State v. Grevious

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

.]




                                           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. 

            THE STATE OF OHIO, APPELLEE, v. GREVIOUS, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
     may be cited as State v. Grevious, Slip Opinion No. 

.]
Criminal law—Aggravated murder—Appeals—R.C. 2953.08(D)(3)—The portion
        of the judgment of the court of appeals relating to the constitutionality of
        R.C. 2953.08(D)(3) is affirmed—Because R.C. 2953.08(D)(3) does not
        preclude an appellate court from reviewing a constitutional challenge to an
        aggravated-murder sentence on appeal, the court of appeals erred by
        declining to review the merits of appellant’s constitutional challenges to his
        aggravated-murder sentence—Court of appeals’ judgment affirmed in part
        and reversed in part and cause remanded to the court of appeals.
 (No. 2019-0912—Submitted December 7, 2021—Decided December 9, 2022.)
                APPEAL from the Court of Appeals for Butler County,
                         No. CA2018-05-093, 

.
                                   __________________
                             SUPREME COURT OF OHIO




       O’CONNOR, C.J., announcing the judgment of the court.
       {¶ 1} In this discretionary appeal, we consider the constitutionality of R.C.
2953.08(D)(3), which states: “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.” Recently, in State v. Patrick, 

,

, 

, we held that R.C. 2953.08(D)(3) does not
preclude an appellate court from reviewing an offender’s sentence for aggravated
murder when the offender raises a constitutional claim regarding that sentence on
appeal. Prior to this court’s decision in Patrick, the Twelfth District Court of
Appeals declined to review appellant Michael Grevious’s challenges to his
aggravated-murder sentence based on R.C. 2953.08(D)(3) and concluded that the
provision was not unconstitutional for precluding appellate review of a sentence for
aggravated murder. 

. Grevious now asks this court to
declare R.C. 2953.08(D)(3) unconstitutional on its face and as applied to him under
the Eighth and Fourteenth Amendments to the United States Constitution. We
decline to do so, and accordingly, we affirm the portion of the Twelfth District’s
judgment relating to the constitutionality of R.C. 2953.08(D)(3). However, in light
of our decision in Patrick, we reverse the portion of the court of appeals’ judgment
concluding that it lacked authority to review the merits of Grevious’s constitutional
challenges to his aggravated-murder sentence, and we accordingly remand the case
to the court of appeals for it to consider the merits of those challenges.
                             I. Relevant Background
       {¶ 2} R.C. 2929.03 sets forth the procedures for sentencing a defendant for
aggravated murder. To face the possibility of a death sentence, a defendant must
be charged with aggravated murder and at least one specification for an aggravating
circumstance. R.C. 2929.03(A) and (B). Here, the state charged Grevious in the
Butler County Court of Common Pleas with aggravated murder and the aggravating
circumstance of committing the offense for hire. A jury ultimately found Grevious




                                          2
                                January Term, 2022




guilty of both aggravated murder and the murder-for-hire specification. The facts
underlying Grevious’s offenses are not relevant to resolving this appeal and will
not be addressed herein, but they are set forth in the court of appeals’ decision
below, see 

.
       {¶ 3} If a defendant is found guilty of both aggravated murder and a
specification for an aggravating circumstance, as Grevious was here, then absent
the applicability of certain exceptions, the defendant must be sentenced to either
death or one of three life sentences, R.C. 2929.03(C)(2)(a)(i). Because Grevious’s
case was tried by a jury, R.C. 2929.03(C)(2)(b)(ii) required his aggravated-murder
sentence to also be determined by the jury.        In the sentencing phase of an
aggravated-murder case, the jury considers evidence and testimony relevant to the
aggravating circumstances and any mitigating factors set forth in R.C. 2929.04(B).
R.C. 2929.03(D)(1). To recommend the death penalty, the jury must unanimously
find “by proof beyond a reasonable doubt, that the aggravating circumstances * * *
outweigh the mitigating factors.” R.C. 2929.03(D)(2). Absent such a finding, the
jury must recommend that the defendant be sentenced to one of the following life
sentences: (1) life imprisonment without parole, (2) life imprisonment with parole
eligibility after serving 25 years, or (3) life imprisonment with parole eligibility
after serving 30 years. R.C. 2929.03(D)(2)(a). Notably, “the court shall impose
the sentence recommended by the jury upon the offender.” (Emphasis added.) R.C.
2929.03(D)(2)(c).
       {¶ 4} Here, the jury did not unanimously find by proof beyond a reasonable
doubt that the aggravating circumstance of Grevious committing the aggravated
murder for hire outweighed the mitigating factors, and therefore, it could not
recommend that the court impose a death sentence on Grevious. The jury selected
from the three available sentencing options noted above and recommended that the
trial court sentence Grevious to life imprisonment without the possibility of parole.




                                         3
                             SUPREME COURT OF OHIO




Pursuant to R.C. 2929.03(D)(2)(c), the trial court imposed the recommended
sentence.
       {¶ 5} Grevious appealed his sentence, challenging R.C. 2953.08(D)(3) on
constitutional grounds for unduly limiting appellate review of his sentence for
aggravated murder. The court of appeals concluded that R.C. 2953.08(D)(3) does
not unconstitutionally “distinguish between defendants convicted of lesser crimes
and those who commit aggravated murder with the potential for capital
punishment,” 

, because the General Assembly “has a
legitimate interest in treating the worst offenders differently than other felony
offenders,” id. at ¶ 69. It therefore determined that R.C. 2953.08(D)(3) does not
violate an offender’s equal-protection rights and is constitutional. Id. at ¶ 70. As a
result, the court applied R.C. 2953.08(D)(3), declined to review the merits of
Grevious’s claims regarding his sentence, and affirmed his sentence. Id.
       {¶ 6} We initially declined to accept Grevious’s discretionary appeal. See

, 

, 

. However, on reviewing
Grevious’s motion for reconsideration, we accepted the appeal on the following
proposition of law and held the case for our decision in State v. Kinney, 

, 

, 

:


               R.C. 2953.08(D)(3) must be declared unconstitutional for
       the reason that it violates appellant’s and other similarly situated
       citizens’ due process and equal protection rights under the Eighth
       and Fourteenth Amendments to the United States Constitution by
       prohibiting appellate courts from reviewing sentences imposed for
       aggravated murder.




                                          4
                                January Term, 2022




See 

, 

, 

. Following our
decision in Kinney, we lifted the hold and stay of briefing. 

,

, 

.
                                     II. Analysis
       {¶ 7} Grevious     requests     that   we    declare    R.C.   2953.08(D)(3)
unconstitutional on its face and as applied to him.           He contends that R.C.
2953.08(D)(3) violates his and similarly situated offenders’ due-process and equal-
protection rights and constitutes cruel and unusual punishment under the Eighth
and Fourteenth Amendments to the United States Constitution and the federal
provisions’ counterparts under the Ohio Constitution because the statutory
provision denies appellate review to offenders, like Grevious, with noncapital
sentences for aggravated murder while providing offenders sentenced for lesser
felonies with the right to appeal their sentences under R.C. 2953.08.
       {¶ 8} Grevious argues that because of R.C. 2953.08(D)(3), the court of
appeals refused to consider the merits of his appeal—specifically, his arguments
that his sentence is contrary to law and unconstitutional.              Although he
acknowledges that in light of this court’s decision in Patrick, R.C. 2953.08(D)(3)
does not preclude appellate review of his sentence on constitutional grounds, he
emphasizes that R.C. 2953.08(D)(3) still bars him and offenders like him from
raising nonconstitutional sentencing claims such as that a sentence is contrary to
law. This bar on appellate review for aggravated-murder offenders with noncapital
sentences, Grevious maintains, eliminates any “check on a trial court’s discretion
and possible abuse” and promotes “gross abuse of discretion in sentencing,”
especially in cases like his, in which the trial court, he alleges, provided the jury
with no guidance regarding the overriding purposes of felony sentencing set forth
in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12.




