The Ohio Supreme Court on Wednesday upheld the death sentence of Hersie R. Wesson for the aggravated murder of an 81-year-old Akron man and the attempted murder of his wife.
Wesson, now 56, was convicted of the crimes in 2009 and sentenced to death by a panel of three Summit County judges after he had waived his right to a jury trial.
The attack on the elderly couple, who knew Wesson by his neighborhood nickname “Ray-Ray,” occurred in February 2008 in the home they had lived in for more than 50 years.
Emil Varhola, a World War II veteran of the Pacific Theater, was stabbed five times, according to victim impact statements at Wesson’s sentencing.
Mary Varhola, who was 77 at the time of the attack, survived by feigning death after being stabbed seven times.
In Wesson’s Supreme Court appeal, he argued that the judge presiding over his trial lacked authority to appoint the other two members of the panel.
Justice Terrence O’Donnell agreed, noting in the majority decision that although the judge who made the choices presided over the trial itself, he was not the presiding judge of the Common Pleas court or the high court’s chief justice, as Ohio law demands.
That error, however, was not sufficient to void Wesson’s death sentence, O’Donnell wrote, because Wesson made no appellate argument “that the appointment of different members to the three-judge panel would have changed the outcome of the proceeding.”
Wednesday’s ruling did overturn one aggravated murder conviction, based on a specification for committing the crime while on probation, for a judge’s failure to impose the proper terms of probation when Wesson was sentenced on a 2003 burglary conviction.
Justice Judith Ann Lanzinger wrote a dissent, stating that the majority opinion was inconsistent in its findings.
“Apparently, a postrelease control error is more important [in reversing a conviction] than a procedural error in a capital case. I cannot agree with this inconsistency,” Lanzinger wrote. “I would hold that any error in the court’s exercise of jurisdiction is voidable…’’
Based on the error over the presiding judge, Lanzinger wrote that she would have vacated Wesson’s capital murder convictions and sent the case back to Summit County “for the proper selection of a three-judge panel in this case as precedent demands.”
Wesson is awaiting imposition of the death penalty at Chillicothe Correctional Institution.
Ed Meyer can be reached at 330-996-3784 or at email@example.com.