[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Goff, Slip Opinion No. 2018-Ohio-3763.]




                                           NOTICE
       This slip opinion is subject to formal revision before it is published in an
       advance sheet of the Ohio Official Reports. Readers are requested to
       promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
       South Front Street, Columbus, Ohio 43215, of any typographical or other
       formal errors in the opinion, in order that corrections may be made before
       the opinion is published.


                          SLIP OPINION NO. 2018-OHIO-3763
               THE STATE OF OHIO, APPELLEE, v. GOFF, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
         may be cited as State v. Goff, Slip Opinion No. 2018-Ohio-3763.]
Criminal law—Aggravated murder—Death sentence imposed after resentencing
         hearing affirmed.
   (No. 2017-0021—Submitted June 12, 2018—Decided September 20, 2018.)
                APPEAL from the Court of Appeals for Clinton County,
                         No. CA2015-08-017, 2016-Ohio-7834.
                               _______________________
         KENNEDY, J.
         {¶ 1} Appellant, James R. Goff, was convicted of the aggravated murder of
Myrtle Rutledge and sentenced to death. We affirmed his convictions and sentence
on direct appeal. State v. Goff, 82 Ohio St.3d 123, 694 N.E.2d 916 (1998) (“Goff
I”).
         {¶ 2} In 2010, concluding that Goff had received ineffective assistance of
appellate counsel with respect to his right to allocution at trial, a federal court
granted a writ of habeas corpus effective 120 days later “unless the Ohio courts
                             SUPREME COURT OF OHIO



reopen Goff’s direct appeal * * * to permit his counsel to raise this issue.” Goff v.
Bagley, 601 F.3d 445, 482 (6th Cir.2010) (“Goff II”). In 2015, after Goff’s direct
appeal was reopened and the case was remanded for resentencing, the trial court
conducted a resentencing hearing at which Goff offered a statement in allocution.
The trial court again sentenced him to death. The court of appeals affirmed. State
v. Goff, 12th Dist. Butler No. CA2015-08-017, 2016-Ohio-7834 (“Goff III”).
       {¶ 3} In this appeal as of right, Goff asserts four propositions of law. For
the reasons explained below, we reject each of Goff’s propositions of law and
affirm his death sentence.
              I. FACTS AND PROCEDURAL HISTORY
                   A. The murder of Myrtle Rutledge
       {¶ 4} In Goff I, this court set forth the facts of Rutledge’s murder in detail.
82 Ohio St.3d at 124-127, 694 N.E.2d 916. For purposes of this opinion, we
summarize those facts as follows.
       {¶ 5} In September 1994, Rutledge, an 88-year-old woman, was in the
process of moving out of her farmhouse and into a new home. On September 14,
Rutledge purchased furniture for her new home from a store in Wilmington, Ohio.
The next day, Goff and a coworker, Manuel Jackson, delivered the furniture to
Rutledge’s home and assembled a bed for her.
       {¶ 6} Two days later, Rutledge’s daughter went to her mother’s house to
pick her up for a family reunion and “found her mother’s battered and naked body
lying on the floor of the bedroom.” Id. at 125. A deputy coroner determined that
Rutledge had “died from blunt and sharp trauma to the head, neck, shoulders, and
ankle.” Id. Additionally, Rutledge had suffered “blood loss due to multiple stab
wounds, one of which severed [her] carotid artery.” Id.
                   B. Goff’s trial and initial sentence
       {¶ 7} A jury found Goff guilty of aggravated murder, aggravated robbery,
aggravated burglary, and grand theft of a motor vehicle.




