State v. LandrumState v. Landrum
Gerald W. Simmons, Cincinnati, Ohio, Timothy Young, Ohio State Public Defender, and Randall L. Porter, Assistant Ohio State Public Defender, Columbus, Ohio, for Appellant.
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela C. Wells, Ross County Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.
McFarland, J.
{¶1} Lawrence A. Landrum appeals the trial court‘s June 14, 2017 Decision & Order which overruled his motion for new trial and new sentencing hearing pursuant to
FACTS
{¶2} A jury convicted Appellant in February 1986 of aggravated murder and aggravated burglary of Harold White, an 84 year-old victim. The jury found two death penalty specifications: (1) aggravated murder to escape detection for burglary; and, (2) being the principal offender in the aggravated murder while committing or attempting aggravated burglary. Following a sentencing hearing, the jury recommended death, and the trial court sentenced Appellant to death. Appellant pursued a direct appeal with this court. State v. Landrum, 4th Dist. Ross No. 1330, 1989 WL 4244 (Jan. 12, 1989) (Landrum I). In Landrum I, he set forth 29 assignments of error; however, we found no merit to his arguments and affirmed the judgment of the trial court.
{¶3} On direct appeal to the Supreme Court of Ohio, State v. Landrum, 53 Ohio St.3d 107, 559 N.E.2d 710 (1990) (Landrum II), Appellant raised 31 propositions of law. Landrum II contains a complete recitation of the facts adduced as evidence at his jury trial at 53 Ohio St.3d 108-109. The Supreme Court
{¶4} In May 1991, the Supreme Court of Ohio granted a stay of execution to enable Appellant to file a petition for post-conviction relief. State v. Landrum, 60 Ohio St.3d 706, 573 N.E.2d 668. In May 1996, Appellant filed his petition pursuant to
{¶5} In September 1998, Appellant filed an
{¶6} Appellant next filed a petition for a writ of habeas corpus in May 1996, and an amended petition in May 1999, and a second amended petition in August 2000. Appellant moved to expand the record to include an affidavit in support of his position that he did not procedurally default on his claim of ineffective assistance of appellate counsel. The magistrate judge ultimately ruled in part that
{¶7} In 2005, a magistrate judge recommended granting Appellant a conditional writ on the basis of one of his ineffective assistance of counsel claims. Landrum v. Anderson, No. 1:96-CV-641, 2005 WL 3965399 (S.D. Ohio Nov. 1, 2005) (Landrum VI). In 2006, the district court adopted the magistrate judge‘s report and recommendation over the Warden‘s objections. Landrum v. Anderson, No. 1:96-CV-641, 2006 WL 1027738 (S.D. Ohio Apr. 17, 2006) (Landrum VII). In Landrum v. Mitchell, 625 F.3d 905 (6th Circuit, 2010), (Landrum VIII), the
{¶8} On January 12, 2017, Appellant filed a motion for leave to file a motion for a new mitigation trial and motion for new mitigation trial. Based on the United States Supreme Court decision in Hurst v. Florida, 136 S.Ct. 616, 84 USLW 4032 (2016). Appellant‘s motion requested leave to file his motion for new mitigation trial because, under
{¶9} On June 14, 2017, the trial court found that Appellant had failed to provide any evidence that the sentencing recommendation was conducted in a manner inconsistent with the Ohio death penalty statutes. Appellant‘s motion for a new trial was found not well taken and overruled. This timely appeal followed.
ASSIGNMENT OF ERROR
“I. THE TRIAL ERRED WHEN IT DENIED LANDRUM‘S MOTION FOR A NEW TRIAL.”
