IN THE SUPREME COURT OF OHIO 2017 STATE OF OHIO, Case No. 17-200 Plaintiff-Appellee, On Discretionary Appeal -vs- from Marion County Court of Appeals, Third Appellate District MAURICE MASON, Court of Appeals Defendant-Appellant. Case No. 9-16-34 Death Penalty Case

BRIEF OF AMICUS CURIAE OHIO PROSECUTING ATTORNEYS ASSOCIATION IN SUPPORT OF PLAINTIFF-APPELLEE STATE OF OHIO

RON O’BRIEN 0017245 RAY A. GROGAN 0084002 Franklin County Prosecuting Attorney Marion County Prosecuting Attorney 373 South High Street, 13th Floor 134 East Center Street Columbus, Ohio 43215 Marion, Ohio 43302 Phone: 614-525-3555 Phone: 740-223-4290 Fax: 614-525-6103 Fax: 740-223-4299 E-mail: staylor@franklincountyohio.gov E-mail: kcollins@co.marion.oh.us and and STEVEN L. TAYLOR 0043876 KEVIN P. COLLINS 0029811 (Counsel of Record) (Counsel of Record) Chief Counsel, Appellate Division Assistant Prosecuting Attorney Counsel for Amicus Curiae Ohio Prosecuting Counsel for Plaintiff-Appellee Attorneys Association Other Counsel on Certificate of Service

Supreme Court of Ohio Clerk of Court - Filed November 17, 2017 - Case No. 2017-0200

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TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF AMICUS INTEREST 1 STATEMENT OF FACTS 1 ARGUMENT 2

Response to Defendant’s Proposition of Law: A. R.C. 2929.03 protects the constitutional right to jury trial by providing for a jury determination regarding the offense and regarding the capital specifications. The statute goes above and beyond what is required by the constitutional right to jury trial by also requiring that the trial jury make the sentencing determination of whether the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt. B. When the statute requires that the trial judge also engage in the same weighing determination following a jury recommendation of the death penalty, it does not violate the constitutional right to jury trial, but rather, provides an additional protection favorable only to the capital defendant by creating a post-jury mechanism by which the judge can override the jury’s recommendation of death. C. Even if the statute were unconstitutional in providing this added layer of protection through post-jury “judicial fact-finding”, the remedy would be to sever the “judicial fact-finding” weighing requirement and allow the trial judge as sentencing judge to impose a death sentence based on consideration of all of the circumstances without such weighing. 2

CONCLUSION 31 CERTIFICATE OF SERVICE 31

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TABLE OF AUTHORITIES

CASES

Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972) .................... 29

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) .. passim

B.F. Goodrich v. Peck, 161 Ohio St. 202, 118 N.E.2d 525 (1954) ................................. 21

Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) ........... 13

Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990) ....... 24

Bravo v. United States, 532 F.3d 1154 (11th Cir. 2008) ................................................. 18

Buchanan v. Angelone, 522 U.S. 269, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998) .......... 27, 28

California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983) .................. 28

Chinn v. Jenkins, S.D.Ohio No. 3:02-CV-512, 2017 WL 1177610 ................................ 26

Eldredge v. State, 37 Ohio St. 191 (1881) ...................................................................... 23

Ellars v. State, 25 Ohio St. 385 (1874) ........................................................................... 23

Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991) .............. 22

Hurst v. Florida, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016) ....................................... passim

Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972) ................. 29

Jones v. United States, 527 U.S. 373, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) ............... 28

Kansas v. Carr, 136 S.Ct. 633 (2016) ............................................................................. 15

Massachusetts v. United States, 333 U.S. 611, 68 S.Ct. 747, 92 L.Ed. 968 (1948) ........ 18

McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990) ...... 24

McQueen v. Scroggy, 99 F.3d 1302 (6th Cir.1996) ........................................................ 23

Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988) .................. 24

Norman v. State, 109 Ohio St. 213, 142 N.E. 234 (1924)............................................... 23

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People v. Rangel, 62 Cal.4th 1192, 367 P.3d 649 (2016) ............................................... 23

Raglin v. Mitchell, S.D.Ohio No. 1:00-CV-767, 2016 WL 4035185 ............................. 26

Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002) ............ passim

Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003) ....... 30

Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991) .................... 23

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) .......................................................................................................................... 18

Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965) .................. 29

Sneed v. Jenkins, 2017 WL 564821 ................................................................................ 14

Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984) ........... 12, 15

State ex rel. Gordon v. Rhodes, 158 Ohio St. 129, 107 N.E.2d 206 (1952) ................... 20

State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319 ........................ 3, 8

State v. Bonnell, Sup.Ct. No. 89-2136 ............................................................................ 25

State v. Coley, Sup.Ct. No. 98-1474 ............................................................................... 25

State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565 ........................... 30

State v. Fears, Sup.Ct. No. 98-19 ................................................................................... 25

State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470 .................... 3, 26, 27

State v. Gapen, Sup.Ct. No. 01-1518 .............................................................................. 25

State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995 ..................... 29

State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48 ........................ 16

State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264 (1984) ............................................ 5

State v. Kirkland, 145 Ohio St.3d 1455, 2016-Ohio-2807, 49 N.E.3d 318 .............. 25, 26

State v. Lott, Sup.Ct. No. 89-845 .................................................................................... 25

State v. Mason, 3rd Dist. No. 9-16-34, 2016-Ohio-8400 ................................................ 17

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State v. Mason, 82 Ohio St.3d 144, 694 N.E.2d 932 (1998) ............................................. 2

State v. Mundt, 7th Dist. No. 17 NO 446, 2017-Ohio-7771 ........................................... 17

State v. Myers, Sup.Ct. No. 99-395 ................................................................................. 25

State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306 ......................... 20

State v. Roberts, 150 Ohio St. 3d 47, 2017-Ohio-2998, 78 N.E.3d 851 ......................... 14

State v. Sheppard, Sup.Ct. No. 97-1474 ......................................................................... 25

State v. Tibbetts, Sup.Ct. No. 98-1970 ............................................................................ 25

State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263 .......................... 15

Tuilaepa v. California, 512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994) .............. 28

United States v. Gabrion, 719 F.3d 511 (6th Cir. 2013) ................................................. 13

United States v. Gaudin, 515 U.S. 506, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995) ...... 23

United States v. Title Ins. & Trust Co., 265 U.S. 472, 44 S.Ct. 621, 68 L.Ed. 1110 (1924) ..................................................................................................................................... 18

Woods v. Interstate Realty Co., 337 U.S. 535, 69 S.Ct. 1235, 93 L.Ed. 1524 (1949) .... 18

Yeager v. United States, 557 U.S. 110, 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009) ............ 30

