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Supreme Court Rules Death Penalty May Be Considered By New Jury In Resentencing for 1996 Murder of Trooper

Application of Amended Statute Does Not Violate Bar Against 'Retroactive Laws'

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2009-1661.  State v. White, Slip Opinion No. 2012-Ohio-2583.
Ashland App. Nos. 07COA-037 and 07COA-038, 2009-Ohio-3869.  Judgment affirmed.
O'Connor, C.J., and Lundberg Stratton, O'Donnell, Cupp, and McGee Brown, JJ., concur.
Pfeifer and Lanzinger, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-2583.pdf

Video clip View oral argument video of this case.

(June 14, 2012) The Supreme Court of Ohio ruled today that the Ohio Constitution’s prohibition against “retroactive laws” does not bar a trial court from applying the state’s capital sentencing laws, as amended in 1996 and 2005, to the resentencing of a murderer whose crime was committed before the law was amended, but whose death sentence was not set aside until after the amendments had taken effect.

The court also held that the resentencing provisions of R.C. 2929.06(B) apply when a defendant’s aggravated murder conviction with a death penalty specification has been affirmed, but his death sentence has been set aside for legal error that invalidated the sentencing phase of the trial.

In a 5-2 decision applying that analysis to an Ashland County case, the court held that in conducting a new sentencing hearing for Maxwell White Jr., whose death sentence for the 1996 murder of State Trooper James Gross was set aside in December 2005, the Ashland County Court of Common Pleas should follow the resentencing procedures set forth in current R.C. 2929.06(B) by empanelling a new jury that is authorized to consider the death penalty as one of its sentencing options.

The court’s majority opinion, authored by Justice Evelyn Lundberg Stratton, affirmed a decision of the Fifth District Court of Appeals.

White murdered Trooper Gross on January 19, 1996. He was tried by a jury, convicted of aggravated murder with capital specifications, and sentenced to death. The Supreme Court of Ohio affirmed White’s conviction and death sentence in 1998. 

White pursued appeals of his conviction and sentence in federal court.  His conviction was upheld, but in December 2005 the U.S. Sixth Circuit Court of Appeals set aside his death sentence based on a finding that the trial court had erred when it overruled White’s pretrial challenge of a prospective juror based on alleged bias in favor of the death penalty. The challenged juror was seated, and participated in both the guilt and penalty phases of the trial.

In its decision, the Sixth Circuit ordered that White’s death sentence be vacated “unless the state conducts a new penalty phase proceeding.” In light of the federal court’s order, the state filed a motion in the trial court requesting a new penalty-phase proceeding. White filed a motion to bar the state from conducting his resentencing under R.C. 2929.06(B), because that section had not been added to the state’s capital sentencing statute until October 1996, nine months after White’s crime was committed. 

R.C. 2929.06(B) provides that “when a death sentence is set aside because of error that occurred in the sentencing phase of the trial ... the trial court that sentenced the offender shall conduct a new hearing to resentence the offender.  If the offender was tried by a jury, the trial court shall impanel a new jury for the hearing. ... At the hearing, the court ... shall follow the procedure set forth in [R.C. 2929.03(D)] in determining whether to impose upon the offender a sentence of death ... ”

The trial court granted White’s motion to preclude application of R.C. 2929.06(B), and therefore bar consideration of the death penalty during his resentencing, on the basis that application of R.C. 2929.06(B) to a crime committed prior to its enactment would violate the Retroactivity Clause of the Ohio Constitution.  The state appealed that ruling. On review, the Fifth District Court of Appeals held that conducting White’s resentencing under R.C. 2929.06(B) would not be an unconstitutionally retroactive application of the law, and remanded the case to the trial court for resentencing under the current statute. White sought and was granted Supreme Court review of the Fifth District’s ruling.

Writing for the majority in today’s decision, Justice Stratton began by rejecting White’s claim that, aside from the constitutional issue of retroactivity, R.C. 2929.06(B) could not be applied to his resentencing because his death sentence was not vacated for “error that occurred in the sentencing phase of the trial” as specified in the statute, but rather was set aside for an error that took place during jury selection.

