State v. Jackson (149 Ohio St. 3d 55, 2016)

Pfeifer, J.

{¶ 1} This is a death-penalty appeal as of right. A jury convicted the defendant-appellant, Nathaniel Jackson, of the aggravated murder of Robert Fingerhut, with two death-penalty specifications. Jackson was sentenced to death. This court affirmed Jackson’s convictions and the death sentence on direct appeal. State v. Jackson, 107 Ohio St.3d 300, 2006-Ohio-1, 839 N.E.2d 362.

{¶ 2} During a subsequent appeal from the trial court’s denial of Jackson’s motion for a new trial, the Eleventh District Court of Appeals vacated the death sentence, holding that the trial judge’s use of the assistant prosecutor to assist in preparation of the sentencing opinion was improper. The case was remanded to the trial court for resentencing. State v. Jackson, 190 Ohio App.3d 319, 2010-Ohio-5054, 941 N.E.2d 1221, ¶ 29, 33 (11th Dist.). On remand, the trial court again sentenced Jackson to death.

{¶ 3} For the following reasons, we affirm the trial court’s resentencing of Jackson. Although we hold that in the sentencing opinion the trial court improperly failed to consider Jackson’s allocution, the error was harmless and will be rectified by our independent sentence evaluation.

I. Trial Evidence

{¶ 4} Our previous decision in this case sets forth the facts in detail. 107 Ohio St.3d 300, 2006-Ohio-1, 839 N.E.2d 362, at ¶ 2-74. For purposes of this opinion, we summarize the facts as follows.

{¶ 5} Donna Roberts lived with Robert Fingerhut, her former husband, in Howland Township, Trumbull County. Fingerhut, who operated Greyhound bus terminals in Warren and Youngstown, owned two insurance policies on his life, both of which named Roberts as sole beneficiary. The total death benefit of the two policies was $550,000.

{¶ 6} At some point, Jackson began an affair with Roberts. In 2001, the affair was interrupted by Jackson’s confinement in the Lorain Correctional Institution. While Jackson was in prison, he and Roberts exchanged numerous letters and spoke on the telephone. Prison authorities recorded many of their telephone conversations.

{¶ 7} Passages from the letters and telephone calls indicated that the two plotted to murder Fingerhut. Jackson repeatedly pledged to kill Fingerhut upon Jackson’s release from prison. In one letter, Jackson wrote, “Donna I don’t care what you say but Robert has to go! An[d] I’m not gonna let you stop me this time.” At Jackson’s request, Roberts purchased a ski mask and a pair of gloves for Jackson to use during the murder. On the day before Jackson was released, he and Roberts had one final recorded conversation. Jackson told her, “I got to do this Donna. I got to.” He also told Roberts his plan: “I just need to be in that house when he come home. * * * Baby it ain’t gonna happen in the house.”

{¶ 8} Jackson was released on December 9, 2001. Roberts drove to Lorain to pick him up, spent that night with him in a motel, and spent much of the next two days with him as well. On December 11, 2001, Fingerhut was shot to death at his home.

{¶ 9} When police responded to the crime scene, Roberts was hysterical and asked them to do whatever was necessary to catch the killer. She also reported that Fingerhut’s car had been stolen. During a search of the house, the police found, in a dresser in the master bedroom, 145 handwritten letters and cards that Jackson had sent to Roberts. In the trunk of Roberts’s car, the police found a bag with Jackson’s name on it containing clothes and 139 letters that Roberts had sent to Jackson. On December 12, Fingerhut’s car was found in Youngstown.

{¶ 10} On December 21, 2001, Jackson was arrested at a friend’s house in Youngstown. Jackson had a bandage around his left index finger at the time of his arrest. The police seized a pair of bloodstained gloves with the left index finger missing and a pair of tennis shoes from the house. The tread pattern on the shoes was consistent with a shoe print left in blood near Fingerhut’s body.

{¶ 11} During a subsequent police interview, Jackson said, “I just didn’t mean to do it, man.” He then related his version of what happened, essentially claiming that he shot Fingerhut in self-defense. Jackson claimed to have known Fingerhut for a couple of years. Jackson said that on the evening of December 11, he approached Fingerhut about getting a job at the Youngstown bus terminal. They met later that evening, and Jackson sold Fingerhut “some weed.” He then asked Fingerhut whether he could go to Fingerhut’s house to “chill” before starting work the next day, and Fingerhut gave Jackson a ride to Fingerhut’s home. According to Jackson, after they went inside the home, Fingerhut started making racial comments and other disparaging remarks toward him. Fingerhut then pulled a revolver, Jackson tried to grab it, and Fingerhut shot Jackson in the finger as Jackson reached for the gun. Jackson then took the gun from Fingerhut during the “tussle” and shot him twice. Jackson was unsure where the shots hit Fingerhut but said that Fingerhut was still breathing when Jackson fled the house and drove away in Fingerhut’s car.

{¶ 12} Fingerhut’s autopsy showed that he had been shot three times, including a penetrating gunshot wound to the top of the head that was determined to be fatal. There was also a laceration between Fingerhut’s left thumb and index finger, and further examination showed that the fatal bullet hit his hand before entering the top of his head. Gunshot residue on the body indicated that the distance from the muzzle of the firearm to the head wound was 24 inches or less.

{¶ 13} Finally, expert testimony established that the DNA profile of bloodstains found inside Fingerhut’s car and on its trunk-release lever matched Jackson’s DNA profile.

II. Case History

A. Indictment, trial, verdict, and appeal

{¶ 14} On December 28, 2001, a grand jury indicted Jackson on two counts of aggravated murder in violation of R.C. 2903.01(A) and (B). Both murder counts carried two felony-murder death-penalty specifications: murder during an aggravated burglary and murder during an aggravated robbery. R.C. 2929.04(A)(7). The grand jury also indicted Jackson on separate counts of aggravated burglary and aggravated robbery with a firearm specification on each count.

{¶ 15} During October and November 2002, Judge John Stuard presided over Jackson’s capital-murder trial. Before a jury, the state presented numerous witnesses establishing the facts. The defense presented three witnesses whose testimony revealed that documents for most of the property shared by Roberts and Fingerhut named Roberts as the owner. This evidence was intended to undermine the financial motive for the killing asserted by the state. The jury found Jackson guilty as charged.

{¶ 16} At the conclusion of the penalty phase, the jury recommended death, and the court imposed the death sentence on Jackson.

{¶ 17} On January 4, 2006, we affirmed the verdict and sentence on Jackson’s direct appeal. 107 Ohio St.3d 300, 2006-Ohio-1, 839 N.E.2d 362.

