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9th District affirms Lorain County court’s ruling denying new mitigation trial

TRACEY BLAIR
Legal News Reporter

Published: September 11, 2020

A Lorain County trial court did not err when it denied a motion for a new mitigation trial in a capital murder case, the 9th District Court of Appeals recently ruled.
In 1996, Stanley Jalowiec was convicted of aggravated murder and sentenced to death. In January 2017, Jalowiec filed a motion for a new mitigation trial pursuant to Crim.R. 33 and Hurst v. Florida, 136 S.Ct. 616 (2016).
The trial court rejected Jalowiec’s argument that Ohio’s death-penalty scheme is unconstitutional in light of Hurst. The trial court also rejected Jalowiec’s argument that Hurst provided a basis for asserting that Ohio’s scheme is unconstitutional as applied in his case.
First, the appellate court addressed Jalowiec’s claim that Ohio’s death penalty scheme is unconstitutional based on Hurst.
In Hurst, the U.S. Supreme Court considered the constitutionality of Florida’s capital sentencing statute and invalidated the statute because it limited the jury’s role in sentencing to an advisory recommendation and did “not require the jury to make the critical findings necessary to impose the death penalty.”
Ninth District Judge Julie A. Schafer noted in her opinion that the Ohio Supreme Court has twice reviewed the Hurst decision as it relates to Ohio’s capital sentencing scheme.
“On both occasions the court determined that the basis upon which the Hurst court found Florida’s statute to be unconstitutional is not present in Ohio’s statute,” Schafer wrote. “As the basis for his motion for a new mitigation trial, Jalowiec cites to the United States Supreme Court’s decision in Hurst, holding that ‘[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.’ In addressing the merits of Jalowiec’s motion, the trial court considered the decisions of several Ohio courts holding that Hurst does not apply to Ohio’s capital sentencing scheme, and concluded that the Supreme Court of Ohio’s decision to that effect in State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, is controlling.
Next, the panel addressed Jalowiec’s argument that after Hurst, it is unconstitutional to tell a jury that its sentencing verdict is only a recommendation.
“In support of his argument, Jalowiec cites to the holding in Hurst: ‘The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.’ Focusing on the ‘mere recommendation’ phrase, Jalowiec argues the holding of Hurst is implicated by the fact that the jury in his case ‘[f]rom voir dire to jury deliberations’ was repeatedly told that their sentencing verdict was a recommendation, and the trial judge would ‘ultimately decide what sentence to impose,’ “ Schafer wrote.
“As it pertains to the process in Ohio, and the circumstances of his particular case, Jalowiec misconstrues the statement in Hurst that a ‘jury’s mere recommendation is not enough[,]’ and asks this court to consider it out of context.”
Schafer argued that Hurst did not touch on the issue Jalowiec has raised here: whether it is
constitutionally problematic to inform a jury that their decision regarding sentencing is a
recommendation.
“Hurst simply made clear that the Sixth Amendment requires that a jury must make the specific and critical finding that the defendant is eligible for the death penalty before the jury can recommend that the defendant be sentenced to death. After the jury makes its sentencing recommendation, Ohio judges are then required to find, independent of the jury’s recommendation, whether a death sentence should be imposed. This step operates as a ‘safeguard’ because a judge cannot find additional aggravating circumstances or increase the sentence beyond the jury’s recommendation. The authority of Ohio trial judges to weigh aggravating circumstances with mitigating factors is derived ‘wholly from the jury’s verdict’ and, therefore Ohio’s process is appropriate within the framework of the Sixth Amendment. Nothing in our reading of Hurst supports Jalowiec’s argument that it declared it unconstitutional
to inform the jury that their sentencing decision was a recommendation.”
Appellate judges Donna Carr and Jennifer Hensal concurred. The case is cited State v. Jalowiec, 2020-Ohio-4177.


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