State v. Roberts

[Cite as State v. Roberts, 137 Ohio St.3d 230, 2013-Ohio-4580.]

THE STATE OF OHIO, APPELLEE, v. ROBERTS, APPELLANT.

[Cite as State v. Roberts, 137 Ohio St.3d 230, 2013-Ohio-4580.]

Criminal law—Aggravated murder—Allocution—Death penalty vacated and

resentencing ordered.

[No. 2007-2288—Submitted May 7, 2013—Decided October 22, 2013.]

APPEAL from the Court of Common Pleas of Trumbull County,

No. 01-CR-793.

____________________

O’CONNOR, C.J.

{¶ 1} This is a death-penalty direct appeal as of right. A jury convicted

appellant, Donna Roberts, of the aggravated murder of her former husband,

Robert Fingerhut, with one death specification. The jury recommended that

Roberts be sentenced to death. The trial court accepted that recommendation and

sentenced her to death. However, on appeal we vacated the death sentence and

remanded to the trial court for resentencing. On remand, the trial court again

sentenced Roberts to death. For the following reasons, we are again compelled to

vacate Roberts’s sentence of death and to remand this case for resentencing.

Facts

{¶ 2} Our previous decision in this case sets forth the facts in detail. State

v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 1-86

(“Roberts I”). For purposes of this opinion, we summarize the facts as follows.

{¶ 3} Roberts lived with Robert Fingerhut, her former husband, in

Howland Township, Trumbull County. Fingerhut, who operated Greyhound

bus terminals in Warren and Youngstown, owned two insurance policies on his

life, both of which named Roberts as sole beneficiary. The total benefit of the

two policies was $550,000.

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{¶ 4} At some point, Roberts began an affair with Nathaniel Jackson.1

In 2001, the affair was interrupted by Jackson’s confinement in the Lorain

Correctional Institution.

{ ¶ 5 } While Jackson was in prison, he and Roberts exchanged

numerous letters and spoke on the telephone. Prison authorities recorded 18 of

their telephone conversations.

{¶ 6} Passages from the Roberts-Jackson correspondence and the

recorded phone conversations indicated a plot between the two to murder

Fingerhut. Jackson repeatedly pledged to kill Fingerhut upon Jackson’s release

from prison. In one letter, Roberts complained about Fingerhut’s maintaining

control of her finances and urged Jackson to “[d]o whatever you want to him

ASAP.” At Jackson’s request, Roberts purchased a ski mask and a pair of

gloves for Jackson to use during the murder.

{¶ 7} Jackson was released from prison on December 9, 2001. Roberts

drove to Lorain to pick him up, spent that night with him in a motel, and spent

much of the next two days with him as well. On December 11, 2001, Fingerhut

was shot to death at home.

Indictment, Trial, and Verdict

{¶ 8} Roberts was indicted on two counts of aggravated murder, in

violation of R.C. 2903.01(A) (prior calculation and design) and (B) (felony

murder). Both counts carried two death specifications under R.C.

2929.04(A)(7): one charging murder during an aggravated burglary and one

charging murder during an aggravated robbery. The indictment also charged

aggravated burglary, R.C. 2911.11, with a firearm specification, R.C. 2941.145,

and aggravated robbery, R.C. 2911.01, also with a firearm specification. The

jury found Roberts guilty of all counts and specifications. After trial, the

1. Jackson was also convicted of murdering Fingerhut and sentenced to death. State v.

Jackson, 107 Ohio St.3d 300, 2006-Ohio-1, 839 N.E.2d 362.

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state elected to proceed on Count One (prior calculation and design) for

sentencing purposes, and the trial court dismissed Count Two (felony murder)

and its specifications.

Sentencing

{¶ 9} Before the mitigation hearing, Roberts informed her counsel that

she did not wish to present any mitigating evidence except an unsworn

statement. After a hearing pursuant to State v. Ashworth, 85 Ohio St.3d 56, 706

N.E.2d 1231 (1999), paragraph one of the syllabus, the trial judge determined

that Roberts was competent to make that decision.

{¶ 10} At the mitigation hearing, Roberts exercised her right under R.C.

2929.03(D)(1) to make an unsworn statement to the jury. She elected to

present no other evidence. In compliance with Roberts’s instructions, defense

counsel waived opening statement and closing argument. The jury

recommended a death sentence, and the trial court sentenced Roberts to death.

Previous Appeal

{¶ 11} On direct appeal, we affirmed Roberts’s convictions of aggravated

murder and both death specifications. We also overruled a proposition of law in

which Roberts attacked the validity of her waiver of mitigation. However, we

vacated the death sentence and remanded the case to the trial court for

resentencing because the trial judge had improperly allowed the prosecutor to

participate in drafting the sentencing opinion and in doing so, had engaged in ex

parte communications with the prosecutor. Roberts I, 110 Ohio St.3d 71, 2006-

Ohio-3665, 850 N.E.2d 1168, at ¶ 153-164. We directed the trial court “to afford

Roberts her right to allocute,” to “personally review and evaluate the evidence

[and] weigh the aggravating circumstances against any relevant mitigating

evidence,” and to “determine anew the appropriateness of the death penalty.”

We further instructed the trial court to “personally prepare an entirely new

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penalty opinion * * * and conduct whatever other proceedings are required by

law and consistent with this opinion.” Id. at ¶ 167.

Sentencing Proceedings on Remand

{¶ 12} On remand, the defense filed a motion to allow Roberts to fully

present mitigation at the sentencing rehearing. The trial court denied the motion.

However, Roberts proffered her evidence into the record. This consisted of her

prison records, a Social Security disability claim file documenting Roberts’s head

injury after a 1999 motor-vehicle accident, an affidavit by a psychologist giving

his preliminary opinion that Roberts suffered from Bipolar Type II Disorder

(manic-depressive illness), and a letter about Roberts from her son.

{¶ 13} At a hearing on October 22, 2007, the trial court heard Roberts’s

allocution. One week later, after asking Roberts if she had anything further to

say, and after hearing argument from defense counsel, the trial court sentenced

Roberts to death and filed its sentencing opinion pursuant to R.C. 2929.03(F).

{¶ 14} Roberts presents seven propositions of law for our consideration.

Her second proposition of law, which claims that the trial court failed to consider

her allocution in sentencing her to death, has merit. Accordingly, we sustain it,

and we remand this case to the trial court for consideration of Roberts’s

allocution when weighing the aggravating circumstances and the mitigating

factors.

I. Exclusion of Mitigating Evidence on Limited Remand

{¶ 15} In her first proposition of law, Roberts contends that the trial court

erred by precluding her from presenting mitigating evidence on remand.

{¶ 16} Before the resentencing hearing, Roberts filed a motion to allow

her to present mitigation at the resentencing hearing. In her motion, Roberts

argued that she was entitled to “fully develop her mitigation for the evaluation of

[the trial court] at her sentencing re-hearing.” The trial court denied the motion.

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{¶ 17} After the motion was denied, the defense proffered the following

four items, which would have been adduced in mitigation had the trial court

granted the motion:

{¶ 18} (1) Roberts’s prison records, which document her bipolar disorder,

depression, and an incident of hallucination during her time in prison.

{¶ 19} (2) A file documenting a Social Security disability claim that

Roberts had filed after being injured in a 1999 motor-vehicle accident. This file

also contains a diagnosis that Roberts suffered from a bipolar disorder.

{¶ 20} (3) An affidavit by James Eisenberg, Ph.D., a psychologist, who

had reviewed Roberts’s records and formed a preliminary opinion that Roberts

suffered from Bipolar Type II Disorder, also known as manic-depressive illness,

probably beginning in childhood. According to Dr. Eisenberg, this disorder

“causes unusual shifts in a person’s mood, energy, and ability to function.” Its

symptoms include poor judgment; aggressive behavior; extreme irritability;

inappropriate, intense, or uncontrolled anger; and “frantic efforts to avoid

abandonment, either real or imagined.”

{¶ 21} (4) A letter from Michael Raymond, Roberts’s son, extolling his

mother’s character, setting forth some of the history of her life before the murder,

and pleading that her life be spared.

{¶ 22} Roberts contends that the trial court’s refusal to consider this

proffered evidence before resentencing her violated the Eighth Amendment.