                                         2
                                January Term, 2018



       {¶ 8} At the mitigation phase of Goff’s trial, the defense presented
testimony from Goff’s former teacher, his former landlord, and a psychologist, Dr.
Jeffrey Smalldon. Dr. Smalldon had examined Goff and also compiled a social
history.
       {¶ 9} The jury recommended a sentence of death. After conducting its own
independent weighing of the aggravating circumstance and mitigating factors, the
trial court sentenced Goff to death.
             C. Direct appeal and collateral review in state court
       {¶ 10} Goff unsuccessfully appealed his convictions and death sentence to
the Twelfth District Court of Appeals. State v. Goff, 12th Dist. Clinton No. CA95-
09-026, 1997 WL 194898 (Apr. 21, 1997). We affirmed the appellate court’s
judgment. Goff I, 82 Ohio St.3d 123, 694 N.E.2d 916.
       {¶ 11} Goff then pursued postconviction relief in state court without
success. See State v. Goff, 12th Dist. Clinton No. CA2000-05-014, 2001 WL
208845 (Mar. 5, 2001) (petition for state postconviction relief); State v. Goff, 12th
Dist. Clinton No. CA2000-10-026, 2001 WL 649820 (June 11, 2001) (motion for
relief from judgment under Civ.R. 60(B)(5)); State v. Goff, 98 Ohio St.3d 327,
2003-Ohio-1017, 784 N.E.2d 700 (application to reopen direct appeal pursuant to
App.R. 26(B)).
                      D. Collateral review in federal court
       {¶ 12} In 2002, Goff filed a petition for habeas corpus relief in the United
States District for the Southern District of Ohio, which was denied. Goff v. Bagley,
S.D.Ohio No. 1:02-cv-307, 2006 WL 3590369 (Dec. 1, 2006). On appeal, however,
the United States Court of Appeals for the Sixth Circuit determined that his
appellate counsel had provided constitutionally ineffective assistance by not raising
the trial court’s failure to afford Goff his right to allocute before sentencing. Goff
II, 601 F.3d at 464-467. The Sixth Circuit granted a writ of habeas corpus effective




                                          3
                              SUPREME COURT OF OHIO



120 days later “unless the Ohio courts reopen Goff’s direct appeal * * * to allow
Goff to raise his allocution argument.” Id. at 473.
               E. Reopening of Goff’s direct appeal and resentencing
        {¶ 13} In accordance with the Sixth Circuit’s directive, the Twelfth District
reopened Goff’s direct appeal to permit him to raise his allocution claim. State v.
Goff, 12th Dist. Clinton No. CA95-09-026, 2012-Ohio-1125, ¶ 12. The appellate
court confirmed its prior affirmance of Goff’s convictions. However, due to the
trial court’s failure to afford Goff his right to allocution, the court vacated its prior
affirmance of appellant’s sentence and remanded the matter for resentencing. The
court of appeals instructed the trial court, “[u]pon remand, * * * to personally
address [Goff] and afford him his right to allocution before imposing its sentence.”
Id. at ¶ 20.
        {¶ 14} On remand, the trial court granted Goff’s motion to proffer new
mitigation evidence and awarded him funds to hire a consulting psychologist.
        {¶ 15} At the resentencing hearing, Goff’s counsel proffered a report
prepared by psychologist Dennis Eshbaugh, Ph.D., as representative of testimony
Dr. Eshbaugh would have given had he been permitted to testify at the hearing.
Counsel urged the court to impose a life sentence, emphasizing Goff’s difficult
childhood, his youth at the time of the offenses, his substance abuse at the time of
the offenses, and his positive adjustment to prison life. The state advocated for a
death sentence. Goff then made a statement in allocution. He noted that he had not
been violent in prison, referred to his difficult childhood, and asked the court for
leniency. The trial court sentenced Goff to death.
        {¶ 16} The court of appeals affirmed Goff’s sentence. Goff III, 2016-Ohio-
7834. Goff appealed.
                                   III. ANALYSIS
        {¶ 17} Goff raises four propositions of law, urging reversal of his death
sentence:




