Oral Argument Preview: Is Ohio’s Statutory Death Penalty Sentencing Scheme Unconstitutional? State of Ohio v. Maurice Mason.

On January 23, 2018, the Supreme Court of Ohio will hear oral argument in the case, State of Ohio v. Maurice Mason, 2017-0200. At issue in the case is whether, under Ohio’s statutory scheme governing the death penalty, the jury’s role as fact-finder is improperly abrogated in violation of the Sixth Amendment. Second District Court of Appeals Judge Michael T. Hall will sit for Justice O’Neill, who has recused himself from hearing any new cases until he leaves the Court January 26, 2018. Justice O’Donnell has also recused himself from this appeal, and Sixth District Court of Appeals Judge James Jensen will sit for him.

Case Background

In 1993, Maurice Mason was indicted for aggravated murder in violation of R.C. 2903.01(B), with a death penalty specification under R.C. 2941.14 and 2929.04(A)(7), alleging the murder occurred during the commission of a rape. On June 18, 1994, a jury found Mason guilty of the aggravated murder of Robin Dennis. The trial proceeded to the penalty phase, and mitigation evidence was presented to the jury. After weighing the aggravating circumstances and mitigating factors, the jury 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 Florida’s death penalty statute on the ground that its statutory scheme requiring a judge, rather than the jury, to make the final determination to impose the death penalty was a violation of the Sixth Amendment. Mason subsequently filed a motion to dismiss his death penalty specification by arguing that Ohio’s death penalty statute in effect in 1993 was unconstitutional in light of the Hurst decision. Marion County Common Pleas Court Judge William Finnegan agreed, and granted Mason’s motion.

On appeal, the Third District, in a unanimous opinion written by Judge Vernon Preston, and joined by Judges Stephen Shaw and John Williamowski, 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.

Votes to Accept the Case

Yes:  Chief Justice O’Connor, Justices DeWine, Fischer, O’Neill, and French.

No: Justices O’ Donnell and Kennedy

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.)

State v. Buell, 22 Ohio St.3d 124 (1986) (R.C. 2929.03(D)(3) delegates the death sentencing responsibility to the trial court upon its separate and independent finding that the aggravating circumstances outweigh the mitigating factors.)

Spaziano v. Florida, 468 U.S. 447 (1984) (Finding it constitutional under the Eighth and Sixth Amendments to place the responsibility of imposing a capital sentence on the trial judge as opposed to the jury.)

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 to be made by a jury and allowed them to be made by judicial factfinding.)

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.)

Hurst v. Florida, 136 S.Ct. 616 (2016)(The Sixth Amendment requires a jury, not a judge, to find each fact necessary for the imposition of a death sentence. A jury’s recommendation is not enough. 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 (If a jury has already found a defendant to be death-penalty eligible then any subsequent weighing processes do not implicate Sixth Amendment concerns. When a capital defendant elects to waive the right to have a jury determine guilt, the Sixth Amendment does not guarantee the defendant a jury at the sentencing phase of trial.)

Mason’s Argument

The Hurst Decision and Florida

In Florida, a defendant will only receive the death penalty for first-degree murder after an additional sentencing proceeding results in findings by the court, not the jury, that the defendant should be sentenced to death. After a jury found Hurst guilty of first degree murder, the trial judge conducted an evidentiary hearing before the jury. At the end of the hearing, the jury issued an “advisory sentence” of death without a factual basis for its finding. Under Florida law the trial judge must then undertake to weigh independently aggravating and mitigating circumstances before ultimately imposing a sentence of either life imprisonment or death. In Hurst, the trial judge imposed the death sentence.

The United States Supreme Court accepted Hurst’s appeal to resolve the tension between its earlier decisions in Ring v. Arizona, Hildwin v. Florida, and Spaziano v. Florida. In Ring, the Court held that the Sixth Amendment requires a jury to find any fact necessary to qualify a capital defendant for the death penalty. Hildwin and Spaziano, on the other hand, held specific findings did not have to be made by a jury to impose a sentence of death, and that it was constitutional to place such responsibility on the trial judge. Hurst resolved this conflict by overruling Hildwin and Spaziano for violating the Sixth Amendment in light of Ring. In Hurst, the Court found the jury’s role in issuing an advisory sentence does not satisfy the constitutional requirements outlined in Ring. Thus, Florida’s jury function was found to be wholly advisory in violation of the Sixth Amendment.

