State v. Powell , 2019 Ohio 4286 ( 2019 )

[Cite as State v. Powell, 2019-Ohio-4286.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals Nos. L-18-1194
L-18-1195
Appellee
Trial Court No. CR0200603581
v.
Wayne Powell DECISION AND JUDGMENT
Appellant Decided: October 18, 2019
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, Bethany L. O’Neill and
Erika M. LaHote, Assistant Public Defenders, for appellant.
*****
MAYLE, P.J.
{¶ 1} In this consolidated appeal, defendant-appellant, Wayne Powell, appeals two
separate orders of the Lucas County Court of Common Pleas, dated August 16, 2018.
The trial court denied Powell’s motion for funds to hire experts in support of his amended
postconviction petition, and denied his motion for a new mitigation trial. For the reasons
that follow, we affirm.
I. Facts and Procedural Background
{¶ 2} On November 22, 2006, Powell was indicted on one count of aggravated
arson, ten counts of aggravated murder, and 26 capital specifications. The charges arose
out of an arson fire at a two-story house in Toledo, Ohio, that killed four people.
{¶ 3} Before the trial, Powell requested and received funding for various experts.
Specifically, the trial court authorized the payment of $1,000 for a fire investigator;
$2,500 for private investigators; $2,500 for a psychologist; $2,000 for an audio expert;
and $2,500 for a mitigation specialist from the Ohio Public Defender’s office. In each of
these orders, the trial court stated that defense counsel could petition the court “if further
funds become necessary.”
{¶ 4} The trial began on August 10, 2007. Eleven days later, the jury returned a
verdict finding Powell guilty of all charges, including the 26 specifications listed in the
indictment. The court merged the ten aggravated murder counts into four counts―one
for each victim―with each of their specifications in tandem.
{¶ 5} The court proceeded to the sentencing/mitigation phase on August 22, 2007.
Powell waived his right to a presentence investigation and report, his right to have the
court perform a psychological investigation, and his right to make a statement on his own
behalf. Although Powell presented several witnesses in mitigation, including Powell’s
family members, a juvenile probation officer, and a psychologist, the jury unanimously
found that the aggravating circumstances proven at trial (referred to as specifications in
the indictment) outweighed the mitigating factors presented during the sentencing phase.
2.
As a result, the jury recommended a death sentence for each of the four aggravated
murder convictions.
{¶ 6} After receiving this recommendation from the jury, the trial court also found
beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating
factors. The court stated these findings in its death penalty order on September 13, 2007,
followed by a judgment entry on September 26, 2007, sentencing Powell to death.
{¶ 7} Powell filed a direct appeal with the Supreme Court of Ohio in November
2007. On June 30, 2008, he filed a petition for postconviction relief, and on July 14,
2008, he filed a motion for funds to hire a substance-abuse expert in support of his
postconviction petition. The postconviction petition and corresponding motion for expert
funds were held in abeyance until the Supreme Court of Ohio decided his direct appeal.
On June 13, 2012, the Supreme Court affirmed Powell’s convictions and death sentences.
State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865.
{¶ 8} On October 13, 2016, with leave of court, Powell filed an amended petition
for postconviction relief, in which he asserts 39 separate claims for relief. In his
amended petition, Powell claims, among other things, that his postconviction
investigation has revealed that the state’s evidence of arson was scientifically flawed,
alternate suspects existed and should have been investigated, and his defense counsel
failed to present all mitigating factors pertinent to his case.
{¶ 9} That same day, Powell filed a motion for leave to conduct discovery and an
amended motion for funds to hire experts in support of his amended petition. In his
3.
motion for discovery, Powell sought leave to serve various subpoenas duces tecum,
stating that “[m]odern fire science methodology and the scientific method demonstrate
that Powell’s verdict and death sentence were premised on unreliable and unchallenged
fire evidence purporting to be based in science but which we now know is scientifically
invalid.”
{¶ 10} In his amended motion for expert funds, Powell requested funds to hire a
substance-abuse expert, a psychologist, a neuropsychologist, and a mitigation
investigator. The motion asserts that “Powell’s counsel were ineffective for failing to
request funding for and obtaining expert assistance regarding Powell’s substance abuse
and the neuropsychological effect it had on Powell.” Powell also argued that, because the
trial court had found him to be indigent at the time of trial, he had a right to court-
appropriated funding to retain experts on this issue and “such expert assistance was
necessary and available at the time of Powell’s capital trial.”
{¶ 11} The state filed a response to the amended motion for funds on
December 12, 2016. The state argued that Powell did not have a right to expert
assistance in his postconviction proceedings, and that the anticipated subject matter of the
experts’ testimony was barred by res judicata.
{¶ 12} On January 12, 2017, Powell filed a motion for leave to file a motion for a
new mitigation trial pursuant to Crim.R. 33 and Hurst v. Florida, ___ U.S. ___, 136 S.Ct.
616, 193 L.Ed.2d 504 (2016). Powell argued that he was sentenced to death under a
statutory scheme that, pursuant to the subsequent pronouncement of the Supreme Court
4.
of the United States in Hurst, violates the Sixth and Fourteenth Amendments to the U.S.
Constitution.
{¶ 13} On November 29, 2017, Powell filed supplemental memoranda relating to
his motion for discovery and his motion for funds to hire experts. Through this filing,
Powell notified the court of two recent developments. First, R.C. 2953.21 was amended
to allow a petitioner to seek leave of court to conduct discovery in a postconviction
review of a capital case. Second, Crim.R. 42 was enacted and includes a provision that
authorizes trial courts to appoint experts for indigent defendants in capital postconviction
proceedings.
{¶ 14} On August 16, 2018, the trial court decided Powell’s outstanding motions.
The trial court granted Powell’s motion for leave to file a motion for a new mitigation
trial―finding that the motion for new mitigation trial was filed within a reasonable time
after Hurst was decided―but it denied the motion on its merits, concluding that Hurst
does not render Ohio’s death penalty statutes unconstitutional.
{¶ 15} The trial court also denied Powell’s motion for funds to hire experts,
finding that Powell “fail[ed] to make a showing that he is entitled to funds for experts
which is outside the contemplation of Ohio’s post-conviction statutes. For this reason, in
addition to those noted by the State in its opposition, Defendant’s motion for funds is not
well-taken and denied.”
{¶ 16} The trial court reserved judgment on Powell’s motion to conduct discovery,
and asked for additional briefing relating to the recent amendments to R.C.
