[Cite as State v. White, 132 Ohio St.3d 344, 2012-Ohio-2583.]




             THE STATE OF OHIO, APPELLEE, v. WHITE, APPELLANT.
          [Cite as State v. White, 132 Ohio St.3d 344, 2012-Ohio-2583.]
Criminal law—Aggravated murder—Death penalty—Resentencing of capital
        defendant after death sentence has been set aside—R.C. 2929.06(B)—
        Death penalty may be reimposed after penalty hearing with new jury—
        Retroactivity—General Assembly intended R.C. 2929.06(B) to be applied
        retroactively—Retroactive application does not offend Ohio Constitution,
        Article II, Section 28—R.C. 2929.06(B) applies to resentencing in all
        capital cases where death penalty has been set aside due to legal error
        regardless of point at which error occurred.
   (No. 2009-1661—Submitted November 16, 2011—Decided June 14, 2012.)
  APPEAL from the Court of Appeals for Ashland County, Nos. 07COA-037 and
                             07COA-038, 2009-Ohio-3869.
                                  __________________
                               SYLLABUS OF THE COURT
1. R.C. 2929.06(B) applies where an aggravated-murder conviction with a death
        specification has been affirmed, but the death sentence has been set aside
        for legal error, when the error infects and thus invalidates the sentencing
        phase of the trial. In such a case, R.C. 2929.06(B) permits empanelment
        of a new jury to resentence the offender.
2. The General Assembly has clearly expressed its intent that R.C. 2929.06(B)
        apply retroactively. (R.C. 2929.06(E), applied.)
3. R.C. 2929.06(B) is remedial, not substantive. Hence, the Retroactivity Clause
        of the Ohio Constitution does not bar its retroactive application in cases
        where the aggravated murder was committed before its enactment, but the
        death sentence was set aside after its enactment.
                              SUPREME COURT OF OHIO




                                __________________
        LUNDBERG STRATTON, J.
        {¶ 1} Appellant, Maxwell D. White Jr., murdered State Trooper James
Gross on January 19, 1996. He was tried by a jury, convicted of aggravated
murder with capital specifications, and sentenced to death.        On appeal, we
affirmed White’s conviction and death sentence. State v. White, 82 Ohio St.3d 16,
693 N.E.2d 772 (1998). However, on December 7, 2005, White obtained federal
habeas corpus relief from his death sentence, obliging the trial court to resentence
him. White v. Mitchell, 431 F.3d 517 (6th Cir.2005).
        {¶ 2} R.C. 2929.06(B) requires the trial court, when resentencing a
capital offender who was tried by a jury and whose death sentence has been set
aside, to empanel a new jury and conduct a fresh penalty hearing, at which death
may be a penalty to be considered by the jury. This provision was enacted after
White killed Trooper Gross, but before the federal court invalidated his death
sentence.
        {¶ 3} The trial court held that it could not retroactively apply R.C.
2929.06(B) in resentencing White, and therefore, White was ineligible for a death
sentence.       The issue before us is whether the trial court should apply R.C.
2929.06(B) on resentencing, thereby allowing the death penalty to once again be
available on remand.
        {¶ 4} Because this appeal principally involves White’s claim that R.C.
2929.06(B) may not be applied retroactively, we begin by outlining the history of
that statute.
        {¶ 5} In State v. Penix, 32 Ohio St.3d 369, 513 N.E.2d 744 (1987), we
held that a death sentence may be imposed only with the recommendation of “the
trial jury,” because R.C. 2929.03, as written, required it. Id. at 372. We further
held that “the trial jury” must be the same jury that convicted the offender in the
guilt phase. Id. at 373. Under Penix, when a death sentence imposed by a jury is




                                          2
                                  January Term, 2012




vacated for penalty-phase error, the trial court on remand may not empanel a new
jury to impose a new death sentence, but must impose one of the life sentences
provided by statute. Id. at 372-373. On January 19, 1996, the date of the murder
in this case, Penix was still good law.
        {¶ 6} Later in 1996, the 121st General Assembly enacted legislation to
abrogate Penix. Effective October 16, 1996, R.C. 2929.06 was amended by the
adoption of R.C. 2929.06(B).1 See Sub.S.B. No. 258, 146 Ohio Laws, Part VI,
10539, 10548-10549. R.C. 2929.06(B), in its current form,2 provides that when a
death sentence is set aside


        because of error that occurred in the sentencing phase of the trial
        * * *, the trial court that sentenced the offender 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 * * *.


The 1996 amendment to R.C. 2929.06(B) thus established that a defendant may
be resentenced to death on remand from a decision vacating his original death
sentence.
        {¶ 7} On September 22, 2004, we decided State v. Williams, 103 Ohio
St.3d 112, 2004-Ohio-4747, 814 N.E.2d 818. In Williams, we held that R.C.
2929.06(B) could not be applied to a case involving an aggravated murder


1. When enacted, R.C. 2929.06(B) was designated R.C. 2929.06(A)(2). It was given its current
designation in 1998. See Sub.S.B. No. 107, 147 Ohio Laws, Part IV, 7435, 7438.

2. R.C. 2929.06(B) and (E) were further amended by 2007 Am.Sub.S.B. No. 10. However, the
2007 amendments do not affect the issues presented in this case.




                                             3
                            SUPREME COURT OF OHIO




committed before October 16, 1996, because the General Assembly had not
expressly made R.C. 2929.06(B) retroactive. Id. at syllabus.
       {¶ 8} The 125th General Assembly responded to Williams by further
amending R.C. 2929.06. The amendment, effective March 23, 2005, added a new
division, R.C. 2929.06(E). See Sub.H.B. No. 184, 150 Ohio Laws, Part III, 5043,
5051. R.C. 2929.06(E) provides:


               This section, as amended by H.B. 184 of the 125th general
       assembly, shall apply to all offenders who have been sentenced to
       death for an aggravated murder that was committed on or after
       October 19, 1981 * * * . This section, as amended by H.B. 184 of
       the 125th general assembly, shall apply equally to all such
       offenders sentenced to death prior to, on, or after March 23, 2005
       [the effective date of H.B. 184], including offenders who, on
       March 23, 2005, are challenging their sentence of death and
       offenders whose sentence of death has been set aside, nullified, or
       vacated by any court of this state or any federal court but who, as
       of March 23, 2005, have not yet been resentenced.


