IN THE
SUPREME COURT OF OHIO
STATE OF OHIO NO. 2011-0319
Plaintiff-Appellee . On Appeal from the Hamilton County
Court of Appeals, First Appellate
VS. District
JEROME DENNIS
Court of Appeals
Case Number C 100084
Defendant-Appellant
Joseph T. Deters (0012084P)
Prosecuting Attomey
Scott M. Heenan (0075734P)
Assistant Prosecuting Attorney
230 East Ninth Street, Suite 4000
Cincinnati, Ohio 45202
(513) 946-3227
Fax No. (513) 946-3021
COUNSEL FOR PLAINTIFF-APPELLEE, STATE OF OHIO
Geoffrey W. Pittman
Attorney at Law
810 Sycamore St.
Cincinnati, Ohio 45202
(513) 338-1969
COUNSEL FOR DEFENDANT-APPELLANT, JEROME DENNIS
OF GOllRT
L_
SUPREME COURT OF OHIO
TABLE OF CONTENTS
PAGE
Explanation of why this case is not a case of public or great general interest and does not
involve a substantial constitutional question .................................................................................. 1
Statement of the Case and Facts ..................................................................................................... 2
Argument in Support of Propositions of Law ................................................................................: 6
Proposition of Law No. 1: The waiver of the right to trial by jury in a capital case applies
to both the guilt phase and the penalty phase of the trial .................................................... 6
Authorities Presented:
Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 N.E.2d 2435. ........... 6
Ring v. Arizona (2002), 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556.. .........:.............. 6
State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, 845 N.E.2d 470 ................................. 7
State v. Foust, 105 Ohio St. 3d 137, 2004-Ohio-7006, 823 N.E.2d 836 ............................ 7
State v. Hoffner, 102 Ohio St. 3d 358, 2004-Ohio-3430, 811 N.E.2d 48 ........................... 7
State v. Hollingsworth (2001), 143 Ohio App. 3d 562, 556-569; 758 N.E.2d 713 ............ 7
Proposition of Law No. 2: A three-judge panel's sentence will only be overturned if there
is an abuse of the panel's discretion .. ................................................................................. 8
Authorities Presented:
R.C. 2929.30(F) .. ................................................................................................................ 8
City of Toledo v. Reasonover (1965), 5 Ohio St. 2d 22, 213 N.E.2d 179 .....:.............,....... 8
State v. Jenkins (1984), 15 Ohio St. 3d 164, 222, 473 N.E.2d 264 . ................................... 8
United States v. Tucker (1972), 404 U.S. 433, 92 S.Ct. 589, 30 L.Ed.2d 592 .................... 8
Conclusion .................................................................................................................................... 10
Proof of Service ............................................:...........................................................:................... 10
Explanation of why this case is not a case of public or great 2eneral interest and does not
involve a substantial constitutional guestion
Though both the issues Jerome Dennis has raised have been settled by this Court, he
wants this Court to accept jurisdiction and to review the appellate court's decision anyway.
Since the issues he has asked this Court to consider are settled, jurisdiction should be declined.
Dennis first asks this Court to consider whether a three-judge panel may impose a nonminimum sentence. This Court has, however, held that "[t]he waiver of the right to trial by jury
in a capital case applies to both the guilt phase and the penalty phase of the trial."' Since
Dennis's waiver applied to both the guilt and penalty phase of his trial, the three-judge panel was
authorized to impose any legal sentence, including life without parole.
Dennis next asks this Court to review the three-judge panel's sentence for an abuse of
discretion. This Court has ruled that a three-judge panel has broad discretion to choose amongst
the various life sentences within the statutory guidelines and, absent an abuse of that discretion,
the sentence will not be disturbed on appeal.2 The record in this case supports the three-judge
panel's decision.
This Court does not simply review appellate decisions. It only accepts cases where there
is something new to be decided. Everything Dennis has raised can be and was addressed using
existing law. As such, this Court should decline jurisdiction over this case.
'State v. Foust, 105 Ohio St. 3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 54.
