[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Mason, Slip Opinion No. 2018-Ohio-1462.]




                                           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. 2018-OHIO-1462
             THE STATE OF OHIO, APPELLEE, v. MASON, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
       may be cited as State v. Mason, Slip Opinion No. 2018-Ohio-1462.]
Criminal law—Sixth Amendment to the United States Constitution—Death
        penalty—Right to trial by jury—Ohio death-penalty scheme does not violate
        the Sixth Amendment, because the jury must find that offender guilty beyond
        a reasonable doubt and that an aggravating circumstance exists.
    (No. 2017-0200—Submitted January 23, 2018—Decided April 18, 2018.)
        APPEAL from the Court of Appeals for Marion County, No. 9-16-34,
                                      2016-Ohio-8400.
                               _______________________
        FISCHER, J.
        {¶ 1} At issue in this case is whether Ohio’s death-penalty scheme violates
the right to a trial by jury as guaranteed by the Sixth Amendment to the United
States Constitution. The Marion County Court of Common Pleas found that it does,
                            SUPREME COURT OF OHIO




but the Third District Court of Appeals reversed the trial court’s judgment. Because
the Ohio scheme satisfies the Sixth Amendment, we affirm.
                        I. Facts and Procedural History
       {¶ 2} A jury found that appellant, Maurice Mason, raped and murdered
Robin Dennis in 1993. See State v. Mason, 82 Ohio St.3d 144, 148, 694 N.E.2d
932 (1998). The jury found Mason guilty of aggravated murder with a felony-
murder capital specification, rape, and having a gun while under disability. The
jury recommended a death sentence, and the trial court sentenced him to death. The
Third District Court of Appeals and this court affirmed the convictions and
sentence. State v. Mason, 3d Dist. Marion No. 9-94-45, 1996 WL 715480 (Dec. 9,
1996); Mason, 82 Ohio St.3d 144, 694 N.E.2d 932.
       {¶ 3} In 2008, after finding that Mason’s trial counsel had provided
ineffective assistance, the United States Court of Appeals for the Sixth Circuit
granted a conditional writ of habeas corpus and remanded the case to the trial court
for a new penalty-phase trial. Mason v. Mitchell, 543 F.3d 766, 768 (6th Cir.2008).
On remand, Mason moved the trial court to dismiss the capital specification from
his indictment, arguing that Ohio’s death-penalty scheme violates the Sixth
Amendment right to trial by jury. He relied on the United States Supreme Court’s
decision in Hurst v. Florida, ___ U.S. ___, 136 S.Ct. 616, 624, 193 L.Ed.2d 504
(2016), which invalidated Florida’s former capital-sentencing scheme because it
“required the judge alone to find the existence of an aggravating circumstance.”
The trial court granted Mason’s motion, and the state appealed to the Third District
Court of Appeals, which reversed the judgment and remanded the case.
       {¶ 4} On appeal here, Mason argues that Ohio’s death-penalty scheme is
unconstitutional under Hurst.




                                         2
                                    January Term, 2018




                                       II. Analysis
                                A. Standard of Review
        {¶ 5} We must presume that the death-penalty scheme enacted by the
General Assembly is constitutional. R.C. 1.47. To prevail on his facial challenge,
Mason must establish “beyond a reasonable doubt that the legislation and
constitutional provisions are clearly incompatible.” State ex rel. Dickman v.
Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the
syllabus. Thus, “doubts regarding the validity of a legislative enactment are to be
resolved in favor of the statute.” State v. Gill, 63 Ohio St.3d 53, 55, 584 N.E.2d
1200 (1992).
                          B. Ohio’s Death-Penalty Scheme
        {¶ 6} R.C. 2929.03 and 2929.04 establish what is required for a death
sentence to be imposed in Ohio when the defendant elects to be tried by a jury. The
essential steps outlined below are required under current law and under the versions
of R.C. 2929.03 and 2929.04 in effect when Dennis was killed in 1993. See
Am.Sub.S.B. No. 1, 139 Ohio Laws, Part I, 1, 9-17. Although the Ohio General
Assembly has since amended R.C. 2929.03 and 2929.04, because the changes to
the wording at issue in this appeal were not substantive, the amendments do not
affect the analysis in this case.
        {¶ 7} First, to face the possibility of a death sentence, a defendant must be
charged in an indictment with aggravated murder and at least one specification of
an aggravating circumstance. R.C. 2929.03(A) and (B). The state charged Mason
with aggravated murder under R.C. 2903.01(B) and an aggravating circumstance
(committing aggravated murder while committing rape) under R.C. 2929.04(A)(7).
        {¶ 8} Second, the jury verdict must state that the defendant is found guilty
of aggravated murder and must state separately that he is guilty of at least one
charged specification. R.C. 2929.03(B). The state must prove guilt of the principal
charge and of any specification beyond a reasonable doubt. Id.; R.C. 2929.04(A).




