         [Cite as State v. Deloney, 2019-Ohio-5213.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :   APPEAL NO. C-190372
                                                       TRIAL NO. B-1303726
        Plaintiff-Appellee,                        :

  vs.                                              :     O P I N I O N.

JOHN DELONEY,                                      :

    Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed and Cause Remanded

Date of Judgment Entry on Appeal: December 18, 2019




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W.
Springman, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Faulkner & Tepe, LLP, A. Norman Aubin and Wilkes R. Ellsworth, for Defendant-
Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS



MOCK, Presiding Judge.

       {¶1}    Defendant-appellant John Deloney has filed an interlocutory appeal

from the decision of the Hamilton County Court of Common Pleas denying his

motion to preclude the death penalty as a sentencing option on double-jeopardy

grounds. We find no merit in Deloney’s sole assignment of error, and we affirm the

trial court’s judgment.


                               I. Factual Background

       {¶2}    On June 21, 2013, Deloney was indicted for aggravated murder under

R.C. 2903.01(B), with accompanying death-penalty and firearm specifications. He

was also indicated for aggravated robbery under R.C. 2911.01(A)(1), with an

accompanying firearm specification.

       {¶3}    Deloney’s counsel subsequently filed a “Motion for a Suggestion of

Mental Retardation.” We note that the Ohio Supreme Court now uses the term

“intellectually disabled” rather than “mentally retarded.” See State v. Ford, Slip

Opinion No. 2019-Ohio-4539, ¶ 44.          Therefore, we will also use the term

“intellectually disabled.”

       {¶4}    Despite the filing of the motion, Deloney and his family refused to

cooperate with all evaluations and testing. Eventually, the trial court held a hearing

using the evidence the parties had been able to gather without Deloney’s

cooperation. After the hearing, the trial court found that Deloney was intellectually

disabled. Therefore, it held that subjecting him to the death penalty would constitute

cruel and unusual punishment under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct.

2242, 153 L.Ed.2d 335 (2002), and State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-

6625, 779 N.E.2d 1011.


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       {¶5}   The state appealed the trial court’s decision to this court. In State v.

Deloney, 1st Dist. Hamilton No. C-150619, 2017-Ohio-9282, we reversed the trial

court’s decision, holding that Deloney had failed to meet his burden of proof to show

that he was intellectually disabled. We remanded the cause to the trial court for

further proceedings. Id. at ¶ 30. The Supreme Court declined to accept the case for

review. See State v. Deloney, 152 Ohio St.3d 1481, 2018-Ohio-1990, 98 N.E.3d 295.

       {¶6}   On remand, Deloney filed a “Motion to Preclude the Death Penalty,”

on double-jeopardy grounds. He argued that the trial court’s decision finding that he

was intellectually disabled was essentially an acquittal on the issue of whether the

state could impose the death penalty. The trial court denied the motion. It found

that the Atkins determination was unrelated to factual guilt and innocence, and

therefore, it was not an acquittal for purposes of the double-jeopardy clause. The

court also found that under the law-of-the-case doctrine, it was required to follow

our mandate and proceed to trial.

       {¶7}   Deloney filed a timely appeal from the trial court’s judgment. We note

that the Ohio Supreme Court has held that the denial of a motion to dismiss on

double-jeopardy grounds is a final, appealable order. See State v. Anderson, 138

Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 60-61.

       {¶8}   In his sole assignment of error, Deloney contends that the trial court

erred in overruling his motion to dismiss the death-penalty specifications on double-

jeopardy grounds. He argues that the law-of-the-case doctrine did not preclude the

trial court from considering the double-jeopardy issue. He also argues that the trial

court made a factual finding that he was intellectually disabled, which precluded the

imposition of the death penalty and served as an “acquittal” on the death-penalty

specifications. Therefore, regardless of our reversal of the trial court’s previous

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decision, trying him on the specifications would twice place him in jeopardy, and as a

result, the state is precluded from seeking the death penalty. This assignment of

error is not well taken.


