State v. White

Citation2012 -Ohio- 2583,972 N.E.2d 534,132 Ohio St.3d 344
Decision Date14 June 2012
Docket NumberNo. 2009–1661.,2009–1661.
PartiesThe STATE of OHIO, Appellee, v. WHITE, Appellant.
CourtOhio Supreme Court
OPINION TEXT STARTS HERE

[Ohio St.3d 345]Syllabus of the Court

1. 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.

2. The General Assembly has clearly expressed its intent that R.C. 2929.06(B) apply retroactively. (R.C. 2929.06(E), applied.)

3. 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.

Ramona Francesconi Rogers, Ashland County Prosecuting Attorney, and Paul T. Lange, Assistant Prosecuting Attorney, for appellee.

Timothy Young, Ohio Public Defender, and Nathan A. Ray and Randall L. Porter, Assistant Public Defenders, for appellant.

Law Offices of Michael J. Benza and Michael J. Benza, Chagrin Falls, urging reversal for amicus curiae Ohio Association of Criminal Defense Lawyers.

Carrie L. Davis and James L. Hardiman, Cleveland, urging reversal for amicus curiae American Civil Liberties Union of Ohio Foundation.

Ron O'Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Chief Counsel, Appellate Division, urging affirmance for amicus curiae Franklin County Prosecuting Attorney Ron O'Brien.

Michael DeWine, Attorney General, Alexandra T. Schimmer, Chief Deputy Solicitor

General, and Emily S. Schlesinger, Deputy Solicitor, urging affirmance for amicus curiae Ohio Attorney General.

LUNDBERG STRATTON, J.

{¶ 1} Appellant, Maxwell D. White Jr., murdered State Trooper James Gross on January 19, 1996. He was tried by a jury, convicted of aggravated murder with capital specifications, and sentenced to death. On appeal, we affirmed White's conviction and death sentence. State v. White, 82 Ohio St.3d 16, 693 N.E.2d 772 (1998). However, on December 7, 2005, White obtained federal habeas corpus relief from his death sentence, obliging the trial court to resentence him. White v. Mitchell, 431 F.3d 517 (6th Cir.2005).

{¶ 2} R.C. 2929.06(B) requires the trial court, when resentencing a capital offender who was tried by a jury and whose death sentence has been set aside, to empanel a new jury and conduct a fresh penalty hearing, at which death may be a penalty to be considered by the jury. This provision was enacted after White killed Trooper Gross, but before the federal court invalidated his death sentence.

{¶ 3} The trial court held that it could not retroactively apply R.C. 2929.06(B) in resentencing White, and therefore, White was ineligible for a death sentence. [Ohio St.3d 346]The issue before us is whether the trial court should apply R.C. 2929.06(B) on resentencing, thereby allowing the death penalty to once again be available on remand.

{¶ 4} Because this appeal principally involves White's claim that R.C. 2929.06(B) may not be applied retroactively, we begin by outlining the history of that statute.

{¶ 5} In State v. Penix, 32 Ohio St.3d 369, 513 N.E.2d 744 (1987), we held that a death sentence may be imposed only with the recommendation of “the trial jury,” because R.C. 2929.03, as written, required it. Id. at 372, 513 N.E.2d 744. We further held that “the trial jury” must be the same jury that convicted the offender in the guilt phase. Id. at 373, 513 N.E.2d 744. Under Penix, when a death sentence imposed by a jury is vacated for penalty-phase error, the trial court on remand may not empanel a new jury to impose a new death sentence, but must impose one of the life sentences provided by statute. Id. at 372–373, 513 N.E.2d 744. On January 19, 1996, the date of the murder in this case, Penix was still good law.

{¶ 6} Later in 1996, the 121st General Assembly enacted legislation to abrogate Penix. Effective October 16, 1996, R.C. 2929.06 was amended by the adoption of R.C. 2929.06(B).1See Sub.S.B. No. 258, 146 Ohio Laws, Part VI, 10539, 10548–10549. R.C. 2929.06(B), in its current form, 2 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 1996 amendment to R.C. 2929.06(B) thus established that a defendant may be resentenced to death on remand from a decision vacating his original death sentence.

