna, Ohio 44266 on November _L_, 2013.

4 !t ^ ` ;`

RALP F. GARDUNODeferadant-Appellant,1'ro-se

tii :jb ft^^ ^aUM FialiA,^ U1.EKK uRX No, 330 297 4554 P. 011/011ee

STATE OF OHtO^

)SS.)

IN THE COURT OF APPEALS

COUNTY OF PORTAGE

STATE OF OHIO,

Plaintiff-Appe1#ee,

ELEVENTH DISTRICT

JUDGMENT ENTRY

CASE NO. 2012-P-0133' vs ' FILED

RALPH FRANCIS GARDUNO, COURT OF APPEALS

SEP 3 U 2013Defendant-Appeliant.

LINDA K FANKHAUSER, CLERKPORTAGE COUNTY, OHIO

For the reasons stated in the opinion of this court, appellant's assignment

of error is without merit. It is the judgment and order of this court that the

judgment of the Portage County Court of Common Pleas is afrirmed.

Costs to be taxed against appeilant.

,a;IUDGE CY THIA V1lESTC TT RICE •

TIMOTHY P. CANNON, P.J., concurs,

COLLEEN MARY O'TOOLE, J., dissents with Dissenting Opinion.

}^r, f LU! J! ::L FM UUM FLEA^; i;LEKIS kAn No. J'3Li lT! 45^4

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

F. 'OUi/U11

FtLEDCOURT OF APPEALS

SEP 3 Q 2013PORTAGE COUNTY, OHIO LINDA K FANKHAUSER, CLERK

PORTAGE COUNTY, OHIO

STATE OF f)HIO, OP' iy t p N

Piaintiff-P'tppeilee,

- VsA

RALPH FRANCIS GARDUNO,

Defendant-Appelaant.

CASE NO. 2012-P-0139

Criminal Appeal fmm the Portage County Court of Common Pleas, Case No. 75 CR144A.

Judgment: Afifirmed.

Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, AssistantProsecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-AppeiPant).

CYNTHIA WESTCOTT RICE, J.

I¶1) Appellant, Ralph Francis Garduno, appeals the judgment of the Portage

County Court of Common Pleas denying his motion for resentencing. Appellant was

sentenced to death in 1976 following his conviction, after a jury trial, of aggravated

murder. At issue is whether appellant was entitled to a resentencing after this court in

State v. Garcfuno, 11th Dist. Portage No. 714, 1979 Ohio App. LEXIS 12085 (Jul 2,

1979) ("Garduno l'), modified his sentence by reducing it to life imprisonment. This

Ju/ Z ui VMuPi u1: 3 'l YM GUM PLEAS CLERK FAXNo. 939 297 4554 P. 0021011

court modified appellant's sentence following the decision by the United States

Supreme Court in Lockett v. Ohio, 438 U.S. 586 ( 1978) and 8ell v. Qhio, 438 U.S. 637

(1978), that Ohio's death penalty statute was unconstitutional. For the reasons that

follow, we affirm.

1¶2) On February 18, 1975, appellant, Kenneth McDaniels, James Krug, and

Kari Netolicky were driving from Akron to Youngstown. Appellant was driving and his

accomplice, McDaniels, was in the front passenger seat. The victims, Krug and

Netolicky, were in the back. Appellant stopped the car in an isolated area, and

McDaniels pulled a gun on Krug and Netolicky. Appellant told the victims he was under

orders to either kill them or he would be killed.

{¶3} Appellant and McDaniels had the victims get out of the car. Krug and

Netolicky walked to the edge of the road. Suddenly, Netolicky was shot. Krug was then

shot and collapsed. Krug was then kicked in the head. Appellant ordered McDaniels to

°shoot them in the head." Krug and Netolicky were found at about 5:00 a.m. by a

passing motorist. Krug was rushed to the hospital where he was found to have multiple

bullet wounds, one of which shattered his spine causing him to be paralyzed from the

waist down. Netolicky also sustained several bullet wounds resulting in his death.

{^4} Krug identified appellant and McDaniels as the assailants. Warrants were

issued for their arrest, and both were apprehended toward the end of 1975.

