[Cite as State v. Bryan, 2018-Ohio-1190.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105774




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                            QUISI BRYAN
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                  Case No. CR-00-393660-ZA

        BEFORE: S. Gallagher, J., E.T. Gallagher, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: March 29, 2018
ATTORNEYS FOR APPELLANT

Timothy Young
Ohio Public Defender
By: Kathryn Sandford
Assistant State Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Christopher D. Schroeder
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:

       {¶1} Appellant Quisi Bryan appeals the trial court’s denial of his motion for

leave to file a motion for a new mitigation trial. Upon review, we affirm the trial court’s

decision because the motion for leave was untimely.

       {¶2} After a jury trial, Bryan was found guilty of two counts of aggravated murder

for the killing of a police officer, two counts of attempted murder of another individual,

carrying a concealed weapon, having weapons while under disability, and tampering with

evidence. The jury also found Bryan guilty of death penalty specifications and firearm

specifications.   Bryan was sentenced to death for the murder and to prison for the

remaining offenses. His convictions and death sentence were affirmed in State v. Bryan,

101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433.

       {¶3} On January 11, 2017, Bryan filed a motion for leave to file a motion for a

new mitigation trial that the state opposed. The trial court denied the motion. The trial

court found that the motion “incorrectly proceeds under Crim.R. 33” instead of R.C.

2953.23 and also that the court was “bound to follow the Supreme Court of Ohio in State

v. Belton, [149 Ohio St.3d,] 2016-Ohio-1581, [74 N.E.3d 319], which found Ohio’s death

penalty statute constitutional under Hurst v. Florida, 577 U.S. __, 136 S.Ct. 616[, 193

L.Ed.2d 504] (2016).” Further, the court recognized that the Supreme Court of Ohio had

“unanimously denied [Bryan’s] motion for order or relief on March 15, 2017[,]” which

motion had raised the same issues.
       {¶4} Bryan filed this appeal from the trial court’s decision.        He raises two

assignments of error for our review.

       {¶5} Under his first assignment of error, Bryan claims the trial court erred by

denying his motion. He argues that the trial court incorrectly determined that his motion

should have been filed under R.C. 2953.23 when his motion was brought pursuant to

Crim.R. 33.     We recognize that “Crim.R. 33 procedures for a new trial exist

independently from the R.C. 2953.21 procedure for postconviction relief.”          State v.

Cashin, 10th Dist. Franklin No. 17AP-338, 2017-Ohio-9289, ¶ 13. Although the trial

court’s determination was incorrect in this regard, we may affirm the decision of the court

as long as it is legally correct on other grounds. State v. Gulley, 8th Dist. Cuyahoga No.

101527, 2015-Ohio-3582, ¶ 12, citing State v. Payton, 124 Ohio App.3d 552, 557, 706

N.E.2d 842 (12th Dist.1997); Reynolds v. Budzik, 134 Ohio App.3d 844, 846, 732 N.E.2d

485 (6th Dist.1999), fn. 3.

       {¶6} The record reflects that Bryan filed his motion for leave to file a motion for a

new mitigation trial pursuant to Crim.R. 33. He asserted grounds for a new trial under

Crim.R. 33(A)(1), (4), and (5), and claimed that his sentence was imposed in violation of

the Sixth and the Fourteenth Amendments of the United States Constitution, citing Hurst,

577 U.S. __, 136 S.Ct. 616, 193 L.Ed.2d 504. Although the state argues that Bryan’s

attempt to raise a new constitutional claim does not fall under any of the grounds for a

new trial and does not allow for a “new sentencing proceeding,” we need not reach these

arguments herein.
       {¶7} A defendant who fails to timely file a motion for a new trial must seek leave

from the trial court to file a delayed motion for a new trial. State v. Dues, 8th Dist.

