State ex rel. Maurer v. Sheward

33

The State ex rel. Maurer et al., Appellants, v. Sheward, Judge,

Appellee.

Wilkinson, Dir., et al., Appellants, v. Maurer et al., Appellees.

[Cite as State ex rel. Maurer v. Sheward (1994), ___ Ohio St.3d

___.]

Constitutional law — Commutations of death sentences by Governor

not subject to application process outlined in R.C. 2967.07

— Section 11, Article III, Ohio Constitution, construed.

(Nos. 92-1350 and 93-1165 — Submitted September 20, 1994 —

Decided December 30, 1994.)

Appeals from the Court of Appeals for Franklin County, Nos.

91AP-1442, 92AP-674, 92AP-675, 92AP-677 and 92AP-678.

Case No. 93-1165

On January 10, 1991, two business days before the expiration

of his term in office, former Ohio Governor Richard F. Celeste

commuted the sentences of eight inmates and granted one full

pardon. Two additional inmates also were granted clemency, but

their appeals below were either withdrawn or properly found to be

moot.1

Donald Lee Maurer, Leonard Jenkins, Debra Brown, Willie Lee

Jester, Elizabeth Green, Lee Seiber and Rosalie Grant had been

convicted of aggravated murder and sentenced to death. With the

exception of Rosalie Grant, former Governor Celeste commuted the

death sentences to life imprisonment without eligibility for

parole. The Governor commuted Rosalie Grant’s death sentence to

life in prison with no restriction as to parole eligibility.

Ralph DeLeo had been convicted of murder and was serving a

sentence of fifteen years to life. Former Governor Celeste

commuted his sentence to time served. John Salim had been

convicted of felonious assault. He was serving a sentence of six

to twenty-one years when former Governor Celeste granted him a

full pardon.

When the former Governor granted the pardon and

commutations, the Ohio Adult Parole Authority (“APA”) had not

been asked to conduct investigations or formulate recommendations

for seven of the applicants who had been sentenced to death.

Instead, their applications for clemency were filed directly with

the former Governor. With respect to Ralph DeLeo and John Salim,

their applications were submitted to the APA between December 6

and December 17, 1990. By January 9, 1991, the APA had taken no

final action on the two applications. On that day, a

representative from former Governor Celeste’s office called the

APA to request that it expedite review of the two applications.

The APA responded that it could not complete the review process

in two business days.

On January 29, 1991, George Wilson, Director of the

Department of Rehabilitation and Correction, and John Shoemaker,

Chief of the APA,2 filed a complaint for declaratory judgment in

the Franklin County Court of Common Pleas seeking a determination

that former Governor Celeste’s actions were in contravention of

Section 11, Article III of the Ohio Constitution, and R.C.

Chapter 2967. The plaintiffs sought a declaration that the

pardon and commutations granted to the defendants by former

Governor Celeste were void. Current Governor George V. Voinovich

successfully petitioned the court for leave to intervene as a

plaintiff.

On March 6, 1991, the defendants moved to dismiss the

complaint for lack of jurisdiction, alleging that the matter was

nonjusticiable, because any judicial declaration as to the

validity of executive clemency would unconstitutionally infringe

upon the Governor’s clemency power. The trial court overruled

the motion on September 26, 1991. Following a bench trial, the

trial judge issued a decision and entry granting a declaratory

judgment to plaintiffs. The court explained that “full

compliance with the requirements of R.C. 2967.07 and R.C. 2967.12

is a condition precedent to the valid exercise of the clemency

power by the Governor * * *” and that the pardon and commutations

granted by former Governor Celeste were invalid.

The eleven defendants appealed in six separate notices of

appeal to the Tenth District Court of Appeals; their appeals were

consolidated for decision. The court of appeals reversed the

decision of the trial court. After considering the language of

Section 11, Article III, the court of appeals found that the

clause that subjects the Governor’s clemency power to “such

regulations, as to the manner of applying for pardons” applies

only to the Governor’s power to grant pardons. The court stated

that the constitutional provision does not provide the General

Assembly with authority to regulate the Governor’s power to grant

commutations. The court of appeals also determined that

regulations enacted by the General Assembly apply to individuals

applying for pardons but do not affect the ability of the

Governor to grant a pardon on his own initiative. Specifically,

the court of appeals held that nothing in Section 11, Article III

of the Ohio Constitution or R.C. Chapter 2967 could limit the

Governor’s power to grant clemency on his own initiative, even if

he chose to do so without first receiving a recommendation from

the APA.

This cause is now before this court upon the allowance of a

motion to certify the record.

Case No. 92-1350

The second cause submitted for review emerged from the

underlying declaratory judgment action discussed above. On

December 10, 1991, after the trial court denied the defendants’

motion to dismiss the action, but prior to trial, the defendants

sought a writ of prohibition in the Franklin County Court of

Appeals. Defendants urged the court of appeals to bar the trial

judge from exercising judicial power over the declaratory

judgment action, because the action did not present a justiciable

question. On January 28, 1992, a referee concluded that the

defendants’ arguments lacked merit and recommended that the court

of appeals dismiss the prohibition action on the basis of this

court’s decision in State ex rel. Ney v. Governor (1991), 58 Ohio

St.3d 602, 567 N.E.2d 986. The court of appeals adopted the

referee’s recommendation and dismissed the petition.

This cause is now before this court upon an appeal as of

right and has been consolidated with case No. 93-1165 for

purposes of final determination.

___________________

Ken Murray, for appellant Debra Brown in case No. 92-1350.

Barry W. Wilford and Dennis Pusateri, for Ralph DeLeo.

S. Adele Shank, for Rosalie Grant.

D. Shannon Smith and Timothy A. Smith, for Elizabeth Green.

Elizabeth A. McNellie, Joy Maciejewski and Sean M. McAvoy,

for appellant Leonard Jenkins in case No. 92-1350.

Shaw, Pittman, Potts & Trowbridge, Thomas C. Hill, Alvin

Dunn and Joseph Figini; Matan & Smith and Steven L. Smith, for

Willie L. Jester.

Sowash, Carson & Shostak and Herman A. Carson, for Donald

Maurer.

Richard B. Igo, for Freddie Moore and John Salim.

Gregory W. Meyers, for Lee Seiber.

Michael Miller, Franklin County Prosecuting Attorney, and

Bonnie L. Maxon, Assistant Prosecuting Attorney, for appellee in

case No. 92-1350.

Lee Fisher, Attorney General, John J. Gideon and Jack W.

Decker, Assistant Attorneys General, for appellants in case No.

93-1165 and urging affirmance for amici curiae, George Voinovich,

Reginald Wilkinson and Jill Goldhart in case No. 92-1350.

K. Ronald Bailey, for appellee Debra Brown in case No. 93-

1165.

Melanie S. Corcoran, James W. Brown III and Christopher P.

Thorman, for appellee Leonard Jenkins in case No. 93-1165.

Steven H. Steinglass, urging dismissal or affirmance for

amicus curiae, Law Professors’ Brief Amicus Curiae Committee in

case No. 93-1165.

Kevin Francis O’Neill, Peter Joy, Daniel T. Kobil and Paul

Moke; Moots, Cope & Stanton and Benson A. Wolman, urging

affirmance for amicus curiae, American Civil Liberties Union of

Ohio Foundation in case No. 93-1165.

Squire, Sanders & Dempsey and David J. Young, urging affirmance

for amicus curiae, Catholic Conference of Ohio in case No. 93-

1165.

Law Enforcement Legal Association, Inc., Paul L. Cox and

Walter T. Florence, urging reversal for amicus curiae, Fraternal

Order of Police of Ohio, Inc., in case No. 93-1165.

___________________

Per Curiam. Case No. 93-1165 requires this court to decide

three issues: (1) Does Section 11, Article III of the Ohio

Constitution authorize the General Assembly to prescribe

procedural prerequisites to the exercise of the Governor’s

clemency power?; (2) If so, does the General Assembly have the

authority to prescribe procedural prerequisites for commutations

as well as pardons?; and (3) Has the General Assembly in fact

imposed procedural prerequisites upon the Governor’s clemency

power?

We will address case No. 92-1350, which raises issues also

implicated by case No. 93-1165, in Part IV of this opinion.

I

Section 11, Article III of the Ohio Constitution provides

the authority for the Governor’s clemency power:

“He [the Governor] shall have power, after conviction, to

grant reprieves, commutations, and pardons, for all crimes and

offenses, except treason and cases of impeachment, upon such

conditions as he may think proper; subject, however, to such

regulations, as to the manner of applying for pardons, as may be

prescribed by law. Upon conviction for treason, he may suspend

the execution of the sentence, and report the case to the general

assembly, at its next meeting, when the general assembly shall

either pardon, commute the sentence, direct its execution, or

grant a further reprieve. He shall communicate to the general

assembly, at every regular session, each case of reprieve,

commutation, or pardon granted, stating the name and crime of the

convict, the sentence, its date, and the date of the commutation,

pardon, or reprieve, with his reasons therefor.”

Section 11, Article III was adopted as part of extensive

revisions to the Constitution made in 1851. Prior to 1851, the

Governor’s clemency power was set forth in Section 5, Article II

of the Ohio Constitution of 1802, which provided in its entirety:

“He [the Governor] shall have the power to grant reprieves and

pardons, after conviction, except in cases of impeachment.” This

section was modeled after Section 2, Article II of the United

States Constitution, which gives the President the “Power to

grant Reprieves and Pardons for Offences against the United

States, except in Cases of Impeachment.”

Both the United States Constitution and the Ohio

Constitution of 1802 conferred broad powers of executive

clemency. The only limitations on the clemency power were that

it could be exercised only after conviction (Ohio Constitution)

and that clemency could not be granted in cases of impeachment

(both Ohio and United States Constitutions). Neither

Constitution authorized the enactment of laws to curtail the

executive’s clemency power. However, with the adoption of

Section 11, Article III, Ohio significantly altered its provision

on executive clemency.

Although the Ohio Constitution places the clemency power in

the hands of the Governor, that power clearly is not absolute.

The Governor’s clemency power is subject to whatever restrictions

are contained in Section 11, Article III. See State v. Morris

(1978), 55 Ohio St.2d 101, 111, 9 O.O.3d 92, 98, 378 N.E.2d 708,

714. These restrictions provide that clemency may be granted

only after conviction, may be granted only partially in cases of

treason, and not at all in cases of impeachment.

