State v. Powell, 2019 Ohio 4286

Wayne Powell was convicted (2007) of aggravated arson and four counts of aggravated murder; a jury recommended death for each murder and the trial court imposed death sentences.
Powell filed postconviction petitions and an amended petition (2016) alleging, among other things, flawed fire science, uninvestigated alternate suspects, and ineffective mitigation investigation (including substance-abuse-related expert evidence).
Powell moved for court funds to retain experts (substance-abuse, psychologist, neuropsychologist, mitigation investigator) and for leave to conduct discovery; he also moved for a new mitigation trial post-Hurst.
The trial court (Aug. 16, 2018) denied Powell’s motion for expert funds (citing statutory postconviction framework and state opposition), granted leave but denied on merits his Hurst-based motion for new mitigation trial, and reserved discovery ruling.
On appeal, the Sixth District held (1) the trial court’s denial of expert funding is a final, appealable order under R.C. 2505.02(B)(4) and (2) the trial court did not abuse its discretion in denying funding (res judicata and discretionary nature of Crim.R. 42(E)), and (3) Ohio’s capital scheme is not invalid under Hurst; the convictions and denials were affirmed.

Issue	Powell's Argument	State's Argument	Held
Whether the trial court erred by denying Powell’s motion for funds to hire experts in capital postconviction review	Crim.R. 42(E) gives trial courts authority to appoint experts and creates a procedural right to have the court follow that process; Powell needed experts to develop mitigation claims (multi-generational substance abuse) and trial court failed to make adequate findings	No jurisdiction for interlocutory appeal unless R.C. 2505.02 permits; Crim.R. 42 does not create a substantive right to funding; proposed expert issues barred by res judicata; Powell didn’t identify experts/costs	The denial was a final, appealable order under R.C. 2505.02(B)(4); court did not abuse discretion—Crim.R. 42(E) creates procedure not an entitlement to funds and requested expert evidence was barred or previously addressed; denial affirmed
Whether Powell was entitled to a new mitigation trial under Hurst v. Florida	Hurst signaled that Ohio’s death-penalty scheme is unconstitutional because judges make the ultimate findings/weighting necessary to impose death	Ohio’s scheme requires jury findings of guilt and unanimous jury findings in the penalty phase; judge’s role is limited and not the type of post-verdict factfinding invalidated in Hurst	Ohio’s statutory scheme is not unconstitutional under Hurst (following Ohio Supreme Court precedents); trial court properly denied new mitigation trial

State v. Powell, 971 N.E.2d 865 (Ohio 2012) (Ohio Supreme Court decision on Powell’s direct appeal addressing mitigation/expert testimony)
Hurst v. Florida, 136 S.Ct. 616 (U.S. 2016) (U.S. Supreme Court invalidating Florida’s pre-Hurst capital sentencing scheme)
State v. Mason, 108 N.E.3d 56 (Ohio 2018) (Ohio Supreme Court holding Ohio’s death-penalty scheme satisfies Sixth Amendment post-Hurst)
State v. Goff, 113 N.E.3d 490 (Ohio 2018) (Ohio Supreme Court rejecting Hurst-based challenge to Ohio scheme)
State v. Tench, 123 N.E.3d 955 (Ohio 2018) (Ohio Supreme Court continuing the line that Ohio’s scheme remains constitutional after Hurst)
Proctor v. Kardassilaris, 873 N.E.2d 872 (Ohio 2007) (procedural rules cannot abridge or expand jurisdictional rights under Article IV, §5(B))
State v. Muncie, 746 N.E.2d 1092 (Ohio 2001) (analysis of R.C. 2505.02(B)(4) and what qualifies as a provisional remedy)
Thomasson v. Thomasson, 106 N.E.3d 1239 (Ohio 2018) (narrow circumstances where immediate appeal of certain interlocutory orders is appropriate due to inability to cure prejudice later)