Update: On December 22, 2020, in a 4-3 decision, the Court reversed the judgment of the Seventh District Court of Appeals on the authority of State v. Patrick Slip Opinion No. 2020-Ohio-6803, and remanded the case back to the Seventh District for further proceedings consistent with its opinion in Patrick. Read the analysis of the Patrick decision here.

On July 7, 2020, the Supreme Court of Ohio will hear oral argument in State of Ohio v. David Carl Kinney, 2019-1103. At issue in this case is whether R.C. 2953.08(D)(3) is unconstitutional on its face, and as applied to life without parole sentences.

Case Background

On May 6, 2017, David Carl Kinney shot and killed Brad McGarry at McGarry’s home. Kinney and McGarry were close friends and had been engaged in an extra-marital affair. Kinney was married and had three stepchildren. McGarry was apparently pressuring Kinney to leave his wife, while Kinney feared his wife would discover the truth about his sexuality.  Later on the day of the shooting, Kinney, his wife, and his stepdaughter drove to McGarry’s home to deliver a weed trimmer. During the family’s search of the home, Kinney “found” McGarry’s body in the basement and Kinney’s wife called 911. During a police interview, Kinney admitted he was the person who had shot and killed McGarry.

After a jury trial, Kinney was found guilty of aggravated murder with a firearm specification. Judge Frank A. Fregiato of the Belmont County Court of Common Pleas sentenced Kinney to life without parole for aggravated murder plus three years for the firearm specification.

Kinney appealed, raising, among other issues, the constitutionality of R.C. 2953.08(D)(3).

The Appeal

In a unanimous decision authored by Judge Carol Ann Robb, and joined by Judges Gene Donofrio and David A. D’Apolito, the Seventh District Court of Appeals affirmed the trial court’s judgment.

In the sole issue pertinent here, the Seventh District concluded that the application of R.C. 2953.08(D)(3) to Kinney’s sentence of life without parole did not violate the Eighth Amendment or Article I, Section 9 of the Ohio Constitution because there was no evidence that the trial court was biased or failed to consider mitigating evidence. Additionally, the court found that R.C. 2953.08(D)(3) was not unconstitutional beyond a reasonable doubt under either the Eighth Amendment or Article I, Section 9 of the Ohio Constitution.

Votes to Accept the Case

Yes: Chief Justice O’Connor and Justices French, Fischer, Donnelly, and Stewart.

No: Justices Kennedy and DeWine.

Kinney’s First Proposition of Law Accepted for Review

R.C. 2953.08(D)(3) is unconstitutional both on its face, and as applied, as it violates the Ohio Constitution, Article I, Section 9, and the Eighth Amendment to the U.S. Constitution.

Key Statutes and Precedent

U.S. Const. Amend. VIII (Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.)

Ohio Const. Art. I, § 9 (Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted.)

R.C. 2701.03(A) (Alleged bias of the trial court must be addressed by an affidavit of disqualification filed in the Supreme Court of Ohio.)

R.C. 2929.03(A)(1)(a)-(d) (Aggravated murder is an unclassified felony that carries a possible prison sentence of life imprisonment without parole or life imprisonment with parole eligibility after 20 years, 25 years, or 30 years.)

R.C. 2953.08(D)(3) (A sentence imposed for aggravated murder or murder pursuant to sections 2929.02 to 2929.06 of the Revised Code is not subject to review under this section.)

Beer v. Griffith, Ohio St.2d 440 (1978) (An appellate court generally lacks jurisdiction to reverse judgments based upon bias.)

Harmelin v. Michigan, 501 U.S. 957 (1991) (A life sentence with no possibility of parole is not comparable to a death sentence and is not that different from a life sentence with a possibility of parole.)

State v. Weitbrecht, 86 Ohio St.3d 368 (1999) (Statutes are presumed constitutional and will not be struck down unless the challenger establishes that the statute is unconstitutional beyond a reasonable doubt.)

State v. Porterfield, 2005-Ohio-3095 (The language of R.C. 2953.08(D)(3) is unambiguous and clearly means that a sentence imposed for aggravated murder or murder pursuant to sections 2929.02 to 2929.06 cannot be reviewed.)

Graham v. Florida, 130 S.Ct. 2011 (2010) (Under a categorical analysis of the Eighth Amendment, the court looks to: 1) societal standards; and 2) the history and precedent of Eighth Amendment jurisprudence. This review includes consideration of the offender’s culpability, the severity of the punishment, and legitimate penological goals.)

