      [Cite as State v. Landrum, 2018-Ohio-1280.]


                       IN THE COURT OF APPEALS OF OHIO
                          FOURTH APPELLATE DISTRICT
                                ROSS COUNTY

STATE OF OHIO,                                      :
                                                    :   Case No. 17CA3607
      Plaintiff-Appellee,                           :
                                                    :
      vs.                                           :   DECISION AND JUDGMENT
                                                    :   ENTRY
LAWRENCE ALFRED LANDRUM                             :
                                                    :
      Defendant-Appellant.                          :   Released: 03/29/18

                                       APPEARANCES:

Gerald W. Simmons, Cincinnati, Ohio, Timothy Young, Ohio State Public
Defender, and Randall L. Porter, Assistant Ohio State Public Defender, Columbus,
Ohio, for Appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela C. Wells,
Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.


McFarland, J.

      {¶1} Lawrence A. Landrum appeals the trial court’s June 14, 2017 Decision

& Order which overruled his motion for new trial and new sentencing hearing

pursuant to Crim.R. 33. Having reviewed the record, we find the trial court did not

abuse its discretion in overruling Appellant’s motion as it was untimely filed

pursuant to Crim.R. 33. Although the trial court addressed the merits of

Appellant’s constitutional argument, we affirm the trial court's judgment
Ross App. No. 17CA3607                                                        2

overruling his motion for new trial on different grounds. Accordingly, we overrule

his sole assignment of error and affirm the judgment of the trial court.

                                       FACTS

      {¶2} A jury convicted Appellant in February 1986 of aggravated murder and

aggravated burglary of Harold White, an 84 year-old victim. The jury found two

death penalty specifications: (1) aggravated murder to escape detection for

burglary; and, (2) being the principal offender in the aggravated murder while

committing or attempting aggravated burglary. Following a sentencing hearing,

the jury recommended death, and the trial court sentenced Appellant to death.

Appellant pursued a direct appeal with this court. State v. Landrum, 4th Dist. Ross

No. 1330, 1989 WL 4244 (Jan. 12, 1999) (Landrum I). In Landrum I, he set forth

29 assignments of error; however, we found no merit to his arguments and

affirmed the judgment of the trial court.

      {¶3} On direct appeal to the Supreme Court of Ohio, State v. Landrum, 53

Ohio St.3d 107, 559 N.E.2d 710 (1990) (Landrum II), Appellant raised 31

propositions of law. Landrum II contains a complete recitation of the facts

adduced as evidence at his jury trial at 53 Ohio St.3d 108-109. The Supreme Court
Ross App. No. 17CA3607                                                                                      3

of Ohio affirmed Appellant’s convictions with Justice Brown and Wright

concurring in part, and dissenting in part. 1

         {¶4} In May 1991, the Supreme Court of Ohio granted a stay of execution to

enable Appellant to file a petition for post-conviction relief. State v. Landrum, 60

Ohio St.3d 706, 573 N.E.2d 668. In May 1996, Appellant filed his petition

pursuant to R.C. 2953.21, setting forth 45 claims for relief. See State v. Landrum,

4th Dist. Ross No. 98CA2401, 1999 WL 22626, (Jan. 11, 1999), (Landrum III).

Appellant requested an evidentiary hearing. The State of Ohio filed a motion for

judgment, alleging that no evidentiary hearing was required and addressing each of

Appellant’s claims for relief. On December 30, 1997, the trial court entered

findings of fact and conclusions of law addressing and rejecting each of

Appellant’s claims for relief. The trial court dismissed Appellant’s petition for

post-conviction relief without a hearing. In Landrum III we found no merit to his

assertion that the trial court erred by dismissing his claims and by denying his

petition without an evidentiary hearing. We affirmed the trial court’s judgment.