       {¶ 9} While these statutory changes were being enacted, White was
pursuing a federal habeas corpus challenge to his conviction and death sentence.
On December 7, 2005, the United States Court of Appeals for the Sixth Circuit
affirmed the federal district court’s denial of habeas relief as to White’s
conviction. White v. Mitchell, 431 F.3d 517. However, the Sixth Circuit held that
White’s death sentence was constitutionally defective.
       {¶ 10} At trial, White had challenged a prospective juror on the ground
that she was biased in favor of a death sentence. The trial court overruled White’s
challenge, and the juror took part in White’s trial and sentencing. The Sixth




                                        4
                                January Term, 2012




Circuit found that the juror was biased and that the trial court had therefore erred
by overruling White’s challenge. Id. at 537-543. Accordingly, the Sixth Circuit
ordered that White’s death sentence be vacated “unless the State conducts a new
penalty phase proceeding.” Id. at 543.
       {¶ 11} On December 28, 2006, pursuant to the Sixth Circuit’s mandate,
the federal district court granted a conditional writ of habeas corpus and ordered
that the state either conduct a new penalty hearing or vacate White’s death
sentence. On December 29, 2006, the state filed a motion in the trial court
requesting a new penalty-phase proceeding in light of the federal court’s order.
       {¶ 12} White filed two motions in the trial court to prohibit the state from
seeking the death penalty. These were designated “Motion A” and “Motion B.”
In Motion A, White argued that R.C. 2929.06(B) does not apply to a case where a
death sentence has been set aside for error that took place during voir dire, such as
the erroneous overruling of a challenge for cause. In Motion B, he argued that
R.C. 2929.06(B) cannot constitutionally be applied to a case involving a crime
committed before its enactment.
       {¶ 13} The trial court granted Motion B in part, holding that the
application of R.C. 2929.06(B) to White’s case would be unconstitutionally
retroactive in violation of the Ohio Constitution, Article II, Section 28, the
Retroactivity Clause, which provides: “The general assembly shall have no power
to pass retroactive laws * * *.” Motion B also included a claim that application of
R.C. 2929.06(B) would violate the Ex Post Facto Clause of the United States
Constitution. The trial court did not address White’s ex post facto claim. Nor did
the court address Motion A.
       {¶ 14} The court of appeals reversed and remanded, holding that applying
R.C. 2929.06(B) to White would not violate the Retroactivity Clause. State v.
White, 5th Dist. Nos. 07-COA-037 and 07-COA-038, 2009-Ohio-3869.




                                         5
                            SUPREME COURT OF OHIO




       {¶ 15} We granted White’s jurisdictional motion. State v. White, 123 Ohio
St.3d 1508, 2009-Ohio-6210, 917 N.E.2d 811. We now affirm the judgment of
the court of appeals.
                        I. Applicability of R.C. 2929.06(B)
       {¶ 16} As a threshold question, we must determine whether R.C.
2929.06(B) is applicable to White’s case. White contends that R.C. 2929.06(B),
even if applied retroactively, does not authorize the trial court to empanel a new
jury for resentencing under the circumstances of this case.
       {¶ 17} R.C. 2929.06(B) provides:


               Whenever any court of this state or any federal court sets
       aside, nullifies, or vacates a sentence of death imposed upon an
       offender because of error that occurred in the sentencing phase of
       the trial * * *, the trial court that sentenced the offender 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 * * *.


       {¶ 18} White contends that R.C. 2929.06(B) is inapplicable to his case
because his death sentence was not vacated “because of error that occurred in the
sentencing phase of the trial.” White’s sentence was vacated because the trial
court erroneously overruled a challenge for cause during jury selection.
According to White, since the fatal error occurred during jury selection, it did not
occur “in the sentencing phase.”
       {¶ 19} We note that one common pleas court has agreed with White’s
reading of R.C. 2929.06(B), holding that an error occurring during voir dire




                                         6
                               January Term, 2012




“could not have occurred during the sentencing phase.” State v. Jackson, Allen
C.P. No. CR-2002-0011 (Nov. 21, 2006), slip op. at 4, on remand from State v.
Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173.
       {¶ 20} However, it is relevant to note that voir dire is not a substantive
part of trial; rather, it is a mechanism to seat an impartial jury so that the due
process rights of a defendant are protected. Morgan v. Illinois, 504 U.S. 719,
729-730, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992) (explaining that the
Constitution does not provide for voir dire, but only that the defendant be afforded
an impartial jury; voir dire plays a critical function in assuring the criminal
defendant that his constitutional right to an impartial jury will be honored). But
an error in the jury-selection process that is not relevant to a guilt determination
may become relevant at the time of sentencing, as in this case, in which the only
bias issue concerned the juror’s views on the death penalty. Thus, we must
interpret what “in the sentencing phase” means as used in R.C. 2929.06(B). While
we must be mindful that, although criminal statutes are strictly construed against
the state, R.C. 2901.04(A), they should not be given an artificially narrow
interpretation that would defeat the apparent legislative intent. In re Clemons,
168 Ohio St. 83, 87-88, 151 N.E.2d 553 (1958).
       {¶ 21} It is evident that the intent of R.C. 2929.06(B) was to abrogate
Penix and to make all capital offenders whose death sentences are set aside eligible
for a death sentence on resentencing. The statutory language at issue was taken,
with only minor alteration, directly from Penix. Penix states:


       [W]hen a case is remanded to the trial court following vacation of
       the death sentence due to error occurring at the penalty phase of
       the proceeding, the trial court, in resentencing the offender, is
       limited to the sentences of life imprisonment with parole eligibility
       after serving twenty full years of imprisonment or life



                                         7
                            SUPREME COURT OF OHIO




       imprisonment with parole eligibility after serving thirty full years
       of imprisonment.


