State of Ohio v. Wayne Powell
Court of Appeals Nos. L-18-1194, L-18-1195
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Decided: October 18, 2019
2019-Ohio-4286
MAYLE, P.J.
Triаl Court No. CR0200603581; Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee; Timothy Young, Ohio Public Defender, Bethany L. O’Neill and Erika M. LaHote, Assistant Public Defenders, for appellant.
MAYLE, P.J.
{¶ 1} In this consolidated appeal, defendant-appellant, Wayne Powell, appeals two separate orders of the Lucas County Court of Common Pleas, dated August 16, 2018. The trial court denied Powell’s motion for funds to hire experts in support of his amended postconviction petition, and denied his motion for a new mitigation trial. For the reasons that follow, we affirm.
I. Facts and Procedural Background
{¶ 2} On November 22, 2006, Powell was indicted on one count of aggravated arson, ten counts of aggravated murder, and 26 capital specifications. The charges arose out of an arson fire at a two-story house in Toledo, Ohio, that killed four people.
{¶ 3} Before the trial, Powell requested and received funding for various experts. Specifically, the trial court authorized the payment of $1,000 for a fire investigator; $2,500 for private investigators; $2,500 for a psychologist; $2,000 for an audio expert; and $2,500 for a mitigation specialist from the Ohio Public Defender’s office. In each of these orders, the trial court stated that defense counsel could petition the court “if further funds become necessary.”
{¶ 4} The trial began on August 10, 2007. Eleven days later, the jury returned a verdict finding Powell guilty of all charges, including the 26 specifications listed in the indictment. The court merged the ten aggravated murder counts into four counts―one for each victim―with each of their specifications in tandem.
{¶ 5} The court proceeded to the sentencing/mitigation phase on August 22, 2007. Powell waived his right to a presentence investigation and report, his right to have the court perform a psychological investigation, and his right to make a statement on his own behalf. Although Powell presented several witnesses in mitigation, including Powell’s family members, a juvenile probation officer, and a psychologist, the jury unanimously found that the aggravating circumstances proven at trial (referred to as specifications in the indictment) outweighed the mitigating factors presented during the sentencing phase. As a result, the jury recommended a death sentence for each of the four aggravated murder convictions.
{¶ 6} After receiving this recommendation from the jury, the trial court also found beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating factors. The court stated these findings in its death penalty order on September 13, 2007, followed by a judgment entry on September 26, 2007, sentencing Powell to death.
{¶ 8} On October 13, 2016, with leave of court, Powell filed an amended petition for postconviction relief, in which he asserts 39 separate claims for relief. In his amended petition, Powell claims, among other things, that his postconviction investigation has revealed that the state’s evidence of arson was scientifically flawed, alternate suspects existed and should have been investigated, and his defense counsel failed to present all mitigating factors pertinent to his case.
{¶ 9} That same day, Powell filed a motion for leave to conduct discovery and an amended motion for funds to hire experts in support of his amended petition. In his motion for discovery, Powell sought leave to serve various subpoenas duces tecum, stating that “[m]odern fire science methodology and the scientific method demonstrate that Powell’s verdict and death sentence were premised on unreliable and unchallenged fire evidence purporting to be based in science but which we now know is scientifically invalid.”
{¶ 10} In his amended motion for expert funds, Powell requested funds to hire a substance-abuse expert, a psychologist, a neuropsychologist, and a mitigation investigator. The motion asserts that “Powell’s counsel were ineffective for failing to request funding for and obtaining expert assistance regarding Powell’s substance abuse and the neuropsychological effect it had on Powell.” Powell also argued that, because the trial court had found him to be indigent at the time of trial, he had a right to court-appropriated funding to retain experts on this issue and “such expert assistance was necessary and availablе at the time of Powell’s capital trial.”
{¶ 11} The state filed a response to the amended motion for funds on December 12, 2016. The state argued that Powell did not have a right to expert assistance in his postconviction proceedings, and that the anticipated subject matter of the experts’ testimony was barred by res judicata.
