v. - supreme court of ohio phone video of the killing existed. he found the owner of the cell phone,...
TRANSCRIPT
IN THE SUPREME COURT OF ^^^
^^^^^ ^^ 01-ROf
PLAINTIFF-A^PET.T.EE,
V.
Tnrfs^7'u.'S' JONES,
^ CAJ^.", 1°d'y<'//f
ON I3ISCRETIONA^'^.Y APPEAL FROM THE
CLM^.<. COL3N'PY COL-RT OF APPEALS,
SECOND APPELLATE E^^STRicT,
CASE Noe 2012 CA 61
DEFENDANT-.A,PPELLAN1
MEMORANDUM IN S U.^^^ORT OF JURISDICTION OF
APPELLANT DMO^HY JONES
Clark County Prosecutor's Office
Lisa A. Fannin, 0082337
Assistant Clark County Prosecutor
Office of the Ohio i3ublic Defender
Stephen P. Hardwick, 0062932Assistant P-ubIic Defender
50 E. Columbia StreetSpringfield, Ohio 45502937-521-1770937-328-2657 (fax)
Counsel for Appellee, State of Ohio
250 E. Broad Street, Suite 1400Columbus, Ohio 43215
(614) 466-5394; (614) 752T5167 (fax)siephe-.n..h.a^dwl^^^^pd.ohio.^^^^
Counsel for Appellant, Timothy Jones
APR
'si;,
TABLE OF ^ONI'IENTS
^^.^No..
THI..'^ CASE INVOLVES A SUBSTANTIAL CONS11TU'^ONAL QUESTION AND ^
OF 13UBLIC AND GREAT ^ENERAI:. INTEREST . ......................................................................^
STATEMENT OF'I'HE CASE A.N-D THE FAC'Ts .......................................................................3
ARGUMENT .......................................... ---- .......................... .... ........... ...... ..,............. ,..o...........6
Pr€^position of Law No. 1:
Ohio Revised Code Section 2505.02 gives appeil^t -0, cotirts jt^^sdiction toreview sentences for aggravated murder > ...................................a...,.,....,......,..,.,.,....,.,6
Propositio-n of Law No. U.
A trial court shouid. sentence a. defendant to life without parole when asezitence of life with parole eligibility is adequate to punish the defendantand protect the pLablic ......................................................... ...... ...... ....e.,.,.,................... 8
Proposition of Law No, ilI:
In an_ aggravated murder case, a trial court must not give the "gist of theoffensep9 instruction concerning "pu^^^^^fui`r acts .......... .................................... ..... :1.2
CONCLUSION ................................ ........................................... ........... ...................o............. .,.14
CERTIFICATE OF SE^VICE ..............................a..................,.,......,......,.,.,,.,.,.,..o..,...,....,.,......,.,is
i
TABLE OF CONTENTS
Page No.
APPE.NT3IX:
Decisaon a-nd Entry, Clark County Court of Appeals Case No. 201.2 CA 61(March 6, 2014) .........,..o.e.o....o ....................e...,.,..e.e.,........a.,.>..o...................,......o.,....o.aAm1
Opinion, Clark County Court of Appeals Case No. 2012 CA 61(November 5, 2013) ....,....e ....................o.a.o....................,.......,......,......o.o................,.. A-4
Final Entry, Clark County Court of Appeals Case No. 2012 CA 61
(November 5, 2013) ....o ...................e.,.................,......o.o.o......................,.,......,.........Am19
ii
THIS CASE INVOLVES A ^^STANII'IAL CONS111 UI`^ONAL QUESTION
AND IS OF PUHLIC AND GREAT ^^^ERAI. INTEREST
This Court should accept thi.s case to correct the widespread and ^^erly-^broad
interpretation of Sttate v. Porterfxeld,1.06 Ohio St.3d 5, 2005aOhio-30€35, 829 N.E.2d 690,
that affects all non- death ^^^^^iices for agg:^^vated m^rdero In .^^^^erfield, ^tie parties
briefed and argued the question of whether R.C. 2953,08 corLfers jurisdiction on an
appellate court to co-nsidez° a. challenge to a d^^en€^anCs life sentence to aggravated
murder. `i1-tis Court correctly answered, no, it does not. But the parties did not brief, and
this Cotirt did. not analyze, the first eight words in R.C. 2953.08.`fIn addition to any
offier right to appeal. . . "'
Those eight words expressly state that R.C. 29-5s,08 does not take away the right
to appeal ^rider other sections of the revised code. Those eight words are important
because R.C. 2505.02 and 2505.03 give a defendant the right to appeal arty final order,
i-nciudiiig a iAf^ sentences for aggrava-ted murder. 'rhose eight words give the Second
District jurisdici:ion to review the consecutive life sentences in this case,
But, by a 2-4 vote, the Second District eschewed that jurisdiction in tMs case.
'l:he court held that the strict language of Pr^^^e^t'ield precludes any consideration of a life
sea^^en.ce for aggravated m-Lirder. The maj€^nty's decision is consistent with the decisions
of €^^lier districts., see, e.g., State v, .Patterson6 5th Dist. Stark No. 2012CA00098, 2013aOhioy
1647y 1167y State v. Reed, 7tl-i Dist. Mahoning No. 09MA53, 2010mOhio-1096, 'ff 25-6p State
v. McDowell, 10th Dist. Franklin No. 03APT1187, 2€7059Ok€i.r^^6959y 11 73, reversed o.n. other
ground, In re Criminal Sentences Cases, 109 OWo St.3d 411, 2006-Ohzo-2:394, ff 7.5, 848
N.E.2d 809.
The lower courts consistently err because they are giving an overlv-broad.
ir€.te.-rpretation to language ir€. Porterfield, in which this Court wrote:
R.C. 2953.08(D) is unambiguous. "A seritence imposed for aggravated
murder or murder pursuant to section 2929.02 to 2929.06 of the Revised
Code is not subject to revie-^^^ u-nder this section" clearly means what itsays such a sentence cannot be reviewed. (Emphasis added.)
Id. at 11 17, The lower courts are applying those words, "such a sentence cannot be
reviewed[J"' out of context. In doing so, those courts miss this Court's admonition that
it's holding in any given case "must be read an. the context of the facts of that case." State
v. Bush, 96 OMo St.3d 235, 2002-Ohio-39339 IR 10, 773 N.E.2d. 522„
`I.'he context of Porterfield shows that tMs Court did not i-ntei-€d that lower co€:€rts
shoul_d. disregard the first eight words of R.C. 2953.08. To the contrary, th.^s Court
enforced a strict def°,r€ition of the word "section" to apply wherever the word appeared
in R.C. 2953.08, .Porter^°ield at 11 14m1'o. And applying the strict definition of "section," the
clear language of R.C. 2953,08(D)^3^ baiis review of aggravated murder sentences only
under R.C. 2953.08- r'A sentence irnposed for aggravated murder or murder purs€:€a-nt to
sections 2929.02 to 2929.06 of the Revised Code -is not subject to review under this
section." (Emphasis added.) Coupled with the first eight words of R.C. 2953.08 (,^In
addition to any other right to appeal"), it should be clear that the General Assembly
2
contemplated that a defendant could have "[an]other xiglit to appeal" and aggravated
murder sentence under another section of the Ohio Revised Code.
judge Froelie-3.°s dissent is correct. Ohio Revised Code ^^cton. 2953e08 °"allows
the right to appeal. - except in certain sita.iatlonsj including aggravated murder - on
speciffic listed grounds; it does not p^oMbit an appeal, eveii. in cases of aggravated
murder, on other, non-listed groundse" Opinion at l 43 (Froelich, I. dissenting). But to
hold otherwise, lower €^ourtg are relying on a misinterpretation of language from this
Court. Accordingly, only this Court can correct the error.
