State v. Powell

[Cite as State v. Powell, 

.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                    Court of Appeals Nos. L-18-1194
                                                                       L-18-1195
        Appellee
                                                 Trial Court No. CR0200603581
v.

Wayne Powell                                     DECISION AND JUDGMENT

        Appellant                                Decided: October 18, 2019

                                             …

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Timothy Young, Ohio Public Defender, Bethany L. O’Neill and
        Erika M. LaHote, Assistant Public Defenders, for appellant.

                                             …

        MAYLE, P.J.

        {¶ 1} In this consolidated appeal, defendant-appellant, Wayne Powell, appeals two

separate orders of the Lucas County Court of Common Pleas, dated August 16, 2018.

The trial court denied Powell’s motion for funds to hire experts in support of his amended

postconviction petition, and denied his motion for a new mitigation trial. For the reasons

that follow, we affirm.
                          I. Facts and Procedural Background

       {¶ 2} On November 22, 2006, Powell was indicted on one count of aggravated

arson, ten counts of aggravated murder, and 26 capital specifications. The charges arose

out of an arson fire at a two-story house in Toledo, Ohio, that killed four people.

       {¶ 3} Before the trial, Powell requested and received funding for various experts.

Specifically, the trial court authorized the payment of $1,000 for a fire investigator;

$2,500 for private investigators; $2,500 for a psychologist; $2,000 for an audio expert;

and $2,500 for a mitigation specialist from the Ohio Public Defender’s office. In each of

these orders, the trial court stated that defense counsel could petition the court “if further

funds become necessary.”

       {¶ 4} The trial began on August 10, 2007. Eleven days later, the jury returned a

verdict finding Powell guilty of all charges, including the 26 specifications listed in the

indictment. The court merged the ten aggravated murder counts into four counts―one

for each victim―with each of their specifications in tandem.

       {¶ 5} The court proceeded to the sentencing/mitigation phase on August 22, 2007.

Powell waived his right to a presentence investigation and report, his right to have the

court perform a psychological investigation, and his right to make a statement on his own

behalf. Although Powell presented several witnesses in mitigation, including Powell’s

family members, a juvenile probation officer, and a psychologist, the jury unanimously

found that the aggravating circumstances proven at trial (referred to as specifications in

the indictment) outweighed the mitigating factors presented during the sentencing phase.




2.
As a result, the jury recommended a death sentence for each of the four aggravated

murder convictions.

       {¶ 6} After receiving this recommendation from the jury, the trial court also found

beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating

factors. The court stated these findings in its death penalty order on September 13, 2007,

followed by a judgment entry on September 26, 2007, sentencing Powell to death.

       {¶ 7} Powell filed a direct appeal with the Supreme Court of Ohio in November

2007. On June 30, 2008, he filed a petition for postconviction relief, and on July 14,

2008, he filed a motion for funds to hire a substance-abuse expert in support of his

postconviction petition. The postconviction petition and corresponding motion for expert

funds were held in abeyance until the Supreme Court of Ohio decided his direct appeal.

On June 13, 2012, the Supreme Court affirmed Powell’s convictions and death sentences.

State v. Powell, 

, 

, 

.

       {¶ 8} On October 13, 2016, with leave of court, Powell filed an amended petition

for postconviction relief, in which he asserts 39 separate claims for relief. In his

amended petition, Powell claims, among other things, that his postconviction

investigation has revealed that the state’s evidence of arson was scientifically flawed,

alternate suspects existed and should have been investigated, and his defense counsel

failed to present all mitigating factors pertinent to his case.

       {¶ 9} That same day, Powell filed a motion for leave to conduct discovery and an

amended motion for funds to hire experts in support of his amended petition. In his




3.
motion for discovery, Powell sought leave to serve various subpoenas duces tecum,

stating that “[m]odern fire science methodology and the scientific method demonstrate

that Powell’s verdict and death sentence were premised on unreliable and unchallenged

fire evidence purporting to be based in science but which we now know is scientifically

invalid.”

       {¶ 10} In his amended motion for expert funds, Powell requested funds to hire a

substance-abuse expert, a psychologist, a neuropsychologist, and a mitigation

investigator. The motion asserts that “Powell’s counsel were ineffective for failing to

request funding for and obtaining expert assistance regarding Powell’s substance abuse

and the neuropsychological effect it had on Powell.” Powell also argued that, because the

trial court had found him to be indigent at the time of trial, he had a right to court-

appropriated funding to retain experts on this issue and “such expert assistance was

necessary and available at the time of Powell’s capital trial.”

       {¶ 11} The state filed a response to the amended motion for funds on

December 12, 2016. The state argued that Powell did not have a right to expert

assistance in his postconviction proceedings, and that the anticipated subject matter of the

experts’ testimony was barred by res judicata.

       {¶ 12} On January 12, 2017, Powell filed a motion for leave to file a motion for a

new mitigation trial pursuant to Crim.R. 33 and Hurst v. Florida, ___ U.S. ___, 

, 

 (2016). Powell argued that he was sentenced to death under a

statutory scheme that, pursuant to the subsequent pronouncement of the Supreme Court




4.
of the United States in Hurst, violates the Sixth and Fourteenth Amendments to the U.S.

Constitution.

       {¶ 13} On November 29, 2017, Powell filed supplemental memoranda relating to

his motion for discovery and his motion for funds to hire experts. Through this filing,

Powell notified the court of two recent developments. First, R.C. 2953.21 was amended

to allow a petitioner to seek leave of court to conduct discovery in a postconviction

review of a capital case. Second, Crim.R. 42 was enacted and includes a provision that

authorizes trial courts to appoint experts for indigent defendants in capital postconviction

proceedings.

       {¶ 14} On August 16, 2018, the trial court decided Powell’s outstanding motions.

The trial court granted Powell’s motion for leave to file a motion for a new mitigation

trial―finding that the motion for new mitigation trial was filed within a reasonable time

after Hurst was decided―but it denied the motion on its merits, concluding that Hurst

does not render Ohio’s death penalty statutes unconstitutional.