{¶ 12} On January 12, 2017, Powell filed a motion for leave to file a motion for a new mitigation trial pursuant to
{¶ 13} On November 29, 2017, Powell filed supplemental memoranda relating to his motion for discovery and his motion for funds to hire experts. Through this filing, Powell notified the court of two recent developments. First,
{¶ 14} On August 16, 2018, the trial court decided Powell’s outstanding motions. The trial court granted Powell’s motion for leave to file a motion for a new mitigation trial―finding that the motion
{¶ 15} The trial court also denied Powell’s motion for funds to hire experts, finding that Powell “fail[ed] to make a showing that he is entitled to funds for experts which is outside the contemplation of Ohio’s post-conviction statutes. For this reason, in addition to those noted by the State in its opposition, Defendant’s motion for funds is not well-taken and denied.”
{¶ 16} The trial court reserved judgment on Powell’s motion to conduct discovery, and asked for additional briefing relating to the recent amendments to R.C.
{¶ 17} Powell then appealed the trial court’s denial of his motion for expert funds and motion for new mitigation trial. Powell’s amended petition for postconviction relief, and motion to conduct discovery, remain pending in the trial court.
II. Law and Analysis
{¶ 18} On appeal, Powell claims two assignments of error:
Assignment of Error No. I. The trial court erred when it denied Powell’s motion for funds to hire experts.
Assignment of Error No. II. The trial court erred when it denied Powell’s motion for a new mitigation trial.
{¶ 19} In his first assignment of error, Powell claims that the trial court abused its discretion when it denied his amended motion for funds to hire experts in support of his amended postconviction petition. Powell argues that the trial court improperly denied the motion―without making any factual findings related to its merits―under the mistaken beliеf that indigent defendants in capital cases are not entitled to court-appointed experts in postconviction proceedings under Ohio law. Powell claims that the trial court overlooked the July 1, 2017 amendments to
{¶ 20} In response, the state argues that we lack jurisdiction to consider this assignment of error because the trial court’s order is not a “final order” under
{¶ 21} In his reply brief, Powell argues that the trial court’s order is a “final order” under
{¶ 22} As a threshold matter, we first determine whether we have jurisdiction to review the trial court’s order denying Powell’s motion for expert funds.
A. Our Jurisdiction is Limited to Review of “Judgments or Final Orders”
{¶ 23} The jurisdiction of this court is governed by Article IV, Section 3(B)(2) of the Ohio Constitution, which provides that “[c]ourts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the сourt of appeals within the district * * *.” (Emphasis added.) The issue here is whether the trial court’s order denying Powell’s motion for expert funding was a “final order.”
{¶ 24} While Powell argues the trial court’s order is a “final order” under
{¶ 25} Thus, to determine whether the trial court’s order is a “final order” subject to immediate appellate review, we must look to the definition of “final order” provided
(B) An order is a final order that may be reviewed, affirmed, modified, or reversed, with or without retrial, when it is one of the following:
(1) An order that affects a substantial right in an action that in effect determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special proceeding or upon a summary application in an action after judgment;
* * *
(4) An order that grants or denies a provisional remedy and to which both of the following apply:
(a) The order in effect determines the action with respect to the provisional remedy and prevents a judgment in the action in favor of the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or effective remedy by an aрpeal following final judgment as to all proceedings, issues, claims, and parties in the action.2
Notes
1. The Order is not a “Final Order” Under R.C. 2505.02(B)(1) or (2)
{¶ 26} Regarding
{¶ 27} Before we analyze this issue, we briefly note―because thе terminology is confusingly similar―that a “substantial right” under
{¶ 28} Here, the relevant issue is whether the trial court’s order denying expert funding to Powell in his postconviction proceeding affected a “substantial right” under
{¶ 29} Powell argues, however, that the recent amendments to
{¶ 30} But, an indigent defendant does have a procedural “substantial right” under
Upon establishing counsels’ respective compliance with discovery obligations, the trial court shall decide the issue of appointment of experts, including projected expert fees, the amount of time to be apрlied to the case, and incremental fees as the case progresses. The trial court shall make written findings as to the basis of any denial. (Emphasis added.)
{¶ 31} Thus, after the trial court establishes that the parties have complied with their respective discovery obligations,3 it must “decide the issue of appointment of experts” (including various subordinate issues if the funding request is granted) and, if the request is denied, “make written findings as to the basis of any denial.”
{¶ 32} Although Powell’s arguments focus almost exclusively on why he believes the trial court erred by denying his request for funding, Powell also argues that the trial court failed to follow
Put simply, Defendant fails to make a showing that he is entitled to funds for experts which is outside the contemplation of Ohio’s post-convictions statutes. For this reason, in addition to those noted by the State in its opposition, Defendant’s motion for funds is not well-taken and denied.
