481 N.E.2d 650 (Ohio App. 9 Dist. 1984), 3622, State v. Guyton
|Docket Nº:||Docket Nos. 3622, 3623.|
|Citation:||481 N.E.2d 650, 18 Ohio App.3d 101|
|Opinion Judge:||GEORGE, J.|
|Party Name:||The STATE of Ohio, Appellee, v. GUYTON, Appellant.|
|Attorney:||Gregory A. White, Pros. Atty., for appellee., Jack W. Bradley and James M. Burge, Lorain, for appellant. Gregory A. White, prosecuting attorney, for appellee., Jack W. Bradley and James M. Burge, for appellant.|
|Judge Panel:||MAHONEY, P.J., and QUILLIN, J., concur.|
|Case Date:||July 05, 1984|
|Court:||Court of Appeals of Ohio|
Syllabus by the Court
1. The specification under R.C. 2929.04(A)(7) narrows the class of offenders subject to the enhanced penalty by excluding accomplices from the operation of the statute, and thus is constitutional.
2. The Ohio Legislature has manifested a clear intent to provide an enhanced penalty to one found guilty of both aggravated murder and one of the several felony specifications and, as such, there is no double jeopardy violation.
3. Consecutive sentences may be imposed for aggravated murder and aggravated burglary, even though the aggravated burglary was the underlying felony used to establish the aggravated murder.
The defendant-appellant, Ernest Gene Guyton, Jr., appeals his convictions for aggravated murder with a specification of aggravated burglary, and aggravated burglary. This court affirms the convictions.
On April 12, 1983, the victim left her apartment to go shopping. While she was out, Guyton broke into her apartment to commit a theft offense. When the victim returned Guyton was still there. The victim was severely beaten and then strangled to death. An examination of the victim's body revealed two distinct bite marks on her abdomen.
Guyton pled guilty to aggravated murder, the specification under R.C. 2929.04(A)(7), and aggravated burglary. He received consecutive sentences of life imprisonment with eligibility for parole after serving thirty years for aggravated murder, and imprisonment for seven to twenty-five years for aggravated burglary.
Assignment of Error I
"The court erred in accepting appellant's pleas of guilty in the following respects:
"A. A single judge accepted a plea of guilty to the charge and the specification and in so doing should have made an independent judgment as to whether or not the specification should have been dismissed pursuant to Criminal Rule 11(C)(3); and,
"B. A three judge panel accepted a plea of guilty to the charge and the specification yet failed to make a specific determination as to whether or not the offense appellant pled guilty to should be determined to be a lesser offense; i.e., aggravated murder without a specification."
On October 31, 1983, Guyton pled guilty before a single judge to aggravated murder, the specification, and aggravated burglary. On December 9, 1983, he renewed his guilty pleas before a three-judge panel. Guyton first argues that neither the single judge nor the three-judge panel made an
independent determination on his motion to dismiss the specification.
However, the record reveals that the motion to dismiss the specification [18 Ohio App.3d 102] was considered by both the single judge and the three-judge panel. On October 24, 1983, the single judge held a hearing to consider the first such motion. That motion was denied by a journal entry filed on October 25, 1983. The record further reveals that the three-judge panel considered Guyton's second motion to dismiss the specification at a hearing held on December 9, 1983. That motion, too, was denied. It was journalized on December 13, 1983. Therefore, this argument is clearly without merit.
Guyton next argues that both the single judge and the three-judge panel erred by denying his motion to dismiss the specification. Essentially, Guyton argues that the facts in this case established that the mitigating circumstances outweighed the aggravating circumstances. Thus, the trial court should have dismissed the specification, pursuant to Crim.R. 11(C)(3).
A guilty plea constitutes a complete admission of a defendant's guilt. Crim.R. 11(B)(1); and State v. Tarleton (Dec. 24, 1975), Wayne App. No. 1399, unreported. The determination of whether the specification should be dismissed is a factual one. Since Guyton pled guilty to the specification, he cannot raise the issue of factual guilt on appeal. State v. Wilson (1979), 58 Ohio St.2d 52, 388 N.E.2d 745 [12 O.O.3d 51].
Finally, Guyton argues that he was never found guilty of the specification. However, the judgment entry of December 14, 1983, issued by the three-judge panel, expressly found Guyton guilty of the specification. Accordingly, this assignment of error is overruled.
Assignment of Error II
"The court erred in failing to declare the specification in Ohio Revised Code Section 2929.04(A)(7) unconstitutional as applied to appellant."
Murder under R.C. 2903.02 carries a prison term of fifteen years to life. R.C. 2929.02(B). Aggravated murder without a specification under R.C. 2903.01 carries a penalty of twenty years to life. R.C. 2929.03(A). Finally, aggravated murder with a specification carries a penalty of death, thirty years to life, or twenty years to life. R.C. 2929.03(C)(2).
In this case, Guyton killed the victim while committing the felony of aggravated burglary. He was convicted of aggravated murder under R.C. 2903.01(B), which provides:
"No person shall purposely cause the death of another while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit * * * aggravated burglary * * *."
He was also found guilty of the specification under R.C. 2929.04(A)(7), which provides:
"The offense was committed while the offender was committing, attempting to commit, or fleeing immediately after committing or attempting to...
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