(Emphasis added.) 32 Ohio St.3d 369, 513 N.E.2d 744, syllabus.
       {¶ 22} R.C. 2929.06(B) was intended to abrogate Penix. The statutory
language was taken (with minor changes) directly from Penix. We may therefore
infer that the statutory language is intended to mean whatever the similar
language in Penix meant. The language in Penix, “error occurring at the penalty
phase of the proceeding,” does not mean only “error occurring during the penalty
phase” but includes all errors that cause the death penalty to be set aside without
affecting the guilt-phase verdict. See State v. Scott, 8th Dist. No. 53120, 1988
WL 132574, *5-8, *24 (Dec. 9, 1988) (where guilt-phase error was harmless as to
conviction but fatal to death sentence, defendant was to be resentenced under
Penix). Therefore, the language of R.C. 2929.06(B) has that meaning also.
       {¶ 23} White’s proposed reading of the statute would create an odd
dichotomy between sentencing-phase errors that invalidate a death sentence
without affecting the conviction and errors having precisely the same effect but
that happen to occur at some other point during the proceedings. Errors of the
first type would be covered by R.C. 2929.06(B), so that a new jury could be
empaneled for resentencing, and the defendant could receive a death sentence on
remand. Errors of the second type would not be covered by R.C. 2929.06(B) and
would entitle the defendant to avoid a death sentence.
       {¶ 24} Such a distinction would be completely arbitrary. White suggests
no reason why the General Assembly would want to treat resentenced capital
offenders differently based on when the error that invalidated the death sentence
occurred.
       {¶ 25} Accordingly, we reject White’s proposed interpretation of R.C.
2929.06(B) and hold that R.C. 2929.06(B) applies where an aggravated-murder




                                        8
                                January Term, 2012




conviction with a death specification has been affirmed, but the death sentence
has been set aside for legal error, when the error infects and thus invalidates the
sentencing phase of the trial.        In such a case, R.C. 2929.06(B) permits
empanelment of a new jury to resentence the offender.
                   II. Retroactive Application of R.C. 2929.06(B)
       {¶ 26} The principal issue in this case is whether the application of R.C.
2929.06(B) to White on remand would violate the Retroactivity Clause of the
Ohio Constitution.
       {¶ 27} Determining whether a statute’s retroactive application violates the
Retroactivity Clause requires a two-step analysis.      First, we must determine
whether the General Assembly intended that the statute apply retroactively. If
not, the statute may not be so applied. See R.C. 1.48. If the General Assembly
has expressly indicated its intention that the statute apply retroactively, we must
determine whether the statute is remedial, in which case retroactive application is
permitted, or substantive, in which case retroactive application is forbidden. See
State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 10, 15;
Bielat v. Bielat, 87 Ohio St.3d 350, 353, 721 N.E.2d 28 (2000); State v. Cook, 83
Ohio St.3d 404, 410-411, 700 N.E.2d 570 (1998); Van Fossen v. Babcock &
Wilcox Co., 36 Ohio St.3d 100, 522 N.E.2d 489 (1988), paragraphs one and two
of the syllabus.
                         A. Intent of the General Assembly
       {¶ 28} In this case, the result of the first step is obvious. The trial court
determined that R.C. 2929.06(E) expressly indicates the intention of the General
Assembly that R.C. 2929.06(B) apply retroactively. Both parties agree with the
trial court’s conclusion. So do we.
       {¶ 29} R.C. 2929.06(E) provides that R.C. 2929.06, as amended, “shall
apply to all offenders who have been sentenced to death for an aggravated murder
that was committed on or after October 19, 1981.” (Emphasis added.) October



                                         9
                             SUPREME COURT OF OHIO




19, 1981, is the effective date of Ohio’s current death-penalty statute, 139 Ohio
Laws, Part I, 1, 18-19, so all prisoners now on death row in Ohio were sentenced
to death for an aggravated murder committed on or after that date. Thus, R.C.
2929.06(E) expressly makes R.C. 2929.06—including R.C. 2929.06(B)—apply to
all offenders sentenced under Ohio’s death-penalty statutes.
       {¶ 30} To ensure that the legislative intent is clear, R.C. 2929.06(E)
further provides that R.C. 2929.06,


       as amended by H.B. 184 * * *, shall apply equally to all such
       offenders sentenced to death prior to, on, or after March 23, 2005,
       including offenders who, on March 23, 2005, are challenging their
       sentence of death and offenders whose sentence of death has been
       set aside, nullified, or vacated by any court of this state or any
       federal court but who, as of March 23, 2005, have not yet been
       resentenced.


(Emphasis added.) By enacting R.C. 2929.06(E), the General Assembly has
clearly expressed its intent that R.C. 2929.06(B) apply retroactively.
                 B. Is R.C. 2929.06(B) Remedial or Substantive?
       {¶ 31} In construing the Retroactivity Clause, we have determined that
“retroactivity itself is not always forbidden by Ohio law.” Bielat, 87 Ohio St.3d
at 353, 721 N.E.2d 28.      Thus, having determined that R.C. 2929.06(B) was
intended to apply retroactively, we proceed to the second step of retroactivity
analysis: determining whether the statute is remedial or substantive.
       1. Does R.C. 2929.06(B) Increase the Punishment for the Offense?
       {¶ 32} If a statute’s intent is punitive in nature, it cannot be considered
merely remedial. See Cook, 83 Ohio St.3d at 418, 700 N.E.2d 570. Thus, Ohio
retroactivity analysis prohibits a retroactive increase in punishment for a criminal




                                         10
                                January Term, 2012




offense. See State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d
110, ¶ 39. White contends that applying R.C. 2929.06(B) retroactively to his case
violates the Retroactivity Clause because it would increase the punishment he
faces for murdering Trooper Gross.
        {¶ 33} We disagree. R.C. 2929.06(B) does not increase the punishment
for aggravated murder. The death penalty for aggravated murder existed on
January 19, 1996, the date of Trooper Gross’s murder. White plainly faces no
greater punishment as a result of R.C. 2929.06(B) than he faced on January 19,
1996.
                   2. Did White Have a Vested or Accrued Right
                        to Be Resentenced Without a Jury?
        {¶ 34} “The prohibition against retroactive laws * * * is a protection for
the individual who is assured that he may rely upon the law as it is written and not
later be subject to new obligations thereby.” Lakengren, Inc. v. Kosydar, 44 Ohio
St.2d 199, 201, 339 N.E.2d 814 (1975).           Thus, “the constitutional test for
substantive legislation focuses on new laws that reach back in time and create
new burdens, deprivations, or impairments of vested rights.” Bielat, 87 Ohio
St.3d at 359, 721 N.E.2d 28.


