Court News Ohio
Court News Ohio
Court News Ohio

Tuesday, July 7, 2020

State of Ohio v. Adam Bowers, Case No. 2019-1282
First District Court of Appeals (Hamilton County)

State of Ohio v. Shawn M. Grate, Case No. 2018-0968
Ashland County Common Pleas Court

State of Ohio v. David C. Kinney, Case No. 2019-1103
Seventh District Court of Appeals (Belmont County)


Did Court Have Discretion to Impose 25-Years-to-Life Sentence in Child Rape Case?

State of Ohio v. Adam Bowers, Case No. 2019-1282
First District Court of Appeals (Hamilton County)

ISSUES:

  • Does a court engage in unconstitutional fact-finding when it finds that force was used during the rape of a child under 10?
  • Does a court that sentences an offender to a term of 25 years to life for a conviction of raping a child under the age of 10 need to make an express finding of force when the record contains evidence of force?

BACKGROUND:
Adam Bowers was charged in Hamilton County with rape and gross sexual imposition involving a child, beginning when the child was 5 years old. In November 2014, a jury convicted Bowers of the crimes. The trial court sentenced him to 25 years to life for rape and 36 months for gross sexual imposition, to run concurrently.

Bowers appealed to the First District Court of Appeals, which in March 2016 upheld the convictions, but reversed the sentence on the rape offense. The First District returned the case for resentencing because the trial court had imposed a sentence based on an offense for which he wasn’t convicted. The trial court resentenced Bowers to 25 years to life, believing that it had to impose either life without parole or 25 years to life. Bowers appealed, arguing his sentence should be 15 years to life based on R.C. 2971.03(B)(1).

In January 2018, the First District again overturned his rape sentence, stating that the trial court had made a finding of force. Based on R.C. 2971.03(B)(1), a 25-years-to-life sentence is permissible with the finding of force, the appeals court concluded. However, the First District ruled that the trial court wrongly concluded that 15 years to life wasn’t an option under the law. On remand, the lower court considered the 15-year and 25-year options, concluding the 25-years-to-life sentence was appropriate.

Appeals Court Overturns Its Second Ruling in Case
Again, Bowers appealed, and the First District reversed its 2018 decision. The appellate court stated that once the trial court determined a life-without-parole sentence wasn’t appropriate, R.C. 2971.03(B)(1) governed the length of his sentence. For an offender convicted of the rape of a child under age 10, the minimum sentence is 15 years under the statute. If the offender purposely compelled the victim by force or threat of force, the minimum is 25 years. The First District this time concluded the jury hadn’t made a finding of force, so the trial court could sentence Bowers to 15 years to life, but not 25 years to life. The appellate court returned the case to the trial court for resentencing.

The Hamilton County Prosecutor’s Office appealed the decision to the Ohio Supreme Court, which accepted the case. To comply with state directives during the COVID-19 pandemic, the Court will hear the appeal via videoconference.

State Argues Trial Court Had Option to Impose 25-Year Minimum
The prosecutor’s brief discusses two U.S. Supreme Court decisions – Apprendi v. New Jersey (2000) and Alleyne v. United States (2013). The cases held that facts that increase the mandatory minimum sentence for an offense must be submitted to a jury and found beyond a reasonable doubt. However, the prosecutor notes, the cases emphasized that judges are permitted to exercise discretion when imposing a sentence within a range allowed by statute.

A judicial finding under R.C. 2971.03(B)(1)(c) that Bowers used force didn’t improperly elevate the minimum sentence the court could impose, the prosecutor argues. Instead, the prosecutor maintains, it was one of the options the judge could choose during sentencing. Once the trial court decided not to impose life without parole, it could sentence Bowers to either 15 years to life or 25 years to life under the statute, the prosecutor states.

The office also contends that a trial court imposing 25 years to life isn’t required to make an express finding that force was used. The office maintains the legislature could have required such a finding by trial courts, but it didn’t. Quoting Ohio Supreme Court decisions, the office’s brief states that it’s nearly impossible to imagine a child rape that doesn’t involve force, particularly at young ages. Detailing some of the case specifics from the record, the prosecutor argues the evidence of force in this case “was overwhelming” and supports a finding of force for a 25-years-to-life sentence.

