concurring in part and dissenting in part. I would affirm appellant’s conviction but respectfully dissent as to the majority’s affirmance of appellant’s death sentence.
I agree with the views of Judge James R. Sherck of the Court of Appeals for Wood County, whose separate opinion in the case below reads as follows:
“In reviewing the penalty phase of the trial, I believe the trial court improperly considered certain evidence as an aggravating circumstance and failed to articulate, pursuant to the requirements of R.C. 2929.03(F), why the aggravating circumstance is sufficient to outweigh the mitigating factors.
“I.
“R.C. 2929.03(F) provides that on imposition of a death sentence the court or the panel of three judges:
“ ‘ * * * shall state in a separate opinion its specific findings as to [statutory] mitigating factors, * * * other mitigating factors, the aggravating circumstances the offender was found guilty of committing, and the reasons why the aggravating circumstances the offender was found guilty of committing were sufficient to outweigh the mitigating factors. * * * ’ (Emphasis added.)
“In the instant case the panel of judges prepared a separate opinion discussing the single aggravating circumstance found and the mitigating factors presented by appellant. In the portion of its opinion entitled “Why the Aggravating Circumstance is Sufficient to Outweigh The Mitigating Factors’ the court summarily concluded that upon consideration of the evidence, ‘ * * * the aggravating circumstance sufficiently outweighed the mitigating factors presented in this case.’1 It is clear to me that such an entry fails to satisfy the statutory requirement of R.C. 2929.03(F).
“The purpose of the statutory requirement that a trial court and reviewing courts articulate the mental processes by which the decision to impose the death penalty was made is that this procedure provides a final opportunity for the *197decision maker and reviewing courts to expunge their reasoning of inappropriate matters. See R.C. 2929.05. For example, a sentence predicated on an aggravating circumstance that the murder was outrageously or wantonly vile, horrible, or inhuman is overbroad, because it does not sufficiently distinguish a case from others where death sentences were not imposed. Godfrey v. Georgia (1980), 446 U.S. 420 [100 S.Ct. 1759, 64 L.Ed.2d 398]. The logic being that, ‘ * * * a person of ordinary sensibility could fairly conclude that virtually every murder is outrageously or wantonly vile, horrible, or inhuman.’ State v. Maurer (1984), 15 Ohio St.3d 239, 242 [15 OBR 379, 382, 473 N.E.2d 768, 775]. Even the reasoning of seasoned jurists may lapse to the arbitrary or capricious when faced with a senseless killing. This is the reason capital sentencing schemes must be designed to channel the discretion of the sentencing body. See Zant v. Stephens (1983), 462 U.S. 862, 874-878 [103 S.Ct. 2733, 2741-2743, 77 L.Ed.2d 235, 248-251]; Wainright v. Goode (1983), 464 U.S. 78, 87 [104 S.Ct. 378, 383, 78 L.Ed.2d 187, 194].
“The gravity and the finality of the death penalty commands that at each juncture the decision making process be examined and reexamined to assure that this sanction is not imposed arbitrarily or disproportionately. For this reason, sentencing statutes which provide for a balance of clear and concrete aggravating and mitigating factors and incorporate meaningful appellate review are favored. State v. Maurer, supra [15 Ohio St.3d] at 246 [15 OBR at 385, 473 N.E.2d at 777-778], citing Gregg v. Georgia (1976), 428 U.S. 153 [96 S.Ct. 2909, 49 L.Ed.2d 859] and Profitt v. Florida (1976), 428 U.S. 242 [96 S.Ct. 2960, 49 L.Ed.2d 913]. The requirements of R.C. 2929.03(F) that a court or panel explain its reasoning is an integral part of a meaningful review.
“The Ohio Supreme Court has examined the question of a trial court’s omission of an R.C. 2929.03(F) explanation in State v. Maurer, supra, and found in that case that the error was harmless. The court reasoned that the statutorily mandated independent review of capital sentencing by both the court of appeals and by the [S]upreme [C]ourt provides, in certain circumstances, a sufficient substitute for the sentencing court’s explanation so that an appellant need not be prejudiced. It is critical to the instant case to note, however, that the Maurer court specifically limited its holding on this issue to the facts of that case. Indeed the Maurer court accompanied its holding with a strong caveat:
“ ‘ * * * we do not intend to trivialize the duty of the trial court under R.C. 2929.03(F) to articulate its reasoning or to suggest that such an omission is insignificant. It is not. The failure of a trial court to comply with this aspect of R.C. 2929.03(F) disrupts the review procedures enacted by the General Assembly by depriving the defendant and subsequent reviewing courts of the trial court’s perceptions as to the weight accorded all relevant circumstances. In a closer *198case, those perceptions could make a difference in the manner in which a defendant pursues his appeal and in which a reviewing court makes its determination.’ Maurer [supra, 15 Ohio St.3d], at 247 [15 OBR at 386, 473 N.E.2d at 778].
