State v. Lorraine , 120 N.E.3d 33 ( 2018 )

[Cite as State v. Lorraine, 2018-Ohio-3325.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2017-T-0028
- vs - :
CHARLES L. LORRAINE, :
Defendant-Appellant. :
Criminal Appeal from the Trumbull County Court of Common Pleas.
Case No. 86 CR 182.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor; Charles L. Morrow, LuWayne Annos, and
Ashleigh Musick, Assistant Prosecutors, Administration Building, Fourth Floor, 160 High
Street, N.W., Warren, OH 44481 (For Plaintiff-Appellee).
Timothy Young, Ohio Public Defender; Randall L. Porter and Adrienne M. Larimer,
Assistant Ohio Public Defenders, 250 East Broad Street, Suite 1400, Columbus, OH
43215-9308; and Marc S. Triplett, 332 South Main Street, Bellefontaine, OH 43311 (For
Defendant-Appellant).
TIMOTHY P. CANNON, J.
{¶1} Appellant, Charles L. Lorraine, appeals from the March 2, 2017 judgment
entry of the Trumbull County Court of Common Pleas, denying his “Motion for Leave to
File a Motion for New Mitigation Trial.” The trial court’s judgment is affirmed.
{¶2} Appellant was charged with various crimes, including aggravated murder,
in 1986. The charges stemmed from the stabbing deaths of Raymond and Doris
Montgomery. Appellant had befriended the Montgomerys, who hired him to do small
tasks at their home. At the time of the murders, Mr. Montgomery was 77 years of age;
Mrs. Montgomery was 80 years of age and bedridden.
{¶3} On the evening of May 5, 1986, appellant went to the Montgomery home
and told Mr. Montgomery he had left an item in an upstairs room. When they reached the
room, appellant attacked Mr. Montgomery from behind and stabbed him five times, killing
him. Appellant then went to Mrs. Montgomery’s room and stabbed her nine times, killing
her. Appellant burglarized the home before he retired to a local tavern, where he bragged
to friends about the killings. He and one of the friends then broke into a nearby house,
stealing money and a car, before returning to the Montgomery home for further looting.
{¶4} The following day, while at the police station on other business, appellant
confessed the murders to the police.
{¶5} On May 9, 1986, the Trumbull County Grand Jury returned a multi-count
indictment against appellant. Relevant to this appeal are Counts One through Four.
Counts One and Three were for the aggravated murder of Mrs. Montgomery; Counts Two
and Four were for the aggravated murder of Mr. Montgomery. All four counts carried two
death penalty specifications pursuant to former R.C. 2929.04(A)(5) & (7): that the
aggravated murders were committed while committing aggravated robbery and in a
course of conduct involving the purposeful killing of two or more people.
{¶6} The case came on for trial in the fall of 1986. The jury returned its verdict
on November 19, 1986, finding appellant guilty on each count of aggravated murder and
each death penalty specification. The sentencing phase ensued. The trial court removed
Counts Three and Four from the jury’s consideration. On December 4, 1986, a
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unanimous jury found the aggravating circumstances of the murders outweighed any
mitigating factors by proof beyond a reasonable doubt and recommended the death
sentence be imposed. After independently weighing the aggravating circumstances and
mitigating factors, the trial court imposed the death sentence upon appellant. On
December 9, 1986, the trial court issued its sentencing opinion.
{¶7} This court affirmed appellant’s convictions and death sentence on August
10, 1990. State v. Lorraine, 11th Dist. Trumbull No. 3838, 1990 WL 116921 (Aug. 10,
1990). The Ohio Supreme Court affirmed our decision in State v. Lorraine, 66 Ohio St.3d
414 (1993), and the United States Supreme Court denied certiorari in Lorraine v. Ohio,
510 U.S. 1054 (1994).
{¶8} On September 30, 1994, appellant filed a postconviction relief petition,
pursuant to former R.C. 2953.21, which the trial court denied. This court affirmed the trial
court’s decision in State v. Lorraine, 11th Dist. Trumbull No. 95-T-5196, 1996 WL 207676(Feb. 23, 1996), and appellant appealed our decision to the Ohio Supreme Court.