Sentencing Provisions for Certain Rape Charges
R.C. 2971.03(B)(1) states:

“[I]f the court does not impose a sentence of life without parole when authorized pursuant to division (B) of section 2907.02 of the Revised Code, the court shall impose upon the person an indefinite prison term consisting of one of the following:

(a) Except as otherwise required in division (B)(1)(b) or (c) of this section, a minimum term of ten years and a maximum term of life imprisonment.
(b) If the victim was less than ten years of age, a minimum term of fifteen years and a maximum of life imprisonment.
(c) If the offender purposely compels the victim to submit by force or threat of force, or if the offender previously has been convicted of or pleaded guilty to violating division (A)(1)(b) of section 2907.02 of the Revised Code or to violating an existing or former law of this state, another state, or the United States that is substantially similar to division (A)(1)(b) of that section, or if the offender during or immediately after the commission of the offense caused serious physical harm to the victim, a minimum term of twenty-five years and a maximum of life imprisonment.”

Sentencing Provisions for Certain Rape Charges
R.C. 2971.03(B)(l) states:

“[I]f the court does not impose a sentence of life without parole when authorized pursuant to division (B) of section 2907.02 of the Revised Code, the court shall impose upon the person an indefinite prison term consisting of one of the following:

(a) Except as otherwise required in division (B)(l)(b) or (c) of this section, a minimum term of ten years and a maximum term of life imprisonment.
(b) If the victim was less than ten years of age, a minimum term of fifteen years and a maximum of life imprisonment.
(c) If the offender purposely compels the victim to submit by force or threat of force, or if the offender previously has been convicted of or pleaded guilty to violating division (A)(1)(b) of section 2907.02 of the Revised Code or to violating an existing or former law of this state, another state, or the United States that is substantially similar to division (A)(1)(b) of that section, or if the offender during or immediately after the commission of the offense caused serious physical harm to the victim, a minimum term of twenty-five years and a maximum of life imprisonment.”

Offender Counters that Jury Must Make Force Finding for Increased Sentence
Bowers argues Alleyne applies to the interpretation of R.C. 2971.03(B)(l). Nothing in the indictment alleged that Bowers compelled the victim by force or threat of force, and the jury made no specific finding of force on its verdict form, his brief states. As a result, he contends, the trial court had no basis for imposing the 25-years-to-life sentence in (B)(1)(c) unless the court made its own finding. But a court making this finding is unconstitutional because that would increase the mandatory minimum sentence from 15 to 25 years without submitting the issue of force to the jury, Bowers maintains. He concludes that the trial court relied on facts not considered by the jury.

Bowers believes the legislature made clear that a finding of force or threat of force is necessary before imposing a 25-years-to-life sentence. If force is always presumed in the rape of a child under the age of 10, Bowers questions why the legislature included the option of 15-year minimum under (B)(1)(b). He maintains that the jury must make a “specific, express finding of force” for the 25-year minimum under (B)(1)(c) to be a sentencing option.

In addition, he asks, if force can be determined simply based on the evidence and without a stated finding, then why did the jury need to make a specific finding about the victim’s age, as it did in this case? The purpose of a jury’s finding about a victim’s age is to impose enhanced penalties under the law, just as with a finding of force, Bowers states. He maintains that the trial court wasn’t authorized to impose the 25-year minimum without the jury making a finding of force.

State Public Defeder Snubmits Brief
An amicus curiae brief supporting Bowers’ arguments was submitted by the Ohio Public Defender’s Office.

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing the State of Ohio from the Hamilton County Prosecutor’s Office: Judith Lapp, 513.946.3009

Representing Adam Bowers: Michaela Stagnaro, 513.241.0500

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In Death-Penalty Appeal, Man Who Killed Two Ashland Women Critiques His Trial Counsel’s Representation

State of Ohio v. Shawn M. Grate, Case No. 2018-0968
Ashland County Common Pleas Court

In 2018, Shawn Grate was convicted for the 2016 murders of two Ashland women and the kidnapping and rape of another local woman whom he befriended. Grate was sentenced to death. In this automatic death-penalty appeal to the Ohio Supreme Court, he makes 12 claims alleging legal errors during his trial.

Grate Moves from Trailers to Warehouse to Deserted House
From June to September 2016, Grate resided in Ashland County. After living without permission in a few trailers at a nearby state park and in an abandoned warehouse, Grate moved into an abandoned Ashland house.

He met Lori Svihlik in July 2016, and they began getting together every day for lunch. While playing badminton at Svihlik’s apartment complex, an acquaintance and neighbor of Svihlik’s – Elizabeth Griffith – came up and talked with them.

On Aug. 16, Griffith scheduled a bus to take her to a grocery store, then to a restaurant. That was the last day she was seen alive. Grate later reported to police that he went to Svihlik’s apartment that day, but she wasn’t home. Grate said Griffith approached him, and they played Yahtzee at Griffith’s apartment. They went to Grate’s house for some food, and Grate walked Griffith home.