Though the Governor’s power to grant clemency is limited,

the only limits on the clemency power are those specifically

authorized by Section 11, Article III. Knapp v. Thomas (1883),

39 Ohio St. 377, 392. The General Assembly may not interfere

with the discretion of the Governor in exercising the clemency

power. Morris, 55 Ohio St.2d at 111, 9 O.O.3d at 98, 378 N.E.2d

at 714. Likewise, the Governor’s exercise of discretion in using

the clemency power is not subject to judicial review. See State

ex rel. Whiteman v. Chase (1856), 5 Ohio St. 528, 535; Knapp, 39

Ohio St. at 391.3

The specific limitation at issue in this case comes from the

“subject to” clause of Section 11, Article III:

“He [the Governor] shall have power, after conviction, to

grant reprieves, commutations, and pardons, for all crimes and

offenses, except treason and cases of impeachment, upon such

conditions as he may think proper; subject, however, to such

regulations, as to the manner of applying for pardons, as may be

prescribed by law.” (Emphasis added.)

It is apparent from the structure of the first sentence of

Section 11 that the “subject to” clause modifies the word

“power.” The first clause of the first sentence provides the

Governor the power to grant executive clemency. The presence of

the word “however” in the second clause indicates a limit on that

power. Thus, the Governor’s power to grant clemency is limited

by the “subject to” clause. However, the authority granted to

the General Assembly under the “subject to” clause is itself

limited to regulating the application process. Furthermore, as

we conclude below, the “subject to” clause only provides the

General Assembly with the authority to regulate “as to the manner

of applying for pardons.” (Emphasis added.) Consistent with

Knapp and Morris, the authority to issue regulations is further

limited in that those regulations may not interfere with the

Governor’s discretion to grant or deny pardons.

We believe that the authority to prescribe regulations “as

to the manner of applying for pardons” provides the General

Assembly with the authority to prescribe a regulatory scheme

governing the manner and procedure of applying for pardons.

Unlike the court of appeals, we do not believe that the General

Assembly has the authority to regulate only the applicants for

pardons. We interpret the language of the “subject to” clause as

providing the General Assembly with the authority to establish a

regulatory scheme that includes prerequisites to the exercise of

the Governor’s power to grant pardons.4 Our interpretation is

consistent with the purpose of the “subject to” clause, which was

to provide the General Assembly with the authority to establish

procedural safeguards against the granting of pardons. The

drafters of Section 11 were concerned that without such

safeguards, the Governor might grant pardons without thorough

consideration or might be too easily influenced by political

factors to grant or deny clemency for reasons other than the

merits of an inmate’s claim. See 1 Report of the Debates and

Proceedings of the Convention for the Revision of the

Constitution of the State of Ohio 1850-1851 (1851) 306-307.

Consistent with the language and purpose of Section 11, the

authority to regulate the application process must also include

the authority to establish prerequisites to the Governor’s

exercise of the power to grant pardons. To exempt the Governor

from the “subject to” clause would allow the Governor to

circumvent the procedural safeguards for which the clause was

adopted, rendering the clause meaningless.

For the foregoing reasons, we hold that the General Assembly

is authorized by Section 11, Article III of the Ohio Constitution

to prescribe procedural prerequisites to the application process

for executive pardons. In order to be valid, any grant of a

pardon must be based on an application that complies with the

procedural prerequisites. The General Assembly is not authorized

to prescribe substantive regulations concerning the Governor’s

discretion in the use of the clemency power, or in any way

intrude on the discretion of the Governor. For example, the

General Assembly could not, acting under the limited authority

provided by Section 11, Article III, enact a statute requiring

the Governor to accept the recommendation of the APA in the

exercise of his clemency power. Likewise, the General Assembly

could not enact a statute forbidding the Governor from exercising

the clemency power in any specific class of cases.

II

Having determined that Section 11, Article III authorizes

the General Assembly to prescribe procedural regulations as to

the application process for pardons, we next consider whether

that authority extends to any other types of clemency.

The language of Section 11 expressly provides the extent of

the General Assembly’s authority to regulate the application

process for executive clemency: “[The Governor] shall have power

* * * to grant reprieves, commutations, and pardons * * *;

subject, however, to such regulations, as to the manner of

applying for pardons, as may be prescribed by law.” (Emphasis

added.) The language of Section 11 clearly provides the General

Assembly with the authority to regulate the application process

for pardons. However, the “subject to” clause does not implicate

in any way the Governor’s powers with respect to commutations or

reprieves.5 The issue then becomes whether commutations, even

though they are not mentioned within the “subject to” clause, may

also be regulated.

Plaintiffs argue that the authority to regulate the

application process for “pardons” also includes the authority to

similarly regulate commutations. They reach that conclusion

based upon their perception that the word “pardons” may be

interpreted broadly to include all types of executive clemency.

In other words, the plaintiffs argue that commutations are a

subset of pardons, and by using the word “pardons” the drafters

intended that the General Assembly have the power to regulate

commutations as well as pardons.

We do not believe that commutations are a subset of pardons.

The first step in determining the meaning of a constitutional

provision is to look at the language of the provision itself.

Where the meaning of a provision is clear on its face, we will

not look beyond the provision in an attempt to divine what the

drafters intended it to mean. Slingluff v. Weaver (1902), 66

Ohio St. 621, 64 N.E. 574.

The meaning of Section 11 is obvious after a careful review

of that provision. The first sentence provides the Governor with

the power to grant three different types of clemency — reprieves,

commutations and pardons. The end of the first sentence is

equally clear in providing the General Assembly with the

authority to regulate the application process for only one type

of clemency — pardons. The language of Section 11 could not be

clearer in limiting the General Assembly’s authority to regulate

only pardons. Moreover, any argument that commutations are a

subset of pardons is, as shown below, simply unsupportable.

The canons of statutory interpretation, which guide our

interpretation of constitutional and statutory text, support the

conclusion that the word “pardons” in the “subject to” clause

does not include commutations. This court has consistently held

that words used more than once in the same provision have the

same meaning throughout the provision, unless there is clear

evidence to the contrary. State ex rel. Bohan v. Indus. Comm.

(1946), 146 Ohio St. 618, 33 O.O. 92, 67 N.E.2d 536, paragraph

one of the syllabus, overruled on other grounds, State ex rel.

Walker v. Indus. Comm. (1979), 58 Ohio St.2d 402, 12 O.O.3d 347,

390 N.E.2d 1190. The three types of clemency are each listed

together four different times in Section 11. In fact, the only

time one type of clemency is mentioned alone is when “pardons”

appears within the “subject to” clause. To define pardons to

include commutations when the two types of clemency are each

listed together so many times within the same small section would

be nonsensical. Additionally, interpreting “pardons” to include

commutations has the problem of rendering the presence of the

word “commutations” useless. Our prior cases require that we

reject that result, because if possible we must give meaning to

every word in a provision. Steele, Hopkins & Meredith Co. v.

Miller (1915), 92 Ohio St. 115, 110 N.E. 648.

The argument that commutations are a subset of pardons is

also contrary to our previous decisions where we have held that

commutations and pardons are two entirely different types of

clemency. In In re Victor (1877), 31 Ohio St. 206, 207, this

court defined a commutation as “a change of punishment from a

higher to a lower degree, in the scale of crimes and penalties

fixed by the law * * *.” In State ex rel. Atty. Gen. v. Peters

(1885), 43 Ohio St. 629, 650-651, 4 N.E. 81, 87-88, this court

defined pardons:

“A pardon discharges the individual designated from all or

some specified penal consequences of his crime. It may be full

or partial, absolute or conditional.

“A full and absolute pardon releases the offender from the

entire punishment prescribed for his offense, and from all the

disabilities consequent on his conviction.

“[A] commutation is ‘the change of a punishment to which a

person has been condemned into a less severe one.’

“It is not a conditional pardon, but the substitution of a

lower for a higher grade of punishment * * *.” (Citation omitted

and emphasis added.)

The Peters case conclusively established that pardons are

different from, and do not include, commutations. The

interpretation of Section 11 ends here, with the unmistakable

conclusion that the “subject to” clause does not provide the

authority to regulate commutations.

Instead of approaching Section 11 by considering its plain

language, the dissent attempts to justify its interpretation that

the word “pardons” in the “subject to” clause includes

commutations by wading into the morass of speeches made by the

drafters of Section 11. The dissent bases its interpretation on

the perception that because several drafters did not distinguish

between commutations and pardons in their speeches regarding the

reporting clause of Section 11, they intended that the word

pardon in the “subject to” clause include commutations. Such a

conclusion is simply incomprehensible. We do not agree that

imprecise speeches by individual drafters give courts carte

blanche to ignore the plain language of a constitutional

provision. Those drafters were precise when they wrote the

reporting provision. That provision, which is the last sentence

of Section 11, precisely distinguishes among the three different

types of clemency: “He shall communicate to the general

assembly, at every regular session, each case of reprieve,

commutation, or pardon granted, stating the name and crime of the

convict, the sentence, its date, and the date of the commutation,

pardon, or reprieve, with the reasons therefor.” (Emphasis

added.) Moreover, as we stated in Slingluff, we will not look to

the history of a provision where, as here, the language of the

provision is clear.

Given our tradition of interpreting statutory and

constitutional language, the only plausible interpretation of

Section 11 is the one we adopt today — the “subject to” clause

provides authority to the General Assembly to regulate the

application process for pardons and not commutations.

III

Because we have established that Section 11, Article III

authorizes the General Assembly to regulate the application

process for pardons, we must determine whether the General

Assembly has, in fact, prescribed any regulations. Plaintiffs

claim that the General Assembly, through R.C. Chapter 2967 in

general and R.C. 2967.07 in particular, has established

procedural requirements that must be fulfilled before a pardon

may be granted. Defendants argue that R.C. 2967 is merely a

directory statute setting forth procedures which the Governor

may choose to ignore.

R.C. 2967.07 provides:

“All applications for pardon, commutation of sentence, or

reprieve shall be made in writing to the adult parole authority.