                                          5
                             SUPREME COURT OF OHIO




                              A. Standard of Review
       {¶ 9} As always, we begin our review of a statute with the presumption that
it is constitutional. See R.C. 1.47. For this court to find R.C. 2953.08(D)(3)
unconstitutional, Grevious must establish “beyond a reasonable doubt that the
legislation and constitutional provisions are clearly incompatible,” State ex rel.
Dickman v. Defenbacher, 

, 

 (1955), paragraph one
of the syllabus. Further, “doubts regarding the validity of a legislative enactment
are to be resolved in favor of the statute.” State v. Gill, 

, 

 (1992).
                                 B. R.C. 2953.08
       {¶ 10} Before turning to the merits of Grevious’s arguments, we first review
the statutory scheme challenged here. R.C. 2953.08 permits a criminal defendant
to appeal his or her felony sentence on certain grounds: “In addition to any other
right to appeal and except as provided in division (D) of this section, a defendant
who is convicted of or pleads guilty to a felony may appeal as a matter of right the
sentence imposed upon the defendant [on certain grounds].” R.C. 2953.08(A). As
we recently noted in Patrick, those certain grounds by which a defendant may
appeal his or her sentence are set forth in R.C. 2953.08(A) and (C):


               R.C. 2953.08(A)(1) and (5) describe the grounds for appeal
       if certain sentences are imposed pursuant to R.C. 2929.14 or
       2929.142. R.C. 2953.08(A)(2) applies to sentences including a
       prison term imposed for a fourth- or fifth-degree felony or a felony
       drug offense that could be subject to only a community-control
       sanction under R.C. 2929.13(B). R.C. 2953.08(A)(3) applies to
       sentences imposed pursuant to R.C. 2971.03. R.C. 2953.08(C)
       applies to consecutive sentences imposed under R.C. 2929.14(C)(3)
       and certain additional sentences imposed under R.C. 2929.14.




                                         6
                                  January Term, 2022




Patrick, 

, 

, 

. R.C.
2953.08(A)(4) also provides an avenue for a defendant to appeal a felony sentence
on the basis that the sentence “is contrary to law.”
       {¶ 11} R.C. 2953.08(D)(3), however, states that 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.” (Emphasis added.)
Nestled within that limited statutory range is the statute under which Grevious was
sentenced—R.C. 2929.03. This court has previously held that R.C. 2953.08(D) is
unambiguous and “clearly means what it says”: a sentence imposed for aggravated
murder or murder “cannot be reviewed.” State v. Porterfield, 

,

, 

. Porterfield, however, did not involve a
constitutional challenge to the defendant’s sentence or to R.C. 2953.08(D) itself.
       {¶ 12} More recently, this court decided in Patrick that R.C. 2953.08(D)(3)
does not preclude appellate review of a constitutional challenge to a sentence for
aggravated murder. 

. We explained that R.C. 2953.08 clearly “does
not establish the only avenue by which a party may appeal a sentence” (emphasis
sic), 

, and that, in fact, R.C. 2953.02 also provides a statutory right
to appeal a criminal sentence, 

. And we concluded that “R.C.
2953.08(D)(3)’s statutory language makes clear that it does not preclude other
potential avenues of appellate review,” such as an appeal of an aggravated-murder
sentence based on constitutional grounds, because R.C. 2953.08(D)(3)’s preclusive
language “demonstrates that its scope is limited to the bases of appeal described in
R.C. 2953.08,” 

.
              C. Grevious has standing to challenge R.C. 2953.08
       {¶ 13} The parties agree that the sole issue before this court is whether R.C.
2953.08(D)(3) is constitutional. Nevertheless, the state argues that Grevious lacks
standing to challenge that provision because “even if th[is] Court provided the




                                          7
                              SUPREME COURT OF OHIO




requested relief and declared [R.C. 2953.08(D)(3)] unconstitutional it would have
no bearing on the sentencing claims Grevious actually brought in the Court of
Appeals.” We disagree.
       {¶ 14} To have standing to challenge the constitutionality of a statute, a
party must have a direct interest in the statute of such a nature that his or her rights
will be adversely affected by its enforcement. State v. Bloomer, 

, 

, 

, citing Anderson v. Brown, 

, 

 (1968), paragraph one of the syllabus. Generally, this
means that a party challenging a statute on the basis of equal protection must be a
member of the class that the statute allegedly discriminates against and must have
been injured by it. N. Canton v. Canton, 

, 

, 

, citing State ex rel. Harrell v. Streetsboro City School Dist. Bd. of
Edn., 

, 

 (1989), and Palazzi v. Estate of
Gardner, 

, 

 (1987), syllabus.
       {¶ 15} It is true that since we accepted Grevious’s discretionary appeal, this
court has issued decisions that have clarified the landscape of appellate review
under R.C. 2953.08. See, e.g., State v. Jones, 

, 

,

; Patrick, 

, 

, 

.
That fact, however, does not impact Grevious’s standing to challenge R.C.
2953.08(D)(3) on constitutional grounds; rather, those decisions may relate to the
merits of Grevious’s constitutional challenge to R.C. 2953.08(D)(3). Regardless of
the success of his appeal here, Grevious has been adversely affected by the
enforcement of R.C. 2953.08(D)(3), as the court of appeals held that pursuant to
that provision, his aggravated-murder sentence may not be reviewed on appeal.

. The court denied review of his sentencing claims
because he is a member of a class that R.C. 2953.08(D)(3) allegedly discriminates
against—offenders with noncapital sentences for aggravated murder. Id. at ¶ 68.
Accordingly, Grevious’s injury is his inability to obtain appellate review of his




                                           8
                                January Term, 2022




aggravated-murder sentence under R.C. 2953.08(D)(3), and the relief he now seeks
is this court’s declaration that the same provision is unconstitutional, so that it no
longer precludes review of his sentence. See State v. Arnold, 

,

, 

 (lead opinion) (explaining that standing
involves the right of a party who has suffered actual injury to seek redress from the
court). And whether R.C. 2953.08(D)(3) indeed bars any appellate review of
aggravated-murder sentences in violation of Grevious’s due-process, equal-
protection, and Eighth Amendment rights involves the merits of his constitutional
challenges. See Moore v. Middletown, 

, 

, 

 (“It is well settled that standing does not depend on the merits of
the [party’s] contention that particular conduct is illegal or unconstitutional”).
Therefore, we are not persuaded by the state’s argument that Grevious lacks
standing. And with that, we turn to the constitutionality of R.C. 2953.08(D)(3).
                                D. Equal protection
       {¶ 16} Although Grevious now purports to challenge the constitutionality
of R.C. 2953.08(D)(3) under both the federal and Ohio Constitutions, he challenged
the provision under only the federal Constitution in the court of appeals.
Accordingly, we focus our analysis solely on the federal Constitution.
       {¶ 17} The Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution provides that “[n]o State shall * * * deny to any person
within its jurisdiction the equal protection of the laws.” In essence, the Equal
Protection Clause requires the government to treat individuals in a manner similar
to others in like circumstances, see Cleburne v. Cleburne Living Ctr., 

, 

, 

 (1985), and “prohibits treating similar groups
differently based on criteria that are unrelated to the purpose of the law,” State v.
Noling, 

, 

, 

, citing Johnson
v. Robison, 

, 

, 

 (1974). Importantly,
the Equal Protection Clause should not be applied to “ ‘deny to States the power to




                                          9
                             SUPREME COURT OF OHIO




treat different classes of persons in different ways.’ ” Eisenstadt v. Baird, 

, 

, 

 (1972), quoting Reed v. Reed, 

, 

, 

 (1971).
       {¶ 18} A party may challenge a statute as being unconstitutional on its face
and as applied to a particular set of facts. See Ams. for Prosperity Found. v. Bonta,
___ U.S. ___, ___, 