         {¶5} In September 1998, Appellant filed an App.R. 26(B) application to

reopen his appeal in the court of appeals, asserting that he had received ineffective

assistance of counsel in his original appeal. In April 1999, this court rejected his

1
  Justice Brown wrote: “I agree with the majority that appellant’s convictions should be affirmed. However, I must
respectfully dissent from the judgment so far as it upholds the sentence of death.” Justice Brown disagreed that the
Court’s independent reweighing of the aggravating circumstances against the mitigating factors in consideration of
the appropriateness of the death penalty determination cured any prejudice to appellant, given the exclusion of
testimony “critical to appellant’s mitigation effort.” Id. at 53 Ohio St.3d 107, 126-127.
Ross App. No. 17CA3607                                                           4

application as untimely. In State v. Landrum, 87 Ohio St.3d 315, 1999-Ohio-71,

720 N.E.2d 524, (Landrum IV), the Supreme Court of Ohio agreed with this court’s

decision that Appellant’s application to reopen his appeal was untimely under

App.R. 26 (B) and that Appellant had failed to show “good cause” for the untimely

filing.

          {¶6} Appellant next filed a petition for a writ of habeas corpus in May 1996,

and an amended petition in May 1999, and a second amended petition in August

2000. Appellant moved to expand the record to include an affidavit in support of

his position that he did not procedurally default on his claim of ineffective

assistance of appellate counsel. The magistrate judge ultimately ruled in part that

Ohio App.R. 26(B) was not so firmly established in Ohio’s capital cases as to

prevent a merits review of Appellant’s ineffective assistance of counsel claims. See

Landrum v. Anderson, 185 F. Supp.2d 868, 873 (S.D. Ohio 2002) (Landrum V).

          {¶7} In 2005, a magistrate judge recommended granting Appellant a

conditional writ on the basis of one of his ineffective assistance of counsel claims.

Landrum v. Anderson, No. 1:96-CV-641, 2005 WL 3965399 (S.D. Ohio Nov. 1,

2005) (Landrum VI). In 2006, the district court adopted the magistrate judge’s

report and recommendation over the Warden’s objections. Landrum v. Anderson,

No. 1:96-CV-641, 2006 WL 1027738 (S.D. Ohio Apr. 17, 2006) (Landrum VII).

In Landrum v. Mitchell, 625 F.3d 905 (6th Circuit, 2010), (Landrum VIII), the
Ross App. No. 17CA3607                                                         5

circuit appeals judge reversed the district court’s grant of habeas corpus on the

basis of ineffective assistance of counsel.

      {¶8} On January 12, 2017, Appellant filed a motion for leave to file a

motion for a new mitigation trial and motion for new mitigation trial. Based on the

United States Supreme Court decision in Hurst v. Florida, 136 S.Ct. 616, 84

USLW 4032 (2016). Appellant’s motion requested leave to file his motion for new

mitigation trial because, under Crim.R. 33(A)(1)(4), and (5), there was an

irregularity in the proceedings; the verdict was contrary to law; and an error of law

occurred at Appellant’s trial. Appellant cited Hurst as controlling authority that

the Ohio death penalty statutes under which he was sentenced in 1986 were

unconstitutional. On February 16, 2017, the State filed a response to Appellant’s

motion for leave and motion for new trial. On March 3, 2017, Appellant filed a

reply in support of his motion for leave.

      {¶9} On June 14, 2017, the trial court found that Appellant had failed to

provide any evidence that the sentencing recommendation was conducted in a

manner inconsistent with the Ohio death penalty statutes. Appellant’s motion for a

new trial was found not well taken and overruled. This timely appeal followed.

                            ASSIGNMENT OF ERROR

      “I. THE TRIAL ERRED WHEN IT DENIED LANDRUM’S
      MOTION FOR A NEW TRIAL.”
Ross App. No. 17CA3607                                                            6

                             STANDARD OF REVIEW

      {¶10} Trial courts ordinarily possess broad discretion when ruling on a

defendant's motion for leave to file a new trial motion. State v. Bennett, 4th Dist.

Scioto No. 16CA3765, 2017-Ohio-574, ¶ 9; State v. Waddy, 10th Dist. Franklin

No. 15AP–397, 2016–Ohio–4911, ¶ 20; State v. Hill, 8th Dist. Cuyahoga No.

