THE STATE OF OHIO, APPELLEE, v. WHITE, APPELLANT.
No. 2009-1661
Supreme Court of Ohio
Submitted November 16, 2011—Decided June 14, 2012.
132 Ohio St.3d 344, 2012-Ohio-2583
Judgment reversed and cause remanded.
O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, and MCGEE BROWN, JJ., concur.
Dean Holman, Medina County Prosecuting Attorney, and Matthew Kern, Assistant Prosecuting Attorney, for appellant.
David C. Sheldon, for appellee.
William D. Mason, Cuyahoga County Prosecuting Attorney, and Matthew E. Meyer and Daniel T. Van, Assistant Prosecuting Attorneys, urging reversal for amicus curiae Cuyahoga County Prosecutor‘s Office.
Paul A. Dobson, Wood County Prosecuting Attorney, and David E. Romaker Jr., Assistant Prosecuting Attorney, urging reversal for amicus curiae Ohio Prosecuting Attorneys Association.
{1 1} Appellant, Maxwell D. White Jr., murdered State Trooper James Gross on January 19, 1996. He was tried by a jury, convicted of aggravated murder with capital specifications, and sentenced to death. On appeal, we affirmed White‘s conviction and death sentence. State v. White, 82 Ohio St.3d 16, 693 N.E.2d 772 (1998). However, on December 7, 2005, White obtained federal habeas corpus relief from his death sentence, obliging the trial court to resentence him. White v. Mitchell, 431 F.3d 517 (6th Cir.2005).
{1 2}
{1 3} The trial court held that it could not retroactively apply
{1 4} Because this appeal principally involves White‘s claim that
{1 5} In State v. Penix, 32 Ohio St.3d 369, 513 N.E.2d 744 (1987), we held that a death sentence may be imposed only with the recommendation of “the trial jury,” because
{1 6} Later in 1996, the 121st General Assembly enacted legislation to abrogate Penix. Effective October 16, 1996,
because of error that occurred in the sentencing phase of the trial * * *, the trial court that sentenced the offender shall conduct a new hearing to resentence the offender. If the offender was tried by a jury, the trial court shall impanel a new jury for the hearing. * * * At the hearing, the court * * * shall follow the procedure set forth in [
R.C. 2929.03(D) ] in determining whether to impose upon the offender a sentence of death * * *.
The 1996 amendment to
{1 8} The 125th General Assembly responded to Williams by further amending
This section, as amended by H.B. 184 of the 125th general assembly, shall apply to all offenders who have been sentenced to death for an aggravated murder that was committed on or after October 19, 1981 * * * This section, as amended by H.B. 184 of the 125th general assembly, shall apply equally to all such offenders sentenced to death prior to, on, or after March 23, 2005 [the effective date of H.B. 184], including offenders who, on March 23, 2005, are challenging their sentence of death and offenders whose sentence of death has been set aside, nullified, or vacated by any court of this state or any federal court but who, as of March 23, 2005, have not yet been resentenced.
{1 9} While these statutory changes were being enacted, White was pursuing a federal habeas corpus challenge to his conviction and death sentence. On December 7, 2005, the United States Court of Appeals for the Sixth Circuit affirmed the federal district court‘s denial of habeas relief as to White‘s conviction. White v. Mitchell, 431 F.3d 517. However, the Sixth Circuit held that White‘s death sentence was constitutionally defective.
{1 10} At trial, White had challenged a prospective juror on the ground that she was biased in favor of a death sentence. The trial court overruled White‘s challenge, and the juror took part in White‘s trial and sentencing. The Sixth Circuit found that the juror was biased and that the trial court had therefore erred by overruling White‘s challenge. Id. at 537-543. Accordingly, the Sixth Circuit ordered that White‘s death sentence be vacated “unless the State conducts a new penalty phase proceeding.” Id. at 543.
