State v. Parker

{¶ 1} On January 12, 1995, Vincent Parker, appellee, was indicted on one count of assaulting a police officer. On February 22, 1995, appellee was indicted on three further counts. Count One charged appellee with aggravated murder with a felony-murder specification. Count Two charged appellee with aggravated robbery. Count Three charged appellee with possession of a weapon while under disability. Each of the three counts also carried a firearm specification. Pursuant to R.C. 2929.04(A)(7), these charges made appellee eligible for the death penalty. In exchange for appellee’s plea of guilty to the charges, the state of Ohio, appellant, agreed that it would not seek the death penalty. However, appellant did not amend the indictment to delete the death-penalty specification.

{¶ 2} On June 30,1995, in a proceeding before the trial court, appellee waived his right to a trial by jury and his right to a three-judge panel. Appellant nolled the count of possession of a weapon under disability and deleted the firearm specification from the aggravated robbery count. Appellee then entered pleas of guilty to the remaining charges as set forth in both indictments and was sentenced, by a single trial judge, to imprisonment for a term of twenty years to life on the aggravated murder charge with no possibility of parole for twenty years, three years’ actual incarceration on the firearm specification, to be served consecutively to the murder sentence, and eighteen months for the assault charge, to be served concurrently with the previous terms.

{¶ 3} On appeal, appellee claimed that, pursuant to R.C. 2945.06, a single trial judge lacks jurisdiction to accept a plea in a capital case and that an accused may not waive the right to a trial by a three-judge panel. The Court of Appeals for Cuyahoga County agreed, vacating appellee’s sentence and remanding to the trial court for further proceedings consistent with the judgment of the court of appeals. The court then granted appellant’s motion to certify to this court pursuant to Section 3(B)(4), Article IV, Ohio Constitution. The court of appeals found its judgment to be in conflict with the judgments of the court of appeals in State v. Griffin (1992), 73 Ohio App.3d 546, 597 N.E.2d 1178, State v. Heddleson (Aug. 4, 1997), Stark App. No. 1997CA00113, and State v. Rash (Mar. 27, 1995), Stark App. No. 94-CA-223, 1995 WL 347945. This cause is now before this court pursuant to the allowance of a discretionary appeal and upon our determination that a conflict exists.

{¶4} The question certified by the court of appeals is, “[W]hen the State agrees not to pursue the death penalty in an aggravated murder case, but does not delete the death penalty specification, does the requirement that the proceedings be held by a three judge panel as set forth in R.C. 2945.06 and Crim.R. 11(C)(3) still apply?” We answer the certified question in the affirmative and hold, for the reasons that follow, that the single trial judge lacked authority to accept appellee’s plea.

{¶ 5} R.C. 2945.06 provides:

{¶ 6} “In any case in which a defendant waives his right to trial by jury and elects to be tried by the court under section 2945.05 of the Revised Code, any judge of the court in which the cause is pending shall proceed to hear, try, and determine the cause in accordance with the rules and in like manner as if the cause were being tried before a jury. If the accused is charged with an offense punishable with death, he shall be tried by a court to be composed of three judges. ” (Emphasis added.)

{¶ 7} Crim.R. 11(C)(3) provides:

{¶ 8} “If the indictment contains one or more specifications that are not dismissed upon acceptance of a plea of guilty or no contest to the charge, or if pleas of guilty or no contest to both the charge and one or more specifications are accepted, a court composed of three judges shall: (a) determine whether the offense was aggravated murder or a lesser offense; and (b) if the offense is determined to have been a lesser offense, impose sentence accordingly; or (c) if the offense is determined to have been aggravated murder, proceed as. provided by law to determine the presence or absence of the specified aggravating circumstances and of mitigating circumstances, and impose sentence accordingly.” (Emphasis added.)

{¶ 9} R.C. 2945.06 and Crim.R. 11(C)(3) clearly establish that, in a capital case where a criminal defendant has waived the right to trial by jury, a three-judge panel is required. However, appellant contends that a three-judge panel is required only where the death penalty is actually available as a sentencing option. Appellant relies on State v. Griffin (1992), 73 Ohio App.3d 546, 553, 597 N.E.2d 1178, State v. Heddleson (Aug. 4, 1997), Stark App. No. 1997CA00113, and State v. Rash (Mar. 27, 1995), Stark App. No. 94-CA-223, for the proposition that once the state has agreed that it will not seek the death penalty, the death penalty is no longer an available sentencing option. We disagree.

{¶ 10} In State ex rel. Henry v. McMonagle (2000), 87 Ohio St.3d 543, 721 N.E.2d 1051, Henry, the criminal defendant, was originally indicted for aggravated murder with a death-penalty specification. The indictment was later amended to remove the death-penalty specification, and Henry pled guilty before and was sentenced by a single judge. Henry subsequently sought to vacate his conviction and sentence, alleging that he was entitled to a three-judge panel pursuant to R.C. 2945.06. We held that “neither R.C. 2945.06 nor Crim.R. 11(C) required an examination and determination by a three-judge panel because Henry was no longer charged with an offense punishable by death at the time he entered his guilty plea.” (Emphasis added.) Id., 87 Ohio St.3d at 545, 721 N.E.2d 1051. ‘We have consistently required strict compliance with Ohio statutes when reviewing the procedures in capital cases.” State v. Filiaggi (1999), 86 Ohio St.3d 230, 240, 714 N.E.2d 867, citing State v. Pless (1996), 74 Ohio St.3d 333, 658 N.E.2d 766, paragraph one of the syllabus. “When a defendant pleads guilty to aggravated murder in a capital case, a three-judge panel is required.” State v. Green (1998), 81 Ohio St.3d 100, 689 N.E.2d 556, syllabus.

{¶ 11} In the case at bar, appellee pled guilty to aggravated murder with a death-penalty specification. Therefore, under R.C. 2945.06 and Crim.R. 11(C)(3), regardless of the state’s agreement that it would not seek the death penalty, appellee was still charged with an offense that was punishable with death. Accordingly, we hold that a defendant charged with a crime punishable by death who has waived his right to trial by jury must, pursuant to R.C. 2945.06 and Crim.R. 11(C)(3), have his case heard and decided by a three-judge panel even if the state agrees that it will not seek the death penalty.

{¶ 12} The three-judge-panel requirement of R.C. 2945.06 is a jurisdictional matter that cannot be waived. State v. Filiaggi, 86 Ohio St.3d at 239, 714 N.E.2d 867. Since there was no amendment to the indictment deleting the death-penalty specification, it was required that appellee’s case be heard by a three-judge panel. The judgment of the court of appeals is affirmed.

Judgment affirmed.

Moyer, C.J., F.E. Sweeney and Pfeifer, JJ., concur.

Resnick and Lundberg Stratton, JJ., dissent.

Cook and Lundberg Stratton, JJ., dissent.