                              II. Law-of-the-Case Doctrine

       {¶9}    First, the law-of-the-case doctrine did not bar the trial court from

deciding the double-jeopardy issue. Under the law-of-the-case doctrine, the decision

of a reviewing court in an action remains the law of that case on the legal questions

involved for all subsequent proceedings in that case. Nolan v. Nolan, 11 Ohio St.3d 1,

3, 462 N.E.2d 410 (1984); Vonderhaar v. Cincinnati, 191 Ohio App.3d 229, 2010-

Ohio-6289, 945 N.E.2d 603, ¶ 13 (1st Dist.). The law-of-the-case doctrine does not

apply when the subsequent proceedings involve different evidence or different legal

issues. Vonderhaar at ¶ 13.

       {¶10} In our previous decision, we decided only that Deloney had failed to

meet his burden to show that he was intellectually disabled, and therefore, ineligible

for the death penalty. Whether the state is precluded by the Double Jeopardy Clause

from seeking the death penalty is a separate issue that we did not decide, and thus, it

is outside of our mandate. Therefore, the trial court was not barred by the law-of-

the-case doctrine from considering the double-jeopardy issue.


                                 III. Double Jeopardy

       {¶11} “The constitutional protection against double jeopardy unequivocally

prohibits a second trial following an acquittal.” State v. Hancock, 108 Ohio St.3d 57,

2006-Ohio-160, 840 N.E.2d 1032, ¶ 139, quoting Arizona v. Washington, 434 U.S.

497, 503, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).          The Double Jeopardy Clause


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ordinarily does not prohibit the imposition of an increased sentence on remand from

an appeal. Hancock at ¶ 139. But in a line of cases beginning with Bullington v.

Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), the United States

Supreme Court held that double-jeopardy principles may apply to bar a capital

sentence on retrial. Hancock at ¶ 140.


                    A. The United States Supreme Court Cases

       {¶12} In Bullington, the jury originally returned a verdict rejecting the death

penalty and imposing a sentence of life imprisonment without parole eligibility for

50 years. Subsequently, the trial court granted the defendant’s motion for a new trial

on grounds related to statutory deficiencies in jury selection. The court refused to let

the state seek the death penalty on retrial, and the state sought a writ of prohibition

allowing it to seek the death penalty, which the Supreme Court of Missouri granted.

       {¶13} The United States Supreme Court reversed that decision. It held that

the Double Jeopardy Clause applies to capital proceedings where the proceedings

“have the hallmarks of the trial on guilt or innocence.”       Bullington at 439.     It

identified several aspects of Missouri’s sentencing proceeding that resembled a trial,

including the requirement that the prosecution must prove certain statutorily

defined criteria beyond a reasonable doubt to support a death sentence. Id. at 438.

It stated that Missouri law “explicitly requires the jury to determine whether the

prosecution has ‘proved its case.’ ” (Emphasis in original.) Id. at 444.

       {¶14} Thus, the jury’s decision to impose a life sentence meant that “the jury

has already acquitted the defendant of whatever was necessary to impose the death

sentence.” Id. at 445. For that reason, the life sentence deserved the same degree of

finality that an acquittal of the offense itself would have been given. Id. at 445-446.


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Nevertheless, in Bullington, it was not the mere imposition of the life sentence that

raised the double-jeopardy bar. Sattazahn v. Pennsylvania, 537 U.S. 101, 107, 123

S.Ct. 732, 154 L.Ed.2d 588 (2003). An “acquittal” at a trial-like sentencing phase,

rather than the mere imposition of a life sentence, is required to give rise to double-

jeopardy protections. Bullington, 451 U.S. at 446, 101 S.Ct. 1852, 68 L.Ed.2d 270.

       {¶15} Subsequently, the Court decided Arizona v. Rumsey, 467 U.S. 203,

104 S.Ct. 2305, 81 L.Ed.2d 164 (1984), which involved a death sentence imposed by a

judge rather than a jury. In that case, the trial court had found that no statutory

aggravating circumstances existed, which precluded the court from imposing the

death penalty under Arizona law. The state appealed, and the Supreme Court of

Arizona held that the trial court had erred in its interpretation of one of the statutory

aggravating circumstances. It remanded the cause for a new sentencing procedure,

which produced a death sentence.

