[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Jackson, Slip Opinion No. 2016-Ohio-5488.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.


                          SLIP OPINION NO. 2016-OHIO-5488
            THE STATE OF OHIO, APPELLEE, v. JACKSON, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State v. Jackson, Slip Opinion No. 2016-Ohio-5488.]
Criminal Law—Aggravated murder—Sentence of death imposed after resentencing
        hearing—Death penalty affirmed.
     (No. 2012-1644—Submitted April 19, 2016—Decided August 24, 2016.)
 APPEAL from the Court of Common Pleas of Trumbull County, No. 01-CR-794.
                                    _________________
        PFEIFER, J.
        {¶ 1} This is a death-penalty appeal as of right. A jury convicted the
defendant-appellant, Nathaniel Jackson, of the aggravated murder of Robert
Fingerhut, with two death-penalty specifications. Jackson was sentenced to death.
This court affirmed Jackson’s convictions and the death sentence on direct appeal.
State v. Jackson, 107 Ohio St.3d 300, 2006-Ohio-1, 839 N.E.2d 362.
        {¶ 2} During a subsequent appeal from the trial court’s denial of Jackson’s
motion for a new trial, the Eleventh District Court of Appeals vacated the death
sentence, holding that the trial judge’s use of the assistant prosecutor to assist in
                              SUPREME COURT OF OHIO




preparation of the sentencing opinion was improper. The case was remanded to the
trial court for resentencing. State v. Jackson, 190 Ohio App.3d 319, 2010-Ohio-
5054, 941 N.E.2d 1221, ¶ 29, 33 (11th Dist.). On remand, the trial court again
sentenced Jackson to death.
       {¶ 3} For the following reasons, we affirm the trial court’s resentencing of
Jackson. Although we hold that the trial court in the sentencing opinion improperly
failed to consider Jackson’s allocution, the error was harmless and will be rectified
by our independent sentence evaluation.
                                 I. Trial Evidence
       {¶ 4} Our previous decision in this case sets forth the facts in detail. 107
Ohio St.3d 300, 2006-Ohio-1, 839 N.E.2d 362, at ¶ 2-74. For purposes of this
opinion, we summarize the facts as follows.
       {¶ 5} Donna Roberts lived with Robert Fingerhut, her former husband, in
Howland Township, Trumbull County. Fingerhut, who operated Greyhound bus
terminals in Warren and Youngstown, owned two insurance policies on his life,
both of which named Roberts as sole beneficiary. The total death benefit of the two
policies was $550,000.
       {¶ 6} At some point, Jackson began an affair with Roberts. In 2001, the
affair was interrupted by Jackson’s confinement in the Lorain Correctional
Institution. While Jackson was in prison, he and Roberts exchanged numerous
letters and spoke on the telephone. Prison authorities recorded many of their
telephone conversations.
       {¶ 7} Passages from the letters and telephone calls indicated that the two
plotted to murder Fingerhut. Jackson repeatedly pledged to kill Fingerhut upon
Jackson’s release from prison. In one letter, Jackson wrote, “Donna I don’t care
what you say but Robert has to go! An[d] I’m not gonna let you stop me this time.”
At Jackson’s request, Roberts purchased a ski mask and a pair of gloves for Jackson
to use during the murder. On the day before Jackson was released, he and Roberts




                                          2
                                January Term, 2016




had one final recorded conversation. Jackson told her, “I got to do this Donna. I
got to.” He also told Roberts his plan: “I just need to be in that house when he
come home. * * * Baby it ain’t gonna happen in the house.”
       {¶ 8} Jackson was released on December 9, 2001. Roberts drove to Lorain
to pick him up, spent that night with him in a motel, and spent much of the next
two days with him as well. On December 11, 2001, Fingerhut was shot to death at
his home.
       {¶ 9} When police responded to the crime scene, Roberts was hysterical and
asked them to do whatever was necessary to catch the killer. She also reported that
Fingerhut’s car had been stolen. During a search of the house, the police in a dresser
in the master bedroom found 145 handwritten letters and cards that Jackson had
sent to Roberts. In the trunk of Roberts’s car, the police found a bag with Jackson’s
name on it containing clothes and 139 letters that Roberts had sent to Jackson. On
December 12, Fingerhut’s car was found in Youngstown.
       {¶ 10} On December 21, 2001, Jackson was arrested at a friend’s house in
Youngstown. Jackson had a bandage around his left index finger at the time of his
arrest. The police seized a pair of bloodstained gloves with the left index finger
missing and a pair of tennis shoes from the house. The tread pattern on the shoes
was consistent with a shoe print left in blood near Fingerhut’s body.
       {¶ 11} During a subsequent police interview, Jackson said, “I just didn’t
mean to do it, man.” He then related his version of what happened, essentially
claiming that he shot Fingerhut in self-defense. Jackson claimed to have known
Fingerhut for a couple of years. Jackson said that on the evening of December 11,
he approached Fingerhut about getting a job at the Youngstown bus terminal. They
met later that evening, and Jackson sold Fingerhut “some weed.” He then asked
Fingerhut if he could go to Fingerhut’s house to “chill” before starting work the
next day, and Fingerhut gave Jackson a ride to Fingerhut’s home. According to
Jackson, after they went inside the home Fingerhut started making racial comments




                                          3
                             SUPREME COURT OF OHIO




and other disparaging remarks toward him. Fingerhut then pulled a revolver,
Jackson tried to grab it, and Fingerhut shot Jackson in the finger as Jackson reached
for the gun. Jackson then took the gun from Fingerhut during the “tussle” and shot
him twice. Jackson was unsure where the shots hit Fingerhut but said that Fingerhut
was still breathing when Jackson fled the house and drove away in Fingerhut’s car.
         {¶ 12} Fingerhut’s autopsy showed that he had been shot three times,
including a penetrating gunshot wound to the top of the head that was determined
to be fatal. There was also a laceration between Fingerhut’s left thumb and index
finger, and further examination showed that the fatal bullet hit his hand before
entering the top of his head. Gunshot residue on the body indicated that the distance
from the muzzle of the firearm to the head wound was 24 inches or less.
         {¶ 13} Finally, expert testimony established that the DNA profile of
bloodstains found inside Fingerhut’s car and on its trunk-release lever matched
Jackson’s DNA profile.
                                 II. Case History
                      A. Indictment, trial, verdict, and appeal
         {¶ 14} On December 28, 2001, a grand jury indicted Jackson on two counts
of aggravated murder in violation of R.C. 2903.01(A) and (B). Both murder counts
carried two felony-murder death-penalty specifications:           murder during an
aggravated burglary and murder during an aggravated robbery.                    R.C.
2929.04(A)(7).    The grand jury also indicted Jackson on separate counts of
aggravated burglary and aggravated robbery with a firearm specification on each
count.
         {¶ 15} During October and November 2002, Judge John Stuard presided
over Jackson’s capital murder trial. Before a jury, the state presented numerous
witnesses establishing the facts. The defense presented three witnesses whose
testimony revealed that documents for most of the property shared by Roberts and
Fingerhut named Roberts as the owner. This evidence was intended to undermine




                                         4
                                January Term, 2016




the financial motive for the killing asserted by the state. The jury found Jackson
guilty as charged.
       {¶ 16} At the conclusion of the penalty phase, the jury recommended death,
and the court imposed the death sentence on Jackson.
       {¶ 17} On January 4, 2006, we affirmed the verdict and sentence on
Jackson’s direct appeal. 107 Ohio St.3d 300, 2006-Ohio-1, 839 N.E.2d 362.
                        B. Roberts’s trial and direct appeal
       {¶ 18} In May and June 2003, Judge Stuard presided over the capital murder
trial of Donna Roberts. A jury found Roberts guilty of the aggravated murder of
Fingerhut and other offenses, and she was sentenced to death.
       {¶ 19} On August 2, 2006, we affirmed Roberts’s convictions, including the
convictions regarding aggravated murder and both death-penalty specifications.
State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168 (“Roberts
I”). But we vacated the death sentence and remanded the case to the trial court
because the judge had enlisted the assistant county prosecutor who tried the case to
participate in drafting the sentencing opinion, and in doing so, had engaged in
improper ex parte communications. Id. at ¶ 153-164. (Although Judge Stuard also
presided over Jackson’s trial, no allegation was raised in Jackson’s direct appeal to
this court that the prosecutor participated in drafting the sentencing opinion or
engaged in ex parte communications with the judge during that trial, and our
January 2006 opinion affirming Jackson’s convictions and death sentence
accordingly did not address any issues of that type.)
       {¶ 20} We ordered the following relief in Roberts I:


       On remand, the trial judge will afford Roberts her right to allocute,
       and the trial court shall personally review and evaluate the evidence,
       weigh the aggravating circumstances against any relevant mitigating
       evidence, and determine anew the appropriateness of the death




                                         5
                             SUPREME COURT OF OHIO




        penalty as required by R.C. 2929.03. The trial court will then
        personally prepare an entirely new penalty opinion as required by
        R.C. 2929.03(F) and conduct whatever other proceedings are
        required by law and consistent with this opinion.


Id. at ¶ 167.
                   C. Developments in the aftermath of Roberts I
        {¶ 21} Following Roberts I, on August 15, 2006, Jackson filed a motion in
the trial court for leave to file a motion for a new sentencing hearing.
        {¶ 22} On October 5, 2006, Jackson’s attorney filed an affidavit of
disqualification against Judge Stuard, seeking to prevent the judge from acting on
any further trial or postconviction proceedings. On November 29, 2006, Chief
Justice Moyer denied that affidavit, stating:


                Judge Stuard has responded in writing to the affidavit. He
        acknowledges that he held the same kind of communications with
        the prosecuting attorney’s office in both the Roberts and Jackson
        capital cases before sentencing each of them to death * * *. The
        judge states that he is prepared to reconsider the evidence and
        impose a new sentence in this case just as he has been ordered to do
        in the related Roberts case.       He contends that his ex parte
        communications with the prosecuting attorney’s office were
        administrative rather than substantive, and he states that the
        prosecuting attorney’s office simply typed up his notes after he had
        independently weighed the evidence and reached a decision about
        the proper sentences for the two defendants.
                I find no basis for ordering the disqualification of Judge
        Stuard. The judge is entitled to consider the defendant’s motion for




                                          6
                                January Term, 2016




        relief from judgment now pending in the trial court, and if the judge
        concludes that relief is appropriate, he may grant that motion and
        conduct the new sentencing hearing * * *.


