[Cite as State v. Jalowiec , 2020-Ohio-4177.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO Appellee

v. STANLEY JALOWIEC Appellant C.A. No. 19CA011548

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 95CR046840

DECISION AND JOURNAL ENTRY Dated: August 24, 2020

SCHAFER, Judge. {¶1} Defendant-Appellant, Stanley Ja lowiec, appeals the judgment ent ry of the Lorain County Court of Common Pleas denying his motion for a new mitig ation trial. In light of the following, this Court affirms.

I. {¶2} In 1996, Jalowiec was convicted of aggravated murder and senten ced to death. We previously summarized the lengthy and complex history of this c ase in State v. Jalowiec , 9th Dist. Lorain No. 17CA011166, 2019-Ohio-2059, ¶ 2-3: [T]he facts [underlying this case] have been previously set out in State v. Jalowiec , 9th Dist. Lorain No. 14CA010548, 2015-Ohio-5042, ¶ 7-18 and State v. Jalowiec , 91 Ohio St.3d 220, 220-224 (2001). T he Supreme Court of Ohio a ffirmed Jalowiec’s conviction and sentence of death. Jalowiec , 91 Ohio St.3d at 240. The appellate history also includes: State v. Jalowiec , 9th Dist. Lorain No. 96CA006445, 1998 WL 178554 (Apr. 15, 1998) [hereinafter “ Jalowiec Direct Appeal ”] (direct appeal; a ffirming conviction); State v. Jalowiec , 9th Dist. Lorain Nos. 01CA007844, 01CA007847, 2002 WL 358637 (Mar. 6, 2002) (app eal of dismissal of motion for postconvi ction relief and three subsequ ent amended motions for postconviction re lief), appeal not accepted, 96 Ohi o St.3d 1439, 2002-2

Ohio-3344; Jalowiec v. Bradshaw , N.D.Ohio No. 1:03 CV 0645, 2008 WL 312655 (Jan. 31, 2008) (denial of petition for writ of habeas corpus); Jalowiec v. Bradshaw , 657 F.3d 293 (6th Cir.2011) (affirming denial of writ of habeas corpus); Jalowiec , 2015-Ohio-5042 (affirming denial o f motion for new trial), appe al not accepted, 149 Ohio St.3d 1405, 2017-Ohio-2822. In January 2017, Jalowiec filed a motion for leave to file a mo tion for a new mitigation trial pursuant to Crim.R. 33 and Hurst v. Florida , 136 S.Ct. 616 (2016). Attached to the motion was Jalow iec’s proposed motion for a new mitigation trial. The State responded in opposition. The trial court ultimately denied the motion for leave to file the motion f or a new mitigation trial. {¶3} In his most recent prior appeal to this Court, Jalowiec argued that the trial court

erred when it denied his motion for leave to file a motion for a new trial. This Court determined

that the trial court had not ruled on Jalowiec’s motion for lea ve. Instead, the trial court partially considered the merits of the motion for a new trial itself by d enying the motion with respect to Jalowiec’s argument that Ohio’s death penalty sentencing scheme is unconstitutional pursuant to

Hurst , but disregarding Jalowiec’s alternative argument that Ohio’s death penalty statute was unconstitutional as applied in this case. {¶4} Upon remand, the trial court gran ted Jalowiec’s motion for leav e to file a motion for a new trial. Considering the merits of the motion, the tri al court rejected Jalowiec’s argument that Ohio’s death-penalty scheme is unconstitutional in light o f Hurst . The trial court also rejected Jalowiec’s argument that Hurst provided a basis for asser ting that Ohio’s scheme is unconstitutional as applied in his case, and ruled that the arg ument was barred by the doctrine of res judicata. {¶5} Jalowiec appealed the trial cour t’s denial of his motion for a new trial and raised two assignments of error for our review. To facilitate our ana lysis, we consider his assignments of error in reverse sequence.3

II. Assignment of Error II The trial court erred by denying Jalowiec’s motion for a new mi tigation trial because Ohio’s death penalty scheme is unconstitutional based o n Hurst

