[Cite as State v. Patterson, 2013-Ohio-1647.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     JUDGES:

                                                  Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellee                         Hon. Patricia A. Delaney, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. 2012CA00098
JONATHAN T. PATTERSON


       Defendant-Appellant                        OPINION


CHARACTER OF PROCEEDING:                          Appeal from the Stark County Court of
                                                  Common Pleas, Case No.
                                                  2011CR1240A



JUDGMENT:                                         Affirmed



DATE OF JUDGMENT ENTRY:                           April 22, 2013



APPEARANCES:

For Defendant-Appellant:                          For Plaintiff-Appellee:

GEORGE URBAN                                      JOHN D. FERRERO
116 Cleveland Ave., NW, Suite 808                 Prosecuting Attorney
Canton, OH 44702                                  KATHLEEN TATARSKY
116 Cleveland Ave. NW, Suite 808                  Assistant Prosecuting Attorney
Canton, OH 44702                                  110 Central Plaza South – Suite 510
                                                  Canton, OH 44702-1413
Baldwin, J.

       {¶1} Appellant Jonathan T. Patterson appeals a judgment of the Stark County

Common Pleas Court convicting him of aggravated murder (R.C. 2903.01(B)) with a

death penalty specification (R.C. 2929.04(A)(7)) and a firearm specification (R.C.

2941.145), and aggravated burglary (R.C. 2911.11(A)(1),(2)) with a firearm

specification.     He was sentenced to life in prison without possibility of parole.

Appellee is the State of Ohio.

       {¶2} On August 14, 2011, seventeen-year-old Chris Reid woke up at his

home on 10th Street N.W. in Canton, Ohio, when his friends D’Von Saunders and

appellant, who Reid knew by the street name of “J Pat,” came into his bedroom.

Appellant was eighteen years old at the time. He and Saunders were driving a blue

Chrysler Sebring convertible they got the night before at a party. They asked Reid

where they could “get to lick on some weed.” Reid understood this to mean they

wanted to rob someone for marijuana. When Reid could not help them, they left.

       {¶3} Myron Roberson called appellant looking for a ride.     After picking up

Roberson, they parked the car and began to walk around the neighborhood near 9th

and 10th Streets with Ronnie Lawson and Jentry Ross. Ross was looking for a ride to

the Chips Apartments because his “baby mom” and daughter were on their way from

Columbus. The group discussed robbing someone for marijuana and for gas money

to get to Chips.

       {¶4} The five boys ended up at the home of Melvin Hope on 11th Street. They

knocked on the door and when Hope answered, they asked for Hope’s two sons,

Melvin and Jeremy. He replied that the boys were not home. Saunders smelled weed
when Hope opened the door. Saunders also told the group that there were “bands in

the house,” meaning a stack of bills of over $5,000.

       {¶5} The group walked to Westbrook Park frustrated because some of them

wanted to rob someone for money and drugs, and some did not want to rob anyone.

Appellant wanted to rob someone and said, “I’m going to get some money.” Saunders

gave appellant a .22 caliber Heritage Rough Rider revolver with an obliterated serial

number.

       {¶6} Appellant and Roberson went to Hope’s house and rushed the door.

Roberson saw the handle of the revolver on appellant’s hip and saw appellant

wrestling with Hope. He heard a “pop,” followed by two more “pops.” Roberson was

heading up the stairs at the time, but ran away after hearing the pops. He heard Hope

screaming for help, saying, “I ain’t got no money. I ain’t got nothing.”

       {¶7} Appellant eventually caught up with Roberson on the street. Appellant

was carrying a jewelry box and a penny jar.         They rejoined Saunders, Ross and

Lawson.

       {¶8} The group headed to the Chips Apartments in the blue convertible.

Saunders could tell something had happened. Saunders took the gun which appellant

had placed under the car seat, wiped it off, wrapped it in his black t-shirt and put it

under the driver’s seat. In the car, Roberson said, “this shit crazy.” When Lawson

asked what was crazy, appellant told him to shut up. While the group was at Chips,

Roberson burned the “beater,” or tank top, appellant was wearing.

       {¶9} Appellant, Saunders, Roberson and DeMarco Wright went to the home

of Wright’s girlfriend, Davian Jackson, to see Wright’s baby, who was six or seven
months old. Davian was excited to see Wright as he usually doesn’t come by to visit

in the summer. Saunders handed her the jewelry box taken from Hope’s home and

told her to keep it in her room. Several of the boys went in the kitchen where Davian’s

mother was making dinner, but appellant stayed in the living room.          The boys

eventually left for Chips, taking the baby with them. The boys returned the baby to

Davian’s house shortly thereafter.

