The Court will not reopen the appeal of a man sentenced to death for the murder of a Hamilton County girl whose body was found in Indiana.

The Court will not reopen the appeal of a man sentenced to death for the murder of a Hamilton County girl whose body was found in Indiana.

The Supreme Court of Ohio today rejected a request to reopen the appeal of a man sentenced to death for the 1991 murder of a 10-year-old Hamilton County girl whose body was found across the border in Indiana.

In a 6-1 decision, the Supreme Court declined to address Jeffrey Wogenstahl’s claim that the law subjecting him to trial in Ohio was unconstitutional, noting that he had failed to raise the issue years ago. The Court also stated that it had already addressed the constitutionality of the law in a 2017 review of Wogenstahl’s conviction. The decision affirmed the First District Court of Appeals’ ruling denying Wogenstahl’s 2023 application to reopen his direct appeal.

Writing for the Court majority, Chief Justice Sharon L. Kennedy explained that Wogenstahl had been convicted in 1993, and the First District affirmed that conviction in 1994. Any request to reopen the appeal after February 1995 required Wogenstahl show “good cause” for the delay.

In his 2023 request, Wogenstahl cited issues raised by the Supreme Court’s 5-2 decision in 2017. A concurring opinion had questioned the constitutionality of R.C. 2901.11(D), which allowed Wogenstahl to be tried in Hamilton County. Chief Justice Kennedy wrote that Wogenstahl has not given any justification for waiting six years to seek to reopen his appeal.

“Wogenstahl had ample opportunity to challenge the constitutionality of R.C. 2901.11(D) before now but failed to do so in a timely manner,” she wrote.

Justices Michael P. Donnelly and Melody Stewart joined Chief Justice Kennedy’s opinion. Justices Patrick F. Fischer, R. Patrick DeWine, and Joseph T. Deters did not participate in the case.

Three assigned judges joined the opinion: Fifth District Court of Appeals Judge Andrew J. King; Eleventh District Court of Appeals Judge Eugene A. Lucci; and Third District Court of Appeals Judge Juergen A. Waldick.

Judge Lucci also wrote a concurring opinion in which he analyzed the constitutionality of R.C. 2901.11(D), which has been revised since Wogenstahl’s conviction. He concluded the law at the time of the trial did not violate Wogenstahl’s constitutionally protected due process rights. Justice Donnelly joined Judge Lucci’s concurrence.

In a dissenting opinion, Justice Jennifer Brunner noted it was the Supreme Court that raised the issue of the statute’s constitutionality in its 2017 opinion. She wrote it is “particularly incumbent” on the Court to examine the issue of whether the trial court had jurisdiction to hear Wogenstahl’s case, especially since it was a death penalty case. While she appreciated Judge Lucci’s analysis, Justice Brunner wrote that Wogenstahl should be able to present his own research and analysis to the Court.

“The sum and substance of Wogenstahl’s arguments have yet to be heard: neither the constitutionality of former R.C. 2901.11(D) nor the effectiveness of Wogenstahl’s counsel for failing to raise the claim has even been litigated or reviewed,” she wrote.

Trial Location Questioned
In November 1991, a 10-year-old child was taken from her home in Harrison, Ohio. Her body was discovered days later about four miles across the state line in Bright, Indiana. In 1993, Wogenstahl was convicted in the Hamilton County Common Pleas Court of kidnapping and murdering the child and sentenced to death.

Wogenstahl has made several attempts to overturn his convictions and sentence in state and federal courts. In 2015, the Supreme Court accepted his application to reopen his appeal. Wogenstahl presented three legal arguments to overturn his conviction, including that the prosecutor had to prove beyond a reasonable doubt that the trial court had jurisdiction to hear the case. Failing to do that violated his rights under the U.S. Constitution to a fair trial and due process, he asserted.

Wogenstahl had argued that the prosecution never established that the victim was murdered in Ohio, and for that reason he could not be tried for her murder in Ohio. In the 2017 decision, the Court determined that the trial record did not establish in which state the child was murdered. It therefore applied R.C. 2901.11(D) as it was worded at the time of the murder to hold that the trial court did have jurisdiction to try Wogenstahl.

R.C. 2901.11(D) stated, “When an offense is committed under the laws of this state, and it appears beyond a reasonable doubt that the offense or any element thereof took place either in Ohio or in another jurisdiction or jurisdictions, but it cannot reasonably be determined in which it took place, the offense or element is conclusively presumed to have taken place in this state for purposes of this section.”

