[Cite as State v. Chinn, 2020-Ohio-43.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                 :
                                               :
         Plaintiff-Appellee                    :   Appellate Case No. 28345
                                               :
 v.                                            :   Trial Court Case No. 1989-CR-768
                                               :
 DAVEL V. CHINN                                :   (Criminal Appeal from
                                               :   Common Pleas Court)
         Defendant-Appellant                   :
                                               :

                                          ...........

                                          OPINION

                           Rendered on the 10th day of January, 2020.

                                          ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

MELISSA JACKSON, Atty. Reg. No. 0077833 and RACHEL TROUTMAN, Atty. Reg. No.
0076741, Office of the Ohio Public Defender, 250 East Broad Street, Suite 1400,
Columbus, Ohio 43215
     Attorneys for Defendant-Appellant

                                          .............



TUCKER, J.
                                                                                          -2-


       {¶ 1} Defendant-appellant Davel Chinn appeals from an order of the Montgomery

County Common Pleas Court denying his motion for a new sentencing phase of his capital

trial. For the reasons set forth below, we affirm.



                         I.      Facts and Course of the Proceedings

       {¶ 2} In March 1989, Chinn was indicted for the aggravated murder of Brian Jones.

Count One of the indictment charged Chinn with purposely causing the death of Jones

during the commission of an aggravated robbery. That count also carried the following

three death penalty specifications: 1) that the aggravated murder was committed for the

purpose of escaping detection, apprehension, trial, or punishment for another offense

(R.C. 2929.04(A)(3)), 2) that the aggravated murder occurred during the course of an

aggravated robbery and either the offender was the principal offender in the commission

of the aggravated murder or, if not the principal offender, committed the aggravated

murder with prior calculation and design (R.C. 2929.04(A)(7)), and 3) that the offense was

committed during the course of a kidnapping and either the offender was the principal

offender in the commission of the aggravated murder or, if not the principal offender,

committed the aggravated murder with prior calculation and design (R.C. 2929.04(A)(7)).

Chinn was also indicted on three counts of aggravated robbery (Counts Two, Four, and

Five), one count of kidnapping (Count Three), and one count of abduction (Count Six).

Each count of the indictment carried a firearm specification, and counts two through six

carried a prior felony specification.

       {¶ 3} Following the guilt phase of the trial, a jury convicted Chinn on all counts and
                                                                                          -3-


specifications tried before it.1 After the sentencing phase, the jury recommended the

death penalty for the aggravated murder. The court accepted the recommendation and

imposed the sentence of death for that count. Chinn appealed. This court affirmed the

conviction, but reversed the death penalty sentence and remanded for the purpose of

resentencing on the jury’s recommendation of death for the aggravated murder

conviction. State v. Chinn, 2d Dist. Montgomery 11835, 1991 WL 289178, *1 (Dec. 27,

1991). Specifically, we found that the trial court erred in performing its independent

review because it failed to merge the three aggravating circumstances for the purpose of

sentencing. Id. at *22. We also found, based upon the holding in State v. Penix, 32

Ohio St.3d 369, 512 N.E.2d 744 (1987), that the trial court erred when it relied upon both

the “principal offender” and “prior calculation and design” culpability factors of R.C.

2929.04(A)(7), when the statute provides that these factors apply only in the alternative.

Id. at *23. We thus concluded that these two sentencing errors “impermissibly tipped the

scales in favor of death.” Id.

       {¶ 4} With regard to curing these errors, we stated:

              The State argues that these errors may be cured by our independent

       reweighing of the aggravating circumstance and mitigating factors pursuant

       to R.C. 2929.05(A). Chinn argues that we are required to remand the case

       for resentencing, but that the trial court would be constrained from

       reimposing the death penalty. We do not agree with either party.

              The State is correct in its assertion that, normally, the failure to



1
  Chinn was also found guilty of the prior felony specifications, which were tried separately
to the court.
                                                                                   -4-


consider certain mitigating factors or to merge multiple aggravating

circumstances into one can be cured by our independent review.             Our

independent review may also cure the failure of the trial court to specify the

reasons why the aggravating circumstances outweigh the mitigating factors.

