State v. Mason , 111 N.E.3d 432 ( 2016 )

[Cite as State v. Mason, 2016-Ohio-8400.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLANT, CASE NO. 9-16-34
v.
MAURICE MASON, OPINION
DEFENDANT-APPELLEE.
Appeal from Marion County Common Pleas Court
Trial Court No. 93CR0153
Judgment Reversed and Cause Remanded
Date of Decision: December 27, 2016
APPEARANCES:
Brent W. Yager for Appellant
Kort Gatterdam and Todd Anderson for Appellee
Timothy J. McGinty for Amicus Curiae, Cuyahoga County
Prosecutor’s Office
Jeffrey M. Gamso for Amicus Curiae, Ohio Assoc. of Criminal
Defense Lawyers
Case No. 9-16-34
PRESTON, J.
{¶1} Plaintiff-appellant, the State of Ohio, appeals the entry of the Marion
County Court of Common Pleas granting defendant-appellee’s, Maurice Mason
(“Mason”), motion to dismiss the death-penalty specification from his indictment.
In 1994, Mason was sentenced to death for the 1993 murder of nineteen-year-old
Robin Dennis (“Dennis.”). See State v. Mason, 82 Ohio St. 3d 144, 144-148 (1998).
In 2008, Mason was granted federal habeas corpus relief as to his death sentence
and, while his resentencing was pending, the United States Supreme Court
invalidated Florida’s death-penalty statute in Hurst v. Florida. 577 U.S. ___, 136
S. Ct. 616 (2016). Mason filed a motion to dismiss the death-penalty specification
from his indictment arguing that Ohio’s death-penalty statue is unconstitutional
under Hurst. For the reasons that follow, we reverse the trial court’s decision
granting Mason’s motion and declaring unconstitutional Ohio’s death-penalty
statute in effect in 1993.
{¶2} On September 30, 1993, the Marion County Grand Jury indicted Mason
on three counts: Count One of aggravated murder in violation of R.C. 2903.01(B),
with a death-penalty specification under R.C. 2941.14 and 2929.04(A)(7) alleging
that the murder occurred during the commission of a rape; Count Two of rape in
violation of R.C. 2907.02(A)(2), a first-degree felony, with a prior-aggravated-
felony specification under R.C. 2941.142; and Count Three of having weapons
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while under disability in violation of R.C. 2923.13(A)(2), a fourth-degree felony,
with an offense-of-violence specification under R.C. 2941.143. (Doc. No. 1).1 On
December 21, 1993, Mason was re-indicted by the Marion County Grand Jury on
the same charges, with a firearm specification under R.C. 2941.141 and 2929.71
added to each count. (Doc. No. 67).
{¶3} After pleading not guilty to the charges in the indictments, the case
proceeded to a jury trial on May 31, 1994 through June 18, 1994. (Doc. Nos. 10,
99, 391). On June 18, 1994, the jury found Mason guilty of the charges and
specifications in the December 21, 1993 indictment. (Doc. Nos. 340, 341, 342,
391). On June 27, 1994, the trial proceeded to the penalty phase and mitigation
evidence was presented in the presence of the jury. (Doc. No. 391). On June 29,
1994, the jury recommended that Mason be sentenced to death under R.C.
2929.03(D)(2) after concluding that the aggravating circumstance of which Mason
was convicted outweighed the mitigating factors in the case. (Doc. Nos. 380, 391).
{¶4} On July 7, 1994, the trial court issued its separate opinion accepting the
jury’s death-sentence recommendation after weighing the aggravating circumstance
against the mitigating factors. (Doc. No. 391). That same day, the trial court
sentenced Mason to death on Count One, 15-25 years in prison on Count Two, 3-5
years in prison on Count Three, and 3 years in prison on the firearm specification,
1
In 1984, Mason was convicted in Marion County, Ohio of burglary under R.C. 2911.12, a second-degree
felony. (Doc. No. 1).
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and ordered that Mason serve all of the sentences consecutively. (Doc. Nos. 388,
391). The trial court filed its sentencing entry on July 12, 1994. (Doc. No. 391).
After a hearing on August 9, 1994, the trial court denied on August 12, 1994
Mason’s motion for a new trial. (Doc. No. 414). Mason filed his notice of appeal
on September 6, 1994. (Doc. No. 423). On December 9, 1996, this court affirmed
Mason’s conviction and sentence, and the trial court’s denial of Mason’s motion for
a new trial. State v. Mason, 3d Dist. Marion No. 9-94-45, 1996 WL 715480 (Dec.
9, 1996). See also State v. Mason, 3d Dist. Marion No. 9-94-45, 1996 WL 715479
(Dec. 9, 1996) (affirming Mason’s death sentence). On June 17, 1998, the Supreme
Court of Ohio affirmed Mason’s convictions and death sentence. Mason, 82 Ohio
St.3d 144.
{¶5} Prior to this court’s review of Mason’s direct appeal, Mason filed a
petition for post-conviction relief on September 20, 1996. (Doc. No. 447). The trial
court denied Mason’s petition on November 21, 1996. (Doc. No. 451). This court
affirmed the decision of the trial court on June 6, 1997. State v. Mason, 3d Dist.
Marion No. 9-96-70, 1997 WL 317431 (June 6, 1997).
{¶6} On July 15, 1999, Mason filed a petition for a writ of habeas corpus in
federal court, which was denied by the United States District Court for the Northern
District of Ohio on May 9, 2000. Mason v. Mitchell, 95 F. Supp. 2d 744 (N.D.Ohio
2000). The United States Court of Appeals for the Sixth Circuit affirmed the district
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court’s denial of Mason’s petition but remanded the case for an evidentiary hearing
regarding his claim of ineffective assistance of counsel at sentencing. Mason v.
Mitchell, 320 F.3d 604, 642 (6th Cir.2003). After the evidentiary hearing, the
district court on October 31, 2005 denied Mason’s ineffective-assistance-of-counsel
claim and dismissed his petition. Mason v. Mitchell, 396 F. Supp. 2d 837 (N.D.Ohio
2005). On October 3, 2008, the Sixth Circuit reversed the district court’s decision
and granted “a conditional writ of habeas corpus that will result in the vacation of
his death sentence unless the state of Ohio commences a new penalty-phase trial
against him within 180 days[.]” Mason v. Mitchell, 543 F.3d 766 (6th Cir.2008).
{¶7} After a number of pleadings in federal court from 2009 to 2013, which
extended Mason’s resentencing beyond 180 days, the Sixth Circuit concluded that
“the State of Ohio is not barred from seeking the death penalty in the new penalty-
phase trial against Mason, even though the State failed to recommence the
sentencing proceeding within this court’s 180-day deadline.” Mason v. Mitchell,
729 F.3d 545, 548-549, 552 (6th Cir.2013).
{¶8} On May 6, 2016, Mason filed a “motion to dismiss capital components
pursuant to Hurst v. Florida.” (Doc. No. 616). On May 17, 2016, the State filed a
memorandum in opposition to Mason’s motion. (Doc. No. 618). The trial court
granted Mason’s motion on June 20, 2016. (Doc. No. 619).
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{¶9} The State filed its notice of appeal on June 24, 2016. (Doc. No. 620).
The State raises two assignments of error. For ease of our discussion, we will
address the State’s assignments of error together.
Assignment of Error No. I
The trial court erred as a matter of law in failing to apply binding
precedent from the Ohio Supreme Court in State v. Belton, 2016
Ohio 1581 (April 20, 2016) to reject Mason’s claim that the Sixth
Amendment requires a jury finding that aggravating
circumstances outweigh mitigating factors beyond a reasonable
doubt. Trial court decision, Apx. Pgs. 16-19, 43-44.
Assignment of Error No. II
The trial court erred as a matter of law in concluding that the
Sixth Amendment requires jury factfinding in capital sentencing.