       {¶ 15} The trial court also denied Powell’s motion for funds to hire experts,

finding that Powell “fail[ed] to make a showing that he is entitled to funds for experts

which is outside the contemplation of Ohio’s post-conviction statutes. For this reason, in

addition to those noted by the State in its opposition, Defendant’s motion for funds is not

well-taken and denied.”

       {¶ 16} The trial court reserved judgment on Powell’s motion to conduct discovery,

and asked for additional briefing relating to the recent amendments to R.C.




5.
2953.21(A)(1)(d) that now permit discovery in postconviction reviews of capital cases

“for good cause shown.”

       {¶ 17} Powell then appealed the trial court’s denial of his motion for expert funds

and motion for new mitigation trial. Powell’s amended petition for postconviction relief,

and motion to conduct discovery, remain pending in the trial court.

                                   II. Law and Analysis

       {¶ 18} On appeal, Powell claims two assignments of error:

              Assignment of Error No. I. The trial court erred when it denied

       Powell’s motion for funds to hire experts.

              Assignment of Error No. II. The trial court erred when it denied

       Powell’s motion for a new mitigation trial.

       {¶ 19} In his first assignment of error, Powell claims that the trial court abused its

discretion when it denied his amended motion for funds to hire experts in support of his

amended postconviction petition. Powell argues that the trial court improperly denied the

motion―without making any factual findings related to its merits―under the mistaken

belief that indigent defendants in capital cases are not entitled to court-appointed experts

in postconviction proceedings under Ohio law. Powell claims that the trial court

overlooked the July 1, 2017 amendments to Crim.R. 42, which recognize the authority of

trial courts to appoint experts for indigent defendants in postconviction reviews of a




6.
capital case.1 Specifically, Crim.R. 42(E)(1) now provides that “[t]he trial court is the

appropriate authority for the appointment of experts for indigent defendants in all capital

cases and in post-conviction review of a capital case.” (Emphasis added.) Powell also

argues that he has a “particularly great” need for expert funding to assist with his

postconviction petition because “[t]he effects of multi-generational substance abuse

should have been thoroughly investigated and presented by a substance abuse expert at

trial but, due to counsel’s failures, it was not.”

       {¶ 20} In response, the state argues that we lack jurisdiction to consider this

assignment of error because the trial court’s order is not a “final order” under R.C.

2505.02. In the alternative, the state argues that the trial court properly denied Powell’s

motion because any issues relating to substance abuse are barred by res judicata and,

even if not barred, Powell did not provide any specifics regarding the identity, cost, and

qualifications of his proposed experts and “‘[a]bsent these specifics there is no abuse of

discretion to deny a defendant expert assistance.’ [State v.] Wolf, [

, 

 (11th Dist.1991)].”



1
  Powell’s postconviction proceeding was already pending at the time that the
amendments to Crim.R. 42 took effect on July 1, 2017. These amendments “govern all
proceedings in actions brought after they take effect and also all further proceedings in
actions then pending, except to the extent that their application in a particular action
pending when the amendments take effect would not be feasible or would work injustice,
in which event the former procedure applies.” Crim.R. 59(EE). The state does not offer
any reason why the application of these amendments to this proceeding would “not be
feasible or would work injustice,” nor do we see any reason why this exception should
apply in this case.




7.
       {¶ 21} In his reply brief, Powell argues that the trial court’s order is a “final order”

under R.C. 2505.02(B) and, regardless, the state “effectively ignores” the specific

language of Crim.R. 42(E)(4), which states that “[t]he appeal of an order regarding

appointment of experts shall be governed by App.R. 11.1,” and App.R. 11.1, which states

that “[i]n all capital cases, as defined in Crim.R. 42, the appeal of an order regarding

appointment of experts shall … be handled pursuant to an accelerated calendar under

this rule and local rules adopting an accelerated calendar.” Powell claims that even if the

order is not “final” under R.C. 2505.02(B), this court has jurisdiction to review the order

under Crim.R. 42(E) and App.R. 11.1. Powell argues that because “[t]he General

Assembly did not strike the new rules”―which were promulgated by the Supreme Court

of Ohio pursuant to its constitutional rulemaking authority under Article IV, Section 5(B)

of the Ohio Constitution―the General Assembly thereby implicitly conferred jurisdiction

to the courts of appeals via its failure to adopt a concurrent resolution of disapproval

before the amendments to Crim.R. 42 and App.R. 11.1 took effect.

       {¶ 22} As a threshold matter, we first determine whether we have jurisdiction to

review the trial court’s order denying Powell’s motion for expert funds.

     A. Our Jurisdiction is Limited to Review of “Judgments or Final Orders”

       {¶ 23} The jurisdiction of this court is governed by Article IV, Section 3(B)(2) of

the Ohio Constitution, which provides that “[c]ourts of appeals shall have such

jurisdiction as may be provided by law to review and affirm, modify, or reverse

judgments or final orders of the courts of record inferior to the court of appeals within the




8.
district ….” (Emphasis added.) The issue here is whether the trial court’s order

denying Powell’s motion for expert funding was a “final order.”

       {¶ 24} While Powell argues the trial court’s order is a “final order” under Crim.R.

42 and App.R. 11.1 because those procedural rules explicitly state that a defendant may

“appeal … an order regarding appointment of experts” in a postconviction review of a

capital case, a procedural rule cannot create jurisdiction that would be lacking under R.C.

2505.02, which defines “final order.” That is because R.C. 2505.02 is a jurisdictional

statute, and “‘[i]f the statute is jurisdictional, it is a substantive law of this state ….’”

Proctor v. Kardassilaris, 

, 

, 

,

quoting Akron v. Gay, 

, 

 (1976). As such, the

rights created by R.C. 2505.02―i.e., the jurisdictional right to appellate review of “final

orders” as defined by that statute―are “substantive rights” that, pursuant to Section 5(B)

of Article IV of the Ohio Constitution, cannot be abridged, enlarged, or modified by any

procedural rules. See Proctor at ¶ 18, quoting 

 (“‘If the statute is

jurisdictional, it is a substantive law of this state, and cannot be abridged, enlarged, or

modified by the Ohio Rules of Civil Procedure.’”).

