[Cite as State v. Griffin, 138 Ohio St.3d 108, 2013-Ohio-5481.]




             THE STATE OF OHIO, APPELLANT, v. GRIFFIN, APPELLEE.
          [Cite as State v. Griffin, 138 Ohio St.3d 108, 2013-Ohio-5481.]
Criminal procedure—Final orders—Defective judgment entry—Resentencing
        entry—Waiver of three-judge panel—R.C. 2945.06—Res judicata.
 (No. 2011-0818—Submitted January 22, 2013—Decided December 19, 2013.)
    APPEAL from the Court of Appeals for Coshocton County, No. 09-CA-21,
                                     2011-Ohio-1638.
                                 ____________________
        KENNEDY, J.
        {¶ 1} At issue in this case is whether the sentence that Sandra Griffin,
appellee, has served for the past 24 years is based on a final, appealable order that
gave the Fifth District Court of Appeals subject-matter jurisdiction over her direct
appeal in 1990. The state of Ohio argues that res judicata bars a defendant from
using a resentencing entry issued pursuant to State v. Baker, 119 Ohio St.3d 197,
2008-Ohio-3330, 893 N.E.2d 163, to relitigate a matter that was raised or could
have been raised on direct appeal. The state further argues that in capital cases, a
final, appealable order consists of a guilt-phase entry and a sentencing opinion
pursuant to State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9.
        {¶ 2} We recognize that this court granted the state’s appeal to review the
application of Ketterer to the final, appealable order in this case. Upon further
review, we have determined that the issues presented on this appeal should be
decided on different grounds. However, we are not bound by any inferences that
may have been drawn from our previous decision to review this appeal on the
basis of Ketterer. See State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873
N.E.2d 306, ¶ 9-12.
                                  SUPREME COURT OF OHIO




         {¶ 3} Res judicata bars relitigation of a matter that was raised or could
have been raised on direct appeal when a final, appealable order was issued in
accordance with the law at the time. Because the sentencing entry issued in 1990
was a final, appealable order, the 2009 resentencing entry issued pursuant to
Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, was a nullity. We
do not reach the state’s second proposition of law regarding Ketterer.
         {¶ 4} The cause is now before this court following our acceptance of the
state’s discretionary appeal. The state of Ohio presents two propositions of law:


                   I. Res Judicata precludes a litigant from using a
         resentencing entry issued pursuant to State v. Baker, 119 Ohio
         St.3d 197, 2008-Ohio-3330 [893 N.E.2d 163], to relitigate an issue
         when that defendant has already litigated the same issue on direct
         appeal.
                   II. 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).


         {¶ 5} We reverse the judgment of the court of appeals and remand the
cause to the court of appeals with instructions to dismiss Griffin’s appeal.
                                  CASE BACKGROUND
         {¶ 6} On January 4, 1989, James Steurer Sr. was murdered in Coshocton
County, Ohio. The next month, Griffin was indicted for complicity to commit
aggravated murder with an accompanying felony-murder death-penalty
specification under R.C. 2929.04(A)(7) and a firearm specification.1


1. Griffin was also indicted, convicted, and sentenced on noncapital charges not relevant here.




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                               January Term, 2013




       {¶ 7} Griffin waived her right to be tried by a jury and by a three-judge
panel. In exchange, the state agreed not to pursue the death penalty, but it did not
dismiss the death-penalty specification.
       {¶ 8} In a trial before a single judge, Griffin was found guilty of
aggravated murder and was sentenced to life imprisonment with parole eligibility
in 30 years. The trial court filed two separate judgment entries. On December 21,
1989, the trial court filed a judgment entry announcing the guilt-phase findings.
On January 25, 1990, a sentencing hearing was conducted. In mitigation, the
defense called Dr. James Reardon, a licensed psychologist, and three other
witnesses.   Dr. Reardon provided comprehensive testimony about Griffin’s
chaotic family and marital history, mental disorders, and substance abuse.
Directly thereafter, Griffin presented a short mitigation statement. After counsel’s
summation, the trial court permitted the presentation of victim-impact statements
and allowed Griffin to allocute pursuant to Crim.R. 32. The trial court issued a
sentencing entry without including the findings made on the record. A sentencing
opinion pursuant to R.C. 2929.03(F) was never filed.
       {¶ 9} On February 1, 1990, Griffin filed a notice of appeal that included
the following assignment of error: “The trial court erred in the sentencing of the
appellant by not following the mandates of R.C. 2929.03 and 2929.04, as well as
allowing victim impact evidence in violation of Evid.R. 404, the Fifth, Eighth,
and Fourteenth Amendments to the United States Constitution and Article I, §§
Nine, Ten, and Sixteen of the Ohio Constitution.” State v. Griffin, 73 Ohio
App.3d 546, 550-551, 597 N.E.2d 1178 (5th Dist.1992). Then, as now, R.C.
2929.03 and 2929.04 applied when “death may be imposed as a penalty for
aggravated murder.” Former R.C. 2929.03(D)(1), Am.Sub.S.B. No. 1, 139 Ohio
Laws, Part I, 10. See also former R.C. 2929.03(F), id. at 13-14.
       {¶ 10} On February 12, 1992, the court of appeals affirmed Griffin’s
convictions and sentences. In overruling this assignment of error, the court held:



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               First, although this is a “capital offense,” it is no longer a
       case within the ambit of the sentencing provisions of R.C. 2929.03
       et seq. By pretrial agreement the appellant waived her right to jury
       trial in return for the agreement of the state not to request the death
       penalty. The case was tried to a single judge, sitting without a
       jury. At minimum the death penalty option was extinguished the
       moment appellant was placed in jeopardy in the trial.


Id. at 553. The court added, “The only way a defendant may be held to the death
penalty is if he or she is tried to a jury or a three-judge panel. R.C. 2945.06
[three-judge court required if jury is waived and defendant is charged with offense
‘punishable with death’].” Id. at fn. 1. In other words, the court held that the
capital sentencing procedures of R.C. 2929.03 and 2929.04 were not required,
because the death penalty was not an option.
       {¶ 11} We declined to accept Griffin’s direct appeal. 64 Ohio St.3d 1428,
594 N.E.2d 970 (1992).
                           COLLATERAL ATTACKS
       {¶ 12} For more than 15 years, Griffin has collaterally attacked her
conviction and sentence, without success. On April 22, 1997, Griffin filed her
first federal habeas corpus petition, claiming that her waiver of a trial by jury or a
three-judge panel, as allowed under Ohio law, was neither knowing nor intelligent
and that the trial court’s failure to follow “mandatory statutory requirements of a
proceeding” violated her due-process and equal-protection rights. The district
court held that these arguments were procedurally defaulted because they had not
been raised in state court. Griffin v. Rogers, S.D.Ohio No. 2:97-cv-00444 (Sept.
30, 1998).




