State v. Lott

2026 Ohio 555

• Court: Ohio Court of Appeals
• Decided: February 19, 2026
• Docket: 114992
• Status: Published

Opinion

[Cite as State v. Lott, 2026-Ohio-555.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 114992 v. :

GREGORY LOTT, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED RELEASED AND JOURNALIZED: February 19, 2026

Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-86-211002-ZA

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Anthony T. Miranda, Assistant Prosecuting Attorney, for appellee.

Federal Defender Services of Eastern Tennessee, Inc., and Stephen A. Ferrell, Assistant Federal Defender, for appellant.

KATHLEEN ANN KEOUGH, J.:

In 1986, Gregory Lott was convicted and sentenced to death for the

murder of John McGrath. In 2002, in Atkins v. Virginia, 536 U.S. 304 (2002), the

United State’s Supreme Court held that imposing capital punishment upon individuals who are intellectually disabled violates the Eighth Amendment to the

U.S. Constitution’s protections from cruel and unusual punishment. As a result of

Atkins, Lott filed a successive petition for postconviction relief premised on the Ohio

Supreme Court’s decision in State v. Lott, 2002-Ohio-6625, that adopted the Atkins

framework. Under Lott, an individual may be classified as intellectually disabled if

they demonstrate “(1) significantly subaverage intellectual function, (2) significant

limitations in two or more adaptive skills, such as communication, self-care, and

self-direction, and (3) onset before the age of 18.” Id. at ¶ 12. Lott also established

a rebuttable presumption that an individual is not intellectually disabled if the

individual’s IQ is over 70. Id.

Lott’s petition was denied, and an appeal was filed but ultimately

dismissed. Then, in 2019, the Ohio Supreme Court overruled Lott because the

medical diagnostic standards for identifying an intellectual disability for purposes

of the death penalty had been updated since Atkins. See State v. Ford, 2019-Ohio-

4539 (applying Moore v. Texas, 581 U.S. 1 (2017), and Hall v. Florida, 572 U.S. 701

(2014)). Under the new standard, a court must consider:

(1) intellectual-functioning deficits (indicated by an IQ score approximately two standard deviations below the mean—i.e., a score of roughly 70 or lower when adjusted for the standard error of measurement, (2) significant adaptive deficits in any of the three adaptive-skill sets (conceptual, social, and practical), and (3) the onset of these deficits while the defendant was a minor.

Ford at ¶ 100. There is no dispute that based on these diagnostic standards, Lott is

ineligible for the death penalty. As a result of Ford, Lott filed a Civ.R. 60(B) motion for relief from

judgment from the trial court’s decision that denied his successive petition for

postconviction relief following Lott. Under Civ.R. 60(B)(4), a litigant may seek relief

from judgment if the “prior judgment upon which it is based has been reversed or

otherwise vacated.”

The trial court disagreed and denied Lott’s Civ.R. 60(B) application,

finding that Lott was circumventing the limitations on successive petitions that are

governed by R.C. 2953.23 and finding that this section specifically provides an

exception to the prohibition on filing successive petitions when there is a change in

the United States Supreme Court’s law as opposed to the Ohio Supreme Court. R.C.

2953.23(A)(1)(a) carves out an exception for postconviction-relief petitions if “the

United States Supreme Court recognized a new federal or state right that applies

retroactively to persons in the petitioner’s situation, and the petition asserts a claim

based on that right.” Ford is an Ohio Supreme Court decision and therefore does

not invoke the exception under R.C. 2953.23(A)(1)(a).

Whether this is a proper use of Civ.R. 60(B)(4) is the issue that is

before us as an assignment of error. Lott argues that because the Ohio Supreme

Court’s decision in Ford overruled Lott, subsection (B)(4) could be invoked for the

relief that Lott seeks.

As of the writing of this opinion, this identical issue is currently

pending before the Ohio Supreme Court. State v. Hill, 11/26/2024 Case

Announcements, 2024-Ohio-5529 (Ohio Supreme Court No. 2024-0352, appeal accepted for review). In Hill, the Eleventh District found that Civ.R. 60(B)(4) was a

proper vehicle to challenge a capital sentence instead of the postconviction-relief

statutes. State v. Hill, 2023-Ohio-4486 (11th Dist.). Lott asks that we follow Hill;

the State argues that Hill will be reversed by the Ohio Supreme Court. We elect to

follow Hill, finding that Lott’s Civ.R. 60(B)(4) motion was procedurally proper.

First, in State v. Parker, 2019-Ohio-3848, the Ohio Supreme Court

held that Civ.R. 60(B)(5), the catchall provision of Civ.R. 60(B), cannot be used to

circumvent the successive petition limitations under R.C. 2953.23(A)(1). Here, we

find that Parker is inapplicable. Parker, though silent on the applicability of Civ.R.