1¶5} After the case was tried by a jury, appellant was found guilty of aggravated

murder with specifications and attempted aggravated murder. i"ollowing a mitigation

hearing, on May 27, 1976, the trial court sentenced appellant to death for aggravated

2

j^ i^u; ^ u! ^imuiu u! :JJ rN! t,uM rUN^, L.il>;Eti r'Ax No, 33U ly'l 41N P. 003/O11

murder and seven to 25 years in prison for attempted aggravated murder. Appellant

appealed his conviction to this court.

{$6} li+lhiie appellant's direct appeal was pending, the United States Supreme

Court in Lockett and Bell held that Ohio's statutory scheme for determining the death

penalty was unconstitutional. These cases were remanded to the Supreme Court of

Ohio for further proceedings.

{$7} Pursuant to this remand, the Ohio Supreme Court issued a judgment

entry, dated August 16, 1978, ordering that the judgments in 54 listed cases affirming

the death sentence of each defendant named therein be modified and that the death

sentence of each such defendant be reduced to life imprisonment. Appellant's case

was not included in this list as it was still pending in this court when the Supreme Court

of Ohio issued this entry.

{¶.8} This court, in Garduno l, modified the trial court's judgment "by reducing

the penalty from death to life imprisonment and affirmed as modified." Id. at "13. This

court stated that, "[i]n doing so we follow the action of the Supreme Court of Ohio in its

entry of August 16, 1978." Further, this court in its judgment entry, dated July 2, 1979,

"modified and affirmed as modified" the trial court's judgment and incorporated this

court's decision. Appellant did not appeal this court's judgment to the Ohio Supreme

Court.

M9} Instead, 32 years later, on September 19, 2011, appellant filed a motion in

the triat court for resentencing pursuant to R.C. 2929.06. Thereafter, appellant filed a

supplemental motion for resentencing pursuant to former R.C. 2967.19. The trial court

denied appellant's motion for resentencing by its judgment entry, dated August 27,

3

3Di'?01 "3/i^ON Q? :;3 FM COM P,'..EA> CLERK FAX No. 313Q 297 4554 P. 004/014 1

2012. Appellant appeals the trial court's judgment, asserting the following for his sole

assignment of error:

{¶14J "The trial court committed error when denying motion to correct illegal

sentence, in a vacated death-penalty case, pursuant to R.C. 2967.19; 139 v S 1, eff. 10-

19-81; Cr7nainal Rule 36, and, the dictates of State v. Harris, 2012 Ohio LEXIS 1000,"

{T1.i1 This case involves the interpretation of criminal statutes, which presents

an issue of law that is reviewed de novo on appeal. State v. Consilio, 114 Ohio St.3d

295, 2007-Ohio-4163, ¶8. A court does not need to interpret a statute "when statutory

language is plain and unambiguous and conveys a clear and definite maning."

Campbell v. Carlisle, 127 Ohio St.3d 275, 2010-Ohio-5707, 18.

{¶lZt In appellant's initial motion for resentencing, he argued he was entitled to

a resentencing pursuant to R.C. 2929.06. That statute provides that if a death sentence

is vacated on appeal based on the unconstitutionality of the statutory procedure for

imposing the death sentence, the trial court that sentenced the defendant shall conduct

a resentencing hearing. Appellant argued in his motion for resentencing that, once

Ohio's death penalty statute was held to be unconstitutional, this court was not

authorized to modify his sentence. He argued this court's authority was limited by R.C,

2929.06 to vacate his death sentence and to remand his case to the trial court for

resentencing.

(¶13) The Supreme Court of Ohio addressed this same argument in Johnson v.

Mitchell, 85 Ohio St.3d 123 (1999). Johnson's death sentence was modified to life

imprisonment by the Ohio Supreme Court's order of August 16, 1978. Twenty years

later, he filed a petition for a writ of habeas corpus, arguing he was entitled to be

4

^trl -lu; %U1 VY10 ui :-iq rm UuM tYLEAS CLERK FAX No, 030 297 4554 P, 005/011

released because he had not been resentenced in the trial court after his sentence was

modified. In Johnson, the Ohio Supreme Court held that, since R.C. 2929.06 did not

become effective until October 19, 1981, three years after Johnson's sentence was

modified, the statute did not apply to him. Id. at 124. As a result, the Court held that

Johnson was not entitled to a resentencing after his death sentence was modified. Id.