{¶10} Trial courts ordinarily possess broad discretion when ruling on a defendant‘s motion for leave to file a new trial motion. State v. Bennett, 4th Dist. Scioto No. 16CA3765, 2017-Ohio-574, ¶ 9; State v. Waddy, 10th Dist. Franklin No. 15AP-397, 2016-Ohio-4911, ¶ 20; State v. Hill, 8th Dist. Cuyahoga No. 102083, 2015-Ohio-1652, ¶ 16, citing State v. McConnell, 170 Ohio App.3d 800, 2007-Ohio-1181, 869 N.E.2d 77, ¶ 19 (2nd Dist.); State v. Clumm, 4th Dist. Athens No. 08CA32, 2010-Ohio-342, ¶ 14; State v. Pinkerman, 88 Ohio App.3d 158, 160, 623 N.E.2d 643 (4th Dist.1993). An “abuse of discretion” means that the court acted in an ” ‘unreasonable, arbitrary, or unconscionable’ ” manner or employed ” ‘a view or action that no conscientious judge could honestly have taken.’ ” State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 67, quoting State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 671, ¶ 23. A trial court generally abuses its discretion when it fails to engage in a ” ‘sound reasoning process.’ ” State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14, quoting AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). Additionally, “[a]buse-of-discretion review is deferential and does not permit an appellate court to simply substitute its judgment for that of the trial court.” State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. We are
LEGAL ANALYSIS
{¶11} Appellant frames his issue presented for review as follows: Is Ohio‘s death penalty scheme unconstitutional under Hurst v. Florida, 136 S.Ct. 616, 84 USLW 4032 (2016). In Hurst, the United States Supreme Court, Justice Sotomayor, held that Florida‘s capital sentencing scheme, under which an advisory jury makes a recommendation to a judge, and the judge makes the critical findings needed for imposition of a death sentence, violates the Sixth Amendment right to trial. Appellant argues Ohio‘s capital sentencing statute,
{¶13} In Mundt, the appellate court found that despite the Hurst decision, Mundt was capable of raising the same argument prior to Hurst relying on other cases for support, such as Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428 (2002). The appellate court found Mundt‘s motion for leave to file a motion for new trial was untimely. Appellee argues Appellant, like Mundt, filed his motion a year after Hurst was decided аnd that a year was not a reasonable time to evaluate Hurst and seek relief pursuant to its holding. Appellee concludes that Appellant has failed to show he was unavoidably prevented from filing his motion prior to January 2017.
{¶14} We begin by reviewing the applicable rule.
“(A) Grounds. A new trial may be granted on motion of the defendant for any of the following causes affecting materially his substantial rights:
(1) Irregularity in the proceedings, or in any order or ruling of the court, or abuse of discretion by the court, because оf which the defendant was prevented from having a fair trial;
* * *
(4) That the verdict is not sustained by sufficient evidence or is contrary to law * * *
(5) Error of law occurring at the trial * * *
(B) Motion for New Trial; Form, Time. Application for a new trial shall be made by motion which, except for the cause of newly discovered evidence, shall be filed within fourteen days after the verdict was rendered, or the decision of the court where a trial by jury has been waived, unless it is made to appear by clear and convincing рroof that the defendant was unavoidably prevented from filing his motion for a new trial, in which case the motion shall be filed within seven days from the order of the court finding that the defendant was unavoidably prevented from filing such motion within the time provided herein.” (Emphasis added.)
Appellant has argued that his motion was not untimely in that:
- The trial court sentenced him to death in April 1986 and given that Apprendi was not decided until 2000 and Ring in 2002, Appellant could not have filed his motion for a new sentencing trial encompassing the Hurst deсision within fourteen days of the jury‘s verdicts or the trial court‘s imposition of sentence;
- Prior to Hurst, the Ohio Supreme Court repeatedly held that the Ohio Supreme Court‘s sentencing procedure was identical to Florida‘s and not until Hurst would the Supreme Court of Ohio have given meaningful reconsideration to the Hurst issue; and,
- He could not have filed a motion based on Hurst prior to January 12, 2017 because Hurst is a complex decision which takes time to digest and understand.
{¶15} For the reasons which follow, we find Appellant‘s arguments are without merit. After extensive review of the Ohio casе law discussing the Hurst decision, we are guided by the well-reasoned Mundt decision as persuasive
“[A] party is unavoidably prevented from filing a motion for a new trial if the party had no knowledge of the existence of the ground supporting the motion for new trial and could not have learned of the existence of that ground within the time prescribed for filing the motion for new trial in the exercise of reasonable diligence.” State v. Walden, 19 Ohio App.3d 141, 146, 483 N.E.2d 859 (10th Dist.1984); State v. Wilson, 2nd Dist. Montgomery No. 23247, 2009-Ohio-7035, ¶ 8.”
{¶16} Whether or not Appellant was unavoidably prevented from filing a motion for new mitigation trial, based upon the constitutional argument he is now making, is the precise issue before this court. Appellant was sеntenced to death in 1986. Mundt was sentenced to death subsequent to a crime committed in 2004. Mundt claimed he was unavoidably prevented from filing a motion because Hurst was decided by the United States Supreme Court over 11 years after he was sentenced to death. However, the Seventh District Court disagreed. The Mundt court cited State v. Roberts, 150 Ohio St. 3d 47, 2017-Ohio-2998, 78 N.E.3d 851, in support of the conclusion that Mundt, like Roberts, could have made his
{¶17} Roberts was convicted and sentenced to death for the 2001 aggravated murder of her ex-husband. After her sentence was vacated a second time, she was again sentenced to death. In reviewing her assignments of error, the Supreme Court of Ohio declined to consider her constitutional claim, raised for the first time at oral argument, that the Ohio sentencing procedure violated Hurst. In doing so, the Supreme Court observed at ¶ 84:
“We recognize that the United States Supreme Court decided Hurst after the submission of briefs in this case, but Roberts could havе made essentially the same Sixth Amendment argument by relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002).”
