penalty phase instruction in Ohio

2021The new law replaced the rule set forth in State v. Penix, 32 Ohio St.3d 369 , 513 N.E.2d 744 (1987), which held that when a death sentence imposed by a jury has been vacated for a penalty- phase error, the trial court could not empanel a new jury to impose a new death sentence; it was required to sentence the defendant to life in prison.

2021The new law replaced the rule set forth in State v. Penix, 32 Ohio St.3d 369 , 513 N.E.2d 744 (1987), which held that when a death sentence imposed by a jury has been vacated for a penalty- phase error, the trial court could not empanel a new jury to impose a new death sentence; it was required to sentence the defendant to life in prison.

1998See State v. Gumm, 73 Ohio St.3d at 419, 653 N.E.2d at 261 , and syllabus; State v. Lorraine (1993), 66 Ohio St.3d 414 , 421-422 and 424-425, 613 N.E.2d 212 , 219 and 221; State v. DePew (1988), 38 Ohio St.3d 275, 282-283 , 528 N.E.2d 542, 552 ; State v. Young (1988), 37 Ohio St.3d 249, 252-253 , 525 N.E.2d 1363, 1368-1369 , reversed on other grounds Osborne v. Ohio (1990), 495 U.S. 103, 125-126 , 110 S.Ct. 1691, 1705 , 109 L.Ed.2d 98,119-120 ; State v. Nabozny (1978), 54 Ohio St.2d 195 , 8 O.O.3d 181 , 375 N.E.2d 784 , paragraph two of the syllabus, sentence vacated on other grounds Nabozny v

1998See State v. Gumm, 73 Ohio St.3d at 419, 653 N.E.2d at 261 , and syllabus; State v. Lorraine (1993), 66 Ohio St.3d 414 , 421-422 and 424-425, 613 N.E.2d 212 , 219 and 221; State v. DePew (1988), 38 Ohio St.3d 275, 282-283 , 528 N.E.2d 542, 552 ; State v. Young (1988), 37 Ohio St.3d 249, 252-253 , 525 N.E.2d 1363, 1368-1369 , reversed on other grounds Osborne v. Ohio (1990), 495 U.S. 103, 125-126 , 110 S.Ct. 1691, 1705 , 109 L.Ed.2d 98,119-120 ; State v. Nabozny (1978), 54 Ohio St.2d 195 , 8 O.O.3d 181 , 375 N.E.2d 784 , paragraph two of the syllabus, sentence vacated on other grounds Nabozny v

1998State v. Combs (1991), 62 Ohio St.3d 278, 286 , 581 N.E.2d 1071, 1079 ; Clemons v. Mississippi (1990), 494 U.S. 738 , 110 S.Ct. 1441 , 108 L.Ed.2d 725 .

1998State v. Combs (1991), 62 Ohio St.3d 278, 286 , 581 N.E.2d 1071, 1079 ; Clemons v. Mississippi (1990), 494 U.S. 738 , 110 S.Ct. 1441 , 108 L.Ed.2d 725 .

1998See State v. Gumm, 73 Ohio St.3d at 419, 653 N.E.2d at 261 , and syllabus; State v. Lorraine (1993), 66 Ohio St.3d 414 , 421-422 and 424-425, 613 N.E.2d 212 , 219 and 221; State v. DePew (1988), 38 Ohio St.3d 275, 282-283 , 528 N.E.2d 542, 552 ; State v. Young (1988), 37 Ohio St.3d 249, 252-253 , 525 N.E.2d 1363, 1368-1369 , reversed on other grounds Osborne v. Ohio (1990), 495 U.S. 103, 125-126 , 110 S.Ct. 1691, 1705 , 109 L.Ed.2d 98,119-120 ; State v. Nabozny (1978), 54 Ohio St.2d 195 , 8 O.O.3d 181 , 375 N.E.2d 784 , paragraph two of the syllabus, sentence vacated on other grounds Nabozny v

