State ex rel. Steffen v. Myers , 2014 Ohio 2162 ( 2014 )

[Cite as State ex rel. Steffen v. Myers, 2014-Ohio-2162.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE EX REL. DAVID J. STEFFEN, : CASE NO. C-130550
Relator, :
O P I N I O N.
vs. :
BETH A. MYERS, JUDGE, :
HAMILTON COUNTY COMMON
PLEAS COURT, :
Respondent. :
Original Action in Prohibition
Judgment of the Court: Complaint for Writ of Prohibition Dismissed
Date of Judgment Entry: May 21, 2014
Randall L. Porter, Assistant Ohio Public Defender, Shawn P. Welch, Assistant Ohio
Public Defender, and Massimino M. Ionna, for Relator,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Respondent.
OHIO FIRST DISTRICT COURT OF APPEALS
F ISCHER , Judge.
{¶1} The relator, David J. Steffen, has filed a complaint for a writ of
prohibition to prevent the respondent, Judge Beth A. Myers, from resentencing him
under R.C. 2929.06(B) for aggravated murder, after she had vacated the death
sentence imposed for that offense. We dismiss the complaint.
Steffen’s Convictions
{¶2} On August 19, 1982, Karen Range was found in her home, dead from
slashing wounds to her throat. Her blouse and bra had been ripped apart to expose
her breasts, and the crotch of her shorts had been torn. An autopsy disclosed semen
and sperm in and around her vagina and in the crotch of her underwear.
{¶3} Steffen ultimately confessed to killing Range. And he admitted that
he had torn her clothes. But he insisted, and consistently maintained, that his
attempt at vaginal intercourse with Range after she was dead had been thwarted by
his inability to get an erection.
{¶4} Steffen was indicted for rape in violation of R.C. 2907.02, aggravated
burglary in violation of R.C. 2911.11, and aggravated murder in violation of R.C.
2903.01. The aggravated-burglary count charged that he had entered Range’s
residence with the purpose to commit rape. The aggravated-murder count was
accompanied by two death-eligible specifications, charging that the murder had
occurred while Steffen was committing or attempting to commit rape and while he
was committing or attempting to commit aggravated burglary.
{¶5} The charges were tried to a jury in April 1983. The jury found Steffen
guilty as charged and recommended that he be sentenced to death for aggravated
murder. The trial court adopted the jury’s recommendation and imposed the death
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OHIO FIRST DISTRICT COURT OF APPEALS
penalty for aggravated murder. And the court imposed consecutive prison sentences
of seven to 25 years each for rape and aggravated burglary.
{¶6} Steffen unsuccessfully challenged his convictions in appeals to this
court, the Ohio Supreme Court, and the United States Supreme Court, State v.
Steffen, 1st Dist. Hamilton No. C-830445, 1985 Ohio App. LEXIS 9575 (Dec. 11,
1985), affirmed, 31 Ohio St.3d 111, 509 N.E.2d 383 (1987), certiorari denied, 485
U.S. 916, 108 S.Ct. 1089, 99 L.Ed.2d 250 (1988), and in two postconviction petitions.
See State v. Steffen, 1st Dist. Hamilton No. C-930351, 1994 Ohio App. LEXIS 1973(May 11, 1994), appeal dismissed, 69 Ohio St.3d 1492, 635 N.E.2d 381 (1994); State
v. Steffen, 1st Dist. Hamilton No. C-900596, 1991 Ohio App. LEXIS 3718 (Aug. 7,
1991), appeal dismissed, 62 Ohio St.3d 1494, 583 N.E.2d 966 (1992). His federal
habeas corpus petition remains pending.
Newly Discovered Evidence
{¶7} In 2006, Steffen learned that DNA testing had excluded him as the
source of the sperm found in Range’s vagina. And a former Hamilton County
morgue employee subsequently confessed to, and was ultimately convicted of abuse
of a corpse for, being the source of that sperm. Based on that newly discovered
evidence, Steffen moved under Crim.R. 33(A)(6) for a new trial.
{¶8} In August 2013, Judge Myers entered her decision denying a retrial of
Steffen’s guilt of the offenses, but granting resentencing for aggravated murder. The
judge’s disposition in each instance turned on whether the newly discovered
evidence could be said to disclose a strong probability of a different result. See State
v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), syllabus. Thus, while the newly
discovered evidence disproved rape, the judge, on the authority of Crim.R. 33(A)(4),
modified the rape verdict to accord with her finding that the evidence supported a
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verdict of attempted rape. The judge denied retrial of the aggravated-burglary
charge upon her finding that proof that Steffen had not raped Range did not disprove
that his purpose in entering the residence had been to rape her. And the judge
denied retrial of the aggravated-murder charge upon her finding that evidence
proving attempted rape and aggravated burglary also proved the death-eligible
specifications. But the judge ordered resentencing pursuant to R.C. 2929.06(B) for
aggravated murder, because she found that the jury, the trial court, and the appellate
courts had all “based their recommendations and conclusions * * * on a finding” that
Steffen had raped Range and had been lying when he denied it, and that that finding
had effectively been “the difference between life and death.”
