State v. Scott - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State v. Scott, 91 Ohio St.3d 1268, 2001-Ohio-111.]

THE STATE OF OHIO, APPELLEE, v. SCOTT, APPELLANT.
[Cite as State v. Scott (2001), 91 Ohio St.3d 1268.]
Criminal law -- Aggravated murder -- R.C. 2949.28 -- Defendant appeals denial
of his claim that his severe mental illness precludes carrying out death
sentence -- Discretionary appeal allowed -- Stay denied.
(No. 01-807 -- Submitted and decided April 30, 2001.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 79506.
__________________

Upon consideration of the jurisdictional memoranda filed in this case, the
court hereby allows the appeal.

Upon consideration of appellant's motion for stay of execution scheduled
for May 15, 2001, pending consideration of Scott's competency to be executed,

IT IS ORDERED by the court that the motion for stay be, and hereby is,
denied.

IT IS ORDERED by the court, sua sponte, that the Clerk of the Court of
Appeals for Cuyahoga County shall transmit the record by May 4, 2001.

IT IS FURTHER ORDERED by the court, sua sponte, that the parties file
their merit briefs no later than May 8, 2001. No responsive briefs shall be filed.

MOYER, C.J., RESNICK, F.E. SWEENEY and LUNDBERG STRATTON, JJ.,
concur.

PFEIFER, J., dissents in part because he would grant the motion for stay.

DOUGLAS, J., dissents.

COOK, J., dissents.
__________________

DOUGLAS, J., dissenting. Believing that the statute, R.C. 2949.28(A) and
(B)(1), was never properly invoked in that there was never any supporting

SUPREME COURT OF OHIO
information that would warrant a suggestion of insanity of Jay D. Scott, it is my
opinion that the trial court never had appropriate jurisdiction. Accordingly, any
appeal to the court of appeals was likewise not proper and since that court had no
jurisdiction, there was nothing to appeal to this court wherein our jurisdiction
could properly be invoked. Because the majority finds otherwise, I respectfully
dissent.
__________________

COOK, J., dissenting. I respectfully disagree with the majority's decision
to allow Scott's appeal and to impose an expedited briefing schedule. This
court's review at this stage is discretionary, and I would not exercise that
discretion in this case.

Today's decision is flawed in two respects. First, by permitting expedited
consideration of this cause, the majority sets in place an unwarranted procedural
scheme. Second, the majority has erroneously accepted jurisdiction over issues
that cannot be addressed on the merits.
I

As a threshold matter, the majority provides no explanation for its decision
to impose an expedited briefing schedule. If a majority of this court deems
Scott's propositions of law sufficiently meritorious to warrant review (which I do
not, for the reasons discussed infra), it is not clear why it chooses to deviate from
our usual procedures. An order requiring simultaneous briefing to be completed
just one week before Scott's scheduled execution date provides this court with an
unnecessarily limited opportunity to assess Scott's claims. Though our rules of
practice provide for expedited consideration of election matters, S.Ct.Prac.R.
X(9), or appeals involving termination of parental rights or adoption, S.Ct.Prac.R.
VI, our rules contain no provision for expedited consideration of death penalty
cases.
II
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January Term, 2001

On April 10, 2001, Scott filed in the trial court an R.C. 2949.28 "Notice of
Apparent Insanity and, in the Alternative, His Motion for a Judicial Determination
that It Violates the Ohio and United States Constitutions to Execute a Person with
a Diagnosed Severe Mental Illness." R.C. 2949.28, however, does not provide a
proper procedural vehicle through which Scott can challenge the constitutionality
of executing an individual who has been diagnosed with a severe mental illness
such as schizophrenia. Instead, R.C. 2949.28 only provides a vehicle through
which an individual sentenced to death can contest the execution of that sentence
when he or she is insane as defined in R.C. 2949.28(A). The statutory scheme
neither provides a movant with the ability to assert alternative constitutional
arguments nor empowers the trial court to address such arguments.