{¶18} The Mundt court also cited State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 59-60, for the Supreme Court of Ohio‘s recognition, even prior to the Roberts decision, that Ohio‘s death penalty statute is fundamentally different from those in Florida, pre-Hurst.2 Belton was convicted pursuant to a no-contest plea of capital murder and aggravated robbery and was sentenced to death. In his appeal of right, Ohio‘s highest court held that the
“In support of his constitutional claim, Belton cites two United States Supreme Court decisions: Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002). In Apprendi, the Supreme Court held that “the Sixth Amendment does not permit a defendant to be ‘expose[d] * * * to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.’ ” (Emphasis and brackets sic.) State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 189, quoting Apprendi at 483, 120 S.Ct. 2348. Thus, “[о]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi at 490, 120 S.Ct. 2348.”
“Two years later, in Ring, the Supreme Court applied the Apprendi rule to invalidate Arizona‘s capital-sentencing scheme. Under Arizona‘s former scheme, “following a jury adjudication of a defendant‘s guilt of first-degree murder, the trial judge, sitting alone, determine[d] the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty.” (Brackets sic.) Ring at 588, 122 S.Ct. 2428. Ring declared this system unconstitutional, because the aggravating factors operated as ‘the functional equivalent of an element of a greater offense.’ ” Id. at 609, 122 S.Ct. 2428, quoting Apprendi at 494, fn. 19, 120 S.Ct. 2348. The Supreme Court explained that because the finding of an aggravating circumstance made a defendant eligible to receive the death penalty, the jury must also determine whether the state met its burden of proоf as to that element. Id., overruling Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047 (1990).”
{¶19} The Belton decision continued at paragraphs 59 and 60:
“Ohio‘s capital-sentencing scheme is unlike the laws at issue in Ring and Hurst. In Ohio, a capital case does not proceed to the sentencing
phase until after the fact-finder has found a defendant guilty of one or more aggravating circumstances. See R.C. 2929.03(D) ;R.C. 2929.04(B) and(C) ; **337 State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 147. Because the determination of guilt of an aggravating circumstance renders the defendant eligible for a capital sentence, it is not possible to make a factual finding during the sentencing phase that will expose a defendant to greater punishment. Moreover, in Ohio, if a defendant is tried by a jury, then the judge cannot impose a sentence of death unless the jury has entered a unanimous verdict for a death sentence.R.C. 2929.03(D)(2) .Federal and state courts have upheld laws similar to Ohio‘s, explaining that if a defendant has already been found to be death-penalty eligible, then subsequent weighing processes for sentencing purposes do not implicate Apprendi and Ring. Weighing is not a fact-finding process subject to the Sixth Amendment, because “[t]hese determinations cannot increase the potential punishment to which a defendant is exposed as a consequence of the eligibility determination.” State v. Gales, 265 Neb. 598, 628, 658 N.W.2d 604 (2003); see, e.g., State v. Fry, 138 N.M. 700, 718, 126 P.3d 516 (2005); Ortiz v. State, 869 A.2d 285, 303-305 (Del.2005); Ritchie v. State, 809 N.E.2d 258, 268 (Ind.2004). Instead, the weighing process amounts to “a complex moral judgment” about what penalty to impose upon a defendant who is already death-penalty eligible. United States v. Runyon, 707 F.3d 475, 515-516 (4th Cir.2013) (citing cases from other federal appeals courts).”
{¶20} Further support for Appellee‘s position that, bаsed on the Apprendi and Ring decisions, Appellant‘s motion was untimely is provided in Campbell v. Jenkins, No. 2:15-CV-1702, 2017 WL 3524686, (S.D. Ohio). There, the district judge observed at *8:
“As several courts have pointed out, Hurst simply applied the principles laid down many years ago in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428 (2002)—that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. See Hutton v. Mitchell, 839 F.3d 486, 499 (6th Cir.2016) (explaining that Hurst “reiterated” Apprendi‘s holding, and “rel[ied] on Ring.“); Sneed v. Jenkins, No. 5:17-cv-83, 2017 WL 564821, at *4 (N.D. Ohio Feb. 13, 2017) (“The Supreme Court in Hurst plainly and expressly applied the standard it first set forth in Apprendi ... and later applied to capital cases in Ring ... to Florida‘s capital-sentencing scheme; it neither expanded the Apprendi/Ring rule nor announced a new rule.“); State v. Mason, — N.E.3d —, 2016-Ohio-8400, ¶ 42 (”Hurst did not expand Apprendi and Ring.“).”