{¶9} On April 10, 1996, while the foregoing appeal was still pending before the
Ohio Supreme Court, appellant filed a motion for relief from the trial court’s judgment that
denied his petition for postconviction relief, pursuant to Civ.R. 60(B). The trial court
overruled appellant’s Civ.R. 60(B) motion. This court reversed that decision because the
trial court was without jurisdiction while the appeal was pending. State v. Lorraine, 11th
Dist. Trumbull No. 96-T-5494, 1997 WL 799551 (Dec. 12, 1997).
{¶10} Upon remand, the trial court granted appellant’s Civ.R. 60(B) motion for
relief from judgment and reactivated the case for disposition of appellant’s petition for
postconviction relief. The trial court subsequently denied, for a second time, the petition
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for postconviction relief. This court affirmed that decision in State v. Lorraine, 11th Dist.
Trumbull No. 99-T-0060, 2000 WL 1262447 (Sept. 1, 2000).
{¶11} Appellant then raised his postconviction issues in the United States District
Court for the Northern District of Ohio in a petition for writ of habeas corpus. The district
court granted habeas relief and set aside appellant’s death sentence; the Sixth Circuit
Court of Appeals reversed that ruling and reinstated the death sentence. Lorraine v.
Coyle, 291 F.3d 416 (6th Cir.2002). The United States Supreme Court denied certiorari.
Lorraine v. Coyle, 538 U.S. 947 (2003).
{¶12} On June 9, 2003, appellant filed a second petition for postconviction relief
in the trial court, alleging a claim of mental retardation under Atkins v. Virginia, 536 U.S.
304 (2002), which the trial court denied. This court reversed the trial court’s ruling and
ordered the trial court to conduct a full evidentiary hearing on remand and to appoint
experts to evaluate whether appellant is, in fact, mentally retarded. State v. Lorraine,
11th Dist. Trumbull No. 2003-T-0159, 2005-Ohio-2529.
{¶13} Upon remand, the trial court ordered that appellant’s institutional mental
health records be unsealed. This court affirmed that decision in State v. Lorraine, 11th
Dist. Trumbull No. 2006-T-0100, 2007-Ohio-6724. The matter was set for an evidentiary
hearing. Appellant appeared in court, with counsel, and informed the trial court that he
wished to waive his right to the hearing; the trial court accepted appellant’s written waiver.
The trial court subsequently found that appellant was not mentally retarded under Atkins
and denied appellant’s second petition for postconviction relief on March 1, 2010.
Appellant did not file a notice of appeal from that entry.
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{¶14} On January 11, 2017, appellant filed a “Motion for Leave to File a Motion
for New Mitigation Trial,” which is the subject of the instant appeal. The arguments raised
in this motion are based on a recent opinion of the United States Supreme Court, Hurst
v. Florida, ___ U.S. ___, 136 S.Ct. 616 (2016).1 The Hurst Court held Florida’s death
penalty sentencing scheme violated the Sixth Amendment right to have a jury, not a judge,
find the facts that support the decision to sentence a defendant to death. Id. at 622,
applying Ring v. Arizona, 536 U.S. 584 (2002) and citing Apprendi v. New Jersey, 530
U.S. 466 (2000). Appellant argues Ohio’s death penalty sentencing scheme similarly
violates the Sixth Amendment.
{¶15} Appellant asserted the trial court should grant him leave to file a delayed
motion for a “new mitigation trial,” under Crim.R. 33(A)(1), (4), and (5), because he “could
not have anticipated” the holding in Hurst and, thus, “could not have filed his motion for
new trial within fourteen days of the imposition of sentence.” Appellee responded, in part,
that Crim.R. 33 is not designed for the relief sought by appellant, i.e. a “new mitigation
trial,” and that the trial court should construe the motion as a petition for postconviction
relief under R.C. 2953.21.
{¶16} The trial court denied the motion on March 2, 2017. The trial court found
the motion was time barred, whether considered pursuant to Crim.R. 33 or R.C. 2953.21.
The trial court further found the motion was substantively meritless and that Ohio’s death
penalty scheme is sufficiently different from what was invalidated in Hurst to survive
constitutional scrutiny.
1. On January 12, 2017, appellant brought the same arguments before the Ohio Supreme Court in a
“Motion for Relief Pursuant to Supreme Court Rule of Practice 4.01.” The motion was summarily denied
on March 15, 2017. See 03/15/2017 Case Announcements, 2017-Ohio-905.
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{¶17} Appellant filed a timely appeal and raises one assignment of error for our
review:
{¶18} “The trial court erred when it denied Lorraine’s motion for leave to file his
motion for a new trial.”