       {¶10} In the car, appellant stated in reference to Hope that he “bodied him,”

meaning that he killed him. He told Wright that he and Roberson went into a house

intending to rob the man who lived there and the “dude end up getting shot.” He

admitted to Wright that he shot Hope. He also told Wright that he left the gun under

the couch in Davian’s house.

       {¶11} Meanwhile, Chris Reid was playing video games at his house with

Jeremy and Melvin Collins, who were Hope’s sons. Reid told Melvin to get another

game controller from his house. Melvin left and then texted Jeremy from his house,

“dad hurt.”

       {¶12} Canton City Patrolman Scott Fout was dispatched to the Hope home in

response to a report of a shooting. He noted a sofa table with items knocked off and

found Hope lying in a pool of blood in an archway between the dining room and living

room. Hope was conscious, but suffering from gunshot wounds to his chest and leg.

Fout searched the home and found a blood trail going to the basement and a large

puddle of blood at the bottom of the basement steps. He found no shell casings,

leading him to conclude that the gun used was a revolver. He found no signs of
forced entry.      The master bedroom of Hope’s home had been ransacked and

something square appeared to be missing from a cluttered dresser top.

          {¶13} Hope was transported to Mercy Medical Center where he died.          The

coroner found multiple close range gunshot wounds to Hope’s body. One was found

on the left upper chest and was partially surrounded by soot and by blackening and

searing of the skin, indicating that the barrel of the gun was placed close to the skin.

This shot went through his lungs, filling the lung cavity with blood so he could not

breathe. Hope’s body was accompanied to the coroner’s office by three containers of

blood which were pumped from his body in an effort to save him. Another wound was

found in his back, also bearing signs that it was fired at close range. A third gunshot

wound was found on his thigh, which broke his right thigh bone. Hope had several

injuries to his face, possibly caused by a bullet or by impact from falling down a flight

of steps.

          {¶14} Chris Reid’s mother gave police a description of the car Saunders and

appellant were driving when they came to her home on the day of the murder. The

police were able to obtain a license plate number because the car had been reported

stolen.     Canton police officer Victoria Sellers spotted the car at 8:46 p.m. by the

entrance to Maggiore’s Drive Thru, across the street from a Huntington Bank branch.

Appellant was in Maggiore’s wearing a white shirt and red shorts. A store clerk told

Sellers that appellant had arrived in the Sebring. Appellant walked across the street to

the bank. Appellant and Wright were arrested.

          {¶15} Two days later, a landscaper found appellant’s identification card along

with a Huntington Bank ATM card belonging to Hope on the bank lawn.
      {¶16} Appellant was indicted by the Stark County Grand Jury with one count of

aggravated murder with a death penalty specification and a firearm specification, and

one count of aggravated burglary with a firearm specification. The case proceeded to

jury trial in the Stark County Common Pleas Court.        Appellant was convicted as

charged, and the case proceeded to a separate penalty trial.

      {¶17} The jury returned with a decision that the aggravating circumstances of

the killing did not outweigh the mitigating factors and spared appellant from the death

penalty. The jury recommended a sentenced of life in prison without the possibility of

parole. The court sentenced appellant to life without parole for aggravated murder

and three years for the firearm specification. The court sentenced appellant to ten

years incarceration for aggravated burglary, to be served consecutively. The court

merged the firearm specification for aggravated burglary into the firearm specification

for aggravated murder.

      {¶18} Appellant raises five Assignments of Error:

      {¶19} “I. APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT AND SUFFICIENCY OF THE EVIDENCE.

      {¶20} “II. THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING

GRUESOME        PHOTOS      WHICH      WERE      INFLAMMATORY         AND     HIGHLY

PREJUDICIAL.

      {¶21} “III. APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND

A   FAIR   TRIAL    AS   GUARANTEED        BY   THE    SIXTH    AND    FOURTEENTH

AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I,

SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION WHEN THE TRIAL COURT
ALLOWED THE PROSECUTOR A CONTINUANCE TO SPEAK WITH A WITNESS

THAT HAD ALREADY BEEN SWORN.

      {¶22} “IV. APPELLANT WAS DENIED HIS RIGHTS TO DUE PROCESS AND

OF ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND

FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND

ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION BECAUSE HIS

TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE.