Trial court decision, Apx. Pgs. 36-40.
{¶10} In its assignments of error, the State argues that the trial court erred in
concluding that the death-penalty specification should be removed from Mason’s
indictment because Ohio’s death-penalty statute is unconstitutional. Specifically,
in its first assignment of error, the State argues that the trial court erred by failing to
apply State v. Belton to reject Mason’s constitutional argument. ___ Ohio St.3d
___, 2016-Ohio-1581. In its second assignment of error, the State argues that the
trial court erred by concluding that Ohio’s death-penalty statute in effect in 1993 is
unconstitutional under the Sixth Amendment to the United States Constitution.
{¶11} As an initial matter, we address this court’s jurisdiction to address the
merits of this appeal. Section 3(B)(2), Article IV of the Ohio Constitution provides
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that courts of appeal “shall have such jurisdiction as may be provided by law to
review and affirm, modify, or reverse judgments or final orders of the court of record
inferior to the court of appeals within the district.” R.C. 2501.02 defines the
jurisdiction of the courts of appeal, “In addition to the original jurisdiction conferred
by Section 3 of Article IV, Ohio Constitution, the court shall have jurisdiction upon
an appeal upon questions of law to review, affirm, modify, set aside, or reverse
judgments or final orders of courts of record inferior to the court of appeals within
the district[.]”
{¶12} “Both grants of jurisdiction require that, in order to be appealable, a
trial court’s order must be final.” State v. Rivera, 9th Dist. Lorain Nos.
08CA009426 and 08CA009427, 2009-Ohio-1428, ¶ 8. See also R.C. 2505.03(A)
(“Every final order, judgment, or decree of a court * * * may be reviewed on appeal
by a court of common pleas, a court of appeals, or the supreme court, whichever has
jurisdiction.”). “‘“If an order is not final, then an appellate court has no
jurisdiction.”’” Rivera at ¶ 8, quoting Gehm v. Timberline Post & Frame, 112 Ohio
St.3d 514, 2007-Ohio-607, ¶ 14, quoting Gen. Acc. Ins. Co. v. Ins. Co. of N. Am.,
44 Ohio St. 3d 17, 20 (1989).
{¶13} R.C. 2505.02 describes final orders that may be appealed. Ordinarily,
in capital cases, “a final, appealable order consists of both the sentencing opinion *
* * and the judgment of conviction.” State v. Ketterer, 126 Ohio St. 3d 448, 2010-
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Ohio-3831, ¶ 18. See also State ex rel. Bates v. Court of Appeals for the Sixth
Appellate Dist., 130 Ohio St. 3d 326, 2011-Ohio-5456, ¶ 20 (discussing the appellate
court’s jurisdiction to review the capital defendant’s appeal of the denial of his
constitutional challenge). At least a portion—the death sentence—of Mason’s
sentence was vacated by the trial court on February 2, 2010 after the Sixth Circuit
Court of Appeals concluded that Mason’s death sentence was unconstitutional
because his trial counsel at his sentencing hearing was ineffective. See Mason, 543
F.3d at 784-785; Mason, 729 F.3d at 551; (Doc. No. 474). Mason’s convictions
were affirmed. See, e.g., Mason, 729 F.3d at 548. Mason’s resentencing is pending.
{¶14} Notwithstanding the requirements of Ketterer or R.C. 2505.02, the
State may appeal specific orders under R.C. 2945.67. See State v. Craig, 116 Ohio
St.3d 135, 2007-Ohio-5752, ¶ 13, citing State v. Hayes, 25 Ohio St. 3d 173 (1986).
In particular, R.C. 2945.67(A) provides, in relevant part, “A prosecuting attorney *
* * may appeal as a matter of right any decision of a trial court in a criminal case, *
* * which decision grants a motion to dismiss all or any part of an indictment * *
*.”
{¶15} In this case, Mason filed a motion captioned “Defendant’s Motion to
Dismiss Capital Components pursuant to Hurst v. Florida.” (Doc. No. 616). In his
motion, Mason requests that the trial court “pursuant to Hurst v. Florida, * * *
dismiss that portion of the aggravated murder indictment in [Mason’s] case that
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elevates the potential penalty from life imprisonment to death.” (Id.). In particular,
he requests, “Due to the similarities between Florida’s capital sentencing laws and
Ohio’s, Mason submits that pursuant to Hurst, this Court should find Ohio’s capital
sentencing unconstitutional and therefore dismiss the capital components of this
case.” (Id.).
{¶16} The trial court issued its entry, captioned “Ruling on Defendant’s
Motion to Dismiss Capital Components Pursuant to Hurst vs. Florida,” addressing
Mason’s argument “that pursuant to Hurst, [the trial] Court should find Ohio’s
capital sentencing unconstitutional and therefore dismiss the capital components of
[his] case.” (Emphasis sic.) (Doc. No. 619). In its entry, the trial court “sustained”
Mason’s “Motion * * * to Dismiss Capital Components” after concluding that “the
Ohio death penalty statute applicable in this Case is unconstitutional for purposes
of imposing the death penalty, [and] death may not be imposed as a penalty in this
case.” (Id.). Based on those facts, we conclude that the State appealed an order of
the trial court subject to an appeal as of right under R.C. 2945.67(A). That is, we
conclude that the State filed an appeal as of right from the trial court’s decision
granting Mason’s motion to dismiss the death-penalty specification of the
indictment. See Craig, 116 Ohio St. 3d 135, 2007-Ohio-5752, at ¶ 13, citing Hayes,
25 Ohio St. 3d at 175. But see Rivera, 2009-Ohio-1428, at ¶ 1, 11, 14-15, 30
(dismissing the State’s appeal of the trial court’s decision that “the State of Ohio’s
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method of execution by lethal injection” is unconstitutional for the lack of a final,
appealable order because, in part, it was not an order subject to R.C. 2945.67(A),
despite that the relief requested by the defendants’ was the dismissal of the death-
penalty specification from their indictments). Accordingly, we conclude that this
appeal is properly before this court.
{¶17} We review de novo a trial court’s decision to dismiss all or any part of
an indictment based on the constitutionality of the statute under which the defendant
is indicted. See State v. Schwentker, 11th Dist. Ashtabula No. 2015-A-0012, 2015-
Ohio-5526, ¶ 25 (reviewing de novo on the State’s appeal as of right under R.C.
2945.67(A) the trial court’s decision granting the defendant’s motion to dismiss the
indictment), citing State v. Rode, 11th Dist. Portage No. 2010-P-0015, 2011-Ohio-
2455, ¶ 14, citing State v. Wendel, 11th Dist. Geauga No. 97-G-2116, 1999 WL
13332193, *2 (Dec. 23, 1999); State v. Mutter & Mutter, 4th Dist. Scioto Nos.
15CA3690 and 15CA3691, 2016-Ohio-512, ¶ 19 (“We apply a de novo standard of
review to a lower court’s ruling on a motion to dismiss an indictment based on
double jeopardy.”), citing State v. Trimble, 4th Dist. Pickaway No. 13CA8, 2013-
Ohio-5094, ¶ 5 and State v. Hill, 8th Dist. Cuyahoga No. 101633, 2015-Ohio-2389,
¶ 17 (“We review a trial court’s judgment on a motion to dismiss an indictment de
novo.”). See also State v. Hernon, 9th Dist. Medina No. 2933-M, 2000 WL 14009,
*2 (Dec. 29, 1999) (“The adequacy of an indictment is a question of law, requiring
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a de novo review.”), citing State v. Smoot, 2d Dist. Clark No. 96-CA-107, 1997 WL
432225, *4 (July 18, 1997). We also review de novo the determination of a statute’s
constitutionality. State v. Hudson, 3d Dist. Marion No. 9-12-38, 2013-Ohio-647, ¶
27, citing City of Akron v. Callaway, 162 Ohio App. 3d 781, 2005-Ohio-4095, ¶ 23
(9th Dist.) and Andreyko v. City of Cincinnati, 153 Ohio App. 3d 108, 2003-Ohio-
2759, ¶ 11 (1st Dist.). “De novo review is independent, without deference to the
lower court’s decision.” Id., citing Ohio Bell Tel. Co. v. Pub. Util. Comm. of Ohio,
64 Ohio St. 3d 145, 147 (1992).
{¶18} In his motion to dismiss the death-penalty specification from his
indictment, Mason argues that Ohio’s death-penalty statute is unconstitutional. In
support of his constitutional challenge, Mason relies on Hurst, in which the United
States Supreme Court concluded that Florida’s death penalty statutory scheme
violates the Sixth Amendment of the United States Constitution. 136 S. Ct. 616.
