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State v. Deloney

Court of Appeals of Ohio, First District, Hamilton

December 18, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
JOHN DELONEY, Defendant-Appellant.

          Criminal Appeal From: Hamilton County Court of Common Pleas Trial No. B-1303726

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W. Springman, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          Faulkner & Tepe, LLP, A. Norman Aubin and Wilkes R. Ellsworth, for Defendant-Appellant.

          OPINION

          Mock, Presiding Judge.

         {¶1} Defendant-appellant John Deloney has filed an interlocutory appeal from the decision of the Hamilton County Court of Common Pleas denying his motion to preclude the death penalty as a sentencing option on double-jeopardy grounds. We find no merit in Deloney's sole assignment of error, and we affirm the trial court's judgment.

         I. Factual Background

         {¶2} On June 21, 2013, Deloney was indicted for aggravated murder under R.C. 2903.01(B), with accompanying death-penalty and firearm specifications. He was also indicated for aggravated robbery under R.C. 2911.01(A)(1), with an accompanying firearm specification.

         {¶3} Deloney's counsel subsequently filed a "Motion for a Suggestion of Mental Retardation." We note that the Ohio Supreme Court now uses the term "intellectually disabled" rather than "mentally retarded." See State v. Ford, Slip Opinion No. 2019-Ohio-4539, ¶ 44. Therefore, we will also use the term "intellectually disabled."

         {¶4} Despite the filing of the motion, Deloney and his family refused to cooperate with all evaluations and testing. Eventually, the trial court held a hearing using the evidence the parties had been able to gather without Deloney's cooperation. After the hearing, the trial court found that Deloney was intellectually disabled. Therefore, it held that subjecting him to the death penalty would constitute cruel and unusual punishment under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), and State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011.

         {¶5} The state appealed the trial court's decision to this court. In State v. Deloney, 1st Dist. Hamilton No. C-150619, 2017-Ohio-9282, we reversed the trial court's decision, holding that Deloney had failed to meet his burden of proof to show that he was intellectually disabled. We remanded the cause to the trial court for further proceedings. Id. at ¶ 30. The Supreme Court declined to accept the case for review. See State v. Deloney, 152 Ohio St.3d 1481, 2018-Ohio-1990, 98 N.E.3d 295.

         {¶6} On remand, Deloney filed a "Motion to Preclude the Death Penalty," on double-jeopardy grounds. He argued that the trial court's decision finding that he was intellectually disabled was essentially an acquittal on the issue of whether the state could impose the death penalty. The trial court denied the motion. It found that the Atkins determination was unrelated to factual guilt and innocence, and therefore, it was not an acquittal for purposes of the double-jeopardy clause. The court also found that under the law-of-the-case doctrine, it was required to follow our mandate and proceed to trial.

         {¶7} Deloney filed a timely appeal from the trial court's judgment. We note that the Ohio Supreme Court has held that the denial of a motion to dismiss on double-jeopardy grounds is a final, appealable order. See State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 60-61.

         {¶8} In his sole assignment of error, Deloney contends that the trial court erred in overruling his motion to dismiss the death-penalty specifications on double-jeopardy grounds. He argues that the law-of-the-case doctrine did not preclude the trial court from considering the double-jeopardy issue. He also argues that the trial court made a factual finding that he was intellectually disabled, which precluded the imposition of the death penalty and served as an "acquittal" on the death-penalty specifications. Therefore, regardless of our reversal of the trial court's previous decision, trying him on the specifications would twice place him in jeopardy, and as a result, the state is precluded from seeking the death penalty. This assignment of error is not well taken.

         II. Law-of-the-Case Doctrine

         {¶9} First, the law-of-the-case doctrine did not bar the trial court from deciding the double-jeopardy issue. Under the law-of-the-case doctrine, the decision of a reviewing court in an action remains the law of that case on the legal questions involved for all subsequent proceedings in that case. Nolan v. Nolan, 11 Ohio St.3d 1, 3, 462 N.E.2d 410 (1984); Vonderhaar v. Cincinnati, 191 Ohio App.3d 229, 2010-Ohio-6289, 945 N.E.2d 603, ¶ 13 (1st Dist.). The law-of-the-case doctrine does not apply when the subsequent proceedings involve different evidence or different legal issues. Vonderhaar at ¶ 13.

         {¶10} In our previous decision, we decided only that Deloney had failed to meet his burden to show that he was intellectually disabled, and therefore, ineligible for the death penalty. Whether the state is precluded by the Double Jeopardy Clause from seeking the death penalty is a separate issue that we did not decide, and thus, it is outside of our mandate. Therefore, the trial court was not barred by the law-of-the-case doctrine from considering the double-jeopardy issue.

         III. Double Jeopardy

         {¶11} "The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal." State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 139, quoting Arizona v. Washington,434 U.S. 497, 503, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978). The Double Jeopardy Clause ordinarily does not prohibit the imposition of an increased sentence on remand from an appeal. Hancock at ¶ 139. But in a line of cases beginning with Bullington v. Missouri,451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 ...


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