[Cite as State v. Griffin,

.]

COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff : Hon. Sheila G. Farmer, J. : Hon. Julie A. Edwards, J. -vs- : : SANDRA GRIFFIN : Case No. 09-CA-21 : Defendant : OPINION

CHARACTER OF PROCEEDING: On Remand from the Supreme Court of Ohio, Case No. 2010-1434

JUDGMENT: Original Reversal & Remand Reimposed

DATE OF JUDGMENT ENTRY: April 1, 2011

APPEARANCES:

For Plaintiff For Defendant

JASON W. GIVEN STEPHEN P. HARDWICK 318 Chestnut Street 250 East Broad Street Coshocton, OH 43812 Suite 1400 Columbus, OH 43215 Coshocton County, Case No. 09-CA-21 2

{¶1} On February 27, 1989, the Coshocton County Grand Jury indicted Sandra

Griffin on several counts, including one count of aggravated murder with death and

firearm specifications in violation of R.C. 2903.01(A), R.C. 2929.04(A)(7), and R.C.

2941.141.

{¶2} On November 1, 1989, Ms. Griffin waived her right to a speedy trial and

her right to be tried by a three-judge panel or a jury. The state agreed not to pursue the

death penalty, but did not dismiss the death specification.

{¶3} A trial before a single judge commenced on December 7, 1989. The trial

court found Ms. Griffin guilty of all counts except two. By judgment entry on sentencing

filed January 29, 1990, the trial court sentenced Ms. Griffin to an aggregate term of life

imprisonment with parole eligibility after thirty years, and ordered her to serve three

years actual incarceration on the firearm specification, to be served consecutively.

{¶4} This court affirmed the conviction. See, State v. Griffin (1992),

, further appeal dismissed (1992),

.

{¶5} On August 4, 2009, Ms. Griffin filed a motion for a final appealable order

pursuant to State v. Baker,

,

. On August 27, 2009,

the trial court filed a new judgment entry on sentencing, once again sentencing Ms.

Griffin to life imprisonment with parole eligibility after thirty years plus the three years for

the firearm specification.

{¶6} Ms. Griffin filed an appeal, challenging the fact that a single judge heard

her capital trial and sentencing hearing. This court, after lengthy analysis on several

issues, including the application of Baker, R.C. 2929.03(F), prior direct appeal, non-final Coshocton County, Case No. 09-CA-21 3

orders, and finality of judgments, reversed and remanded the case for new trial. State

v. Griffin, Coshocton App. No. 09CA21,

.

{¶7} The state of Ohio filed an appeal with the Supreme Court of Ohio. On

December 9, 2010, the Supreme Court of Ohio entered the following decision:

{¶8} "The judgment of the court of appeals is vacated, and the cause is

remanded to the court of appeals for application of State v. Ketterer,

,

,

." State v. Griffin,

, 2010-Ohio-

5948, ¶2.

{¶9} This matter is now before this court for determination in light of the

Supreme Court of Ohio's remand.

{¶10} In Ketterer at ¶17, the Supreme Court of Ohio specifically found, in

aggravated murder cases, R.C. 2929.03(F) determines the nature of "a final appealable

order":

{¶11} "We distinguish the present case from Baker and agree with the state that

in aggravated-murder cases subject to R.C. 2929.03(F), the final, appealable order

consists of the combination of the judgment entry and the sentencing opinion. Because

R.C. 2929.03(F) requires the court to file a sentencing opinion, Baker does not control

this case, because Baker addressed only noncapital criminal cases, in which a

judgment of conviction alone constitutes a final, appealable order. R.C. 2929.03(F)

requires that a separate sentencing opinion be filed in addition to the judgment of

conviction, and the statute specifies that the court's judgment is not final until the

sentencing opinion has been filed. Capital cases, in which an R.C. 2929.03(F)

sentencing opinion is necessary, are clear exceptions to Baker 's 'one document' rule." Coshocton County, Case No. 09-CA-21 4

{¶12} In Ketterer, the defendant pled guilty to aggravated murder and was

sentenced to death by a three-judge panel. A sentencing opinion pursuant to R.C.

