[Cite as State v. Jackson, 2018-Ohio-2318.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                      :

                 Plaintiff-Appellee,                :
                                                                     No. 17AP-863
v.                                                  :             (C.P.C. No. 97CR-1902)

Kareem M. Jackson,                                  :           (REGULAR CALENDAR)

                 Defendant-Appellant.               :


                                              D E C I S I O N

                                      Rendered on June 14, 2018


                 On brief: Ron O'Brien, Prosecuting Attorney, and Steven L.
                 Taylor, for appellee.

                 On brief: Timothy Young, Ohio Public Defender, Kathryn L.
                 Sandford, and Randall L. Porter, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas
HORTON, J.
        {¶ 1} Defendant-appellant, Kareem M. Jackson, appeals from the decision of the
Franklin County Court of Common Pleas that denied his motion for leave to file a new
motion for a mitigation trial under Crim.R. 33. We affirm the decision of the trial court.
        {¶ 2} In 1998, Jackson was sentenced to death for the aggravated murders of
Terrence Walker and Antonio Hunter. Jackson also received sentences of incarceration for
convictions on multiple counts of kidnapping, aggravated robbery, and felonious assault.
His convictions were affirmed on direct appeal. State v. Jackson, 92 Ohio St.3d 436 (2001).
Jackson subsequently, and unsuccessfully, pursued relief through postconviction review in
state court and a petition for habeas corpus in federal court. State v. Jackson, 10th Dist.
No. 01AP-808, 2002-Ohio-3330; Jackson v. Bradshaw, 681 F.3d 753 (6th Cir.2012).
        {¶ 3} On January 11, 2017, Jackson filed a motion in the trial court for leave to file
a motion for a new mitigation trial under Crim.R. 33. He argued that the decision of the
No. 17AP-863                                                                              2

United States Supreme Court in Hurst v. Florida, ___U.S.___, 136 S.Ct. 616 (2016), had
rendered Ohio's death penalty statute unconstitutional under the Sixth and Fourteenth
Amendments because Ohio's statute allows a judge to engage in independent fact finding
after a jury's recommendation of a sentence of death. Thus, Jackson believed that the
sentence he received was both contrary to law and based on insufficient factual findings,
entitling him to a new mitigation trial under Crim.R. 33(A).
       {¶ 4} The trial court disagreed and denied Jackson's motion. (Nov. 7, 2017 Decision
and Entry.) Jackson appealed, asserting the following assignment of error:
              THE TRIAL COURT ERRED WHEN IT DENIED KAREEM
              JACKSON'S MOTION FOR LEAVE TO FILE HIS MOTION
              FOR A NEW MITIGATION TRIAL.

       {¶ 5} In Jackson's briefing, he noted that the precise issue he raised as grounds for
relief was pending before the Supreme Court of Ohio in State v. Mason, S.Ct. No. 2017-
0200. Accordingly, we stayed these proceedings until the opinion in that case was issued.
       {¶ 6} The Supreme Court rendered its decision in State v. Mason on April 18, 2018.
State v. Mason, ___Ohio St.3d ___, 2018-Ohio-1462. In Mason, the Supreme Court held
that Ohio's death penalty statute, R.C. 2929.03 through 2929.04, did not violate the Sixth
or Fourteenth Amendments to the United States Constitution under Hurst. Id. at ¶ 29-43.
The Supreme Court distinguished Ohio's statute from the Florida death penalty statute that
Hurst held was unconstitutional:
              In Hurst, the court held that the Florida scheme violated the
              Sixth Amendment because it did not require the jury to find
              that Hurst was guilty of committing a specific aggravating
              circumstance. Hurst at ___, 136 S.Ct. at 622, 624.

              Ohio law, in contrast, requires a jury to find the defendant
              guilty beyond a reasonable doubt of at least one aggravating
              circumstance, R.C. 2929.03(B), before the matter proceeds to
              the penalty phase, when the jury can recommend a death
              sentence. Ohio's scheme differs from Florida's because Ohio
              requires the jury to make this specific and critical finding.

Id. at ¶ 31-32.
       {¶ 7} In addition, Mason rejected the argument that Ohio's death penalty statute
allows a trial court judge to engage in independent fact-finding to determine whether the
death penalty can be imposed: "Ohio does not permit the trial judge to
No. 17AP-863                                                                             3

find additional aggravating facts but requires the judge to determine, independent of the
jury, whether a sentence of death should be imposed." Id. at ¶ 39, citing State v. Roberts,
110 Ohio St.3d 71, 2006-Ohio-3665, ¶ 160. In Ohio:
               [T]rial judges may weigh aggravating circumstances against
               mitigating factors and impose a death sentence only after the
               jury itself has made the critical findings and recommended that
               sentence. Thus, "the judge's authority to sentence derives
               wholly from the jury's verdict." [Blakely v. Washington, 542
               U.S. 296, 306 (2004).] Under Ohio's death-penalty scheme,
               therefore, trial judges function squarely within the framework
               of the Sixth Amendment.

Id. at ¶ 42.
       {¶ 8} We are bound by the Supreme Court's opinion in Mason, which rejects the
same arguments raised by Jackson and affirms the constitutionality of Ohio's death penalty
statute under the Sixth and Fourteenth Amendments. Accordingly, we overrule Jackson's
sole assignment of error and affirm the decision of the trial court.
                                                                       Judgment affirmed.
                            KLATT and BRUNNER, JJ., concur.
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