{1 11} On December 28, 2006, pursuant to the Sixth Circuit‘s mandate, the federal district court granted a conditional writ of habeas corpus and ordered that the state either conduct a new penalty hearing or vacate White‘s death sentence. On December 29, 2006, the state filed a motion in the trial court requesting a new penalty-phase proceeding in light of the federal court‘s order.
{1 13} The trial court granted Motion B in part, holding that the application of
{1 14} The court of appeals reversed and remanded, holding that applying
{1 15} We granted White‘s jurisdictional motion. State v. White, 123 Ohio St.3d 1508, 2009-Ohio-6210, 917 N.E.2d 811. We now affirm the judgment of the court of appeals.
I. Applicability of R.C. 2929.06(B)
{1 16} As a threshold question, we must determine whether
{1 17}
Whenever any court of this state or any federal court sets aside, nullifies, or vacates a sentence of death imposed upon an offender because of error that occurred in the sentencing phase of the trial * * *, the trial court that sentenced the offender shall conduct a new hearing to resentence the offender. If the offender was tried by a jury, the trial court shall impanel a new jury for the hearing. * * * At the hearing, the court * * * shall follow the procedure set forth in [
R.C. 2929.03(D) ] in determining whether to impose upon the offender a sentence of death * * *
{1 18} White contends that
{1 19} We note that one common pleas court has agreed with White‘s reading of
{1 20} However, it is relevant to note that voir dire is not a substantive part of trial; rather, it is a mechanism to seat an impartial jury so that the due process rights of a defendant are protected. Morgan v. Illinois, 504 U.S. 719, 729-730, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992) (explaining that the Constitution does not provide for voir dire, but only that the defendant be afforded an impartial jury; voir dire plays a critical function in assuring the criminal defendant that his constitutional right to an impartial jury will be honored). But an error in the jury-selection process that is not relevant to a guilt determination may become relevant at the time of sentencing, as in this case, in which the only bias issue concerned the juror‘s views on the death penalty. Thus, we must interpret what “in the sentencing phase” means as used in
{1 21} It is evident that the intent of
[W]hen a case is remanded to the trial court following vacation of the death sentence due to error occurring at the penalty phase of the proceeding, the trial court, in resentencing the offender, is limited to the sentences of life imprisonment with parole eligibility after serving twenty full years of imprisonment or life imprisonment with parole eligibility after serving thirty full years of imprisonment.
(Emphasis added.) 32 Ohio St.3d 369, 513 N.E.2d 744, syllabus.
{1 22}
{1 23} White‘s proposed reading of the statute would create an odd dichotomy between sentencing-phase errors that invalidate a death sentence without affecting the conviction and errors having precisely the same effect but that happen to occur at some other point during the proceedings. Errors of the first type would be covered by
{1 24} Such a distinction would be completely arbitrary. White suggests no reason why the General Assembly would want to treat resentenced capital offenders differently based on when the error that invalidated the death sentence occurred.
{1 25} Accordingly, we reject White‘s proposed interpretation of
II. Retroactive Application of R.C. 2929.06(B)
{1 26} The principal issue in this case is whether the application of
{1 27} Determining whether a statute‘s retroactive application violates the Retroactivity Clause requires a two-step analysis. First, we must determine whether the General Assembly intended that the statute apply retroactively. If not, the statute may not be so applied. See
A. Intent of the General Assembly
{1 28} In this case, the result of the first step is obvious. The trial court determined that
{1 29}
{1 30} To ensure that the legislative intent is clear,
as amended by H.B. 184 * * *, shall apply equally to all such offenders sentenced to death prior to, on, or after March 23, 2005, including offenders who, on March 23, 2005, are challenging their sentence of death and offenders whose sentence of death has been set aside, nullified, or vacated by any court of this state or any federal court but who, as of March 23, 2005, have not yet been resentenced.