Upon the filing of such application, or when directed by the

governor in any case, a thorough investigation into the propriety

of granting a pardon, commutation, or reprieve shall be made by

the authority, which shall report in writing to the governor a

brief statement of the facts in the case, together with the

recommendation of the authority for or against the granting of a

pardon, commutation, or reprieve, the grounds therefor and the

records or minutes relating to the case.”

As we determined above, Section 11, Article III of the Ohio

Constitution authorizes the General Assembly to regulate the

application process only with respect to pardons, and not

commutations or reprieves. Because the grant of the clemency

power with respect to commutations and reprieves is unfettered,

any regulation by the General Assembly that acts to limit the

Governor’s power to grant commutations or reprieves is a

violation of the Constitution. To the extent that the regulatory

scheme under R.C. Chapter 2967 places limits or preconditions on

the Governor’s power to grant commutations or reprieves, it is

unconstitutional and void. We are particularly concerned with

R.C. 2967.07. As we note below, the General Assembly in R.C.

2967.07 has provided a regulatory prerequisite to the granting of

commutations, as well as pardons and reprieves: a clemency

application must be made to and acted on by the Adult Parole

Authority before the Governor may grant clemency. We do not

question the wisdom of this legislation, but it has no

constitutional underpinnings beyond pardons.

The question becomes whether we may sever the

unconstitutional references to commutations and reprieves from

the otherwise constitutional portions of R.C. 2967.07. R.C. 1.50

provides that statutory provisions are presumptively severable:

“If any provision of a section of the Revised Code or the

application thereof to any person or circumstance is held

invalid, the invalidity does not affect other provisions or

applications of the section or related sections which can be

given effect without the invalid provision or application, and to

this end the provisions are severable.” In order to sever a

portion of a statute, we must first find that such a severance

will not fundamentally disrupt the statutory scheme of which the

unconstitutional provision is a part. We set forth the test for

determining whether an unconstitutional provision may in fact be

severed in Geiger v. Geiger (1927), 117 Ohio St. 451, 466, 160

N.E. 28, 33:

“‘(1) Are the constitutional and the unconstitutional parts

capable of separation so that each may be read and may stand by

itself? (2) Is the unconstitutional part so connected with the

general scope of the whole as to make it impossible to give

effect to the apparent intention of the Legislature if the clause

or part is stricken out? (3) Is the insertion of words or terms

necessary in order to separate the constitutional part from the

unconstitutional part, and to give effect to the former only?’”

Id., quoting State v. Bickford (1913), 28 N.D. 36, 147 N.W. 407,

paragraph nineteen of the syllabus.

The references to commutations and reprieves meet the test

for severability provided in Geiger. R.C. 2967.07 provides a

regulatory scheme that imposes the same regulations upon the

three types of clemency. In other words, it is as if there were

three separate but identical statutes each regulating one type of

clemency. Therefore, the regulation of each type of clemency is

essentially independent of the others. Because of their

independence, the regulation of commutations and reprieves are

not so connected to the regulation of pardons that without

reference to commutations and reprieves the regulatory scheme

will not give effect to the intention of the General Assembly.

The requirements of the regulatory scheme concerning pardons will

not change. We need only excise the constitutionally offensive

references to commutations and reprieves in R.C. 2967.07 and need

not add any other language in order to give effect to its

regulatory scheme. Thus, we hold that, pursuant to the Ohio

Constitution, R.C. 2967.07 may regulate the application process

for pardons only.

Because only a portion of the statute is constitutional,

only the Governor’s grant or denial of a pardon is “subject to”

the application process outlined in R.C. 2967.07. His power to

grant or deny commutations is not subject to those regulations.

Therefore, the commutations at issue in this case remain valid.

The validity of the one pardon granted without an

application in compliance with the procedure outlined in R.C.

2967.07 remains at issue. We must now determine whether this

noncompliance precluded the Governor from granting a pardon. As

we noted above, the Governor exercises the pardoning power

“subject to” these regulations, even though the General Assembly

is not authorized by Section 11, Article III to intrude in any

way upon the Governor’s discretion to grant or deny a pardon.

The exercise of the pardoning power involves two distinct

elements — the application process and the consideration process.

The phrase “manner of applying” for pardons includes the entire

application process, which encompasses the filing of the

application itself, the investigation, the recommendation, and

the full report compiled by the APA. We find that the General

Assembly’s authority to regulate the application process extends

to the time just before the Governor reaches a substantive

decision concerning a pardon. Once this point is reached, the

General Assembly’s constitutionally granted authority to regulate

procedurally the pardoning power of the Governor is at its end.

By its clear terms, R.C. 2967.07 contemplates that an

investigation by the APA that leads to a recommendation for or

against a pardon may be initiated in two distinct ways. The

first way is for an applicant (or someone on the applicant’s

behalf) to file a pardon request directly with the APA. The

second way is for the Governor to direct that the investigation

occur. The real issue in this case is whether the Governor is

required to await the APA investigation and recommendation before

he may grant a pardon.

The first sentence of R.C. 2967.07 requires that all

pplications for pardons shall be made to the APA. The General

Assembly has chosen the word “all” to indicate that every request

for a pardon must go to the APA for evaluation. In addition, the

General Assembly has chosen to use the word “shall” in R.C.

2967.07 three times in connection with the APA’s role in the

pardon application process. This indicates the mandatory nature

of the APA investigation and of the entire APA involvement in the

application process.

We hold that R.C. 2967.07 mandates that the APA

investigation report and recommendation must be presented to the

Governor before he may grant a pardon. This mandate includes

those situations in which the Governor initiates the APA

investigation.

The requirement of APA involvement by the General Assembly

is permissible, because it is within the General Assembly’s

authority to “legislate in aid of the [pardoning] power.” Knapp,

39 Ohio St. at 392-393. The statute is meant to ensure that

information about each person for whom a pardon is considered

will be available to the Governor, so that an informed decision

may be made. This is precisely the type of regulation “as to the

manner of applying for pardons” contemplated by Section 11,

Article III. The Governor’s power to grant pardons is subject to

this procedural mechanism, which requires the APA to investigate,

recommend and report before the Governor may grant a pardon.

Because the Governor has ultimate substantive discretion

whether to grant or deny a pardon, there is no requirement that

the Governor place any weight whatsoever on either the

investigative report or the recommendation of the APA. However,

the power to disregard is not equivalent to the power to proceed

without the procedural requirements first being fulfilled. The

abuses sought to be remedied by addition of the “subject to”

clause in Section 11, Article III are those that occur during the

application process. Thus, the process is subject to regulation,

and procedural requirements may be placed on the Governor’s power

to pardon. To find otherwise would be to read the “subject to”

clause out of Section 11, Article III, when it is clear that that

clause affects the power of the Governor to grant pardons.

Defendants argue that if R.C. 2967.07 regulates in a way

which affects the Governor’s power to pardon, then the statute is

unconstitutional. However, the regulations placed on the

pardoning power are those authorized by the Constitution itself.

See Knapp, 39 Ohio St. at 392. Since R.C 2967.07 was enacted

pursuant to the authority of Section 11, Article III, the statute

is constitutional to the extent that it regulates the application

process for pardons.

We recognize that the pardoning power conferred on the

Governor by the Ohio Constitution is essential to ensure justice

in particular cases. Indeed, as Alexander Hamilton stated in The

Federalist No. 74 (Cooke Ed. 1961) 500-501, in support of the

broad clemency power conferred on the President by Section 2,

Article II of the United States Constitution: “Humanity and good

policy conspire to dictate, that the benign prerogative of

pardoning should be as little as possible fettered or

embarrassed. The criminal code of every country partakes so much

of necessary severity, that without an easy access to exceptions

in favor of unfortunate guilt, justice would wear a countenance

too sanguinary and cruel.”

However, the power to pardon is subject to abuse. The

framers therefore authorized the Ohio General Assembly to enact

regulations to limit those abuses, thereby allowing procedural

requirements which limit the Governor’s exercise of the power.

In R.C. Chapter 2967, the General Assembly has enacted the

authorized regulations as safeguards against abuse. Those

safeguards do not stand in the way of the Governor’s substantive

exercise of the pardoning power. It would take an amendment to

Ohio’s Constitution to authorize substantive limitations.

Nevertheless, the safeguards do impose procedural requirements

which were bypassed in this case. The pardon purportedly granted

was invalid from the outset.

Amicus curiae American Civil Liberties Union of Ohio

Foundation argues that if this court reverses the decision of the

court of appeals, the cause should be remanded to the court of

appeals to resolve issues that court did not reach in its

previous opinion. However, we have determined, as a matter of

law, that former Governor Celeste acted outside the scope of his

constitutionally conferred clemency authority in granting the

pardon. The other assignments of error raised in the court of

appeals cannot alter that finding. The judgment of the court of

appeals in case No. 93-1165 is affirmed with respect to the

commutations and reversed as to the pardon. The declaratory

judgment of the trial court that the pardon is invalid is

reinstated.

IV

Case No. 92-1350

In case No. 92-1350, the defendants in case No. 93-1165

appeal from the court of appeals’ denial of their complaint for a

writ of prohibition. Defendants contend that the court of

appeals erred in refusing to stop the trial court from exercising

jurisdiction in the declaratory judgment action, which is the

subject of the appeal in case No. 93-1165. We find that our

resolution of the issues in case No. 93-1165 is determinative of

the issues raised in this appeal, and that any remaining issues

therefore are moot. Accordingly, we affirm the judgment of the

court of appeals in case No. 92-1350.

Judgment affirmed

in case No. 92-1350.

Judgment affirmed in part

and reversed in part

in case No. 93-1165.

A.W. Sweeney, Wright and Evans, JJ., concur.

Moyer, C.J., concurs separately.

Douglas, Resnick and F.E. Sweeney, JJ., concur in part and

dissent in part.

John R. Evans, J., of the Third Appellate District, sitting

for Resnick, J.

FOOTNOTES:

1. In his application for clemency, Saram Bellinger stated that

he was convicted of aggravated robbery with firearm

specifications and was sentenced to an indefinite term of five to

twenty-five years’ imprisonment, to be served consecutively with

three years’ actual incarceration. Both former Governor Celeste

and Governor George V. Voinovich commuted that sentence to time

served. Bellinger withdrew his appeal.