{¶21} Appellant, however, contends that the Mundt case, as well as Campbell, directed to our attention by Appellee, are easily distinguishable. Appellant contеnds that the Campbell decision came before the court on a successive federal habeas petition. The first one was filed in 1996 and as such, there was no way he could have included a Hurst-like claim. As for Mundt, he was sentenced to death for a crime committed in 2004. Mundt, unlike Appellant, could have raised the Hurst issue in his direct appeal, application for reopening, and post-conviction petition. Appellant points out Apprendi and Ring were decided after he filеd his direct appeal, post-conviction petition and habeas petition.
{¶22} While Appellant is correct in distinguishing the cases in this manner, he overlooks the fact that Appellant‘s appeal comes before us on the overruling of a motion for new trial. In reaching its decision, the Mundt court emphasized that Mundt filed his motion for leave over eight months after Belton and a year after
{¶23} Appellant also criticizes the holding in Belton as dicta, given that Belton involved a defendant who waived his right to jury trial and was sentenced by a three-judge panel, and the Hurst issue had not definitively analyzed by the Supreme Court of Ohio. However, we are similarly guided, as was the appellаte court in State v. Mason, 3rd Dist. Marion No. 9-16-34, 2016-Ohio-8400, to acknowledge Belton as persuasive authority.
{¶24} In Mason, the appellate court reversed the trial court‘s grant of a motion to dismiss the death penalty certification from Mason‘s indictment for murder on the grounds that the death penalty statute was unconstitutional. The appellate court held that the death-penalty statute in effect at the time of defendant‘s crimes did not violate the Sixth Amendment.3 The appellate court observed at ¶ 35:
“Even if we are to accept as true the trial court‘s conclusion that the Supreme Court of Ohio‘s application of Hurst in Belton is merely dicta, Belton is highly persuasive. At the very least, the Supreme Court of Ohio‘s discussion of Hurst in Belton “sheds some light on how the majority of our highest court might rule on” the specific issue presented by this case.” Mason, supra, quoting State v. Blankenburg, 197 Ohio App. 3d 201, 2012-Ohio-1289, 966 N.E.2d 958 (12th Dist.) at 143.4
{¶25} Finally, Appellant argues that because the trial court reached the merits of his motion for new sentencing trial, Appellee is asking this court to substitute its judgment for that of the trial court. We do not find this argument persuasive. “The affirmance of a judgment by a reviewing сourt is not an affirmance of the reasons given by the lower court for its rulings,” and “[r]eviewing courts affirm and reverse judgments, not reasons.” State v. Rubes, 2012-Ohio-4100, 32, quoting State v. Eschenauer, 11th Dist. No. 12-237, 1988 WL 121296, *4 (Nov. 10, 1988). An appellate court may affirm a trial court‘s decision to deny a motion for leave to file a motion for new trial for different reasons other than those expressed by the trial court. State v. Boone, 2017-Ohio-
{¶26} Based upon the foregoing, we find no merit to Appellant‘s sоle assignment of argument and we find no abuse of discretion. Accordingly, we overrule the assignment of error and affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
{¶27} Initially, I find it doubtful that
{¶28} Nonetheless, I agree that Landrum‘s motion for leave was untimely as he clearly could have made the same motion much earlier by simply relying upon
{¶29} Likewise, I conclude the trial court correctly denied Landrum‘s motion for a new trial/sentencing on the merits after implicitly granting the motion for leave. As both state and federal courts have recently indicated, the Ohio procedure and Florida‘s are not the samе, with the result that Ohio‘s passes muster under the Apprendi, Ring, and Hurst, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), chain of cases. See State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 59-60 (dicta), State v. Carter, 1st Dist. Hamilton No. C-170231, 2018-Ohio-645, ¶ 8; Gapen v. Robinson, S.D. Ohio No. 3:08-CV-280, 2017 WL 3524688 (Aug. 14, 2017).
{¶30} And as Gapen proclaims, Hurst does not announce a new rule of rule, nor is it entitled to retroactive application to cases on collateral review.
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temрorarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J.: Concurs with Concurring Opinion.
Hoover, P.J.: Concurs in Judgment Only.
For the Court,
BY:
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgmеnt entry and the time period for further appeal commences from the date of filing with the clerk.