{¶9} Both the state of Ohio and Steffen challenged Judge Myers’s decision
in appeals to this court, which were ultimately dismissed, and in an array of motions.
The state, in motions filed in November 2010 and June 2011, and Steffen, in a
motion filed in May 2013, challenged Judge Myers’s jurisdiction to resentence
Steffen for aggravated murder under R.C. 2929.06(B). The statute, by its express
terms, authorizes a trial court to impanel a new jury, conduct a new sentencing
hearing, and impose a death sentence, only when a capital offender’s death sentence
has been vacated “because of an error that occurred in the sentencing phase of the
trial.” And Steffen’s death sentence, they insisted, had not been vacated “because of
an error that occurred in the sentencing phase of the trial,” but because of newly
discovered evidence. Therefore, the state asked Judge Myers to instead “reweigh”
the evidence and determine whether the death penalty is appropriate, without
submitting the matter to a jury or conducting a new sentencing hearing. And Steffen
asked the judge to enter an order precluding the state from seeking the death penalty
when he is resentenced.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} Judge Myers declined the state’s invitation in its motions to
reconsider her decision to grant a new sentencing hearing pursuant to R.C.
2929.06(B). And in overruling Steffen’s motion, Judge Myers rejected Steffen’s
challenge to her jurisdiction under R.C. 2929.06(B) to again impose a sentence of
death.
Writ of Prohibition
{¶11} In August 2013, Steffen here filed his complaint seeking a writ
prohibiting Judge Myers from exercising the authority conferred by R.C. 2929.06(B)
to “seat[] a jury that can consider recommending a sentence of death.” Because
Steffen has an adequate remedy at law by way of an appeal, we dismiss his
complaint.
{¶12} A writ of prohibition is an extraordinary remedy. Its purpose is not to
prevent or correct an error by a court in the exercise of its subject-matter
jurisdiction, but to prevent a court from exercising jurisdiction that it does not have.
State ex rel. Garrison v. Brough, 94 Ohio St. 115, 113 N. E. 683 (1916), paragraphs
one and two of the syllabus.
{¶13} Article IV, Section 3(B)(1)(d) of the Ohio Constitution confers upon a
court of appeals original jurisdiction to issue a writ of prohibition. The writ may
issue only upon proof that the court or officer against whom the writ is sought is
about to exercise judicial or quasi-judicial power, that the exercise of that power is
unauthorized by law, and that denying the writ will result in injury for which there is
no adequate remedy at law. State ex rel. Nolan v. Clendening, 93 Ohio St. 264, 270-
271, 112 N.E. 1029 (1915).
{¶14} A writ of prohibition is not intended as a substitute for an appeal.
State ex rel. Frasch v. Miller, 126 Ohio St. 287, 185 N.E. 193 (1933), paragraph one of
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OHIO FIRST DISTRICT COURT OF APPEALS
the syllabus. A common pleas court, as a court of general jurisdiction, has the
authority to determine its own jurisdiction, and a party challenging the court’s
jurisdiction has an adequate remedy at law by appeal. State ex rel. Enyart v. O'Neill,
71 Ohio St.3d 655, 656, 646 N.E.2d 1110 (1995); State ex rel. Mansfield Tel. Co. v.
Mayer, 5 Ohio St.2d 222, 223, 215 N.E.2d 375 (1966). But the availability and
adequacy of a remedy in the form of an appeal is immaterial, and prohibition will lie
to correct or prevent action by a court, when the court patently and unambiguously
lacks jurisdiction. State ex rel. Adams v. Gusweiler, 30 Ohio St.2d 326, 329, 285
N.E.2d 22 (1972).
{¶15} An action in prohibition is civil in nature. See State ex rel. Scripps
Media, Inc. v. Hunter, 1st Dist. Hamilton No. C-130241, 2013-Ohio-5895, ¶ 31, citing
Civ.R. 1(A) and 1(C). Therefore, a complaint for a writ of prohibition may be decided
upon a Civ.R. 56 motion for summary judgment. Scripps Media at ¶ 31. Or it may be
dismissed under Civ.R. 12. State ex rel. Bell v. Pfeiffer, 131 Ohio St.3d 114, 2012-
Ohio-54, 961 N.E.2d 181, ¶ 12. A prohibition action is subject to dismissal under
Civ.R. 12(B)(6), when the relator has an adequate remedy at law, and the court does
not patently and unambiguously lack jurisdiction. State ex rel. Snead v. Ferenc, 138
Ohio St.3d 136, 2014-Ohio-43, ___ N.E.2d ___, ¶ 11; State ex rel. Halliday v. Court
of Appeals, 134 Ohio St. 191, 191-192, 16 N.E.2d 260 (1938); State ex rel. Wehrung v.
