The Ohio Supreme Court on Wednesday holds that on its independent reweighing of the aggravators & mitigators in the case of Troy Tenace for the murder of Chester Kozlowski that the mits outweigh the aggs. The Court remands for resentencing:
The nature and circumstances of the offense offer nothing in mitigation. Tenace performed some work on Kozlowski’s chimney and then later concocted a ruse in order to steal money from him to support his crack addiction. . . . The words used by the dissent in speaking of the appellant in State v. Murphy (1992), 65 Ohio St.3d 554, 587, 605 N.E.2d 884 (Moyer, C.J., dissenting), conceivably describe Tenace here: “destined for disaster * * * as a direct result of the conditions to which he was exposed by his family.” Tenace was doomed from the start. Both appellant’s mother and father were abusive, neglectful, and pernicious influences on their three children, who were schooled in crime from an early age. A second marriage facilitated sexual abuse of Tenace’s sister by the children’s stepfather. Appellant’s mother was addicted to drugs, arrested for prostitution, and jailed for forgery. She attempted suicide several times and spent six weeks in a mental hospital. There was evidence that Tenace was made to watch the sexual abuse of his sister and that he was sexually abused himself — at one point being sold by his mother for sexual services. Both his grandfather and father were alcoholics, and his father, assuming Tenace was not his son, physically abused him. He was kidnapped by each parent during a drawn-out custody fight. While still a child, he began abusing substances with his mother and her boyfriends, eventually graduating to cocaine. He was encouraged to cheat and steal. Tenace’s brother and sister became addicts as well and were in prison at the time of his mitigation hearing because of their drug problems.. . . His childhood was a “tutorial” for criminal behavior, and, in fact, he has an antisocial personality disorder. Although he completed only seventh grade, Tenace received As and Bs while attending community college and junior college in prison. Tenace also expressed remorse and sorrow during his confession to police, State v. Rojas (1992), 64 Ohio St.3d 131, 143, 592 N.E.2d 1376, and cooperated with police after his arrest. State v. Dunlap (1995), 73 Ohio St.3d 308, 319, 652 N.E.2d 988. The love and support of the family members who testified on Tenace’s behalf also deserve some mitigating weight. See, e.g., State v. Bays (1999), 87 Ohio St.3d 15, 34, 716 N.E.2d 1126. Finally, if Tenace is given maximum and consecutive sentences to the sentence of 25 years to life he received for crimes committed in New York, he would be at least 96 years old before his first eligibility for parole in Ohio. See Bradley, 42 Ohio St.3d at 149, 538 N.E.2d 373. A single one of these facts, standing alone, would not establish that appellant's history, character, and background were so impaired as to outweigh the aggravated robbery and murder of his elderly victim. However, the foregoing evidence, viewed cumulatively, establishes the presence of R.C. 2929.04(B)(7) "other factors" that strongly militate against imposing the death sentence. While nothing condones Tenace’s gratuitous killing of an elderly man, the evidence presented in mitigation on Tenace’s behalf is entitled to great weight. Based upon an independent review of the evidence, we conclude that the aggravating factor does not outweigh the mitigating factors in evidence to support a sentence of death. R.C. 2929.05(A). Accordingly, we affirm the conviction but vacate the sentence of death and remand the cause to the trial court for resentencing consistent with R.C. 2929.06.