                                           4
                               January Term, 2018




               1. Defendant-Appellant Goff was denied his substantive and
       procedural due process rights to a fair trial when the trial court
       refused to empanel a new jury for the sentencing proceeding.
               2. The trial court erred when it excluded testimony of
       additional mitigating evidence in the time between the two
       sentencing hearings, in violation of Goff’s rights under [the United
       States and Ohio Constitutions].
               3. Trial counsel rendered ineffective assistance by failing to
       adequately prepare their client for allocution and by failing to
       proffer available, mitigating information from Goff’s institutional
       file, in violation of Goff’s rights under [the United States and Ohio
       Constitutions].
               4.   The Defendant-Appellant was denied due process,
       freedom from cruel and unusual punishment, and a fair and reliable
       sentence when his death sentence was imposed, in part, on the basis
       of information that he had no opportunity to deny or explain.


We will address Goff’s propositions out of order for ease of analysis.
                    A. Exclusion of new mitigation evidence
       {¶ 18} Goff’s second proposition of law asserts that the trial court violated
his Eighth Amendment rights by excluding testimony that he sought to present as
additional mitigating evidence, including evidence of Goff’s good behavior in
prison since the first sentencing hearing. Goff argues that he “should have been
permitted to present any and all relevant mitigation evidence at the time of
resentencing.” In support of this argument, he relies on the United States Supreme
Court’s decisions in Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d
973 (1978) (a sentencer may “not be precluded from considering, as a mitigating




                                         5
                             SUPREME COURT OF OHIO



factor, any aspect of a defendant’s character or record and any of the circumstances
of the offense that the defendant proffers as a basis for a sentence less than death
[emphasis sic]”) (plurality opinion); Eddings v. Oklahoma, 455 U.S. 104, 114, 102
S.Ct. 869, 71 L.Ed.2d 1 (1982) (a sentencer may not “refuse to consider, as a matter
of law, any relevant mitigating evidence [emphasis sic]”); Skipper v. South
Carolina, 476 U.S. 1, 7-8, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986) (testimony about a
defendant’s good behavior in jail pending trial was relevant mitigation evidence
that should not have been excluded).
       {¶ 19} We have previously rejected claims similar to Goff’s argument, and
we find the argument unpersuasive in the current procedural context of this case.
       {¶ 20} We have held that when “the errors requiring resentencing occu[r]
after the close of the mitigation phase of the trial”—after the jury has returned its
verdict and made a sentencing recommendation—“the trial court is to proceed on
remand from the point at which the error occurred.” State v. Chinn, 85 Ohio St.3d
548, 565, 709 N.E.2d 1166 (1999). We reaffirmed this holding in State v. Roberts,
137 Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100, ¶ 25, 35-36, in rejecting a
capital defendant’s argument that she was entitled to a full presentation of
mitigation at her resentencing hearing. In Roberts, we explained that Lockett,
Eddings, and Skipper were distinguishable in that each “involved the trial court’s
exclusion of, or refusal to consider, evidence in the original sentencing proceeding.
None of these cases involved a proceeding on remand.” (Emphasis added.) Roberts
at ¶ 34. By contrast, Roberts “involve[d] a proceeding on remand for the limited
purpose of correcting an error that occurred after the defendant had had a full,
unlimited opportunity to present mitigating evidence to the sentencer.” (Emphasis
sic.) Id. We concluded that the Lockett line of cases did not “requir[e] the trial
court to reopen the evidence after an error-free evidentiary hearing had already
taken place.” Roberts at ¶ 35, citing Chinn at 564-565. And we recently stated that
“[n]o binding authority holds that the Eighth Amendment requires a resentencing