{¶19} Appellant first argues the trial court misconstrued the applicable law
concerning whether his motion was timely filed. This argument raises an issue of law we
review de novo. See, e.g., State v. Fortune, 11th Dist. Lake No. 2014-L-117, 2015-Ohio-
4019, ¶16 (citation omitted).
{¶20} Appellant asserts his proposed “Motion for a New Mitigation Trial” is based
on the provisions in Crim.R. 33(A), which governs motions for new trial. The timeliness
of motions for new trial is governed by Crim.R. 33(B), which states:
Application for a new trial shall be made by motion which, except for
the cause of newly discovered evidence, shall be filed within fourteen
days after the verdict was rendered, or the decision of the court
where a trial by jury has been waived, unless it is made to appear by
clear and convincing proof that the defendant was unavoidably
prevented from filing his motion for a new trial, in which case the
motion shall be filed within seven days from the order of the court
finding that the defendant was unavoidably prevented from filing
such motion within the time provided herein.
{¶21} The jury verdict in appellant’s case was rendered in 1986; thus, the trial
court was required to determine whether appellant was “unavoidably prevented” from
filing his motion within fourteen days of the verdict. The trial court did not engage in this
analysis. It instead stated: “[T]he Court finds the motion is untimely. Pursuant to Crim.R.
33(B), motions such as this must be filed within fourteen days after the verdict was
rendered. Lorraine is entirely outside this time frame. Therefore, the Court finds no basis
on which to grant leave to file a request under Crim.R. 33.”
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{¶22} We agree with appellant that the trial court did not engage in the proper
analysis regarding the timeliness of a delayed motion for new trial, pursuant to Crim.R.
33(B). See State v. Trimble, 11th Dist. Trumbull No. 2013-P-0088, 2015-Ohio-942, ¶18
(without a determination of whether appellant was “unavoidably prevented,” this court is
left with an insufficient record to review).
{¶23} We conclude, however, that this error was harmless, as the basis for
appellant’s motion—to wit, an alleged constitutional violation that occurred during the
sentencing proceedings—is not appropriately raised in a Crim.R. 33 motion for new trial.
{¶24} In Davie, this court held “there is no provision in the Ohio Criminal Rules
that provides for a new sentencing hearing.” State v. Davie, 11th Dist. Trumbull No. 2007-
T-0069, 2007-Ohio-6940, ¶8. Appellant argues this court subsequently ruled otherwise,
with respect to the propriety of seeking sentencing relief in a motion for new trial, in State
v. Jackson, 190 Ohio App.3d 319, 2010-Ohio-5054 (11th Dist.).
{¶25} In Jackson, the defendant filed a “Motion for New Trial and/or Sentencing
Hearing.” The trial court denied this motion because the motion for new trial was untimely
under Crim.R. 33(B) and because there is no provision in the Ohio Criminal Rules for a
new sentencing hearing. On appeal, this court reversed the trial court’s judgment and
remanded the case for the trial judge to “personally review and evaluate the
appropriateness of the death penalty, prepare an entirely new sentencing entry as
required by R.C. 2929.03(F), and conduct whatever other proceedings are required by
law and consistent with this opinion.” Id. at ¶29, citing State v. Roberts, 110 Ohio St.3d
71, 2006-Ohio-3665, ¶167.
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{¶26} However, this court neither relied on nor overruled Davie in that decision
because the cases were distinguishable: our holding in Jackson was not based on the
applicability of Crim.R. 33, but on the Ohio Supreme Court’s holding in Roberts. Id. at
¶28-29. In Roberts, the Ohio Supreme Court had vacated the defendant’s death sentence
due to improper ex parte communication between the prosecution and the trial court
judge. Because the trial court judge had admitted in an affidavit that the same drafting
procedures and ex parte communication involving the sentencing entry that had occurred
in Roberts also took place in Jackson, that defendant was entitled to the same relief the
Ohio Supreme Court had afforded the defendant in Roberts. Id. at ¶29; see also id. at
¶43 (Cannon, Trapp, JJ., concurring) (“Based on the holding in Roberts as well as the
trial judge’s affidavit opposing disqualification filed in this case, * * * the only proper
disposition of this matter is for the trial court to proceed with resentencing.”).
{¶27} Appellant’s argument is not well taken; our holding in Davie was not
compromised by our holding in Jackson. There is no provision in Crim.R. 33, or in any
Ohio Criminal Rule, that provides for a new sentencing hearing. Davie, supra, at ¶8.