STA't'EMEN'I' OF THE CASE AND T:TE FACTS
Dovon Williams :Eoaxght witl-i and beat up Appellant 'I`1.rriotliy Jones at least twice
before the incident that led to Wi.lliams` death. And the video of this a^^^erLse shows why
Williams won. the. fights --^ ^^ was a larger, more imposing young rnan than Mr. Jones.
The State conceded that both Williams and the other vgctin.i., Aa-brie Smith, were d-rug
dealers who had drugs on them when.^ounda -According to the video of the incident,
Timothy Jones learned that Williams had been visiting the home of ^^ones"^ girlfriend
when;ones was not there. W^^ii Jor^^s arrived to confront Willzarns, Williams crudely
t^eatene^.1. and dared the smaller Jones to start a third fight:
Round 3 n*****, What you wanna do? What you waxna do? I'h,at youwarm^ do? What you wanna do? She called me up there. She called ine upthere. She called me. She called me there. She called me there.[unintelligible] I can do whatever the -fa.ck I ^a-nt. What you gonna do,n*'**? What you gan-na do? 1AThat you gonna do? What you gonna do? Ican do whatever the fuck I want, n****, n*****. I ain"t no hoe, n*"***6 and
3
you aft-i°t goz-Lna. talk to me like no hoe9 You aiii't gonna play me,^Whack, nDon.ft go [unintelligible]. , . n*k^^^s all the time,nVVhack, n*****. She calls me over there I'm. coming over t}iere. Yo^^[-u^intelligible] do something about it. Do something about it, n"****, Dosometl-dng about it, n*****. Do something about it. [unintelligible and talkfrom someone next to the phone; . . s n****e [^nint^Ri-gib1e] Next ^^^e voLlstep back up you hear? Now move out of the way. [unintelligible] Youstep back up, youhear. There's not enough to talk about. `Ihere's notenough to talk about. Wbaes up. What's up. Shut the fuck up, mano Getthe fuck out of my sighL T. don't want no n***^^ ^^^u-nd, [unintelligible]Just go pick your ass up n***** ,
Mr. Jones responded, "Who is the bitch, and who is t.he dude now, bra?" Aiid
then the gunshots were fired. Police and paramedics quickly airivedo Williams was
dead on the scene with a gunshot wound in the chest. ^mifh had a gunshot wound in
the head, and was taken to one ba^^it-al, and. tkaen. flovvn to a second, btik he died from
the wound.
When Williams's brother Jamaal beard rumors that Timothy Jones was the
shooter, he retrieved a gun and went looking for Jones. Ja^naaI tben. lieard that a cell.
phone video of the killing existed. He found the owner of the cell phone, who showed.
Mm the video. The owner of the phone did not wa-n^ to part with his new cell phoiie, so
he gave the phone's nteznoxy card to Janiaa1.
At the t-rial, the State's witnesses said that they were at the scene, and that the
video ^howed ivb^^ they sa_,v. .%4a-. Jones's theory was that the vi-deo card was altered,
but theState's witnesses said thaL they could ri^^ have created a fake video that would
appear real.
I Undersigned counsel transcribed the video, which was admitted into evidei-iee,
4
Afte-r the evidence was presented, the trial court instructed the jury that Mr.
Jones acted purposefully even if fie did not specifically intend to Ul the victims:
When the gist of the offense is a prohibition against conduct of ^^ertainnature, a person acts purposely if his specific intention was to engage inconduct of that natLireD regardless of what ne may have intended toaccomplish by his -conduct.
Id. at 1194. The jury convicted Mr. Jones as charged of two counts of aggravated murder
with. fi^ea^ni specifications, as well as h.aviiig a weapon under disabili.ty. Id. at 1214-1.5.
No presea-at^ence investigation report was created, and the trial r^ourt^s entire
^nnoun^^^ei-it of setiten.ce was as follows:
THE COURT; A.11right. Coua-it One, the aggravated murder of DovonWilliams, the Cour't is going to order ti-iat the defendant be sente-nced to'ii^e without parole, plus three years fox tr^e gun specilicati^ii. I^^^ CountTwo, the aggravated murder of Arbrie Sr^^^li, the Court is going to orderthe defendarit be sentenced -ko life without parole, plus three years for ffiegun specffication. For Count Three, the having weapons uiider disability,the felony of the third degree, the Court is going to impose a sentence ofthree years zn. the Ohio State Penitentiary. C:ourit^ One and Two wiil runconsecutive to o^^e another. Courit Three will run concurrently to CountsOne and `I`wo.
The senten.ci^^ entry adds the .t'oiloNving rote findings, to support coiLsee^tiv^
sentences:
`I`^e Court finds that consecutive terms are (1) necessary to protect the^omniunity and to punish the defendant, (2) i-iot disproportionate to the
cri-mes committed and the harm caused, and (3) needed to protect Uie
public given the defendant=^ crintinal history.
The ent-y does not include any analysis of the seriousness or recidivism factors
of R.C. 2929.12, but it also adds ^oLirt costs, atkorzaey fees, and other unspecified
financial sanctions. Neither the entry nor the sentencing transcript explain how running
5
sentences of life -wit-hout parole consecuti.-velv couId possibly be needed to protect the
public.
Mr. Jones appealed, challenging a. jury instruction, as well as the trial court's
decision to in-ipose sentences of life without parole, as well as the trial court's decision
to run the sentences ^^iisecutively, 7'^^ court of appeals a^^^rmed the coilviction, but
heid that it offlv had jurisdiction to review the c€^^^cu.t^^e nature of the sentences. The
court then reversed. Mr. Jones's sentences for resentencing solely to determine whether
the sen_tences should b^ ran ^^ii^ecutgvel^r.^
ARGUMENT
Proposition of Law No. 1o
Oh^o Revised. Code Section 2505,02 gives appellate courts jurisdiction toreview sentences for aggravated murder.
J:lie first eight words of ReC, 2953,08 ----, sr[i]n addition to any other rg.^lit to
a^^eal" - state that the section is creating a right to appeal fhat supplements, not
replaces, other statutory rights to appeal. Because R.C. 2953.08(D)(3) limits appeals of
aggravated murder sentences made under that section, such sentences can be appealed
pursuant to any other section of the Ohio Revksed. Code.
01-do Revised Code Sections 2505.02 and. 2505.03 provide that "other right to
appeal" because they permit the appeal of any final order, Mr. Jones asked for tl-ie
correct relief because, in his briefs, he asked for review under the general abuse of
6
discretion standard, which applies to all discretionary trial court decision, not under the
less deferential ^^ear-andm^onvinczng review of R.C. 2953o08(G),
The Second District majc^rity`^ interpretation of R.C. 2953.08 turns the first eight
words of that section into mere surplasage, wM^h violates tl^a^ rule that courts "s1-aou1.d
construe statutes to give effect to all the ^iia^^^ language,`" C'Qccarellz v. ^evin,1.27 Ohio
St3d 231, 2010MOhaom5681p ¶ 20, quoting Churc,^ of God in N. Ohio v. Levin,1.24 Ohio St.^^
36, 2009-Ohao-5939, ¶ 30, citing State ex rel. Bohan v. Indus. Cornrn.,1.^^ 01-,io St. 249, 251
(1.946) ("'courts should accord inearing to each word of a legislative enactment i-f it is
reasonably possible to do so"')
The ma^oritv's holding that appellate courts lack jurisdiction to review
aggravated murder sentences is incompatible with this Coures decision in State v. Long,
Slip Op. No. 201.4-0hio-849o In Long, this Court reversed an aggravated ^^^^^^^
sentence because it violated the Ei^hth. Amendment ban on cruel and unusual
^^^^^iices. Id. at para.^^^^ one and two of the syllabus. The Second District majoribT
di.^^ingiiash^d Long because Long, concerned a ^^^stitutiona.l error. Opinion at ¶ 24, But
thak's a-n illogical dtstinct:ioi-a in liglit of the majority's holding that this Court "has held
that this is unambiguoiis. a ^^nt^iice for aggravated murder imposed pursuant to R.C.