        [A] statute is substantive when it * * * impairs or takes away
        vested rights; affects an accrued substantive right; imposes new or
        additional burdens, duties, obligations, or liabilities as to a past
        transaction; creates a new right out of an act [that] gave no right
        and imposed no obligation when it occurred; creates a new right;
        [or] gives rise to or takes away the right to sue or defend actions at
        law.


(Citations omitted.) Van Fossen, 36 Ohio St.3d at 107, 522 N.E.2d 489.



                                         11
                            SUPREME COURT OF OHIO




        {¶ 35} An “accrued right” is “a matured right; a right that is ripe for
enforcement.” Garner, Black’s Law Dictionary 1436 (9th Ed.2009). “A right, not
absolute but dependent for its existence upon the action or inaction of another, is
not basic or vested * * *.” Hatch v. Tipton, 131 Ohio St. 364, 2 N.E.2d 875
(1936), paragraph two of the syllabus.
        {¶ 36} On January 19, 1996, the day he murdered Trooper Gross, White
did not have an “absolute” or “matured” right to be resentenced under Penix.
That right could not come into existence until several intervening events took
place. First, White would have to be convicted of aggravated murder with at least
one death specification; then, after the penalty phase, the jury would have to
recommend a death sentence, and the trial judge would have to impose one; then
upon appellate review the death sentence would have to be vacated. Only if all
these conditions came to pass could the question of resentencing arise. Only then
could White’s right to be resentenced in accordance with Penix come into
existence.
        {¶ 37} Ultimately, each of these preconditions for resentencing did come
to pass. But the last of them did not occur until December 7, 2005, the date when
the Sixth Circuit invalidated White’s death sentence. Before that date, White had
no vested or accrued right to be resentenced under Penix. But before December 7,
2005, the General Assembly had not only enacted R.C. 2929.06(B), but had
enacted R.C. 2929.06(E), which made R.C. 2929.06 retroactive to October 19,
1981.   Thus, upon the enactment of R.C. 2929.06(B), the Penix right was
extinguished. When the Sixth Circuit vacated White’s death penalty, there was no
Penix right to vest. For the same reason, White could not plausibly contend that
he relied on Penix when he committed the murder. We conclude that retroactive
application of R.C. 2929.06(B) does not impair any vested or accrued right
belonging to White.




                                         12
                                 January Term, 2012




       3. Would Retroactive Application of R.C. 2929.06(B) Create a New
             Right for the State While Imposing a New Burden on White?
          {¶ 38} The trial court rejected the state’s argument that “the law is not
substantive because the Defendant did not have a ‘vested right’ to be resentenced
to a life sentence * * *.” The court stated: “There need not be a deprivation of a
vested right in order for the law to be deemed a substantive retroactive law. It is
sufficient that the law creates a new right and imposes corresponding burdens.”
          {¶ 39} The trial court concluded that R.C. 2929.06(B) was substantive
because it both created a new right and imposed a corresponding burden on
White. The court identified the new right created by the statute as the state’s right
“to empanel a new jury for death penalty resentencing.” The burden imposed on
White was “the burden to defend a second death penalty proceeding where no
such obligation existed under the prior law.”
          {¶ 40} The trial court’s statement that “[i]t is sufficient that the law
creates a new right and imposes corresponding burdens” is incomplete. We have
held that, to be deemed substantive, a law must impose a new burden on the
complaining party. “[T]he constitutional test for substantive legislation focuses
on new laws that reach back in time and create new burdens, deprivations, or
impairments of vested rights.” Bielat, 87 Ohio St.3d at 359, 721 N.E.2d 28. The
Retroactivity Clause prohibits the General Assembly from “passing new laws to
reach back and create new burdens, new duties, new obligations, or new liabilities
not existing at the time.” Miller v. Hixson, 64 Ohio St. 39, 51, 59 N.E. 749
(1901).
          {¶ 41} The burden identified by the trial court was “the burden to defend a
second death penalty proceeding where no such obligation existed under the prior
law.” But that was no new burden. The burden of defending a death-penalty
proceeding was the same burden to which White was liable on January 19, 1996,
after the murder of Trooper Gross. As the court of appeals aptly observed:



                                          13
                             SUPREME COURT OF OHIO




“Appellee always had a right to have the death penalty determined by a jury and
always had the obligation to defend against it.” 2009-Ohio-3869, ¶ 22.
       {¶ 42} Moreover, “a later enactment will not burden or attach a new
disability to a past transaction or consideration in the constitutional sense, unless
the past transaction or consideration, if it did not create a vested right, created at
least a reasonable expectation of finality.” State ex rel. Matz v. Brown, 37 Ohio
St.3d 279, 281, 525 N.E.2d 805 (1988).
       {¶ 43} In this case, White can point to no event preceding the enactment
of R.C. 2929.06(B) and (E) that entitled him to a reasonable expectation of
finality. White asks us to apply the law as it existed on the date he murdered
Trooper Gross. But in Matz, we held that “the commission of a felony” is not a
transaction that creates a reasonable expectation of finality. “Except with regard
to constitutional protections against ex post facto laws * * *, felons have no
reasonable right to expect that their conduct will never thereafter be made the
subject of legislation.” Id. at 281-282.
       {¶ 44} Because White could have no reasonable expectation of finality
with respect to Penix on the date of the murder, retroactive application of R.C.
2929.06(B) to White’s resentencing does not create a new burden “in the
constitutional sense.” Matz at 281.
                  4. Is a Statute Creating a New Jury-Trial Right
                             Necessarily Substantive?
       {¶ 45} R.C. 2929.06(B) requires the trial court, when resentencing a
capital offender who was tried by a jury and whose death sentence has been set
aside, to empanel a new jury on resentencing if the offender was originally tried
by a jury. In its opinion, the trial court noted that the right to a jury trial was
described as “substantive, not procedural” in Kneisley v. Lattimer-Stevens Co., 40
Ohio St.3d 354, 356, 533 N.E.2d 743 (1988), citing Cleveland Ry. Co. v.
Halliday, 127 Ohio St. 278, 188 N.E. 1 (1933), paragraph one of the syllabus.