Appellant cannot escape the fact that Crim.R. 33 is not the proper vehicle to obtain the
relief he seeks by captioning his motion, “Motion for New Mitigation Trial,” when it is, in
fact, a motion for a new sentencing hearing.
{¶28} We further note that, even if Crim.R. 33 was the proper vehicle, appellant
could not succeed on his motion for leave to file a delayed motion for new trial. Appellant
argues he was “unavoidably prevented” from filing a timely motion because the basis for
his motion, Hurst v. Florida, was decided 30 years after he was sentenced to death.
Appellant, however, was also required to file his motion for leave within a “reasonable
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time” after discovering the basis for his motion. See State v. Elersic, 11th Dist. Lake No.
2007-L-104, 2008-Ohio-2121, ¶25-29, quoting State v. York, 2d Dist. Greene No. 2000
CA 70, 2001 WL 332019, *3-4 (Apr. 6, 2001) (emphasis sic) (“‘Although Crim.R. 33(B) is
silent regarding a time limit for the filing of a motion for leave to file a delayed motion for
new trial * * * a trial court may require a defendant to file his motion for leave to file a
motion for new trial within a reasonable time.’”). Appellant did not meet this requirement,
as he did not file his motion for leave until one year after the Hurst decision was issued.
{¶29} After finding appellant’s motion untimely under Crim.R. 33, the trial court
construed the motion as a petition for postconviction relief, pursuant to R.C. 2953.21.
“[W]here a criminal defendant, subsequent to his or her direct appeal, files a motion
seeking vacation or correction of his or her sentence on the basis that his or her
constitutional rights have been violated, such a motion is a petition for postconviction relief
as defined in R.C. 2953.21.” State v. Reynolds, 79 Ohio St.3d 158, 160 (1997); see also
Davie, supra, at ¶9, quoting State v. Foti, 11th Dist. Lake No. 2006-L-138, 2007-Ohio-
887, ¶12 (“‘a criminal defendant who files a motion to vacate or correct his or her sentence
on the ground that his or her constitutional rights have been violated necessarily
embraces the postconviction relief statutes’”).
{¶30} The postconviction relief statutes provide, in relevant part:
Any person who has been convicted of a criminal offense * * * and
who claims that there was such a denial or infringement of the
person’s rights as to render the judgment void or voidable under the
Ohio Constitution or the Constitution of the United States * * * may
file a petition in the court that imposed sentence, stating the grounds
for relief relied upon, and asking the court to vacate or set aside the
judgment or sentence or to grant other appropriate relief.
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R.C. 2953.21(A)(1)(a); see also R.C. 2953.21(A)(3) (“a person who has been sentenced
to death may ask the court to render void or voidable * * * the sentence of death”).
{¶31} At the time appellant was convicted and sentenced to death, the
postconviction relief statute did not contain any time limitation for filing. Effective
September 21, 1995, R.C. 2953.21 was amended to provide that a petition “shall be filed
no later than one hundred eighty days after the date on which the trial transcript is filed in
the court of appeals in the direct appeal of the judgment of conviction or adjudication,” or,
if no appeal is taken, “no later than one hundred eighty days after the expiration of the
time for filing the appeal.” Former R.C. 2953.21(A)(2).2 Petitioners who were sentenced
prior to the amendment were required to file their petition within one year from September
21, 1995, the effective date of the amendment. State v. Moore, 4th Dist. Pike No.
01CA674, 2002-Ohio-5748, ¶10; State v. McDonald, 6th Dist. Erie No. E-04-009, 2005-
Ohio-798, ¶15; State v. Burke, 10th Dist. Franklin No. 02AP-677, 2002-Ohio-6840, ¶6-8
(all citing Section 3, Am.Sub.S.B. No. 4; 146 Ohio Laws, Part IV, 7826); see also State v.
Mitchell, 11th Dist. Portage Nos. 2017-P-0007 & 2017-P-0009, 2017-Ohio-8440, ¶27.
{¶32} A convicted offender may file an untimely or a successive petition for
postconviction relief when, as is relevant here, both of the following apply:
(a) * * * [T]he United States Supreme Court recognized a new federal
or state right that applies retroactively to persons in the petitioner’s
situation, and the petition asserts a claim based on that right.