                                          4
                                     January Term, 2013




        {¶ 13} Griffin then filed a delayed application to reopen her appeal
pursuant to App.R. 26(B).           Griffin’s application was denied, and this court
declined to accept her appeal. State v. Griffin, 86 Ohio St.3d 1489, 716 N.E.2d
721 (1999).
        {¶ 14} On October 15, 1999, Griffin filed her second petition for a federal
writ of habeas corpus, claiming that her agreement to waive a three-judge panel
and a jury was void. This petition was dismissed as barred by the one-year statute
of limitations, 28 U.S.C. 2244(d)(1).
        {¶ 15} On October 18, 2002, the United States Court of Appeals for the
Sixth Circuit vacated the dismissal and remanded the case for consideration of
whether Griffin was entitled to equitable tolling of the statute of limitations.
Griffin v. Rogers, 308 F.3d 647 (6th Cir.2002). The district court held on remand
that Griffin was not entitled to equitable tolling and again dismissed the habeas
petition as time-barred. On March 3, 2005, the Sixth Circuit reversed, holding
that the statute of limitations was equitably tolled, and remanded the case to the
district court for further proceedings.             Griffin v. Rogers, 399 F.3d 626 (6th
Cir.2005).
        {¶ 16} On August 22, 2006, the district court issued a final judgment
dismissing Griffin’s habeas petition. Griffin v. Andrews, S.D.Ohio No. 2:99-cv-
1127, 2006 WL 2422590 (Aug. 22, 2006). On October 23, 2006, the district court
denied Griffin’s request for a certificate of appealability. Griffin v. Andrews,
S.D.Ohio No. 2:99-cv-1127, 2006 WL 3041072 (Oct. 23, 2006).
        {¶ 17} On August 4, 2009, Griffin filed a motion in the trial court for a
final, appealable order pursuant to Baker, 119 Ohio St.3d 197, 2008-Ohio-3330,
893 N.E.2d 163, which construed Crim.R. 32(C) to require the judgment of
conviction to be a “single document.”2 Id. at ¶ 1. Griffin argued that a final,

2. At the time of Griffin’s conviction and sentence, the relevant language was set forth in former
Crim.R. 32(B): “A judgment of conviction shall set forth the plea, the verdict or findings and




                                                5
                               SUPREME COURT OF OHIO




appealable order never issued because the trial court failed to include the court’s
guilt-phase findings in the original judgment entry of sentence, and therefore,
Baker’s one-document rule was violated.            The state agreed and submitted a
proposed one-document judgment entry.
        {¶ 18} On August 27, 2009, the trial court filed a new, one-document
judgment entry and again sentenced Griffin to life imprisonment with parole
eligibility after 30 years plus the 3 years for the firearm specification.
        {¶ 19} Griffin appealed her convictions and sentences anew on the basis
that in 1990, the appellate court had lacked subject-matter jurisdiction over her
case. The court of appeals agreed, holding that Griffin’s original sentence was
not a final, appealable order and that the court had lacked jurisdiction to hear her
original appeal. State v. Griffin, 5th Dist. Coshocton No. 09CA21, 2010-Ohio-
3517, ¶ 25. The court reversed her convictions and remanded for a new trial,
because since her trial, we had decided State v. Parker, 95 Ohio St.3d 524, 2002-
Ohio-2833, 769 N.E.2d 846, which held that capital sentencing provisions—
including the requirement of a three-judge panel—apply unless the capital
specification is dismissed. Thus, based on case law not decided at the time of the
trial, the court of appeals decided that the failure to convene a three-judge panel
was reversible error.
        {¶ 20} On December 9, 2010, we accepted the state’s appeal, vacated the
judgment of the court of appeals, and remanded the case to that court for
application of Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9.
State v. Griffin, 127 Ohio St.3d 266, 2010-Ohio-5948, 938 N.E.2d 1036. In
Ketterer, we held, “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



sentence. * * * The judgment shall be signed by the judge and entered by the clerk.” 34 Ohio
St.2d lxxi (1973).




                                             6
                                 January Term, 2013




sentencing opinion filed pursuant to R.C. 2929.03(F) and the judgment of
conviction filed pursuant to Crim.R. 32(C).” Id. at syllabus.
       {¶ 21} On remand, the court of appeals held that Ketterer’s syllabus did
not apply to Griffin because it had already held that Griffin’s case was not one “in
which R.C. 2929.03(F) requires the court or panel to file a sentencing opinion,”
Ketterer at syllabus. State v. Griffin, 5th Dist. Coshocton No. 09-CA-21, 2011-
Ohio-1638, 2011 WL 1233242, ¶ 20-21. Therefore, the court reasoned, Baker’s
one-document rule applied to Griffin. Id. It concluded: “Our original reversal
and remand are unaffected by Ketterer, and are hereby reimposed.” Id. at ¶ 32.
We accepted the state’s discretionary appeal.
                                 LEGAL ANALYSIS
                           I. Final, Appealable Order
       {¶ 22} The pivotal question before the court is whether 24 years ago the
trial court issued a final, appealable order in Griffin’s case. Ohio’s statutory
framework and case law at the time of Griffin’s conviction and sentence did not
require death-penalty procedural protections, because Griffin could not be
sentenced to death. The trial court afforded Griffin all of the proper procedural
protections guaranteed by law in 1990, and its sentencing entry was the final
judgment in the case. Therefore, we hold that the sentencing entry issued in 1990
was a final, appealable order.
     A. THE HISTORICAL PERSPECTIVE OF THE DEATH PENALTY IN OHIO
       {¶ 23} Ohio has imposed the death penalty since before it became a state.
A law promulgated by the territorial governor and two judges of the territory
under the Northwest Ordinance of 1787 read: “If any person or persons with
malice aforethought, kill or slay another person, he, she, or they so offending,
shall be deemed guilty of murder, and upon conviction thereof shall suffer the
pains of death.” (Promulgated Sept. 6, 1788.) Salmon P. Chase, 1 Statutes of
Ohio 98 (1833). In 1831, an Ohio statute read: “Be it enacted by the General