STATUTES

R.C. 2929.03 ......................................................................................................... 2, 21, 28

R.C. 2929.03(D)(1) ........................................................................................................... 5

R.C. 2929.03(D)(2) ........................................................................................................... 5

R.C. 2929.04(A) ................................................................................................................ 4

R.C. 2929.04(A)(1) to (A)(10) .......................................................................................... 4

R.C. 2929.04(A)(7) ........................................................................................................... 4

R.C. 2929.04(B) ................................................................................................................ 4

R.C. 2941.14(B) ................................................................................................................ 4

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R.C. 2945.05 ..................................................................................................................... 4

R.C. 2945.17 ..................................................................................................................... 4

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STATEMENT OF AMICUS INTEREST

The Ohio Prosecuting Attorneys Association (“OPAA”) is a private non-profit

membership organization that was founded in 1937 for the benefit of the 88 elected

county prosecutors. Its mission is to increase the efficiency of its members in the pursuit

of their profession; to broaden their interest in government; to provide cooperation and

concerted action on policies that affect the office of the Prosecuting Attorney; and to aid

in the furtherance of justice.

OPAA members prosecute capital offenses and therefore have a strong interest in

issues related to such prosecutions, including the constitutionality of Ohio’s capital-

sentencing statutory scheme, which goes above and beyond what is required to protect a

capital defendant’s constitutional right to jury trial. Accordingly, in the interest of aiding

this Court’s review of the constitutional jury-trial issue raised by defendant, the OPAA

offers the following amicus brief in support of the constitutionality of the Ohio statute.

STATEMENT OF FACTS

Amicus OPAA adopts by reference the Statement of Facts from the Brief of

Plaintiff-Appellee.

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ARGUMENT

Response to Defendant’s Proposition of Law: A. R.C. 2929.03 protects the constitutional right to jury trial by providing for a jury determination regarding the offense and regarding the capital specifications. The statute goes above and beyond what is required by the constitutional right to jury trial by also requiring that the trial jury make the sentencing determination of whether the aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt. B. When the statute requires that the trial judge also engage in the same weighing determination following a jury recommendation of the death penalty, it does not violate the constitutional right to jury trial, but rather, provides an additional protection favorable only to the capital defendant by creating a post-jury mechanism by which the judge can override the jury’s recommendation of death. C. Even if the statute were unconstitutional in providing this added layer of protection through post-jury “judicial fact-finding”, the remedy would be to sever the “judicial fact-finding” weighing requirement and allow the trial judge as sentencing judge to impose a death sentence based on consideration of all of the circumstances without such weighing.

A jury found defendant guilty in the 1993 rape and aggravated murder of 19-year-

old Robin Dennis. In victimizing Robin, defendant had repeatedly beaten her with a

board having protruding nails, causing her to die as a result of blunt force trauma from

multiple skull fractures. The facts showing defendant’s guilt are set forth in this Court’s

decision in State v. Mason, 82 Ohio St.3d 144, 694 N.E.2d 932 (1998).

The convictions and death sentence withstood challenge in the state courts, and

the federal Sixth Circuit on habeas review left undisturbed the jury’s guilty verdicts on

the offenses and on the capital specification for committing the aggravated murder during

a rape. But the Sixth Circuit found that trial counsel had been ineffective in the penalty

phase, and so the case has returned to the common pleas court for a new penalty-phase

hearing.

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Defendant now seeks to avoid the death penalty by claiming that Hurst v. Florida,

136 S.Ct. 616, 193 L.Ed.2d 504 (2016), leads to the invalidation of Ohio’s death-penalty-

sentencing scheme. However, defendant’s Hurst claim fails on several levels. His

reliance on Hurst conflicts with this Court’s decision in State v. Belton, 149 Ohio St.3d

165, 2016-Ohio-1581, 74 N.E.3d 319, which held that Hurst did not recognize any right

to jury involvement as to the weighing process in the Ohio penalty phase and is

inapposite to Ohio’s death penalty procedures. Defendant’s argument distorts the holding

of Hurst and mistakenly equates the Ohio procedures with the Florida advisory-jury

procedure addressed in Hurst.

Defendant also fails to recognize that the remedy for the supposed

unconstitutionality of the statute would be to sever the unconstitutional “judicial fact-

finding” as to the weighing process while leaving the maximum sentence of death as an

available sentence. This Court has already applied such a severance remedy in the

context of non-capital maximum sentencing in State v. Foster, 109 Ohio St.3d 1, 2006-

Ohio-856, 845 N.E.2d 470.

As applied here, this remedy would sever the statutory requirement that the trial

judge engage in a weighing of aggravating circumstances against mitigating factors and

would allow the trial judge to impose the maximum sentence of death without engaging

in this supposedly-forbidden “judicial fact-finding” as to weighing. Even if Hurst

supported the defense here, the maximum sentence of death would remain an available

penalty for the aggravated murder of Robin Dennis.

Overall, it would be difficult for this Court to improve on the Third District’s

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well-reasoned and thorough opinion rejecting defendant’s Hurst claim. OPAA

respectfully requests that this Court affirm the Third District in full.

A.

The death penalty is available for aggravated murder and terrorism only if the

indictment includes one or more death-penalty specifications alleging one or more

aggravating circumstances. See R.C. 2929.04(A); R.C. 2941.14(B). The aggravating

circumstances are listed in R.C. 2929.04(A)(1) to (A)(10) and include, inter alia, the

capital specification that was alleged in the present case for committing the aggravated

murder while committing or attempting rape or fleeing thereafter. R.C. 2929.04(A)(7).

The prosecution bore the burden of proving the presence of such aggravating

circumstance beyond a reasonable doubt at trial. R.C. 2929.04(B). Absent a jury waiver,

Ohio law requires that a jury determine the aggravated murder counts and the existence of

the accompanying aggravating circumstance(s) at trial. R.C. 2945.17; R.C. 2945.05.

In the present case, the jury found defendant guilty of the aggravated murder count

and the accompanying rape-murder aggravating circumstance.

When the jury finds the defendant guilty of aggravated murder and one or more

aggravating circumstances, the case then proceeds to the penalty phase, in which the jury

shall weigh against such aggravating circumstance(s) a wide array of “mitigating factors.”

The mitigating factors may include the nature and circumstances of the offense, the

history, character, and background of the defendant, and can include a number of

mitigating factors listed in R.C. 2929.04(B).

At the penalty phase, the defense bears the burden of persuasion as to the

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existence of such mitigating factors, see State v. Jenkins, 15 Ohio St.3d 164, 171-72, 473

N.E.2d 264 (1984), but the prosecution bears the overall burden of proving beyond a

reasonable doubt that the aggravating circumstance(s) the defendant was found guilty of

committing are sufficient to outweigh the factors in mitigation of the imposition of the

sentence of death. R.C. 2929.03(D)(1).