       {¶ 25} Thus, to determine whether the trial court’s order is a “final order” subject

to immediate appellate review, we must look to the definition of “final order” provided

by the legislature in R.C. 2505.02(B), which states, in relevant part:




9.
              (B) An order is a final order that may be reviewed, affirmed,

       modified, or reversed, with or without retrial, when it is one of the

       following:

              (1) An order that affects a substantial right in an action that in effect

       determines the action and prevents a judgment;

              (2) An order that affects a substantial right made in a special

       proceeding or upon a summary application in an action after judgment;

              …

              (4) An order that grants or denies a provisional remedy and to which

       both of the following apply:

              (a) The order in effect determines the action with respect to the

       provisional remedy and prevents a judgment in the action in favor of the

       appealing party with respect to the provisional remedy.

              (b) The appealing party would not be afforded a meaningful or

       effective remedy by an appeal following final judgment as to all

       proceedings, issues, claims, and parties in the action.2


2
  “Final orders” also include orders that vacate or set aside a judgment, or grant a new
trial (R.C. 2505.02(B)(3)); orders that determine whether an action may or may not be
maintained as a class action (R.C. 2505.02(B)(5)); orders that determine the
constitutionality of certain specifically-identified amendments to the Ohio Revised Code
(R.C. 2505.02(B)(6)); and orders in an appropriation proceeding that may be appealed
pursuant to R.C. 163.09(B)(3) (R.C. 2505.02(B)(7)). We, however, do not analyze these
provisions of R.C. 2505.02(B) because, on their face, none of them apply to the trial court
order at issue.




10.
        1. The Order is not a “Final Order” Under R.C. 2505.02(B)(1) or (2)

       {¶ 26} Regarding R.C. 2505.02(B)(1) and (2), Powell argues that under the

amendments to Crim.R. 42, indigent defendants now have a “substantial right” to expert

funding in postconviction reviews of capital cases. As support, Powell points to Crim.R.

42(E)(1), which states that a trial court has the “authority” to appoint experts for indigent

defendants in postconviction reviews of capital cases; Crim.R. 42(E)(2), which provides

certain procedural mechanics that the court must follow when an indigent defendant

requests expert funding in such cases; and Crim.R. 42(E)(3), which states that “the trial

court shall decide the issue of appointment of experts” and other related issues, and

“shall make written findings as to the basis of any denial.” (Emphasis added.)

       {¶ 27} Before we analyze this issue, we briefly note―because the terminology is

confusingly similar―that a “substantial right” under R.C. 2505.02 is not necessarily a

“substantive right” under Section 5(B) of Article IV of the Ohio Constitution. A

“substantial right” is defined by R.C. 2505.02(A)(1) as “a right that the United States

Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure

entitles a person to enforce or protect.” (Emphasis added.) See also Chef Italiano Corp.

v. Kent State Univ., 

, 

 (1989). In other words, a

“substantial right” under R.C. 2505.02 is merely a legal right that may be enforced or

protected by law―including, but not limited to, a right created by “a rule of procedure.”

On the other hand, a “substantive right” under Article IV, Section 5(B) of the Ohio

Constitution “‘refers to common law, statutory and constitutionally recognized rights.’”




11.
Havel v. Villa St. Joseph, 

, 

, 

, ¶ 16,

quoting Krause v. State, 

, 

 (1972), overruled on other

grounds by Schenkolewski v. Cleveland Metroparks Sys., 

, 

 (1981). Thus, while a procedural rule can create “substantial rights” as defined by

R.C. 2505.02, a procedural “substantial right” cannot abridge, enlarge, or modify a

“substantive right” under Article IV, Section 5(B) of the Ohio Constitution.

       {¶ 28} Here, the relevant issue is whether the trial court’s order denying expert

funding to Powell in his postconviction proceeding affected a “substantial right” under

R.C. 2505.02. In postconviction relief proceedings, which are governed by statute, the

postconviction relief issues generally arise after the “substantial rights” of a defendant

have been determined, and are not final, appealable orders without statutory language

designating them as final. State v. Carter, 8th Dist. Cuyahoga No. 106690, 2018-Ohio-

4115, ¶ 14, citing State v. Cunningham, 8th Dist. Cuyahoga No. 85342, 

. R.C. 2953.23(B) provides that an order granting or denying a petition for

postconviction relief brought pursuant to R.C. 2953.21 is a final, appealable order. R.C.

2953.23(B) (“An order awarding or denying relief sought in a petition filed pursuant to

section 2953.21 of the Revised Code is a final judgment and may be appealed pursuant to

Chapter 2953. of the Revised Code.”). There is no specific language in the statute

addressing interlocutory appeals in postconviction relief proceedings.

       {¶ 29} Powell argues, however, that the recent amendments to Crim.R. 42 give

indigent defendants a “substantial right” to expert funding in postconviction reviews of




12.
capital cases. In response, the state argues that “[a]t best, Crim.R. 42 confers a right to

have the trial court consider a request for funding ….” We agree with the state. An

indigent defendant does not have a “substantial right” to receive expert funding in

postconviction reviews of capital cases under Crim.R. 42(E). Under the plain language

of this rule, a trial court is merely required to grant―or deny―an indigent defendant’s

request for expert funding in such cases pursuant to the specific directives of those

provisions. The rule does not create a “substantial right” to expert funding.

       {¶ 30} But, an indigent defendant does have a procedural “substantial right” under

Crim.R. 42(E) to have the trial court follow the process that is outlined in that rule when

considering a request for expert funding in a postconviction review of a capital case. See

R.C. 2505.02(A)(1) (a “substantial right” includes “a right that … a rule of procedure

entitles a person to enforce or protect.”). That is, under Crim.R. 42(E)(3),

              Upon establishing counsels’ respective compliance with discovery

       obligations, the trial court shall decide the issue of appointment of experts,

       including projected expert fees, the amount of time to be applied to the

       case, and incremental fees as the case progresses. The trial court shall

       make written findings as to the basis of any denial. (Emphasis added.)

       {¶ 31} Thus, after the trial court establishes that the parties have complied with

their respective discovery obligations,3 it must “decide the issue of appointment of


3
  Under Crim.R. 42(C), “the prosecuting attorney and the defense attorney shall, upon
request, be given full and complete access to all documents, statements, writings,




13.
experts” (including various subordinate issues if the funding request is granted) and, if

the request is denied, “make written findings as to the basis of any denial.” Crim.R.