1998See State v. Gumm, 73 Ohio St.3d at 419, 653 N.E.2d at 261 , and syllabus; State v. Lorraine (1993), 66 Ohio St.3d 414 , 421-422 and 424-425, 613 N.E.2d 212 , 219 and 221; State v. DePew (1988), 38 Ohio St.3d 275, 282-283 , 528 N.E.2d 542, 552 ; State v. Young (1988), 37 Ohio St.3d 249, 252-253 , 525 N.E.2d 1363, 1368-1369 , reversed on other grounds Osborne v. Ohio (1990), 495 U.S. 103, 125-126 , 110 S.Ct. 1691, 1705 , 109 L.Ed.2d 98,119-120 ; State v. Nabozny (1978), 54 Ohio St.2d 195 , 8 O.O.3d 181 , 375 N.E.2d 784 , paragraph two of the syllabus, sentence vacated on other grounds Nabozny v

1998See State v. Gumm, 73 Ohio St.3d at 419, 653 N.E.2d at 261 , and syllabus; State v. Lorraine (1993), 66 Ohio St.3d 414 , 421-422 and 424-425, 613 N.E.2d 212 , 219 and 221; State v. DePew (1988), 38 Ohio St.3d 275, 282-283 , 528 N.E.2d 542, 552 ; State v. Young (1988), 37 Ohio St.3d 249, 252-253 , 525 N.E.2d 1363, 1368-1369 , reversed on other grounds Osborne v. Ohio (1990), 495 U.S. 103, 125-126 , 110 S.Ct. 1691, 1705 , 109 L.Ed.2d 98,119-120 ; State v. Nabozny (1978), 54 Ohio St.2d 195 , 8 O.O.3d 181 , 375 N.E.2d 784 , paragraph two of the syllabus, sentence vacated on other grounds Nabozny v

1998See State v. Gumm, 73 Ohio St.3d at 419, 653 N.E.2d at 261 , and syllabus; State v. Lorraine (1993), 66 Ohio St.3d 414 , 421-422 and 424-425, 613 N.E.2d 212 , 219 and 221; State v. DePew (1988), 38 Ohio St.3d 275, 282-283 , 528 N.E.2d 542, 552 ; State v. Young (1988), 37 Ohio St.3d 249, 252-253 , 525 N.E.2d 1363, 1368-1369 , reversed on other grounds Osborne v. Ohio (1990), 495 U.S. 103, 125-126 , 110 S.Ct. 1691, 1705 , 109 L.Ed.2d 98,119-120 ; State v. Nabozny (1978), 54 Ohio St.2d 195 , 8 O.O.3d 181 , 375 N.E.2d 784 , paragraph two of the syllabus, sentence vacated on other grounds Nabozny v

1998See State v. Gumm, 73 Ohio St.3d at 419, 653 N.E.2d at 261 , and syllabus; State v. Lorraine (1993), 66 Ohio St.3d 414 , 421-422 and 424-425, 613 N.E.2d 212 , 219 and 221; State v. DePew (1988), 38 Ohio St.3d 275, 282-283 , 528 N.E.2d 542, 552 ; State v. Young (1988), 37 Ohio St.3d 249, 252-253 , 525 N.E.2d 1363, 1368-1369 , reversed on other grounds Osborne v. Ohio (1990), 495 U.S. 103, 125-126 , 110 S.Ct. 1691, 1705 , 109 L.Ed.2d 98,119-120 ; State v. Nabozny (1978), 54 Ohio St.2d 195 , 8 O.O.3d 181 , 375 N.E.2d 784 , paragraph two of the syllabus, sentence vacated on other grounds Nabozny v

1998See State v. Gumm, 73 Ohio St.3d at 419, 653 N.E.2d at 261 , and syllabus; State v. Lorraine (1993), 66 Ohio St.3d 414 , 421-422 and 424-425, 613 N.E.2d 212 , 219 and 221; State v. DePew (1988), 38 Ohio St.3d 275, 282-283 , 528 N.E.2d 542, 552 ; State v. Young (1988), 37 Ohio St.3d 249, 252-253 , 525 N.E.2d 1363, 1368-1369 , reversed on other grounds Osborne v. Ohio (1990), 495 U.S. 103, 125-126 , 110 S.Ct. 1691, 1705 , 109 L.Ed.2d 98,119-120 ; State v. Nabozny (1978), 54 Ohio St.2d 195 , 8 O.O.3d 181 , 375 N.E.2d 784 , paragraph two of the syllabus, sentence vacated on other grounds Nabozny v

1998State v. Combs (1991), 62 Ohio St.3d 278, 286 , 581 N.E.2d 1071, 1079 ; Clemons v. Mississippi (1990), 494 U.S. 738 , 110 S.Ct. 1441 , 108 L.Ed.2d 725 .

