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9th District: No new mitigation trial in Akron murder

TRACEY BLAIR
Legal News Reporter

Published: June 10, 2019

An Akron man who was sentenced to die for a woman’s rape and strangulation murder should not get a new mitigation trial, the 9th District Court of Appeals recently ruled.

A Summit County jury convicted Phillip Jones on all counts - two counts of rape and one count of aggravated murder with the death penalty specification that Susan Yates was murdered during the commission of rape.

Yates’ body was found by a jogger on April 23, 2007, in Mount Peace Cemetery. After hearing a media report about the murder, Jones told his wife, Delores Jones, that he had killed the woman. Delores told a friend, and the friend called police. Delores repeated her husband’s statements to a detective.

Jones later testified he accidentally killed the victim while engaging in rough consensual sex, according to Ohio Supreme Court records.

Phillip Jones appealed the trial court’s judgment denying his motion for leave to file a motion for a new mitigation trial on the basis of the U.S. Supreme Court’s decision in Hurst v. Florida, which declared the state of Florida’s capital sentencing scheme to be unconstitutional.

In his first assignment of error, Jones claimed the trial court failed to make a determination as to whether he was unavoidably prevented pursuant to Crim.R. 33(B) from filing his motion within 14 days after the verdict was rendered.

He also argued the trial court erred when it denied his motion for a new mitigation trial when Jones proved he was sentenced to death pursuant to a statutory scheme that violates the Sixth and 14th Amendments.

The appellate panel affirmed the trial court’s judgment on both assignments of error in a 2-1 decision.

In his motion for leave, Jones alleged he was unavoidably delayed from filing his motion within 14 days of the verdict because Hurst was decided nearly eight years after he was sentenced.

“In Hurst, the United States Supreme Court invalidated Florida’s capital sentencing statute because it limited the jury’s role in sentencing to an advisory recommendation and did ‘not require the jury to make the critical findings necessary to impose the death penalty,’ “ 9th District Judge Julie A. Schafer said in her opinion. “However, as cited by the trial court below, the Supreme Court of Ohio has expressly recognized that “Ohio’s capital-sentencing scheme is unlike the laws at issue in * * Hurst. In Ohio, a capital case does not proceed to the sentencing phase until after the fact finder has found a defendant guilty of one or more aggravating circumstances.” (State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581). Moreover, the Supreme Court of Ohio again rejected the argument that Ohio’s death penalty scheme was unconstitutional under Hurst when it considered the defendant’s appeal of the Third District decision cited by the trial court in its journal entry. (State v. Mason, 153 Ohio St.3d 476, 2018-Ohio-1462).

“Accordingly, assuming that the court denied the motion for leave on the basis that Jones did not present a meritorious basis for claiming unavoidable delay, we would not be able to say that the trial court abused its discretion. Likewise, if we assume the trial court only considered the merits of his proposed motion, we would also not be able to say that the trial court abused its discretion, as that denial would be dispositive of the unavoidable delay issue. Therefore, Jones’ assignments of error are overruled.”

Appellate Judge Thomas Teodosio concurred, while 9th District Judge Donna Carr dissented.

Judge Carr noted that Jones filed his motion for a new mitigation trial while Jones III - Jones’ case affirming the trial court’s denial of his claim for post-conviction relief based on ineffective assistance of counsel - was pending.

“This court has repeatedly held that when a trial court acts beyond the scope of its jurisdiction while an appeal is pending, its order is void,” Judge Carr wrote.

However, Judge Schafer argued Jones III did not involve a direct appeal and the present case did not involve a judgment on a motion for a new trial.

Judge Schafer added that a Crim.R. 33 motion for a new trial and a post-conviction petition are separate and distinct post-conviction remedies.

“Upon review, we do not find that the trial court’s consideration of Jones’ procedural motion for leave to file a motion for a new mitigation trial during the pendency of Jones III was inconsistent with this court’s ability to act in regard to the trial court’s judgment on the motion for post-conviction relief,” she stated.

The case is cited State v. Jones, 2019-Ohio-1870.


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