State ex rel. O'Malley v. Collier-Williams

• Decision Date: 09 August 2018
• Docket Number: No. 2017-0346,2017-0346
• Citation: 108 N.E.3d 1082,153 Ohio St.3d 553,2018 Ohio 3154
• Parties: The STATE EX REL. O'MALLEY v. COLLIER-WILLIAMS, Judge.
• Court: Ohio Supreme Court

153 Ohio St.3d 553

108 N.E.3d 1082

2018 Ohio 3154

The STATE EX REL. O'MALLEY

v.COLLIER-WILLIAMS, Judge.

No. 2017-0346

Supreme Court of Ohio.

Submitted February 13, 2018

Decided August 9, 2018.

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Kristen L. Sobieski and Christopher D. Schroeder, Assistant Prosecuting Attorneys, for relator.

Zukerman, Daiker & Lear Co., L.P.A., Larry W. Zukerman, and S. Michael Lear, Cleveland, for respondent.

Robert L. Tobik, Cuyahoga County Public Defender, and Jeffrey M. Gamso, Assistant Public Defender, for intervening respondent.

Per Curiam.

{¶ 1} In this original action, relator, Cuyahoga County Prosecuting Attorney Michael C. O'Malley, seeks writs of prohibition and mandamus to prevent respondent, Cuyahoga County Common Pleas Court Judge Cassandra Collier-Williams, from empaneling a jury for intervening-respondent Kelly Foust's capital-murder resentencing hearing. We hold that Judge Collier-Williams patently and unambiguously lacks jurisdiction to empanel a jury for a resentencing hearing in a capital-murder case when the defendant has validly waived a jury trial. We therefore grant O'Malley a writ of prohibition and order Judge Collier-Williams to vacate her March 9, 2017 journal entry granting Foust's renewed motion for a capital resentencing hearing before a jury. We deny as moot O'Malley's request for a writ of mandamus.

I. Background

{¶ 2} In 2001, the Cuyahoga County Grand Jury indicted Foust on six counts of aggravated murder and 20 other felony counts. Each aggravated-murder count included six aggravating circumstances: one course-of-conduct specification and five felony-murder specifications for aggravated burglary, aggravated robbery, kidnapping, rape, and aggravated arson.

{¶ 3} Foust waived his right to a jury. A three-judge panel convicted him on five counts of aggravated murder and the related capital specifications, the lesser-included offense of murder, and some of the noncapital counts. Following a mitigation hearing, the panel unanimously determined that, beyond a reasonable doubt, the aggravating circumstances outweighed the mitigating circumstances and sentenced Foust to death. We affirmed Foust's convictions and death sentence on appeal. State v. Foust , 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836.

{¶ 4} In 2011, the United States Court of Appeals for the Sixth Circuit granted Foust a writ of habeas corpus, holding that his trial counsel's performance during the mitigation hearing was constitutionally ineffective. Foust v. Houk , 655 F.3d 524 (6th Cir.2011). The 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. Judge Collier-Williams agreed. Almost a month later, Foust filed a motion requesting a jury for his penalty-phase hearing, which the state opposed. Judge Collier-Williams denied Foust's motion on April 4, 2013. The 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). Foust 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 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-Williams granted Foust's renewed motion for a jury on March 9, 2017. After reviewing "all the relevant matters including, but not limited to," Davis and Hurst , she made the following findings:

[T]he defendant has a 6th Amendment right to have the specific findings authorizing the imposition of the sentence of death to be made by a jury. Regardless of the fact that the defendant waived his right to a jury 16 years ago, that waiver does not supercede [sic] his right to now demand a jury for the mitigation phase of his case. This court further finds that R.C. 2929.06(B) does not prevent the defendant from demanding a jury. While the statute sets forth the procedure for the sentencing/mitigation phase, it does not strip the defendant of his constitutional right to demand a jury.

Finally, this court finds that the impaneling of a jury to hear this mitigation phase will not prejudice the state of Ohio. * * * Therefore, defendant's motion for jury is hereby granted.

{¶ 8} On March 10, 2017, O'Malley filed his complaint for writs of prohibition and mandamus. Judge Collier-Williams filed a motion to dismiss for failure to state a claim for relief in either prohibition or mandamus. Foust filed a motion to intervene as a respondent together with a motion to dismiss or for judgment on the pleadings. On July 26, 2017, we granted Foust's motion to intervene, denied Judge Collier-Williams's and Foust's motions to dismiss, and granted O'Malley an alternative writ. 150 Ohio St.3d 1405, 2017-Ohio-6964, 78 N.E.3d 907. O'Malley and Foust each filed a statement of facts and evidence, and Collier-Williams filed evidence.