2929.02 to 2929.06 cannot be revze^u,,edo °` (Emphasis added.) Opinion at ¶ 22, 1f a sentence
carnot be appealed for any reason, it cannot be appealed for constitutional rea^ons.
Appellate cotix^^ either have jurisdiction to review sentences pursuant to grounds
outside R.C. 2953.08, or they ^onot,
7
'I'his Court should accept this case, reverse the decision of the court of appeals,
and remand this case to the court of appeals for a review of- Mr. Jones's sentence under
R.C. 2.505.02 and 2505.03.
Proposition of Law Noe 11e
A trial court should sentence a defendant to life without parole when. asentence of life with. parole eligibility is adequate to punish thedefendant and protect the public.
A trial coiix^ must impose a life ser^^e-nce for aggravated murder without a capital
specification. R.C. 2929.03(A). Accordingly, the trial cr^^rf ^ choice was behv^en
denying parole eligibility, or permitting parole eligibility after 20 or 30 years. ida The
record, in- this ceise does not ^^^^ort the trial court's decision to ^en.-nanentiy deny
parole eligibility.
Parole eligibility doo-s not mean re1ease. Parole eligibility ^ii^^^ offl^ th .a.tr after
decades in prison, the Parole Board could deterzi-tine whether Mr. J'ones h^^ sho-,Arn that
he is sufficiently remorseful and ^ehabilitated to aa-t-e-rit supervised reIease. R,C;e 2967.11
Nothii-kp, in the record demonstrates that Mr. Jones cannot be rehabilitated, or that the
Parole Board would be incapable of accurately reviewing his case. And n-on^ of the
statutory factors that could make Mr, Jones's offense more serious than otl-ier actions
constituting aggravated murder are present in' ffids case:
R.C. 2929912(B) Factor ----------------- ^^^^li^^^^^n to this Ca^^^---------- -(^) The physical or iner^tal injury sufkred by Both victi^^^ Nve.re physicallythe victim of the offense due to, the coiid-Lic^ of and r-^^entally fit adult men.the offender was exacerbated because of thephysical or mental condition or age of d-ievictim,
8
----- ^ ------------- ----------------(2) The ^ l^,tl^n of the of^^,nse suffered serious The harm was the harmphysical, psychological, or economic harm as a inl-icr;,nt in the offense.result of th-V offense.
r------------------ °--° - - - -- ---- - ---- - -- - -- -- -- -----(^) The offender held a public office or position Not appJ^cablc.of -a-ust in the communit3r, aiid the offenserelated to that office or position.
--------- ----------- ------------ -------(4) The ^^^^^der ^ occupation, elected office, or Not applicable.profession obliged the offerlder to prevent theoffense or bring others c^^^gt^^€^^
-----------------------• ---------------- ----(5) The off^nder°^ ^roB^^^ional reputation or Not applicable.occupation, elected office, or protlessiq,n wasused to facilitate the offense or is likely toinfluence the future conduct of oth^em
------------- --------------- ---------------- -{
(6) The ofl`ender's relationship wi-Lb the victim ; Not applicable.facilitated the offeiise.
------ - ------------- ----------(7)'l-'he oll^^der committed the offe€^^efor hire Not appllcab1e.or - as a part of an organized ^;^rr^^^^. activity.- ----------------------- -----(8) In cr^^ina the offense, the offender was Not applicable,motivated by prejudice based on race, et}iiiacbackground, gendcr, soxual €^^^ntations or
-
rc1-ig1
-.
------------
€-̂--
a^-------------- •------ --- •-----------
(9) If the offense is avaolation of section Not app2919.25 or a violation of section 2903 .11,2903.12, or 2903 .f:^ of the Revised Codeinvolving a ^en€^n who -v,1as a fainilv or^^^^ehold. member at the time of the violation,the o1^^ndea committed the offense in thev^^^^^^ of oXie or more children who are notvictims of the offense, and ffi.e c}llenc1er or thevictim ^^th^ offense is a paxent, gua-rdimi,custodian, or person in loco parentis of one or
--mor^ ^^ th^^e childrenn
1ik^^ death of the victim does not aggravate an ^^^^^vate-d murder ^onvlction.. As
lower ^ou^^^ ha^^ explained, whei-^ an act is ari element of the charged offense, that act
cartn^^t also be aii. aggravating circumstance. See, e.g., StF^^ev. Schlecht, '?d.Dist,
Champaign No. 2003--CA-3, 2003-01-dom5336, 1[52, State v. Stroud, 7th Di.st, :M^^^ning
No, 07 MA 91, 2008TOhioa3:1.87, ¢ff 48-52 (fact that a life was lost does not make
manslaughter more serious); and State v. Clagg, 4th Dist. Washington No. 04CA30, 2005-
9
0hio-4992p 1[ 26 (creating a substantial risk of serious physical harm does not aggravate
art arson conviction).
By definition, aggravated murder always inflicts lethal harm on the vzctiiiie And
in practice, aggravated murder always causes serious mental distress to a victim°^
family. But those serious harms are already factored into a sentencing ^^^e that begins
at hfe in prison without possibility O^ ParoIe for 20 full years, R.C. 2929.03(A)(1)^^^^
Fu:^therf when a,^^ravated murder is committed with a firearm, parole eligibility does
i-ao^ ^^^i-n unfil at least 23 years. R.C. 2929.14(B)(I.)(a)(ii). Th^ fact that someone died
does not make a;g^r.avated. murder worse. It makes it ^.ggravated. murder.
A-nd this case is not "the worst form" of aggravated murder. The victims were
not abused in any way before their death. `i`heir deaths were not pa-rt of a. larger pattem
of criminality by Mr. Jones. And before his d.eath., aiie of the victims, Dovon Wiiliams-
ivho was siga-€i_fi€:antiy ni^^^ physically intimidating than Mr. Jones and who had
physically beaten Mr. Jones at least twice before ---ta-unted and th_reatened. Mr. Jones.
Wi1liams"^ taunts and threats do not j^^^^ or excuse the killing, bu.t they do
demonstrate that this was not an unprovoked attack agaimt a defenseless victim.
As to the factors that would make hi^ii ^iiore likely to conu-nifi futuxe crime, only
R.C. 2929o12(D)(3) and (5) arguabl.y appiy (not responding to a previous incarceration
and a lack of remorse), While it is true that Mr. Jones was convicted of this crime after a
previous prison. term for aggravated. ^^^^lar^rf ncsthia^^ in. t^.^ record shows that he
10
cannot be rehabilitated after decades in pri^on. And while Mr. Jones expressed n_o
remorse, simply asserting his right to a jury trzal demonstrates little if anything about
whether he may show remorse decades from now, when he could appear before the
Parole Board.
All calculations of risk must be weighed in. the context of the mandatory life
sentence Mr. Jones will serve. Regardless of the sentence the trial court iiiiposed9 Mr.
.a ones will never leave prison ^^^^^s he can convince a majority of parole board meanb^^s
to release hanie J:r^iposing a prison term with parole eligibility merely provides the
opporta^n-ity to prove remorse and rehabilitation decades in the f-uture. On these f-acts,
the, trial eoures dei-iial of that opportunity is error and an. abuse of its discretion.