Later that night, Grate said Griffith called him, saying she couldn’t sleep and suggested they play a card game at his house. He accepted. After they played cards, Grate told Griffith he was going to bed and she could sleep on the couch, but she kept talking, he said. Grate choked her to death, and placed her body in a bedroom closet.

Woman with Flat Tire Assisted by Grate
On the evening of Sept. 8, Stacey Stanley Hicks visited an Ashland nail salon. Afterward, Stanley Hicks got a flat tire. She was at a gas station and called her son, who arranged for a friend to drive there and help her. Grate also was at the gas station and volunteered to assist Stanley Hicks with the flat tire. Once the tire was fixed, the family friend left. Stanley Hicks bought Grate a cup of coffee to show her appreciation and offered to give him a ride home. At the house, she went inside with Grate.

Grate later told police that he criticized Stanley Hicks for flirting with the family friend at the gas station. When she denied flirting, he said he became angry. He told a psychologist before his trial that he became angry when Stanley Hicks asked him for $50 to pay a bill. Regardless of his explanation, Grate then sexually assaulted Stanley Hicks. Following the attack, she sprayed him with Mace, and he choked her to death. He placed her body in the basement of the house.

Grate Plans to Kidnap and Assault Friend
Grate said that he knew he would have to leave Ashland soon, which meant his friendship with Svihlik would end. He told police he planned to abduct her and impregnate her, so she would have his child. On Sept. 11, he and Svihlik got together as usual. A friend of Svihlik’s saw them walking and gave them a ride back to Svihlik’s apartment. During the ride, Svihlik and her friend discussed Griffith’s disappearance.

Afterward, Grate told Svihlik he had some hand-me-down clothes for her at his house, so they went there. When she said she was heading back to her apartment, Grate punched her in the face. He sexually assaulted her repeatedly, tied her to the mattress, and gave her pills. During the second night she was held at the house, she realized her restraints were loose. She called 911 early the morning of Sept. 13 while Grate was sleeping. Ashland police responded and arrested Grate.

Police obtained a search warrant for the house and found Griffith’s and Stanley Hicks’ bodies.

Grand Jury Indicts on Nearly Two-Dozen Counts
An Ashland County grand jury indicted Grate on 23 counts, including aggravated murder with death-penalty specifications, kidnapping, rape, gross abuse of a corpse, robbery, and burglary. In December 2016, Grate modified his not guilty plea to not guilty by reason of insanity (NGRI). A competency evaluation was conducted. The court accepted the plea but found him competent for trial. In April 2018, Grate’s lawyers withdrew his NGRI plea during a hearing he didn’t attend.

In May, Grate pled guilty to 15 of the counts. A few days later, the jury found Grate guilty on the other counts they considered. During the trial’s penalty phase, the jury recommended the death penalty, and the trial court sentenced Grate to death plus 90 years.

Because Grate was sentenced to death, he is entitled to an automatic appeal to the Ohio Supreme Court. To comply with state directives during the COVID-19 pandemic, the Court will hear the appeal via videoconference. Six of Grate’s 12 arguments claim ineffective assistance of counsel.

Offender and Prosecutor Debate Pretrial Publicity, Gag Order, and Juror Bias
Grate’s brief notes that the case drew extensive news coverage. Grate’s attorneys and the county prosecutor submitted a joint motion for a gag order. The trial judge approved the order, prohibiting the parties and their lawyers from speaking with the public or the news media about the case. The court also decided that 16 media outlets – from Ashland, Cleveland, Columbus, Mansfield, and Richland, as well as Chicago and New York – could attend, record, and cover the trial.

Grate contends that the gag order and the news media’s access worked against each other, because the attempt to avoid tainting the local jury pool was defeated by allowing the media into the courtroom even before jury selection began. His trial lawyers also failed to file requests for a change of venue and to prohibit the media from covering the pretrial proceedings, he argues. In addition, he maintains his lawyers didn’t block the selection of jurors who had a bias toward the death penalty or who recognized his victims.

The Ashland County Prosecutor’s Office, represented by the Ohio Attorney General’s Office, responds that although a few jurors had knowledge of the case because of the publicity, all said they could be fair. The record shows the voir dire process was fair and the potential jurors were screened for bias and removed if necessary, the state argues. The state also maintains that the rules governing attorney conduct in Ohio prohibit lawyers in a trial from making public commentary outside of court. Given that prohibition, the lack of an objection to a gag order that also aligns with the professional conduct required of Grate’s attorneys can’t be construed as ineffective assistance of counsel, the state argues.