A. Roberts’s Eighth Amendment Claim

{¶ 23} It is a well-established tenet of Eighth Amendment jurisprudence

that the sentencer in a capital case may “not be precluded from considering, as a

mitigating factor, any aspect of a defendant's character or record and any of the

circumstances of the offense that the defendant proffers as a basis for a sentence

less than death.” (Emphasis sic.) Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct.

2954, 57 L.Ed.2d 973 (1978) (plurality opinion). Moreover, “[j]ust as the State

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may not by statute preclude the sentencer from considering any mitigating factor,

neither may the sentencer refuse to consider, as a matter of law, any relevant

mitigating evidence.” (Emphasis sic.) Eddings v. Oklahoma, 455 U.S. 104, 113-

114, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). See also Hitchcock v. Dugger, 481 U.S.

393, 398-399, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987).

{¶ 24} In Skipper v. South Carolina, 476 U.S. 1, 4-5, 106 S.Ct. 1669, 90

L.Ed.2d 1 (1986), the court held that a capital defendant had an Eighth

Amendment right to introduce, at his sentencing hearing, “testimony * * *

regarding his good behavior during the over seven months he spent in jail

awaiting trial.” Such evidence was “relevant evidence in mitigation” because

the jury could have drawn favorable inferences from this testimony

regarding petitioner's character and his probable future conduct if

sentenced to life in prison. * * * [T]here is no question but that

such inferences would be “mitigating” in the sense that they might

serve “as a basis for a sentence less than death.” * * * [E]vidence

that the defendant would not pose a danger if spared (but

incarcerated) must be considered potentially mitigating. Under

Eddings, such evidence may not be excluded from the sentencer’s

consideration.

Id. at 4-5, quoting Lockett at 604.

{¶ 25} Roberts contends that the trial court committed constitutional error

by denying her motion to allow full presentation of mitigation at the resentencing,

because the Eighth Amendment—as interpreted in Lockett, Eddings, and

Skipper—entitled her to introduce mitigating evidence before the trial judge on

remand.

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{¶ 26} We rejected a similar claim in State v. Davis, 63 Ohio St.3d 44, 584

N.E.2d 1192 (1992) (“Davis II”). Davis had been tried to a three-judge panel and

sentenced to death in 1984. State v. Davis, 38 Ohio St.3d 361, 528 N.E.2d 925

(1988) (“Davis I”). On Davis’s initial appeal, we “affirmed [his] conviction, but

* * * reversed [his] death sentence based upon errors which occurred after all

available mitigating evidence had been heard in the penalty phase of [his] trial.”

Davis II at 44. We then remanded the case to the original three-judge panel for a

resentencing hearing. Id.

{¶ 27} At the hearing on remand, the trial court did not permit Davis to

introduce evidence concerning his adjustment to prison life after his conviction

and sentencing. Nor was Davis permitted to present expert testimony providing a

“ ‘psychological update’ ” covering the period since his conviction and

sentencing. Id. Instead, the panel “limit[ed] its consideration to the evidence

presented in mitigation at appellant’s 1984 trial” and reimposed the death

sentence on Davis. Id. at 44-45.

{¶ 28} We affirmed, rejecting Davis’s argument that Lockett, Eddings,

Skipper, and Hitchcock entitled him to a new sentencing hearing. We

distinguished Skipper by noting that it involved the erroneous exclusion of

“evidence of Skipper’s good prison record between his arrest and trial.”

(Emphasis sic.) Id. at 46. In contrast,

no relevant mitigating evidence was excluded from consideration

by the panel during the mitigation phase of appellant’s 1984 trial.

All mitigating evidence which was available at that time was duly

received and considered by the panel including appellant’s ability

to adjust to prison life. That same relevant evidence was again

received and considered by the panel in 1989 for purposes of

resentencing appellant. The evidence excluded from consideration

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* * * at appellant’s resentencing hearing concerned certain post-

trial matters.

(Emphasis sic.) Id.

{¶ 29} We considered the same issue in State v. Chinn, 85 Ohio St.3d 548,

709 N.E.2d 1166 (1999). In Chinn, the defendant was sentenced to death after a

jury trial. The court of appeals determined, however, that the trial judge had

committed errors in performing his functions under R.C. 2929.03(D)(3) and (F)—

i.e., in his independent evaluation of the sentence and in writing the sentencing

opinion. The court of appeals affirmed the trial court’s judgment as to all other

issues.

{¶ 30} Like the appellant in Davis, Chinn argued that Lockett, Skipper,

and Hitchcock entitled him to present new mitigating evidence on remand. We

again rejected that argument:

[E]ach of those cases involved a situation where the capital

sentencer was prohibited, in some form or another, from

considering relevant mitigating evidence at trial. * * * [N]o

relevant mitigating evidence was ever excluded from consideration

during the penalty phase of [Chinn’s] 1989 trial. Therefore, the

case at bar is clearly distinguishable from * * * Lockett, Skipper,

and Hitchcock. Accordingly, as was the case in State v. Davis

(1992), 63 Ohio St.3d 44, 46, 584 N.E.2d 1192, 1194-1195, we

find Lockett, Skipper, and Hitchcock to be inapplicable here. It is

of no consequence that the additional mitigating evidence in Davis

involved post-trial accomplishments, whereas appellant's

additional mitigation evidence involves matters appellant claims he

could have presented but did not present during the mitigation

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phase of his 1989 trial. In this case, as in Davis, the errors

requiring resentencing occurred after the close of the mitigation

phase of the trial. Under these circumstances, the trial court is to

proceed on remand from the point at which the error occurred.

Chinn at 564-565.

{¶ 31} Since our decision in Chinn, the United States Court of Appeals for

the Sixth Circuit has addressed this issue in habeas corpus proceedings involving

the Davis case. In Davis v. Coyle, 475 F.3d 761 (6th Cir.2007), the Sixth Circuit

held that the three-judge panel’s decision to exclude posttrial mitigation evidence

from Davis’s resentencing hearing violated his Eighth Amendment rights and that

our affirmance of that ruling in Davis II, “based on the court’s belief that the facts

of Davis’s case could be distinguished from Skipper’s solely on the basis of

timing, was both an unreasonable application of the decision in Skipper and

contrary to the holding in that opinion and its antecedent cases.” Id. at 773.

{¶ 32} Coyle states that “the holding in Skipper that a defendant ‘be

permitted to present any and all relevant mitigating evidence that is available’

* * * requires that, at resentencing, a trial court must consider any new evidence

that the defendant has developed since the initial sentencing hearing.” Id. at 774,

quoting Skipper, 476 U.S. at 8, 106 S.Ct. 1669, 90 L.Ed.2d 1. Accord Creech v.

Arave, 947 F.2d 873, 881-882 (9th Cir.1991) (en banc); Sivak v. State, 112 Idaho

197, 199-203, 731 P.2d 192 (1986). See also Spaziano v. Singletary, 36 F.3d

1028, 1032-1035 (11th Cir.1994) (assuming, without discussion, that Lockett

requires a trial court to allow new evidence on remand); State v. Tison, 160 Ariz.

501, 502, 774 P.2d 805 (1989) (case remanded for resentencing; remand order

specified, without discussion, that “[e]ither party may offer additional evidence of

aggravation or mitigation applicable in each case as of the time of the hearing”).

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{¶ 33} As the state points out, we are “not bound by rulings on federal

statutory or constitutional law made by a federal court other than the United

States Supreme Court.” State v. Burnett, 93 Ohio St.3d 419, 424, 755 N.E.2d 857

(2001). Hence, we are not obliged to follow Coyle. We are, however, free to

consider whether Coyle is persuasive and whether it is on point in this case.

{¶ 34} We begin by noting, as we did in Davis II and Chinn, that Lockett,

Eddings, Skipper, and Hitchcock are all distinguishable from this case. Each case

in the Lockett-Eddings-Skipper-Hitchcock tetralogy involved the trial court’s

exclusion of, or refusal to consider, evidence in the original sentencing

proceeding. None of these cases involved a proceeding on remand. This case,

like Davis II and Chinn, involves a proceeding on remand for the limited purpose

of correcting an error that occurred after the defendant had had a full, unlimited

opportunity to present mitigating evidence to the sentencer.

{¶ 35} In other words, neither Lockett nor any of its progeny required the

trial court to reopen the evidence after an error-free evidentiary hearing had

already taken place. See Chinn, 85 Ohio St.3d at 564-565, 709 N.E.2d 1166.