B. Roberts’s trial and direct appeal

{¶ 18} In May and June 2003, Judge Stuard presided over the capital-murder trial of Donna Roberts. A jury found Roberts guilty of the aggravated murder of Fingerhut and other offenses, and she was sentenced to death.

{¶ 19} On August 2, 2006, we affirmed Roberts’s convictions, including the convictions regarding aggravated murder and both death-penalty specifications. State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168 (“Roberts I ”). But we vacated the death sentence and remanded the case to the trial court because the judge had enlisted the assistant county prosecutor who tried the case to participate in drafting the sentencing opinion, and in doing so, had engaged in improper ex parte communications. Id. at ¶ 153-164. (Although Judge Stuard also presided over Jackson’s trial, no allegation was raised in Jackson’s direct appeal to this court that the prosecutor participated in drafting the sentencing opinion or engaged in ex parte communications with the judge during that trial, and our January 2006 opinion affirming Jackson’s convictions and death sentence accordingly did not address any issues of that type.)

{¶ 20} We ordered the following relief in Roberts I:

On remand, the trial judge will afford Roberts her right to allocate, and the trial court shall personally review and evaluate the evidence, weigh the aggravating circumstances against any relevant mitigating evidence, and determine anew the appropriateness of the death penalty as required by R.C. 2929.03. The trial court will then personally prepare an entirely new penalty opinion as required by R.C. 2929.08(F) and conduct whatever other proceedings are required by law and consistent with this opinion.

Id. at ¶ 167.

C. Developments in the aftermath of Roberts I

{¶ 21} Following Roberts I, on August 15, 2006, Jackson filed a motion in the trial court for leave to file a motion for a new sentencing hearing.

{¶ 22} On October 5, 2006, Jackson’s attorney filed an affidavit of disqualification against Judge Stuard, seeking to prevent the judge from acting on any further trial or postconviction proceedings. On November 29, 2006, Chief Justice Moyer denied that affidavit, stating:

Judge Stuard has responded in writing to the affidavit. He acknowledges that he held the same kind of communications with the prosecuting attorney’s office in both the Roberts and Jackson capital cases before sentencing each of them to death * * *. The judge states that he is prepared to reconsider the evidence and impose a new sentence in this case just as he has been ordered to do in the related Roberts case. He contends that his ex parte communications with the prosecuting attorney’s office were administrative rather than substantive, and he states that the prosecuting attorney’s office simply typed up his notes after he had independently weighed the evidence and reached a decision about the proper sentences for the two defendants.

I find no basis for ordering the disqualification of Judge Stuard. The judge is entitled to consider the defendant’s motion for relief from judgment now pending in the trial court, and if the judge concludes that relief is appropriate, he may grant that motion and conduct the new sentencing hearing * * *.

In re Disqualification of Stuard, 113 Ohio St.3d 1236, 2006-Ohio-7233, 863 N.E.2d 636, ¶ 4-5.

{¶ 23} On February 15, 2008, Judge Stuard granted Jackson’s motion for leave to file a motion for a new sentencing hearing. On February 29, 2008, Jackson filed a motion “for a new trial and/or sentencing hearing” on the grounds that the prosecution impermissibly collaborated in the drafting of the sentencing opinion.

{¶ 24} On May 12, 2008, Jackson’s attorneys filed a second affidavit of disqualification against Judge Stuard, premised on pending disciplinary proceedings that had been brought against Judge Stuard for enlisting the assistant prosecutor to prepare the sentencing opinion in Roberts’s case and contending that Judge Stuard had shown his bias by refusing to grant Jackson the same relief that Roberts had received in her case. On August 20, 2008, Chief Justice Moyer denied that affidavit.

{¶ 25} On January 29, 2009, we publicly reprimanded Judge Stuard for violating the Canons of the Code of Judicial Conduct by engaging in “ex parte communications four times” with the assistant prosecutor “about the sentencing opinion in Roberts’s case.” Disciplinary Counsel v. Stuard, 121 Ohio St.3d 29, 2009-Ohio-261, 901 N.E.2d 788, ¶ 5, 16.

{¶ 26} On May 4, 2009, Judge Stuard denied Jackson’s motion for a new trial or a new sentencing hearing, and Jackson appealed the denial to the Eleventh District.

D. Remand of Jackson’s case for resentencing

{¶ 27} On October 15, 2010, the court of appeals held that the judge’s use of the prosecutor to assist in preparing the sentencing opinion in Jackson’s case was improper, vacated the sentence, and remanded for resentencing. 190 Ohio App.3d 319, 2010-Ohio-5054, 941 N.E.2d 1221, at ¶ 29, 33. The court mandated:

In the case at bar, * * * the fact pattern is factually the same as that in Roberts. The record before us establishes that the same drafting procedures involving the sentencing entry that occurred in Roberts took place in the instant matter. * * * Based on the Supreme Court of Ohio’s holding in Roberts, appellant is entitled to the same relief afforded to his co-defendant. Thus, the trial judge must personally review and evaluate the appropriateness of the death penalty, prepare an entirely new sentencing entry as required by R.C. 2929.03(F), and conduct whatever other proceedings are required by law and consistent with this opinion.

Id. at ¶ 29.

E. Jackson’s resentencing hearing

{¶28} On August 14, 2012, Judge Stuard conducted Jackson’s resentencing hearing. As a preliminary matter, the judge overruled a defense motion for his voluntary recusal. He then proceeded with the hearing. During the hearing, Judge Stuard overruled a defense motion to allow Jackson to present additional mitigating evidence. Judge Stuard heard Jackson’s allocution. He then sentenced Jackson to death and filed a sentencing opinion pursuant to R.C. 2929.03(F).

F. Roberts’s additional proceedings and appeals

{¶ 29} On remand in Roberts’s case, Judge Stuard again sentenced her to death. Roberts appealed as of right to this court. On October 22, 2013, we held that the trial court in its sentencing opinion had erred in failing to consider the allocution Roberts made at her resentencing hearing and that this omission rendered the sentencing opinion “so inadequate as to severely handicap our ability to exercise our power of independent review.” State v. Roberts, 137 Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100, ¶ 69-72 (“Roberts II”). We vacated Roberts’s death sentence and remanded the case for resentencing. Id. at ¶ 72, 96.

{¶ 30} On April 30, 2014, Judge Ronald Rice resentenced Roberts to death. Her appeal is currently pending in this court in case No. 2014-0989.

III. Issues on Appeal

{¶ 31} In this appeal, Jackson raises 12 propositions of law. We will address his propositions out of order for ease of analysis.