5.
2953.21(A)(1)(d) that now permit discovery in postconviction reviews of capital cases
“for good cause shown.”
{¶ 17} Powell then appealed the trial court’s denial of his motion for expert funds
and motion for new mitigation trial. Powell’s amended petition for postconviction relief,
and motion to conduct discovery, remain pending in the trial court.
II. Law and Analysis
{¶ 18} On appeal, Powell claims two assignments of error:
Assignment of Error No. I. The trial court erred when it denied
Powell’s motion for funds to hire experts.
Assignment of Error No. II. The trial court erred when it denied
Powell’s motion for a new mitigation trial.
{¶ 19} In his first assignment of error, Powell claims that the trial court abused its
discretion when it denied his amended motion for funds to hire experts in support of his
amended postconviction petition. Powell argues that the trial court improperly denied the
motion―without making any factual findings related to its merits―under the mistaken
belief that indigent defendants in capital cases are not entitled to court-appointed experts
in postconviction proceedings under Ohio law. Powell claims that the trial court
overlooked the July 1, 2017 amendments to Crim.R. 42, which recognize the authority of
trial courts to appoint experts for indigent defendants in postconviction reviews of a
6.
capital case.1 Specifically, Crim.R. 42(E)(1) now provides that “[t]he trial court is the
appropriate authority for the appointment of experts for indigent defendants in all capital
cases and in post-conviction review of a capital case.” (Emphasis added.) Powell also
argues that he has a “particularly great” need for expert funding to assist with his
postconviction petition because “[t]he effects of multi-generational substance abuse
should have been thoroughly investigated and presented by a substance abuse expert at
trial but, due to counsel’s failures, it was not.”
{¶ 20} In response, the state argues that we lack jurisdiction to consider this
assignment of error because the trial court’s order is not a “final order” under R.C.
2505.02. In the alternative, the state argues that the trial court properly denied Powell’s
motion because any issues relating to substance abuse are barred by res judicata and,
even if not barred, Powell did not provide any specifics regarding the identity, cost, and
qualifications of his proposed experts and “‘[a]bsent these specifics there is no abuse of
discretion to deny a defendant expert assistance.’ [State v.] Wolf, [71 Ohio App.3d 740,
748, 595 N.E.2d 405 (11th Dist.1991)].”
1
Powell’s postconviction proceeding was already pending at the time that the
amendments to Crim.R. 42 took effect on July 1, 2017. These amendments “govern all
proceedings in actions brought after they take effect and also all further proceedings in
actions then pending, except to the extent that their application in a particular action
pending when the amendments take effect would not be feasible or would work injustice,
in which event the former procedure applies.” Crim.R. 59(EE). The state does not offer
any reason why the application of these amendments to this proceeding would “not be
feasible or would work injustice,” nor do we see any reason why this exception should
apply in this case.
7.
{¶ 21} In his reply brief, Powell argues that the trial court’s order is a “final order”
under R.C. 2505.02(B) and, regardless, the state “effectively ignores” the specific
language of Crim.R. 42(E)(4), which states that “[t]he appeal of an order regarding
appointment of experts shall be governed by App.R. 11.1,” and App.R. 11.1, which states
that “[i]n all capital cases, as defined in Crim.R. 42, the appeal of an order regarding
appointment of experts shall * * * be handled pursuant to an accelerated calendar under
this rule and local rules adopting an accelerated calendar.” Powell claims that even if the
order is not “final” under R.C. 2505.02(B), this court has jurisdiction to review the order
under Crim.R. 42(E) and App.R. 11.1. Powell argues that because “[t]he General
Assembly did not strike the new rules”―which were promulgated by the Supreme Court
of Ohio pursuant to its constitutional rulemaking authority under Article IV, Section 5(B)
of the Ohio Constitution―the General Assembly thereby implicitly conferred jurisdiction
to the courts of appeals via its failure to adopt a concurrent resolution of disapproval
before the amendments to Crim.R. 42 and App.R. 11.1 took effect.
{¶ 22} As a threshold matter, we first determine whether we have jurisdiction to
review the trial court’s order denying Powell’s motion for expert funds.
A. Our Jurisdiction is Limited to Review of “Judgments or Final Orders”
{¶ 23} The jurisdiction of this court is governed by Article IV, Section 3(B)(2) of
the Ohio Constitution, which provides that “[c]ourts of appeals shall have such
jurisdiction as may be provided by law to review and affirm, modify, or reverse
judgments or final orders of the courts of record inferior to the court of appeals within the
8.
district * * *.” (Emphasis added.) The issue here is whether the trial court’s order
denying Powell’s motion for expert funding was a “final order.”
{¶ 24} While Powell argues the trial court’s order is a “final order” under Crim.R.
42 and App.R. 11.1 because those procedural rules explicitly state that a defendant may
“appeal * * * an order regarding appointment of experts” in a postconviction review of a
capital case, a procedural rule cannot create jurisdiction that would be lacking under R.C.
2505.02, which defines “final order.” That is because R.C. 2505.02 is a jurisdictional
statute, and “‘[i]f the statute is jurisdictional, it is a substantive law of this state * * *.’”
Proctor v. Kardassilaris, 115 Ohio St.3d 71, 2007-Ohio-4838, 873 N.E.2d 872, ¶ 18,
quoting Akron v. Gay, 47 Ohio St.2d 164, 165-166, 351 N.E.2d 475 (1976). As such, the
rights created by R.C. 2505.02―i.e., the jurisdictional right to appellate review of “final
orders” as defined by that statute―are “substantive rights” that, pursuant to Section 5(B)
of Article IV of the Ohio Constitution, cannot be abridged, enlarged, or modified by any
procedural rules. See Proctor at ¶ 18, quoting Gay at 165-166 (“‘If the statute is
jurisdictional, it is a substantive law of this state, and cannot be abridged, enlarged, or
modified by the Ohio Rules of Civil Procedure.’”).
{¶ 25} Thus, to determine whether the trial court’s order is a “final order” subject
to immediate appellate review, we must look to the definition of “final order” provided
by the legislature in R.C. 2505.02(B), which states, in relevant part:
9.
