Criminal Appeal from the Portage County Court of Common Pleas, Case No. 75 CR 144A.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, (For Plaintiff-Appellee).
Michael A. Partlow, (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
(¶1} Appellant, Ralph Francis Garduno, appeals the judgment of the Portage County Court of Common Pleas denying his motion for resentencing. Appellant was sentenced to death in 1976 following his conviction, after a jury trial, of aggravated murder. At issue is whether appellant was entitled to a resentencing after this court in State v. Garduno, 11th Dist. Portage No. 710, 1979 Ohio App. LEXIS 12085 (Jul 2, 1979) ("Garduno I"), modified his sentence by reducing it to life imprisonment. This court modified appellant's sentence following the decision by the United States Supreme Court in Lockett v. Ohio, 438 U.S. 586 (1978) and Bell v. Ohio, 438 U.S. 637 (1978), that Ohio's death penalty statute was unconstitutional. For the reasons that follow, we affirm.
(¶2} On February 18, 1975, appellant, Kenneth McDaniels, James Krug, and Karl Netolicky were driving from Akron to Youngstown. Appellant was driving and his accomplice, McDaniels, was in the front passenger seat. The victims, Krug and Netolicky, were in the back. Appellant stopped the car in an isolated area, and McDaniels pulled a gun on Krug and Netolicky. Appellant told the victims he was under orders to either kill them or he would be killed.
(¶3} Appellant and McDaniels had the victims get out of the car. Krug and Netolicky walked to the edge of the road. Suddenly, Netolicky was shot. Krug was then shot and collapsed. Krug was then kicked in the head. Appellant ordered McDaniels to "shoot them in the head." Krug and Netolicky were found at about 5:00 a.m. by a passing motorist. Krug was rushed to the hospital where he was found to have multiple bullet wounds, one of which shattered his spine causing him to be paralyzed from the waist down. Netolicky also sustained several bullet wounds resulting in his death.
(¶4} Krug identified appellant and McDaniels as the assailants. Warrants were issued for their arrest, and both were apprehended toward the end of 1975.
(¶5} After the case was tried by a jury, appellant was found guilty of aggravated murder with specifications and attempted aggravated murder. Following a mitigation hearing, on May 27, 1976, the trial court sentenced appellant to death for aggravated murder and seven to 25 years in prison for attempted aggravated murder. Appellant appealed his conviction to this court.
(¶6} While appellant's direct appeal was pending, the United States Supreme Court in Lockett and Bell held that Ohio's statutory scheme for determining the death penalty was unconstitutional. These cases were remanded to the Supreme Court of Ohio for further proceedings.
(¶7} Pursuant to this remand, the Ohio Supreme Court issued a judgment entry, dated August 16, 1978, ordering that the judgments in 54 listed cases affirming the death sentence of each defendant named therein be modified and that the death sentence of each such defendant be reduced to life imprisonment. Appellant's case was not included in this list as it was still pending in this court when the Supreme Court of Ohio issued this entry.
(¶8} This court, in Garduno I, modified the trial court's judgment "by reducing the penalty from death to life imprisonment and affirmed as modified." Id. at *13. This court stated that, "[i]n doing so we follow the action of the Supreme Court of Ohio in its entry of August 16, 1978." Further, this court in its judgment entry, dated July 2, 1979, "modified and affirmed as modified" the trial court's judgment and incorporated this court's decision. Appellant did not appeal this court's judgment to the Ohio Supreme Court.
(¶9} Instead, 32 years later, on September 19, 2011, appellant filed a motion in the trial court for resentencing pursuant to R.C. 2929.06. Thereafter, appellant filed a supplemental motion for resentencing pursuant to former R.C. 2967.19. The trial court denied appellant's motion for resentencing by its judgment entry, dated August 27, 2012. Appellant appeals the trial court's judgment, asserting the following for his sole assignment of error:
(¶10} "The trial court committed error when denying motion to correct illegal sentence, in a vacated death-penalty case, pursuant to R.C. 2967.19; 139 v S 1, eff. 10-19-81; Criminal Rule 36; and, the dictates of Sta ...