The trial court agreed with Mason’s argument and concluded that the version of
Ohio’s death-penalty statute in effect in 1993 is unconstitutional under Hurst.
Specifically, the trial court analyzed:
The Ohio death penalty statutes in effect at the time of the
murder in this case had no provision for the jury making specific
findings which would authorize the imposition of the death penalty.
Rather, the trial court, and not the jury, is required to make the specific
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findings, under former Ohio R.C. 2929.03 (F). Also, the jury’s
recommendation for a death penalty does not authorize the death
penalty; only the trial judge’s weighing of the mitigating and
aggravating factors, and the trial judge’s specific findings, authorize
the imposition of the death penalty. For this reason also, the Ohio
death penalty statute in effect in February, 1993 is unconstitutional.
(Doc. No. 619).
{¶19} The trial court’s analysis is erroneous. In Hurst, the United States
Supreme Court concluded that Florida’s death-penalty statute is unconstitutional
under the Sixth Amendment, as applied by the Court in Apprendi v. New Jersey and
Ring v. Arizona, because Florida’s death-penalty statute abrogated the jury’s fact-
finding role. Hurst at 617-618. In reaching its conclusion, the United States
Supreme Court applied its analysis from Ring, in which the Court “held that
Arizona’s capital sentencing scheme, which allowed a judge to find the facts
necessary to sentence a defendant to death, violated the Apprendi rule.” Kimberly
J. Winbush, Application of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348,
147 L.Ed.2d435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153
L. Ed. 2d 556 (2002) to State Death Penalty Proceedings, 110 A.L.R. 5th 1 (2003),
citing Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002). See also Hurst at 621.
The “Apprendi rule” states that “any fact that ‘expose[s] the defendant to a greater
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punishment than that authorized by the jury’s guilty verdict’ is an ‘element’ that
must be submitted to a jury” under the Sixth Amendment. Hurst at 621, quoting
Apprendi v. New Jersey, 530 U.S. 466, 494, 120 S. Ct. 2348 (2000).
{¶20} It appears that the trial court read and applied Hurst in a vacuum—
namely, the statement, “The Sixth Amendment requires a jury, not a judge, to find
each fact necessary to impose a sentence of death. A jury’s mere recommendation
is not enough.” Id. at 619. Reading the entirety of Hurst reveals that the Florida
statutory scheme is substantially different from Ohio’s scheme.
{¶21} Ohio’s death penalty is governed by R.C. 2929.03 and R.C. 2929.04.2
R.C. 2929.04 provides, in relevant part, “Imposition of the death penalty for
aggravated murder is precluded unless one or more of the following is specified in
the indictment or count in the indictment pursuant to section 2941.14 of the Revised
Code and proved beyond a reasonable doubt.” R.C. 2929.04(A) (1981) (current
version at R.C. 2929.04(A) (2016)).3 4 R.C. 2929.03 provides, in relevant part:
(B) If the indictment or count in the indictment charging aggravated
murder contains one or more specifications of aggravating
2
We apply statutes as they existed at the time of the offense. See, e.g., State v. Sheriff, 3d Dist. Logan No. 8-
11-14, 2012-Ohio-656, ¶ 15, citing State v. Williams, 129 Ohio St. 3d 344, 2011-Ohio-3374. Accordingly,
we review the language of Ohio’s death-penalty statutes as those statutes existed at the time of the offense in
this case—1993.
3
The language of R.C. 2929.04(A) has not been amended since 1981.
4
In this case, the indictment included the death-penalty specification identified in R.C. 2929.04(A)(7)—that
Mason committed aggravated murder while committing, attempting to commit, or fleeing immediately after
committing or attempting to commit rape. (Doc. Nos. 1, 67).
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circumstances listed in division (A) of section 2929.04 of the Revised
Code, the verdict shall separately state whether the accused is found
guilty or not guilty of the principal charge and, if guilty of the
principal charge, * * * and whether the offender is guilty or not guilty
of each specification. The jury shall be instructed on its duties in this
regard, which shall include an instruction that a specification shall be
proved beyond a reasonable doubt in order to support a guilty verdict
on the specification, but such instruction shall not mention the penalty
which may be the consequence of a guilty or not guilty verdict on any
charge or specification.
***
(D)(1) * * * When death may be imposed as a penalty for aggravated
murder, the court shall proceed under this division. * * * The court,
and the trial jury if the offender was tried by a jury, shall consider any
report prepared pursuant to this division and furnished to it and any
evidence raised at trial that is relevant to the aggravating
circumstances the offender was found guilty of committing or to any
factors in mitigation of the imposition of the sentence of death, shall
hear testimony and other evidence that is relevant to the nature and
circumstances of the aggravating circumstances the offender was
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found guilty of committing, the mitigating factors set forth in division
(B) of section 2929.04 of the Revised Code, and any other factors in
mitigation of the imposition of the sentence of death, and shall hear
the statement, if any, of the offender, and the arguments, if any, of
counsel for the defense and prosecution, that are relevant to the
penalty that should be imposed on the offender. The defendant shall
be given great latitude in the presentation of evidence of the mitigating
factors set forth in division (B) of section 2929.04 of the Revised Code
and of any other factors in mitigation of the imposition of the sentence
of death. If the offender chooses to make a statement, he is subject to
cross-examination only if he consents to make the statement under
oath or affirmation.
The defendant shall have the burden of going forward with the
evidence of any factors in mitigation of the imposition of the sentence
of death. The prosecution shall have the burden of proving, by proof
beyond a reasonable doubt, that the aggravating circumstances the
defendant was found guilty of committing are sufficient to outweigh
the factors in mitigation of the imposition of the sentence of death.
(2) Upon consideration of the relevant evidence raised at trial, the
testimony, other evidence, statement of the offender, arguments of
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counsel, and, if applicable, the reports submitted pursuant to division
(D)(1) of this section, the trial jury, if the offender was tried by a jury,
shall determine whether the aggravating circumstances the offender
was found guilty of committing are sufficient to outweigh the
mitigating factors present in the case. If the trial jury unanimously
finds, by proof beyond a reasonable doubt, that the aggravating
circumstances the offender was found guilty of committing outweigh
the mitigating factors, the trial jury shall recommend to the court that
the sentence of death be imposed on the offender. Absent such a
finding, the jury shall recommend that the offender be sentenced to
life imprisonment with parole eligibility after serving twenty full
years of imprisonment or to life imprisonment with parole eligibility
after serving thirty full years of imprisonment.
If the trial jury recommends that the offender be sentenced to life
imprisonment with parole eligibility after serving twenty full years of
imprisonment or to life imprisonment with parole eligibility after
serving thirty full years of imprisonment, the court shall impose the
sentence recommended by the jury upon the offender. If the trial jury
recommends that the sentence of death be imposed upon the offender,
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the court shall proceed to impose sentence pursuant to division (D)(3)
of this section.