2 See City of Toledo v. Reasonover (1965), 5 Ohio St. 2d22,213 N.E.2d 179.
I
Statement of the Case and Facts
After electing to waive a jury and to demand a three-judge panel, Jerome Dennis pleaded
guilty to three counts of aggravated robbery, two counts of having weapons under disability, and
one count of aggravated murder, which carried a death penalty specification, and to multiple gun
specifications. The panel then held a sentencing hearing where it heard aggravating and
mitigating evidence in regards to the death penalty. After hearing all of the evidence, the panel
sentenced Dennis to life in prison without the possibility of parole on the aggravated murder and
ran that sentence consecutive to the combined sentence of 36 years on the other crimes and
specifications.
The following facts were admitted during Dennis' plea hearing:
On June 3, 2008, Dennis robbed the Shamrock Gas Station at gun point. On June 5th, he
robbed the HS & MD clothing store at gun point. When he robbed the clothing store, Dennis
entered the store and pulled his gun on the store's owner, Abdrahmane Diallo. During the
robbery, Dennis shot Diallo multiple times, killing him. He then stole the store's money and also
found and took a prescription bottle belonging to Diallo.
During both of those robberies, Dennis was under a disability that prevented him from
having firearms. During the sentencing phase, those crimes were described in greater detail:
On June 3rd, just before noon, Dennis entered the Shamrock Gas Station while
brandishing a dark colored handgun. Wearing only a red hoody as a disguise, Dennis' face was
visible on the store's surveillance video. He demanded the stores money and then fled. He was
seen getting into a four-door car as he fled the area.
Down the street from the Shamrock Gas Station was the HD & MD Clothing Store. It
was run by Diallo, a law abiding man who was in the United States on a work visa. On June 5th,
2
one of Diallo's friends, Amadou Diagne, tried calling him but got no answer. Since he was
unable to reach him on the phone, Diagne went to the clothing store.
When he entered the store, Diagne heard some rustling sounds coming from a cloth g
rack at the back of the store. He walked towards the back of the store and ran into Dennis.
Dennis pointed his gun at Diagne as he fled from the store. Diagne chased after Dennis while
calling 911, but he had some trouble communicating with them because his English was not very
good.
A bystander tried to help Diagne, but they both lost sight of Dernris. Another witness,
however, saw Dennis fleeing and later saw him return to a beige four-door car. Diagne did,
however, retrieve the hat that fell off Dennis' head while he fled.
When the police arrived, Officer Helms and Diagne went back to the clothing store where
they found Diallo dead from multiple gunshots. An autopsy later showed that he had been shot
three times at close range, with one of bullet striking his heart.
As they began investigating this crime, police discovered that a neighboring business had
video surveillance of the area. That video showed Dennis driving by, walking to the clothing
store, and fleeing while being chased by Diagne.
In searching the area, the police found three 9mm casings in the store.. And, a block or so
away from the store, they found a prescription bottle belonging to Diallo.
Due to how close in time and location the murder was to the robbery of the Shamrock
Gas Station, police showed Diagne photos of the gas station suspect. Diagne positively
identified Dennis as the man who he saw in and chased from the clothing store.
3
Police were able to leam that the hat that Diagne picked up as he chased after Dennis
came from a very small production of clothing called Hood Year that was sold almost entirely in
the Skyline Acres area of Colerain Township.
After narrowing down the type of vehicle seen at both crime scenes as a Mazda 929,
police were able to determine that only 16 possible vehicles were in the general area of both
crimes. One vehicle matched up to a young woman who had recently sold the car to her
boyfriend's brother who happened to live in the Skyline Acres area of Colerain Township. Other
officers soon found the vehicle outside of 8526 Neptune Drive in the Skyline Acres area. From
there, the police traced the car to Dennis.
The house on Neptune was owned by Dennis' grandmother. She allowed police into the
house. After identifying Dennis in a photo from the Shamrock Gas Station robbery, she allowed
the police to look in Dennis' room where police saw more Hood Year clothing, which prompted
the police to obtain a search warrant.
Prior to going to the house, the Mazda had disappeared, but was soon discovered by Golf
Manor police. A person living in the area told police that she saw two men taking things from
the car and wiping it down. She saw those people leave in a white Impala.
While the police were executing the search warrant, Dennis' brother, Jeremy Austin,
arrived in a white Tmpala. Austin told the police about how he took Dennis to where the Mazda
had been parked, saw Dennis pull things out of the car and wipe it down, and that Dennis later
told him that he shot Diallo while robbing the clothing store.
While the police now knew that Dennis was their prime suspect, they had no idea where
he was.