102083, 2015–Ohio–1652, ¶ 16, citing State v. McConnell, 170 Ohio App.3d 800,

2007–Ohio–1181, 869 N.E.2d 77, ¶ 19 (2nd Dist.); State v. Clumm, 4th Dist.

Athens No. 08CA32, 2010–Ohio–342, ¶ 14; State v. Pinkerman, 88 Ohio App.3d

158, 160, 623 N.E.2d 643 (4th Dist.1993). An “abuse of discretion” means that the

court acted in an “ ‘unreasonable, arbitrary, or unconscionable’ ” manner or

employed “ ‘a view or action that no conscientious judge could honestly have

taken.’ ” State v. Kirkland, 140 Ohio St.3d 73, 2014–Ohio–1966, 15 N.E.3d 818,

¶ 67, quoting State v. Brady, 119 Ohio St.3d 375, 2008–Ohio–4493, 894 N.E.2d

671, ¶ 23. A trial court generally abuses its discretion when it fails to engage in a

“ ‘sound reasoning process.’ ” State v. Morris, 132 Ohio St.3d 337, 2012–Ohio–

2407, 972 N.E.2d 528, ¶ 14, quoting AAAA Ents., Inc. v. River Place Community

Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990).

Additionally, “[a]buse-of-discretion review is deferential and does not permit an

appellate court to simply substitute its judgment for that of the trial court.” State v.

Darmond, 135 Ohio St.3d 343, 2013–Ohio–966, 986 N.E.2d 971, ¶ 34. We are
Ross App. No. 17CA3607                                                          7

mindful, however, that no court has the authority, within its discretion, to commit

an error of law. State v. Boone, 2017-Ohio- 843, 85 N.E.3d 1227, (10th Dist.), ¶ 9,

citing State v. Moncrief, 10th Dist. No. 13AP-391, 2013-Ohio-4571, ¶ 7. See also

2-J Supply Co. Inc. V. Garrett & Parker, LLC, 4th Dist. Highland No. 13CA29,

2015-Ohio-2757, ¶ 9.

                                 LEGAL ANALYSIS

         {¶11} Appellant frames his issue presented for review as follows: Is Ohio’s

death penalty scheme unconstitutional under Hurst v. Florida, 136 S.Ct. 616, 84

USLW 4032 (2016). In Hurst, the United States Supreme Court, Justice

Sotomayor, held that Florida’s capital sentencing scheme, under which an advisory

jury makes a recommendation to a judge, and the judge makes the critical findings

needed for imposition of a death sentence, violates the Sixth Amendment right to

trial. Appellant argues Ohio’s capital sentencing statute, R.C. 2929.03, like the

unconstitutional Florida statute, vests sentencing authority in the trial judge who

makes specific, independent findings that are required to sentence a defendant to

death. Appellant concludes that Ohio’s sentencing scheme is “remarkably similar”

to the pre-Hurst Florida statute and suffers the same constitutional deficiencies.

For these reasons, Appellant requests that the decision of the trial court be

reversed, his sentence be vacated, and the matter be remanded for a new mitigation

trial.
Ross App. No. 17CA3607                                                           8

      {¶12} However, in response, Appellee begins by pointing out Appellant’s

motion for leave to file a motion for new trial was filed on January 12, 2017.

Appellee asserts Appellant’s motion is untimely pursuant to Crim.R.33 (B).

Appellee directs our attention to the Seventh District’s decision in State v. Mundt,

7th Dist. Noble No. 17NO0446, 2017-Ohio-7771.

      {¶13} In Mundt, the appellate court found that despite the Hurst decision,

Mundt was capable of raising the same argument prior to Hurst relying on other

cases for support, such as Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348

(2000), and Ring v. Arizona, 536 U.S. 583, 122 S. Ct. 2428 (2002). The appellate

court found Mundt’s motion for leave to file a motion for new trial was untimely.

Appellee argues Appellant, like Mundt, filed his motion a year after Hurst was

decided and that a year was not a reasonable time to evaluate Hurst and seek relief

pursuant to its holding. Appellee concludes that Appellant has failed to show he

was unavoidably prevented from filing his motion prior to January 2017.

