Further update:

Pertinent to this remand is the holding in State v. Patrick that a constitutional challenge to a sentence is not barred by R.C. 2953.08(D)(3). So, on March 12, 2021, on remand, the Seventh District first determined on the authority of Patrick that it had jurisdiction to review Kinney’s Eighth Amendment challenge to his aggravated murder conviction. The appeals court held that the record did not demonstrate that Kinney was unconstitutionally sentenced to life without parole, nor did it demonstrate any bias by the trial court or that the judge failed to consider the relevant sentencing factors. Read the appellate opinion here.

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.

“Didn’t your client have the right to defend his life and liberty at trial?”

Justice Fischer, to counsel for Kinney

“Is there any other law on the books where a discretionary decision like that wouldn’t be reviewable?”

Justice Donnelly to the Solicitor General

On July 7, 2020, the Supreme Court of Ohio heard 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, with a wife and 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. The trial court sentenced Kinney to life without parole (“LWOP”) 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. Kinney appealed.

Kinney’s 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.

Read the oral argument preview here.

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. 2929.02 (Murder Penalties) (whoever is convicted of aggravated murder shall suffer death or be imprisoned for life.)

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. 2953.02 (General Appeal Law)( Right of review of judgments on appeal, including felony sentences.)

*R.C. 2953.08 (Felony Appeal Law)(lists circumstances allowing appeal of right of felony sentences “in addition to any other right to appeal and except as provided in division (D).”)

*R.C. 2953.08(D)(3) (Murder Appeal Section)(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. Smith, 1997-Ohio-355 (there is no constitutional right to an appellate review of a criminal sentence.)

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.)

*Cited by counsel at argument

At Oral Argument

Arguing Counsel

Christopher J. Gagin, Gagin Legal Services LLC, Wheeling, West Virginia, for Appellant David C. Kinney, Jr.

Benjamin M. Flowers, Solicitor General, for Appellee State of Ohio

Kinney’s Argument

The question before the Court is whether R.C. 2953.08(D)(3) constitutes cruel and unusual punishment in violation of Article I section 9 of the Ohio Constitution and the Eighth Amendment to the U.S. Constitution.

By statute, Ohio grants every convicted felon the right to appeal his or her sentence except in cases of aggravated murder and murder.  Ohio is the only state in the country to deny appellate review of these sentences. The source of Ohio’s anomalous sentencing practice is found within the statute’s legislative history. From July 1, 1996 until March 2, 2005, the only sentence which a trial court could impose for murder and aggravated murder was 20 years to life under former R.C. 2929.03. When R.C. 2953.08 became effective July 1, 2006 as part of S.B. 2’s sentencing reform, it included division D which took away the right of appeal from anyone convicted of aggravated murder or murder. This was a rational choice at that time because 20 to life was the only sentence, with no discretion for the trial court. One size fit all; everyone got the same sentence. To allow an appeal would have been to allow a superfluous act.

R.C. 2953.08 (A) grants the right to appeal a felony sentence in Ohio. Section (D)(3) takes that right away only for aggravated murder and murder. When the legislature added the discretionary sentencing options of 20 years to life, 25 years to life, 30 years to life, and then life without parole, for some reason the legislature did not adjust its sentencing practice to permit persons convicted of aggravated murder or murder to appeal their sentences. And in State v. Porterfield, this Court held that statute meant what it said—there is no appellate jurisdiction for aggravated murder or murder.

Mr. Kinney is not arguing, as the state insists, for a declaration of a constitutional right to an appeal of a criminal sentence.  That issue is well settled.  There is no constitutional right to appellate review of criminal sentences. But there is a statutory right to an appeal of a criminal sentence in Ohio. Only aggravated murder and murder convictions have a right taken away that is statutorily granted to everyone else in the state who is convicted of a felony. This raises an Eighth Amendment problem because as both this Court and the U.S. Supreme Court have acknowledged, once the right of appeal is established, even though it doesn’t have to be established, there cannot be unreasoned distinctions that impede open and equal access to the court.  Both due process and equal protection are interwoven within an Eighth Amendment analysis.

LWOP sentences violate both Article I, Sections 1 and 9 of the Ohio Constitution and the Eighth Amendment because LWOP allows one judge, one time, the discretion with a sentence which is never reviewed. That becomes an arbitrarily administered sentencing practice that is prohibited. Under the Ohio Constitution, which this Court has long recognized as a document of independent force, every Ohioan has an inalienable right to enjoy and defend his or her life and liberty. Under R.C. 2953.08(D)(3) there is no right to defend that life or liberty.  Regardless of what is presented at sentencing, under the statutory construction set out in Porterfield, an LWOP sentence is nonreviewable, even if the judge involved was using an improper motivation for the sentence or was not following the Ohio sentencing guidelines. 

The remedy in this case which would cure the problem with the statute would be to strike section (D)(3) its entirety. Severance here is a very simple way to remedy what is clearly an unconstitutional sentencing practice. This would allow an appeal just as the state provides for every other convicted felon.