The Hurst Decision and Ohio

In Ohio, juries do not issue the final sentence of death; rather, juries issue a recommendation to the trial judge who ultimately renders the final decision regarding punishment. Pursuant to R.C. 2929.03(D)(3), the trial court may sentence a defendant to death only if the court finds, beyond a reasonable doubt, that the aggravating circumstances in a case outweigh any mitigating factors. Further, in R.C. 2929.03(F), the trial judge must articulate his or her factual findings by issuing a written opinion outlining the independent re-weighing of the relevant factors. Only the trial court, not the jury, articulates its weighing process in the form of written findings.  The jury is not required to make any specific findings about how it weighed any of the aggravating and mitigating circumstances and factors.

The Ohio death penalty scheme suffers from the same constitutional deficiencies as the scheme in Florida, because the jury verdict recommending death in Ohio is only a general, advisory recommendation, and the trial judge must make the aggravating/mitigating findings independently. The Supreme Court of Ohio has long recognized the importance of these judge-made findings, and has vacated death sentences done improperly. As such, it is clear that Ohio’s death penalty scheme is substantially similar to Florida’s. The Hurst Court found Florida’s statutory scheme to be unconstitutional under the Sixth Amendment and struck it down; so too should this Court strike down Ohio’s death penalty scheme.

The Impact of State v. Belton

The decision by the Supreme Court of Ohio in State v. Belton does not control in this case, and is irrelevant to its outcome. Unlike Mason, Belton waived his right to a jury trial and entered a no-contest plea to all charges. In Belton, this Court held that if a defendant waives his right to a trial by jury, the Sixth Amendment does not guarantee the defendant a jury at the sentencing phase of trial. In Belton, the impact of Hurst on Ohio’s capital scheme was neither before this Court nor fully briefed. This Court did not have an opportunity to address its long line of cases emphasizing the importance of the trial judge’s role as final arbiter in capital cases. Because Belton waived his rights, the facts and reasoning presented in Belton are not binding on Mason’s case. Therefore, the trial court correctly applied the Hurst decision and Belton, and the Third District’s opinion should be reversed.

State’s Argument

Differences in Ohio and Florida Sentencing Statutes

The United States Supreme Court held in Hurst that allowing a judge to make factual findings independent of a jury’s is a violation of the Sixth Amendment’s right to trial by jury. However, Florida’s sentencing statute, at issue in Hurst, differs from Ohio’s sentencing statute in constitutionally significant ways. Unlike Florida law, which only requires a majority of jurors to find some aggravating circumstance, and does not require the jurors to specify which one, Ohio law requires the jury to determine which aggravating circumstance it found to be proven beyond a reasonable doubt, which the jury verdict form must specify. Further, under Ohio law, a jury’s aggravated circumstance finding is binding on the trial judge, and the trial judge may not expose the defendant to a greater punishment than authorized by the jury verdict.

The Hurst Decision Only Requires a Finding of Eligibility

To satisfy Hurst, a jury need only determine, unanimously and beyond a reasonable doubt, that a death-eligibility factor exists. In Ohio, a defendant is determined to be eligible for a death sentence if the jury determines beyond a reasonable doubt that one of the aggravating circumstances is present, per R.C. 2929.04(A). Once this finding is made by the jury, a defendant is deemed death-eligible, and the second, sentencing phase begins.

The sentencing phase may be conducted by the judge without regard to potential Sixth Amendment concerns. Mason misinterprets the concept of “death eligibility.” There is a distinction between being eligible for the death penalty—which must be determined by the jury—and determining whether the death penalty is an appropriate punishment for someone found to be death eligible—which may properly be reserved for the judge to determine, independently. The Third District correctly stated that judicial weighing does not constitute a factual determination.

