[Cite as State v. Hale, 2019-Ohio-1890.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                 Plaintiff-Appellee,             :
                                                           No. 107782
                 v.                              :

DELANO HALE,                                     :

                 Defendant-Appellant.            :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: May 16, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-04-454857-A


                                           Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecutor, and
                 Christopher Schroeder, Assistant Prosecuting Attorney,
                 for appellee.

                 Timothy Young, Ohio Public Defender, and Erika M.
                 LaHote, and Randall L. Porter, Assistant Ohio Public
                 Defenders, for appellant.
PATRICIA ANN BLACKMON, J.:

                Defendant-appellant, Delano Hale, appeals from the order of the

trial court that denied his motion for a new mitigation trial. He assigns the following

error for our review:

      The trial court erred when it denied Hale’s motion for a new mitigation
      trial.

               Having reviewed the record and the pertinent law, we affirm the

decision of the trial court.

                On July 28, 2004, Hale was indicted for aggravated murder, with

felony murder death specifications, aggravated robbery, tampering with evidence,

and having a weapon while under disability, all in connection with the death of

Douglas Green (“Green”). On June 7, 2005, the jury convicted Hale of all counts

and specifications. Nine days later, the jury unanimously recommended a sentence

of death. On July 18, 2005, the trial court imposed the death sentence for the

aggravated murder and 13 years for the remaining crimes.

               On direct appeal, Hale’s conviction and sentence were affirmed by the

Ohio Supreme Court. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892

N.E.2d 864.

               While his direct appeal was pending before the Ohio Supreme Court,

Hale filed a petition in the common pleas court for postconviction relief alleging,

inter alia, ineffective assistance of counsel and various constitutional challenges to

the death penalty. On September 24, 2015, the trial court dismissed Hale’s petition.
This court affirmed.   State v. Hale, 8th Dist. Cuyahoga No. 103654, 2016-Ohio-

5837, ¶ 49.

                On January 11, 2017, Hale filed a “Combined Motion for Leave to File

a Motion for New Mitigation Trial Pursuant to Criminal Rule 33 and R.C. 2953.21.”

Hale argued that the Ohio death penalty scheme violates the Sixth Amendment to

the United States Constitution, based upon the United States Supreme Court’s

decision in Hurst v. Florida, 577 U.S. ___, 136, S.Ct. 616, 193 L.Ed.2d 504 (2016),

in which the Supreme Court held that Florida’s death penalty statute violated the

defendant’s Sixth Amendment right to a jury trial because it required the judge,

rather than the jury, to determine the existence of any aggravating circumstances

justifying the death penalty. Id. at 624. On September 10, 2018, the trial court

denied the motion/petition in a seven-page order.

              I. Motion for Leave to File a Motion For a New Trial

                We review a judgment denying a motion for leave to file a delayed

motion for a new trial for an abuse of discretion. State v. Washington, 8th Dist.

Cuyahoga No. 103875, 2016-Ohio-5329, ¶ 16.

               Crim.R. 33, new trial, provides in pertinent part:

      (A) Grounds. A new trial may be granted on motion of the defendant
      for any of the following causes affecting materially his substantial
      rights:

      (1) Irregularity in the proceedings, or in any order or ruling of the
      court, or abuse of discretion by the court, because of which the
      defendant was prevented from having a fair trial;

      ***
      (4) That the verdict is not sustained by sufficient evidence or is
      contrary to law[.]

      (5) Error of law occurring at the trial[.]

      (B) Motion for New Trial; Form, Time. Application for a new trial shall
      be made by motion which, except for the cause of newly discovered
      evidence, shall be filed within fourteen days after the verdict was
      rendered, or the decision of the court where a trial by jury has been
      waived, unless it is made to appear by clear and convincing proof that
      the defendant was unavoidably prevented from filing his motion for a
      new trial, in which case the motion shall be filed within seven days from
      the order of the court finding that the defendant was unavoidably
      prevented from filing such motion within the time provided herein.

               With regard to the issue of timeliness, we note that 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. State v. Bryan, 8th Dist. Cuyahoga No. 105774, 2018-Ohio-1190,

¶ 7, citing State v. Dues, 8th Dist. Cuyahoga No. 105388, 2017-Ohio-6983, ¶ 10;

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

a 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.
               In State v. Roberts, 150 Ohio St.3d 47, 2017-Ohio-2998, 78 N.E.3d

851, the Ohio Supreme Court remarked that, prior to the decision in Hurst, Roberts

“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).” Id. at ¶ 84.

              Further, in State v. Bryan, 8th Dist. Cuyahoga No. 105774, 2018-

Ohio-1190, ¶ 8, this court found a Hurst-based motion for a new trial to be untimely,

and stated as follows:

      The Hurst case [577 U.S. ___, 136 S.Ct. 616, 193 L.Ed.2d 504] 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.

Accord State v. Mundt, 7th Dist. Noble No. 17 NO 0446, 2017-Ohio-7771,

(concluding that a motion for leave to file a motion for a new mitigation trial was

untimely where it was filed a year after Hurst, and the defendant did not show that

he was unavoidably prevented from filing the argument prior to Hurst with other

cases used in support of the claim).