42(E)(3).

       {¶ 32} Although Powell’s arguments focus almost exclusively on why he believes

the trial court erred by denying his request for funding, Powell also argues that the trial

court failed to follow Crim.R. 42(E)’s procedural mandate to “make written findings as

to the basis of any denial.” That is, in his appellate brief, Powell claims that the “trial

court’s unexplained denial of Powell’s funding request … constitutes a violation of

Powell’s due process guarantees.” We disagree. Although succinct, the trial court

explained its basis for denying Powell’s request for expert funding:

              Put simply, Defendant fails to make a showing that he is entitled to

       funds for experts which is outside the contemplation of Ohio’s post-

       convictions statutes. For this reason, in addition to those noted by the State




photographs, recordings, evidence, reports, or any other file material in possession of the
state related to the case …” except materials not subject to disclosure pursuant to
Crim.R. 16(J). Powell does not argue the trial court failed to “establish” the state’s
compliance with its Crim.R. 42(C) “discovery obligation” before ruling on his motion for
expert funding as required by Crim.R. 42(E)(3). Moreover, for the sake of clarity, we
note that Powell’s motion for leave to conduct discovery―which remains pending in the
trial court―seeks permission to conduct discovery under R.C. 2953.21(A)(1)(d), which
requires a showing of “good cause.” In addition, Powell’s pending discovery motion
seeks information relating to postconviction claims that pertain to the guilt phase of the
trial, whereas his motion for expert funding seeks assistance with postconviction claims
that pertain to mitigation issues. The pending discovery motion is therefore unrelated to
the motion for expert funding.




14.
       in its opposition, Defendant’s motion for funds is not well-taken and

       denied.

       {¶ 33} Given that the trial court complied with Crim.R. 42(E) by making “written

findings as to the basis of [its] denial,” the trial court’s order did not “affect a substantial

right” under R.C. 2505.02(B)(1) or (2) and we need not address the remaining elements

of a “final order” under those two provisions.

              2. The Order is a “Final Order” Under R.C. 2505.02(B)(4)

       {¶ 34} Under R.C. 2505.02(B)(4), an order is a “final order” if it “satisfies each

part of a three-part test ….” State v. Muncie, 

, 

(2001). That is, (1) the order must grant or deny a “provisional remedy”; (2) the order

must determine the action with respect to the “provisional remedy” and prevent judgment

in favor of the appealing party with respect to the “provisional remedy”; and (3) the

appealing party “would not be afforded a meaningful or effective remedy by an appeal

following final judgment as to all proceedings, issues, claims, and parties in the action.”

R.C. 2505.02(B)(4).

                       a. The Order Denies a Provisional Remedy

       {¶ 35} Although somewhat counterintuitive, “[t]he General Assembly expressly

defined a ‘provisional remedy’ as a type of proceeding. R.C. 2505.02(A)(3). An ‘order’

is thus properly understood as the mandate from the trial court that grants or denies the

particular relief at issue in that proceeding―not as the provisional remedy itself.”

(Emphasis sic.) 

. That is, “provisional remedy” is defined as




15.
              a proceeding ancillary to an action, including, but not limited to, a

       proceeding for a preliminary injunction, attachment, discovery of privileged

       matter, suppression of evidence, a prima-facie showing pursuant to section

       2307.85 or 2307.86 of the Revised Code, a prima-facie showing pursuant to

       section 2307.92 of the Revised Code, or a finding made pursuant to

       division (A)(3) of section 2307.93 of the Revised Code.

R.C. 2505.02(A)(3).

       {¶ 36} By its express terms, this list is “‘illustrative and not exhaustive.’” 

, quoting Boedeker v. Rogers, 

, 

 (8th

Dist.2000). Although the legislature did not define “a proceeding ancillary to an action”

in R.C. 2505.02, the Supreme Court of Ohio has defined “ancillary proceeding” as “‘one

that is attendant upon or aids another proceeding.’” In re A.J.S., 

,

, 

, quoting 

. “Attendant” means

“something that accompanies.” In re R.R., 

, 

, ¶ 27 (4th

Dist.), quoting https://www.merriam-webster.com/dictionary/attendant. See also Black’s

Law Dictionary 153 (10th Ed.2014) (defining “attendant” as “Accompanying; resulting

<attendant circumstances>.”)

       {¶ 37} In this case, we find that the procedure for the appointment of experts for

indigent defendants, as outlined in Crim.R. 42(E), is an “ancillary proceeding”―and,

therefore, a “provisional remedy”―because it is “attendant upon” and “aids” the

principal action (i.e., a postconviction review of a capital case). Absent this ancillary




16.
proceeding for the appointment of experts in postconviction reviews of capital cases, an

indigent defendant would not have the opportunity to develop his postconviction petition

with evidence dehors the record to the same extent that a non-indigent defendant would.

        {¶ 38} Accordingly, because the trial court’s order denies relief in an ancillary

proceeding, it satisfies the first prong of R.C. 2505.02(B)(4).

      b. The Order Determines the Action with Respect to the Provisional Remedy

        {¶ 39} The trial court’s order denying appellant’s motion for funding for experts

unquestionably determines the action with respect to the provisional remedy itself (i.e.,

Powell’s request for expert funding) and prevents a judgment in favor of the appellant on

this issue. The trial court’s order therefore satisfies the second step of the R.C.

2505.02(B)(4) analysis because “‘there was no further opportunity to petition the court

for the remedy being sought …,’” Muncie, 

, 

,

quoting Swearingen v. Waste Technologies Industries, 

, 

 (7th Dist.1999), and “there existed nothing further for the trial court to

decide with respect to the provisional remedy.” In re Special Docket No. 73958, 

, 

, 

, ¶ 29.

                  c. Powell cannot Obtain a Meaningful and Effective
                   Remedy through the Appeal of the Final Judgment

        {¶ 40} In determining whether an appeal after final judgment would afford a

meaningful or effective remedy, we must consider “whether there is a harm such that

appeal after final judgment would not rectify the damage.” (Internal quotations omitted.)