A. Trial judge’s impartiality on resentencing (Proposition of law No. Ill)

{¶ 32} Jackson argues that he was denied a fair and impartial trial judge on resentencing.

{¶ 33} Judicial bias is defined as

a hostile feeling or spirit of ill will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and facts.

State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956), paragraph four of the syllabus.

{¶ 34} Under Article IV, Section 5(C) of the Ohio Constitution, the chief justice or the chief justice’s designee has sole authority to determine whether a trial judge is disqualified. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 145; see State v. Moore, 93 Ohio St.3d 649, 650, 758 N.E.2d 1130 (2001); Beer v. Griffith, 54 Ohio St.2d 440, 441, 377 N.E.2d 775 (1978).

1. Res judicata

{¶ 35} Jackson renews his claims that Judge Stuard had been unfair and should not have presided over his resentencing hearing. One of Jackson’s arguments is that Judge Stuard delayed ruling on Jackson’s motion for a new trial until after a mandamus action was filed against him. But Chief Justice Moyer considered similar arguments in ruling on Jackson’s attorneys’ second affidavit of disqualification and determined that the allegations did not establish bias or create a basis for disqualification. Thus, this claim is res judicata. Hale at ¶ 145; State v. Rogers, 17 Ohio St.3d 174, 186, 478 N.E.2d 984 (1985), vacated on other grounds, sub nom. Rogers v. Ohio, 474 U.S. 1002, 106 S.Ct. 518, 88 L.Ed.2d 452 (1985).

2. Other bias claims

{¶ 36} First, Jackson argues that Judge Stuard demonstrated bias by denying his motion for a new sentencing hearing after Judge Stuard had stated in his response to the first affidavit of disqualification that he was prepared to grant such a motion. In a related argument, Jackson asserts that Judge Stuard displayed bias by refusing to accept this court’s rulings in Roberts I and in the disciplinary action taken against him.

{¶ 37} In his affidavit filed in the first disqualification attempt, Judge Stuard stated that he had “essentially the same type of communications” with the assistant prosecutors in both the Roberts and Jackson cases. Jackson characterizes Judge Stuard’s acknowledgement of wrongdoing as implicitly representing that he would cure the error. But Jackson asserts that Judge Stuard refused to concede any wrongdoing during the resentencing hearing when the judge stated, “You are all aware of the reason why this case is back here. The Supreme Court I think misunderstood what occurred, but they have made their ruling and I must abide by that.” Jackson asserts that the judge then violated his implicit promise to cure the error by filing an almost identical copy of his prior sentencing opinion.

{¶ 38} In support of this claim, Jackson relies on Judge Cannon’s concurring opinion in the case in which the Eleventh District remanded the matter for resentencing. In that opinion, Judge Cannon stated:

My decision that the trial judge should conduct a new sentencing hearing is based, in large measure, upon the representations made to the Supreme Court of Ohio by the trial judge. More than one affidavit to disqualify the trial judge was filed in this case. In November 2006, the trial judge filed an affidavit in response, opposing disqualification. In that affidavit, the trial judge acknowledged doing the same thing in this case that he did in State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, wherein the trial judge was ordered to conduct a new sentencing hearing. * * *

Because he acknowledged doing the same thing that resulted in prejudicial error in the Roberts case, the trial judge conceded prejudicial error in Jackson’s case. And, by opposing disqualification, the trial judge implicitly represented that he could remain on the case for purposes of curing that error. Given the circumstances, it would appear that the trial judge recognized that he would be required to do the same thing he was ordered to do in Roberts, regardless of the nature of the proceedings (whether postconviction or direct appeal), if he were permitted to remain on the case.

190 Ohio App.3d 319, 2010-Ohio-5054, 941 N.E.2d 1221, at ¶ 35, 41 (Cannon, J., concurring).

{¶ 39} Judge Cannon in his concurrence explained his rationale for vacating Jackson’s sentence and remanding the cause for resentencing. Yet none of Judge Cannon’s remarks were made in the context of a claim of judicial bias. Thus, his concurring opinion does not support Jackson’s bias claim.

{¶ 40} Despite his bias claims, Jackson fails to show that Judge Stuard displayed “a hostile feeling or spirit of ill will” toward him. Pratt, 164 Ohio St. 463, 132 N.E.2d 191, at paragraph four of the syllabus. Moreover, Judge Stuard’s failure to provide the relief that Jackson believes was warranted does not establish actual bias. See In re Disqualification of Floyd, 135 Ohio St.3d 1249, 2012-Ohio-6336, 986 N.E.2d 10, ¶ 10 (the fact that a trial judge’s decision “was reversed in a critical opinion by the appeals court does not imply that she will be biased against [the appellants] or somehow retaliate against them”). Thus, these claims lack merit.

{¶ 41} Second, Jackson claims that the judge was biased during the resentenc-ing proceedings, because he refused to consider new mitigating evidence. The court of appeals directed Judge Stuard on remand to provide Jackson with “the same relief afforded to” Roberts. 190 Ohio App.3d 319, 2010-Ohio-5054, 941 N.E.2d 1221, at ¶ 29. Roberts was not allowed to introduce new mitigating evidence during her resentencing proceedings, and Judge Stuard approached Jackson’s resentencing in the same fashion. See Roberts II, 137 Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100, at ¶ 41-43 (holding that Judge Stuard acted appropriately in not permitting Roberts to introduce new mitigation evidence). Accordingly, Judge Stuard’s rulings in Jackson’s case were not inconsistent with the court of appeals’ directive and did not display bias.

{¶ 42} Third, Jackson argues that the judge exhibited bias by failing to consider his allocution before sentencing him to death. As will be discussed regarding proposition of law No. IV, the trial court erred by failing to discuss Jackson’s allocution in the R.C. 2929.03(F) sentencing opinion. But that error does not prove that Judge Stuard harbored a hostile feeling or a spirit of ill will against Jackson or his attorneys during the proceedings. Accordingly, Jackson fails to demonstrate that any omissions from the- sentencing opinion resulted from judicial bias.

{¶ 43} Finally, Jackson argues that Judge Stuard’s bias denied him due process in violation of the Fourteenth Amendment to the United States Constitution. Due- process requires that a criminal defendant be tried before an impartial judge. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 34. If the record evidence indicates that the trial was infected by judicial bias, the remedy is a new trial. State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, ¶ 2.

