Death Sentence Upheld in 2008 Akron Murder Case
Death-row inmate Hersie R. Wesson.
Death-row inmate Hersie R. Wesson.
The Ohio Supreme Court today upheld the death sentence imposed on Hersie R. Wesson for stabbing 81-year-old Emil Varhola to death in February 2008 during a course of conduct that involved the attempted murder of Emil’s 77-year-old wife, Mary, and the aggravated robbery of the elderly couple in their home.
Justice Terrence O’Donnell wrote the court’s majority opinion reviewing Wesson’s convictions and sentence in this case.
The decision partially affirms and partially reverses the judgment of the Summit County Court of Common Pleas.
In February 2008, Hersie R. Wesson of Akron asked Emil Varhola, 81, and Mary Varhola, 77, if he could wait at their house until his girlfriend’s bus arrived. The Varholas knew Wesson from the neighborhood, and Mr. Varhola and Wesson sometimes talked. The couple accommodated Wesson’s request. Wesson attacked and stabbed Mr. Varhola, beat and stabbed Mrs. Varhola, then stole jewelry and money before fleeing the house.
Wesson waived his right to a jury trial and elected to be tried by a three-judge panel. The judge presiding over the case appointed the other two members of the panel, and the matter proceeded to trial. The panel found Wesson guilty of two counts of aggravated murder, with each count carrying capital specifications for aggravated murder while under detention, aggravated murder as part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons, and aggravated murder while committing aggravated robbery, in addition to two counts of attempted murder, two counts of aggravated robbery, and one count each of having a weapon while under a disability and tampering with evidence. The court sentenced Wesson to death for aggravated murder and to 26 years in prison for the other convictions.
On appeal to the Supreme Court, Wesson urged that the judge presiding over his trial had lacked authority to appoint the other two members of the three-judge panel. Justice O’Donnell noted that pursuant to R.C. 2945.06, when a person charged with a capital offense waives a jury trial, the panel hearing the case shall be composed of three judges, two of whom shall be designated by the presiding judge or chief justice of the common pleas court, and if no one holds either position, then they shall be designated by the chief justice of the Supreme Court.
Justice O’Donnell wrote that the term “presiding judge” refers to the judge who is the presiding judge over a multiple-judge common pleas court, not the judge presiding over a particular trial. “If the General Assembly had intended to allow the judge assigned to preside over a capital murder trial to appoint the other two judges of the three-judge panel, then there would be no need to designate the chief justice of the Supreme Court to appoint the judges when there is neither a presiding judge nor a chief justice of the common pleas court, because there would always be a judge presiding over the capital case,” Justice O’Donnell stated.
“Accordingly, the judge presiding over Wesson’s trial, who was neither the presiding judge nor the chief justice of the Summit County Common Pleas Court, lacked authority to designate the other two members of the panel,” Justice O’Donnell continued. The court, however, rejected Wesson’s argument that his conviction and death sentence should be overturned for this error , noting that he had accepted the trial court’s method of appointing the members of the three-judge panel and forfeited all but plain error. “[H]ere, Wesson makes no argument — and therefore does not demonstrate — that the appointment of different members to the three-judge panel would have changed the outcome of the proceeding.”
Wesson also challenged his conviction for committing aggravated murder while under detention and his convictions for specifications charging that he committed aggravated murder while under detention .
Wesson had been convicted of burglary in 2003 , and the trial court had imposed a three-year discretionary term of postrelease control rather than the mandatory term required by his offense. He was placed on postrelease control upon his release from prison in 2007.
Justice O’Donnell noted that “Wesson’s 2003 sentence failed to impose a mandatory three-year term of postrelease control, and so that part of the 2003 sentence is void.” He further explained that pursuant to State v. Billiter (2012), an offender cannot be convicted of escaping from an improperly imposed term of postrelease control. The court therefore reversed Wesson’s conviction for committing aggravated murder while under detention, the related specifications on this count, and a separate specification for committing murder while under detention on the other aggravated murder count.
The Supreme Court also rejected Wesson’s claims that the indictment was invalid, that his statement to police should have been suppressed, that he had been denied the effective assistance of counsel and the right to present a complete defense, that he had been convicted of allied offenses of similar import, that the admission of victim-impact statements amounted to reversible error, and that the death penalty is unconstitutional. The court then independently reviewed the sentence of death imposed and concluded that the evidence supports the finding that Wesson committed aggravated murder as part of a course of conduct and while committing aggravated robbery. Concluding that these aggravating circumstances outweigh the mitigating factors and that Wesson’s death sentence is proportionate to those upheld in similar cases, the court affirmed the sentence of death.
The court’s majority opinion was joined by Justices Paul E. Pfeifer and Sharon L. Kennedy and by Joseph J. Vukovich of the Seventh District Court of Appeals. Judge Vukovich served as a visiting judge during oral arguments in this case, filling in for Chief Justice Maureen O’Connor, who recused herself.
Justice Judith Ann Lanzinger wrote a dissent. Justice Judith L. French wrote separately to concur in part and dissent in part. Justice William M. O’Neill dissented without opinion.
In her dissent, Justice Lanzinger wrote: “I would not find void any portion of Wesson’s 2003 sentence. As the mistake was solely in the court’s exercise of jurisdiction in imposing postrelease control (imposing three years of discretionary, rather than three years of mandatory, postrelease control), the sentence was merely voidable. Since the error was not raised on appeal within 30 days, res judicata applies and Wesson remained under the supervision of the Adult Parole Authority. I also dissent from the majority’s judgment affirming the remaining capital convictions. I would vacate the convictions and remand the case to the trial court for the proper selection of a three-judge panel in this case as precedent demands.”
“[T]he majority’s opinion in this case is yet another example of the inconsistent holdings of this court in cases in which the trial court judge acted contrary to a statutory mandate,” she continued. “The majority reverses Wesson’s conviction for aggravated murder while under detention and for the corresponding specification on Count Two due to a postrelease-control error. So on the one hand, the majority collaterally declares a portion of Wesson’s 2003 sentence void because the trial judge imposed three years of discretionary rather than mandatory postrelease control. Then on the other hand, although the trial judge did not have authority to appoint the other two judges of the three-judge panel in this capital case, the majority affirms Wesson’s remaining capital convictions. Apparently, a postrelease-control error is more important than a procedural error in a capital case. I cannot agree with this inconsistency. I would hold that any error in the court’s exercise of jurisdiction is voidable rather than void.”
Justice French concurred with the majority in all aspects except vacating Wesson’s conviction and specifications for aggravated murder while under detention. She wrote that she agrees with Justice Lanzinger that his 2003 sentence was not void.
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