from the Franklin County Court of Common Pleas, C.P.C. No.
O'Brien, Prosecuting Attorney, and Steven L. Taylor, for
Timothy Young, Ohio Public Defender, and Kathryn L. Sandford;
Steven M. Brown, for appellant.
Kathryn L. Sandford.
1} David Braden, defendant-appellant, appeals from
the judgment of the Franklin County Court of Common Pleas in
which the court entered judgment denying his motion for leave
to file a motion for new mitigation trial.
2} On August 3, 1998, appellant shot his girlfriend
and her father. Appellant was indicted on two counts of
aggravated murder with prior calculation and design. Both
counts included a "course of conduct" death penalty
specification, pursuant to R.C. 2929.04(A)(5), and a firearms
specification. The jury convicted appellant as charged and
recommended the death penalty on each count. The court held a
mitigation hearing. On July 7, 1999, the trial court
sentenced appellant to death on each count, three years of
confinement on the firearms specifications, and a $50, 000
fine. Appellant appealed his conviction and sentence, and the
Supreme Court of Ohio affirmed his conviction and sentence in
State v. Braden, 98 Ohio St.3d 354, 2003-Ohio-1325.
3} On January 11, 2017, appellant filed a motion for
leave to file a motion for new mitigation trial. Attached to
the motion for leave was a motion for new trial. In his
motion for new trial, appellant claimed Ohio's death
penalty statute is unconstitutional because it allows a death
sentence based on a mere jury recommendation and independent
fact-finding by the trial court. His motion was based on the
United States Supreme Court's decision in Hurst v.
Florida, U.S., 136 S.Ct. 616 (2016), and appellant
claimed he could not have filed his motion for leave to file
sooner because Hurst was not issued until January
4} On April 6, 2017, the trial court issued a
decision in which it denied appellant's motion for a new
mitigation trial. In a brief entry, the trial court indicated
the motion was untimely, was barred by res judicata, and
Hurst did not compel a new mitigation trial in the
5} Appellant appeals the judgment of the trial
court, asserting the following assignments of error:
[I.] The trial court erred in denying Braden's Motion for
Leave to File a Motion for a New Mitigation Trial without
determining whether Braden was unavoidably prevented from
filing his Motion within fourteen ...