{¶ 44} Again, Jackson fails to demonstrate that Judge Stuard had actual bias and acted with “ill will” or formed “a fixed anticipatory judgment” against him. Pratt, 164 Ohio St. 463, 132 N.E.2d 191, at paragraph four of the syllabus; see also Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). Therefore, this claim also lacks merit.

{¶ 45} Based on the foregoing, we reject proposition of law No. III.

B. Final, appealable order and sentencing opinion’s compliance with R.C. 2929.03(F) (Proposition of law No. I)

{¶ 46} Jackson argues that this court lacks jurisdiction to hear his appeal because the trial court’s sentencing opinion was defective and not completed as R.C. 2929.03(F) requires. This court lacks jurisdiction over orders that are not final and appealable. See Ohio Constitution, Article TV, Section 3(B)(2); R.C. 2953.02.

{¶ 47} Crim.R. 32(C) prescribes the requirements for a final, appealable order in a criminal case. The rule in effect at the time of Jackson’s resentencing stated:

A judgment of conviction shall set forth the plea, the verdict, or findings, upon which each conviction is based, and the sentence. Multiple judgments of conviction may be addressed in one judgment entry. If the defendant is found not guilty or for any other, reason is entitled to be discharged, the court shall render judgment accordingly. The judge shall sign the judgment and the clerk shall enter it on the journal. A judgment is effective only when entered on the journal by the clerk.

Former Crim.R. 32(C) (2009), 122 Ohio St.3d C. Accordingly, this court has held that “a judgment of conviction is a final order subject to appeal under R.C. 2505.02 when the judgment entry sets forth (1) the fact of the conviction, (2) the sentence, (3) the judge’s signature, and (4) the time stamp indicating the entry upon the journal by the clerk.” State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, ¶ 14.

{¶48} As a general matter, “[ojnly one document can constitute a final appealable order,” meaning that a single entry must satisfy the requirements of Crim.R. 32(C). State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163, ¶ 17. But there is an exception for capital cases, in which R.C. 2929.03(F) requires the court or panel to file a sentencing opinion. State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, syllabus and ¶ 17-18. In those cases, “a final, appealable order consists of both the sentencing opinion filed pursuant to R.C. 2929.03(F) and the judgment of conviction filed pursuant to Crim.R. 32(C).” Id. at syllabus.

{¶ 49} On August 14, 2012, the trial court issued a sentencing opinion, as R.C. 2929.03(F) requires. In the opinion, the trial court stated the jury’s verdict and sentenced Jackson to death on the merged capital counts. On the same date, the trial court filed a separate judgment entry imposing sentence for the noncapital counts. On August 16, 2012, the trial court entered a nunc pro tunc entry to correct various clerical errors that were present in the judgment entry; The sentencing opinion, the judgment entry, and the nunc pro tunc entry were signed by the judge and journalized. Together, these documents comply with the requirements of Crim.R. 32(C) and constitute a final, appealable order. See State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 40.

{¶ 50} Jackson argues that there is no final, appealable order because the trial court’s sentencing opinion failed to comply with R.C. 2929.03(F). Jackson claims that these defects included (1) the trial judge’s announcement during the sentencing hearing that he had already drafted the sentencing opinion, (2) the sentencing opinion’s omission of any consideration of new mitigating evidence and of new mitigating factors that Jackson attempted to raise at the resentencing hearing, and (3) the cumulative effect of those errors.

{¶ 51} In Thompson, which was also a capital case, this court addressed the argument that there was no final, appealable order because the sentencing opinion contained an error. In that case, the trial court’s sentencing opinion mistakenly referred to a five-year sentence on a noncapital count that the court had previously dismissed but then purportedly merged with a lower-degree felony. Id. at ¶ 44-45. This court in rejecting Thompson’s argument that there was no final, appealable order stated, “ ‘[Sentencing errors are not jurisdictional.’ ” Id. at ¶ 45, quoting Manns v. Gansheimer, 117 Ohio St.3d 251, 2008-Ohio-851, 883 N.E.2d 431, ¶ 6. “Instead, sentencing errors can be remedied on appeal in the ordinary course of law.” Thompson at ¶ 45.

{¶ 52} Jackson’s challenge to the sentencing opinion involves capital offenses rather than the noncapital offenses that were at issue in Thompson, but the difference in the nature of these claims makes no difference in whether there is a final, appealable order in compliance with Crim.R. 32(C). Accordingly, as in Thompson, we have jurisdiction over Jackson’s appeal, and we reject proposition of law No. I.

C. Exclusion of mitigating evidence on limited remand (Proposition of law No. V)

{¶ 53} Jackson argues that the trial court erred by precluding the defense from presenting mitigating evidence on remand.

1. Facts

{¶ 54} Before the resentencing hearing, Jackson filed a motion to permit the defense to present additional mitigating evidence. The trial court denied that motion.

{¶ 55} After the motion was denied, the defense proffered three volumes of mitigating evidence. This included Ohio death-penalty statistics and information about the racial composition of juries in death-penalty cases; Jackson’s school records; Jackson’s criminal and probation records; psychological-testing information; police reports completed following Fingerhut’s murder; a psychological report, dated November 12, 2002, prepared by Dr. Sandra McPherson, who evaluated Jackson prior to the mitigation phase of his trial; affidavits from Jackson’s friends and family members; documentation of medical concerns about Ohio’s lethal-injection protocol; and Jackson’s affidavit, dated May 20, 2004, expressing dissatisfaction about his trial counsel’s representation.

2. Analysis

{¶ 56} Under the Eighth Amendment to the United States Constitution, the sentencer in a capital case may “not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.” (Emphasis sic.) Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion). Moreover, “[j]ust as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence.” (Emphasis sic.) Eddings v. Oklahoma, 455 U.S. 104, 113-114, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); see also Hitchcock v. Dugger, 481 U.S. 393, 398-399, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987).

{¶ 57} In Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), the court held that a capital defendant had an Eighth Amendment right to introduce, at his sentencing hearing, “testimony * * * regarding his good behavior during the over seven months he spent in jail awaiting trial.” Id. at 4. This was relevant “evidence in mitigation” because

the jury could have drawn favorable inferences from this testimony regarding petitioner’s character and his probable future conduct if sentenced to life in prison. * * * [T]here is no question but that such inferences would be “mitigating” in the sense that they might serve “as a basis' for a sentence less than death.” * * * [Ejvidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating. Under Eddings, such evidence may not be excluded from the sentencer’s consideration.

(Footnote omitted.) Id. at 4-5, quoting Lockett at 604.