(Emphasis added.) By enacting
B. Is R.C. 2929.06(B) Remedial or Substantive?
{1 31} In construing the Retroactivity Clause, we have determined that “retroactivity itself is not always forbidden by Ohio law.” Bielat, 87 Ohio St.3d at 353, 721 N.E.2d 28. Thus, having determined that
1. Does R.C. 2929.06(B) Increase the Punishment for the Offense?
{1 32} If a statute‘s intent is punitive in nature, it cannot be considered merely remedial. See Cook, 83 Ohio St.3d at 418, 700 N.E.2d 570. Thus, Ohio retroactivity analysis prohibits a retroactive increase in punishment for a criminal
{1 33} We disagree.
2. Did White Have a Vested or Accrued Right to Be Resentenced Without a Jury?
{1 34} “The prohibition against retroactive laws * * * is a protection for the individual who is assured that he may rely upon the law as it is written and not later be subject to new obligations thereby.” Lakengren, Inc. v. Kosydar, 44 Ohio St.2d 199, 201, 339 N.E.2d 814 (1975). Thus, “the constitutional test for substantive legislation focuses on new laws that reach back in time and create new burdens, deprivations, or impairments of vested rights.” Bielat, 87 Ohio St.3d at 359, 721 N.E.2d 28.
[A] statute is substantive when it * * * impairs or takes away vested rights; affects an accrued substantive right; imposes new or additional burdens, duties, obligations, or liabilities as to a past transaction; creates a new right out of an act [that] gave no right and imposed no obligation when it occurred; creates a new right; [or] gives rise to or takes away the right to sue or defend actions at law.
(Citations omitted.) Van Fossen, 36 Ohio St.3d at 107, 522 N.E.2d 489.
{1 35} An “accrued right” is “a matured right; a right that is ripe for enforcement.” Black‘s Law Dictionary 1436 (9th Ed.2009). “A right, not absolute but dependent for its existence upon the action or inaction of another, is not basic or vested * * *.” Hatch v. Tipton, 131 Ohio St. 364, 2 N.E.2d 875 (1936), paragraph two of the syllabus.
{1 36} On January 19, 1996, the day he murdered Trooper Gross, White did not have an “absolute” or “matured” right to be resentenced under Penix. That right could not come into existence until several intervening events took place. First, White would have to be convicted of aggravated murder with at least one death specification; then, after the penalty phase, the jury would have to recommend a death sentence, and the trial judge would have to impose one; then upon appellate review the death sentence would have to be vacated. Only if all
{1 37} Ultimately, each of these preconditions for resentencing did come to pass. But the last of them did not occur until December 7, 2005, the date when the Sixth Circuit invalidated White‘s death sentence. Before that date, White had no vested or accrued right to be resentenced under Penix. But before December 7, 2005, the General Assembly had not only enacted
3. Would Retroactive Application of R.C. 2929.06(B) Create a New Right for the State While Imposing a New Burden on White?
{1 38} The trial court rejected the state‘s argument that “the law is not substantive because the Defendant did not have a ‘vested right’ to be resentenced to a life sentence.” The court stated: “There need not be a deprivation of a vested right in order for the law to be deemed a substantive retroactive law. It is sufficient that the law creates a new right and imposes corresponding burdens.”
{1 39} The trial court concluded that
{1 40} The trial court‘s statement that “[i]t is sufficient that the law creates a new right and imposes corresponding burdens” is incomplete. We have held that to be deemed substantive, a law must impose a new burden on the complaining party. “[T]he constitutional test for substantive legislation focuses on new laws that reach back in time and create new burdens, deprivations, or impairments of vested rights.” Bielat, 87 Ohio St.3d at 359, 721 N.E.2d 28. The Retroactivity Clause prohibits the General Assembly from “passing new laws to reach back and create new burdens, new duties, new obligations, or new liabilities not existing at the time.” Miller v. Hixson, 64 Ohio St. 39, 51, 59 N.E. 749 (1901).