Even If Hurst Requires Jury Weighing Ohio’s Statute is Constitutional

But even if Hurst stands for the proposition that jury weighing of evidence is required, Ohio’s statute still passes constitutional muster. In Ohio, in order to impose the death penalty, a jury must weigh the aggravating circumstances against any mitigating factors beyond a reasonable doubt, and the judge’s independent finding does not violate the Sixth Amendment because if the jury does not find that the aggravating circumstances outweigh the mitigating factors, a judge cannot overrule that finding.  Actual sentencing by a jury, independent of the judge, is not constitutionally required. Juries need only find the fact that an aggravating circumstance existed. Therefore, Ohio’s sentencing statute is constitutionally sound.  For these reasons Ohio’s capital sentencing scheme must be upheld, and the Third District’s ruling should be affirmed.

Mason’s Proposed Proposition of Law

Ohio’s death penalty scheme is unconstitutional pursuant to Hurst v. Florida, 136 S. Ct. 616 (2016).

State’s Proposed Counter Proposition of Law

Ohio’s capital sentencing statute is constitutional under Hurst v. Florida, 136 S. Ct. 616 (2016).

Amicus in Support of Mason

The Ohio Association of Criminal Defense Lawyers (OACDL) filed a brief in support of Mason. In its brief, OACDL focused on the application of the Supreme Court’s decision in Hurst to the statutory scheme in Ohio and traced the jurisprudence of Sixth Amendment cases on this issue. OACDL argues that under Ohio’s capital sentencing scheme, a jury’s vote for death is nothing more than a recommendation, and under Hurst, such a jury recommendation is not enough to pass constitutional muster.

OACDL makes special note of the fact that a judge must independently determine what mitigating factors existed and ultimately find whether they are sufficient to outweigh any aggravating circumstances; this role, according to OACDL should be solely the province of the jury. In Ohio, as in Florida, the jury is required to find the existence of at least one aggravating circumstance before it may render a death recommendation. Also as in Florida, a death verdict in Ohio is no more than a recommendation to the trial judge, and as in Florida may only be imposed if the trial judge makes statutorily mandated findings. Hurst made it abundantly clear that a jury recommendation is not good enough.

For these reasons OACDL urges the Supreme Court of Ohio to reverse the Third District.

Amici in Support of the State

Ohio Attorney General

The Ohio Attorney General (“OAG”) filed a brief in support of the State. The OAG primarily asserts the constitutionality of Ohio’s sentencing scheme post-Hurst because juries, not judges, must find a defendant’s guilt beyond a reasonable doubt in the guilt phase of trial and the punishment phase when weighing aggravating circumstances and mitigating factors which make a defendant eligible for death. Therefore, Hurst has no impact on Ohio’s sentencing scheme, because no part of the scheme violates the Sixth Amendment as this Court held in State v. Belton. Finally, the Ohio scheme is constitutional because a judge’s weighing only occurs after two separate findings of fact by a jury. Therefore, the Sixth Amendment right to a trial by jury is not abridged by the Ohio scheme.

Ohio Prosecuting Attorneys Association

The Ohio Prosecuting Attorneys Association (”OPAA”) filed a brief in support of the State. OPAA’s primary contention is that Ohio’s statutory scheme is sufficiently different from Florida’s and ought to be upheld even after the Hurst decision. OPAA contends Ohio’s death sentencing scheme is constitutional because it provides an additional safeguard for defendants sentenced to death by juries. This is accomplished by allowing the judge to review, weigh the aggravating circumstances and mitigating factors, and, if necessary, overrule a jury’s determination of death, while forbidding a judge to overrule a recommendation of life in prison.

The Cuyahoga County Prosecutor’s Office

The Cuyahoga County Prosecutor’s Office (Cuyahoga) filed a brief in support of the State. This brief is substantially similar to the OAG’s and OPAA’s briefs, and distinguishes the Ohio scheme from the one invalidated in Hurst, detailing seven outcome-determinative ways in which the Ohio sentencing scheme differs from Florida’s. Additionally, Cuyahoga’s brief explicitly asserts that the Sixth Amendment right to jury fact-finding does not apply to mitigating factors, because the finding of such factors, by definition, does not expose the defendant to a greater potential risk or punishment. Nor is there any right to jury-sentencing in capital cases. Finally, Cuyahoga asserts, like the OAG and OPAA, that the ability of a judge to accept or reject a jury’s recommendation of death provides significantly more safeguards, and a second chance at life.

Student Contributor: Paul Taske


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