(B) An order is a final order that may be reviewed, affirmed,
modified, or reversed, with or without retrial, when it is one of the
following:
(1) An order that affects a substantial right in an action that in effect
determines the action and prevents a judgment;
(2) An order that affects a substantial right made in a special
proceeding or upon a summary application in an action after judgment;
***
(4) An order that grants or denies a provisional remedy and to which
both of the following apply:
(a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor of the
appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or
effective remedy by an appeal following final judgment as to all
proceedings, issues, claims, and parties in the action.2
2
“Final orders” also include orders that vacate or set aside a judgment, or grant a new
trial (R.C. 2505.02(B)(3)); orders that determine whether an action may or may not be
maintained as a class action (R.C. 2505.02(B)(5)); orders that determine the
constitutionality of certain specifically-identified amendments to the Ohio Revised Code
(R.C. 2505.02(B)(6)); and orders in an appropriation proceeding that may be appealed
pursuant to R.C. 163.09(B)(3) (R.C. 2505.02(B)(7)). We, however, do not analyze these
provisions of R.C. 2505.02(B) because, on their face, none of them apply to the trial court
order at issue.
10.
1. The Order is not a “Final Order” Under R.C. 2505.02(B)(1) or (2)
{¶ 26} Regarding R.C. 2505.02(B)(1) and (2), Powell argues that under the
amendments to Crim.R. 42, indigent defendants now have a “substantial right” to expert
funding in postconviction reviews of capital cases. As support, Powell points to Crim.R.
42(E)(1), which states that a trial court has the “authority” to appoint experts for indigent
defendants in postconviction reviews of capital cases; Crim.R. 42(E)(2), which provides
certain procedural mechanics that the court must follow when an indigent defendant
requests expert funding in such cases; and Crim.R. 42(E)(3), which states that “the trial
court shall decide the issue of appointment of experts” and other related issues, and
“shall make written findings as to the basis of any denial.” (Emphasis added.)
{¶ 27} Before we analyze this issue, we briefly note―because the terminology is
confusingly similar―that a “substantial right” under R.C. 2505.02 is not necessarily a
“substantive right” under Section 5(B) of Article IV of the Ohio Constitution. A
“substantial right” is defined by R.C. 2505.02(A)(1) as “a right that the United States
Constitution, the Ohio Constitution, a statute, the common law, or a rule of procedure
entitles a person to enforce or protect.” (Emphasis added.) See also Chef Italiano Corp.
v. Kent State Univ., 44 Ohio St.3d 86, 88, 541 N.E.2d 64 (1989). In other words, a
“substantial right” under R.C. 2505.02 is merely a legal right that may be enforced or
protected by law―including, but not limited to, a right created by “a rule of procedure.”
On the other hand, a “substantive right” under Article IV, Section 5(B) of the Ohio
Constitution “‘refers to common law, statutory and constitutionally recognized rights.’”
11.
Havel v. Villa St. Joseph, 131 Ohio St.3d 235, 2012-Ohio-552, 963 N.E.2d 1270, ¶ 16,
quoting Krause v. State, 31 Ohio St.2d 132, 285 N.E.2d 736 (1972), overruled on other
grounds by Schenkolewski v. Cleveland Metroparks Sys., 67 Ohio St.2d 31, 426 N.E.2d
784 (1981). Thus, while a procedural rule can create “substantial rights” as defined by
R.C. 2505.02, a procedural “substantial right” cannot abridge, enlarge, or modify a
“substantive right” under Article IV, Section 5(B) of the Ohio Constitution.
{¶ 28} Here, the relevant issue is whether the trial court’s order denying expert
funding to Powell in his postconviction proceeding affected a “substantial right” under
R.C. 2505.02. In postconviction relief proceedings, which are governed by statute, the
postconviction relief issues generally arise after the “substantial rights” of a defendant
have been determined, and are not final, appealable orders without statutory language
designating them as final. State v. Carter, 8th Dist. Cuyahoga No. 106690, 2018-Ohio-
4115, ¶ 14, citing State v. Cunningham, 8th Dist. Cuyahoga No. 85342, 2005-Ohio-3840,
¶ 10. R.C. 2953.23(B) provides that an order granting or denying a petition for
postconviction relief brought pursuant to R.C. 2953.21 is a final, appealable order. R.C.
2953.23(B) (“An order awarding or denying relief sought in a petition filed pursuant to
section 2953.21 of the Revised Code is a final judgment and may be appealed pursuant to
Chapter 2953. of the Revised Code.”). There is no specific language in the statute
addressing interlocutory appeals in postconviction relief proceedings.
{¶ 29} Powell argues, however, that the recent amendments to Crim.R. 42 give
indigent defendants a “substantial right” to expert funding in postconviction reviews of
12.
capital cases. In response, the state argues that “[a]t best, Crim.R. 42 confers a right to
have the trial court consider a request for funding * * *.” We agree with the state. An
indigent defendant does not have a “substantial right” to receive expert funding in
postconviction reviews of capital cases under Crim.R. 42(E). Under the plain language
of this rule, a trial court is merely required to grant―or deny―an indigent defendant’s
request for expert funding in such cases pursuant to the specific directives of those
provisions. The rule does not create a “substantial right” to expert funding.
{¶ 30} But, an indigent defendant does have a procedural “substantial right” under
Crim.R. 42(E) to have the trial court follow the process that is outlined in that rule when
considering a request for expert funding in a postconviction review of a capital case. See
R.C. 2505.02(A)(1) (a “substantial right” includes “a right that * * * a rule of procedure
entitles a person to enforce or protect.”). That is, under Crim.R. 42(E)(3),
Upon establishing counsels’ respective compliance with discovery
obligations, the trial court shall decide the issue of appointment of experts,
including projected expert fees, the amount of time to be applied to the
case, and incremental fees as the case progresses. The trial court shall
make written findings as to the basis of any denial. (Emphasis added.)
{¶ 31} Thus, after the trial court establishes that the parties have complied with
their respective discovery obligations,3 it must “decide the issue of appointment of
3
Under Crim.R. 42(C), “the prosecuting attorney and the defense attorney shall, upon
request, be given full and complete access to all documents, statements, writings,
13.
experts” (including various subordinate issues if the funding request is granted) and, if
the request is denied, “make written findings as to the basis of any denial.” Crim.R.
42(E)(3).