, 

 (2021). The former
method—facial challenge—is the more difficult challenge on which to succeed,
because the challenger must establish that there exists no set of circumstances under
which the statute would be valid. See United States v. Salerno, 

,

, 

 (1987). In an as-applied challenge, on the other
hand, the challenger contends that the statute’s application violates his or her
constitutional rights under the circumstances of a particular case. See United States
v. Christian Echoes Natl. Ministry, Inc., 

, 

, 

 (1972). Grevious argues that R.C. 2953.08(D)(3) is unconstitutional
both on its face and as applied.
       {¶ 19} Since neither party argues that a fundamental right or a suspect class
is implicated in this case, the correct standard for this court to apply is that of
rational basis. See McCrone v. Bank One Corp., 

, 2005-Ohio-
6505, 

; Estelle v. Dorrough, 

, 

, 

 (1975) (“this Court in dealing with equal protection challenges to state
regulation of the right of appeal in criminal cases ha[s] applied the traditional
rational-basis test”). The rational-basis standard is the test most deferential to the
legislature, see Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, 

, 

, 

, ¶ 32, and it requires a court to uphold a
legislative classification if the classification is rationally related to a legitimate
governmental purpose, Roseman v. Firemen & Policemen’s Death Benefit Fund,

, 

 (1993); 

, citing Clark v.
Jeter, 

, 

, 

 (1988).              Stated




                                         10
                                January Term, 2022




differently, the Equal Protection Clause requires that “in defining a class subject to
legislation, the distinctions that are drawn have ‘some relevance to the purpose for
which the classification is made.’ ” Rinaldi v. Yeager, 

, 

, 

 (1966), quoting Baxstrom v. Herold, 

, 

, 

 (1966). The party challenging the constitutionality of
the statute bears “the burden to negate ‘any reasonably conceivable state of facts
that could provide a rational basis for the classification.’ ” 

, quoting
Fed. Communications Comm. v. Beach Communications, Inc., 

,

, 

 (1993).
                    1. The parties’ equal-protection arguments
       {¶ 20} Grevious contends that “[b]ecause R.C. 2953.08(D)(3) bars any
[appellate] review of aggravated murder sentences,” it deprives offenders with
noncapital sentences for aggravated murder, like him, of the equal protection of the
law. He asserts that R.C. 2953.08(D)(3) unconstitutionally distinguishes between
offenders with noncapital sentences for aggravated murder and offenders sentenced
for lesser felonies, the latter of which may appeal their sentences under R.C.
2953.08. More specifically, Grevious contends that R.C. 2953.08(D)(3), as applied
to him, bars appellate review of any claim that his noncapital sentence for
aggravated murder is contrary to law, while providing offenders sentenced for
lesser felonies with the right to have their nonconstitutional sentencing claims
reviewed under R.C. 2953.08. He maintains that the General Assembly could have
had no legitimate interest for making that distinction, especially given that
offenders “worse” than he, such as those sentenced to the death penalty for
aggravated murder, are afforded appellate review under R.C. 2929.05.
       {¶ 21} The state disagrees with Grevious and asserts that “it was entirely
rational for the General Assembly to exclude aggravated murder sentences” from
appellate review under R.C. 2953.08 because that statute “reflects a legislative plan
to provide limited appellate review of the sentencing court’s compliance with




                                         11
                              SUPREME COURT OF OHIO




[Am.Sub.S.B. No. 2]’s specific statutory sentencing requirements which apply only
to those classified felonies.” (Emphasis sic.) See 146 Ohio Laws, Part IV, 7136.
The state explains that unlike sentences for many classified felonies, no statutory
findings must be made before a trial court imposes a life-without-parole sentence
for aggravated murder. And in the state’s view, “R.C. 2953.08(D)(3) logically
reflects that distinction.”   Accordingly, the state emphasizes that aggravated-
murder offenders like Grevious are “not similarly situated to other felony offenders
when it comes to the gravity of their crimes and the procedures by which they are
sentenced.” (Emphasis sic.)
       {¶ 22} We must first clarify a few aspects of Grevious’s arguments. First,
at points in his briefing, Grevious seems to base his equal-protection claim also on
the distinction between offenders with noncapital sentences for aggravated murder
and offenders with death sentences for aggravated murder. But Grevious did not
raise this argument below, and therefore, it is beyond the scope of this appeal. See
State v. Wintermeyer, 

, 

, 

, ¶ 10
(“a party ordinarily may not present an argument on appeal that it failed to raise
below”).
       {¶ 23} Second, Grevious classifies himself as a member of the class of
offenders with noncapital sentences for aggravated murder who are barred from
appellate review under R.C. 2953.08, when in fact Grevious is a member of a much
narrower class. “The constitutional inquiry in an as-applied challenge is limited to
the [challenger’s] particular situation.” Women’s Med. Professional Corp. v.
Voinovich, 

, 193 (6th Cir.1997). As noted above, Grevious was
sentenced pursuant to R.C. 2929.03(D)(2)(a) and (c), which means that the jury,
after unanimously declining to recommend the death penalty, recommended one of
the three mandatory life-imprisonment terms permitted under the statute and that
the trial court was statutorily required to impose that recommended sentence. As a
result, our constitutional inquiry turns on whether R.C. 2953.08(D)(3), as applied




                                        12
                                 January Term, 2022




to Grevious’s particular situation—i.e., an offender sentenced for aggravated
murder pursuant to R.C. 2929.03(D)(2)(a) and (c)—deprives him of the equal
protection of the law.
        {¶ 24} And lastly, Grevious clearly acknowledges in portions of his briefing
that R.C. 2953.08 does not bar review of constitutional challenges to his sentence,
but he also states that “R.C. 2953.08(D)(3) bars any review of aggravated murder
sentences.” (Emphasis added.)         Consequently, we pause to reiterate that, as
discussed above, this court recently clarified that R.C. 2953.08 is not the only
means of appellate review of an aggravated-murder sentence, Patrick, 

, 

, 

, and that the statute does not
preclude other potential avenues of appellate review, id. at ¶ 17. Thus, contrary to
Grevious’s general assertions, R.C. 2953.08(D)(3) does not bar all appellate review
of aggravated-murder sentences; rather, it precludes review of such sentences under
R.C. 2953.08 on the specific grounds that the statute provides.
        {¶ 25} Grevious directs this court’s attention to our decision in Noling, 

, 

, 

. In Noling, the challenged statute
permitted an offender sentenced to death to appeal a trial court’s denial of the
offender’s application for postconviction DNA testing. Id. at ¶ 5. The statute
provided that a capital offender’s appeal would skip the court of appeals altogether
but that an appeal to this court would be a discretionary one, requiring a majority
of the justices of this court to vote to accept jurisdiction. Id. at ¶ 5-6. If a majority
of the justices declined jurisdiction over the appeal, then the decision of the trial
court would stand. Id. at ¶ 6. In contrast, under that same statute, a noncapital
offender had the right to appeal a trial court’s denial of an application for
postconviction DNA testing to the court of appeals, which had no discretion to
decline review. Id.
        {¶ 26} We concluded in Noling that the statute at issue in that case violated
state and federal principles of equal protection, because no legitimate purpose