Mr. Kinney is not an evil man. He had no prior issues with the law.  There is no question that he made some grievous mistakes, but all of this happened in a 16-minute span and there was no evidence he brought a gun, or that there were threats. The forensic evidence in the case shows there was a struggle here, not an execution style killing. Thus far he has been a model prisoner, and there is no need to protect the public from Mr. Kinney in the long term.

State’s Argument

The state agrees there is no right to appeal this sentence under R.C. 2953.08(D)(3), but that does not mean these sentences are beyond review.  If the judge were to impose a LWOP sentence for impermissible reasons such as race or sexual orientation, the defendant could seek a writ of mandamus. In that situation, there would be a clear entitlement to a mandamus action for a re-sentencing before a new judge. Or a defendant in Mr. Kinney’s position could seek a writ of certiorari in the U.S. Supreme Court. Finally, disqualification of the sentencing judge could be sought from the Supreme Court of Ohio. Aside from the scenarios where the judge relies on an impermissible factor, there is no situation in which any version of a life sentence with or without parole would ever be arbitrary or unjustified as applied to an adult murderer.

It is simply untrue that the previous version of the law allowed only one sentence for aggravated murder. There was one sentence for life without parole with no capital specifications, but if there were capital specifications there was a range of sentences, from LWOP to parole after a certain number of years. The current system was not some legislative oversight. The General Assembly had a rational basis to conclude that truly egregious abuses of judicial power could be corrected through mandamus and disqualification, and otherwise, there was no reason to burden courts with bickering over whether a trial court should decide whether to impose parole after some number of years or LWOP. What the General Assembly recognized is there would be no situation in which there would  be a routine abuse of discretion that would justify an appellate court overruling a trial court which heard the witnesses, saw the defendant’s demeanor and decided one version of a life sentence was more justified than another.

If this Court does have jurisdiction to review the sentence, then any constitutional claim necessarily fails because it means Mr. Kinney does have the right to an appeal, which is the antecedent question that wasn’t adequately briefed below. But Mr. Kinney has not argued that his sentence is unconstitutional or that it was unconstitutionally imposed. He apparently wishes to challenge the exercise of discretion by the trial court in his case.

In this case, in which the prosecution did not seek the death penalty, the sentencing choices were life with parole after 20, 25, or 30 years, or LWOP. The state advocated for LWOP and the trial court gave its reasons for imposing that sentence, which included the premeditated nature of the killing of a person Mr. Kinney admittedly loved, his attempt to cover up his crime, his return to the scene of the crime with his family to “discover” the murder, and trying to place the blame on others. The trial court indicated this was the act of someone particularly cold and calculating who is going to be a danger to society at any age, which is why LWOP was imposed.

The Court granted review to determine whether the Eighth Amendment or Article I Section 9 guarantees a right to appeal. Mr. Gagin posits there is no statutory right to an appeal, which should end that question.  He argues the Equal Protection Clause is somehow tied up in the Eighth Amendment, which is not the law from the U.S. Supreme Court or this Court. The Eighth Amendment and Article I Section 9 speak to punishments, not to procedures.  To try and fit this case into the Eighth Amendment rubric, Mr. Gagin argues that denying the right to an appeal is a punishment. If that is the case, so is every other procedure that governs the posttrial management of a case upon a conviction. That is not the way this Court or the U.S. Supreme Court has ever analyzed the matter. But even if this were a punishment, it wouldn’t be cruel and unusual. That is a very high bar, which even the electric chair does not meet.  If the electric chair isn’t a cruel and unusual punishment, neither is the denial of a right to appeal a judge’s exercise of discretion when review can be sought through mandamus or a writ of certiorari to the U.S. Supreme Court.

This leaves two possible ways to resolve this case. The first is simply to hold there is no constitutional right to an appeal, period. But if the Court doesn’t want to go that far, another possibility would be to leave open the question of whether the Felony Appeal Law would permit the appeal of an unconstitutionally imposed sentence, or ones that have constitutional flaws, and hold that at least in cases where unconstitutionality is not the basis for the appeal, a defendant cannot challenge the choice of discretion between LWOP and parole after 20, 25, or 30 years.  

What Was On Their Minds

Constitutional Issue versus Statutory Resolution

Does the Court need to address the constitutional question here, asked Justice DeWine?  What about R.C. 2953.02? Doesn’t that give the defendant a right to appeal? If there is a constitutional problem here, shouldn’t the Court see if there is a statutory resolution before it gets to any constitutional issue? What does that language mean in R.C. 2953.08 that says, “in addition to any other right to appeal?” What does the language mean in R.C. 2953.02 that says there is a right to appeal a criminal sentence? Is there any conflict between the two? Why wouldn’t this Court say that R.C. 2953.08 deals with challenges based on the judge’s use of discretion within the statutory mandated range and under that section those kind of decisions aren’t appealable but this Court can still hear constitutional challenges?

Discretion in Sentencing

Isn’t counsel entitled to argue about the sentence, asked Justice Fischer?

Denial of An Appeal for Murder and Aggravated Murder

Are all the other felony sentence appeals on the table, asked Chief Justice O’Connor?