17.
In re D.H., 

, 

, 

. In other words,

“‘[t]he proverbial bell cannot be unrung ….’” Muncie at 451, quoting Gibson-Myers

& Assocs., Inc. v. Pearce, 9th Dist. Summit No. 19358, 

, *2 (Oct. 27,

1999).

         {¶ 41} The Supreme Court of Ohio has recognized, however, that the final prong

of R.C. 2505.02(B)(4) “allows for appeals when the need for immediate review

outweighs the substantial interest in avoiding piecemeal litigation.” In re Grand Jury

Proceeding of John Doe, 

, 

, 

, ¶ 22.

Thus, when determining whether an appellant will be able to obtain meaningful and

effective remedy through the appeal of the final judgment, “[t]he possibility of delayed

justice must be balanced against the principles of judicial economy.” Guerriero v. Dept.

of Rehab. & Corr., 11th Dist. Ashtabula No. 2001-A-0062, 

, ¶ 34 (Ford,

J., dissenting). In most circumstances, “[t]he passage of time will not render a future

appeal ineffective.” Thomasson v. Thomasson, 

, 

,

 (DeWine, J., dissenting), citing In re D.H. at ¶ 19.

         {¶ 42} In Thomasson, the court analyzed whether an order appointing a guardian

ad litem (“GAL”) to act on behalf of an adult, who had not been found incompetent,

during a divorce proceeding, was a final, appealable order.4 The court determined that



4
  Although Thomasson analyzed the issue with respect to whether “immediate review”
was required under R.C. 2505.02(B)(2), that analysis is virtually identical to the analysis
required under R.C. 2505.02(B)(4)(b).




18.
the divorce proceedings were statutory in nature and the trial court failed to make the

appropriate findings under Civ.R. 17, which requires that “[w]hen a minor or

incompetent person is not otherwise represented in an action the court shall appoint a

guardian ad litem or shall make such other order as it deems proper for the protection of

such minor or incompetent person.” 

. Therefore, the order violated

the adult’s due process rights because it “was not preceded by an adjudication of

incompetency, prior notice, and any opportunity to be heard on the issue.” Id. at ¶ 21.

       {¶ 43} As for the need for immediate review, the Thomasson court stated, “there

are occasions on which judicial economy tips the balance in favor of immediate review.”

(Emphasis added.) Id. at ¶ 33, citing Russell v. Mercy Hosp., 

, 

 (1984). Specifically, the court found that “[r]equiring [the adult] to wait to

appeal until after the divorce proceedings have concluded would require the appellate

court to construct a hypothetical proceeding to determine prejudice based on speculation

as to how [the adult’s] decisions might have differed from the decisions made by the

GAL.” 

 Therefore, the court made a very “narrow and limited holding” that “a trial

court’s order appointing a GAL to represent an adult in a divorce case is a final,

appealable order when that adult has not been adjudicated incompetent subsequent to

providing the parties with notice and an opportunity to be heard on the issue of the adult’s

competency.” Id. at ¶ 34.

       {¶ 44} For most postconviction relief petitions, the length of time to wait for a

final adjudication on the merits of the petition, and the time for an appellate court to




19.
review the trial court’s decision, would not be enough for a finding that “judicial

economy tips the balance in favor of immediate review.” However, when a petition for

postconviction relief is filed pursuant to R.C. 2953.21(A), “only the supreme court may

stay execution of the sentence of death.” R.C. 2953.21(I). Neither the trial courts nor the

appellate courts can stay a defendant’s death sentence while the review of the petition for

postconviction relief is pending. Therefore, time is of the essence as a defendant could

be deprived of his life while the petition is being determined by the trial and appellate

courts.

          {¶ 45} It is apparent that the Supreme Court recognized this urgency and the need

for an interlocutory appeal when it included language under Crim.R. 42(E)(4) that “[t]he

appeal of an order regarding appointment of experts shall be governed by App.R. 11.1.”

App.R. 11.1 governs cases placed on an appellate court’s “accelerated calendar.”

Notably, App.R. 11.1(A) was also amended on July 1, 2017, and states,

                 In all capital cases, as defined in Crim.R. 42, the appeal of an order

          regarding appointment of experts shall, upon request by defense counsel, be

          under seal and conducted ex parte and shall be handled pursuant to an

          accelerated calendar under this rule and local rules adopting an accelerated

          calendar.

          {¶ 46} Although, as we note above, Crim.R. 42 and App.R. 11.1 are procedural

rules and therefore cannot provide jurisdiction on their own, we can nonetheless consider

the policy expressed by these rules when determining whether an appeal after final




20.
judgment would be “meaningful and effective” under R.C. 2505.02(B)(4)(b). In this

case, given the unique nature of a capital proceeding involving an indigent defendant, and

the corresponding risk that a defendant―lacking the funds to hire experts on his or her

own―may be wrongly executed while postconviction proceedings remain pending, we

find that judicial economy tips the balance in favor of immediate review. Accordingly,

similar to Thomasson, this court makes a “narrow and limited” holding that

under R.C. 2505.02(B)(4), a trial court’s order denying an indigent defendant expert

funding under Crim.R. 42(E) is a final, appealable order.

                      B. The Trial Court did not Abuse its Discretion in
                      Denying Powell’s Motion for Funds to Hire Experts

       {¶ 47} Turning to the merits of Powell’s first assignment of error, Powell argues

that the trial court erred by denying his motion for expert funds because the trial court did

not explicitly reference Crim.R. 42(E) in its order. Instead, the trial court stated that

Powell’s request for expert funding was “outside the contemplation of Ohio’s post-

convictions statutes,” which Powell claims is incorrect in light of Crim.R. 42(E). Powell

also argues that his need for expert funding is “particularly great” because his trial

counsel was ineffective for not presenting expert testimony regarding “[t]he effects of

multi-generational substance abuse” during the mitigation proceedings.

       {¶ 48} Under Crim.R. 42(E), the trial court has the discretion to appoint experts

for indigent defendants in postconviction reviews of capital cases. Accordingly, we will

review the trial court’s order for an abuse of discretion. “A trial court will be found to




21.
have abused its discretion when its decision is contrary to law, unreasonable, not

supported by the evidence, or grossly unsound.” State v. Nisley, 3d Dist. Hancock No.