              With regard to the substantive merit of the Hurst argument, we note

that in Bryan, this court rejected a Hurst challenge to Ohio’s death penalty scheme

and stated:

      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.

Bryan at ¶ 11 (approving the analysis set forth in State v. Carter, 2018-Ohio-645, 95

N.E.3d 443 (1st Dist.). Accord State v. Jackson, 2018-Ohio-276, 105 N.E.3d

472, ¶ 17 (8th Dist.) (affirming denial of motion for leave to file a motion for a new

trial based on Hurst claim).

               In accordance with the foregoing, the trial court did not err in denying

Hale’s 2017 motion for leave to file a motion for a new trial.

                       II. Petition for Postconviction Relief

               Under R.C. 2953.21, a prisoner may obtain postconviction relief “only

if the court can find that there was such a denial or infringement of the rights of the

prisoner as to render the judgment void or voidable under the Ohio Constitution or

the United States Constitution.” State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104

(1967), paragraph four of the syllabus. A postconviction petition does not provide a

petitioner a second opportunity to litigate his or her conviction. State v. Steffen, 70
Ohio St.3d 399, 410, 639 N.E.2d 67 (1994); State v. Smith, 8th Dist. Cuyahoga No.

93534, 2010-Ohio-1869, ¶ 11. Rather, it is a means to reach constitutional issues

that would otherwise be impossible to reach because the evidence supporting those

issues is not contained in the record. Id. at ¶ 12.

               The postconviction relief statute allows only a limited time to file a

petition for postconviction relief, which “shall be filed no later than three hundred

sixty five days after the date on which the trial transcript is filed in the court of

appeals in the direct appeal of the judgment of conviction or adjudication”

challenged by the petition. R.C. 2953.21(A)(2). This restriction is jurisdictional.

R.C. 2953.23(A).      However, outside of these limitations, there is a grant of

jurisdiction where the petitioner can satisfy both of the following:

      (a) Either the petitioner shows that the petitioner was unavoidably
      prevented from discovery of the facts upon which the petitioner must
      rely to present the claim for relief, or, subsequent to the period
      prescribed in division (A)(2) of section 2953.21 of the Revised Code or
      to the filing of an earlier petition, the United States Supreme Court
      recognized a new federal or state right that applies retroactively to
      persons in the petitioner’s situation, and the petition asserts a claim
      based on that right.

      (b) The petitioner shows by clear and convincing evidence that, but for
      constitutional error at trial, no reasonable factfinder would have found
      the petitioner guilty of the offense of which the petitioner was convicted
      or, if the claim challenges a sentence of death that, but for
      constitutional error at the sentencing hearing, no reasonable factfinder
      would have found the petitioner eligible for the death sentence.

R.C. 2953.23(A)(1).

               Pursuant to R.C. 2953.21(C), a trial court may deny a petition for

postconviction relief without holding an evidentiary hearing where the petition, the
supporting affidavits, the documentary evidence, the files, and the records do not

demonstrate that petitioner set forth sufficient operative facts to establish

substantive grounds for relief. State v. Calhoun, 86 Ohio St.3d 279, 281, 1999-Ohio-

102, 714 N.E.2d 905.

                   In State v. Mason, 153 Ohio St.3d 476, 2018-Ohio-1462, 108 N.E.3d

56, the Ohio Supreme Court considered Hurst and 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. Id. at ¶ 29-43. The Supreme Court

distinguished Ohio’s statute from the Florida death penalty statute deemed

unconstitutional in Hurst and stated:

       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.

                  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. The court noted that “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.” Id. at ¶ 39, citing State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665,

850 N.E.2d 1168, ¶ 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, 124 S. Ct. 2531, 159 L.Ed.2d
       403 (2004).] Under Ohio’s death-penalty scheme, therefore, trial
       judges function squarely within the framework of the Sixth
       Amendment.

Id. at ¶ 42.

               Similarly, in State v. Goff, 154 Ohio St.3d 218, 2018-Ohio-3763, 113

N.E.2d 490, the Ohio Supreme Court held that the weighing process is not fact-

finding subject to the Sixth Amendment. Id. at ¶ 39. The court remarked that “[t]he

Sixth Amendment was satisfied once the jury found [Goff] guilty of aggravated

murder and a felony-murder capital specification.” Id. at ¶ 36. Accord State v.

Tench, Slip Opinion No. 2018-Ohio-5205, ¶ 279. See also Belton, 149 Ohio St.3d

165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 59-60 (distinguishing Hurst and concluding

that the weighing of aggravating circumstances against mitigating factors is not a

fact-finding process subject to the Sixth Amendment.).

               We are bound by the Supreme Court’s decisions in Mason, Goff, and

Belton that rejected the same arguments raised by Hale and affirmed the

constitutionality of Ohio’s death penalty statute under the Sixth and Fourteenth

Amendments.
               In accordance with the foregoing, the trial court did not err in denying

Hale’s 2017 petition for postconviction relief.

               Judgment is 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 of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending is terminated. 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.



PATRICIA ANN BLACKMON, JUDGE

MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR
