State v. Roberts (Slip Opinion), 150 Ohio St. 3d 47

Background

Defendant Donna Roberts conspired with Nathaniel Jackson to kill her ex-husband Robert Fingerhut; letters and recorded calls showed planning and Roberts supplied materials and access. Jackson committed the killing; Roberts was charged as an aider/abetter.
A jury convicted Roberts of aggravated murder with felony-death specifications (aggravated burglary and aggravated robbery) and recommended death; trial court sentenced her to death.
On first appeal this court upheld convictions but vacated the death sentence because of improper ex parte communication between the trial judge and prosecutor and ordered resentencing with full consideration of allocution.
On second appeal this court again vacated the death sentence because the trial court failed to consider Roberts’s allocution on remand; the original trial judge later retired and died before resentencing.
A substitute judge (Judge Rice) reviewed the record, considered the allocution (but heard no new live mitigation), reimposed death; Roberts appealed four propositions of law challenging that procedure and the weight afforded mitigation.
The Ohio Supreme Court affirmed: substitute judge may resentencing by record review; no new jury/mitigation hearing required where original jury’s penalty verdict was untainted; trial court properly weighed mitigation and aggravators; death sentence upheld after independent review.

Issues

Issue	Plaintiff's Argument (Roberts)	Defendant's Argument (State)	Held
Whether a different judge may impose a death sentence on remand when original trial judge is unavailable	Substitution is not authorized by statute; death sentence should be precluded if original judge unavailable	R.C. 2929.06(B) and Crim.R.25(B) permit resentencing by the trial court/judge designated; substitution is allowed	Substitute judge may conduct resentencing; statutory and procedural authority supports substitution
Whether R.C. 2929.06(B) required empaneling a new jury and a full de novo mitigation hearing on remand	Remand requires a new jury and full penalty-phase hearing under R.C. 2929.06(B)	Where the error occurred postverdict and the jury’s penalty recommendation is valid, the court must proceed from point of error; no new jury required	No new jury or full de novo hearing required if original jury’s recommendation was untainted by error
Whether sentencing judge’s review of the cold record denied Eighth Amendment mitigation consideration	A judge who did not hear live testimony cannot properly weigh mitigation; Eighth Amendment requires sentencer hear mitigation live	Roberts had opportunity to present mitigation at trial and allocution was in record; judge reviewed allocution and record	No Eighth Amendment violation; record review + allocution sufficed; live re-presentation not constitutionally required
Whether the trial court impermissibly used nature/circumstances of offense as nonstatutory aggravator when weighing mitigation	Court relied on planning, motive, and deceptive conduct (offense facts) to discount mitigation, which are statutory mitigating factors and cannot be used as aggravators	The court identified proper statutory aggravators and used offense facts to explain why aggravators outweigh mitigation; presumption that only statutory aggravators were relied on	No error: court correctly identified aggravators and permissibly used offense facts to assess weight of mitigation

Key Cases Cited

State v. Penix, 32 Ohio St.3d 369 (Ohio 1987) (held retrial of sentencing phase before a new jury improper under prior statutory scheme)
State v. White, 132 Ohio St.3d 344 (Ohio 2012) (discussed effect of 1996 amendments to R.C. 2929.06(B) abrogating Penix narrow holding)
Lockett v. Ohio, 438 U.S. 586 (1978) (sentencer may consider any aspect of defendant’s character or circumstances as mitigating)
Saffle v. Parks, 494 U.S. 484 (1990) (Lockett/Eddings protect right to present and consider mitigating evidence but do not dictate how sentencer must consider it)
Hurst v. Florida, 136 S. Ct. 616 (2016) (Court held judicial factfinding that increases authorized punishment violates Sixth Amendment)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (criminal any fact that increases penalty beyond statutory maximum must be found by jury)
Ring v. Arizona, 536 U.S. 584 (2002) (death-eligibility findings necessary for capital sentence must be made by a jury)
People v. Espinoza, 3 Cal.4th 806 (Cal. 1992) (substitute judge completed trial on transcript; no constitutional requirement for judge to have heard live testimony)
People v. Lewis, 33 Cal.4th 214 (Cal. 2004) (substitute judge on resentencing may evaluate credibility from written record; no constitutional requirement for live re-presentation)