      {¶14} We begin by reviewing the applicable rule. Crim.R. 33, new trial,

provides in pertinent part:

      “(A) Grounds. A new trial may be granted on motion of the defendant
      for any of the following causes affecting materially his substantial
      rights:

      (1) Irregularity in the proceedings, or in any order or ruling of the
          court, or abuse of discretion by the court, because of which the
          defendant was prevented from having a fair trial;
Ross App. No. 17CA3607                                                           9

      ***

      (4) That the verdict is not sustained by sufficient evidence or is
          contrary to law * * *

      (5) Error of law occurring at the trial * * *.

      (B) Motion for New Trial; Form, Time. Application for a new trial
      shall be made by motion which, except for the cause of newly
      discovered evidence, shall be filed within fourteen days after the
      verdict was rendered, or the decision of the court where a trial by jury
      has been waived, unless it is made to appear by clear and convincing
      proof that the defendant was unavoidably prevented from filing his
      motion for a new trial, in which case the motion shall be filed within
      seven days from the order of the court finding that the defendant was
      unavoidably prevented from filing such motion within the time
      provided herein.” (Emphasis added.)

Appellant has argued that his motion was not untimely in that:

      1. The trial court sentenced him to death in April 1986 and given
         that Apprendi was not decided until 2000 and Ring in 2002,
         Appellant could not have filed his motion for a new sentencing
         trial encompassing the Hurst decision within fourteen days of the
         jury’s verdicts or the trial court’s imposition of sentence;

      2. Prior to Hurst, the Ohio Supreme Court repeatedly held that the
         Ohio Supreme Court’s sentencing procedure was identical to
         Florida’s and not until Hurst would the Supreme Court of Ohio
         have given meaningful reconsideration to the Hurst issue; and,

      3. He could not have filed a motion based on Hurst prior to January
         12, 2017 because Hurst is a complex decision which takes time to
         digest and understand.

      {¶15} For the reasons which follow, we find Appellant’s arguments are

without merit. After extensive review of the Ohio case law discussing the Hurst

decision, we are guided by the well-reasoned Mundt decision as persuasive
Ross App. No. 17CA3607                                                          10

authority for us to find that Appellant’s motion was not timely filed. Mundt

conceded that his motion was filed well outside the time requirements set forth in

the criminal rule and, as such, was required to obtain leave of court to file his

motion for new trial. The appellate court therefore construed the narrow issue

before the trial court as whether Mundt was “unavoidably prevented in filing a

timely motion for a new trial.” Id. at 6. In Bennet, supra, at ¶ 7, we observed:

       “[A] party is unavoidably prevented from filing a motion for a new
      trial if the party had no knowledge of the existence of the ground
      supporting the motion for new trial and could not have learned of the
      existence of that ground within the time prescribed for filing the
      motion for new trial in the exercise of reasonable diligence.” State v.
      Walden, 19 Ohio App.3d 141, 146, 483 N.E.2d 859 (10th Dist.1984);
      State v. Wilson, 2nd Dist. Montgomery No. 23247, 2009–Ohio–7035,
      ¶ 8.”

      {¶16} Whether or not Appellant was unavoidably prevented from filing a

motion for new mitigation trial, based upon the constitutional argument he is now

making, is the precise issue before this court. Appellant was sentenced to death in

1986. Mundt was sentenced to death subsequent to a crime committed in 2004.

Mundt claimed he was unavoidably prevented from filing a motion because Hurst

was decided by the United States Supreme Court over 11 years after he was

sentenced to death. However, the Seventh District Court disagreed. The Mundt

court cited State v. Roberts, 150 Ohio St. 3d 47, 2017-Ohio-2998, 78 N.E.3d 851,

in support of the conclusion that Mundt, like Roberts, could have made his
Ross App. No. 17CA3607                                                                                       11

argument regarding the constitutionality of Ohio’s death penalty sentencing

scheme prior to the release of the Hurst decision.

