State v. BeltonState v. Belton
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Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Jeffrey M. Gamso, for appellant.
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PER CURIAM.
{¶ 1} On December 9, 2010, this court ordered the parties to file jurisdictional memoranda addressing whether this court retains jurisdiction to hear this appeal from an order entered November 3, 2010. Based upon our review of the record and the parties’ memoranda, we find the court lacks jurisdiction to hear this appeal. In doing so, we
Background
{¶ 2} This appeal arises from appellant‘s constitutional challenge to
A. Capital Plea Scheme
{¶ 3} If a defendant charged with a capital crime enters a plea of no contest or guilty, the defendant waives his right to a jury trial. A three-judge panel is impaneled to determine whether there is sufficient evidence to find the defendant guilty, and if so, to determine the presence or absence of “aggravating or mitigating” factors in a subsequent hearing in deciding whether to impose a penalty of life imprisonment or death.
{¶ 4} This procedure is governed by
{¶ 5} “With respect to aggravated murder * * * the defendant shall plead separately to the charge and to each specification, if any. A plea of guilty or no contest to the charge waives the defendant‘s right to a jury trial, and before accepting a plea of
{¶ 6} “If the indictment contains one or more specifications that are not dismissed upon acceptance of a plea of guilty or no contest to the charge, or if pleas of guilty or no contest to both the charge and one or more specifications are accepted, a court composed of three judges shall: (a) determine whether the offense was aggravated murder or a lesser offense; and * * * if the offense is determined to have been aggravated murder, proceed as provided by law to determine the presence or absence of the specified aggravating circumstances and of mitigating circumstances, and impose sentence accordingly.”
{¶ 7}
{¶ 8} “In any case in which a defendant waives his right to trial by jury and elects to be tried by the court under
{¶ 9} In summary, under these provisions, once a capital defendant enters a plea of guilty or no contest to a capital crime and is adjudged guilty, the presence of aggravating or mitigating circumstances (and corresponding decision to impose a sentence of death or life imprisonment) is determined by a three-judge panel, not a jury.
B. Appellant‘s Constitutional Challenge
{¶ 10} On February 19, 2009, appellant filed a motion challenging the constitutionality of
{¶ 11} On October 25, 2010, approximately 11 months later, appellant filed a “Notice of Intent to Admit in Accordance with
Final Appealable Order
{¶ 12} The parties disagree on the basic issue of whether this court has jurisdiction to hear this appeal. In determining whether this appeal involves a final appealable order under
A. State v. Ketterer
{¶ 13} In State v. Ketterer, 2006-Ohio-5283, the defendant-appellant appealed the imposition of his death sentence. Ketterer pled guilty and waived his right to a jury determination under
{¶ 14} On appeal, Ketterer argued that the
{¶ 15} “Separate penalty-phase jury. Ketterer first argues that the trial court denied his constitutional right to have a jury determine the penalty to be imposed. See, e.g., Ring v. Arizona (2002), 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556, interpreting Apprendi v. New Jersey (2000), 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, which reiterates a defendant‘s right to have a jury find the facts relevant to sentencing.
{¶ 16} “However, we reject Ketterer‘s argument because Ketterer knowingly, intelligently, and voluntarily waived his right to a jury trial. Later, he knowingly, intelligently, and voluntarily pleaded guilty as charged. On both occasions, Ketterer acknowledged that he was waiving any right to have a jury decide what penalty to impose for the aggravated murder. Having freely relinquished his right, he cannot now argue that the trial court denied that right. ‘When a defendant pleads guilty he or she, of course, forgoes not only a fair trial, but also other accompanying constitutional guarantees.’ Ruiz, 536 U.S. at 628, 122 S.Ct. 2450, 153 L.Ed.2d 586, citing Boykin v. Alabama (1969), 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274. Accord United States v. Bradley (C.A.6, 2005), 400 F.3d 459, 463 (a plea agreement ‘most pertinently [waives] the right to a trial by jury‘).
{¶ 17} “Further, the applicable statute,
{¶ 18} Therefore, the Ohio Supreme Court holds that once a defendant charged with a capital crime enters a plea pursuant to
B. State v. Avila-Villa
{¶ 19} However, the state argues that this appeal should be dismissed pursuant to the Twelfth District‘s recent decision in State v. Avila-Villa, 12th Dist. No. CA2010-08-201. In Avila-Villa, the defendant was also charged with a capital crime and also challenged the constitutionality of the capital plea scheme. However, the trial court denied Avila-Villa‘s challenge finding the constitutional challenge was “not ripe for consideration” because Avila-Villa had not indicated an intent to enter a plea under
{¶ 20} The state‘s reliance on Avila-Villa is misplaced for two reasons. First, the Twelfth District‘s decision makes no reference to Ketterer. But more importantly, the procedural facts of this case are materially different from those in Avila-Villa. In Avila-Villa, the trial court found that the constitutional challenge to the capital plea scheme was not “ripe” because Avila-Villa had not indicated an intent to plea under
{¶ 21} However, in this case, on October 25, 2010, Belton filed a “Notice of Intent to Admit in Accordance with
Appeal of Void Judgment
{¶ 22} While we conclude that appellant‘s notice of intent to admit transformed the November 30, 2009 order into a final appealable order, appellant failed to appeal that final order in this case. Appellant‘s notice of appeal makes no mention of the November 30 order. Appellant also failed to attach a copy of the November 30 order to his notice of appeal. See, e.g.,
{¶ 23} Appellant is actually appealing from an order denying reconsideration of a final judgment. There is no such thing as a motion for reconsideration of a final judgment in a criminal case:
{¶ 24} “In Bennett, we noted, ‘There is no authority for filing a motion for reconsideration of a final judgment at the trial court level in a criminal case.’ State v. Leach, Clermont App. No. CA2004-02-011, 2005-Ohio-2370, at ¶ 6, citing City of Cleveland Heights v. Richardson (1983), 9 Ohio App.3d 152, 458 N.E.2d 901. It is well settled that a motion for reconsideration of a final judgment is a nullity. State v. Stillman, Fairfield App.No.2005-CA-55, 2005-Ohio-6299, ¶ 36, citing Pitts v. Ohio Dept. of Trans. (1981), 67 Ohio St.2d 378, 379, 423 N.E.2d 1105. * * *” State v. Mills, 5th Dist. No. 2008 AP 09 0061, 2009-Ohio-5771, ¶ 15.
{¶ 25} The notice of intent to plea transformed the November 30, 2009 judgment into a final order. Appellant did not appeal that final order. Instead, appellant appealed a void judgment entry denying his motion for reconsideration. This appeal is ordered dismissed. Appellant is ordered to pay the costs of this appeal pursuant to
APPEAL DISMISSED.
Arlene Singer, J.
Thomas J. Osowik, P.J.
Stephen A. Yarbrough, J.
CONCUR.
JUDGE
JUDGE
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.