{¶ 32} Although Powell’s arguments focus almost exclusively on why he believes
the trial court erred by denying his request for funding, Powell also argues that the trial
court failed to follow Crim.R. 42(E)’s procedural mandate to “make written findings as
to the basis of any denial.” That is, in his appellate brief, Powell claims that the “trial
court’s unexplained denial of Powell’s funding request * * * constitutes a violation of
Powell’s due process guarantees.” We disagree. Although succinct, the trial court
explained its basis for denying Powell’s request for expert funding:
Put simply, Defendant fails to make a showing that he is entitled to
funds for experts which is outside the contemplation of Ohio’s post-
convictions statutes. For this reason, in addition to those noted by the State
photographs, recordings, evidence, reports, or any other file material in possession of the
state related to the case * * *” except materials not subject to disclosure pursuant to
Crim.R. 16(J). Powell does not argue the trial court failed to “establish” the state’s
compliance with its Crim.R. 42(C) “discovery obligation” before ruling on his motion for
expert funding as required by Crim.R. 42(E)(3). Moreover, for the sake of clarity, we
note that Powell’s motion for leave to conduct discovery―which remains pending in the
trial court―seeks permission to conduct discovery under R.C. 2953.21(A)(1)(d), which
requires a showing of “good cause.” In addition, Powell’s pending discovery motion
seeks information relating to postconviction claims that pertain to the guilt phase of the
trial, whereas his motion for expert funding seeks assistance with postconviction claims
that pertain to mitigation issues. The pending discovery motion is therefore unrelated to
the motion for expert funding.
14.
in its opposition, Defendant’s motion for funds is not well-taken and
denied.
{¶ 33} Given that the trial court complied with Crim.R. 42(E) by making “written
findings as to the basis of [its] denial,” the trial court’s order did not “affect a substantial
right” under R.C. 2505.02(B)(1) or (2) and we need not address the remaining elements
of a “final order” under those two provisions.
2. The Order is a “Final Order” Under R.C. 2505.02(B)(4)
{¶ 34} Under R.C. 2505.02(B)(4), an order is a “final order” if it “satisfies each
part of a three-part test * * *.” State v. Muncie, 91 Ohio St.3d 440, 446, 746 N.E.2d 1092(2001). That is, (1) the order must grant or deny a “provisional remedy”; (2) the order
must determine the action with respect to the “provisional remedy” and prevent judgment
in favor of the appealing party with respect to the “provisional remedy”; and (3) the
appealing party “would not be afforded a meaningful or effective remedy by an appeal
following final judgment as to all proceedings, issues, claims, and parties in the action.”
R.C. 2505.02(B)(4).
a. The Order Denies a Provisional Remedy
{¶ 35} Although somewhat counterintuitive, “[t]he General Assembly expressly
defined a ‘provisional remedy’ as a type of proceeding. R.C. 2505.02(A)(3). An ‘order’
is thus properly understood as the mandate from the trial court that grants or denies the
particular relief at issue in that proceeding―not as the provisional remedy itself.”
(Emphasis sic.) Muncie at 447-448. That is, “provisional remedy” is defined as
15.
a proceeding ancillary to an action, including, but not limited to, a
proceeding for a preliminary injunction, attachment, discovery of privileged
matter, suppression of evidence, a prima-facie showing pursuant to section
2307.85 or 2307.86 of the Revised Code, a prima-facie showing pursuant to
section 2307.92 of the Revised Code, or a finding made pursuant to
division (A)(3) of section 2307.93 of the Revised Code.
R.C. 2505.02(A)(3).
{¶ 36} By its express terms, this list is “‘illustrative and not exhaustive.’” Muncie
at 448, quoting Boedeker v. Rogers, 140 Ohio App.3d 11, 18, 746 N.E.2d 625 (8th
Dist.2000). Although the legislature did not define “a proceeding ancillary to an action”
in R.C. 2505.02, the Supreme Court of Ohio has defined “ancillary proceeding” as “‘one
that is attendant upon or aids another proceeding.’” In re A.J.S., 120 Ohio St.3d 185,
2008-Ohio-5307, 897 N.E.2d 629, ¶ 20, quoting Muncie at 449. “Attendant” means
“something that accompanies.” In re R.R., 2017-Ohio-8928, 88 N.E.3d 969, ¶ 27 (4th
Dist.), quoting https://www.merriam-webster.com/dictionary/attendant. See also Black’s
Law Dictionary 153 (10th Ed.2014) (defining “attendant” as “Accompanying; resulting
.”)
{¶ 37} In this case, we find that the procedure for the appointment of experts for
indigent defendants, as outlined in Crim.R. 42(E), is an “ancillary proceeding”―and,
therefore, a “provisional remedy”―because it is “attendant upon” and “aids” the
principal action (i.e., a postconviction review of a capital case). Absent this ancillary
16.
proceeding for the appointment of experts in postconviction reviews of capital cases, an
indigent defendant would not have the opportunity to develop his postconviction petition
with evidence dehors the record to the same extent that a non-indigent defendant would.
{¶ 38} Accordingly, because the trial court’s order denies relief in an ancillary
proceeding, it satisfies the first prong of R.C. 2505.02(B)(4).
b. The Order Determines the Action with Respect to the Provisional Remedy
{¶ 39} The trial court’s order denying appellant’s motion for funding for experts
unquestionably determines the action with respect to the provisional remedy itself (i.e.,
Powell’s request for expert funding) and prevents a judgment in favor of the appellant on
this issue. The trial court’s order therefore satisfies the second step of the R.C.
2505.02(B)(4) analysis because “‘there was no further opportunity to petition the court
for the remedy being sought * * *,’” Muncie, 91 Ohio St.3d at 451, 746 N.E.2d 1092,
quoting Swearingen v. Waste Technologies Industries, 134 Ohio App.3d 702, 713, 731
N.E.2d 1229 (7th Dist.1999), and “there existed nothing further for the trial court to
decide with respect to the provisional remedy.” In re Special Docket No. 73958, 115
Ohio St.3d 425, 2007-Ohio-5268, 875 N.E.2d 596, ¶ 29.
c. Powell cannot Obtain a Meaningful and Effective
Remedy through the Appeal of the Final Judgment
{¶ 40} In determining whether an appeal after final judgment would afford a
meaningful or effective remedy, we must consider “whether there is a harm such that
appeal after final judgment would not rectify the damage.” (Internal quotations omitted.)
17.
In re D.H., 152 Ohio St.3d 310, 2018-Ohio-17, 95 N.E.3d 389, ¶ 18. In other words,
“‘[t]he proverbial bell cannot be unrung * * *.’” Muncie at 451, quoting Gibson-Myers
& Assocs., Inc. v. Pearce, 9th Dist. Summit No. 19358, 1999 WL 980562, *2 (Oct. 27,
1999).