                                           13
                              SUPREME COURT OF OHIO




existed to support the statute’s “two-track appellate process” that discriminated
between capital and noncapital offenders. Id. at ¶ 31. In doing so, this court
rejected the attorney general’s argument that capital and noncapital offenders were
not similarly situated, because the differences between the offenders cited by the
attorney general focused on the imposition of a sentence. Id. at ¶ 19. We noted
that the challenged statutory scheme concerned applications for postconviction
DNA testing, not the imposition of a sentence, and thus the fact that certain
applicants were sentenced to death and others to prison terms was “nearly irrelevant
under the statute.” Id. Because the capital and noncapital offenders followed the
same application process for DNA testing and the applications were subject to the
same level of scrutiny in the trial court, this court determined that the classes were
similarly situated. Id. at ¶ 18-19.
        {¶ 27} Grevious contends that R.C. 2953.08(D)(3) contains this same “two-
track process,” permitting appellate review of lesser felony sentences but
precluding appellate review of noncapital sentences for aggravated murder. And
he believes that, as in Noling, there is no rational basis for such a distinction. We
disagree.
        {¶ 28} Unlike in Noling, the classes at issue here are not similarly situated
with regard to R.C. 2953.08, as each class is subject to different sentencing schemes
that provide different sentencing procedures and distinct levels of discretion to the
trial court. This is well demonstrated by the different statutory schemes that govern
each class, the grounds for appeal provided in R.C. 2953.08, and the legislative
purpose of that statute, see United States Dept. of Agriculture v. Moreno, 

, 

, 

 (1973) (looking to the legislative history
of the statute at issue to illuminate its purpose).
               2. Legislative purpose and language of R.C. 2953.08
        {¶ 29} The General Assembly enacted R.C. 2953.08 in 1996 as part of
Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136, and its companion legislation,




                                           14
                                January Term, 2022




Am.Sub.S.B.No. 269, 146 Ohio Laws, Part VI, 10752 (collectively, “S.B. 2”).
Prior to S.B. 2’s enactment, trial courts possessed “great discretion” in sentencing,
but that discretion was “virtually immune from meaningful appellate review in
Ohio.” Lewis R. Katz, Ohio Sentencing Commission, Testimony before the Ohio
Senate Judiciary Committee (Feb. 15, 1995).          Because of this, the General
Assembly instructed the Ohio Sentencing Commission to develop a sentencing plan
that “considered judicial discretion, uniformity and fairness.” 

 The passage of
R.C. 2953.08 was intended to combine these principles by retaining a trial court’s
discretion in sentencing while providing appellate review of the trial court’s
exercise of such discretion for uniformity and fairness. Katz, Testimony before the
Ohio Senate Judiciary Committee (“The only way to combine a principled system
which retains judicial discretion with guarantees of uniformity and fairness is to
build into the plan a system of limited appeals by both the state and the defendant”).
However, the statute never “contemplate[d] appeals in every case;” rather, it
delineated grounds for appeal as a matter of right when “the sentence imposed in a
particular case is contrary to critical presumptions and policies within the statute.”

       {¶ 30} Several of the grounds for appeal set forth in R.C. 2953.08(A)
through (C) reflect this intent to provide appellate review—not in all cases but in
situations in which the trial court has exercised its broad discretion in imposing
certain sentences. For instance, R.C. 2953.08(A)(5) prescribes grounds for appeal
when the trial court has elected to impose a sentence including an additional prison
term of ten years under R.C. 2929.14(B)(2)(a), and R.C. 2953.08(A)(1) prescribes
grounds for appeal when the trial court has elected to impose the maximum definite
prison term permitted under R.C. 2929.14(A) (setting forth the basic ranges for
felonies classified by degree) or R.C. 2929.142 (outlining the range of mandatory
prison terms for aggravated vehicular homicide when the offender has previous
operating-a-vehicle-while-under-the-influence-type convictions). Similarly, R.C.




                                         15
                             SUPREME COURT OF OHIO




2953.08(A)(2) pertains to a trial court’s decision to impose a prison term for a
fourth- or fifth-degree felony or a felony drug offense that could be subject to only
a community-control sanction, and R.C. 2953.08(A)(3) pertains to a trial court’s
decision to impose the longest minimum prison term available under specified
statutes for certain offenders adjudicated to be sexually violent predators. Another
example is R.C. 2953.08(B)(1), which permits the state to appeal when the trial
court has elected not to impose a prison term despite certain statutorily delineated
presumptions in favor of a prison term. Lastly, R.C. 2953.08(C) provides grounds
for appeal when the trial court has chosen to impose consecutive prison sentences
or certain lengthier sentences under R.C. 2929.14.
       {¶ 31} In all the above instances, the grounds for appeal involve the trial
court’s exercise of its broad discretion, and in exercising that discretion, the trial
court follows particular statutory sentencing requirements. See Patrick, 

, 

, 

. This court has noted that R.C.
2953.08(A)(4), which permits an appeal on the ground that a sentence is “contrary
to law,” is “of a similar nature” to the other provisions in R.C. 2953.08, 

, relating to whether the trial court followed statutory sentencing requirements.
       {¶ 32} In contrast, R.C. 2953.08(D)(1), which is one of the other limitations
on the right to appeal a felony sentence under R.C. 2953.08, involves a situation in
which the trial court does not exercise its discretion in imposing a sentence. R.C.
2953.08(D)(1) precludes appellate review under R.C. 2953.08 when the sentence is
authorized by law, has been recommended jointly by the parties, and is imposed by
the sentencing judge. In that situation, appellate review under R.C. 2953.08 is
unnecessary because the parties have agreed that the sentence is appropriate and
the trial court accordingly has elected not to exercise its broad discretion in
determining the sentence. See Porterfield, 

, 

, 

 (“The General Assembly intended a jointly agreed-upon
sentence to be protected from review precisely because the parties agreed that the




                                         16
                                 January Term, 2022




sentence is appropriate. Once a defendant stipulates that a particular sentence is
justified, the sentencing judge no longer needs to independently justify the
sentence”).
 3. The trial court lacks discretion when sentencing an offender for aggravated
                 murder pursuant to R.C. 2929.03(D)(2)(a) and (c)
       {¶ 33} As discussed above, Grevious was sentenced pursuant to R.C.
2929.03(D)(2)(a) and (c), which means that he was found guilty of both the
aggravated-murder charge and a specification for an aggravating circumstance for
which a death sentence was a possible penalty. Because Grevious chose to be tried
by a jury, R.C. 2929.03(C)(2)(b)(ii) required that the aggravated-murder sentence
also be determined by the jury. And because the jury did not unanimously find by
proof beyond a reasonable doubt that the aggravating circumstance outweighed the
mitigating factors, the jury could not recommend that the trial court impose a death
sentence. See R.C. 2929.03(D)(2). Therefore, it had to recommend a sentence of
life imprisonment without the possibility of parole, life imprisonment with parole
eligibility after 25 years, or life imprisonment with parole eligibility after 30 years.
See R.C. 2929.03(D)(2)(a).
       {¶ 34} The jury ultimately recommended that Grevious be sentenced to life
imprisonment without the possibility of parole. And as required by the statutory
scheme, the trial court had no choice but to impose that recommended sentence.
See R.C. 2929.03(D)(2)(c) (“the court shall impose the sentence recommended by
the jury upon the offender” [emphasis added]). Stated differently, a trial court
imposing an offender’s sentence for aggravated murder pursuant to R.C.
2929.03(D)(2)(a) and (c) does not have any discretion as to the offender’s sentence;
the jury determines the sentence, and it does so based on the specific mitigating
factors provided by statute only for situations like Grevious’s, in which the offender
is found guilty of both aggravated murder and an aggravating circumstance. See
R.C. 2929.04(B) (containing the nonexhaustive list of mitigating factors); R.C.