       {¶16} In reversing the Arizona court’s decision, the United States Supreme

Court stated that the “double jeopardy principle relevant to [the defendant’s] case is

the same as that invoked in Bullington: an acquittal on the merits by the sole

decision maker in the proceeding is final and bars retrial on the same charge.” Id. at

211.

       Rumsey thus reaffirmed that the relevant inquiry for double-jeopardy

       purposes was not whether the defendant received a life sentence the

       first time around, but rather whether a first life sentence was an

       ‘acquittal’ based on findings sufficient to establish legal entitlement to

       the life sentence-i.e., findings that the government failed to prove one

       or more aggravating circumstances beyond a reasonable doubt.

Sattazahn at 108.

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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶17} The Supreme Court reached a different result in Poland v. Arizona 476

U.S. 147, 106 S.Ct. 1749, 80 L.Ed.2d 123 (1986). That case involved two defendants

convicted of first-degree murder and sentenced to death. On appeal, the Arizona

Supreme Court set aside the convictions because of a jury-room discussion of

evidence not admitted at trial. It also found that there was insufficient evidence to

support the one aggravating circumstance found by the trial court. But, it found

there was sufficient evidence to support another aggravating circumstance, which the

trial court did not believe was proved. The Court remanded the case for a new trial.

The defendants were again convicted of murder and sentenced to death.

       {¶18} The Supreme Court decided that in those circumstances, the Double

Jeopardy Clause was not violated. It distinguished Bullington and Ramsey stating

that “[a]t no point during the [defendants’] first capital sentencing hearing and

appeal did either the sentencer or the reviewing court hold that the prosecution had

‘failed to prove its case’ that [defendants] deserved the death penalty.” Id. at 154. It

went on to state that “[w]e reject the fundamental premise of [defendants’]

argument, namely, that a capital sentencer’s failure to find a particular aggravating

circumstance alleged by the prosecution always constitutes an ‘acquittal’ of that

circumstance for double jeopardy purposes.”

       {¶19} To the contrary, the defendants had been convicted at the first trial

and sentenced to death. “This concern with protecting the finality of acquittals is not

implicated when, as in these cases, a defendant is sentenced to death, i.e., ‘convicted.’

There is no cause to shield the defendant from further litigation; further litigation is

the only hope he has.” Id. at 156.

       {¶20} Finally, the Court decided Sattazahn, 537 U.S. 101, 123 S.Ct. 732, 154

L.Ed.2d 588, in which there was a hung jury in the sentencing phase of the

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                      OHIO FIRST DISTRICT COURT OF APPEALS



proceedings. As required by Pennsylvania law, the trial court discharged the jury

and imposed a life sentence. An appellate court concluded that the trial court had

erred in instructing the jury in the penalty phase of the proceedings. It reversed the

defendant’s murder conviction and remanded the matter for a new trial. At the

second trial, the jury convicted the defendant and sentenced him to death. The

Pennsylvania Supreme Court affirmed the guilty verdict and death sentence.

       {¶21} The United States Supreme court affirmed. It stated that “[u]nder the

Bullington line of cases * * *, the touchstone for double-jeopardy protection in

capital-sentencing proceedings is whether there has been an ‘acquittal.’             [The

defendant] here cannot establish that the jury or the court ‘acquitted’ him during his

first capital-sentencing proceeding.” Id. at 109. It noted that because the jury was

deadlocked, “it made no findings with respect to the alleged aggravating

circumstance. That result—or more appropriately, that non-result—cannot fairly be

called an acquittal ‘based on findings sufficient to establish legal entitlement to the

life sentence.’ ” Id., quoting Rumsey, 467 U.S. at 211, 104 S.Ct. 2305, 81 L.Ed.2d 164.

       {¶22} The Court also stated that the judge’s entry of a life sentence was not

an acquittal because the judge had no discretion to fashion the sentence once it

found that the jury was deadlocked. The judge made no findings and resolved no

factual matters. “Since judgment is not based on findings which resolve some factual

matter, it is not sufficient to establish a legal entitlement to a life sentence. A default

judgment does not trigger a double jeopardy bar to the death penalty upon retrial.”