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Assembly of the State of Ohio, That if any person shall purposely, of deliberate
and premeditated malice, or in the perpetration or attempt to perpetrate any rape,
arson, robbery or burglary, kill another; every such person shall be deemed guilty
of murder in the first degree, and upon conviction thereof, shall suffer death.” 29
Ohio Laws 136.
       {¶ 24} The Ohio Constitution addressed capital cases in 1851: “All
persons shall be bailable by sufficient sureties, except for capital offenses where
the proof is evident, or the presumption great,” and “[N]o person shall be held to
answer for a capital, or otherwise infamous, crime, unless on presentment or
indictment of a grand jury.” Ohio Constitution, Article I, former Section 9 and
Section 10. “Capital offenses” was not defined. “Capital case or crime” has been
traditionally defined as “[o]ne in or for which [the] death penalty may, but need
not necessarily, be imposed.” Black’s Law Dictionary 209 (6th Ed.1990).
       {¶ 25} From 1880 through 1898, the first-degree-murder statute changed
only slightly: “Whoever purposely, and either of deliberate and premeditated
malice, or by means of poison, or in perpetrating, or attempting to perpetrate, any
rape, arson, robbery, or burglary, kills another, is guilty of murder in the first
degree, and shall suffer death.” R.S. 6808, 33 Ohio Laws 33.
       {¶ 26} Not until 1898 did the Ohio legislature authorize a sentence for
first-degree murder that was not death:


       Whoever purposely, and either of deliberate and premeditated
       malice, or by means of poison, or in perpetrating, or attempting to
       perpetrate, any rape, arson, robbery, or burglary, kills another, is
       guilty of murder in the first degree, and shall be punished by death,
       unless the jury trying the accused recommend mercy, in which
       case the punishment shall be imprisonment in the penitentiary
       during life.




                                          8
                               January Term, 2013




R.S. 6808, 93 Ohio Laws 223.
       {¶ 27} Then in 1933, the legislature required a three-judge panel to
determine the guilt and sentencing of an accused “charged with an offense
punishable with death” if the accused waived a jury. G.C. 13442-5, 115 Ohio
Laws, Part I, 530, 531. Like the jury, the panel was authorized to “extend mercy
and reduce the punishment for such offense to life imprisonment.”
       {¶ 28} In the original promulgation of the Revised Code in 1953, former
R.C. 2901.01 specifically stated: “Murder in the first degree is a capital crime
under Sections 9 and 10 of Article I, Ohio Constitution.” Otherwise, the first-
degree-murder statute was almost identical to the 1910 version: First-degree
murder was killing another “purposely, and either of deliberate and premeditated
malice, or by means of poison, or in perpetrating or attempting to perpetrate rape,
arson, robbery or burglary.” The punishment remained “death unless the jury
trying the accused recommends mercy, in which case the punishment shall be
imprisonment for life.”
       {¶ 29} In 1965, the state legislature began anew a review of the
procedures for the imposition of the death sentence and determined that
compliance with the procedural rules must be strict. See Henry J. Lehman & Alan
E. Norris, Some Legislative History and Comments on Ohio’s New Criminal
Code, 23 Cleve.St.L.Rev. 8 (1974). Then, beginning in 1968 with an amendment
to the Ohio Constitution, this state recognized that defendants subject to death
deserved special procedural protections when the Ohio Constitution for the first
time gave those whose sentence of death had been affirmed on appeal the right to
a second appeal, to the Supreme Court of Ohio. Ohio Constitution, Article IV,
former Section 2(B)(2)(a)(ii).     The General Assembly in 1972 passed a
modernized act addressing the death penalty, Am.Sub.H.B. No. 511, 134 Ohio
Laws, Part II, 1866, 1978-1981, which identified aggravating factors and



                                        9
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mitigating circumstances to consider before imposing a death sentence. Former
R.C. 2929.02 through 2929.04.
        {¶ 30} That act had not yet been enacted when a plurality of the justices of
the United States Supreme Court stated that because the death penalty was being
imposed throughout the country without any objective standards, it violated the
Eighth Amendment to the United States Constitution as cruel and unusual
punishment. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346
(1972). Though the 1972 law attempted to avoid the arbitrary application of the
death penalty that had been decried in Furman, the law did not survive scrutiny
by the United States Supreme Court. In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct.
2954, 57 L.Ed.2d 973 (1978), a plurality opinion stated that Ohio’s death-penalty
statute did not provide individualized consideration of mitigating factors such as
the defendant’s prior record, character, and age, as the Eighth and Fourteenth
Amendments to the United States Constitution require. Id. at 597-598, 606.
        {¶ 31} From death being the sole authorized punishment for first-degree
murder in 1788 to its being the preferred punishment tempered only by the
possibility that the jury might show mercy until Furman in 1972, the death
penalty and its limited procedural requirements were accepted as part of Ohio
law. Modern society, however, was coming to believe that imposition of a death
sentence required unique procedures and scrutiny.
        {¶ 32} Simultaneously, the judiciary was reassessing the constitutional
significance of imposing the death penalty. “The penalty of death differs from all
other forms of criminal punishment, not in degree but in kind. It is unique in its
total irrevocability. It is unique in its rejection of rehabilitation of the convict as a
basic purpose of criminal justice.       And it is unique, finally, in its absolute
renunciation of all that is embodied in our concept of humanity.” Furman, 408
U.S. at 306, 92 S.Ct. 2726, 33 L.Ed.2d 346 (Stewart, J., concurring). Four years
later, a plurality opinion added:




                                           10
                                January Term, 2013




       [T]he penalty of death is qualitatively different from a sentence of
       imprisonment, however long. Death, in its finality, differs more
       from life imprisonment than a 100-year prison term differs from
       one of only a year or two. Because of that qualitative difference,
       there is a corresponding difference in the need for reliability in the
       determination that death is the appropriate punishment in a specific
       case.


Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944
(1976) (opinion of Stewart, Powell, and Stevens, JJ.). The corollary conclusion is
that when the death penalty is not an option, extraordinary procedural safeguards
are not constitutionally necessary.
       {¶ 33} During this time, no one doubted that a defendant had a final,
appealable order upon sentencing. In 1976, we held, “Generally, the sentence in a
criminal case is the judgment. Miller v. Aderhold (1933), 288 U.S. 206 [53 S.Ct.
325, 77 L.Ed. 702]; Berman v. United States (1937), 302 U.S. 211 [58 S.Ct. 164,
82 L.Ed. 204]; State v. Chamberlain (1964), 177 Ohio St. 104, 202 N.E.2d 695;
Columbus v. Stires (1967), 9 Ohio App.2d 315, 224 N.E.2d 369.” State v. Hunt,
47 Ohio St.2d 170, 174, 351 N.E.2d 106 (1976).
       {¶ 34} In 1972, the legislature rewrote the criminal code and attempted to
mesh the state law on the death penalty with the new requirements set by the
United States Supreme Court. H.B. 511, 134 Ohio Laws, Part II, 1866. By its
new language, the legislature distinguished a subset of capital cases in which the
death penalty may be imposed, or those “punishable with death.” Id. at 1892,
R.C. 2901.02(B). The courts at first applied capital statutes to all capital offenses
even if the death penalty could not be imposed. For example, after the United
States Supreme Court had overturned Ohio’s death-penalty statutes, Norman