                                          17
                                   SUPREME COURT OF OHIO




2929.03(D)(1) (mandating consideration of “the mitigating factors set forth in [R.C.
2929.04(B)]”).
         {¶ 35} In contrast, the other felony offenses for which R.C. 2953.08 permits
appellate review are classified by degree of felony, see R.C. 2901.02(A),1 and are
governed by R.C. 2929.13 through 2929.20. Generally, the degree of a felony
corresponds with sentencing presumptions regarding the felony, a range of prison
terms for the felony, and the potential sanctions from which the trial court may
choose for the felony. See State v. Foster, 

, 

, 

 (noting that Ohio’s felony-sentencing plan “is determinate for
most offenses, for the court selects a specific prison term from different statutory
ranges as determined by the level of the felony charged”), abrogated on other
grounds by Oregon v. Ice, 

, 

, 

 (2009);
see also R.C. 2929.14(A) (providing the basic prison-term ranges for the five
felony-offense degrees); R.C. 2929.13(A) (subject to certain exceptions, including
aggravated-murder sentences under R.C. 2929.03, “a court that imposes a sentence
upon an offender for a felony may impose any sanction or combination of sanctions
on the offender that are provided in sections 2929.14 to 2929.18 of the Revised
Code”). And unlike the sentencing provisions governing aggravated murder, the
sentencing statutes governing felonies classified by degree do not authorize a jury
to be involved in the sentencing determination. See, e.g., State ex rel. Mason v.
Griffin, 

, 

, 

, ¶ 16 (explaining
that the sentencing statutes pertinent to the defendant’s drug-related offenses in that
case “vest the exclusive responsibility to make these [sentencing] determinations
in the court and not in a jury”). The statutory procedures for sentencing offenders
for felonies classified by degree are therefore vastly different from those for

1. R.C. 2901.02 classifies aggravated murder, murder, and felonies of the first, second, third, fourth,
and fifth degree as felony offenses. Because R.C. 2953.08(D)(3) excludes aggravated-murder and
murder sentences from review under R.C. 2953.08, the only remaining felony sentences for which
R.C. 2953.08 allows appellate review are felonies classified by degree.




                                                  18
                                 January Term, 2022




sentencing offenders for aggravated murder under R.C. 2929.03(D)(2)(a) and (c),
because the trial court, when sentencing offenders for most felony offenses
classified by degree, exercises its discretion in determining the particular sentence
based on the applicable statutory range, the sentencing presumptions, and the
sanctions available. Further, as demonstrated above, the grounds for appellate
review provided in R.C. 2953.08 are directed toward situations in which the trial
court exercises its discretion in sentencing an offender who has been convicted of
a felony classified by degree.
       {¶ 36} R.C. 2953.08, as a whole, demonstrates the legislature’s intent to
provide appellate review of trial courts’ “great discretion” in sentencing and an
opportunity for appellate courts to review such exercise of discretion for uniformity
and fairness.   Katz, Testimony before the Ohio Senate Judiciary Committee.
Because the sentencing statute governing Grevious’s aggravated-murder sentence
provides no discretion to the trial court when imposing a recommended mandatory
life sentence, the class of which Grevious is a member—offenders sentenced for
aggravated murder under R.C. 2929.03(D)(2)(a) and (c)—is not situated similarly
to the class of felony offenders over whom judges have discretion in fashioning
their sentences, a conclusion that is supported by the legislative purpose of R.C.
2953.08. See Nguyen v. Immigration & Naturalization Serv., 

, 

, 

 (2001) (concluding that the classes at issue in that case
were not similarly situated with regard to the governmental interest behind the
challenged statute).   The sentencing of aggravated-murder offenders such as
Grevious is different from the sentencing of offenders convicted of lesser felonies
that are classified by degree, which generally involves statutes that grant discretion
to the trial court to select the sentence from the statutorily available options.
Accordingly, there exists a legitimate purpose for R.C. 2953.08 to permit offenders
sentenced for felonies classified by degree to appeal those sentences and seek
review of the trial court’s exercise of its discretion, while precluding aggravated-




                                         19
                             SUPREME COURT OF OHIO




murder offenders sentenced under R.C. 2929.03(D)(2)(a) and (c) from seeking such
review because the trial court does not exercise discretion when sentencing such
aggravated-murder offenders.
       {¶ 37} For these reasons, Grevious has failed to demonstrate that R.C.
2953.08(D)(3), as applied to him, deprives him of the equal protection of the laws.
Grevious does not differentiate between his facial and as-applied challenges to R.C.
2953.08(D)(3). Thus, because Grevious cannot establish an as-applied violation of
his right to equal protection, his facial challenge to R.C. 2953.08(D)(3) must also
fail; there is a circumstance under which R.C. 2953.08(D)(3) is valid. See Arkim v.
Bellnier, N.D.N.Y. No. 9:09-CV-0775, 

, *11 (Mar.
5, 2014); United States v. Decastro, 

 (2d Cir.2012), quoting Diaz
v. Paterson, 

 (2d Cir.2008) (“a defendant who fails to demonstrate
that a challenged law is unconstitutional as applied to him has ‘necessarily fail[ed]
to state a facial challenge, which requires [him] to establish that no set of
circumstances exists under which the statute would be valid’ ” [brackets added in
Decastro]).
       {¶ 38} We pause to emphasize that this conclusion regarding Grevious’s
equal-protection claim is a narrow one that is limited to the particular statutory
provision at issue here. Grevious has failed to meet his burden to negate “any
reasonably conceivable state of facts that could provide a rational basis,” Beach
Communications, 

, 

, 

, for R.C.
2953.08(D)(3)’s distinguishing between him as an offender sentenced for
aggravated murder pursuant to R.C. 2929.03(D)(2)(a) and (c) and offenders
sentenced for lesser felonies. See de Fuentes v. Gonzales, 

 (5th
Cir.2006) (“It is Petitioner’s burden to show that the law, as-applied, is arbitrary;
and not the government’s to establish rationality”).




                                         20
                               January Term, 2022




     E. Grevious’s due-process and Eighth Amendment challenges to R.C.
                             2953.08(D)(3) also fail
       {¶ 39} Turning to Grevious’s due-process claim, he provides only a cursory
argument in his briefing: “[B]y prohibiting appellate courts from following
appropriate procedures to ensure fairness in sentencing, R.C. 2953.08(D)(3)
deprives a class of offenders from their due process rights.” Grevious does not
specify whether he brings this challenge on substantive or procedural due-process
grounds. Regardless, his due-process argument is based on the same grounds as
his equal-protection argument and therefore receives the same rational-basis review
that applies in the equal-protection context. See Cook v. Bennett, 

 (11th Cir.2015) (“Rational basis review in the context of equal protection is
essentially equivalent to rational basis review in the context of due process”).
Accordingly, to the extent that Grevious argues that he has a due-process right to
appellate review of his sentence under R.C. 2953.08, that challenge fails for the
same reasons that his equal-protection argument fails. See Norton Constr. Co. v.
United States Army Corps of Engineers, 

 (6th Cir.2008).
       {¶ 40} We also conclude that Grevious’s Eighth Amendment challenge to
R.C. 2953.08(D)(3) lacks merit. The Eighth Amendment to the United States
Constitution states: “Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.” Grevious raises several
arguments in support of his Eighth Amendment challenge to R.C. 2953.08(D)(3),
many of which echo arguments made to this court in Kinney, 

,

, 

 (reversed and remanded to the court of appeals
for further proceedings consistent with this court’s decision in Patrick, 

, 

, 

). We note, however, that Grevious
did not raise the majority of these arguments below, nor did the court of appeals
address his Eighth Amendment challenge to R.C. 2953.08. In fact, the only support
Grevious presented below for his Eighth Amendment challenge included his




                                        21
                              SUPREME COURT OF OHIO




quoting the following statement of Justice Sotomayor that she made when the
United States Supreme Court denied certiorari in Campbell v. Ohio, ___ U.S. ___,

, 

 (2018), in which the defendant challenged R.C.
2953.08(D)(3) on constitutional grounds, which Grevious restates in his briefing to
this court:


               In my view, [this court’s] jurisprudence provides good
        reason to question whether [R.C.] 2953.08(D)(3) really “means
        what it says”: that a life-without-parole sentence, no matter how
        arbitrarily or irrationally imposed, is shielded from meaningful
        appellate review. Our Eighth Amendment jurisprudence developed
        in the capital context calls into question whether a defendant should
        be condemned to die in prison without an appellate court having
        passed on whether that determination properly took account of his
        circumstances, was imposed as a result of bias, or was otherwise
        imposed in a “freakish manner.”
               ***
               This case did not present either the Ohio courts or this Court
        the occasion to decide this important question. I believe the Ohio
        courts will be vigilant in considering it in the appropriate case.


