[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. O’Malley v. Collier-Williams, Slip Opinion No. 2018-Ohio-3154.]

NOTICE This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of De cisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O . 2018-O HIO -3154
T HE S TATE EX REL . O’M ALLEY v. C OLLIER -W ILLIAMS , J UDGE . [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State ex rel. O’Malley v. Collier-Williams, Slip Opinion No. 2018-Ohio-3154.] Mandamus and prohibition

— Judge lacked jurisdiction to invalidate a jury waiver and impanel a jury for sentencing only

— Writ of prohibition granted. (No. 2017-0346—Submitted February 13, 2018—Decided August 9, 2018.)
I N P ROHIBITION and M ANDAMUS

.

_______________ Per Curiam. {¶ 1} In this original action, relato r, Cuyahoga County Prosecuting Attorney Michael C. O’Malley, seeks writs of prohibition and mandamus to prevent respondent, Cuyahoga County Common Pleas Court Judge Cassandra CollierWilliams, from empaneling a jury for inte rvening-respondent Kelly Foust’s capitalmurder resentencing hearing. We hold that Judge Collier-Williams patently and unambiguously lacks jurisdiction to empanel a jury for a resentencing hearing in aS UPREME C OURT OF O HIO

2 capital-murder case when the defendant has validly waived a jury trial. We therefore grant O’Malley a writ of prohibition and order Judge Collier-Williams to vacate her March 9, 2017 journal entry granting Foust’s renewed motion for a capital resentencing hearing before a jury . We deny as moot O’Malley’s request
for a writ of mandamus. I. Background {¶ 2} In 2001, the Cuyahoga County Grand Jury indicted Foust on six counts of aggravated murder and 20 other felony counts. Each aggravated-murder count included six aggravating circumst ances: one course-of-conduct specification and five felony-murder specifications for aggravated burglary, aggravated robbery, kidnapping, rape, and aggravated arson. {¶ 3} Foust waived his right to a jury. A three-judge panel convicted him on five counts of aggravated murder a nd the related capital specifications, the
lesser-included offense of mu rder, and some of the noncapital counts. Following a mitigation hearing, the panel unanimously determined that, beyond a reasonable doubt, the aggravating circumstances outwe ighed the mitigating circumstances and
sentenced Foust to death. We affirmed Foust’s convictions and death sentence on appeal. State v. Foust , 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836. {¶ 4} In 2011, the United States Court of Appeals for the Sixth Circuit granted Foust a writ of habeas corpus, holdi ng that his trial counsel’s performance during the mitigation hearing was constitutionally ineffective. Foust v. Houk , 655 F.3d 524 (6th Cir.2011). The Sixth Circuit vacated Foust’s death sentence and remanded his case to the trial court for a “new penalty-phase trial.” Id. at 546. {¶ 5} On remand in August 2012, the state asked the trial court to find that Foust’s jury waiver applies to the ne w penalty-phase hear ing and to schedule Foust’s resentencing hearing before a three-judge panel. Judge Collier-Williams agreed. Almost a month later, Foust file d a motion requesting a jury for his penalty-January Term, 2018

3 phase hearing, which the state opposed. Judge Collier-Williams denied Foust’s motion on April 4, 2013. The hearing was then postponed numerous times. {¶ 6} On March 7, 2017, Foust filed a “renewed” motion for a penaltyphase hearing before a jury based on Hurst v. Florida , __ U.S. __, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). Foust contended that Hurst represents a “dramatic change” in the law, guaranteeing “a capital defendant an unequivocal right to a jury determination of every fact necessary to impose a sentence of death.” Foust also argued that he was entitled to withdraw his earlier jury waiver, citing State v. Davis , 139 Ohio St.3d 122, 2014-Ohio-1615, 9 N.E.3d 1031, for the proposition that “neither res judicata nor the law of the case precluded full consideration of the merits of a motion to withdraw a jury waiver for a new mitigation phase.” {¶ 7} Over the state’s opposition, Judge Collier-Williams granted Foust’s renewed motion for a jury on March 9, 2017. After reviewing “all the relevant matters including, but not limited to,” Davis and Hurst , she made the following findings:

[T]he defendant has a 6th Amendm ent right to have the specific findings authorizing the imposition of the sentence of death to be made by a jury. Regardless of the fact that the defendant waived his right to a jury 16 years ago, that waiver does not supercede [sic] his right to now demand a jury for the mitigation phase of his case. This court further finds that R.C. 2929.06(B) does not prevent the defendant from demanding a jury. While the statute sets forth the procedure for the sentencing/mitigation phase, it does not strip the defendant of his constitutional right to demand a jury. Finally, this court finds that the impaneling of a jury to hear this mitigation phase will not prejudice the state of Ohio. * * * Therefore, defendant’s motion for jury is hereby granted.S UPREME C OURT OF O HIO