{¶ 33} Given that the trial court complied with
2. The Order is a “Final Order” Under R.C. 2505.02(B)(4)
{¶ 34} Under
a. The Order Denies a Provisional Remedy
{¶ 35} Although somewhat counterintuitive, “[t]he General Assembly expressly defined a ‘provisional remedy’ as a type of proceeding.
a proceeding ancillary to an action, including, but not limited to, a proceeding for a preliminary injunction, attachment, discovery of privileged matter, suppression of evidence, a prima-facie showing pursuant to section 2307.85 or 2307.86 of the Revised Code, a prima-facie showing pursuant to section 2307.92 of the Revised Code, or a finding made pursuant to division (A)(3) of section 2307.93 of the Revised Code.
{¶ 36} By its express terms, this list is “‘illustrative and not exhaustive.’” Muncie at 448, quoting Boedeker v. Rogers, 140 Ohio App.3d 11, 18, 746 N.E.2d 625 (8th Dist.2000). Although the legislature did not define “a proceeding ancillary to an action” in
{¶ 37} In this case, we find that the procedure for the appointment of experts for indigent defendants, as outlined in
{¶ 38} Accordingly, because the trial court’s order denies relief in an ancillary proceeding, it satisfies the first prong of
b. The Order Determines the Action with Respect to the Provisional Remedy
{¶ 39} The trial court’s order denying appellant’s motion for funding for experts unquestionably determines the action with respect to the provisional remedy itself (i.e., Powell’s request for expert funding) and prevents a judgment in favor of the appellant on this issue. The trial court’s order therefore satisfies the second step of the
c. Powell cannot Obtain a Meaningful and Effective Remedy through the Appeal of the Final Judgment
{¶ 40} In determining whether an appeal after final judgment would afford a meaningful or effective remedy, we must consider “whether there is a harm such that appeal after final judgment would not rectify the damage.” (Internal quotations omitted.) In re D.H., 152 Ohio St.3d 310, 2018-Ohio-17, 95 N.E.3d 389, ¶ 18. In other words, “‘[t]he proverbial bell cannot be unrung * * *.’” Muncie at 451, quoting Gibson-Myers & Assocs., Inc. v. Pearce, 9th Dist. Summit No. 19358, 1999 WL 980562, *2 (Oct. 27, 1999).
{¶ 41} The Supreme Court of Ohio has recognized, however, that the final prong of
{¶ 42} In Thomasson, the court analyzed whether an order appointing a guardian ad litem (“GAL”) to act on behalf of an adult, who had not been found incompetent, during a divorce proceeding, was a final, appealable order.4 The court determined that the divorce proceedings were statutory in nature and the trial court failеd to make the appropriate findings under
{¶ 43} As for the need for immediate review, the Thomasson court stated, “there are occasions on which judicial economy tips the balance in favor of immediate review.” (Emphasis added.) Id. at ¶ 33, citing Russell v. Mercy Hosp., 15 Ohio St.3d 37, 42, 472 N.E.2d 695 (1984). Specifically, the court found that “[r]equiring [the adult] to wait to appeal until after the divorce proceedings have concluded would require the appellate court to construct a hypothetical proceeding to determinе prejudice based on speculation as to how [the adult’s] decisions might have differed from the decisions made by the GAL.” Id. Therefore, the court made a very “narrow and limited holding” that “a trial court’s order appointing a GAL to represent an adult in a divorce case is a final, appealable order when that adult has not been adjudicated incompetent subsequent to providing the parties with notice and an opportunity to be heard on the issue of the adult’s competency.” Id. at ¶ 34.
{¶ 44} For most postconviction relief petitions, the length of time to wait for a final adjudication on the merits of the petition, and the time for an appellate court to review the trial court’s decision, would not be enough for a finding that “judicial economy tips the balance in favor of immediate review.” However, when a petition for postconviction relief is filed pursuant to
{¶ 45} It is apparent that the Supreme Court recognized this urgency and the need for an interlocutory appeal when it included language under
In all capital cases, as defined in
Crim.R. 42 , the appeal of an order regarding appointment of experts shall, upon request by defense counsel, be under seal and conducted ex parte and shall be handled pursuant to an aсcelerated calendar under this rule and local rules adopting an accelerated calendar.