         {¶17} Roberts was convicted and sentenced to death for the 2001 aggravated

murder of her ex-husband. After her sentence was vacated a second time, she was

again sentenced to death. In reviewing her assignments of error, the Supreme

Court of Ohio declined to consider her constitutional claim, raised for the first time

at oral argument, that the Ohio sentencing procedure violated Hurst. In doing so,

the Supreme Court observed at ¶ 84:

         “We recognize that the United States Supreme Court decided Hurst
         after the submission of briefs in this case, but Roberts could have
         made essentially the same Sixth Amendment argument by relying on
         Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), and
         Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002).”

         {¶18} The Mundt court also cited State v. Belton, 149 Ohio St.3d 165, 2016-

Ohio-1581, 74 N.E.3d 319, ¶ 59-60, for the Supreme Court of Ohio’s recognition,

even prior to the Roberts decision, that Ohio’s death penalty statute is

fundamentally different from those in Florida, pre-Hurst.2 Belton was convicted

pursuant to a no-contest plea of capital murder and aggravated robbery and was

sentenced to death. In his appeal of right, Ohio’s highest court held that the

2
  Appellant and others have repeatedly characterized the pre-Hurst Florida death penalty statute and the current Ohio
death penalty statute as “remarkably similar.” However, the recent decision in Gapen v. Robinson, No. 3:08-CV-
280, 2017 WL 3524688, (S.D. Ohio), *3, observed: “[State v.] Rogers held that the statutes were similar in that
neither Florida nor Ohio has a ‘sentencing jury;’ instead the imposition of the sentence is imposed by the trial judge.
Rogers, 28 Ohio St.3d at 430. [State v.]Rogers did not hold that Ohio’s statute was ‘remarkably similar’ to Florida’s
in terms of the judge’s ability to impose the death penalty independent of crucial factual findings by the jury.” The
opinion further stated at *3: “[The Magistrate] properly chastised Gapen for ‘ripping language out of context and
using it to prove a proposition not intended by the author.’ ”
Ross App. No. 17CA3607                                                              12

statutory scheme governing hearing before a three-judge panel on plea of no

contest to a capital offense did not implicate Belton’s right to jury trial under

Apprendi and Ring. The Belton court wrote at paragraphs 56 and 57:

      “In support of his constitutional claim, Belton cites two United States
      Supreme Court decisions: Apprendi v. New Jersey, 530 U.S. 466, 120
      S.Ct. 2348 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428
      (2002). In Apprendi, the Supreme Court held that “the Sixth
      Amendment does not permit a defendant to be ‘expose[d] * * * to a
      penalty exceeding the maximum he would receive if punished
      according to the facts reflected in the jury verdict alone.’ ” (Emphasis
      and brackets sic.) State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2,
      880 N.E.2d 31, ¶ 189, quoting Apprendi at 483, 120 S.Ct. 2348. Thus,
      “[o]ther than the fact of a prior conviction, any fact that increases the
      penalty for a crime beyond the prescribed statutory maximum must be
      submitted to a jury, and proved beyond a reasonable doubt.” Apprendi
      at 490, 120 S.Ct. 2348.”

      “Two years later, in Ring, the Supreme Court applied the Apprendi
      rule to invalidate Arizona's capital-sentencing scheme. Under
      Arizona's former scheme, “following a jury adjudication of a
      defendant's guilt of first-degree murder, the trial judge, sitting alone,
      determine[d] the presence or absence of the aggravating factors
      required by Arizona law for imposition of the death penalty.”
      (Brackets sic.) Ring at 588, 122 S.Ct. 2428. Ring declared this system
      unconstitutional, because the aggravating factors operated as “ ‘the
      functional equivalent of an element of a greater offense.’ ” Id. at 609,
      122 S.Ct. 2428, quoting Apprendi at 494, fn. 19, 120 S.Ct. 2348. The
      Supreme Court explained that because the finding of an aggravating
      circumstance made a defendant eligible to receive the death penalty,
      the jury must also determine whether the state met its burden of proof
      as to that element. Id., overruling Walton v. Arizona, 497 U.S. 639,
      110 S.Ct. 3047 (1990).”