4 {¶ 8} On March 10, 2017, O’Malley filed his complaint for writs of prohibition and mandamus. Judge Collier-Williams filed a motion to dismiss for failure to state a claim for relief in either prohibition or mandamus. Foust filed a motion to intervene as a respondent together with a motion to dismiss or for judgment on the pleadings. On July 26, 2017, we granted Foust’s motion to intervene, denied Judge Collier-Williams’s and Foust’s motions to dismiss, and granted O’Malley an alternative writ. 150 Ohio St.3d 1405, 2017-Ohio-6964, 78 N.E.3d 907. O’Malley and Foust each filed a statement of facts and evidence, and
Collier-Williams filed evidence. II. Legal Analysis A. Writ of Prohibition {¶ 9} A writ of prohibition is an extraordinary remedy that is granted in limited circumstances “with great caution and restraint.” State ex rel. Corn v.
Russo , 90 Ohio St.3d 551, 554, 740 N.E.2d 265 (2001). O’Malley is entitled to the writ only upon a showing that (1) Judge Collier-Williams is about to exercise or has exercised judicial power, (2) her exercise of that power is unauthorized by law, and (3) denying the writ would result in injury for which no other adequate remedy exists in the ordinary course of the law. State ex rel. Elder v. Camplese , 144 Ohio St.3d 89, 2015-Ohio-3628, 40 N.E.3d 1138, ¶ 13. O’Malley need not establish the lack of an adequate remedy at law if Judge Collier-Williams’s lack of jurisdiction is “patent and unambiguous.” State ex rel. Vanni v. McMonagle , 137 Ohio St.3d 568, 2013-Ohio-5187, 2 N.E.3d 243, ¶ 6. {¶ 10} In this case, the first element is not in dispute: Judge CollierWilliams clearly exercised judicial power by granting Foust’s motion to revoke his jury waiver and to empanel a jury for his capital resentencing hearing.January Term, 2018

5 1. Adequate Remedy {¶ 11} Judge Collier-Williams and Fous t contend that under R.C. 2945.67(A), which delineates when a prosecu tor may appeal, O’Malley could have sought a discretionary appeal in the Eigh th District Court of Appeals from the judge’s order granting Foust’s renewe d motion to empanel a jury for his resentencing. Thus, they argue that O’Malley has an adequate remedy at law that precludes a writ of prohibition. {¶ 12} O’Malley, on the other hand, contends that a discretionary appeal to the Eighth District pursuant to R.C. 2945.67(A) is not an adequate remedy, because that court has held that the state may seek leave to appeal only a final, appealable order, which Collier-Williams ’s March 9, 2017 journal en try is not. He cites State
v. Colon , 8th Dist. Cuyahoga No. 103150, 2016-Ohio-707, ¶ 11-12, 14, in which the Eighth District granted the state leave to appeal but later dismissed the case for lack of a final, appealable order. The court reasoned, “When ruling on the state’s motion for leave to appeal, courts must consider R.C. 2945.67 in conjunction with R.C. 2505.02 and 2505.03(A).” Those provisions define a final order and provide instruction on the process for appeal. The court of appeals concluded that the state could seek leave to appeal only a final, appealable order. Id . at ¶ 11. We declined jurisdiction

. 146 Ohio St.3d 1491, 2016-Ohio-5585, 57 N.E.3d 1171. {¶ 13} For a remedy to be adequate, it must, among other things, be complete and beneficial. State ex rel. Smith v. Cuyahoga Cty. Court of Common
Pleas , 106 Ohio St.3d 151, 2005-Ohio-4103, 832 N.E.2d 1206, ¶ 19. O’Malley argues that a discretionary appeal unde r R.C. 2945.67(A) is inadequate because it could never be beneficial in light of the Eighth District’s ruling in Colon . But beneficial does not mean successful, and th is court has held that failing to receive
a favorable decision does not re nder the remedy inadequate. State ex rel. Nichols v. Cuyahoga Cty. Bd. of Mental Retardation & Dev. Disabilities , 72 Ohio St.3d 205, 209, 648 N.E.2d 823 (1995). O’Malley conced es as much, but maintains thatS UPREME C OURT OF O HIO