{¶ 41} The Supreme Court of Ohio has recognized, however, that the final prong
of R.C. 2505.02(B)(4) “allows for appeals when the need for immediate review
outweighs the substantial interest in avoiding piecemeal litigation.” In re Grand Jury
Proceeding of John Doe, 150 Ohio St.3d 398, 2016-Ohio-8001, 82 N.E.3d 1115, ¶ 22.
Thus, when determining whether an appellant will be able to obtain meaningful and
effective remedy through the appeal of the final judgment, “[t]he possibility of delayed
justice must be balanced against the principles of judicial economy.” Guerriero v. Dept.
of Rehab. & Corr., 11th Dist. Ashtabula No. 2001-A-0062, 2002-Ohio-5149, ¶ 34 (Ford,
J., dissenting). In most circumstances, “[t]he passage of time will not render a future
appeal ineffective.” Thomasson v. Thomasson, 153 Ohio St.3d 398, 2018-Ohio-2417,
106 N.E.3d 1239, ¶ 74 (DeWine, J., dissenting), citing In re D.H. at ¶ 19.
{¶ 42} In Thomasson, the court analyzed whether an order appointing a guardian
ad litem (“GAL”) to act on behalf of an adult, who had not been found incompetent,
during a divorce proceeding, was a final, appealable order.4 The court determined that
4
Although Thomasson analyzed the issue with respect to whether “immediate review”
was required under R.C. 2505.02(B)(2), that analysis is virtually identical to the analysis
required under R.C. 2505.02(B)(4)(b).
18.
the divorce proceedings were statutory in nature and the trial court failed to make the
appropriate findings under Civ.R. 17, which requires that “[w]hen a minor or
incompetent person is not otherwise represented in an action the court shall appoint a
guardian ad litem or shall make such other order as it deems proper for the protection of
such minor or incompetent person.” Thomasson at ¶ 9, 12. Therefore, the order violated
the adult’s due process rights because it “was not preceded by an adjudication of
incompetency, prior notice, and any opportunity to be heard on the issue.” Id. at ¶ 21.
{¶ 43} As for the need for immediate review, the Thomasson court stated, “there
are occasions on which judicial economy tips the balance in favor of immediate review.”
(Emphasis added.) Id. at ¶ 33, citing Russell v. Mercy Hosp., 15 Ohio St.3d 37, 42, 472
N.E.2d 695 (1984). Specifically, the court found that “[r]equiring [the adult] to wait to
appeal until after the divorce proceedings have concluded would require the appellate
court to construct a hypothetical proceeding to determine prejudice based on speculation
as to how [the adult’s] decisions might have differed from the decisions made by the
GAL.” Id. Therefore, the court made a very “narrow and limited holding” that “a trial
court’s order appointing a GAL to represent an adult in a divorce case is a final,
appealable order when that adult has not been adjudicated incompetent subsequent to
providing the parties with notice and an opportunity to be heard on the issue of the adult’s
competency.” Id. at ¶ 34.
{¶ 44} For most postconviction relief petitions, the length of time to wait for a
final adjudication on the merits of the petition, and the time for an appellate court to
19.
review the trial court’s decision, would not be enough for a finding that “judicial
economy tips the balance in favor of immediate review.” However, when a petition for
postconviction relief is filed pursuant to R.C. 2953.21(A), “only the supreme court may
stay execution of the sentence of death.” R.C. 2953.21(I). Neither the trial courts nor the
appellate courts can stay a defendant’s death sentence while the review of the petition for
postconviction relief is pending. Therefore, time is of the essence as a defendant could
be deprived of his life while the petition is being determined by the trial and appellate
courts.
{¶ 45} It is apparent that the Supreme Court recognized this urgency and the need
for an interlocutory appeal when it included language under Crim.R. 42(E)(4) that “[t]he
appeal of an order regarding appointment of experts shall be governed by App.R. 11.1.”
App.R. 11.1 governs cases placed on an appellate court’s “accelerated calendar.”
Notably, App.R. 11.1(A) was also amended on July 1, 2017, and states,
In all capital cases, as defined in Crim.R. 42, the appeal of an order
regarding appointment of experts shall, upon request by defense counsel, be
under seal and conducted ex parte and shall be handled pursuant to an
accelerated calendar under this rule and local rules adopting an accelerated
calendar.
{¶ 46} Although, as we note above, Crim.R. 42 and App.R. 11.1 are procedural
rules and therefore cannot provide jurisdiction on their own, we can nonetheless consider
the policy expressed by these rules when determining whether an appeal after final
20.
judgment would be “meaningful and effective” under R.C. 2505.02(B)(4)(b). In this
case, given the unique nature of a capital proceeding involving an indigent defendant, and
the corresponding risk that a defendant―lacking the funds to hire experts on his or her
own―may be wrongly executed while postconviction proceedings remain pending, we
find that judicial economy tips the balance in favor of immediate review. Accordingly,
similar to Thomasson, this court makes a “narrow and limited” holding that
under R.C. 2505.02(B)(4), a trial court’s order denying an indigent defendant expert
funding under Crim.R. 42(E) is a final, appealable order.
B. The Trial Court did not Abuse its Discretion in
Denying Powell’s Motion for Funds to Hire Experts
{¶ 47} Turning to the merits of Powell’s first assignment of error, Powell argues
that the trial court erred by denying his motion for expert funds because the trial court did
not explicitly reference Crim.R. 42(E) in its order. Instead, the trial court stated that
Powell’s request for expert funding was “outside the contemplation of Ohio’s post-
convictions statutes,” which Powell claims is incorrect in light of Crim.R. 42(E). Powell
also argues that his need for expert funding is “particularly great” because his trial
counsel was ineffective for not presenting expert testimony regarding “[t]he effects of
multi-generational substance abuse” during the mitigation proceedings.
{¶ 48} Under Crim.R. 42(E), the trial court has the discretion to appoint experts
for indigent defendants in postconviction reviews of capital cases. Accordingly, we will
review the trial court’s order for an abuse of discretion. “A trial court will be found to
21.
have abused its discretion when its decision is contrary to law, unreasonable, not
supported by the evidence, or grossly unsound.” State v. Nisley, 3d Dist. Hancock No.
5-13-23, 2014-Ohio-981, ¶ 16, citing State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-
278, 932 N.E.2d 345, ¶ 16-18 (2d Dist.).