      {¶23} “V. APPELLANT’S SENTENCE OF LIFE IMPRISONMENT WITHOUT

PAROLE WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

                                           I.


      {¶24} In his first assignment of error, appellant argues that the judgment

convicting him of aggravated murder was against the manifest weight and sufficiency

of the evidence. He specifically argues that the evidence did not demonstrate that he

acted with purpose because he did not enter the residence intending to kill Hope, that

the testimony of Roberson that appellant was the principal offender was not credible,

and that the evidence did not show that he possessed the gun.

      {¶25} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in evidence the jury ‘clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered.’” State v. Thompkins, 78 Ohio St. 3d 380, 387,
1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175,

485 N.E.2d 717 (1983).

      {¶26} An appellate court's function when reviewing the sufficiency of the

evidence is to determine whether, after viewing the evidence in a light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of

the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574

N.E.2d 492, paragraph two of the syllabus (1991).

      {¶27} Appellant was convicted of aggravated murder in violation of R.C.

2903.01(B):

      {¶28} “(B) No person shall purposely cause the death of another or the unlawful

termination of another's pregnancy while committing or attempting to commit, or while

fleeing immediately after committing or attempting to commit, kidnapping, rape,

aggravated arson, arson, aggravated robbery, robbery, aggravated burglary, burglary,

trespass in a habitation when a person is present or likely to be present, terrorism, or

escape.”

      {¶29} The jury also found that appellant was the principal offender pursuant to

the death penalty specification found in R.C. 2929.04(A)(7):

      {¶30} “The offense was committed while the offender was committing,

attempting to commit, or fleeing immediately after committing or attempting to commit

kidnapping, rape, aggravated arson, aggravated robbery, or aggravated burglary, and

either the offender was the principal offender in the commission of the aggravated

murder or, if not the principal offender, committed the aggravated murder with prior

calculation and design.”
       {¶31} Appellant was also convicted of a firearm specification in violation of

R.C. 2941.145(A), which provides in pertinent part:

       {¶32} “(A) Imposition of a three-year mandatory prison term upon an offender

under division (B)(1)(a) of section 2929.14 of the Revised Code is precluded unless

the indictment, count in the indictment, or information charging the offense specifies

that the offender had a firearm on or about the offender's person or under the

offender's control while committing the offense and displayed the firearm, brandished

the firearm, indicated that the offender possessed the firearm, or used it to facilitate

the offense.”

       {¶33} Appellant first argues that the evidence does not support a finding that

he purposely caused the death of Hope. Purposely is defined by R.C. 2901.22(A):

       {¶34} “(A) A person acts purposely when it is his specific intention to cause a

certain result, or, when the gist of the offense is a prohibition against conduct of a

certain nature, regardless of what the offender intends to accomplish thereby, it is his

specific intention to engage in conduct of that nature.”

       {¶35} Appellant argues that there is no evidence that when he entered the Hope

residence, he intended to kill Mr. Hope. However, the definition of purposely does not

require that he have intended to kill Hope when he entered the residence. There is

evidence that supports the jury’s finding that appellant pulled the trigger of the gun

intending to kill Mr. Hope. Larry Mackey of the Stark County Crime Laboratory tested

the gun and testified that it was a single action revolver, meaning the shooter would

have to pull the hammer of the gun and then pull the trigger each time to expel a bullet.

Three bullets were removed from Hope’s body. There was evidence that the gunshot
wound to Hope’s left upper chest was partially surrounded by soot and the skin was

somewhat seared and blackened in the area, which demonstrated that the barrel of the

gun was placed close to the skin.        The bullet wound on Hope’s back also had

gunpowder surrounding it, which demonstrated that it was a very close gunshot wound.

From this evidence, the jury could conclude that appellant purposely caused the death

of Hope, and the jury’s finding is not against the manifest weight of the evidence.

       {¶36} Appellant next argues that there was no credible evidence to prove that he

was the principal offender.     He argues that Roberson’s testimony is not credible

because his charge of complicity to aggravated murder was amended to complicity to

murder in exchange for his testimony against appellant.        He argues Roberson had

previously lied to police, that he was the only one who heard appellant say he “bodied”

Hope, and that Roberson’s behavior in burning appellant’s shirt and his nervousness on

the day of the shooting is consistent with Roberson being the principal offender.