However, the Supreme Court has specifically stated that if the sentencer

considered the defendant to be both the principal offender and to have

committed the murder with prior calculation and design, then the error was

prejudicial and “could not simply be corrected in the appellate review

process pursuant to R.C. 2929.05.” That is the exact error here. Thus,

Chinn's death sentence must be vacated and the issue of sentencing be

remanded due to this error alone.

       Because the trial court must reweigh the mitigating factors and

aggravating circumstances during the resentencing process, and as the

procedural posture of this case has already allowed us to review these

issues, justice requires the trial court be instructed as to the proper factors.

Therefore, we have addressed the issues of merger and residual doubt so

that Chinn's resentencing might be free of the errors that occurred in its

predecessor.

       In general, when a jury trial has culminated in a sentence of death a

reviewing court that finds prejudicial error must remand the issue of

sentencing but prohibit the trial court from reimposing capital punishment.

Penix, supra, at syllabus. However, this general rule is not applicable to

the instant case. The rationale for prohibiting a reimposition of the death
                                                                                       -5-


       penalty on remand is that R.C. 2929.03(D)(2) requires that “the decisions

       leading to a death sentence must be made by the same jury that convicted

       the offender in the guilt phase.” However, the errors in the instant case

       were committed by the trial court in its independent evaluation, not by the

       jury.   As opposed to the insurmountable problems associated with

       reassembling the exact same jury, there is no difficulty in the instant case

       in remanding this issue to the same judge who presided over Chinn's

       conviction.

               ***

               Accordingly, we will vacate Chinn's death sentence and remand the

       issue of sentencing to the trial court so that it may weigh the proper

       mitigating factors against the single aggravating circumstance. Pursuant

       to this reevaluation, the trial court may impose whatever lawful punishment

       it deems appropriate, including but not limited to a sentence of death.

(Internal citations omitted.) Id. at *23-24.

       {¶ 5} On remand, the trial court again imposed a death sentence.          However,

because Chinn was not present when the trial court imposed the sentence, we again

reversed and remanded for new sentencing. State v. Chinn, 2d Dist. Montgomery No.

15009, 1996 WL 338678 (June 21, 1996). On remand, the trial court again imposed a

sentence of death. Following Chinn’s appeal, this court affirmed the sentence. State v.

Chinn, 2d Dist. Montgomery No. 16206, 1997 WL 464736 (Aug. 15, 1997). Chinn then

filed an appeal with the Ohio Supreme Court, which also affirmed the conviction and

sentence. State v. Chinn, 85 Ohio St.3d 548, 709 N.E.2d 1166 (1999).
                                                                                               -6-


         {¶ 6} Chinn also filed a petition for postconviction relief, which the trial court denied

without a hearing. This court reversed and remanded for an evidentiary hearing. State

v. Chinn, 2d Dist. Montgomery No. 16764, 2000 WL 1458784 (Aug. 21, 1998). On

remand, the trial court conducted a hearing and again denied the petition. This court

affirmed. State v. Chinn, 2d Dist. Montgomery No. 18535, 2001 WL 788402 (July 13,

2001).

         {¶ 7} In January 2017, Chinn filed a motion for leave to file a motion for a new

mitigation trial. The trial court granted the motion for leave and permitted Chinn to file

the motion for new trial. Following briefing by both parties, the trial court denied the

motion. Chinn now appeals.



                                            II.     Analysis

         {¶ 8} Chinn’s sole assignment of error states as follows:

         THE TRIAL COURT ERRED WHEN IT DENIED CHINN’S MOTION FOR A

         NEW MITIGATION TRIAL.

         {¶ 9} Chinn claims that the trial court erred by denying his Crim.R. 33 motion for a

new trial on sentencing.

         {¶ 10} We review a trial court's denial of a Crim.R. 33 motion for a new trial under

an abuse of discretion standard. State v. Warren, 2017-Ohio-853, 86 N.E.3d 728, ¶ 44

(2d Dist.).     To constitute an abuse of discretion, the trial court's ruling must be

“unreasonable, arbitrary or unconscionable.” An “abuse of discretion occurs when a

decision is grossly unsound, unreasonable, illegal, or unsupported by the evidence.”

