Is Ohio's death penalty scheme unconstitutional under Hurst v. Florida?

QUESTIONS PRESENTED In Hurst v. Florida, __ U.S. __, 186 8.Ct. 616, 193 L.Ed.2d 504 (2016), the Court overruled Spaziano v. Florida, and Hildwin v. Florida,' invalidated Florida’s capital punishment statute, and held all facts necessary to impose a death sentence must be based on a jury’s verdict, not a judge’s fact finding. Hurst, 136 S.Ct. at 624. Under Ohio’s capital punishment statute, “[a]ll the power to impose the punishment of death resides in the trial court which oversees the mitigation or penalty phase of the trial|]” and renders specific factual findings necessary to impose the death penalty.2 The Ohio Supreme Court — invoking Spaziano v. Florida — has repeatedly held that investing capital sentencing authority solely in the trial judge does not violate the Sixth or Eighth Amendments. Mr. Carter was sentenced to death under this judge-sentencing scheme where a jury’s death verdict is merely a recommendation. The judge alone makes findings essential to impose the death penalty and decides whether to sentence a defendant to life or death. After Hurst, Mr. Carter moved the trial court to grant a new mitigation trial in conformity with the constitutional requirements this Court established in Hurst. The trial court denied the motion, the Court of Appeals affirmed, and the Ohio Supreme Court declined jurisdiction. 1468 U.S. 447 (1984); 490 U.S. 638 (1989). 2 State v. Rogers, 28 Ohio St.3d 427, 429, 504 N.E.2d 52, 55 (1986). i Because Hurst explicitly overruled Spaziano, and held that all facts necessary to impose a death sentence must be found in accordance with the right to trial by jury, the following question is presented: Is Ohio’s death penalty scheme unconstitutional under Hurst v. Florida? ii