The opinion
Locher, J.,
dissenting. The basis for today’s majority position is the first paragraph of the syllabus in State v. Henry (1983), 4 Ohio St. 3d 44 , which states: “Pursuant to R.C. 2901.02(B), aggravated murder is a capital offense regardless of whether death may be imposed as a result of the conviction thereof.” For the reasons set forth below I respectfully dissent from that determination in the case sub judiee.
It is axiomatic that a syllabus of an Ohio Supreme Court opinion will not be viewed in a vacuum, apart from the factual exigencies and issues of the case from which it has been created. Perkins v. Benguet Consol. Min. Co. (1952), 342 U.S. 437 ; New York Cent. RR. Co. v. Delich (C.A. 6, 1958), 252 F. 2d 522 [ 15 O.O.2d 346 ]; B. & O. RR. Co. v. Henery (C.A. 6, 1956), 235 F. 2d 770 [ 11 O.O.2d 352 ]; Wiss v. Bd. of Elections (1980), 61 Ohio St. 2d 298 [ 15 O.O.3d 357 ]; Bindley v. Ferguson (1977), 52 Ohio St. 2d 60 [ 6 O.O.3d 196 ]. In State v. Henry, supra, the defendants-appellees were convicted of aggravated murder with specifications. For such a crime, pursuant to R.C. 2901.02(B), death was a recognized penalty when the statute was originally written. Later, when Ohio’s death penalty provision was struck down in Bockett v. Ohio (1978), 438 U.S. 586 [ 9 O.O.3d 26 ], the underlying statutory framework was retained. If we desire to follow the legislative intent of the statute, we must examine the basis for the special procedures mandated by R.C. 2945.18. Although the death penalty was struck down, we cannot ignore its impact on the special procedures designed with the death penalty in mind.
Capital offenses are delineated under R.C. 2901.02(B) and are operationally attached, through R.C. 2945.18, to imposition of the death penalty. Thus, it is evident that those special procedures delineated in R.C. 2945.18 are to safeguard individuals who, under the originally envisioned statute, may be given the death penalty.
In the case sub judiee the defendants are charged with aggravated murder without specifications. There is no possibility of imposing the death penalty even had Bockett, supra, never occurred. A distinction should therefore be made between aggravated murder with and aggravated murder without specifications, rather than applying the Henry syllabus in an all inclusive manner. By holding that aggravated murder without specifications is somehow a capital offense, in contravention of the clear legislative intent behind the statute as a whole, we are imposing a tremendous burden on an already overburdened legal system in this state. The costs, in time and money, are simply not necessary to cover a contingency that was not provided for by the legislature. Accordingly, I would deny the writ and limit the Henry syllabus to only those offenses where death was an envisioned punishment under the prior statute.
Holmes, J., concurs in the foregoing dissenting opinion.