[Cite as State v. Skatzes, 2019-Ohio-3590.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                      :
                                                    :
          Plaintiff-Appellee                        :   Appellate Case No. 28212
                                                    :
 v.                                                 :   Trial Court Case No. 94-CR-2890
                                                    :
 GEORGE SKATZES                                     :   (Criminal Appeal from
                                                    :   Common Pleas Court)
          Defendant-Appellant                       :
                                                    :

                                               ...........

                                              OPINION

                           Rendered on the 6th day of September, 2019.

                                               ...........

MARK E. PIEPMEIER, Atty. Reg. Nos. 0002166, 0006894P, Montgomery County Special
Prosecutor, 230 East Ninth Street, Suite 4000, Cincinnati, Ohio 45202
      Attorney for Plaintiff-Appellee

JOSEPH E. WILHELM, Atty. Reg. Nos. 0055407, 0051928, Assistant Federal Public
Defender, 1660 West Second Street, Suite 750, Cleveland, Ohio 44113
      Attorney for Defendant-Appellant

                                              .............

DONOVAN, J.
                                                                                         -2-


      {¶ 1} George Skatzes appeals from the trial court’s October 19, 2019 order

denying his successive petition for postconviction relief and granting the State’s motion

to dismiss that petition. We hereby affirm the judgment of the trial court.

      {¶ 2} This Court previously set forth the procedural history of this case as follows:

             In 1995, George Skatzes was found guilty of three counts of

      aggravated murder arising out of an eleven-day inmate riot and siege at the

      Southern Ohio Correctional Facility in Lucasville. The riot occurred in April

      1993. Skatzes was convicted of killing two other inmates, Earl Elder and

      David Sommers, and a corrections officer, Robert Vallandingham. He was

      sentenced to death for Elder's and Sommers' murders and to life

      imprisonment for Vallandingham's murder. Skatzes was also found guilty of

      three counts of kidnapping, for which he received three concurrent

      sentences of fifteen to twenty-five years.

             Skatzes appealed from his conviction and sentence. In 2003, we

      affirmed his conviction on the three aggravated murders and two of the

      kidnappings, and we affirmed the imposition of the death penalty. We

      vacated Skatzes' conviction on the third kidnapping. State v. Skatzes,

      Montgomery App. No. 15848, 2003-Ohio-516.

             While an appeal to the Supreme Court of Ohio was pending, Skatzes

      filed a petition for postconviction relief. In 2004, the supreme court affirmed

      his conviction and sentence. State v. Skatzes, 104 Ohio St.3d 195, 2004-

      Ohio-6391, 819 N.E.2d 215. In January 2007, Skatzes filed a motion for

      new trial based on new evidence. In July 2007, the trial court denied
                                                                                              -3-


       Skatzes' petition for postconviction relief without a hearing. In October 2007,

       the trial court overruled Skatzes' motion for a new trial.

State v. Skatzes, 2d Dist. Montgomery Nos. 22322, 22484, 2008-Ohio-5387, ¶ 2-4

(overruling 12 assignments of error related to the denial of his petition for postconviction

relief and three assignments of error related to the denial of his motion for a new trial.)

       {¶ 3} In Skatzes’s petition, he asserted that his death sentence should be vacated

based upon Hurst v. Florida, __ U.S. __, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). He

argued that, first, his death sentence violated the Sixth and Fourteenth Amendments

because “the jury did not make the necessary, specific, factual findings as required under”

Hurst, and second, his “death sentence must be vacated because the Ohio Capital

sentencing scheme in effect when [he] was tried violates the newly created right of plenary

jury fact-finding required by” Hurst.

       {¶ 4} In denying his petition, the trial court noted as follows:

              Recently, the Ohio Supreme Court held that Ohio’s death penalty

       scheme does not run afoul of Hurst. In State v. Mason, [153 Ohio St.3d 476,

       2018-Ohio-1462, 108 N.E.3d 56], the Ohio Supreme Court affirmed a

       decision by the Third District Court of Appeals holding that a trial court erred

       by finding that the Ohio capital sentencing structure was unconstitutional

       under Hurst. Id. at ¶ 3-4. In upholding Ohio’s capital sentencing scheme,

       the Ohio Supreme Court stated that it passes constitutional muster under

       Hurst because it places responsibility for making all factual determinations

       regarding whether a defendant should be sentenced to death with the jury.

       {¶ 5} The trial court quoted Mason as follows:
                                                                                     -4-


            When an Ohio capital defendant elects to be tried by a jury, the jury

      decides whether the offender is guilty beyond a reasonable doubt of

      aggravated murder and—unlike the juries in [Ring v. Arizona, 536 U.S. 584,

      122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)] 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.

            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.

Mason at ¶ 20-21.

      {¶ 6} Skatzes asserts the following assignment of error herein:

            APPELLANT’S DEATH SENTENCE VIOLATES THE SIXTH AND

      FOURTEENTH         AMENDMENTS          TO     THE     UNITED      STATES

      CONSTITUTION BECAUSE THE JURY DID NOT MAKE NECESSARY,

      SPECIFIC, FACTUAL FINDINGS AS REQUIRED UNDER HURST V.
                                                                                              -5-

       FLORIDA, __ U.S. __, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016).

       {¶ 7} Skatzes notes in his brief that he filed a petition for habeas corpus in the

United States District Court for the Southern District of Ohio on April 5, 2010, in Skatzes

v. Smith, No. 3:09-cv-00289, Doc. 25, and that his habeas case is pending before Judge

Timothy S. Black.      Skatzes acknowledges that Mason “is binding authority for this

appeal” and that this court must follow it. Skatzes appeals the trial court’s denial “of his

Hurst claim only to exhaust it for the possibility of review of his claim in the federal courts.”

       {¶ 8} The State responds that the Ohio Supreme Court’s determination that Ohio’s

death-penalty scheme remains constitutional post-Hurst is dispositive of this appeal, and

that the denial and dismissal of Skatzes’s petition should be affirmed.

       {¶ 9} Since we are bound to follow the Ohio Supreme Court judgment in Mason,

Skatzes’s assigned error is overruled.

       {¶ 10} The judgment of the trial court is affirmed.



                                       .............



FROELICH, J. and HALL, J., concur.



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Mark A. Piepmeier
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