The jury hearing the penalty phase must recommend the death sentence if it

unanimously finds beyond a reasonable doubt that the aggravating circumstance(s)

outweigh the mitigating factors. R.C. 2929.03(D)(2). Absent such a finding, the jury

shall recommend one of the available life sentences, which in this pre-1996 case were life

with parole eligibility after 20 or 30 full years. Id.

The jury’s recommendation of a life sentence is binding on the court, which must

impose the life sentence chosen by the jury. R.C. 2929.03(D)(2).

The jury’s recommendation of a death sentence is not binding, as the judge then

performs the same function in determining whether the aggravating circumstance(s)

proven at trial outweigh the mitigating factors beyond a reasonable doubt. If so, the judge

must impose a death sentence; if not, the judge must impose one of the life sentences.

The present case has now reverted to a procedural posture in which defendant has

been found guilty of the aggravated murder count and accompanying rape-murder

aggravating circumstance. In the new penalty-phase hearing, a newly-impaneled jury

would decide whether the aggravating circumstance outweighs the mitigating factors

beyond a reasonable doubt. If so, the jury will recommend a death sentence; if not, the

jury will recommend a life sentence.

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If the jury recommends death, the trial judge will thereupon engage in the same

weighing process. If the judge reaches the same conclusion as to weighing, then the

judge must follow the jury recommendation and impose the death sentence. If the judge

fails to reach the same conclusion, the judge imposes one of the life sentences.

If the jury recommends a life sentence, the judge is bound to follow the jury’s

recommendation and cannot override that recommendation.

B.

Given these procedures, the defense is raising a bizarre claim in contending that

the Ohio procedures are unconstitutional as violative of the Sixth Amendment right to a

jury trial. The statutory scheme has already ensured that a jury decided at trial that the

State had proven beyond a reasonable doubt the elements of the aggravated murder count

and the elements of the accompanying rape-murder aggravating circumstance. The

statutory scheme further ensures that, in the new penalty-phase hearing, a jury will make

the weighing determination in the penalty phase.

Unless waived, the jury under Ohio law makes every “finding” that is a predicate

for the death penalty, and the trial judge is precluded from imposing a death sentence

unless the jury has unanimously recommended death after concluding that the aggravating

circumstances outweigh the mitigating factors.

Much of the defense argument is based on semantics. Even though defendant has

already received a jury trial as to the elements of the offense and the elements of the

aggravating circumstance and been found guilty by a jury, and even though the death

penalty cannot be imposed without unanimous jury approval at each step, including in the

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“weighing” decision at the penalty phase, defendant still somehow claims that Ohio juries

are merely “advisory” in the process. To be sure, Ohio has built in a second layer of

protection in the scheme, as the death penalty cannot be imposed unless the trial judge

conducts a de novo review and also concurs in the jury’s conclusion that the aggravating

circumstance(s) outweigh the mitigating factors. But this added layer of protection will

not deprive defendant of any jury right since the jury will have still been involved at each

step of the process already.

Providing an added layer of protection builds on what the jury will have already

done, with the judge conducting the same weighing process based on the aggravating

circumstance already found by the jury. The jury’s role is only a “recommendation” at

the penalty phase because Ohio law empowers the judge to veto the jury’s unanimous

death-sentence decision in a way that can only be beneficial to the defendant.

The Florida scheme was fundamentally different in Hurst. The Florida jury did

not need to make a unanimous finding as to the existence of one or more aggravating

circumstances. This point deserves repeated emphasis: Florida juries were not required

to agree on the existence of any aggravating circumstance. And regardless of whether the

Florida jury issued a death verdict, the trial judge could still impose death based on the

judge’s own conclusions. In Ohio, the death penalty cannot be imposed without

unanimous jury agreement at trial and in the penalty phase, which is far different than the

Florida system discussed in Hurst.

C.

This Court has already recognized that Hurst is inapposite in Ohio. In State v.

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Belton, this Court held that Apprendi-Ring-Hurst line of cases has no effect on the

penalty phase under Ohio’s capital-sentencing scheme because the jury in Ohio

determines the existence of aggravating circumstances in the guilt-phase trial.

{¶ 55} Belton argues that the above statutory scheme violates the Sixth Amendment to the United States Constitution. According to Belton, “even if a capital defendant enters a guilty plea to Aggravated Murder and the accompanying death specifications, he has 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.” {¶ 56} In support of his constitutional claim, Belton cites two United States Supreme Court decisions: 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). In Apprendi, the Supreme Court held that “the Sixth Amendment does not permit a defendant to be ‘expose[d] * * * to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.’” (Emphasis and brackets sic.) State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 189, quoting Apprendi at 483, 120 S.Ct. 2348. Thus, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi at 490, 120 S.Ct. 2348. {¶ 57} Two years later, in Ring, the Supreme Court applied the Apprendi rule to invalidate Arizona’s capital-sentencing scheme. Under Arizona’s former scheme, “following a jury adjudication of a defendant’s guilt of first-degree murder, the trial judge, sitting alone, determine[d] the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty.” (Brackets sic.) Ring at 588, 122 S.Ct. 2428. Ring declared this system unconstitutional, because the aggravating factors operated as “‘the functional equivalent of an element of a greater

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offense.’” Id. at 609, 122 S.Ct. 2428, quoting Apprendi at 494, fn. 19, 120 S.Ct. 2348. The Supreme Court explained that because the finding of an aggravating circumstance made a defendant eligible to receive the death penalty, the jury must also determine whether the state met its burden of proof as to that element. Id., overruling Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990). {¶ 58} More recently, the Supreme Court applied Apprendi and Ring to invalidate Florida’s capital-sentencing scheme in Hurst v. Florida, 577 U.S. ––––, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). The Florida law at issue in Hurst limited the jury’s role in capital sentencing to making an advisory recommendation; a trial court was then free to impose a death sentence even if the jury recommended against it. Id. at 620. And even when a jury did recommend a death sentence, a trial court was not permitted to follow that recommendation until the judge found the existence of an aggravating circumstance. Id. at 620, 622. Thus, “Florida [did] not require the jury to make the critical findings necessary to impose the death penalty.” Id. at 622. Instead, the trial judge in Hurst “increased [the defendant’s] authorized punishment based on her own factfinding” when she sentenced him to death. Id. The Supreme Court held that Florida’s capital-sentencing law, like the Arizona law in Ring, violated the Sixth Amendment. Id. {¶ 59} 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, 23 N.E.3d 1096, ¶ 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). {¶ 60} Federal and state courts have upheld laws similar to Ohio’s, explaining that if a defendant has already been

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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). {¶ 61} For these reasons, we hold 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.