(Citations omitted.) Id. at 1060-1061 (Sotomayor, J.). Grevious opined below that
this is the appropriate case in which to consider this Eighth Amendment issue and,
without any additional arguments, requested that the court of appeals strike down
R.C. 2953.08(D)(3) on Eighth Amendment grounds.
        {¶ 41} But the above-quoted statement of Justice Sotomayor was made
prior to this court’s decision in Patrick. And despite having the benefit of our
decision in Patrick during his briefing to this court, Grevious has continued to




                                          22
                                January Term, 2022




center his Eighth Amendment challenge on the premise that, “as applied to [life-
without-parole] sentences, R.C. 2953.08(D)(3) constitutes cruel and unusual
punishment because it denies any meaningful review of that sentence, forever.”
(Emphasis added.) Even if that argument is properly before this court, its premise
that R.C. 2953.08(D)(3) denies any meaningful review of an aggravated-murder
sentence is patently untrue under Patrick and there is no longer any basis for
arguing that R.C. 2953.08(D)(3) implicates cruel and unusual punishment by
denying any appellate review, because an aggravated-murder offender can, in fact,
challenge his or her aggravated-murder sentence on direct appeal on constitutional
grounds or via other avenues not precluded under R.C. 2953.08. See 

. Finally, because Grevious’s other Eighth Amendment arguments were
not presented below, we decline to address them here. See Browne v. Artex Oil Co.,

, 

, 

, ¶ 45.
                                  III. Conclusion
       {¶ 42} For the foregoing reasons, we affirm the portion of the judgment of
the Twelfth District Court of Appeals relating to the constitutionality of R.C.
2953.08(D)(3).     However, because this court decided in Patrick that R.C.
2953.08(D)(3) does not preclude an appellate court from reviewing a constitutional
challenge to an aggravated-murder sentence on appeal, the court of appeals erred
by declining to review the merits of Grevious’s constitutional challenges to his
aggravated-murder sentence. Accordingly, we reverse the portion of its judgment
relating to that issue and remand the case to the court of appeals for it to review the
merits of Grevious’s constitutional challenges to his aggravated-murder sentence.
                                                           Judgment affirmed in part
                                                                  and reversed in part
                                                                and cause remanded.
       FISCHER, J., concurs.
       DONNELLY, J., concurs, with an opinion.




                                          23
                             SUPREME COURT OF OHIO




       KENNEDY and STEWART, JJ., concur in judgment only.
       DEWINE, J., concurs in judgment only, with an opinion joined by
BRUNNER, J.
                               _________________
       DONNELLY, J., concurring.
       {¶ 43} I join the lead opinion, as far as it goes. Applying State v. Patrick,

, 

, 

, the lead opinion correctly
determines today that R.C. 2953.08(D)(3) does not prohibit Ohio’s appellate courts
from reviewing aggravated-murder sentences for constitutional infirmities. I write
separately because consistently with my concurrence in Patrick and the position of
appellant, Michael Grevious, I continue to believe that any discretionary sentence
should be subject to appellate review. I see no principled way to advance the
proposition that Ohio courts have the authority to review sentencing appeals on
some grounds but not on others.
       {¶ 44} Even apart from any constitutional concerns about a particular
sentence, I agree with Grevious that eliminating any “check on a trial court’s
discretion and possible abuse” in sentencing enables “gross abuse of discretion.”
As Grevious points out, this is especially so in cases such as this one, in which the
jury had the exclusive responsibility of choosing a sentence but the trial court
provided the jury with no guidance regarding the overriding purposes of felony
sentencing under R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12.
While the legislature has afforded only the jury and not the trial court the power to
choose a discretionary sentence in cases such as this one, see R.C. 2929.03(D)(2)(a)
and (c), I would hold that R.C. 2953.08(D)(3) does not prohibit appellate review of
discretionary sentences for aggravated murder.
       {¶ 45} R.C. 2953.08(D)(3) is self-limiting.      Though it states that “[a]
sentence imposed for aggravated murder or murder pursuant to [the Revised Code
sections setting the penalties for murder and aggravated murder] is not subject to




                                         24
                                January Term, 2022




review under this section” (emphasis added), it does not thereby foreclose review
of all such sentences, see 

 (Donnelly, J., concurring). Patrick made
clear that R.C. 2953.08(D)(3) does not foreclose independent statutory rights to
appeal such as those provided by R.C. 2953.02 (“in any other criminal case [besides
a death-penalty case], * * * the judgment or final order of a court of record inferior
to the court of appeals may be reviewed in the court of appeals”). 

.
And as I noted in my concurrence in Patrick, R.C. 2505.03(A) provides that
“[e]very final order, judgment, or decree of a court * * * may be reviewed on appeal
by a court of common pleas, a court of appeals, or the supreme court, whichever
has jurisdiction.” 

 (Donnelly, J., concurring).
       {¶ 46} Additionally, R.C.2953.07 separately authorizes Ohio’s courts of
appeals to review criminal sentences that are claimed to be “contrary to law.” And
an appeal could encompass a claim that a discretionary sentence was imposed
vindictively to punish the defendant for exercising his or her constitutional right to
a trial. See State v. O’Dell, 

, 

 (1989), paragraph
two of the syllabus. Or an appeal could encompass a claim that a discretionary
sentence was based on an illegal consideration such as the offender’s race, ethnic
background, gender, or religion. See R.C. 2929.11(C) (expressly forbidding a
sentence that is based on the offender’s race, ethnic background, gender, or
religion). It is unfathomable that an offender’s sentence that was based on such
considerations could escape any appellate review just because the underlying
conviction was for aggravated murder. And I remain convinced that a court’s
failure to adhere to the requirements of R.C. 2929.11 and 2929.12 may be reviewed
on appeal. See State v. Gwynne, 

, 

, 

, ¶ 45 (Donnelly, J., dissenting). Barring more explicit instruction by the
legislature, Ohio’s courts should apply all the statutes providing appellate rights to
people sentenced for aggravated murder. I nevertheless join the lead opinion and
concur in the court’s judgment.




                                         25
                             SUPREME COURT OF OHIO




                               _________________
       DEWINE, J., concurring in judgment only.
       {¶ 47} I agree with the lead opinion that Michael Grevious has failed to
demonstrate that R.C. 2953.08(D)(3) violates the United States Constitution by
limiting his right to appeal his sentence for aggravated murder. I write separately
to add a few thoughts about the standard we use to review constitutional challenges.
       {¶ 48} The lead opinion says that to prevail, “Grevious must establish
‘beyond a reasonable doubt that the legislation and constitutional provisions are
clearly incompatible.’ ” Lead opinion, ¶ 9, quoting State ex rel. Dickman v.
Defenbacher, 

, 

 (1955), paragraph one of the
syllabus. In doing so, it repeats verbiage that this court has often affixed to
decisions dealing with constitutional challenges. But in my view, it is time that we
remove that worn coin from circulation.            Beyond-reasonable-doubt is an
evidentiary standard that is poorly suited to the legal question whether a legislative
enactment comports with the Constitution. This is probably why the standard is
often repeated but not actually applied by this court. And if the standard were to
be applied, it would undercut the protections for individual liberties guaranteed by
the federal and state Constitutions.
    I. Background: beyond-reasonable-doubt as a standard for assessing
                                 constitutionality
       {¶ 49} The beyond-reasonable-doubt standard comes to us from criminal
law. Scholarship traces the concept back to the “inquisitorial criminal procedure”
that was “devised by Pope Innocent III circa 1199.”            Thomas P. Gallanis,
Reasonable Doubt and the History of the Criminal Trial, 76 U.Chi.L.Rev. 941, 945-
946 (2009). That system operated under the canon in dubio pro reo—“in doubt you
must decide for the defendant.” James Q. Whitman, The Origins of Reasonable
Doubt: Theological Roots of the Criminal Trial 122 (2008). In the colonies, John




