[This decision has been published in Ohio Official Reports at
91 Ohio St.3d 1268.]
THE STATE OF OHIO, APPELLEE, v. SCOTT, APPELLANT.
[Cite as State v. Scott, 2001-Ohio-111.]
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.
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{¶ 1} Upon consideration of the jurisdictional memoranda filed in this case,
the court hereby allows the appeal.
{¶ 2} Upon consideration of appellant’s motion for stay of execution
scheduled for May 15, 2001, pending consideration of Scott’s competency to be
executed,
{¶ 3} IT IS ORDERED by the court that the motion for stay be, and hereby
is, denied.
{¶ 4} 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.
{¶ 5} 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.
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DOUGLAS, J., dissenting.
SUPREME COURT OF OHIO
{¶ 6} Believing that the statute, R.C. 2949.28(A) and (B)(1), was never
properly invoked in that there was never any supporting 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.
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COOK, J., dissenting.
{¶ 7} 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.
{¶ 8} 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
{¶ 9} 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
{¶ 10} 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.
{¶ 11} 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).
{¶ 12} 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.”
{¶ 13} 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.)
{¶ 14} 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.
{¶ 15} 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.
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January Term, 2001
Scott’s own memorandum in support of jurisdiction admits that “[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.
{¶ 16} 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.
{¶ 17} I would therefore deny leave to appeal and deny Scott’s motion for
a stay.
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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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