II. Legal Analysis

A. Writ of Prohibition

{¶ 9} A writ of prohibition is an extraordinary remedy that is granted in limited circumstances "with great caution and restraint." State ex rel. Corn v. Russo , 90 Ohio St.3d 551, 554, 740 N.E.2d 265 (2001). O'Malley is entitled to the writ only upon a showing that (1) Judge Collier-Williams is about to exercise or has exercised judicial power, (2) her exercise of that power is unauthorized by law, and (3) denying the writ would result in injury for which no other adequate remedy exists in the ordinary course of the law. State ex rel. Elder v. Camplese , 144 Ohio St.3d 89, 2015-Ohio-3628, 40 N.E.3d 1138, ¶ 13. O'Malley need not establish the lack of an adequate remedy at law if Judge Collier-Williams's lack of jurisdiction is "patent and unambiguous." State ex rel. Vanni v. McMonagle , 137 Ohio St.3d 568, 2013-Ohio-5187, 2 N.E.3d 243, ¶ 6.

{¶ 10} In this case, the first element is not in dispute: Judge Collier-Williams clearly exercised judicial power by granting Foust's motion to revoke his jury waiver and to empanel a jury for his capital resentencing hearing.

1. Adequate Remedy

{¶ 11} Judge Collier-Williams and Foust contend that under R.C. 2945.67(A), which delineates when a prosecutor may appeal, O'Malley could have sought a discretionary appeal in the Eighth District Court of Appeals from the judge's order granting Foust's renewed motion to empanel a jury for his resentencing. Thus, they argue that O'Malley has an adequate remedy at law that precludes a writ of prohibition.

{¶ 12} O'Malley, on the other hand, contends that a discretionary appeal to the Eighth District pursuant to R.C. 2945.67(A) is not an adequate remedy, because that court has held that the state may seek leave to appeal only a final, appealable order, which Judge Collier-Williams's March 9, 2017 journal entry is not. He cites State v. Colon , 8th Dist. Cuyahoga No. 103150, 2016-Ohio-707, 2016 WL 763960, ¶ 11-12, 14, in which the Eighth District granted the state leave to appeal but later dismissed the case for lack of a final, appealable order. The court reasoned, "When ruling on the state's motion for leave to appeal, courts must consider R.C. 2945.67 in conjunction with R.C. 2505.02 and 2505.03(A)." Those provisions define a final order and provide instruction on the process for appeal. The court of appeals concluded that the state could seek leave to appeal only a final, appealable order. Id. at ¶ 11. We declined jurisdiction. 146 Ohio St.3d 1491, 2016-Ohio-5585, 57 N.E.3d 1171.

{¶ 13} For a remedy to be adequate, it must, among other things, be complete and beneficial. State ex rel. Smith v. Cuyahoga Cty. Court of Common Pleas , 106 Ohio St.3d 151, 2005-Ohio-4103, 832 N.E.2d 1206, ¶ 19. O'Malley argues that a discretionary appeal under R.C. 2945.67(A) is inadequate because it could never be beneficial in light of the Eighth District's ruling in Colon . But beneficial does not mean successful, and this court has held that failing to receive a favorable decision does not render the remedy inadequate. State ex rel. Nichols v. Cuyahoga Cty. Bd. of Mental Retardation & Dev. Disabilities , 72 Ohio St.3d 205, 209, 648 N.E.2d 823 (1995). O'Malley concedes as much, but maintains that because "the Eighth District categorically precludes the State from ever seeking leave to appeal" absent a final, appealable order and "does so specifically on jurisdictional grounds," his remedy is rendered inadequate.

{¶ 14} O'Malley's attempt to distinguish his case falls short. Despite the holding of Colon , he was not actually prevented from seeking leave to appeal Judge Collier-Williams's order. Had the Eighth District denied O'Malley leave to appeal the March 9, 2017 order, the state could have sought leave to appeal to this court. See S.Ct.Prac.R. 5.02 (jurisdictional appeals). It is well established that "a ‘[d]iscretionary right of appeal * * * [constitutes] a sufficiently plain and adequate remedy in the ordinary course of the law.’ " State ex rel. Hardesty v. Williamson , 9 Ohio St.3d 174, 176, 459 N.E.2d 552 (1984), quoting State ex rel. Cleveland v. Calandra , 62 Ohio St.2d 121, 122, 403 N.E.2d 989 (1980).

{¶ 15} We have "consistently held that prohibition cannot be used as a substitute" when a discretionary appeal is available. Hardesty at 176, 459 N.E.2d 552. The "mere fact that this remedy may no longer be available because" the relator failed to pursue it ...