On April 18, 2018, the Supreme Court of Ohio handed down a merit decision in State v. Mason, Slip Opinion No. 2018-Ohio-1462. In a unanimous opinion written by Justice Fischer, with two appellate judges subbing for Justices O’Donnell and O’Neill, the Court upheld the constitutionality of Ohio’s death penalty sentencing scheme. Justice Kennedy wrote a solo separate concurrence. The case was argued January 23, 2018.

Case Background

In 1993, Maurice Mason was indicted for the aggravated murder of Robin Davis, with a death penalty specification alleging the murder occurred during the commission of a rape. On June 18, 1994, a jury found Mason guilty, and, in the penalty phase, recommended that Mason be sentenced to death. The trial court accepted the jury’s recommendation and sentenced Mason to death.

In 2008 Mason was granted federal habeas corpus relief for ineffective assistance of counsel during the penalty phase of his trial. While Mason’s resentencing was pending, the United States Supreme Court decided Hurst v. Florida, which invalidated, on Sixth Amendment grounds, Florida’s death penalty sentencing scheme because it “required the judge alone to find the existence of an aggravating circumstance.” Mason subsequently filed a motion to dismiss his death penalty specification, arguing that Ohio’s 1993 death penalty statute[1] was unconstitutional in light of the Hurst decision. The trial court agreed, and granted Mason’s motion.

On appeal, the Third District, in a unanimous opinion, reversed the trial court’s ruling which found Ohio’s 1993 death penalty statute unconstitutional under the Sixth Amendment. The Third District found that the trial court erred in failing to follow and apply State v. Belton, and in finding that the Sixth Amendment requires jury fact-finding in capital sentencing. The court found that Ohio’s death penalty statute differs from Florida’s, because in Ohio a jury death penalty recommendation must be unanimous, whereas Florida’s statute imposes a hybrid proceeding where the jury gives only an advisory verdict where unanimity is not required, and the judge makes the ultimate sentencing determination.

Read the oral argument preview of the case here and an analysis of the argument here.

Key Statutes and Precedent

U.S. Const. Amend VI (In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed . . .)

R.C. 2903.01(B) (No person shall purposely cause the death of another . . . after committing or attempting to commit… rape…)

R.C. 2929.03(D)(3) (If, after receiving the trial jury’s recommendation that the sentence of death be imposed, the court finds, by proof beyond a reasonable doubt…that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, it shall impose the sentence of death on the offender. Absent such a finding by the court…the court…shall impose a sentence of life imprisonment either with parole after a period of twenty or thirty years, or without parole eligibility.)

R.C. 2929.04(A)(7) (Ohio’s death penalty statutes states as follows:

(A) Imposition of the death penalty for aggravated murder is precluded unless one or more of the following is specified in the indictment . . .

(7) The offense was committed while the offender was committing or attempting to commit… rape…)

Furman v. Georgia, 408 U.S. 238 (1972) (The Court invalidated Georgia’s death penalty statute but did not hold the death penalty itself to be per se unconstitutional. Instead, the Court mandated a bifurcated process in capital cases. The first phase establishes a defendant’s guilt or innocence; the second phase determines the punishment a guilty defendant receives.)

Hildwin v. Florida, 490 U.S. 638 (1989) (The Sixth Amendment does not require that the specific findings authorizing the imposition of the death penalty be made by a jury, but can be made by judicial factfinding.) (subsequently overruled in pertinent part by Hurst.)

Spaziano v. Florida, 468 U.S. 447 (1984) (Finding constitutional under the Eighth and Sixth Amendments placing the responsibility of imposing a capital sentence on the trial judge as opposed to the jury.)(subsequently overruled in pertinent part by Hurst.)

Tuilaepa v. California, 512 U.S. 967 (1994) (The selection phase of a trial does not involve factual determinations and may be done by the court.)

Apprendi v. New Jersey, 530 U.S. 466 (2000) (Any fact exposing a defendant to a greater punishment than the statutory maximum must be considered by the jury and proved beyond a reasonable doubt.)

Ring v. Arizona, 536 U.S. 584 (2002) (A statutory scheme is unconstitutional when judges must determine whether any aggravating factors are present which expose the defendant to greater punishment than otherwise permitted by a jury’s verdict.)

Blakely v. Washington, 542 U.S.296 (2004) (Striking down Washington’s criminal sentencing procedures that allowed a judge rather than a jury to make findings that increased the penalty beyond the statutory maximum.)

State v. Hoffner, 2004-Ohio-3430 (Under Ohio’s capital sentencing scheme, the responsibility for making all factual determinations about whether a defendant should be sentenced to death rests with the jury by the ‘beyond a reasonable doubt’ standard. )

United States v. Gabrion, 719 F.3d 511, 532-533 (6th Cir. 2013) (The weighing process does not require a finding of fact in support of a given sentence. Because a given defendant is already eligible for the complete statutory range of punishments, the selection of a particular sentence is a determination the judge may properly make.)

