State v. Lomax, 1999-1113.

• Decision Date: 11 September 2002
• Docket Number: No. 1999-1113.,No. 1999-0889.,1999-1113.,1999-0889.
• Citation: 2002 Ohio 4453,774 N.E.2d 249,96 Ohio St.3d 318
• Parties: The STATE of Ohio, Appellee, v. LOMAX, Appellant.
• Court: Ohio Supreme Court

774 N.E.2d 249

96 Ohio St.3d 318

2002 Ohio 4453

The STATE of Ohio, Appellee, v. LOMAX, Appellant.

No. 1999-1113.

No. 1999-0889.

Supreme Court of Ohio.

Submitted May 7, 2002.

Decided September 11, 2002.

John E. Meyers, Sandusky County Prosecuting Attorney, Norman P. Solze and Ronald Mayle, Assistant Prosecuting Attorneys, for appellee.

Betty D. Montgomery, Attorney General, James V. Canepa and Norman E. Plate, Assistant Attorneys General, for appellee.

David H. Bodiker, Ohio Public Defender, Stephen A. Ferrell and Pamela J. Prude-Smithers, Assistant Public Defenders, Columbus, for appellant.

DOUGLAS, J.

{¶ 1} On June 21, 1996, the grand jury indicted appellant, Tazwell Lomax, on six counts relating to a murder and robbery that took place on June 13, 1996, in Fremont Ohio. Count One alleged aggravated murder with prior calculation and design in violation of R.C. 2903.01(A). Count Two alleged aggravated murder while committing or attempting to commit rape in violation of R.C. 2903.01(B). Count Three alleged aggravated murder in the course of an aggravated robbery in violation of R.C. 2903.01(B). Count Four of the indictment alleged voluntary manslaughter in violation of R.C. 2903.03. The fifth count alleged rape in violation of R.C. 2907.02. The sixth count alleged aggravated robbery in violation of R.C. 2911.01. Each of the first three counts carried three identical specifications. The first specification charged that the murder "was committed for the purpose of escaping detection, apprehension, trial or punishment." The second specification charged that the murder was perpetrated during the commission of or immediately after the commission of aggravated robbery. The third specification charged that appellant perpetrated the murder while committing or immediately after committing rape.

{¶ 2} Prior to trial, the state dismissed Count Two and all of its specifications, Count Five, and the rape specifications from Counts One and Three. Based upon the remaining allegations in Count One of the indictment, appellant would have been, if found guilty, subject to the death penalty. The case then proceeded to trial, where appellant waived his right to a trial by jury and requested, pursuant to R.C. 2945.06, trial by a three-judge panel.

{¶ 3} On May 7, 1997, based upon the evidence presented at trial, the three-judge panel found appellant guilty of aggravated murder under Count Three and guilty of committing aggravated murder while committing or immediately after committing aggravated robbery under the second specification to Count Three. Appellant was also found guilty of aggravated robbery under Count Six. The three-judge panel found appellant not guilty of aggravated murder with prior calculation and design under Count One, not guilty of voluntary manslaughter under Count Four, and not guilty of the first specification to Count Three.

{¶ 4} Following the court's May 7, 1997 written decision denominated by the three judge panel as "verdicts," and immediately prior to the penalty phase of the trial, appellant moved the court to sentence him in accordance with R.C. 2929.03(A), which provides that if the count in the indictment charging aggravated murder does not contain one or more specifications of aggravating circumstances listed in R.C. 2929.04(A), then following a verdict of guilty of the charge of aggravated murder, the trial court shall impose on the offender a sentence of life imprisonment with parole eligibility after serving twenty years of imprisonment.

{¶ 5} The pertinent portion of R.C. 2929.04 provides:

{¶ 6} "(A) Imposition of the death penalty for aggravated murder is precluded, unless one or more of the following is specified in the * * * count in the indictment * * *:

{¶ 7} "* * *

{¶ 8} "(7) 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." (Emphasis added.)

{¶ 9} Appellant argued that he was found guilty of Count Three but not guilty of Count One. Since Count Three failed to charge a required element of R.C. 2929.04(A)(7) — that appellant was either the principal offender in the murder or that he had committed the murder with prior calculation and design — appellant argued that he was convicted of nondeath-eligible offenses only. In response to appellant's motion, the state moved the court for leave to amend the indictment to include the appropriate R.C. 2929.04(A)(7) language in Count Three so that the death penalty might be imposed for the conviction on that count.

