At the request of the Cuyahoga County prosecutor , the Ohio Supreme Court today blocked a jury  from resentencing a Cleveland man previously sentenced to death. Instead, the high court required a three-judge panel to decide his fate.

In a per curiam opinion, the Supreme Court held that Cuyahoga County Common Pleas Judge Cassandra Collier-Williams “patently and unambiguously” lacked the authority to empanel a jury to conduct a resentencing hearing for Kelly Foust. Foust was convicted of the 2001 murder of a 54-year-old man and the rape and attempted murder of the man’s 17-year-old daughter.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Judith L. French, Patrick F. Fischer, and Mary DeGenaro joined the opinion. Justices Sharon L. Kennedy and R. Patrick DeWine concurred in judgment only without a written opinion.

Convict Earns New Trial
In 2001, Foust was indicted on six counts of aggravated murder and 20 other felony counts. Foust waived his right to a jury. A three-judge panel convicted him of most of the charges, including five with death-penalty specifications. Following a mitigation hearing, the panel sentenced him to death. The Ohio Supreme Court affirmed his conviction in 2004.

Foust sought a writ of habeas corpus in federal court. In 2011, the Sixth Circuit U.S. Court of Appeals ruled that the performance of Foust’s trial attorneys was ineffective and vacated Foust’s death sentence. The federal appeals court remanded his case to state court for a new penalty phase of his capital trial.

The county prosecutor asked the trial court to find that since Foust waived his right to a jury trial when the case began, the resentencing should take place before a judicial panel. Judge Collier-Williams agreed. About a month later, Foust requested a hearing by a jury, which Collier-Williams rejected, and set an April 2013 sentencing date before a panel. The hearing was postponed numerous times.

Death Penalty Proceedings Questioned
In 2017, Foust filed a “renewed” request to have his case heard by a jury based on the U.S. Supreme Court’s 2016 decision in Hurst v. Florida, which found that a jury in capital cases must determine every fact necessary to impose a death sentence. He also argued that under the Ohio Supreme Court’s 2014 State v. Davis decision, Foust had the right to withdraw his jury waiver and receive a new mitigation hearing by a jury.

Judge Collier-Williams agreed that, based on the two decisions, Foust had a right guaranteed by the U.S. Constitution’s Sixth Amendment to have a jury make specific findings to impose a death sentence.

Cuyahoga County Prosecuting Attorney Michael O’Malley then sought writ of prohibition and  mandamus from the Supreme Court, arguing that Collier-Williams lacked jurisdiction to empanel a jury for Foust’s capital resentencing hearing.  The Court agreed, explaining that under Ohio law, once a capital defendant waives the right to a jury trial, that waiver remains valid and requires resentencing by a three-judge panel.

Court Clarifies Jurisdiction
Judge Collier-Williams argued she had jurisdiction over the matter under R.C. 2931.03, which gives all Ohio common pleas courts “original jurisdiction of all crimes and offenses.” The Supreme Court’s opinion stated that contrary to the judge’s claim, when a more specific statute specifies jurisdiction, it takes precedent over general laws.

“When a capital offender’s death sentence is invalidated by a federal or state court and a resentencing ordered, R.C. 2929.06(B) controls. That provision states, ‘If the offender was tried by a jury, the trial court shall impanel a new jury for the hearing. If the offender was tried by a panel of three judges, that panel or, if necessary, a new panel of three judges, shall conduct the hearing,’ ” the opinion stated.

The opinion also clarified that the Ohio Supreme Court has rejected arguments made in other cases that theU.S. Supreme Court’s Hurst decision invalidated Ohio’s death penalty sentencing scheme. The Court stated that it ruled in its 2014 State v. Belton case that Hurst does not require a jury to conduct a death penalty hearing when a defendant waived the right to trial by jury.

Judge Collier-Williams argued the Belton decision does not apply in Foust’s case because she permitted Foust to withdraw his jury waiver based on his Sixth Amendment rights. The Court ruled that under R.C. 2945.05, Foust could only withdraw his waiver before his trial started, and there is no authority in state law that would allow him to withdraw his waiver after his conviction and sentence.

The Court ordered the judge to vacate her entry granting the jury hearing and directed her to schedule a judicial panel hearing.

2017-0346. State ex rel. O’Malley v. Collier-Williams, Slip Opinion No. 2018-Ohio-3154.

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