Further, the State issimply w-rongf appe1.1a^^^ courts should defer -to tb.e trial
c€su-rt's sentence because "°the trial court a-nd the jury were in flge unique position to
actually watch the aii-urd^^s occur as they were ca^^^ired on video." State's Brief at 10-
11. The video is part of the record that is available for tfiis Court to review. State's
Exhibit 3. As a result, this Court can see and hear the entire interaction between Mr.
^^-iies and the victims in which the victas.n. repeatedly demeaz-as Mr. ^^iies, ^^eatens Mr.
Jones, and. encourages Mr. Jones to "`[d.]o something about it, ^^****. Do something
about it, n***** sy `i^^ fact that this interaction was `captured on video' places t1-ds Court
an:; be1^^er position to evaluate the trial ^^^rf s sentence, not a worse one.
11
The record does not support a sentence of life witl-iou^ parole. This Court should
accept -thi^ appeal, reverse the decision. of the court of appeals, and remand ti-ds case to
the trial court for resentencing wiLl-^ appropriate guidance.
Proposition of Law No. 111.
In an. aggravated murder case, a trial court must not give the "gist of the^^^enseb' instruction concerning 6^purpose^'-ul'" acts.
In this aggravated murder case, the trial court instructed the jury that:
IN'h^n the gist of the offense is a prohibition against conduct of a certainnature, a person acts purposeiy if his specific intention was to engage inconduct of that nature, regardless of i,,,"hak he may :^ia^^ intended toaccomplish by his conduct.
As this ^oLirt has explaiiiedy this .,rgist ^^ the offerisef language is confusing in a
murder prosecution which requires 'purpose."" State v. Wilson, 74 Ohio Ste^^ 381, 393,
659 N.E.2d. 292 (1996). In another case, the ^^^oiid District correctly held that ""g%ving
the 'gist of the offense' igistruction. in. an Aggravated NIurder instruction is 'both
incorrect a^^^ ^oiffusing,"" State v. f-tooks, 2d Disto Montgomery Nos.16978" 17007,1998
Ohio App. LEXIS 5044, *59-60 (Oct. 3R^^,1998).
This Court found no error in Hoo,^^ because the erroneous instruction applied
only to a bur&ry cotint, and the trial court properly instructed the jury on. °"purpc^^e-
for the aggravated inurder count. Id. But in Mr. Jones's case, the "°ggst6D instruction could
only apply to the a^,^ra^%^.te^.^. murder count, because the other c^.rge (^,^,ye^.pon under
disability) has a "knowing" mens reae R.C. 2923.13(A).
12
It is true that Wilson u_ltimately concluded that in. f't1^e context of all the
gnstt,,ictions given the j-u.ry, the court provided adequate ins.tructio^.,.^ on the element of
s^^effic intent to ^ilI"' so as to avoid plain error. Wilson at 393. But that "s^ontext"
included a confession. by the defendant in which the defendant said that lie had killed
the victim because he ""f^^^ed somebody would find her * * *. She'd get out and tell
who I was." Id. at 382 and 393.
By contrast, in Ivlr, Jones's case the State presented no such ev^^^iice of inten.t.
TI-ie video a-nd witness testimony showed Mr. Jones shooting the vzct%rns" but did not
show that he acted purposefully with prior calculation and design. Nlro Jones did not
simply walk up to the victims and start shooting; to tlie contrary, lie engaged, in. an
extended colloquy with them. l-^iid he ordy pulled out the giin after Dovon Willianis
declared the beginaii^g o.f. ""R^und Y" of a fight in which Williams had px^^vious.ly beateia
Jones, after WiEian-Ls called him "fn""' at least 16 times, and after Wz1I.i.arns ^^o-uted
s,what you gonna d.o," sfwhat you wann.a do" or "do something about zt°y at least 12
tiines, State's Exhibit 3. A properly instructed jury would ha-ve found it difficult to find
that Mr. Jones had the prior calculation and design or specific purpose necessary to
c^^^n:-& aggravated murder.
Below, the State argued that other par-ts of the instructir^ii clarify the definition of
,^purposely," misses the fact that the other definitions of purposeful are presented in the
alt^riiative, State's Brief at 6-7. Under this instruction, the State met it^ burden to sh.^i,,,
purposeful ^^ha-vior by merely showing that "sthe gist of the offense°"was'"a prohibition
against ^^iidtict of a certain nature," and that Mr. Jones's "specific iiitentiort was to
13
engage in conduct of tl-iat nature, regardless of ztihat he may have intended to aecvrnplish by
his conduct. "(Emphasis a^^ed.) The behavior tan-derl.^ri^s^ aggravated murder is
assaultive €:ondt€ctf so under fhe instruction, the jury was r^q-Liired to convict Mr. Jones
^ere1y if it found that he purposefully engaged in assaultive conduct, regardless of
whether he "intended to accomplish" tli_^ death of the victim.s.
The prior calculation and design instruction does :.^.ofi help because that merely
refers back to °"purpos•e." True, the instruction says that "°[plzior calculation and design
^^a-ns that the purpose to cause death of aiaother was rea€:h^d by a definite process of
r^^^oningjj"° but, again, tl-tat comes back to "pugp€sse[j" and the "`gist of the off^tise,"'
instruction means that purpose to assault is purpose to kill.
`I'h^ failure to Pr€^^erly hsti-u€:t the jury denied Mr. Jones his right to have a jury
deterrnine his guilt beyond a reasonable doubt under the Fifth and Fota^^^enth
Aniendments•• to the United States Cc^nstitatio-r.^.. Apprendi v Neav Jersey, 530 Uo s. 466, 120
S.Ct. 2348,147 I..Ed. 2d 435 (2000). The error is plain because a properly instructed jury
would not have found that Mr. Jones had the prior caleuI.atioai ^nd design or specific
purpose necessary to commit aggravated murder.
^^^CLUSION
T'his Court should accept this appeal, reverse the decision of the coiirt of appeals,
and remand this case f-o-r a new trial or, in the a.Ite.^°n.^^.tive, a r^ew sentencing hearhig.
14
Respectfa.1l^ submitted,
Office of the, Obio Public Defender
^f: Stephen P. II^^dwiek (0062932)Assist-ant P-ablic Defender
2,50 E. Broad Street, Suite 1400Columbus, Ohio 43215(614) 466m5394(614) 752^5167 (fax)stephen,[email protected].^^^
Counsel for Appellant, Timothy Jones
CERTIFICATE OF ^ERVICF
I hereby certify that a -taue copy of the foregoing was forwarded by regular U.S.
Mail, postage pre-paid to the office of Lisa A. Fannin, Assistant Clark County
Prosecutor, '00 E. Columbia Street, Springfield, Oldo 45502, on this 21-st of April, 2014,
---°-----.^.---- -----------------
----- --------------------------- ......... ------ -------------------- ---------------------Step^en P. Hardwick (0062932)Assistant Public Defender
^ouiisel for Appellant, Timothy Jones#41,%17
15
IN ^^ SUPREME COURTOF OI-IIO
STATE OF ^..9H€OF
PL,41NTIFFs APPELLEEs
V.
CAS: No.
ON DISCRETIONARY APPEAI, FROM THE
CT:^^K. CouN-cY C€^^ulz^r OF A.^^EAL-q,SECOND APPELLATE DIsuucT,
CASE No. 2012 CA 61TimoTHY JONFSy
DFFEN1:3ANTwAP1'EL[,ANT.