“[T]he issue in this case is whether the presentation of evidence of mitigating

* * * factors must be reopened when a death sentence is reversed for a reason

unrelated to the presentation of evidence. None of the Supreme Court cases cited

by the majority supports that premise.” Coyle, 475 F.3d at 782 (Gibbons, J.,

concurring).

{¶ 36} In a case in which the defendant was not deprived of any

constitutional right—including her Eighth Amendment right to present

mitigation—at the time of her mitigation hearing, there seems to be no basis for

requiring the trial court to reopen or supplement that evidence in a later

proceeding. To hold, as Coyle does, that a new mitigation hearing must be held,

even though no constitutional error infected the original one, would transform the

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right to present relevant mitigation into a right to update one’s mitigation. Such a

right has no clear basis in Lockett or its progeny.

{¶ 37} Establishing a right to update mitigation could result in arbitrary

distinctions between similarly situated capital defendants. A defendant who had

an error-free mitigation hearing could not update his mitigation—no matter how

compelling the new mitigation that might be available to him—if the trial judge

committed no error after the mitigation hearing that called for the case to be

remanded. But another defendant, whose mitigation hearing was equally free of

error, would have the right to update his mitigation in the event that a posthearing

sentencing error took place that required a remand.

{¶ 38} Furthermore, as we noted in Davis II, the right to update mitigation

would imply that a capital defendant appealing his death sentence would have a

right to present new mitigation to the appellate court. Davis II, 63 Ohio St.3d at

46, 584 N.E.2d 1192, fn.2. Under R.C. 2929.05(A), this court (and, in pre-1995

cases, the court of appeals) has the obligation to independently review the death

sentence.2 Hence, a reviewing court could be considered a “sentencer” for

Lockett purposes.

2. The court of appeals and the supreme court shall review the judgment in the case

and the sentence of death imposed by the court or panel of three judges in the

same manner that they review other criminal cases, except that they shall review

and independently weigh all of the facts and other evidence disclosed in the

record in the case and consider the offense and the offender to determine

whether the aggravating circumstances the offender was found guilty of

committing outweigh the mitigating factors in the case, and whether the

sentence of death is appropriate. * * * The court of appeals, in a case in which a

sentence of death was imposed for an offense committed before January 1, 1995,

or the supreme court shall affirm a sentence of death only if the particular court

is persuaded from the record that the aggravating circumstances the offender

was found guilty of committing outweigh the mitigating factors present in the

case and that the sentence of death is the appropriate sentence in the case.

(Emphasis added.) R.C. 2929.05(A).

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{¶ 39} For the foregoing reasons, we adhere to our precedent in Davis II

and Chinn. Accordingly, we reject Roberts’s claim that the Eighth Amendment

required the trial court to admit Roberts’s proffered mitigation.

B. The Trial Court’s Compliance with the Remand Order in Roberts I

{¶ 40} Having rejected Roberts’s Eighth Amendment claim, we will

briefly consider certain points not argued by Roberts, but set forth in the

concurring and dissenting opinion.

{¶ 41} The concurring and dissenting opinion asserts that by refusing to

admit Roberts’s proffered mitigation evidence, the trial court failed to comply

with the instructions we issued in Roberts I when we remanded this case to the

trial court for the first time.3 Id. at ¶ 99. The concurring and dissenting opinion

interprets Roberts I as ordering the trial court to hold a new mitigation hearing

and to permit Roberts to introduce mitigating evidence.

{¶ 42} Roberts I did no such thing. In Roberts I, we instructed the trial

court as follows:

On remand, the trial judge will afford Roberts her right to allocute,

and the trial court shall personally review and evaluate the

evidence, weigh the aggravating circumstances against any

relevant mitigating evidence, and determine anew the

appropriateness of the death penalty as required by R.C. 2929.03.

The trial court will then personally prepare an entirely new penalty

opinion as required by R.C. 2929.03(F) and conduct whatever

other proceedings are required by law and consistent with this

opinion.

3. Roberts asserts that our order in Roberts I did not prohibit the admission of new mitigating

evidence on remand, but she does not contend that the order actually required the trial court to

admit such evidence.

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110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 167.

{¶ 43} The above order says nothing about holding a new evidentiary

hearing. Nor is a requirement to hold a new evidentiary hearing implicit in our

instructing the trial court to “weigh the aggravating circumstances against any

relevant mitigating evidence” and “determine anew the appropriateness of the

death penalty.” Relevant mitigating evidence may be found in the guilt phase, as

well as in the penalty phase. Indeed, R.C. 2929.03(D)(1) requires the trial court

to consider “any evidence raised at trial” that is relevant “to any factors in

mitigation of the imposition of the sentence of death.”4

{¶ 44} Moreover, the remand order in Roberts I must be read against the

backdrop of our precedents in Davis II and Chinn. In Davis II, a death sentence

had been reversed, and the case remanded for resentencing, because of errors that

occurred after mitigating evidence had been heard in the penalty phase. On

appeal from remand, we rejected the claim that the trial court had erred by

limiting its consideration to the evidence presented in the original mitigation

hearing. Davis II, 63 Ohio St.3d at 45-46, 584 N.E.2d 1192.

{¶ 45} In Chinn, we adhered to Davis II and held that when “errors

requiring resentencing occurred after the close of the mitigation phase,” the

correct procedure was for the trial court “to proceed on remand from the point at

which the error occurred.” Chinn, 85 Ohio St.3d at 565, 709 N.E.2d 1166.

Indeed, we stated that “the trial court was required to proceed on remand from the

4. We have repeatedly recognized that the sentencer may glean relevant mitigating evidence from

the guilt phase. See, e.g., State v. Jordan, 101 Ohio St.3d 216, 2004-Ohio-783, 804 N.E.2d 1, ¶ 80

(quoting R.C. 2929.03(D)(1)); State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d

433, ¶ 208 (“much of the trial-phase evidence was relevant to * * * the nature and circumstances

of the offense, and the mitigating factors”); State v. Barton, 108 Ohio St.3d 402, 2006-Ohio-1324,

844 N.E.2d 307, ¶ 49 (capital defendant elicited mitigating testimony on cross-examination of

prosecution witnesses during the guilt phase of the trial).

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point at which the errors had occurred, i.e., after the jury had returned its

recommendation of death.” (Emphasis added.) Id. at 564.

{¶ 46} The trial court was bound by those precedents, as well as by our

remand order in Roberts I. Roberts I neither overruled nor modified Davis II or

Chinn and did not order the trial court to hold a new penalty-phase evidentiary

hearing, Thus, Roberts I cannot reasonably be understood as imposing a

requirement that Davis II and Chinn had expressly declined to impose.

{¶ 47} The concurring and dissenting opinion also points out that Roberts

“proffered four items in mitigation, only one of which dealt with her conduct in

prison.” Id. at ¶ 99. While this is true, it lends no support to the claim that she

should have been allowed a fresh opportunity to submit mitigating evidence on

remand.

{¶ 48} As we stated in Chinn, “[i]t is of no consequence that the additional

mitigating evidence in Davis involved post-trial accomplishments, whereas

appellant’s additional mitigation evidence involves matters appellant claims he

could have presented but did not present during the mitigation phase of his 1989

trial.” (Emphasis sic.) Chinn, 85 Ohio St.3d at 564-565, 709 N.E.2d 1166. In

neither case is a capital defendant entitled to present such evidence on remand

when “the errors requiring resentencing occurred after the close of the mitigation

phase of the trial.” Id. at 565.

{¶ 49} Additionally, mitigation evidence pertaining to events that took

place before trial could have been presented to the trial court during Roberts’s

original mitigation hearing in 2003. Instead of doing so at that time, Roberts

expressly and validly waived her right to present mitigation.5 Thus, the case for

5. In Roberts I, we considered and rejected Roberts’s claim that the waiver was invalid, 110 Ohio

St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, at ¶ 132-145, and her claim that she did not receive

effective assistance of counsel in connection with the waiver, id. at ¶ 146-148.

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admitting proffered mitigation involving events that took place before trial is, if

anything, weaker than the case for admitting posttrial prison records.

{¶ 50} For all of the foregoing reasons, we overrule Roberts’s first

proposition of law.

II. The Trial Court’s Failure to Consider Roberts’s Allocution

{¶ 51} In her second proposition of law, Roberts contends that the trial

court failed to consider her allocution in determining the sentence.