                                         26
                                January Term, 2022




Adams invoked the beyond-reasonable-doubt concept in his 1770 defense of the
Redcoat perpetrators of the Boston Massacre. Id. at 193.
       {¶ 50} American courts have always used beyond-reasonable-doubt as the
evidentiary standard in criminal cases. See Coffin v. United States, 

, 

, 

 (1895). Ohio is no exception. See Farrer v.
State, 

, 69 (1853) (“A mere preponderance of testimony as to the guilt
of a person, will not satisfy the law; there must be such a preponderance as removes
all reasonable doubt”).
       {¶ 51} The use of the beyond-reasonable-doubt standard to assess
constitutionality has a more recent pedigree. It is most often associated with James
Bradley Thayer, who believed that courts ought to be extremely deferential to the
judgments of legislatures. In an influential article, Thayer postulated that courts
should not invalidate statutes unless convinced “beyond a reasonable doubt” that
the law is incompatible with the constitution. The Origin and Scope of the
American Doctrine of Constitutional Law, 7 Harv.L.Rev. 129, 144 (1893). Courts
could invalidate legislation only “when those who have the right to make laws have
not merely made a mistake, but have made a very clear one—so clear that it is not
open to rational question.” Id. at 144. In this view, the Constitution left a range of
interpretative options to the legislature, and “whatever choice is rational is
constitutional.” Id.
       {¶ 52} A survey of our caselaw shows that our first invocation of the
beyond-reasonable-doubt standard in a constitutional case came in 1877: “the
validity of a statute [is] to be upheld and sustained, unless its repugnancy to the
constitution appears beyond a reasonable doubt,” McGill v. State, 

,
245. And we often—but not consistently—invoked the standard in the decades that
followed. See, e.g., State ex rel. Atty. Gen. v. Toledo, 

, 132-133, 

 (1891); Miami Cty. v. Dayton, 

, 222-223, 

                                         27
                             SUPREME COURT OF OHIO




(1915) (“courts * * * have held that the conflict must be ‘beyond a reasonable
doubt’ ”); Dickman, 164 Ohio St. at 147, 

.
       {¶ 53} There is a lot to be said for the Thayerian notion that judges should
not lightly strike down legislative enactments. Our role is not the legislative role,
and we must be careful that we do not under the guise of judicial review substitute
our policy preferences for that of the legislature. Thus, it is appropriate that we
start with the presumption that a law is constitutional, as the lead opinion does
today. See lead opinion at ¶ 9; see also Cincinnati, Wilmington & Zanesville RR.
Co. v. Clinton Cty. Commrs., 

, 83 (1852). It is also appropriate that
we invalidate legislation only when it is clear that a duly enacted law conflicts with
the Constitution. See Calder v. Bull, 

, 

 (1798) (courts
should not exercise authority to hold a law unconstitutional “but in a clear and
urgent case”); Cincinnati, Wilmington & Zanesville RR. Co. at 82 (“it is only when
* * * clear incompatibility between the constitution and the law appear, that the
judicial power can refuse to execute it”); Philip Hamburger, Law and Judicial Duty
311 (2008); Jeffrey S. Sutton, Who Decides? States as Laboratories of
Constitutional Experimentation 56 (2021) (courts historically “deployed
conventional tools of interpretation in construing constitutions and would
invalidate a statute only if a clear conflict arose between the two”); John O.
McGinnis, The Duty of Clarity, 84 Geo.Wash.L.Rev. 843, 880-881 (2016).
       {¶ 54} But while it is important that we respect the principles of restraint
that are inherent in our system of separation of powers, it is time that we stop saying
(falsely) that we will only strike down a law that is unconstitutional beyond a
reasonable doubt. Let me explain why.
II. Retiring the beyond-reasonable-doubt standard in constitutionality cases
       {¶ 55} We have been appending beyond-reasonable-doubt language to the
front end of our constitutional cases for a long time, so why stop now? By my
count, there are at least three good reasons.




                                          28
                                 January Term, 2022




A. The beyond-reasonable-doubt evidentiary standard is a poor fit for assessing
                  whether a statute comports with the Constitution
        {¶ 56} The most obvious problem with beyond-reasonable-doubt as a
measure of constitutionality is that it is an extremely poor fit for the task. Beyond-
reasonable-doubt makes sense as an evidentiary standard. It refers to a quantum of
proof. It is something that, in theory at least, one could assign a number to. We
will only convict someone if we are x percent sure of his guilt. (We might debate
the number—is it 99.9 percent or 99.9999 percent? But in theory, it is something
quantifiable.) It is the risk of error in a criminal conviction that we as a society are
willing to tolerate. In re Winship, 

, 

, 

 (1970).
        {¶ 57} The same is not true for constitutional judgments. There are not
degrees of constitutionality—the Constitution, unlike evidentiary proof of a fact,
does not operate on a continuum. “The Constitution is the superior law.” State ex
rel. Campbell v. Cincinnati St. Ry. Co., 

, 309, 

 (1918).
We don’t add up the evidence and decide to what degree we are certain that
something is unconstitutional. Rather, we look at things like text, precedent, and
history to reach our best considered judgment as to whether a law violates the
Constitution. That question is “susceptible of only two answers”—yes or no.
United States v. Watson, 

 (7th Cir.1980).
        {¶ 58} As a quantum of proof, the beyond-reasonable-doubt standard fits
comfortably with the maxim that “it is better that ten guilty persons escape, than
that one innocent suffer.” 4 William Blackstone, Commentaries on the Laws of
England, 352. But we would hardly say that it is better that ten unconstitutional
laws be upheld than one constitutional law be struck down. See Varner v. Martin,

 (1883) (“it has been said, that it is better that ninety-nine guilty
persons should escape than that one innocent person should be condemned. But
* * * [i]t is not better, that the Constitution should be violated ninety and nine times




                                          29
                             SUPREME COURT OF OHIO




by the Legislature than, that the courts should erroneously hold one act of the
Legislature unconstitutional”).
       {¶ 59} The point of an evidentiary standard of proof is to provide a
benchmark by which a fact-finder can operate. Thus, when we say to a judge that
he or she must determine whether there is probable cause to believe that someone
committed a crime or whether the person is guilty beyond a reasonable doubt, we
have conveyed a helpful guide to decision-making. We also provide a standard by
which a superior court can review that decision. But when we ask a judge to decide
whether something is unconstitutional beyond a reasonable doubt, we ask the judge
to operate under a metric that is not comfortably suited to the task at hand.
   B. We don’t seriously employ beyond-reasonable-doubt as a constitutional
                                      standard
       {¶ 60} Thayer’s conception was that there would be “many cases” in which
judges would “leav[e] untouched a determination of the legislature,” not because
the judge believed the law to be constitutional, but simply because the judge had
some reasonable doubt as to the matter. Thayer, 7 Harv.L.Rev. at 151. But that is
not how we operate.
       {¶ 61} If this court truly employed a beyond-reasonable-doubt standard, we
should be able to identify decisions stating that in the court’s best judgment, the
enactment was unconstitutional, but that because the matter is not free from doubt,
we uphold the enactment. But I am not aware of a single recent case in which the
court has done this. So either this court’s justices don’t really follow that standard,
or when they do, they are unwilling to show their work. And that by itself suggests
the inadequacy of beyond-reasonable-doubt as a constitutional standard.
       {¶ 62} Sure, it is easy enough to find recent cases in which this court has
announced beyond-reasonable-doubt as the standard it will use for its decision. See,
e.g., State ex rel. Maras v. LaRose, ___ Ohio St.3d ___, 