This analysis defeats defendant’s effort to invoke Hurst. Ohio’s sentencing

scheme “is unlike the laws at issue in Ring and Hurst.” “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.” The “weighing processes for sentencing purposes do

not implicate Apprendi and Ring. Weighing is not a fact-finding process subject to the

Sixth Amendment * * *.” In sum, the Belton Court held that the Apprendi-Ring-Hurst

line of cases does not create a constitutional right to jury trial applicable to the weighing

determination to be addressed in the penalty phase of an Ohio capital case.

D.

Belton is soundly reasoned. The problem identified in Ring v. Arizona, 536 U.S.

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584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), was the failure of the Arizona scheme to

require a jury to decide the existence of one or more aggravating factors necessary for the

death penalty in that state. “Because Arizona’s enumerated aggravating factors operate as

‘the functional equivalent of an element of a greater offense,’ the Sixth Amendment

requires that they be found by a jury.” Id. at 609.

Hurst does not invalidate jury-based schemes like Ohio. As Hurst held, the

Florida scheme was invalid because it “required the judge alone to find the existence of

an aggravating circumstance * * *.” Hurst, 136 S.Ct. at 624. Hurst thus overruled two

prior decisions “to the extent they allow a sentencing judge to find an aggravating

circumstance, independent of a jury’s factfinding * * *.” Id.

As confirmed in Belton, the Ohio jury alone decides what aggravating

circumstances exist in the case. The judge cannot even consider the death penalty at the

penalty phase unless the jury has unanimously found one or more aggravating

circumstances beyond a reasonable doubt at trial. The Ohio judge’s role is entirely

dependent on jury fact-finding as to the aggravating circumstance(s). Ohio’s jury-based

scheme easily complies with Ring and Hurst.

The defense places great emphasis on the statement in Hurst that “[t]he 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.” Hurst, 136 S.Ct. at 619. But

Ohio law requires far more than a “mere recommendation” from the jury; it requires a

unanimous jury finding of the aggravating circumstance(s) making the defendant eligible

for the death penalty. The Florida jury’s “mere recommendation” in Hurst was not

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backed by any such expressed unanimous jury finding. Indeed, the Florida jury in Hurst

never expressed what aggravating circumstance(s) it may have found, and, under Florida

law, the bare majority of seven jurors voting for death in that case was not even required

to reach any level of agreement on any particular aggravating circumstance.

Defendant also emphasizes the statement in Hurst that the Florida judge played

“the central and singular role” in imposing the death sentence. Hurst, 136 S.Ct. at 622.

But, again, this statement does not translate into a criticism of the Ohio death-penalty

scheme. In Ohio, the unanimous-jury requirement plays the central statutory role in the

life-versus-death decision, as shown by the fact that the United States Supreme Court has

repeatedly characterized Ohio as a jury-sentencing state, including in Ring itself. Ring,

536 U.S. at 608 n. 6 (citing Ohio as one of 29 death-penalty states that “generally commit

sentencing decisions to juries”); Spaziano v. Florida, 468 U.S. 447, 463 & n. 9, 104 S.Ct.

3154, 82 L.Ed.2d 340 (1984) (including Ohio on a list of “[t]wenty-nine jurisdictions

[that] allow a death sentence only if the jury recommends death, unless the defendant has

requested trial or sentencing by the court”).

Likewise, the Ohio judge’s role is hardly “singular” in acting as a de novo 13th

juror in the process. Unlike the Florida judge, the Ohio judge does not act “alone” in the

Ohio death-sentencing process.

Again, the Ohio statute easily satisfies the statement in Hurst that “a jury, not a

judge, find each fact necessary to impose a sentence of death.” The statute provides for

unanimous jury decisionmaking at each step of the process.

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E.

Much of the defense argument assumes that the Sixth Amendment right to jury

trial would extend to the weighing process in the penalty phase. But even if there were a

constitutional right to jury involvement in the penalty-phase weighing decision, Ohio law

complies with such a requirement because the Ohio scheme requires that the jury

unanimously agree that the aggravating circumstance(s) outweigh the mitigating factors

beyond a reasonable doubt.

Moreover, there is no constitutional right to jury involvement at the Ohio penalty

phase. Both Ring and Hurst arise from Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.

2348, 147 L. Ed. 2d 435 (2000), which held that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at

490. Apprendi was reaffirmed in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531,

159 L. Ed. 2d 403 (2004), which held “that the ‘statutory maximum’ for Apprendi

purposes is the maximum sentence a judge may impose solely on the basis of the facts

reflected in the jury verdict or admitted by the defendant.” (Emphasis sic)

Thus, Apprendi only would apply if a “fact” is being determined, and, even then,

only if the “fact” is increasing the maximum penalty. “Apprendi does not apply to every

‘determination’ that increases a defendant’s maximum sentence. Instead it applies only to

findings of ‘fact’ that have that effect.” United States v. Gabrion, 719 F.3d 511, 532 (6th

Cir. 2013) (en banc).

Hurst similarly emphasizes that “[t]he Sixth Amendment requires a jury, not a

14

judge, to find each fact necessary to impose a sentence of death.” Id. at 619 (emphasis

added). This jury right extends only to “facts” because the jury right is the “right to have

a jury find the facts behind his punishment.” Id. at 621.

Hurst did not extend the Apprendi-Ring case law to the weighing process in the

penalty phase. Instead, it applied the principle already recognized in Apprendi and Ring

that the defendant has a right to jury involvement in deciding the elements of the

aggravating circumstance(s) that make the defendant eligible for the death penalty. Hurst

“neither expanded the Apprendi/Ring rule nor announced a new rule.” Sneed v. Jenkins,

2017 WL 564821, *4 (N.D. Ohio – collecting cases). As this Court has noted, Hurst was

a mere application of Apprendi and Ring because, even before Hurst, the defendant

“could have made essentially the same Sixth Amendment argument by relying on”

Apprendi and Ring. State v. Roberts, 150 Ohio St. 3d 47, 2017-Ohio-2998, 78 N.E.3d

851, ¶ 84.

As determined in Belton, the right to a jury does not extend to the penalty phase in

Ohio for two reasons. By the time of that phase, the jury has already found the existence

of the aggravating circumstance(s) that make the defendant eligible for the death penalty

and therefore any further “fact”-finding would not increase the maximum available

sentence.