{¶ 49} We first note that the trial court’s observation that the appointment of
expert witnesses to indigent defendants is “outside the contemplation of Ohio’s post-
convictions statutes” is not incorrect, as Powell argues. Under R.C. 2953.21(J), indigent
defendants in capital cases are entitled to appointed counsel in postconviction
proceedings, but the statute is silent as to whether an indigent defendant in a capital case
is also entitled to funds to hire experts. And, as already discussed, Crim.R. 42(E) does
not provide indigent defendants with a right to receive expert funding in postconviction
reviews of capital cases. Rather, Crim.R. 42(E) merely provides a procedure that courts
must follow when an indigent defendant requests funding for experts in capital
postconviction proceedings, and clarifies that trial courts have the discretionary
“authority” to grant, or deny, such requests.
{¶ 50} Moreover, Powell fails to acknowledge that the trial court did not deny his
motion solely because his expert-funding request was outside the contemplation of
Ohio’s postconviction statutes. Rather, the trial court stated that it was denying the
motion “[f]or [that] reason, in addition to those noted by the State in its opposition * * *.”
(Emphasis added.)
22.
{¶ 51} In its opposition to Powell’s motion, the state argued that Powell’s request
should be denied because the anticipated subject matter of the experts’ testimony was
barred by res judicata. As the state pointed out, Powell argued on direct appeal “that his
counsel were ineffective by failing to retain a substance-abuse expert to testify about his
history of alcohol and drug abuse.” Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971
N.E.2d 865, at ¶ 210. The Supreme Court of Ohio, however, disagreed and found that
Dr. Wayne Graves, “a clinical and forensic psychologist, provided expert testimony
during mitigation regarding Powell’s drug and alcohol abuse” and that Dr. Graves’s
testimony “fulfill[ed] the same functions as the expert assistance sought.” (Internal
quotations omitted.) Id. at ¶ 211.
{¶ 52} Thus, given that Powell’s lack of a substance-abuse expert was already
raised on his direct appeal, the state argued the testimony of the requested substance-
abuse experts would be barred by res judicata and the trial court should deny Powell’s
request for funding on that basis. The trial court was persuaded by this argument and
denied Powell’s motion, at least in part, on those grounds.
{¶ 53} On appeal (as in the trial court) Powell ignores the state’s arguments
relating to res judicata. Instead, Powell relies almost exclusively upon his contention that
Crim.R. 42(E) now provides indigent defendants with a “right” to expert funding in
postconviction reviews of capital cases―which, as discussed, is not true. To the extent
that Powell addresses the actual merits of his motion on appeal, he merely argues that he
has a “particularly great” need for expert funding at this juncture because “[t]he effects of
23.
multi-generational substance abuse should have been thoroughly investigated and
presented by a substance abuse expert at trial but, due to counsel’s failures, it was not.”
(Emphasis added.)
{¶ 54} But because the Supreme Court of Ohio has already considered whether
“his counsel were ineffective by failing to retain a substance-abuse expert to testify about
his history of alcohol and drug abuse,” Powell at ¶ 210―and because Powell does not
make any effort to explain why his motion for expert funding should not have been
denied on the grounds that were advanced by the state in its opposition brief to the trial
court―we simply cannot find that the trial court’s decision was “contrary to law,
unreasonable, not supported by the evidence, or grossly unsound.” Nisley, 3d Dist.
Hancock No. 5-13-23, 2014-Ohio-981, at ¶ 16.
{¶ 55} For these reasons, we find that the trial court did not abuse its discretion
when denying Powell’s motion for expert funding, and Powell’s first assignment of error
is not well-taken.
C. Ohio’s Death Penalty Scheme is not Unconstitutional Under Hurst
{¶ 56} In his second assignment of error, Powell claims that the trial court erred
by denying his Crim.R. 33 motion for new mitigation trial. We review a trial court’s
denial of a motion for new trial under an abuse-of-discretion standard. State v. Schiebel,
55 Ohio St.3d 71, 76, 564 N.E.2d 54 (1990).
{¶ 57} Powell’s motion for new mitigation trial was premised entirely upon Hurst,
___ U.S. ___, 136 S.Ct. 616, 193 L.Ed.2d 504, which found Florida’s capital sentencing
24.
scheme to be unconstitutional. In his motion, Powell argued that “the United States
Supreme Court decision in Hurst signaled a sea-change in death penalty jurisprudence”
and “[a]fter Hurst, it is clear that Ohio’s death penalty scheme is unconstitutional.” The
Supreme Court of Ohio, however, has explicitly―and repeatedly―found that Ohio’s
capital sentencing scheme is not unconstitutional under Hurst. State v. Mason, 153 Ohio
St.3d 476, 2018-Ohio-1462, 108 N.E.3d 56; see also State v. Tench, 156 Ohio St.3d 85,
2018-Ohio-5205, 123 N.E.3d 955, ¶ 279; State v. Goff, 154 Ohio St.3d 218, 2018-Ohio-
3763, 113 N.E.3d 490, ¶ 31-40.
{¶ 58} In Ohio, to face the possibility of a death sentence, a defendant must be
charged with both aggravated murder and one or more of the specifications of
aggravating circumstances that are outlined in R.C. 2929.04(A). Mason at ¶ 7. Then, at
trial, the state must prove guilt of the principal charge and one or more of the capital
specifications beyond a reasonable doubt. R.C. 2929.04(A); R.C. 2929.03(B); Mason at
¶ 8. If a jury finds the defendant guilty of the principal offense and at least one
specification, the penalty (i.e., either life imprisonment or death) “shall be determined
* * * [b]y the trial jury and the trial judge * * *.” R.C. 2929.03(C)(2)(b); Mason at ¶ 9.
{¶ 59} At the sentencing phase, the court and jury shall consider (1) any
presentence investigation or mental examination report (if either is requested by the
defendant), (2) the trial evidence relevant to the aggravating circumstances the offender
was found guilty of committing, and relevant to any mitigating factors, (3) additional
testimony and evidence relevant to the nature and circumstances of the aggravating
25.
circumstances and any mitigating factors, (4) any statement of the offender, if given, and
(5) the arguments of counsel. R.C. 2929.03(D)(1); Mason at ¶ 10. At this phase, the
state must prove beyond a reasonable doubt that “the aggravating circumstances the
defendant was found guilty of committing are sufficient to outweigh the factors in
mitigation of the imposition of the sentence of death.” R.C. 2929.03(D)(1). If the jury
unanimously finds, beyond a reasonable doubt, that the aggravating circumstances
outweigh any mitigating factors, the jury shall recommend a death sentence. R.C.