In re Disqualification of Stuard, 113 Ohio St.3d 1236, 2006-Ohio-7233, 863
N.E.2d 636, ¶ 4-5.
        {¶ 23} On February 15, 2008, Judge Stuard granted Jackson’s motion for
leave to file a motion for a new sentencing hearing. On February 29, 2008, Jackson
filed a motion “for a new trial and/or sentencing hearing” on the grounds that the
prosecution impermissibly collaborated in the drafting of the sentencing opinion.
        {¶ 24} On May 12, 2008, Jackson’s attorneys filed a second affidavit of
disqualification against Judge Stuard, premised on pending disciplinary
proceedings that had been brought against Judge Stuard for enlisting the assistant
prosecutor to prepare the sentencing opinion in Roberts’s case and contending that
Judge Stuard had shown his bias by refusing to grant Jackson the same relief that
Roberts had received in her case. On August 20, 2008, Chief Justice Moyer denied
that affidavit.
        {¶ 25} On January 29, 2009, we publicly reprimanded Judge Stuard for
violating the Canons of the Code of Judicial Conduct by engaging in “ex parte
communications four times” with the assistant prosecutor “about the sentencing
opinion in Roberts’s case.” Disciplinary Counsel v. Stuard, 121 Ohio St.3d 29,
2009-Ohio-261, 901 N.E.2d 788, ¶ 5, 16.
        {¶ 26} On May 4, 2009, Judge Stuard denied Jackson’s motion for a new
trial or a new sentencing hearing, and Jackson appealed the denial to the Eleventh
District.
                  D. Remand of Jackson’s case for resentencing
        {¶ 27} On October 15, 2010, the court of appeals held that the judge’s use
of the prosecutor to assist in preparing the sentencing opinion in Jackson’s case was




                                         7
                             SUPREME COURT OF OHIO




improper, vacated the sentence, and remanded for resentencing. 190 Ohio App.3d
319, 2010-Ohio-5054, 941 N.E.2d 1221, at ¶ 29, 33. The court mandated:


               In the case at bar, * * * the fact pattern is factually the same
        as that in Roberts. The record before us establishes that the same
        drafting procedures involving the sentencing entry that occurred in
        Roberts took place in the instant matter. * * * Based on the
        Supreme Court of Ohio’s holding in Roberts, appellant is entitled to
        the same relief afforded to his co-defendant. Thus, the trial judge
        must 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.
                        E. Jackson’s resentencing hearing
        {¶ 28} On August 14, 2012, Judge Stuard conducted Jackson’s resentencing
hearing. As a preliminary matter, the judge overruled a defense motion for his
voluntary recusal. He then proceeded with the hearing. During the hearing, Judge
Stuard overruled a defense motion to allow Jackson to present additional mitigating
evidence. Judge Stuard heard Jackson’s allocution. He then sentenced Jackson to
death and filed a sentencing opinion pursuant to R.C. 2929.03(F).
                 F. Roberts’s additional proceedings and appeals
        {¶ 29} On remand in Roberts’s case, Judge Stuard again sentenced her to
death. Roberts appealed as of right to this court. On October 22, 2013, we held
that the trial court in its sentencing opinion had erred in failing to consider the
allocution Roberts made at her resentencing hearing and that this omission rendered
the sentencing opinion “so inadequate as to severely handicap our ability to exercise




                                          8
                                January Term, 2016




our power of independent review.” State v. Roberts, 137 Ohio St.3d 230, 2013-
Ohio-4580, 998 N.E.2d 1110, ¶ 69-72 (“Roberts II”). We vacated Roberts’s death
sentence and remanded the case for resentencing. Id. at ¶ 72, 96.
       {¶ 30} On April 30, 2014, Judge Ronald Rice resentenced Roberts to death.
Her appeal is currently pending in this court in case No. 2014-0989.
                               III. Issues on Appeal
       {¶ 31} In this appeal, Jackson raises 12 propositions of law. We will
address his propositions out of order for ease of analysis.
       A. Trial judge’s impartiality on resentencing (Proposition of law III)
       {¶ 32} Jackson argues that he was denied a fair and impartial trial judge on
resentencing.
       {¶ 33} Judicial bias is defined as


       a hostile feeling or spirit of ill will or undue friendship or favoritism
       toward one of the litigants or his attorney, with the formation of a
       fixed anticipatory judgment on the part of the judge, as
       contradistinguished from an open state of mind which will be
       governed by the law and facts.


State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956), paragraph
four of the syllabus.
       {¶ 34} Under Article IV, Section 5(C) of the Ohio Constitution, the chief
justice or the chief justice’s designee has sole authority to determine whether a trial
judge is disqualified. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892
N.E.2d 864, ¶ 145; see State v. Moore, 93 Ohio St.3d 649, 650, 758 N.E.2d 1130
(2001); Beer v. Griffith, 54 Ohio St.2d 440, 441, 377 N.E.2d 775 (1978).




                                            9
                             SUPREME COURT OF OHIO




                                   1. Res judicata
       {¶ 35} Jackson renews his claims that Judge Stuard had been unfair and
should not have presided over his resentencing hearing.            One of Jackson’s
arguments is that Judge Stuard delayed ruling on Jackson’s motion for a new trial
until after a mandamus action was filed against him. But Chief Justice Moyer
considered similar arguments in ruling on Jackson’s attorneys’ second affidavit of
disqualification and determined that the allegations did not establish bias or create
a basis for disqualification. Thus, this claim is res judicata. Hale at ¶ 145; State v.
Rogers, 17 Ohio St.3d 174, 186, 478 N.E.2d 984 (1985), vacated on other grounds,
sub nom. Rogers v. Ohio, 474 U.S. 1002, 106 S.Ct. 518, 88 L.Ed.2d 452 (1985).
                                2. Other bias claims
       {¶ 36} First, Jackson argues that Judge Stuard demonstrated bias by
denying his motion for a new sentencing hearing after Judge Stuard had stated in
his response to the first affidavit of disqualification that he was prepared to grant
such a motion. In a related argument, Jackson asserts that Judge Stuard displayed
bias by refusing to accept this court’s rulings in Roberts I and in the disciplinary
action taken against him.
       {¶ 37} In his affidavit filed in the first disqualification attempt, Judge Stuard
stated that he had “essentially the same type of communications” with the assistant
prosecutors in both the Roberts and Jackson cases. Jackson characterizes Judge
Stuard’s acknowledgement of wrongdoing as implicitly representing that he would
cure the error. But Jackson asserts that Judge Stuard refused to concede any
wrongdoing during the resentencing hearing when the judge stated, “You are all
aware of the reason why this case is back here. The Supreme Court I think
misunderstood what occurred, but they have made their ruling and I must abide by
that.” Jackson asserts that the judge then violated his implicit promise to cure the
error by filing an almost identical copy of his prior sentencing opinion.




                                          10
                               January Term, 2016




       {¶ 38} In support of this claim, Jackson relies on Judge Cannon’s
concurring opinion in the case in which the Eleventh District remanded the matter
for resentencing. In that opinion, Judge Cannon stated:


               My decision that the trial judge should conduct a new
       sentencing hearing is based, in large measure, upon the
       representations made to the Supreme Court of Ohio by the trial
       judge. More than one affidavit to disqualify the trial judge was filed
       in this case. In November 2006, the trial judge filed an affidavit in
       response, opposing disqualification. In that affidavit, the trial judge
       acknowledged doing the same thing in this case that he did in State
       v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168,
       wherein the trial judge was ordered to conduct a new sentencing
       hearing. * * *
               ***
               Because he acknowledged doing the same thing that resulted
       in prejudicial error in the Roberts case, the trial judge conceded
       prejudicial error in Jackson’s case.            And, by opposing
       disqualification, the trial judge implicitly represented that he could
       remain on the case for purposes of curing that error. Given the
       circumstances, it would appear that the trial judge recognized that
       he would be required to do the same thing he was ordered to do in
       Roberts, regardless of the nature of the proceedings (whether
       postconviction or direct appeal), if he were permitted to remain on
       the case.


190 Ohio App.3d 319, 2010-Ohio-5054, 941 N.E.2d 1221, at ¶ 35, 41 (Cannon, J.,
concurring).




                                         11
                             SUPREME COURT OF OHIO




       {¶ 39} Judge Cannon in his concurrence explained his rationale for vacating
Jackson’s sentence and remanding the cause for resentencing. Yet none of Judge
Cannon’s remarks were made in the context of judicial bias. Thus, his concurring
opinion does not support Jackson’s bias claim.
       {¶ 40} Despite his bias claims, Jackson fails to show that Judge Stuard
displayed “a hostile feeling or spirit of ill will” toward him. Pratt, 164 Ohio St.
463, 132 N.E.2d 191, at paragraph four of the syllabus. Moreover, Judge Stuard’s
failure to provide the relief that Jackson believes was warranted does not establish
actual bias. See In re Disqualification of Floyd, 135 Ohio St.3d 1249, 2012-Ohio-
6336, 986 N.E.2d 10, ¶ 10 (the fact that a trial judge’s decision “was reversed in a
critical opinion by the appeals court does not imply that she will be biased against
[the appellants] or somehow retaliate against them”). Thus, these claims lack merit.
       {¶ 41} Second, Jackson claims that the judge was biased during the
resentencing proceedings, because he refused to consider new mitigating evidence.
The court of appeals directed Judge Stuard on remand to provide Jackson with “the
same relief afforded to” Roberts. 190 Ohio App.3d 319, 2010-Ohio-5054, 941
N.E.2d 1221, at ¶ 29. Roberts was not allowed to introduce new mitigating
evidence during her resentencing proceedings, and Judge Stuard approached
Jackson’s resentencing in the same fashion. See Roberts II, 137 Ohio St.3d 230,
2013-Ohio-4580, 998 N.E.2d 1100, at ¶ 41-43 (holding that Judge Stuard acted
appropriately in not permitting Roberts to introduce new mitigation evidence).
Accordingly, Judge Stuard’s rulings in Jackson’s case were not inconsistent with
the court of appeals’ directive and did not display bias.
       {¶ 42} Third, Jackson argues that the judge exhibited bias by failing to
consider his allocution before sentencing him to death. As will be discussed
regarding proposition IV, the trial court erred by failing to discuss Jackson’s
allocution in the R.C. 2929.03(F) sentencing opinion. But that error does not prove
that Judge Stuard harbored a hostile feeling or a spirit of ill will against Jackson or




                                          12
                                  January Term, 2016




his attorneys during the proceedings. Accordingly, Jackson fails to demonstrate
that any omissions from the sentencing opinion resulted from judicial bias.
          {¶ 43} Finally, Jackson argues that Judge Stuard’s bias denied him due
process in violation of the Fourteenth Amendment to the U.S. Constitution. Due
process requires that a criminal defendant be tried before an impartial judge. State
v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 34. If the record
evidence indicates that the trial was infected by judicial bias, the remedy is a new
trial. State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, ¶ 2.
          {¶ 44} Again, Jackson fails to demonstrate that Judge Stuard had actual bias
and acted with “ill will” or formed “a fixed anticipatory judgment” against him.
See Pratt, 164 Ohio St. 463, 132 N.E.2d 191, at paragraph four of the syllabus; see
also Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474
(1994). Therefore, this claim also lacks merit.
          {¶ 45} Based on the foregoing, we reject proposition III.
    B. Final, appealable order and sentencing opinion’s compliance with R.C.
                           2929.03(F) (Proposition of law I)
          {¶ 46} Jackson argues that this court lacks jurisdiction to hear his appeal
because the trial court’s sentencing opinion was defective and not completed as
R.C. 2929.03(F) requires. This court lacks jurisdiction over orders that are not final
and appealable. See Ohio Constitution, Article IV, Section 3(B)(2); R.C. 2953.02.
          {¶ 47} Crim.R. 32(C) prescribes the requirements for a final, appealable
order in a criminal case. The rule in effect at the time of Jackson’s resentencing
stated:


                 A judgment of conviction shall set forth the plea, the verdict,
          or findings, upon which each conviction is based, and the sentence.
          Multiple judgments of conviction may be addressed in one judgment
          entry. If the defendant is found not guilty or for any other reason is




                                           13
                             SUPREME COURT OF OHIO




       entitled to be discharged, the court shall render judgment
       accordingly. The judge shall sign the judgment and the clerk shall
       enter it on the journal. A judgment is effective only when entered
       on the journal by the clerk.


