State v. Powell
| Decision Date | 18 October 2019 |
| Docket Number | L-18-1195,Nos. L-18-1194,s. L-18-1194 |
| Citation | 2019 Ohio 4286,148 N.E.3d 51 |
| Parties | STATE of Ohio, Appellee v. Wayne POWELL, Appellant |
| Court | Ohio Court of Appeals |
DECISION AND JUDGMENT
{¶ 1} In this consolidated appeal, defendant-appellant, Wayne Powell, appeals two separate orders of the Lucas County Court of Common Pleas, dated August 16, 2018. The trial court denied Powell's motion for funds to hire experts in support of his amended postconviction petition, and denied his motion for a new mitigation trial. For the reasons that follow, we affirm.
{¶ 2} On November 22, 2006, Powell was indicted on one count of aggravated arson, ten counts of aggravated murder, and 26 capital specifications. The charges arose out of an arson fire at a two-story house in Toledo, Ohio, that killed four people.
{¶ 3} Before the trial, Powell requested and received funding for various experts. Specifically, the trial court authorized the payment of $1,000 for a fire investigator; $2,500 for private investigators; $2,500 for a psychologist; $2,000 for an audio expert; and $2,500 for a mitigation specialist from the Ohio Public Defender's office. In each of these orders, the trial court stated that defense counsel could petition the court "if further funds become necessary."
{¶ 4} The trial began on August 10, 2007. Eleven days later, the jury returned a verdict finding Powell guilty of all charges, including the 26 specifications listed in the indictment. The court merged the ten aggravated murder counts into four counts—one for each victim—with each of their specifications in tandem.
{¶ 5} The court proceeded to the sentencing/mitigation phase on August 22, 2007. Powell waived his right to a presentence investigation and report, his right to have the court perform a psychological investigation, and his right to make a statement on his own behalf. Although Powell presented several witnesses in mitigation, including Powell's family members, a juvenile probation officer, and a psychologist, the jury unanimously found that the aggravating circumstances proven at trial (referred to as specifications in the indictment) outweighed the mitigating factors presented during the sentencing phase. As a result, the jury recommended a death sentence for each of the four aggravated murder convictions.
{¶ 6} After receiving this recommendation from the jury, the trial court also found beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating factors. The court stated these findings in its death penalty order on September 13, 2007, followed by a judgment entry on September 26, 2007, sentencing Powell to death.
{¶ 7} Powell filed a direct appeal with the Supreme Court of Ohio in November 2007. On June 30, 2008, he filed a petition for postconviction relief, and on July 14, 2008, he filed a motion for funds to hire a substance-abuse expert in support of his postconviction petition. The postconviction petition and corresponding motion for expert funds were held in abeyance until the Supreme Court of Ohio decided his direct appeal. On June 13, 2012, the Supreme Court affirmed Powell's convictions and death sentences. State v. Powell , 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865.
{¶ 8} On October 13, 2016, with leave of court, Powell filed an amended petition for postconviction relief, in which he asserts 39 separate claims for relief. In his amended petition, Powell claims, among other things, that his postconviction investigation has revealed that the state's evidence of arson was scientifically flawed, alternate suspects existed and should have been investigated, and his defense counsel failed to present all mitigating factors pertinent to his case.
{¶ 9} That same day, Powell filed a motion for leave to conduct discovery and an amended motion for funds to hire experts in support of his amended petition. In his motion for discovery, Powell sought leave to serve various subpoenas duces tecum, stating that "[m]odern fire science methodology and the scientific method demonstrate that Powell's verdict and death sentence were premised on unreliable and unchallenged fire evidence purporting to be based in science but which we now know is scientifically invalid."
{¶ 10} In his amended motion for expert funds, Powell requested funds to hire a substance-abuse expert, a psychologist, a neuropsychologist, and a mitigation investigator. The motion asserts that "Powell's counsel were ineffective for failing to request funding for and obtaining expert assistance regarding Powell's substance abuse and the neuropsychological effect it had on Powell." Powell also argued that, because the trial court had found him to be indigent at the time of trial, he had a right to court-appropriated funding to retain experts on this issue and "such expert assistance was necessary and available at the time of Powell's capital trial."
{¶ 11} The state filed a response to the amended motion for funds on December 12, 2016. The state argued that Powell did not have a right to expert assistance in his postconviction proceedings, and that the anticipated subject matter of the experts' testimony was barred by res judicata.
