Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County Trial No. B-9202977 Court of
T. Deters, Hamilton County Prosecuting Attorney, and Ronald
W. Springman, Chief Assistant Prosecuting Attorney, for
Timothy Young, Ohio Public Defender, and Richard A. Cline,
Senior Assistant Public Defender, for Defendant-Appellant.
Cedric Carter challenges the constitutionality of Ohio's
death penalty statute arguing that imposition of the death
penalty requires judicial fact finding in violation of his
Sixth Amendment right to a jury trial as set forth in
Hurst v. Florida, __ U.S. __, 136 S.Ct. 616, 193
L.Ed.2d 504 (2016). Carter is incorrect.
Carter was charged with aggravated murder and aggravated
robbery for the 1992 robbery and shooting-death of a United
Dairy Farmer clerk, Frances Messinger. As required by the
version of R.C. 2929.04(A) in effect in 1992, Carter's
indictment included a death penalty specification-that Carter
committed aggravated murder while he was committing,
attempting to commit, or fleeing immediately after committing
or attempting to commit the offense of aggravated robbery,
and that he was the principal offender or, if not the
principal offender, committed the aggravated murder with
prior calculation or design. See former R.C.
2929.04(A)(7). Former R.C. 2929.04(A) required that the
specification be "proved beyond a reasonable
doubt." And former R.C. 2929.03(B) required the trial
court to instruct the jury that the specification had to be
proven beyond a reasonable doubt. The jury in this case was
properly instructed. The jury's verdict form indicated
that the jury unanimously found Carter guilty of both charges
and of the death penalty specification. Under former RC.
2929.03(C)(1), Carter became death penalty eligible
only after the jury found him guilty of the
aggravating circumstances set forth in his indictment.
The case proceeded to the sentencing phase. Former RC.
2929.03(D)(1) provided that, if the jury found the defendant
guilty of an aggravating circumstance, the jury was required
to "determine whether the aggravating circumstances the
offender was found guilty of committing are sufficient to
outweigh the mitigating factors present in the case."
Here, the jury unanimously found that the state had proven
beyond a reasonable doubt that the aggravating circumstances
that it had found Carter guilty of were sufficient to
outweigh the mitigating factors. The jury therefore
recommended the death penalty to the trial judge under former
R.C. 2929.03(D)(2). Had the jury not recommended the death
penalty, that sentence would not have been available to the
court. See former R.C. 2929.03(D)(2). The trial
judge subsequently engaged in his own weighing process as set
forth in former R.C. 2929.03(D)(3), and found "by proof
beyond a reasonable doubt * * * that the aggravating
circumstances which Defendant Cedric Carter was found guilty
of committing did outweigh the mitigating factors in the case
* * * ." Pursuant to former R.C. 2929.03(D)(3), the
trial court imposed the death sentence.
Carter contends that Hurst, __ U.S. __, 136 S.Ct.
616, 194 L.Ed.2d 504, requires us to vacate the trial
court's sentence. It does not.
In Hurst, the United States Supreme Court struck
down Florida's death penalty statute on the ground that
it required judicial fact finding before a defendant was
death penalty eligible. The Court surmised that the Florida
statute "does not require the jury to make the critical
findings necessary to impose the death penalty. Rather,
Florida requires a judge to find these facts."
Id. at 622, citing former Fla.Stat. 921.141(3);
see Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000) (any fact that exposes a
defendant to greater punishment is an element of the offense
that must be submitted to the jury); Ring v.
Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556
(2002) (a jury must find any fact necessary to impose the
The Ohio statute is different. In 1992, Ohio's death
penalty statute required the aggravating circumstances, i.e.,
that which made Carter eligible for the death penalty, to be
included in Carter's indictment and proven beyond a
reasonable doubt at trial. See former R.C.
2929.03(D). Carter's indictment complied with that
provision. And the jury was properly instructed that the
state had to prove the death penalty specification beyond a
reasonable doubt. See id. The jury's verdict
form separately stated the jury's finding as to the
By contrast, under the former Florida statute, the maximum
sentence a capital felon could receive on the basis of the
jury's guilty verdict alone was life imprisonment.
Hurst at 620, citing former Fla.Stat. 775.082(1).
After a Florida defendant was found guilty, the court held an
evidentiary hearing and the jury was required to issue an
advisory sentence of life or death by majority vote only.
Id., citing former Fla.Stat. 921.141(1) and (2). The
jury did not have to specify the factual basis for its
recommendation. Id., citing former Fla.Stat.
921.141(2). A Florida trial judge was free to impose a
sentence of death even if the jury did not recommend it.
Id. at 622. Additionally, the Florida statute
required findings by the trial judge alone before the court
could impose the death penalty. Id.
Post-Hurst, the Ohio Supreme Court recognized that,
unlike the Florida statute, under Ohio law "the
determination of guilt of an aggravating circumstance renders
the defendant eligible for a capital sentence, " and
therefore "it is not possible to make a factual finding
during sentencing phase that will expose a defendant to
greater punishment." State v. Belton, 149 Ohio
St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 59. In other
words, in Ohio a jury must first find a defendant guilty of
an aggravating factor before the death penalty becomes a
possibility. While Belton involved the 2008 version
of Ohio's death penalty statute, the relevant provisions
are substantially similar to the ones under review today. The
key point from Belton is that the sentencing phase
under Ohio law involves a weighing-not a
fact-finding-process. Id. at ¶ 60. The Ohio
jury's role in the mitigation phase affords an extra
layer of protection to the accused. Without a jury
recommendation that the defendant be sentenced to death, that
sentence is unavailable. The Ohio judge's ability to
reject a death sentence recommendation affords a safety valve
and maintains a court's traditional role in imposing
punishment. These layers of protection afforded a defendant
comply with Hurst. See State v. Jackson, 8th Dist.
Cuyahoga No. 105530, 2018-Ohio-276; State v. Mason,
3d Dist. Marion No. 9-16-34, 2016-Ohio-8400. Carter's
sole assignment of error is overruled. The trial court's
judgment is affirmed.
P.J., and ...