According to his application for clemency, Freddie Moore was

convicted of operating a gambling house and received a suspended

sentence. Former Governor Celeste granted Moore a full and

unconditional pardon on January 11, 1991, after which Governor

Voinovich pardoned him on August 24, 1992. The court of appeals

noted that his appeal had been rendered moot by the pardon from

Governor Voinovich.

2. Reginald Wilkinson was substituted as a party to this action

pursuant to Civ.R. 25(D)(1) when he replaced George W. Wilson as

the Director of Rehabilitation and Correction effective March 25,

1991.

Jill Goldhart was substituted as a party for John W.

Shoemaker when she became Acting Chief of the APA.

3. Even though courts may not review the substantive decision

of the Governor on whether to exercise clemency in a particular

case, courts may consider whether constitutionally authorized

limitations on the clemency power have been respected. For

example, if a Governor attempted to grant a pardon before the

recipient had been convicted, the purported grant would be

outside the scope of the clemency power conferred by Section 11,

Article III and constitutionally invalid from the outset.

Similarly, a purported pardon is not really a pardon at all if

constitutionally authorized procedural limitations on the

pardoning power are ignored. Knapp held that a pardon, once

granted and delivered, is irrevocable. Id., 39 Ohio St. 377,

syllabus. However, Knapp did not consider the issue of

constitutional limitations on the Governor’s power. An attempted

pardon which is granted without adherence to constitutionally

authorized requirements is invalid, and is not immune to

challenge.

4. Interpreting the “subject to” clause as authorizing the

General Assembly to set up a regulatory scheme which includes

prerequisites to the exercise of the Governor’s pardoning power

is consistent with our earlier analysis where we found that the

clemency power is subject to whatever limits are set forth in

Section 11, Article III. In the case of the “subject to” clause,

the limit takes the form of an authorization to the General

Assembly to issue regulations that will themselves limit the

Governor’s pardoning power.

5. Though the validity of a reprieve is not at issue in this

case, we believe that any interpretation of the “subject to”

clause is necessarily incomplete without considering each of the

three types of executive clemency. In terms of reprieves, we

believe that they are fundamentally different from pardons. A

reprieve is temporary; execution of a sentence is delayed when

the Governor grants a reprieve. A reprieve is not permanent in

the way that a pardon is. Reprieves, by their very nature, often

require prompt, totally unfettered action by the Governor.

Consequently, we find that reprieves are not governed by the

“subject to” clause and, consistent with our analysis below, the

General Assembly may not regulate the application process for

reprieves.

Moyer, C.J., concurring separately. I concur in the

judgment and opinion of the majority that apply Section 11,

Article III, Ohio Constitution and R.C. Chapter 2967 as clearly

intended by the drafters of the Ohio Constitution and by the

General Assembly. I write separately to discuss an aspect of the

majority decision that demonstrates one of the very difficult

responsibilities of being a judge.

The majority’s careful and restrained interpretation

produces the only conclusion that is faithful to the words of the

Constitution and to R.C. Chapter 2967. We are not required or

even requested to review the wisdom or the judgment of the acts

of Governor Celeste when he pardoned and commuted the sentences

of the defendants two business days before he left office. If

that were the issue, my vote would be to invalidate all of the

Governor’s actions. That, however, is not the issue we are

required to decide. Nor is there any dispute that even if the

Governor were required by the Constitution and the statutes to

receive a report from the Ohio Adult Parole Authority before

granting a pardon or commutation, he could disregard the

recommendation contained in the report and grant the pardon or

commutation. Indeed, the manner in which Governor Celeste

granted the commutations and pardon in the cases before us

suggests that even if he had followed the statutory procedure, it

is unlikely he would have followed a recommendation of the Adult

Parole Authority that any of the defendants not be granted a

commutation or pardon. It appears that that is precisely the

reason the dissent advocates an amendment to the Constitution

that would limit the power of the Governor to grant pardons,

commutations and reprieves beyond the limitations in Section 11,

Article III. As Chief Justice Marshall observed, “[c]ourts are

the mere instruments of the law, and can will nothing.” Osborn

v. Bank of United States (1824), 22 U.S. (9 Wheat.) 738, 866, 6

L.Ed. 204, 234.

The majority opinion reflects the fundamental role of

judicial responsibility and restraint. Every judge faithful to

the judicial oath of office must be able to separate the law from

his or her personal views when deciding cases. That fundamental

aspect of judging is a unique challenge to judicial decision-

making. In separating personal opinion from the constitutional

issues before us, I am reminded of the observation that “[i]f the

provisions of the Constitution be not upheld when they pinch as

well as when they comfort, they may as well be abandoned.” Home

Bldg. & Loan Assn. v. Blaisdell (1934), 290 U.S. 398, 483, 54

S.Ct. 231, 256, 78 L.Ed. 413, 452 (Sutherland, J., dissenting).

There is no comfort in applying the plain language of the Ohio

Constitution to the facts in the case before us. The conduct of

the death-penalty defendants that produced their convictions and

death sentences is the lowest form of human behavior. If the

death penalty is appropriate for anyone, it is appropriate for

them. However, that personal belief has no relevance to the

legal issues before us and must be separated from the judicial

decision we are required to render. The words of the

Constitution can be given their plain meaning only as applied by

the majority decision. To analyze away the words of the

Constitution is to engage in an act of corroborating one’s own

belief that the Governor’s actions were unwise.

The distribution of power among the three branches of

government rests on a delicate balance. It is a fundamental

element of American government. S. Euclid v. Jemison (1986), 28

Ohio St.3d 157, 28 OBR 250, 503 N.E.2d 136. We are urged by the

successor in the office of governor to exercise our

constitutional power to invalidate the commutations and a pardon

of his predecessor in office. Restraint should characterize the

exercise of judicial power in such a case. If we abandon the

words of the Constitution as adopted by the citizens of Ohio in

1851, we invade both the authority of the executive branch and

the will of the people.

For the foregoing reasons, I concur, albeit regretfully, in

the per curiam opinion.

Alice Robie Resnick, J., concurring in part and dissenting

in part.

I

By a stroke of a pen a Governor is authorized by today’s

opinion to overturn the death penalty verdicts of judges and

juries which have been upheld by countless state appellate

judges, Supreme Court justices and federal court judges. Today’s

per curiam opinion says it is perfectly acceptable for a Governor

in the last days of his or her administration to grant

commutations to whomever he or she desires without first awaiting

the APA investigation and report. The basis of such a holding is

that the Constitution does not specifically authorize regulations

“as to the manner of applying for commutations.” As a result,

only full and absolute pardons are “subject to” any regulations

enacted by the General Assembly.

The per curiam opinion misconstrues Section 11, Article III,

and in the process engages in an inaccurate interpretation of the

scope of the Governor’s pardoning power.6 While I agree that the

pardon purportedly granted by former Governor Celeste should be

invalidated, it is clear to me that the commutations he

purportedly granted also should fail for the very same reason

advanced for the failure of the pardon. The per curiam opinion

proclaims that Section 11, Article III is unambiguous, and

essentially ends its analysis of the “subject to” clause at that

point. However, this case involves constitutional interpretation

which is not readily resolvable by resort solely to hornbook

rules of construction, as if in a vacuum, but must be considered

with an eye on the historical context underlying Section 11,

Article III’s evolution into its current form. The per curiam

opinion, in focusing on a supposed semantical difference between

pardons and commutations, does not grasp the importance of this

historical development, and thereby fails to comprehend the

entire scope of this issue. Section 11, Article III is certainly

capable of more than one interpretation, and the reference to the

“manner of applying for pardons” is not so clear as the per

curiam opinion rashly presumes. Given that the constitutional

provision is ambiguous, resort to constitutional history is not

only appropriate, it is crucial. Even a cursory consideration of

constitutional history reveals that the per curiam opinion is

erroneous.

The drafters of Section 11, Article III were concerned with

precisely the type of abuse of pardoning power which former

Governor Celeste accomplished in his last days in office. As

this case graphically illustrates, the power to commute is just

as easily abused as is the power to pardon. Former Governor

Celeste intentionally bypassed established procedures and flouted

the constitutional limits on his clemency authority, ignoring the

procedural safeguards the Constitution authorizes the General

Assembly to put into place regarding the application process for

executive clemency. Members of this court are unwilling to give

effect to the binding statutory prerequisite for exercise of the

clemency power, finding that an APA investigation and

recommendation (along with the accompanying required

notifications relating to victims’ rights) are conditions

precedent for the Governor’s grant of a pardon, but that no APA

involvement is necessary for a commutation.7

This seems an especially curious result when one considers

that both the pardon and the commutation are aspects of the

Governor’s clemency power, which has as its source Section 11,

Article III. Given the per curiam opinion, when the Governor

considers whether to pardon an applicant for clemency, the

Governor must wait until the APA process is complete before

acting, but if the Governor contemplates a commutation, in the

alternative, for that same applicant, the procedural

investigation safeguards of the APA can be ignored. The near

schizophrenic result engendered by the per curiam opinion makes

the point better than any other argument that the Constitution

does in fact authorize the General Assembly to regulate the

application process for executive clemency, and allows that body

to require APA involvement to ensure that the Governor is able to

make an informed clemency decision, whether the Governor is

considering a pardon or a commutation.

In order to underscore the magnitude of this case, a brief

recapitulation of the circumstances of each defendant’s criminal

conviction is in order and appropriate.

A

Donald Lee Maurer confessed to the killing of seven-year-old

Dawn M. Hendershot. The evidence presented at trial revealed

that on September 29, 1982, Maurer drove to a school in

Massillon, Ohio, to pick up his stepchildren and a few

neighborhood children at the end of the school day. Dawn

Hendershot was the first to arrive. Rather than wait for the

other children to appear, Maurer decided to depart alone with

Dawn. Maurer drove Dawn out into the country to a wooded area,

where he stopped the vehicle, removed a twelve-gauge shotgun, and

led Dawn into the trees. He then began to sexually molest the

girl. At some point Maurer became frightened by his actions and

attempted to strangle Dawn with her sweater. When she started to

struggle, Maurer shot Dawn in the back, covered her lifeless body

with twigs and leaves, and left the scene to return to his home.