{¶ 58} The United States Supreme Court has not determined that a capital defendant has a categorical constitutional right to introduce new mitigation evidence that is discovered after a sentencing hearing in which the defendant was given an opportunity to present all the mitigation evidence he desired. That court has also not resolved whether a remand for a limited resentencing in a capital case that effectively excludes the presentation of newly discovered mitigation evidence is constitutionally invalid. See State v. Berget, 2014 S.D. 61, 853 N.W.2d 45, ¶ 32.

{¶ 59} Jackson invokes Davis v. Coyle, 475 F.3d 761 (6th Cir.2007) (“Coyle”) in arguing that the trial court violated his constitutional rights by denying his motion to fully present mitigation at the resentencing hearing. Jackson asserts that the Eighth Amendment, as interpreted by Lockett and its progeny, entitled him to present the evidence on remand.

{¶ 60} In State v. Davis, 63 Ohio St.3d 44, 584 N.E.2d 1192 (1992), a three-judge panel excluded posttrial mitigation evidence during a defendant’s resen-tencing hearing. On appeal, we held that neither Lockett, Eddings, Skipper, nor Hitchcock entitled the defendant to present the evidence on remand. State v. Davis at 46. We distinguished Skipper by noting that it involved the erroneous exclusion of “evidence of Skipper’s good prison record between his arrest and trial.” (Emphasis sic.) Id.

{¶ 61} The United States Court of Appeals for the Sixth Circuit later addressed this issue in habeas corpus proceedings involving the Davis case. In Coyle, the Sixth Circuit held that the three-judge panel’s decision to exclude posttrial mitigation evidence from Davis’s resentencing hearing violated his Eighth Amendment rights. Id. at 773. The Sixth Circuit stated that this court’s affirmance of that ruling in State v. Davis, “based on the court’s belief that the facts of Davis’s case could be distinguished from Skippers solely on the basis of timing, was both an unreasonable application of the decision in Skipper and contrary to the holding in that opinion and its antecedent cases.” Id. The Coyle court concluded that “the holding in Skipper * * * requires that, at resentencing, a trial court must consider any new evidence that the defendant has developed since the initial sentencing hearing.” Id. at 774, citing Skipper, 476 U.S. at 8, 106 S.Ct. 1669, 90 L.Ed.2d 1.

{¶ 62} In Roberts II, 137 Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100, at ¶ 39, we declined to apply Coyle and rejected claims that the trial court’s failure to admit mitigating evidence during the resentencing hearing violated Roberts’s Eighth Amendment rights. As discussed earlier, this court in Roberts I affirmed Roberts’s convictions, but we remanded for limited resentencing because the trial judge engaged in ex parte communications with the prosecutor in drafting the sentencing opinion. Roberts I, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, at ¶ 153-164. On remand, Roberts filed a motion to introduce new mitigating evidence, but the trial judge denied that motion and resentenced Roberts to death. Roberts II at ¶ 12-13.

{¶ 63} In Roberts II, we emphasized that Coyle was not binding precedent, because “we are ‘not bound by rulings on federal statutory or constitutional law made by a federal court other than the United States Supreme Court.’ ” Roberts II at ¶ 33, quoting State v. Burnett, 93 Ohio St.3d 419, 424, 755 N.E.2d 857 (2001). But we considered whether Coyle was persuasive and on point in the case before us. This court in Roberts II then distinguished Lockett, Eddings, Skipper, and Hitchcock on the grounds that none of those cases involved “a proceeding on remand for the limited purpose of correcting an error that occurred after the defendant had had a full, unlimited opportunity to present mitigating evidence to the sentencer.” (Emphasis sic.) Roberts II at ¶ 34.

{¶ 64} We concluded:

In a case in which the defendant was not deprived of any constitutional right—including her Eighth Amendment right to present mitigation—at the time of her mitigation hearing, there seems to be no basis for requiring the trial court to reopen or supplement that evidence in a later proceeding. To hold, as Coyle does, that a new mitigation hearing must be held, even though no constitutional error infected the original one, would transform the right to present relevant mitigation into a right to update one’s mitigation. Such a right has no clear basis in Lockett or its progeny.

(Emphasis sic.) Roberts II at ¶ 36.

{¶ 65} Jackson argues that the opinion in Roberts II “failed to acknowledge that other federal courts of appeals have reached the same conclusion” that the Sixth Circuit reached in Coyle. But that is incorrect. The opinion in Roberts II cited United States Court of Appeals decisions from the Ninth and Eleventh Circuit Courts of Appeals that were in accord with Coyle. Roberts II at ¶ 32, citing Creech v. Arave, 947 F.2d 873, 881-882 (9th Cir.1991) (en banc), and Spaziano v. Singletary, 36 F.3d 1028, 1032-1035 (11th Cir.1994). More importantly, those decisions do not change the fact that the United States Supreme Court has not ruled on this issue.

{¶ 66} Jackson also argues that like the petitioner in Coyle, he suffered actual prejudice by not being allowed to present information as to his exemplary behavior in prison. During allocution, Jackson stated, “I haven’t been in any trouble since I have been on death row since 2007 and that was a little minor situation, but I haven’t been in any trouble or anything since then. * * * I have learned to adjust to the environment without any problem.” Jackson proffered no other evidence relative to his good behavior in prison.

{¶ 67} In Coyle, the Sixth Circuit noted that although neither side was permitted to introduce new evidence during the resentencing hearing, the state had argued to the trial court that Davis’s status as a repeat offender made him too dangerous to be sentenced to anything other than death. Coyle, 475 F.3d at 772-773. In rebuttal, Davis relied upon evidence presented at his first sentencing hearing, but he was not allowed to present testimony about his most recent behavior and adjustment to prison life. Id. at 773. The court in Coyle held that the testimony Davis was prevented from presenting was “highly relevant” and should have been allowed. Id.

{¶ 68} The facts in Coyle are distinguishable from what occurred during Jackson’s resentencing hearing. The prosecutor at that hearing made no argument in favor of the death penalty. Thus, unlike Coyle, Jackson had no arguments to rebut. Moreover, it is unclear what other evidence about good prison behavior (besides his statement in allocution) Jackson could have presented. Accordingly, Coyle does not support Jackson’s claim that his constitutional rights were violated because he was not allowed to present evidence about his prison behavior.

{¶ 69%B Jackson also argues that he should have been allowed to present new mitigating evidence about his background because evidence presented during his original sentencing hearing was inaccurate. Jackson asserts that during his mitigation hearing, information was presented indicating that he was a good student, had a positive upbringing, and had average intellectual ability with an IQ score of 84. Jackson states that the court should have considered additional information during the resentencing proceedings that showed that his mother was an alcoholic, he grew up in a bad neighborhood marked by violent crime and drug addiction, he was a poor student with severe behavioral issues and borderline intelligence, and his IQ score of 84 was inaccurate.

