[Cite as State v. Jackson, 2018-Ohio-2146.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                      TRUMBULL COUNTY, OHIO


 STATE OF OHIO,                                  :        OPINION

                  Plaintiff-Appellee,            :
                                                          CASE NO. 2017-T-0041
         - vs -                                  :

 NATHANIEL JACKSON,                              :

                  Defendant-Appellant.           :


 Criminal Appeal from the Trumbull County Court of Common Pleas.
 Case No. 2001 CR 00794.

 Judgment: Affirmed.


 Dennis Watkins, Trumbull County Prosecutor; LuWayne Annos, Charles L. Morrow, and
 Ashleigh Musick, Assistant Prosecutors, Administration Building, Fourth Floor, 160 High
 Street, N.W., Warren, OH 44481-1092 (For Plaintiff-Appellee).

 Timothy Young, Ohio Public Defender, and Randall L. Porter, Assistant State Public
 Defender, 250 East Broad Street, Suite 1400, Columbus, OH 43215-9308 (For
 Defendant-Appellant).



TIMOTHY P. CANNON, J.,

        {¶1}      Appellant, Nathaniel Jackson, appeals from the March 29, 2017 judgment

entry of the Trumbull County Court of Common Pleas, denying his “Motion for Leave to

File a Motion for a New Mitigation Trial.” The trial court’s judgment is affirmed.

        {¶2}      Appellant was charged with various crimes, including aggravated murder,

in 2001. The charges stemmed from the shooting death of Robert Fingerhut, who, at the
time of his death, was residing with his former wife, Donna Roberts. During the months

prior to Mr. Fingerhut’s murder, appellant and Roberts exchanged letters and phone calls

in which they plotted for appellant to murder Mr. Fingerhut so that Roberts could collect

life insurance proceeds in excess of $500,000.00. Roberts was also charged with murder

for her role in Mr. Fingerhut’s death.

       {¶3}   In November 2002, a jury found appellant guilty of two counts of aggravated

murder, one count of aggravated burglary, and one count of aggravated robbery. The

jury further found the state of Ohio had proved, beyond a reasonable doubt, two

specifications of aggravating circumstances, to wit: that appellant committed the murder

while committing, attempting to commit, or fleeing immediately after committing (1)

aggravated burglary and (2) aggravated robbery. The jury concluded the state proved,

beyond a reasonable doubt, that these aggravating circumstances outweighed any

mitigating factors and returned a verdict recommending the death penalty.            After

independently weighing the aggravating circumstances and mitigating factors, the trial

court imposed the sentence of death upon appellant.

       {¶4}   In a separate trial, Roberts was also found guilty of the aggravated murder

of Mr. Fingerhut. The jury recommended the death penalty, which was imposed by the

trial court. See State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665.

       {¶5}   The Ohio Supreme Court affirmed appellant’s convictions and death

sentence. State v. Jackson, 107 Ohio St.3d 300, 2006-Ohio-1. Appellant’s original and

amended petitions for postconviction relief were denied by the trial court, and this court

affirmed that judgment. State v. Jackson, 11th Dist. Trumbull No. 2004-T-0089, 2006-

Ohio-2651.




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       {¶6}   The Ohio Supreme Court vacated Roberts’ death sentence due to improper

ex parte communication between the prosecution and the trial court judge who had

presided over both Roberts’ and appellant’s trials. The ex parte communication at issue

was the use of the prosecutor in preparing the trial court’s sentencing opinion without

including defense counsel in the process. Roberts, supra, at ¶3. The Ohio Supreme

Court remanded the case and instructed the trial court judge to personally review and

evaluate whether the death penalty was appropriate. Id. at ¶167.

       {¶7}   Following the decision in Roberts, appellant filed a Civ.R. 60(B) motion for

relief from the trial court’s denial of his petition for postconviction relief. Appellant also

filed an application to disqualify the trial court judge based on the judge’s statement,

during a hearing held in Roberts, that he had similarly relied on the prosecutor to prepare

paperwork for him in other criminal cases. In re Disqualification of Stuard, 113 Ohio St.3d

1236, 2006-Ohio-7233, ¶1-3.       The trial court judge responded to the application to

disqualify, in which he acknowledged he had held similar ex parte communications with

the prosecutors in both Roberts and Jackson before sentencing each of them to death.