APPENDix To
MEMORANDU'arI IN SUPPORT OF JURISDICTION OF
APPELLANT TIMOTHY JONES
iN THE COURT OF APPEALS FOR CLARK COUNTY, OHs^
STATE OF OHIO
Piair€fiff-Appeilee C.A. CASE NO. 2012 CA 61
V. 6f`,Ce NO. 12CR55
TIMOTHYJONES
DefendantmAppeiiant
DEClStON .AND ENTRY
Rendered on the ^^^ day ^f Ma^^^ ^014a--------------- b
L^SA M. FANNiNY ^ttys Reg. No. 0082337, Assistant Pr^^ecufir^g Attorney, 50 E. CoiumbiaStr^et 4th Floor, P. 0. Box 1608, Spri^gfield, Ohio 45501
Afforney for Piaintiff-Appeii^^
STEPHEN P. HARDWICK, Afty. Reg. No. 0062932, Ass€s#ant Pubiic Defender, 250 E.Broad StreetY ^^^^ 1400, Coiumbus; Ohio 43215
Afforney for ^ef^^^^^t-A^peElar^t
PER C4^RIAM.
7'h^^ ^atter es before the court upon an Applicaticsn for ^econsiderati^n fiied by
Defendant Appeiiant `"-imoth^^ Jones on November 14, 2013. The State of Ohio has not
fided a memorandum in r^^^^^^^^^
THE COURT OF APPEALS OF OHIOSECOND APPELLATE DIS7'RICT
A mm 1
2
,^ppeiiate Ruie 26(A) provides in part that an Appi€cation for ^econsi^eration "[s)haii
be made in wr€t€ng before the judgment or order of the court has been approved by the
court and fiied with the court for journaiization or within ten days after the announmrnent
of the court"^ ^ecision." In order for an App. R. 26( A) application to be considered, the
appiicat€or€ must raise some obvious error in the courts' decision or bring about an issue
that was not fully oonsidered. Further, a maton to reconsider generaliy may not raise new
issues that were not previously raised. Columbus v, HodgeY 37 Ohio App,^^^^ 623 KEe^^
515 (Frankiin, 1987),
Mr. Jones was convicted of two counts of aggravated murder in violation of R.C.
2903,01 (A), both felonies in the first degree, and one count of having a weapon under
disabift in violation of R.C. 2923.13(A)(2), a felony of the third degree. Fofiowirg a jury
triai, Mr. Jones was found guilty on ail co'unts, He was sentenced to life in prison without
the possibility of parole on each aggravated murder count pursuant to R.C.
2929i ^^(A)(1 )(a), as wefi as three yeam on the one count of weapons under disabiifty. The
life sentences were to run consecutively while the three year sentence was to run
concurrent to the life sentences.
In his Motion for Recorasideration, Mr. Jones merely reiterates his argument that
R,Go 2953o08 is not the only provision that allows for review of life senten^^ ^^hout parole
and that the general language in R.C. 2505.03 grants the courtjurisdiction to review his
ser€tencee
This court addressed Mr. Jones' arguments in our November 1, 2013 decision,
finding that the ^^ecffjc language of R.C. 295108 is the controlling provision over the
general language found in R.C. 2505,03, Further, Mr. Jones eites no new aut^^dty
THE COURT OF APPEALS OP OHIOSECOND APPELLATE Tb ISTRICT
A - 2
3
in^^^^^^^ that our eadier d^^^^^^^ ^^^ ^^eady erroneouso We- find Mr. Jones' motion
€^^^ersussive.
Si^ce Mr. Jones' ar^umer^t cannot form the basis for a mofi^n for ^^consideration,
the app^icafiion is deniede
!T ^^ SO ORDERED.
JEFF . kOELICHs ^residir^^ ^udge
E. , Judge
M. '^ELBAUM, Judge
^^^ies mailed to:
Lisa M. FanninStephen P. Hard^^ckHon, Douglas M. Rast^^^^r
THE COURT OF APPEALS OF 0910SECOND APP^ LLATE DISTRICT
A 3
--------------
41
i, .
B
IN °i°i^^ COURT OF APPEALS FOR CLARK COUNTYp OH[CJ
STATE OF C3HIO
Pi^^^fiff-Appe[Ies . G.A. CAS'^ NO. 2012 CA 61
V.
T7MO`^^ JONES
f^^^^^^ant-4ppet^^^t
I T.C. NO. . 12^^56
^Cfiminal appeal fromCommon ^^^^^
^iAz
OE^^^^^.
Rendered on the ^ day of f^^^ernter Q 2013.
LI^^ M. ^ANNIN, Atty. Reg. Nor 0082337, Assistant P'maecutirag Attorney, 50 E. Cot^^^iaStreet, 4th Floor, P. 0. Box 1608, SprinOfeld, Ohio 45501
Attomay for PIair^^iff-AppelI^e
STEPHEN P. HARDW1CK6 Atty. Rag. No, 0062932, Assistant Pub^^^ Defender, 250 E.Broad StreetR.Suite 1400, Coiumbus, Ohio 43215
Ai^^^^y fbr Defendant-Appei^ant
DONOVAN, J.
(11) Defendar^ ^ppelIant Timothy Jones ap,^^^^s hi^ con^^^^^ for two oounts of
aggravated murder, in vialaton of R.C, 2903,01(A), both feRr^^^^^ of the first degree, and
one count of I aaVf^^ a weapon while under disabiIity, In viaiati I on of k,Cs 29A1 3(A)(2)e a
THE COURT OF APPEALS OF OHI^SECOND APPELLATE ^^STR^^^
A - 4
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felony of the fliird degree. Both counts of aggravated miztler were acconapanzerl by a
f^earm specification. Jones filed a notice of appeal with this C^^ on September 11, 2012.
On September 27, 2012, we issued a show calise order instructing Jones to explain why his
appeal should not dismissed for fail^^^ to file within tharty-days ss-f his judgment entry of
conviction as required by App. R. 4(A). Jones filed a response to the show cause order on
October 11, 2€112. On October 22, 20l.2s we issued a decision fmdira.g that Jo-nes had shown
good cause to file a delayed appeal.
{fI 2} The incident which forms the basis of the lnstalit appeal occurred on October
16, 2011, while Jones was engaged in an. a.rgumerat with one of the victams,Dovon. ^^hams.
The other v4ct1m. was Axbrge Smith, a fiierqd of Williams, who witnessed the a.rgam. ert,t.
The confrontation occurred at a residence near the comer of Perrin Avenue and Center
Boulevard in Springfield, Ohio. E-vid^^^^ adduced during Jones' trial established that
Williams had beaten. up the appellant on two separate prior c^^cas1ons, Jones was also
aware that Williams had been visiting bis glrll'^.^ndgs home when he was not present. At
some point during the argument, Jones paa.iled out a handgun and sb^t Arbrie Smith in the
head multiple times, killing bi.m. Williams attempted to ran away, but Jones chased him
d^win and shot him several times, killing him as well.
^^ ^^ On January 23, 2012, Jones was subsequently indicted for two counts of
aggravated murder with firearm specifications, and one count having a weapon while under
d'€sabglity. At his arraignment on Fehnaxy 13, 2012, Jones pled not gii11ty to the charges
against him, and the trial court set his bond at $1A000,000000. On May 15, 2012, the trial
court ordered Jones to arzder^^o a niental competency evaluation in light of his request to
^ ^ ^
3
represent himself at trial. The trial court found Jones competent to stand trial and represent
him^^^^ in an order filed on June 19, 2011 The trial court also allowed Jones' appointed
counsel to withdraw but ordered him to act as co- c:t^^r to Jones in order to assist Jones if
rLecessary.