Former Crim.R. 32(C) (2009), 122 Ohio St.3d C. Accordingly, this court has held
that “a judgment of conviction is a final order subject to appeal under R.C. 2505.02
when the judgment entry sets forth (1) the fact of the conviction, (2) the sentence,
(3) the judge’s signature, and (4) the time stamp indicating the entry upon the
journal by the clerk.” State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958
N.E.2d 142, ¶ 14.
       {¶ 48} As a general matter, “[o]nly one document can constitute a final
appealable order,” meaning that a single entry must satisfy the requirements of
Crim.R. 32(C). State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d
163, ¶ 17. But there is an exception for capital cases, in which R.C. 2929.03(F)
requires the court or panel to file a sentencing opinion. State v. Ketterer, 126 Ohio
St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, syllabus and ¶ 17-18. In those cases, “a
final, appealable order consists of both the sentencing opinion filed pursuant to R.C.
2929.03(F) and the judgment of conviction filed pursuant to Crim.R. 32(C).” Id. at
syllabus.
       {¶ 49} On August 14, 2012, the trial court issued a sentencing opinion, as
R.C. 2929.03(F) requires. In the opinion, the trial court stated the jury’s verdict
and sentenced Jackson to death on the merged capital counts. On the same date,
the trial court filed a separate judgment entry imposing sentence for the noncapital
counts. On August 16, 2012, the trial court entered a nunc pro tunc entry to correct
various clerical errors that were present in the judgment entry. The sentencing
opinion, the judgment entry, and the nunc pro tunc entry were signed by the judge
and journalized. Together, these documents comply with the requirements of




                                         14
                                January Term, 2016




Crim.R. 32(C) and constitute a final, appealable order. See State v. Thompson, 141
Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 40.
       {¶ 50} Jackson argues that there is no final, appealable order because the
trial court’s sentencing opinion failed to comply with R.C. 2929.03(F). Jackson
claims that these defects included (1) the trial judge’s announcement during the
sentencing hearing that he had already drafted the sentencing opinion, (2) the
sentencing opinion’s omission of any consideration of new mitigating evidence and
of new mitigating factors that Jackson attempted to raise at the resentencing
hearing, and (3) the cumulative effect of those errors.
       {¶ 51} In Thompson, which was also a capital case, this court addressed the
argument that there was no final, appealable order because the sentencing opinion
contained an error. In that case, the trial court’s sentencing opinion mistakenly
referred to a five-year sentence on a noncapital count that the court had previously
dismissed but then purportedly merged with a lower-degree felony. Id. at ¶ 44-45.
This court in rejecting Thompson’s argument that there was no final, appealable
order stated, “ ‘[S]entencing errors are not jurisdictional.’ ” Id. at ¶ 45, quoting
Manns v. Gansheimer, 117 Ohio St.3d 251, 2008-Ohio-851, 883 N.E.2d 431, ¶ 6.
“Instead, sentencing errors can be remedied on appeal in the ordinary course of
law.” Thompson at ¶ 45.
       {¶ 52} Jackson’s challenge to the sentencing opinion involves capital
offenses rather than the noncapital offenses that were at issue in Thompson, but the
difference in the nature of these claims makes no difference in whether there is a
final, appealable order in compliance with Crim.R. 32(C). Accordingly, as in
Thompson, we have jurisdiction over Jackson’s appeal, and we reject proposition I.
  C. Exclusion of mitigating evidence on limited remand (Proposition of law V)
       {¶ 53} Jackson argues that the trial court erred by precluding the defense
from presenting mitigating evidence on remand.




                                         15
                             SUPREME COURT OF OHIO




                                      1. Facts
       {¶ 54} Before the resentencing hearing, Jackson filed a motion to permit the
defense to present additional mitigating evidence. The trial court denied that
motion.
       {¶ 55} After the motion was denied, the defense proffered three volumes of
mitigating evidence. This included Ohio death-penalty statistics and information
about the racial composition of juries in death-penalty cases; Jackson’s school
records; Jackson’s criminal and probation records; psychological testing
information; police reports completed following Fingerhut’s murder; a
psychological report, dated November 12, 2002, prepared by Dr. Sandra
McPherson, who evaluated Jackson prior to the mitigation phase of his trial;
affidavits from Jackson’s friends and family members; documentation of medical
concerns about Ohio’s lethal-injection protocol; and Jackson’s affidavit, dated May
20, 2004, expressing dissatisfaction about his trial counsel’s representation.
                                    2. Analysis
       {¶ 56} Under the Eighth Amendment, the sentencer in a capital case may
“not be precluded from considering, as a mitigating factor, any aspect of a
defendant’s character or record and any of the circumstances of the offense that the
defendant proffers as a basis for a sentence less than death.” (Emphasis sic.)
Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality
opinion). Moreover, “[j]ust as the State may not by statute preclude the sentencer
from considering any mitigating factor, neither may the sentencer refuse to
consider, as a matter of law, any relevant mitigating evidence.” (Emphasis sic.)
Eddings v. Oklahoma, 455 U.S. 104, 113-114, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982);
see also Hitchcock v. Dugger, 481 U.S. 393, 398-399, 107 S.Ct. 1821, 95 L.Ed.2d
347 (1987).
       {¶ 57} In Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d
1 (1986), the court held that a capital defendant had an Eighth Amendment right to




                                         16
                                January Term, 2016




introduce, at his sentencing hearing, “testimony * * * regarding his good behavior
during the over seven months he spent in jail awaiting trial.” Id. at 4. This was
relevant “evidence in mitigation” because


       the jury could have drawn favorable inferences from this testimony
       regarding petitioner’s character and his probable future conduct if
       sentenced to life in prison. * * * [T]here is no question but that
       such inferences would be “mitigating” in the sense that they might
       serve “as a basis for a sentence less than death.” * * * [E]vidence
       that the defendant would not pose a danger if spared (but
       incarcerated) must be considered potentially mitigating. Under
       Eddings, such evidence may not be excluded from the sentencer’s
       consideration.


(Footnote omitted.) Id. at 4-5, quoting Lockett at 604.
       {¶ 58} The United States Supreme Court has not determined that a capital
defendant has a categorical constitutional right to introduce new mitigation
evidence that is discovered after a sentencing hearing in which the defendant was
given an opportunity to present all the mitigation evidence he desired. That court
has also not resolved whether a remand for a limited resentencing in a capital case
that effectively excludes the presentation of newly discovered mitigation evidence
is constitutionally invalid. See State v. Berget, 2014 S.D. 61, 853 N.W.2d 45, ¶ 32.
       {¶ 59} Jackson invokes Davis v. Coyle, 475 F.3d 761 (6th Cir.2007), in
arguing that the trial court violated his constitutional rights by denying his motion
to fully present mitigation at the resentencing hearing. Jackson asserts that the
Eighth Amendment, as interpreted by Lockett and its progeny, entitled him to
present the evidence on remand.




                                         17
                             SUPREME COURT OF OHIO




        {¶ 60} In State v. Davis, 63 Ohio St.3d 44, 584 N.E.2d 1192 (1992), a three-
judge panel excluded posttrial mitigation evidence during a defendant’s
resentencing hearing. On appeal, we held that neither Lockett, Eddings, Skipper,
nor Hitchcock entitled the defendant to present the evidence on remand. Davis at
46. We distinguished Skipper by noting that it involved the erroneous exclusion of
“evidence of Skipper’s good prison record between his arrest and trial.” (Emphasis
sic.) Id.
        {¶ 61} The United States Court of Appeals for the Sixth Circuit later
addressed this issue in habeas corpus proceedings involving the Davis case. In
Coyle, the Sixth Circuit held that the three-judge panel’s decision to exclude
posttrial mitigation evidence from Davis’s resentencing hearing violated his Eighth
Amendment rights. Id. at 773. The Sixth Circuit stated that this court’s affirmance
of that ruling in Davis, “based on the court’s belief that the facts of Davis’s case
could be distinguished from Skipper’s solely on the basis of timing, was both an
unreasonable application of the decision in Skipper and contrary to the holding in
that opinion and its antecedent cases.” Id. The Coyle court concluded that “the
holding in Skipper * * * requires that, at resentencing, a trial court must consider
any new evidence that the defendant has developed since the initial sentencing
hearing.” Id. at 774, citing Skipper, 476 U.S. at 8, 106 S.Ct. 1669, 90 L.Ed.2d 1.
        {¶ 62} In Roberts II, 137 Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d
1110, at ¶ 39, we declined to apply Coyle and rejected claims that the trial court’s
failure to admit mitigating evidence during the resentencing hearing violated
Roberts’s Eighth Amendment rights. As discussed earlier, this court in Roberts I
affirmed Roberts’s convictions, but we remanded for limited resentencing because
the trial judge engaged in ex parte communications with the prosecutor in drafting
the sentencing opinion. Roberts I, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d
1168, at ¶ 153-164. On remand, Roberts filed a motion to introduce new mitigating




                                         18
                                January Term, 2016




evidence, but the trial judge denied that motion and resentenced Roberts to death.
Roberts II at ¶ 12-13.
       {¶ 63} In Roberts II, we emphasized that Coyle was not binding precedent,
because “we are ‘not bound by rulings on federal statutory or constitutional law
made by a federal court other than the United States Supreme Court.’ ” Roberts II
at ¶ 33, quoting State v. Burnett, 93 Ohio St.3d 419, 424, 755 N.E.2d 857 (2001).
But we considered whether Coyle was persuasive and on point in the case before
us. This court in Roberts II then distinguished Lockett, Eddings, Skipper, and
Hitchcock on the grounds that none of those cases involved “a proceeding on
remand for the limited purpose of correcting an error that occurred after the
defendant had had a full, unlimited opportunity to present mitigating evidence to
the sentencer.” (Emphasis sic.) Roberts II at ¶ 34.
       {¶ 64} We concluded:


               In a case in which the defendant was not deprived of any
       constitutional right—including her Eighth Amendment right to
       present mitigation—at the time of her mitigation hearing, there
       seems to be no basis for requiring the trial court to reopen or
       supplement that evidence in a later proceeding. To hold, as Coyle
       does, that a new mitigation hearing must be held, even though no
       constitutional error infected the original one, would transform the
       right to present relevant mitigation into a right to update one’s
       mitigation. Such a right has no clear basis in Lockett or its progeny.


(Emphasis sic.) Roberts II at ¶ 36.
       {¶ 65} Jackson argues that the opinion in Roberts II “failed to acknowledge
that other federal courts of appeals have reached the same conclusion” that the Sixth
Circuit reached in Coyle. But that is incorrect. The opinion in Roberts II cited




                                         19
                             SUPREME COURT OF OHIO




United States Court of Appeals decisions from the Ninth and Eleventh Circuit
Courts of Appeals that were in accord with Coyle. Roberts II at ¶ 32, citing Creech
v. Arave, 947 F.2d 873, 881-882 (9th Cir.1991) (en banc), and Spaziano v.
Singletary, 36 F.3d 1028, 1032-1035 (11th Cir.1994). More importantly, those
decisions do not change the fact that the United States Supreme Court has not ruled
on this issue.
        {¶ 66} Jackson also argues that like the petitioner in Coyle, he suffered
actual prejudice by not being allowed to present information as to his exemplary
behavior in prison. During allocution, Jackson stated, “I haven’t been in any
trouble since I have been on death row since 2007 and that was a little minor
situation, but I haven’t been in any trouble or anything since then. * * * I have
learned to adjust to the environment without any problem.” Jackson proffered no
other evidence relative to his good behavior in prison.
        {¶ 67} In Coyle, the Sixth Circuit noted that although neither side was
permitted to introduce new evidence during the resentencing hearing, the state had
argued to the trial court that Davis’s status as a repeat offender made him too
dangerous to be sentenced to anything other than death. Coyle, 475 F.3d at 772-
773. In rebuttal, Davis relied upon evidence presented at his first sentencing
hearing, but he was not allowed to present testimony about his most recent behavior
and adjustment to prison life. Id. at 773. The court in Coyle held that the testimony
Davis was prevented from presenting was “highly relevant” and should have been
allowed. Id.
        {¶ 68} The facts in Coyle are distinguishable from what occurred during
Jackson’s resentencing hearing. The prosecutor at that hearing made no argument
in favor of the death penalty. Thus, unlike Coyle, Jackson had no arguments to
rebut. Moreover, it is unclear what other evidence about good prison behavior
(besides his statement in allocution) Jackson could have presented. Accordingly,




                                         20
                                January Term, 2016




Coyle does not support Jackson’s claim that his constitutional rights were violated
because he was not allowed to present evidence about his prison behavior.
       {¶ 69} Jackson also argues that he should have been allowed to present new
mitigating evidence about his background because evidence presented during his
original sentencing hearing was inaccurate.        Jackson asserts that during his
mitigation hearing, information was presented indicating that he was a good
student, had a positive upbringing, and had average intellectual ability with an IQ
score of 84. Jackson states that the court should have considered additional
information during the resentencing proceedings that showed that his mother was
an alcoholic, he grew up in a bad neighborhood marked by violent crime and drug
addiction, he was a poor student with severe behavioral issues and borderline
intelligence, and his IQ score of 84 was inaccurate.
       {¶ 70} Jackson argues that mitigating evidence pertaining to his
background was presented in a different light during the sentencing phase of his
jury trial than that evidence should have been conveyed. Yet Jackson was given a
full opportunity to present mitigating evidence during his initial sentencing hearing.
Accordingly, Jackson was not entitled to improve or expand his mitigating evidence
simply because the court of appeals required the judge to resentence him and
prepare a new sentencing opinion. See Roberts II, 137 Ohio St.3d 230, 2013-Ohio-
4580, 998 N.E.2d 1100, at ¶ 36; State v. Chinn, 85 Ohio St.3d 548, 564-565, 709
N.E.2d 1166 (1999). We reject this claim.
       {¶ 71} In a recent decision, the South Dakota Supreme Court also held that
a capital defendant does not have an Eighth Amendment right to present updated
mitigation evidence on resentencing. Berget, 2014 S.D. 61, 853 N.W.2d 45, at
¶ 45-46. The court in Berget considered and compared the reasoning underlying
Coyle and Roberts II and determined that Roberts II is the more persuasive
authority. Berget at ¶ 38.