                                         6
                                January Term, 2018



judge to accept and consider new mitigation evidence at a limited resentencing
when the defendant had the unrestricted opportunity to present mitigating evidence
during his original mitigation hearing.” State v. Jackson, 149 Ohio St.3d 55, 2016-
Ohio-5488, 73 N.E.3d 414, ¶ 73.
       {¶ 21} The underlying error currently at issue is the trial court’s failure to
provide Goff an opportunity to allocute at his initial sentencing hearing. Crim.R.
32(A)(1) requires a trial court to ask the defendant whether he “wishes to make a
statement in his * * * own behalf” “[a]t the time of imposing sentence.” (Emphasis
added.) This cannot occur until after the defendant has had an opportunity to
present mitigation evidence and the factfinder has made its sentencing
recommendation. See State v. Mason, __ Ohio St.3d __, 2018-Ohio-1462, __
N.E.3d __, ¶ 11-12 (providing sequential description of imposition of a death
sentence in Ohio). On remand for Goff’s resentencing, the trial court had to
proceed from the point of providing Goff an opportunity to allocute, which occurred
after his opportunity to present mitigation evidence. Therefore, the trial court did
not err in excluding testimony that Goff sought to present as additional mitigation
evidence.
       {¶ 22} Goff urges us to apply—instead of the above caselaw—the Sixth
Circuit’s holding in Davis v. Coyle that “at resentencing, a trial court must consider
any new evidence that the defendant has developed since the initial sentencing
hearing,” 475 F.3d 761, 774 (6th Cir.2007), citing Skipper, 476 U.S. at 8, 106 S.Ct.
1669, 90 L.Ed.2d 1.
       {¶ 23} We have already rejected similar claims based on Coyle: “To hold,
as Coyle does, that a new mitigation hearing must be held, even though no
constitutional error infected the original one, would transform the right to present
relevant mitigation into a right to update one’s mitigation. Such a right has no clear
basis in Lockett or its progeny.” (Emphasis sic.) Roberts, 137 Ohio St.3d 230,
2013-Ohio-4580, 998 N.E.2d 1100, at ¶ 36. “Establishing a right to update




                                          7
                             SUPREME COURT OF OHIO



mitigation could result in arbitrary distinctions between similarly situated capital
defendants” because a defendant’s ability to update his mitigation evidence would
turn on whether or not a posthearing sentencing error took place that required a
remand. Id. at ¶ 37. Because Goff fails to present a persuasive argument to depart
from this analysis, we decline to do so.
       {¶ 24} We reject proposition of law No. 2.
                       B. Denial of jury for resentencing
       {¶ 25} As his first proposition of law, Goff contends that the trial court
violated his substantive- and procedural-due-process rights by refusing to empanel
a new jury for the resentencing hearing.          He presents both statutory and
constitutional arguments in support of this proposition.
                                1. R.C. 2929.06(B)
       {¶ 26} Goff asserts that R.C. 2929.06(B) directs the trial court on remand “
‘to empanel a new jury and conduct a fresh penalty hearing,’ ” Goff’s brief at 5,
quoting State v. White, 132 Ohio St.3d 344, 2012-Ohio-2583, 972 N.E.2d 534, ¶ 2,
because he was originally tried by a jury and his initial death sentence was vacated.
       {¶ 27} R.C. 2929.06(B) provides:


               Whenever any court of this state or any federal court sets
       aside, nullifies, or vacates a sentence of death imposed upon an
       offender because of error that occurred in the sentencing phase of
       the trial and if division (A) of this section does not apply, the trial
       court that sentenced the offender shall conduct a new hearing to
       resentence the offender. If the offender was tried by a jury, the trial
       court shall impanel a new jury for the hearing.


       {¶ 28} We have previously considered and rejected Goff’s argument. In
State v. Roberts, 150 Ohio St.3d 47, 2017-Ohio-2998, 78 N.E.3d 851, we had