{T 41 JonesR trial began on July 30, 2012, and ended on August 3, 2012, wi^.t the
jury fmding Jones guilty on all of the counts in the indictment. On August 9, 2012, Jones
was ^en^enced. to life in prison witbau^ the possibility of parole on. each of the aggravated
murder counts and three years on the single count of weapons under disability. 'Fh^ trial
court ord.cred the sentences for the aggravated inurder counts to run consecutive to each
other and the sentence for the weapon under disability count to run ^oncuiTent to the life
sentenccs.
{TI 5{ It is from this judgment that Jones now appeals.
1161 Jones' first a^^^^^^^ of error is as follows:
{¶ ^1 "THE TRIAL CO"RT ERRED BY TNSTRUCT:^G THE JURY `^^IAT IT
COULD FIND MR. 3^^S GUILTY OF AGGRAVATED MURDER IF THE xGIS'F OF
TIIE OFFENSE' WAS TO CAUSE A DEATH, `REGARDL.^^^ OF WHAT [.MR. aONR^J
MAY HAVE I1a,7TENDEDi"O A^^^MPLISII BY HIS CONDUCT. "'
{^ 81 In his first assignment, Jones contends that the trial court erred when it
iristructed the jury regarding the definition of "ipuipose'S as it applied to the charges for
aggravated mu-rdex, Specifically, Jones ^giies that the trial coa^^s use of the "gist of the
offense" instruction in a conviction for aggravated murder was confusing and rose to the
level of plain error.
^ ® ^
4
{'¶ 9} In State v. Kleek-amp, 2d Dist. Montgomery No. 23533, 2010-Clha.a-1906p
this ^oun stated:
{¶ 10) "rA criminal defendant has the right to expect that the trial court will give
complete jury instructions on all issues raised by the evldence.s State v. illiford (1990), 49
Ohio St3€1 247, 251, 551 N.E.2d 12719, State v. Mullins, Montgomery App. No. 22301,
2 2-008ROhio-2892, 1, 9. As a corollary, a court should not give an instruction unless it is
specifically applicable to the facts in the case. State v. Frit•v, 163 Ohio App.3d 276, 837
N.E.2d 823, 2005-Ohlo-4736, ¶ 19. The decision to give a requested jury instruction is a
matter left to the sound discretion of the trial court, and the couds decision %ri1.l not be
disturbed on appeal absent an abuse of discretion. State vo Davis, Montgomery App. No.
21904, 2007aOhio-6680, ^ 14.R5
I1} "Abuse of d.iscret1on7 has been def.cd as an attitude that is un,;.easonabPeF
arbitrary or unconscionable. Hiiffman v. Hair Surgeon, In.c., 19 Ohio St.3d 83, 87, 482
N.E.2d 1248, 1252 (1985). It is to be expected that most instances of abuse of discretion Wi1l
result an decisions that are simply unreasonable, rather tkaan decisions that ^e
-anconscla^nabl^ or arbitrary.
{¶ 12) A decision is unreasonable if there is no sound ^easoni-ag process that wo-alcl
support that decision. It is ncvs enough that the reviewing couM were it deciding the issue de
aaovo, would not have found that reasoning process to be persuasive, perhaps in vi^w of
countervailing reasoning processes that would support a contrary result. AAAA Enterprises,
Inc. v. River Place Community Redevelopment, 50 Ohio St.3d 157, 161, 553 NeE.2d 597
(1990).
^ ^ ^
5
{¶ 13) Regarding the d^fmition of "purpose," the trial ^ouTt ga^d the ,ju-ry the
following ^^^^^ions:
A person acts purposely when it is his specific int^ntion, to cause a
certain result. lx must be Cstablishes^ ^^^^nd a reasonable doubt that at the
time in question there w^.̂ present in the mind of the defendant a specific
intention to ca-u ^o the death of Dovon Williams. i
When the gist of the offense is a prohibition against conduct of a
certain nature, a person acts purposely if his specific intention was to engage
in conduct of that nature, regardless of what he may have intended to
accomplish by his conduct.
Purpose is a decision in the mind to do an act with a conscious
objective ^^^roducing a specific result or engaging in specific conduct. To
do an act puxposely is to do it intentionally and not accidentally.
Purpose and intent ^eam the same thing. 'Th^ purpose with which a
person does an act is known only to himself unless he e:^^presses it to others or
indicates it by his conduct.
'r^^ purpose with which a person does an act is determined from the
manner in which it is done, the ^^eans used, and all -the other facts and
circumstances in evidence.
'When instructing the jury regardlng Count II: the aggravated murder ofArbrle Smith, the trlal court dId not repeat the defInItIon of ;°purpose9" but merelyreferred back to the Instructlon in Count I, which referenced the aggravatedmurder of Dovon WIlllams.
A - 8
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If a wound is inflicted upon a person with a deadly weapon in a
manner calculated to destroy life, the puTose to cause his death o-ay be, but
is not required to be, inferred ftom the use of the weapon. The inference, if
made, is not conclusgve.
Prior calculation and design means that the purpose to cause the death
of another was reached by a defmite process of reasoning in advance of the
homicide, which p-rsscess of reasoning must have incl-aded a mental plan
involving studied consideration of the method and means with which to cause
the death.
To constitute prior calculation there must have been sufficient time
and opportunity for the planning of an act of homicide and the circumstances
surrounding the homicide must show scheme designed to carry out the
calculated decision to cause the death.
{1141 Initially, we note that Jones failed to object to the jury instruction, a^^r did be
request another instract^^^ be substituted in its place. Thus, for purposes of appellate
review, Jones has waived all but plain error. State v. Parrish, 2d Dist, Montgomery No.
21206, 2006-^^^o-4ll 1, Plain error maybe noticed if a manii^^t injustice is demonstrated.
Crim.R., 52(B); State v. Howard, 2d :C}ist, Montgomery No. 23795, 201 ? nOb.i.o-27. Xn. order
to find a manifest miscarriage of justice, it must appear L-om the record as a whole that but
for the eicrar, the outcome of tb-e trial clearly would have been otherwise. State v. Long, 53
Ohio St.2d 91, 3 72 N.E.2d 804 (1978).
^. - ^
7
{¶ 151 Jones argues that the court eired when it gave the jury the "gist of the
offense- instructioai set 1'orCh a^ove. Specifically, ^o argues that by instructing the jury that a
person acts -o-urposefully __ regardless of what he may have intended to accomplish by bis
conduct the court failed to provide adequate instructions r^gaxding a "specific intent to kill"
which a defendant must possess when charged with aggravated murder. State v. Wilson, '^
Ohio St.3d 381, 1996-Ohio-103, 659 NR2rl 292. In Wilson, the Ohio Supreme Court has
characterized similar language as ^^^nfusing in a murder prosecution which requires
puTose." ldo at 393, 659 RE.2ct 292. However, we must remain mindful of the fact that
reviewing couTis aii-ust consider jury instructions in their entirety. State v. Price, 60 Ohio
St.2d.136, 398N1.2d772 (1979),T4 ofth^ syllabus. s°^.^.^ single instrzction to aj^^.^ zay
not be judged in artificial iso1afionR but must be viewed in the context of th.^ overall charge.3,
Id. at 141. In Wilson, the Ohio Supreme Court rejected an argument that the trial court
committed plain error by using the _.gist of the off^^^e- language in an aggravated marder
trial, in part because _rilra tb.e context of all th.e instructions given the jury, the court
provided adequate instructions on the element of specific intent to kill.- ff,71son, 74 Ohio
St.3d a.t 393.
{^ 161 Like the Wi'lsora Court, we acknowledge that wb.en read in isolation, the _gist
of the offense_ language could be confusing and misleading to a ^ury.' When read in
2 Jones cites State v. Hooks, 2d Dist. Montgomery No. 16978, 17007,1998 WL 754574 (October 30, 1998), an support of his assertiran that the "gist ofthe offense" instruction ^n an aggravated murder convictlon is corafusing andmisleading to a jury. ln Hooks, however, we noted that the instructwon at ^^^^ewas given in regards to a separate Count for aggravated burglary and notaggravated murdero Thus, this case is distirsguishable and does not supportJones' argument.