State v.  Dean, 2010-Ohio-5070 (A judge’s critical, disapproving, or hostile statements ordinarily do not support a bias challenge.)

State v. Power, 2013-Ohio-4254 (7th Dist.) (“Opinions formed by the judge on the basis of facts in the record do not” support “a bias or partiality motion unless they display a deep-seated antagonism that would make fair judgment impossible.”)

State v. Campbell, 2016-Ohio-7613 (8th Dist.) (There is no constitutional right to appellate review of a criminal sentence and the only right to appeal is the one provided by statute.)

State v. Marcum, 2016-Ohio-1002 (R.C. 2953.08 “specifically and comprehensively defines the parameters” of appellate review for felony sentences.)

State v. Corchado, 2017-Ohio-4390 (7th Dist.) (Biased comments at sentencing can be reviewed for due process violations only in extreme cases or those involving a constitutionally protected status.)

Campbell v. Ohio, 138 S.Ct. 10059 (2018) (“Statement” by Justice Sotomayor from Court’s denial of writ of certiorari ) (Due to the parallels between a death sentence and a sentence of life imprisonment without parole, R.C. 2953.08(D)(3) may raise Eighth Amendment concerns.)

Kinney’s Argument

R.C. 2953.08(D)(3) is cruel and unusual punishment on its face, and as applied to life without parole (“LWOP”) sentences, because it denies defendants any meaningful review. A LWOP sentence for aggravated murder is the only felony sentence not subject to review of any kind.

Article I, Section 9 of the Ohio Constitution provides greater protection than the Eighth Amendment because it is qualified by Article I, Section 1, which protects citizens’ inalienable rights. Although Ohio law does not strip felons of these inalienable rights, R.C. 2953.08(D)(3) allows a single trial judge to completely and irrevocably deprive individuals sentenced to LWOP of their right to enjoy and defend life and liberty and their right to seek and obtain happiness. Because a LWOP sentence cannot be reviewed, there is no mechanism to safeguard an individual’s Article I, Section 1 rights.

The U.S. Supreme Court employs two methods of Eighth Amendment analysis: a proportionality analysis and a categorical analysis. The proportionality analysis is not appropriate here. The issue in this case is not that LWOP is a grossly disproportionate sentence relative to the crime of aggravated murder, but rather, that an individual sentenced to LWOP is denied any form of meaningful review.

An application of the categorical analysis indicates that R.C. 2953.08(D)(3) violates both the Eighth Amendment and Article I, Section 9 of the Ohio Constitution. There is a national consensus against Ohio’s statutory sentencing scheme. Ohio is the only state that does not permit appellate review of LWOP sentences.

Additionally, Kinney’s personal characteristics weigh against a LWOP sentence. Kinney did not suffer from mental illness or substance abuse. Kinney also had no significant criminal history and no history of violence or spousal abuse. The likelihood of any recidivism was nonexistent. As such, there was no rational basis for the trial court’s determination that Kinney was beyond rehabilitation. Moreover, the facts of this case do not represent the worst form of this offense.

Further, LWOP does not support the legitimate penological goal of rehabilitation which, in Kinney’s case, is a gross miscarriage of justice. When R.C. 2953.08(D)(3) was first instituted, the only sentence available for aggravated murder was life with parole eligibility after 20 years. Under this sentencing scheme, with only a single option available, there was no need for appellate review because an abuse of discretion was not possible. However, these sentencing assumptions are no longer valid.

The Supreme Court has repeatedly emphasized that meaningful appellate review of death sentences promotes reliability and consistency. The death penalty and LWOP share numerous characteristics within an Eighth Amendment analysis. In Ohio, a LWOP sentence becomes tantamount to a death sentence because it irrevocably deprives those convicted of basic liberties and does not provide access to corrective or modifying mechanisms, such as probation or parole.

R.C. 2953.08(D)(3) is unconstitutional beyond a reasonable doubt and should be severed from R.C. 2953.08(D) so that all felony sentences are eligible for appellate review. Alternatively, R.C. 2953.08(D)(3) should be deemed unconstitutional as applied to LWOP sentences for aggravated murder.

In this case, Kinney’s LWOP sentence should be vacated with instructions to the trial court to re-sentence him.