                                           14
                                January Term, 2012




       {¶ 46} But the creation of a new right—even a new substantive right—is
not, by itself, enough to support a claim of unconstitutional retroactivity. We
have held that a claim that a statute is substantive, and hence unconstitutionally
retroactive, “cannot be based solely upon evidence that a statute retrospectively
created a new right, but must also include a showing of some impairment, burden,
deprivation, or new obligation accompanying that new right.” Bielat, 87 Ohio
St.3d 350, 721 N.E.2d 28, paragraph two of the syllabus. The court must inquire
“whether the creation of rights in one party reciprocally impaired a right of the
party challenging the retroactive law. In other words, substantive, retroactive
legislation that unconstitutionally creates a new right also impairs a vested right or
creates some new obligation or burden as well.” Id. at 359. This is true even if
the new right itself may be characterized as substantive.
       {¶ 47} Kneisley is not to the contrary.          In Kneisley, we held that
legislation eliminating a party’s accrued right to a jury trial was substantive and
could not be retroactively applied. 40 Ohio St.3d at 356-357, 533 N.E.2d 743.
Kneisley does not stand for the proposition that legislation granting a right to a
jury trial is substantive, where such legislation does not impose a new burden on
the other party. Since the creation of a jury-trial right on remand does not impose
any new burden on White—i.e., any burden that he did not face on January 19,
1996—the substantive nature of the jury-trial right does not itself preclude
retroactive application of R.C. 2929.06(B).
       {¶ 48} To sum up, the application of R.C. 2929.06(B) to White’s
resentencing would not increase White’s potential sentence, impair any of
White’s vested or accrued rights, violate any reliance interest or any reasonable
expectation of finality, or impose any new burdens on him. We therefore hold
that R.C. 2929.06(B) is remedial, not substantive.          Hence, the Retroactivity
Clause of the Ohio Constitution does not bar its retroactive application in cases




                                         15
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where the aggravated murder was committed before its enactment, but the death
sentence was set aside after its enactment.
                             III. The Ex Post Facto Clause
          {¶ 49} Although White’s brief is not completely clear on this point, he
appears to be raising a claim under the Ex Post Facto Clause of the United States
Constitution. Moreover, amicus curiae American Civil Liberties Union of Ohio
Foundation (“ACLU”) expressly contends that applying R.C. 2929.06(B) to
White’s case on remand would violate the Ex Post Facto Clause.                We will
therefore consider this issue.
          {¶ 50} In Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798),
Justice Chase identified the four kinds of laws that come within the Ex Post Facto
Clause:


          1st. Every law that makes an action done before the passing of the
          law, and which was innocent when done, criminal; and punishes
          such action. 2d. Every law that aggravates a crime, or makes it
          greater than it was, when committed. 3d. Every law that changes
          the punishment, and inflicts a greater punishment, than the law
          annexed to the crime, when committed. 4th. Every law that alters
          the legal rules of evidence, and receives less, or different, testimony,
          than the law required at the time of the commission of the offence, in
          order to convict the offender.


(Emphasis sic.) The United States Supreme Court has adopted Justice Chase’s
Calder opinion as an authoritative definition of ex post facto laws. See, e.g.,
Stogner v. California, 539 U.S. 607, 611, 123 S.Ct. 2446, 156 L.Ed.2d 544
(2003); Carmell v. Texas, 529 U.S. 513, 525, 120 S.Ct. 1620, 146 L.Ed.2d 577
(2000).




                                           16
                                 January Term, 2012




       {¶ 51} White contends that R.C. 2929.06(B) increases the punishment for
aggravated murder, which would bring it within the third Calder category.
However, R.C. 2929.06(B) does not increase the punishment for aggravated
murder. “[T]he focus of the ex post facto inquiry is not on whether a legislative
change produces some ambiguous sort of ‘disadvantage,’ * * * but on whether
any such change * * * increases the penalty by which a crime is punishable.”
California Dept. of Corrections v. Morales, 514 U.S. 499, 506, 115 S.Ct. 1597,
131 L.Ed.2d 588 (1995), fn. 3.
       {¶ 52} The death penalty existed for aggravated murder on January 19,
1996, the date of Trooper Gross’s murder. “[I]ts existence on the statute books
provided fair warning as to the degree of culpability which the State ascribed to
the act of murder.” Dobbert v. Florida, 432 U.S. 282, 297, 97 S.Ct. 2290, 53
L.Ed.2d 344 (1977). “This was sufficient compliance with the ex post facto
provision of the United States Constitution.” Id. at 298.
       {¶ 53} In Evans v. Commonwealth, 228 Va. 468, 323 S.E.2d 114 (1984),
the Virginia Supreme Court faced a question almost identical to that presented
here. That court had previously held (as we would later hold in Penix) that the
relevant Virginia statute, as written, required that where a death sentence was
invalidated, the defendant must be resentenced to life imprisonment, because only
the jury that had convicted the offender could sentence him to death. See also
Patterson v. Commonwealth, 222 Va. 653, 660, 283 S.E.2d 212 (1981).
       {¶ 54} Virginia’s legislature subsequently amended the statute to permit a
new jury to fix a penalty on remand. The defendant in Evans (like White) had
committed his crime before the amendment’s adoption, but his death sentence was
vacated after its adoption. On resentencing, the trial court empanelled a new jury
under the amended statute, and Evans was sentenced to death. On appeal, he
claimed that application of the amended statute to him violated the Ex Post Facto
Clause. Id. at 475.



                                         17
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       {¶ 55}    The Virginia Supreme Court rejected Evans’s ex post facto
argument.


       Pertinent to the ex post facto inquiry is whether the defendant had
       “fair warning as to the degree of culpability which the State
       ascribed to the act of murder.” [Dobbert, 432 U.S. at 297, 97 S.Ct.
       2290, 53 L.Ed.2d 344.] Manifestly, Evans had “fair notice” and
       “fair warning” at the time of his 1981 offense that the capital
       murder of a law-enforcement officer was a crime for which the
       death penalty could be imposed.


Evans, 228 Va. at 476, 323 S.E.2d 114.
       {¶ 56} The court rejected Evans’s argument that “a full ‘fair warning’
inquiry must take into account that Evans was also deemed to understand that if
he were to receive a death sentence and if his death sentence were to be set aside,
his punishment would be life imprisonment.” Id. The court explained that “the ex
post facto inquiry focuses on ‘the quantum of punishment attached to the crime’
[Dobbert at 294], of which the defendant had notice at the time of the offense, and
not on adjustments in the method of administering that punishment that are
collateral to the penalty itself.” Evans at 476-477.
       {¶ 57} The United States Court of Appeals for the Fourth Circuit,
considering Evans’s case on habeas corpus review, reached the same conclusion
in Evans v. Thompson, 881 F.2d 117, 119-121 (4th Cir.1989). The amended
statute “neither increased the punishment attached to [the] crime,” nor deprived
the defendant of “a defense available to him when he committed murder.” Id. at
120. It merely changed “the procedures surrounding the imposition of the death
penalty.”   Id. Hence, the state could apply the amended statute on remand
without violating the Ex Post Facto Clause.