                                         21
                            SUPREME COURT OF OHIO




       {¶ 72} As to claims similar to those raised by Jackson, the Berget court
reasoned that recognizing a defendant’s right to present updated mitigation in this
situation “would establish the incentive to turn a limited resentencing into a full-
fledged, second sentencing hearing by seeking out all newly discoverable
mitigation evidence conceivable, again no longer making the original sentencing
proceeding the ‘ “main event” ’ but consigning it to a mere ‘ “tryout on the road.”
’ ” Id. at ¶ 45, quoting Gregory v. Solem, 449 N.W.2d 827, 833 (S.D.1989), quoting
Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The
Berget court added, “It is also more than conceivable that Berget may claim new,
positive relationships with family members, fellow prisoners, or strangers for the
remainder of his life if this Court permits each assertion of a relationship to be
grounds for a new sentencing hearing or grounds for ignoring our limited remand
instructions.” Id.
                                   3. Conclusion
       {¶ 73} No binding authority holds that the Eighth Amendment requires a
resentencing judge to accept and consider new mitigation evidence at a limited
resentencing when the defendant had the unrestricted opportunity to present
mitigating evidence during his original mitigation hearing. Accordingly, we adhere
to our precedent in Roberts II and reject proposition V.
D. Failure to discuss allocution in the sentencing opinion (Proposition of law VI)
       {¶ 74} Jackson argues that the trial court failed to consider his allocution in
determining his sentence.
                                      1. Facts
       {¶ 75} At the resentencing hearing on August 14, 2012, the trial court asked
trial counsel if they had anything further to say. Counsel indicated that Jackson
wanted to make a statement. Jackson then said:




                                         22
                               January Term, 2016




               Your Honor, I would just like to say, doing my time in
       Trumbull Correctional, I went down there and obtained a certificate
       in basic skills computer class and I passed advanced class and also
       became a tutor down there and also got a certificate in the music
       program, and I was trying to get into other different programs that
       they have down there. I haven’t been in any trouble since I have
       been on death row since 2007 and that was a little minor situation,
       but I haven’t been in any trouble or anything since then, Your
       Honor. Since I have been off of death row, I understand a lot of
       things. In a different situation and different environment I was in, I
       have learned to adjust to the environment without any problem,
       Your Honor.


       {¶ 76} The trial court stated, “I accept what you are saying” and then also
afforded Jackson the opportunity to speak before pronouncing the sentence.
Jackson said, “I feel that doing my time, I have learned to find myself and I know
who I am right now, and * * * I wouldn’t like to be placed back on death row. I
really wouldn’t.”
       {¶ 77} The trial court filed the sentencing opinion on the same afternoon,
after the resentencing hearing concluded. The trial court stated in the sentencing
opinion that it had considered “the relevant evidence raised at trial, the relevant
testimony, the other evidence, the unsworn statement of the Defendant, and the
arguments of counsel.”     The sentencing opinion did not mention Jackson’s
allocution.
                                    2. Analysis
       {¶ 78} Jackson argues that the trial court’s failure to mention his allocution
in its sentencing opinion shows that it was not considered.




                                        23
                              SUPREME COURT OF OHIO




        {¶ 79} In Roberts II, the trial court did not discuss the defendant’s allocution
in its sentencing opinion. 137 Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100,
at ¶ 52-53. In reviewing this omission, we stated in Roberts II:


               We have previously rejected claims that a trial court’s failure
        to mention particular mitigating factors in a sentencing opinion
        obliges a reviewing court to infer that the trial court failed to
        consider those factors. “ * * * While a sentencing court must
        consider all evidence of mitigation, it need not discuss each
        [allegedly mitigating] factor individually.”


(Emphasis and words in brackets sic.) Id. at ¶ 54, quoting State v. Phillips, 74 Ohio
St.3d 72, 102, 656 N.E.2d 643 (1995), citing Parker v. Dugger, 498 U.S. 308, 314-
315, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991). In Roberts II, we held that “the
particular circumstances” of the case warranted “the inference that the trial judge
did, in fact, fail to consider Roberts’s allocution in sentencing her to death.” Id. at
¶ 55.
        {¶ 80} In Roberts II, allocution was “the only relevant matter” in mitigation
that Roberts presented during her original sentencing or her resentencing.
(Emphasis sic.) Id. at ¶ 56. Roberts had presented no mitigating evidence during
her original trial. Id. During her allocution on resentencing, however, Roberts
presented mitigating information about her childhood abuse and rape, recited her
history of mental-health issues, and provided examples of her selflessness and
contributions to society. The latter included her time working in a plastic surgeon’s
office, her treatment of wounded soldiers in Israel, and her efforts to assist the less
fortunate, including making monetary donations. Id. at ¶ 57-61.
        {¶ 81} In Roberts II, we emphasized “the presence of relevant and
potentially significant mitigation in Roberts’s allocution” and “the utter lack of




                                          24
                               January Term, 2016




anything else offered for the specific purpose of mitigation.” Id. at ¶ 64. In
addition, we had specifically called the matter of allocution to the trial judge’s
attention in remanding the case in Roberts I. See Roberts II at ¶ 63, citing Roberts
I, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, at ¶ 166. In Roberts II,
we stated, “Given these unusual circumstances, we are justified in drawing the
inference that when the trial judge weighed the aggravating circumstances against
the mitigating factors he did not consider Roberts’s allocution.” Id. at ¶ 64. We
concluded that this failure violated the Eighth Amendment. Id. at ¶ 65, 69.
        {¶ 82} In reviewing potential remedies, we acknowledged in Roberts II that
this court’s independent reweighing can sometimes rectify an error in the
sentencing opinion. Id. at ¶ 69, citing Phillips, 74 Ohio St.3d at 102, 656 N.E.2d
643.   Yet in Roberts II, we concluded that the sentencing opinion was “so
inadequate as to severely handicap our ability to exercise our power of independent
review,” and we vacated the sentence of death. Id. at ¶ 72. We ordered the trial
court on remand to consider the entire record again, including Roberts’s allocution,
to determine whether the aggravating circumstances outweigh the mitigating
factors and then to write and file a sentencing opinion pursuant to R.C. 2929.03(F).
Id. at ¶ 73.
        {¶ 83} In remanding Jackson’s case for resentencing, the court of appeals
stated, “Based on the Supreme Court of Ohio’s holding” in Roberts I, Jackson “is
entitled to the same relief afforded to his co-defendant.” 190 Ohio App.3d 319,
2010-Ohio-5054, 941 N.E.2d 1221, at ¶ 29.          Jackson’s remand proceedings
involved the same judge, who did not mention Jackson’s allocution in his
resentencing opinion. Although our decision in Roberts II was announced more
than a year after Jackson’s resentencing occurred, we conclude that the trial court
should have considered Jackson’s allocution in the resentencing opinion.




                                        25
                             SUPREME COURT OF OHIO




                                     3. Remedy
       {¶ 84} We now turn to the question of how to remedy the error. We have
previously stated that even if a trial court “ ‘should have more explicitly analyzed
the mitigating evidence,’ this court’s independent reweighing will rectify the error.”
Phillips at 102, quoting State v. Lott, 51 Ohio St.3d 160, 171, 555 N.E.2d 293
(1990). In State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768 (1984), we used
independent review to rectify a trial court’s failure to enunciate its reasoning.
There, we observed that the very purpose of an independent appellate review of
death sentences is, “at least in part, to correct such omissions.” Id. at 247.
       {¶ 85} In sharp contrast to Roberts I, Jackson presented extensive
mitigating evidence during his original sentencing hearing. Jackson’s mother and
three other family members testified about his upbringing. See 107 Ohio St.3d 300,
2006-Ohio-1, 839 N.E.2d 362, at ¶ 164-167. Dr. Sandra McPherson, a clinical and
forensic psychologist, provided testimony about Jackson’s poor school record,
parental neglect, serious behavioral problems, IQ scores, and early drug use and
alcohol dependency. Id. at ¶ 169-175. Jackson also made an unsworn statement
and apologized for what happened to the victim. Id. at ¶ 176.
       {¶ 86} Unlike the situation in Roberts II, Jackson’s allocution during his
resentencing hearing added little to the mitigation that was already before the court.
Jackson told the court at his resentencing hearing that he had obtained educational
certificates, had served as a tutor, and had not been in any serious trouble either on
or off death row. Jackson claims that the court’s failure to consider his good prison
behavior was especially prejudicial. Evidence had established, however, that
Jackson and Roberts planned Fingerhut’s death while Jackson was in prison earlier.
Under these circumstances, it is doubtful that Jackson’s claim about his adaptation
to prison life could have carried much weight. We hold that any omissions in the
sentencing opinion were harmless beyond a reasonable doubt. See Chapman v.
California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).




                                          26
                                January Term, 2016




       {¶ 87} Based on the foregoing, we decline to remand this case for a new
sentencing opinion. Instead, we shall cure any error in the sentencing opinion
during our independent evaluation of Jackson’s capital sentence.
     E. Prosecutorial taint of the sentencing opinion (Proposition of law VII)
       {¶ 88} Jackson argues that the similarities between the 2002 and 2012
sentencing opinions show that the 2012 sentencing opinion remains “tainted” by
the prosecutor’s involvement. He contends, therefore, that the case should be
remanded to the trial court to write an entirely new sentencing opinion.
                                      1. Facts
       {¶ 89} On December 9, 2002, Judge Stuard filed a death-penalty sentencing
opinion following Jackson’s trial. The Eleventh District later ordered the trial court
to “personally review and evaluate the appropriateness of the death penalty” and
“prepare an entirely new sentencing entry as required by R.C. 2929.03(F).” 190
Ohio App.3d 319, 2010-Ohio-5054, 941 N.E.2d 1221, at ¶ 29.
       {¶ 90} On August 14, 2012, Judge Stuard filed a new sentencing opinion
after resentencing Jackson to death. In that opinion, Judge Stuard stated:


               This writer has presided over the trial of each of the Co-
       Defendants, Nathaniel Jackson and Donna Roberts.              He has
       reviewed and decided the appropriateness of the death penalty
       option in both cases as required by O.R.C. 2929.03 and now does so
       again as ordered by the Ohio Supreme Court.