Id. at ¶4.

       {¶8}   The Chief Justice declined to disqualify the trial court judge from further

participation in the matter. Id. at ¶10. The trial court subsequently denied appellant’s

Civ.R. 60(B) motion for relief from the denial of his postconviction petition, and this court

affirmed that judgment. State v. Jackson, 11th Dist. Trumbull No. 2008-T-0024, 2010-

Ohio-1270.

       {¶9}   In February 2008, appellant filed a “Motion for New Trial and/or Sentencing

Hearing.” The trial court denied this motion on the basis that there is no provision in the




                                              3
Ohio Criminal Rules for a new sentencing hearing and the motion for new trial was

untimely under Crim.R. 33(B). This court reversed the trial court’s judgment because the

same drafting procedures and ex parte communication involving the sentencing entry that

had occurred in Roberts also took place in appellant’s case. State v. Jackson, 190 Ohio

App.3d 319, 2010-Ohio-5054 (11th Dist.). We held appellant was entitled to the same

relief the Ohio Supreme Court had afforded Roberts. Id. at ¶29. Therefore, we did not

order the trial court to conduct a new trial or sentencing hearing on remand, but the trial

judge was ordered to “personally review and evaluate the appropriateness of the death

penalty, prepare an entirely new sentencing entry as required by R.C. 2929.03(F), and

conduct whatever other proceedings are required by law and consistent with this opinion.”

Id., citing Roberts, supra, at ¶167.

       {¶10} On remand, the trial court again sentenced appellant to death and filed a

new sentencing opinion pursuant to R.C. 2929.03(F), which was affirmed by the Ohio

Supreme Court. State v. Jackson, 149 Ohio St.3d 55, 2016-Ohio-5488.

       {¶11} On January 13, 2017, appellant filed a “Motion for Leave to File a Motion

for a New Mitigation Trial,” which is the subject of the instant appeal. The arguments

raised in this motion are based on a recent opinion of the United States Supreme Court,

Hurst v. Florida, __ U.S. __, 136 S.Ct. 616 (2016). The Hurst Court held Florida’s death

penalty sentencing scheme violated the Sixth Amendment right to have a jury, not a judge,

find the facts that support the decision to sentence a defendant to death. Id. at 622,

applying Ring v. Arizona, 536 U.S. 584 (2002) and citing Apprendi v. New Jersey, 530

U.S. 466 (2000). Appellant argues Ohio’s death penalty sentencing scheme similarly

violates the Sixth Amendment.




                                            4
       {¶12} Appellant asserted the trial court should grant him leave to file a delayed

motion for a “new mitigation trial,” under Crim.R. 33(A)(1), (4), and (5), because he “could

not have anticipated” the holding in Hurst and, thus, “could not have filed his motion for

new trial within fourteen days of the imposition of sentence.” Appellee responded, in part,

that Crim.R. 33 is not designed for the relief sought by appellant, i.e. a “new mitigation

trial,” and that the trial court should construe the motion as a petition for postconviction

relief under R.C. 2953.21.

       {¶13} The trial court denied the motion on March 29, 2017. The trial court found

the motion was time barred, whether considered pursuant to Crim.R. 33 or R.C. 2953.21.

The trial court further found the motion was substantively meritless and that Ohio’s death

penalty scheme is sufficiently different from what was invalidated in Hurst to survive

constitutional scrutiny.

       {¶14} Appellant filed a timely appeal and has raised one assignment of error for

our review:

       {¶15} “The trial court erred when it denied Jackson’s motion for leave to file his

motion for a new trial.”

       {¶16} Appellant first argues the trial court misconstrued the applicable law

concerning whether his motion was timely filed. This argument raises an issue of law we

review de novo. See, e.g., State v. Fortune, 11th Dist. Lake No. 2014-L-117, 2015-Ohio-

4019, ¶16 (citation omitted).

       {¶17} Appellant asserts his proposed “Motion for a New Mitigation Trial” is based

on the provisions in Crim.R. 33(A), which governs motions for new trial. The timeliness

of motions for new trial is governed by Crim.R. 33(B), which states:




                                             5
              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.

