Criminal Appeal from Common Pleas Court Case No. 96CR906
APPEARANCES: For Plaintiff-Appellee: Paul J. Gains, Prosecuting Attorney Janice T. O'Halloran Assistant Prosecuting Attorney Mahoning County Courthouse
For Defendant-Appellant: Attorney Dennis A. DiMartino
Hon. Gene Donofrio, Joseph J. Vukovich, Mary DeGenaro, Judges
Defendant-appellant, Leroy Johnson, Jr., appeals his sentence for his conviction following a bench trial for two counts of aggravated murder, with accompanying specifications.
On November 22, 1996, appellant was involved in an argument with his previous live-in girlfriend, Martha Johnson (Martha). Martha was staying with her aunt, Lille Mae Swain (Swain), at 319 S. Garland Ave. in Youngstown, Ohio. That day, appellant threatened Martha and made several trips to Swain's residence with Martha's clothing which he had cut up.
Later that day, shortly before 11:00 p.m., appellant again arrived at Swain's residence looking for Martha. He broke into the house and went upstairs to Swain's bedroom looking for Martha. Martha heard him breaking in and calling for her. She then hid underneath her bed. Meanwhile, appellant confronted Swain and her companion, Wade Harvin (Harvin), demanding to know where Martha was. Appellant then shot Swain and Harvin to death. Appellant was arrested the next day following a police pursuit.
On December 20, 1996, a Mahoning County Grand Jury returned an indictment against appellant setting forth four counts. Counts 1 and 2 were for the aggravated murder of Swain and Harvin. Each count carried specifications of aggravating circumstances that the offense was part of a course of conduct involving the purposeful killing of two or more persons by appellant and that the offense was committed while appellant was committing or attempting to commit aggravated burglary. R.C. 2929.04(A)(5), (7). Each count also carried with it a firearm specification. Count 3 was for the underlying offense of aggravated burglary, with a firearm specification. Count 4 was for failure to comply with the order or signal of a police officer.
Appellant was appointed counsel and pled not guilty. Following numerous pretrial matters, appellant appeared in open court with counsel on January 5, 1999, and waived his right to a jury trial. Appellant elected, instead, to be tried by a panel of three judges.
On January 28, 1999, a trial was held before the three-judge panel. Appellee indicated to the court that it had reached an agreement with appellant. Appellant agreed to a joint stipulation of facts, signed by appellant and his counsel, stating that appellant committed the murders. In exchange, appellee moved to dismiss the charge of failure to comply with an order or signal of a police officer. Appellee also agreed not to seek the death penalty and to recommend a sentence of life without parole on each of the aggravated murder charges and ten years on the aggravated burglary charge plus three years for one firearm specification. Appellee read the joint stipulation of facts into the record. The court sustained appellee's motion and dismissed Count 4. Appellee also proceeded to present the testimony of Swain's neighbor, Martha Johnson, and an investigating officer. After deliberating, the panel found appellant guilty, with the accompanying specifications.
The case proceeded to sentencing on January 29, 1999. The panel sentenced appellant to two consecutive life terms in prison without the possibility of parole for the aggravated murder convictions. The panel sentenced appellant to ten years in prison for the aggravated burglary conviction to run consecutive with the other two sentences. Also, the panel sentenced appellant to three years on the firearm specification. This appeal followed.
Appellant's sole assignment of error states:
"THE TRIAL COURT ERRED BY SENTENCING APPELLANT TO A TERM OF LIFE IN PRISON WITHOUT THE POSSIBILITY OF PAROLE, RATHER THAN A TERM OF LIFE ...