[Cite as Otte v. State, 2017-Ohio-7568.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                       No. 106204



                                           GARY OTTE
                                                     PLAINTIFF-APPELLANT

                                               vs.

                                       STATE OF OHIO
                                                     DEFENDANT-APPELLEE




                                           JUDGMENT:
                                            AFFIRMED


                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CV-17-884798


        BEFORE: E.T. Gallagher, J., Keough, A.J., and McCormack, J.

        RELEASED AND JOURNALIZED: September 12, 2017
ATTORNEYS FOR APPELLANTS

Stephen C. Newman
Federal Public Defender

BY:    Alan C. Rossman
       Sharon A. Hicks
       Joseph E. Wilhelm
Assistant Federal Public Defenders
1660 West Second Street, Suite 750
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEES

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Christopher Schroeder
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

      {¶1} Plaintiff-appellant, Gary Otte, appeals the dismissal of his complaint for

declaratory judgment and claims the following error:

      The trial court erred when it ruled that appellant’s Eighth Amendment claim
      is not justiciable as a complaint for declaratory relief.

      {¶2} We find no merit to the appeal and affirm the trial court’s judgment.

                           I. Facts and Procedural History

      {¶3} In March 1992, Otte was charged with four counts of aggravated murder, in

violation of both R.C. 2903.01(A) and 2903.01(B), for the murders of Robert Wasikowski

and Sharon Kostura.     The aggravated murder charges contained two death penalty

specifications that (1) Otte committed the murder while committing aggravated robbery

and aggravated burglary, as described in R.C. 2929.04(A)(7), and (2) the aggravated

murder of Sharon Kostura was part of a course of conduct involving the purposeful

killing of or attempt to kill two or more persons, as described in R.C. 2929.04(A)(5). In

addition to the murder charges, the indictment charged Otte with two counts each of

aggravated burglary, kidnapping, and aggravated robbery.

      {¶4} A three-judge panel found Otte guilty of four counts of aggravated murder

with both death specifications.   The panel also found Otte guilty of two counts of

aggravated robbery and two counts of aggravated burglary, but acquitted him of the

kidnapping charges. At the conclusion of the penalty phase of trial, the panel found that

the aggravating circumstances of the crimes outweighed any mitigating factors and

sentenced Otte to death. His convictions and death sentence were affirmed on direct
appeal to this court and the Ohio Supreme Court. State v. Otte, 8th Dist. Cuyahoga No.

64617, 1994 Ohio App. LEXIS 4869 (Oct. 27, 1994), aff’d, 74 Ohio St.3d 555, 660

N.E.2d 711 (1996).

      {¶5} Otte subsequently pursued unsuccessful petitions for postconviction and

habeas corpus relief in state and federal courts. Once the appeals of these claims were

exhausted, the Ohio Supreme Court scheduled Otte’s execution for March 15, 2017.

Governor John Kasich issued two reprieves that postponed Otte’s execution date to

September 13, 2017.

      {¶6} On August 21, 2017, Otte filed a complaint in the Cuyahoga County Court of

Common Pleas seeking a declaration that R.C. 2929.03, Ohio’s death penalty statute,

violates the Eighth Amendment’s guarantee against cruel and unusual punishment. Otte

alleged that “[b]ased on the Eighth and Fourteenth Amendments’ evolving standards of

decency, the death penalty is now a disproportionate punishment for any offender who

committed his capital crime before turning age twenty-one.”

      {¶7} The state filed a motion to dismiss the complaint under Civ.R. 12(B)(6),

arguing that the complaint failed to state a claim on which relief could be granted. While

the case was pending, Otte filed a motion to stay the execution date in the Ohio Supreme

Court, which was denied. The trial court subsequently granted the state’s motion to

dismiss Otte’s complaint. In its journal entry, the trial court held that “a declaratory

judgment action cannot be used to collaterally attack a conviction or sentence in a

criminal case.” Otte now appeals the dismissal of his declaratory judgment action.
                                  II. Law and Analysis

       {¶8} In his sole assignment of error, Otte argues the trial court erred in concluding

that his Eighth Amendment proportionality claim is not justiciable as a declaratory

judgment action. He contends his claim is a justiciable controversy appropriate for

declaratory judgment because it is not cognizable as a postconviction claim.