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Henry and a codefendant were indicted for an aggravated murder committed in
1980. Then, as now, R.C. 2945.20 required separate trials for defendants jointly
indicted for a capital offense, and the murder statute stated, “Aggravated murder,
and any offense for which death may be imposed as a penalty, is a capital
offense.” Former R.C. 2901.02(B), 134 Ohio Laws, Part II, 1866, 1892 (Jan. 1,
1974). The trial court had tried Henry and his codefendant jointly, reasoning that
the law did not require capital procedures if the death penalty was not allowed.
This court disagreed: “Pursuant to R.C. 2901.02(B), aggravated murder is a
capital offense regardless of whether death may be imposed as a result of the
conviction thereof.” State v. Henry, 4 Ohio St.3d 44, 446 N.E.2d 436 (1983),
paragraph one of the syllabus.
        {¶ 35} The legislature reacted to our holding in Henry by amending R.C.
2901.02(B) to delete aggravated murder without death specifications from being
classified as a capital offense. 1984 Am.H.B. No. 380, 140 Ohio Laws, Part II,
3639. This court interpreted the change in dicta as follows:


                 Subsequent to our decision in Henry and during the
        pendency of this appeal, R.C. 2901.02(B) was amended effective
        April 4, 1984 so that only an offense for which death may be
        imposed as a penalty is a capital offense. As a result, special
        protections are afforded to those facing the possibility of the death
        penalty, but now the criminal justice system is relieved of the
        burden and expense of such venire where those charged do not
        face the possibility of the death penalty.


State ex rel. Corrigan v. McMonagle, 12 Ohio St.3d 15, 16, 465 N.E.2d 382
(1984), fn. 1.




                                          12
                                January Term, 2013




       {¶ 36} After Corrigan, courts of appeals began to consider whether
specialized death-penalty procedures applied when a capital offense was charged,
but death could not be imposed. For example, R.C. 2945.06 was viewed to
distinguish between capital cases in which the death penalty was an option and
those in which it was not. It states:


               In any case in which a defendant waives his right to trial by
       jury and elects to be tried by the court under section 2945.05 of the
       Revised Code, any judge of the court in which the cause is pending
       shall proceed to hear, try, and determine the cause in accordance
       with the rules and in like manner as if the cause were being tried
       before a jury. If the accused is charged with an offense punishable
       with death, he shall be tried by a court to be composed of three
       judges * * *.


(Emphasis added.)
       {¶ 37} Trial courts and courts of appeals interpreted Corrigan to require
capital procedures only when death could be imposed:


               As the Supreme Court recognized in State v. Henry, supra,
       an offense may be classified as a capital offense even though the
       death penalty may not be imposed. The General Assembly has
       used both the term capital offense and an offense punishable with
       death and we must assume that the General Assembly intended that
       there be a distinction between the two terms. The statute, which is
       a different statute than the Supreme Court considered in Henry, is
       clear and unambiguous. It stated that a person who violated the
       section shall be punished by death. The question in Henry was



                                        13
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         whether, under R.C. 2901.02(B), a crime which was designated as
         a capital offense and punishable by death was still a capital offense
         after the Ohio death penalty was invalidated by the United States
         Supreme Court. That is not the question in this case. It appears
         obvious that the General Assembly intended that a three-judge
         panel should be provided to a defendant accused of an offense for
         which his life may be taken. Since the death penalty was not in
         effect in Ohio at the time defendant allegedly committed the crime,
         the General Assembly’s purpose in providing a three-judge panel
         where a person’s life is at stake would not have been served by
         providing him a three-judge panel.


State v. Hubert, 10th Dist. Franklin No. 82AP-942, 1984 WL 5871 (Aug. 16,
1984).
         {¶ 38} This court observed that capital cases and those in which the death
penalty could be imposed were not the same thing. “[C]apital offenses may
continue independent of the death penalty.” State ex rel. Johnson v. Shoemaker, 6
Ohio St.3d 215, 216, 451 N.E.2d 1231 (1983). In other words, the possibility of
the death penalty controls whether capital sentencing procedural protections are
required, not whether the case is labeled a capital case.
         {¶ 39} Juvenile cases presented the same legal issues. Though not yet
required to do so by the United States Supreme Court, the 1981 Ohio death-
penalty law excluded those under 18 at the time of the offense from being subject
to the death penalty. R.C. 2929.03(E), 139 Ohio Laws Part I, 13. Courts relied
on Corrigan to deny juveniles who were charged with a capital offense death-
penalty procedural protections because death could not be imposed. State ex rel.
Fyffe v. Evans, 5th Dist. Coshocton No. 90–CA–4, 1990 WL 52518 (Apr. 11,
1990) (pursuant to Corrigan, an indigent juvenile offender being tried as an adult




                                          14
                                January Term, 2013




for a capital offense was properly denied the appointment of two lawyers because
the death penalty could not be imposed), aff’d on other grounds, 62 Ohio St.3d
62, 577 N.E.2d 1094 (1991); and State v. Cohen, 11th Dist. Lake No. 12–011,
1988 WL 41545, *12 (Apr. 29, 1988) (by the language of R.C. 2945.06 [three-
judge-panel requirement], juvenile was properly denied trial before three judges
because “the death penalty could not be imposed against him as a matter of law”).
            B. 1990 SENTENCING PROCEDURES FOR CAPITAL OFFENSES
                         WHEN DEATH CANNOT BE IMPOSED
       {¶ 40} Statutes and case law closed the questions of whether adult and
juvenile offenders were required to be tried before a three-judge panel and
whether the appointment of two lawyers was required when a capital offense was
charged but the death penalty could not be imposed. The question that remained
open was whether the sentencing procedural protections afforded in former R.C.
2929.03(D) and (F) were required when a capital offense was charged but the
offender could not be put to death. Griffin, 73 Ohio App.3d 546, 597 N.E.2d
1178, settled that question of law.
       {¶ 41} Griffin waived her right to be tried by a three-judge panel or by a
jury in exchange for the state’s agreement not to pursue a death sentence. Griffin
was consequently tried before a single judge, and a guilt-phase entry was issued.
During the sentencing phase, Griffin was permitted to offer mitigation evidence
and to allocute. Griffin was therefore afforded all required due process. The trial
court then entered findings on the record and issued a sentencing entry that was a
final, appealable order in accordance with Hunt, 47 Ohio St.2d at 174, 351 N.E.2d
106, which stated, “Generally, the sentence in a criminal case is the judgment.”
Griffin, the prosecution, and the courts all recognized the sentencing entry as final
and appealable.
       {¶ 42} The Fifth District Court of Appeals applied the reasoning in the
three-judge-panel and capital juvenile cases in considering Griffin’s sentencing