6 because “the Eighth District categorically precludes the State from ever seeking leave to appeal” absent a final, appealable order and “does so specifically on jurisdictional grounds,” his remedy is rendered inadequate. {¶ 14} O’Malley’s attempt to distinguish his case falls short. Despite the holding of Colon , he was not actually prevented from seeking leave to appeal Judge Collier-Williams’s order. Had the Eighth District denied O’Malley leave to appeal the March 9, 2017 order, the state could have s ought leave to appeal to this court.
See S.Ct.Prac.R. 5.02 (jurisdictional appeal s). It is well established that “a ‘[d]iscretionary right of appeal * * * [constitutes] a sufficiently plain and adequate remedy in the ordina ry course of the law.’ ” State ex rel. Hardesty v.
Williamson , 9 Ohio St.3d 174, 176, 459 N.E.2d 552 (1984), quoting State ex rel.
Cleveland v. Calandra , 62 Ohio St.2d 121, 122, 403 N.E.2d 989 (1980). {¶ 15} We have “consistently held that prohibition cannot be used as a substitute” when a discretionary appeal is available. Hardesty at 176. The “mere fact that this remedy may no longer be available because” the relator failed to pursue it “does not entitle [the relator] to the requested extraordinary relief in prohibition.” State ex rel. Hamilton Cty. Bd. of Commrs. v. Hamilton Cty. Court of
Common Pleas , 126 Ohio St.3d 111, 2010-Ohio-2467, 931 N.E.2d 98, ¶ 38. 2. Patent and Unambiguous Lack of Jurisdiction {¶ 16} Although O’Malley has an adequate remedy at law, he may still be entitled to a writ of prohibition if Judge Collier-Williams patently and unambiguously lacks jurisdiction to act. State ex rel. State v. Lewis , 99 Ohio St.3d 97, 2003-Ohio-2476, 789 N.E.2d 195, ¶ 18. {¶ 17} Judge Collier-Williams argues that she has basic subject-matter jurisdiction over Foust’s resentencing pursuant to R.C. 2931.03. Quoting Pratts v. Hurley , 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, she contends that empaneling a jury for Foust’s resentencing, despite his prior valid jury waiver,
would be at most an error in the exer cise of jurisdiction and therefore notJanuary Term, 2018

7 appropriate for a writ of prohibition. Indee d, Ohio courts of common pleas do have “original jurisdiction of a ll crimes and offenses.” R.C. 2931.03. But contrary to the judge’s claims, “the mere fact that the Ohio court has basic statutory jurisdiction to determine” a case or class of cases “does not preclude a more specific statute * * * from patently and unambiguously dive sting the court of such jurisdiction.” Rosen v. Celebrezze , 117 Ohio St.3d 241, 2008-Ohio-853, 883 N.E.2d 420, ¶ 46. {¶ 18} There is such a specific statute here. When a capital offender’s death sentence is invalidated by a federal or st ate court and a resentencing ordered, R.C. 2929.06(B) controls. That provision states: “If the offender was tried by a jury,
the trial court shall impanel a new jury for the hearing. If the offender was tried by a panel of three judges, that panel or, if necessary, a new panel of three judges shall conduct the hearing.” (Emphasis added.) We have “ ‘consistently interpreted’ the word ‘shall’ in a legislative enactment ‘to make mandatory the provision in which it is contained, absent a clear and unequivocal intent that it receive a construction other than its ordinary meaning.’ ” State ex rel. Stewart v. Russo , 145 Ohio St.3d 382, 2016-Ohio-421, 49 N.E.3d 1272, ¶ 13, quoting State v. Palmer , 112 Ohio St.3d 457, 2007-Ohio-374, 860 N.E.2d 1011, ¶ 19. {¶ 19} Neither Judge Collier-Williams nor Foust contends that R.C. 2929.06(B) is ambiguous. Instead, quoting Hurst , __ U.S. __, 136 S.Ct. at 619, 193 L.Ed.2d 504, Judge Collier-Williams claims that the statute is invalid because the United States Supreme Court “unequivocally held that ‘[t]he Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of
death.’ ” {¶ 20} But we have already rejected this interpretation of Hurst . In State v.
Mason , __ Ohio St.3d __, 2018-Ohio-1462, __ N.E.3d __, ¶ 42, we observed that nothing in Hurst requires that “the jury alone [mus t] decide whether a sentence of death will be imposed” and held that Ohio’s death-penalty scheme does not violate the Sixth Amendment. Moreover, State v. Belton , 149 Ohio St.3d 165, 2016-Ohio-S UPREME C OURT OF O HIO

8 1581, 74 N.E.3d 319, presents a factual scenario similar to the one in the capital case underlying this original action and stands for the proposition that neither Hurst nor the Sixth Amendment requires a jury for a capital sentencing hearing when a defendant has waived his right to a jury for the trial phase