. {¶6} In his second assignment of error, Jalowiec argues that the tri al court erred when it denied his motion for a new mitigation trial. Citing to the Un ited States Supreme Court’s decision

in Hurst , 136 S.Ct. at 616, Jalowiec contends that he was s entenced to death under a statut ory scheme that violates the Sixth a nd Fourteenth Amendments of the United States Constitution. Although Jalowiec raised this issue to the trial court in a mot ion for a new trial pursuant to Crim.R. 33(1), (4), and (5), his argument on appeal focuses only on his claim that Hurst invalidates Ohio’s capital sentencing scheme. {¶7} Crim.R. 33 permits a defendant to move for a new trial when his substantial rights have been materially affected. T he rule enumerates several gro unds upon which a defendant may

seek a new trial includi ng, in pertinent part: (1) Irregularity in the proceedings, or in any order or ruling of the court, or abuse of discretion by the court, because of which the defendant was prevented from having a fair trial;

* * * (4) That the verdict is not susta ined by sufficient evidence or is contrary to law. If the evidence shows the defendant is not guilty of the degree of crime for which he was convicted, but guilty of a l esser degree thereof, or of a l esser crime included therein, the court may modify the verdict or finding accordingl y, without granting or ordering a new trial, and sha ll pass sentence on such verdic t or finding as modified; (5) Error of law occurr ing at the trial[.] Crim.R. 33(A). Generally, a trial court’s decision to grant or deny the underlying motion for a

new trial is reviewed for an abuse of discretion. State v. Gilliam , 9th Dist. Lorain No.4

14CA010558, 2014-Ohio-5476, ¶ 8, citing State v. Jones , 9th Dist. Summit No. 26568, 2013-Ohio2986, ¶ 8. An abuse of discreti on implies the tr ial court’s de cision is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219 (1983). {¶8} As the basis for his motion for a new mitigation trial, Jalowie c 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 o f death.” Hurst , 136 S.Ct. at 619. In addressing the merits of Jalo wiec’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 conclu ded 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. The trial court rejected Jalow iec’s argument because Ohio’s death penalty scheme differs from the Florida death penalty statute h eld unconstitutional in Hurst , and because Ohio’s death penalty sc heme “is not unconstitutional ba sed upon the United States Supreme Court’s ruling in Hurst .” (Emphasis original.) In denying Jalowiec’s motion for a ne w trial on these grounds, the trial court also noted that every O hio court having “addressed a Hurst challenge to the constitutionality of Ohio’s death penalty stat utes has found the argument unpersuasive.” {¶9} In his merit brief, Jalowiec does not argue that the trial cour t abused its discretion in any manner specifically related to Crim.R. 33. Instead he c ontends that the trial court, in addition to the Supreme Court of Ohio, erred in interpreting Hurst . “When the question presented on appeal is strictly one of la w, this Court applies a de novo standard of review.” State v. Prade , 9th Dist. Summit No. 28193, 2018-Ohio-3551, ¶ 7. “A de novo re view requires an independent review of the trial court’s decision without any deference to [ its] determination.” State v. Consilio , 9th Dist. Summit No. 22761, 2006-Ohio-649, ¶ 4.5

{¶10} In Hurst , the United States Supreme Court considered the constitutional ity of Florida’s capital sentencing statute and invalidated the statut e because it limited the jury’s role in sentencing to an advisory recomme ndation and did “not require t he jury to make the critical findings necessary to impose the death penalty.” Hurst , 136 S.Ct. at 622. The Supreme Court of

Ohio has twice reviewed the Hurst decision as it relates to Ohio’s capital sentencing scheme. O n both occasions the Court determin ed that the basis upon which t he Hurst Court found Florida’s statute to be unconstitutional is not present in Ohio’s statute

. Belton , 2016-Ohio-1581; State v.

Mason , 153 Ohio St.3d 476, 2018-Ohio-1462. {¶11} Rejecting a challenge to the constitutionality of Ohio’s capita l sentencing scheme, the Supreme Court of Ohio observed that, unlike the Florida sta tute at issue in Hurst , “[i]n 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.” Belton at ¶ 59. An Ohio “judge cannot impose a sentence of deat h unless the jury has entered a unanimous verdict for a death

sentence.” Id . The Court again considered the constitutionality of Ohio’s d eath-penalty scheme under the holding of Hurst in Mason . In Mason , the Court found that, a lthough “Ohio trial judges may weigh aggravating circumstances against mitigating factors and impose a death sentence[,]” they may do so “only after the jury itself has made the critica l findings and recommended that

sentence.” Mason at ¶ 42. Accordingly, Mason held Ohio’s statute does no t violate the right to a trial by jury as guaranteed by the Sixth Amendment to the Unite d States Constitution. Id