                                         15
                            SUPREME COURT OF OHIO




challenge.    Former R.C. 2929.03(D) and (F) addressed the sentencing
requirements that applied “when death may be imposed,” and the appellate court
decided that they did not apply to Griffin because “the death penalty option was
extinguished the moment appellant was placed in jeopardy in the trial.” Griffin,
73 Ohio App.3d at 553, 597 N.E.2d 1178. The statutory provisions in effect at the
time of the offenses provided:


               (D)(1) * * * When death may be imposed as a penalty for
       aggravated murder, the court shall proceed under this division.
       * * * The court, and the trial jury if the offender was tried by a
       jury, shall consider any report [presentence investigation] prepared
       pursuant to this division and furnished to it and any evidence
       raised at trial that is relevant to the aggravating circumstances the
       offender was found guilty of committing or to any factors in
       mitigation of the imposition of the sentence of death, shall hear
       testimony and other evidence that is relevant to the nature and
       circumstances of the aggravating circumstances the offender was
       found guilty of committing, the mitigating factors set forth in
       division (B) of section 2929.04 of the Revised Code, and any other
       factors in mitigation of the imposition of the sentence of death, and
       shall hear the statement, if any, of the offender, and the arguments,
       if any, of counsel for the defense and prosecution, that are relevant
       to the penalty that should be imposed on the offender. * * *
               ***
               (3) Upon consideration of the relevant evidence raised at
       trial, the testimony, other evidence, statement of the offender,
       arguments of counsel, and, if applicable, the reports submitted to
       the court pursuant to division (D)(1) of this section [requiring




                                        16
                        January Term, 2013




compliance if “death may be imposed”], if, after receiving
pursuant to division (D)(2) of this section the trial jury’s
recommendation that the sentence of death be imposed, the court
finds, by proof beyond a reasonable doubt, or if the panel of three
judges unanimously finds, that the aggravating circumstances the
offender was found guilty of committing outweigh the mitigating
factors, it shall impose sentence of death on the offender. Absent
such a finding by the court or panel, the court or the panel shall
impose one of the following sentences on the offender:
       (a) Life imprisonment with parole eligibility after serving
twenty full years of imprisonment;
       (b) Life imprisonment with parole eligibility after serving
thirty full years of imprisonment.
       ***
       (F) The court or the panel of three judges, when it imposes
sentence of death, shall state in a separate opinion its specific
findings as to the existence of any of the mitigating factors set
forth in division (B) of section 2929.04 of the Revised Code, the
existence of any other mitigating factors, the aggravating
circumstances the offender was found guilty of committing, and
the reasons why the aggravating circumstances the offender was
found guilty of committing were sufficient to outweigh the
mitigating factors.   The court or panel, when it imposes life
imprisonment under division (D) of this section, shall state in a
separate opinion its specific findings of which of the mitigating
factors set forth in division (B) of section 2929.04 of the Revised
Code it found to exist, what other mitigating factors it found to
exist, what aggravating circumstances the offender was found



                                 17
                             SUPREME COURT OF OHIO




       guilty of committing, and why it could not find that these
       aggravating circumstances were sufficient to outweigh the
       mitigating factors.    The court or panel shall file the opinion
       required to be prepared by this division with the clerk of the
       appropriate court of appeals and with the clerk of the supreme
       court within fifteen days after the court or panel imposed sentence.
       The judgment in a case in which a sentencing hearing is held
       pursuant to this section is not final until the opinion is filed.


(Emphasis added.) Former R.C. 2929.03, 139 Ohio Laws, Part I, 10-14.
       {¶ 43} The Fifth District Court of Appeals ruled consistently with courts
that had interpreted language similar to that in former R.C. 2929.03 delineating
procedures “when death may be imposed.” It held:


       [A]lthough this is a “capital offense,” it is no longer a case within
       the ambit of the sentencing provisions of R.C. 2929.03 et seq. By
       pretrial agreement the appellant waived her right to jury trial in
       return for the agreement of the state not to request the death
       penalty. The case was tried to a single judge, sitting without a
       jury. At minimum the death penalty option was extinguished the
       moment appellant was placed in jeopardy in the trial.


Griffin, 73 Ohio App.3d at 553, 597 N.E.2d 1178.
       {¶ 44} Therefore, when Griffin appealed, Ohio law provided that special
procedural protections associated with a capital offense were required only when
the death penalty could be imposed.            The Fifth District Court of Appeals
reasonably followed the other courts in this state in holding that R.C. 2929.03(D)
and (F) also apply only when the death sentence is an option. Id. at 553. This




                                          18
                                  January Term, 2013




court then denied discretionary review. 64 Ohio St.3d 1428, 594 N.E.2d 970
(1992).
          {¶ 45} The Fifth District Court of Appeals was not alone in concluding
that death-penalty procedures applied only when death could be imposed, and this
court continued to deny review over defendants’ challenges. State v. Heddleson,
5th Dist. Stark No. 99-CA-00074, 1999 WL 770845 (Sept. 7, 1999), discretionary
appeal not accepted, 87 Ohio St.3d 1476, 721 N.E.2d 121 (1999); State v. Steele,
10th Dist. Franklin No. 00AP-499, 2001 WL 721806 (June 28, 2001),
discretionary appeal not accepted, 93 Ohio St.3d 1459, 756 N.E.2d 1235 (2001);
State v. Ahart, 7th Dist. Mahoning No. 93 C.A. 211, 2001 WL 1155786, *2 (Sept.
28, 2001), discretionary appeal not accepted, 94 Ohio St.3d 1452, 762 N.E.2d
370 (2002).
          {¶ 46} The court of appeals correctly assumed based on the law at the time
that the trial court’s sentencing entry was a final order. Therefore, the court of
appeals had subject-matter jurisdiction to review Griffin’s assignments of error.
That this law may have changed a decade or more later does not justify our
abandoning the law in place and the convictions based on it at the time of trial. In
2005, the Sixth Circuit Court of Appeals made the same point in rejecting a claim
of ineffective assistance of counsel made by convicted murderer Elmer Ahart:


                 State v. Griffin, 73 Ohio App.3d 546, 597 N.E.2d 1178,
          1183 (1992), established that when a defendant agreed to forgo his
          right to a jury trial in exchange for the prosecution’s agreement not
          to pursue the death penalty, the case could be heard by a single
          judge. Griffin was not overruled until the Ohio Supreme Court
          issued its decision in State v. Parker, 95 Ohio St.3d 524, 769
          N.E.2d 846 (2002). Thus, at the time Ahart would have appealed
          his sentence, the law did not require that his case be heard by a



                                           19
                             SUPREME COURT OF OHIO




       three-judge panel. The fact that the law may have changed in 2002
       does not mean that Ahart had a nonfrivolous ground for appeal in
       1993.


