The Akron Legal News

Murderer loses appeal for shorter sentence

ANNIE YAMSON
Special to the Legal News
Published: October 7, 2013

The 11th District Court of Appeals ruled recently that a defendant was not entitled to a resentencing hearing after his death penalty was modified and reduced to life imprisonment.

The appellant, Ralph Francis Garduno was sentenced to death in 1976 in the Portage County Court of Common Pleas following his conviction by jury of aggravated murder.

Case summary stated that on Feb. 18, 1975, Garduno and his accomplice, Kenneth McDaniels, were driving from Akron to Youngstown with their victims, James Krug and Karl Netolicky.

Garduno was driving and McDaniels was in the front passenger seat when they came to an isolated area and stopped the car.

McDaniels pointed a gun at Krug and Netolicky. Garduno then told the two men that they had been ordered to kill them or be killed themselves.

Garduno forced the victims to walk to the edge of the road where McDaniels shot them. They were found at about 5 a.m. by a passing motorist.

Krug was rushed to the hospital where he was found to have multiple bullet wounds, one of which shattered his spine, paralyzing him from the waist down.

Netolicky died from his bullet wounds.

Krug identified Garduno and McDaniels as the assailants and a warrant was issued for their arrest. In late 1975 both men were apprehended.

Garduno was found guilty of aggravated murder with specifications and attempted aggravated murder.

Following a mitigation hearing, the trial court sentenced him to death for the murder charge and 25 years in prison for the attempted murder.

While Garduno’s direct appeal to the 11th District was pending, the U.S. Supreme Court held that Ohio’s statutory scheme for determining the death penalty was unconstitutional.

Pursuant to that decision, the Ohio Supreme Court issued a judgment entry in 1978 ordering that the judgments in 54 listed cases affirming the death sentence of each defendant named, be modified and reduced to life imprisonment.

Garduno’s case was not one of the cases listed as it was still pending in the appellate court when the state’s highest court issued its entry.

However, the 11th District agreed to modify Garduno’s sentence by reducing his death sentence to life imprisonment.

Garduno did not appeal the judgment of the appellate court to the state’s Supreme Court.

Instead, 32 years later, on Sept. 19, 2011, he filed two motions in the trial court for resentencing under two different statutes.

After the trial court denied his motions, Garduno appealed, claiming the trial court’s denial of the resentencing motions was in error.

“In appellant’s first motion for resentencing, he argued that he was entitled to a resentencing pursuant to R.C. 2929.06,” wrote Judge Cynthia Rice on behalf of the appellate panel.

That statue provides, “If a death sentence is vacated on appeal based on the unconstitutionality of the statutory procedure for imposing the death sentence, the trial court that sentenced the defendant shall conduct a resentencing hearing.”

Garduno argued that, once Ohio’s death penalty statute was held to be unconstitutional, the court of appeals was not authorized to modify his sentence.

“He argued that this court’s authority was limited by R.C. 2929.06 to vacate his death sentence and to remand his case to the trial court for resentencing,” wrote Judge Rice.

However, the appellate panel found that R.C. 2929.06 was not effective until two years after Garduno’s sentence was modified he was, therefore, not entitled to resentencing based on that statute.

But Garduno, in his supplemental motion for resentencing and again upon appeal, claimed that he was also entitled to resentencing under former R.C. 2967.19, which became effective on Oct. 19, 1981.

According to that statute, anyone who was charged with aggravated murder allegedly committed prior to the effective date of the statute, “shall, upon conviction, be sentenced to life imprisonment with parole eligibility after serving 15 full years of imprisonment.”

The statute further provides that a defendant who is resentenced after a sentence of death is vacated, is also subject to parole eligibility after serving 15 years.

According to the “plain and unambiguous” language of the statute, the appellate panel determined that Garduno was still not subject to resentencing because his death sentence was never vacated, it was simply modified and that, in itself, constituted a resentencing.

“In any event, by modifying appellant’s sentence, this court in effect resentenced him,” wrote Judge Rice. “There is no question that this court had the power to modify appellant’s sentence.”

Additionally, the court of appeals held that Garduno was indeed eligible for parole pursuant to his modified sentence.

“Appellant has failed to demonstrate his entitlement to immediate release from prison,” wrote Judge Rice. “While (Garduno) was eligible for parole after serving 15 full years in prison ... eligibility for parole does not equate to entitlement to it.”

The judgment of the Portage County court was affirmed by Judge Rice, who was joined by Presiding Judge Timothy Cannon to form the majority.

Judge Colleen O’Toole dissented, stating that the court of appeals should have remanded Garduno’s case to the trial court because “our common pleas bench is particularly tasked with fashioning felony sentences.”

She held that the experienced trial judges of the common pleas courts are better situated to resentence a defendant.

The case is cited State v. Garduno, 2013-Ohio-4300.

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