2929.03(D)(2). Absent such a finding, the jury shall recommend that the court impose a
life sentence, and the trial court shall impose the life sentence recommended. Id. In
addition, if the jury fails to reach a unanimous sentencing determination, the trial court
must impose a life sentence. Mason at ¶ 11.
{¶ 60} Upon a jury’s unanimous recommendation that the death sentence be
imposed, the trial court shall impose a sentence of death only if it also finds, beyond a
reasonable doubt, that the aggravating circumstances outweigh any mitigating factors.
R.C. 2929.03(D)(3). Otherwise, the trial court must impose a term of life imprisonment.
Id. In either case, the trial court must issue a separate opinion with its specific findings.
R.C. 2929.03(F).
{¶ 61} Powell argues that this capital sentencing scheme is indistinguishable from
Florida’s pre-Hurst capital sentencing scheme, which the U.S. Supreme Court found to
be unconstitutional under the Sixth Amendment. Hurst, ___ U.S. ___, 136 S.Ct. 616, 193
L.Ed.2d 504. Florida law previously required the jury, during the sentencing phase, to
26.
issue an “advisory sentence” by majority vote (recommending death or life
imprisonment), after which the trial court weighed the aggravating and mitigating
circumstances, and imposed a sentence of life imprisonment or death “‘[n]otwithstanding
the recommendation of a majority of the jury * * *.’” Id. at 620, quoting Fla.Stat.
921.141(3). The U.S. Supreme Court determined that Florida’s scheme violated the Sixth
Amendment of the U.S. Constitution because the jury provided a “mere
recommendation” to the judge and “the judge alone [was required] to find the existence
of an aggravating circumstance,” id. at 624, and because the jury was “not require[d]
* * * to make the critical findings necessary to impose the death penalty.” Id. at 622.
{¶ 62} Powell argues that, like the Florida laws at issue in Hurst, Ohio’s capital
sentencing structure requires a “mere recommendation” by the jury in favor of a death
sentence and, therefore, violates the Sixth Amendment because the ultimate death
sentence is imposed by the judge alone. The Supreme Court of Ohio, however, has
expressly rejected this argument and concluded that “Ohio law requires the critical jury
findings that were not required by [Florida’s capital sentencing scheme]” and “Ohio’s
death-penalty scheme, therefore, does not violate the Sixth Amendment.” Mason, 153
Ohio St.3d 476, 2018-Ohio-1462, 108 N.E.3d 56, at ¶ 21; see also Tench, 156 Ohio St.3d
85, 2018-Ohio-5205, 123 N.E.3d 955, at ¶ 279; Goff, 154 Ohio St.3d 218, 2018-Ohio-
3763, 113 N.E.3d 490, at ¶ 35. That is because, under Ohio law, a jury must find the
offender guilty beyond a reasonable doubt of aggravated murder and at least one
aggravating circumstance specification (R.C. 2929.03(B)), a jury must make a unanimous
27.
finding at the sentencing phase that the state has proven, beyond a reasonable doubt, that
the aggravating circumstances that the offender was found guilty of committing outweigh
any mitigating factors (R.C. 2929.03(D)(2)), and a trial court may impose a death
sentence only if the jury has recommended death (id.). Thus, unlike pre-Hurst Florida
law, in Ohio, a trial court is unable to increase the defendant’s possible sentence on the
basis of its own findings―which would be unconstitutional―and, instead, serves as a
precaution against “wayward juries.” Mason at ¶ 40.
{¶ 63} Powell also argues that Ohio’s capital sentencing scheme is
unconstitutional because, as in Hurst, the trial judge is required to independently weigh
all aggravating circumstances and mitigating factors before imposing the death penalty
and, according to Powell, a death sentence is therefore predicated upon impermissible
fact-finding by the judge. The Supreme Court of Ohio has rejected this argument too.
The court has expressly found that the weighing that occurs in the sentencing phase “‘is
not a fact-finding process subject to the Sixth Amendment.’” (Emphasis sic.) Mason at
¶ 29, quoting State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 60;
see also Goff at ¶ 36. Rather, the Sixth Amendment is satisfied once a jury finds the
defendant guilty, beyond a reasonable doubt, of aggravated murder and at least one
capital specification at trial. Mason at ¶ 29.
{¶ 64} For the foregoing reasons we find that Ohio’s death penalty scheme is not
unconstitutional under Hurst. Accordingly, the trial court did not abuse its discretion by
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denying Powell’s motion for a new mitigation trial under Hurst. Powell’s second
assignment of error is not well-taken.
{¶ 65} Conclusion
{¶ 66} In conclusion, Powell’s two assignments of error are not well-taken. We
affirm the August 16, 2018 orders of the Lucas County Court of Common Pleas that
denied Powell’s motion for funding for experts to assist with his postconviction petition,
and denied Powell’s motion for a new mitigation trial.
{¶ 67} Powell is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Christine E. Mayle, P.J.
CONCUR. _______________________________
JUDGE
Gene A. Zmuda, J. _______________________________
CONCURS, IN PART, AND JUDGE
DISSENTS, IN PART, AND
WRITES SEPARATELY.
29.
ZMUDA, J., concurring, in part, and dissenting, in part:
{¶ 68} I concur with the majority’s conclusion that Ohio’s death penalty scheme is
not unconstitutional under the United States Supreme Court’s decision in Hurst.
However, I must respectfully dissent from the majority’s determination that the trial court
did not abuse its discretion in denying Powell’s motion for funds to hire experts, because
I find that the trial court’s order denying the motion is not final and appealable under
R.C. 2505.02(B)(4).
{¶ 69} In order to find that the trial court’s denial of expert funding was a final,
appealable order under R.C. 2505.02(B)(4), we must conclude (1) that the funding of
experts in a capital case is a “provisional remedy,” and (2) that Powell cannot obtain
meaningful review and an effective remedy through an appeal of the trial court’s ultimate
decision on his postconviction petition. I find neither of these elements are met in this
case.
{¶ 70} As to the first element, I would find that a proceeding seeking funds to hire
an expert is not a “provisional remedy” under R.C. 2505.02(B)(4). Pursuant to R.C.
