[Cite as State v. Bryan, 2018-Ohio-1190.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 105774

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

QUISI BRYAN

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-00-393660-ZA 

BEFORE: S. Gallagher, J., E.T. Gallagher, P.J., and Stewart, J. 

RELEASED AND JOURNALIZED: March 29, 2018 
ATTORNEYS FOR APPELLANT 

Timothy Young 

Ohio Public Defender 

By: Kathryn Sandford 

Assistant State Public Defender 

250 East Broad Street, Suite 1400 

Columbus, Ohio 43215 

ATTORNEYS FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

By: Christopher D. Schroeder 

Assistant Prosecuting Attorney 

Justice Center - 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
SEAN C. GALLAGHER, J.: 

{¶1} Appellant Quisi Bryan appeals the trial court’s denial of his motion for 

leave to file a motion for a new mitigation trial. Upon review, we affirm the trial court’s 

decision because the motion for leave was untimely. 

{¶2} After a jury trial, Bryan was found guilty of two counts of aggravated murder 

for the killing of a police officer, two counts of attempted murder of another individual, 

carrying a concealed weapon, having weapons while under disability, and tampering with 

evidence. The jury also found Bryan guilty of death penalty specifications and firearm 

specifications. Bryan was sentenced to death for the murder and to prison for the 

remaining offenses. His convictions and death sentence were affirmed in State v. Bryan, 

101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433. 

{¶3} On January 11, 2017, Bryan filed a motion for leave to file a motion for a 

new mitigation trial that the state opposed. The trial court denied the motion. The trial 

court found that the motion “incorrectly proceeds under Crim.R. 33” instead of R.C. 

2953.23 and also that the court was “bound to follow the Supreme Court of Ohio in State 

v. Belton, [149 Ohio St.3d,] 2016-Ohio-1581, [74 N.E.3d 319], which found Ohio’s death 

penalty statute constitutional under Hurst v. Florida, 577 U.S. __, 136 S.Ct. 616[, 193 

L.Ed.2d 504] (2016).” Further, the court recognized that the Supreme Court of Ohio had 

“unanimously denied [Bryan’s] motion for order or relief on March 15, 2017[,]” which 

motion had raised the same issues. 
{¶4} Bryan filed this appeal from the trial court’s decision. He raises two 

assignments of error for our review. 

{¶5} Under his first assignment of error, Bryan claims the trial court erred by 

denying his motion. He argues that the trial court incorrectly determined that his motion 

should have been filed under R.C. 2953.23 when his motion was brought pursuant to 

Crim.R. 33. We recognize that “Crim.R. 33 procedures for a new trial exist 

independently from the R.C. 2953.21 procedure for postconviction relief.” State v. 

Cashin, 10th Dist. Franklin No. 17AP-338, 2017-Ohio-9289, ¶ 13. Although the trial 

court’s determination was incorrect in this regard, we may affirm the decision of the court 

as long as it is legally correct on other grounds. State v. Gulley, 8th Dist. Cuyahoga No. 

101527, 2015-Ohio-3582, ¶ 12, citing State v. Payton, 124 Ohio App.3d 552, 557, 706 

N.E.2d 842 (12th Dist.1997); Reynolds v. Budzik, 134 Ohio App.3d 844, 846, 732 N.E.2d 

485 (6th Dist.1999), fn. 3. 

{¶6} The record reflects that Bryan filed his motion for leave to file a motion for a 

new mitigation trial pursuant to Crim.R. 33. He asserted grounds for a new trial under 

Crim.R. 33(A)(1), (4), and (5), and claimed that his sentence was imposed in violation of 

the Sixth and the Fourteenth Amendments of the United States Constitution, citing Hurst, 

577 U.S. __, 136 S.Ct. 616, 193 L.Ed.2d 504. Although the state argues that Bryan’s 

attempt to raise a new constitutional claim does not fall under any of the grounds for a 

new trial and does not allow for a “new sentencing proceeding,” we need not reach these 

arguments herein. 
{¶7} A defendant who fails to timely file a motion for a new trial must seek leave 

from the trial court to file a delayed motion for a new trial. State v. Dues, 8th Dist. 