{¶ 12} On January 12, 2017, Powell filed a motion for leave to file a motion for a new mitigation trial pursuant to Crim.R. 33 and Hurst v. Florida , 577 U.S. 92, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). Powell argued that he was sentenced to death under a statutory scheme that, pursuant to the subsequent pronouncement of the Supreme Court of the United States in Hurst , violates the Sixth and Fourteenth Amendments to the U.S. Constitution.
{¶ 13} On November 29, 2017, Powell filed supplemental memoranda relating to his motion for discovery and his motion for funds to hire experts. Through this filing, Powell notified the court of two recent developments. First, R.C. 2953.21 was amended to allow a petitioner to seek leave of court to conduct discovery in a postconviction review of a capital case. Second, Crim.R. 42 was enacted and includes a provision that authorizes trial courts to appoint experts for indigent defendants in capital postconviction proceedings.
{¶ 14} On August 16, 2018, the trial court decided Powell's outstanding motions. The trial court granted Powell's motion for leave to file a motion for a new mitigation trial—finding that the motion for new mitigation trial was filed within a reasonable time after Hurst was decided—but it denied the motion on its merits, concluding that Hurst does not render Ohio's death penalty statutes unconstitutional.
{¶ 15} The trial court also denied Powell's motion for funds to hire experts, finding that Powell
{¶ 16} The trial court reserved judgment on Powell's motion to conduct discovery, and asked for additional briefing relating to the recent amendments to R.C. 2953.21(A)(1)(d) that now permit discovery in postconviction reviews of capital cases "for good cause shown."
{¶ 17} Powell then appealed the trial court's denial of his motion for expert funds and motion for new mitigation trial. Powell's amended petition for postconviction relief, and motion to conduct discovery, remain pending in the trial court.
{¶ 18} On appeal, Powell claims two assignments of error:
{¶ 19} In his first assignment of error, Powell claims that the trial court abused its discretion when it denied his amended motion for funds to hire experts in support of his amended postconviction petition. Powell argues that the trial court improperly denied the motion—without making any factual findings related to its merits—under the mistaken belief that indigent defendants in capital cases are not entitled to court-appointed experts in postconviction proceedings under Ohio law. Powell claims that the trial court overlooked the July 1, 2017 amendments to Crim.R. 42, which recognize the authority of trial courts to appoint experts for indigent defendants in postconviction reviews of a capital case.1 Specifically, Crim.R. 42(E)(1) now provides that "[t]he trial court is the appropriate authority for the appointment of experts for indigent defendants in all capital cases and in post-conviction review of a capital case. " (Emphasis added.) Powell also argues that he has a "particularly great" need for expert funding to assist with his postconviction petition because "[t]he effects of multi-generational substance abuse should have been thoroughly investigated and presented by a substance abuse expert at trial but, due to counsel's failures, it was not."
{¶ 20} In response, the state argues that we lack jurisdiction to consider this assignment of error because the trial court's order is not a "final order" under R.C. 2505.02. In the alternative, the state argues that the trial court properly denied Powell's motion because any issues relating to substance abuse are barred by res judicata and, even if not barred, Powell did not provide any specifics regarding the identity, cost, and qualifications of his proposed experts and
{¶ 21} In his reply brief, Powell argues that the trial court's order is a "final order" under R.C. 2505.02(B) and, regardless, the state "effectively ignores" the specific language of Crim.R. 42(E)(4), which states that "[t]he appeal of an order regarding appointment of experts...
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...the discretion to appoint experts for indigent defendants in postconviction reviews of capital cases." State v. Powell, 2019-Ohio-4286, 148 N.E.3d 51, ¶ 48 (6th Dist.). We review a trial court's order denying a request to appoint experts for indigent defendants in postconviction reviews of ......
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...the term "provisional remedy" applies to a proceeding, not an individual order. See id. at 447-448, 746 N.E.2d 1092 ; State v. Powell , 2019-Ohio-4286, 148 N.E.3d 51, ¶ 35 (6th Dist.) ; Carter , 8th Dist. Cuyahoga No. 106690, 2018-Ohio-4115, at ¶ 18.[N]o "order" is ever a "provisional remed......
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...and are often not final appealable orders, absent statutory language designating them as such." State v. Powell, 2019-Ohio-4286, 148 N.E.3d 51 (6th Dist), ¶ 28, citing State v. Carter, 8th Dist. Cuyahoga No. 106690, 2018-Ohio-4115, ¶ 14. See also State v. Cunningham, 8th Dist. Cuyahoga No. ......