Second, the determination being made in the penalty phase, i.e., whether the

already-proven aggravating circumstances outweigh the mitigating factors, is not a “fact”-

finding process but rather “amounts to ‘a complex moral judgment’ about what penalty to

impose upon a defendant who is already death-penalty eligible.” Belton, ¶ 60. The

15

penalty-phase assessment of mitigation is largely a question of whether mercy will be

extended, which is not a “factual” matter. Kansas v. Carr, 136 S.Ct. 633, 642 (2016),

Although there may be underlying “facts” to be determined in assessing the existence of

mitigating factors at the penalty phase, see id. at 642, Apprendi itself recognizes the

difference “between facts in aggravation of punishment and facts in mitigation”.

Apprendi, 530 U.S. at 490 n. 16. A mitigating fact “is not an aggravating circumstance

that increases a defendant’s punishment.” State v. Were, 118 Ohio St.3d 448, 2008-Ohio-

2762, 890 N.E.2d 263, ¶ 186.

In addition, the Apprendi-Ring-Hurst line of cases has not overturned the basic

point that a defendant has no constitutional right to jury sentencing. “The Sixth

Amendment never has been thought to guarantee a right to a jury determination” of “the

appropriate punishment to be imposed on an individual.” Spaziano, 468 U.S. at 459. “In

light of the facts that the Sixth Amendment does not require jury sentencing, that the

demands of fairness and reliability in capital cases do not require it, and that neither the

nature of, nor the purpose behind, the death penalty requires jury sentencing, we cannot

conclude that placing responsibility on the trial judge to impose the sentence in a capital

case is unconstitutional.” Id. at 464. “What we do not accept is that, because juries may

sentence, they constitutionally must do so.” Id. at 463. States are not required to “give

final authority to the jury to make the life-or-death decision.” Id. at 465.

While Hurst overruled Spaziano’s approval of the Florida sentencing scheme, it

was careful to say it was overruling Spaziano only “in relevant part” and only “to the

extent” the Florida scheme did not require that the aggravating circumstance be found by

16

the jury. Hurst, 136 S.Ct. at 623, 624. This partial overruling does not disturb the central

point of Spaziano that there is no constitutional right to jury sentencing, even in a capital

case.

In the end, defendant’s constitutional jury right only extended to the guilt-or-

innocence determinations on the underlying offenses and on the aggravating circumstance

that made him eligible for the death penalty. Defendant has already received such jury

consideration. As a constitutional matter, Ohio could dispense with jury consideration in

the penalty phase altogether and could require judge-only weighing. Even so, the Ohio

statute provides for the jury to make the weighing determination in the penalty phase as

well. By providing for jury involvement, Ohio exceeds what is constitutionally required

and complies with the Apprendi-Ring-Hurst line of cases. State v. Hoffner, 102 Ohio

St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, ¶¶ 69-70 (“Ring has no possible relevance to

Hoffner’s case, or to Ohio’s death penalty statute”).

Even if defendant did have a constitutional right to jury involvement as to the

weighing process in the penalty phase, that right is protected under the statute by

requiring such jury involvement. Absent a jury waiver, the death penalty cannot be

imposed in Ohio without unanimous jury agreement that the aggravating circumstances

outweigh the mitigating factors beyond a reasonable doubt. The judge’s role in acting as

a de novo 13th juror after the jury’s death recommendation does not violate any such

right.

F.

Like the common pleas judge in the present case, the defense and his amicus

17

contend that Belton’s discussion of Hurst was only non-binding “dicta”. The Third

District unanimously reversed that flawed logic, see State v. Mason, 3rd Dist. No. 9-16-

34, 2016-Ohio-8400, concluding that Belton was controlling because it had clearly

spoken on the issue.

The claim of “dicta” is specious. The Belton Court directly addressed Hurst and

held that Hurst was inapplicable to the Ohio scheme because the Ohio scheme is “unlike”

the Florida scheme. It specifically held that the Apprendi-Ring-Hurst jury right did not

apply to the Ohio penalty phase at all. To be sure, the defendant in Belton was raising a

slightly-different claim of error regarding waiver of jury in the trial phase and whether he

should have the option of having a jury in the penalty phase after such a waiver. But the

Belton Court rejected that claim by reaching conclusions that directly defeat any reliance

on Hurst in the present non-waived jury context as well. As the Third District stated,

“[n]otwithstanding 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.” Mason, ¶ 34. Regardless of whether jury was waived in

Belton and not waived here, this Court concluded in Belton that there is simply no

constitutional right to a jury in the Ohio penalty-phase proceeding at all. The Belton

Court’s ratio decidendi necessarily leads to the rejection of defendant’s claim in that same

regard. State v. Mundt, 7th Dist. No. 17 NO 446, 2017-Ohio-7771, ¶ 10 (citing Belton as

recognizing that “Ohio’s death penalty statute is fundamentally different from that in Ring

and Hurst, undermining Mundt’s reliance on Hurst”).

Belton’s discussion of Hurst was a holding, not “dicta”. It was not some

18

tangential, unnecessary statement that could be considered “dicta.” It was the central

premise of Belton that there is no constitutional right to jury trial at all in the Ohio

penalty phase. This exclusive basis for the Belton ruling cannot be considered “dicta.”

Seminole Tribe of Florida v. Florida, 517 U.S. 44, 67, 116 S.Ct. 1114, 134 L.Ed.2d 252

(1996) (“exclusive basis of a judgment is not dicta”).

Defendant and his amicus plainly wish that this Court had reached a narrower

holding by focusing on the defendant’s waiver of jury as a basis to reject his Apprendi-

Ring-Hurst claim. But the Belton Court did not use that approach. It instead chose to

focus on the total absence of any constitutional jury right at the penalty phase. This line

of reasoning does not become “dicta” merely because defendant wishes the Belton Court

had chosen a different course of reasoning.

Even when a court expressly relies on two or more grounds for its decision, each

ground constitutes a “holding”, and neither is dicta. Woods v. Interstate Realty Co., 337

U.S. 535, 537, 69 S.Ct. 1235, 93 L.Ed. 1524 (1949); Massachusetts v. United States, 333

U.S. 611, 622-23, 68 S.Ct. 747, 92 L.Ed. 968 (1948); United States v. Title Ins. & Trust

Co., 265 U.S. 472, 486, 44 S.Ct. 621, 68 L.Ed. 1110 (1924). “[A]dditional or alternative

holdings are not dicta, but instead are as binding as solitary holdings.” Bravo v. United

States, 532 F.3d 1154, 1162 (11th Cir. 2008). Moreover, “[w]hen an opinion issues for

the Court, it is not only the result but also those portions of the opinion necessary to that

result by which we are bound”, including the “rationale” used by the Court and “their

explications of the governing rules of law.” Seminole Tribe, 517 U.S. at 66-67.