. {¶12} Jalowiec has not demonstrated erro r in the trial court’s interp retation of the holding

in Hurst nor in its application of the S upreme Court of Ohio’s holdings in Belton and Mason as binding authority. Moreover, this Court is bound by the decisi ons in Belton and Mason that expressly reject the argument Jalowiec asks us to accept in sup port of his claim that he is entitled6

to a new mitigation trial. Conseque ntly, Jalowiec’s argument r egarding the applicability of Hurst to invalidate Ohio’s death penalty fails as a matter of law. T hus, we conclude Hurst has no bearing on the mitigation phase of Jalowiec’s trial, and the trial cour t did not err by denying his motion for

a new trial. {¶13} Jalowiec’s second assignment of error is overruled. Assignment of Error I

The trial court erred when it denied Jalowiec’s motion for a ne w mitigation trial because Jalowiec proved Ohio ’s death penalt y statute is u nconstitutional as applied to h is case. [ ]. {¶14} In his first assignment of error, Jalowiec asserts that, after Hurst , it is unconstitutional to tell a jury that its sentencing verdict is only a recommendation. Jalowiec

contends “ Hurst teaches that advisory jury ve rdicts are insufficient to suppor t a death sentence.” {¶15} Generally, we review a trial court’s denial of a motion for a n ew trial for an abuse

of discretion. Gilliam , 2014-Ohio-5476 at ¶ 8, citing Jones , 2013-Ohio-2986 at ¶ 8. However, Jalowiec contends that the trial court erred in its interpretat ion of law by finding that Hurst did not apply to the circumstances of his case and further erred in con cluding that the argument he raised in his Crim.R. 33 motion for a new trial was barred by res judi cata. Accordingly, this Court will apply a de novo standard of review to the issues Jalowiec raise s strictly as a question of law. Prade , 2018-Ohio-3551 at ¶ 7. {¶16} This is not the first time Jalowiec has argued to this Court th at the trial court erred by telling the jury that its sentencing decision was only a rec ommendation. In his direct appeal, Jalowiec argued in his twelfth assignment of error “that the tr ial court erred by referring to the jury’s decision in the penalty phase of the trial as a ‘recomme ndation’ during voir dire of the potential jurors, the guilt phase of the trial, the penalty pha se, and in the court’s instructions to the7

jury during the penalty phase.” Jalowiec Direct Appeal , 1998 WL 178554 at *13. This Court noted that, “[i]n its instructi ons to the jury, the trial court told the jury:” * * * It is going to be your responsibility at this point to de cide which sentence to recommend to the Court regarding the alternative charges of Agg ravated Murder with the specification. I have used the word recommend many times and the attorneys hav e used it, and I want to make sure that you unders tand that you are not to const rue that word to diminish your responsibility in this matter. It is an awesome task, and the fact thadt [ sic ] the word recommend is used should not be considered by you to lessen your task.

Id . This Court recognized that Jalowiec failed to object to the trial court’s penalty phase jury instructions below and had waived all but plain error with rega rd to the issue. Id . at *11. Consequently, this Court overrule d Jalowiec’s assignment of err or, holding that “‘[t]he term “recommendation” accurately reflects Ohio law and does not dimi nish the jury’s sense of responsibility. There is no error, plain or otherwise.’” Id . at *13, quoting State v. Moore , 81 Ohio St.3d 22, 37 (1998). {¶17} Jalowiec raised the argument again in his most recent motion fo r a new trial under the pretense of the holding in Hurst having some bearing on the issue. Initially, in its order overruling Jalowiec’s motion for a new trial, the trial court f ound that Jalowiec’s argument was barred by the doctrine of res judicata because his argument had been overruled in his direct appeal. Next, the trial court concluded Jalowiec’s argument lacked meri t because “there is nothing in the

Hurst * * * decision[] that suggest[s] that it is constitutionally p roblematic to inform potential jurors that the decision to impose death is a ‘recommendation’ to the court.” The trial court stated that the Supreme Court of Ohio “has repeatedly held that refere nces by the court or attorneys to death penalty “recommendations” is not constitutionally cogniza ble[,]” and concluded that the law on this point is the same today as it was at the time Jalowiec was tried and convicted.8

