The STATE EX REL. O'MALLEY v. COLLIER-WILLIAMS, Judge., 108 N.E.3d 1082

Background

In 2001 Kelly Foust was indicted on multiple aggravated-murder counts; he waived a jury and a three-judge panel convicted him and sentenced him to death; Ohio Supreme Court affirmed.
The Sixth Circuit granted habeas relief in 2011, finding ineffective assistance at the mitigation hearing and ordered a new penalty-phase trial.
On remand the state argued Foust’s prior jury waiver applied; Judge Collier-Williams initially agreed and denied Foust’s 2013 motion for a jury; the resentencing was postponed repeatedly.
In March 2017 Foust filed a renewed motion for a jury at resentencing relying on Hurst and Davis; Judge Collier-Williams granted the motion and ordered empaneling of a jury.
Cuyahoga County Prosecutor O’Malley sought writs of prohibition and mandamus to stop empaneling a jury; the Ohio Supreme Court concluded the judge patently and unambiguously lacked jurisdiction and granted prohibition, ordering resentencing before a three-judge panel.

Issues

Issue	Plaintiff's Argument (O'Malley)	Defendant's Argument (Collier‑Williams / Foust)	Held
Whether judge had jurisdiction to invalidate prior jury waiver and empanel a jury for capital resentencing	The judge lacked jurisdiction; R.C. 2929.06(B) mandates a three‑judge panel when the original trial was before judges	Sixth Amendment and Hurst require jury finding of facts necessary to impose death; prior waiver cannot now bind defendant	Judge patently and unambiguously lacked jurisdiction to impanel a jury; writ of prohibition granted
Whether discretionary appeal to court of appeals provided an adequate remedy precluding prohibition	Discretionary appeal is available under R.C. 2945.67 and suffices ordinarily	The appeals route is inadequate because the Eighth District will not entertain leave absent a final order	Discretionary appeal is an adequate remedy in ordinary course; but prohibition still available because lack of jurisdiction was patent and unambiguous
Whether Hurst or related federal/Ohio cases invalidate R.C. 2929.06(B) or require a jury despite a valid prior jury waiver	Hurst guarantees jury determination of each fact necessary for death; statute cannot override Sixth Amendment	Ohio precedent (Belton, Mason) interprets Hurst as not requiring a jury when defendant waived jury for guilt phase	Court held Hurst does not compel a jury in this scenario; R.C. 2929.06(B) controls and requires a three‑judge panel
Whether a defendant may withdraw a jury waiver after trial commencement for purposes of resentencing	Not expressly addressed by defendant; O’Malley contends waiver cannot be withdrawn after trial commencement	Foust argued changed law/circumstances (Davis) permit withdrawal for a new mitigation phase	Court held waiver cannot be withdrawn after trial commencement; Davis does not allow relitigation to create a hybrid procedure

Key Cases Cited

State v. Foust, 105 Ohio St.3d 137, 823 N.E.2d 836 (affirming convictions and death sentence) (background of original trial)
State v. Davis, 139 Ohio St.3d 122, 9 N.E.3d 1031 (2014) (discussing jury‑waiver validity at resentencing and limits on arguments that changed circumstances invalidate prior waivers)
State v. Belton, 149 Ohio St.3d 165, 74 N.E.3d 319 (2016) (holding Hurst does not guarantee a jury at sentencing when defendant waived a jury at trial)
State ex rel. Mason v. Griffin, 104 Ohio St.3d 279, 819 N.E.2d 644 (2004) (court lacked jurisdiction to hold a jury sentencing hearing where statute did not authorize it)
Pratts v. Hurley, 102 Ohio St.3d 81, 806 N.E.2d 992 (2004) (discussing distinction between basic statutory jurisdiction and narrower statutory limits)
State ex rel. Corn v. Russo, 90 Ohio St.3d 551, 740 N.E.2d 265 (2001) (standards for issuing extraordinary writs of prohibition)