                                            3
                              SUPREME COURT OF OHIO




The jury found Mason guilty of aggravated murder and the charged aggravating
circumstance.
       {¶ 9} Third, once the jury finds the defendant guilty of aggravated murder
and at least one specification, he will be sentenced either to death or to life
imprisonment. R.C. 2929.03(C)(2). When the defendant is tried by a jury, the
penalty “shall be determined * * * [b]y the trial jury and the trial judge.” R.C.
2929.03(C)(2)(b).
       {¶ 10} Fourth, in the sentencing phase, the court and trial jury shall consider
(1) any presentence-investigation or mental-examination report (if the defendant
requested an investigation or examination), (2) the trial evidence relevant to the
aggravating circumstances the offender was found guilty of committing and relevant
to mitigating factors, (3) additional testimony and evidence relevant to the nature and
circumstances of the aggravating circumstances and any mitigating factors, (4) any
statement of the offender, and (5) the arguments of counsel. R.C. 2929.03(D)(1). In
this proceeding, the state must prove beyond a reasonable doubt that “the aggravating
circumstances the defendant was found guilty of committing are sufficient to
outweigh the factors in mitigation of the imposition of the sentence of death.” Id.
       {¶ 11} Fifth, the jury finds and then recommends the sentence: “If the trial
jury unanimously finds, by proof beyond a reasonable doubt, that the aggravating
circumstances * * * outweigh the mitigating factors, the trial jury shall recommend
to the court that the sentence of death be imposed on the offender.” (Emphasis
added.) R.C. 2929.03(D)(2). But “[a]bsent such a finding” by the jury, the jury
shall recommend one of the life sentences set forth in R.C. 2929.03(D)(2), and the
trial court “shall impose the [life] sentence recommended.” R.C. 2929.03(D)(2).
Also, if the jury fails to reach a verdict unanimously recommending a sentence, the
trial court must impose a life sentence. State v. Springer, 63 Ohio St.3d 167, 586
N.E.2d 96 (1992), syllabus.




                                          4
                                 January Term, 2018




       {¶ 12} Sixth, if the trial jury recommends a death sentence, and if “the court
finds, by proof beyond a reasonable doubt, * * * that the aggravating circumstances
* * * outweigh the mitigating factors, [the court] shall impose sentence of death on
the offender.” (Emphasis added.) R.C. 2929.03(D)(3). Then, the court must state
in a separate opinion “the reasons why the aggravating circumstances * * * were
sufficient to outweigh the mitigating factors.” R.C. 2929.03(F).
                           C. Sixth Amendment Caselaw
                            1. Apprendi, Ring, and Hurst
       {¶ 13} Mason’s Sixth Amendment claim principally relies on Hurst, which,
in turn, relied on Apprendi v. United States, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153
L.Ed.2d 556 (2002). Apprendi involved New Jersey’s “hate crime” law, which
allowed a trial court to enhance an offender’s penalty if the trial judge found that
the offender had been motivated by racial or other bias in committing an offense.
Apprendi at 468. The question in Apprendi was whether such an aggravating fact
must be found by a jury based on proof beyond a reasonable doubt. Id. at 469.
Apprendi held that “[o]ther than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490.
       {¶ 14} Two years later, in Ring, the Supreme Court applied Apprendi to
invalidate Arizona’s former death-penalty scheme, which permitted imposition of
a death sentence based solely on a trial judge’s finding of the existence of a statutory
aggravating circumstance. See Ring at 609. The Ring court concluded that an
aggravating circumstance in a capital case was “ ‘the functional equivalent of an
element of a greater offense’ ” that must be submitted to a jury. Id., quoting
Apprendi at 494, fn. 19.         Arizona’s death-penalty law violated the Sixth
Amendment because that law required the trial judge alone to find the aggravating
facts necessary to sentence a defendant to death. See id. at 609.




                                           5
                             SUPREME COURT OF OHIO




       {¶ 15} The Supreme Court applied Apprendi and Ring in Hurst. A jury
found Timothy Hurst guilty of first-degree murder. Although that offense was a
capital felony under Florida law, the jury’s verdict alone did not qualify Hurst for
the death penalty: at the time of his conviction, Florida law provided that “ ‘[a]
person who has been convicted of a capital felony shall be punished by death’ only
if an additional sentencing proceeding ‘results in findings by the court that such
person shall be punished by death.’ ” Hurst, ___ U.S. at ___, 136 S.Ct. at 620, 193
L.Ed.2d 504, quoting former Fla.Stat. 775.082(1), C.S.H.B. No. 3033, Ch. 98-3,
Laws of Fla. In Hurst’s sentencing proceeding, the jury, as required by former
Fla.Stat. 921.141(2), C.S.H.B. 207, Ch. 96-302, Laws of Fla., rendered an
“advisory sentence” recommending death, but Florida law did not require the jury
to specify the aggravating circumstances that influenced its decision. Id., citing
former Fla. Stat. 921.141. The sentencing judge then imposed a death sentence
after independently determining and weighing aggravating circumstances and
mitigating factors. Id., citing former Fla.Stat. 921.141(3). Hurst’s sentencing
judge, who explained her findings in writing, found that two aggravating
circumstances existed. Id.
       {¶ 16} The United States Supreme Court began its review of Hurst’s Sixth
Amendment claim by reciting Apprendi’s basic tenet: “any fact that ‘expose[s] the
defendant to a greater punishment than that authorized by the jury’s guilty verdict’
is an ‘element’ that must be submitted to a jury.” Hurst at ___, 136 S.Ct. at 621,
quoting Apprendi, 530 U.S. at 494, 120 S.Ct. 2348, 147 L.Ed.2d 435. It then
explained that the Apprendi rule had required invalidation of Arizona’s death-
penalty scheme in Ring because Arizona had allowed the imposition of the death
penalty based solely on judicial fact-finding of the aggravating facts. Hurst at ___,
136 S.Ct. at 621, citing Ring, 536 U.S. at 591-593, 597, 604, 122 S.Ct. 2428, 153
L.Ed.2d 556. The Hurst court concluded that under the same analysis, Florida’s
scheme had to be invalidated, because Florida did “not require the jury to make the



