Court of Appeals of Ohio, First District, Hamilton
Criminal Appeal From: Hamilton County Court of Common Pleas
Trial No. B-1303726
T. Deters, Hamilton County Prosecuting Attorney, and Ronald
W. Springman, Assistant Prosecuting Attorney, for
Faulkner & Tepe, LLP, A. Norman Aubin and Wilkes R.
Ellsworth, for Defendant-Appellant.
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.
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
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
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.
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
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.
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.
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.
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.
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
"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