Was this simply sheer legislative oversight, asked Justice Stewart? What would be the legislative motivation for having unfettered discretion in the trial courts in this instance not to be reviewed by an appellate court? What public policy is served by that? She commented that the high court hears appeals all the time where people have taken other people’s lives and are sentenced to consecutive sentences, or consecutive sentences that amount to life sentences without the taking of life.  What’s the difference, she asked?

Constitutional Arguments

Was an argument based on Article I Section 1 of the Ohio Constitution raised below, asked Justice Fischer, commenting that the appellate court didn’t seem to think so.

What about the constitutional question that comes from a life sentence, asked Justice DeWine?  What if there is an equal protection issue, what if there was discrimination based on race? Is there no jurisdiction to hear that case in the appeals court or this court except on mandamus? Does this Court have jurisdiction to decide these issues if the appeals court doesn’t? What about the provision in the Ohio Constitution that talks about this Court’s jurisdiction over constitutional cases arising under the state or federal constitution? Prior to the enactment of R.C. 2305.08 could someone challenge a sentence on constitutional grounds?

Was there an equal protection challenge raised, asked Justice French?

Sentencing Hearing in this Case

What was the range of sentences available to the trial court in this case, asked Justice Donnelly? Didn’t the various choices give the trial court a great deal of discretion? What did the state advocate for in the sentencing hearing? Is there any other law on the books where a discretionary decision like this wouldn’t be reviewable? Just to make sure there wasn’t an abuse of discretion by the trial court judge in making that decision? What are the facts in the record that support the most severe penalty short of the death penalty in this case? Based on this factual scenario, why was Mr. Kinney considered the worst of the worst?

Are there those who would say Mr. Kinney should have gotten the death penalty, asked Justice Stewart? If the death penalty had been sought and had Mr. Kinney been convicted and sentenced to death, he would have an appeal, correct? With the exact same set of facts, what makes this scenario different other than how the prosecutor chooses to prosecute?

Other Available Remedies

How would a trial court’s biases that never come out on the record be proven in a mandamus action, asked Justice Stewart?

How it Looks from the Bleachers

To Professor Emerita Marianna Bettman

Like a win for Kinney, although I’m not certain on what basis because this argument got very confusing on that point at times. I don’t know that the Court wants to decide whether an appeal is allowed for aggravated murder under the General Appeal law, R.C 2953.02, but I think will all agree that, consistent with Porterfield, there is no appeal allowed under R.C. 2953.08 (D). But as the amicus brief (which I found very helpful) pointed out, when Porterfield was decided, Porterfield had been sentenced when the only option for non-capital aggravated murder was twenty-years-to-life.

Justices Stewart and Donnelly clearly think it is wrong to deny appellate review to those sentenced to life without parole, both commenting on the amount of discretion a trial judge has here. I think the Chief seemed to lean that way, although I am not sure there is common ground for the basis on which they all think this. Justice French sounded like she sees an equal protection problem, but I’m not sure Mr. Gagin satisfactorily explained how that fit into his 8^th Amendment challenge, or whether he adequately raised an equal protection argument below. But the Court still has the discretion to consider it, and that could swing Justice French’s vote.  But I also thought none of the justices accepted the Solicitor General’s alternative remedies such as mandamus or seeking a writ of certiorari to the U.S. Supreme Court, which both seem like very unconvincing alternatives to an appeal of right.

I think Justice DeWine suggested his position in his questioning, namely to find there can be no appeal under R.C. 2953.08 to a judge’s discretionary choice of sentence within the statutorily mandated sentencing range, but that the Court can still hear constitutional challenges. That is not to say he agrees with Kinney’s constitutional arguments, because I don’t think he does. Justice Fischer also seemed skeptical.

If the Court does accept Kinney’s proposition of law, it could also accept his severance remedy.  This case reminds me of what happened in State v. Noling, 2016-Ohio-8252, which you can read about here.

To Student Contributor Madeline Pinto 

I think the Court will rule in Kinney’s favor. Several members of the bench appeared to disagree with the State’s assertion that sentences for aggravated murder are not subject to review because there is no situation in which the imposition of a sentence of life will ever be arbitrary or unjustified. Justices Stewart and Donnelly both noted that a trial court has a great deal of discretion when imposing a sentence for aggravated murder and expressed concern that such a discretionary decision is not subject to review. Additionally, Justice Stewart seemed to question whether providing trial courts with “untethered discretion” to sentence aggravated murderers served any legitimate public policy purpose.

In contrast, Justices DeWine and Fischer were more critical of Kinney’s arguments. Justice DeWine seemed reticent to reach the constitutional issues raised by Kinney, suggesting that the Court must first address whether R.C. 2953.02 gives aggravated murderers the right to appeal their sentences. Justice Fischer questioned Kinney’s argument that R.C. 2953.08(D)(3) violates felons’ rights under Article I, Section I of the Ohio Constitution, arguing felons have a right to defend their inalienable rights of life and liberty at trial.

Despite these criticisms, I think the Court will most likely rule in Kinney’s favor. The problems created by insulating a trial court’s highly discretionary sentencing decision from appellate review seemed to be at the forefront of the justices’ minds. The State’s arguments did little to assuage these concerns.