“For two reasons, I believe the instant appeal is that ‘closer case’ to which the Maurer court referred. First, I believe that, although there are many similarities between appellant’s crime and that of Maurer, the two cases are factually distinguishable. Maurer confessed to and was convicted of the kidnap, sexual assault and murder of a seven year old girl. In his confession Maurer stated that he picked up his victim at her school and drove her to a secluded area. After stopping the car, Maurer and his victim went into a woods. Maurer took a shot gun with him. Once in the woods Maurer attempted to sexually molest the girl, shot her to death, then secreted the body.
“Maurer was indicted, tried, and convicted of aggravated murder with an R.C. 2929.04(A)(7) specification, kidnapping, and gross sexual imposition. During the sentencing phase Maurer presented for mitigation evidence that he was of low intelligence, an alcoholic, and possessed a borderline personality disorder. He was a high school drop out discharged for bad conduct from the U.S. Marine Corp[s]. Friends testified that when he drank he became loud, boisterous and likely to start fights. He had twice completed programs for alcoholism. While Maurer did not have a lengthy criminal record, he had served a short term of imprisonment for grand theft. He was on probation at the time of his offense.
“Maurer’s jury recommended the death penalty. The trial court, as discussed above, concluded the aggravating circumstance of which Maurer was convicted outweighed mitigating factors, adopted the jury’s recommendation, and sentenced Maurer to death. The Ohio Supreme Court, in its independent review, concluded that, while Maurer did not have a lengthy prior criminal record, he was on probation for a previous criminal conviction at the time of his offense and thus gave no weight to an R.C. 2929.04(B)(5) mitigating factor. The Ohio Supreme Court also concluded that Maurer’s alcoholism and other problems were no different than the problems encountered by many others who were not criminals, let alone murderers. The court thus found no mitigating circumstances.
“The unique circumstances of Richard Fox are well discussed in the majority opinion. My own weighing of the aggravating and mitigating elements of this case appears in Part III. For this section, it is sufficient to note that until one reaches the conclusory portion of the majority’s independent evaluation, Richard Fox appears to be a good father and an asset to his community. If we are to credit the testimony of the psychiatric experts, Fox’s act of violence seems to be the result of an undetected and untreated personality disorder, the cumulative *199dimension of which led to the death of Leslie Keckler. This is a far closer call than Maurer. This is exactly the type of case alluded to by the Maurer caveat.
“II.
“Exacerbating my concern for the trial panel’s failure to articulate its reasoning are comments contained in the body of the trial panel’s opinion. From the language contained therein, it appears that the trial panel utilized inappropriate factors to negate mitigation.
“At the conclusion of the trial panel’s discussion of appellant’s mitigating factors appears a summary paragraph which recites the conclusion that the panel afforded due consideration of appellant’s personality traits as formed by his family life. The panel states it considered his education, his religious and other experiences, as well as his personality disorders. The final sentence of the paragraph states:
“ ‘The panel also took note of the manner in which he planned and executed the events that eventually led to the kidnapping and violent murder of the victim.’
“From the quoted sentence above, an inference can be drawn that the panel has gone outside the sentencing statute to create a judge-made aggravating factor which the panel then uses to counterbalance all of the mitigating evidence submitted; that factor being the Violent’ murder. Once this factor is used to negate mitigation, then the uncountered weight of the aggravating circumstance of which appellant was convicted prevails. This is inappropriate. R.C. 2929.-03(D)(2) permits the panel to weigh only the aggravating factor for which the appellant was tried and convicted. The panel may not select and consider other aggravating factors which were not included in the indictment and verdict. Additionally, such an amorphous, semi-articulated extra-statutory aggravating factor is surely less concrete than the Vile, horrible or inhuman circumstance’ found overbroad in Godfrey v. Georgia, supra, or the ‘depravity of mind’ or ‘especially heinous, atrocious, or cruel’ found to be unconstitutionally vague. Deutsher v. Whitley (C.A.9, 1991), 946 F.2d 1443, 1446-1447; Maynard v. Cartwright (1988), 486 U.S. 356, 359 [108 S.Ct. 1853, 1857, 100 L.Ed.2d 372, 379].
“Additionally, it is also inappropriate for the trial panel to consider appellant’s ‘planning].’ The psychiatric testimony clearly showed that appellant planned his attempt to deceive the victim, but that he had not planned to commit a murder. In any case, appellant’s planning was not the aggravating circumstance of which he was convicted. R.C. 2929.04[B][7], the aggravating circumstance of which appellant was convicted, is stated in the alternative. The murder is aggravated when it is committed during the course of a kidnapping and the offender was the principal offender in the commission of the aggravated murder, or when the murder was committed with prior calculation and design. [Emphasis sic.] *200Appellant was indicted and convicted of being a principal offender, not of committing murder with prior calculation and design.