Hurst v. Florida, 136 S.Ct. 616 (2016) (“The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” Therefore, a court must base its sentence on the verdict of an impartial jury and not a judge’s fact-finding. Any statutory scheme requiring a judge alone to find the existence of aggravating circumstances is unconstitutional. The prior decisions in Hildwin and Spaziano are expressly overruled in relevant part.)

State v. Belton, 2016-Ohio-1581 (In relevant part, a defendant is not deprived of his Sixth Amendment right to a jury when, upon waiving his right to trial by jury, he is not permitted to present evidence to a jury during sentencing proceedings. Weighing of aggravating circumstances and mitigating factors is not a fact-finding process subject to the Sixth Amendment.)

Merit Decision

Executive Summary

Ohio’s death penalty sentencing scheme does not violate the Sixth Amendment.

Analysis

The opinion begins with the reminder that statutes are presumed to be constitutional.

Steps in Ohio’s Death Penalty Scheme

The defendant must be indicted for aggravated murder and at least one specification of an aggravating circumstance.
The jury verdict must state that the defendant is found guilty of aggravated murder and at least one specification.
A defendant who is found guilty of aggravated murder and at least one specification will be sentenced either to death or life imprisonment. In a jury trial the penalty will be determined by the jury and the trial judge.
In the sentencing phase, the state must prove beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors.
The jury recommends the sentence, which will be death only if the jury unanimously finds beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors. Otherwise, the jury recommends one of the available life sentences and the judge must impose the one recommended. Also, if the jury cannot reach a unanimous verdict on the sentence, the trial court must impose a life sentence.
If the jury recommends a death sentence, and if the court finds beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating factors, the court shall impose a death sentence and explain this weighing and the result in a separate opinion.

Sixth Amendment Jurisprudence

The key cases here from the U.S. Supreme Court are Apprendi and Ring. Apprendi held that any fact exposing a defendant to a greater punishment than the statutory maximum must be considered by the jury and proved beyond a reasonable doubt. Ring found that an aggravating circumstance in a capital case was “the functional equivalent of an element of a greater offense,” and thus had to be submitted to a jury. Ring invalidated Arizona’s death penalty statute because it was based solely on judicial fact-finding of the aggravating facts.

What Happened in the Hurst Case

Timothy Hurst was found guilty by a Florida jury of first-degree murder. Even though that was a capital offense under Florida law, the jury verdict alone did not make Hurst death-eligible (this death-penalty language always makes me shudder). Under Florida law, the death penalty could only be imposed on such a person if an additional sentencing proceeding resulted in findings by the court “that such a person shall be punished by death.” So, the jury in Hurst’s situation rendered only an advisory sentence recommending death, but Florida law did not require the jury to specify the aggravating circumstance underpinning its recommendation. The sentencing judge then independently weighs aggravating circumstances and mitigating factors. The judge in Hurst’s case did so, finding two aggravating circumstances. So, the Florida sentencing scheme suffered from the same infirmities as Arizona’s, because the judge alone found the existence of an aggravating circumstance. Essentially, Mason argues that Ohio’s does as well.

Relevant Past Ohio Precedent

Pre-Hurst

In 2004, in State v. Hoffner, the Supreme Court of Ohio found that Ohio’s scheme did not suffer the same infirmities as Arizona’s because in Ohio, the jury retains the ultimate responsibility for making all factual determinations about whether a death sentence should be imposed.

Post-Hurst

In 2016, in State v. Belton, the Court held that Ohio’s sentencing scheme differs from those invalidated in Ring and Hurst because Ohio law requires a jury in a capital case to make the findings required by the Sixth Amendment, and because the weighing of aggravating circumstances against mitigating factors is not a Sixth Amendment fact-finding process.

Bottom Line on Ohio’s Death Penalty Scheme and the Sixth Amendment

Crucial here is that in Ohio, in a jury trial for a capital offense, the jury decides whether the offender is guilty of aggravated murder and whether the offender is guilty of the specific aggravating-circumstance specification in the case. Then, the jury must unanimously find that the aggravating circumstances of which the offender is found guilty outweigh the mitigating factors, and only then can the jury recommend a death sentence. Without that recommendation, the trial judge cannot impose a death sentence. This is unlike Ring and Hurst.

Drilling Down on Mason’s Arguments

Does Weighing in the Sentencing Phase Constitute Fact-Finding?

Short answer: No

Mason argued that during the sentencing phase, the jury merely recommends a death sentence while the trial judge decides whether to impose it based on the judge’s own specific written findings. But Hurst does not address the issue of whether sentencing-phase weighing constitutes judicial fact-finding under the Sixth Amendment. The Ohio high court tackles this issue and finds that it does not.

There are two aspects of the capital decision-making process. In the eligibility phase, the question is whether the trier of fact finds the defendant guilty of murder and at least one aggravating circumstance. If yes, the defendant is eligible for a death sentence. That is purely a factual determination. But the second part, the “selection decision” requires an individualized sentencing determination, and involves the exercise of judgment. The knotty issue that has arisen, post-Hurst, is whether the weighing process in the selection phase is judicial fact-finding. Most courts have held no, but a few have held yes. In Belton the Supreme Court of Ohio found that this sentencing-weighing was not judicial fact-finding. The Court approves that analysis here, and rejects Mason’s claim the Ohio’s death-penalty scheme is unconstitutional under Hurst. But the high court goes one step further, and finds that even if the weighing process does involve Sixth-Amendment fact-finding, Ohio “adequately affords the right to trial by jury during the penalty phase.”