       {¶9} We review an order dismissing a complaint for failure to state a claim for

relief de novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814

N.E.2d 44. When reviewing a Civ.R. 12(B)(6) motion to dismiss, we must accept the

material allegations of the complaint as true and make all reasonable inferences in favor

of the plaintiff. Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 2005-Ohio-4985, 834

N.E.2d 791, ¶ 6. To prevail on the motion, it must appear from the face of the complaint

that the plaintiff can prove no set of facts that would justify a court granting relief.

O’Brien v. Univ. Comm. Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753

(1975).

       {¶10} To state a claim for declaratory judgment under R.C. 2721.01, et seq., the

plaintiff must establish that (1) a real controversy exists between the parties, (2) the

controversy is justiciable, and (3) speedy relief is necessary to preserve the parties’ rights.

 M6 Motors, Inc. v. Nissan of N. Olmsted, L.L.C., 8th Dist. Cuyahoga No. 100684,

2014-Ohio-2537, ¶ 19, citing Burger Brewing Co. v. Ohio Liquor Control Comm., 34

Ohio St.2d 93, 97, 296 N.E.2d 261 (1973).
       {¶11} The trial court held that declaratory judgment actions may not be used to

collaterally attack a conviction or sentence.      A collateral attack is “‘an attack on a

judgment in a proceeding other than a direct appeal[.]’” Ohio Pyro, Inc. v. Ohio Dept. of

Commerce, 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 17, quoting Black’s

Law Dictionary 278 (8th Ed.2004). Collateral attacks “‘attempt to defeat the operation

of a judgment, in a proceeding where some new right derived from or through the

judgment is involved.’” Fawn Lake Apts. v. Cuyahoga Cty. Bd. of Revision, 85 Ohio

St.3d 609, 611, 710 N.E.2d 681 (1999), quoting Kingsborough v. Tousley, 56 Ohio St.

450, 458, 47 N.E. 541 (1897).

       {¶12} The trial court found that Otte’s claim is not a justiciable controversy that

may be rectified by a declaratory judgment because R.C. 2953.21 et seq., the

postconviction statute, provides the exclusive method for challenging a defendant’s

conviction or sentence. Indeed, R.C. 2953.21(K) states that with the exception of direct

appeals, the relief set forth therein “is the exclusive remedy by which a person may bring

a collateral challenge to the validity of a conviction or sentence in a criminal case * * * .”

       {¶13} The Ohio Supreme Court has held that although the Declaratory Judgments

Act is intended to declare rights in the face of uncertainty, a declaratory judgment is not a

proper vehicle for challenging a criminal sentence. State v. Lingo, 138 Ohio St.3d 427,

2014-Ohio-1052, 7 N.E.3d 1188, ¶ 44. Ohio’s criminal rules and statutes provide for the

direct review of criminal judgments through appeal, and collateral attacks through

postconviction petitions, habeas corpus, and motions to vacate, but not declaratory
judgments. Id. Declaratory judgments are simply not part of the criminal appellate or

postconviction review process and may not be used as a substitute for any of these

criminal remedies. Id.

      {¶14} Otte nevertheless maintains that his claim is not governed by the

postconviction statute because he is not claiming error on direct or collateral review. He

contends his claim, that the death penalty is unconstitutional as applied to offenders who

were under 21 years of age at the time they committed their capital offenses, is only now

ripe for review as the result of (1) recent scientific discoveries concerning human

cognitive development, (2) intervening legal developments, and (2) society’s evolving

standards of decency for defining cruel and unusual punishments. (Appellant’s br. 6, 9.)

Otte cites Kentucky v. Bredhold, Ky. Fayette Cir. 7th Div. No. 14-CR-161 (Aug. 1, 2017),

to support his argument.

      {¶15} In Bredhold, a common pleas court declared Kentucky’s death penalty

statute unconstitutional insofar as it allows capital punishment for those who were under

21 years of age at the time they committed their offenses. The Bredhold court extended

the United States Supreme Court’s holding in Roper v. Simmons, 543 U.S. 551, 125 S.Ct.

1183, 161 L.Ed.2d 1 (2005), that the Eighth Amendment prohibits the imposition of the

death penalty on juvenile offenders under 18, to individuals who were between the ages

of 18 and 21 when they committed capital offenses in that jurisdiction.