                                           8
                                  January Term, 2018



vacated Donna Roberts’s death sentence because the trial court failed to consider
her allocution at her initial resentencing, id. at ¶ 21. On remand for a second
resentencing, the trial court considered Roberts’s allocution and again sentenced
her to death without empaneling a new jury. Id. at ¶ 23-25. On appeal, Roberts
urged this court to conclude that “R.C. 2929.06(B) should apply to the resentencing
and require a de novo penalty-phase hearing before a new jury.” Id. at ¶ 43.
       {¶ 29} We found Roberts’s argument unpersuasive. We reasoned that there
was “no indication in R.C. 2929.06(B) that the General Assembly intended to
abrogate” in capital cases the general rule that required the trial court on remand to
proceed from the point at which the error occurred. Id. at ¶ 45. Because the error
was the trial court’s failure to consider Roberts’s allocution, which occurred after
the jury was discharged, on remand the “trial court was required to proceed from
the point of error, not from an earlier point in the sentencing proceedings.” Id. We
further stated, “Because a legally valid penalty-phase jury verdict has already been
rendered in this case, there is no reason to empanel a jury and retry the evidentiary
portion of either the guilt or penalty phases of the proceeding.” Id. at ¶ 46.
       {¶ 30} As in Roberts, the sentencing error at issue in this case occurred after
the verdict and R.C. 2929.06(B) did not require the trial court to empanel a new
jury for resentencing.
                         2. Constitutional right to trial by jury
       {¶ 31} Relying on Hurst v. Florida, 577 U.S. __, 136 S.Ct. 616, 193
L.Ed.2d 504 (2016), Goff next argues that the trial court’s failure to empanel a new
jury for resentencing violated his Sixth Amendment and due-process rights.
       {¶ 32} The Sixth Amendment to the United States Constitution provides
that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury.” The right to a jury extends to determinations of
guilt and to “any fact that increases the penalty for a crime beyond the prescribed
statutory maximum.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348,




                                            9
                             SUPREME COURT OF OHIO



147 L.Ed.2d 435 (2000). This includes the finding of a statutory aggravating
circumstance in a capital case, which is “ ‘the functional equivalent of an element
of a greater offense.’ ” Ring v. Arizona, 536 U.S. 584, 609, 122 S.Ct. 2428, 153
L.Ed.2d 556 (2002), quoting Apprendi at 494, fn. 19.
       {¶ 33} In Hurst, the United State Supreme Court considered the
constitutionality of Florida’s capital-punishment scheme, which provided that “ ‘[a]
person who has been convicted of a capital felony shall be punished by death’ only
if an additional sentencing proceeding ‘results in findings by the court that such
person shall be punished by death.’ ” Hurst at __, 136 S.Ct. at 620, quoting former
Fla.Stat. 775.082(1), C.S.H.B. No. 3033, Ch. 98-3, Laws of Fla. The law provided
for the jury to render an “ ‘advisory sentence’ ” recommending death but did not
require the jury to specify the aggravating circumstances that influenced its
decision. Id., quoting former Fla.Stat. 921.141(2). The sentencing judge then
imposed a death sentence after independently determining and weighing the
aggravating and mitigating circumstances. Id., citing former Fla.Stat. 921.141(3).
       {¶ 34} Relying on Apprendi and Ring, the Supreme Court determined that
Florida’s scheme violated the Sixth Amendment because it “required the judge
alone to find the existence of an aggravating circumstance,” Hurst, 577 U.S. at __,
136 S.Ct. at 624, 193 L.Ed.2d 504, and the jury was “not require[d] * * * to make
the critical findings necessary to impose the death penalty,” id. at __, 136 S.Ct. at
622. The jury’s advisory sentence was immaterial for Sixth Amendment purposes
because it did not include “ ‘specific factual findings with regard to the existence
of mitigating or aggravating circumstances and its recommendation [was] not
binding on the trial judge.’ ” Id., quoting Walton v. Arizona, 497 U.S. 639, 648, 110
S.Ct. 3047, 111 L.Ed.2d 511 (1990).
       {¶ 35} We have previously concluded that “Ohio’s death-penalty scheme
* * * does not violate the Sixth Amendment” because it “requires the critical jury
findings that were not required by the laws at issue in Ring and Hurst.” Mason, __