{¶ 52} Pursuant to our mandate, the trial judge invited Roberts to make a

statement in allocution at the hearing on October 22, 2007, and Roberts did. One

week later, on October 29, the trial court imposed sentence and filed its

sentencing opinion. Before imposing sentence, the trial court heard a brief

statement from Roberts’s counsel and asked Roberts if she had anything further to

say. The trial court then stated that it had considered the record and the oral

statements. The sentencing opinion notes that the trial court had been instructed

to provide Roberts with the right of allocution before reimposing a sentence.

Beyond this, however, the opinion does not discuss Roberts’s allocution.

{¶ 53} Roberts contends that the trial court’s failure to discuss the

allocution in its opinion shows that the trial court failed to consider her allocution.

This alleged failure, Roberts claims, violated the Eighth Amendment’s

requirement that the sentencer in a capital case consider all relevant mitigation.

See Eddings, 455 U.S. at 113-114, 102 S.Ct. 869, 71 L.Ed.2d 1.

{¶ 54} We have previously rejected claims that a trial court’s failure to

mention particular mitigating factors in a sentencing opinion obliges a reviewing

court to infer that the trial court failed to consider those factors. “Appellant

erroneously assumes that evidence that is not specifically mentioned in an opinion

was not considered. While a sentencing court must consider all evidence of

mitigation, it need not discuss each [allegedly mitigating] factor individually.”

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State v. Phillips, 74 Ohio St.3d 72, 102, 656 N.E.2d 643 (1995), citing Parker v.

Dugger, 498 U.S. 308, 314-315, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991).

{¶ 55} Nevertheless, we conclude that the particular circumstances of this

case warrant the inference that the trial judge did, in fact, fail to consider

Roberts’s allocution in sentencing her to death.

{¶ 56} To begin with, Roberts’s allocution was the only relevant matter

that was specifically placed before the trial court as mitigation. At her original

mitigation hearing in 2003, Roberts had elected to present no evidence. Although

she had given an unsworn statement before the jury, that statement contained no

mitigation; indeed, Roberts had used it to insist that a sentence of death be

imposed upon her. See Roberts I, 110 Ohio St.3d 71, 2006-Ohio-3665, 850

N.E.2d 1168, ¶ 137 and 148. And although Roberts tried to present mitigating

evidence during the proceedings on remand, that attempt was (properly, as we

hold today) overruled by the trial court. The trial court did find one mitigating

factor in the guilt-phase record.6 But this merely underscores the fact that nothing

was placed before the trial court for the specific purpose of mitigating the

sentence—except Roberts’s statement in allocution.

{¶ 57} And this statement contained much information whose relevance as

mitigation was clear. For instance, Roberts stated that she grew up in a “very

very abusive” household, in which her father abused her mother physically and

verbally and in which “guns came out” at times during household disputes.

Roberts claimed that when she was very young, her cousin raped her. Roberts

also said that she “always felt empty” because she never received any attention or

affection.

6. The trial court found, in Roberts’s letters to Jackson, indications that Fingerhut “may have been

physically abusive to her,” which the court considered relevant to the mitigating factors listed in

R.C. 2929.04(B)(1) (victim-induced or facilitated offense) and (2) (duress, coercion, or strong

provocation). The trial court gave this factor “very slight weight.”

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{¶ 58} Roberts recounted a long history of motor-vehicle accidents and

resulting injuries, including injuries to her head, that she claimed affected her

mental health. In 1963, 1983, and 1999, Roberts said, she was involved in

accidents serious enough to put her in the hospital. After the 1963 accident, she

said, she was “spacey for awhile.” In the 1983 collision, she was thrown through

a windshield. She went to a neurosurgeon for many months after that accident.

{¶ 59} In 1999, Roberts was involved in an accident that demolished her

car. Roberts remembered being in the hospital, but after that she could not

remember anything “for a long time.” Roberts said that Fingerhut “was really

worried” about her because she was acting “spacey” and “goofy.” After this last

accident, Roberts stated, she suffered from depression. She attempted suicide and

was hospitalized in a psychiatric ward. She suffered from auditory hallucinations

that were successfully treated with Risperdal.7

{¶ 60} After the suicide attempt, Roberts began falling down repeatedly,

hitting her head, and losing track of what day it was. Eventually, Roberts said,

Fingerhut made her “go to Social Security,” and she was sent to a psychiatrist.

{¶ 61} In her allocution, Roberts also cited examples of her selflessness

and contributions to society. Roberts worked “almost 23 years” in a plastic

surgeon’s office and “helped a lot of people” during that time. She also

volunteered to go to Israel, along with her employer, to treat wounded soldiers.

She recounted how, after her conversion to Judaism, she had raised funds to

rescue a person from Ethiopia who was in danger of being murdered for his

religious beliefs. She said that when she ran the restaurant in the bus terminal,

she gave food and money to people who were short of money at the end of the

month. She also gave several thousand dollars to help her sisters and her son.

7. According to Roberts, when she went to prison and stopped taking Risperdal, she hallucinated

“giant anthills.”

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{¶ 62} Lockett explains that the category of relevant mitigating factors

includes “any aspect of a defendant’s character or record and any of the

circumstances of the offense that the defendant proffers as a basis for a sentence

less than death.” 438 U.S. at 604, 98 S.Ct. 2954, 57 L.Ed.2d 973. A court may

“exclude, as irrelevant, evidence not bearing on the defendant’s character, prior

record, or the circumstances of his offense.” Id. at 605, fn. 12. See also Brown v.

Payton, 544 U.S. 133, 149-150, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005) (Souter,

J., dissenting) (“it was settled law that a capital defendant has a plenary right to

present evidence going to any aspect of [the defendant’s] character, background,

or record * * * that might justify a sentence less than death”); Skipper v. South

Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986). The information

contained in Roberts’s allocution was clearly relevant under this definition.

{¶ 63} We note, too, that our opinion in Roberts I specifically called the

matter of allocution to the attention of the trial judge. When we remanded this

case to the trial court, we did so with the following instruction: “The trial court

shall provide Roberts with her right of allocution before imposing any new

sentence.”8 Roberts I, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168,

¶ 166.

{¶ 64} When we consider the presence of relevant and potentially

significant mitigation in Roberts’s allocution, the utter lack of anything else

offered for the specific purpose of mitigation, and our order specifically calling

the matter of allocution to the trial judge’s attention, we can hardly conclude that

the trial court’s failure to mention the allocution in its sentencing opinion was a

mere oversight. Given these unusual circumstances, we are justified in drawing

8. In the original appeal, Roberts alleged that she had not been asked whether she wished to make

a statement in allocution and that this omission violated Crim.R. 11. Because we had vacated

Roberts’s original death sentence on other grounds, we held her allocution claim moot. Roberts I

at ¶ 165-166.

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the inference that when the trial judge weighed the aggravating circumstances

against the mitigating factors, he did not consider Roberts’s allocution.9

{¶ 65} This failure violated the Eighth Amendment. Unquestionably, the

allocution contained information relevant to mitigation. That information (unlike

the evidence discussed in relation to Roberts’s first proposition of law) was

properly before the court. The court could not, therefore, refuse to consider it.10

“The sentencer * * * may determine the weight to be given relevant mitigating

evidence. But [it] may not give it no weight by excluding such evidence from

[its] consideration.” Eddings, 455 U.S. at 114-115, 102 S.Ct. 869, 71 L.Ed.2d 1.

{¶ 66} Our decisions have acknowledged the importance of allocution in

capital cases. In State v. Campbell, 90 Ohio St.3d 320, 323-326, 738 N.E.2d 1178

(2000), and State v. Green, 90 Ohio St.3d 352, 358-360, 738 N.E.2d 1208 (2000),

we remanded capital cases for resentencing because the trial courts had failed to

comply with Crim.R. 32(A)(1). “Trial courts must painstakingly adhere to

Crim.R. 32, guaranteeing the right of allocution. A Crim.R. 32 inquiry is much

more than an empty ritual: it represents a defendant's last opportunity to plead his

case or express remorse.” Green at 359-360. In a capital case, the denial of

allocution can undermine the “constitutional reliability” of a death sentence. Id.

at 360.

{¶ 67} We recognize, as the dissent notes at ¶ 114, that the allocution

under Crim.R. 32(A)(1) is unsworn and thus may not technically amount to

evidence. See Evid.R. 603 (witness testimony must be preceded by oath or

9. The dissent suggests that drawing this inference is inconsistent with Phillips. Dissenting

opinion at ¶ 112-113 and 115-116. As we discussed above, Phillips states a general rule. But this

case presents exceptional circumstances, which the dissent does not take into account, that justify

a narrow exception to the general rule.