In light of these principles, it makes no difference that defendant wishes the

19

Belton Court had adopted a “waiver” analysis. Even if the Belton Court had mentioned

the “waiver” approach, that alternative holding would not have detracted from the Belton

Court’s express holding that there is no constitutional right to a jury at the Ohio penalty

phase.

There is no denying that the express rationale in Belton rejected Apprendi and

Hurst as a basis for challenging Ohio’s death-penalty scheme. When the Belton Court

rejected the claim of error in that waived-jury case based on the premise that there is no

constitutional right to jury in the penalty phase at all, that guiding premise was a

“holding” that directly controls the question of whether there is a constitutional right to

jury in the new penalty phase in the present case.

Defendant and his amicus claim that the Belton reasoning should be found to be

“dicta” because there was no written briefing on Hurst by the parties in Belton

beforehand. But briefs do not make precedent. The Court’s decisions make precedent,

and the Belton Court expressly rejected Apprendi and Hurst as a basis for finding a jury

right in the Ohio penalty phase. Even if it was improvident for the Belton Court to

discuss Hurst without prior written briefing, that kind of criticism of Belton at most might

have been a basis for seeking reconsideration in that case. It would not provide a basis

for ignoring Belton now. Indeed, the defense in Belton did seek reconsideration based on

the Apprendi-Ring-Hurst issue, see State v. Belton, Sup.Ct. No. 12-902, 5-2-16 Motion

for Reconsideration, and the Belton Court denied that motion. As the prosecution had

noted in opposing reconsideration, there were no legal issues that needed clarification in

Belton, and “[t]his Court’s decision relied – properly – on the exact same prior precedents

20

cited in Hurst.” See 5-12-16 Prosecution Memorandum Opposing Reconsideration, p. 3.

In any event, it was not improvident for the Belton Court to address Hurst. The

defense had briefed the Apprendi and Ring cases. See 2-14-13 Defense Brief, pp. 28-32.

So did the prosecution. See 7-3-13 Prosecution Brief, pp. 31-38. The defense had also

cited Hurst as supplemental authority. See 1-21-16 Defense Supplemental Authorities.

Both sides discussed the jury issue at the oral argument, and the discussion from both

sides mentioned Hurst. Oral Argument Archive, counter 12:50 to 13:40, 21:45 to 23:23,

24:20 to 35:40. While the Court could have ordered supplemental briefing, neither side

requested the opportunity to engage in such briefing, and the Court was not required to

order such briefing sua sponte. This Court could assess Hurst and where it fell on the

Apprendi line of authority, and this Court could conclude that Hurst did not expand on

Ring or otherwise create a jury right as to the Ohio penalty phase. In short, the Apprendi-

Ring- Hurst jury issue was fully before this Court, and it was entirely proper for the

Belton Court to address the issue in full and to reject Hurst as a basis for overturning

Ohio’s capital sentencing scheme.

Had the Belton Court remained silent on Hurst, this might have left the defense

with some room to argue that the issue is still open. An appellate court’s silence is not

precedential. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d 306, ¶

11. “A reported decision, although in a case where the question might have been raised,

is entitled to no consideration whatever as settling, by judicial determination, a question

not passed upon or raised at the time of the adjudication.” State ex rel. Gordon v.

Rhodes, 158 Ohio St. 129, 107 N.E.2d 206 (1952), paragraph one of the syllabus; B.F.

21

Goodrich v. Peck, 161 Ohio St. 202, 118 N.E.2d 525 (1954), paragraph four of the

syllabus.

In Belton, however, this Court was not silent. The Apprendi-Ring-Hurst issue was

fully raised by the defense and was addressed by this Court. This Court’s express holding

in Belton is precedential, and there is no basis to overrule it or ignore it.

G.

Beyond disagreeing with this Court’s decision in Belton, the common pleas court

in the present case also sought to disagree with the United States Supreme Court,

contending that “Ring incorrectly lists Ohio as a state where the imposition of the death

penalty is decided by a jury.” But Ring is correct: the jury must unanimously agree in

order for the death penalty to be imposed in this state. When the trial judge subsequently

agrees with the jury’s death recommendation, the judge is duplicating the jury’s

conclusion that the aggravating circumstances outweigh the mitigating factors.

The Marion County court also seemed to unduly focus on the fact that the

defendant’s case is governed by the “1993” version of R.C. 2929.03. It does not matter

that the “1993” version of R.C. 2929.03 is the version applicable to the present case. The

jury-based nature of Ohio’s death-penalty scheme has not changed since the 1981 death-

penalty statutes took effect. The jury has the same role now that it had under the original

statutes effective in 1981. The trial-judge’s role of acting as a de novo 13th juror on the

issue of weighing has not changed either. Amendments to R.C. 2929.03 occurring in

1995, 1996, 1997, 2005, 2008, and 2017 have changed the statute in some other respects,

most notably by providing for a life-without-parole option in the penalty phase beginning

22

in 1996. But the involvement of the jury and the judge’s protective de novo review of the

weighing issue has not changed since 1981. And the Marion County court did not

indicate what statutory amendment since 1993 might have some material effect on this

Court’s conclusion in Belton that the Ohio scheme passes muster under the Apprendi-

Ring-Hurst line of cases. A “1993” distinction would be meaningless, and Belton cannot

be distinguished on that basis.

On the merits, too, the common pleas court’s decision was erroneous. Even if the

Belton discussion of Hurst had been just “persuasive,” it was still correct legally. The

Florida scheme is unlike the Ohio scheme. The Ohio scheme does guarantee a jury on

each step. The Ohio scheme does ensure that only the jury will determine the existence

of the aggravating circumstance(s) and that the death penalty cannot be imposed without

unanimous jury agreement that the aggravating circumstance(s) outweigh the mitigating

factors. These are significant differences between the Ohio scheme found valid in Belton

and the Florida scheme found invalid in Hurst.

H.

Like the flawed common pleas decision, defendant and his amicus also rely on a

mistaken notion of what is required of juries when they render their decisions. There is

no constitutional right to a special jury verdict reciting the elements of the offense or the

elements of an aggravating circumstance. General jury verdicts are the norm, and they

have been accepted since the time of English common law. Griffin v. United States, 502

U.S. 46, 49-51, 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991) (discussing long history of

upholding general verdicts); see, also, Schad v. Arizona, 501 U.S. 624, 645, 111 S. Ct.

23

2491, 115 L. Ed. 2d 555 (1991) (plurality – Constitution does not command greater

verdict specificity). General verdicts have long been accepted in Ohio law as well.