Id. at 109-110, quoting Commonwealth v. Sattazahn, 563 Pa. 533, 548, 763 A.2d 359

(2000).




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                     OHIO FIRST DISTRICT COURT OF APPEALS



                           B. Ohio Supreme Court Cases

         {¶23} We note that very recently the Ohio Supreme Court revisited the issue

of what standard is applied in an Atkins hearing to determine whether an individual

is intellectually disabled. See Ford, Slip Opinion No. 2019-Ohio-4539, at ¶ 42-100.

But we need not discuss that case because it does not affect our analysis in this case.

         {¶24} The Ohio Supreme Court first discussed the double-jeopardy issue in

Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, in which the jury

recommended the death penalty. But before sentencing, the trial judge determined

that certain guilt-phase exhibits were improperly sent to the jury room during the

penalty-phase deliberations. The trial court, without weighing the aggravating and

mitigating circumstances, declared a mistrial of the penalty phase and sentenced the

defendant to life in prison. The court of appeals determined that the trial court had

improperly declared a mistrial.     It vacated the life sentence and remanded for

resentencing.     On remand, the trial court determined that the aggravating

circumstances outweighed the mitigating factors and sentenced the defendant to

death.

         {¶25} The Ohio Supreme Court discussed the Bullington line of cases. It

stated that neither the judge nor the jury had found that the prosecution had failed to

prove its case that the defendant deserved the death penalty. The jury did not acquit,

and the trial judge, in granting the mistrial, made clear that he was not deciding if

the death penalty was appropriate. The Ohio Supreme Court used strong language

about acquittal, stating, “Only a finding that the state has failed to prove its case for

death constitutes an ‘acquittal of the death penalty’ for double-jeopardy purposes.”




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Hancock at ¶ 150, citing Sattazahn, 537 U.S. at 117, 123 S.Ct. 732, 154 L.Ed.2d 588

(O’Connor, J., concurring in part and concurring in judgment).

       {¶26} The Ohio Supreme Court again addressed the issue in State v. White,

132 Ohio St.3d 344, 2012-Ohio-2583, 972 N.E.2d 534. In that case, the defendant

was convicted by a jury and sentenced to death. Subsequently, he obtained federal

habeas relief from his death sentence because of a biased juror, requiring a

resentencing. The version of R.C. 2929.06(B) in effect at the time required the trial

court to empanel a new jury and conduct a fresh penalty hearing, but that provision

was enacted after the murder of which the defendant had been convicted and before

he obtained habeas relief. The trial court held that it could not retroactively apply

the statute, and therefore, the defendant was ineligible for the death penalty.

       {¶27} Amicus curiae Ohio Association of Criminal Defense Lawyers

(“OACDL”) contended that the retroactive application of R.C. 2929.06(B) would

violate the Double Jeopardy Clause. OACDL argued that the statute created an

irrebuttable presumption that the first jury, in the absence of the biased juror, would

not have recommended death, and therefore, a life sentence should have been

imposed.    It argued that it was the equivalent of an acquittal that precluded

reinstatement of that punishment.

       {¶28} The Ohio Supreme Court rejected that argument, finding that it rested

on a misunderstanding of Bullington.         It stated that the cases decided since

Bullington make clear that an acquittal at a trial-like sentencing phase is required to

give rise to double-jeopardy protections. White, 132 Ohio St.3d 344, 2012-Ohio-

2583, 972 N.E.2d 535, at ¶ 67. It went on to state that “[m]oreover, to raise a double-

jeopardy bar to resentencing, an acquittal on the merits is required.” (Emphasis in

original.) Id. Because neither a judge nor a jury had found that the prosecution had

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                     OHIO FIRST DISTRICT COURT OF APPEALS



failed to prove its case that the defendant deserved the death penalty, the court

rejected the double-jeopardy argument.


                                    C. Application

       {¶29} This case presents a different fact scenario than any of these cases.

