State v. Jackson (Slip Opinion)

O’Donnell, J.,

concurring in part and concurring in the judgment.

{¶ 171} I concur with the decision of the majority to affirm the sentences imposed on Nathaniel Jackson, including the death sentence; in my view however, contrary to the majority, the trial court did not err by failing to mention Jackson’s allocution in its resentencing opinion, making it unnecessary for this court to consider whether that failure is harmless error because the matter is resolved through our independent sentence evaluation.

{¶ 172} This court has previously held that in considering mitigating factors in a capital-offense sentencing opinion, the failure of the trial court to incorporate and discuss all of the mitigating factors in its opinion is not reversible error. See State v. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, ¶ 125-126; State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 362-363. “While a sentencing court must consider all evidence of mitigation, it need not discuss each factor individually.” State v. Phillips, 74 Ohio St.3d 72, 102, 656 N.E.2d 643 (1995), citing Parker v. Dugger, 498 U.S. 308, 314-315, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991). “And a trial court’s failure to discuss each mitigating factor in its sentencing opinion does not give rise to an automatic inference that the factors absent from the opinion were not considered.” Obermiller at ¶ 125, citing State v. Roberts, 137 Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100, ¶ 54. “Further, even if ‘the trial court * * * should have more explicitly analyzed the mitigating evidence,’ this court’s independent reweighing will rectify the error.” *92Phillips at 102, quoting State v. Lott, 51 Ohio St.3d 160, 171, 555 N.E.2d 293 (1990).

{¶ 173} In my dissent in Roberts, I stressed that the omission of any reference to what the defendant said during allocution in the sentencing opinion was not error in that case for these same reasons, and therefore, the omission cannot be error here. See Roberts at ¶ 101-120 (O’Donnell, J., dissenting).