                                         6
                                January Term, 2018




critical findings necessary to impose the death penalty.” Id. at ___, 136 S.Ct. at
622. The court observed that the Florida jury’s advisory sentence was immaterial
for Sixth Amendment purposes, because it did not include “ ‘specific factual
findings with regard to the existence of mitigating or aggravating circumstances
and its recommendation [was] not binding on the trial judge.’ ” Id., quoting Walton
v. Arizona, 497 U.S. 639, 648, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990). The court
held that Florida’s scheme violated the Sixth Amendment because Florida law
“required the judge alone to find the existence of an aggravating circumstance.” Id.
at ___, 136 S.Ct. at 624.
     2. Past Sixth Amendment Challenges to Ohio’s Death-Penalty Scheme
       {¶ 17} After the Ring decision was issued in 2002, we held that Ohio’s
death-penalty scheme does not violate the Sixth Amendment right to a jury trial.
See State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48,
¶ 68-70. We explained that in contrast to Arizona’s scheme, Ohio’s capital-
sentencing scheme places the responsibility for making all factual determinations
regarding whether a defendant should be sentenced to death with the jury. Id. at
¶ 69. We noted that “R.C. 2929.03 charges the jury with determining, by proof
beyond a reasonable doubt, the existence of any statutory aggravating
circumstances and whether those aggravating circumstances are sufficient to
outweigh the defendant’s mitigating evidence.” Id., citing R.C. 2929.03(B) and
(D). See also State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d
215, ¶ 221.
       {¶ 18} After the Hurst decision, we revisited the issue in State v. Belton,
149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 59, stating that “Ohio’s
capital-sentencing scheme is unlike the laws at issue in Ring and Hurst.” In
reaching that conclusion, we reasoned that Ohio law requires a jury in a capital case
to make the findings required by the Sixth Amendment, because “the determination
of guilt of an aggravating circumstance renders [an Ohio] defendant eligible for a




                                         7
                               SUPREME COURT OF OHIO




capital sentence,” id., and the weighing of aggravating circumstances against
mitigating factors “is not a fact-finding process subject to the Sixth Amendment,”
(emphasis sic) id. at ¶ 60. Mason argues that Belton is not controlling here, because
the Hurst question was not squarely presented in that case.
            D. Ohio’s Death-Penalty Scheme and the Sixth Amendment
       {¶ 19} The Sixth Amendment provides that “[i]n all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial, by an impartial jury.”
This entitles criminal defendants “to a jury determination of any fact on which the
legislature conditions an increase in their maximum punishment.” Ring, 536 U.S.
at 589, 122 S.Ct. 2428, 153 L.Ed.2d 556. See also Hurst, ___ U.S. at ___, 136 S.Ct.
at 619, 193 L.Ed.2d 504 (“The Sixth Amendment requires a jury, not a judge, to
find each fact necessary to impose a sentence of death”). Ohio’s death-sentence
scheme satisfies this right.
       {¶ 20} When an Ohio capital defendant elects to be tried by jury, the jury
decides whether the offender is guilty beyond a reasonable doubt of aggravated
murder and—unlike the juries in Ring and Hurst—the aggravating-circumstance
specifications for which the offender was indicted. R.C. 2929.03(B). Then the
jury—again unlike in Ring and Hurst—must “unanimously find[], by proof beyond
a reasonable doubt, that the aggravating circumstances the offender was found
guilty of committing outweigh the mitigating factors.” R.C. 2929.03(D)(2). An
Ohio jury recommends a death sentence only after it makes this finding. Id. And
without that recommendation by the jury, the trial court may not impose the death
sentence.
       {¶ 21} Ohio law requires the critical jury findings that were not required by
the laws at issue in Ring and Hurst. See R.C. 2929.03(C)(2). Ohio’s death-penalty
scheme, therefore, does not violate the Sixth Amendment.           Mason’s various
arguments to the contrary misapprehend both what the Sixth Amendment requires
and what it prohibits.