{¶ 46} Although, as we note above,
judgment would be “meaningful and effective” under
B. The Trial Court did not Abuse its Discretion in Denying Powell‘s Motion for Funds to Hire Experts
{¶ 47} Turning to the merits of Powell‘s first assignment of error, Powell argues that the trial court erred by denying his motion for expert funds because the trial court did not explicitly reference
{¶ 48} Under
{¶ 49} We first note that the trial court‘s observation that the appointment of expert witnesses to indigent defendants is “outside the contemplation of Ohio‘s postconviction statutes” is not incorrect, as Powell argues. Under
{¶ 50} Moreover, Powell fails to acknowledge that the trial court did not deny his motion solely because his expert-funding request was outside the contemplation of Ohio‘s postconviction statutes. Rather, the trial court stated that it was denying the motion “[f]or [that] reason, in addition to those noted by the State in its opposition * * *.” (Emphasis added.) {¶ 51} In its opposition to Powell‘s motion, the state argued that Powell‘s request should be denied because the anticipated subject matter of the experts’ testimony was barred by res judicata. As the state pointed out, Powell argued on direct appeal “that his counsel were ineffective by failing to retain a substance-abuse expert to testify about his history of alcohol and drug abuse.” Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, at ¶ 210. The Supreme Court of Ohio, however, disagreed and found that Dr. Wayne Graves, “a clinical and forensic psychologist, provided expert testimony during mitigation regarding Powell‘s drug and alcohol abuse” and that Dr. Graves‘s testimony “fulfill[ed] the same functions as the expert assistance sought.” (Internal quotations omitted.) Id. at ¶ 211.
{¶ 52} Thus, given that Powell‘s lack of a substance-abuse expert was already raised on his direct appeal, the state argued the testimony of the requested substance-abuse experts would be barred by res judicata and the trial court should deny Powell‘s request for funding on that basis. The trial court was persuaded by this argument and denied Powell‘s motion, at least in part, on those grounds.
{¶ 53} On appeal (as in the trial court) Powell ignores the state‘s arguments relating to res judicata. Instead, Powell relies almost exclusively upon his contention that
{¶ 54} But because the Supreme Court of Ohio has already considered whether “his counsel were ineffective by failing to retain a substance-abuse expert to testify about his history of alcohol and drug abuse,” Powell at ¶ 210—and because Powell does not make any effort to explain why his motion for expert funding should not have been denied on the grounds that were advanced by the state in its opposition brief to the trial court—we simply cannot find that the trial court‘s decision was “contrary to law, unreasonable, not supported by the evidence, or grossly unsound.” Nisley, 3d Dist. Hancock No. 5-13-23, 2014-Ohio-981, at ¶ 16.
{¶ 55} For these reasons, we find that the trial court did not abuse its discretion when denying Powell‘s motion for expert funding, and Powell‘s first assignment of error is not well-taken.
C. Ohio‘s Death Penalty Scheme is not Unconstitutional Under Hurst
{¶ 56} In his second assignment of error, Powell claims that the trial court erred by denying his
{¶ 57} Powell‘s motion for new mitigation trial was premised entirely upon Hurst, ___ U.S. ___, 136 S.Ct. 616, 193 L.Ed.2d 504, which found Florida‘s capital sentencing scheme to be unconstitutional. In his motion, Powell argued that “the United States Supreme Court decision in Hurst signaled a sea-change in death penalty jurisprudence” and “[a]fter Hurst, it is clear that Ohio‘s death penalty scheme is unconstitutional.” The Supreme Court of Ohio, however, has explicitly—and repeatedly—found that Ohio‘s capital sentencing scheme is not unconstitutional under Hurst. State v. Mason, 153 Ohio St.3d 476, 2018-Ohio-1462, 108 N.E.3d 56; see also State v. Tench, 156 Ohio St.3d 85, 2018-Ohio-5205, 123 N.E.3d 955, ¶ 279; State v. Goff, 154 Ohio St.3d 218, 2018-Ohio-3763, 113 N.E.3d 490, ¶ 31-40.
{¶ 58} In Ohio, to face the possibility of a death sentence, a defendant must be charged with both aggravated murder and one or more of the specifications of aggravating circumstances that are outlined in
{¶ 59} At the sentencing phase, the court and jury shall consider (1) any presentence investigation or mental examination report (if either is requested by the defendant), (2) the trial evidence relevant to the aggravating circumstances the offender was found guilty of committing, and relevant to any mitigating factors, (3) additional testimony and evidence relevant to the nature and circumstances of the aggravating circumstances and any mitigating factors, (4) any statement of the offender, if given, and (5) the arguments of counsel.