{¶ 70} Jackson argues that mitigating evidence pertaining to his background was presented in a different light than it should have been during the sentencing phase of his jury trial. Yet Jackson was given a full opportunity to present mitigating evidence during his initial sentencing hearing. Accordingly, Jackson was not entitled to improve or expand his mitigating evidence simply because the court of appeals required the judge to resentence him and prepare a new sentencing opinion. See Roberts II, 137 Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100, at ¶ 36; State v. Chinn, 85 Ohio St.3d 548, 564-565, 709 N.E.2d 1166 (1999). We reject this claim.

{¶ 71} In a recent decision, the South Dakota Supreme Court also held that a capital defendant does not have an Eighth Amendment right to present updated mitigation evidence on resentencing. Berget, 2014 S.D. 61, 853 N.W.2d 45, at ¶ 45-46. The court in Berget considered and compared the reasoning underlying Coyle and Roberts II and determined that Roberts II is the more persuasive authority. Berget at ¶ 38.

{¶ 72} As to claims similar to those raised by Jackson, the Berget court reasoned that recognizing a defendant’s right to present updated mitigation in this situation “would establish the incentive to turn a limited resentencing into a full-fledged, second sentencing hearing by seeking out all newly discoverable mitigation evidence conceivable, again no longer making the original sentencing proceeding the ‘ “main event” ’ but consigning it to a mere ‘ “tryout on the road.” ’ ” Id. at ¶ 45, quoting Gregory v. Solem, 449 N.W.2d 827, 833 (S.D.1989), quoting Wainwright v. Sykes, 433 U.S. 72, 90, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The Berget court added, “It is also more than conceivable that Berget may claim new, positive relationships with family members, fellow prisoners, or strangers for the remainder of his life if this Court permits each assertion of a relationship to be grounds for a new sentencing hearing or grounds for ignoring our limited remand instructions.” Id.

3. Conclusion

{¶ 73} No binding authority holds that the Eighth Amendment requires a resentencing judge to accept and consider new mitigation evidence at a limited resentencing when the defendant had the unrestricted opportunity to present mitigating evidence during his original mitigation hearing. Accordingly, we adhere to our precedent in Roberts II and reject proposition of law No. V.

D. Failure to discuss allocution in the sentencing opinion (Proposition of law No. VI)

{¶ 74} Jackson argues that the trial court failed to consider his allocution in determining his sentence.

1. Facts

{¶ 75} At the resentencing hearing on August 14, 2012, the trial court asked trial counsel whether they had anything further to say. Counsel indicated that Jackson wanted to make a statement. Jackson then said:

Your Honor, I would just like to say, doing my time in Trumbull Correctional, I went down there and obtained a certificate in basic skills computer class and I passed advanced class and also became a tutor down there and also got a certificate in the music program, and I was trying to get into other different programs that they have down there. I haven’t been in any trouble since I have been on death row since 2007 and that was a little minor situation, but I haven’t been in any trouble or anything since then, Your Honor. Since I have been off of death row, I understand a lot of things. In a different situation and different environment I was in, I have learned to adjust to the environment without any problem, Your Honor.

{¶ 76} The trial court stated, “I accept what you are saying” and then also afforded Jackson the opportunity to speak before pronouncing the sentence. Jackson said, “I feel that doing my time, I have learned to find myself and I know who I am right now, and * * * I wouldn’t like to be placed back on death row. I really wouldn’t.”

{¶ 77} The trial court filed the sentencing opinion on the same afternoon, after the resentencing hearing concluded. The trial court stated in the sentencing opinion that it had considered “the relevant evidence raised at trial, the relevant testimony, the other evidence, the unsworn statement of the Defendant, and the arguments of counsel.” The sentencing opinion did not mention Jackson’s allocution.

2. Analysis

{¶ 78} Jackson argues that the trial court’s failure to mention his allocution in its sentencing opinion shows that it was not considered.

{¶ 79} In Roberts II, the trial court did not discuss the defendant’s allocution in its sentencing opinion. 137 Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100, at ¶ 52-53. In reviewing this omission, we stated in Roberts II:

We have previously rejected claims that a trial court’s failure to mention particular mitigating factors in a sentencing opinion obliges a reviewing court to infer that the trial court failed to consider those factors. “ * * * While a sentencing court must consider all evidence of mitigation, it need not discuss each [allegedly mitigating] factor individually.”

(Emphasis and brackets sic.) Id. at ¶ 54, quoting State v. Phillips, 74 Ohio St.3d 72, 102, 656 N.E.2d 643 (1995), citing Parker v. Dugger, 498 U.S. 308, 314-315, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991). In Roberts II, we held that “the particular circumstances” of the case warranted “the inference that the trial judge did, in fact, fail to consider Roberts’s allocution in sentencing her to death.” Id. at ¶ 55.

{¶ 80} In Roberts II, allocution was “the only relevant matter” in mitigation that Roberts presented during her original sentencing or her resentencing. (Emphasis sic.) Id. at ¶ 56. Roberts had presented no mitigating evidence during her original trial. Id. During her allocution on resentencing, however, Roberts presented mitigating information about her childhood abuse and rape, recited her history of mental-health issues, and provided examples of her selflessness and contributions to society. The latter included her time working in a.plastic surgeon’s office, her treatment of wounded soldiers in Israel, and her efforts to assist the less fortunate, including making monetary donations. Id. at ¶ 57-61.

{¶ 81} In Roberts II, we emphasized “the presence of relevant and potentially significant mitigation in Roberts’s allocution” and “the utter lack of anything else offered for the specific purpose of mitigation.” Id. at ¶ 64. In addition, we had specifically called the matter of allocution to the trial judge’s attention in remanding the case in Roberts I. See Roberts II at ¶ 63, citing Roberts I, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, at ¶ 166. In Roberts II, we stated, “Given these unusual circumstances, we are justified in drawing the inference that when the trial judge weighed the aggravating circumstances against the mitigating factors he did not consider Roberts’s allocution.” Id. at ¶ 64. We concluded that this failure violated the Eighth Amendment. Id. at ¶ 65, 69.