Dinkelacker, 1st Dist. Hamilton No. C-000449, 2000 Ohio App. LEXIS 4722 (Oct.
13, 2000).
An Adequate Remedy by Appeal
{¶16} R.C. 2929.06(B) provides in relevant part as follows:
Whenever any court of this state * * * sets aside, nullifies, or vacates a
sentence of death imposed upon an offender because of error that
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OHIO FIRST DISTRICT COURT OF APPEALS
occurred in the sentencing phase of the trial * * *, the trial court that
sentenced the offender shall conduct a new hearing to resentence the
offender. If the offender was tried by a jury, the trial court shall
impanel a new jury for the hearing. * * * At the hearing, the court * * *
shall follow the procedure set forth in division (D) of section 2929.03
of the Revised Code in determining whether to impose upon the
offender a sentence of death, a sentence of life imprisonment, or an
indefinite term consisting of a minimum term of thirty years and a
maximum term of life imprisonment.
Judge Myers is a common pleas court judge with general subject-matter jurisdiction.
She, therefore, has the authority to determine, as she determined in granting a new
sentencing hearing and in overruling Steffen’s May 2013 motion, that R.C.
2929.06(B) confers upon her the jurisdiction to conduct a new sentencing hearing, to
impanel a new jury for that hearing, and to ultimately impose upon Steffen a
sentence of death. If Judge Myers is mistaken in that determination, Steffen has an
adequate remedy at law by means of an appeal to this court from the judgment of
conviction entered after he is resentenced.
{¶17} Because Steffen has an adequate remedy at law, Judge Myers asks us
to dismiss his complaint. Steffen contends that prohibition lies because Judge Myers
patently and unambiguously lacks jurisdiction to proceed under the statute, when his
death sentence was not vacated “because of error that occurred in the sentencing
phase of the trial.”
Legislative Intent
{¶18} In State v. White, 132 Ohio St.3d 344, 2012-Ohio-2583, 972 N.E.2d
534, the Ohio Supreme Court examined the General Assembly’s purpose in using the
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words “because of error that occurred in the sentencing phase of the trial.” The court
had, in its 1987 decision in State v. Penix, 32 Ohio St.3d 369, 513 N.E.2d 744 (1987),
held that because a death sentence could be imposed only upon the recommendation
of the same jury that had found a capital offender guilty, a trial court could not
impanel a new jury to resentence, nor could the trial court again sentence to death,
an offender whose death sentence had been vacated for error during the penalty-
phase of his trial. Id. at 372-373. In response to Penix, the General Assembly in
1996 enacted R.C. 2929.06(B), authorizing the trial court to impanel a new jury,
conduct a new sentencing hearing, and reconsider all possible sentences, including
death, when a death sentence has been vacated “because of error that occurred in the
sentencing phase of the trial.”
{¶19} White urged a narrow reading of the statute, asserting that the trial
court had no authority to resentence him to death under R.C. 2929.06(B), when his
death sentence had been vacated not “because of error that occurred in the
sentencing phase of the trial,” but for error during jury selection. The Supreme
Court characterized as “odd” the “dichotomy” that would be created by White’s
proposed reading of the statute, “between sentencing-phase errors that invalidate a
death sentence without affecting the conviction and errors having precisely the same
effect but that happen to occur at some other point during the proceedings.” White
at ¶ 23. The “evident * * * intent of R.C. 2929.06(B),” the court declared, “was to
abrogate Penix and to make all capital offenders whose death sentences are set aside
eligible for a death sentence on resentencing.” Id. at ¶ 21. Finding White’s proposed
“distinction * * * completely arbitrary” and contrary to the statute’s legislative
purpose, the court declined to read the statute to “treat resentenced capital offenders
differently based on when the error that invalidated the death sentence occurred.”
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(Emphasis in original.) Id. at ¶ 23-25. Thus, the court held that “R.C. 2929.06(B)
applies where an aggravated-murder conviction with a death specification has been
affirmed, but the death sentence has been set aside for legal error, when the error
infects and thus invalidates the sentencing phase of the trial.” Id. at paragraph one
of the syllabus.