(b) The petitioner shows by clear and convincing evidence that, * * *
but for constitutional error at the sentencing hearing, no reasonable
factfinder would have found the petitioner eligible for the death
sentence.
R.C. 2953.23(A)(1) (formerly R.C. 2953.23(A)(1)(b) & (A)(2)).
2. The statute currently provides for three hundred sixty-five days.
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{¶33} Here, the trial court stated: “In addition, if the Court were to construe
Lorraine’s motion as a post-conviction relief request pursuant to R.C. 2953.21, the Court
finds no basis on which to grant such a request. The Court finds such a post-conviction
request would be time barred as the request was filed well beyond the 180-day statutory
period.”
{¶34} Again, the trial court did not engage in the proper analysis regarding the
timeliness of the motion, even when construed as a petition for postconviction relief,
because it applied the wrong time limitation for filing and it did not review the exceptions
to timeliness outlined in R.C. 2953.23(A). We again conclude, however, that this error
was harmless.
{¶35} First, appellant has not raised this error on appeal, instead insisting his
motion was not a petition for postconviction relief and should not be construed as such.
Because he has repeatedly emphasized before the trial court and on appeal that his
motion was only intended to be considered as a Crim.R. 33 motion for new trial, we agree
to proceed on that basis. See State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993.
{¶36} We further recognize, however, that appellant’s insistence in this regard
appears to be an effort to avoid the retroactivity requirement found in R.C.
2953.23(A)(1)(a). In other words, appellant’s motion could only be successful, when
construed as a petition for postconviction relief, if Hurst v. Florida recognized a new
federal right that applies retroactively to persons in appellant’s situation.
{¶37} A new rule issued by the United States Supreme Court is not retroactively
applicable to cases on collateral review unless the United States Supreme Court
expressly holds it to be retroactive. Tyler v. Cain, 533 U.S. 656, 663 (2001). “In Tyler,
11
the Court acknowledged that, ‘with the right combination of holdings,’ it could ‘make a rule
retroactive over the course of two cases.’” In re Zambrano, 433 F.3d 886, 888
(D.C.Cir.2006), quoting Tyler, supra, at 666. This is only possible, however, “if the
holdings in those cases necessarily dictate retroactivity of the new rule.” Tyler, supra, at
666.
{¶38} Here, the United States Supreme Court did not expressly hold that Hurst v.
Florida was to be applied retroactively to cases on collateral review. Additionally, the
holding in Hurst was an application of Ring, which held that capital defendants “are
entitled to a jury determination of any fact on which the legislature conditions an increase
in their maximum punishment.” Ring, supra, at 589; see Hurst, supra, at 622 (“In light of
Ring, we hold that Hurst’s sentence violates the Sixth Amendment.).” And the United
States Supreme Court has expressly held that Ring does not apply retroactively to cases
on collateral review:
The right to jury trial is fundamental to our system of criminal
procedure, and States are bound to enforce the Sixth Amendment’s
guarantees as we interpret them. But it does not follow that, when a
criminal defendant has had a full trial and one round of appeals in
which the State faithfully applied the Constitution as we understood
it at the time, he may nevertheless continue to litigate his claims
indefinitely in hopes that we will one day have a change of heart.
Ring announced a new procedural rule that does not apply
retroactively to cases already final on direct review.
Schriro v. Summerlin, 542 U.S. 348, 358 (2004); see also Holmes v. Neal, 816 F.3d 949,
954 (7th Cir.2016). Thus, the possibility of a “Tyler two-step” does not assist appellant in
his attempt to retroactively apply the holding in Hurst to a collateral review of his sentence.
See Zambrano, supra, at 888.
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{¶39} Appellant’s final issue presented for our review is whether the trial court
erred in holding that Ohio’s death penalty scheme does not violate a defendant’s right to
a jury trial, as presented in Hurst. In that regard, the trial court stated:
Even if the Court did not find the requests were time barred as
explained herein, the Court finds the reliance of Lorraine upon the
Hurst v. Florida, 136 S. Ct. 616 (2016), decision is misplaced. ‘Hurst,
*** does not invalidate Ohio’s capital sentencing scheme because
Ohio’s scheme is materially different from Florida’s.’ McKnight v.
Bobby, S.D.Ohio No. 2:09-CV-059, 2017 WL 631411, *3-4. In fact,
the Ohio mechanism provides an additional layer of protection not
present in Hurst. Id. Indeed, ‘Ohio’s capital-sentencing scheme is
unlike the laws at issue in Ring and Hurst.’ State v. Belton, 2016-
Ohio-1581, ¶59.