                                         10
                                 January Term, 2018



Ohio St.3d __, 2018-Ohio-1462, __ N.E.3d __, at ¶ 21, citing R.C. 2929.03(C)(2).
Nevertheless, Goff contends that a jury should have been empaneled for his
resentencing hearing to perform the weighing required under R.C. 2929.03(D)(2).
He asserts that for Sixth Amendment purposes, the weighing of aggravating
circumstances and mitigating factors is itself a factual finding necessary to impose
a death sentence.
       {¶ 36} Again, Goff’s argument fails. The weighing that occurs in the
sentencing phase “ ‘is not a fact-finding process subject to the Sixth
Amendment.’ ” (Emphasis added in Belton.) Mason at ¶ 29, quoting State v.
Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 60. “The Sixth
Amendment was satisfied once the jury found [Goff] guilty of aggravated murder
and a felony-murder capital specification.” Mason at ¶ 29.
       {¶ 37} Goff also contends that he was entitled to a jury at resentencing
because the trial court imposed his 2015 death sentence not only “based upon a jury
recommendation made twenty-two years ago but also recent independent
factfinding by the trial court.” He characterizes these “critical findings” as ones
“necessary to impose the death penalty.”
       {¶ 38} In its sentencing opinion, the trial court noted:


               The Court has reviewed and considered all of the trial
       transcripts of this matter, as well as all of the mitigating factors
       presented at the original trial, in addition to those that were
       presented or re-presented with regard to the resentencing hearing.
       The Court has further searched the entire record for any further
       evidence as to mitigation. Although parts of this opinion are similar
       to the Court’s original opinion herein, it has considered anew, the
       evidence, testimony, arguments of counsel as well as the
       Defendant’s allocution.




                                         11
                             SUPREME COURT OF OHIO




The court “also reviewed the proffered evidence (report of Dr. Eshbaugh, Ph.D.)
by the Defendant.”     After considering all these materials, the court “found
additional mitigating evidence as of the date of this hearing.”
        {¶ 39} As explained above, the weighing process is not fact-finding subject
to the Sixth Amendment. Moreover, to the extent that the trial court improperly
considered Dr. Eshbaugh’s report as new mitigation evidence in its sentencing
determination, Goff fails to explain how the court’s consideration of the report as
new mitigation evidence prejudiced him. See Washington v. Recuenco, 548 U.S.
212, 215, 221, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) (Apprendi claims are
subject to harmless-error analysis).
        {¶ 40} We reject proposition of law No. 1.
                       C. Ineffective assistance of counsel
        {¶ 41} Goff asserts as his third proposition of law that trial counsel were
ineffective at the resentencing hearing for inadequately preparing Goff for his
allocution and failing to proffer mitigating information from Goff’s institutional
file.
        {¶ 42} To prevail on a claim of ineffective assistance of counsel, Goff must
(1) show that counsel’s performance “fell below an objective standard of
reasonableness,” as determined by “prevailing professional norms,” and (2)
demonstrate “a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Strickland v. Washington,
466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). When performing
a Strickland analysis, courts “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance.” Id. at
689.




                                         12
                                 January Term, 2018



                      1. Inadequate preparation for allocution
       {¶ 43} Goff acknowledges that he made a statement when the trial court, in
accord with Crim.R. 32(A)(1), invited him to allocute at his resentencing hearing.
He argues, however, that the “brief, detached” nature of his statement proves that
trial counsel did not adequately prepare him for allocution. Goff contends that
counsel should have helped him make “a coherent, compelling presentation,”
guided him by asking questions, encouraged him to apologize to the victim’s
family, and explained to Goff “the importance of his statements to the court.”
       {¶ 44} Goff has failed to satisfy Strickland. First, there is nothing in the
record detailing what steps counsel did or did not take to prepare Goff for
allocution. To prove that counsel’s performance was deficient, Goff would need to
rely on evidence outside the record, which is “ ‘not appropriately considered on a
direct appeal,’ ” State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89
N.E.3d 554, ¶ 102, quoting State v. Madrigal, 87 Ohio St.3d 378, 391, 721 N.E.2d
52 (2000).
       {¶ 45} Second, even if counsel had performed deficiently in preparing Goff
for his allocution, Goff has not demonstrated “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different,” Strickland, 466 U.S. at 694, 104 S.Ct. 2052, 80 L.Ed.2d 674. While
asserting that “allocution is a significant opportunity for the defendant and can
impact the outcome of the proceedings,” Goff fails to make the crucial argument
that his sentence would have been different had counsel better prepared him to
allocute.
             2. Failure to proffer evidence from Goff’s institutional file
       {¶ 46} Goff argues that his trial counsel were also ineffective for failing to
“attempt to proffer testimony of prison staff or information from prison records” at
the resentencing hearing and that he was prejudiced by that failure.