A jury found Maurer guilty of aggravated murder with a

specification, kidnapping, and gross sexual imposition. The

trial court adopted the jury’s recommendation that the defendant

be executed. His conviction and sentence were affirmed on direct

appeal to the court of appeals and this court. See State v.

Maurer (Feb. 13, 1984), Stark App. No. CA-6166, unreported, 1984

WL 4469, affirmed (1984), 15 Ohio St.3d 239, 15 OBR 379, 473

N.E.2d 768. On January 10, 1991, former Governor Celeste

purportedly commuted Donald Maurer’s death sentence to life

imprisonment without parole eligibility.

B

Leonard Jenkins was

convicted of aggravated murder with specifications, eight counts

of robbery, one count of attempted murder and five counts of

kidnapping. The convictions stemmed from a robbery that occurred

in Cuyahoga County, Ohio, on October 21, 1981. Jenkins and

another individual entered a branch office of National City Bank

and held bank employees and patrons at gunpoint. During the

robbery, Jenkins observed a police officer, Anthony Johnson,

approach the front door of the bank and peer inside. Upon seeing

the officer, Jenkins stated that he and his partner would have to

shoot their way out of the bank. Officer Johnson was mortally

injured by a gunshot to the head when Jenkins exited the bank and

the two exchanged gunfire. A jury recommended and the trial

court imposed a sentence of death. His conviction and sentence

were affirmed on direct appeal to the court of appeals and to

this court. See State v. Jenkins (Feb. 24, 1984), Cuyahoga App.

No. 45231, unreported, 1984 WL 14150, affirmed (1984), 15 Ohio

St.3d 164, 15 OBR 311, 473 N.E.2d 264. On January 10, 1991,

former Governor Celeste purportedly commuted Jenkins death

sentence to life imprisonment without parole eligibility.

C

A jury convicted Debra Brown of the murder of fifteen-year-

old Tonnie Storey. The evidence showed that on the morning of

July 11, 1984, Tonnie left her home in Cincinnati to attend

summer school. She was last seen on that day with a man

identified as Alton Coleman and a woman matching Brown’s

description. On July 19, 1984, a realtor entered an abandoned

building that he was preparing to show to a prospective buyer and

found a partially decomposed body. Scrawled above the body on

the wall were the words “I hate niggers death.” Police

ultimately identified the body as that of Tonnie Storey. The

evidence presented during trial included Brown’s fingerprints on

a Michael Jackson button Tonnie had been wearing the day she

disappeared. Brown admitted to another individual that she had

killed Tonnie “for her clothes” and that she, Brown, “had to do

what [she] had to do.” The state further introduced evidence

linking Brown to at least five other murders and several other

attempted murders or assaults. After finding Brown guilty of

Tonnie’s murder, the jury recommended and the trial judge imposed

a sentence of death. Her conviction and sentence were affirmed

in a direct appeal to the court of appeals and to this court.

See State v. Brown (Apr. 15, 1987), Hamilton App. No. C-850434,

unreported, 1987 WL 9743, affirmed (1988), 38 Ohio St.3d 305, 528

N.E.2d 523. On January 10, 1991, former Governor Celeste

purportedly commuted Brown’s death sentence to life imprisonment

without parole eligibility.

D

On the morning of August 5, 1983, Willie Lee Jester entered

an AmeriTrust Company branch office in Cleveland, Ohio, soon

after it opened for the day. Jester approached Patrolman

Benjamin Grair, the bank’s security guard, while he was sitting

at a desk speaking on the telephone and shot him in the chest.

Jester then ran to the bank counter, leaped over it, and took a

total of $3,122 from a teller’s drawer. Patrolman Grair died as a

result of the gunshot wound to his torso. The fatal injuries to

his heart, right lung and liver were caused by a single, hollow-

point bullet — a bullet specifically designed to cause more

damage than a smooth-point bullet. Upon finding Jester guilty of

aggravated murder with two specifications, the jury recommended

and the trial court imposed a sentence of death. The conviction

and sentence were affirmed in a direct appeal to the court of

appeals and to this court. See State v. Jester (Sept. 26, 1985),

Cuyahoga App. No. 49065, unreported, 1985 WL 8631, affirmed

(1987), 32 Ohio St.3d 147, 512 N.E.2d 962. On January 10, 1991,

former Governor Celeste purportedly commuted the death sentence

to life imprisonment without parole eligibility.

E

A three-judge panel in Hamilton County convicted and

sentenced Elizabeth Green to death for aggravated murder and to a

consecutive term of ten to twenty-five years for aggravated

robbery. The convictions stemmed from the killing and robbery of

Thomas Willis, a neighbor of one of Green’s friends, Belinda

Coulter. On January 4, 1988, Coulter sold Willis some food

stamps so that she and Green could in turn use the cash to

purchase drugs. Later that day, Green, with Coulter, entered

Willis’s apartment wearing socks on her hands so as to avoid

leaving any fingerprints. Green then stabbed Willis and took his

money. Thomas Willis died as a result of one hundred nine knife

wounds to his neck, torso and arms. Green admitted to a

psychologist that she had participated in the attack but claimed

she had stabbed Willis only three times. Green’s conviction and

sentence of death were affirmed in a direct appeal to the court

of appeals and to this court. See State v. Green (July 11,

1990), Hamilton App. No. C-880504, unreported, 1990 WL 95357,

affirmed (1993), 66 Ohio St.3d 141, 609 N.E.2d 1253. On January

10, 1991, former Governor Celeste purportedly commuted Green’s

death sentence to life imprisonment without parole eligibility.

F

A jury convicted Lee “Crazy Horse” Seiber of aggravated

murder with three death penalty specifications in connection with

the killing of Stanton Norris. On May 21, 1985, Seiber entered a

Columbus bar for the second time that evening, carrying a loaded,

cocked .38 caliber revolver. An accomplice stood at the closed

front door, shotgun in hand, barring anyone from leaving. Seiber

had returned to the bar to confront two men, Alvie and Louis

Schoenberger, one of whom had criticized Seiber during his

earlier visit for making lewd remarks to a woman in the bar.

After forcing the brothers to lie face down on the floor and

holding them at gunpoint, Seiber threatened the crowd and tried

to find out who were friends of the Schoenbergers. Stanton

Norris, who was drinking a beer at the bar, admitted to being a

friend of the Schoenbergers. When Norris refused to comply with

his order to lie face down on the floor, Seiber grabbed Norris by

the shoulders and fatally shot him in the back. The jury

recommended and the trial court imposed a sentence of death.

Seiber’s conviction and sentence were affirmed on direct appeal

to the court of appeals and to this court. See State v. Seiber

(June 8, 1989), Franklin App. No. 87AP-530, unreported, 1989 WL

61733, affirmed (1990), 56 Ohio St.3d 4, 564 N.E.2d 408. On

January 10, 1991, former Governor Celeste purportedly commuted

the death sentence to life imprisonment without parole

eligibility.

G

Rosalie Grant was convicted by a jury of two counts of

aggravated murder, each with two death penalty specifications,

and one count of aggravated arson. The evidence presented at

trial revealed that around 6:00 a.m. on April 1, 1983, a fire

ignited in the bedroom of Grant’s two infant sons, one-year-old

Donovan and two-year-old Joseph. The boys died in the fire as a

result of severe burns and smoke inhalation. Grant, however,

escaped from the burning house entirely unharmed, fully dressed

in pants, jacket, shoes and socks, with unsinged hair, no soot on

her face or eyes, and free of any signs of smoke inhalation.

Other than Grant’s claim that she had tried to save her babies

when the smoke first awoke her, there was no evidence presented

that Grant had attempted to put out the fire or to save the

children. Arson investigators determined that the fire had been

intentionally set and fueled by a liquid accelerant. No

determination was made as to the exact type of accelerant that

had been used. The evidence also revealed that approximately two

weeks before the fire, Grant had purchased $5,000 worth of life

insurance for each of the boys with Grant listed as the

beneficiary. Grant had not purchased a policy for herself or for

her three-year-old daughter Shylene, who was living elsewhere.

Furthermore, a can of charcoal lighter fluid, bearing Grant’s

fingerprints, and a partially burned kitchen chair matching those

in Grant’s home were found four days after the fire in a nearby

vacant house. The conviction and sentence were affirmed on

direct appeal to the court of appeals and to this court. See

State v. Grant (Nov. 9, 1990), Mahoning App. No. 83 C.A. 144,

unreported, 1990 WL 176825, affirmed (1993), 67 Ohio St.3d 465,

620 N.E.2d 50. On January 10, 1991, former Governor Celeste

purportedly commuted Grant’s death sentence to life imprisonment

with no restriction as to parole eligibility.

H

According to the court of appeals’ opinion, in May 1979,

Ralph F. DeLeo pled guilty to the murder of Dr. Walter Bond.

After pleading guilty, DeLeo was immediately sentenced to an

indefinite term of fifteen years to life imprisonment. In 1989,

the court of appeals affirmed the trial court’s dismissal of

DeLeo’s petition for enforcement of a plea bargain as to parole,

or, in the alternative, a petition to vacate the conviction and

sentence. See State v. DeLeo (Sept. 19, 1989), Franklin App. No.

89AP-107, unreported, 1989 WL 107559. On January 10, 1991,

former Governor Celeste purportedly commuted DeLeo’s sentence to

time served.

I

A jury convicted John Salim of felonious assault with

violence and gun specifications in connection with an incident

that occurred on January 23, 1988. The evidence, as set forth in

the court of appeals’ opinion, showed that on that date Salim

fired a gun at William Terbrack as the latter prepared to drive

out of a hardware store parking lot. A bullet was retrieved from

the window post on the passenger side of Terbrack’s car. Salim

was sentenced to three years’ actual incarceration for the gun

specification to be served prior to a three-to fifteen-year term

for felonious assault. The conviction and sentence were affirmed

on appeal to the court of appeals. See State v. Salim (May 17,

1990), Cuyahoga App. Nos. 56925 and 57964, unreported, 1990 WL

66467. On January 10, 1991, former Governor Celeste purportedly

granted Salim a full pardon. As the above facts indicate, among

those who purportedly received clemency from former Governor

Celeste were some of the most notorious killers on death row.