, ___
N.E.3d ___, ¶ 12; Neiman v. LaRose, ___ Ohio St.3d ___, 

, ___




                                          30
                                 January Term, 

, ¶ 56; League of Women Voters of Ohio v. Ohio Redistricting Comm.,

, 

, 

; Put-in-Bay v. Mathys,

, 

, 

; Haight v. Minchak, 

, 

, 

, ¶ 11. But there is no indication
in these cases that the standard played any role whatsoever in this court’s analysis.
See, e.g., Neiman at ¶ 101-102 (Fischer, J., dissenting) (“the majority opinion seems
to ultimately apply some lesser burden of proof, even though it purports to apply
the beyond-a-reasonable-doubt burden of proof”). Meanwhile, in other recent
cases, the court has made constitutional judgments without any mention of the
standard at all. See, e.g., State v. Drain, ___ Ohio St.3d ___, 

, ___
N.E.3d ___; State v. O’Malley, ___ Ohio St.3d ___, 

, ___ N.E.3d
___; Portage Cty. Educators Assn. for Dev. Disabilities-Unit B, OEA/NEA v. State
Emp. Relations Bd., ___ Ohio St.3d ___, 

, ___ N.E.3d ___;
Newburgh Heights v. State, ___ Ohio St.3d ___, 

, ___ N.E.3d ___.
       {¶ 63} So the bottom line is that while the beyond-reasonable-doubt
standard is something that we have rotely pasted into constitutional opinions, there
is no indication that we actually use it.
 C. Application of the beyond-reasonable-doubt standard would deprive citizens
         of the liberties guaranteed by our federal and state Constitutions
       {¶ 64} It is a good thing that we don’t really apply the beyond-reasonable-
doubt standard in constitutional cases. If we did, we would deprive citizens of the
rights guaranteed to them by our federal and state Constitutions.
       {¶ 65} Think about how the standard would work if it were truly followed.
A judge is confronted with a case featuring a law that infringes on a constitutional
right. The judge is convinced that the law violates the Constitution, but in fairness,
he has some doubts—perhaps a dissenting colleague has raised fair
counterarguments. The judge feels obligated to uphold the law even though he




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believes it is unconstitutional. The power of the state is aggrandized and the
fundamental rights of the citizens are diminished.
       {¶ 66} Now consider how the standard would work in the context of a
system of stare decisis. The next time an issue arises, the judge is bound to follow
precedent from the prior case upholding the law’s constitutionality. As Sixth
Circuit Court of Appeals Chief Judge Sutton explains:


               Every decision upholding the law creates the risk of a
       diminished data point, a new binding precedent that expands the
       world of plausible explanations for upholding still more laws. * * *
       The inaction of courts over time permits legislatures to enact more
       dubious laws. Each non-invalidation of an unconstitutional law
       makes the next exercise of lawmaking power easier to withstand the
       supposed scrutiny of judicial review.


Sutton, Who Decides?, at 62.
       {¶ 67} In criminal law, the beyond-reasonable-doubt standard is “essential
for the protection of life and liberty,” Davis v. United States, 

, 

, 

 (1895). There, the standard works for the people and
against the government. But in the constitutional-review setting, the beyond-
reasonable-doubt standard diminishes constitutional guarantees and “indulges
every reasonable presumption against the citizen.” Sadler v. Langham, 

 (1859); see also Varner, 

.
       {¶ 68} So not only is it true that we don’t really follow the beyond-
reasonable-doubt standard in constitutional adjudication, it is also true that it is a
good thing that we don’t.




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                                 January Term, 2022




                              D. What’s the big deal?
       {¶ 69} All this invites another question: If we just pay lip service to the
beyond-reasonable-doubt standard and do not really follow it, why should anyone
care? Why waste the paper this opinion is written on?
       {¶ 70} The answer is that we ought to be honest about what it is we do as
judges. When we recite standards but do not actually follow them, we do a
disservice to those who read our decisions and those who litigate before this court.
We invite litigants to frame their arguments in terms that are not meaningful to our
review. And we mislead our readers by suggesting that issues that we struggle with,
and ultimately make our best considered judgments about, are easy decisions that
are free from any reasonable doubt.
       {¶ 71} So in my view, it is time we stop reciting a standard that we don’t
use, that is a poor fit for what we do, and that would be dangerous if we actually
did use.
                               III. The case at hand
       {¶ 72} Now that we are done with the aside, let’s return to the case at hand.
I have little difficulty joining the court’s judgment.
       {¶ 73} Grevious claims that R.C. 2953.08(D)(3) violates the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution
because people convicted of aggravated murder in Ohio do not have the same
ability as other felons to appeal their sentences as “contrary to law.” “Felons are
not a protected class,” United States v. Hook, 

 (7th Cir.2006), and
neither are aggravated-murder felons in relation to other felons. A classification
based on “the product of conscious, indeed unlawful, action” is not suspect, Plyler
v. Doe, 

, 

, 

 (1982). And the right
to appeal does not rank as fundamental. See Ross v. Moffitt, 

, 610-
611, 

, 

 (1974); McKane v. Durston, 

,

, 

 (1894). Thus, rational-basis review applies. See Estelle




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                             SUPREME COURT OF OHIO




v. Dorrough, 

, 

, 

 (1975) (per
curiam).
       {¶ 74} Traditional justifications for criminal punishment like deterrence
and retribution justify the General Assembly’s choice in R.C. 2953.08(D) to offer
aggravated-murder convicts fewer appellate rights than those convicted of other
crimes. Other crimes, even violent ones, “do[] not compare with murder” “in terms
of moral depravity and of the injury to the person and to the public,” Coker v.
Georgia, 

, 

, 

 (1977). The lack of
ability to appeal an aggravated-murder sentence also offers finality to the victim’s
survivors sooner. The lead opinion notes another ample justification: a trial court
does not have discretion over sentencing for aggravated-murder offenders such as
Grevious, rendering contrary-to-law appellate review for such offenders futile. See
lead opinion at ¶ 36; see also R.C. 2929.03(D)(2)(a) and (c). Grevious has not
demonstrated that the statute violates the Equal Protection Clause.
       {¶ 75} Separately, Grevious claims that his sentence violates the Equal
Protection Clause because it is the product of de facto racial discrimination.
Grevious does not cite a single part of the record to support that claim. He instead
relies exclusively on statistical studies that document disparities in sentencing black
men versus other demographics and suggests that the studies “compel an inference”
that his “sentence rests on purposeful discrimination.”
       {¶ 76} “It is the individual,” the United States Supreme Court has made
clear, “who is entitled to the equal protection of the laws—not merely a group of
individuals, or a body of persons according to their numbers.” Mitchell v. United
States, 

, 

, 

 (1941).             Thus, under
McCleskey v. Kemp, 

, 

, 

 (1987),
Grevious “must prove that the decisionmakers in his case acted with discriminatory
purpose.” This requires “evidence specific to his own case” to support his claim.

 Grevious produces no such evidence. Indeed, he admits he “cannot prove that




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                                  January Term, 2022




there was racial motivation behind the jury’s decision to impose a sentence of [life
without parole].” This admission is fatal to his claim of racial bias.
        {¶ 77} Finally, Grevious raises due-process and Eighth Amendment claims
but offers little in support of either claim. The lead opinion correctly concludes
that these claims fail as well.
                                   IV. Conclusion
        {¶ 78} I agree with the lead opinion that Grevious has failed to establish a
constitutional violation. But this court should stop saying that it will sustain a
constitutional challenge only when a litigant establishes a violation “beyond a
reasonable doubt.” I concur in judgment only.
        BRUNNER, J., concurs in the foregoing opinion.
                                  _________________
        Michael T. Gmoser, Butler County Prosecuting Attorney, and Willa
Concannon, Assistant Prosecuting Attorney, for appellee.
        Koenig & Owen, L.L.C., and Charles A. Koenig, for appellant.
        Timothy Young, Ohio Public Defender, and Craig M. Jaquith, Assistant
Public Defender, urging reversal for amicus curiae, Office of the Ohio Public
Defender.
                                  _________________




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