5-13-23, 

, citing State v. Boles, 

, 2010-Ohio-

278, 

 (2d Dist.).

       {¶ 49} We first note that the trial court’s observation that the appointment of

expert witnesses to indigent defendants is “outside the contemplation of Ohio’s post-

convictions statutes” is not incorrect, as Powell argues. Under R.C. 2953.21(J), indigent

defendants in capital cases are entitled to appointed counsel in postconviction

proceedings, but the statute is silent as to whether an indigent defendant in a capital case

is also entitled to funds to hire experts. And, as already discussed, Crim.R. 42(E) does

not provide indigent defendants with a right to receive expert funding in postconviction

reviews of capital cases. Rather, Crim.R. 42(E) merely provides a procedure that courts

must follow when an indigent defendant requests funding for experts in capital

postconviction proceedings, and clarifies that trial courts have the discretionary

“authority” to grant, or deny, such requests.

       {¶ 50} Moreover, Powell fails to acknowledge that the trial court did not deny his

motion solely because his expert-funding request was outside the contemplation of

Ohio’s postconviction statutes. Rather, the trial court stated that it was denying the

motion “[f]or [that] reason, in addition to those noted by the State in its opposition ….”

(Emphasis added.)




22.
       {¶ 51} In its opposition to Powell’s motion, the state argued that Powell’s request

should be denied because the anticipated subject matter of the experts’ testimony was

barred by res judicata. As the state pointed out, Powell argued on direct appeal “that his

counsel were ineffective by failing to retain a substance-abuse expert to testify about his

history of alcohol and drug abuse.” Powell, 

, 

, 

, at ¶ 210. The Supreme Court of Ohio, however, disagreed and found that

Dr. Wayne Graves, “a clinical and forensic psychologist, provided expert testimony

during mitigation regarding Powell’s drug and alcohol abuse” and that Dr. Graves’s

testimony “fulfill[ed] the same functions as the expert assistance sought.” (Internal

quotations omitted.) Id. at ¶ 211.

       {¶ 52} Thus, given that Powell’s lack of a substance-abuse expert was already

raised on his direct appeal, the state argued the testimony of the requested substance-

abuse experts would be barred by res judicata and the trial court should deny Powell’s

request for funding on that basis. The trial court was persuaded by this argument and

denied Powell’s motion, at least in part, on those grounds.

       {¶ 53} On appeal (as in the trial court) Powell ignores the state’s arguments

relating to res judicata. Instead, Powell relies almost exclusively upon his contention that

Crim.R. 42(E) now provides indigent defendants with a “right” to expert funding in

postconviction reviews of capital cases―which, as discussed, is not true. To the extent

that Powell addresses the actual merits of his motion on appeal, he merely argues that he

has a “particularly great” need for expert funding at this juncture because “[t]he effects of




23.
multi-generational substance abuse should have been thoroughly investigated and

presented by a substance abuse expert at trial but, due to counsel’s failures, it was not.”

(Emphasis added.)

       {¶ 54} But because the Supreme Court of Ohio has already considered whether

“his counsel were ineffective by failing to retain a substance-abuse expert to testify about

his history of alcohol and drug abuse,” Powell at ¶ 210―and because Powell does not

make any effort to explain why his motion for expert funding should not have been

denied on the grounds that were advanced by the state in its opposition brief to the trial

court―we simply cannot find that the trial court’s decision was “contrary to law,

unreasonable, not supported by the evidence, or grossly unsound.” Nisley, 3d Dist.

Hancock No. 5-13-23, 

.

       {¶ 55} For these reasons, we find that the trial court did not abuse its discretion

when denying Powell’s motion for expert funding, and Powell’s first assignment of error

is not well-taken.

        C. Ohio’s Death Penalty Scheme is not Unconstitutional Under Hurst

       {¶ 56} In his second assignment of error, Powell claims that the trial court erred

by denying his Crim.R. 33 motion for new mitigation trial. We review a trial court’s

denial of a motion for new trial under an abuse-of-discretion standard. State v. Schiebel,

, 

 (1990).

       {¶ 57} Powell’s motion for new mitigation trial was premised entirely upon Hurst,

___ U.S. ___, 

, 

, which found Florida’s capital sentencing




24.
scheme to be unconstitutional. In his motion, Powell argued that “the United States

Supreme Court decision in Hurst signaled a sea-change in death penalty jurisprudence”

and “[a]fter Hurst, it is clear that Ohio’s death penalty scheme is unconstitutional.” The

Supreme Court of Ohio, however, has explicitly―and repeatedly―found that Ohio’s

capital sentencing scheme is not unconstitutional under Hurst. State v. Mason, 

, 

, 

; see also State v. Tench, 

,

, 

; State v. Goff, 

, 2018-Ohio-

3763, 

.

       {¶ 58} In Ohio, to face the possibility of a death sentence, a defendant must be

charged with both aggravated murder and one or more of the specifications of

aggravating circumstances that are outlined in R.C. 2929.04(A). 

. Then, at

trial, the state must prove guilt of the principal charge and one or more of the capital

specifications beyond a reasonable doubt. R.C. 2929.04(A); R.C. 2929.03(B); 

. If a jury finds the defendant guilty of the principal offense and at least one

specification, the penalty (i.e., either life imprisonment or death) “shall be determined

… [b]y the trial jury and the trial judge ….” R.C. 2929.03(C)(2)(b); 

.

       {¶ 59} At the sentencing phase, the court and jury shall consider (1) any

presentence investigation or mental examination report (if either is requested by the

defendant), (2) the trial evidence relevant to the aggravating circumstances the offender

was found guilty of committing, and relevant to any mitigating factors, (3) additional

testimony and evidence relevant to the nature and circumstances of the aggravating




25.
circumstances and any mitigating factors, (4) any statement of the offender, if given, and

(5) the arguments of counsel. R.C. 2929.03(D)(1); 

. At this phase, the

state must prove beyond a reasonable doubt that “the aggravating circumstances the

defendant was found guilty of committing are sufficient to outweigh the factors in

mitigation of the imposition of the sentence of death.” R.C. 2929.03(D)(1). If the jury

unanimously finds, beyond a reasonable doubt, that the aggravating circumstances

outweigh any mitigating factors, the jury shall recommend a death sentence. R.C.

