Each of the attorneys arguing before Supreme Court of Ohio justices Tuesday morning in the appeal of the non-capital convictions of Donald Ketterer made legitimate points that appeared to leave the court no nearer a resolution than before the session began.

In representing Ketterer, Assistant Public Defender Randall Porter asserted state prosecutors have sought to have justices create an exception to the court's holding in State v. Baker, 12th Dist. No. CA2007-06-152, 2008-Ohio-4426. The claim, however, was countered by Butler County Assistant Prosecutor Lina Alkamhawi with the argument that "a fix is not required."

Ketterer entered guilty pleas to charges of aggravated murder, aggravated robbery, grand theft and aggravated burglary based on events leading up to and following his 2003 killing of Lawrence Sanders, court summary detailed. He was sentenced to death for the aggravated murder conviction, and to a total of 22 years in prison for his other offenses.

As a result of the Supreme Court's decision in State v. Foster, announced on Feb. 27, 2006, the high court analyzed Ohio's felony sentencing scheme in light of U.S. Supreme Court decisions in Apprendi v. New Jersey (2000) and Blakely v. Washington (2004) and ruled that portions of Ohio's criminal sentencing statute requiring judges to make factual findings to support non-minimum sentences were unconstitutional.

Review of Ketterer's aggravated murder conviction and death sentence by justices resulted in the earlier decision being affirmed. Because the trial judge had made factual findings supporting non-minimum prison terms for Ketterer's non-capital crimes, however, the Supreme Court remanded his non-capital sentences to the Butler County Court of Common Pleas for resentencing consistent with Foster.

The trial court imposed identical prison terms, totaling the same 22 years as it had imposed at Ketterer's first sentencing for his non-capital offenses, summary continued. At the resentencing hearing, the court advised Ketterer that, in addition to his prison terms, if he should ever be released from prison he would be subject to five years of post-release control by the Adult Parole Authority based on his convictions on counts 2 and 5.

In its written sentencing entry, the trial court indicated that Ketterer would be subject to post-release control based on his convictions on counts 2, 3, 4 and 5, but left blank the number of years of post-release control to which he would be subject and did not fill in another space in which it was supposed to indicate whether post-release control was mandatory or discretionary for his offenses.

Additionally, the trial court's new sentencing order made reference to Ketterer's original convictions and the fact that he had pleaded guilty to all charges at his original trial, but did not specifically state that his new sentences for the non-capital offenses were based on those guilty pleas.

Ketterer subsequently appealed the resentencing order to the Supreme Court.

Porter argued the trial court's ruling must include all the necessary pieces of information required by statute and rules of practice.

"The prosecutor is asking this court to create an exception to Baker," he told justices. "And there's been no showing that the Baker rule ... isn't working for the purposes of an appellate court."

Porter appeared to convince Justice Maureen O'Connor that a remand with limited application to the non-capital offenses would be appropriate.

"This is a very simple fix," the justice directed to Alkamhawi. "Why is that objectionable?"

The assistant prosecutor argued nothing needed changed because the judgment of conviction from Ketterer's resentencing hearing is a valid and final order because it incorporated both the findings of guilt from his original trial and the new sentence pronounced in compliance with Foster.

Alkamhawi explained the non-capital offenses were related to aggravated murder charge because they were the underlying specifications.

"They are all under one case number, in addition to Count 1," she said.

The case is Ohio v. Ketterer, case numbers 2007-1261 and 2007-2425.