      {¶19} The Belton decision continued at paragraphs 59 and 60:

      “Ohio's capital-sentencing scheme is unlike the laws at issue in Ring
      and Hurst. In Ohio, a capital case does not proceed to the sentencing
Ross App. No. 17CA3607                                                           13

      phase until after the fact-finder has found a defendant guilty of one or
      more aggravating circumstances. See R.C. 2929.03(D); R.C.
      2929.04(B) and (C); **337 State v. Thompson, 141 Ohio St.3d 254,
      2014-Ohio-4751, 23 N.E.3d 1096, ¶ 147. Because the determination
      of guilt of an aggravating circumstance 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. Moreover, in Ohio, if a defendant is tried by a jury, then
      the judge cannot impose a sentence of death unless the jury has
      entered a unanimous verdict for a death sentence. R.C. 2929.03(D)(2).

      Federal and state courts have upheld laws similar to Ohio's, explaining
      that if a defendant has already been found to be death-penalty eligible,
      then subsequent weighing processes for sentencing purposes do not
      implicate Apprendi and Ring. Weighing is not a fact-finding process
      subject to the Sixth Amendment, because “[t]hese determinations
      cannot increase the potential punishment to which a defendant is
      exposed as a consequence of the eligibility determination.” State v.
      Gales, 265 Neb. 598, 628, 658 N.W.2d 604 (2003); see, e.g., State v.
      Fry, 138 N.M. 700, 718, 126 P.3d 516 (2005); Ortiz v. State, 869 A.2d
      285, 303–305 (Del.2005); Ritchie v. State, 809 N.E.2d 258, 268
      (Ind.2004). Instead, the weighing process amounts to “a complex
      moral judgment” about what penalty to impose upon a defendant who
      is already death-penalty eligible. United States v. Runyon, 707 F.3d
      475, 515–516 (4th Cir.2013) (citing cases from other federal appeals
      courts).”

      {¶20} Further support for Appellee’s position that, based on the Apprendi

and Ring decisions, Appellant’s motion was untimely is provided in Campbell v.

Jenkins, No. 2:15-CV-1702, 2017 WL 3524686, (S.D. Ohio). There, the district

judge observed at *8:

      “As several courts have pointed out, Hurst simply applied the
      principles laid down many years ago in Apprendi v. New Jersey, 530
      U.S. 466, 120 S.Ct. 2348 (2000), and Ring v. Arizona, 536 U.S. 584,
      122 S.Ct. 2428 (2002)—that “other than the fact of a prior conviction,
      any fact that increases the penalty for a crime beyond the prescribed
Ross App. No. 17CA3607                                                               14

      statutory maximum must be submitted to a jury, and proved beyond a
      reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. See
      Hutton v. Mitchell, 839 F.3d 486, 499 (6th Cir.2016) (explaining that
      Hurst “reiterated” Apprendi's holding, and “rel[ied] on Ring.”); Sneed
      v. Jenkins, No. 5:17-cv-83, 2017 WL 564821, at *4 (N.D. Ohio Feb.
      13, 2017) (“The Supreme Court in Hurst plainly and expressly applied
      the standard it first set forth in Apprendi ... and later applied to capital
      cases in Ring ... to Florida's capital-sentencing scheme; it neither
      expanded the Apprendi/Ring rule nor announced a new rule.”); State
      v. Mason, –––N.E.3d ––––, 2016-Ohio-8400, ¶ 42 (“Hurst did not
      expand Apprendi and Ring.”).”

      {¶21} Appellant, however, contends that the Mundt case, as well as

Campbell, directed to our attention by Appellee, are easily distinguishable.

Appellant contends that the Campbell decision came before the court on a

successive federal habeas petition. The first one was filed in 1996 and as such,

there was no way he could have included a Hurst-like claim. As for Mundt, he

was sentenced to death for a crime committed in 2004. Mundt, unlike Appellant,

could have raised the Hurst issue in his direct appeal, application for reopening,

and post-conviction petition. Appellant points out Apprendi and Ring were

decided after he filed his direct appeal, post-conviction petition and habeas

petition.