{¶40} Appellant asserts the trial court’s reliance on McKnight and Belton is
misplaced. It is well settled, however, that a reviewing “‘court will not reach constitutional
issues unless absolutely necessary.’” State v. Ferry, 11th Dist. Lake No. 2007-L-217,
2008-Ohio-2616, ¶19, quoting State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, ¶9,
citing In re Miller, 63 Ohio St.3d 99, 110 (1992) and Hall China Co. v. Pub. Util. Comm.,
50 Ohio St.2d 206, 210 (1977). Based on our determinations above, it is not absolutely
necessary to address this constitutional issue, and we therefore decline to do so. We
further note, however, that the Ohio Supreme Court recently rejected this argument in
State v. Mason, Slip Opn. No. 2018-Ohio-1462: “Ohio law requires the critical jury findings
that were not required by the laws at issue in Ring and Hurst. See R.C. 2929.03(C)(2).
Ohio’s death-penalty scheme, therefore, does not violate the Sixth Amendment.” Id. at
¶21.
{¶41} Appellant’s sole assignment of error is without merit.
{¶42} The judgment of the Trumbull County Court of Common Pleas is hereby
affirmed.
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COLLEEN MARY O’TOOLE, J., concurs in judgment only,
DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.
____________________
DIANE V. GRENDELL, J., concurs in judgment only with a Concurring Opinion.
{¶43} I concur in the writing judge’s conclusion and analysis that Lorraine could
not prevail on a postconviction petition and that his Crim.R. 33 motion for a new trial must
be denied. I write separately, however, to clarify the grounds on which denial of the
Crim.R. 33 motion was proper in this case.
{¶44} The writing judge concludes that the motion for a new trial was not a proper
mechanism for relief because Crim.R. 33 does not provide a provision for seeking a new
sentencing hearing, relying on this court’s decision in State v. Davie, 11th Dist. Trumbull
No. 2007-T-0069, 2007-Ohio-6940. In Davie, this court held that a Crim.R. 33 motion
was not the appropriate mechanism to seek a new sentencing hearing in a death penalty
matter where there was an alleged irregularity in the trial court’s sentencing entry. In the
present case, Lorraine is not seeking a new “sentencing hearing.” Rather, he is seeking
a new hearing of the penalty portion of the trial, which is of a different character than a
typical sentencing hearing, since it involves a jury’s weighing of mitigating and
aggravating factors and making only a recommendation of a death sentence to the trial
court. R.C. 2929.03(D)(2).
{¶45} The foregoing procedure has been referred to as the “penalty phase[] of the
[defendant’s] trial” and it has been noted that reversal based on a sentencing error on the
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part of the trial judge when issuing a sentence “does not invalidate the jury’s verdict
recommending a death sentence.” (Emphasis added.) State v. Roberts, 150 Ohio St.3d
47, 2017-Ohio-2998, 78 N.E.3d 851, ¶ 25 and 48. Courts have allowed a defendant to
be granted a new penalty phase hearing under Crim.R. 33. See State ex rel. Steffen v.
Court of Appeals, First Appellate Dist., 126 Ohio St.3d 405, 2010-Ohio-2430, 934 N.E.2d
906, ¶ 8-9.
{¶46} Regardless, denial of the motion for a new trial was proper since it is evident
that Lorraine was not “unavoidably prevented” from filing his motion until January 11,
2017. Lorraine’s argument in favor of granting a new mitigation trial was that he was
entitled to a hearing following the procedures described in the recent United States
Supreme Court decision in Hurst v. Florida, ___ U.S. ___, 136 S.Ct. 616, 193 L.Ed.2d
504 (2016), and that judicial fact-finding cannot be the sole basis for imposing a death
sentence. It has been held, however, that a defendant could have raised the same
arguments years prior to the decision in Hurst by relying on Apprendi v. New Jersey, 530
U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584,
122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). State v. Mundt, 7th Dist. Noble No. 17 NO 0446,
2017-Ohio-7771, ¶ 9. It is worth noting as well that Lorraine did not file his motion until a
year after the Hurst decision was issued. Thus, there was no evidence of unavoidable
delay, from a legal standpoint, for the failure to raise the arguments Lorraine now sets
forth.
{¶47} For the foregoing reasons, I concur in judgment only.
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