       {¶18} The jury verdict in appellant’s case was rendered in 2002; thus, the trial

court was required to determine whether appellant was “unavoidably prevented” from

filing his motion within fourteen days of the verdict. The trial court did not engage in this

analysis. It instead stated: “[T]he Court finds the motion is untimely. Pursuant to Crim.R.

33(B), motions such as this must be filed within fourteen days after the verdict was

rendered. Jackson is entirely outside this time frame. Therefore, the Court finds no basis

on which to grant leave to file a request under Crim.R. 33.”

       {¶19} We agree with appellant that the trial court did not engage in the proper

analysis regarding the timeliness of a delayed motion for new trial, pursuant to Crim.R.

33(B). See State v. Trimble, 11th Dist. Trumbull No. 2013-P-0088, 2015-Ohio-942, ¶18

(without a determination of whether appellant was “unavoidably prevented,” this court is

left with an insufficient record to review).

       {¶20} We conclude, however, that this error was harmless, as the basis for

appellant’s motion—to wit, an alleged constitutional violation that occurred during the

sentencing proceedings—is not appropriately raised in a Crim.R. 33 motion for new trial.

       {¶21} In Davie, this court held “there is no provision in the Ohio Criminal Rules

that provides for a new sentencing hearing.” State v. Davie, 11th Dist. Trumbull No. 2007-

T-0069, 2007-Ohio-6940, ¶8. Appellant argues this court subsequently ruled otherwise




                                               6
with respect to the propriety of seeking sentencing relief in a motion for new trial, citing a

previous opinion in his own case: Jackson, supra, 2010-Ohio-5054.

       {¶22} In February 2008, appellant filed a “Motion for New Trial and/or Sentencing

Hearing.” The trial court denied this motion because the motion for new trial was untimely

under Crim.R. 33(B) and because there is no provision in the Ohio Criminal Rules for a

new sentencing hearing. This court reversed the trial court’s judgment and remanded the

case for the trial judge to “personally review and evaluate the appropriateness of the death

penalty, prepare an entirely new sentencing entry as required by R.C. 2929.03(F), and

conduct whatever other proceedings are required by law and consistent with this opinion.”

Id. at ¶29, citing Roberts, supra, at ¶167.

       {¶23} This court neither relied on nor overruled Davie in that decision because the

cases were distinguishable: our holding in Jackson was not based on the applicability of

Crim.R. 33, but on the Ohio Supreme Court’s holding in Roberts. Id. at ¶28-29. Because

the trial court judge had admitted in an affidavit that the same drafting procedures and ex

parte communication involving the sentencing entry that had occurred in Roberts also

took place in appellant’s case, appellant was entitled to the same relief the Ohio Supreme

Court had afforded Roberts.        Id. at ¶29; see also id. at ¶43 (Cannon, Trapp, JJ.,

concurring) (“Based on the holding in Roberts as well as the trial judge’s affidavit opposing

disqualification filed in this case, * * * the only proper disposition of this matter is for the

trial court to proceed with resentencing.”).

       {¶24} Appellant’s argument is not well taken; our holding in Davie was not

compromised by our holding in Jackson. There is no provision in Crim.R. 33, or in any

Ohio Criminal Rule, that provides for a new sentencing hearing. Davie, supra, at ¶8.




                                               7
Appellant cannot escape the fact that Crim.R. 33 is not the proper vehicle to obtain the

relief he seeks by captioning his motion, “Motion for New Mitigation Trial,” when it is, in

fact, a motion for a new sentencing hearing.

       {¶25} We further note that, even if Crim.R. 33 was the proper vehicle, appellant

could not succeed on his motion for leave to file a delayed motion for new trial. Appellant

argues he was “unavoidably prevented” from filing a timely motion because the basis for

his motion, Hurst v. Florida, was decided nearly 14 years after he was sentenced to death.

Appellant was capable, however, of raising the same argument prior to Hurst by relying

on Apprendi v. New Jersey and Ring v. Arizona, both of which were decided prior to his

sentence. See State v. Roberts, 150 Ohio St.3d 47, 2017-Ohio-2998, ¶84; State v.