      {¶16} In Roper, the court explained that “the prohibition against ‘cruel and

unusual punishments,’ like other expansive language in the Constitution, must be
interpreted according to its text, by considering history, tradition, and precedent, and with

due regard for its purpose and function in the constitutional design.” Id. at 560-561. In

order to properly interpret the Eighth Amendment, courts must consider “‘the evolving

standards of decency that mark the progress of a maturing society’ to determine which

punishments are so disproportionate as to be cruel and unusual.” Id., quoting Trop v.

Dulles, 356 U.S. 86, 100-101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion).

       {¶17} The Roper court reviewed objective indicia of society’s standards on

juvenile capital punishment, as expressed in pertinent legislative enactments and state

practice, and found that 30 states either expressly or implicitly prohibited the imposition

of the death penalty on juveniles. Id. at 564. Based on these statistics, the Roper court

concluded that American society viewed juveniles as categorically less culpable than the

average criminal for three reasons (1) the lack of maturity and an underdeveloped sense

of responsibility were found in youth more often than in adults and were more

understandable among the young (2) juveniles were more vulnerable or susceptible to

negative influences and outside pressures, including peer pressure, and (3) the character

of a juvenile was not as well formed as that of an adult. Id. at 569-570.

       {¶18} In Bredhold, the Kentucky court noted that since Roper was decided in

2005, six states have abolished the death penalty, and 30 states no longer execute

offenders who were under 21 years old when they committed their capital offenses.

Bredhold at 4.1 Based on these statistics, the Bredhold court concluded that there is a


           According to the court in Bredhold, the following six states abolished the death penalty
       1
“clear national consensus trending toward restricting the death penalty, especially in cases

where defendants were between the ages of 18 and 21 at the time of the offenses.”

Bredhold at 5.2

        {¶19} Based on Bredhold and the scientific research cited therein, Otte contends

he had no right to assert a claim for cruel and unusual punishment within the statutory

limitations period for filing petitions for postconviction relief under R.C. 2953.21 et seq.

because no such claim existed until Bredhold was decided.                      He also argues he is

precluded from filing a successive petition for postconviction. R.C. 2953.23(A)(1) allows

convicted defendants to file a successive postconviction petition at any time where both

of the following apply:

        (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 fact finder 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



since Roper was decided: Connecticut (2012), Illinois (2011), Maryland (2013), New Jersey (2007),
New Mexico (2009), and New York (2007).

            The Bredhold court also cited recent research in psychology and neuroscience indicating
        2


that individuals in their late teens and early twenties are less mature than older adults in several ways,
including impulse control, risk-taking, and emotional development.
       the sentencing hearing, no reasonable factfinder would have found the
       petitioner eligible for the death sentence.

R.C. 2953.23(A)(1). The problem for Otte is that his newly claimed Eighth Amendment

right, as defined by Bredhold, has not been recognized by the United States Supreme

Court as required by R.C. 2953.23(A)(1)(a). Bredhold is a state court decision from

Kentucky and is not binding on Ohio courts.

       {¶20} Indeed, the United States Sixth Circuit recently observed that “no authority

exists at the present time,” to support the argument that the defendant in that case, Ronald

Phillips, was ineligible for the Ohio death penalty because he was 19 years old at the time

he committed the capital offense. In re Ronald Phillips, 6th Cir. No. 17-3729 (July 20,

2017), * 5.

       {¶21} The issue in Phillips was whether Phillips could maintain a successive

petition for habeas corpus to challenge his death sentence. The criteria for maintaining

successive petitions for habeas corpus are similar to the criteria needed to prevail on a

successive petition for postconviction relief under R.C. 2953.23(A)(1). See 28 U.S.C.

2244.3 Thus, the court in Phillips recognized that there was no constitutional prohibition

against the death penalty for offenders who were under 21 years old when they committed

their capital offenses.