       {¶37} Roberson testified that when he and appellant entered the Hope

residence, he could see a gun handle on appellant’s hip.         While in the residence,

Roberson testified that he heard several “pops” and then he fled the home. Roberson

testified that appellant later said he “bodied” Hope, meaning he killed him.

       {¶38} While there are inconsistencies between the testimony of the witnesses

concerning what happened on the day in question, Roberson’s testimony is not the only

testimony supporting the jury’s finding that appellant was the principal offender.

DeMarco Wright testified that appellant admitted to him that he shot Hope.            D’Von

Saunders testified that he gave appellant the gun and that appellant planned to rob

someone to get some money. Further, appellant’s shorts were tested. Lead residue
was found in the right front pocket and Hope’s blood was found in several areas of

appellant’s shorts.

       {¶39} Roberson testified concerning his plea agreement with the state and

admitted to lying to the police in a previous statement. However, the jury had the

opportunity to assess Roberson’s credibility on the stand and apparently determined he

was telling the truth at trial. Based on the evidence presented, the finding that appellant

was the principal offender is not against the manifest weight or sufficiency of the

evidence.

       {¶40} Finally, appellant argues the evidence does not demonstrate that he

possessed the gun. Saunders testified that he gave appellant the gun. Roberson

testified that he saw the handle sticking out of appellant’s shorts. Appellant admitted to

Wright that he hid the gun under Davian’s couch, where police eventually recovered the

gun. Lead residue was found in the right front pocket of appellant’s shorts. The finding

that appellant possessed a firearm during the commission of the offense is not against

the manifest weight or sufficiency of the evidence.

       {¶41} The first assignment of error is overruled.

                                                II.

       {¶42} In his second assignment of error, appellant argues that the court abused

its discretion in admitting State’s Exhibit 18F into evidence, which is an autopsy

photograph showing plastic containers of blood withdrawn at the hospital in an effort to

save Hope’s life.     Appellant argues the photo has no probative value and its only

purpose was to inflame the emotions of the jury.
       {¶43} The admission of photographic evidence is left to the discretion of the

trial court. State v. Maurer, 15 Ohio St.3d 239, 264, 473 N.E.2d 768, 791 (1984);

State v. Morales, 32 Ohio St.3d 252, 257, 513 N.E.2d 267, 273 (1987). In order to find

an abuse of that discretion, we must determine the trial court's decision was

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 450 N.E.2d 1140 (1983).

       {¶44} Relevant, non-repetitive photographs, even if gruesome, are admissible

if the probative value of each photograph exceeds the prejudicial impact to the

accused. Maurer, supra, at paragraph seven of the syllabus; Morales, supra, at 257.

       {¶45} The photograph in question shows three plastic hospital containers

sitting on the autopsy table near the lower half of Hope’s body.         In overruling

appellant’s objection to this photo, the trial court stated:

       {¶46} “And I would include in that that Exhibit 18F is probably the least

gruesome of all the photos in the entire array because it doesn’t show anything other

than the fact that it shows some vials on a table of some type. I can’t even tell what

they are.”

       {¶47} Having viewed the photograph, we agree with the court’s description of

the photograph. Further, the coroner testified that the containers of blood depicted in

the photograph were important to his determination as to the cause of death, because

the amount of blood pumped out of Hope supported the fact that he probably bled to

death from his lungs and other wounds. Tr. 1167-1168.
      {¶48} The trial court did not abuse its discretion in determining that the

probative value of Exhibit 18F outweighed its prejudicial effect.         The second

assignment of error is overruled.

                                             III.

      {¶49} In his third assignment of error, appellant argues the court erred in

allowing the State to have a continuance to talk to Roberson after he had been sworn

as a witness.

      {¶50} After Roberson had been sworn in as a witness, he answered questions

concerning how long he had known appellant and the details of his plea agreement.

The State asked him to explain where he was and what he was doing at the beginning

of the day of the murder. Roberson said, “I don’t want to talk.” Tr. 877. The court

gave the State a short recess to talk to Roberson. The record reflects that the court

recessed at 1:28 p.m. and reconvened at 1:38 p.m. Later in the trial, the State put on

the record what occurred during this recess. The State represented that Roberson

was reminded that the terms of his plea agreement required his truthful testimony. His

mother did most of the talking, and urged him to “be a man” and do the right thing. Tr.

1147. She further told Roberson not to look at appellant while testifying, and that she

wanted him to do the right thing for the sake of the victim’s family and so he would

have a chance to get out of prison when he is 36 or 37 years old. Tr. 1148. The State

further noted that the conversation took about six minutes and Roberson was crying

while his mother talked to him.

