[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 Decisions, 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. 

SLIP OPINION NO. 2018-OHIO-3154

THE STATE EX REL. O’MALLEY v. COLLIER-WILLIAMS, JUDGE.

[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.) 

IN PROHIBITION and MANDAMUS. 

_______________ 

 Per Curiam.

{¶ 1} In this original action, relator, 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 intervening-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 a 
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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 circumstances: 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 and the related capital specifications, the 

lesser-included offense of murder, and some of the noncapital counts. Following a 

mitigation hearing, the panel unanimously determined that, beyond a reasonable 

doubt, the aggravating circumstances outweighed 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, holding 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 new penalty-phase hearing and to schedule 

Foust’s resentencing hearing before a three-judge panel. Judge Collier-Williams 

agreed. Almost a month later, Foust filed 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 Amendment 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. 
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{¶ 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 Foust contend that under R.C. 

2945.67(A), which delineates when a prosecutor may appeal, O’Malley could have 

sought a discretionary appeal in the Eighth District Court of Appeals from the 

judge’s order granting Foust’s renewed 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 entry 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 under 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 this court has held that failing to receive 

a favorable decision does not render 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 concedes as much, but maintains that 
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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 sought leave to appeal to this court. 

See S.Ct.Prac.R. 5.02 (jurisdictional appeals). It is well established that 

“a ‘[d]iscretionary right of appeal * * * [constitutes] a sufficiently plain and 

adequate remedy in the ordinary 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 exercise of jurisdiction and therefore not 
January Term, 2018 

7

appropriate for a writ of prohibition. Indeed, Ohio courts of common pleas do have 

“original jurisdiction of all 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 divesting 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 state 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 [must] 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-
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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 “invalidated 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 authority 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 applied to his 2009 resentencing 

because of changed circumstances appears to require that a 
January Term, 2018 

9

defendant waiving a jury trial possess more information than courts 

have usually held sufficient 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 granted 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 for 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 outcome 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 granted the requested writ because 

“[n]either the Ohio Constitution nor any statute 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 former version of a statute.” Id. at ¶ 17. 

{¶ 25} Accordingly, because O’Malley has established that Judge CollierWilliams patently and unambiguously lacked jurisdiction to invalidate Foust’s 
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previous jury waiver and empanel a jury for 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 lacks jurisdiction to empanel a jury for 

Foust’s capital resentencing hearing. Accordingly, we order Judge CollierWilliams to vacate the March 9, 2017 journal entry granting Foust’s renewed 

motion for a capital resentencing hearing before 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’CONNOR, C.J., and O’DONNELL, FRENCH, FISCHER, and DEGENARO, JJ., 

concur. 

KENNEDY and DEWINE, JJ., concur in judgment only. 

_________________ 

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kristen 

L. Sobieski and Christopher D. Schroeder, 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 Defender, for intervening respondent. 

_________________