Cuyahoga No. 105388, 2017-Ohio-6983, ¶ 10, citing State v. Mathis, 134 Ohio App.3d

77, 79, 730 N.E.2d 410 (1st Dist.1999). To obtain leave, Crim.R. 33(B) requires that the

defendant must show clear and convincing proof that he was unavoidably prevented from

filing his motion for a new trial. “[A] party is unavoidably prevented from filing a

motion for a new trial if the party had no knowledge of the existence of the ground

supporting the motion * * * and could not have learned of the existence of that ground

within the time prescribed for filing the motion * * * in the exercise of reasonable

diligence.”   State v. Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th

Dist.1984).   In addition, the defendant must show that he sought leave within a

reasonable time after discovering the evidence relied upon to support the motion for new

trial. State v. Nunez, 8th Dist. Cuyahoga No. 104917, 2017-Ohio-5581, ¶ 17, citing State

v. Gray, 8th Dist. Cuyahoga No. 92646, 2010-Ohio-11, ¶ 18.

       {¶8} Bryan’s motion was premised on the United States Supreme Court’s decision

in Hurst, in which the Court concluded that Florida’s death penalty statutory scheme

violates the Sixth Amendment to the United States Constitution. The Hurst case was

decided January 12, 2016, over five years after Bryan was sentenced to death. Bryan’s

motion for leave was filed a year after Hurst was decided. Although Bryan argues that

Hurst is a complex decision that takes time to digest and understand, we find a year

exceeded a reasonable time for filing the motion.
      {¶9} In State v. Mundt, 7th Dist. Noble No. 17 NO 0446, 2017-Ohio-7771, the

Seventh District found untimely a motion for leave to file a motion for a new mitigation

trial that was filed a year after Hurst, 577 U.S. __, 136 S.Ct. 616, 193 L.Ed.2d 504. The

court determined that Mundt had not shown he was unavoidably prevented from filing a

motion when he “was capable of raising the same argument prior to Hurst using other

cases as support.” Mundt at ¶ 9. The Seventh District cited the Supreme Court of

Ohio’s decision in State v. Roberts, 150 Ohio St.3d 47, 2017-Ohio-2998, 78 N.E.3d 851,

¶ 84, which found a defendant raising a Hurst claim “could have made essentially the

same Sixth Amendment argument by relying on Apprendi v. New Jersey, 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).” The Seventh District also cited the Supreme Court of

Ohio’s decision in Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, at ¶

59-60, which recognized “Ohio’s capital-sentencing scheme is unlike the laws at issue in

Ring and Hurst.” As explained in Belton,

      In Ohio, a capital case does not proceed to the sentencing phase until after
      the fact-finder has found a defendant guilty of one or more aggravating
      circumstances. See R.C. 2929.03(D); R.C. 2929.04(B) and (C); State v.
      Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 147.
      Because the determination of guilt of an aggravating circumstance renders
      the defendant eligible for a capital sentence, it is not possible to make a
      factual finding during the sentencing phase that will expose a defendant to
      greater punishment. Moreover, in Ohio, if a defendant is tried by a jury,
      then the judge cannot impose a sentence of death unless the jury has entered
      a unanimous verdict for a death sentence. R.C. 2929.03(D)(2).

             Federal and state courts have upheld laws similar to Ohio’s,

      explaining that if a defendant has already been found to be death-penalty
          eligible, then subsequent weighing processes for sentencing purposes do not

          implicate Apprendi and Ring.       Weighing is not a fact-finding process

          subject to the Sixth Amendment, because “[t]hese determinations cannot

          increase the potential punishment to which a defendant is exposed as a

          consequence of the eligibility determination.” State v. Gales, 265 Neb.

          598, 628, 658 N.W.2d 604 (2003); see, e.g., State v. Fry, 2006-NMSC-001,

          138 N.M. 700, 718, 126 P.3d 516 (2005); Ortiz v. State, 869 A.2d 285,

          303-305 (Del.2005); Ritchie v. State, 809 N.E.2d 258, 268 (Ind.2004).

          Instead, the weighing process amounts to “a complex moral judgment”

          about what penalty to impose upon a defendant who is already

          death-penalty eligible. United States v. Runyon, 707 F.3d 475, 515-516

          (4th Cir.2013) (citing cases from other federal appeals courts).

(Emphasis sic.) Belton at ¶ 59-60.