10. The dissent’s contention that there is no constitutional right to allocution, dissenting opinion at

¶ 104, is beside the point. Once a capital defendant has used her state-law right of allocution to

place constitutionally relevant mitigating factors before the sentencer, the Eighth Amendment does

not permit the sentencer to disregard that mitigation.

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affirmation). However, the dissent concludes that the information contained

therein is therefore not relevant to weighing the aggravating circumstances against

the mitigating factors. Dissenting opinion at ¶ 110 and 116. This conclusion is

incorrect. In the context of capital sentencing, as Lockett makes plain, relevant

information has to do with content, not form. We do not believe that a sentencer

is licensed to ignore constitutionally relevant mitigating factors brought before the

sentencer in accordance with state law, simply because they come labeled

“allocution” instead of “evidence.”11

{¶ 68} People v. Davis, 794 P.2d 159 (Colo.1990), exemplifies this point.

In Davis, the trial court had instructed the jury that the defendant’s penalty-phase

unsworn statement12 was not evidence. The Colorado Supreme Court recognized

that this was “technically correct” because the statement, which was unsworn,

was not evidence under Colorado law. However,

in the sentencing phase of a capital case, the jury is not limited to

consideration of matters technically defined as evidence. In

making the profoundly moral decision of whether to impose a

sentence of death, it must consider all the facts and circumstances

of the crime, the defendant’s background and character and any

mitigating factors raised by the defendant.

11. The dissent states that we have “confuse[d] allocution—which is not evidence—with the

opportunity to present an unsworn statement in the penalty phase of the trial and the right to

present mitigating evidence to the jurors or fact-finders.” Dissenting opinion at ¶ 114. We have

not. We simply disagree with the dissent’s conclusion that because an allocution is unsworn, it is

irrelevant to sentencing. Indeed, if that were so, there would have been no reason to remand in

Campbell and Green.

12. Davis called the defendant’s penalty-phase statement an “allocution,” consistent with Colorado

precedent deriving the right to make an unsworn statement to the jury in a capital case from the

right to allocution provided in Colorado’s version of Crim.R. 32. See 794 P.2d at 191, citing

People v. Borrego, 774 P.2d 854, 856 (Colo.1989).

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Id. at 192. The court then proceeded to evaluate the likelihood that a reasonable

juror would interpret the trial court’s instructions to prevent consideration of the

defendant’s statement. Id. at 192-193. Even though the defendant’s unsworn

statement lacked the status of evidence under Colorado evidentiary law, Davis

regarded that statement as “constitutionally relevant evidence” for Eighth

Amendment purposes:

[O]ur examination of the instructions as a whole, as well as the

context of the sentencing hearing, leads us to conclude that there is

not a “reasonable likelihood” that the jury applied instructions No.

1 and No. 4 in a manner preventing it from considering

constitutionally relevant evidence. On the contrary, reasonable

jurors would have properly understood that they should consider

fully the statement offered by the defendant in allocution.

(Footnote omitted.) 794 P.2d at 193. We cannot, therefore, agree with the

dissent’s contention that “[b]ecause the allocution offered by Roberts prior to the

imposition of sentence is not evidence, it has no significance in establishing any

mitigating factor.” Dissenting opinion at ¶ 116.

{¶ 69} For the foregoing reasons, we conclude that the trial court failed to

consider Roberts’s allocution and that this error violated the Eighth Amendment.

That leaves us with the question of how to remedy the error. In Phillips, we

stated: “[E]ven if ‘the trial court in this case should have more explicitly analyzed

the mitigating evidence,’ this court’s independent reweighing will rectify the

error.” 74 Ohio St.3d at 102, 656 N.E.2d 643, quoting State v. Lott, 51 Ohio St.3d

160, 171, 555 N.E.2d 293 (1990).

{¶ 70} In State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768 (1984), we

used independent review to rectify a trial court’s failure to enunciate its reasoning.

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There, we observed that the very purpose of an independent appellate review of

death sentences is, “at least in part, to correct such omissions.” Id. at 247.

{¶ 71} However, we also cautioned:

In so holding, we do not intend to trivialize the duty of the

trial court under R.C. 2929.03(F) to articulate its reasoning or to

suggest that such an omission is insignificant. It is not. The

failure of a trial court to comply with this aspect of R.C.

2929.03(F) disrupts the review procedures enacted by the General

Assembly by depriving the defendant and subsequent reviewing

courts of the trial court’s perceptions as to the weight accorded all

relevant circumstances. In a closer case, those perceptions could

make a difference in the manner in which a defendant pursues his

appeal and in which a reviewing court makes its determination.

Id.

{¶ 72} This case presents the closer call that we anticipated in Maurer.13

We find that the sentencing opinion is so inadequate as to severely handicap our

ability to exercise our power of independent review. Accordingly, we must

vacate Roberts’s sentence of death and remand this case for resentencing.

{¶ 73} On remand, the trial court is to review the entire record, including

Roberts’s allocution of October 22, 2007. The trial court shall consider the entire

record—again, including the allocution—in determining whether the aggravating

circumstances outweigh the mitigating factors beyond a reasonable doubt. The

trial court shall then write and file a sentencing opinion pursuant to R.C.

2929.03(F) reflecting that it has complied with these instructions.

13. The dissent, in stressing the role of independent review in curing errors by the sentencing

court, fails to take account of Maurer.

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{¶ 74} In accordance with our holding as to Roberts’s first proposition of

law, Roberts is not entitled to present any further evidence on remand. Moreover,

because Roberts has been given her opportunity to make allocution pursuant to

Crim.R. 32, she is not entitled to make another one.

{¶ 75} Finally, while the trial court must consider Roberts’s allocution,

nothing in today’s opinion should be interpreted as a determination that the

matters discussed in her allocution are true or that the trial court must afford them

any particular weight. It is for the trial court to determine in the first instance

what mitigating factors, if any, are present in the case, and what weight, if any,

they should be given.

{¶ 76} Roberts’s second proposition of law is sustained.

III. Nonstatutory Aggravating Circumstances in Sentencing Opinion

{¶ 77} In her third proposition of law, Roberts contends that the trial

court’s sentencing opinion demonstrates that the trial court erroneously

considered nonstatutory aggravating circumstances in sentencing her to death.

Inasmuch as the trial court, on remand, will be required to write a new sentencing

opinion, we find that Roberts’s third proposition of law is moot.

IV. Denial of Recusal Motion

{¶ 78} In her fourth proposition of law, Roberts contends that the trial

judge should have recused himself from her resentencing. However, during the

pendency of this appeal, the trial judge died. Because we are remanding this case

for resentencing, which necessarily will be conducted by a different judge, we

find that Roberts’s fourth proposition of law is moot.

V. Ineffective Assistance of Counsel

{¶ 79} In her fifth proposition of law, Roberts contends that her counsel

rendered ineffective assistance at her 2003 mitigation hearing. She argues that

her counsel “fail[ed] to fully investigate and present all possible evidence of

mitigation.” Specifically, Roberts complains that trial counsel failed to discover

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and present information contained in her Social Security file and in a letter to the

trial court written by her son, both of which she proffered to the trial court on

remand in 2007. The state argues that Roberts’s current ineffective-assistance

claim with regard to the mitigation hearing is barred by res judicata, inasmuch as

Roberts did not raise it on her original appeal to this court.

{¶ 80} In light of our disposition remanding this case to the trial court for

resentencing, we decline to address Roberts’s fifth proposition of law at this time.

If Roberts receives a death sentence on resentencing, the parties may present these

arguments (including the state’s res judicata argument) to us for review on the

ensuing direct appeal.

VI. Competency to Stand Trial

{¶ 81} Roberts’s sixth and seventh propositions of law address her

competency to stand trial during the mitigation hearing in 2003 and during the

resentencing proceedings on remand in 2007. See generally R.C. 2945.37

(establishing standards and procedures for adjudicating defendant’s competency

to stand trial).

A. Competency during the 2007 Resentencing

{¶ 82} A defendant is competent to stand trial if she has sufficient present

ability to consult with her lawyer with a reasonable degree of rational

understanding and has a rational as well as a factual understanding of the

proceedings against her. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4

L.Ed.2d 824 (1960). In her sixth proposition of law, Roberts contends that the

state failed to prove that she met the standard of competency during her 2007

resentencing proceeding.

