State v. Williams, 103 Ohio St.3d 112 (OH 9/22/2004), Case No. 1999-1218.

• Decision Date: 22 September 2004
• Docket Number: Case No. 1999-1218.
• Citation: 103 Ohio St.3d 112,2004 Ohio 4747
• Parties: The State of Ohio, Appellee, v Williams, Appellant.
• Court: Ohio Supreme Court

Page 1

103 Ohio St.3d 112

2004 Ohio 4747

The State of Ohio, Appellee, v Williams, Appellant.

Case No. 1999-1218.

In the Supreme Court of Ohio.

Submitted June 29, 2004.

Decided September 22, 2004.

Appeal from the Court of Common Pleas of Lucas County, No. CR97-2268.

Julia R. Bates, Lucas County Prosecuting Attorney, and Craig T. Pearson, Assistant Prosecuting Attorney, for appellee.

Jeffrey M. Gamso and David L. Doughten, for appellant.

Jim Petro, Attorney General, Douglas R. Cole, State Solicitor, Christopher D. Stock, Deputy Solicitor, and Matthew Chamberlain, Assistant Attorney General, for amicus curiae Attorney General of Ohio.

Ron O'Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Assistant Prosecuting Attorney, for amicus curiae Franklin County Prosecuting Attorney.

David H. Bodiker, Ohio Public Defender, Pamela J. Prude-Smithers and Siobhan R. Clovis, Assistant Public Defenders, for amicus curiae Ohio Public Defender.

Michael J. Benza and Carrie L. Davis, for amicus curiae American Civil Liberties Union of Ohio Foundation, Inc.

David C. Stebbins; Law Office of S. Adele Shank and S. Adele Shank, for amicus curiae Ohio Association of Criminal Defense Lawyers.

ON MOTION FOR RECONSIDERATION.

O'CONNOR, J.

{¶1} For the December 1995 rape and murder of Catrise Gregory, defendant-appellant, Shawn C. Williams, was tried by jury, convicted of aggravated murder with a rape-murder capital specification, and sentenced to death. He appealed the judgment to this court as a matter of right.

{¶2} On September 3, 2003, we affirmed Williams's convictions but found reversible error in the penalty phase of his trial. See State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27. Accordingly, we vacated Williams's death sentence and remanded the cause to the trial court for resentencing pursuant to current R.C. 2929.06, which provides:

{¶3} "(B) If the sentence of death that is imposed upon an offender is vacated upon appeal because of error that occurred in the sentencing phase of the trial and if division (A) of this section does not apply, the trial court * * * 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, life imprisonment without parole, life imprisonment with parole eligibility after serving twenty-five full years of imprisonment, or life imprisonment with parole eligibility after serving thirty full years of imprisonment."

{¶4} At the time Williams raped and murdered Gregory, however, this version of R.C. 2929.06 was not yet in effect, and the then current version did not permit impaneling a new jury to reconsider imposing a death sentence after the original death sentence was vacated for penalty-phase error. See 146 Ohio Laws, Part IV, 7820; State v. Penix (1987), 32 Ohio St.3d 369, 513 N.E.2d 744. Williams moved this court for reconsideration, arguing that current R.C. 2929.06 is inapplicable because he committed his crime before the statute's October 16, 1996 amendment permitting the impaneling of a new jury and the reimposition of the death sentence. See 146 Ohio Laws, Part VI, 10548, adding subsection R.C. 2929.06(A)(2), now (B). Moreover, he asserted that the prior version of R.C. 2929.06 controls, and thus he cannot be resentenced to death.

{¶5} On December 8, 2003, we granted Williams's motion for reconsideration and ordered briefing on the following question: "Following remand and a new penalty hearing, may a sentence of death be imposed upon the appellant under the current version of R.C. 2929.06, or does the version of R.C. 2929.06 in effect at the time of the offense, which would preclude a death sentence, apply upon remand of this case?" State v. Williams, 100 Ohio St.3d 1525, 2003-Ohio-6510, 800 N.E.2d 43.

{¶6} We now hold that current R.C. 2929.06 does not apply retroactively, and therefore the version of R.C. 2929.06 in effect at the time of Williams's offenses applies upon remand.

{¶7} A statute is retroactive if it penalizes conduct that occurred before its enactment. Retroactivity is unconstitutional if it " `takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past.' " Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 106, 522 N.E.2d 489, quoting Cincinnati v. Seasongood (1889), 46 Ohio St. 296, 303, 21 N.E. 630.

{¶8} R.C. 1.48 provides: "A statute is presumed to be prospective in its operation unless expressly made retrospective." Thus, a statute may not be applied retroactively unless the court finds a "clearly expressed legislative intent" that the statute so apply. State v. Cook (1998), 83 Ohio St.3d 404, 410, 700 N.E.2d 570.