Ellars v. State, 25 Ohio St. 385, 389 (1874); Eldredge v. State, 37 Ohio St. 191 (1881),

syllabus; Norman v. State, 109 Ohio St. 213, 237 & paragraph one of the syllabus, 142

N.E. 234 (1924).

The Apprendi line of cases is satisfied by a general verdict so long as the elements

of the crime and aggravating circumstance(s) were submitted to the jury and the jury was

instructed that it could only find defendant guilty if every element was proven beyond a

reasonable doubt. A general verdict of guilty demonstrates that the jury has found every

essential element beyond a reasonable doubt. United States v. Gaudin, 515 U.S. 506,

513, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995) (juries “were entitled to deliver a general

verdict pronouncing the defendant’s guilt or innocence”). A special verdict form or

interrogatories are not required.

Moreover, written findings by the jury during the penalty phase are not

constitutionally required. People v. Rangel, 62 Cal.4th 1192, 1235, 367 P.3d 649 (2016);

McQueen v. Scroggy, 99 F.3d 1302, 1332 (6th Cir.1996) (quoting another case: “failure

of the trial court to require the jury to list mitigating circumstances does not rise to the

level of a constitutional violation.”).

Nor would the jury be required to issue findings as to the weight it assigned to

particular aggravating circumstances. “The presence of aggravating circumstances serves

the purpose of limiting the class of death-eligible defendants, and the Eighth Amendment

does not require that these aggravating circumstances be further refined or weighed by a

24

jury.” Blystone v. Pennsylvania, 494 U.S. 299, 306-307, 110 S.Ct. 1078, 108 L.Ed.2d

255 (1990).

Simply put, a jury is not constitutionally required to issue a sentencing opinion.

Judges issue opinions, not juries.

In any event, it is customary in Ohio for the jury to be given verdict forms that do

result in a special verdict being returned. The verdict form will often state that the jury

finds that the aggravating circumstances outweigh the mitigating factors beyond a

reasonable doubt. This would satisfy any “special finding” requirement.

While defendant complains that the jury in the Ohio penalty phase is not required

to list its findings as to what mitigating factors it found, that complaint is untethered to

any requirement of the Apprendi-Ring-Hurst line of cases, which only pertains to the right

to jury trial on “facts’ that increase the punishment. Mitigating facts do not increase

punishment.

In addition, there would be no real “jury” requirement as to mitigating factors

anyway. Even in jury-based weighing states, there is no requirement of jury unanimity as

to the mitigating factors that each juror would consider. Mills v. Maryland, 486 U.S. 367,

108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). Regardless of agreement with any other juror,

“Mills requires that each juror be permitted to consider and give effect to mitigating

evidence when deciding the ultimate question whether to vote for a sentence of death.”

McKoy v. North Carolina, 494 U.S. 433, 442-43, 110 S.Ct. 1227, 108 L.Ed.2d 369

(1990). As a result, the “jury” does not make findings as to particular mitigating factors,

as each juror arrives at his or her own conclusions about the existence of any particular

25

mitigator, regardless of agreement with other jurors in that regard.

The Ohio statute requires that the jurors be unanimous in reaching the overall

conclusion that the aggravating circumstance(s) outweigh the mitigating factors. Nothing

more would be required by any constitutional right to jury that would be applicable in the

penalty phase.

I.

Some have argued that this Court’s 4-3 summary order in State v. Kirkland, 145

Ohio St.3d 1455, 2016-Ohio-2807, 49 N.E.3d 318, conflicts with the discussion of Hurst

in Belton. But the basis for that summary order is far from clear at this point. Although

the “motion for order or relief” in that case had been premised on the claim that Hurst

leads to the invalidation of independent reweighing as a basis to cure penalty-phase error,

that logic cannot be squared with the express holding in Belton that Hurst does not

require jury involvement at all at the penalty phase, and, further, cannot be squared with

this Court’s rulings on November 9, 2016, which denied reconsideration in Belton and

denied three Hurst-based “motions for order or relief” and denied a Hurst-based motion

for stay. See 11/09/2016 Case Announcements # 2, 2016-Ohio-7681, announcing denials

in State v. Sheppard, Sup.Ct. No. 97-1474; State v. Fears, Sup.Ct. No. 98-19; State v.

Myers, Sup.Ct. No. 99-395; State v. Gapen, Sup.Ct. No. 01-1518.

This Court has continued to deny multiple Hurst-based motions. State v. Coley,

98-1474, 2017-Ohio-6964; State v. Lott, Sup.Ct. No. 89-845, 2017-Ohio-906; State v.

Bonnell, Sup.Ct. No. 89-2136, 2016-Ohio-8438; State v. Tibbetts, Sup.Ct. No. 98-1970,

2016-Ohio-8438.

26

Given all of these actions, the Court’s unexplained decision on November 9th to

deny reconsideration in Kirkland is enigmatic and cannot be explained by any supposed

reliance on Hurst. The only sensible explanation is that the Court chose to apply a high

standard for reconsideration in choosing to leave in place the May 4th summary order in

Kirkland. The denial of reconsideration in Kirkland does not mean that Hurst actually

provides any basis to grant relief in any other case moving forward, and the denial of such

motions on 11-9-16 and on other dates shows that such motions will be denied moving

forward and are being denied accordingly. Given the uncertainties surrounding Kirkland,

that unexplained summary order is not even considered persuasive authority. Chinn v.

Jenkins, S.D.Ohio No. 3:02-CV-512, 2017 WL 1177610, *3; Raglin v. Mitchell,

S.D.Ohio No. 1:00-CV-767, 2016 WL 4035185, *3.

J.

Defendant is also incorrectly asking for the death penalty to be removed as a

potential penalty. The only possible “violation” of the right to jury trial would be the

involvement of the trial judge at the very end in determining that the aggravating

circumstance outweighs the mitigating factors. Even if the trial judge would be violating

Hurst by engaging in such post-jury “judicial fact-finding”, this Court has already

determined that the proper remedy for unconstitutional judicial fact-finding in maximum

sentencing is to sever the “judicial fact-finding” requirement while leaving the maximum

sentence as an available sentence. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470, paragraph two of the syllabus. While the General Assembly sought to

provide an additional layer of protection in this regard, it strains credulity to think that the

27

General Assembly would have viewed this additional protection as an essential aspect of

the death-penalty framework or would have deleted the death penalty as an option if the

additional protection were removed. Since the defense itself does not wish to have this

additional layer of protection, there is little reason to view it as essential or critical, and

the General Assembly would not have forced it on defendants who do not wish to have

that protection. The “judicial fact-finding” should be severed here.