                                          13
                             SUPREME COURT OF OHIO



        {¶ 47} As discussed above, the trial court correctly denied Goff’s request to
present new mitigation evidence, including evidence of his positive adjustment to
incarceration in the 20 years since his initial sentence; he did not have a right to
present new mitigation evidence at his resentencing. See Jackson, 149 Ohio St.3d
55, 2016-Ohio-5488, 73 N.E.3d 414, at ¶ 73. Therefore, Goff was not prejudiced
by trial counsel’s failure to proffer the testimony as new mitigation evidence. See
State v. Clowers, 134 Ohio App.3d 450, 457, 731 N.E.2d 270 (1st Dist.1999)
(rejecting claim of ineffective assistance based on counsel’s failure to proffer
evidence when, even if counsel had preserved the objection, the evidence would
have been inadmissible).
        {¶ 48} We reject proposition of law No. 3.
              D. Denial of opportunity to deny or explain evidence
        {¶ 49} In his fourth proposition of law, Goff asserts that his constitutional
rights were violated because he was sentenced to death based, in part, on
information that he had no opportunity to deny or explain. Specifically, he claims
that he was denied the opportunity to introduce evidence of his behavior while
incarcerated to rebut the prosecutor’s “argument that he was too dangerous for a
life in prison.”
        {¶ 50} A defendant is denied due process of law when the death sentence is
“imposed, at least in part, on the basis of information which he had no opportunity
to deny or explain.” Gardner v. Florida, 430 U.S. 349, 362, 97 S.Ct. 1197, 51
L.Ed.2d 393 (1977) (plurality opinion). Goff, however, has not been denied this
opportunity. After defense counsel argued in favor of a life sentence for Goff, the
prosecutor stated, “[Goff] comes in here today, after he’s spent all this time in jail,
and to be blunt about it, if the death penalty really worked, he should have been put
to death already!—And he asks for a chance to live?”
        {¶ 51} Contrary to Goff’s assertion, the prosecutor’s statement did not
portray Goff’s behavior while incarcerated or his adjustment to death row as




                                          14
                                  January Term, 2018



support for imposing the death penalty. Instead, the statement was an observation
regarding the significant period of time that Goff had been incarcerated without
being executed.
          {¶ 52} We reject proposition of law No. 4.
                        E. Independent sentence evaluation
          {¶ 53} Having considered Goff’s propositions of law, we must now
independently review his death sentence for appropriateness and proportionality, as
R.C. 2929.05(A) requires. This review requires weighing all the facts and other
evidence to determine whether the aggravating circumstance outweighs the
mitigating factors and whether Goff’s sentence of death is appropriate.           We
previously completed much of the independent sentence evaluation when we
affirmed Goff’s original death sentence on direct appeal. See Goff I, 82 Ohio St.3d
at 141-143, 694 N.E.2d 916.
                             1. Aggravating circumstance
          {¶ 54} The evidence at trial established beyond a reasonable doubt that Goff
committed the aggravated murder of Rutledge in the course of an aggravated
burglary. See R.C. 2929.04(A)(7).         The evidence also established beyond a
reasonable doubt that Goff was the principal offender in the aggravated murder.
See id.
                                2. Mitigation evidence
          {¶ 55} We must weigh the above aggravating circumstance against the
mitigating factors contained in R.C. 2929.04(B). We must consider the mitigation
evidence from Goff’s trial in 1995 and any mitigating information presented during
Goff’s allocution at his resentencing hearing.
          {¶ 56} In Goff I, this court found nothing in mitigation with respect to the
nature and circumstances of the murder. 82 Ohio St.3d at 141, 694 N.E.2d 916.
Instead, our primary focus was on Goff’s “history, character, and background.” Id.;
R.C. 2929.04(B). Goff was significantly affected by his father’s death when Goff