{1 42} Moreover, “a later enactment will not burden or attach a new disability to a past transaction or consideration in the constitutional sense, unless the past transaction or consideration, if it did not create a vested right, created at least a reasonable expectation of finality.” State ex rel. Matz v. Brown, 37 Ohio St.3d 279, 281, 525 N.E.2d 805 (1988).
{1 43} In this case, White can point to no event preceding the enactment of
{1 44} Because White could have no reasonable expectation of finality with respect to Penix on the date of the murder, retroactive application of
4. Is a Statute Creating a New Jury-Trial Right Necessarily Substantive?
{1 45}
{1 46} But the creation of a new right—even a new substantive right—is not, by itself, enough to support a claim of unconstitutional retroactivity. We have held that a claim that a statute is substantive, and hence unconstitutionally retroactive, “cannot be based solely upon evidence that a statute retrospectively created a new right, but must also include a showing of some impairment, burden, deprivation, or new obligation accompanying that new right.” Bielat, 87 Ohio St.3d 350, 721 N.E.2d 28, paragraph two of the syllabus. The court must inquire “whether the creation of rights in one party reciprocally impaired a right of the party challenging the retroactive law. In other words, substantive, retroactive legislation that unconstitutionally creates a new right also impairs a vested right or creates some new obligation or burden as well.” Id. at 359. This is true even if the new right itself may be characterized as substantive.
{1 47} Kneisley is not to the contrary. In Kneisley, we held that legislation eliminating a party‘s accrued right to a jury trial was substantive and could not be retroactively applied. 40 Ohio St.3d at 356-357, 533 N.E.2d 743. Kneisley does not stand for the proposition that legislation granting a right to a jury trial is substantive, where such legislation does not impose a new burden on the other party. Since the creation of a jury-trial right on remand does not impose any new burden on White—i.e., any burden that he did not face on January 19, 1996—the substantive nature of the jury-trial right does not itself preclude retroactive application of
{1 48} To sum up, the application of
III. The Ex Post Facto Clause
{1 49} Although White‘s brief is not completely clear on this point, he appears to be raising a claim under the Ex Post Facto Clause of the United States Constitution. Moreover, amicus curiae American Civil Liberties Union of Ohio Foundation (“ACLU“) expressly contends that applying
{1 50} In Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798), Justice Chase identified the four kinds of laws that come within the Ex Post Facto Clause:
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when
committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.
(Emphasis sic.) The United States Supreme Court has adopted Justice Chase‘s Calder opinion as an authoritative definition of ex post facto laws. See, e.g., Stogner v. California, 539 U.S. 607, 611, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003); Carmell v. Texas, 529 U.S. 513, 525, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000).
{1 51} White contends that
{1 52} The death penalty existed for aggravated murder on January 19, 1996, the date of Trooper Gross‘s murder. “[I]ts existence on the statute books provided fair warning as to the degree of culpability which the State ascribed to the act of murder.” Dobbert v. Florida, 432 U.S. 282, 297, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977). “This was sufficient compliance with the ex post facto provision of the United States Constitution.” Id. at 298.
{1 53} In Evans v. Commonwealth, 228 Va. 468, 323 S.E.2d 114 (1984), the Virginia Supreme Court faced a question almost identical to that presented here. That court had previously held (as we would later hold in Penix) that the relevant Virginia statute, as written, required that where a death sentence was invalidated, the defendant must be resentenced to life imprisonment, because only the jury that had convicted the offender could sentence him to death. See also Patterson v. Commonwealth, 222 Va. 653, 660, 283 S.E.2d 212 (1981).
{1 54} Virginia‘s legislature subsequently amended the statute to permit a new jury to fix a penalty on remand. The defendant in Evans (like White) had committed his crime before the amendment‘s adoption, but his death sentence was vacated after its adoption. On resentencing, the trial court empanelled a new jury under the amended statute, and Evans was sentenced to death. On appeal, he claimed that application of the amended statute to him violated the Ex Post Facto Clause. Id. at 475.