Other Claims of Poor Legal Representation Detailed and Disputed
Grate lists makes many more assertions that his trial lawyers were ineffective. Among them, he states that his attorneys:

  • blamed him during a sidebar with the judge for pleading guilty to multiple charges in the middle of the trial
  • were silent about the admission of evidence of other “bad acts”
  • didn’t invest enough time pushing for an NGRI verdict
  • weren’t aggressive enough in their mitigation strategy
  • declined to cross-examine more than 30 of the state’s witnesses.

Grate concludes that because of all these errors, he was deprived of his constitutional rights to a fair trial and to due process.

The state disagrees, maintaining that:

  • the ultimate decision to plead to certain charges rested with Grate
  • inclusion of Grate’s own statements to police about prior incidents of low-level criminal acts weren’t unfairly prejudicial to him
  • both the defense and court psychologists determined he was sane
  • Grate was distant from his family, and most were unwilling to participate in the mitigation investigation
  • much of the testimony supplied by state’s witnesses at trial involved objective background facts
  • Grate fully confessed to all the crimes

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing Shawn M. Grate: Donald Hicks, 330.762.5500

Representing the State of Ohio from the Ohio Attorney General’s Office: Stephen Maher, 614.728.7055

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Is State Law that Bans Appeals of Life-without-Parole Sentences Unconstitutional?

State of Ohio v. David C. Kinney, Case No. 2019-1103
Seventh District Court of Appeals (Belmont County)

ISSUE: Does R.C. 2953.08(D)(3), which prevents the appeal of sentences imposed for aggravated murder or murder, violate Article I, Section 9 of the Ohio Constitution and the Eighth Amendment to the U.S. Constitution?

BACKGROUND:
On the afternoon of May 7, 2017, Brad McGarry and David Kinney met at McGarry’s Bellaire, Ohio, home. McGarry and Kinney, who was married to a woman with three children, were having an affair. Kinney later said that McGarry wanted him to leave his wife, but he wouldn’t. When they met on that May day, they argued. Kinney shot McGarry twice in the head and left. One of the shots killed McGarry.

Kinney drove to his home in Brilliant, Ohio. He, his wife, and his wife’s daughter returned to McGarry’s residence a few hours later for a prearranged visit to deliver a weed trimmer. The front door to the house was open, kitchen drawers and cupboards were open, and items were strewn around. They found McGarry’s body in the basement, and Kinney’s wife called 911. In Kinney’s discussion with police, he implicated a man McGarry had dated and two other men who had installed a fence at the house.

A few days later, police interviewed Kinney and his wife. Kinney initially denied being at McGarry’s house earlier on the day of McGarry’s death, telling varied accounts of his activities.

Man Tried and Sentenced to Life with No Parole
A Belmont County grand jury indicted Kinney on one count of aggravated murder and one count of murder, each with firearm specifications. Following a trial in January 2018, Kinney was found guilty of aggravated murder. The court sentenced him to life in prison without the possibility of parole plus three years for the connected gun specification.

Kinney appealed to the Seventh District Court of Appeals, raising 10 legal issues. The Seventh District upheld Kinney’s conviction and sentence. Kinney appealed to the Ohio Supreme Court, which agreed to review only the constitutionality of R.C. 2953.08(D)(3), which denies appeals of sentences imposed for aggravated murder or murder. To comply with state directives during the COVID-19 pandemic, the Court will hear Kinney’s case via videoconference.

Offender Argues Lack of Appeal Right Is Cruel and Unusual Punishment
Although R.C. 2953.08(D)(3) prohibits the right to appeal sentences for aggravated murder and murder, Kinney points out that sentences of 20, 25, or 30 years to life imposed for these crimes allow review by the Adult Parole Authority (APA) after a certain period of time. Only life-without-parole sentences are blocked from any review, Kinney maintains.

He argues that the Ohio Constitution offers greater protections than the U.S. Constitution’s Eighth Amendment, which prohibits cruel and unusual punishment. He asks the Court to look at Article 1, Sections 1 and 9 of the Ohio Constitution together. Like the U.S. Constitution, the Ohio Constitution’s Article 1, Section 9 prohibits the infliction of cruel and unusual punishments. Article 1, Section 1, however, draws directly from the country’s Declaration of Independence, Kinney notes. That section describes certain inalienable rights, including “enjoying and defending life and liberty” and “seeking and obtaining happiness and safety.”