                                         18
                                January Term, 2012




       {¶ 58} The second Calder category consists of “[e]very law that
aggravates a crime, or makes it greater than it was, when committed.” (Emphasis
sic.) Id., 3 U.S. at 390, 1 L.Ed. 648. The United States Supreme Court has
explained that the second category applies “where a new law inflicts a punishment
upon a person not then subject to that punishment, to any degree.” (Emphasis
sic.) Stogner v. California, 539 U.S. at 613-614, 123 S.Ct. 2446, 156 L.Ed.2d 544.
       {¶ 59} Stogner involved a statute extending the period of limitations for
prosecution of sex crimes involving children. The state sought to apply the
extended limitations period to a case in which the former limitations period had
expired before the extension was enacted. Stogner held that the extended statute
of limitations fell within the second Calder category, because the extension
“retroactively withdraws a complete defense to prosecution after it has already
attached, and it does so in a manner that allows the State to withdraw this defense
at will and with respect to individuals already identified.” (Emphasis added.)
Stogner at 632. The extension “subjects an individual * * * to prosecution long
after the State has, in effect, granted an amnesty.” Id.
       {¶ 60} Under Penix, a capital defendant whose death sentence was
vacated on appeal had what amounted to a complete defense to the death penalty
on remand, since the Penix rule precluded a death sentence on remand. 32 Ohio
St.3d 369, 513 N.E.2d 744. R.C. 2929.06(B) eliminates that defense.
       {¶ 61} But, unlike the statute in Stogner, the retroactive application of
R.C. 2929.06(B) to White’s case would not withdraw a defense to the death
penalty after that defense has attached. White’s sentence was not set aside until
after R.C. 2929.06(B) took effect. Thus, no Penix defense to the death penalty
had attached by the time R.C. 2929.06(B) became law.
       {¶ 62} Stogner noted that “courts have upheld extensions of unexpired
statutes of limitations” and stated that “our holding today does not affect” such
extensions. (Emphasis sic.) 539 U.S. at 618, 123 S.Ct. 2446, 156 L.Ed.2d 544;



                                         19
                             SUPREME COURT OF OHIO




see also id. at 632 (the state is not prevented “from extending time limits * * * for
prosecutions not yet time barred”). Applying R.C. 2929.06(B) to a defendant
whose case was remanded for resentencing after that provision became law is
analogous to extending an unexpired statute of limitations.
       {¶ 63} Finally, R.C. 2929.06(B) does not fall within the remaining Calder
categories. It neither retroactively criminalizes an innocent action, nor alters the
rules of evidence to the state’s advantage, permitting conviction (or imposition of
the death penalty) on “less, or different, testimony, than the law required at the
time of the commission of the offence.” Calder, 3 U.S. at 390, 1 L.Ed. 648.
       {¶ 64} We hold that R.C. 2929.06(B) does not fall within any of the four
categories of ex post facto laws identified in Calder. Hence, its application in this
case does not violate the Ex Post Facto Clause.
                               IV. Double Jeopardy
       {¶ 65} Amicus curiae Ohio Academy of Criminal Defense Lawyers
(“OACDL”) contends that retroactive application of R.C. 2929.06(B) would
violate the Double Jeopardy Clause. OACDL argues: “In effect, former [R.C.
2929.06] created an irrebuttable presumption that the first jury, in the absence of
the biased juror, would not have recommended death and therefore a life sentence
must be imposed. This is the equivalent of an acquittal of the death penalty that
precludes reinstatement of that punishment.”
       {¶ 66} OACDL’s double-jeopardy argument rests on a misunderstanding
of Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981),
and its progeny. In Bullington, the United States Supreme Court applied double-
jeopardy principles to capital sentencing. Bullington held that in a case where the
jury had recommended a life sentence in the second stage of a bifurcated trial, the
resulting life sentence imposed by the jury in that case deserved the same finality
as an acquittal of the offense, because that recommendation “meant that ‘the jury
has already acquitted the defendant of whatever was necessary to impose the




                                         20
                                January Term, 2012




death sentence.’ ” Id. at 445, quoting State ex rel. Westfall v. Mason, 594 S.W.2d
908, 922 (Mo.1980) (Bardgett, C.J., dissenting).
       {¶ 67} Cases decided since Bullington make clear that “an ‘acquittal’ at a
trial-like sentencing phase * * * is required to give rise to double-jeopardy
protections.” Sattazahn v. Pennsylvania, 537 U.S. 101, 107, 123 S.Ct. 732, 154
L.Ed.2d 588 (2003). Moreover, to raise a double-jeopardy bar to resentencing, an
acquittal on the merits is required. See Arizona v. Rumsey, 467 U.S. 203, 211,
104 S.Ct. 2305, 81 L.Ed.2d 164 (1984); Sattazahn at 107-108. “Only a finding
that the state has failed to prove its case for death constitutes an ‘acquittal of the
death penalty’ for double-jeopardy purposes.” State v. Hancock, 108 Ohio St.3d
57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 150.
       {¶ 68} Thus, a jury’s verdict imposing a life sentence is an on-the-merits
acquittal of the death penalty. Bullington at 444-445. Similarly, where state law
requires a finding of an aggravating circumstance as a prerequisite to a death
sentence, a jury’s refusal to make such a finding is an on-the-merits acquittal of
the death penalty. Rumsey at 211-212. But a life sentence imposed by a judge
solely because the jury has deadlocked, and thus failed to make any findings at
all, is not an acquittal of the death sentence for double-jeopardy purposes.
Sattazahn at 109-110.
       {¶ 69} Similarly, we held in Hancock that a trial court’s refusal to follow
a jury’s death recommendation was not an acquittal of the death sentence because
it was based, not on the trial judge’s weighing of aggravating circumstances and
mitigating factors, but on the judge’s ruling that a procedural error invalidated the
jury’s recommendation, leaving him without authority to impose a death sentence.
Hancock at ¶ 144-149.
       {¶ 70} In this case, as in Hancock, “neither judge nor jury ever found that
the prosecution had failed to prove its case that [the defendant] deserved the death
penalty.”   Id. at   ¶ 145. To the contrary, at White’s original trial, the jury