“From the language of the trial panel’s opinion there appears to be a likelihood that the panel misapplied the statutory balancing of aggravating circumstance and mitigating factors. Unfortunately, we do not know if this was the case because the trial panel erred by failing to articulate its reasoning pursuant to R.C. 2929.03(F).
“Unlike State v. Maurer, supra, the weighing of Richard Fox’s aggravating circumstance against his mitigating factors appears to be a close call. As such, I believe the trial court’s error to be prejudicial to him. On this issue alone I believe a remand for new sentencing proceedings is in order. [Footnote omitted.]
“III.
“In addition to the legal concerns expressed above, I have, as required by R.C. 2929.05, conducted my own examination of the facts of the case to determine whether the sole aggravating circumstance outweighs the mitigating factors. In so doing, I cannot conclude that the aggravating circumstance outweighs the mitigating factors beyond a reasonable doubt.
“Unlike the trial court, I do not feel that virtue is its own reward. The trial court held that appellant’s previous good deeds and community involvement were entitled to little weight in mitigation. I, on the other hand, find a previous life of providing benefit to the community to be worthy of extraordinary consideration. Criminal penalties are not imposed privately, but as a function of society. Government has the right to govern, and to mete out criminal penalties, by the consent of the governed. In this case, the trial court held that appellant’s assistance in community events was a factor which should have ‘allowed him to be able to follow the laws of our society.’ The trial panel then accorded little weight in mitigation to this factor. Are we to presume that the trial panel would have more seriously considered mercy if appellant had voluntarily been a burden to society all of his life?
“The trial panel gave little account to the testimony regarding appellant’s personality disorder. The judgment of the panel describes this condition more like a character flaw than a medical condition. Contrary to the conclusion of the trial panel, the testimony does not show that appellant merely had an excessive sense of self-worth. The testimony showed, instead, that appellant suffered from a debilitating inability to live with his own lack of self-worth and that he compensated by fantasizing himself as a quite special person — one of great importance. Dr. Sherman testified that appellant was so horrified by his own lack of worth that he created a fantasy so extreme that he could avoid recognizing *201reality. Appellant lacked the usual defense mechanisms that the mentally healthy enjoy.
“In my view, the evidence clearly established that appellant suffered from a personality disorder that altered his perception of reality and led directly to the commission of this murder. I agree with the majority and the trial court that this condition is not within the scope of R.C. 2929.04(B)(3) despite the testimony that appellant was ‘unable’ to control his rage. However, I consider it to be of substantial weight as an ‘other’ mitigating factor under R.C. 2929.04(B)(7).
“The record in this case convinces me of additional substantial mitigating factors. For instance, there was testimony that appellant had a positive impact on the life and development of his daughter, Jessica, even while he was in jail awaiting trial. Witnesses, including family members and a minister (appellant’s future brother-in-law, Jerry Wiles), opined that appellant would continue to be a positive force in Jessica’s life. This innocent child has already suffered the death of her mother and the imprisonment of her father. She is likely to have a difficult life. Appellant’s death cannot bring back Leslie Keckler. But, appellant’s death at the hands of the state most assuredly will have a negative impact on the child, Jessica. I find that future benefits that appellant’s life may present to her by way of lessening the effects of the past and perhaps improving the future to be a mitigating factor.
“I find that the evidence establishes yet another mitigating factor not discussed by the majority or the trial panel. Three sheriff’s deputies testified that appellant was a fine inmate and ‘a good man.’ The mere fact that an inmate convicted of a capital offense is able to obtain the favorable testimony of his jailors is in itself unusual. The testimony of the deputies was supplemented by the opinion of Jerry Wiles, who anticipated that appellant not only would continue to be a cooperative inmate, but that he would ultimately be a useful force within the prison community. Wiles formed this opinion while ministering to appellant in the county jail. If ‘mitigating’ is broadly defined as reasons not to take a life, then the potential for having a more tranquil influence on the prison community is mitigating.
“Because of the legal errors made during the punishment phase of the trial and for reason of my own independent evaluation of the aggravating circumstance and mitigating factors, I would vacate appellant’s sentence of death and remand to the trial court for purpose of imposing life imprisonment pursuant to R.C. 2929.05.”A.W. Sweeney, J., concurs in the foregoing opinion.
. “Reproduced in its entirety this section [of the trial court’s opinion] is as follows:
“ ‘Upon consideration of the relevant evidence raised at trial, the testimony, other evidence, the statement of the offender, arguments of counsel, and the mental report submitted pursuant to R.C. 2929.03(D)(1), the panel found, by proof beyond a reasonable doubt, that the aggravating circumstance sufficiently outweighed the mitigating factors present in this case. The panel, in compliance with R.C. 2929.03(D)(3) and after full deliberations, unanimously imposed the death sentence.’ ”