{¶ 82} In reviewing potential remedies, we acknowledged in Roberts II that this court’s independent reweighing can sometimes rectify an error in the sentencing opinion. Id. at ¶ 69, citing Phillips, 74 Ohio St.3d at 102, 656 N.E.2d 643. Yet in Roberts II, we concluded that the sentencing opinion was “so inadequate as to severely handicap our ability to exercise our power of independent review,” and we vacated the sentence of death. Id. at ¶ 72. We ordered the trial court on remand to consider the entire record again, including Roberts’s allocution, to determine whether the aggravating circumstances outweigh the mitigating factors and then to write and file a sentencing opinion pursuant to R.C. 2929.03(F). Id. at ¶ 73.

{¶ 83} In remanding Jackson’s case for resentencing, the court of appeals stated, “Based on the Supreme Court of Ohio’s holding” in Roberts /, Jackson “is entitled to the same relief afforded to his co-defendant.” 190 Ohio App.3d 319, 2010-Ohio-5054, 941 N.E.2d 1221, at ¶ 29. Jackson’s remand proceedings involved the same judge, who did not mention Jackson’s allocution in his resentenc-ing opinion. Although our decision in Roberts II was announced more than a year after Jackson’s resentencing occurred, we conclude that the trial court should have considered Jackson’s allocution in the resentencing opinion.

3. Remedy

{¶ 84} We now turn to the question of how to remedy the error. We have previously stated that even if a trial court “ ‘should have more explicitly analyzed the mitigating evidence,’ this court’s independent reweighing will rectify the error.” Phillips at 102, quoting State v. Lott, 51 Ohio St.3d 160, 171, 555 N.E.2d 293 (1990). In State v. Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768 (1984), we used independent review to rectify a trial court’s failure to enunciate its reasoning. There, we observed that the very purpose of an independent appellate review of death sentences is, “at least in part, to correct such omissions.” Id. at 247.

{¶ 85} In sharp contrast to Roberts I, Jackson presented extensive mitigating evidence during his original sentencing hearing. Jackson’s mother and three other family members testified about his upbringing. See 107 Ohio St.3d 300, 2006-Ohio-1, 839 N.E.2d 362, at ¶ 164-167. Dr. Sandra McPherson, a clinical and forensic psychologist, provided testimony about Jackson’s poor school record, parental neglect, serious behavioral problems, IQ scores, and early drug use and alcohol dependency. Id. at ¶ 169-175. Jackson also made an unsworn statement and apologized for what happened to the victim. Id. at ¶ 176.

{¶ 86} Unlike the situation in Roberts II, Jackson’s allocution during his resentencing hearing added little to the mitigation that was already before the court. Jackson told the court at his resentencing hearing that he had obtained educational certificates, had served as a tutor, and had not been in any serious trouble either on or off death row. Jackson claims that the court’s failure to consider his good prison behavior was especially prejudicial. Evidence had established, however, that Jackson and Roberts planned Fingerhut’s death while Jackson was in prison earlier. Under these circumstances, it is doubtful that Jackson’s claim about his adaptation to prison life could have carried much weight. We hold that any omissions in the sentencing opinion were harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

{¶ 87} Based on the foregoing, we decline to remand this case for a new sentencing opinion. Instead, we shall cure any error in the sentencing opinion during our independent evaluation of Jackson’s capital sentence.

E. Prosecutorial taint of the sentencing opinion (Proposition of law No. VII)

{¶ 88} Jackson argues that the similarities between the 2002 and 2012 sentencing opinions show that the 2012 sentencing opinion remains “tainted” by the prosecutor’s involvement. He contends, therefore, that the case should be remanded to the trial court to write an entirely new sentencing opinion.

1. Facts

{¶ 89} On December 9, 2002, Judge Stuard filed a death-penalty sentencing opinion following Jackson’s trial. The Eleventh District later ordered the trial court to “personally review and evaluate the appropriateness of the death penalty” and “prepare an entirely new sentencing entry as required by R.C. 2929.03(F).” 190 Ohio App.3d 319, 2010-Ohio-5054, 941 N.E.2d 1221, at ¶ 29.

{¶ 90} On August 14, 2012, Judge Stuard filed a new sentencing opinion after resentencing Jackson to death. In that opinion, Judge Stuard stated:

This writer has presided over the trial of each of the Co-Defendants, Nathaniel Jackson and Donna Roberts. He has reviewed and decided the appropriateness of the death penalty option in both cases as required by O.R.C. 2929.03 and now does so again as ordered by the Ohio Supreme Court.

{¶ 91} The 2002 and 2012 sentencing opinions are very similar. The 2002 sentencing opinion summarized the trial-phase evidence, discussed the aggravating circumstances and mitigating evidence, and explained why the trial court concluded that “the aggravating circumstances, outweighed, by proof beyond a reasonable doubt, the collective mitigating factors.” The 2012 sentencing opinion added three new introductory paragraphs explaining the reasons for Jackson’s resentencing proceedings. Two other paragraphs were rewritten to discuss the trial-phase evidence in a different way. Otherwise, the two opinions are almost identical.

2. Analysis

{¶ 92} Jackson argues that Judge Stuard’s failure to write an entirely new sentencing opinion shows that the 2012 opinion remains impermissibly tainted by the prosecutor’s earlier involvement. He asserts that a few cosmetic changes from the old to the new sentencing opinion did not remove that taint.

{¶ 93} In his 2012 sentencing opinion, Judge Stuard acknowledged his responsibility to review and decide the appropriateness of the death penalty anew. Nothing in the remand directed Judge Stuard to totally deconstruct the sentencing opinion in preparing a new one. Moreover, Judge Stuard had before him the same mitigating evidence, except for the information conveyed in Jackson’s 2012 allocution, in 2002 and 2012. This helps explain the similarities between the two opinions.

{¶ 94} Jackson presents no additional evidence showing that prosecutorial taint from the 2002 sentencing opinion carried over to the 2012 sentencing opinion. Indeed, during oral argument, Jackson’s counsel acknowledged that the prosecutor was not involved in writing the new sentencing opinion. Accordingly, Jackson has failed to overcome the presumption that the judge was “capable of separating what may properly be considered from what may not be considered” and followed the law. In re Disqualification of Forsthoefel, 135 Ohio St.3d 1316, 2013-Ohio-2292, 989 N.E.2d 62, ¶ 9, citing In re Disqualification of George, 100 Ohio St.3d 1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶ 5. Under these circumstances, it is unnecessary for the trial court to prepare a third sentencing opinion because of similarities in wording between the second and first sentencing opinions.

{¶ 95} Based on the foregoing, we reject proposition of law No. VII.

F. Failure to have two appointed attorneys at the resentencing hearing (Proposition of law No. IV)

{¶ 96} Jackson argues that the trail court’s failure to ensure that two appointed attorneys represented him at his resentencing hearing violated his rights to effective assistance of counsel and due process.

