White was convicted and sentenced to death for a crime that occurred in January 1996. The U.S. 6th Circuit Court of Appeals found sentencing phase errors, reversed his sentence and remanded for re-sentencing. On remand to the state court for re-sentencing, the issue was raised as to whether White could be re-sentenced to death under the current statute or whether the court could only apply the re-sentencing options provided by statute at the time of White’s 1996 crime, under which a person could not be sentenced to death again at re-sentencing.

White's counsel filed a motion in the trial court to prohibit re-sentencing of death on the grounds that it violates the retroactivity clause of the Ohio Constitution. The trial court agreed. The state appealed, and the appeals court reversed. White appealed, and the Ohio Supreme Court accepted jurisdiction.

Legal Theory

At the time of White's offense, he could not be re-sentenced to death. Under the current statute, he can. This constitutes a retroactive increase in punishment in violation of the Ex Post Facto Clause of the United States Constitution, it imposes new and additional burdens, and it takes away or impairs a vested right in violation of the Retroactivity Clause of the Ohio Constitution.

Status Update

The Ohio Supreme Court accepted jurisdiction on Dec. 2, 2009. White’s merit brief and OACDL’s amicus in support were filed Feb. 16, and our amicus in support was filed Feb. 17, 2010. The Ohio Attorney General filed an amicus in support of the state appellee on March 11, 2010. The state appellee’s merit brief was filed March 17, 2010, as was an amicus from the Franklin County Prosecutor. On March 21, 2011, the State filed a motion asking Justice Pfeiffer to recuse himself because of his stated position on the death penalty. By letter dated March 31, Justice Pfeiffer declined to recuse himself, stating the motion was without merit. Oral argument in the Ohio Supreme Court was heard on November 16, 2011. On June 14, 2012 the Court affirmed the appeals court’s decision. White filed a motion for reconsideration on June 22, 2012 which the State of Ohio responded to with a memo opposing motion for reconsideration on June 29, 2012. The Court denied White’s motion for reconsideration on September 26, 2012. On December 21, 2012 White filed a petition for writ of certiorari with the United States Supreme Court. The petition was denied on March 4, 2013.

Date filed

February 17, 2010