{114} Likewise, here, R.C. 2929.06 was not effective until two years after this

court modified appellant's death sentence. Thus, pursuant to Johnson, R,C, 2929.08

did not apply to appellant, and he was not entitled to a resentencing pursuant to this

statute.

{^15} Appellant concedes that R.C. 2929.06 does not apply to his case. He thus

abandons this argument on appeal, acknowledging that, because his sentence to death

was modified in 1979 and thus prior to the effective date of R.C. 2929.06, that statute

did not entitle him to a resentencing.

{116} Alternatively, appellant argues that, pursuant to Am. Sub. S.B. No. 1,

which also became effective October 19, 1981 as former R.C. 2967.19, he was entitled

to a resentencing. Former R.C. 2967.19 provided that anyone who was charged with

aggravated murder allegedly committed prior to the effective date of the statute, i.e.,

October 19, 1981, shall, upon conviction, "bs sentenced to life imprisonment with parole

eligibility after serving 16 full years of imprisonment." The statute further provided: "Any

such person shall, upon resentencing after the person's sentence of death is vacated,

be sentenced to life imprisonment with parole eligibility after serving 15 years of

imprisonment," (Emphasis added.)

5

"SE;U U/-^U13/MiaN U1:34 PM COM PLEAS CLERK :AX No, 330 297 4554 P. 006/011

{¶17} According to the plain and unambiguous provisions of former R.C.

2967.19, the statute only provides for resentencing when a defendant's death sentence

has been vacated. Here, appellant's death sentence was not simply vacated. Instead,

this court modified appellant's sentence by reducing the penalty from death to life

imprisonment and affirmed the sentence as modified, Since this court modified

appellant's sentence, he was not entitled to resentencing by the trial court pursuant to

former R.C. 2967.19.

M18} AppeAant has not drawn our attention to any pertinent case law holding

that former R.C. 2967.19 required that an offender be resentenced when his sentence

had been modified by an appellate court. However, our holding that appellant is not

entitled to a resentencing finds support in the August 16, 1978 order issued by the

Supreme Court of Ohio. In that order the Court modified the death sentence in 54

cases before it by reducing the penalty to life imprisonment; the Court did not remand

the cases to the respective trial courts for resentencing.

1¶191 In any event, by modifying appellant's sentence, this court in effect

resentenced him. First, there is no question that this court had the power to modify

appellant's sentence as it did in Garduno I. R.C. 2501.02, which was in effect in 1979,

provides that the courts of appeals "shall have jurisdiction upon an appeal upon

questions of law to review, affirm, modify, set aside, or reverse judgments * * * of courts

of record inferior to the court of appeals within the district *"` " for prejudicial error

committed by such lower caurt." Further, former R.C. 2953.07, which was also in effect

in 1979, provided that an appellate court may affirm, reverse, or modify the judgment as

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provided in R.C. 2946.79(D). The latter provision granted to the appellate court the

power to modify the verdict and pass sentence on such verdict as modified.

(¶20} In addition, appellant concedes in his brief that his modified sentence was

subject to the statutory parole eligibility in former R.C. 2967.13(B), which became

effective on October 19, 1981. That version of the statute provided: "A prisoner serving

a sentence of imprisonment for life for the offense of * * * aggravated murder, which

sentence was imposed for an offense committed prior to the effective date of this

amendment j'i.e., October 19, 19811, becomes eligible for parole after serving a term of

frfteen full years_" (Emphasis added.)

{¶21J Since this court exercised its power to modify appellant's sentence and his

modified sentence was subject to the parole eligibility provided in former R.C.

2967.13(B), the effect of this court's modification was to resentence him to life in prison

with parole eligibility after he served 15 full years in prison. Since this would have been

the only available sentence if this case had been remanded to the teial court, appellant

was not entitled to a resentencing.

