Login | December 16, 2017

Man claims death sentence unfair because he was only accomplice

DAN TREVAS
Supreme Court
Public Information Office

Published: December 4, 2017

A man sentenced to death as a teenager is challenging the death penalty, arguing that it’s unfair to execute him for the 2014 murder of an 18-year-old Waynesville man, while the actual killer received life in prison without the chance of parole.

Austin G. Myers has raised multiple legal arguments in his appeal to the Ohio Supreme Court. Myers’ case is one of six the justices will consider during two days of oral arguments tomorrow and Wednesday.

Myers States He Was Only an Accomplice

Myers, who is now 22 and is the second-youngest person on Ohio’s death row, argues that he was an accomplice in the murder and was less culpable than Timothy Mosley, whom Myers describes as the principal offender. Both Myers and Mosley were 19 at the time of the crime, and Myers contends that his death sentence is cruel and unusual and disproportionate because Mosley stabbed the victim 21 times but received only a sentence of life without parole.

Myers claims he didn’t know Mosley was going to stab Justin Back. If Mosley didn’t receive the death penalty, then he shouldn’t either, Myers argues. He asserts that a sentence of death in these circumstances violates his due process rights and the Eighth Amendment protection against cruel and unusual punishment.

Pair Decides to Rob Waynesville Acquaintance

In 2014, Back lived in Waynesville with his mother and stepfather. Back and Myers knew each other from high school, and Myers discovered that Back’s stepfather kept a safe in the house. Mosley agreed to testify against Myers during the trial in exchange for a sentence of life without parole. Mosley said he and Myers knew each other, but Mosley didn’t know Back until January 2014. At the home of another friend in Clayton, about 40 miles from Waynesville, Myers asked Mosley if he wanted to make some money, suggesting either robbing a drug dealer or going to Back’s house to steal from the safe.

According to Mosley, while Back retrieved drinks from the refrigerator for the three, Mosley strangled Back from behind with a garrote, while Myers held Back. When Mosley realized he didn’t have the wire around Back’s neck, he panicked, pulled out a knife, and stabbed Back multiple times. They put Back’s body into the trunk of Mosley’s car, and took belongings from the house. They dumped Back’s body in a West Alexandria field, where Myers shot the body with the gun they had stolen from the house.

Myers pleaded not guilty to counts of aggravated murder, kidnapping, aggravated robbery, aggravated burglary, firearm theft, tampering with evidence, safecracking, and abuse of a corpse. Death-penalty and firearm specifications were included with some of the charges.

The jury found Myers guilty on all charges and specifications and recommended the death penalty. The trial court agreed and imposed a death sentence.

Because of the death sentence, Myers is entitled to an automatic direct appeal to the Ohio Supreme Court to review his case. His appeal, State v. Myers, is the first of three cases the Court will hear on Dec. 5.

Oral Arguments Scheduled

The sessions begin at 9 a.m. starting tomorrow at the Thomas J. Moyer Ohio Judicial Center in Columbus. All arguments are streamed live online at sc.ohio.gov and broadcast live and archived on The Ohio Channel.

Case Previews Available

Along with the brief summaries below, in-depth previews of the six cases being heard in Columbus are now available.

Tuesday, Dec. 5

In State v. Upkins, the Shelby County prosecutor and a defendant charged with multiple counts of drug trafficking agreed that he would plead guilty to fewer counts and accept a four-year prison sentence. However, the trial court added 10 months to the sentence agreed to in the plea bargain. On appeal, the man was represented by the same attorney, who asked to withdraw from the case, alleging that any claims were frivolous. The man maintains that the attorney had a conflict of interest by serving as his counsel at both court levels and that the appellate court must appoint a different attorney for his appeal.

A Cuyahoga County man was sentenced in 2015 to 42 months in prison for sexual battery and five years of community control for domestic violence. The sentences were ordered to run concurrently, and the trial court stated it was suspending 36 months of community control, noting that some of the time would be served in prison. The 8th District vacated the domestic violence sentence, declaring it an illegal “split sentence.” In State v. Paige, the Court will hear the Cuyahoga County Prosecutor’s Office claim that the sentence was legal.

Wednesday, Dec. 6

The Industrial Energy Users-Ohio and others challenge the Public Utilities Commission of Ohio’s decision to allow the Dayton Power and Light Co. (DP&L) to withdraw an electric security plan after the Ohio Supreme Court in 2016 ruled that one of the charges in the plan that was passed on to ratepayers was unlawful. The challengers claim the company improperly collected $285 million. Rather than modify the plan, the PUCO approved a new six-year plan for DP&L. The Court in In the Matter of Dayton Power and Light Company will consider if the PUCO could allow implementation of the new plan rather than modifying and proceeding with the current plan.

A man pled guilty in Erie County to several charges, including two with additional mandatory sentences for having a firearm. Based on state law, the trial court ordered that the four-year sentence for the firearm specifications be served first and consecutive to the sentence for the other offenses. The defendant was given 283 days credit for time he served in jail before sentencing. While the man contends in State v. Moore that his jail-time credit should be subtracted from the mandatory four-year firearm sentence, the prosecutor argues that jail-time credit must be applied to the total prison term.

A Dayton area lawyer who has twice been sanctioned by the Ohio Supreme Court for violating the rules governing attorneys faces a two-year suspension, with 18 months stayed, for failing to respond to a client matter and other conduct violations. In Disciplinary Counsel v. Engel, the attorney counters that he provided the Board of Professional Conduct sufficient evidence to show he was suffering from a mental health disability at the time of his misconduct and that he is successfully undergoing treatment for the condition. He argues that his behavior warrants a fully stayed two-year suspension as long as he meets the conditions recommended by the board.


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