      {¶22} While Appellant is correct in distinguishing the cases in this manner,

he overlooks the fact that Appellant’s appeal comes before us on the overruling of

a motion for new trial. In reaching its decision, the Mundt court emphasized that

Mundt filed his motion for leave over eight months after Belton and a year after
Ross App. No. 17CA3607                                                                                 15

Hurst. The appellate court wrote: “Contrary to the assertions in counsel’s

affidavit, this was not a reasonable time after Hurst was decided to evaluate its

import and seek relief pursuant to that holding.” Mundt, supra, at ¶ 11. In

Appellant’s case, Appellee has emphasized that Appellant’s motion for leave was

filed approximately one year after Hurst and almost a full nine months after

Belton.

        {¶23} Appellant also criticizes the holding in Belton as dicta, given that

Belton involved a defendant who waived his right to jury trial and was sentenced

by a three-judge panel, and the Hurst issue had not definitively analyzed by the

Supreme Court of Ohio. However, we are similarly guided, as was the appellate

court in State v. Mason, 3rd Dist. Marion No. 9-16-34, 2016-Ohio-8400, to

acknowledge Belton as persuasive authority.

        {¶24} In Mason, the appellate court reversed the trial court’s grant of a

motion to dismiss the death penalty certification from Mason’s indictment for

murder on the grounds that the death penalty statute was unconstitutional. The

appellate court held that the death-penalty statute in effect at the time of

defendant’s crimes did not violate the Sixth Amendment.3 The appellate court

observed at ¶ 35:


3
  The Mason court observed that “Although Ohio’s death penalty statute was amended * * * between the time that
Mason committed his crimes, and 2008, the time that Belton committed his crimes, those amendments do not impact
the applications of Hurst to Ohio’s death penalty statute. Compare R.C. 2929.03 (1981) with R.C. 2929.03 (2008).
Compare R.C. 2929.04 (19810) with R.C. 2929.04 (2002).” Mason, supra, at Fn. 11. Similarly, although 2929.03
Ross App. No. 17CA3607                                                                                       16

         “Even if we are to accept as true the trial court’s conclusion that the
         Supreme Court of Ohio’s application of Hurst in Belton is merely
         dicta, Belton is highly persuasive. At the very least, the Supreme
         Court of Ohio’s discussion of Hurst in Belton “sheds some light on
         how the majority of our highest court might rule on” the specific issue
         presented by this case.” Mason, supra, quoting State v. Blankenburg,
         197 Ohio App. 3d 201, 2012-Ohio-1289, 966 N.E. 2d 958 (12th Dist.)
         at 143.”4

         {¶25} Finally, Appellant argues that because the trial court reached the

merits of his motion for new sentencing trial, Appellee is asking this court to

substitute its judgment for that of the trial court. We do not find this argument

persuasive. “The affirmance of a judgment by a reviewing court is not an

affirmance of the reasons given by the lower court for its rulings,” and

“[r]eviewing courts affirm and reverse judgments, not reasons.” State v. Rubes,

2012-Ohio-4100, 32, quoting State v. Eschenauer, 11th Dist. No. 12–237, 1988

WL 121296, *4 (Nov. 10, 1988). An appellate court may affirm a trial court's

decision to deny a motion for leave to file a motion for new trial for different

reasons other than those expressed by the trial court. State v. Boone, 2017-Ohio-

was again amended, effective April 6, 2017, and 2929.04 was again amended effective October 12, 2016, those
amendments have no impact as to the applications of Hurst in Appellant’s case.
4
  Appellant has urged that the Supreme Court of Ohio has the Hurst issue before it in Mason, supra; State v. Ford,
148 Ohio St.3d 1419; State v. Jackson, 151 Ohio St.3d 1422, 2017-Ohio-8371, 84 N.E.3d 1061; State v. Kirkland,
145 Ohio St.3d 1455; and State ex rel. O’Malley v. Collier-Williams, 150 Ohio St.3d 1405, 2017-Ohio-6964, 78
N.E.3d 907. Appellant suggests in the interest of judicial economy, we hold our decision until after these cases have
been decided, and possible additional briefing has occurred. As of the drafting of this opinion, Jackson’s application
for reopening has been denied. In Kirkland, 145 Ohio St.3d 1455, 2016-Ohio-2807, 49 N.E.3d 318 (Table) the
Supreme Court briefly held: “On motion for order or relief. Motion granted. Cause remanded for new mitigation and
sentencing hearing.” Regarding Kirkland, the recent Gapen decision, supra, commented at *6: “In the view of this
Court, Kirkland does not necessarily give rise to an inference that the Ohio Supreme Court would find that Hurst
applies retroactively. In any event, even if the Ohio Supreme Court did find that Hurst applies retroactively, it
appears that the decision in Belton, noting the critical differences between the capital sentencing schemes in Ohio
and Florida, would foreclose the relief that Gapen seeks.” As of the drafting of this opinion, the other cases remain
pending before the Supreme Court.
Ross App. No. 17CA3607                                                           17