{¶20} While the court in White decided that, for purposes of R.C.
2929.06(B), a distinction may not be drawn based on “when [during the trial] the
error that invalidated the death sentence occurred,” the court did not definitively
decide the issue that Steffen poses here: whether, for purposes of the statute, a
distinction may be drawn based on why the death sentence was vacated.
{¶21} On the issue of what constitutes “error” for purposes of R.C.
2929.06(B), the Ohio Supreme Court’s 2006 decision in State v. Hancock, 108 Ohio
St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, is instructive. In Hancock, the court
vacated a death sentence upon its determination that “the jury’s recommendation of
death [had been] tainted by its exposure, during penalty-phase deliberations, to
evidence that the trial court had reasonably excluded from that phase.” Id. at ¶ 133.
The court observed that “[t]he central task of the jury in the penalty phase of a
capital case is to ‘determine whether the aggravating circumstances the offender was
found guilty of committing are sufficient to outweigh the mitigating factors present
in the case.’ ” Id. at ¶ 131, quoting R.C. 2929.03(D)(2). The court held that because
the jury’s consideration of excluded evidence had prevented it from properly
performing its statutorily assigned task, its recommendation could not serve as the
basis for a death sentence. Id. at ¶ 133. And the court remanded the case for
resentencing under R.C. 2929.06(B), upon its determination that, for purposes of the
statute, “the erroneous introduction of excluded evidence into the jury’s sentencing
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OHIO FIRST DISTRICT COURT OF APPEALS
deliberations” constituted “error that occurred in the sentencing phase of the trial.”
Id. at ¶ 136.
Summary Judgment is Denied and Dismissal is Granted
{¶22} We conclude that Steffen’s complaint for a writ of prohibition is
subject to dismissal under Crim.R. 12(B)(6), because he has an adequate remedy at
law by way of appeal, and because we cannot say that Judge Myers patently and
unambiguously lacks jurisdiction to proceed under R.C. 2929.06(B).
{¶23} The statute, by its terms, authorizes a new jury, new sentencing
hearing, and death sentence, when a death sentence has been vacated “because of
error that occurred in the sentencing phase of the trial.” Judge Myers, in granting
Steffen a new sentencing hearing and in overruling the subsequent motions of
Steffen and the state, determined that she had the authority to resentence Steffen
pursuant to the statute. The judge’s determination is supported by the Supreme
Court’s broad statement in White that the legislative intent underlying the statute
was “to make all capital offenders whose death sentences are set aside eligible for a
death sentence on resentencing.” White, 132 Ohio St.3d 344, 2012-Ohio-2583, 972
N.E.2d 534, at ¶ 21. Her determination also finds support in the court’s holding in
White that the statute applies when a death sentence has been vacated for error that
did not occur during sentencing, but that “infect[ed] and thus invalidate[d] the
sentencing phase of the trial.” Id. at paragraph one of the syllabus. And it finds
support in the court’s holding in Hancock that the statute applies when the jury’s
consideration of improper evidence prevented it from properly performing its
statutorily assigned task in weighing the mitigating factors against the aggravating
circumstances. See Hancock at ¶ 131-133, citing R.C. 2929.03(D)(2).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶24} The task of weighing the mitigating factors against the aggravating
circumstances falls not just to the jury in recommending a death sentence, but also to
the trial court in determining whether to accept the jury’s recommendation and to
the reviewing courts in conducting their independent review. See R.C. 2929.03(F)
and 2929.05(A). Judge Myers vacated Steffen’s death sentence because the evidence
adduced at trial that tended to show that Steffen had raped, and had lied about
raping, Range had, for the jury, trial court, and reviewing courts, tipped the balance
in favor of the death penalty, and that evidence had been shown by the newly
discovered evidence to be misleading. In light of the Ohio Supreme Court’s decisions
in White and Hancock, consideration by the jury, the trial court, and the reviewing
courts of misleading evidence that prevented them from properly performing their
statutorily assigned tasks may fairly be said to have been “the error that occurred in
the sentencing phase of the trial” for which Steffen’s death sentence was vacated.
Therefore, we cannot say that Judge Myers patently and unambiguously lacks
jurisdiction to now proceed under R.C. 2929.06(B).
{¶25} Because Judge Myers does not patently and unambiguously lack
jurisdiction, and because Steffen has an adequate remedy at law, we hold that he is
not entitled to relief in prohibition. Accordingly, we deny his motion for summary
judgment. And we grant Judge Myers’s motion to dismiss his complaint.
Complaint for writ of prohibition dismissed.
C UNNINGHAM , P.J., and D E W INE , J., concur.
Please note:
The court has recorded its own entry this date.
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