Celeste made the clemency decisions without awaiting the APA

investigation and report. Yet, given the per curiam opinion,

only the unfortunate John Salim, who supposed he had received a

full pardon (as opposed to a commutation), must pay the price for

Celeste’s wholesale disregard of the Constitution.

II

While I agree with the per curiam opinion that Section 11,

Article III of the Ohio Constitution authorizes the General

Assembly to prescribe procedural regulations as to the

application process for executive clemency, my interpretation of

Section 11, Article III convinces me that the authority granted

by the “subject to” clause to regulate “the manner of applying

for pardons” includes commutations. The per curiam opinion pays

lip service to the history behind the evolution of current

Section 11, Article III, without realizing the consequences of

that evolution. A thoughtful analysis of the addition of the

“subject to” requirement of the Ohio Constitution should include

consideration of the reason that clause was added. The per

curiam opinion fails to consider and put into effect the

intention of the drafters of Section 11, Article III.

At the 1850-1851 Ohio Constitutional Convention, the debate

on Section 11, Article III was limited to the so-called reporting

requirement, the last sentence of Section 11, Article III. A

delegate, Mr. Riddle, commenting on the insertion of the clause,

stated: “It was known that the exercise of [the pardoning] power

was much complained of. * * * [I]t was but too easy to excite the

sympathies of men in behalf of the convicted criminal. Gentlemen

of the committee were aware from their own experience that they

had often put their names to papers soliciting reprieves and

pardons on the representation of persons, in whom they had

confidence. They knew also that persons in the same manner might

influence the governor; and they further knew that on the

strength of that influence brought to bear on him by the names of

persons standing high in society he often exercised that power in

instances in which the public could not see any propriety. The

power, no doubt, had been abused, but when they looked into the

entire matter they would find that no blame could be attached to

the Governor.” 1 Report of the Debates and Proceedings of the

Convention for the Revision of the Constitution of the State of

Ohio 1850-1851(1851) 306-307.

In choosing to alter its constitutional provision on

executive clemency, Ohio adopted a provision remarkably similar

to that incorporated by the state of New York into its

Constitution of 1846.8 Only a brief discussion of the New York

debates is necessary to illustrate that Ohio’s drafters of

Section 11, Article III must have been motivated by the same

concerns as New York’s drafters when they decided to place

restrictions on the Governor’s pardoning power. The recorded

proceedings of the New York Constitutional Convention which

authored the provision altering that state’s executive pardoning

powers reveal that the provision was extensively debated. In

particular, several amendments were offered relative to

restrictions on the Governor’s pardoning power, including one, by

a Mr. Chatfield, that would have greatly curtailed the Governor’s

pardoning power by making it subject to “such restrictions as may

be prescribed by law.” Report of the Debates and Proceedings of

the Convention for the Revision of the Constitution of the State

of New York (1846) 351. This Chatfield amendment ultimately was

rejected, id. at 353, and the wording “subject to such

regulations as may be provided by law relative to the manner of

applying for pardons,” proposed by Mr. Taylor, was adopted. In

support of his position, Mr. Taylor “agreed that there should be

some conditions relative to the manner of applying the power, and

he would offer an amendment to carry his idea out in relation to

that. This would leave the Legislature to provide rules for its

carrying out, leaving the exercise of the power entirely with the

Governor.” Id. at 357.

Since the “subject to” clause of Section 11, Article III of

the Ohio Constitution mirrors so closely the language of New

York’s comparable section, it is fair to assume that the Ohio

delegates of 1850-1851 shared New York’s concerns about abuses of

the pardoning power, while also sharing the conviction of New

York’s delegates that the Governor’s ultimate discretion to

exercise the pardoning power should not be infringed. The

“subject to” clause is a compromise which reflects those

concerns.

Ohio’s 1802 Constitution, in Section 5, Article II, gave the

Governor “the power to grant reprieves and pardons.” No mention

of commutations was included in this authorization. The word

“commutations” was added in 1851 to Section 11, Article III at

the Constitutional Convention of 1850-1851, which also added the

“subject to” clause at the end of the same sentence.

“The terms ‘pardon’ and ‘reprieve’ have been adopted into

the constitution of this state without defining or explaining

them.” Sterling v. Drake (1876), 29 Ohio St. 457, 460. Just as

“pardon” and “reprieve” are not defined in the Constitution,

“commutation” also is not defined, so that we must look to the

common law for its meaning. Although current statutes define

these terms,9 those statutory definitions do not necessarily

control the consideration of their meanings in the Constitution.

In State ex rel. Gordon v. Zangerle (1940), 136 Ohio St.

371, 375, 16 O.O. 536, 538, 26 N.E.2d 190, 194, the court

considered the “scope of the executive power” conferred by

Section 11, Article III, determining that the common-law meaning

of the terms “reprieves” and “commutations” are “not materially

different” from the statutory definitions (which are the same

today). Thus, the court noted, a reprieve was defined as “‘the

temporary suspension by the Governor of the execution of a

sentence,’10 and commutation of sentence as ‘the substitution of

a lesser for a greater punishment.’” Id.

The Gordon court went on to consider the definition of

“pardon” and the different forms of pardon:

“A pardon may be absolute or conditional, full or partial;

and a conditional pardon may be granted upon conditions precedent

or subsequent.

“A full pardon purges away all guilt and leaves the

recipient from a legal standpoint, in the same condition as if

the crime had never been committed (Knapp v. Thomas, 39 Ohio St.,

377, 381, 48 Am. Rep., 462); a partial pardon releases from

punishment without remission of guilt. Lee v. Murphy, 63 Va. (22

Gratt.), 789, 12 Am. Rep., 563. The essential characteristics of

full and partial pardons are such that either may be granted with

or without conditions. * * *

“ An absolute pardon sets the accused free from the custody

of the law, prevents further court action, terminates existing

probation and makes anticipated probation impossible. * * *

“The power of executive pardon carries with it, as

incidental thereto, the right to impose such valid conditions,

precedent or subsequent, as the pardoning power may determine.* *

*” Gordon, 136 Ohio St. at 376-377, 16 O.O. at 538, 26 N.E.2d at

194.

The per curiam opinion appears to equate “pardon” with “full

and unconditional pardon.” However, as the passage from Gordon

illustrates, the word “pardon” encompasses several concepts. A

“full and unconditional” pardon, which purges all guilt and

places the recipient in the same position as if no crime had been

committed, is only one subset of the several types of pardons.

Another type of pardon, a “partial” pardon, which releases from

punishment without remitting guilt, appears to be virtually

synonymous with a “commutation,” which substitutes a lesser for a

greater punishment, but does not remit guilt. Any definition of

“pardon” which limits its meaning to clemency actions of the

Governor that remit guilt is a narrow definition. While this

narrow definition may appropriately be applied in some

situations, the common-law meaning of “pardon,” when applied in

the broader sense, also can easily encompass the concept of

commutation, so that commutation is a subset of pardon.

The per curiam opinion’s citation of State ex rel. Atty.

Gen. v. Peters (1885), 43 Ohio St. 629, 4 N.E. 81, does not

establish that pardons and commutations are in all cases mutually

exclusive terms. In fact, the per curiam opinion includes

Peters’s definition of pardon among the material quoted from that

case: “A pardon discharges the individual designated from all or

some specified penal consequences of his crime. It may be full

or partial, absolute or conditional.”

(Emphasis added.) Id. at 650, 4 N.E. at 87. By the Peters

definition, a partial pardon (which discharges the individual

from “some * * * penal consequences of his crime”) is a pardon

just as a “full and absolute pardon” is a pardon. The very

language quoted belies the per curiam opinion’s conclusion. The

constitutional meaning of “pardon,” as well as the common-law

meaning of the word, is by no means precise. It is not possible,

as the per curiam opinion attempts, to conclude that pardons and

commutations are two totally distinct concepts. Recognition of

the ambiguity in the word “pardon” instead leads to the

conclusion that commutation is a subset of pardon when pardon is

used in the inclusive sense, and that the “subject to” clause

clearly does provide the authority to regulate commutations.

In this case, defendant Ralph DeLeo purportedly received a

commutation to time served, while defendant John Salim

purportedly received a full pardon. The per curiam opinion

upholds DeLeo’s purported commutation, but invalidates Salim’s

purported full pardon. Yet, under the definition of “pardon” set

forth in Peters and in Gordon, what DeLeo purportedly received

could just as easily be termed a partial pardon, in which case,

presumably according to the per curiam opinion, Governor Celeste

would have had to await the APA investigation and recommendation

before granting clemency to time served. This point, as much as

any other, belies the per curiam opinion’s assertion that the

word “pardon” is used with precision throughout Section 11,

Article III.

When Section 11, Article III was adopted in 1851 and the

power of commutation was specifically mentioned as one of the

Governor’s clemency powers, the delegates to the Constitutional

Convention of 1850-1851 were either conferring a new power for

the Governor to exercise, or they were explicitly conferring a

power which had been implicit in the 1802 Constitution’s

conferral of the power to grant pardons. If the delegates were

conferring a new power, then it would be safe to assume that the

power to grant commutations was considered to be something

different from the power to grant pardons, and was not to be made

subject to regulations “as to the manner of applying for

pardons.” But if the delegates were confirming a power which

already existed under the power to grant pardons, then it may be

fairly concluded that the use of the phrase “as to the manner of

applying for pardons” in the “subject to” clause was meant to

include the commutation power. If the latter is the case, and if

the word “pardon” is broad enough to encompass the word

“commutation” in this way, then Section 11, Article III uses

“pardon” in two senses: in a limited way as one aspect of the

clemency powers in the first clause of the first sentence of

Section 11, Article III, and also, in the “subject to” clause, in

an expansive way that includes the concept of “commutation.”

The records of the debates of the Ohio Constitutional

Convention of 1850-1851 give no insight into why the “subject to”

clause of Section 11, Article III uses the words “as to the

manner of applying for pardons,” or into whether Section 5,

Article II of the Ohio Constitution of 1802 conferred on Ohio’s

Governor the power to commute sentences.

However, the discussions regarding the addition of the

reporting requirement to the executive clemency provision of the

Constitution at the 1850-1851 Constitutional Convention do reveal

that many of the delegates indiscriminately used the term

“pardon” to refer generically to the Governor’s clemency power.