2505.02(A)(3), a provisional remedy is “a proceeding ancillary to an action.” The Ohio
Supreme Court, in State v. Muncie, 91 Ohio St.3d 440, 746 N.E.2d 1092 (2001), defined
an ancillary proceeding as “‘one that is attendant upon or aids another proceeding.’” Id.
at 449, quoting Bishop v. Dresser Industries, Inc., 134 Ohio App.3d 321, 324, 730 N.E.2d
1079 (3d Dist.1999). The court later explained that an ancillary proceeding is “[a]n
action, either at law or in equity, that grows out of and is auxiliary to another suit and is
30.
filed to aid the primary suit, to enforce a prior judgment, or to impeach a prior decree.”
State v. Anderson, 138 Ohio St.3d 264, 2014-Ohio-542, 6 N.E.3d 23, ¶ 47.
{¶ 71} A proceeding seeking funds to hire an expert does not grow out of a
postconviction proceeding, but is instead a simple discovery matter. Generally, discovery
orders are not final and appealable under R.C. 2505.02(B)(4). Concheck v. Concheck,
10th Dist. Franklin No. 07AP-896, 2008-Ohio-2569, ¶ 8. The one exception to this
principle is contained within the express language of R.C. 2505.02(B)(4), which states
that discovery of a privileged matter is a proceeding ancillary to an action and therefore
qualifies as a provisional remedy. The Ohio Supreme Court noted this sole statutory
exception to the general rule excluding discovery orders from the purview of a
provisional remedy under R.C. 2505.02(B)(4) in Myers v. Toledo, 110 Ohio St.3d 218,
2006-Ohio-4353, 852 N.E.2d 1176. There, the court examined whether a request for a
physical examination under Civ.R. 35(A) was a provisional remedy under R.C.
2505.02(B)(4), and stated:
The amended statute added the provisional-remedy section and
defined “provisional remedy” as “a proceeding ancillary to an action,
including, but * * * not limited to, * * * discovery of a privileged matter.”
R.C. 2505.02(A)(3). If the order in question affects the discovery of a
privileged matter it is by definition a provisional remedy and meets the first
step of the test. The canon expressio unius est exclusio alterius tells us that
the express inclusion of one thing implies the exclusion of the other.
31.
Black’s Law Dictionary (8th Ed.2004) 620. The General Assembly
stopped short of including all discovery orders in the provisional-remedy
section.
The request for a physical examination under Civ.R. 35(A) is a
discovery order that is not a provisional remedy and is not a final,
appealable order under R.C. 2505.02(B)(4).
Id. at ¶ 24-25.
{¶ 72} The logic that underlies this principle is well grounded. We should adhere
to the general rule that discovery orders are not provisional remedies. “If we start
denominating discovery orders as ‘provisional remedies,’ then virtually every discovery
order would be appealable, which would frustrate the legislative intent behind the
statute.” Harrell v. Management and Training Corp., 1st Dist. Hamilton No. C-180417,
2019-Ohio-2816, ¶ 10. The facts in this case, moreover, illustrate this point as a motion
for discovery is currently pending before the trial court in the underlying postconviction
proceeding.
{¶ 73} Because Powell’s motion for funds to acquire an expert is a proceeding
relating to discovery, and because the proceeding does not relate to the discovery of a
privileged matter, I find that such a proceeding is not a provisional remedy.
{¶ 74} Additionally, I conclude that the trial court’s denial of Powell’s motion for
expert funds is not final and appealable because Powell can obtain meaningful review
and an effective remedy through an appeal following the trial court’s decision on his
32.
postconviction petition. In determining whether an appeal after final judgment would
afford a meaningful or effective remedy, courts must consider whether there is a harm
such that appeal after final judgment would not “‘rectify the damage.’” Muncie, supra,
91 Ohio St.3d at 451, 746 N.E.2d 1092, quoting Gibson–Myers & Assocs., Inc. v. Pearce,
9th Dist. Summit No. 19358, 1999 WL 980562, *2 (Oct. 27, 1999). In such
circumstances, the matter is final and appealable because “‘the proverbial bell cannot be
unrung.’” Id., quoting Gibson–Myers at *2.
{¶ 75} In this case, the trial court’s denial of Powell’s motion for funds to hire an
expert does not harm Powell in a manner that cannot be undone. If the denial turns out to
be erroneous, and if that error prejudices Powell’s ability to conduct meaningful
discovery leading to the denial of his postconviction petition, Powell has an effective
remedy through the reversal of the trial court’s decision on the postconviction petition
and an order from this court directing the trial court to grant him funds to hire an expert.
At that point, Powell will be able to receive the relief he has requested, and the damage
caused by the trial court’s denial of his motion for funds would be rectified.
{¶ 76} In its decision, the majority relies upon principles of judicial economy to
tip the scales in favor of immediate review under R.C. 2505.02(B)(4), because time is of
the essence in postconviction proceedings involving a defendant who has been sentenced
to death. However, the phrase “judicial economy” is not contained within R.C. 2505.02,
and appellate courts are not free to expand the jurisdiction granted by claiming it would
be more efficient. See Harrell, supra, 1st Dist. Hamilton No. C-180417, 2019-Ohio-
33.
[Cite as State v. Powell, 2019-Ohio-4286.]
{¶ 77} 2816, at ¶ 13 (“While we are certainly mindful of judicial economy, we
cannot tinker with our jurisdictional limits simply because the judicial economy winds
blow in a particular direction. We must adhere to the constitutional and statutory
constraints on our jurisdiction.”).
{¶ 78} In contrast to the majority, I find that addressing the trial court’s denial of
Powell’s motion for funds to hire an expert actually inhibits judicial economy. This is
particularly true here, where the trial court is yet to rule on Powell’s underlying discovery
motion. Given the procedural posture of this case, notions of judicial economy favor
dismissal of the portion of Powell’s appeal relating to the request for funds in order to
allow the trial court to resolve all of the discovery disputes and rule on the merits of
Powell’s postconviction petition. This would allow us to review all of Powell’s
arguments in their wider context, thereby enabling us to render one decision rather than
piecemeal decisions.
{¶ 79} In sum, I find that the trial court’s denial of Powell’s motion for funds to
hire an expert is not a final, appealable order under R.C. 2505.02(B)(4), because a
proceeding seeking funds to hire an expert is not a “provisional remedy” and Powell can
obtain meaningful review and an effective remedy through an appeal following the trial
court’s decision on his postconviction petition. Because the majority holds otherwise, I
must respectfully dissent.
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.