843, 85 N.E.3d 1227 (10th Dist.), ¶ 5. Given that Appellant’s motion was

untimely filed, the trial court did not abuse its discretion in overruling it.

      {¶26} Based upon the foregoing, we find no merit to Appellant’s sole

assignment of argument and we find no abuse of discretion. Accordingly, we

overrule the assignment of error and affirm the judgment of the trial court.

                                                          JUDGMENT AFFIRMED.
Ross App. No. 17CA3607                                                              18

Harsha, J., concurs with concurring opinion:

        {¶27} Initially, I find it doubtful that Crim.R. 33(A) is the appropriate

mechanism for Landrum’s effort to obtain a new trial/sentencing hearing. Crim.R.

33 governs motions for new trial and sets forth the grounds for obtaining that

relief. As the Tenth District pointed out in State v. Ingram, 10th Dist. Franklin No.

08AP-937, 2009-Ohio-2755, none of the grounds in Crim.R. 33(A) specifically

refer to a subsequent Supreme Court of the United States decision recognizing a

new state or federal right that changes the law in effect at the time of the movant’s

conviction. Id. at ¶ 15. As both Ingram and State v. Jackson, 2018-Ohio-276, __

N.E.3d __, ¶ 17 (8th Dist.) indicate, cases applying Crim.R. 33(A) more

appropriately involve rulings that were erroneous at the time the case was being

tried; they do not deal with subsequent changes in the law. As the court in Jackson

observed, “[i]ndeed, an error based on changes in the law that occurred after trial

obviously could not have occurred during trial.” Id. at ¶ 17. And as Jackson also

pointed out, claims based upon newly recognized federal or state rights are

appropriate under Ohio’s statute for post-conviction relief, R.C. 2953.23(A). Id. at

¶ 19.

        {¶28} Nonetheless, I agree that Landrum’s motion for leave was untimely as

he clearly could have made the same motion much earlier by simply relying upon
Ross App. No. 17CA3607                                                          19

the principles established in Apprendi, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d

435, and Ring, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556.

      {¶29} Likewise, I conclude the trial court correctly denied Landrum’s

motion for a new trial/sentencing on the merits after implicitly granting the motion

for leave. As both state and federal courts have recently indicated, the Ohio

procedure and Florida’s are not the same, with the result that Ohio’s passes muster

under the Apprendi, Ring, and Hurst, __ U.S. __, 136 S.Ct. 616, 193 L.Ed.2d 504,

chain of cases. See State v. Belton, 149 Ohio St.3d. 165, 2016-Ohio-1581, 74

N.E.3d. 319, ¶ 59-60 (dicta), State v. Carter, 1st Dist. Hamilton No. C-170231,

2018-Ohio-645, ¶ 8; Gapen v. Robinson, S.D. Ohio No. 3:08-CV-280, 2017 WL

3524688 (Aug. 14, 2017).

      {¶30} And as Gapen proclaims, Hurst does not announce a new rule of rule,

nor is it entitled to retroactive application to cases on collateral review.
Ross App. No. 17CA3607                                                           20

                               JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.

      The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the Ross
County Common Pleas Court to carry this judgment into execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.

Harsha, J.: Concurs with Concurring Opinion.
Hoover, P.J.: Concurs in Judgment Only.

                                               For the Court,


                                        BY: ____________________________
                                            Matthew W. McFarland, Judge


                             NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
Ross App. No. 17CA3607   21