                                          8
                                January Term, 2018




                                1. Death Eligibility
       {¶ 22} Mason’s arguments focus on the sentencing phase within Ohio’s
death-penalty scheme—namely, the “weighing” process that follows after a
defendant has been found guilty of aggravated murder and at least one capital
specification. He contends that the jury does too little during this phase (merely
recommending a death sentence), while the trial court does too much (imposing the
sentence based on its own specific, written findings). Before addressing these points,
it is necessary to consider a threshold question: does the weighing that occurs in the
sentencing phase—after the jury already has found the existence of an aggravating
circumstance—constitute fact-finding under the Sixth Amendment?
       {¶ 23} Hurst does not answer, or even address, this question. The question
in Hurst was more basic: did the Florida scheme require that a Florida jury make a
finding of fact as to an aggravating circumstance before a sentence of death was
imposed? See Hurst, ___ U.S. at ___, 136 S.Ct. at 622, 193 L.Ed.2d 504. Florida’s
former capital-sentencing scheme was unconstitutional because, instead of requiring
the jury to make the critical finding before making its recommendation, it “required
the judge alone to find the existence of an aggravating circumstance.” Id. at ___, 136
S.Ct. at 624. The Hurst court did refer to Florida’s weighing process by mentioning
the role mitigating facts play in capital sentencing. Id. at ___, 136 S.Ct. at 622,
quoting Walton, 497 U.S. at 648, 110 S.Ct. 3047, 111 L.Ed.2d 511 (a Florida jury
“ ‘does not make specific factual findings with regard to the existence of mitigating
or aggravating circumstances’ ”); id., quoting former Fla.Stat. 921.141(3) (“The trial
court alone must find ‘the facts * * * [t]hat sufficient aggravating circumstances
exist’ and ‘[t]hat there are insufficient mitigating circumstances to outweigh the
aggravating circumstances’ ” [emphasis, ellipsis, and brackets sic]). But those
references merely described Florida’s scheme; the court’s holding did not address the
weighing process. In the end, the court held only that Florida’s sentencing scheme
violated the Sixth Amendment because it “required the judge alone to find the




                                          9
                             SUPREME COURT OF OHIO




existence of an aggravating circumstance.” Id. at ___, 136 S.Ct. at 624. With that in
mind, it is necessary to consider additional caselaw on the subject.
                       a. The nature of the weighing process
       {¶ 24} The United States Supreme Court has recognized “two different
aspects of the capital decision-making process: the eligibility decision and the
selection decision.” Tuilaepa v. California, 512 U.S. 967, 971, 114 S.Ct. 2630, 129
L.Ed.2d 750 (1994). For purposes of the Eighth Amendment, a defendant is eligible
for the death penalty if the trier of fact finds him guilty of murder and at least one
aggravating circumstance. Id. at 972. This determination is necessarily factual. Id.
at 973. See also Kansas v. Carr, ___ U.S. ___, 136 S.Ct. 633, 642, 193 L.Ed.2d
535 (2016) (stating that “the aggravating-factor determination (the so-called
‘eligibility phase’) * * * is a purely factual determination”). “The selection
decision, on the other hand, requires individualized sentencing and must be
expansive enough to accommodate relevant mitigating evidence so as to assure [sic]
an assessment of the defendant’s culpability.” Tuilaepa at 973. This, the Supreme
Court has said, “is mostly a question of mercy,” involving an exercise of judgment.
Carr at 642. See also Tuilaepa at 978 (“at the selection stage, the States are not
confined to submitting to the jury specific propositional questions”). Thus, the
selection decision does not obviously involve a determination of fact.
       {¶ 25} The eligibility/selection distinction is relevant under the Sixth
Amendment in capital cases because the Sixth Amendment requires a jury to find
beyond a reasonable doubt all facts that make a defendant death-eligible. See Hurst
at ___, 136 S.Ct. at 619 (referring to “each fact necessary to impose a sentence of
death”); Ring, 536 U.S. at 589, 122 S.Ct. 2428, 153 L.Ed.2d 556 (“Capital
defendants, no less than noncapital defendants * * * are entitled to a jury
determination of any fact on which the legislature conditions an increase in their
maximum punishment”). See also Blakely v. Washington, 542 U.S. 296, 309, 124
S.Ct. 2531, 159 L.Ed.2d 403 (2004) (referring to “the jury’s traditional function of



                                          10
                                January Term, 2018




finding the facts essential to lawful imposition of the penalty”); Apprendi, 530 U.S.
at 483, 120 S.Ct. 2348, 147 L.Ed.2d 435 (referring to “the basic principles
undergirding the requirements of trying to a jury all facts necessary to constitute a
statutory offense”).
       {¶ 26} Nearly every court that has considered the issue has held that the
Sixth Amendment is applicable to only the fact-bound eligibility decision
concerning an offender’s guilt of the principal offense and any aggravating
circumstances. See United States v. Gabrion, 719 F.3d 511, 532-533 (6th Cir.2013)
(rehearing en banc); United States v. Runyon, 707 F.3d 475, 516 (4th Cir.2013);
United States v. Mitchell, 502 F.3d 931, 993-994 (9th Cir.2007); United States v.
Sampson, 486 F.3d 13, 31-32 (1st Cir.2007); United States v. Fields, 483 F.3d 313,
345-346 (5th Cir.2007); United States v. Purkey, 428 F.3d 738, 749 (8th Cir.2005);
Ritchie v. State, 809 N.E.2d 258, 268 (Ind.2004); Oken v. State, 378 Md. 179, 251,
835 A.2d 1105 (2003); Commonwealth v. Roney, 581 Pa. 587, 601, 866 A.2d 351
(2005); State v. Gales, 265 Neb. 598, 628, 658 N.W.2d 604 (2003); Nunnery v.
State, 127 Nev. 749, 770-775, 263 P.3d 235 (2011); State v. Fry, 2006-NMSC-001,
¶ 37-38, 138 N.M. 700, 126 P.3d 516.
       {¶ 27} But some post-Hurst decisions have held otherwise. See Smith v.
Pineda, S.D.Ohio No. 1:12-cv-196, 2017 U.S. Dist. LEXIS 22082, *6 (Feb. 16,
2017) (finding that Ohio’s scheme satisfies the Sixth Amendment but also finding
that “the relative weight of aggravating circumstances and mitigating factors is a
question of fact akin to an element under the Apprendi line of cases”); Chinn v.
Jenkins, S.D.Ohio No. 3:02-cv-512, 2017 U.S. Dist. LEXIS 22088, *5 (Feb. 13,
2017) (same); Davis v. Bobby, S.D.Ohio No. 2:10-cv-107, 2017 U.S. Dist. LEXIS
157948, *6-7 (Sept. 25, 2017); Rauf v. State, 145 A.3d 430, 434 (Del.2016).
       {¶ 28} In Gabrion, the Sixth Circuit (analyzing the federal death-penalty
statute) explained that the weighing process requires “not a finding of fact in support
of a particular sentence * * * [but] a determination of the sentence itself, within a