Cuyahoga No. 105388, 2017-Ohio-6983, ¶ 10, citing State v. Mathis, 134 Ohio App.3d 

77, 79, 730 N.E.2d 410 (1st Dist.1999). To obtain leave, Crim.R. 33(B) requires that the 

defendant must show clear and convincing proof that he was unavoidably prevented from 

filing his motion for a new trial. “[A] party is unavoidably prevented from filing a 

motion for a new trial if the party had no knowledge of the existence of the ground 

supporting the motion * * * and could not have learned of the existence of that ground 

within the time prescribed for filing the motion * * * in the exercise of reasonable 

diligence.” State v. Walden, 19 Ohio App.3d 141, 145-146, 483 N.E.2d 859 (10th 

Dist.1984). In addition, the defendant must show that he sought leave within a 

reasonable time after discovering the evidence relied upon to support the motion for new 

trial. State v. Nunez, 8th Dist. Cuyahoga No. 104917, 2017-Ohio-5581, ¶ 17, citing State 

v. Gray, 8th Dist. Cuyahoga No. 92646, 2010-Ohio-11, ¶ 18. 

{¶8} Bryan’s motion was premised on the United States Supreme Court’s decision 

in Hurst, in which the Court concluded that Florida’s death penalty statutory scheme 

violates the Sixth Amendment to the United States Constitution. The Hurst case was 

decided January 12, 2016, over five years after Bryan was sentenced to death. Bryan’s 

motion for leave was filed a year after Hurst was decided. Although Bryan argues that 

Hurst is a complex decision that takes time to digest and understand, we find a year 

exceeded a reasonable time for filing the motion. 
{¶9} In State v. Mundt, 7th Dist. Noble No. 17 NO 0446, 2017-Ohio-7771, the 

Seventh District found untimely a motion for leave to file a motion for a new mitigation 

trial that was filed a year after Hurst, 577 U.S. __, 136 S.Ct. 616, 193 L.Ed.2d 504. The 

court determined that Mundt had not shown he was unavoidably prevented from filing a 

motion when he “was capable of raising the same argument prior to Hurst using other 

cases as support.” Mundt at ¶ 9. The Seventh District cited the Supreme Court of 

Ohio’s decision in State v. Roberts, 150 Ohio St.3d 47, 2017-Ohio-2998, 78 N.E.3d 851, 

¶ 84, which found a defendant raising a Hurst claim “could have made essentially the 

same Sixth Amendment argument by relying on Apprendi v. New Jersey, 530 U.S. 466, 

120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 

2428, 153 L.Ed.2d 556 (2002).” The Seventh District also cited the Supreme Court of 

Ohio’s decision in Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, at ¶ 

59-60, which recognized “Ohio’s capital-sentencing scheme is unlike the laws at issue in 

Ring and Hurst.” As explained in Belton, 

In Ohio, a capital case does not proceed to the sentencing phase until after

the fact-finder has found a defendant guilty of one or more aggravating 

circumstances. See R.C. 2929.03(D); R.C. 2929.04(B) and (C); State v. 

Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 147. 

Because the determination of guilt of an aggravating circumstance renders 

the defendant eligible for a capital sentence, it is not possible to make a 

factual finding during the sentencing phase that will expose a defendant to 

greater punishment. Moreover, in Ohio, if a defendant is tried by a jury, 

then the judge cannot impose a sentence of death unless the jury has entered 

a unanimous verdict for a death sentence. R.C. 2929.03(D)(2). 

Federal and state courts have upheld laws similar to Ohio’s, 

explaining that if a defendant has already been found to be death-penalty 
eligible, then subsequent weighing processes for sentencing purposes do not 

implicate Apprendi and Ring. Weighing is not a fact-finding process 

subject to the Sixth Amendment, because “[t]hese determinations cannot 

increase the potential punishment to which a defendant is exposed as a 

consequence of the eligibility determination.” State v. Gales, 265 Neb. 

598, 628, 658 N.W.2d 604 (2003); see, e.g., State v. Fry, 2006-NMSC-001, 

138 N.M. 700, 718, 126 P.3d 516 (2005); Ortiz v. State, 869 A.2d 285, 

303-305 (Del.2005); Ritchie v. State, 809 N.E.2d 258, 268 (Ind.2004). 

Instead, the weighing process amounts to “a complex moral judgment” 

about what penalty to impose upon a defendant who is already 

death-penalty eligible. United States v. Runyon, 707 F.3d 475, 515-516 

(4th Cir.2013) (citing cases from other federal appeals courts). 