Neither the parties nor this court could find any case applying double-jeopardy

principles where a trial court had found the defendant’s intellectual disability

precluded the imposition of the death penalty and the state had appealed.

Nevertheless, our review of the United States Supreme Court and Ohio Supreme

Court cases shows that a finding that a defendant was intellectually disabled was not

the functional equivalent of an acquittal.

       {¶30} First, there was no “trial-like sentencing phase.” It is true, as Deloney

argues, that the Atkins hearing in this case has some indicia of a trial-like

proceeding, such as opening statements, witnesses called by both sides, application

of the rules of evidence, and closing arguments. Nevertheless, the hearing was

significantly different than a true death-penalty-phase-sentencing hearing.

       {¶31} Here, there has been no sentencing. Deloney has not even been tried,

much less found guilty.       Further, no evidence was presented regarding the

aggravating factors necessary for the imposition of the death penalty or any

mitigating factors, other than Deloney’s alleged intellectual disability.     See R.C.

2929.04.    Deloney bore the burden at the Atkins hearing to prove by a

preponderance of the evidence that he was intellectually disabled. See Lott, 97 Ohio

St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011, at ¶21.          In a capital-sentencing

hearing, the state bears the burden to prove beyond a reasonable doubt that the




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                       OHIO FIRST DISTRICT COURT OF APPEALS



aggravating factors outweigh the mitigating factors. State v. Stumpf, 32 Ohio St.3d

95, 102, 512 N.E.2d 598 (1987).

          {¶32} Most importantly, there was no “acquittal.” In United States v. Scott,

437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978), the United States Supreme Court

stated that a defendant is acquitted only when “the ruling of the judge, whatever its

label, actually represents a resolution [in the defendant’s favor], correct or not, of

some or all of the factual elements of the offense charged.” Id. at 97, citing United

States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 51 L.Ed.2d 642

(1977).

          {¶33} In Scott, the trial court dismissed two counts of an indictment because

of prejudice due to preindictment delay. The government appealed and the appellate

court dismissed the appeal, finding that the Double Jeopardy Clause barred further

prosecution. The United States Supreme Court reversed that court’s decision. It

stated that an appeal is barred only if the government’s evidence “was legally

insufficient to sustain a conviction.” Scott at 97, quoting Martin Linen Supply Co. at

572.

          {¶34} Further, as we have previously stated, the Ohio Supreme Court has

held that “[o]nly a finding that the state has failed to prove its case for death

constitutes an ‘acquittal of the death penalty’ for double-jeopardy purposes.”

Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, at ¶ 150.                 An

acquittal in the guilt phase would occur if the state’s evidence was legally insufficient

to prove the alleged aggravating factors or if jury found that the state had failed to

prove the aggravating factors.

          {¶35} “Ohio requires only one factual decision at the penalty stage, i.e.,

whether the State has proven beyond a reasonable doubt that the aggravating factors

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                     OHIO FIRST DISTRICT COURT OF APPEALS



of which the offender has been found guilty outweigh the mitigating factors.” State

v. Arnold, 2013-Ohio-5336, 2 N.E.3d 1009, ¶ 48 (2d Dist.). Thus, the state’s evidence

would be legally insufficient to support the death penalty and constitute an acquittal

in the penalty phase if the state failed to prove beyond a reasonable doubt that the

aggravating factors outweighed the mitigating factors. In this case, there were none

of these determinations. The guilt phase has not even occurred.

       {¶36} We agree with the trial court when it stated:

       As it was in this case, an Atkins hearing and finding of intellectual

       disability is unrelated to the factual guilt or innocence of the

       defendant. Rather, it is a factual evaluation of whether or not Deloney

       qualifies as intellectually disabled to preclude the death penalty under

       the Eighth Amendment.          The trial court does not make any

       determination of guilt or innocence, but proceeds entirely on the

       Defendant’s request to avoid the death penalty based on the

       constitutional prohibition against cruel and unusual punishment.

       Because the trial court’s Atkins determination was unrelated to factual

       guilt or innocence, it is not an acquittal for purposes of the application

       of the Double Jeopardy Clause.