                                          11
                               SUPREME COURT OF OHIO




range for which the defendant is already eligible.” (Emphasis sic.) Id. at 533. This
analysis is persuasive and applies to the Ohio scheme, which expressly makes the
weighing process a determination of the sentence itself. See R.C. 2929.03(C)(2)(b)
(“if the offender is found guilty of both the charge and one or more of the
specifications, the penalty to be imposed on the offender * * * shall be determined
* * * [b]y the trial jury and the trial judge, if the offender was tried by jury”). In other
words, after completing its role as the fact-finder concerning a defendant’s guilt, an
Ohio jury assumes a different role as a “sentencer” (albeit in conjunction with the
trial court). See Brown v. Sanders, 546 U.S. 212, 216, 126 S.Ct. 884, 163 L.Ed.2d
723 (2006) (“Once the narrowing requirement has been satisfied, the sentencer is
called upon to determine whether a defendant thus found eligible for the death
penalty should in fact receive it”). But see State v. Rogers, 28 Ohio St.3d 427, 429,
504 N.E.2d 52 (1986), reversed on reconsideration on other grounds, 32 Ohio St.3d
70, 512 N.E.2d 581 (1987) (recognizing the trial court as the ultimate “sentencing
authority”).
          b. Ohio’s statutory scheme does not violate the Sixth Amendment
        {¶ 29} Based on the above analysis, we were correct to state in Belton, 149
Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, at ¶ 60, that “[w]eighing is not a
fact-finding process subject to the Sixth Amendment.” (Emphasis sic.) The Sixth
Amendment was satisfied once the jury found Mason guilty of aggravated murder
and a felony-murder capital specification. See State v. Adams, 144 Ohio St.3d 429,
2015-Ohio-3954, 45 N.E.3d 127, ¶ 269 (“Adams became death-eligible when the
jury unanimously found him guilty of aggravated murder in the course of some
predicate felony”); State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31,
¶ 189 (“the jury’s verdict, and not the judge’s findings, made Davis eligible for the
death penalty”); State v. Gumm, 73 Ohio St.3d 413, 417, 653 N.E.2d 253 (1995) (“At
the point in time at which the factfinder * * * finds the defendant guilty of both
aggravated murder and an R.C. 2929.04(A) specification, the defendant has become



                                            12
                                 January Term, 2018




‘death-eligible,’ and a second phase of the proceedings (the ‘mitigation’ or ‘penalty’
or ‘sentencing’ or ‘selection’ phase begins”). See also Jenkins v. Hutton, ___ U.S.
___, 137 S.Ct. 1769, 1772, 198 L.Ed.2d 415 (2017) (stating that Hutton was death-
eligible under Ohio law when the jury found him guilty of aggravated murder and
two aggravating circumstances). Accordingly, we approve our analysis in Belton and
reject Mason’s claim that Ohio’s death-penalty scheme is unconstitutional under
Hurst.
                          2. The Jury’s Role in Sentencing
         {¶ 30} While we uphold our conclusion in Belton that weighing is not a fact-
finding process subject to the Sixth Amendment, we further conclude that even if the
weighing process were to involve fact-finding under the Sixth Amendment, Ohio
adequately affords the right to trial by jury during the penalty phase. Mason
contends that it does not, because the process permits a jury only to recommend a
death sentence. See R.C. 2929.03(D)(2). Here, he emphasizes the statement in
Hurst that “[a] jury’s mere recommendation is not enough.” Hurst, ___ U.S. at
___, 136 S.Ct. at 619, 193 L.Ed.2d 504. But he fails to appreciate the material
difference between the process by which an Ohio jury reaches its death
recommendation and the Florida process at issue in Hurst.
         {¶ 31} The Florida statute required the jury to render an “advisory sentence”
after hearing the evidence presented in a sentencing-phase proceeding:


                Advisory sentence by the jury.—After hearing all the
         evidence, the jury shall deliberate and render an advisory sentence
         to the court, based upon the following matters:
                (a) Whether sufficient aggravating circumstances exist as
         enumerated in subsection (5);
                (b) Whether sufficient mitigating circumstances exist which
         outweigh the aggravating circumstances found to exist; and




                                          13
                             SUPREME COURT OF OHIO




               (c) Based on these considerations, whether the defendant
       should be sentenced to life imprisonment or death.