          To maintain a successive petition for habeas corpus under 28 U.S.C. 2244, the
       3


petitioner must establish either that (1) a new rule of constitutional law applies to
his case that the Supreme Court made retroactive to cases on collateral review, or
(2) a newly discovered factual predicate exists that, if proven, sufficiently
establishes that no reasonable factfinder wold have found the petitioner guilty of
the underlying offense but for constitutional error.
       {¶22} The court in Phillips also found it significant that although Phillips relied on

case law that developed since the time of his capital conviction, “the purported defect, his

age at the time of the offense, remains unchanged from that time.” The same holds true

for Otte. Yet, Otte argues that recent developments in science and caselaw, including

Roper and Bredhold, are akin to newly discovered facts. However, nothing prevented

Otte from making that argument with scientific evidence in a successive petition for

habeas corpus at some earlier point in time.

       {¶23} Otte nevertheless asserts that “[b]ecause the United States Supreme Court

has not yet extended Roper to bar the execution of offenders under the age of 21, the

successive post-conviction statute is an inadequate vehicle for Mr. Otte to present his

Eighth Amendment claim.”        (Appellant’s br. 9, fn. 1.)   Therefore, Otte argues, that

dismissing his declaratory judgment action would deny him access to the courts.

(Appellant’s br. 8.)

       {¶24} However, Otte has not been denied access to the courts. He filed petitions

for habeas and postconviction relief, and numerous appeals. He has exhausted every

available remedy. And he was a party to a recent action brought under 42 U.S.C. 1983 to

challenge Ohio’s lethal injection protocol. See In re Ohio Execution Protocol Litigation,

S.D.Ohio No. 2:11-cv-1016, 2017 U.S. Dist. LEXIS 145432 (Sept. 8, 2017).

       {¶25} Otte’s complaint for declaratory judgment is an attempt to circumvent the

requirements of R.C. 2953.23(A) for postconviction relief because he cannot meet those

requirements. To allow Otte to pursue a declaratory judgment would set a dangerous
precedent whereby common pleas courts would be asked to review the convictions and

sentences of other common pleas courts.           The courts would be inundated with

declaratory judgment actions. The postconviction relief statute was enacted to provide

“‘the best method of protecting constitutional rights of individuals, and, at the same time,

provide a more orderly method of hearing such matters.’” Kott v. Maxwell, 3 Ohio

App.2d 337, 210 N.E.2d 746 (1965), paragraph one of the syllabus, quoting R.C.

2953.21.

       {¶26} Therefore, because Otte has no right to file a declaratory judgment action to

challenge his death sentence, the trial court properly dismissed Otte’s complaint. The

trial court’s 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 be sent to the common pleas court to carry this

judgment into execution.

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

the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE

KATHLEEN ANN KEOUGH, A.J., CONCURS;
TIM McCORMACK, J., CONCURS WITH SEPARATE ATTACHED OPINION

TIM McCORMACK, J., CONCURRING:
       {¶27} The facts that form the basis of the original charges made in this case reflect

grotesque, barbaric, unimaginably horrific acts of depravity of human against victimized

human.      Stretching the medical, ethical, and legal mind to formulate the development of

an effective and fitting remedy to such distorted violence tests our disciplines. Surely it

is fully understandable that formulating a remedy short of an equal measure of violence

against the perpetrator falls far short of satisfactory retribution.

       {¶28} The convicted murderer in this case is not as a matter of right entitled to our

compassion as it relates to his sentence.    The specific issue raised by the appellant in this

appeal is whether, based on 2017 knowledge and values, persons who were less than 21

years of age at the time of their criminal violations should be dealt with differently than

fully mature men and women who commit the worst of crimes.

       {¶29} I understand and concur with the majority’s solid legal analysis.

Procedurally, Otte cannot successfully utilize a declaratory judgment action to collaterally

attack his criminal sentence.     However, as major, medical, academic, and legal studies

move forward and, as the Bredhold case demonstrates, scientific evidence concerning

youth brain development continues to evolve.         Given the immediacy of the Otte case,

justice may well be best served by openly considering physical and mental youthfulness at

the time of violations, including Otte’s. Otte is now left, though, with few or no tools

with which to successfully argue the legal status of the application of the death penalty to

his case.
      {¶30} There is now pending before our high court the very issue of whether capital

punishment is appropriate for youthful offenders. For these next several months, as the

Ohio Supreme Court deliberates this issue of age-appropriate punishment, respectfully, I

would suspend implementation of capital punishment for those who committed capital

crimes before 21 years of age.