          {¶10} We agree with the Mundt decision and its application of the Supreme Court

of Ohio’s decisions in Roberts and Belton. See Mundt at ¶ 8-11. We find that Bryan’s

motion was untimely.

          {¶11} Accordingly, we need not address Bryan’s second assignment of error,

which claims “Ohio’s capital punishment scheme, R.C. 2929.03 and R.C. 2929.05 and the

procedure set forth therein, deprive a defendant of his Sixth Amendment right to a jury

trial.”    App.R. 12(A)(1)(c).      Nonetheless, we recognize the First District’s recent

decision in State v. Carter, 1st Dist. Hamilton No. C-170231, 2018-Ohio-645, which was
submitted by the state as supplemental authority.         In Carter, the court rejected a

constitutional challenge to Ohio’s death penalty statute that argued the imposition of the

death penalty requires judicial fact finding in violation of the Sixth Amendment right to a

jury trial as set forth in Hurst, 577 U.S. __, 136 S.Ct. 616, 193 L.Ed.2d 504. The First

District found as follows:

              Post-Hurst, the Ohio Supreme Court recognized that, unlike the

       Florida statute, under Ohio law “the determination of guilt of an

       aggravating circumstance renders the defendant eligible for a capital

       sentence,” and therefore “it is not possible to make a factual finding during

       sentencing phase that will expose a defendant to greater punishment.”

       State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 59.

       In other words, in Ohio a jury must first find a defendant guilty of an

       aggravating factor before the death penalty becomes a possibility. While

       Belton involved the 2008 version of Ohio’s death penalty statute, the

       relevant provisions are substantially similar to the ones under review today.

        The key point from Belton is that the sentencing phase under Ohio law

       involves a weighing—not a fact-finding—process. Id. at ¶ 60. The Ohio

       jury’s role in the mitigation phase affords an extra layer of protection to the

       accused. Without a jury recommendation that the defendant be sentenced

       to death, that sentence is unavailable. The Ohio judge’s ability to reject a

       death sentence recommendation affords a safety valve and maintains a
       court’s traditional role in imposing punishment. These layers of protection

       afforded a defendant comply with Hurst. See State v. Jackson, 8th Dist.

       Cuyahoga No. 105530, 2018-Ohio-276; State v. Mason, 3d Dist. Marion

       No. 9-16-34, 2016-Ohio-8400.

Carter at ¶ 8. We agree with the analysis in Carter.

       {¶12} We also recognize that the Supreme Court of Ohio accepted discretionary

review of the Hurst issue in State v. Mason, 3d Dist. Marion No. 9-16-34,

2016-Ohio-8400, ¶ 48. In Mason, the defendant was granted federal habeas corpus relief

as to his death sentence and, while his resentencing was pending, Hurst, 577 U.S. __, 136

S.Ct. 616, 193 L.Ed.2d 504, was decided. The trial court then granted the defendant’s

motion to dismiss the death-penalty specification from his indictment, and the state

appealed. The Third District rejected the defendant’s Hurst claim and concluded that

“Ohio’s death-penalty statute in effect in 1993 [R.C. 2929.03] does not violate the Sixth

Amendment.” Mason at ¶ 48.           The court noted that although the statute has been

amended a number of times since 1993, none of those revisions changed the role of the

jury or the judge. Id. at ¶ 21, fn. 5. The Hurst issue is also before the Supreme Court of

Ohio in State v. Ford, Ohio S.Ct. No. 2015-1309. Neither of those cases involve a

motion for leave to file a motion for a new mitigation trial.

       {¶13} Finally, we note that Bryan filed a motion for relief raising the same Hurst

claim in the Supreme Court of Ohio and that motion was denied. State v. Bryan, 148

Ohio St.3d 1423, 2017-Ohio-905, 71 N.E.3d 296.
       {¶14} Because the motion for leave was untimely, we uphold the decision of the

trial court.

       {¶15} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.     The

court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. Case remanded to the trial court for

execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



SEAN C. GALLAGHER, JUDGE

EILEEN T. GALLAGHER, P.J., and
MELODY J. STEWART, J., CONCUR