1998State v. Combs (1991), 62 Ohio St.3d 278, 286 , 581 N.E.2d 1071, 1079 ; Clemons v. Mississippi (1990), 494 U.S. 738 , 110 S.Ct. 1441 , 108 L.Ed.2d 725 .

1998See State v. Gumm, 73 Ohio St.3d at 419, 653 N.E.2d at 261 , and syllabus; State v. Lorraine (1993), 66 Ohio St.3d 414 , 421-422 and 424-425, 613 N.E.2d 212 , 219 and 221; State v. DePew (1988), 38 Ohio St.3d 275, 282-283 , 528 N.E.2d 542, 552 ; State v. Young (1988), 37 Ohio St.3d 249, 252-253 , 525 N.E.2d 1363, 1368-1369 , reversed on other grounds Osborne v. Ohio (1990), 495 U.S. 103, 125-126 , 110 S.Ct. 1691, 1705 , 109 L.Ed.2d 98,119-120 ; State v. Nabozny (1978), 54 Ohio St.2d 195 , 8 O.O.3d 181 , 375 N.E.2d 784 , paragraph two of the syllabus, sentence vacated on other grounds Nabozny v

1998See State v. Gumm, 73 Ohio St.3d at 419, 653 N.E.2d at 261 , and syllabus; State v. Lorraine (1993), 66 Ohio St.3d 414 , 421-422 and 424-425, 613 N.E.2d 212 , 219 and 221; State v. DePew (1988), 38 Ohio St.3d 275, 282-283 , 528 N.E.2d 542, 552 ; State v. Young (1988), 37 Ohio St.3d 249, 252-253 , 525 N.E.2d 1363, 1368-1369 , reversed on other grounds Osborne v. Ohio (1990), 495 U.S. 103, 125-126 , 110 S.Ct. 1691, 1705 , 109 L.Ed.2d 98,119-120 ; State v. Nabozny (1978), 54 Ohio St.2d 195 , 8 O.O.3d 181 , 375 N.E.2d 784 , paragraph two of the syllabus, sentence vacated on other grounds Nabozny v

1998See State v. Gumm, 73 Ohio St.3d at 419 , 653 N.E.2d at 261 , and syllabus; State v. Lorraine (1993), 66 Ohio St.3d 414 , 421-422 and 424-425, 613 N.E.2d 212 , 219 and 221; State v. DePew (1988), 38 Ohio St.3d 275, 282-283 , 528 N.E.2d 542, 552 ; State v. Young (1988), 37 Ohio St.3d 249, 252-253 , 525 N.E.2d 1363, 1368-1369 , reversed on other grounds Osborne v. Ohio (1990), 495 U.S. 103, 125-126 , 110 S.Ct. 1691, 1705 , 109 L.Ed.2d 98, 119-120 ; State v. Nabozny (1978), 54 Ohio St.2d 195 , 8 O.O.3d 181 , 375 N.E.2d 784 , paragraph two of the syllabus, sentence vacated on other grounds Nabozny

1998See State v. Gumm, 73 Ohio St.3d at 419, 653 N.E.2d at 261 , and syllabus; State v. Lorraine (1993), 66 Ohio St.3d 414 , 421-422 and 424-425, 613 N.E.2d 212 , 219 and 221; State v. DePew (1988), 38 Ohio St.3d 275, 282-283 , 528 N.E.2d 542, 552 ; State v. Young (1988), 37 Ohio St.3d 249, 252-253 , 525 N.E.2d 1363, 1368-1369 , reversed on other grounds Osborne v. Ohio (1990), 495 U.S. 103, 125-126 , 110 S.Ct. 1691, 1705 , 109 L.Ed.2d 98,119-120 ; State v. Nabozny (1978), 54 Ohio St.2d 195 , 8 O.O.3d 181 , 375 N.E.2d 784 , paragraph two of the syllabus, sentence vacated on other grounds Nabozny v