{1 55} The Virginia Supreme Court rejected Evans‘s ex post facto argument.
Pertinent to the ex post facto inquiry is whether the defendant had “fair warning as to the degree of culpability which the State ascribed to the act of murder.” [Dobbert, 432 U.S. at 297, 97 S.Ct. 2290, 53 L.Ed.2d 344.] Manifestly, Evans had “fair notice” and “fair warning” at the time of his 1981 offense that the capital murder of a law-enforcement officer was a crime for which the death penalty could be imposed.
Evans, 228 Va. at 476, 323 S.E.2d 114.
{1 56} The court rejected Evans‘s argument that “a full ‘fair warning’ inquiry must take into account that Evans was also deemed to understand that if he were to receive a death sentence and if his death sentence were to be set aside, his punishment would be life imprisonment.” Id. The court explained that “the ex post facto inquiry focuses on ‘the quantum of punishment attached to the crime’ [Dobbert at 294], of which the defendant had notice at the time of the offense, and not on adjustments in the method of administering that punishment that are collateral to the penalty itself.” Evans at 476-477.
{1 57} The United States Court of Appeals for the Fourth Circuit, considering Evans‘s case on habeas corpus review, reached the same conclusion in Evans v. Thompson, 881 F.2d 117, 119-121 (4th Cir.1989). The amended statute “neither increased the punishment attached to [the] crime,” nor deprived the defendant of “a defense available to him when he committed murder.” Id. at 120. It merely changed “the procedures surrounding the imposition of the death penalty.” Id. Hence, the state could apply the amended statute on remand without violating the Ex Post Facto Clause.
{1 58} The second Calder category consists of “[e]very law that aggravates a crime, or makes it greater than it was, when committed.” (Emphasis sic.) Id., 3 U.S. at 390, 1 L.Ed. 648. The United States Supreme Court has explained that the second category applies “where a new law inflicts a punishment upon a person not then subject to that punishment, to any degree.” (Emphasis sic.) Stogner v. California, 539 U.S. at 613-614, 123 S.Ct. 2446, 156 L.Ed.2d 544.
{1 59} Stogner involved a statute extending the period of limitations for prosecution of sex crimes involving children. The state sought to apply the extended limitations period to a case in which the former limitations period had expired before the extension was enacted. Stogner held that the extended statute of limitations fell within the second Calder category, because the extension “retroactively withdraws a complete defense to prosecution after it has already attached, and it does so in a manner that allows the State to withdraw this defense at will and with respect to individuals already identified.” (Empha-
{1 60} Under Penix, a capital defendant whose death sentence was vacated on appeal had what amounted to a complete defense to the death penalty on remand, since the Penix rule precluded a death sentence on remand. 32 Ohio St.3d 369, 513 N.E.2d 744.
{1 61} But, unlike the statute in Stogner, the retroactive application of
{1 62} Stogner noted that “courts have upheld extensions of unexpired statutes of limitations” and stated that “our holding today does not affect” such extensions. (Emphasis sic.) 539 U.S. at 618, 123 S.Ct. 2446, 156 L.Ed.2d 544; see also id. at 632 (the state is not prevented “from extending time limits * * * for prosecutions not yet time barred“). Applying
{1 63} Finally,
{1 64} We hold that
IV. Double Jeopardy
{1 65} Amicus curiae Ohio Academy of Criminal Defense Lawyers (“OACDL“) contends that retroactive application of
{1 66} OACDL‘s double-jeopardy argument rests on a misunderstanding of Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), and its progeny. In Bullington, the United States Supreme Court applied double-jeopardy principles to capital sentencing. Bullington held that in a case where
{1 67} Cases decided since Bullington make clear that “an ‘acquittal’ at a trial-like sentencing phase * * * is required to give rise to double-jeopardy protections.” Sattazahn v. Pennsylvania, 537 U.S. 101, 107, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003). Moreover, to raise a double-jeopardy bar to resentencing, an acquittal on the merits is required. See Arizona v. Rumsey, 467 U.S. 203, 211, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984); Sattazahn at 107-108. “Only a finding that the state has failed to prove its case for death constitutes an ‘acquittal of the death penalty’ for double-jeopardy purposes.” State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶ 150.