{¶ 83} Roberts contends that “[t]he trial court may not conduct a

sentencing hearing for a death-eligible defendant where the record does not

establish by a preponderance of the evidence that the defendant is legally

competent,” that “there was insufficient evidence of her ability to assist counsel in

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preparation for the hearing,” and that “[w]ithout evidence that Roberts could

properly assist counsel, the [sentencing] hearing should not have been

conducted.” (Emphasis added.)

{¶ 84} Roberts’s argument misallocates the burden of persuasion. R.C.

2945.37(G) provides:

A defendant is presumed to be competent to stand trial. If,

after a hearing, the court finds by a preponderance of the evidence

that, because of the defendant’s present mental condition, the

defendant is incapable of understanding the nature and objective of

the proceedings against the defendant or of assisting in the

defendant’s defense, the court shall find the defendant incompetent

to stand trial and shall enter an order authorized by section 2945.38

of the Revised Code.

Thus, the question is not whether the state introduced sufficient evidence to prove

Roberts competent, but whether a preponderance of the evidence proved that she

was not competent. See State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890

N.E.2d 263, ¶ 45; State v. Jordan, 101 Ohio St.3d 216, 2004-Ohio-783, 804

N.E.2d 1, ¶ 28; State v. Hicks, 43 Ohio St.3d 72, 79, 538 N.E.2d 1030 (1989).

See also Medina v. California, 505 U.S. 437, 112 S.Ct. 2572, 120 L.Ed.2d 353

(1992) (assigning defendant burden of proving incompetency does not violate due

process).

{¶ 85} The trial court appointed Dr. Thomas Gazley, a psychologist with

the Forensic Psychiatric Center of Northeast Ohio, to conduct a competency

evaluation. Dr. Gazley interviewed Roberts, had conversations with her defense

attorneys and with the director of mental-health services at the Ohio Reformatory

for Women, where Roberts was incarcerated, and reviewed her mental-health

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chart from the reformatory. Dr. Gazley was the sole witness at the hearing on

Roberts’s competency. After he testified, his report was admitted without

objection.

{¶ 86} Dr. Gazley testified that Roberts had the ability to “understand the

sentencing process and * * * to understand what the alternatives available are to

her as well as * * * to provide her counsel with any mitigating circumstances,

should she desire to do so.” He concluded that based on her ability to interact

with him and to provide information and a coherent account of her perceptions

about the situation, she would be able to do so with her defense counsel as well.

Dr. Gazley further testified: “[W]hen I saw [Roberts] earlier this year, she was

very coherent, her comments and responses to my questions were very relevant

and * * * to the point.” Dr. Gazley noted in his report that Roberts’s “memory for

both recent and remote events is intact” and that she “maintains the capacity for

abstract thinking.”

{¶ 87} Dr. Gazley knew that Roberts had been involved in a number of

automobile accidents and had had several head injuries. He also knew that she

had been diagnosed with depression and that she had engaged in suicidal thinking,

which he attributed to her depression. However, Dr. Gazley testified that

Roberts’s depression had responded to treatment; by the time he saw her, her

symptoms were in remission, and “[s]he was progressively getting better.”

{¶ 88} Dr. Gazley’s report states that his opinion, reached “with

reasonable psychological certainty,” is that Roberts “currently has the cognitive

ability and functioning to understand, in a general way, the penalties that could or

will be imposed as a result of her conviction” and that she “has the capacity to

communicate relevant facts in mitigation to her attorney.”

{¶ 89} Roberts argues that there was no testimony relevant to the issue of

Roberts’s ability to work with and assist counsel. Even if that were so, Roberts

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could not prevail, because competency is presumed and the defense bears the

burden of proving incompetency. R.C. 2945.37(G).

{¶ 90} However, Dr. Gazley’s testimony was relevant to the criteria for

competency, including Roberts’s ability to assist counsel. Dr. Gazley testified

that Roberts was able to understand the sentencing process and what alternatives

were available and to provide mitigating circumstances. After interviewing

Roberts, Dr. Gazley concluded that Roberts had the ability to interact with

defense counsel and to provide information and a coherent account of her own

perceptions about the situation to her counsel.

{¶ 91} Roberts contends that Dr. Gazley did not know her psychological

history before her incarceration and that he had neither reviewed her Social

Security records nor obtained a neuropsychological evaluation of the effects of

her head injury. However, Dr. Gazley explained that none of this mattered to his

evaluation of Roberts’s competency at the time of resentencing, because that

evaluation was based on his interview with Roberts:

I base my opinion * * * on the information that I receive

from the subject at the time I do the interview. * * * I make my

decision about the opinion based on the responses the person

provides me to the questions I asked that I believe are related to the

questions the Court needs to address, rather than the [past]

diagnosis.

{¶ 92} A criminal defendant’s competency to stand trial, including

competency to assist in a sentencing proceeding, is a question of fact. See

Maggio v. Fulford, 462 U.S. 111, 103 S.Ct. 2261, 76 L.Ed.2d 794 (1983)

(upholding state-court finding of competency that was fairly supported by the

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record); State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303,

¶ 33 (deferring to trial court’s “factual findings” that defendant was competent).

{¶ 93} Dr. Gazley’s testimony supports the trial court’s finding that

Roberts failed to prove by a preponderance of the evidence that she was not

competent to stand trial at the time of her sentencing proceeding in 2007.

Because “there was some reliable, credible evidence supporting” the trial court’s

finding that Roberts was competent, we will not disturb that finding. Vrabel at

¶ 33. Roberts’s sixth proposition of law is overruled.

B. Competency during the 2003 Mitigation Hearing

{¶ 94} In her seventh proposition of law, Roberts contends that there was

insufficient evidence to prove that she was competent to stand trial during her

original mitigation hearing in 2003. Roberts also claims that the trial court failed

to conduct a full evidentiary hearing into her competency.

{¶ 95} These claims are res judicata. They are based entirely on the

record of the 2003 hearing. Thus, Roberts could have, and should have, raised

these issues in Roberts I. She is barred from raising them now. “Where an

argument could have been raised on an initial appeal, res judicata dictates that it

is inappropriate to consider that same argument on a second appeal following

remand.” State v. D’Ambrosio, 73 Ohio St.3d 141, 143, 652 N.E.2d 710 (1995).

See also State v. Gillard, 78 Ohio St.3d 548, 549, 679 N.E.2d 276 (1997) (issues

not raised on prior appeal are barred by res judicata and overruled without further

consideration).

Conclusion

{¶ 96} Under the unique circumstances present here, we find that the trial

court failed to consider relevant mitigating evidence contained in Roberts’s

allocution. Accordingly, we vacate the death sentence and remand this case for

resentencing on the basis of the existing record. On remand, the trial court must

consider all the mitigating evidence reflected in the record, including Roberts’s

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allocution, weigh the aggravating circumstances against the mitigating factors,

and file a sentencing opinion that reflects that it has complied with these

instructions. In doing so, the trial court must make an independent determination

of whether a death sentence is appropriate and may not give deference to the

sentences previously entered.

Judgment reversed

and cause remanded.

PFEIFER, LANZINGER, and FRENCH, JJ., concur.

O’NEILL, J., concurs in part and dissents in part.

O’DONNELL and KENNEDY, JJ., dissent.

_________________

O’NEILL, J., concurring in part and dissenting in part.

{¶ 97} The questions addressed by the majority and the dissent are

significant, but I do not believe it is necessary to decide them in this case. Our

previous remand order required the trial court to “afford Roberts her right to

allocate, * * * personally review and evaluate the evidence, weigh the aggravating

circumstances against any relevant mitigating evidence, and determine anew the

appropriateness of the death penalty as required by R.C. 2929.03.” State v.

Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, ¶ 167. I believe

that order was sufficient on its face, but unfortunately it was not followed by the

trial court.

{¶ 98} As Justice O’Donnell points out, a capital defendant’s statutory

right to make an unsworn statement in mitigation under R.C. 2929.03(D)(1) is

“ ‘not an allocution under the rule.’ ” (Emphasis deleted.) Dissenting opinion at

¶ 110, quoting State v. Campbell, 90 Ohio St.3d 320, 326, 738 N.E.2d 1178

(2000). And if we were addressing this issue in the first instance, the dissent

might well be correct in concluding that the defendant’s allocution “has no

significance in establishing any mitigating factor.” Id. at ¶ 116. But our previous

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remand order was not limited to permitting allocution—it required the court to

evaluate “any relevant mitigating evidence” and make its sentencing decisions

“anew.” I would hold that the trial court failed to comply with this remand order

in that it failed to accept and evaluate relevant mitigation evidence, including the

unsworn statement offered by the defendant.