1998See State v. Gumm, 73 Ohio St.3d at 419 , 653 N.E.2d at 261 , and syllabus; State v. Lorraine (1993), 66 Ohio St.3d 414 , 421-422 and 424-425, 613 N.E.2d 212 , 219 and 221; State v. DePew (1988), 38 Ohio St.3d 275, 282-283 , 528 N.E.2d 542, 552 ; State v. Young (1988), 37 Ohio St.3d 249, 252-253 , 525 N.E.2d 1363, 1368-1369 , reversed on other grounds Osborne v. Ohio (1990), 495 U.S. 103, 125-126 , 110 S.Ct. 1691, 1705 , 109 L.Ed.2d 98, 119-120 ; State v. Nabozny (1978), 54 Ohio St.2d 195 , 8 O.O.3d 181 , 375 N.E.2d 784 , paragraph two of the syllabus, sentence vacated on other grounds Nabozny

1998See State v. Gumm, 73 Ohio St.3d at 419, 653 N.E.2d at 261 , and syllabus; State v. Lorraine (1993), 66 Ohio St.3d 414 , 421-422 and 424-425, 613 N.E.2d 212 , 219 and 221; State v. DePew (1988), 38 Ohio St.3d 275, 282-283 , 528 N.E.2d 542, 552 ; State v. Young (1988), 37 Ohio St.3d 249, 252-253 , 525 N.E.2d 1363, 1368-1369 , reversed on other grounds Osborne v. Ohio (1990), 495 U.S. 103, 125-126 , 110 S.Ct. 1691, 1705 , 109 L.Ed.2d 98,119-120 ; State v. Nabozny (1978), 54 Ohio St.2d 195 , 8 O.O.3d 181 , 375 N.E.2d 784 , paragraph two of the syllabus, sentence vacated on other grounds Nabozny v

2018The Sixth Circuit vacated Foust's death sentence and remanded his case to the trial court for a "new penalty-phase trial." Id. at 546 . {¶ 5} On remand in August 2012, the state asked the trial court to find that Foust's jury waiver applies to the new penalty-phase hearing and to schedule Foust's resentencing hearing before a three-judge panel.

2018The hearing was then postponed numerous times. {¶ 6} On March 7, 2017, Foust filed a "renewed" motion for a penalty-phase hearing before a jury based on Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616 , 193 L.Ed.2d 504 (2016).

2018The hearing was then postponed numerous times. {¶ 6} On March 7, 2017, Foust filed a "renewed" motion for a penalty-phase hearing before a jury based on Hurst v. Florida , --- U.S. ----, 136 S.Ct. 616 , 193 L.Ed.2d 504 (2016).

2018Foust contended that Hurst represents a "dramatic change" in the law, guaranteeing "a capital defendant an unequivocal right to a jury determination of every fact necessary to impose a sentence of death." Foust also argued that *1085 he was entitled to withdraw his earlier jury waiver, citing State v. Davis , 139 Ohio St.3d 122 , 2014-Ohio-1615 , 9 N.E.3d 1031 , for the proposition that "neither res judicata nor the law of the case precluded full consideration of the merits of a motion to withdraw a jury waiver for a new mitigation phase." {¶ 7} Over the state's opposition, Judge Collier-Willi

2018Foust contended that Hurst represents a "dramatic change" in the law, guaranteeing "a capital defendant an unequivocal right to a jury determination of every fact necessary to impose a sentence of death." Foust also argued that *1085 he was entitled to withdraw his earlier jury waiver, citing State v. Davis , 139 Ohio St.3d 122 , 2014-Ohio-1615 , 9 N.E.3d 1031 , for the proposition that "neither res judicata nor the law of the case precluded full consideration of the merits of a motion to withdraw a jury waiver for a new mitigation phase." {¶ 7} Over the state's opposition, Judge Collier-Willi

2014O’Neill, J., dissenting. {¶ 286} In State v. Kirkland, 140 Ohio St.3d 73 , 2014-Ohio-1966 , 15 N.E.3d 818 , this court affirmed a death sentence despite its acknowledgment that the defendant’s penalty-phase hearing was unfair, based on its independent review of the sentence.

2014FRENCH, J., concurs in the foregoing opinion. ____________________ O’NEILL, J., dissenting. {¶ 286} In State v. Kirkland, Slip Opinion No. 2014-Ohio-1966 , this court affirmed a death sentence despite its acknowledgment that the defendant’s penalty-phase hearing was unfair, based on its independent review of the sentence.

2007In proposition of law VIII, Frazier argues that he is entitled to a new penalty-phase hearing because the trial court imposed consecutive sentences in violation of State v. Foster, 109 Ohio St.3d 1 , 2006-Ohio-856 , 845 N.E.2d 470 . {¶ 198} On May 9, 2005, the trial court sentenced Frazier to eight years for aggravated robbery in Count 2, and eight years for aggravated burglary in Count 3.