Defendant’s desire for juries to act completely alone in the weighing process

would be fully satisfied by having the jury issue its death-penalty recommendation based

on such weighing and by then having the trial judge proceed without “judicial fact-

finding” as to weighing. With the judge’s weighing requirement severed, the judge

would be left with wide discretion in deciding whether to impose the death sentence. It is

constitutionally permissible to give the capital sentencer unbridled discretion. Buchanan

v. Angelone, 522 U.S. 269, 276-77, 118 S. Ct. 757, 139 L. Ed. 2d 702 (1998). “Where

sentencing is left to the unguided discretion of the judge, there is no judicial impingement

upon the traditional role of the jury.” Foster, ¶¶ 90, 91.

Defendant’s Hurst argument should not remove the death penalty as an option for

the jury or for the judge. If anything, after the Foster severance remedy, it should open

up greater possibilities for the judge to impose death by removing the mandatory

weighing requirement and by allowing the judge to exercise full discretion to choose

death as the appropriate penalty.

K.

There is much irony in defendant’s claim that the Ohio death-penalty statute

28

violates his right to jury trial. The statute actually goes above and beyond the

constitutional right to jury trial in various ways that favor of capital defendants.

As stated earlier, there is no constitutional right to jury involvement at the

sentencing stage, even in a capital case. Yet R.C. 2929.03 provides for jury involvement

at the penalty-phase sentencing stage.

In addition, the Ohio statute constrains the jury by shoe-horning the jury’s

deliberations into a statutory weighing process that is not required constitutionally. A

sentencing jury could be given full discretion to consider “all the evidence” or the

“circumstances of the crime” in choosing between death and life as an appropriate sentence.

Tuilaepa v. California, 512 U.S. 967, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994). Buchanan,

522 U.S. at 276. “Once the jury finds that the defendant falls within the legislatively

defined category of persons eligible for the death penalty, * * * the jury then is free to

consider a myriad of factors to determine whether death is the appropriate punishment.”

California v. Ramos, 463 U.S. 992, 1008, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983). There

is no constitutional requirement that the sentencer consider only specified statutory

aggravating circumstances; the sentencer as a constitutional matter can consider other

possible factors. Id. at 1008. Indeed, “the sentencer should consider all of the

circumstances of the crime in deciding whether to impose the death penalty.” Jones v.

United States, 527 U.S. 373, 401-402, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999), citing

Tuilaepa, 512 U.S. at 976 (“our capital jurisprudence has established” that “the law

requires” such consideration; “[t]he circumstances of the crime are a traditional subject for

consideration by the sentencer”).

29

The statute also prevents the jury from hearing evidence of any number of

sentencing factors that are highly relevant in all other sentencing contexts. Sentencers

usually can hear about and weigh a defendant’s violent criminal record, the defendant’s

violent other acts, and the impact of the crime on the victim and the victim’s family. But

an Ohio jury is often prevented from hearing this information and is legally deprived of

the ability to weigh it in deciding what sentence is appropriate for the capital defendant.

The statutory provision allowing for a jury trial in the penalty phase is also merely

a one-way street under the Ohio statute. The prosecution is not given the opportunity to

demand a jury trial if the defendant chooses to waive it. Only the defense has the

statutory right to insist on jury involvement in the case, even though it would be

constitutional to allow the prosecution to exercise the right to a jury as well. Singer v.

United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965).

The statute also requires unanimity by the jury as to the weighing process, even

though the constitutional right to a jury trial does not require unanimity and allows even

guilt-innocence determinations based on 11-1 or 10-2 verdicts. Apodaca v. Oregon, 406

U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972). “The Sixth Amendment guarantee of a

jury trial requires unanimity in a federal criminal trial, but the high court has never held

that this requirement applies to the states through the Fourteenth Amendment.” State v.

Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 35, citing Apodaca,

supra, and Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972).

The Ohio statute goes even further by giving effect to the jury’s inability to

decide. A hung criminal jury usually results in a mistrial and the impaneling of another

30

jury, and the jury’s inability to reach a verdict is considered in law to be a “nonevent”.

Yeager v. United States, 557 U.S. 110, 120-21, 129 S.Ct. 2360, 174 L.Ed.2d 78 (2009).

“[H]ung counts have never been accorded respect as a matter of law or history, and are

not similar to jury verdicts in any relevant sense.” Id. at 124. “[T]he fact that a jury

hangs is evidence of nothing – other than, of course, that it has failed to decide anything.”

Id. at 125. But under the Ohio statute, the vote can be 11 to 1 in favor of death, and the

hung jury is required by law to return a recommendation less than death at that point.

State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 244. This one-

juror veto of the death penalty is not required constitutionally, since double jeopardy

would allow a second penalty-phase hearing when the jury is hung. Sattazahn v.

Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003). Even so, the Ohio

statute creates a one-juror-veto mechanism.

Given these various ways in which the Ohio statute favors the capital defendant

and goes above and beyond what is constitutionally required, defendant’s Hurst claim

rings hollow. The defense is not truly interested in enforcing his constitutional right to a

jury trial. Instead, the defense seeks to create a new constitutional jury-trial right out of

whole cloth, applying it to a sentencing proceeding in which there is no constitutional

right to jury involvement, and seeking to impose unanimous-jury and one-juror-veto

requirements as a constitutional matter that would not apply even in the guilt phase of any

other kind of case. All of this would serve to work as a one-way ratchet toward a life

sentence for the convicted aggravated murderer, and none of it would be constitutionally

required.

31

The Ohio statute goes well beyond what is constitutionally required for the

defendant in the penalty phase. There will be no constitutional violation in following that

statute in the new penalty-phase hearing to be held in the present case.

Defendant’s proposition of law should be overruled.

CONCLUSION

Amicus OPAA respectfully requests that this Court affirm the judgment of the

Third District and remand the case to the common pleas court for further proceedings

consistent with this Court’s decision and consistent with law.

Respectfully submitted, /s/ Steven L. Taylor STEVEN L. TAYLOR 0043876 (Counsel of Record) Chief Counsel, Appellate Division Counsel for Amicus Curiae OPAA

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing was sent by electronic mail on

November 17, 2017, to the following counsel of record:

Kevin P. Collins Assistant Prosecuting Attorney 134 East Center Street Marion, Ohio 43302 kcollins@co.marion.oh.us Kort Gatterdam Carpenter Lipps & Leland LLP 280 Plaza, Suite 1300 280 North High Street Columbus, Ohio 43215 gatterdam@carpenterlipps.com

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Jeffrey M. Gamso Assistant Public Defender 310 Lakeside Avenue, Suite 200 Cleveland, Ohio 44113 jgamso@cuyahogacounty.us /s/ Steven L. Taylor STEVEN L. TAYLOR 0043876