4
A few months later, Dennis turned himself into the San Antonio, Texas, police. Dennis
gave a full and complete confession to all of the crimes he was found guilty of committing. In
his confession, Dennis said he was tired of a life on the run and was ready to face the
consequences for his actions.
After the panel heard all of the evidence, it found the following aggravating
circumstances: The offense was committed while Dennis was committing, attempting to commit,
or fleeing immediately after conunitting or attempting to commit aggravated robbery and that
Dennis was the principal offender. It found the following mitigating factors: Dennis' youth, that
Dennis voluntarily tumed himself in, that Dennis accepted responsibility for his crimes, that
Dennis showed genuine remorse, that Dennis did not attempt to blame anyone other than himself
for his crimes, that Dennis fully cooperated with law enforcement and gave a full and voluntary
confession, that Dennis has the love and support of his family, that Dennis voluntarily pleaded
guilty without any promises from the State, and that Dennis would like adjust well to prison. It
then found that the appropriate sentence for the aggravated murder was life without the
possibility of parole.
5
Argument in Support of Propositions of Law
Proposition of Law No. 1: The waiver of the right to trial by jury in a capital
case applies to both the guilt phase and the penalty phase of the trial.
Though he knowingly, intelligently, and voluntarily waived his right to a jury trial and
demanded that both the guilt and sentencing phases of his case be heard by a three-judge panel,
Dennis now argues that his waiver and demand did not confer on the three-judge panel the right
to sentence him to anything beyond a minimum sentence. Ohio law does not support his
arguments.
Dennis argues that under Apprendi v. New Jersey3 and its progeny that the three-judge
panel was left with no option but to impose the minimum sentence allowed by law for his crime,
which would be twenty years to life in prison. Apprendi was first applied to capital cases by the
the United States Supreme Court held
United States Supreme Court in Ring v. Arizona 4 In Ring,
that Arizona's capital-sentencing scheme violated the defendant's Sixth Amendment guarantee
to a jury trial because it entrusted the trial judge instead of the jury with making factual
determinations as to the existence of aggravating circumstances necessary for imposing the death
penalty.s
Dennis argues that this Court has not considered how Apprendi and Ring apply to capital
cases either in Foster or in any case since then. To a degree, he is correct. This Court did not
dealt with Senate Bil12 law.
consider capital cases in Foster, but that is likely because Foster
Senate Bill 2, however, dealt with sentencing issues surrounding classified felonies, not special
3 Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 N.E.2d 2435.
" Ring v. Arizona (2002), 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556.
'Id. At 609.
6
felonies such as aggravated murder.6 And while this Court has not considered Apprendi and
Ring since Foster was released, it did consider them prior to its release.
In State v. Hoffner, this Court found that Ring did not invalidate Ohio's capitalsentencing scheme: "We hold, however, that Ring has no possible relevance to Hoffner's case, or
to Ohio's death penalty statute. Under the Arizona sentencing statutes proscribed in Ring, the
trial court was solely responsible for making all factual determinations regarding whether a
defendant should be sentenced to death. In contrast, Ohio's capital-sentencing scheme places
that responsibility with the jury. R.C. 2929.03 charges the jury with determining, by proof
beyond a reasonable doubt, the existence of any statutory aggravating circumstances and whether
those aggravating circumstances are sufficient to outweigh the defendant's mitigating
evidence."7
The problem with Ohio's sentence statutes that was found to exist in State v. Foster8 was
very similar to the problem that existed with Arizona's capital-sentencing scheme. Juries would
find defendants guilty of a crime, but only trial courts would be able to make the factual findings
necessary for sentencing.
But under Ohio's capital-sentencing scheme "[t]he waiver of the right to trial by jury in a
capital case applies to both the guilt phase and the penalty phase of the trial."9 This was
something that Dennis acknowledged when he elected to waive his right to trial by jury and to
demand a three-judge panel and something that was discussed with him at length before his jury
waiver and demand for a three-judge panel were accepted.
6 See State v. Hollingsworth (2001), 143 Ohio App. 3d 562, 556-569, 758 N.E.2d 713.
7 State v. Hoffner, 102 Ohio St. 3d 358, 2004-Ohio-3430, 811 N.E.2d 48,169 citing R.C. 2929.03(B) and (D).
Other citations onritted.
$ State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, 845 N.E.2d 470.