Mundt, 7th Dist. Noble No. 17 NO 0446, 2017-Ohio-7771, ¶9. Thus, appellant was not

“unavoidably prevented” from filing a timely motion for new trial on the basis that Ohio’s

death penalty sentencing scheme allegedly violates the Sixth Amendment.

       {¶26} After finding appellant’s motion untimely under Crim.R. 33, the trial court

construed the motion as a petition for postconviction relief, pursuant to R.C. 2953.21.

“[W]here a criminal defendant, subsequent to his or her direct appeal, files a motion

seeking vacation or correction of his or her sentence on the basis that his or her

constitutional rights have been violated, such a motion is a petition for postconviction relief

as defined in R.C. 2953.21.” State v. Reynolds, 79 Ohio St.3d 158, 160 (1997); see also

Davie, supra, at ¶9, quoting State v. Foti, 11th Dist. Lake No. 2006-L-138, 2007-Ohio-

887, ¶12 (“‘a criminal defendant who files a motion to vacate or correct his or her sentence

on the ground that his or her constitutional rights have been violated necessarily

embraces the postconviction relief statutes’”).




                                              8
       {¶27} The postconviction relief statutes provide, in relevant part:

              Any person who has been convicted of a criminal offense * * * and
              who claims that there was such a denial or infringement of the
              person’s rights as to render the judgment void or voidable under the
              Ohio Constitution or the Constitution of the United States * * * may
              file a petition in the court that imposed sentence, stating the grounds
              for relief relied upon, and asking the court to vacate or set aside the
              judgment or sentence or to grant other appropriate relief.

R.C. 2953.21(A)(1)(a); see also R.C. 2953.21(A)(3) (“a person who has been sentenced

to death may ask the court to render void or voidable * * * the sentence of death”).

       {¶28} At the time appellant was convicted and sentenced to death, a petition for

postconviction relief was timely when it was filed no later than 180 days after the trial

transcript was filed with the Ohio Supreme Court. See former R.C. 2953.21(A)(2) (the

current version of the statute provides for 365 days). A convicted offender may file an

untimely or a successive petition for postconviction relief when, as is relevant here, both

of the following apply:

              (a) * * * The United States Supreme Court recognized a new federal
              or state right that applies retroactively to persons in the petitioner’s
              situation, and the petition asserts a claim based on that right.

              (b) The petitioner shows by clear and convincing evidence that, * * *
              but for constitutional error at the sentencing hearing, no reasonable
              factfinder would have found the petitioner eligible for the death
              sentence.

R.C. 2953.23(A)(1).

       {¶29} Here, the trial court stated: “In addition, if the Court were to construe

Jackson’s motion as a post-conviction relief request pursuant to R.C. 2953.21, the Court

finds no basis on which to grant such a request. The Court finds such a post-conviction

request would be time barred as the request was filed well beyond the 180-day statutory

period.”



                                             9
       {¶30} Again, the trial court did not engage in the proper analysis regarding the

timeliness of the motion, even when construed as a petition for postconviction relief,

because it did not review the exceptions outlined in R.C. 2953.23(A). We again conclude,

however, that this error was harmless.

       {¶31} First, appellant has not raised this error on appeal, instead insisting his

motion was not a petition for postconviction relief and should not be construed as such.

Because he has repeatedly emphasized before the trial court and on appeal that his

motion was only intended to be considered a Crim.R. 33 motion for new trial, we agree to

proceed on that basis. See State v. Bush, 96 Ohio St.3d 235, 2002-Ohio-3993.

       {¶32} We further recognize, however, that appellant’s insistence in this regard

appears to be an effort to avoid the retroactivity requirement found in R.C.

2953.23(A)(1)(a). In other words, appellant’s motion could only be successful, when

construed as a petition for postconviction relief, if Hurst v. Florida recognized a new

federal right that applies retroactively to persons in appellant’s situation.