[Ohio St.3d 347]{¶ 7} On September 22, 2004, we decided State v. Williams, 103 Ohio St.3d 112, 2004-Ohio-4747, 814 N.E.2d 818. In Williams, we held that R.C. 2929.06(B) could not be applied to a case involving an aggravated murder committed before October 16, 1996, because the General Assembly had not expressly made R.C. 2929.06(B) retroactive. Id. at syllabus.

{¶ 8} The 125th General Assembly responded to Williams by further amending R.C. 2929.06. The amendment, effective March 23, 2005, added a new division, R.C. 2929.06(E). See Sub.H.B. No. 184, 150 Ohio Laws, Part III, 5043, 5051. R.C. 2929.06(E) provides:

This section, as amended by H.B. 184 of the 125th general assembly, shall apply to all offenders who have been sentenced to death for an aggravated murder that was committed on or after October 19, 1981 * * *. This section, as amended by H.B. 184 of the 125th general assembly, shall apply equally to all such offenders sentenced to death prior to, on, or after March 23, 2005 [the effective date of H.B. 184], including offenders who, on March 23, 2005, are challenging their sentence of death and offenders whose sentence of death has been set aside, nullified, or vacated by any court of this state or any federal court but who, as of March 23, 2005, have not yet been resentenced.

{¶ 9} While these statutory changes were being enacted, White was pursuing a federal habeas corpus challenge to his conviction and death sentence. On December 7, 2005, the United States Court of Appeals for the Sixth Circuit affirmed the federal district court's denial of habeas relief as to White's conviction. White v. Mitchell, 431 F.3d 517. However, the Sixth Circuit held that White's death sentence was constitutionally defective.

{¶ 10} At trial, White had challenged a prospective juror on the ground that she was biased in favor of a death sentence. The trial court overruled White's challenge, and the juror took part in White's trial and sentencing. The Sixth Circuit found that the juror was biased and that the trial court had therefore erred by overruling White's challenge. Id. at 537–543. Accordingly, the Sixth Circuit ordered that White's death sentence be vacated “unless the State conducts a new penalty phase proceeding.” Id. at 543.

{¶ 11} On December 28, 2006, pursuant to the Sixth Circuit's mandate, the federal district court granted a conditional writ of habeas corpus and ordered that the state either conduct a new penalty hearing or vacate White's death sentence. On December 29, 2006, the state filed a motion in the trial court requesting a new penalty-phase proceeding in light of the federal court's order.

[Ohio St.3d 348]{¶ 12} White filed two motions in the trial court to prohibit the state from seeking the death penalty. These were designated “Motion A” and “Motion B.” In Motion A, White argued that R.C. 2929.06(B) does not apply to a case where a death sentence has been set aside for error that took place during voir dire, such as the erroneous overruling of a challenge for cause. In Motion B, he argued that R.C. 2929.06(B) cannot constitutionally be appliedto a case involving a crime committed before its enactment.

{¶ 13} The trial court granted Motion B in part, holding that the application of R.C. 2929.06(B) to White's case would be unconstitutionally retroactive in violation of the Ohio Constitution, Article II, Section 28, the Retroactivity Clause, which provides: “The general assembly shall have no power to pass retroactive laws * * *.” Motion B also included a claim that application of R.C. 2929.06(B) would violate the Ex Post Facto Clause of the United States Constitution. The trial court did not address White's ex post facto claim. Nor did the court address Motion A.

{¶ 14} The court of appeals reversed and remanded, holding that applying R.C. 2929.06(B) to White would not violate the Retroactivity Clause. State v. White, 5th Dist. Nos. 07–COA–037 and 07–COA–038, 2009-Ohio-3869, 2009 WL 2386104.

{¶ 15} We granted White's jurisdictional motion. State v. White, 123 Ohio St.3d 1508, 2009-Ohio-6210, 917 N.E.2d 811. We now affirm the judgment of the court of appeals.

I. Applicability of R.C. 2929.06(B)

{¶ 16} As a threshold question, we must determine whether R.C. 2929.06(B) is applicable to White's case. White contends that R.C. 2929.06(B), even if applied retroactively, does not authorize the trial court to empanel a new jury for resentencing under the circumstances of this case.

{¶ 17} R.C. 2929.06(B) provides:

Whenever any court of this state or any federal court sets aside, nullifies, or vacates a sentence of death imposed upon an offender 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....

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