In a concurring opinion in 2017, former Justice Judith L. French questioned the law’s requirement that an offense in an unknown location was “conclusively presumed” to take place in Ohio. She noted that the law may be unconstitutional.

Offender Pursued More Appeals
Citing the concurring opinion, Wogenstahl asked the Supreme Court to reconsider his case. The Court refused. He filed two motions with the Supreme Court in 2018, asking for the right to challenge the constitutionality of R.C. 2901.11(D). The motions were denied. He petitioned the U.S. Supreme Court in 2018 to hear the same constitutional arguments, but it rejected the request.

In January 2023, nearly 30 years after his direct appeal had been decided, Wogenstahl again turned to the First District to reopen his appeal. He argued that he met the requirement to show good cause for the delay because his challenge to the trial court’s jurisdiction to hear the case could be raised at any time, so that his delay in presenting the issue was justified.

The First District denied his application, concluding that he waited too long to try to reopen his appeal. The appellate court also ruled that the question about the trial court’s jurisdiction was barred by the doctrine of res judicata, which means a court had already decided the issue in the past, so that Wogenstahl could not challenge it again.

Wogenstahl appealed the First District’s decision to the Supreme Court, which was required to hear the case.

Supreme Court Analyzed Delayed Appeal
Chief Justice Kennedy explained that a defendant in a criminal case may apply to reopen an appeal based on a claim of ineffective assistance of appellate counsel within 90 days of the appellate court’s decision. If an application to reopen is filed after 90 days, then the defendant must show good cause for filing at a later time.

The opinion noted that Wogenstahl’s most recent application to reopen his appeal had been filed nearly 30 years after the First District upheld his conviction in 1994, and he therefore had to establish good cause for the delayed filing in 2023.

Wogenstahl challenged the constitutionality of R.C. 2901.11(D) in motions filed in the Supreme Court in 2017 and 2018 without attempting to reopen his appeal, the opinion stated, and he gave no explanation as to why he waited so long to apply for reopening in the First District. The Court stated that even if he had good cause for the delay when he first recognized the argument that R.C. 2901.11(D) was unconstitutional in 2017, that good cause “has long since evaporated,” the Court concluded.

The Court also found the doctrine of res judicata applied because Wogenstahl had challenged the statute a number of times, but “he was just unsuccessful.”

Jurisdiction Law Constitutional, Concurrence Maintained
In his concurrence, Judge Lucci analyzed the constitutionality of the jurisdiction law and found that the trial court was within its right to hear Wogenstahl’s case. The trial court would not be able to consider the case if the acts that caused the child’s death or the death itself occurred outside Ohio, he wrote. But in this case, no side was able to definitively determine the location of the fatal act or where death took place.

An Ohio court can try the case if the fatal blow was struck in Ohio and the child survived long enough to die in Indiana, the concurrence stated. The evidence did not establish beyond a reasonable doubt that the act causing her death occurred in Indiana, so the Ohio court could hear the case, Judge Lucci concluded.

Supreme Court Should Address Law, Dissent Asserted
Because Wogenstahl received the death penalty, the Court should not rely on procedural flaws in his filing to avoid addressing directly whether R.C. 2901.11(D) was constitutional, Justice Brunner wrote. Neither Wogenstahl’s trial lawyer nor the attorney who represented him in his 1994 appeal questioned whether Ohio had jurisdiction to charge him with murder. In 2015, Wogenstahl argued that another portion of the jurisdiction law, R.C. 2901.11(B), prohibited him from being tried in Ohio, and the Court rejected that claim, the dissent noted.

Justice Brunner noted two dissenting judges in the 2017 decision found that Wogenstahl could not be tried for murder in Ohio, but he could be tried in Indiana. That was in addition to former Justice French questioning the constitutionality of R.C. 2901.11(D), the dissent stated.

If Wogenstahl is correct, his sentence would be vacated, the dissent maintained. The Court should conduct a thorough analysis of the law, the dissent asserted.

“But if Wogenstahl’s death sentence is premised on a wrongful conviction, we cannot and should not blindly ignore his claim simply because of lapsed time and opportunities missed,” the dissent concluded.

2023-0945. State v. Wogenstahl, Slip Opinion No. 2024-Ohio-4714.

View oral argument video of this case.

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