       {¶33} A new rule issued by the United States Supreme Court is not retroactively

applicable to cases on collateral review unless the United States Supreme Court

expressly holds it to be retroactive. Tyler v. Cain, 533 U.S. 656, 663 (2001). “In Tyler,

the Court acknowledged that, ‘with the right combination of holdings,’ it could ‘make a rule

retroactive over the course of two cases.’”         In re Zambrano, 433 F.3d 886, 888

(D.C.Cir.2006), quoting Tyler, supra, at 666. This is only possible, however, “if the

holdings in those cases necessarily dictate retroactivity of the new rule.” Tyler, supra, at

666.




                                              10
       {¶34} Here, the United States Supreme Court did not expressly hold that Hurst v.

Florida was to be applied retroactively to cases on collateral review. Additionally, the

holding in Hurst was an application of Ring, which held that capital defendants “are

entitled to a jury determination of any fact on which the legislature conditions an increase

in their maximum punishment.” Ring, supra, at 589; see Hurst, supra, at 622 (“In light of

Ring, we hold that Hurst’s sentence violates the Sixth Amendment.).” And the United

States Supreme Court has expressly held that Ring does not apply retroactively to cases

on collateral review:

              The right to jury trial is fundamental to our system of criminal
              procedure, and States are bound to enforce the Sixth Amendment’s
              guarantees as we interpret them. But it does not follow that, when a
              criminal defendant has had a full trial and one round of appeals in
              which the State faithfully applied the Constitution as we understood
              it at the time, he may nevertheless continue to litigate his claims
              indefinitely in hopes that we will one day have a change of heart.
              Ring announced a new procedural rule that does not apply
              retroactively to cases already final on direct review.

Schriro v. Summerlin, 542 U.S. 348, 358 (2004); see also Holmes v. Neal, 816 F.3d 949,

954 (7thCir.2016). Thus, the possibility of a “Tyler two-step” does not assist appellant in

his attempt to retroactively apply the holding in Hurst to a collateral review of his sentence.

See Zambrano, supra, at 888.

       {¶35} Appellant’s final issue presented for our review is whether the trial court

erred in holding that Ohio’s death penalty scheme does not violate a defendant’s right to

a jury trial, as presented in Hurst. In that regard, the trial court stated:

              Even if the Court did not find the requests were time barred as
              explained herein, the Court finds the reliance upon the Hurst v.
              Florida, 136 S. Ct. 616 (2016), decision is misplaced. ‘Hurst, *** does
              not invalidate Ohio’s capital sentencing scheme because Ohio’s
              scheme is materially different from Florida’s.’ McKnight v. Bobby,
              S.D. Ohio No. 2:09-CV-059, 2017 WL 631411, *3-4. In fact, the Ohio



                                              11
              mechanism provides an additional layer of protection not present in
              Hurst. Id. Indeed, ‘Ohio’s capital-sentencing scheme is unlike the
              laws at issue in Ring and Hurst.’ State v. Belton, 2016-Ohio-1581,
              ¶59.

       {¶36} Appellant asserts the trial court’s reliance on McKnight and Belton is

misplaced. It is well settled, however, that a reviewing “‘court will not reach constitutional

issues unless absolutely necessary.’” State v. Ferry, 11th Dist. Lake No. 2007-L-217,

2008-Ohio-2616, ¶19, quoting State v. Talty, 103 Ohio St.3d 177, 2004-Ohio-4888, ¶9,

citing In re Miller, 63 Ohio St.3d 99, 110 (1992) and Hall China Co. v. Pub. Util. Comm.,

50 Ohio St.2d 206, 210 (1977). Based on our determinations above, it is not absolutely

necessary to address this constitutional issue, and we therefore decline to do so. We

further note, however, that the Ohio Supreme Court recently rejected this argument in

State v. Mason, Sup.Ct. No. 2017-0200, Slip Opn. No. 2018-Ohio-1462: “Ohio law

requires the critical jury findings that were not required by the laws at issue in Ring and

Hurst. See R.C. 2929.03(C)(2). Ohio’s death-penalty scheme, therefore, does not violate

the Sixth Amendment.” Id. at ¶21.

       {¶37} Appellant’s sole assignment of error is without merit.

       {¶38} The judgment of the Trumbull County Court of Common Pleas is hereby

affirmed.



DIANE V. GRENDELL, J.,

COLLEEN MARY O’TOOLE, J.,

concur.




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