9 State v. Foust, 105 Ohio St. 3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 54.
7
Since Dennis knowingly, intelligently, and voluntarily waived his right to a jury trial and
elected to be tried by a three-judge panel he gave the three-judge panel the authority to find all
factual matters necessary for finding him guilty as well as for sentencing him.
Proposition of Law No. 2: A three-judge panel's sentence will only be overturned if
there is an abuse of the panel's discretion.
The three-judge panel properly exercised its discretion when it sentenced Dennis.
Though the record and the panel's sentencing opinion shows that the panel properly
considered the aggravating and mitigating factors when it chose to sentence Dennis to life in
prison without the possibility of parole in his aggravated murder conviction, Dennis argues that
the trial court abused its discretion by not imposing a minimum sentence. Dennis is wrong.
A three-judge panel has broad discretion to choose amongst the various life sentences
within the statutory guidelines and, absent an abuse of that discretion, the sentence will not be
disturbed on appeal.10 An abuse of discretion implies more than just an error of law. It exists
only where the court's attitude, evidenced by its decision, was unreasonable, arbitrary, or
unconscionable.i1
When a three-judge panel imposes life imprisonment, it is required to state in a separate
opinion its specific fmdings as to which of the mitigating factors of R.C. 2929.04(D) it found to
exist, any other mitigating factors it found, what aggravating circumstances the offender was
guilty of committing, and why the court could not find these aggravating circumstances were
insufficient to outweigh the mitigating factors.tZ
City of Toledo v. Reasonover
10 See United States v. Tucker (1972), 404 U.S. 433, 92 S.Ct. 589, 30 L.Ed.2d 592;
(1965), 5 Ohio St. 2d 22, 213 N.E.2d 179.
" State v. Jenkins (1984), 15 Ohio St. 3d 164, 222, 473 N.E.2d 264.
R.C. 2929.30(F).
8
In its sentencing opinion, the three-judge panel found the following aggravating
circumstances: the offense was conunitted while Dennis was committing, attempting to commit,
or fleeing immediately after committing or attempting to commit an aggravated robbery and that
Dennis was the principal offender in the commission of the aggravated murder. It found and
considered Dennis' youth, that he voluntarily turned himself into law enforcement, that he
accepted responsibility for his actions, that he expressed genuine remorse, that he did not attempt
to blame anyone but himself for his actions, that he fully cooperated with law enforcement, that
he gave a full and voluntary confession, that he has the love and support of his family, that he
voluntarily pleaded guilty without any promises from the State, and that he was likely to adjust
well to prison.
found the
After considering those aggravating and mitigating circumstances, the panel
appropriate sentence was life without the possibility of parole. It found and considered the
factors that Dennis has raised in his appeal.
While Dennis' actions sometime after his crimes are noteworthy, this does not erase his
actions on the day he murdered Diallo. It does not change that this was the second store he
robbed at gunpoint. It does not change that he fired multiple shots into Diallo. It does not
change that he stole money from the cash register after he shot Diallo to death. It does not
change that he searched out Diallo's prescription medication after he shot Diallo to death. It
does not change that he threatened Diagne with his gun after he was spotted rummaging in the
back of the store after he had killed Diallo.
The panel appropriately found and considered the aggravating and mitigating
circumstances that existed in this matter. It appropriately found that the proper punishment for
Dennis' crimes was life in prison without the possibility of parole.
9
Conclusion
The issues that Dennis has asked this Court to consider are settled. Since they are settled
Jurisdiction should, therefore, be
issues, there is no reason for this Court to accept this case.
declined.
Respectfully,
Joseph T. Deters, 0'b12084P
Prosecuting Attoey
Scott M. HeeAan, 0075734P
Assistant Prosecuting Attorney
230 East Ninth Street, Suite 4000
Cincinnati, Ohio 45202
Phone: 946-3227
Attorneys for Plaintiff-Appellee, State of
Ohio
Proof of Service
I hereby certify that I have sent a copy of the foregoing Memorandum in Response, by
United States mail, addressed to Geoffrey W. Pittman, 810 Sycamore St., Cincinnati, Ohio
2011.
'^
45202, Cincinnati, Ohio 45202, counsel of record, thisc h d^1oMarch,
Scott 1V1=. Heenan, 0075734P
Assistant Prosecuting Attorn.ey
10