{1 68} Thus, a jury‘s verdict imposing a life sentence is an on-the-merits acquittal of the death penalty. Bullington at 444-445. Similarly, where state law requires a finding of an aggravating circumstance as a prerequisite to a death sentence, a jury‘s refusal to make such a finding is an on-the-merits acquittal of the death penalty. Rumsey at 211-212. But a life sentence imposed by a judge solely because the jury has deadlocked, and thus failed to make any findings at all, is not an acquittal of the death sentence for double-jeopardy purposes. Sattazahn at 109-110.
{1 69} Similarly, we held in Hancock that a trial court‘s refusal to follow a jury‘s death recommendation was not an acquittal of the death sentence, because it was based, not on the trial judge‘s weighing of aggravating circumstances and mitigating factors, but on the judge‘s ruling that a procedural error invalidated the jury‘s recommendation, leaving him without authority to impose a death sentence. Hancock at ¶ 144-149.
{1 70} In this case, as in Hancock, “neither judge nor jury ever found that the prosecution had failed to prove its case that [the defendant] deserved the death penalty.” Id. at ¶ 145. To the contrary, at White‘s original trial, the jury recommended a death sentence, and the trial judge imposed it. Thus, both judge and jury found that the state had proven its case that White deserved the death penalty. We therefore reject OACDL‘s double-jeopardy argument.
{1 71} For the foregoing reasons, we affirm the judgment of the court of appeals.
Judgment affirmed.
PFEIFER and LANZINGER, JJ., dissent.
LANZINGER, J., dissenting.
{1 72} I respectfully dissent. I would not reach the constitutional question because the statute does not apply to this case.
Whenever any court of this state or any federal court sets aside, nullifies, or vacates a sentence of death imposed upon an offender because of error that occurred in the sentencing phase of the trial * * *, the trial court that sentenced the offender shall conduct a new hearing to resentence the offender. If the offender was tried by a jury, the trial court shall impanel a new jury for the hearing.
(Emphasis added.)
{1 73} In this case, error occurred during voir dire, and the sentence of death was not reversed “because of error that occurred in the sentencing phase of the trial.” Based on the plain language of the statute as informed by the rule of lenity,
The Sixth Circuit‘s Opinion
{1 74} The Sixth Circuit Court of Appeals vacated White‘s sentence of death based on error during the jury-selection phase of the trial because the trial court had not dismissed a juror who was biased. The court found that “juror Sheppard was unable to ‘lay aside [her] impression or opinion and render a verdict based on the evidence presented in court.‘” (Brackets sic.) White v. Mitchell, 431 F.3d 517, 542 (6th Cir.2005), quoting Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961).
{1 75} No one has disputed that this error occurred during voir dire, a portion of the proceedings that is separate from the “trial phase” and “sentencing phase” of capital case proceedings. See, e.g., State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596 (separate analysis of voir dire, trial phase, and sentencing phase); State v. Gumm, 73 Ohio St.3d 413, 417, 653 N.E.2d 253 (1995) (describing separation of guilt phase from sentencing phase of capital trial); State v. Biros, 78 Ohio St.3d 426, 443, 678 N.E.2d 891 (1997) (
{1 76} The voir dire error in White‘s case did not occur in the sentencing phase.