Former Fla.Stat. 921.141(2). 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.
       {¶ 32} 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.
       {¶ 33} Mason disputes this conclusion, relying on this court’s statement in
Rogers, 28 Ohio St.3d at 430, 504 N.E.2d 52, that Florida’s system “is remarkably
similar to Ohio’s.” But Rogers involved a different question. See id. at 429-430.
Rogers noted that the systems are similar in that they both allow for jury
recommendations; it did not consider the findings that the jury was required to make
before recommending a sentence.
       {¶ 34} Mason also argues that Ohio’s scheme is inadequate under the Sixth
Amendment because it requires the jury to render “only a general verdict.” Here,
Mason relies on Hurst’s reference to the “ ‘specific factual findings’ ” by a jury that
were lacking under Florida’s scheme. See Hurst, ___ U.S. at ___, 136 S.Ct. at 622,
193 L.Ed.2d 504, quoting Walton, 497 U.S. at 648, 110 S.Ct. 3047, 111 L.Ed.2d
511. He contends that this requires a jury to explain why it concluded that the
aggravating circumstances are sufficient to outweigh the mitigating factors. He
contrasts the jury’s general verdict to the trial court’s sentencing opinion, which
indeed must explain “the reasons why the aggravating circumstances the offender




                                          14
                                 January Term, 2018




was found guilty of committing were sufficient to outweigh the mitigating factors,”
R.C. 2929.03(F).
       {¶ 35} While it is true that a trial court must fully explain its reasoning for
imposing a sentence of death, Mason does not provide any support for the
proposition that the Sixth Amendment requires a jury to explain why it found that
the aggravating circumstances outweigh the mitigating factors. In citing Hurst for
this proposition, Mason fails to appreciate that Florida’s statutory scheme violated
the Sixth Amendment because the jury did not specify its finding of which
aggravating circumstance supported its recommendation, not because the jury did
not explain why it found that the aggravating circumstances were not outweighed
by sufficient mitigating circumstances.
       {¶ 36} On a related point, Mason contends that the jury’s sentencing-phase
finding and recommendation are insufficient because they provide no guidance to
the trial court for its own findings and sentence determination. His argument relies
on the statement in Hurst that “ ‘[a] Florida trial court no more has the assistance
of a jury’s findings of fact with respect to sentencing issues than does a trial judge
in Arizona.’ ” Hurst at ___, 136 S.Ct. at 622, quoting Walton at 648.
       {¶ 37} Mason misses a key distinction between Ohio’s statutory scheme
and the Florida and Arizona statutory schemes at issue in Hurst and Walton: in
Ohio, a jury is required to find the defendant guilty of a specific aggravating
circumstance, thus establishing the aggravating circumstance that a trial court will
weigh against the mitigating factors in its independent determination of
punishment. See R.C. 2929.03(D)(3); State v. Wogenstahl, 75 Ohio St.3d 344, 662
N.E.2d 311 (1996), paragraph one of the syllabus. Mason does not explain why
further guidance for the trial court is constitutionally required.
       {¶ 38} Mason also complains that Ohio’s statutory scheme does not require
the jury to make findings regarding mitigating factors or to specify the factors that it
considered in mitigation. There is only limited support for the argument that a jury




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must do so: Hurst, again quoting Walton, notes that Florida’s former scheme did not
require the jury to “ ‘make specific factual findings with regard to the existence of
mitigating or aggravating circumstances.’ ” Hurst, ___ U.S. at ___, 136 S.Ct. at 622,
193 L.Ed.2d 504, quoting Walton, 497 U.S. at 648, 110 S.Ct. 3047, 111 L.Ed.2d 511.
Notably, however, neither Ring nor Hurst held that the Sixth Amendment requires a
jury to find mitigating facts. See State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762,
890 N.E.2d 263, ¶ 186.        Rather, they recognized that the Sixth Amendment
guarantees that a jury will determine the facts that serve to increase the maximum
punishment. Ring, 536 U.S. at 589, 122 S.Ct. 2428, 153 L.Ed.2d 556; Hurst at ___,
136 S.Ct. at 619. See also Apprendi, 530 U.S. at 490-491, 120 S.Ct. 2348, 147
L.Ed.2d 435, fn. 16 (stating that “[c]ore concerns animating the jury and burden-of-
proof requirements are thus absent” when a trial judge alone finds a mitigating fact
that reduces an offender’s sentence). Because a finding that mitigating facts exist is
not “necessary to impose a sentence of death,” Hurst at ___, 136 S.Ct. at 619, this
aspect of Mason’s claim has no merit.
               3. The Trial Judge’s Role and the Sixth Amendment
        {¶ 39} One of Mason’s main concerns is the last step in Ohio’s capital-
sentencing process: the trial judge’s independent findings that culminate in a
written sentencing opinion. See R.C. 2929.03(D)(3) and (F). He contends that the
trial judge must “make additional ‘specific findings’ beyond those made by the trial
jury” and that an offender is not eligible for the death penalty until this judicial task
is complete. Relying on Hurst, he says that a death sentence can be imposed in
Ohio only after the trial judge makes these “independent factual determinations.”
But Mason misapprehends the issue, framing it as a question whether a death
sentence “can be imposed,” instead of whether it “will be imposed.” Ohio does not
permit the trial judge to find additional aggravating facts but requires the judge to
determine, independent of the jury, whether a sentence of death should be imposed.
See State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 160.