Justice Stratton wrote that the clear intent of the legislature when it added R.C. 2929.06(B) to the state’s capital sentencing law in October 1996 was to abrogate (render no longer effective) the Supreme Court of Ohio’s 1987 decision in State v. Penix. In Penix, she explained, the court had held that under Ohio’s then-existing death penalty statute, if a new jury had to be empaneled to resentence a capital offender whose death sentence was overturned because of a sentencing error, the new jury could not consider the death penalty as an option but must impose a term of life imprisonment.

“R.C. 2929.06(B) was intended to abrogate Penix,” wrote Justice Stratton. “The statutory language was taken (with minor changes) directly from Penix. We may therefore infer that the statutory language is intended to mean whatever the similar language in Penix meant. The language in Penix, ‘error occurring at the penalty phase of the proceeding,’ does not mean only ‘error occurring during the penalty phase’ but includes all errors that cause the death penalty to be set aside without affecting the guilt-phase verdict. Therefore, the language of R.C. 2929.06(B) has that meaning also.”

“White’s proposed reading of the statute would create an odd dichotomy between sentencing-phase errors that invalidate a death sentence without affecting the conviction, and errors having precisely the same effect but that happen to occur at some other point during the proceedings.  Errors of the first type would be covered by R.C. 2929.06(B), so a new jury could be empaneled for resentencing, and the defendant could receive a death sentence on remand.  Errors of the second type would not be covered by R.C. 2929.06(B) and would entitle the defendant to avoid a death sentence. Such a distinction would be completely arbitrary.”

“Accordingly, we reject White’s proposed interpretation of R.C. 2929.06(B) and hold that R.C. 2929.06(B) applies where an aggravated-murder conviction with a death specification has been affirmed, but the death sentence has been set aside for legal error, when the error infects and thus invalidates the sentencing phase of the trial.  In such a case, R.C. 2929.06(B) permits empanelment of a new jury to resentence the offender.”

In determining that White’s resentencing under R.C. 2929.06(B) would not be an unconstitutionally retroactive application of the law, Justice Stratton cited prior court decisions holding that the Ohio Constitution bars retroactive application of new laws only where those laws are substantive rather than remedial in nature. 

She wrote: “The application of R.C. 2929.06(B) to White’s resentencing would not increase White’s potential sentence, impair any of White’s vested or accrued rights, violate any reliance interest of his or any reasonable expectation of finality, or impose any new burdens on him. We therefore hold that R.C. 2929.06(B) is remedial, not substantive. Hence, the Retroactivity Clause of the Ohio Constitution does not bar its retroactive application in cases where the aggravated murder was committed before its enactment, but the death sentence was set aside after its enactment.”   

Justice Stratton’s opinion was joined by Chief Justice Maureen O’Connor and Justices Terrence
O’Donnell, Robert R. Cupp and Yvette McGee Brown.

Justice Judith Ann Lanzinger entered a dissent, joined by Justice Paul E. Pfeifer, indicating that she would not have reached the constitutional issue of retroactivity because R.C. 2929.06(B) did not apply to White’s case. 

Justice Lanzinger wrote: “Even if there were an ambiguity, meaning two reasonable ways of reading the statute, R.C. 2901.04 [(the rule of lenity) provides that we must read the language of the relevant statute not in favor of the government, but in favor of the accused.  …  We must be particularly mindful of the rule of lenity in death-penalty cases for as is commonly acknowledged, death is different.” She noted that because White’s death sentence was reversed because of error that occurred during voir dire, it was not reversed “because of error that occurred in the sentencing phase of the trial.”  “Based on the plain language of the statute as informed by the rule of lenity, R.C. 2929.06(B) does not apply, and there is no need to empanel a new jury for the potential imposition of a new death sentence.  I would therefore reverse the judgment of the court of appeals and reinstate the trial court’s order of resentencing pursuant to the law in effect at the time of (White’s) offense.”

Ramona H. Rogers, 419.289.8857, for the state and Ashland County prosecutor's office.

Nathan A. Ray, 330.253.7171, for Maxwell White.