Ahart v. Bradshaw, 122 Fed.Appx. 188, 194 (6th Cir.2005).
       {¶ 47} We reaffirm that Griffin was afforded all procedural protections
required by law in 1990 and that a final judgment was entered. Therefore, the
order that she appealed from in 1990 was final and appealable. The finality of her
conviction and sentence is consistent with “society’s interest in enforcing the law,
and in meting out the punishment the legislature has deemed just.” State v.
Beasley, 14 Ohio St.3d 74, 75, 471 N.E.2d 774 (1984). Even if in 1992 the court
of appeals was wrong in assuming that a final, appealable order existed in 1990,
its holding was subject to res judicata principles and therefore could have been
challenged only in a direct appeal. Consequently, Griffin is precluded from
reopening her appeal by res judicata, “a rule of fundamental and substantial
justice.” State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884 N.E.2d
568, ¶ 25.
                   II. Res Judicata Bars Griffin’s Successive
                            and Collateral Challenges
       {¶ 48} Because the 1990 sentencing entry was a final, appealable order,
Griffin’s claims are barred by res judicata.


       Under the doctrine of res judicata, a final judgment of conviction
       bars the convicted defendant from raising and litigating in any
       proceeding, except an appeal from that judgment, any defense or
       any claimed lack of due process that was raised or could have been
       raised by the defendant at the trial which resulted in that judgment
       of conviction or on an appeal from that judgment.




                                         20
                                 January Term, 2013




State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967). Both Griffin and
defense counsel believed that the sentencing entry was a final, appealable order,
because Griffin filed her direct appeal on February 1, 1990.


          {¶ 49} On that direct appeal, Griffin’s assignments of error included the
claim that “[t]he trial court erred in the sentencing of the appellant by not
following the mandates of R.C. 2929.03 and 2929.04 * * *.” Griffin, 73 Ohio
App.3d at 550-551, 597 N.E.2d 1178. Griffin never challenged the lack of a
Crim.R. 32(B) entry or the lack of a three-judge panel, and therefore, these claims
are forever barred. We consequently adopt the first proposition of law: the
sentencing entry issued in 1990 was a final, appealable order, and the 2009
resentencing entry issued pursuant to Baker, 119 Ohio St.3d 197, 2008-Ohio-
3330, 893 N.E.2d 163, was a nullity. Res judicata precludes a litigant from using
a resentencing entry issued pursuant to Baker to litigate an issue when that
defendant has already litigated or could have litigated the issue on direct appeal.
          {¶ 50} Our holding regarding the state’s first proposition of law resolves
the current appeal, and we therefore do not address the state’s second proposition
of law.
                                   CONCLUSION
          {¶ 51} We therefore hold that Sandra Griffin had a final, appealable order
when the trial court issued the sentencing entry in 1990. We further hold that res
judicata precludes a litigant from using a resentencing entry issued pursuant to
Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, to litigate an issue
that defendant has already litigated or could have litigated on direct appeal.
          {¶ 52} Our holding today emphasizes the importance of final judgments:


          “ ‘[P]ublic policy dictates that there be an end of litigation; that
          those who have contested an issue shall be bound by the result of



                                          21
                             SUPREME COURT OF OHIO




       the contest, and that matters once tried shall be considered forever
       settled as between the parties.’ * * * We have stressed that ‘[the]
       doctrine of res judicata is not a mere matter of practice or
       procedure inherited from a more technical time than ours. It is a
       rule of fundamental and substantial justice, “of public policy and
       of private peace,” which should be cordially regarded and enforced
       by the courts.’ ”


State v. Szefcyk, 77 Ohio St.3d 93, 95, 671 N.E.2d 233 (1996), quoting Federated
Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 401, 101 S.Ct. 2424, 69 L.Ed.2d 103
(1981), quoting Baldwin v. Traveling Men’s Assn., 283 U.S. 522, 525, 51 S.Ct.
517, 75 L.Ed. 1244 (1931), and Hart Steel Co. v. RR. Supply Co., 244 U.S. 294,
299, 37 S.Ct. 506, 61 L.Ed. 1148 (1917).
       {¶ 53} We reverse the judgment of the court of appeals and remand the
cause to the court of appeals with instructions to dismiss Griffin’s appeal.
                                                                 Judgment reversed
                                                               and cause remanded.
       PFEIFER, O’DONNELL, and FRENCH, JJ., concur.
       O’CONNOR, C.J., and LANZINGER and O’NEILL, JJ., dissent.
                             ____________________
       LANZINGER, J., dissenting.
       {¶ 54} I respectfully dissent. The majority opinion correctly states that the
pivotal question before the court is whether the trial court issued a final,
appealable order in Griffin’s case.     Majority opinion, ¶ 22.      But instead of
deciding whether State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893
N.E.2d 163, applies, as the Fifth District Court of Appeals held, or whether State
v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, applies, as the
state argues, the majority refuses to apply either because the cases had not been




                                         22
                                    January Term, 2013




decided by 1990. I would hold that there was no final, appealable order upon
which an appeal could be taken pursuant to Ketterer because a sentencing opinion
has never been filed as required by R.C. 2929.03. I would vacate the judgment
entry of conviction for aggravated murder3 and remand this case to the trial court.
        {¶ 55} Sandra Griffin has served 24 years of a life sentence that permits
parole eligibility after 30 years. She was convicted of aiding and abetting two
others in the aggravated murder of James Steurer Sr. and was also convicted of
the capital specification under R.C. 2929.04(A)(7) and a firearm specification
under R.C. 2941.141. The state had agreed not to seek the death penalty against
Griffin but never dismissed the felony-murder specification within her indictment.
Therefore, she has always been charged with the capital offense of aggravated
murder. Yet the capital-case statutes were not followed, and the appellate court
erred in exercising jurisdiction.
                                I. “Capital Case” Defined
        {¶ 56} Since April 3, 1984, R.C. 2901.02(B) has plainly defined a capital
case in terms of the charged offense:


                 Aggravated murder when the indictment or the count in the
        indictment charging aggravated murder contains one or more
        specifications of aggravating circumstances listed in division (A)
        of section 2929.04 of [the] Revised Code, and any other offense
        for which death may be imposed as a penalty, is a capital offense.




3. Griffin’s noncapital convictions for aiding and abetting unlawful possession of dangerous
ordnance, aiding and abetting grand theft, aiding and abetting aggravated robbery, and a firearm
specification are unaffected and therefore are irrelevant to this discussion.