. Id . at ¶ 61 (“when a capital defendant in Ohio elects to waive his or her right to have a jury determine guilt, the Sixth Amendment does not guarantee the defendant a jury at the sentencing phase of trial”). {¶ 21} Judge Collier-Williams contends that Belton does not control the outcome in this case, because she “invalidat ed defendant Foust’s jury waiver and/or permitted defendant Foust to withdraw his jury waiver.” But a defendant cannot withdraw his jury waiver after the trial has commenced. See R.C. 2945.05 (“[Jury] waiver may be withdrawn by the defendant at any time before the commencement of the trial”); State v. Frohner , 150 Ohio St. 53, 80 N.E.2d 868 (1948), paragraph five of the syllabus. There is no author ity for the proposition that this rule ceases to apply when a case is remanded solely for resentencing. To the contrary, by seeking to withdraw his jury waiver for purposes of his resentencing hearing, Foust is essentially trying to achieve what Belton could not: to have a panel of judges for the guilt phase and a jury for the sentencing phase. {¶ 22} Alternatively, Foust argues that he cannot continue to be bound by his original jury waiver because Davis , he claims, “acknowledged” that “ ‘one cannot knowingly waive rights in connection with an unanticipated second trial.’ ”
Id ., 139 Ohio St.3d 122, 2014-Ohio-1615, 9 N.E.3d 1031, at ¶ 38, quoting State v. Campbell , 414 N.J.Super. 292, 298, 998 A.2d 500 (App.Div.2010). But in Davis , we cited Campbell only to reject this argument:

Davis’s argument that his 1984 [jury] waiver could not be knowing and intelligent when app lied to his 2009 resentencing because of changed circumstances appears to require that aJanuary Term, 2018

9 defendant waiving a jury trial possess more information than courts have usually held su fficient for a knowing and intelligent jury
waiver.

Davis at ¶ 41. {¶ 23} O’Malley asserts that Judge Collier-Williams patently and unambiguously lacks jurisdiction to create “a hybrid, nonstatutory sentencing procedure,” which she did when she gran ted Foust’s renewed motion to empanel a jury for his resentencing. He correctly states that the applicable statutes require a three-judge panel to conduct a new mitigation hearing following remand when a capital defendant has waived a jury for the guilt phase. See R.C. 2929.03(C)(2)(b)(i) (imposing sentence fo r a capital offense) and 2929.06(B) (resentencing after sentence of death is set aside). If we were to allow Judge Collier-Williams to proceed by empaneling a jury, the state would be prevented by double jeopardy from appealing the out come of that resentencing. {¶ 24} We have previously held that a court patently and unambiguously lacked jurisdiction to convene a jury for sentencing in a noncapital case in which the defendant had waived his right to a jury trial. See State ex rel. Mason v. Griffin
, 104 Ohio St.3d 279, 2004-Ohio-6384, 819 N.E.2d 644. In Griffin , we granted a writ of prohibition to stop a trial court from holding a noncapital sentencing hearing before a jury, purportedly to comply with Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We gr anted the requested writ because “[n]either the Ohio Constitution nor any st atute authorizes Judge Griffin to conduct a jury sentencing hearing.” Griffin at ¶ 15. Thus, the trial court patently and unambiguously lacked jurisdiction to order “a hybrid procedure * * * that is not sanctioned by any current or fo rmer version of a statute.” Id. at ¶ 17. {¶ 25} Accordingly, because O’Malley has established that Judge CollierWilliams patently and unambiguously lack ed jurisdiction to invalidate Foust’sS UPREME C OURT OF O HIO

10 previous jury waiver and empanel a jury fo r his resentencing hearing, we grant the requested writ of prohibition. B. Writ of Mandamus {¶ 26} Our issuing O’Malley a writ of prohibition renders his mandamus
claim moot. See State ex rel. Morenz v. Kerr , 104 Ohio St.3d 148, 2004-Ohio6208, 818 N.E.2d 1162, ¶ 35-37 (issuance of a writ of prohibition renders mandamus claim moot).
III. Conclusion {¶ 27} We grant O’Malley a writ of prohibition because Judge CollierWilliams patently and unambiguously lack s jurisdiction to empanel a jury forFoust’s capital resentencing hearing. Accordingly, we order Judge CollierWilliams to vacate the March 9, 2017 j ournal entry granting Foust’s renewed motion for a capital resentencing hearing be fore a jury and to conduct that hearing before a three-judge panel. We deny as moot O’Malley’s request for a writ of
mandamus. Writ of prohibition granted.
O’C ONNOR , C.J., and O’D ONNELL , F RENCH , F ISCHER , and D E G ENARO , JJ.,

concur. K ENNEDY and D E W INE , JJ., concur in judgment only.

_________________ Michael C. O’Malley, Cuyahoga Count y Prosecuting Attorney, and Kristen L. Sobieski and Christopher D. Schroede r, Assistant Prosecuting Attorneys, for
relator. Zukerman, Daiker & Lear Co., L.P.A., Larry W. Zukerman, and S. Michael Lear, for respondent. Robert L. Tobik, Cuyahoga County Public Defender, and Jeffrey M. Gamso, Assistant Public Defend er, for intervening respondent.

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