State’s Argument

The Court should dismiss this case as improvidently accepted. The question of whether R.C. 2953.08(D)(3) is unconstitutional assumes that aggravated murderers have no right to appeal their sentences. However, this is an unresolved issue of statutory interpretation that Kinney did not brief, and no court has considered. The language of R.C. 2953.08(D)(3) may permit aggravated murderers to appeal their sentences under R.C. 2953.02, the General Appeal Law.

However, if the Court decides to rule on the statutory question, it should hold that aggravated murderers have no right to appeal their sentences. If R.C. 2953.02 permits aggravated murderers to appeal their sentences, R.C. 2953.08(D)(3) would be superfluous. Although defendants may appeal issues not covered by R.C. 2953.08(D)(3), issues covered by the statute can be appealed only under that law. Cases in which the Court has considered the meaning and scope of R.C. 2953.08 suggest that this statute is the exclusive route for appealing a felony sentence.

Moreover, R.C. 2953.08(D)(3) does not violate the Eighth Amendment or Article I, Section 9 of the Ohio Constitution. Neither the U.S. Constitution nor the Ohio Constitution, which provides no greater protections than the Eighth Amendment, guarantees adult murderers a right to appeal a LWOP sentence. The Eighth Amendment and Article I, Section 9 forbid certain inhumane methods of punishment. They do not guarantee procedural rights such as the right to appeal a sentence.

Neither the U.S. Constitution nor the Ohio Constitution provide any right to appeal criminal convictions or sentences. The U.S. Supreme Court has read the Eighth Amendment to require certain procedural safeguards in the death penalty context only because the death penalty may constitute cruel and unusual punishment in some cases. Because life sentences are never cruel and unusual as applied to adult murderers, there is no need for such procedural safeguards. Thus, there is no basis for reading into the Eighth Amendment or Article I, Section 9 a right to appeal that is applicable to life sentences without parole.

Neither Kinney nor his amici present any plausible legal arguments. Kinney provides no textual or precedential support for the contention that Article I, Section 9 provides a right to appeal, but instead, merely relies on the spirit underlying the Ohio Constitution. Additionally, Kinney fails to cite any cases holding that the Eighth Amendment prohibits unpopular procedural mechanisms against which a national consensus has formed. Further, Kinney’s argument that his sentencing must be individualized fails to acknowledge that the Supreme Court has never held that the sentencing of adult offenders must be individualized outside of the death penalty context.

Justice Sotomayor’s argument in the denial of certiorari in Campbell v. Ohio should not prevail here. Statements respecting the denial of certiorari are not binding and no other Justice joined this statement. Moreover, Justice Sotomayor’s analysis fails to consider that LWOP sentences are never cruel and unusual as applied to adult murderers and, thus, nothing in the Eighth Amendment could justify the imposition of procedural prerequisites to an LWOP sentence.

Ultimately, the question of whether there should be a right to appeal the proportionality of an LWOP sentence rests on policy determinations better suited to Ohio’s General Assembly.

State’s Proposed Counter Proposition of Law

Ohio Revised Code Section 2953.08(D)(3) is constitutional under the Eighth Amendment to the United States Constitution and Article I, Section 9, of the Ohio Constitution, both on its face and as applied to murderers.

Amici in Support of Kinney

Office of the Ohio Public Defender and the National Association of Criminal Defense Lawyers

The Office of the Ohio Public Defender is joined by the National Association of Criminal Defense Lawyers in supporting the argument of Kinney. The Office of the Ohio Public Defender represents indigent criminal defendants, promotes the proper administration of criminal justice, and has an interest in ensuring the constitutional, fair, just, and correct appellate review of criminal sentences. The National Association of Criminal Defense Lawyers is a professional bar association for criminal defense attorneys that provides amicus assistance in cases that present issues of importance to criminal defendants, criminal defense lawyers, and the criminal justice system.

Ohio is the only state in the country that categorically prohibits appellate review of aggravated murder sentences.  R.C. 2953.08(D)(3) is a legislative oversight because the original logic, purpose, intent, and context of the prohibition have been negated by the addition of sentencing options for aggravated murder. But even if not an oversight, R.C. 2953.08(D)(3) is unconstitutional on both cruel and unusual punishment and equal protection grounds. A LWOP sentence shares characteristics with a death sentence that are shared by no other sentences and, thus, is only justified when it satisfies the need to incapacitate, deter, and rehabilitate the offender. Additionally, R.C. 2953.08(D)(3) violates Ohio and federal rights to equal protection because there is no rational basis for a two-track process that grants appellate review to all felony sentences except aggravated murder sentences.

Student Contributor: Madeline Pinto