                                         21
                            SUPREME COURT OF OHIO




recommended a death sentence, and the trial judge imposed it. Thus, both judge
and jury found that the state had proven its case that White deserved the death
penalty. We therefore reject OACDL’s double-jeopardy argument.
       {¶ 71} For the foregoing reasons, we affirm the judgment of the court of
appeals.
                                                               Judgment affirmed.
       O’CONNOR, C.J., and O’DONNELL, CUPP, and MCGEE BROWN, JJ., concur.
       PFEIFER and LANZINGER, JJ., dissent.
                                 ___________________
       LANZINGER, J., dissenting.
       {¶ 72} I respectfully dissent. I would not reach the constitutional question
because the statute does not apply to this case. R.C. 2929.06(B) provides:


              Whenever any court of this state or any federal court sets
       aside, nullifies, or vacates a sentence of death imposed upon an
       offender because of error that occurred in the sentencing phase of
       the trial * * *, the trial court that sentenced the offender 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.


(Emphasis added.)
       {¶ 73} In this case, error occurred during voir dire, and the sentence of
death was not reversed “because of error that occurred in the sentencing phase of
the trial.” Based on the plain language of the statute as informed by the rule of
lenity, R.C. 2929.06(B) does not apply, and there is no need to empanel a new
jury for the potential imposition of a new death sentence. I would therefore




                                        22
                                 January Term, 2012




reverse the judgment of the court of appeals and reinstate the trial court’s order of
resentencing pursuant to the law in effect at the time of his offense.
                             The Sixth Circuit’s Opinion
         {¶ 74} The Sixth Circuit Court of Appeals vacated White’s sentence of
death based on error during the jury-selection phase of the trial because the trial
court had not dismissed a juror who was biased. The court found that “juror
Sheppard was unable to ‘lay aside [her] impression or opinion and render a
verdict based on the evidence presented in court.’ ” (Brackets sic.) White v.
Mitchell, 431 F.3d 517, 542 (6th Cir.2005), quoting Irvin v. Dowd, 366 U.S. 717,
723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).
         {¶ 75} No one has disputed that this error occurred during voir dire, a
portion of the proceedings that is separate from the “trial phase” and “sentencing
phase” of capital case proceedings. See, e.g., State v. Lang, 129 Ohio St.3d 512,
2011-Ohio-4215, 954 N.E.2d 596 (separate analysis of voir dire, trial phase, and
sentencing phase); State v. Gumm, 73 Ohio St.3d 413, 417, 653 N.E.2d 253
(1995) (describing separation of guilt phase from sentencing phase of capital
trial); State v. Biros, 78 Ohio St.3d 426, 443, 678 N.E.2d 891 (1997) (R.C.
2929.03(B)’s prohibition against informing jurors of potential penalties in capital
case applies to guilt phase, not to voir dire).
         {¶ 76} The voir dire error in White’s case did not occur in the sentencing
phase.
                             The Meaning of the Statute
         {¶ 77} We have previously considered the import of the phrase “error that
occurred in the sentencing phase of the trial,” which appears in R.C. 2929.06 as
amended, and we held that the erroneous introduction of excluded evidence into
the jury’s sentencing deliberations fell within that meaning. State v. Hancock,
108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 136.                We therefore
remanded the case for application of the amended statute based on an exact



                                           23
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reading of its language. Now, however, the majority reads out the limiting phrase
of “in the sentencing phase” and holds that R.C. 2929.06(B) permits empanelment
of a new jury for resentencing, which may include a possible reimposition of the
death sentence, “when the error infects and thus invalidates the sentencing phase
of the trial” no matter at what point in the proceedings the error invalidating the
sentence took place, i.e., at any phase of the trial. Paragraph one of the syllabus of
the majority opinion thus flatly contradicts the statute as written.
       {¶ 78} The majority acknowledges that State v. Penix, 32 Ohio St.3d 369,
513 N.E.2d 744 (1987), limited resentencing to penalties other than death
“following vacation of the death sentence due to error occurring at the penalty
phase of the proceeding.” (Emphasis added.) Id. at syllabus. The Penix rule was
favorable to the accused in that death could not be imposed after a remand. As
amended, R.C. 2929.06(B) removes the protection against a death sentence upon
remand, requiring the empaneling of a new jury to consider all possible sentences,
including, in White’s case, death, life imprisonment without parole, life
imprisonment with parole eligibility after 20 full years of imprisonment, and life
imprisonment with parole eligibility after 30 full years of imprisonment, as these
were the penalties available on the date of White’s offense.
       {¶ 79} The majority would “infer” that the General Assembly intended
this statute to apply to all capital offenders whose convictions are upheld but
whose death sentences were set aside. Majority opinion at ¶ 22. But it is well
accepted in determining legislative intent that a court must first look to the
language of the statute itself. Provident Bank v. Wood, 36 Ohio St.2d 101, 105,
304 N.E.2d 378 (1973). “If the meaning of the statute is unambiguous and
definite, it must be applied as written and no further interpretation is necessary.”
State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d
543, 545, 660 N.E.2d 463 (1996). It is also well settled that to determine the
intent of the General Assembly, “ ‘[i]t is the duty of this court to give effect to the