{¶ 99} Given the clear language in our prior mandate, the trial court

clearly erred by refusing to accept the defendant’s evidence in mitigation. Even if

I were to accept that the defendant had attempted to “update mitigation” with

evidence of her good prison conduct and that such evidence was improper,

majority opinion at ¶ 37, the trial court expressed no opinion on the relevance of

that evidence and did not render a sentencing decision “anew” as directed. But I

must also note that the majority’s characterization here is inaccurate. As the

majority observes, the defendant proffered four items in mitigation, only one of

which dealt with her conduct in prison. And it is apparent that even the

defendant’s prison records, like her other proffered evidence, were submitted to

demonstrate her continued mental illness, not her conduct. Moreover, as the

majority itself recognizes, its analysis on this point is likely to be set aside by the

federal courts on collateral review. See majority opinion at ¶ 31-33, citing Davis

v. Coyle, 475 F.3d 761 (6th Cir.2007).

{¶ 100} Therefore, I concur in the court’s judgment vacating the death

sentence and remanding this case for resentencing, but I dissent as to the

limitations placed on that resentencing by the majority. The defendant should be

permitted to offer a case in mitigation, in accordance with both our prior remand

and the Sixth Circuit’s judgment in similar cases. And given both my opinion that

capital punishment violates the Eighth Amendment to the Constitution of the

United States and Article I, Section 9 of the Ohio Constitution, see State v.

Wogenstahl, 134 Ohio St.3d 1437, 2013-Ohio-164, 981 N.E.2d 900, ¶ 2 (O’Neill,

J., dissenting), and the fact that the record as currently constituted provides strong

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evidence of the defendant’s severe mental illness, I would hold that on remand the

trial court is precluded from imposing the death penalty upon the defendant.

____________________

O’DONNELL, J., dissenting.

{¶ 101} Respectfully, I dissent.

{¶ 102} The principal focus of this appeal concerns whether a trial court

commits reversible error if it fails to include in its statutorily mandated capital-

offense sentencing opinion a statement that it has considered the allocution of a

convicted murderer. However, allocution is a statutory right, not a constitutional

one, and it necessarily follows that the court’s failure to affirmatively state that it

considered the allocution does not rise to the level of constitutional error. Further,

this court has never required the trial court to discuss in its sentencing opinion

every consideration that factors into its sentence. Rather, our precedent

establishes that any such error is cured by our independent sentence evaluation.

Accordingly, this court should independently review the allocution and the

sentence and determine whether the penalty imposed is in conformity with others

in which the death penalty has been imposed.

Allocution

{¶ 103} The purpose of allocution is “to permit a convicted defendant an

opportunity to plead personally to the court for leniency in his sentence,” United

States v. Tamayo, 80 F.3d 1514, 1518 (11th Cir.1996), based on the consideration

that “[t]he most persuasive counsel may not be able to speak for a defendant as

the defendant might, with halting eloquence, speak for himself,” Green v. United

States, 365 U.S. 301, 304, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961) (Frankfurter, J.,

plurality opinion). Thus, courts recognize that “[t]he right to allocute is no more

than the defendant's ‘right to stand before the [sentencer] and ask in his own voice

that he be spared.’ ” People v. Davis, 794 P.2d 159, 192 (Colo.1990), quoting

State v. Zola, 112 N.J. 384, 430, 548 A.2d 1022 (1988).

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{¶ 104} There is no recognized constitutional right to allocution. In Hill v.

United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), the

Supreme Court rejected a claim that the Constitution requires the trial court to

invite an accused represented by counsel to make a statement before sentencing,

explaining that the failure to do so “is an error which is neither jurisdictional nor

constitutional. It is not a fundamental defect which inherently results in a

complete miscarriage of justice, nor an omission inconsistent with the

rudimentary demands of fair procedure.” And in McGautha v. California, 402

U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), judgment vacated sub nom.

Crampton v. Ohio, 408 U.S. 941, 92 S.Ct. 2873, 33 L.Ed.2d 765 (1972), the court

noted that “Ohio has provided for retention of the ritual of allocution, albeit only

in its common-law form, precisely to avoid the possibility that a person might be

tried, convicted, and sentenced to death in complete silence. We have held that

failure to ensure such personal participation in the criminal process is not

necessarily a constitutional flaw in the conviction.”

{¶ 105} The Sixth Circuit Court of Appeals has also held that “[t]here is

no constitutional right to allocution under the United States Constitution,”

Pasquarille v. United States, 130 F.3d 1220, 1223 (6th Cir.1997), and that federal

law does not require Ohio to afford the accused an opportunity to make an

unsworn statement, Bedford v. Collins, 567 F.3d 225, 237 (6th Cir.2009).

Notably, the Sixth Circuit is not alone; almost every federal circuit court has held

that allocution is not a constitutional right. See United States v. Picard, 464 F.2d

215, 220 (1st Cir.1972), fn. 9; United States v. Li, 115 F.3d 125, 132 (2d

Cir.1997), fn. 3; United States v. Saferstein, 673 F.3d 237, 243 (3d Cir.2012);

United States v. Lighty, 616 F.3d 321, 365 (4th Cir.2010); United States v. Reyna,

358 F.3d 344, 349 (5th Cir.2004); United States v. Covington, 681 F.3d 908, 910

(7th Cir.2012); United States v. Hoffman, 707 F.3d 929, 937 (8th Cir.2013);

United States v. Smith, 705 F.3d 1268, 1274 (10th Cir.2013); United States v.

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Fleming, 849 F.2d 568, 569 (11th Cir.1988). It is only the Ninth Circuit that

concludes that “the denial of the right to allocute is a due process violation.”

United States v. Dablan, 205 Fed.Appx. 620, 622 (9th Cir.2006).

{¶ 106} This court has previously suggested that the Constitution does not

require allocution at the sentencing hearing. In State v. Lynch, 98 Ohio St.3d 514,

2003-Ohio-2284, 787 N.E.2d 1185, we rejected a claim that the trial court

violated the constitutional rights of the accused by denying his request to give his

statement through questioning by counsel, explaining that “the majority view

[regarding the right to allocution] does not support a holding that a defendant has

a constitutional right even to make an unsworn statement, let alone an unsworn

statement in a question-and-answer format.” Id. at ¶ 103. And in Lancaster v.

Green, 175 Ohio St. 203, 192 N.E.2d 776 (1963), we denied a writ of habeas

corpus to an offender who claimed that the trial court’s failure to include the

allocution in the sentence invalidated it, stating that “the failure to include the

allocution in the certificate of sentence did not void the sentence. In fact, the

absolute failure to accord petitioner this right is not a ground for relief by habeas

corpus.” Id. at 206, citing Hill, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417.

Confusion regarding Allocution

{¶ 107} The term “allocution” has been used to refer to different

statements made by an offender. For example, a statement made by a defendant

at the time of a plea has been described as an allocution. Such a statement can

give a court a factual basis to adjudicate guilt. United States v. Garcia, 587 F.3d

509, 514 (2d Cir.2009) (explaining that the trial court may examine the accused’s

plea allocution in determining whether a sufficient factual basis supports the

plea); State v. Jones, 6th Dist. Sandusky No. S-08-034, 2010-Ohio-1780, ¶ 17 (“A

plea allocution is conducted only after the individual has been fully apprised of

and waived a litany of constitutional rights, including Fifth Amendment rights”).

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{¶ 108} In Ohio, R.C. 2929.03(D)(1) permits an accused to make a

statement to the jury or fact-finder during the penalty phase of a capital-murder

trial and further provides that such a statement is not subject to cross-examination

unless the accused makes the statement under oath. This unsworn statement

permits the accused to address the jury or fact-finder in an effort to influence the

penalty recommendation and is sometimes referred to as allocution, but in fact, it

is a part of the penalty phase of the trial. State v. Campbell, 90 Ohio St.3d 320,

326, 738 N.E.2d 1178 (2000); State v. Roe, 41 Ohio St.3d 18, 26, 535 N.E.2d

1351 (1989) (noting that the statute provides that all mitigating evidence must be

presented before the jury makes a recommendation in the penalty phase of trial;

“[a] defendant may not wait for an unfavorable jury recommendation before

presenting all relevant evidence in mitigation of sentence”).