2007In proposition of law VIII, Frazier argues that he is entitled to a new penalty-phase hearing because the trial court imposed consecutive sentences in violation of State v. Foster, 109 Ohio St.3d 1 , 2006-Ohio-856 , 845 N.E.2d 470 . {¶ 198} On May 9, 2005, the trial court sentenced Frazier to eight years for aggravated robbery in Count 2, and eight years for aggravated burglary in Count 3.

2004Jury Instructions {¶ 109} In his 14th proposition of law, appellant complains about the following penalty-phase instruction: “For purposes of this proceeding, only that testimony and evidence which was presented in the first phase that is relevant to the aggravating circumstance or circumstances Defendant was found guilty of committing and to any of the mitigating factors that will be described below, is to be considered by you.” Appellant asserts that this instruction improperly left it up to the jury to determine what guilt-phase evidence was relevant in its sentencing deliberations. {¶ 110}

2004Jury Instructions {¶ 109} In his 14th proposition of law, appellant complains about the following penalty-phase instruction: “For purposes of this proceeding, only that testimony and evidence which was presented in the first phase that is relevant to the aggravating circumstance or circumstances Defendant was found guilty of committing and to any of the mitigating factors that will be described below, is to be considered by you.” Appellant asserts that this instruction improperly left it up to the jury to determine what guilt-phase evidence was relevant in its sentencing deliberations. {¶ 110}

2003As we said in State v. Bey (1999), 85 Ohio St.3d 487 , 498, 709 N.E.2d 484 , “Mitigation is not about blame or culpability, but rather about punishment.” In State v. Lawrence (1989), 44 Ohio St.3d 24, 28-29 , 541 N.E.2d 451 , we found that a similar penalty-phase instruction referring to blame, combined with other errors, was prejudicial error. 3.

2003As we said in State v. Bey (1999), 85 Ohio St.3d 487 , 498, 709 N.E.2d 484 , “Mitigation is not about blame or culpability, but rather about punishment.” In State v. Lawrence (1989), 44 Ohio St.3d 24, 28-29 , 541 N.E.2d 451 , we found that a similar penalty-phase instruction referring to blame, combined with other errors, was prejudicial error. 3.

2003As we said in State v. Bey (1999), 85 Ohio St.3d 487 , 498, 709 N.E.2d 484 , “Mitigation is not about blame or culpability, but rather about punishment.” In State v. Lawrence (1989), 44 Ohio St.3d 24, 28-29 , 541 N.E.2d 451 , we found that a similar penalty-phase instruction referring to blame, combined with other errors, was prejudicial error. 3.

2003As we said in State v. Bey (1999), 85 Ohio St.3d 487 , 498, 709 N.E.2d 484 , “Mitigation is not about blame or culpability, but rather about punishment.” In State v. Lawrence (1989), 44 Ohio St.3d 24, 28-29 , 541 N.E.2d 451 , we found that a similar penalty-phase instruction referring to blame, combined with other errors, was prejudicial error. 3.

2001Nevertheless, the court in Goff determined that the definition was generally acceptable, and empha sized that "an appropriate penalty-phase instruction on the issue of reasonable doubt should convey to jurors that they must be firmly convinced that the aggravating circumstance(s) outweigh the mitigating factor(s), if any." Id.

2001Instead, “the jury, when it cannot unanimously agree on a death sentence, [is required] to move on in their deliberations to a consideration of which life sentence is appropriate, with that determination to be unanimous.” Id. at 162 , 661 N.E.2d at 1042 . {¶ 152} In his fourth proposition of law, Sanders contends that the trial court gave a penalty-phase instruction that was inconsistent with Brooks.

2001Instead, “the jury, when it cannot unanimously agree on a death sentence, [is required] to move on in their deliberations to a consideration of which life sentence is appropriate, with that determination to be unanimous.” Id. at 162 , 661 N.E.2d at 1042 . {¶ 152} In his fourth proposition of law, Sanders contends that the trial court gave a penalty-phase instruction that was inconsistent with Brooks.

1989Appellant also takes issue, in his eighth proposition of law, with the trial court’s penalty phase instruction which indicated that the jury’s recommendation of death was not binding on the trial court, 6 thus violating Caldwell v. Mississippi (1985), 472 U.S. 320 .