(3) Upon consideration of the relevant evidence raised at trial, the
testimony, other evidence, statement of the offender, arguments of
counsel, and, if applicable, the reports submitted to the court pursuant
to division (D)(1) of this section, if, after receiving pursuant to
division (D)(2) of this section the trial jury’s recommendation that the
sentence of death be imposed, the court finds, by proof beyond a
reasonable doubt, or if the panel of three judges unanimously finds,
that the aggravating circumstances the offender was found guilty of
committing outweigh the mitigating factors, it shall impose sentence
of death on the offender. Absent such a finding by the court or panel,
the court or the panel shall impose one of the following sentences on
the offender:
(a) Life imprisonment with parole eligibility after serving twenty
full years of imprisonment;
(b) Life imprisonment with parole eligibility after serving thirty full
years of imprisonment.
***
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(F) The court or the panel of three judges, when it imposes sentence
of death, shall state in a separate opinion its specific findings as to the
existence of any of the mitigating factors set forth in division (B) of
section 2929.04 of the Revised Code, the existence of any other
mitigating factors, the aggravating circumstances the offender was
found guilty of committing, and the reasons why the aggravating
circumstances the offender was found guilty of committing were
sufficient to outweigh the mitigating factors.
R.C. 2929.03(B), (D)(1)-(3), (F) (1981) (current version at R.C. 2929.03 (2008)).5
{¶22} Plainly, under Ohio’s death-penalty statute, a defendant is not eligible
for the death penalty unless at least one of the R.C. 2929.04(A) aggravating
circumstances is specified in the indictment, and that aggravating circumstance is
found by the trier of fact beyond a reasonable doubt. If at least one of the R.C.
2929.04(A) aggravating circumstances is specified in the indictment and that
aggravating circumstance is found by the trier of fact beyond a reasonable doubt,
the defendant’s case proceeds to the penalty phase in which the trier of fact weighs
the mitigating evidence presented by the defendant against that aggravating
circumstance to determine the penalty that should be imposed on the defendant—a
5
R.C. 2929.03 has been amended a number of times since 1993. The substantive changes to R.C. 2929.03
include revisions to the life-sentence options that may be imposed and the defendant’s appellate rights when
he or she is sentenced to death—that is, none of those revisions changed the role of the jury or the judge. See
R.C. 2929.03 (2008).
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life-imprisonment sentence or death. R.C. 2929.04(B) (1981) (current version at
R.C. 2929.04(B) (2016)); R.C. 2929.03(D)(1), (2) (1981) (current version at R.C.
2929.03(D)(1), (2) (2008)). The burden is on the State to prove beyond a reasonable
doubt that the aggravating circumstance sufficiently outweighs the mitigating
evidence. R.C. 2929.03(D)(1) (1981) (current version at R.C. 2929.03(D)(1)
(2008)).
{¶23} In cases involving a trial by jury, if the jury unanimously finds that the
aggravating circumstance outweighs the mitigating factors, then the jury is to
recommend that the trial court impose the death penalty. R.C. 2929.03(D)(2) (1981)
(current version at R.C. 2929.03(D)(2) (2008)). If the jury finds the opposite, then
the jury is to recommend, and the trial court must impose, a life-imprisonment
sentence. Id. If the jury recommends that a defendant receive the death penalty, the
trial court is to consider the “relevant evidence raised at trial, the testimony, other
evidence, statement of the offender, arguments of counsel, and, if applicable,” the
presentence-investigation report and weigh the aggravating circumstance of which
the defendant was found guilty against the mitigating factors to ensure that the
aggravating circumstance outweighs the mitigating factors beyond a reasonable
doubt. R.C. 2929.03(D)(2), (3) (1981) (current version at R.C. 2929.03(D)(2), (3)
(2008)). If the trial court concludes that the aggravating circumstance does not
outweigh the mitigating factors beyond a reasonable doubt, then the trial court may
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deviate from the jury’s death-penalty recommendation and impose a life-
imprisonment sentence. R.C. 2929.03(D)(3), (F) (1981) (current version at R.C.
2929.03(D)(3), (F) (2008)). If the trial court concludes that the aggravating
circumstance outweighs the mitigating factors beyond a reasonable doubt, then the
trial court is required to issue a separate opinion enumerating the mitigating factors
and explaining why those factors do not outweigh the aggravating circumstance.
R.C. 2929.03(F) (1981) (current version at R.C. 2929.03(F) (2008)).
{¶24} By contrast, Florida’s death penalty statute, in effect at the time Hurst
was decided, provided that “‘[a] person who has been convicted of a capital felony
shall be punished by death’ only if an additional sentencing proceeding ‘results in
findings by the court that such person shall be punished by death.’” Hurst, 577 U.S.
___, 136 S.Ct. at 620, quoting Fla. Stat. 775.082(1) (2010).6 “The additional
sentencing proceeding Florida employ[ed was] a ‘hybrid’ proceeding ‘in which [a]
jury renders an advisory verdict but the judge makes the ultimate sentencing
determinations.’” Id., quoting Ring, 536 U.S. at 608, fn. 6. “First, the sentencing
judge conduct[ed] an evidentiary hearing before a jury.” Id., citing Fla. Stat.
921.141(1) (2010). “Next, the jury render[ed] an ‘advisory sentence’ of life or death
without specifying the factual basis of its recommendation.” Id., citing Fla. Stat.
921.141(2) (2010). “‘Notwithstanding the recommendation of a majority of the
6
Florida amended its statutory scheme in response to Hurst. 2016 Fla. Sess. Law Serv. Ch. 2016-13 H.B.
7101 (Mar. 7, 2016).
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Case No. 9-16-34
jury, the court, after weighing the aggravating and mitigating circumstances, [was
to] enter a sentence of life imprisonment or death.’” Id., quoting Fla. Stat.
921.141(3) (2010). “If the court impose[d] death, it [was to] ‘set forth in writing its
findings upon which the sentence of death is based.’” Id., quoting Fla. Stat.
921.141(3) (2010). “Although the judge [was to] give the jury recommendation
‘great weight,’ the sentencing order [was to] ‘reflect the trial judge’s independent
judgment about the existence of aggravating and mitigating factors.’” (Internal
citation omitted.) Id., quoting Tedder v. State, 322 So. 2d 908, 910 (Fla.1975) and
Blackwelder v. State, 851 So. 2d 650, 653 (Fla.2003).
{¶25} Stated differently, under Florida’s scheme, “[t]he trial judge [was]
tasked with making independent findings as to the presence of aggravating factors,
mitigating factors, and the balance between the two.” Guyer, Ring Around the Jury:
Reviewing Florida’s Capital Sentencing Framework in Hurst v. Florida, 11 Duke
J.Const.L.&Pub.Policy Sidebar 242 (2016), citing Fla. Stat. 921.141(2), (3) (2010).
Although the question of whether there were any aggravating circumstances was
presented to the jury, “the judge [could not] possibly know the specifics of the jury’s
findings and [the judge made] her own findings” because the jury was not required
to make an express aggravating-circumstance finding. Id. at 251, citing Ross v.
State, 386 So. 2d 1191, 1197 (Fla.1980) and Fla. Stat. 921.141(2), (3) (2010). “As
Florida case law notes, ‘the trial court [was] required to make independent findings
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Case No. 9-16-34
on aggravation, mitigation, and weight[]’; therefore, [t]he jury’s recommendation []
ha[d] no identifiable binding effect at the sentencing stage.” Id., quoting Russ v.
State, 73 So. 3d 178, 198 (Fla.2011) and citing Ring, 536 U.S. at 587, citing
Apprendi, 530 U.S. at 492.