                                              23
                                 SUPREME COURT OF OHIO




Am.H.B. No. 380, 140 Ohio Laws, Part II, 3639. In addressing an earlier version
of this statute,4 this court stated, “Pursuant to R.C. 2901.02(B), aggravated murder
is a capital offense regardless of whether death may be imposed as a result of the
conviction thereof.” State v. Henry, 4 Ohio St.3d 44, 446 N.E.2d 436 (1983),
paragraph one of the syllabus. We have continued to hold that it does not matter
if the death penalty will not be imposed. State v. Harwell, 102 Ohio St.3d 128,
2004-Ohio-2149, 807 N.E.2d 330 (juvenile charged with aggravated murder and a
capital specification, although ineligible for a death sentence due to age, is still
entitled to protections of capital procedure); State v. Clinkscale, 122 Ohio St.3d
351, 2009-Ohio-2746, 911 N.E.2d 862, ¶ 11 (the case remains a capital case even
though the defendant could not receive a death sentence in a second trial). An
indictment must be amended to remove the death-penalty specification, so that the
defendant is no longer “charged” with an offense punishable by death, for a case
to become noncapital. State ex rel. Henry v. McMonagle, 87 Ohio St.3d 543, 544-
545, 721 N.E.2d 1051 (2000).
        {¶ 57} Griffin’s indictment charged her with a capital offense—
aggravated murder in violation of R.C. 2903.01(A) and the felony-murder
specification under R.C. 2929.04(A)(7). When she waived a jury trial, the state
did not amend the indictment to dismiss the specification. Therefore, Griffin’s
case remained a capital case.
        {¶ 58} We have already squarely addressed this issue:


                 A defendant charged with a crime punishable by death who
        has waived his right to trial by jury must, pursuant to R.C. 2945.06
        and Crim.R. 11(C)(3), have his case heard and decided by a three-
        judge panel even if the state agrees that it will not seek the death
        penalty.

4. H.B. No. 511, 134 Ohio Laws, Part II, 1892.




                                                 24
                                      January Term, 2013




State v. Parker, 95 Ohio St.3d 524, 2002-Ohio-2833, 769 N.E.2d 846, syllabus.5
Parker waived his right to a trial by jury, waived his right to a three-judge panel,
and pled guilty to aggravated murder with a death specification.                           He was
sentenced by a single judge to life imprisonment with parole eligibility after 20
years. The court of appeals vacated the guilty plea and conviction and remanded
the case for further proceedings. We affirmed, holding that regardless of the
state’s agreement not to seek the death penalty, Parker “was still charged with an
offense that was punishable with death.” (Emphasis sic.) Id. at ¶ 11.6
                                    II. Capital Procedures
         {¶ 59} When a defendant is convicted of both an aggravated-murder
charge and a specification, the potential penalties include death as well as a term
of life imprisonment. R.C. 2929.03(C)(2)(a). The penalty is to be determined by
“the panel of three judges that tried the offender upon the offender’s waiver of the
right to trial by jury” in accordance with R.C. 2929.03(D) and (E).                             R.C.
2929.03(C)(2)(b)(i). Furthermore, after the mitigation hearing, required by R.C.
2929.03(D), the panel must fully consider the choices, choosing death only if they
are unanimous, otherwise selecting one of the possible life terms.7                             R.C.
2929.03(D)(3).


5. We accepted the appeal in Parker as in conflict with State v. Griffin, 73 Ohio App.3d 546, 597
N.E.2d 1178 (1992). Id. at ¶ 3. Not until April 1, 2011, did the court of appeals apply Parker’s
holding to Griffin’s case. 2011-Ohio-1638,¶ 32.

6. Although we also stated in Parker that the three-judge-panel requirement of R.C. 2945.06 was a
jurisdictional matter that cannot be waived, 95 Ohio St.3d 524, 2002-Ohio-2833, 769 N.E.2d 846,
¶ 12, we modified that statement in a subsequent case by holding that the failure to convene a
three-judge panel does not create a lack of subject-matter jurisdiction that renders the trial court’s
judgment void ab initio and subject to collateral attack in habeas corpus. Pratts v. Hurley, 102
Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, syllabus. Instead, we held the error to be an
error in the exercise of jurisdiction, correctable by appeal. Id.

7. At the time of Griffin’s crimes, former R.C. 2929.03(D)(3) provided that the possible life terms
that could be imposed were life imprisonment with parole eligibility after 20 or 30 full years of




                                                 25
                                SUPREME COURT OF OHIO




        {¶ 60} In a capital case, a final, appealable order does not exist until the
sentencing opinion is filed. State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-
3831, 935 N.E.2d 9. R.C. 2929.03(F) sets forth requirements for the sentencing
opinion in all capital cases, whether death or a life sentence is imposed. At the
time of Griffin’s trial, the statute stated:


                 The court or the panel of three judges, when it imposes
        sentence of death, shall state in a separate opinion its specific
        findings as to the existence of any of the mitigating factors set forth
        in division (B) of section 2929.04 of the Revised Code, the
        existence of any other mitigating factors, the aggravating
        circumstances the offender was found guilty of committing, and
        the reasons why the aggravating circumstances the offender was
        found guilty of committing were sufficient to outweigh the
        mitigating factors.      The court or panel, when it imposes life
        imprisonment under division (D) of this section, shall state in a
        separate opinion its specific findings of which of the mitigating
        factors set forth in division (B) of section 2929.04 of the Revised
        Code it found to exist, what other mitigating factors it found to
        exist, what aggravating circumstances the offender was found
        guilty of committing, and why it could not find that these
        aggravating circumstances were sufficient to outweigh the
        mitigating factors. * * * The judgment in a case in which a
        sentencing hearing is held pursuant to this section is not final until
        the opinion is filed.


imprisonment. Am.Sub.S.B. No. 1, 139 Ohio Laws, Part I, 1, 13. The current statute allows life
terms with parole eligibility after 25 or 30 years or life imprisonment without parole. R.C.
2929.03(D)(3)(a).




                                               26
                               January Term, 2013




(Emphasis added.) Am.Sub.S.B. No. 1, 139 Ohio Laws, Part I, 1, 13-14.
       {¶ 61} These statutes show that the General Assembly intended to create a
specific procedure that would be followed in capital cases.         And we have
consistently required strict compliance with Ohio statutes when we have reviewed
the procedures in capital cases. State v. Filiaggi, 86 Ohio St.3d 230, 240, 714
N.E.2d 867 (1999).
              III. Compliance with Capital Statutes Is Required
                      Even If Death May Not Be Imposed
       {¶ 62} The majority opinion contradicts our precedent by declaring that
“the possibility of the death penalty controls whether capital sentencing
procedural protections are required, not whether the case is labeled a capital
case.” Majority opinion, ¶ 38. The majority states on this point:


       Ohio’s statutory framework and case law at the time of Griffin’s
       conviction and sentence did not require death-penalty procedural
       protections, because Griffin could not be sentenced to death. The
       trial court afforded Griffin all of the proper procedural protections
       guaranteed by law in 1990, and its sentencing entry was the final
       judgment in the case.