^^ 10
8
context with the rest of the charge, however, it is clear the court provided the jwy with
adequate instructions on the specific intent to cause dea.th. The court specifically told the
jury that "[a] person a^^^ purposely when it is his .^^^cific intention to cause a certain
result." The court allscs told that jury that: Zt must be established beyond a reasonable
doubt that at the time in question there was present in the n-inrl of the defendant a ^^ecijk
intention to cause the death of Dovon Williams._-- Tberefore, the _gist of offense langa,aage-
ira.struction did not amouiat to plai-n error in light of all the irstmctions given to the jury.
{I 17} .lones` first assignnient of error is overmlerl.
^T 18} Jones' ^^^ond assignment of error is as follows:
(^ 19} ;6THE TRI^^^ COURT A-BUSED 1TS DISCRETION BY M1J`OSlN^
SEN1.ENCE^ OF LIFE W1'T1JOU`1` PAROLE,"
{¶ 20} In his ^^^oud assignment, Jones argues that the trial court erred. when it
sdnt^^^ed him. to life imprisonment without the possibility of parole for each count of
aggravated murder.
}^( 21} Ap^a^ll^.^ was sentenced to li^e without the possibility of parole pursuant to
R.C. 2929.03(A)(1)(a)2 which provides in pertinent p,,ut:
(A) If the indictment or count in the indictinent charging aggravated murder
does not contain one or more specifications of aggravating circumstances
listed in division (A) of scefiian 2929,04 of the Revised Code, then., following
a verdict of giiilty of the charge of aggravated murder, the trial court shall
impose sentence on the offender as follows:
(1) Except as provided in division (A)(2) of this section, the trial court shall
^a ® 1^
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impose one of t1le follo^.:^.g sentences on the ^^^ender:
(a) Life imPrIsG;^ent wi^^Out paro1.e. * * *.
{¶ 221 R.C. 29S3.08(D) gove-rns review o.^ f.-1ony sentencing. R.C. 2953.08(^)(3)
provides, _'^^.] sentence imposed for ^.g^^.^Y^.te^. murder or murder pursuant to ses;tira^a^
2929.02 to 2929.06 o-Af the Revised Code is not subject to review under this ^^^tion._ The
Ohio Supreme Court has held that this is -unamhiguous; a sentence for a^gra-va^ed murder
imposed pursuant to R.C. 2929.02 to 2929.06 cannot be ^eviewed. State v. Pcarterji'eld, 106
Ohio St.3d 5, 2005-Ohiom3095, 829 N.E.2d 660. Accordingly, evidentiary ^evdee^ of a
sen.tence imposed by a tria1. court pursuant to R.C. 2929.02(A)(1)(a.) is precluded.
11231 Neither Jones nor the State of Obio discussed the applicability of R.C,
2953.08(D)(3) in their initial briefs to this courL At oral argument, both sides were i^iv€ted
to file supplemental briefs on the issue. On September 3, 2013, the State of Ohio filed As
supplemental brief and on September 10, 2013 and September 11, 2013, Jones filed his brief
and. supplemental authority, respectively.
It 24) The State argues that both. R.C. 2953.08(1^)^3) and Porterfield prevent
review of Jones' life term as to each count of aggravated mizdero Jones advances two
arguments. First, Jones argues that R,C. 2505.03(A) provides a general right of review of
all fmal orders which would affoird him full review of his sentences. Wliile it is true that
R.C. 25135.03(A) is a general statute that gives Jones a right to app^^, his aggrava.tdd. murder
^^nvicfions, it is, nevertheless, a common rule of statutory interpretation which req^^s that
a specific statute prevail over a general statute. See generally State v. Taylor, 113 Ohio
St3d 297, 2007-Ohio-1950, 865 KEId 37. Thus, the li^^ed appellate review under R,C.
A ® 12
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2953.08(D)(3) is ^onsImued as an exception to the general statute, R.C. 2505.03(A), which
Inxgh^ ^therwls,e. apply. Secondly, in, its supplen-ieg^tal bri^^ with additional authority, Jones
argues that because the Ohio Supreme Court has accepted State v. Long, 1 s^ Dist, ^lamaltop.
No. C-1.10160, 2012mOhgok3052 for review, life without parole sentences are subject to
^evicw. However, Long involves a juvenile. Jones is an adult. The proposition of 1aw
accepted for review in Long involves a constitutional challenge under the Ea^htb.
Amendment when sentencln^ a c^aald. This constitutional issue is tat^.llv absent in Ja^^.esA
case. Accordingly, we accept the arguments advanced by the State and find Jones'
arguments un.persuasi-vee
(^ 251 The Court o1`Appeals -for the 8th District discussed the longstmding history
of treating aggravated murder sentencing d°affereiYtlyr ^om other felony sentencing in
concluding that a sentence of lil'e imprisonment without parole imposed by a thr^^ -judge
panel pursuant to RE, 2929M is not subject to 7revl^^ by the appellate court:
The General Assembly's practice o1't^eating sentencing for aggravated
murder and murder convictions differently from other felonies is
longstanding. Before the 1996 Senate Bill 2 felony sentencing amendments,
the couTts likewise held ffia.t the general felony sentencing requirements did
not apply in aggravated murder cases. (Citations omitted). Defendant has
shown nothing to indicate that the General Assembly intended to eb-an^e this
well-establl.shed sentencing pmetl^e and the comprehensive sentencing
scherne in aggravated murder and murder cases.
State v. Hollingsworth, 143 Ohio App.3d 562, 569, -1158 N,E.2d 713 (8th Dist. 2001).
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{T 261 Pursuant to KC. 2953.08^^(3) and casa law interpreting this statute, this
Court is without statutory authority to ^evie-w appeilant'^ sentence on an evidentiary basis.
Jones' second assignm. e€^^ of error is ovearuied,
(Ij 27) Jones' third assignment of error is as follows:
28} 4G,]'B3; TRLkL C^`3L'WF ERRED BY IMPOSING ^^^^^CUTIVE
SENTENCES wiT^^UT MA-KINCi THF, FE14DINGS Id-EQbME.^ BY R.C. 2929.14(C)
AND CR3M. R. 32(A)^4^ AT^^^^^ SEN-TENC1^^ ^^EARING, AND WITHOUT HAVING
THE FACTUAL BASIS TO MAKE THOSE FINDINGS, SENTENCING ENTRY; T.i.}.
1-14 (DISPOSITION)."
{'^ 291 In his third assigm^^^ of error, Jones contends tl-iat the trial coLut erred
when it failed to Tnak-e the required findings in order to impose conseciitive sentences and
that the record does not support the imposition of consecutive sentences.
(^ ^^^ Prior to H.B. 86, R.C. 2929, 14(E)(4) reciiiired, as a predicate to imposing
consecutive sentences, a finding that "the consecutive service is necessary to protect the
public from future crime or to punish the offender and that consecutive sentences are not
disp^opoTt.i^nate to the seriousness of the offender's conduct and to the danger the offender
poses to the public," as ^^^ as one of three additional fmdings. Former R.C.
2929.14{^)(4), In State v. Foster, 109 Ohio St.3d 1, 2006-0hi.o-856R 845 N.E.Zd 270, the
0' hio Supreme Court held that the statutory requirement to make ^^rtain. findings before
imposing comecutave sentences violated the Uria^ed States Constitution, and it severed that
requirement from the statiate, Id. at 199a102.