                                           15
                               SUPREME COURT OF OHIO



was only four years old. Goff was left to be raised by a mother who “was a failure
at motherhood, providing very little supervision.” Goff I at 142. Goff’s mother did
not “provide even the basic needs of food, clothes and school,” and Goff began
shoplifting when he was six years old. Id. at 143. The family subsisted on welfare
benefits and often lived in condemned housing, frequently lacking even toilet
facilities. He skipped school often and never graduated from high school. Goff
was eventually removed from his mother’s custody and placed in foster care. We
concluded that Goff’s “history, character, and background [were] entitled to some
mitigating weight.” Id.
        {¶ 57} The court identified three additional mitigating factors in Goff I:
Goff’s age of 19 at the time of the crime; his voluntary abuse of alcohol, marijuana,
speed, inhalants, and crack cocaine; and the testimony of Dr. Smalldon, the defense
psychologist, that Goff likely would adjust well to life in prison.        See R.C.
2929.04(B)(4) and (7). The court afforded little weight to any of these additional
mitigating factors.
        {¶ 58} We now, however, afford some weight to Goff’s adjustment to
prison life. In his allocution, Goff stressed that he had not “shown any violence”
since he was imprisoned. Goff’s statement supports Dr. Smalldon’s testimony at
the initial trial that he would likely adjust well to life in prison.
        {¶ 59} Goff also implied during his allocution that he did not accept a plea
deal because he did not know what the deal entailed. While it is unclear how this
information is mitigating, a reasonable interpretation is that Goff may have been
willing to accept responsibility for the murder if he had understood the plea deal.
We assign this evidence no weight.
        {¶ 60} Finally, Goff referenced his troubled childhood. His statement,
however, failed to provide information that was not presented at the 1995
sentencing hearing. Therefore, we maintain that Goff’s “history, character, and




                                            16
                                January Term, 2018



background” is “entitled to some mitigating weight.” Id., 82 Ohio St.3d at 143, 694
N.E.2d 916.
       {¶ 61} Upon independent weighing, we again find that the aggravating
circumstance outweighs the mitigating factors beyond a reasonable doubt. See id.
Goff identified Rutledge, an 88-year-old woman, as a potential burglary victim
while delivering furniture to her. He returned to Rutledge’s home and murdered
her in the course of the burglary. In contrast, Goff’s mitigation evidence has little
significance.
       {¶ 62} Finally, we hold that Goff’s death sentence is proportionate to death
sentences that we have affirmed in similar cases. See State v. Davis, 116 Ohio St.3d
404, 2008-Ohio-2, 880 N.E.2d 31; State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-
6207, 857 N.E.2d 547; State v. Thomas, 97 Ohio St.3d 309, 2002-Ohio-6624, 779
N.E.2d 1017.
       {¶ 63} Accordingly, we affirm Goff’s sentence of death.
                                                                Judgment affirmed.
       O’CONNOR, C.J., and O’DONNELL, FRENCH, FISCHER, DEWINE, and
DEGENARO, JJ., concur.
                               _________________
       Richard M. Moyer, Clinton County Prosecuting Attorney, and Andrew
McCoy, Assistant Prosecuting Attorney, for appellee.
       Marshall G. Lachman and Angela Wilson Miller, for appellant.
                               _________________




                                         17
