[Cite as State v. Johnson, 2019-Ohio-4899.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                     Court of Appeals No. L-18-1265

        Appellee                                  Trial Court No. CR0200603545

v.

Tyrone R. Johnson                                 DECISION AND JUDGMENT

        Appellant                                 Decided: November 27, 2019

                                              *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Lawrence A. Gold, for appellant.

                                              *****

        MAYLE, P.J.

        {¶ 1} Appellant, Tyrone Johnson, appeals the November 16, 2018 judgment of the

Lucas County Court of Common Pleas sentencing him to consecutive prison terms of 20

years to life. For the following reasons, we affirm.
                                I. Background and Facts

       {¶ 2} In 2007, Johnson was convicted by a jury of two counts of aggravated

murder in violation of R.C. 2903.01(B), unclassified felonies, and one count of

aggravated robbery in violation of R.C. 2911.01(A)(1), a first-degree felony, as well as

the gun specifications attached to each count. The trial court sentenced Johnson to the

following prison terms: (1) 20 years to life on the aggravated murder convictions, to be

served consecutively to each other; (2) 10 years on the aggravated robbery conviction, to

be served concurrently to the aggravated murder sentences; and (3) a mandatory term of 3

years on the gun specifications, which the trial court merged into one specification, to be

served consecutively to the aggravated murder convictions. Johnson appealed, and we

affirmed. State v. Johnson, 6th Dist. Lucas Nos. L-07-1193 and L-08-1230, 2009-Ohio-

45.

       {¶ 3} In 2016, following Johnson’s appeal of the trial court’s denial of his motion

for resentencing, we reversed the trial court’s decision and remanded the matter to the

trial court for the purpose of properly sentencing Johnson. State v. Johnson, 6th Dist.

Lucas No. L-16-1170, 2016-Ohio-8525. We noted that the trial court had originally

determined that the aggravated robbery count merged with the aggravated murder counts,

but had nonetheless sentenced Johnson to prison on the aggravated robbery count, which

resulted in a void sentence. Id. at ¶ 11-12. Thus, we remanded the case for resentencing.

Id. at ¶ 14.




2.
       {¶ 4} On November 16, 2018, the trial court held another sentencing hearing. The

state elected to merge the aggravated robbery count into one of the aggravated murder

counts and to proceed with sentencing on the two aggravated murder counts. Johnson’s

counsel pointed out to the trial court that the judge who sentenced Johnson in 2007 did

not make findings regarding the appropriateness of consecutive sentences and asked that

“any error then be for the benefit of the defense.” Specifically, counsel asked that the

sentences for aggravated murder be run concurrently.

       {¶ 5} When asked if he had anything to say on his own behalf, Johnson denied

committing the murders, claiming that he was never properly charged and was being

“held accountable for something the State said another person did.” He said that he had

no connections to the victims of the murders or to anyone else involved. And although

Johnson admitted to having a criminal record, he denied being convicted of any violent

crimes.

       {¶ 6} In response, the state noted that the case involved two shootings that were

committed at close range. That, combined with Johnson’s criminal history, the state said,

“more than support[ed]” findings under R.C. 2929.14 that consecutive sentences were

necessary to protect the public from future crime or punish the offender, consecutive

sentences were not disproportionate to the seriousness of the offense, and the harm

caused by two or more offenses was so great or unusual that no single prison term

adequately reflected the seriousness of the conduct.




3.
         {¶ 7} After hearing from the parties, the trial court noted that it had considered the

“vast” record in the case, as well as the principles and purposes of sentencing under R.C.

2929.11 and the seriousness and recidivism factors in R.C. 2929.12. The court went on

to impose sentences of 20 years to life for each of the aggravated murder charges and

ordered the sentences to be served consecutively. The court found that consecutive

sentences were necessary to protect the public from future crime or to punish Johnson

and were not disproportionate to the seriousness of Johnson’s conduct and the danger

Johnson posed. The court also found that the harm caused—i.e., “two dead victims”—

was so great or unusual that no single prison term was adequate. Finally, the court

imposed a mandatory 3-year term for the merged gun specifications, to be served

consecutively to the aggravated murder sentences.

         {¶ 8} Johnson now appeals the trial court’s sentence, raising one assignment of

error:

                The trial court did not comply with R.C. 2929.11 and 2929.12 in

         sentencing Appellant to consecutive terms of twenty years to life plus an

         additional consecutive term of three years for a firearm specification in the

         Ohio Department of Rehabilitation and Corrections on two counts of

         aggravated murder.

                                    II. Law and Analysis

         {¶ 9} In his assignment of error, Johnson argues that “the trial court failed to

comply with the directives of R.C. 2929.11 [and] 2929.12 * * * by not ordering




4.
concurrent sentences” because the court “failed to consider any mitigating factors in

ordering two consecutive potential life sentences * * *.” In response, the state contends

that Johnson has failed to demonstrate that his consecutive sentences are unsupported by

the record or contrary to law.

       {¶ 10} Generally speaking, we review felony sentences under R.C. 2953.08(G)(2).

There are exceptions to our ability to review sentences, however. One of those is in R.C.

2953.08(D)(3), which provides that “[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 R.C. 2953.08. In State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-

3095, 829 N.E.2d 690, ¶ 17, the Supreme Court of Ohio held that “R.C. 2953.08(D) is

unambiguous. ‘A sentence imposed for aggravated murder or murder pursuant to section

2929.02 to 2929.06 of the Revised Code is not subject to review under this section’

clearly means what it says: such a sentence cannot be reviewed.” An appellate court

only has “such jurisdiction as may be provided by law to review and affirm, modify, or

reverse judgments or final orders of the courts of record inferior to the court of appeals

within the district.” (Emphasis added.) Article IV, Section 3(B)(2), Ohio Constitution.

By enacting R.C. 2953.08(D)(3), the legislature removed our authority to review

sentences imposed for aggravated murder and murder. Thus, we cannot review

Johnson’s sole argument that “the trial court failed to comply with the directives of R.C.

2929.11 [and] 2929.12 * * *” when sentencing him. State v. Weaver, 2017-Ohio-4374,

93 N.E.3d 178, ¶ 17-20 (5th Dist.). Johnson’s assignment of error is not well-taken.




5.
                                     III. Conclusion

       {¶ 11} For the foregoing reasons, the November 16, 2018 judgment of the Lucas

County Court of Common Pleas is affirmed. Johnson is ordered to pay the costs of this

appeal pursuant to App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Christine E. Mayle, P.J.
                                               _______________________________
Gene A. Zmuda, J.                                          JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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