(Emphasis sic.) Belton at ¶ 59-60. 

{¶10} We agree with the Mundt decision and its application of the Supreme Court 

of Ohio’s decisions in Roberts and Belton. See Mundt at ¶ 8-11. We find that Bryan’s 

motion was untimely. 

{¶11} Accordingly, we need not address Bryan’s second assignment of error, 

which claims “Ohio’s capital punishment scheme, R.C. 2929.03 and R.C. 2929.05 and the 

procedure set forth therein, deprive a defendant of his Sixth Amendment right to a jury 

trial.” App.R. 12(A)(1)(c). Nonetheless, we recognize the First District’s recent 

decision in State v. Carter, 1st Dist. Hamilton No. C-170231, 2018-Ohio-645, which was 
submitted by the state as supplemental authority. In Carter, the court rejected a 

constitutional challenge to Ohio’s death penalty statute that argued the imposition of the 

death penalty requires judicial fact finding in violation of the Sixth Amendment right to a 

jury trial as set forth in Hurst, 577 U.S. __, 136 S.Ct. 616, 193 L.Ed.2d 504. The First 

District found as follows: 

Post-Hurst, the Ohio Supreme Court recognized that, unlike the 

Florida statute, under Ohio law “the determination of guilt of an 

aggravating circumstance renders the defendant eligible for a capital 

sentence,” and therefore “it is not possible to make a factual finding during 

sentencing phase that will expose a defendant to greater punishment.” 

State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 59. 

In other words, in Ohio a jury must first find a defendant guilty of an 

aggravating factor before the death penalty becomes a possibility. While 

Belton involved the 2008 version of Ohio’s death penalty statute, the 

relevant provisions are substantially similar to the ones under review today. 

 The key point from Belton is that the sentencing phase under Ohio law 

involves a weighing—not a fact-finding—process. Id. at ¶ 60. The Ohio 

jury’s role in the mitigation phase affords an extra layer of protection to the 

accused. Without a jury recommendation that the defendant be sentenced 

to death, that sentence is unavailable. The Ohio judge’s ability to reject a 

death sentence recommendation affords a safety valve and maintains a 
court’s traditional role in imposing punishment. These layers of protection 

afforded a defendant comply with Hurst. See State v. Jackson, 8th Dist. 

Cuyahoga No. 105530, 2018-Ohio-276; State v. Mason, 3d Dist. Marion 

No. 9-16-34, 2016-Ohio-8400. 

Carter at ¶ 8. We agree with the analysis in Carter.

{¶12} We also recognize that the Supreme Court of Ohio accepted discretionary 

review of the Hurst issue in State v. Mason, 3d Dist. Marion No. 9-16-34, 

2016-Ohio-8400, ¶ 48. In Mason, the defendant was granted federal habeas corpus relief 

as to his death sentence and, while his resentencing was pending, Hurst, 577 U.S. __, 136 

S.Ct. 616, 193 L.Ed.2d 504, was decided. The trial court then granted the defendant’s 

motion to dismiss the death-penalty specification from his indictment, and the state 

appealed. The Third District rejected the defendant’s Hurst claim and concluded that 

“Ohio’s death-penalty statute in effect in 1993 [R.C. 2929.03] does not violate the Sixth 

Amendment.” Mason at ¶ 48. The court noted that although the statute has been 

amended a number of times since 1993, none of those revisions changed the role of the 

jury or the judge. Id. at ¶ 21, fn. 5. The Hurst issue is also before the Supreme Court of 

Ohio in State v. Ford, Ohio S.Ct. No. 2015-1309. Neither of those cases involve a 

motion for leave to file a motion for a new mitigation trial. 

{¶13} Finally, we note that Bryan filed a motion for relief raising the same Hurst

claim in the Supreme Court of Ohio and that motion was denied. State v. Bryan, 148 

Ohio St.3d 1423, 2017-Ohio-905, 71 N.E.3d 296. 
{¶14} Because the motion for leave was untimely, we uphold the decision of the 

trial court. 

{¶15} Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. The 

court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. Case remanded to the trial court for 

execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

SEAN C. GALLAGHER, JUDGE 

EILEEN T. GALLAGHER, P.J., and 

MELODY J. STEWART, J., CONCUR