{¶26} Most pertinently in Hurst, the United States Supreme Court, in
overruling its past decisions in Spaziano v. Florida7 and Hildwin v. Florida,8 stated,
“The decisions are overruled to the extent they allow a sentencing judge to find an
aggravating circumstance, independent of a jury’s fact finding, that is necessary for
imposition of the death penalty.” (Emphasis added.) Hurst at 624. Further, the
United States Supreme Court held,
The Sixth Amendment protects a defendant’s right to an impartial
jury. This right required Florida to base Timothy Hurst’s death
sentence on a jury’s verdict, not a judge’s factfinding. Florida’s
sentencing scheme, which required the judge alone to find the
existence of an aggravating circumstance, is therefore
unconstitutional.
(Emphasis added.) Id.
7
In Spaziano v. Florida, the United States Supreme Court held that a trial court’s imposition of a death
sentence after the jury recommended a life sentence did not violate the Eighth Amendment of the United
States Constitution. 468 U.S. 447, 104 S. Ct. 3154 (1984).
8
In Hildwin v. Florida, the United States Supreme Court held that the Sixth Amendment of the United States
Constitution permitted the trial court to find an aggravating circumstance. 490 U.S. 638, 109 S. Ct. 2055
(1989).
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Case No. 9-16-34
{¶27} Florida’s statutory scheme invalidated in Hurst differs from Ohio’s
statutory scheme. The Florida statutory scheme instructed the jury to find the
aggravating circumstances during the penalty phase; instructed the jury that it was
to find at least one aggravating circumstance to impose death from a list of
aggravating circumstances that could apply to the facts of the case; and instructed
the jury that death could be imposed by a simple majority vote.9 Further, nothing
in Florida’s statute required “a majority of the jury to agree on which aggravating
circumstances exist[ed].” (Emphasis sic.) State v. Steele, 921 So. 2d 538, 545
(Fla.2006), abrogated, Hurst. See also Fla. Stat. 921.141(5)(a)-(p) (2010)
(enumerating the 16 aggravating circumstances the jury could consider) (current
version at Fla. Stat. 921.141(6) (2016).
{¶28} Also different, Florida’s statutory scheme permitted the trial judge to
conduct a separate sentencing hearing, known as a Spencer hearing, to hear and
consider evidence not heard by the jury. See Spencer v. State, 615 So. 2d 688, 690-
691 (Fla.1993); Engle v. State, 438 So. 2d 803, 813 (Fla.1983). In Ohio, there is no
separate hearing or opportunity to present any additional evidence—that is, the trial
court is not permitted to consider any evidence not presented to the jury. R.C.
9
While the unanimity of the jury was not at issue in Hurst, we nonetheless acknowledge that difference from
Ohio’s statutory scheme in effect in 1993. Compare R.C. 2929.03(D)(2) (1981) (current version at R.C.
2929.03(D)(2) (2008)) with Fla. Stat. 921.141(3) (2010) (current version at Fla. Stat. 921.141(3) (2016)). See
also Hurst at 620 (noting that “[t]he jury recommended death by a vote of 7 to 5” for Hurst); State v. Belton,
___ Ohio St.3d ___, 2016-Ohio-1581, ¶ 59 (acknowledging that a defendant cannot be sentenced to death in
Ohio unless the jury unanimously recommends the death sentence).
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2929.03(D) (1981) (current version at R.C. 2929.03(D) (2008)). Likewise in stark
contrast to Ohio’s statutory scheme, Florida’s death-penalty statute permitted the
trial court to impose a death sentence when the jury recommended a life-
imprisonment sentence. See Williams v. State, 967 So. 2d 735, 751 (Fla.2007); Hurst
at 625 (Alito, J. dissenting), citing Tedder, 322 So. 2d at 910. Indeed, Florida’s
statute specifically referred to the jury’s sentence as “advisory” and read,
“Notwithstanding the recommendation of a majority of the jury * * *.” See Fla.
Stat. 921.141(2), (3) (2010) (current version at Fla. Stat. 921.141(2), (3) (2016)).
Under Ohio’s death-penalty statute, the jury’s aggravating-circumstance finding is
binding on the trial judge, and the trial judge cannot expose the defendant to a
greater penalty than authorized by the jury verdict. See State v. Cooey, 46 Ohio
St.3d 20 (1989), paragraph three of the syllabus (“Only the aggravating
circumstances related to a given count may be considered in assessing the penalty
for that count.”), superseded by constitutional amendment on other grounds, State
v. Smith, 80 Ohio St. 3d 89 (1997); R.C. 2929.03(D)(2) (1981) (current version at
R.C. 2929.43(D)(2)(2008)).
{¶29} The stark differences between Ohio’s and Florida’s death-penalty
statutes are outcome-determinative for Mason’s challenge to Ohio’s death-penalty
statute under Hurst. See Hurst at 624. The trial court in this case ignored the most
important feature that renders Ohio’s death-penalty statute constitutional under the
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Sixth Amendment through Apprendi, Ring, and Hurst—that the jury, not the judge,
determines beyond a reasonable doubt the existence of an aggravating
circumstance—the feature that subjects a defendant to the possibility of death as a
sentence. Accordingly, we hold that the trial court erred in concluding that Ohio’s
death-penalty statute in effect in 1993 is unconstitutional under Hurst.
{¶30} Furthermore, not only is the trial court’s analysis erroneous, it is
inconsistent with Ohio precedent. The trial court attempts to avoid the application
of stare decisis by construing as dicta a recent Supreme Court of Ohio decision
discussing the application of Hurst to Ohio’s death-penalty statute. See Belton, ___
Ohio St.3d ___, 2016-Ohio-1581, at ¶ 58-61.10 The trial court distinguished Belton:
It is true, as stated by the Ohio Supreme Court in State v. Belton,
that the determination of guilt of an aggravating circumstance renders
the defendant potentially eligible for a capital sentence.
The Ohio Supreme Court also stated in Belton that because the
determination of guilt of an aggravating circumstance renders the
defendant eligible for a capital sentence, it is not possible to make a
factual finding during the sentencing phase that will expose a
10
On May 2, 2016, Belton filed a motion for reconsideration of the Supreme Court of Ohio’s decision
requesting, in part, that the Court remand his case to the trial court or allow for additional briefing concerning
his constitutional argument relative to Hurst because after Belton’s appeal was fully briefed, the United States
Supreme Court issued its decision in Hurst. While the Supreme Court of Ohio addressed Hurst in Belton’s
appeal, Belton contends in his motion for reconsideration that the Supreme Court of Ohio’s application of
Hurst to his argument improperly relies on pre-Hurst precedent. The Supreme Court of Ohio denied Belton’s
motion on November 9, 2016. State v. Belton, 197 Ohio St. 3d 1990, 2016-Ohio-7681.
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Case No. 9-16-34
defendant to greater punishment. However, this Court respectfully
disagrees that the determination of guilt of an aggravated
circumstance alone is what renders a defendant eligible for the
imposition of a capital sentence. The ultimate eligibility for a capital
sentence in Ohio does not occur until the trial judge makes his or her
own determination based on the factors contained in former R.C.
Section 2929.03(D)(3), that a death sentence is appropriate. Even the
jury recommendation for a death sentence, pursuant to former R.C.
Section 2929.03(D)(2), does not by itself make a defendant eligible
for imosition [sic] of a capital sentence. Again, the jury’s
determination of guilt of an aggravating circumstance, by itself, only
renders the defendant eligible for a maximum sentence of life
imprisonment with parole eligibility after serving thirty years of
imprisonment on the offender, former R.C. 2929.03(D)(2)(b).
The Ohio Supreme Court also noted that the trial judge cannot
impose a sentence of death unless the jury has entered a unanimous
verdict for a death sentence. To this statement this Court agrees that
the Ohio statute is different from the Florida statute in Hurst in this
regard; however, this fact does not save the Ohio death penalty statute
from being unconstitutional under the Sixth Amendment of the United
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Case No. 9-16-34
States Constitution as interpreted in Apprendi vs New Jersey, Ring vs
Arizona and Hurst vs Florida.
