concurring in part and dissenting in part.
{¶ 108} I concur in the majority opinion in all aspects except in its conclusion that the death sentence should not be imposed upon Tenace. I would hold that the aggravating factor, that Tenace murdered Kozlowski while committing an aggravated robbery, outweighs the mitigating factors.
{¶ 109} Tenace planned and executed a robbery of Kozlowski and then murdered him by “stomping” on his head and strangling him. He pulled the telephone cord out of the wall so that Kozlowski could not summon assistance, and he left Kozlowski to die on the floor of his own home. Although it is true that Tenace endured a troubled childhood and dysfunctional family life, cooperated with police, and expressed remorse for his actions, the robbery and brutal murder of this 76-year-old man in his home merit the capital penalty to which Tenace was sentenced. I agree that the tragedies suffered by Tenace as a child are lamentable, but they are simply not enough to overcome the fact that Tenace committed a horrific murder to cover up his own robbery.
{¶ 110} This court has “seldom accorded strong [mitigating] weight to a defendant’s childhood,” State v. Murphy (2001), 91 Ohio St.3d 516, 547, 747 N.E.2d 765, and previously has upheld the death penalty in cases involving commission of aggravated murder during an aggravated robbery by a defendant with a chaotic and dysfunctional childhood. See State v. Spivey (1998), 81 Ohio St.3d 405, 424, 429, 692 N.E.2d 151; State v. Raglin (1998), 83 Ohio St.3d 253, 274, 699 N.E.2d 482; State v. Madrigal (2000), 87 Ohio St.3d 378, 400-401, 721 N.E.2d 52; Murphy, 91 Ohio St.3d at 547, 747 N.E.2d 765. In each of these *275cases, the defendant suffered physical abuse and/or neglect by a parent or parents who were involved in a life of crime. In Raglin, the defendant even accompanied his mother on drug deals in order to protect her, and his mother later illicitly removed him from a detention facility. These cases involved defendants with mitigating factors similar to Tenace’s. Yet in each case, this court affirmed the death penalty in spite of the mitigating factors.
{¶ 111} Since the institution of independent review of death-penalty cases under R.C. 2929.05, this court has vacated the death sentence based on that review in only two instances.2 In State v. Claytor (1991), 61 Ohio St.3d 234, 574 N.E.2d 472, the defendant, who lacked any criminal record, had killed two security guards who had approached him for identification. The court determined that the murders had been a product of Claytor’s mental disease— paranoid schizophrenia — and that Claytor' substantially lacked the ability to refrain from committing the crimes.3
{¶ 112} In State v. Lawrence (1989), 44 Ohio St.3d 24, 33, 541 N.E.2d 451, the defendant was a Vietnam veteran without a significant criminal history who suffered from posttraumatic stress disorder. A loving father and son who had even cared for his sick mother during his high school years, he had spiraled into severe depression after the death of his infant son due to sudden-infant-death syndrome. After requesting that his neighbor tone down a loud, late-night party, Lawrence responded to taunts by the neighbor and his guests by firing a shot that wounded the neighbor and the neighbor’s guest. The neighbor subsequently returned fire upon Lawrence. In response, Lawrence shot his two neighbors to death and wounded two additional guests. Although a jury recommended imposition of the death penalty, this court considered the aggravating and mitigating factors and held that the provocation by the neighbor, coupled with Lawrence’s past good deeds, outweighed the aggravating factor of the murders.
{¶ 113} The facts in Claytor and Lawrence are entirely different from those in this particular case. Undisputed testimony established that Claytor, a generally law-abiding individual, could not prevent himself from acting, because of his mental illness. Lawrence also had led a law-abiding life, caring for those around *276him, volunteering his time, and risking his life to serve his country. He had acted based upon his severe depression and the provocation of his neighbor. Tenace, on the other hand, was raised in a dysfunctional family, but had no relevant mental defects and purposefully chose to engage in a life of crime.
Julia R. Bates, Lucas County Prosecuting Attorney, and Craig T. Pearson, Assistant Prosecuting Attorney, for appellee. Gamso, Helmick & Hoolahan, Jeffrey M. Gamso, and Gary W. Crim, for appellant{¶ 114} Although the majority asserts that the lives of Tenace’s siblings show that Tenace never had a chance to lead a law-abiding life, that allegation is misleading. There is a fundamental difference between leading a “life of crime” and committing a brutal murder. Tammy Bruno, Tenace’s sister, who suffered the same upbringing as Tenace but further endured extensive sexual abuse, has been convicted only of nonviolent crimes. Tenace’s brother may have a reputation for violence in prison and an extensive criminal history, including arson, armed robbery, burglary, assault on a peace officer, and grand larceny, but he has never committed a murder.
{¶ 115} Tenace remains the only family member with a conviction for murder. He chose an extreme path that his siblings have resisted. As I believe that the mitigating factors do not outweigh the aggravating factor, I would affirm the death penalty in this case.
Resnick and O’Donnell, JJ., concur in the foregoing opinion.. Although a third case purports to do so, that case actually turned on “residual doubt” because mitigating evidence was not presented at the death-penalty hearing. State v. Watson (1991), 61 Ohio St.3d 1, 572 N.E.2d 97, overruled on this ground by State v. McGuire (1997), 80 Ohio St.3d 390, 686 N.E.2d 1112.
. As the only appellate court to reverse a death penalty based upon the independent review mandated by R.C. 2929.05, the Fifth District Court of Appeals similarly overturned the death penalty of a man who suffered from paranoid schizophrenia and could not substantially appreciate the criminality of his behavior. See State v. Glenn (Feb. 19, 1987), 5th Dist. No. CA-798, 1987 WL 7163.