One delegate, Mr. Riddle, stated that “[t]he [Executive

Department] committee inserted that clause [the reporting

requirement] into the report for the purpose, that the

legislature at its annual or biennial sessions might know what

the Governor had done during the vacation in the exercise of the

pardoning power.” (Emphasis added.) 1 Debates and Proceedings,

supra, at 306. Because the reporting requirement as proposed

required the Governor to communicate “each case of reprieve,

commutation, or pardon granted,” id. at 300,11 Mr. Riddle thus

used the inclusive term “pardoning power” to refer to the power

to grant any type of executive clemency.

Similarly, another delegate, Mr. McCormick, thought that the

provision requiring the Governor to report each reprieve,

commutation, or pardon granted “required nothing to be

communicated to the Legislature except the names of the persons

pardoned. If men had interfered improperly in getting reprieves

for criminals, there was nothing in that section as it now stood,

which required the naming of the persons who interfered to obtain

it * * *. The only object to be gained by this section was the

ascertainment of the number of prisoners pardoned * * *.”

(Emphasis added.) Id. at 307. Mr. McCormick thus used the word

“pardon” in a broad sense to refer to any act of executive

clemency.

Another delegate, Mr. Stanton, opposed a proposal to further

require the Governor to report the names of all persons who had

applied for a reprieve, pardon or commutation. “He supposed that

the latter part of the section was intended for the purpose of

making the Governor accountable to the people for the exercise of

the pardoning power, and to inform them whom he had pardoned.”

(Emphasis added.) Id.

Yet another delegate, Mr. Larwill, stated that “[t]he

Governor would no doubt have good reasons for exercising the

pardoning power.” (Emphasis added.) Id.

These delegates’ statements persuasively refute defendants’

argument that the framers of Section 11, Article III used the

word “pardon” in a narrow sense that did not include the concept

of commutation. Many of the delegates at the Constitutional

Convention of 1850-1851 used “pardoning power” to mean clemency

power. Furthermore, the word “pardon” was used to refer to any

executive exercise of the clemency power.

Not long after Ohio (in 1851) had amended its Constitution’s

executive clemency provision to specifically include the power to

grant commutations, the United States Supreme Court decided Ex

Parte Wells (1855), 59 U.S. (18 How.) 307, 15 L.Ed. 421. In the

words of the court:

“The petitioner was convicted of murder in the District of

Columbia, and sentenced to be hung on the 23d of April, 1852.

President Fillmore granted to him a conditional pardon. The

material part of it is as follows: ‘For divers good and

sufficient reasons I have granted, and do hereby grant unto him,

the said William Wells, a pardon of the offense of which he was

convicted — upon condition that he be imprisoned during his

natural life; that is, the sentence of death is hereby commuted

to imprisonment for life * * *.’” Id. at 308, 15 L.Ed. at 423.

Wells petitioned for a writ of habeas corpus, pointing out

that Section 2, Article II of the United States Constitution

authorizes the President to grant pardons and reprieves, but does

not explicitly authorize the President to place conditions upon a

grant of pardon. Wells argued that Section 2, Article II

authorizes only absolute pardons, and that since he had been

pardoned under the authority conferred by that section, he must

have received such an absolute pardon with a void condition, so

that his sentence actually was remitted entirely. Id. at 309, 15

L.Ed. at 423. The Circuit Court of the District of Columbia

refused the application, and the Supreme Court affirmed.

The court in Ex Parte Wells determined that the President’s

power to grant “conditional pardons”12 (commutations) was

implicit within the power to grant “reprieves and pardons”

conferred by Section 2, Article II of the United States

Constitution. In so determining, the court found that the

petitioner’s argument was mistaken, “arising from the want of due

consideration of the legal meaning of the word pardon. It is

supposed that it was meant to be used exclusively with reference

to an absolute pardon, exempting a criminal from the punishment

which the law inflicts for a crime he has committed.” 59 U.S.

(18 How.) at 309, 15 L.Ed. at 423.

The Ex Parte Wells court determined that the word “pardon”

is not so narrow as to include only an “absolute pardon”: “In

the law it has different meanings, which were as well understood

when the Constitution was made as any other legal word in the

Constitution now is.” Id. at 310, 15 L.Ed. at 423. The court

went on to state that “[i]n this view of the constitution, by

giving to its words their proper meaning, the power to pardon

conditionally is not one of inference at all, but one conferred

in terms.

“The mistake in the argument is, in considering an incident

of the power to pardon the exercise of a new power, instead of

its being a part of the power to pardon.” Id. at 315, 15 L.Ed.

at 425.

If the United States Supreme Court determined in 1855 that

the President’s power to commute a sentence is implicit in the

power to pardon, it is reasonable to assume that Ohio’s Governors

operating under the authority of the state’s 1802 Constitution

also had the implicit power to commute sentences, since the 1802

Ohio Constitution’s provision on executive clemency closely

resembled that of the United States Constitution. The delegates

to the 1850-1851 Constitutional Convention therefore did not add

a totally new power to the Constitution by adding the word

“commutations” in adopting Section 11, Article III, but affirmed

a power the Governor already possessed.13

It is apparent that the inclusion of “commutations” in the

first line of Section 11, Article III as one of the Governor’s

clemency powers was done to quiet doubt that the power to pardon

was so limited that it did not include the power to commute. The

meaning of “pardon” was not thereby magically altered into some

precise word with only one connotation. The statements of the

delegates to the 1850-1851 Constitutional Convention indicate the

imprecision of the word “pardon.” In addition, R.C. 2967.01(B)’s

provision that pardons may be “partial,” and the Peters and

Gordon courts’ recognition of partial pardons, further

demonstrate that a “full and absolute pardon” is only one type of

pardon, and that there is an overlap between the generic sense of

the word “pardon” and the concept of commutation. Thus, since

the power of commutation can be understood to be contained within

the power to pardon (in its broad sense) Section 11, Article

III’s provision that the Governor’s power to commute (as well as

to pardon) is “subject * * * to * * * regulations, as to the

manner of applying for pardons” is broad enough to include

regulations as to the manner of applying for commutations.

In short, even though the power to grant commutations may be

a power distinct from the power to grant pardons, the common-law

meaning of “pardon” included “commutation.” Section 11, Article

III clearly subjects the Governor’s power to grant commutations,

as well as the Governor’s power to grant pardons, to authorized

regulations. Hence the Governor’s power to grant commutations

pursuant to Section 11, Article III is subject to regulations

enacted by the General Assembly as to the application process.

Defendants argue that the omission of the word

“commutations” from the “subject to” clause of Section 11,

Article III reflects a conscious decision by the drafters to make

only the manner of applying for pardons, and not commutations,

subject to regulation. Defendants claim that a pardon, because

it remits guilt as well as punishment so that the recipient is in

the same position as if no crime had been committed, is the

ultimate act and was meant to be singled out. They further claim

that a commutation, which merely reduces punishment without

remitting guilt, is a lesser degree of clemency and so was

intentionally left out of the “subject to” clause.

Defendants’ reasoning is specious. Although a “full and

unconditional” pardon is the ultimate pardon, whether a

commutation differs greatly from a pardon is in the eye of the

beholder. To the recipient of a full and unconditional pardon,

that pardon is much different from a commutation (even a

commutation to time served, which would also remit punishment)

because the full pardon relieves the recipient of disabilities

associated with the finding of guilt and wipes the record clean.

However, to society as a whole, there is virtually no difference

between a commutation to time served and a full pardon. As

mentioned earlier, defendant DeLeo in this case was purportedly

granted a commutation to time served, and defendant Salim was

purportedly granted a full pardon, yet the action of Governor

Celeste allowed both offenders to receive clemency despite the

determination of guilt in the judicial system which led to the

imposition of the original longer terms of punishment. Although

some of the purported commutations in this case reduced a death

sentence to life imprisonment without parole, and so did not

effect the release of the recipients, commutations, like pardons,

are very significant actions by the Governor. To permit a

Governor in the last hours of his term to grant commutations

without first applying to the APA would be a devastating blow in

a day when victims’ rights are finally being recognized. One of

the most important factors under R.C. Chapter 2967 is the

requirement that at least three weeks before the APA recommends

any pardon or commutation, notice of the pendency of the clemency

application must be “sent to the prosecuting attorney and the

judge of the court of common pleas of the county in which the

indictment against the convict was found.” R.C. 2967.12.

Additionally, under certain circumstances the APA must send a

similar notice to the victim of the crime, or to a representative

member of the victim’s family. R.C. 2967.12(B). There are very

good reasons for these requirements. One is to avoid the shock

the families of the victims would encounter when they first hear

over the news that the sentences of the convicts who senselessly

murdered their loved ones were commuted.

Lastly, the doctrine of expressio unius est exclusio

alterius has no application regarding the “subject to” clause.

Even though the words “commutation” and “pardon” appear together

elsewhere three times in Section 11, Article III, the fact that

the “subject to” clause does not specifically mention

commutations does not require a narrow reading of the word

“pardons” in that clause. It is readily apparent that the

“subject to” clause was inserted into Section 11, Article III as

a compromise to regulate the application process invoking the

entire clemency power, and not just the power to grant pardons

(with pardon used in its narrow sense). More significantly,

consideration of the debates of the Ohio Constitutional

Convention of 1850-1851 regarding the reporting requirement of

Section 11, Article III makes it readily apparent that the

drafters did not use the terms “pardon” and “commutation” with

the precision which would require a finding that “pardons” in the

Ssubject to” clause does not include commutations.

Since the application process leading to the Governor’s

grant of clemency was seen as subject to abuse, the drafters of

Section 11, Article III allowed regulations to be prescribed to

curb that abuse. Those regulations were authorized for the

application process, whether initiated by the applicant (or

someone on the applicant’s behalf) or by the Governor, but the

power of the Governor to act is specifically exercised subject to

the regulations. A Governor may in certain situations choose to

grant only a commutation when the applicant may have applied for

a full pardon. The interrelationship of the concepts of pardon

and commutation cannot be ignored, an interrelationship obviously

recognized by the reported statements of the delegates to the

Ohio Constitutional Convention of 1850-1851. It is inconceivable

that the omission of the word “commutation” from the “subject to”

clause was intended to exclude commutations from regulation.