As to the case law cited by the Ohio Supreme Court in Paragraph
60 of the Belton decision, the continued viability of those cases is
doubtful given the statements of the United States Supreme Court in
Hurst vs Florida.
(Underline sic.) (Doc. No. 619).
{¶31} The trial court is not free to “respectfully disagree” with the Supreme
Court of Ohio when the court of superior jurisdiction has clearly spoken on an issue.
See generally Westfield Ins. Co. v. Galatis, 100 Ohio St. 3d 216, 2003-Ohio-5849,
¶ 1 (“Stare decisis is the bedrock of the American judicial system. Well-reasoned
opinions become controlling precedent, thus creating stability and predictability in
our legal system.”); State v. Bethel, 10th Dist. Franklin No. 07AP-810, 2008-Ohio-
2697, ¶ 26 (“‘Under this principle, we are bound by and must follow the decisions
of the Ohio Supreme Court. To do otherwise would do violence to the doctrine that
ours is a government of law, not of men.’”), quoting Thacker v. Bd. of Trustees of
Ohio State Univ., 31 Ohio App. 3d 17, 23 (10th Dist.1971), overruled in part on
other grounds, sub nom. Schenkolewski v. Cleveland Metroparks Sys., 67 Ohio St. 2d
31 (1981), paragraph one of the syllabus.
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Case No. 9-16-34
{¶32} The Supreme Court of Ohio’s discussion of Hurst in Belton is
persuasive if not authoritative. See State v. Blankenburg, 197 Ohio App. 3d 201,
2012-Ohio-1289, ¶ 143 (12th Dist.) (Ringland, J., concurring in part and dissenting
in part). “‘Dicta’ is defined as ‘[e]xpressions in court’s opinions which go beyond
the facts before court and therefore are * * * not binding in subsequent cases as legal
precedent.’” Westfield Ins. Co. at ¶ 85, quoting Black’s Law Dictionary 454 (6th
Ed.1990). See also Peters v. Tipton, 7th Dist. Harrison No. 13HA10, 2015-Ohio-
3307, ¶ 6 (“Obiter dictum, dictum and dicta are interchangeable terms defined by
the Ohio Supreme Court as ‘“an incidental and collateral opinion uttered by a judge,
and therefore (as not material to his decision or judgment) not binding.”’”), quoting
State ex rel. Gordon v. Barthalow, 150 Ohio St. 499, 505-506 (1948), quoting
Webster’s New International Dictionary (2d Ed.). “Dicta includes statements made
by a court in an opinion that are not necessary for the resolution of the issues.”
Gissiner v. Cincinnati, 1st Dist. Hamilton No. C-070536, 2008-Ohio-3161, ¶ 15,
citing Katz v. Enzer, 29 Ohio App. 3d 118, 122 (1st Dist.1985) and Levy Overall
Mfg. Co. v. Crown Overall Mfg. Co., 34 Ohio Cir. Dec. 762, 763 (1st Dist.1916). Lower
courts are generally not bound by dicta; however, “such extraneous statements may
still constitute persuasive authority.” Bachus v. Loral Corp., 9th Dist. Summit No.
15041, 1991 WL 199906, *2 (Oct. 2, 1991), citing Lane v. Greene, 21 Ohio App.
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Case No. 9-16-34
62, 69-70 (4th Dist.1926); Ecker v. Cincinnati, 52 Ohio App. 422, 426 (1st
Dist.1936).
{¶33} In Belton, the Supreme Court of Ohio addressed Belton’s
constitutional challenge to Ohio’s death-penalty scheme and held “that when a
capital defendant in Ohio elects to waive his or her right to have a jury determine
guilt, the Sixth Amendment does not guarantee the defendant a jury at the
sentencing phase of trial.” Belton, ___ Ohio St.3d ___, 2016-Ohio-1581, at ¶ 61.
In arriving at that conclusion, the Supreme Court of Ohio plainly stated:
Ohio’s capital-sentencing scheme is unlike the laws at issue in
Ring and Hurst. In Ohio, a capital case does not proceed to the
sentencing phase until after the fact-finder has found a defendant
guilty of one or more aggravating circumstances. See R.C.
2929.03(D); R.C. 2929.04(B) and (C); State v. Thompson, 141 Ohio
St.3d 254, 2014-Ohio-4751, ¶ 147. Because the determination of guilt
of an aggravating circumstance renders the defendant eligible for a
capital sentence, it is not possible to make a factual finding during the
sentencing phase that will expose a defendant to greater punishment.
Moreover, in Ohio, if a defendant is tried by a jury, then the judge
cannot impose a sentence of death unless the jury has entered a
unanimous verdict for a death sentence. R.C. 2929.03(D)(2).
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Case No. 9-16-34
Federal and state courts have upheld laws similar to Ohio’s,
explaining that if a defendant has already been found to be death-
penalty eligible, then subsequent weighing processes for sentencing
purposes do not implicate Apprendi and Ring. Weighing is not a fact-
finding process subject to the Sixth Amendment, because “[t]hese
determinations cannot increase the potential punishment to which a
defendant is exposed as a consequence of the eligibility
determination.” State v. Gales, 265 Neb. 598, 628, 658 N.W.2d 604
(2003); see, e.g., State v. Fry, 138 N.M. 700, 718, 126 P.3d 516
(2005); Ortiz v. State, 869 A.2d 285, 303-305 (Del.2005); Ritchie v.
State, 809 N.E.2d 258, 268 (Ind.2004). Instead, the weighing process
amounts to “a complex moral judgment” about what penalty to
impose upon a defendant who is already death-penalty eligible.
United States v. Runyon, 707 F.3d 475, 515-516 (4th Cir.2013) (citing
cases from other federal appeals courts).
Id. at ¶ 59-60. The resolution of Belton’s constitutional argument turned on the
issue of the constitutionality of Ohio’s death-penalty statute under Apprendi and
Ring, as the United States Supreme Court applied the law of those cases in Hurst.
Indeed, the Supreme Court of Ohio’s analysis of Belton’s constitutional argument
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Case No. 9-16-34
is, as the State argues, “an exposition of the logical steps taken to reach its ultimate
conclusion.” (Appellant’s Brief at 9).
{¶34} Although Belton is distinguishable from Mason’s case, the result is
still the same.11 Unlike Mason, “Belton entered a no-contest plea to charges of
aggravated robbery and aggravated murder with capital specifications, and a three-
judge panel sentenced him to death.” Belton at ¶ 1. On appeal, Belton argued that
capital defendants in Ohio have “a right to a jury trial to determine the existence of
any mitigating factors and to determine whether the aggravating circumstance or
circumstances to which he would plead guilty outweigh those factors by proof
beyond a reasonable doubt” under the Sixth Amendment through Apprendi and
Ring. Id. at ¶ 55. Notwithstanding Belton’s jury waiver, Mason’s argument is
substantially similar to Belton’s argument—Ohio’s death-penalty statute
unconstitutionally abrogates the jury’s role in the penalty phase.
{¶35} Even if we are to accept as true the trial court’s conclusion that the
Supreme Court of Ohio’s application of Hurst in Belton is merely dicta, Belton is
highly persuasive. At the very least, the Supreme Court of Ohio’s discussion of
Hurst in Belton “sheds some light on how the majority of our highest court might
11
Although Ohio’s death penalty statute was amended between 1993, the time that Mason committed his
crimes, and 2008, the time that Belton committed his crimes, those amendments do not impact the
applications of Hurst to Ohio’s death-penalty statute. Compare R.C. 2929.03 (1981) with R.C. 2929.03
(2008). Compare R.C. 2929.04 (1981) with R.C. 2929.04 (2002).