{¶ 109} The foregoing examples of statements are not implicated in this

case. Rather, the common-law right to allocution applicable in capital and

noncapital cases is contained in Crim.R. 32(A)(1), which directs the trial court,

prior to imposing sentence, to afford counsel an opportunity to speak on behalf of

the defendant and to address the defendant personally and ask if he or she wishes

to make a statement in his or her own behalf or present any information in

mitigation of punishment. This statement is not made under oath, is not subject to

cross-examination, and is not evidence—but it can be considered by the court in

imposing its sentence.

{¶ 110} We distinguished the right to make an unsworn statement afforded

by R.C. 2929.03(D)(1) from the allocution before sentence is pronounced in

Campbell, where we said, “No authority requires a trial court to inform a capital

defendant of his right to make an unsworn, penalty-phase statement. Crim.R.

32(A)(1) does not apply, because an unsworn statement under R.C. 2929.03(D)(1)

is not an allocution under the rule.” (Emphasis added.) Id. at 326. Thus, a

penalty-phase statement may be relevant to weighing whether the aggravating

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circumstances were sufficient to outweigh the mitigating factors, but an allocution

is not.

{¶ 111} In this case, pursuant to our order on remand, the trial court

allowed Roberts to allocute prior to reimposing sentence. And before it imposed

the sentence, the court stated that it had considered the record and the oral

statements, which included her allocution. In my view, no reasonable inference

may be drawn from the failure of the trial court to specifically incorporate the

content of the allocution made by Roberts in its sentencing opinion. Obviously,

because we remanded for that right to be accorded before sentencing, the trial

court listened to Roberts and was aware of what she presented. In this case, then,

“ ‘[t]here is no showing of irregularity to contradict the presumption of regularity

accorded all judicial proceedings.’ ” State v. Raber, 134 Ohio St.3d 350, 2012-

Ohio-5636, 982 N.E.2d 684, ¶ 19, quoting State v. Sweet, 72 Ohio St.3d 375, 376,

650 N.E.2d 450 (1995).

{¶ 112} We have previously held that in considering mitigating factors in

a capital-offense sentencing opinion, the failure to incorporate and discuss all of

them in its sentencing opinion does not mean that the trial court did not consider

them and that such a failure is not reversible error. E.g., State v. Davis, 116 Ohio

St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 363; State v. Phillips, 74 Ohio St.3d 72,

102, 656 N.E.2d 643 (1995). In Phillips, we considered the argument that “the

trial court's sentencing opinion fail[ed] to give effect to all of the mitigation

evidence offered by appellant.” Id. We concluded:

[Phillips] erroneously assumes that evidence that is not specifically

mentioned in an opinion was not considered. While a sentencing

court must consider all evidence of mitigation, it need not discuss

each factor individually. Parker v. Dugger (1991), 498 U.S. 308,

314–315, 111 S.Ct. 731, 736, 112 L.Ed.2d 812, 822. Further, even

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if “the trial court in this case should have more explicitly analyzed

the mitigating evidence,” this court's independent reweighing will

rectify the error. State v. Lott (1990), 51 Ohio St.3d 160, 171-172,

555 N.E.2d 293, 305.

Id. We therefore rejected that claim.

{¶ 113} This case is less egregious than Phillips, because the allocution

statement made by Roberts before sentencing is not evidence; rather it is an

opportunity for the defendant to make a personal statement in her own behalf or to

present any information in mitigation of punishment, such as an apology, a

request for mercy, or an appeal for leniency. A trial court may exercise its

discretion in considering the allocution when imposing sentence.

{¶ 114} The majority confuses allocution—which is not evidence—with

the opportunity to present an unsworn statement in the penalty phase of the trial

and the right to present mitigating evidence to the jurors or fact-finders, and it

concludes that the sentence of death violated the Eighth Amendment, specifically

because the allocution contained relevant mitigating evidence. It is true that a

sentencer cannot refuse to consider mitigating evidence before imposing the death

penalty, see, e.g., Eddings v. Oklahoma, 455 U.S. 104, 113-114, 102 S.Ct. 869, 71

L.Ed.2d 1 (1982), but in this case, Roberts had waived her right to present

mitigating evidence during the penalty phase of the trial.

{¶ 115} More significantly, however, an unsworn statement in allocution

is not evidence. Biddinger v. State, 868 N.E.2d 407, 413 (Ind.2007); People v.

Davis, 794 P.2d at 192. Nor is allocution intended to prove or disprove facts

relevant to sentencing. State v. Lord, 117 Wash.2d 829, 897, 822 P.2d 177

(1991); Davis at 192. Thus, an allocution statement made prior to sentencing

pursuant to Crim.R. 32(A)(1) is not admissible evidence. See Evid.R. 603;

Allstate Ins. Co. v. Rule, 64 Ohio St.2d 67, 69, 413 N.E.2d 796, 798 (1980)

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(“Section 7 of Article I of the Constitution of Ohio requires an oath or affirmation

as a prerequisite to the testimony of a witness” [footnote omitted]); Stores Realty

Co. v. Cleveland, 41 Ohio St.2d 41, 42, 322 N.E.2d 629 (1975) (“it is error for

unsworn testimony to be admitted in evidence”); Clinton v. State, 33 Ohio St. 27

(1877), paragraph two of the syllabus (“every one offered as a witness in a court

must take an oath or affirmation before giving testimony”).

{¶ 116} I therefore disagree with the conclusion of the majority that

Roberts’s statement “contained much information whose relevance as mitigation

was clear.” Majority opinion at ¶ 57. Because the allocution offered by Roberts

prior to the imposition of sentence is not evidence, it has no significance in

establishing any mitigating factor.

Conclusion

{¶ 117} Neither the United States nor the Ohio Constitution requires a trial

court to permit allocution by a person convicted of a crime. Rather, in Ohio, the

legislature has allowed a capital defendant to make a penalty-phase statement on

his own behalf and to provide any information relevant to the penalty that should

be imposed. But an unsworn allocution statement made after the penalty phase is

not mitigating evidence. The omission of any reference to what Roberts said

during allocution in the trial court’s sentencing opinion does not permit an

inference that the court failed to consider those statements, nor does it constitute

reversible error.

{¶ 118} Even if the failure to refer to the allocution in the sentencing

opinion did constitute error, “[o]ur independent sentence evaluation and

reweighing can cure the effect of errors in previous death-penalty sentencing

decisions.” State v. Bey, 85 Ohio St.3d 487, 505, 709 N.E.2d 484 (1999).

Although the sentencer’s consideration of mitigating evidence is mandated by the

Constitution, Eddings, 455 U.S. at 113-114, 102 S.Ct. 869, 71 L.Ed.2d 1, we

have held that our independent review can cure a trial court’s failure to explain

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how it weighed that evidence, State v. Hill, 75 Ohio St.3d 195, 210, 661 N.E.2d

1068 (1996). And we have recognized that “ ‘[w]hile a sentencing court must

consider all evidence of mitigation, it need not discuss each factor individually.’ ”

State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 363, quoting

Phillips, 74 Ohio St.3d at 102, 656 N.E.2d 643. Tellingly, in Clemons v.

Mississippi, 494 U.S. 738, 750, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990), the court

explained that the sentencer need not make written findings concerning mitigating

circumstances in order for an appellate court to perform an independent sentence

evaluation. Thus, contrary to the majority’s conclusion here, the failure to discuss

the allocution does not hinder our independent review of the sentence.

{¶ 119} And if it is not reversible error to fail to explain how a court

weighed mitigating evidence, how can it be reversible error to fail to refer to the

allocution in a sentencing opinion when that allocution is not evidence?

{¶ 120} Accordingly, there is no reason for this court to reverse the

sentence based on the trial court’s failure to expressly mention in its sentencing

opinion that it had considered Robert’s unsworn statement. I would overrule

proposition of law II and address the remaining propositions of law on the merits.

KENNEDY, J., concurs in the foregoing opinion.

____________________

Dennis Watkins, Trumbull County Prosecuting Attorney, and LuWayne

Annos, Assistant Prosecuting Attorney, for appellee.

David L. Doughten and Robert A. Dixon, for appellant.

________________________

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