In Capital Cases, 'Final Order' Consists of Both Judgment of Conviction and Sentencing Opinion

State v. Ketterer, Slip Opinion No. 2010-Ohio-3831.
Butler C.P. No. CR-2003-03-309. Judgment of the trial court reversed in part, and cause remanded for imposition of postrelease control.
Pfeifer, O'Connor, O'Donnell, Lanzinger, and Cupp, JJ., concur.
Lundberg Stratton, J., dissents.
Brown, C.J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-3831.pdf

(Aug. 25, 2010) The Supreme Court of Ohio ruled today that in capital murder cases where a trial court is required to file a separate sentencing opinion setting forth the court’s specific findings regarding a death sentence, a “final appealable order” consists of both the court’s judgment of conviction filed pursuant to Criminal Rule 32(C), and its sentencing opinion filed pursuant to R.C.2929.03(F).

Applying that holding to the case of convicted murderer Donald Ketterer, the Court rejected Ketterer’s claim that a resentencing decision for non-capital charges in his case did not contain all the information required to constitute a valid “final order” subject to appellate review. In a 5-1 majority opinion authored by Justice Judith Ann Lanzinger, the Court also rejected other claims advanced by Ketterer, but remanded his case for resentencing on several of the non-capital charges because the trial court failed to properly impose post-release control for those counts.

Ketterer entered guilty pleas in the Butler County Court of Common Pleas to charges of aggravated murder, aggravated robbery, grand theft and aggravated burglary based on events leading up to and following his 2003 killing of Lawrence Sanders. He was sentenced to death for the aggravated murder conviction, and to a total of 22 years in prison for his other offenses. In 2006, the Supreme Court of Ohio reviewed and affirmed Ketterer’s aggravated murder conviction and death sentence. However, the Supreme Court remanded his non-capital sentences to the trial court for resentencing consistent with the Court’s ruling earlier that year in State v. Foster. In Foster, the Court held that offenders who received enhanced (non-minimum) prison terms based on factual findings made by the trial judge rather than by a jury must be resentenced.

On remand, the trial court imposed identical prison terms, totaling the same 22 years as it had imposed at Ketterer’s first sentencing for his non-capital offenses. Ketterer appealed the resentencing order to the Supreme Court, advancing among other arguments a claim that the new sentencing order was not a “final” order subject to appellate review because it did not indicate that Ketterer had entered guilty pleas to the non-capital charges against him, and therefore did not comply with a requirement in Criminal Rule 32 (C) that a valid judgment of conviction must state “the plea, the verdict or findings and the sentence.”

In today’s decision, Justice Lanzinger rejected Ketterer’s argument that the resentencing order in his case failed to comply with the Supreme Court’s 2008 holding in State v. Baker that “(o)nly one document can constitute a final appealable order.”

Pointing out that Ketterer’s sentences were imposed as part of a capital murder trial, while Baker addressed only non-capital offenses, Justice Lanzinger wrote: “R.C. 2929.03(F) requires the trial court to issue a separate sentencing opinion in addition to the judgment of conviction in cases in which the death penalty may be imposed. ... In Baker, we did not address any interaction between R.C. 2929.03(F) and Crim.R. 32(C). ... 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.”

“We hold that in cases in which R.C. 2929.03(F) requires the court or panel to file a sentencing opinion, a final, appealable order consists of both the sentencing opinion filed pursuant to R.C. 2929.03(F) and the judgment of conviction filed pursuant to Crim.R. 32(C). Therefore, while the final, appealable order must satisfy the four requirements enumerated in Baker, the first requirement – that the final, appealable order include the guilty plea, the jury verdict, or the finding of the court upon which the conviction is based – will be satisfied if either the judgment of conviction or the sentencing opinion includes the guilty plea, jury verdict, or finding of the court upon which the conviction is based.”

“Ketterer’s sentencing opinion states, ‘The defendant waived his right to a jury and entered a plea of guilty to all charges January 27, 2004 ...’ While the court failed to set forth Ketterer’s guilty plea in the judgment of conviction, the sentencing opinion states that Ketterer pleaded guilty and satisfies the requirement that the final, appealable order set forth the guilty plea, the jury verdict, or the finding of the court upon which the conviction is based. The sentencing opinion and judgment of conviction combine to form a valid final, appealable order.”

In determining that it was necessary to remand the case for proper imposition of a term of postrelease control for Ketterer’s non-capital offenses, Justice Lanzinger observed that the trial court committed four separate errors in its earlier actions imposing postrelease control, and that those errors must be formally corrected by the trial court in order to meet the strict standard of care that must be applied in capital cases.

Justice Lanzinger’s opinion was joined by Justices Paul E. Pfeifer, Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp.

Justice Evelyn Lundberg Stratton entered a dissent in which she pointed to a 2006 decision, Watkins v. Collins, in which the Supreme Court held that the “preeminent purpose” of the state law mandating advisement of postrelease control at trial was that “offenders subject to postrelease control know at sentencing that their liberty could continue to be restrained after serving their initial sentences.”

In this case, she wrote, “Ketterer was advised that he was subject to postrelease control, that the duration of that postrelease control would be five years, and that imposition of the postrelease control was mandatory. Therefore, while the trial court may have misspoken and at one point used the word ‘and’ instead of the word ‘through,’ the trial court did comply with the requirement to advise Ketterer that postrelease control was mandatory for five years. Therefore, the preeminent purpose of R.C. 2967.28 was complied with, and no error should be found that warrants reversal.”

Chief Justice Eric Brown did not participate in the Court’s deliberations or decision in the case.

Contacts
Randall L. Porter, 614.466.5394, for Donald Ketterer.

Michael A. Oster, 513.887.3474, for the state and Butler County Prosecutor.

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