But construing the dual nature of Scott's filing in a light most favorable to
him, his alternative motion to declare unconstitutional the Ohio death penalty
scheme as applied to severely mentally ill individuals is in truth a petition for
postconviction relief. This court has previously held that "[w]here a criminal
defendant, subsequent to his or her direct appeal, files a motion seeking vacation
or correction of his or her sentence on the basis that his or her constitutional rights
have been violated, such a motion is a petition for postconviction relief as defined
in R.C. 2953.21." State v. Reynolds (1997), 79 Ohio St.3d 158, 679 N.E.2d 1131,
syllabus. In this instance, Scott in effect argues that his status as a severely
mentally ill individual warrants correction of his sentence. And because Scott has
previously filed a postconviction relief petition, this court must construe his filing
as a successive postconviction relief petition under R.C. 2953.23(A).

R.C. 2953.23(A)(1) provides that "a court may not entertain * * * a second
petition or successive petitions" unless "[e]ither of the following applies":

"(a) The petitioner shows that the petitioner was unavoidably prevented
from discovery of the facts upon which the petitioner must rely to present the
claim for relief.
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SUPREME COURT OF OHIO

"(b) Subsequent to the period prescribed in division (A)(2) of section
2953.21 of the Revised Code or to the filing of an earlier petition, the United
States Supreme Court recognized a new federal or state right that applies
retroactively to persons in the petitioner's situation, and the petition asserts a
claim based on that right."

Additionally, Scott must also satisfy R.C. 2953.23(A)(2), which provides:

"The petitioner shows by clear and convincing evidence that, but for
constitutional error at trial, no reasonable factfinder would have found the
petitioner guilty of the offense of which the petitioner was convicted or, if the
claim challenges a sentence of death that, but for constitutional error at the
sentencing hearing, no reasonable factfinder would have found the petitioner
eligible for the death sentence." (Emphasis added.)

At a minimum, Scott has failed to satisfy R.C. 2953.23(A)(2), because he
does not allege a constitutional error that occurred at trial. Instead, the gravamen
of his argument is that, because he was subsequently diagnosed as schizophrenic
following trial, it is unconstitutional to carry out his sentence of death. Scott's
failure to satisfy R.C. 2953.23(A)(2) would render moot any analysis of Scott's
ability to satisfy the (A)(1) factors.

Scott arguably tries to overcome the (A)(2) procedural hurdle by arguing
that evidence of his mental illness was not presented to the jury, thereby
"cast[ing] a dark shadow over the death sentence that was imposed." Scott thus
implies that the jury may not have sentenced him to death had it known of his
schizophrenia. Assuming arguendo that this allegation satisfies R.C.
2953.23(A)(2) by raising a defect "at the sentencing hearing," his successive
postconviction relief petition is still procedurally barred for its failure to satisfy
R.C. 2953.23(A)(1)(a) or (b). Scott would not satisfy (A)(1)(a) because he cannot
establish that he was "unavoidably prevented" from discovering his
schizophrenia. Scott's own memorandum in support of jurisdiction admits that
4

January Term, 2001
"[o]ne prison doctor suggested way back in 1974, nine years before the Vinnie
Prince murder, that Mr. Scott `apparently is psychotic and should perhaps be
diagnosed as a chronic schizophrenic.' " And Scott fails to satisfy (A)(1)(b)
because he makes no argument that the United States Supreme Court has
recognized a new federal or state right that applies retroactively to him. Indeed,
Scott seeks a new Eighth Amendment rule in this very case, based on what he
perceives as "evolving standards of decency" and/or an analogy between his
condition and mental retardation.

Accordingly, by accepting jurisdiction over Scott's propositions of law--
propositions that raise his constitutional arguments--this court has accepted
jurisdiction over issues that cannot be addressed on the merits. Scott's
constitutional arguments were not properly before the trial court, were not
properly before the court of appeals, and cannot be properly before this court.

I would therefore deny leave to appeal and deny Scott's motion for a stay.
__________________

Betty D. Montgomery, Attorney General, David M. Gormley, State
Solicitor, James V. Canepa, Assistant Attorney General; William D. Mason,
Cuyahoga County Prosecuting Attorney, and L. Christopher Frey, Assistant
Prosecuting Attorney, for appellee.

Gold, Schwartz & Co., L.P.A., and John S. Pyle; Law Office of Timothy
Farrell Sweeney and Timothy F. Sweeney, for appellant.
__________________
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