Majority opinion at ¶ 22.
       {¶ 63} But the three appellate court decisions relied on by the majority
hardly closed the matter of whether capital procedures were required in capital
cases for which life sentences were to be imposed. See State v. Hubert, 10th Dist.
Franklin No. 82AP-942, 1984 WL 5871 (Aug. 16, 1984); State ex rel. Fyffe v.
Evans, 5th Dist. Coshocton No. 90-CA-4, 1990 WL 52518 (Apr. 11, 1990); State
v. Cohen, 11th Dist. Lake No. 12-011, 1988 WL 41545, *12 (Apr. 29, 1988).



                                        27
                             SUPREME COURT OF OHIO




These cases were decided before this court had weighed in. When we did address
these issues, we required trial courts to strictly follow capital procedures
regardless of whether death could be imposed. For instance, in Parker, we held
that a defendant who waives a jury trial must have the case heard and decided by
a three-judge panel even if the state agrees that it will not seek the death penalty.
95 Ohio St.3d 524, 2002-Ohio-2833, 769 N.E.2d 846, syllabus. We also held that
juveniles charged with aggravated murder and a capital specification are still
entitled to the protections of capital procedure, although they are ineligible for
death sentences due to their age. Harwell, 102 Ohio St.3d 128, 2004-Ohio-2149,
807 N.E.2d 330.
       {¶ 64} The majority unjustifiably refuses to acknowledge this court’s
more recent decisions and unduly limits the review of cases to those decided by
1990. The general rule in Ohio is that a court decision applies retrospectively
unless a party has contract rights or vested rights under a prior decision. Peerless
Elec. Co. v. Bowers, 164 Ohio St. 209, 129 N.E.2d 467 (1955); see also State v.
Bey, 85 Ohio St.3d 487, 503, 709 N.E.2d 484 (1999). Therefore, as long as the
statutory provisions are similar, our subsequent decisions are relevant to whether
the trial court was required to follow capital procedures when Griffin was
sentenced and whether she had a final, appealable order.
       {¶ 65} Parker, although not announced until after Griffin’s trial, was
decided under the same version of R.C. 2945.06 that had been in effect since
1981. The portion of the statute relevant to Griffin states:


       If the accused is charged with an offense punishable with death, he
       shall be tried by a court to be composed of three judges * * *. The
       judges or a majority of them may decide all questions of fact and
       law arising upon the trial; however the accused shall not be found
       guilty or not guilty of any offense unless the judges unanimously




                                         28
                                      January Term, 2013




         find the accused guilty or not guilty. * * * The court shall follow
         the procedures contained in sections 2929.03 and 2929.04 of the
         Revised Code in all cases in which the accused is charged with an
         offense punishable by death.


(Emphasis added.)         Just as in Parker, Griffin was “charged with an offense
punishable by death” because her indictment included the R.C. 2929.04(A)(7)
specification. R.C. 2945.06 mandated that capital sentencing procedures in R.C.
2929.03 be applied because she was charged with a capital offense. The state’s
agreement that it would not seek the death penalty did not alter this requirement.8
         {¶ 66} With respect to Griffin’s appeal, a panel of three judges did not
issue the sentencing opinion required by R.C. 2929.03(F) because the death
specification remained. A single judge had convicted her of aggravated murder
and found her guilty of the death specification. While stating erroneously that this
was not a capital case, that single judge then heard considerable mitigation
evidence at sentencing. But no sentencing opinion under R.C. 2929.03(F) was
ever filed. Consequently, this is a pending case, for a final, appealable order does
not yet exist.
         {¶ 67} It is axiomatic that courts of appeals have no jurisdiction to act
without final, appealable orders. State ex rel. Bates v. Court of Appeals for the
Sixth Appellate Dist., 130 Ohio St.3d 326, 2011-Ohio-5456, 958 N.E.2d 162,
¶ 12. Article IV, Section 3(B)(2) of the Ohio Constitution confers jurisdiction
upon the courts of appeals to “review and affirm, modify, or reverse” lower
courts’ “judgments or final orders.” Because the judgment in a capital case is not

8. The trial court also should have followed the capital trial procedures. Thus Griffin’s decision to
waive a jury meant that her guilt or nonguilt should have been determined by three judges
unanimously, R.C. 2945.06, and that those judges should have imposed sentence if she was found
guilty, R.C. 2929.03(D)(3). Although it is true that structural error does not apply to statutory
violations, it could be argued that Griffin was denied her constitutional right to due process
because of the numerous procedural errors in this case.




                                                 29
                             SUPREME COURT OF OHIO




final until the sentencing opinion is filed pursuant to R.C. 2929.03(F), Griffin’s
appeal was never finalized, and res judicata cannot apply.
       {¶ 68} The court of appeals decided incorrectly that Baker rather than
Ketterer applied, reasoning that a sentencing opinion was unnecessary because
there was no mitigation hearing under R.C. 2929.03(D). 2011-Ohio-1638 at ¶ 19-
21. This misses the point. A mitigation hearing was required because the version
of R.C. 2945.06 in effect at the time of Griffin’s sentencing required the trial
court to follow the procedures in R.C. 2929.03 “in all cases in which the accused
is charged with an offense punishable by death.” (Emphasis added.) As we
stated in Harwell, “we looked principally to the offense charged, which was
punishable by death, and not to the status of the defendant or the fact that death
had been eliminated as an option.” 102 Ohio St.3d 128, 2004-Ohio-2149, 807
N.E.2d 330, ¶ 12.
       {¶ 69} There is no denying that Griffin was charged with a capital offense.
Contrary to the majority, I believe that this fact alone does control whether a trial
court is required to follow capital trial and sentencing procedures. Because a
sentencing opinion is required in a capital case, Griffin has never had a final,
appealable order.
                                  IV. Conclusion
       {¶ 70} What must be acknowledged is that the court of appeals never had
the power to act when no final, appealable order existed in this case because a
sentencing opinion was not filed pursuant to R.C. 2929.03(F). The majority
attempts to whitewash the numerous procedural errors in this capital case by
unduly limiting its review to case law as it existed in 1990. Because this court has
held that capital procedures must be followed even when the death penalty is not
an option in a capital case, I would affirm the court of appeals’ decision to the
extent that it vacates the conviction for aggravated murder and the felony-murder
specification and remand this case to the trial court for further proceedings.




                                         30
                               January Term, 2013




       O’CONNOR, C.J., and O’NEILL, J., concur in the foregoing opinion.
                            ____________________
       Jason W. Given, Coshocton County Prosecuting Attorney, for appellant.
       Timothy Young, Ohio Public Defender, and Stephen P. Hardwick,
Assistant Public Defender, for appellee.
       Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R.
Cummings, Assistant Prosecuting Attorney, urging reversal for amicus curiae,
Ohio Prosecuting Attorneys Association.
                          ________________________




                                           31