{¶ 97} To establish ineffective assistance of counsel, Jackson must show that his trial counsel’s performance was both deficient and prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). With respect to deficiency, Jackson must show that his counsel’s performance “fell below an objective standard of reasonableness.” Strickland at 688. With respect to prejudice, Jackson must show that there is a reasonable probability that but for his counsel’s unprofessional errors, the outcome of the proceeding would have been different. Id. at 694.

1. Facts

{¶ 98} On August 1, 2012, Randall Porter, an assistant state public defender, submitted a motion requesting the trial court to appoint two attorneys, including himself, for resentencing purposes. He also filed a motion for a continuance. Porter stated that he was familiar with the record and had represented Jackson for eight years. Porter stated that attorney John Parker had been serving as “volunteer counsel” for Jackson for the previous five years, but Porter also stated that Parker could not accept an appointment, because Parker had been appointed to represent Jackson in his federal habeas proceedings. On August 13, the trial court denied the motion for a continuance.

{¶ 99} At the resentencing hearing on August 14, Porter and Parker appeared before the court. As a preliminary matter, Porter stated that Jackson “today is technically here without appointed counsel. I’m not appointed for this matter.” The trial court responded:

We are not here because of pending charges against Mr. Jackson. We are here solely as a result of the appeal that was filed from the original trial. Therefore, it appears to me that you are the appropriate counsel. This Court need not reappoint you. You are merely handling the appeal process for Mr. Jackson. Otherwise we wouldn’t be here.

{¶ 100} Parker then told the court that he had “never been appointed in state court to represent Mr. Jackson.” Parker stated, “I have only been appointed to represent him on that federal [habeas] petition.” Parker added, “I am here as a courtesy to the Court because I received notice to be here, and I have been involved in Mr. Jackson’s case, as a courtesy to Mr. Jackson and the Ohio Public Defender’s Office.”

{¶ 101} Parker also told the court that he was concerned that there was a conflict between his representation of Jackson in this case and in the federal habeas case. The trial court responded, “That is something I need not determine. That is up to you, whatever you are comfortable with.” After some additional discussion, the trial court added, “[It] is up to Mr. Parker. If he feels there is some conflict, I am not going to insist that he proceed at this time.” Porter and Parker remained in the courtroom, but only Porter spoke during the remainder of the resentencing hearing.

2. Analysis

a. Conflict of interest

{¶ 102} Jackson argues that Parker could not represent him during the resentencing proceedings due to a potential conflict of interest. In order to satisfy a Sixth Amendment claim of ineffective assistance of counsel, Jackson must demonstrate that an actual conflict of interest adversely affected his counsel’s actual performance. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); State v. Manross, 40 Ohio St.3d 180, 182, 532 N.E.2d 735 (1988). Jackson invokes Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), in arguing that Parker’s “potential conflict” disqualified him from representing Jackson during the resentencing proceedings.

{¶ 103} In Martinez at 9, the United States Supreme Court recognized a “narrow exception” to the rule established in Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), that defendants possess no federal constitutional right to the effective assistance of counsel in postconviction proceedings. The court in Martinez held:

Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

Martinez at 17.

{¶ 104} Martinez is directed toward federal habeas proceedings and is intended to address issues that arise in that context. Howell v. State, 109 So.3d 763, 774 (Fla.2013). Similarly, Jackson’s arguments regarding the alleged “conflict of interest” are primarily directed toward future federal proceedings and the possibility of raising ineffectiveness claims based on Martinez in that forum. See Howell at 773. But Jackson does not demonstrate that any actual conflict existed at the time of the resentencing hearing.

{¶ 105} Moreover, Jackson does not state with any particularity what adverse effect the claimed conflict had upon his counsel’s performance. He has not cited any specific claims that Parker failed to assert at his resentencing proceeding due to a conflict of interest. Therefore, we reject this aspect of Jackson’s argument.

b. Appointment of counsel

{¶ 106} At the time of Jackson’s resentencing, former Sup.R. 20(II)(A) required that at least two capitally certified trial attorneys “shall be appointed by the court to represent an indigent defendant” in capital cases. Former Sup.R. 20(II)(B) required that at least two capitally certified appellate attorneys “shall be appointed by the court to appeal cases where the trial court has imposed the death penalty on an indigent defendant.”

{¶ 107} The trial court did not appoint Porter or Parker as counsel for Jackson due to the court’s belief that Jackson’s resentencing was a continuation of the appellate proceedings that led to the remand. This belief was incorrect. Former Sup.R. 20 had separate requirements for the appointment of counsel during trial and appellate proceedings in capital cases. Moreover, when a case is remanded for resentencing, the trial court “must approach resentencing as an independent proceeding complete with all applicable procedures.” State v. Gray, 8th Dist. Cuyahoga No. 81474, 2003-Ohio-436, 2003 WL 194884, ¶ 12; State v. Allane, 10th Dist. Franklin No. 03AP-840, 2004-Ohio-3730, 2004 WL 1576407, ¶ 11. Accordingly, the trial court erred in concluding that Jackson was not entitled to the appointment of counsel for purposes of the resentencing proceedings.

{¶ 108} The state argues that the defense requests for appointment of counsel and a continuance were last-minute delaying tactics because the requests were not made until 13 days before resentencing. The state argues, therefore, that if the trial court erred, defense counsel invited it. Under the invited-error doctrine, “a party is not entitled to take advantage of an error that he himself invited or induced the court to make.” State ex rel. Kline v. Carroll, 96 Ohio St.3d 404, 2002-Ohio-4849, 775 N.E.2d 517, ¶ 27, citing Lester v. Leuck, 142 Ohio St. 91, 50 N.E.2d 145 (1943), paragraph one of the syllabus. The state’s reliance on invited error is misplaced, because Jackson was entitled to be represented by two appointed counsel.

c. Lack of prejudice

{¶ 109} The state argues that Jackson was not prejudiced, because Porter and Parker were capitally certified counsel, Parker never formally withdrew from representing Jackson prior to the resentencing hearing and was present at the hearing, and Jackson received appropriate representation up to and during the resentencing hearing. Porter and Parker had represented Jackson on numerous motions, appeals, and other matters related to these offenses. Porter had represented him for eight years, and Parker had represented him since April 2007. The matters in which they had jointly represented Jackson included filing the motion for a new trial or a new sentencing hearing, filing the second application requesting that Chief Justice Moyer disqualify Judge Stuard, filing a complaint for writs of mandamus and procedendo in this court, and filing memoranda opposing the state’s motion to set a date for Jackson’s resenten