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

QUESTION PRESENTED In Hurst v. Florida, _ U.S. _, 1386 S. Ct. 616 (2016), this Court: (a) overruled Spaziano v. Florida, 468 U.S. 460 (1984) and Hildwin v. Florida, 490 U.S. 638 (1989), (b) invalidated Florida’s capital punishment statute; and (c) held that all facts necessary to impose a sentence of death 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. State v. Rogers, 28 Ohio St.3d 427, 429, 505 N.E.2d 52 (Ohio 1986). The Supreme Court of Ohio, citing Spaziano, has repeatedly held that Ohio’s death penalty statutory scheme procedure does not violate the Sixth or Eighth Amendments. Charles Lorraine was sentenced under this judge-sentencing scheme. The jury’s death verdict was merely a recommendation. The judge alone made the necessary findings to sentence Lorraine to death. Lorraine moved the trial court to vacate his death sentence in accordance with Hurst. The state trial court denied his motion, the state court of appeals affirmed that decision, albeit for different reasoning, and the Supreme Court of Ohio declined to exercise its discretionary jurisdiction to review the court of appeals’ decision. 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