IT 31} With 11.& 86, Ohio's sentencing scheme again requires jiadgcial ^^^-fmding
^ ® 14
12
for consecutive sentences. Former R.C. 2929.14(B) and (C), wbich hal. been severed, were
formally delcted, and, the judicial zact-^ndin^ ^ecrtair^^ent for consecutive sentencing,
previously set forth in R.C. 2929014(E); was reenacted and codified as R.C. 2929.I4(C).
{¶ 321 R.C. 2929.14(F) now provides that the trial court "shall impose sentence
ixpon the offender in accordance wath. section 2971.03 of the Revised Code, and Chaptor
2971 of the Revised Code applies regarding the prison term or term of life imprisownent
without parole imposed upon the offender and the service of that terrn of :mptisoxs.ment°' ip
any of six enumerated conditions apply.
{¶ 33) R.C. 2929e l4(C)(4.) authorizes the c4auft to require an. offender to serve
^on^^cutivellv multiple prison terms for convictions on multiple offenses. ^onsectative
sentences caai be imposed if the ^ouTt finds th.at (1) a consecutive sentence is r^^^^^sary to
protect the public from future crime or to punish the offender and (2) that consecutive
sentences are not disproportionate to the seriousness of the affender's conduct and to the
danger the offender poses to the public. In addition to these two facta^^, the court must find
any of the followlng: .
(a) The offender committed one or ^^^^e of the multiple offenses while the
offender was awaiting trial or sentencing, was unde-r a sanction imposed
piarsuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was
under pr^^^-release control for a prior offense.
(b) At least two of the multiple o^'^`enses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the multiple
o^`enses so commitfed was so great or unusual that no single prison term for
^ ^ 1^
13
any of the offenses committed as part of any of the courses of conduct
a.dcqyatet^ reflects the seriousness of the affender's cou^.^ct,
(c) The offcnderis history of criminal conduct demonstrates that. consecutive
sentences are necessary to protect the public t`Tom faWrc crime by the
offender.
{^ 341 In its bricf5 the State concedes that the trial court failed to make the requisite
^€ndings pursuant to R,C. 2929.I4(C)(4) before imposing consecutive sentences. Until that
occuxe Swe need not address J'oncs' argamcnt regarding whether the record supporlts the
imposition of consecutive sentences. Accordingly, the judgment is reversed, in part, and
this matter is remanded to the tTi.at court so that it may make the requisite findiings pursuant
tcy R.C. 2929,14(C)(4) before imposing consec-ativc sentences.
{T 351 Jones' third assignment of error is sustained in part.3
{^ 361 Jones' fouTtb. and final assignment of error is as fo1lows:.
(¶ 37) "THE TRIAL COTiR.T ERRED BY TM.POSii»:.G APPO'"TED COUNSEL
,FEES AND COURT COSTS."
{lT 38) Tn his final assgpmcntR Jones argues that the trial court erred when it failed
to impose court costs and attorney t'c^s at the sentencing heaning3 yet did so in the jiidgmcnt
entry of conviction. The State concedes that it was czTor for the trial court to fail to orally
notify Jones at the sentencing hearing that it was imposing covxt costs and attorney fees.
3We note that this Court's remand of this matter does not imply eIfiherapproval or disapproval of the sentence imposed; rather, it denotes only that therequislte findings to support the Imposltlon of consecutive sentences are not partof the record hereln.
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Thus, we remand this inat^er to the trial court for the limited p-urpose of al1owinQ Jones to
move the court for a waiver of the payment of court costs and attomey fees.
{¶ 39) Js^nes' fo^..^h, and final assignment of is sustained,
401 In light of our disposition with reqpect to Jones' third and faLuth assignments
of error, the trial court's judgment is reversed,1n part, and this matter is remanded to the trial
court for proccedirgs consistent wit1i. this opinion. In all other respects, the judgment of the
trial couit is affirmed.
WELBAUM, J.} ^o-ncurs.
FROELICH, I, dissenting in part and coneurring in j'adgment;
jf^l 4.11 The ^eiddfied conflict question presented in. .Port^^^^^ was "Whether the
language of R.C. 2953.08(^) probabits appellate revicw of a trial cawt's sentence when the
d^^^ndan:t is convicted of aggravated murder and sentenced pursuant to a
jointlynrecc^^end^^ ^entence," .1do at ¶ 5.
f^ 42) Similarly, in Holtingsworth, the defendant was sentenced ^^^uant to a plea
bargain in which the parties agreed that the def^ndwit would not be sentenced to the
maximum (death) or the minimum (life imprisonment with parole eligibility after
t^enty-five fa11 years). He appealed that his sentence of life impri^omnent withoijt the
eligibility for parole was "contrary to Ohio lawr and violates R.C. 2929.11 and 2929.12." 1
do not believe these cases control this appeal.
(T 431 KC 2953,08(D)(3) prohibits appellate ^^^^ew under R.C 2953,418 of any
sentence imposed for aggravated murder. R.C. 2953,08 is titled "Appeals based on felony
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sentencing pii.delines.'S It allows the ^gbt to appeal - except in certain sztiationsy including
aggravated murder - on specific listed grounds; it does not prohibit an appeal, even, in cases
of aggravated murder, on other, non-listed grounds. Here, Jones's assignment of error (No.
2) is ^^°^at "the trial court abused its discretion by z^posz^^ sentences of life without parole;"
this is not one of the listed grounds barred by R-C. 2953.08 to a^gra^-ated murder defendants.
{T, 441 T would fmd that we do have the a-uthoai^ to review the appeal of the
aggravated murder sentence, but otherwise concur in the opinion of the ^jo^ity.
Copies mailed to:
Lisa, M. FanninStephexa P, HardwickI-Ion. Douglas M. Rastatter
^^18
. it
IN THE COURT OF APPEALS FOR CLARK ^OUNTY, OHIO
STATE OF OHIO
Plaintiff-Ap,pellee
V.
TIMOTHy JONES
Defendar,t-A,ppellant
C.A. CASE NO. 2012 CA 61
T.C. NO. 12CF^55
E..^ALE^... °^`.^Y
Pursuant to ^hL. opiniOn Of thas^ court r^^^^^^^ on the Ist day Of AO^exr 2013,
the judgment of the tr€^^ court is reversedn in part, and the r^^^^^ ^s remar^ded for firther
proceedings cons€sten# with this courts opinion, Ira ^^^ other mspWsg the judgment ^^
affirmed.
^^^^^ to be ,paid as foi^ow^^ 50% by p^^int€ff-app^gee; 50% by defendantWappellant.
Pur^ua^^ to Ohio App.R. 30(A)b it is hereby o^erL-d that the cle* of the Clar^
County ^OuftGfAp,peals shail ims^^^ate1^ serve notice ofthisjudgment upon all t^^^ies antr
I^ make a note n the dcacket.of#^rr^^iling.
^^' es^
^^ CO€.T^T OF AF°PFALS OF OHi^^^CON-i3 APPEL.LATE WSTR&'CT
FFRM
^
^ies maif^d to:
Lf^s M. FannfnAssf^^^^ Prosecuting Attorney50 E. Cofumbf^ Street, 4th FloorP. 0. f^^^ 1608^^^ngfiefd6 Ohio 45501
Stephen P. f^^^^ckASSfSW€^^ Pubffc Defender250 E. Broad Str^et Sufte 1400Cafumbuse Ohio 43215
Hon. Dougfas M. R^staYter.Common Pfeas Court101 N. fwf^^^^e fteetSprfngMfd, Ohio 46502
T.^^ COURT OF APP^ALS OF OHIOSECOND 14.PPELL,A1'E DISTRICT
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