{¶22} Appellant argues his sentence was illegal because the trial court's entry

sentencing him to death is the only sentencing entry in this case and the Adult Parole

Authority ("the APA") could not have determined his parole eligibility date from that

entry. However, as a result of this court's decision in Garduno l, appellant's sentence

was modified. No other sentencing entry was necessary to reflect this modification of

appellant's sentence. Thus, contrary to appellant's argument, the trial court's entry

sentencing him to death was not the only sentencing entry in this matter. Further, since

the parole eligibility provisions in former R.C. 2967.13 applied to appellant's case, he

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was eligible for parole after serving 15 full years in prison. Thus, the APA could

determine appellant's parole eligibility date from his sentence as modified by this court.

;¶23} Finally, appellant argues he should be discharged because the APA failed

to obtain a"proper sentencing journai entry that described this court's 'modified

sentence."' He argues that, without such an entfy, the APA lost custody over him. As a

result, he argues the "maximum sentence" imposed by this court is void and he should

be immediately released. This argument lacks merit for several reasons.

{¶24} First, appellant fails to draw our attention to any statutory obligation

requiring the APA to obtain a resentencing entry or that such an entry was necessary in

light of this court's modification of his death sentence.

{125} Second, appellant does not make a credible argument, by reference to

pertinent authority, that the APA lost custody over him.

1^26} Third, it is unclear as to what appellant is referring when he refers to his

"maximum sentence" and asks that it be vacated as void, There is no minimum or

maximum sentence here. He was originally sentenced to death. Thereafter, this court

modified his sentence by reducing the penalty to life imprisonment.

1127} Fourth, because appellant is arguing he should be immediately released

from custody, he appears to be asserting entitlement to habeas corpus relief. Habeas

corpus is an available remedy only in "certain extraordinary circumstances where there

is an unlawful restraint of a person's liberty "' `*," State ex rel. Jackson v. McFaul, 73

Ohio St.3d 185, 186, (1995). "Additionally, habeas corpus lies only if the petitioner is

entitled to immediate release from confinement." fd. at 188. Appellant has failed to

demonstrate his entitiement to immediate release from prison. While appellant was

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eligible for parole after serving 15 fu(i years in prison under R.C. former R.C. 2967.13,

eligibility for parole does not equate to entiflemen#to it.

(¶28) Fifth, appellant argues that, because he was never resentenced in a

proper resentencing hearing, he has never become eligible for parole. However,

appellant concedes in his brief that his modified sentence was subject to the parole

eligibility provisions in R.C. 2967.13 and that the APA has asserted jurisdiction over his

parole eligibility proceedings.

{¶29} For the reasons stated in the opinion of this oourt, appellant's assignment

of error is overruled. It is the judgment and order of this court that the judgment of the

Portage County Court of Common Pleas is affirmed.

TIMOTHY P. CANNON, P.J., concurs,

COLLEEN MARY O'TOOLE, J., dissents with a Dissenting Opinion,

COLLEEN MARY O'TOOLE, J., dissents with a DBssenting Opinion.

t¶301 I respectfully dissent regarding whether this matter should be remanded

for resentencing. As the majority notes, in Garduno t, this court followed the example

set by the Supreme Court of Ohio after the United States Supreme Court's declaration

that Ohio's death penalty scheme was unconstitutional: i.e., this court modified

appellant's death penalty to life imprisonment, and affirmed as modified. However, it

does not appear that this was the only course of action open to this court in 1979: it

appears this court could have remanded the matter to the trial court at that time for

resentencing. I respectfully believe there is a difference between cases which have

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already passed through the courts of appeals, and are pending before the state's

supreme tribunal, and those which remain in the courts of appeais, While this court

certainly had the power to do what it did in Garduno i, I believe the power to modify

felony sentences should be used spacingly, especially in such serious cases as murder.

Our common pleas bench is particularly tasked with fashioning felony sentences: the

experienced trial judges of common pleas are better situated to do it than this court.

ConsequentRy, I believe that the best course of action now, as then, is a remand for

resentencing.

IT31 J Appellant has not filed a request for habeas corpus. It is a request for

resentencing. Therefore, I disagree with the majority giving an advisory opinion on

appellant's rights to relief under habeas corpus,

{¶32} I respectfully dissent.

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