{¶ 10} On May 8, 1997, the court entered a judgment granting appellant's motion to be sentenced in accordance with R.C. 2929.03(A) and denying the state's motion to amend the indictment. The trial court in denying the motion to amend stated, "If the Grand Jury had selected `prior calculation and design' for the specification at issue, the final verdict on Count One shows that the three-judge panel would have found Defendant not guilty of the specification," and in addition, the trial court could not "infer that the Grand Jury's intention was to indict the Defendant as a `principal offender.'" Therefore, since there were no death-penalty specifications for aggravated murder, the trial court agreed with appellant that he was to be sentenced in accordance with R.C. 2929.03(A).

{¶ 11} On May 14, 1997, the state appealed the trial court's denial of the motion to amend Count Three of the indictment. The state claimed to have an appeal as of right pursuant to R.C. 2945.67(A) because the trial court had dismissed a portion of the indictment. In the alternative, the state requested leave to appeal. The court of appeals denied the state's motion to appeal as of right, finding that "the trial court's decision did not dismiss any portion of the indictment; rather, it merely found the specification was insufficient to invoke the death penalty." However, the court of appeals granted the state's motion for leave to appeal. While the appeal regarding Count Three was pending, the trial court proceeded to sentence appellant for aggravated robbery to a prison term of not less than ten years and not more than twenty-five years. Appellant appealed the aggravated robbery conviction. The court of appeals stayed that appeal until the other issues relating to the state's appeal were resolved.

{¶ 12} Over a year later, on June 26, 1998, the court of appeals reversed the trial court's denial of the state's motion to amend the indictment, remanded the case, and ordered the trial court to permit the amendment of Count Three of the indictment to include the "omitted" language of R.C. 2929.04(A)(7).¹ The court of appeals also ordered the trial court to conduct a mitigation hearing and proceed to sentencing in accordance with R.C. 2929.03 without first permitting the three-judge panel to consider the issue of whether appellant was the principal offender. Thus, the court of appeals implicitly ordered the trial court to find that appellant was the principal offender in the aggravated murder.

{¶ 13} On March 25, 1999, the three-judge panel, pursuant to the order of the court of appeals, amended specification two of Count Three of the indictment so as to include the "principal offender" Ianguage of R.C. 2929.04(A)(7). After conducting the mitigation hearing, the panel determined that the aggravating circumstances of the offense outweighed the mitigating factors and sentenced appellant to death.

{¶ 14} On April 20, 1999, appellant appealed his aggravated murder conviction and death sentence to the Sandusky County Court of Appeals. The court of appeals dismissed that appeal as well as the appellant's previously stayed appeal of the aggravated robbery conviction, finding that, pursuant to Section 2(B)(2), Article IV, Ohio Constitution, it did not have jurisdiction to accept an appeal in a death-penalty case.

{¶ 15} On May 7, 1999, appellant filed a notice of appeal in case No. 1999-0889 to this court, appealing from the trial court's judgment entry and opinion convicting him of aggravated murder and aggravated robbery and sentencing him to death. On June 15, 1999, appellant filed a notice of appeal in case No. 1999-1113 from the court of appeals' dismissal of his appeal to that court of his convictions and death sentence. Case Nos. 1999-0889 and 1999-1113 have been consolidated for this appeal. Appellant now appeals to this court as a matter of right.

{¶ 16} Appellant has presented fifteen propositions of law for our consideration. While not presented as a proposition of law, the threshold issue in this case is whether, in light of the requirements of R.C. 2945.67(A), the court of appeals had subject-matter jurisdiction to review the trial court's May 8, 1997 judgment entry. We believe that it did not.

{¶ 17} Since subject-matter jurisdiction cannot be waived and may be raised by this court sua sponte, appellant's failure to raise this argument on appeal does not foreclose this court's authority to review the issue.² State ex rel. Bond v. Velotta Co. (2001), 91 Ohio St.3d 418, 419, 746 N.E.2d 1071.

{¶ 18} In order to determine whether the court of appeals had subject-matter jurisdiction to accept the state's May 14, 1997 appeal, we must review the requirements of R.C. 2945.67(A).

{¶ 19} R.C. 2945.67(A), which governs appeals by the state in criminal cases, provides:

{¶ 20} "A prosecuting attorney * * * may appeal as a matter of right any decision of a trial court in a criminal case * * * which decision grants a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, or a motion for the return of seized property or grants post...