III

From the foregoing it is apparent that Section 11, Article

III authorizes the General Assembly to regulate the application

process for executive clemency, whether it is a pardon or a

commutation which is being considered. I emphatically disagree

with the per curiam opinion’s conclusion that Section 11, Article

III authorizes regulations only with respect to pardons, and not

commutations. The per curiam opinion’s misguided attempt to

sever the supposedly offending portions of R.C. 2967.07 is made

necessary by its equally misguided conclusion that the Governor’s

power to commute sentences is unfettered by the Constitution.

R.C. 2967.07 is constitutional in toto, and makes APA involvement

mandatory before the Governor may grant a pardon or a

commutation.

In view of today’s decision it should become a top priority

of the citizens of this state to ensure that such reckless

behavior on the part of a Governor will not be repeated. It is

ironic that the reasons for amending the Constitution today are

similar to the reasons the 1850-1851 Constitutional Convention

amended the Constitution of 1802. The delegates to the 1850-1851

Constitutional Convention felt the need to enumerate the

Governor’s pardoning powers. Even though the 1802 Constitution

did give the Governor power to commute, there remained a small

degree of doubt (later put to rest by the United States Supreme

Court in Ex Parte Wells) that it did not, so the Ohio

Constitution was amended to clarify the matter. In much the same

way, it appears that our Constitution must be amended to specify

that the manner of applying for clemency includes applications

for commutations as well as for pardons. While it is clear to me

that no such amendment should be necessary, members of this court

do not agree. After this case, I am strongly convinced that it

is time for the people of Ohio to consider a constitutional

amendment placing explicit and unavoidable limitations on the

Governor’s clemency power (including the power to pardon and to

commute, but not to reprieve), to go so far as to place specific

limits on the Governor’s discretion in the use of the power.

While I agree that the pardoning power is an indispensable aspect

of our criminal justice system, the pardoning power is too

important to be trusted with relatively few conditions to the

unfettered whims of a lame duck Governor.

I would reverse the judgment of the court of appeals in case

No. 93-1165 and reinstate the declaratory judgment of the trial

court that the purported pardon and commutations are invalid.

Douglas and F.E. Sweeney, JJ., concur in the foregoing

opinion.

FOOTNOTES:

6. It is appropriate to refer to the Governor’s “pardoning

power” synonymously with “clemency power.” The power to commute

has historically been understood to be an aspect of the pardoning

power. For a thorough discussion of the development and scope of

the pardoning power of the President of the United States, see

Hoffa v. Saxbe (D.D.C.1974), 378 F.Supp. 1221.

7. With respect to the manner in which the Ohio Adult Parole

Authority functions, the trial court found as follows:

“When the APA receives a clemency application, the

application is referred to the investigation section of the APA,

which prepares a report on the details of the crimes, the

applicant’s adjustment to prison or the community, and the

support available to the applicant in the community. When the

completed investigation report is received by the Parole Board,

an initial vote is taken whether to immediately recommend against

granting clemency or to conduct a hearing. If a hearing is to be

conducted, notice is sent to the local Prosecutor, the sentencing

Judge, and those victims or victims’ family members designated to

receive notice by R.C. §§ 4943.04(A) and 2945.07(A), and as

required by R.C. § 2967.12(A) and (B). These obviously

interested individuals are then given the opportunity to submit

comments to the APA on whether the applicant should receive

clemency. Generally, these individuals are allowed three weeks’

time within which to respond to the APA notice. At the hearing,

consisting of a panel of at least a majority of the members of

the Parole Board, the Board will consider the investigation, the

microfiche records of the Ohio Department of Rehabilitation and

Corrections, and the testimony of the applicant. After a vote is

taken, a report is then prepared for the signature of the board

members. See R.C. §§ 2967.07 and 2967.12. Usually, there is a

two to three week delay after the vote is taken to circulate the

recommendations among the voting Board members, who travel to

each of Ohio’s 22 penal institutions attending hearings. After

signature, the APA submits the written report to the Governor

which includes a brief statement of the facts in the case,

together with the recommendation of the APA. In such instances

that an application is submitted directly to the Governor, it is

still required to be channeled back through the APA review

process pursuant to R.C. § 2967.07.”

8. Section 5, Article IV of the New York Constitution of 1846

provided:

“The governor shall have the power to grant reprieves,

commutations, and pardons after conviction, for all offenses

except treason and cases of impeachment, upon such conditions and

with such restrictions and limitations, as he may think proper,

subject to such regulation as may be provided by law relative to

the manner of applying for pardons. * * * He shall annually

communicate to the legislature each case of reprieve,

commutation, or pardon granted, stating the name of the convict,

the crime of which he was convicted, the sentence and its date,

and the date of the commutation, pardon or reprieve.” New York

State Constitution Annotated (1938) 54.

When Ohio’s Constitutional Convention of 1850-1851 discussed

the substance of what was to become Section 11, Article III of

the Constitution of 1851, the Standing Committee on the Executive

Department presented for debate a draft version on executive

clemency which very closely resembled Section 5, Article IV of

the New York Constitution of 1846. For the language of this

draft version, see 1 Report of the Debates and Proceedings of the

Convention for the Revision of the Constitution of the State of

Ohio 1850-1851 (1851) 300. The text of the draft version is

reproduced in footnote 6 of this opinion.

9. R.C. 2967.01(B) provides:

“‘Pardon’ means the remission of penalty by the governor in

accordance with the power vested in him by the constitution.

Pardons may be granted after conviction and may be absolute and

entire, or partial, and may be granted upon conditions precedent

or subsequent.”

R.C. 2967.01(C) provides:

“‘Commutation’ or ‘commutation of sentence’ means the

substitution by the governor of a lesser for a greater

punishment. A sentence may be commuted without the consent of

the convict, except when granted upon the acceptance and

performance by the convict of conditions precedent. After

commutation, the commuted sentence shall be the only one in

existence. The commutation may be stated in terms of commuting

from a named crime to a lesser included crime, in terms of

commuting from a minimum and maximum sentence in months and years

to a minimum and maximum sentence in months and years, or in

terms of commuting from one definite sentence in months and years

to a lesser definite sentence in months and years.”

R.C. 2967.01(D) provides:

“‘Reprieve’ means the temporary suspension by the governor

of the execution of a sentence. A reprieve may be granted

without the consent of and against the will of the convict.”

10. I agree that reprieves do not fall within the broader

meaning of “pardons.” Reprieves and pardons are recognized as

being fundamentally different at common law because a reprieve is

temporary. However, pardons and commutations are not recognized

as fundamentally different at common law, but are interrelated

concepts. Even though the power to grant reprieves often is said

to come within the scope of the Governor’s pardoning power, a

constitutional provision allowing procedural regulation of “the

manner of applying for pardons” does not allow for regulation of

the manner of applying for reprieves. Because of this

fundamental difference between reprieves and pardons, Section 5,

Article II of Ohio’s 1802 Constitution, and Section 2, Article II

of the United States Constitution each conferred upon the

executive the power to grant both reprieves and pardons.

The General Assembly has recognized the fundamental

difference between pardons and reprieves. R.C. 2967.08 provides

that “[t]he governor may grant a reprieve for a definite time to

a person under sentence of death, with or without notices or

application.” This provision obviously recognizes the importance

of prompt action in some reprieve cases and makes clear that

procedural requirements need not be fulfilled before a reprieve

may be granted. In addition, R.C. 2967.03, authorizing the Adult

Parole Authority to recommend a pardon, commutation, or reprieve

to the Governor, provides procedural requirements which must be

fulfilled before the authority may recommend a pardon or

commutation, but any such requirements regarding the

recommendation of a reprieve are conspicuously absent.

11. As reported by Mr. Leadbetter from the Standing Committee on

the Executive Department, the provision later incorporated into

the Constitution of 1851 as Section 11, Article III originally

read:

“Sec. 11. The Governor shall have the power to grant

reprieves, commutations and pardons after conviction, for all

offenses, except treason, and cases of impeachment, upon such

conditions, and such restrictions and limitations as he may think

proper, subject to such regulations as may be provided by law,

relative to the manner of applying for pardons. Upon conviction

for treason, he shall have power to suspend the execution of the

sentence, until the case shall be reported to the Legislature at

its next meeting, when the Legislature shall either pardon,

commute the sentence, direct the execution of the sentence, or

grant a further reprieve. He shall annually communicate to the

Legislature each case of reprieve, commutation, or pardon

granted; stating the name of the convict, the crime for which he

was convicted, the sentence and its date, and the date of the

commutation, pardon or reprieve.” 1 Debates and Proceedings,

supra, at 300.

The report of the Executive Committee reached its present

form as Section 11, Article III after proposed amendments to the

committee report were debated by the delegates and voted on.

12. The court of appeals in the case sub judice went to some

lengths to distinguish between a commutation and a conditional

pardon, basing the distinction in part upon the necessity of

acceptance by the recipient before a conditional pardon is valid.

However, one major factor that separates the two is the

attachment of a condition, which is what makes a conditional

pardon “conditional.” In the same way that a pardon can have a

condition attached, a commutation can also be subject to a

condition. It is when the condition is attached that the

recipient must consent before the conditional pardon or

conditional commutation is effective. No consent is required

when no condition is attached to the pardon or commutation. In

re Victor (1877), 31 Ohio St. 206, paragraph three of the

syllabus, recognized that in Ohio, a commutation is not the same

as a conditional pardon, even though the Ex Parte Wells court

stated that it was for purposes of interpreting the United States

Constitution. Since Victor presumed that a commutation is “for

the culprit’s benefit,” no acceptance of an unconditional

commutation is required for its validity. See 31 Ohio St. 206,

at paragraph three of the syllabus.

13. One researcher has determined that the power to commute is

implicit within the power to pardon:

“The [Ohio] Constitutional Convention of 1851 added the term

‘commutation’ to the pardon provision in present section 11 of

Article III. However, the term ‘commutation,’ although not used

in early constitutions, has long been interpreted as being

included within pardon, and texts have often not disassociated

the power to commute from the power to pardon.” 3 Ohio

Constitutional Revision Commission 1970-1977, Proceedings &

Research of the Legislative-Executive Committee (Mar. 31, 1972),

Research Study No. 11.