       {¶37} The Double Jeopardy Clause protects against three distinct wrongs:

(1) a second prosecution for the same offense after an acquittal, (2) a second

prosecution for the same offense after conviction, and (3) multiple punishments for

the same offense. State v. Soto, Slip Opinion No. 2019-Ohio-4430, ¶ 12. None of

these concerns are implicated here. Deloney has not been tried on the aggravated-

murder charge or on the death-penalty specification. Thus, he has not been put in



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jeopardy and the Double Jeopardy Clause does not preclude a trial on the guilt or

penalty phases or the imposition of the death penalty.

       {¶38} Consequently, we hold that the trial court did not err in overruling

Deloney’s motion to preclude the death penalty on double-jeopardy grounds. We

overrule his sole assignment of error, affirm the trial court’s judgment, and remand

the cause to the trial court for further proceedings.

                                              Judgment affirmed and cause remanded.


MYERS, J., concurs.
CROUSE, J., concurs separately.

CROUSE, J., concuring separately.

       {¶39} I concur in the majority opinion, but I write separately to emphasize

that Deloney has not been put twice in jeopardy because he has not been found guilty

and he has not been sentenced. In all of the cases cited by Deloney in support of his

argument that the trial court’s Atkins determination was an “acquittal of the death

penalty,” the defendant had been found guilty and had been sentenced.

       {¶40} Deloney contends that the issue in this case is directly analogous to the

situation where a court finds a defendant not guilty by reason of insanity (“NGRI”),

which has been found to be an “acquittal.” But an NGRI finding necessarily requires

a finding of guilt on the underlying crime. 2 Ohio Jury Instructions, CR Section

421.29(3) (Rev. May 2o19).

       If you find that the state has proved beyond a reasonable doubt all

       the essential elements of any one of the offenses that have been

       described, then you must find the defendant guilty of the offense

       charged or such lesser included offense according to your finding;

       unless you further find by a preponderance or greater weight of the

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      evidence that the defendant was insane at the time of the commission

      of the act, in which event your verdict must be not guilty by reason of

      insanity.

(Emphasis added.) Id.

      {¶41} Ohio’s Atkins procedure is better compared to a criminal competency

proceeding than a sentencing proceeding or an NGRI finding.          As set forth in

Tobolowsky, Atkins Aftermath: Identifying Mentally Retarded Offenders and

Excluding Them From Execution, 30 J.Legis. 77 (2003):

      In a manner similar to a competency determination, an Atkins

      proceeding requires an assessment of whether proffered facts satisfy

      the legal definition of mental retardation adopted, which, in turn,

      automatically determines a capital defendant’s eligibility for or

      exclusion from the death penalty–again without regard to any

      individualized assessment of the defendant’s culpability for the

      underlying crime.    In this connection, the Atkins Court explicitly

      found, as part of its findings regarding national consensus, that “our

      society views mentally retarded offenders as categorically less culpable

      than the average offender.” Unlike the role that evidence of mental

      retardation plays as a mitigating factor balanced against aggravating

      factors in a capital sentencing determination of the requisite

      individualized culpability necessary for the imposition of a death

      sentence, the Atkins mental retardation determination simply removes

      a defendant from that determination because the Court has already

      made the determination that a mentally retarded offender lacks the

      requisite culpability to be executed.      In this connection, mental

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       retardation is not a sentencing issue--it is an eligibility for sentencing

       issue. Viewed in this way, a judicial pretrial determination of whether

       proffered facts satisfy the legal definition of mental retardation and

       thus whether a case may proceed as a capital prosecution appears very

       similar to a judicial pretrial determination of whether proffered facts

       satisfy the legal standard of criminal competency and thus whether a

       criminal prosecution may proceed.

(Emphasis added.) Id. at 105.

       {¶42} For the reasons set forth in the majority opinion, and because in Ohio,

a trial court’s Atkins determination is a threshold determination of whether a

defendant is eligible for the death penalty and not an acquittal of the death penalty, I

concur.



Please note:
       The court has recorded its own entry this date.




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