Because a life-without-parole sentence under R.C. 2953.08(D)(3) “permanently separates an individual from the exercise of their inalienable right to defend one’s liberty without recourse to either an appellate judicial panel or the APA,” the statute is unconstitutional on its face and as applied to his case, Kinney’s brief states.

Offender Maintains Only Ohio Bans Appeals of Life-without-Parole Sentences
Although Kinney doesn’t argue his sentence is disproportionate to his crime under the Eighth Amendment, he examines whether there is a national consensus against this sentencing practice – an analysis used in challenges alleging cruel and unusual punishment. He – along with the Ohio Public Defender’s Office and the National Association of Criminal Defense Lawyers, which filed a joint amicus curiae brief in this case – maintain that the national consensus is in fact the opposite. Ohio is the only state that doesn’t offer meaningful appellate review of life-without-parole sentences, they state.

Kinney also contends that his personal characteristics, such as his age, family, and lack of any significant criminal history, weigh against such a harsh sentence. Nor is he beyond rehabilitation, he maintains. Noting that life in prison without parole is second only to death as a criminal penalty, he argues that he, and others in Ohio with the same sentence, should have at least the right to appeal the sentence, just as those with other felony sentences can appeal. He states that mitigating circumstances in his life and the unique nature of his offense support a 20- or 30-year sentence with the possibility of parole.

State Contends that Supreme Court Should Toss Case
The Ohio Attorney General’s Office maintains the Court should dismiss the case as improvidently accepted. R.C. 2953.08 begins with the language, “In addition to any other right to appeal and except as provided in division (D) of this section, ….” The attorney general questions whether this language permits appeals under other sections of the Revised Code, despite R.C. 2953.08(D)(3)’s prohibition. Specifically, the office’s brief mentions R.C. 2953.02, which creates a general right to appeal in criminal cases.

The attorney general stresses, though, that Kinney has never briefed, and no lower court has ruled on, that issue – although the attorney general would maintain that no other statute permits appeals of life-without-parole sentences. However, with insufficient briefing and no lower court opinion on a “difficult statutory question,” the attorney general’s brief suggests that the Court would “risk needlessly addressing a constitutional question” if it goes forward with this case.

State Asserts Murderers Have No Right to Appeal These Sentences
On the constitutional questions, however, the attorney general maintains that the Ohio Supreme Court has concluded prohibitions against cruel and unusual punishment in the federal and state constitutions ban only inhumane methods of punishment. The office also argues adult murderers don’t have a constitutional right to appeal their sentences of life without parole.

As far as procedural safeguards, such as the appeal right put in place in death-penalty cases, the attorney general’s brief counters:

“[A] sentence of life without the possibility of parole is never a disproportionate sentence for someone who, as an adult, knowingly takes a human life. Indeed, the U.S. Supreme Court has upheld the constitutionality of life sentences even as applied to non-violent crimes such as drug dealing. … And this Court held that consecutive sentences totaling to 134 years for a series of home-invasion robberies was constitutionally proportionate, since each individual sentence was within the permissible statutory range.”

The attorney general states that Kinney’s arguments based on the Ohio Constitution “fall flat.” Kinney is asking the Court to rule on the spirit, rather than the letter, of the state constitution, the attorney general argues. The office also contends that Kinney misunderstands the case decisions based on national consensus. Those rulings found that particular punishments are unconstitutional for specific classes of offenders, the office states, such as when the death penalty is imposed for the rape of an adult, or a juvenile is sentenced to death.

The attorney general adds that it may be a good idea to allow those sentenced to life without parole to appeal their sentences, but argues the U.S. and Ohio constitutions leave that decision to the General Assembly.

Parties Address Equal Protection Argument
The state public defender and the national legal group maintain that amendments made to Ohio’s sentencing laws no longer match what the General Assembly intended when it originally enacted them. At that time, there was only one sentence for a noncapital aggravated murder conviction – 20 years to life with possible parole. Now that there are four potential sentences for these convictions, prohibiting appeals has consequences that the legislature didn’t contemplate, the amicus groups argue.

Even if the lack of an appeal right isn’t an oversight, the law violates equal protection rights guaranteed by the state and federal constitutions, the groups contend. They point to State v. Noling (2016), in which the Ohio Supreme Court determined that a two-track appellate process for capital and noncapital defendants violated equal protection.

The attorney general responds that the Court shouldn’t consider the equal protection argument because it wasn’t accepted by the Court and wasn’t briefed.

Kathleen Maloney

Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.

Contacts
Representing David C. Kinney Jr.: Christopher Gagin, 304.232.6750

Representing the State of Ohio from the Attorney General’s Office: Benjamin Flowers, 614.466.8980

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