       {¶ 91} The 2002 and 2012 sentencing opinions are very similar. The 2002
sentencing opinion summarized the trial-phase evidence, discussed the aggravating
circumstances and mitigating evidence, and explained why the trial court concluded
that “the aggravating circumstances, outweighed, by proof beyond a reasonable
doubt, the collective mitigating factors.” The 2012 sentencing opinion added three




                                         27
                            SUPREME COURT OF OHIO




new introductory paragraphs explaining the reasons for Jackson’s resentencing
proceedings. Two other paragraphs were rewritten to discuss the trial-phase
evidence in a different way. Otherwise, the two opinions are almost identical.
                                    2. Analysis
       {¶ 92} Jackson argues that Judge Stuard’s failure to write an entirely new
sentencing opinion shows that the 2012 opinion remains impermissibly tainted by
the prosecutor’s earlier involvement. He asserts that a few cosmetic changes from
the old to the new sentencing opinion did not remove that taint.
       {¶ 93} In his 2012 sentencing opinion, Judge Stuard acknowledged his
responsibility to review and decide the appropriateness of the death penalty anew.
Nothing in the remand directed Judge Stuard to totally deconstruct the sentencing
opinion in preparing a new one. Moreover, Judge Stuard had before him the same
mitigating evidence, except for the information conveyed in Jackson’s 2012
allocution, in 2002 and 2012. This helps explain the similarities between the two
opinions.
       {¶ 94} Jackson presents no additional evidence showing that prosecutorial
taint from the 2002 sentencing opinion carried over to the 2012 sentencing opinion.
Indeed, during oral argument, Jackson’s counsel acknowledged that the prosecutor
was not involved in writing the new sentencing opinion. Accordingly, Jackson has
failed to overcome the presumption that the judge was “capable of separating what
may properly be considered from what may not be considered” and followed the
law. In re Disqualification of Forsthoefel, 135 Ohio St.3d 1316, 2013-Ohio-2292,
989 N.E.2d 62, ¶ 9, citing In re Disqualification of George, 100 Ohio St.3d 1241,
2003-Ohio-5489, 798 N.E.2d 23, ¶ 5. Under these circumstances, it is unnecessary
for the trial court to prepare a third sentencing opinion because of similarities in
wording between the second and first sentencing opinions.
       {¶ 95} Based on the foregoing, we reject proposition VII.




                                        28
                               January Term, 2016




      F. Failure to have two appointed attorneys at the resentencing hearing
                              (Proposition of law IV)
        {¶ 96} Jackson argues that the trail court’s failure to ensure that two
appointed attorneys represented him at his resentencing hearing violated his rights
to effective assistance of counsel and due process.
        {¶ 97} To establish ineffective assistance of counsel, Jackson must show
that his trial counsel’s performance was both deficient and prejudicial. Strickland
v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). With respect to
deficiency, Jackson must show that his counsel’s performance “fell below an
objective standard of reasonableness.” Strickland at 688. With respect to prejudice,
Jackson must show that there is a reasonable probability that but for his counsel’s
unprofessional errors, the outcome of the proceeding would have been different.
Id. at 694.
                                       1. Facts
        {¶ 98} On August 1, 2012, Randall Porter, an assistant state public
defender, submitted a motion requesting the trial court to appoint two attorneys,
including himself, for resentencing purposes.         He also filed a motion for a
continuance. Porter stated that he was familiar with the record and had represented
Jackson for eight years. Porter stated that attorney John Parker had been serving as
“volunteer counsel” for Jackson for the previous five years, but Porter also stated
that Parker could not accept an appointment because Parker had been appointed to
represent Jackson in his federal habeas proceedings. On August 13, the trial court
denied the motion for a continuance.
        {¶ 99} At the resentencing hearing on August 14, Porter and Parker
appeared before the court. As a preliminary matter, Porter stated that Jackson
“today is technically here without appointed counsel. I’m not appointed for this
matter.” The trial court responded:




                                         29
                             SUPREME COURT OF OHIO




       We are not here because of pending charges against Mr. Jackson.
       We are here solely as a result of the appeal that was filed from the
       original trial.   Therefore, it appears to me that you are the
       appropriate counsel. This Court need not reappoint you. You are
       merely handling the appeal process for Mr. Jackson. Otherwise we
       wouldn’t be here.


       {¶ 100} Parker then told the court that he had “never been appointed in state
court to represent Mr. Jackson.” Parker stated, “I have only been appointed to
represent him on that federal [habeas] petition.” Parker added, “I am here as a
courtesy to the Court because I received notice to be here, and I have been involved
in Mr. Jackson’s case, as a courtesy to Mr. Jackson and the Ohio Public Defender’s
Office.”
       {¶ 101} Parker also told the court that he was concerned that there was a
conflict between his representation of Jackson in this case and in the federal habeas
case. The trial court responded, “That is something I need not determine. That is
up to you, whatever you are comfortable with.” After some additional discussion,
the trial court added, “[It] is up to Mr. Parker. If he feels there is some conflict, I
am not going to insist that he proceed at this time.” Porter and Parker remained in
the courtroom, but only Porter spoke during the remainder of the resentencing
hearing.
                                     2. Analysis
                                a. Conflict of interest
       {¶ 102} Jackson argues that Parker could not represent him during the
resentencing proceedings due to a potential conflict of interest. In order to satisfy
a Sixth Amendment claim of ineffective assistance of counsel, Jackson must
demonstrate that an actual conflict of interest adversely affected his counsel’s actual




                                          30
                                January Term, 2016




performance. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d
333 (1980); State v. Manross, 40 Ohio St.3d 180, 182, 532 N.E.2d 735 (1988).
Jackson invokes Martinez v. Ryan, 566 U.S.__, 132 S.Ct. 1309, 182 L.Ed.2d 272
(2012), in arguing that Parker’s “potential conflict” disqualified him from
representing Jackson during the resentencing proceedings.
       {¶ 103} In Martinez, 566 U.S. __, 132 S.Ct. at 1315, the United States
Supreme Court recognized a “narrow exception” to the rule established in Coleman
v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), that
defendants possess no federal constitutional right to the effective assistance of
counsel in postconviction proceedings. The court in Martinez held:


               Where, under state law, claims of ineffective assistance of
       trial counsel must be raised in an initial-review collateral
       proceeding, a procedural default will not bar a federal habeas court
       from hearing a substantial claim of ineffective assistance at trial if,
       in the initial-review collateral proceeding, there was no counsel or
       counsel in that proceeding was ineffective.


Martinez, 566 U.S. __, 132 S.Ct. at 1320.
       {¶ 104} Martinez is directed toward federal habeas proceedings and is
intended to address issues that arise in that context. Howell v. State, 109 So.3d 763,
774 (Fla.2013). Similarly, Jackson’s arguments regarding the alleged “conflict of
interest” are primarily directed toward future federal proceedings and the
possibility of raising ineffectiveness claims based on Martinez in that forum. See
Howell at 773. But Jackson does not demonstrate that any actual conflict existed
at the time of the resentencing hearing.
       {¶ 105} Moreover, Jackson does not state with any particularity what
adverse effect the claimed conflict had upon his counsel’s performance. He has not




                                           31
                                  SUPREME COURT OF OHIO




cited any specific claims that Parker failed to assert at his resentencing proceeding
due to a conflict of interest. Therefore, we reject this aspect of Jackson’s argument.
                                 b. Appointment of counsel
         {¶ 106} At the time of Jackson’s resentencing, former Sup.R. 20(II)(A)
required that at least two capitally certified trial attorneys “shall be appointed by
the court to represent an indigent defendant” in capital cases. Former Sup.R.
20(II)(B) required that at least two capitally certified appellate attorneys “shall be
appointed by the court to appeal cases where the trial court has imposed the death
penalty on an indigent defendant.”1
         {¶ 107} The trial court did not appoint Porter or Parker as counsel for
Jackson due to the court’s belief that Jackson’s resentencing was a continuation of
the appellate proceedings that led to the remand. This belief was incorrect. Former
Sup.R. 20 had separate requirements for the appointment of counsel during trial
and appellate proceedings in capital cases. Moreover, when a case is remanded for
resentencing, the trial court “must approach resentencing as an independent
proceeding complete with all applicable procedures.” State v. Gray, 8th Dist.
Cuyahoga No. 81474, 2003-Ohio-436, ¶ 12; State v. Aliane, 10th Dist. Franklin No.
03AP-840, 2004-Ohio-3730, ¶ 11. Accordingly, the trial court erred in concluding
that Jackson was not entitled to the appointment of counsel for purposes of the
resentencing proceedings.
         {¶ 108} The state argues that the defense requests for appointment of
counsel and a continuance were last-minute delaying tactics because the requests
were not made until 13 days before resentencing. The state argues, therefore, that


1
  The provisions governing the appointment of counsel that were formerly contained in Sup.R.
20(II)(A) and (B) are now in the Rules for the Appointment of Counsel in Capital Cases, as
Appt.Coun.R. 5.02(A) and 5.03(A), effective February 1, 2015. See 141 Ohio St.3d CLXXXIII-
CLXXXIV. The former rules have been revised, but the language quoted here from the former
rules is substantially similar to the corresponding current provisions in Appt.Coun.R. 5.02(A) and
5.03(A).




                                                32
                                January Term, 2016




if the trial court erred, defense counsel invited it. Under the invited-error doctrine,
“a party is not entitled to take advantage of an error that he himself invited or
induced the court to make.” State ex rel. Kline v. Carroll, 96 Ohio St.3d 404, 2002-
Ohio-4849, 775 N.E.2d 517, ¶ 27, citing Lester v. Leuck, 142 Ohio St. 91, 50 N.E.2d
145 (1943), paragraph one of the syllabus. The state’s reliance on invited error is
misplaced, because Jackson was entitled to be represented by two appointed
counsel.
                                 c. Lack of prejudice
       {¶ 109} The state argues that Jackson was not prejudiced because Porter
and Parker were capitally certified counsel, Parker never formally withdrew from
representing Jackson prior to the resentencing hearing and was present at the
hearing, and Jackson received appropriate representation up to and during the
resentencing hearing. Porter and Parker had represented Jackson on numerous
motions, appeals, and other matters related to these offenses.             Porter had
represented him for eight years, and Parker had represented him since April 2007.
The matters in which they had jointly represented Jackson included filing the
motion for a new trial or a new sentencing hearing, filing the second application
requesting that Chief Justice Moyer disqualify Judge Stuard, filing a complaint for
writs of mandamus and procedendo in this court, and filing memoranda opposing
the state’s motion to set a date for Jackson’s resentencing hearing. They also
represented Jackson on the appeal to the Eleventh District that resulted in his
resentencing. See the attorneys listed at the start of 190 Ohio App.3d 319, 2010-
Ohio-5054, 941 N.E.2d 1221.
       {¶ 110} During the resentencing hearing, Porter proffered three volumes of
mitigating information into the record, argued that the capital specifications should
be merged, informed the court that Jackson would like to make a statement before
being sentenced, and asked the trial court to waive costs because of Jackson’s
indigency.




