Murderer to get new sentencing hearing

5/13/2004

COLUMBUS - The Ohio Supreme Court yesterday gave convicted murderer Robert Harwell an opportunity to preserve the chance that he someday could walk out of prison.

In a 5-2 ruling that splintered the usual alliances, the court ordered a new sentencing hearing for the Toledo man.

Harwell was 16 at the time he raped and shot 62-year-old widow JoAnn Harris on Feb. 3, 2000, but the prosecutor charged him with capital murder anyway to retain life without parole as a sentencing option.

"Even though he was not eligible for the death penalty because of his age, Harwell is entitled to the same protections as any defendant charged with a capital offense," wrote Justice Paul Pfeifer for the majority.

The justices determined that Judges Charles Doneghy, William Skow, and Frederick McDonald of Lucas County Common Pleas Court veered from capital offense sentencing procedures when they allowed members of Mrs. Harris' family to recommend the harsher sentence.

"We will have to go through this exhaustive procedural charade of capital protection when the defendant, as a matter of law, cannot receive the death penalty," Assistant Prosecuting Attorney Rick Baum said. "The immediate and obvious impact will be a waste of judicial and prosecutorial time."

Harwell pleaded no contest to aggravated murder, rape, and aggravated burglary.

Mrs. Harris was shot under each eye in her home on Navarre Avenue. She heard Harwell argue with a neighbor and went outside to investigate. After Harwell chased the neighbor with a knife, he attacked Mrs. Harris in her home.

The victim retrieved a handgun she kept in the house for protection before the defendant

entered. However, Harwell took the gun, sexually assaulted her, and shot her.

Although the sentencing procedure will change when another hearing is held, life without parole remains a sentencing option.

"The possibilities are life without parole, life with parole after 30 years, and life with parole after 25 years," said Harwell's attorney, Jeffrey Gamso. "None are pleasant. They are all long-term sentences with the potential of life The lesser of the sentences is still a monstrously long time for a kid."

In upholding a ruling by the 6th District Court of Appeals, Justice Pfeifer was joined by fellow Republican Justices Evelyn Lundberg Stratton and Maureen O'Connor, Democrat Justice Francis Sweeney, and Canton-based Democrat Appellate Judge W. Scott Gwin.

Republican Justice Terrence O'Donnell and Chief Justice Thomas Moyer dissented.

"While the state may have charged Harwell with a capital offense he was not entitled to death-penalty due process protections because imposition of the death penalty was never an issue in this case," wrote Justice O'Donnell.

It remains to be seen how many other cases will be affected by the ruling, but at least one other Lucas County case has been seemingly entwined with Harwell.

The aggravated murder conviction of Cecil Koger was overturned by the 6th District because the lower court did not follow normal procedures accompanying a capital crime, even when death is not a sentencing possibility.

Koger was convicted in the 1998 drug-related slaying of Steven Johns. Like Harwell, he was 16 when the crime was committed. Unlike Harwell, the court ultimately returned a sentence of life with the possibility of parole.

A decision from the Ohio Supreme Court in the Koger case is pending. Judge Gwin substituted in the Harwell case for Justice Alice Robie Resnick of Ottawa Hills.

Contact Jim Provance at:

jprovance@theblade.com

or 614-221-0496.