The Meaning of the Statute
{1 77} We have previously considered the import of the phrase “error that occurred in the sentencing phase of the trial,” which appears in
{1 78} The majority acknowledges that State v. Penix, 32 Ohio St.3d 369, 513 N.E.2d 744 (1987), limited resentencing to penalties other than death “following vacation of the death sentence due to error occurring at the penalty phase of the proceeding.” (Emphasis added.) Id. at syllabus. The Penix rule was favorable to the accused in that death could not be imposed after a remand. As amended,
{1 79} The majority “infers” that the General Assembly intended this statute to apply to all capital offenders whose convictions are upheld but whose death sentences were set aside. Majority opinion at ¶ 22. But it is well accepted in determining legislative intent that a court must first look to the language of the statute itself. Provident Bank v. Wood, 36 Ohio St.2d 101, 105, 304 N.E.2d 378 (1973). “If the meaning of the statute is unambiguous and definite, it must be applied as written and no further interpretation is necessary.” State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996). It is also well settled that to determine the intent of the General Assembly, “[i]t is the duty of this court to give effect to the words used [in a statute], not to delete words used or to insert words not used.” (Emphasis
{1 80} Bearing these principles in mind, it is improper for this court to insert words into a clear statute.
The Rule of Lenity
{1 81} With respect to criminal statutes, there is an additional concern. Even if there were an ambiguity, meaning two reasonable ways of reading the statute,
{1 82} We applied this rule in a case in which we were asked to consider whether a juvenile who was charged with aggravated murder and an aggravating-circumstances specification but was ineligible for the death penalty due to age was entitled to the additional rights afforded to capital defendants. State v. Harwell, 102 Ohio St.3d 128, 2004-Ohio-2149, 807 N.E.2d 330. The state relied upon dicta from this court that ”
{1 83} In my view, this is exactly what the majority has done in affirming the judgment of the court of appeals.
{1 84} In another case, we vacated one of two death penalties because of a voir dire error and returned the matter to the trial court for resentencing. State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 178. Although we upheld the aggravated-murder conviction and specification in Jackson, because the trial court abused its discretion by refusing defense counsel‘s requests to advise prospective jurors that one of the murdered victims was a three-year-old child and by refusing to allow voir dire on possible bias stemming from that fact, we remanded the cause for “resentencing consistent with
{1 85} Upon remand, the trial court concluded that amended
Certainly, paragraph (B) does not clearly apply. Paragraph (B) applies when a sentence of death is set aside, nullified, or vacated “because of error that occurred in the sentencing phase of the trial and if division (A) of this section does not apply.” If the error occurred during voir dire, which was before the sentencing phase, the error could not have occurred during the sentencing phase.
(Emphasis sic.) State v. Jackson, Allen C.P. No. CR-2002-0011, at 4 (Nov. 21, 2006).
{1 86} The trial court concluded that
under
R.C. 2929.06(A) , a resentencing hearing is necessary wherein the Court shall impose upon the offender one of the sentences of life imprisonment that are available under division (D) of section 2929.03 * * * at the time the offender committed the offense for which the sentence of death was imposed.
Id. at 6. I believe that the trial court in Jackson correctly read the statute as it was written.
{1 87} The date of White‘s offense was January 19, 1996. We have held that
PFEIFER, J., concurs in the foregoing opinion.
Ramona Francesconi Rogers, Ashland County Prosecuting Attorney, and Paul T. Lange, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Nathan A. Ray and Randall L. Porter, Assistant Public Defenders, for appellant.
Law Offices of Michael J. Benza and Michael J. Benza, urging reversal for amicus curiae Ohio Association of Criminal Defense Lawyers.
Carrie L. Davis and James L. Hardiman, urging reversal for amicus curiae American Civil Liberties Union of Ohio Foundation.
Ron O‘Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Chief Counsel, Appellate Division, urging affirmance for amicus curiae Franklin County Prosecuting Attorney Ron O‘Brien.
Michael DeWine, Attorney General, Alexandra T. Schimmer, Chief Deputy Solicitor General, and Emily S. Schlesinger, Deputy Solicitor, urging affirmance for amicus curiae Ohio Attorney General.