State v. Cassel, 2016-Ohio-3479, 66 N.E.3d 318, ¶ 13 (2d Dist.), quoting State v. Nichols,
                                                                                         -7-


195 Ohio App.3d 323, 2011-Ohio-4671, 959 N.E.2d 1082, ¶ 16 (2d Dist.).

       {¶ 11} Crim.R. 33 governs motions for new trial and sets forth the following six

grounds for securing a new trial: (1) irregularity in the proceedings that deprived the

defendant of a fair trial; (2) misconduct of the jury, prosecutor, or a state's witness; (3)

accident or surprise that ordinary prudence would not have guarded against; (4) the

verdict was not sustained by sufficient evidence; (5) legal error during trial; or (6) new

evidence material to the defense has been discovered that could not have been

discovered with reasonable diligence in time for trial. Crim.R. 33(A).

       {¶ 12} In his motion, Chinn claimed he was entitled to a new sentencing trial due

to an irregularity in the proceedings, insufficient evidence, and an error of law occurring

at trial. Chinn’s arguments that the trial court erred by denying his motion for new trial

center upon his claim that the holding in Hurst v. Florida, __ U.S. __, 136 S.Ct. 616, 193

L.Ed.2d 504 (2016), which found that Florida's capital sentencing scheme violated the

Sixth Amendment, is applicable to this case.

       {¶ 13} The Hurst decision stemmed from the earlier Sixth Amendment cases of

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring

v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). In Apprendi, the

Supreme Court held that the Sixth Amendment right to a jury extends to determinations

of guilt and to “any fact that increases the penalty for a crime beyond the prescribed

statutory maximum.” Apprendi at 490. In Ring, the Court held that the right to a jury

includes the finding of a statutory aggravating circumstance in a capital case, which is “

‘the functional equivalent of an element of a greater offense.’ ” Ring at 609, quoting

Apprendi at 494, fn. 19.
                                                                                       -8-


       {¶ 14} In Hurst, the United States Supreme Court considered the constitutionality

of Florida's capital-punishment scheme, which permitted the jury to render an “ ‘advisory

sentence’ of life or death” without specifying the aggravating circumstances that

influenced its decision. (Citation omitted.) Hurst at 620.   Thereafter, the judge could

impose a sentence of death after conducting an independent weighing of the aggravating

and mitigating circumstances.    Id.   The Florida law limited the jury’s role in capital

sentencing to making an advisory recommendation; a trial court was then free to impose

a death sentence even if the jury recommended against it. Id. at 620. Further, when a

jury did recommend a death sentence, a trial court was not permitted to follow that

recommendation until the judge found the existence of an aggravating circumstance. Id.

at 620.   The Supreme Court determined that Florida's death penalty scheme violated

the Sixth Amendment because it required the trial judge, not the jury, to find an

aggravating circumstance that made a defendant death penalty eligible; thus, the jury was

removed from the critical finding necessary for imposition of the death penalty. Id. at

622.

       {¶ 15} Chinn asserts that, under the circumstances of his case, Hurst is implicated

because the jury, during the trial’s sentencing phase, did not consider the merged

aggravating circumstance when it reached the conclusion that the aggravating

circumstances (not yet merged) outweighed the mitigating factors. Instead, the trial

court, upon remand, considered the merged aggravating circumstance against the

mitigating factors. Thus, by Chinn’s reckoning, the trial court, not the jury, made the

factual conclusion necessary for the imposition of the death penalty.