{¶18} In his merit brief, Jalowiec c ontends the “unique circumstances of [his] case make

his death sentence unconstitutional after Hurst .” As we indicated in the previous assignment of error, the Supreme Court of Ohi o has already determined that Hurst does not apply to Ohio’s capital sentencing scheme. Belton , 2016-Ohio-1581 at ¶ 58-59; Mason , 2018-Ohio-1462 at ¶ 19- 21. Still, in support of his argument, Jalowiec cites to the h olding in Hurst : “The Sixth Amendment requires a jury, not a judge, to find each fact necessary to im pose a sentence of death. A jury’s mere recommendation is not enough.” Hurst , 136 S.Ct. at 619. Focusing on the “mere recommendation” phrase, Jalow iec argues the holding of Hurst is implicated by the fact that the jury in his case “[f]rom voir dire to jury deliberations” was r epeatedly told that their sentencing verdict was a recommendation, a nd the trial judge would “ultima tely decide what sentence to impose.” {¶19} 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[,]”

Hurst at 619, and asks this Court to consider it out of context. In Hurst , the United States Supreme

Court deemed the Florida statute under review unconstitutional because it “required the jury to render an ‘advisory sentence’ after hearing the evidence in a s entencing-phase proceeding[.]”

Mason at ¶ 31. Specifically, the United States Supreme Court held t hat the Florida scheme violated “violated the Sixth Amendment because it did not require the ju ry to find that [a defendant] was guilty of committing a specific aggravating circumstance.” Id . However, Hurst did not create a requirement under the Sixth Ame ndment that the jury alone must decide whether a sentence of death will be imposed. {¶20} Hurst did not touch on the issue Jalowiec has raised here: whether i t is constitutionally problematic to inform a jury that their decisi on regarding sentencing is a9

recommendation. In contrast to th e Florida statute, Ohio “requ ires a jury to find the defendant guilty beyond a reasonable doubt of at least one aggravating ci rcumstance, R.C. 2929.03(B), before the matter proceeds to t he penalty phase, when the jury can recommend a death sentence.”

Id . at ¶ 32. Hurst simply made clear that the Sixth Amendment requires that a jur y must make the specific and critical finding tha t the defendant is eligible fo r the death penalty before the jury can

recommend that the defendant be sentenced to death. See id . at ¶ 32. After the jury makes its sentencing recommendation, Ohio judges are then required to fin d, independent of the jury’s recommendation, whether a death se ntence should be imposed. Th is step operates as a “safeguard” because a judge cannot find add itional aggravating circumstance s or increase the sentence beyond the jury’s recommendation. Id . at ¶ 40. The authority of Ohio trial judges to weigh aggrava ting circumstances with mitigating factors is derived “wholly from t he jury’s verdict” and, therefore, Ohio’s process is appropriate within the framework of the Sixth Amendment. Mason at ¶ 42. Nothing in our reading of Hurst supports Jalowiec’s argument t hat it declared it unconstitutio nal to inform the jury that their sentencing decision was a recomme ndation. Thus, we conclude, Hurst had no bearing on Jalowiec’s “as-a pplied” argument in his motio n for a new trial. {¶21} Because Hurst breathes no new life into the issue of the constitutionality o f informing an Ohio jury that its decision as to whether a defend ant should be sentenced to death is a recommendation, Jalowiec has not identified a meritorious bas is to revisit this issue. Absent

Hurst —the sole alleged basis for Jalowiec’s motion for new trial—the underlying issue was already decided on direct appeal. Jalowiec Direct Appeal , at *13. Therefore, we conclude that

the trial court did not abuse its discretion by concluding that Hurstdid not apply to Jalowiec’s asapplied argument, nor did the c ourt err by concluding that the argument was barred by res judicata. {¶22} Jalowiec’s first assignment of error is overruled.10

III. {¶23} Jalowiec’s first and second assi gnments of error are overruled. The judgment of the Lorain County Court of C ommon Pleas is affirmed. Judgment affirmed.

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitu te the mandate, pursuant to Ap p.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

JULIE A. SCHAFER FOR THE COURT

CARR, P. J. HENSAL, J. CONCUR.11

APPEARANCES: RICHARD A. CLINE, Senior Assistant Public Defender, and MICHELL E UMANA, Assistant Public Defender , for Appellant. DENNIS P. WILL, Prosecuting Attorney, and LINDSEY C. POPROCKI, Assistant Prosecuting Attorney, for Appellee.