                                           16
                                January Term, 2018




       {¶ 40} Two significant flaws are apparent in Mason’s claim. First, unlike
the Arizona scheme found unconstitutional by the United States Supreme Court in
Ring, under the Ohio scheme, the trial court cannot increase an offender’s sentence
based on its own findings. Rather, the trial court safeguards offenders from
wayward juries, similar to how a court might grant a motion for acquittal following
a jury verdict under Crim.R. 29(C).
       {¶ 41} Second, Mason wrongly supposes that the Sixth Amendment
prohibits judicial fact-finding. To be sure, Hurst and Ring both decry judicial fact-
finding to some extent. But they do so in the context of reviewing statutory
schemes that fail to provide for any jury fact-finding on critical questions. See
Hurst, ___ U.S. at ___, 136 S.Ct. at 622, 193 L.Ed.2d 504, (noting “the central and
singular role the judge play[ed] under Florida law” [emphasis added]); Ring, 536
U.S. at 592, 122 S.Ct. 2428, 153 L.Ed.2d 556 (noting that the court alone made the
factual determination of an aggravating factor under Arizona law). The Supreme
Court made clear in Blakely, 542 U.S. at 308, 124 S.Ct.2531, 159 L.Ed.2d 403, that
“the Sixth Amendment by its terms is not a limitation on judicial power, but a
reservation of jury power. It limits judicial power only to the extent that the claimed
judicial power infringes on the province of the jury.” See also Alleyne v. United
States, 570 U.S. 99, 116, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (“Our ruling
today does not mean that any fact that influences judicial discretion must be found
by a jury. We have long recognized that broad sentencing discretion, informed by
judicial factfinding, does not violate the Sixth Amendment”); United States v.
Booker, 543 U.S. 220, 233, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) (“We have never
doubted the authority of a judge to exercise broad discretion in imposing a sentence
within a statutory range”).
       {¶ 42} Mason suggests that under Hurst, the Sixth Amendment requires the
jury alone to decide whether a sentence of death will be imposed. But Hurst did not
create this requirement. Ohio trial judges may weigh aggravating circumstances




                                          17
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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 at 306.
Under Ohio’s death-penalty scheme, therefore, trial judges function squarely within
the framework of the Sixth Amendment.
                                   III. Conclusion
        {¶ 43} We conclude that Ohio’s death-penalty scheme does not violate a
defendant’s right to a trial by jury as guaranteed by the Sixth Amendment. For this
reason, the trial court erred in granting Mason’s motion to dismiss the death-penalty
specification from his indictment. We accordingly affirm the decision of the Third
District Court of Appeals.
                                                                   Judgment affirmed.
        O’CONNOR, C.J., and JENSEN, FRENCH, HALL, and DEWINE, JJ., concur.
        KENNEDY, J., concurs, with an opinion.
        JAMES D. JENSEN, J., of the Sixth District Court of Appeals, sitting for
O’DONNELL, J.
        MICHAEL T. HALL, J., of the Second District Court of Appeals, sitting for
O’NEILL, J.
                                 _________________
        KENNEDY, J., concurring.
        {¶ 44} Because the majority’s judgment is in line with our holding in State
v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, I concur in that
judgment. Although the majority never explicitly addresses Mason’s argument that
the analysis of Hurst v. Florida, ___ U.S. ___, 136 S.Ct. 616, 193 L.Ed.2d 504
(2016), in Belton is dicta, its failure to cite Belton as binding precedent that resolves
this case implies that the majority agrees that our holding in Belton is dictum.
        {¶ 45} With regard to dicta, Chief Justice Marshall wrote the following
almost 200 years ago in Cohens v. Virginia: “It is a maxim not to be disregarded,



                                           18
                                  January Term, 2018




that general expressions, in every opinion, are to be taken in connection with the
case in which those expressions are used. If they go beyond the case, they may be
respected, but ought not to control the judgment in a subsequent suit when the very
point is presented for decision.” 19 U.S. 264, 399, 5 L.Ed. 257 (1821). For this
reason, a court is not bound to follow its own dicta from a prior case in which the
point at issue “was not fully debated.” Cent. Virginia Community College v. Katz,
546 U.S. 356, 363, 126 S.Ct. 990, 163 L.Ed.2d 945 (2006); see also Cosgrove v.
Williamsburg of Cincinnati Mgt. Co., Inc., 70 Ohio St.3d 281, 284, 638 N.E.2d 991
(1994) (explaining that dicta in a prior case had no binding effect on a court's
decision in a later case).
        {¶ 46} This is so because “ ‘[t]he problem with dicta, and a good reason that
it should not have the force of precedent for later cases, is that when a holding is
unnecessary to the outcome of a case, it may be made with less care and
thoroughness than if it were crucial to the outcome.’ ” State v. Bodyke, 126 Ohio
St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 89 (O’Donnell, J., concurring in
part and dissenting in part), quoting Bauer v. Garden City, 163 Mich.App. 562,
571, 414 N.W.2d 891 (1987).
        {¶ 47} Our determination in Belton that Ohio’s death-penalty statutes do not
contravene the holding in Hurst, however, is not dictum. The issue presented in
the third proposition of law in Belton was whether Ohio’s death-penalty statute
violated the Sixth Amendment right to a jury trial. The court quoted Belton as
asserting that


        “even if a capital defendant enters a guilty plea to Aggravated
        Murder and the accompanying death specifications, he has a right to
        a jury trial to determine the existence of any mitigating factors and
        to   determine       whether   the    aggravating   circumstance   or




                                             19
                               SUPREME COURT OF OHIO




          circumstances to which he would plead guilty outweigh those
          factors by proof beyond a reasonable doubt.”


Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, at ¶ 55. In effect,
Belton argued that the Sixth Amendment guarantees a capital defendant the right
to have a jury make additional factual determinations before sentencing—that
notwithstanding his having waived the right to have a jury determine guilt, only a
jury can make the finding that the aggravating circumstances outweighed the
mitigating factors. The court answered the question squarely presented by the
parties by applying Hurst—then the United States Supreme Court’s most recent
pronouncement on the issue—and explaining that the Sixth Amendment right to a
jury trial is not implicated by a sentencing scheme that requires the trial judge to
weigh aggravating circumstances against mitigating factors before selecting death
as the appropriate sentence.
          {¶ 48} The fact that the court could have analyzed the question presented in
a different way—for instance, by considering whether Belton’s waiver of a jury
trial relinquished any right to a jury’s participation in sentencing—does not mean
that the way we did answer it is dicta. In Richards v. Mkt. Exchange Bank Co., 81
Ohio St. 348, 367, 90 N.E. 1000 (1910), we rejected the view that “the
determination of a question fairly presented by the record becomes mere dicta if
there happens to be another proposition on which the decision might have been
based.”
          {¶ 49} That a case could be distinguished on some factual basis from
another case does not affect the authority of the rule of law it announced or reduce
its holding to mere dictum. See United States v. Schuster, 684 F.2d 744, 748 (11th
Cir.1982), adopted on reh’g, 717 F.2d 537 (11th Cir.1983) (en banc) (“Virtually all
cases are factually distinguishable, but that does not vitiate the underlying rule of
law to be derived from [a prior decision]”); State v. Rice, 169 N.H. 783, 795, 159



                                           20
                                January Term, 2018




A.3d 1250 (2017) (acknowledging that the case was distinguishable from a prior
case on the facts, but concluding that the “factual distinction” did not “justif[y] a
difference in outcome”). Our decision in Belton is binding precedent controlling
the outcome of this appeal, because its holding did not go beyond the facts and
issues then before the court and its analysis was necessary for our ruling. Therefore,
it is not dictum.
        {¶ 50} Applying Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d
319, I agree that Ohio’s death-penalty statutes do not violate the Sixth Amendment
right to a jury trial as construed by Hurst, __ U.S. ___, 136 S.Ct. 616, 193 L.Ed.2d
504. As we explained in Belton, the weighing of aggravating circumstances and
mitigating factors required to ensure that only a defendant deserving of the ultimate
penalty is sentenced to death “is not a fact-finding process subject to the Sixth
Amendment” (emphasis sic), id. at ¶ 60, but rather “amounts to ‘a complex moral
judgment’ about what penalty to impose upon a defendant who is already death-
penalty eligible,” id., quoting United States v. Runyon, 707 F.3d 475, 515-516 (4th
Cir.2013).
        {¶ 51} Once the jury found Mason guilty of aggravated murder and at least
one aggravating circumstance, under former R.C. 2929.03(C)(2), Am.Sub.S.B. No.
1, 139 Ohio Laws, Part I, 1, 10, the court could impose only one of the following
penalties: “death, life imprisonment with parole eligibility after serving twenty full
years of imprisonment, or life imprisonment with parole eligibility after serving
thirty full years of imprisonment.” Therefore, the maximum penalty authorized by
the statute following the jury’s verdict at the trial phase was death, and no judicial
fact-finding could expose Mason to any greater punishment.
        {¶ 52} Because Mason was eligible for capital punishment based on the
jury’s verdict at the end of the trial phase, his argument that Ohio’s death-penalty
scheme violates the Sixth Amendment because it does not require the jury to make
specific findings of fact regarding the mitigating circumstances or why the




                                         21
                            SUPREME COURT OF OHIO




mitigating circumstances were outweighed by the aggravating circumstances is not
well taken. Accordingly, the majority correctly affirms the judgment of the court
of appeals, and I concur.
                              _________________
       Ray A. Grogan, Marion County Prosecuting Attorney, and Kevin P. Collins,
Assistant Prosecuting Attorney, for appellee.
       Carpenter, Lipps & Leland, L.L.P., and Kort Gatterdam; and Todd
Anderson, for appellant.
       Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, and
Michael J. Hendershot, Chief Deputy Solicitor, urging affirmance for amicus curiae
Ohio Attorney General.
       Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and
Christopher D. Schroeder, Assistant Prosecuting Attorney, urging affirmance for
amicus curiae Cuyahoga County Prosecutor’s Office.
       Ron O’Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor,
Assistant Prosecuting Attorney, urging affirmance for amicus curiae Ohio
Prosecuting Attorneys Association.
       Jeffrey M. Gamso and Erika B. Cunliffe, urging reversal for amicus curiae
Ohio Association of Criminal Defense Lawyers.
                              _________________




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