{¶9} Because the Revised Code is silent as to whether current R.C. 2929.06(B) applies retroactively, it applies only prospectively. Therefore, current R.C. 2929.06 is inapplicable for resentencing an offender whose offenses occurred prior to the statute's effective date of October 16, 1996. Rather, the law in effect at the time of the offenses applies.

{¶10} Nonetheless, amicus curiae the Franklin County Prosecuting Attorney invites us to overrule Penix, 32 Ohio St.3d 369, 513 N.E.2d 744, and hold that former R.C. 2929.06 would permit imposition of the death penalty upon remand. We decline.

{¶11} We recently held that a prior decision may be properly overruled "where (1) the decision was wrongly decided at that time, or changes in circumstances no longer justify continued adherence to the decision, (2) the decision defies practical workability, and (3) abandoning the precedent would not create an undue hardship for those who have relied upon it." Westfield Ins. Co. v. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, paragraph one of the syllabus. In light of this standard, we conclude that Penix cannot be properly overruled because, counter to amicus's arguments, it was not improperly decided and it does not defy practical workability.

{¶12} To support its argument that Penix was improperly decided, amicus cites Mast v. Doctor's Hosp. North (1976), 46 Ohio St.2d 539, 75 O.O.2d 556, 350 N.E.2d 429, in which we interpreted App.R. 12(D) to permit "retrial of only those issues, claims or defenses the original trial of which resulted in prejudicial error, and to allow issues tried free from error to stand." Id. at 541, 75 O.O.2d 556, 350 N.E.2d 429. Unlike Penix, however, Mast did not involve a statute that specifically required the acquiescence of a trial jury in order to impose particular consequences on the defendant. Therefore, we reject amicus's argument that reimposition of a death sentence on remand is authorized by App.R. 12(D).

{¶13} Amicus also asserts that Penix was wrongly decided because R.C. 2953.07(A) permits an appellate court to reverse a criminal judgment in part and to remand for the sole purpose of correcting an improperly imposed sentence. Penix, however, does not contradict R.C. 2953.07. Rather, Penix states that, in a capital case tried by jury, correction of the sentence on remand may not be accomplished by impaneling a new jury with the power to impose a new death sentence, because R.C. 2929.03 reserves that power to the trial jury. Id., 32 Ohio St.3d at 372, 513 N.E.2d 744. Therefore, we reject amicus's argument that reimposition of the death penalty on remand is authorized by R.C. 2953.07(A).

{¶14} Even were we persuaded that the Penix rule is unsound, the decision does not defy practical workability. Penix has created no confusion in the courts of Ohio, we fully explained our rationale, and it did not depart from precedent. Cf. Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, at ¶ 51. Neither has Penix spawned a complex body of law characterized by "a patchwork of exceptions and limitations." Galatis, 100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, at ¶ 57. Its application is straightforward and its scope is clear: reimposition of the death penalty on remand is precluded in capital cases in which the defendant's aggravated-murder conviction has been affirmed, but the death sentence has been vacated on the ground of penalty-phase error. This simple rule applies to all cases in which the capital crime was committed before October 16, 1996, the effective date of the amendment to R.C. 2929.06 that permitted the death sentence to be reimposed on remand.

{¶15} We reaffirm Penix, and we hold that current R.C. 2929.06(B) may be applied prospectively only. Further, we remand this cause to the trial court for resentencing pursuant to the law that existed at the time of Williams's offenses. Accordingly, on remand the trial court shall, pursuant to former R.C. 2929.06(B), conduct a new sentencing hearing and choose from the life-sentencing options available in December 1995: life with parole eligibility after 20 full years or life with parole eligibility after 30 full years.

Judgment accordingly.

Moyer, C.J., F.E. Sweeney, Pfeifer and Celebrezze, JJ., concur.

Resnick and Stratton, JJ., concur in judgment only.

Celebrezze Jr., J., of the Eighth Appellate District, sitting for O'Donnell, J.

ALICE ROBIE RESNICK, J., concurring in judgment only.

{¶16} I reluctantly agree with the ultimate conclusion reached by the majority but do not concur in its reasoning. Therefore, I concur in judgment only and do not join in the syllabus paragraph.

{¶17} My perception of the issue raised by this case starts with the view that the syllabus of State v. Penix (1987), 32 Ohio St.3d 369, 513 N.E.2d 744, was wrongly decided. I find persuasive the dissenting opinion of Justice Robert Holmes in Penix, who reasoned that neither R.C. 2929.03 nor 2929.06, as they then existed,...