                                          33
                            SUPREME COURT OF OHIO




       {¶ 111} In sum, Jackson was represented at the resentencing proceedings
by the same counsel who had represented him for the previous several years. Porter
and Parker were eminently familiar with Jackson’s case, Porter actively engaged in
multiple discussions with the trial court and the prosecution, Parker spoke to the
trial court and was present in the courtroom, and the record shows that Jackson was
capably represented during the resentencing hearing. Under these circumstances,
Jackson was not prejudiced or otherwise denied due process. We reject proposition
IV.
            G. Ineffective assistance of counsel (Proposition of law II)
       {¶ 112} Jackson argues that he was denied effective assistance of counsel
because of the last-minute substitution of new counsel for co-counsel during his
2002 mitigation hearing. As discussed regarding proposition of law IV, both
deficient performance and prejudice are required to justify reversal based on
ineffective assistance of counsel. Strickland, 466 U.S. at 687, 104 S.Ct. 2052, 80
L.Ed.2d 674.
                                      1. Facts
       {¶ 113} During the 2002 trial proceedings that ended with the jury finding
Jackson guilty, Jackson had been represented by lead counsel, Anthony
Consoldane, and co-counsel, James Lewis.          Before the start of mitigation
proceedings on November 14, 2002, and out of the jury’s presence, the trial court
mentioned that Lewis had been in the hospital and stated, “He’s back home now,
but because he’s medicated, does not feel it would be appropriate to appear on the
defense team today.”
       {¶ 114} The trial court asked Consoldane if the defense wanted a
continuance. Consoldane replied, “I have talked with Mr. Jackson and we do not
think that any delay at this point would be wise.” Consoldane asked the court to
allow attorney Thomas Wright to sit as co-counsel in Lewis’s absence. Consoldane
stated that Wright had completed the standard three-day death-penalty seminar but




                                        34
                                January Term, 2016




was not certified and had not applied for certification. The trial court then
addressed Jackson:


               THE COURT: Mr. Jackson, are you in agreement with
       proceeding without Mr. Lewis being here and having Mr. Wright
       and Mr. Consoldane?
               THE DEFENDANT: Yes, Sir, Your Honor.
               THE COURT: [You] understand that I would consider a
       continuance until probably Monday, if you wished.
               THE DEFENDANT: Yes, Sir.
               THE COURT: You have talked with your attorney and have
       agreed with him that it is in your best interest to go forward today?
               THE DEFENDANT: Yes, Sir, Your Honor.


The prosecutor then stated that the state would not object if the defense wanted a
continuance.
       {¶ 115} Following this questioning, the trial court allowed Wright to serve
as co-counsel for this part of the proceeding. Wright participated briefly during the
hearing, arguing that Dr. McPherson, the defense psychologist, should be allowed
to sit at defense counsel’s table while other witnesses testified during the mitigation
hearing. Lewis returned as co-counsel at the next hearing, which was held on
November 26, 2002.
       {¶ 116} On his direct appeal to this court, Jackson did not raise an
ineffectiveness claim based on Wright’s representation as substitute co-counsel.
But in his initial petition for postconviction relief, he did raise an ineffectiveness
claim as to Wright’s representation, arguing that Wright was not capitally certified
and was new to the case. See State v. Jackson, 11th Dist. Trumbull No. 2004-T-
0089, 2006-Ohio-2651, ¶ 139-141. The trial court rejected that claim, and the court




                                          35
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of appeals agreed, stating that “none of the exhibits presented by appellant in
support of this claim demonstrate that Attorney Wright was ineffective.” Id. at
¶ 140. The court of appeals also noted that Jackson had rejected an offer to delay
the proceedings and had said that he wanted to proceed with attorney Wright. Id.
The court of appeals affirmed the trial court’s denial of Jackson’s petition, and this
court denied review. 111 Ohio St.3d 1469, 2006-Ohio-5625, 855 N.E.2d 1258.
                                     2. Analysis
                                a. Jackson’s claims
       {¶ 117} Jackson is not challenging his counsel’s performance at the 2012
resentencing hearing. Instead, he claims that he was denied the effective assistance
of counsel by the substitution of co-counsel during his 2002 mitigation hearing.
Jackson links the substitution of co-counsel to trial counsel’s deficient performance
at the 2002 hearing in the following respects: (1) attorney Wright was not qualified
and lacked any knowledge of Jackson’s case, (2) counsel failed to conduct a
reasonable sentencing investigation, (3) attorney Consoldane failed to request a
continuance to permit an adequate investigation, (4) counsel failed to retain a
competent expert because Dr. McPherson’s investigation and performance were
deficient, and (5) counsel failed to lodge timely objections during the mitigation
hearing.
                                   b. Res judicata
       {¶ 118} Jackson’s ineffectiveness claims relating to substitute counsel, trial
counsel’s failure to request a continuance, and counsel’s failure to lodge objections
during the mitigation hearing are barred by res judicata. These claims are based
entirely on the 2002 hearing. He had different appellate counsel assigned to
represent him on his direct appeal.      Thus, he could have, and should have,
challenged Wright’s representation and raised these other claims on direct appeal.
State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233 (1996), syllabus (res judicata
bars a defendant from raising and litigating any defense or any claimed lack of due




                                         36
                                  January Term, 2016




process that was raised or could have been raised by the defendant at the trial or on
a direct appeal).
        {¶ 119} In his initial petition for postconviction relief, Jackson also raised
many of the ineffectiveness claims that he raises now. He challenged Wright’s
substitution as co-counsel and argued that Wright was new to the case and
unprepared. 11th Dist. Trumbull No. 2004-T-0089, 2006-Ohio-2651, at ¶ 139. The
court rejected that claim. Id. at ¶ 140. He also challenged the adequacy of the
mitigation investigation and Dr. McPherson’s competency as an expert. Id. at
¶ 102-103, 127-129, 142. He supported these claims with evidence outside the
record, including affidavits and other materials. Id. at ¶ 78-79, 143-145. The court
rejected these claims. Id. at ¶ 103, 146. Thus, these related claims are also barred
by res judicata. Szefcyk at 95.
        {¶ 120} Jackson argues that previous appellate decisions have ceased to
have “any vitality,” because his death sentence was vacated. This contention is
incorrect. His present appeal, like the appeal in Roberts II, involves a proceeding
on remand for the limited purpose of correcting an error that occurred after the
jury’s sentencing verdict. Accordingly, any previous issues of this type that were
raised or could have been raised during his prior appeals are outside the scope of
the remand and further review of them is precluded under the principles of res
judicata. See Roberts II, 137 Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1110,
at ¶ 95; State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, at
¶ 33.
                                    c. Invited error
        {¶ 121} The state argues that Jackson’s claim can also be rejected based on
the invited-error doctrine. As discussed regarding proposition IV, a party is not
entitled to take advantage of an error that he himself invited or induced the trial
court to make. Kline, 96 Ohio St.3d 404, 2002-Ohio-4849, 775 N.E.2d 517, at
¶ 27.




                                          37
                             SUPREME COURT OF OHIO




       {¶ 122} Jackson told the trial court during questioning at his 2002 trial that
he agreed to proceed with replacement co-counsel during the mitigation hearing.
He acknowledged that he had talked with counsel and agreed that it was in his best
interest to proceed with the mitigation hearing that day. This court has found
invited error when a party asked a trial court to take some action later claimed to
be erroneous or affirmatively consented to a procedure that the trial court proposed.
See State v. Campbell, 90 Ohio St.3d 320, 324, 738 N.E.2d 1178 (2000). Here,
Jackson affirmatively consented to replacement counsel. Thus, the invited-error
doctrine applies.
       {¶ 123} Jackson argues that he lacked the ability to intelligently determine
the need for a continuance and accept a replacement attorney. He bases this
argument on evidence that his IQ scores were determined to be in the low 70s in
the seventh and tenth grades and that he received an IQ score of 75 during
postconviction testing. But Dr. McPherson during the 2002 mitigation hearing
acknowledged the low IQ scores that Jackson had received in school, and she
testified that although he had learning disabilities that prevented him from doing
well in school, she believed that those earlier tests were not accurate and that he
had “average ability.” Given Dr. McPherson’s testimony, there is no merit to
Jackson’s argument seeking to avoid application of the invited-error doctrine.
       {¶ 124} Based on the foregoing, we reject proposition II.
                       H. Merger (Proposition of law VIII)
       {¶ 125} Jackson argues that the trial court erred by failing to merge (1) the
aggravated-burglary and aggravated-robbery aggravating circumstances, (2) the
separate aggravated-burglary and aggravated-robbery offenses, and (3) the
aggravated-robbery and aggravated-burglary aggravating circumstances with the
corresponding felony offenses.
       {¶ 126} Prior to sentencing in 2002, the state elected to proceed on Count
One (aggravated murder with prior calculation and design) with the accompanying




                                         38
                                January Term, 2016




aggravated-burglary and aggravated-robbery aggravating circumstances.           R.C.
2929.04(A)(7). Jackson therefore was not sentenced on Count Two. At the
resentencing hearing, the trial court overruled a defense motion to merge the
aggravating circumstances. There were also separate counts of aggravated burglary
(Count Three) and aggravated robbery (Count Four).
        {¶ 127} Jackson cites State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-
6314, 942 N.E.2d 1061, in arguing that the aggravated-burglary and aggravated-
robbery aggravating circumstances were one act for the purposes of the merger
doctrine. The lead opinion in Johnson stated that R.C. 2941.25(A) requires the
sentencing court to first determine “whether it is possible to commit one offense
and commit the other with the same conduct.” (Emphasis sic.) Id. at ¶ 48. If the
defendant’s conduct constituting commission of one offense constitutes
commission of the other, then the offenses are of similar import. Id. The court
must then determine whether the offenses were committed by the same conduct.
Id. at ¶ 49. “If the answer to both questions is yes, then the offenses are allied
offenses of similar import and will be merged.” Id. at ¶ 50. More recent decisions
of this court, including the decision in State v. Ruff, 143 Ohio St.3d 114, 205-Ohio-
995, 34 N.E.3d 892, “have rendered the analysis of the Johnson lead opinion largely
obsolete.” State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266,
¶ 11.
        {¶ 128} This court in Ruff applied a three-part test under R.C. 2941.25 to
determine whether a defendant can be convicted of multiple offenses:


               As a practical matter, when determining whether offenses
        are allied offenses of similar import within the meaning of R.C
        2941.25, courts must ask three questions when the defendant’s
        conduct supports multiple offenses: (1) Were the offenses dissimilar
        in import or significance? (2) Were they committed separately? and




                                         39
                             SUPREME COURT OF OHIO




       (3) Were they committed with separate animus or motivation? An
       affirmative answer to any of the above will permit separate
       convictions. The conduct, the animus, and the import must all be
       considered.


Id. at ¶ 31; see also id. at paragraphs one, two, and three of the syllabus. Moreover,
“a defendant’s conduct that constitutes two or more offenses against a single victim
can support multiple convictions if the harm that results from each offense is
separate and identifiable from the harm of the other offense.” Id. at ¶ 26.
       {¶ 129} The aggravated-burglary and aggravated-robbery specifications
were not subject to merger. They were dissimilar in import and committed with a
separate animus. The burglary was complete when Jackson entered Fingerhut’s
residence with the intent to commit murder, theft, or kidnapping.             Jackson
committed aggravated robbery when he stole Fingerhut’s car after murdering him.
Thus, the aggravated burglary and aggravated robbery were separate offenses,
because they did not arise from the same act. See State v. Elmore, 111 Ohio St.3d
515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 128; State v. Monroe, 105 Ohio St.3d 384,
2005-Ohio-2282, 827 N.E.2d 285, ¶ 68.
       {¶ 130} For the same reasons, we reject Jackson’s argument that the
separate offenses of aggravated burglary (Count Three) and aggravated robbery
(Count Four) should be merged.
       {¶ 131} Finally, Jackson argues that the R.C. 2929.04(A)(7) felony-murder
aggravating circumstances (Count One, Specifications 1 and 2) should have been
merged with the corresponding underlying felony (Counts Three and Four). This
argument relies too heavily on Johnson and is without merit. See State v. Keene,
81 Ohio St.3d 646, 668, 693 N.E.2d 246 (1998) (“felony-murder under R.C.
2903.01(B) is not an allied offense of similar import to the underlying felony”).
       {¶ 132} Based on the foregoing, we reject proposition VIII.