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Case No. 9-16-34
rule on” the specific issue presented by this case. Blankenburg, 197 Ohio App.3d,
2012-Ohio-1289, at ¶ 143.
{¶36} Moreover, not only is Belton at least persuasive authority, there is
other authority controlling the issue presented by this case. That is, we need not
look beyond the Supreme Court of Ohio’s application of Apprendi and Ring to
Ohio’s death-penalty statute. Indeed, the United States Supreme Court did not
create a new standard in Hurst by which we are to judge the death penalty. See
Raglin v. Mitchell, S.D. Ohio No. 1:00-CV-767, 2016 WL 4035185, *3 (July 28,
2016), fn. 2 (“the holding in Hurst is not a new ‘substantive’ rule”). Instead, the
United States Supreme Court was applying the standard put forth in Apprendi, as
applied to capital cases in Ring, to Florida’s death-penalty statute in Hurst. In re
Bohannon v. State, ___ So.3d ___, 2016 WL 5817692, *5 (Ala.2016) (“The United
States Supreme Court’s holding in Hurst was based on an application, not an
expansion, of Apprendi and Ring * * *.”); Ex parte State, ___ So.3d ___, 2016 WL
3364689 *6 (Ala.App.2016) (“The [United States Supreme] Court in Hurst did
nothing more than apply its previous holdings in Apprendi and Ring to Florida’s
capital-sentencing scheme. The Court did not announce a new rule of constitutional
law, nor did it expand its holdings in Apprendi and Ring.”). Applying Apprendi and
Ring to Ohio’s death-penalty statute, the Supreme Court of Ohio did not reach the
result that the trial court reached in this case. See State v. Hoffner, 102 Ohio St.3d
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Case No. 9-16-34
358, 2004-Ohio-3430, ¶ 68-70. See also State v. Adams, 144 Ohio St. 3d 429, 2015-
Ohio-3954, ¶ 269 (concluding that Ohio’s death-penalty-sentencing phase does not
invoke Apprendi because, under Ohio’s statute, the trial court does not make factual
findings that make a defendant death-eligible; rather, the jury does.)
{¶37} In Hoffner, the Supreme Court of Ohio held “that Ring has no possible
relevance * * * to Ohio’s death penalty statute.” Hoffner at ¶ 69. See also State v.
Skatzes, 104 Ohio St. 3d 195, 2004-Ohio-6391, ¶ 221 (concluding that the jury’s
determination of a death-penalty specification beyond a reasonable doubt “does not
run afoul of what Ring requires” and noting that the Court concluded in Hoffner that
Ring “is not applicable to Ohio’s capital-sentencing scheme”); State v. Foster, 109
Ohio St. 3d 1, 2006-Ohio-856, ¶ 5 (noting that the court concluded in Hoffner that
Ring is “not applicable to Ohio’s capital-sentencing scheme”), abrogated on other
grounds, Oregon v. Ice, 555 U.S. 160, 164, 129 S. Ct. 711 (2009), citing Hoffner at
¶ 69-70. The Supreme Court of Ohio compared Arizona’s death-penalty statute to
Ohio’s death-penalty statute:
Under the Arizona sentencing statutes proscribed in Ring, the trial
court was solely responsible for making all factual determinations
regarding whether a defendant should be sentenced to death. In
contrast, Ohio’s capital-sentencing scheme places that responsibility
with the jury. R.C. 2929.03 charges the jury with determining, by
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Case No. 9-16-34
proof beyond a reasonable doubt, the existence of any statutory
aggravating circumstances and whether those aggravating
circumstances are sufficient to outweigh the defendant’s mitigating
evidence.
Hoffner at ¶ 69, citing R.C. 2929.03(B) and (D).
{¶38} Notwithstanding the trial court’s departure from Ohio precedent, the
trial court also ignored Sixth Amendment jurisprudence and wrongly extended the
reach of the Sixth Amendment’s right-to-a-trial-by-jury precedent. Going rogue,
the trial court erroneously analyzed the concepts of death eligibility, Ohio’s
weighing process during the penalty phase, and advisory-sentence
recommendations.
{¶39} First, the trial court misinterpreted the concept of “death eligibility.”
That is, the trial court considers a defendant to be death eligible only after the trial
court sentences the defendant to death in its written opinion under R.C. 2929.03(F).
The trial court’s characterization of death eligibility ignores the distinction between
whether a defendant is eligible for the death penalty and whether the death penalty
is the appropriate sentence for a defendant who is already eligible for the death
penalty. See Ex Parte State, 2016 WL 3364689, at *8 (discussing the distinction
“between whether a capital defendant is eligible for the death penalty, and whether
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Case No. 9-16-34
the death penalty is an appropriate sentence for a capital defendant who is eligible
for the death penalty”). (Emphasis sic.)
{¶40} The Supreme Court of Ohio clearly defined the concept of death
eligibility. In Ohio, a defendant is eligible for a death sentence if a jury finds beyond
a reasonable doubt that the defendant is guilty of one of the R.C. 2929.04(A)
aggravating circumstances. Belton, ___ Ohio St.3d ___, 2016-Ohio-1589, at ¶ 59;
Adams, 144 Ohio St. 3d 429, 2015-Ohio-3954, at ¶ 269 (“Adams became death-
eligible when the jury unanimously found him guilty of aggravated murder in the
course of some predicate felony.”); State v. Davis, 116 Ohio St. 3d 404, 2008-Ohio-
2, ¶ 189; State v. Gumm, 73 Ohio St. 3d 413, 417 (1995) (“At the point in time at
which the factfinder (either a jury or three-judge panel) finds the defendant guilty
of both aggravated murder and an R.C. 2929.04(A) specification, the defendant has
become ‘death-eligible,’ and a second phase of the proceedings (the ‘mitigation’ or
‘penalty’ or ‘sentencing’ or ‘selection’ phase) begins * * *.”), citing R.C.
2929.03(C)(2). The defendant in Davis argued “that the Sixth Amendment requires
any finding of fact that makes a defendant eligible for the death penalty to be
unanimously made by a jury” under Apprendi and Ring. Davis at ¶ 189. The
Supreme Court of Ohio concluded that Davis’s argument was meritless because
“Davis’s reliance on Apprendi and Ring is misplaced because the jury’s verdict, and
not the judge’s findings, made Davis eligible for the death penalty.” Id.
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Case No. 9-16-34
Accordingly, the trial court’s conclusions about the concept of death eligibility in
Ohio are erroneous.
{¶41} Also erroneous is the trial court’s conclusion that Ohio’s weighing
process during the penalty phase is unconstitutional. See U.S. v. Fields, 483 F.3d
313, 346 (5th Cir.2007) (“Capital defendants have no constitutional right to a jury
at sentencing.”), citing Proffitt v. Florida, 428 U.S. 242, 253, 96 S. Ct. 2960 (1976);
Harris v. Alabama, 513 U.S. 504, 517, 115 S. Ct. 1031 (1995), overruled on other
grounds, Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151, 2155 (2013). See
also Fields at 346 (“Indeed, the Supreme Court has explicitly held that judges may
do the weighing of aggravating and mitigating circumstances consistent with the
Constitution.”), citing Clemons v. Mississippi, 494 U.S. 738, 745, 110 S. Ct. 1441
(1990).
{¶42} As we noted above, Hurst did not expand Apprendi and Ring. Those
cases “require only that the jury find the existence of the aggravating factor that
makes a defendant eligible for the death penalty—the plain language in those cases
requires nothing more and nothing less.” In re Bohannon, 2016 WL 5817692, at
*5. The Apprendi rule, as applied to death-penalty cases by Ring, “only prevents
courts from using judicially found aggravating factors in its weighing process.”
Bentsen, Beyond Statutory Elements: The Substantive Effects of the Right to a Jury
Trial on Constitutionally Significant Facts, 90 Va.L.Rev. 645, 677 (2004), fn. 166.