                                          24
                                January Term, 2012




words used [in a statute], not to delete words used or to insert words not used.’ ”
(Emphasis sic.) Bernardini v. Conneaut Area City School Dist. Bd. of Edn., 58
Ohio St.2d 1, 4, 387 N.E.2d 1222 (1979), quoting Columbus-Suburban Coach
Lines v. Pub. Util. Comm., 20 Ohio St.2d 125, 127, 254 N.E.2d 8 (1969).
       {¶ 80} Bearing these principles in mind, it is improper for this court to
insert words into a clear statute. R.C. 2929.06(B) applies only when a death
sentence is overturned “because of error that occurred in the sentencing phase of
the trial.” The majority rewrites the statute, broadening its scope based upon an
inference regarding the General Assembly’s intent. I would hold that “sentencing
phase” means “sentencing phase.” This straightforward interpretation is not “an
artificially narrow interpretation that would defeat the apparent legislative intent,”
as the majority terms it. Majority opinion at ¶ 20. Instead, it is taking the
legislature at its own word.
                                 The Rule of Lenity
       {¶ 81} With respect to criminal statutes, there is an additional concern.
Even if there were an ambiguity, meaning two reasonable ways of reading the
statute, R.C. 2901.04 provides that we must read the language of the relevant
statute not in favor of the government, but in favor of the accused. This rule of
lenity, as codified, states that “[e]xcept as otherwise provided in division (C) or
(D) of this section, sections of the Revised Code defining offenses or penalties
shall be strictly construed against the state, and liberally construed in favor of the
accused.” R.C. 2901.04(A). In other words, penal statutes may not be extended
by implication to cases not falling within their terms. We must be particularly
mindful of the rule of lenity in death-penalty cases, for as is commonly
acknowledged, death is different.
       {¶ 82} We applied this rule in a case in which we were asked to consider
whether a juvenile who was charged with aggravated murder and an aggravating-
circumstances specification but was ineligible for the death penalty due to age



                                         25
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was entitled to the additional rights afforded to capital defendants.       State v.
Harwell, 102 Ohio St.3d 128, 2004-Ohio-2149, 807 N.E.2d 330. The state relied
upon dicta from this court that “R.C. 2901.02(B) was amended effective April 4,
1984 so that only an offense for which death may be imposed as a penalty is a
capital offense.” State ex rel. Corrigan v. McMonagle, 12 Ohio St.3d 15, 16, 465
N.E.2d 382 (1984), fn. 1. We recognized that although the statement may have
aptly characterized what the General Assembly intended, it did not characterize
what the General Assembly enacted. Harwell at ¶ 6. As in all other matters
involving R.C. Title 29, our analysis is to be guided by the General Assembly’s
overriding concern that criminal statutes shall be strictly construed against the
state and liberally construed in favor of the accused. Id. We held that R.C.
2901.04(B) plainly requires that an indictment charging an aggravating-
circumstances specification pursuant to R.C. 2929.04(A) must be regarded as
charging a capital offense. Id. at ¶ 7-10. We rejected the state’s position that the
additional protections afforded a capital defendant attach only when there is an
actual possibility of a death sentence. To accept this proposition “would turn the
legislative imperative of construing R.C. Title 29 strictly against the state and
liberally in favor of the accused on its head.” Id. at ¶10.
       {¶ 83} In my view, this is exactly what the majority has done in affirming
the judgment of the court of appeals.
       {¶ 84} In another case, we vacated one of two death penalties because of a
voir dire error and returned the matter to the trial court for resentencing. State v.
Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 178. Although
we upheld the aggravated-murder conviction and specification in Jackson,
because the trial court abused its discretion by refusing defense counsel’s requests
to advise prospective jurors that one of the murdered victims was a three-year-old
child and by refusing to allow voir dire on possible bias stemming from that fact,




                                          26
                                 January Term, 2012




we remanded the cause for “resentencing consistent with R.C. 2929.06.” Id. at
¶ 62.
         {¶ 85} Upon remand, the trial court concluded that amended R.C. 2929.06
did not authorize the empaneling of a new jury to consider reimposition of a death
sentence because the error had not occurred at the sentencing phase of the trial:


         Certainly, paragraph (B) does not clearly apply. Paragraph (B)
         applies when a sentence of death is set aside, nullified, or vacated
         “because of error that occurred in the sentencing phase of the trial
         and if division (A) of this section does not apply.” If the error
         occurred during voir dire, which was before the sentencing phase,
         the error could not have occurred during the sentencing phase.


(Emphasis sic.) State v. Jackson, Allen C.P. No. CR-2002-0011, at 4 (Nov. 21,
2006).
         {¶ 86} The trial court concluded that


         under R.C. 2929.06(A), a resentencing hearing is necessary
         wherein the Court shall impose upon the offender one of the
         sentences of life imprisonment that are available under division
         (D) of section 2929.03 * * * at the time the offender committed the
         offense for which the sentence of death was imposed.


Id. at 6. I believe that the trial court in Jackson correctly read the statute as it was
written.
                                     Conclusion
         {¶ 87} The date of White’s offense was January 19, 1996. We have held
that R.C. 2929.06(B) could not be applied to a case involving an aggravated



                                          27
                            SUPREME COURT OF OHIO




murder committed before October 16, 1996, because the General Assembly had
not expressly made R.C. 2929.06(B) retroactive. State v. Williams, 103 Ohio
St.3d 112, 2004-Ohio-4747, 814 N.E.2d 818, syllabus. The new amendment,
effective March 23, 2005, applies only to certain offenders sentenced to death for
an aggravated murder that was committed on or after October 19, 1981. R.C.
2929.06(E). The class of offenders to whom R.C. 2929.06 applies by its terms are
those whose sentence of death was vacated because of error that occurred in the
sentencing phase of the trial. Because I would hold that the amended statute does
not apply to White, I dissent and would hold that he must be sentenced under the
version of R.C. 2929.06(B) that was in effect on January 19, 1996, the date of his
offense.
       PFEIFER, J., concurs in the foregoing opinion.
                              __________________
       Ramona Francesconi Rogers, Ashland County Prosecuting Attorney, and
Paul T. Lange, Assistant Prosecuting Attorney, for appellee.
       Timothy Young, Ohio Public Defender, and Nathan A. Ray and Randall
L. Porter, Assistant Public Defenders, for appellant.
       Law Offices of Michael J. Benza and Michael J. Benza, urging reversal
for amicus curiae Ohio Association of Criminal Defense Lawyers.
       Carrie L. Davis and James L. Hardiman, urging reversal for amicus curiae
American Civil Liberties Union of Ohio Foundation.
       Ron O’Brien, Franklin County Prosecuting Attorney, and Steven L.
Taylor, Chief Counsel, Appellate Division, urging affirmance for amicus curiae
Franklin County Prosecuting Attorney Ron O’Brien.
       Michael DeWine, Attorney General, Alexandra T. Schimmer, Chief
Deputy Solicitor General, and Emily S. Schlesinger, Deputy Solicitor, urging
affirmance for amicus curiae Ohio Attorney General.
                            ______________________




                                         28