{¶ 60} Upon a jury‘s unanimous recommendation that the death sentence be imposed, the trial court shall impose a sentence of death only if it also finds, beyond a reasonable doubt, that the aggravating circumstances outweigh any mitigating factors.
{¶ 61} Powell argues that this capital sentencing scheme is indistinguishable from Florida‘s pre-Hurst capital sentencing scheme, which the U.S. Supreme Court found to be unconstitutional under the Sixth Amendment. Hurst, ___ U.S. ___, 136 S.Ct. 616, 193 L.Ed.2d 504. Floridа law previously required the jury, during the sentencing phase, to issue an “advisory sentence” by majority vote (recommending death or life imprisonment), after which the trial court weighed the aggravating and mitigating circumstances, and imposed a sentence of life imprisonment or death “‘[n]otwithstanding the recommendation of a majority of the jury * * *.‘” Id. at 620, quoting Fla.Stat. 921.141(3). The U.S. Supreme Court determined that Florida‘s scheme violated the Sixth Amendment of the U.S. Constitution because the jury provided a “mere recommendation” to the judge and “the judge alone [was required] to find the existence of an aggravating circumstance,” id. at 624, and because the jury was “not require[d] * * * to make the critical findings necessary to impose the death penalty.” Id. at 622.
{¶ 62} Powell argues that, like the Florida laws at issue in Hurst, Ohio‘s capital sentencing structure requires a “mere recommendation” by the jury in favor of a death sentence and, therefore, violates the Sixth Amendment because the ultimate death sentence is imposed by the judge alone. The Supreme Court of Ohio, however, has expressly rejected this argument and concluded that “Ohio law requires the critical jury findings that were not required by [Florida‘s capital sentencing scheme]” and “Ohio‘s death-penalty scheme, therefore, does not violate the Sixth Amendment.” Mason, 153 Ohio St.3d 476, 2018-Ohio-1462, 108 N.E.3d 56, at ¶ 21; see also Tench, 156 Ohio St.3d 85, 2018-Ohio-5205, 123 N.E.3d 955, at ¶ 279; Goff, 154 Ohio St.3d 218, 2018-Ohio-3763, 113 N.E.3d 490, at ¶ 35. That is because, under Ohio law, a jury must find the offender guilty beyond a reasonable doubt of aggravated murder and at least one aggravating circumstance specification (
{¶ 63} Powell also argues that Ohio‘s capital sentencing scheme is unconstitutional because, as in Hurst, the trial judge is required to independently weigh all aggravating circumstances and mitigating factors before imposing the death penalty and, according to Powell, a death sentence is therefore predicated upon impermissible fact-finding by the judge. The Supreme Court of Ohio has rejected this argument too. The court has expressly found that the weighing that occurs in the sentencing phase “‘is not a fact-finding process subject to the Sixth Amendment.‘” (Emphasis sic.) Mason at ¶ 29, quoting State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 60; see also Goff at ¶ 36. Rather, the Sixth Amendment is satisfied once a jury finds the defendant guilty, beyond a reasonable doubt, of aggravated murder and at least one capital specification at trial. Mason at ¶ 29.
{¶ 64} For the foregoing reasons we find that Ohio‘s death penalty scheme is not unconstitutional under Hurst. Accordingly, the trial court did not abuse its discretion by denying Powell‘s motion for a new mitigation trial under Hurst. Powell‘s second assignment of error is not well-taken.
{¶ 65} Conclusion
{¶ 66} In conclusion, Powell‘s two assignments of error are not well-taken. We affirm the August 16, 2018 orders of the Lucas County Court of Common Pleas that denied Powell‘s motion for funding for experts to assist with his postconviction petition, and denied Powell‘s motion for a new mitigation trial.
{¶ 67} Powell is ordered to pay the costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Arlene Singer, J. _______________________________
JUDGE
Christine E. Mayle, P.J. CONCUR. _______________________________
JUDGE
Gene A. Zmuda, J. CONCURS, IN PART, AND _______________________________
DISSENTS, IN PART, AND JUDGE
WRITES SEPARATELY.