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Case No. 9-16-34
Because Ohio’s death-penalty statute requires the jury, not the judge, to determine
that an aggravating circumstance exists beyond a reasonable doubt, Ohio’s death-
penalty statute does not violate the Sixth Amendment. Compare In re Bohannon at
*5 (applying Apprendi, Ring, and Hurst to Alabama’s death-penalty statute and
concluding that its statute does not violate the Sixth Amendment because the jury
“determines by a unanimous verdict the critical finding that an aggravating
circumstance exists beyond a reasonable doubt to make the defendant death-
eligible”).
{¶43} Furthermore, Apprendi and Ring do “not convert the judicial function
of weighing aggravating and mitigating factors into a necessary factual
determination that the aggravating factor(s) outweigh any mitigating factors.”
Bentsen at 677, fn. 166, citing Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954
(1978). “Whether the aggravating circumstances outweigh the mitigating
circumstances is not a finding of fact necessary to make a capital defendant eligible
for the death penalty but is a ‘moral or legal judgment’ guiding the trial court’s
discretion in determining ‘“whether a defendant eligible for the death penalty should
in fact receive that sentence.”’” Ex parte State, 2016 WL 3364689, at *8, quoting
Ex parte Waldrop, 859 So. 2d 1181, 1189 (Ala.2002), quoting Tuilaepa v.
California, 512 U.S. 967, 972, 114 S. Ct. 2630 (1994). The weight afforded to the
aggravating circumstance and mitigating factors “is one of judgment, of shades of
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Case No. 9-16-34
gray; like saying that Beethoven was a better composer than Brahms. Here, the
judgment is moral * * *. What [a weighing statute] requires, is not a finding of fact,
but a moral judgment.” U.S. v. Gabrion, 719 F.3d 511, 532-533 (6th Cir.2013)
(discussing the federal death penalty statute, which also requires a jury to weigh
factors in determining whether a sentence of death is appropriate). See also U.S. v.
Sampson, 486 F.3d 13, 32 (1st Cir.2007) (“As other courts have recognized, the
requisite weighing constitutes a process, not a fact to be found. The outcome of the
weighing process is not an objective truth that is susceptible to (further) proof by
either party. Hence, the weighing of aggravators and mitigators does not need to be
‘found.’”), citing United States v. Purkey, 428 F.3d 738, 750 (8th Cir.2005)
(characterizing the weighing process as “the lens through which the jury must focus
the facts that it has found” to reach its individualized determination), Ford v.
Strickland, 696 F.2d 804, 818 (11th Cir.1983), and Gray v. Lucas, 685 F.2d 139,
140 (5th Cir.1982).
{¶44} In Apprendi, the United States Supreme Court discussed the role of
mitigating evidence and noted the consideration of mitigating evidence
neither expos[es] the defendant to a deprivation of liberty greater than
authorized by the verdict according to statute, nor * * * impos[es]
upon the defendant a greater stigma than accompanying the jury
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Case No. 9-16-34
verdict alone. Core concerns animating the jury and burden-of-proof
requirements are thus absent from such a scheme.
Appredni, 530 U.S. at 490, fn. 16. Because mitigating factors are not facts that
expose defendants to harsher penalties, there is no requirement that the jury
unanimously find a mitigating factor. See State v. McKnight, 107 Ohio St. 3d 101,
2005-Ohio-6046, ¶ 259, citing Mills v. Maryland, 486 U.S. 367, 383, 108 S. Ct. 1860
(noting that the jury may not be instructed that it must unanimously agree on a
mitigating factor before that factor may be weighed against an aggravating
circumstance). See also McKoy v. North Carolina, 494 U.S. 433, 433-434, 11 S. Ct.
1227 (1990).
{¶45} Hurst did not disturb Apprendi’s holding that “trial courts may
‘exercise discretion—taking into consideration various factors relating both to
offense and offender—in imposing a judgment within the range prescribed by
statute.’” (Emphasis sic.) In re Bohannon, 2016 WL 5817692, at *6, quoting
Apprendi at 481. See also United States v. Sampson, D.Mass No. 01-10384-LTS,
2016 WL 3102003, *3 (June 2, 2016) (“The Supreme Court, however, focused its
analysis and its ultimate statements of the holding in Hurst on the first of those
‘facts’ – the finding of aggravating factors – and, besides quoting the statutory
language, included no discussion of the second – the weighing of mitigating and
aggravating factors.”), citing Hurst, 136 S. Ct. at 620-624. Furthermore, “Hurst does
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not address the process of weighing the aggravating and mitigating circumstances
or suggest that the jury must conduct the weighing process to satisfy the Sixth
Amendment.” In re Bohannon at *6.
{¶46} In Ohio, there is no additional finding—within the meaning of the
Sixth Amendment—not found by a jury that exposes a defendant to a harsher
penalty. In Ohio, the only independent review done by the trial court is its
reweighing of the aggravating circumstance and mitigating factors under R.C.
2929.03(F). The reweighing is not a “critical finding” that exposes the defendant to
a harsher penalty. Indeed, notwithstanding the precedential-value issue of Belton
discussed above, the Supreme Court of Ohio discussed that the weighing process
for sentencing purposes is not subject to the Sixth Amendment because the weighing
process cannot increase the potential penalty that the defendant faces. See Belton,
___ Ohio St.3d ___, 2016-Ohio-1581, at ¶ 60. Accordingly, the trial court’s analysis
regarding the constitutionality of Ohio’s weighing process during the penalty phase
is flawed.
{¶47} Finally, the trial court erroneously categorizes the jury’s death
recommendation in Ohio as “advisory.” To reach this conclusion, the trial court
ignores that the aggravating-circumstance finding in Ohio is made by the jury, not
the judge. Compare In re Bohannon at *7 (“Bohannon ignores the fact that the
finding required by Hurst to be made by the jury, i.e., the existence of the
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aggravating factor that makes a defendant death-eligible, is indeed made by the jury,
not the judge, in Alabama.”). “Nothing in Apprendi, Ring, or Hurst suggests that,
once the jury finds the existence of the aggravating circumstance that establishes
the range of punishment to include death, the jury cannot make a recommendation
for the judge to consider in determining the appropriate sentence or that the judge
cannot evaluate the jury’s sentencing recommendation to determine the appropriate
sentence within the statutory range.” Id. Unlike the jury’s verdict in Florida, which
was truly advisory because the jury did not make any findings regarding the
aggravating circumstance, the jury’s verdict in Ohio contains explicit findings as to
the specific aggravating circumstance it found beyond a reasonable doubt.
Therefore, the jury’s death recommendation in Ohio is not advisory as was the jury’s
recommendation in Florida. See id. Compare People v. Jackson, 21 Cal.5th 269,
374, 205 Cal. Rptr. 3d 386, 376 P.3d 528 (2016) (comparing California’s death-
penalty scheme to Florida’s death-penalty scheme at issue in Hurst and concluding
that California’s does not violate the Sixth Amendment because, if the jury reaches
a verdict of death, “[t]he trial court simply determines ‘whether the jury’s findings
and verdicts that the aggravating circumstances outweigh the mitigating
circumstances are contrary to law or the evidence presented’”), quoting Cal.Penal
Code 190.4(e).
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{¶48} For these reasons, we conclude that Ohio’s death-penalty statute in
effect in 1993 does not violate the Sixth Amendment. As such, the trial court erred
in granting Mason’s motion to dismiss the death-penalty specification from his
indictment. The State’s assignments of error are sustained.
{¶49} Having found error prejudicial to the appellant herein in the particulars
assigned and argued, we reverse the judgment of the trial court and remand for
further proceedings consistent with this opinion.
Judgment Reversed and
Cause Remanded
SHAW, P.J. and WILLAMOWSKI, J., concur.
/jlr
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