2929.03(F) was filed. In the case sub judice, Ms. Griffin was tried and found guilty of

aggravated murder by a single judge. Ms. Griffin had waived her right to a three-judge

panel because the state had agreed not to pursue the death penalty, although the state

did not dismiss the death specification. She was sentenced to life imprisonment with

parole eligibility after thirty years.

{¶13} During the time of appellant's case, R.C. 2929.03(F) read as follows:

{¶14} "*** The court or panel, when it imposes life imprisonment under division

(D) of this section, shall state in a separate opinion its specific findings of which of the

mitigating factors set forth in division (B) of section 2929.04 of the Revised Code it

found to exist, what aggravating circumstances the offender was found guilty of

committing, and why it could not find that these aggravating circumstances were

sufficient to outweigh the mitigating factors. The court or panel shall file the opinion

required to be prepared by this division with the clerk of the appropriate court of appeals

and with the clerk of the supreme court within fifteen days after the court or panel

imposes sentence. The judgment in a case in which a sentencing hearing is held

pursuant to this section is not final until the opinion is filed."

{¶15} R.C.2929.03(D)(3), applicable during appellant's case, stated the

following:

{¶16} "Upon consideration of the relevant evidence raised at trial, the testimony,

other evidence, statement of the offender, arguments of counsel, and, if applicable, the

reports submitted to the court pursuant to division (D)(1) of this section, if, after Coshocton County, Case No. 09-CA-21 5

receiving pursuant to division (D)(2) of this section the trial jury's recommendation that

the sentence of death be imposed, the court finds, by proof beyond a reasonable doubt,

or if the panel of three judges unanimously finds, that the aggravating circumstances the

offender was found guilty of committing outweigh the mitigating factors, it shall impose

sentence of death on the offender. Absent such a finding by the court or panel, the

court or the panel shall impose one of the following sentences on the offender:

{¶17} "(a) Life imprisonment with parole eligibility after serving twenty full years

of imprisonment;

{¶18} "(b) Life imprisonment with parole eligibility after serving thirty full years of

imprisonment."

{¶19} The threshold question is whether R.C. 2929.03(F) applies to a defendant

who never had a mitigation hearing under R.C. 2929.04. Clearly, the record sub judice

establishes the imposition of the death penalty was never to be considered. Ms. Griffin

was sentenced to life imprisonment with parole eligibility after thirty years pursuant to

R.C. 2929.03(D)(3)(b). There was never a finding on the question of aggravating

circumstances outweighing mitigating factors in Ms. Griffin's case. By not having a

mitigation hearing, it is as if the procedures set forth in R.C. 2929.03(D) are bypassed.

{¶20} R.C. 2929.03(F) references subsection (D) as the predicate to the filing of

a separate opinion on weighing the mitigation factors vis-à-vis the aggravating

circumstances. In this case, there was no need for a separate opinion pursuant to R.C.

2929.03(F) because the procedures of R.C. 2929.03(D) were not utilized.

{¶21} We therefore conclude that the holding in Ketterer as it applies to the

issue of a final appealable order does not apply in this case. There was no final Coshocton County, Case No. 09-CA-21 6

appealable order until the August 27, 2009 judgment entry on sentencing. The holding

of our previous decision in this case applies. There was no need for a mitigation entry

under R.C. 2929.03(F).

{¶22} In State ex rel. DeWine v. Burge, ___ Ohio St.3d ___,

,

Justice Lanzinger, in a concurring opinion at ¶24, discussed whether new appellate

rights emerge from a Baker violation:

{¶23} "I concur in the court's opinion, but write separately to note that our

decision today leaves open the question whether new appellate rights arise from a new

sentencing entry issued in order to comply with Crim.R. 32(C).FN2 We have held that a

sentencing entry that violates Crim.R. 32(C) renders that entry nonappealable. State ex

rel. Culgan v. Medina Cty. Court of Common Pleas,

, 2008-Ohio-

4609,

. In light of the facts of the present case, we eventually will

need to determine what effect an appellate decision has when the appellate court's

jurisdiction was premised upon a sentencing entry that violated Crim.R. 32(C) and was

thus nonappealable.