                                         40
                                  January Term, 2016




                       I. Lethal injection (Proposition of law X)
          {¶ 133} Jackson argues that his death penalty is invalid under the Eighth
and Fourteenth Amendments because the state is unable to carry out his execution
in a constitutional manner. The state argues that Jackson waived this claim when
he failed to object to the constitutionality of lethal injection before the trial court.
We agree that he waived or forfeited his right to challenge the constitutionality of
his method of execution. See State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880
N.E.2d 31, ¶ 377.
          {¶ 134} Nonetheless, a forfeited claim will still be considered under plain-
error analysis. Id. at ¶ 378. A party claiming plain error must show (1) that an error
occurred, (2) that the error was obvious, and (3) that the error affected the outcome
of the trial. See State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002);
Crim.R. 52(B). Moreover, the burden of demonstrating plain error is on the party
asserting it. See, e.g., State v. Jester, 32 Ohio St.3d 147, 150, 512 N.E.2d 962
(1987).
          {¶ 135} No plain error occurred. As to his Eighth Amendment claim,
Jackson argues that his execution by lethal injection creates a substantial risk of
serious physical pain and that the state’s execution policy will require the repeated
application of the execution drugs. But to support these claims, Jackson would
have to rely on proof outside the record. Likewise, he would need evidence outside
the record “to identify a known and available alternative method of execution that
entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-
execution claims.” Glossip v. Gross, 576 U.S. __, 135 S.Ct. 2726, 2731, 192
L.Ed.2d 761 (2015).         Therefore, Jackson’s argument is not “appropriately
considered on a direct appeal.” State v. Madrigal, 87 Ohio St.3d 378, 391, 721
N.E.2d 52 (2000) (because proof outside the record was needed to establish
ineffective assistance of counsel, the claim was not appropriate on direct appeal).




                                           41
                             SUPREME COURT OF OHIO




        {¶ 136} Jackson also argues that Ohio law does not afford equal protection
with respect to the requirement that lethal-injection will “quickly and painlessly
cause death.” R.C. 2949.22(A). He asserts that the state has a pattern and practice
of noncompliance with R.C. 2949.22(A) and that its written execution policy
arbitrarily or intentionally treats each condemned inmate differently. He states that
“[a]dditional factual development will further demonstrate” these claims. But as
previously mentioned, proof outside the record cannot be considered on direct
appeal. Madrigal at 391.
        {¶ 137} Based on the foregoing, we reject proposition X.
                    J. Constitutionality (Proposition of law XI)
        {¶ 138} Jackson challenges the constitutionality of Ohio’s death-penalty
statutes and claims that the statutes violate international law and treaties to which
the United States is a party. These claims can be summarily rejected. See State v.
Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶ 215-216.
                   K. Cumulative error (Proposition of law XII)
        {¶ 139} Jackson argues that this court should vacate his sentence on
grounds of cumulative error. The cumulative-error doctrine provides that “a
conviction will be reversed when the cumulative effect of errors in a trial deprives
a defendant of a fair trial even though each of the numerous instances of trial-court
error does not individually constitute cause for reversal.” State v. Powell, 132 Ohio
St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 223, citing State v. DeMarco, 31
Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the syllabus.
        {¶ 140} Jackson cannot point to multiple instances of error. State v. Garner,
74 Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). Nor does he demonstrate that the
alleged errors collectively deprived him of a fair trial. Accordingly, proposition
XII fails.




                                         42
                                January Term, 2016




            L. Reliability of the death sentence (Proposition of law IX)
        {¶ 141} Jackson argues that the sentencing process was unreliable and the
death sentence inappropriate. Jackson’s argument here reasserts allegations of
procedural irregularities and factual inaccuracies raised in other propositions of
law. As previously discussed, none of those claims go to matters that constituted
prejudicial error.
        {¶ 142} This proposition additionally invokes R.C. 2929.05(A), which
requires this court to review Jackson’s death sentence for appropriateness and
proportionality. See State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13
N.E.3d 1051, ¶ 188. In conducting this review, we must determine whether the
evidence supports the jury’s finding of the aggravating circumstances, whether the
aggravating circumstances outweigh the mitigating factors, and whether Jackson’s
death sentence is proportionate to those imposed in similar circumstances.
                     IV. Independent Sentence Evaluation
                            A. Aggravating circumstances
        {¶ 143} The two aggravating circumstances in this case were murder during
aggravated burglary and murder during aggravated robbery. R.C. 2929.04(A)(7).
As to these aggravating circumstances, this court has already determined that “the
evidence proves beyond a reasonable doubt the aggravating circumstances in this
case: that Nathaniel Jackson murdered Robert Fingerhut while committing
aggravated burglary and aggravated robbery.” 107 Ohio St.3d 300, 2006-Ohio-1,
839 N.E.2d 362, at ¶ 162.
                                B. Mitigating factors
                                1. Mitigation hearing
        {¶ 144} During the 2002 mitigation hearing, Jackson presented five
witnesses and made an unsworn statement. We previously considered this evidence
in Jackson’s first appeal to this court. Nevertheless, in the interest of a thorough
review of the mitigating factors, we now review the mitigating evidence presented




                                         43
                             SUPREME COURT OF OHIO




during Jackson’s mitigation hearing and the statements he made during the
resentencing hearing.
       {¶ 145} Raymond Dickerson, Jackson’s stepfather, has known Jackson
since Jackson was 15 years old. He testified that Jackson has been respectful to
him and to Jackson’s mother and grandmother. Dickerson stated that he has not
seen much of Jackson after Jackson turned 17 years old.
       {¶ 146} Taushia Korneagay, Jackson’s younger sister, testified that Jackson
is “really kind” and “helped out a lot” with her four children. She described Jackson
as a “very smart” person. She also said that she wanted the jury to spare his life.
       {¶ 147} Lorraine Rue, the mother of Jackson’s daughter, Shaylese, and
Shaylese herself, who was in the second grade, appeared on the witness stand
together. Shaylese stated that Jackson had brought her toys and that she would like
to keep seeing him.
       {¶ 148} Pauline Korneagay, Jackson’s mother, briefly described Jackson’s
upbringing. She stated that Jackson did “pretty good” in school but later quit.
Thereafter, Jackson lived with her and his grandmother at his grandmother’s house.
Korneagay stated that they did not live in a “rough” neighborhood.              When
questioned, she said that she did not remember Jackson “being shot” when he was
still attending school or that she had written a letter to the school to excuse him for
that reason. Korneagay said that she keeps in touch with Jackson and would
continue to visit him in prison.
       {¶ 149} Dr. McPherson was the defense’s primary mitigation witness. Dr.
McPherson interviewed Jackson, talked to his family members, reviewed his school
and other records, and submitted a report on her findings. She testified that Jackson
was raised by his mother and his maternal grandmother. But Jackson had little, if
any, real contact with his father.
       {¶ 150} Dr. McPherson testified that Jackson had “fairly serious” behavior
problems in school. By the third grade, Jackson had already been suspended from




                                          44
                                 January Term, 2016




school. According to Dr. McPherson, Jackson suffered from an attention-deficit
hyperactivity disorder (“ADHD”) characterized by impulsiveness and an inability
to stop his behavior. She added that Jackson did not get into any kind of structured
program to treat his ADHD until he was in the eighth grade. Jackson did “fairly
well” in that program, and that was the only time that Jackson recalled liking
school. He dropped out of school in the 11th grade.
          {¶ 151} Jackson began using alcohol and drugs early in life. He started
using marijuana when he was 13 years old and rapidly became dependent on it.
Jackson also used cocaine to some degree, though he never used other serious
drugs. Dr. McPherson testified that Jackson was repeatedly involved in nonviolent
crimes as an adult and that these were mostly related to his drug habit.
          {¶ 152} Dr. McPherson stated that Jackson’s longest period of work “was
about six months, maybe less.” Jackson lived on his own as an adult and “basically
survive[d] on the streets.” During the ensuing ten years or so after he reached
adulthood, Jackson was “shot at least four or five times.” Dr. McPherson testified
that her investigation revealed that before Jackson dropped out of school, Jackson’s
mother had sent a note to the school asking for him to be excused from attending
one day because two people had been shooting at him and he had to make a police
report.
          {¶ 153} Jackson has fathered two children but has never been in a position
to assume much parental responsibility. One of the children has cerebral palsy, and
the mother’s family has not allowed him to have contact with that child.
          {¶ 154} Dr. McPherson’s testing showed that Jackson has a full-scale IQ
score of 84. She stated that IQ testing in the seventh and tenth grades had indicated
that Jackson was “at or around the 70 level.” Dr. McPherson attributed the
difference in scores to the fact that Jackson had not been attentive and was not
motivated to cooperate when he took the tests in school and that he did better when
tested in a more structured prison environment. She added that “based partly on




                                          45
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the sub test and partly on what we know about the test bias, he’s an African
American who has not had a good education, the test is biased against him. The
chances are he’s of average ability, and under the right circumstances could have
been quite reasonably successful in life.”
       {¶ 155} Dr. McPherson diagnosed Jackson with an antisocial personality
disorder. But she added that Jackson “has shown the capacity to be loyal within his
own group” and “does not mirror the diagnosis of an individual who is incapable
of relating to people.” Jackson retains a loyalty and love for his family. In addition,
Dr. McPherson believed that he would function best in the structured setting of a
prison environment.
       {¶ 156} Dr. McPherson stated that Jackson’s relationship with Roberts
“was clearly a very destructive relationship.” Jackson received reassurance in this
relationship, and he felt like he was “somebody special.” Dr. McPherson also stated
that Jackson felt like he would be more stable with Roberts, because “[s]he had a
job, she had an adequate living situation, certainly more adequate then he had ever
experienced.”
       {¶ 157} Jackson made an unsworn statement during the 2002 mitigation
hearing. He stated:


                I would like to apologize for what happened to the victim. I
       am very sorry for what happened and I know by me saying sorry
       ain’t going to bring his life back. This is something I have to live
       with for the rest of my life, and also like for my daughter, to know
       that she still has a father that is alive and I would like to see her grow
       up.




                                          46
                                January Term, 2016




       {¶ 158} Jackson also made a statement in allocution prior to sentencing in
2002, stating, “I’d just like for the Court to spare me my life. I’m sorry for what
happened, happened. I never meant for it to happen.”
                              2. Resentencing hearing
       {¶ 159} Before the trial court resentenced him, Jackson told the court that
while at Trumbull Correctional Institution, he obtained a certificate in the basic-
skills computer class, passed an advanced class, received a certificate in the music
program, and become a tutor. He also told the court that he had not been in any
trouble “since I have been on death row since 2007.” He said that the trouble was
“a little minor situation” and that he had not “been in any trouble or anything since
then.” He also said, “Since I have been off of death row, I understand a lot of
things.” That includes adjusting to a different situation and environment without
any problems.
       {¶ 160} Jackson also made a second statement before the sentence was
announced: “I feel that doing my time, I have learned to find myself and I know
who I am right now, and I * * * wouldn’t like to be placed back on death row. I
really wouldn’t.”
                              C. Sentence evaluation
       {¶ 161} Nothing in the nature and circumstances of the offense is
mitigating. It is evident from their correspondence and phone calls that Jackson
and Roberts planned to kill Fingerhut when Jackson was released from prison.
Jackson assured Roberts that the murder was something that they had to do and that
he had it all figured out. They planned to collect the insurance proceeds that
Roberts would receive following Fingerhut’s death and then live together. And
after he was released from prison, Jackson murdered Fingerhut in Fingerhut’s home
and then fled the scene in Fingerhut’s car.
       {¶ 162} Jackson’s history, character, and background provide some details
of mitigating value. Jackson’s father was never part of his life, and Jackson had