ZMUDA, J., concurring, in part, and dissenting, in part:
{¶ 68} I concur with the majority‘s conclusion that Ohio‘s death penalty scheme is not unconstitutional under the United States Supreme Court‘s decision in Hurst. However, I must respectfully dissent from the majority‘s determination that the trial court did not abuse its discretion in denying Powell‘s motion for funds to hire experts, because I find that the trial court‘s order denying the motion is not final and appealable under
{¶ 69} In order to find that the trial court‘s denial of expert funding was a final, appealable order under
{¶ 70} As to the first element, I would find that a proceeding seeking funds to hire an expert is not a “provisional remedy” under
{¶ 71} A proceeding seeking funds to hire an expert does not grow out of a postconvictiоn proceeding, but is instead a simple discovery matter. Generally, discovery orders are not final and appealable under
The amended statute added the provisional-remedy section and defined “provisional remedy” as “a proceeding ancillary to an action, including, but * * * not limited to, * * * discovery of a privileged matter.”
R.C. 2505.02(A)(3) . If the order in question affects the discovery of a privileged matter it is by definition a provisional remedy аnd meets the first step of the test. The canon expressio unius est exclusio alterius tells us that the express inclusion of one thing implies the exclusion of the other.
Black‘s Law Dictionary (8th Ed.2004) 620. The General Assembly stopped short of including all discovery orders in the provisional-remedy section.
The request for a physical examination under
Civ.R. 35(A) is a discovery order that is not a provisional remedy and is not a final, appealable order underR.C. 2505.02(B)(4) .
{¶ 72} The logic that underlies this principle is well grounded. We should adhere to the general rule that discovery orders are not provisional remedies. “If we start denominating discovery orders as ‘provisional remedies,’ then virtually every discovery order would be appealable, which would frustrate the legislative intent behind the statute.” Harrell v. Management and Training Corp., 1st Dist. Hamilton No. C-180417, 2019-Ohio-2816, ¶ 10. The facts in this case, moreover, illustrate this point as a motion for discovery is currently pending before the trial court in the underlying postconviction proceeding.
{¶ 73} Because Powell‘s motion for funds to acquire аn expert is a proceeding relating to discovery, and because the proceeding does not relate to the discovery of a privileged matter, I find that such a proceeding is not a provisional remedy.
{¶ 74} Additionally, I conclude that the trial court‘s denial of Powell‘s motion for expert funds is not final and appealable because Powell can obtain meaningful review and an effective remedy through an appeal following the trial court‘s decision on his postconviction petition. In determining whether an appeal after final judgment would afford a meaningful or effective remedy, courts must consider whether there is a harm such that appeal after final judgment would not “‘rectify the damage.‘” Muncie, supra, 91 Ohio St.3d at 451, quoting Gibson–Myers & Assocs., Inc. v. Pearce, 9th Dist. Summit No. 19358, 1999 WL 980562, *2 (Oct. 27, 1999). In such circumstances, the matter is final and appealable because “‘the proverbial bell cannot be unrung.‘” Id., quoting Gibson–Myers at *2.
{¶ 75} In this case, the trial court‘s denial of Powell‘s motion for funds to hire an expert does nоt harm Powell in a manner that cannot be undone. If the denial turns out to be erroneous, and if that error prejudices Powell‘s ability to conduct meaningful discovery leading to the denial of his postconviction petition, Powell has an effective remedy through the reversal of the trial court‘s decision on the postconviction petition and an order from this court directing the trial court to grant him funds to hire an expert. At that point, Powell will be able to receive the relief he has requested, and the damage caused by the trial court‘s denial of his motion for funds would be rectified.
{¶ 76} In its decision, the majority relies upon principles of judicial economy to tip the scales in favor of immediate review under
{¶ 78} In contrast to the majority, I find that addressing the trial court‘s denial of Powell‘s motion for funds to hire an expert actually inhibits judicial economy. This is particularly true here, where the trial court is yet to rule on Powell‘s underlying discovery motion. Given the procedural posture of this case, notions of judicial economy favor dismissal of the portion of Powell‘s appeal relating to the request for funds in order to allow the trial court to resolve all of the discovery disputes and rule on the merits of Powell‘s postconviction petition. This would allow us to review all of Powell‘s arguments in their wider сontext, thereby enabling us to render one decision rather than piecemeal decisions.
{¶ 79} In sum, I find that the trial court‘s denial of Powell‘s motion for funds to hire an expert is not a final, appealable order under
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.supremecourt.ohio.gov/ROD/docs/.