2929.03(D)(2). Absent such a finding, the jury shall recommend that the court impose a

life sentence, and the trial court shall impose the life sentence recommended. 

 In

addition, if the jury fails to reach a unanimous sentencing determination, the trial court

must impose a life sentence. 

.

       {¶ 60} Upon a jury’s unanimous recommendation that the death sentence be

imposed, the trial court shall impose a sentence of death only if it also finds, beyond a

reasonable doubt, that the aggravating circumstances outweigh any mitigating factors.

R.C. 2929.03(D)(3). Otherwise, the trial court must impose a term of life imprisonment.

 In either case, the trial court must issue a separate opinion with its specific findings.

R.C. 2929.03(F).

       {¶ 61} Powell argues that this capital sentencing scheme is indistinguishable from

Florida’s pre-Hurst capital sentencing scheme, which the U.S. Supreme Court found to

be unconstitutional under the Sixth Amendment. Hurst, ___ U.S. ___, 

, 

. Florida law previously required the jury, during the sentencing phase, to




26.
issue an “advisory sentence” by majority vote (recommending death or life

imprisonment), after which the trial court weighed the aggravating and mitigating

circumstances, and imposed a sentence of life imprisonment or death “‘[n]otwithstanding

the recommendation of a majority of the jury ….’” 

, quoting Fla.Stat.

921.141(3). The U.S. Supreme Court determined that Florida’s scheme violated the Sixth

Amendment of the U.S. Constitution because the jury provided a “mere

recommendation” to the judge and “the judge alone [was required] to find the existence

of an aggravating circumstance,” 

, and because the jury was “not require[d]

… to make the critical findings necessary to impose the death penalty.” 

.

       {¶ 62} Powell argues that, like the Florida laws at issue in Hurst, Ohio’s capital

sentencing structure requires a “mere recommendation” by the jury in favor of a death

sentence and, therefore, violates the Sixth Amendment because the ultimate death

sentence is imposed by the judge alone. The Supreme Court of Ohio, however, has

expressly rejected this argument and concluded that “Ohio law requires the critical jury

findings that were not required by [Florida’s capital sentencing scheme]” and “Ohio’s

death-penalty scheme, therefore, does not violate the Sixth Amendment.” Mason, 

, 

, 

; see also Tench, 

, 

, 

; Goff, 

, 2018-Ohio-

3763, 

. That is because, under Ohio law, a jury must find the

offender guilty beyond a reasonable doubt of aggravated murder and at least one

aggravating circumstance specification (R.C. 2929.03(B)), a jury must make a unanimous




27.
finding at the sentencing phase that the state has proven, beyond a reasonable doubt, that

the aggravating circumstances that the offender was found guilty of committing outweigh

any mitigating factors (R.C. 2929.03(D)(2)), and a trial court may impose a death

sentence only if the jury has recommended death (id.). Thus, unlike pre-Hurst Florida

law, in Ohio, a trial court is unable to increase the defendant’s possible sentence on the

basis of its own findings―which would be unconstitutional―and, instead, serves as a

precaution against “wayward juries.” 

.

       {¶ 63} Powell also argues that Ohio’s capital sentencing scheme is

unconstitutional because, as in Hurst, the trial judge is required to independently weigh

all aggravating circumstances and mitigating factors before imposing the death penalty

and, according to Powell, a death sentence is therefore predicated upon impermissible

fact-finding by the judge. The Supreme Court of Ohio has rejected this argument too.

The court has expressly found that the weighing that occurs in the sentencing phase “‘is

not a fact-finding process subject to the Sixth Amendment.’” (Emphasis sic.) 

, quoting State v. Belton, 

, 

, 

;

see also 

. Rather, the Sixth Amendment is satisfied once a jury finds the

defendant guilty, beyond a reasonable doubt, of aggravated murder and at least one

capital specification at trial. 

.

       {¶ 64} For the foregoing reasons we find that Ohio’s death penalty scheme is not

unconstitutional under Hurst. Accordingly, the trial court did not abuse its discretion by




28.
denying Powell’s motion for a new mitigation trial under Hurst. Powell’s second

assignment of error is not well-taken.

                                         {¶ 65} Conclusion

       {¶ 66} In conclusion, Powell’s two assignments of error are not well-taken. We

affirm the August 16, 2018 orders of the Lucas County Court of Common Pleas that

denied Powell’s motion for funding for experts to assist with his postconviction petition,

and denied Powell’s motion for a new mitigation trial.

       {¶ 67} Powell is ordered to pay the costs of this appeal pursuant to App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Christine E. Mayle, P.J.
CONCUR.                                        _______________________________
                                                           JUDGE


Gene A. Zmuda, J.                              _______________________________
CONCURS, IN PART, AND                                      JUDGE
DISSENTS, IN PART, AND
WRITES SEPARATELY.




29.
        ZMUDA, J., concurring, in part, and dissenting, in part:

        {¶ 68} I concur with the majority’s conclusion that Ohio’s death penalty scheme is

not unconstitutional under the United States Supreme Court’s decision in Hurst.

However, I must respectfully dissent from the majority’s determination that the trial court

did not abuse its discretion in denying Powell’s motion for funds to hire experts, because

I find that the trial court’s order denying the motion is not final and appealable under

R.C. 2505.02(B)(4).

        {¶ 69} In order to find that the trial court’s denial of expert funding was a final,

appealable order under R.C. 2505.02(B)(4), we must conclude (1) that the funding of

experts in a capital case is a “provisional remedy,” and (2) that Powell cannot obtain

meaningful review and an effective remedy through an appeal of the trial court’s ultimate

decision on his postconviction petition. I find neither of these elements are met in this

case.

        {¶ 70} As to the first element, I would find that a proceeding seeking funds to hire

an expert is not a “provisional remedy” under R.C. 2505.02(B)(4). Pursuant to R.C.