                                         47
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behavioral problems in school, mostly because of his ADHD. He dropped out of
school in the 11th grade. Although his mother denied that Jackson was raised in a
rough neighborhood, Dr. McPherson’s testimony showed otherwise. Jackson had
a history of drug and alcohol dependency that began when he was 13 years old.
Jackson also told the court during the resentencing hearing that he had obtained
certificates in computer skills and in the music program while in prison.
       {¶ 163} The statutory mitigating factors under R.C. 2929.04(B) include
R.C. 2929.04(B)(1) (victim inducement); (B)(2) (duress, coercion, or strong
provocation); (B)(3) (mental disease or defect); (B)(4) (youth of the offender);
(B)(5) (lack of a significant criminal record); (B)(6) (accomplice only); and (B)(7)
(any other relevant factors). The factors under R.C. 2929.04(B)(1), (B)(2), (B)(3),
(B)(4), (B)(5), and (B)(6) do not appear to be applicable.
       {¶ 164} As to the other relevant mitigating factors under R.C.
2929.04(B)(7), we give some weight in mitigation to Jackson’s ADHD and
antisocial personality disorder. Although Jackson disputes the reliability of the
testing, Dr. McPherson testified that Jackson has a “full-scale IQ of 84” and that
the “chances are he’s of average ability.” We also give some weight to the
testimony that Jackson had a troubled childhood as a R.C. 2929.04(B)(7) factor.
But see Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, at ¶ 265
(unstable childhood seldom given “decisive weight” as a mitigating factor). And
we give weight to Jackson’s history of drug and alcohol abuse. See State v.
Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 158. In addition,
we give some weight to testimony that Jackson has the love and support of his
family and cares about his daughter. See State v. Lang, 129 Ohio St.3d 512, 2011-
Ohio-4215, 954 N.E.2d 596, ¶ 338.
       {¶ 165} During the resentencing hearing, Jackson raised his ability to adapt
well to prison life. Dr. McPherson had testified during his 2002 mitigation hearing
that Jackson tended to do better in structured settings and that prison was a positive




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environment for him. Jackson also stated at the resentencing hearing that he had
not been in any trouble in prison since 2007 and called that a “minor situation.”
Good behavior in prison is relevant to the lack of future dangerousness. See State
v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 303. Yet
Jackson and Roberts planned Fingerhut’s murder when Jackson was previously in
prison. Thus, we give little mitigating weight to this testimony.
       {¶ 166} Finally, we give some mitigating weight to Jackson’s expressions
of remorse during his unsworn statement in 2002 “for what happened to the victim.”
See State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 327.
       {¶ 167} Upon independent weighing, we find that each aggravating
circumstance outweighs the mitigating factors beyond a reasonable doubt. The
letters and phone conversations between Jackson and Roberts show that they
planned Fingerhut’s murder over the course of several months. After he was
released from prison, Jackson murdered Fingerhut during a burglary and stole his
car. Jackson’s mitigating evidence has little significance in comparison.
       {¶ 168} As a final matter, we must determine “whether the sentence is
excessive or disproportionate to the penalty imposed in similar cases.” R.C.
2929.05(A). “The proportionality review required by R.C. 2929.05(A) is satisfied
by a review of those cases already decided by the reviewing court in which the
death penalty has been imposed.” State v. Steffen, 31 Ohio St.3d 111, 509 N.E.2d
383 (1987), paragraph one of the syllabus. But see State v. Murphy, 91 Ohio St.3d
516, 562, 747 N.E.2d 765 (2001) (Pfeifer, J., dissenting) (proportionality review
should include factually similar cases in which a death sentence was not imposed).
       {¶ 169} We find that the death penalty is both appropriate and proportionate
when compared with capital cases involving aggravated murder during an
aggravated burglary, see State v. Davie, 80 Ohio St.3d 311, 686 N.E.2d 245 (1997);
State v. Thomas, 97 Ohio St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017, and
aggravated murder during an aggravated robbery, see State v. Burke, 73 Ohio St.3d




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399, 653 N.E.2d 242 (1995); State v. Raglin, 83 Ohio St.3d 253, 699 N.E.2d 482
(1998).
          {¶ 170} We therefore affirm the convictions and sentences, including the
death sentence.
                                                                  Judgment affirmed.
          O’CONNOR, C.J., and KENNEDY, FRENCH, and KLATT, JJ., concur.
          O’DONNELL, J., concurs in part and concurs in judgment, with an opinion.
          LANZINGER, J., dissents, with an opinion.
          WILLIAM A. KLATT, of the Tenth District Court of Appeals, sitting for
O’NEILL, J.
                                 _________________
          O’DONNELL, J., concurring in part and concurring in judgment.
          {¶ 171} I concur with the decision of the majority to affirm the sentences
imposed on Nathaniel Jackson, including the death sentence; in my view however,
contrary to the majority, the trial court did not err by failing to mention Jackson’s
allocution in its resentencing opinion, making it unnecessary for this court to
consider whether that failure is harmless error because the matter is resolved
through our independent sentence evaluation.
          {¶ 172} This court has previously held that in considering mitigating factors
in a capital-offense sentencing opinion, the failure of the trial court to incorporate
and discuss all of the mitigating factors in its opinion is not reversible error. See
State v. Obermiller, ___ Ohio St.3d ___, 2016-Ohio-1594, ___ N.E.3d ___, ¶ 125-
126; State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 362-363.
“While a sentencing court must consider all evidence of mitigation, it need not
discuss each factor individually.” State v. Phillips, 74 Ohio St.3d 72, 102, 656
N.E.2d 643 (1995), citing Parker v. Dugger, 498 U.S. 308, 314-315, 111 S.Ct. 731,
112 L.Ed.2d 812 (1991). “And a trial court’s failure to discuss each mitigating
factor in its sentencing opinion does not give rise to an automatic inference that the




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factors absent from the opinion were not considered.” Obermiller at ¶ 125, citing
State v. Roberts, 137 Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100, ¶ 54.
“Further, even if ‘the trial court * * * should have more explicitly analyzed the
mitigating evidence,’ this court’s independent reweighing will rectify the error.”
Phillips at 102, quoting State v. Lott, 51 Ohio St.3d 160, 171, 555 N.E.2d 293
(1990).
          {¶ 173} In my dissent in Roberts, I stressed that the omission of any
reference to what the defendant said during allocution in the sentencing opinion
was not error in that case for these same reasons, and therefore, the omission cannot
be error here. See Roberts at ¶ 101-120 (O’Donnell, J., dissenting).

                                  _________________
          LANZINGER, J., dissenting.
          {¶ 174} I respectfully dissent. The majority admits that the trial court
“should have considered” Nathaniel Jackson’s allocution in the resentencing
opinion. Majority opinion at ¶ 83. But the new sentencing opinion had already
been prepared prior to the resentencing hearing, and it was filed the same afternoon
that the court heard Jackson’s allocution and pronounced sentence. In other words,
the court did not take Jackson’s words into account before reimposing a sentence
of death. This was the same trial-court error that we considered in State v. Roberts,
137 Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100, ¶ 96 (“Roberts II”), the
case of Jackson’s accomplice, Donna Roberts. There too, the trial court did not
discuss allocution in its R.C. 2929.03(F) sentencing opinion. Id. at ¶ 64.
          {¶ 175} I do not agree with the majority that this case differs from Roberts’s
case. The majority attempts to distinguish between the circumstances of this case
and Roberts’s case by saying that “[u]nlike the situation in Roberts II, Jackson’s
allocution during his resentencing hearing added little to the mitigation that was
already before the court.” Majority opinion at ¶ 86. I do not believe that this




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distinction puts this case in line with State v. Phillips, 74 Ohio St.3d 72, 656 N.E.2d
643 (1995).
       {¶ 176} The majority relies upon Phillips to support its decision to cure the
error in the sentencing opinion through independent evaluation of Jackson’s capital
sentence. But Phillips did not involve a trial court’s error of the same significance
as that present in this case. There, the appellant challenged the sentencing opinion
for failing to give effect to all mitigation evidence offered. Id. at 102. We noted
that the appellant’s argument “erroneously assumes that evidence that is not
specifically mentioned in an opinion was not considered,” and we explained that
“[w]hile a sentencing court must consider all evidence in mitigation, it need not
discuss each factor individually.” Id., citing Parker v. Dugger, 498 U.S. 308, 314-
315, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991). We concluded that even if the trial
court should have more explicitly analyzed the mitigating evidence, our
independent reweighing could rectify the error. Phillips at 102, citing State v. Lott,
51 Ohio St.3d 160, 171-172, 555 N.E.2d 293 (1990).
       {¶ 177} This case involves more than just a trial court’s failure to state
sufficient detail in analyzing the mitigating evidence. Instead, there has also been
a failure to even consider allocution in weighing the aggravating circumstances
against the mitigating factors, a failure that, as the majority acknowledges, we
found to violate the Eighth Amendment in Roberts II. Majority opinion at ¶ 81,
citing Roberts II, 137 Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100, at ¶ 65,
69.
       {¶ 178} The majority is correct in noting that our decision vacating
Roberts’s death sentence in Roberts II was premised upon the “ ‘unusual
circumstances’ ” present in that case, including the potential for significant
mitigation in Roberts’s allocution, the lack of other offered mitigation, and the fact
that the trial court had been specifically directed to consider allocution. Majority
opinion at ¶ 81, quoting Roberts II at ¶ 64. These circumstances led us to determine




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in Roberts II that the trial court’s failure to mention the allocution in its sentencing
opinion was more than a mere oversight. While Jackson originally presented more
mitigation than Roberts did, and his allocution during his resentencing hearing was
less significant than hers, I would hold that as in Roberts II, the failure of the trial
court to mention allocution at all is more than the mere oversight found in Phillips
and instead constitutes reversible error.
       {¶ 179} Trial courts “must conduct proceedings in capital cases with a strict
level of care that comports with their unique status.” State v. Clinkscale, 122 Ohio
St.3d 351, 2009-Ohio-2746, 911 N.E.2d 862, ¶ 23. As detailed in the procedural
history set forth in the majority opinion, the Eleventh District Court of Appeals
noted that the fact patterns in this case and in Roberts’s case are “factually the
same” and involved “the same drafting procedures involving the sentencing entry,”
and it concluded that Jackson was “entitled to the same relief afforded to his co-
defendant.” State v. Jackson, 190 Ohio App.3d 319, 2010-Ohio-5054, 941 N.E.2d
1221, ¶ 29 (11th Dist.). That relief included affording the defendant the right to
allocate, requiring the trial court to personally review and evaluate the evidence,
and requiring the court to personally prepare an entirely new penalty opinion. State
v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 167 (“Roberts
I”). Just as happened during the resentencing at issue in Roberts II, the trial court
here failed to comply with these instructions to conduct Jackson’s resentencing with
the strict level of care that comports with the unique status of a capital case.
        {¶ 180} In vacating the death sentence of Jackson’s accomplice, Roberts,
we instructed the trial court in Roberts II how to sentence her properly:


        On remand, the trial court must consider all the mitigating evidence
        reflected in the record, including Roberts’s allocution, weigh the
        aggravating circumstances against the mitigating factors, and file a
        sentencing opinion that reflects that it has complied with these




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       instructions. In doing so, the trial court must make an independent
       determination of whether a death sentence is appropriate and may
       not give deference to the sentences previously entered.


Roberts II, 137 Ohio St. 3d 230, 2013-Ohio-4580, 998 N.E.2d 1100, at ¶ 96.
       {¶ 181} I would follow the mandates of this court in Roberts I and Roberts
II and of the Eleventh District in State v. Jackson and grant Nathaniel Jackson the
same remedy. I respectfully dissent.
                              _________________
       Dennis Watkins, Trumbull County Prosecuting Attorney, and LuWayne
Annos and Charles Morrow, Assistant Prosecuting Attorneys, for appellee.
       Timothy Young, Ohio Public Defender, and Randall L. Porter, Assistant
Public Defender; and Buell & Sipe Co., L.P.A., and Dennis L. Sipe, for appellant.
                              _________________




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