Suspect wants judge to void part of law on death penalty

10/1/2009

Attorneys for accused shooter Anthony Belton - who faces the death penalty if convicted of the 2008 murder of a BP convenience-store employee - have petitioned a Lucas County Common Pleas judge to find portions of the state's death penalty law unconstitutional.

Specifically, attorney Pete Rost argued yesterday that Mr. Belton should be allowed to enter a plea in the case and still be allowed to have a jury determine his sentence. State law mandates that a three-judge panel determine whether the death penalty is imposed if a plea is entered in the case.

"We want to explore the possibility of taking responsibility for all or part of the charges and still preserve the right to present mitigating factors to a jury," Mr. Rost said after the hearing.

Mr. Belton, 23, of 934 Cuthbert Rd. was indicted Aug. 28, 2008, on one count of aggravated murder and two counts of aggravated robbery. Included in the murder charge are two specifications making him eligible for the death penalty.

Mr. Belton is accused of shooting Matthew Dugan, 34, once in the back of the head during a robbery. According to police, he entered the convenience store about 7 a.m. Aug. 13, 2008, approached the counter with a drink, then pulled a gun, and demanded money.

He allegedly shot Mr. Dugan after the clerk turned around in response to an order to retrieve telephone cards from behind the counter.

A Feb. 22 trial before Judge Ruth Ann Franks has been scheduled.

Dean Mandros, chief of the prosecutor's office criminal division, argued against the defense's stance, saying other courts have determined that a jury must hear facts that would somehow increase a possible sentence in a criminal trial. In Mr. Belton's case, he said, that law does not apply because the ultimate penalty he faces is death, and there is no way to make that penalty more severe.

"In Ohio, that death eligibility circumstance, the proof of the aggravating factor as has to be established beyond a reasonable doubt, is combined with the guilt phase," he argued. "So whether a jury decides that or whether a defendant pleads to the underlying felony and the attached specifications, he is now exposing himself to the maximum penalty."

In Ohio, if a defendant is found guilty of an aggravated murder with death penalty specifications, a second phase of the trial ensues. During the sentencing phase, the defense is able to present mitigating factors. If the circumstances of the crime - specifically, the circumstances that make it a death penalty case - outweigh those factors then a defendant may be sentenced to death.

Mr. Rost disagreed with the argument that there are no facts to be determined after guilt is established. Instead, he said defendants eligible for the death penalty do not automatically receive death as a sentence.

"The defendant cannot be given the death penalty until there is a finding," Mr. Rost said. Those findings, he said, are whether mitigating factors exist and whether those factors outweigh the aggravating circumstances of the crime beyond a reasonable doubt. "Until that is found, the defendant is not eligible for the death penalty," he added.

The attorneys were given the opportunity to file additional written arguments with the court before the judge makes a decision.

Judge Franks set a

Nov. 5 pretrial date where additional oral arguments could be presented.

Contact Erica Blake at:

eblake@theblade.com

or 419-213-2134.