2505.02(A)(3), a provisional remedy is “a proceeding ancillary to an action.” The Ohio

Supreme Court, in State v. Muncie, 

, 

 (2001), defined

an ancillary proceeding as “‘one that is attendant upon or aids another proceeding.’” 

, quoting Bishop v. Dresser Industries, Inc., 

, 

 (3d Dist.1999). The court later explained that an ancillary proceeding is “[a]n

action, either at law or in equity, that grows out of and is auxiliary to another suit and is




30.
filed to aid the primary suit, to enforce a prior judgment, or to impeach a prior decree.”

State v. Anderson, 

, 

, 

.

       {¶ 71} A proceeding seeking funds to hire an expert does not grow out of a

postconviction proceeding, but is instead a simple discovery matter. Generally, discovery

orders are not final and appealable under R.C. 2505.02(B)(4). Concheck v. Concheck,

10th Dist. Franklin No. 07AP-896, 

. The one exception to this

principle is contained within the express language of R.C. 2505.02(B)(4), which states

that discovery of a privileged matter is a proceeding ancillary to an action and therefore

qualifies as a provisional remedy. The Ohio Supreme Court noted this sole statutory

exception to the general rule excluding discovery orders from the purview of a

provisional remedy under R.C. 2505.02(B)(4) in Myers v. Toledo, 

,

, 

. There, the court examined whether a request for a

physical examination under Civ.R. 35(A) was a provisional remedy under R.C.

2505.02(B)(4), and stated:

              The amended statute added the provisional-remedy section and

       defined “provisional remedy” as “a proceeding ancillary to an action,

       including, but … not limited to, … discovery of a privileged matter.”

       R.C. 2505.02(A)(3). If the order in question affects the discovery of a

       privileged matter it is by definition a provisional remedy and meets the first

       step of the test. The canon expressio unius est exclusio alterius tells us that

       the express inclusion of one thing implies the exclusion of the other.




31.
       Black’s Law Dictionary (8th Ed.2004) 620. The General Assembly

       stopped short of including all discovery orders in the provisional-remedy

       section.

              The request for a physical examination under Civ.R. 35(A) is a

       discovery order that is not a provisional remedy and is not a final,

       appealable order under R.C. 2505.02(B)(4).

Id. at ¶ 24-25.

       {¶ 72} The logic that underlies this principle is well grounded. We should adhere

to the general rule that discovery orders are not provisional remedies. “If we start

denominating discovery orders as ‘provisional remedies,’ then virtually every discovery

order would be appealable, which would frustrate the legislative intent behind the

statute.” Harrell v. Management and Training Corp., 1st Dist. Hamilton No. C-180417,

. The facts in this case, moreover, illustrate this point as a motion

for discovery is currently pending before the trial court in the underlying postconviction

proceeding.

       {¶ 73} Because Powell’s motion for funds to acquire an expert is a proceeding

relating to discovery, and because the proceeding does not relate to the discovery of a

privileged matter, I find that such a proceeding is not a provisional remedy.

       {¶ 74} Additionally, I conclude that the trial court’s denial of Powell’s motion for

expert funds is not final and appealable because Powell can obtain meaningful review

and an effective remedy through an appeal following the trial court’s decision on his




32.
postconviction petition. In determining whether an appeal after final judgment would

afford a meaningful or effective remedy, courts must consider whether there is a harm

such that appeal after final judgment would not “‘rectify the damage.’” 

, 

, quoting Gibson–Myers & Assocs., Inc. v. Pearce,

9th Dist. Summit No. 19358, 

, *2 (Oct. 27, 1999). In such

circumstances, the matter is final and appealable because “‘the proverbial bell cannot be

unrung.’” 

 quoting Gibson–Myers at *2.

       {¶ 75} In this case, the trial court’s denial of Powell’s motion for funds to hire an

expert does not harm Powell in a manner that cannot be undone. If the denial turns out to

be erroneous, and if that error prejudices Powell’s ability to conduct meaningful

discovery leading to the denial of his postconviction petition, Powell has an effective

remedy through the reversal of the trial court’s decision on the postconviction petition

and an order from this court directing the trial court to grant him funds to hire an expert.

At that point, Powell will be able to receive the relief he has requested, and the damage

caused by the trial court’s denial of his motion for funds would be rectified.

       {¶ 76} In its decision, the majority relies upon principles of judicial economy to

tip the scales in favor of immediate review under R.C. 2505.02(B)(4), because time is of

the essence in postconviction proceedings involving a defendant who has been sentenced

to death. However, the phrase “judicial economy” is not contained within R.C. 2505.02,

and appellate courts are not free to expand the jurisdiction granted by claiming it would

be more efficient. See 

 1st Dist. Hamilton No. C-180417, 2019-Ohio-




33.
[Cite as State v. Powell, 

.]


        {¶ 77} 2816, at ¶ 13 (“While we are certainly mindful of judicial economy, we

cannot tinker with our jurisdictional limits simply because the judicial economy winds

blow in a particular direction. We must adhere to the constitutional and statutory

constraints on our jurisdiction.”).

        {¶ 78} In contrast to the majority, I find that addressing the trial court’s denial of

Powell’s motion for funds to hire an expert actually inhibits judicial economy. This is

particularly true here, where the trial court is yet to rule on Powell’s underlying discovery

motion. Given the procedural posture of this case, notions of judicial economy favor

dismissal of the portion of Powell’s appeal relating to the request for funds in order to

allow the trial court to resolve all of the discovery disputes and rule on the merits of

Powell’s postconviction petition. This would allow us to review all of Powell’s

arguments in their wider context, thereby enabling us to render one decision rather than

piecemeal decisions.

        {¶ 79} In sum, I find that the trial court’s denial of Powell’s motion for funds to

hire an expert is not a final, appealable order under R.C. 2505.02(B)(4), because a

proceeding seeking funds to hire an expert is not a “provisional remedy” and Powell can

obtain meaningful review and an effective remedy through an appeal following the trial

court’s decision on his postconviction petition. Because the majority holds otherwise, I

must respectfully dissent.

            This decision is subject to further editing by the Supreme Court of
       Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
            version are advised to visit the Ohio Supreme Court’s web site at:
                     http://www.supremecourt.ohio.gov/ROD/docs/.