{¶24} "FN2. The state has raised this issue in its second proposition of law in

State v. Allen, case No. 2010-1342,

,

,

, and State v. Smith, case No. 2010-1345,

,

,

, both of which we accepted for review and held for our decision in the

case. The issue is also pending in State v. Lester, which we agreed to review on order

of a certified conflict and on a discretionary appeal, case Nos. 2010-1007, 126 Ohio Coshocton County, Case No. 09-CA-21 7

St.3d 1581,

,

and 2010-1372,

,

,

."1

{¶25} In State v. Fischer,

,

, paragraphs three

and four of the syllabus, a case involving the failure to properly sentence on postrelease

control, the Supreme Court of Ohio held the scope of an appeal from a resentencing

hearing is limited to issues arising during the resentencing hearing:

{¶26} "Although the doctrine of res judicata does not preclude review of a void

sentence, res judicata still applies to other aspects of the merits of a conviction,

including the determination of guilt and the lawful elements of the ensuing sentence.

{¶27} "The scope of an appeal from a resentencing hearing in which a

mandatory term of postrelease control is imposed is limited to issues arising at the

resentencing hearing."

{¶28} On the issue of res judicata and postrelease control resentences, the

Fischer court explained the following at ¶30-31:

{¶29} "Correcting the defect without remanding for resentencing can provide an

equitable, economical, and efficient remedy for a void sentence. Here, we adopt that

remedy in one narrow area: in cases in which a trial judge does not impose postrelease

control in accordance with statutorily mandated terms. In such a case, the sentence is

void. Principles of res judicata, including the doctrine of the law of the case, do not

preclude appellate review. The sentence may be reviewed at any time, on direct appeal

or by collateral attack.

1 We note as of March 23, 2011, the Allen and Smith cases are still stayed, and Lester is currently set for oral argument on April 6, 2011. Coshocton County, Case No. 09-CA-21 8

{¶30} "Our decision today is limited to a discrete vein of cases: those in which a

court does not properly impose a statutorily mandated period of postrelease control. In

cases involving postrelease control, we will continue to adhere to our narrow, discrete

line of cases addressing the unique problems that have arisen in the application of that

law and the underlying statute. In light of the General Assembly's enactment of R.C.

2929.191, it is likely that our work in this regard is drawing to a close, at least for

purposes of void sentences. Even if that is not the case, however, we would be ill-

served by the approach advocated by the dissent, which is premised on an unpalatable

and unpersuasive foundation."

{¶31} We therefore conclude there has been no guidance provided to the

appellate courts on the applicability of res judicata to a non-final order pursuant to

Baker. Coshocton County, Case No. 09-CA-21 9

{¶32} Faced with this open issue, we are forced to conclude that under Baker,

Ms. Griffin's assignment of error in raising State v. Parker,

, 2002-

Ohio-2833, is valid. Our original reversal and remand are unaffected by Ketterer, and

are hereby reimposed. See, State v. Griffin, Coshocton App. No. 09CA21, 2010-Ohio-

3517.

By Farmer, J.

Edwards, J. concur and

Hoffman, P.J. dissents.

_s/ Sheila G. Farmer_________________

_s/ Julie A. Edwards__________________

___________________________________

JUDGES

SGF/sg 309 Coshocton County, Case No. 09-CA-21 10

Hoffman, P.J., dissenting

{¶33} I respectfully dissent for the reasons set forth in my dissent in State v.

Griffin, Coshocton App. No. 09CA21,

.

________________________ HON. WILLIAM B. HOFFMAN Coshocton County, Case No. 09-CA-21 11

IN THE COURT OF APPEALS FOR COSHOCTON COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff : : -vs- : JUDGMENT ENTRY : SANDRA GRIFFIN : : Defendant : CASE NO. 09-CA-21

For the reasons stated in our accompanying Memorandum-Opinion, our original

reversal and remand are reimposed. Costs to the state of Ohio.

_s/ Sheila G. Farmer_________________

_s/ Julie A. Edwards__________________

___________________________________

JUDGES