The Jury’s Role in Sentencing

Mason argues that the flaw in Ohio’s process is that it only allows a jury to recommend a death sentence, and Hurst specifically found that “a jury’s mere recommendation is not enough.” The Court rejects this argument based on the differences by which an Ohio jury and a Florida jury reach their respective recommendations.

Under the Florida statute, the jury was not required to find that the defendant was guilty of committing a specific aggravating circumstance, and renders only an “advisory sentence” after hearing the evidence in the sentencing phase of the proceedings. By contrast, in Ohio, the jury must find the defendant guilty of at least one aggravating circumstance before the matter can even proceed to the penalty phase. “Ohio’s scheme differs from Florida’s because Ohio requires the jury to make this specific and critical finding,” wrote Justice Fischer.

Another of Mason’s challenges was that Ohio’s scheme doesn’t pass muster under the Sixth Amendment because the jury is only required to render a general verdict. He argues that Hurst requires a jury to explain why it found that the aggravating circumstances outweigh the mitigating factors, as the trial court must do in its sentencing opinion. The Court finds no legal support for this position. It also rejects Mason’s contention that the jury’s sentencing phase finding and recommendation are inadequate because they provide no guidance to the trial court for its own sentencing determination. As the Court notes, Ohio law requires the jury to find a defendant guilty of a specific aggravating circumstance, which provides what the trial court weighs against mitigating factors in its independent determination. Mason failed to show why more is required. Same with mitigating factors. Nothing requires a jury to find mitigating facts.

The Trial Judge’s Independent Findings

Finally, the Court considers and rejects Mason’s argument centered on the requirement of a trial judge’s independent findings culminating in a written sentencing opinion. Mason argues that an offender is not eligible for the death sentence until this happens. Here the Court makes a number of points. Ohio law does not allow the trial judge to find any additional aggravating fact, but must only determine, independently, whether a sentence of death should be imposed. The trial court cannot increase a sentence based on its own findings. Further, the Sixth Amendment does not prohibit judicial fact-finding altogether. And Hurst does not say that only a jury alone can decide whether a sentence of death will be imposed. In Ohio, the judge can only impose a death sentence after the jury has made the critical findings.

The Court concludes by finding that Ohio’s death-penalty scheme does not violate a defendant’s Sixth Amendment jury trial right, and that the trial judge erred in dismissing the death-penalty specification from Mason’s indictment. The Third District Court of Appeals is affirmed.

Justice Kennedy’s Concurrence: Belton Ain’t Gettin’ No Respect

Justice Kennedy wrote a solo separate concurrence, seemingly piqued by the majority’s apparent agreement with Mason that Belton’s analysis (which she authored) of Hurst, was simply dicta, and not binding precedent resolving this entire matter.

Kennedy expresses her view that the determination in Belton that Ohio’s death-penalty scheme does not run afoul of Hurst is not dicta (giving her colleagues a little lecturette on dicta):

“Our decision in Belton is binding precedent controlling the outcome of this appeal, because its holding did not go beyond the facts and issues then before the court and its analysis was necessary for our ruling. Therefore, it is not dictum,” Kennedy wrote. In Belton the court explained that the Sixth Amendment right to a jury trial is not implicated by a sentencing scheme that requires the trial judge to weigh the aggravating circumstances against mitigating factors before deciding upon death as the appropriate sentence. And because “the maximum penalty authorized by the statute following the jury’s verdict at the trial phase was death…no judicial fact-finding could expose Mason to any greater punishment.”

So, Kennedy agrees with the other six judges that Ohio’s death penalty statutes do not violate the Sixth Amendment, but she relies on and applies Belton as the underpinning for this finding.

Case Syllabus

None

Concluding Observations

I’m surprised the Court took this case. The bench was totally cold during the argument. Defense counsel argued passionately, but never seemed to get his points across clearly. My student contributor Paul Taske and I called this a sure win for the state. As Paul wrote after argument,

“The Court will likely take the position that Ohio’s statutory scheme is sufficiently different from Florida’s. The justices seemed unwilling to concede any similarity between the two statutory schemes.”

Indeed. The only surprise here was how put out Justice Kennedy seemed about Belton, (which she authored) not getting the apparent respect she thought it should. Belton was a death-penalty case, but one in which the defendant waived the right to a jury trial, and pled no contest to the charges. He was sentenced to death by a three-judge panel. Since Belton waived his right to a jury trial, the Belton court’s take on Hurst doesn’t seem central to the outcome in that case. The state barely mentioned Belton in its brief in the Mason case.

And Bill O’Neill, the court’s per se death penalty opponent is now gone. Otherwise the vote in this case undoubtedly would have been 6-1.

[1] While the death penalty statutes have since been amended, the changes were not substantive and do not affect the analysis in this case.