      {¶51} We first note that appellant did not object to the recess to allow the State

to talk to Roberson. Because appellant failed to object, we must find plain error in
order to reverse. To prevail under a plain error analysis, appellant bears the burden of

demonstrating that the outcome of the trial clearly would have been different but for

the error. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978). Notice of plain

error “is to be taken with the utmost caution, under exceptional circumstances and

only to prevent a manifest miscarriage of justice.” Id. at paragraph three of the

syllabus.

       {¶52} While appellant argues that this was a continuance, the record reflects

that the State was not given a continuance, but rather the court recessed for ten

minutes to allow the State to talk to Roberson. In State v. Heiberger, 6th Dist. No. E-

84-54, 1985 WL 7544 (July 19, 1985), the court granted the state a recess to allow the

fourteen-year-old victim-witness to talk to her caseworker to calm the witness down.

The Court of Appeals for the Sixth District found that the conduct of trial proceedings

is largely discretionary with the trial court. Id. The court held that the record reflected

that the witness was very nervous, the defendant was permitted to cross-examine her

concerning what happened during the recess, and the record did not reflect that the

witness had been coached; therefore, the defendant failed to demonstrate prejudice.

Id.

       {¶53} In the instant case, appellant cross-examined Roberson about what

occurred during the recess. Tr. 903-905. The record reflects that Roberson was

merely reminded of his plea agreement and his mother urged him to follow through

with his agreement to testify truthfully against appellant.           Appellant has not

demonstrated plain error in this ten-minute recess.

       {¶54} The third assignment of error is overruled.
                                               IV.

       {¶55} In his fourth assignment of error, appellant argues that his counsel was

ineffective for failing to object to jury instructions on R.C. 2929.04(A)(7) which omitted

the element of prior calculation and design, and for failing to object to the State’s

amendment of the indictment for aggravated burglary which eliminated the “aid and

abet” language. He argues that the combination of these errors gave the jury no

opportunity to find that appellant was not the principal offender, and the jury was faced

with a choice of finding him not guilty or finding that he was the principal offender.

       {¶56} A properly licensed attorney is presumed competent. State v. Hamblin,

37 Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of

ineffective assistance of counsel, appellant must show counsel's performance fell

below an objective standard of reasonable representation and but for counsel’s error,

the result of the proceedings would have been different.        Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984); State v. Bradley , 42 Ohio St.3d

136, 538 N.E.2d 373 (1989).       In other words, appellant must show that counsel’s

conduct so undermined the proper functioning of the adversarial process that the trial

cannot be relied upon as having produced a just result. Id.

       {¶57} The death penalty specification found in R.C. 2929.04(A)(7) provides,

“The offense was committed while the offender was committing, attempting to commit,

or fleeing immediately after committing or attempting to commit kidnapping, rape,

aggravated arson, aggravated robbery, or aggravated burglary, and either the offender

was the principal offender in the commission of the aggravated murder or, if not the

principal offender, committed the aggravated murder with prior calculation and
design.” However, the indictment charged appellant solely with being the principal

offender and did not include the statutory language concerning prior calculation and

design. The trial court’s instruction used the language in the indictment and required

the jury to find that appellant was the principal offender to find him guilty of the

specification. Presenting the jury with the language concerning prior calculation and

design would have created confusion, as the State’s theory of the case was that

appellant was the principal offender, and appellant’s theory of the case was that he

was not the principal offender.

       {¶58} Further, appellant cannot demonstrate that he was prejudiced by the

State’s amendment to the indictment to remove the “aid and abet” element of

aggravated burglary. If the jury accepted appellant’s defense that he was not the

principal offender, the jury would have had no choice but to acquit appellant. The

removal of the aid and abet language thus aided appellant’s defense.

       {¶59} The instructions squarely set before the jury the issue presented at trial:

whether appellant was the principal offender. Appellant has not demonstrated that

counsel was ineffective for failing to object to the instructions.

       {¶60} The fourth assignment of error is overruled.

                                                 V.

       {¶61} In his final assignment of error, appellant argues that the sentence of life

imprisonment without parole is against the manifest weight of the evidence.