       {¶ 16} However, the Ohio Supreme Court has ruled that Ohio’s capital sentencing
                                                                                           -9-


scheme does not suffer from the same constitutional flaws as the Florida law at issue in

Hurst. See State v. Belton, 149 Ohio St. 3d 165, 2016-Ohio-1581, 74 N.E.3d 319 (2016);

State v. Mason, 153 Ohio St. 3d 476, 2018-Ohio-1462, 108 N.E.3d 56 (2018). “When

an Ohio capital defendant elects to be tried by a jury, the jury decides whether the offender

is guilty beyond a reasonable doubt of aggravated murder and ̶ unlike the juries in Ring

and Hurst ̶ the aggravating-circumstance specifications for which the offender was

indicted.” Mason at ¶ 20, citing R.C. 2929.03(B). “Then the jury ̶ again unlike in Ring

and Hurst ̶ must [during the sentencing phase] ‘unanimously find[ ], by proof beyond a

reasonable doubt, that the aggravating circumstances the offender was found guilty of

committing outweigh the mitigating factors.’ ” Id., citing R.C. 2929.03(D)(2). “An Ohio

jury recommends a death sentence only after it makes this finding.” Id. “And without

that recommendation by the jury, the trial court may not impose the death sentence.” Id.

       {¶ 17} “Because the determination of guilt of an aggravating circumstance [during

the guilty phase] renders the defendant eligible for a capital sentence, it is not possible to

make a factual finding during the sentencing phase that will expose a defendant to greater

punishment.” Belton at ¶ 59. Thus, “Ohio's death-penalty scheme * * * does not violate

the Sixth Amendment” because it “requires the critical jury findings that were not required

by the laws at issue in Ring and Hurst.” Mason at ¶ 21, citing R.C. 2929.03(C)(2).

       {¶ 18} Further, the weighing of aggravating circumstances and mitigating factors

that occurs in the sentencing phase “is not a fact-finding process subject to the Sixth

Amendment.” Mason at ¶ 29, quoting Belton at ¶ 60. “The Sixth Amendment was

satisfied once the jury found [the defendant] guilty of aggravated murder and a felony-

murder capital specification.” Id.
                                                                                          -10-


         {¶ 19} Turning to the pending case, the jury, not the trial court, made the factual

determination that Chinn was guilty beyond a reasonable doubt of the aggravating

circumstances. It was this finding which made Chinn eligible for the death penalty.

Under Mason, this jury determination satisfied the Sixth Amendment’s requirement that a

jury make the factual determination triggering the death penalty sentencing enhancement.

Thus, the trial court’s sentencing phase evaluation of the merged aggravating

circumstance against the mitigating factors does not implicate the Sixth Amendment.

         {¶ 20} Also of importance, neither the Ohio Supreme Court nor the United States

Supreme Court has held Hurst to be retroactive in collateral review cases. Indeed, the

Sixth Circuit Court of Appeals and Ohio’s Eleventh Appellate District have held that Hurst

does not apply retroactively to such cases.         In re Coley, 871 F.3d 455, 457 (6th

Dist.2017); State v. Lorraine, 2018-Ohio-3325, 120 N.E.3d 33, ¶ 38 (11th Dist.). See

also State v. Landrum, 4th Dist. Ross No. 17CA3607, 2018-Ohio-1280, ¶ 30 (Harsha, J.,

concurring); Gapen v. Robinson, S.D.Ohio No. 3:08-CV-280, 2017 WL 3524688 (Aug. 14,

2017).

         {¶ 21} We conclude that Chinn has not demonstrated a right to have the holding

in Hurst applied retroactively to his case. We further conclude that even if Hurst did

apply, Chinn has not demonstrated the type of Sixth Amendment violation found in that

case. Finally, we note that both this court and the Ohio Supreme Court found sufficient

evidence to support the conviction and death penalty sentence for aggravated murder in

Chinn’s case. Thus, Chinn has failed to establish a right to a new sentencing phase of

trial due to insufficient evidence under Crim.R. 33(A)(4). Further, other than the alleged

Hurst errors, Chinn has not identified any other irregularities or errors of law that occurred
                                                                                           -11-


at trial, and thus, has not established the right to a new trial under Crim.R. 33(A)(1) or (5).

       {¶ 22} Based upon the foregoing, Chinn’s sole assignment of error is overruled.



                                        III.    Conclusion

       {¶ 23} Chinn’s sole assignment of error being overruled, the judgment of the trial

court is affirmed.



                                       .............



FROELICH, J. and HALL, J., concur.



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Mathias H. Heck, Jr.
Andrew T. French
Melissa Jackson
Rachel Troutman
Hon. Barbara P. Gorman