       {¶62} Appellant was sentenced to life without the possibility of parole pursuant

to R.C. 2929.03(D)(2), which provides in pertinent part:
       {¶63} “(2) 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 pursuant to division (D)(1) of this section, the trial jury,

if the offender was tried by a jury, shall determine whether the aggravating

circumstances the offender was found guilty of committing are sufficient to outweigh the

mitigating factors present in the case. If the trial jury unanimously finds, by proof

beyond a reasonable doubt, that the aggravating circumstances the offender was found

guilty of committing outweigh the mitigating factors, the trial jury shall recommend to

the court that the sentence of death be imposed on the offender. Absent such a finding,

the jury shall recommend that the offender be sentenced to one of the following:

       {¶64} “(a) Except as provided in division (D)(2)(b) or (c) of this section, to life

imprisonment without parole, life imprisonment with parole eligibility after serving

twenty-five full years of imprisonment, or life imprisonment with parole eligibility after

serving thirty full years of imprisonment ***

       {¶65} “If the trial jury recommends that the offender be sentenced to life

imprisonment without parole, life imprisonment with parole eligibility after serving

twenty-five full years of imprisonment, life imprisonment with parole eligibility after

serving thirty full years of imprisonment, or an indefinite term consisting of a minimum

term of thirty years and a maximum term of life imprisonment to be imposed pursuant

to division (B)(3) of section 2971.03 of the Revised Code, the court shall impose the

sentence recommended by the jury upon the offender.”
         {¶66} Pursuant to this section, the court has no discretion in imposing the

sentence recommended by the jury; the statute expressly states that the court shall

impose the sentence recommended by the jury.

         {¶67} R.C.   2953.08(D)   governs   review   of   felony   sentencing.   R.C.

2953.08(D)(3) provides, “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.” The Ohio Supreme Court has held that this is unambiguous: a

sentence for aggravated murder imposed pursuant to R.C. 2929.02 to R.C. 2929.06

cannot be reviewed. State v. Porterfield, 106 Ohio St. 3d 5, 829 N.E.2d 690, 2005-

Ohio-3095, ¶17. Therefore, evidentiary review of a sentence imposed by a trial court

pursuant to R.C. 2929.03(D)(2) is precluded. State v. McDowell, 10th Dist. No. 03AP-

1187, 2005-Ohio-6959, ¶73, overruled on other grounds, In re Ohio Criminal

Sentencing Statutes Cases, 109 Ohio St.3d 411, 848 N.E.2d 809, 2006-Ohio-2394 .

         {¶68} The Court of Appeals for the 8th District discussed the longstanding

history of treating aggravated murder sentencing differently from other felony

sentencing in concluding that a sentence of life imprisonment without parole imposed

by a three-judge panel pursuant to R.C. 2929.03 is not reviewable by the appellate

court:

         {¶69} “The General Assembly's practice of treating sentencing for aggravated

murder and murder convictions differently from other felonies is longstanding. Before

the 1996 Senate Bill 2 felony sentencing amendments, the courts likewise held that the

general felony sentencing requirements did not apply in aggravated murder cases.

E.g., State v. Richards (Dec. 15, 1997), Clermont App. No. CA97-06-059, unreported,
1997 WL 779084. Defendant has shown nothing to indicate that the General Assembly

intended to change this well-established sentencing practice and the comprehensive

sentencing scheme in aggravated murder and murder cases.” State v. Hollingsworth,

143 Ohio App. 3d 562, 569, 758 N.E.2d 713 (8th Dist. 2001).

      {¶70} Pursuant to R.C. 2953.08(D)(3) and case law interpreting this statute,

this Court is without statutory authority to review appellant’s sentence on an

evidentiary basis. The fifth assignment of error is overruled.

      {¶71} The judgment of the Stark County Common Pleas Court is affirmed.

Costs assessed to appellant.



By: Baldwin, J.

Gwin, P.J. and

Delaney, J. concur.



                                        HON. CRAIG R. BALDWIN



                                        HON. W. SCOTT GWIN



                                        HON. PATRICIA A. DELANEY


CRB/rad
               IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT


                                        :
STATE OF OHIO                           :
                                        :
   Plaintiff - Appellee                 :       JUDGMENT ENTRY
                                        :
                                        :
-vs-                                    :
                                        :       Case No.   2012CA0098
JONATHAN T. PATTERSON                   :
                                        :
   Defendant - Appellant                :
                                        :


       For the reasons stated in our accompanying Opinion on file, the judgment of the

Stark County Court of Common Pleas is affirmed. Costs assessed to Appellant.




                                        HON. CRAIG R. BALDWIN



                                        HON. W. SCOTT GWIN



                                        HON. PATRICIA A. DELANEY