60(B)(4), held that “a petition for postconviction relief is ‘the exclusive remedy by

which a person may bring a collateral challenge to the validity of a conviction or

sentence in a criminal case.’” Id. at ¶ 33, quoting State v. Schlee, 2008-Ohio-545,

¶ 12, and R.C. 2953.21(K). We do not find that Lott’s Civ.R. 60(B) filing constitutes

a “successive postconviction petition” as contemplated in R.C. 2953.23. Lott seeks

relief from the judgment denying postconviction relief; he does not collaterally

attack the validity of the conviction or sentence. Parker held that Civ.R. 60(B)(5),

the catchall provision, may not be used to skirt the mandates of R.C. 2953.23.

In Hill, the Eleventh District explained that the Civ.R. 60(B) motion

“is a motion seeking to revisit the judgment entered in his postconviction-relief

petition rather than directly seeking to vacate the judgment of conviction.” We agree

and find that Lott’s motion was not a successive postconviction-relief petition. Since

Lott is seeking relief from a prior postconviction-relief judgment and not collaterally challenging his conviction and sentence, we find that Parker is not controlling in the

instant matter.

Lott concedes that he attempted to appeal the most recent denial of

his postconviction-relief petition but abandoned the appeal. The dissent invokes the

general rule that Civ.R. 60(B) may not be used a substitute for appeal and other res

judicata concerns. Pilkington N. Am., Inc. v. Toledo Edison Co., 2015-Ohio-4797, ¶

34, citing Bank of Am., N.A. v. Kuchta, 2014-Ohio-4275, ¶ 16.

Here, however, Lott is plainly not using Civ.R. 60(B) as a substitute

for an appeal; at the time Lott abandoned the appeal denying his postconviction-

relief petition, the test in Ford had not yet been decided and could not have been the

subject of Lott’s intended appeal. Because Lott could not have challenged his

sentence pursuant to Ford at the time of his intended appeal, res judicata should not

apply to Lott’s detriment.

It has long been recognized that “Civ.R. 60(B) exists to resolve

injustices that are so great that they demand a departure from the strict constraints

of res judicata.” Kuchta at ¶ 16, citing Hazel-Atlas Glass Co. v. Hartford-Empire

Co., 322 U.S. 238, 244 (1944). It is difficult to imagine a greater injustice than

allowing a death sentence to stand when even the State has conceded that Lott is no

longer eligible for a death sentence. Accordingly, Lott’s Civ.R. 60(B) motion is not

barred as res judicata where the underlying reason for the motion did not exist at

the time his appeal from the abandoned postconviction-relief petition was filed. To clarify, we are not holding that any reason not delineated in R.C.

2953.23 can be challenged via a Civ.R. 60(B) motion. We are narrowly holding that

when R.C. 2953.23 is inapplicable, Civ.R. 60(B)(4) may be utilized in capital cases

— cases where the offender is sentenced to the death penalty — where the State has

conceded that the offender is now ineligible for the death penalty. This is the only

just result in light of the State’s stipulation that Lott is intellectually disabled for

purposes of the death penalty. Civ.R. 60(B) was implemented for extraordinary

matters, and we find that the circumstances herein are the “extraordinary matters”

contemplated by Civ.R. 60(B). Accordingly, we find that a Civ.R. 60(B)(4) motion

was a proper vehicle for Lott to challenge the denial of his previous postconviction-

relief petition and we furthermore grant such relief based on the State’s stipulation

that Lott is intellectually disabled under the current letter of the law.

Judgment reversed. This matter is remanded to the trial court with

instructions to enter judgment granting Lott’s Civ.R. 60(B) motion.

It is ordered that appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

__________________________ KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, P.J., CONCURS; SEAN C. GALLAGHER, J., DISSENTS (WITH SEPARATE OPINION)

SEAN C. GALLAGHER, J., DISSENTING:

Gregory Lott appeals the denial of his Civ.R. 60(B) motion to vacate

the denial of a petition for postconviction relief, a final decision after Lott abandoned

his then timely perfected appeal. This cases hinges on a basic question amplified by

Ohio’s broken capital-sentence system: Does Ohio have an exception to the general

rule that criminal defendants cannot collaterally challenge their convictions based

on changes in the substantive law outside of the postconviction-relief statute?1 The

trial court answered that question in the negative.

The majority claims that the only “just” result in this case is to create

an exception to R.C. 2953.23 to permit Lott a mechanism that is not available to any

1 This is not mere commentary. According to the Attorney General of Ohio, “Ohio’s

system of capital punishment is a huge, ponderous machine that burns enormous amounts of effort, time and money, all to no purpose. It is a system that fails to deliver on the promise of justice for victims and their families, while wasting millions of taxpayer dollars.” Executive Summary, p.2, 2024 Capital Crimes State and Federal Cases, available at https://www.OhioAttorneyGeneral.gov/2024CapitalCrimesReport (accessed Nov. 18, 2025) [perma.cc/2VCZ-25TA]. An inmate on death row “is more likely to die of suicide or natural causes than as a result of” enforcing the sanction imposed for the crime. Id. The length of time between imposition of the sentence and the continued inability to carry that sentence into execution is creating the procedural problems currently before this panel. Change is needed, but it cannot come from an intermediate appellate court. other defendant under Ohio law. Because no intermediate court should declare

policy for the State of Ohio, I respectfully dissent.

Lott was convicted and sentenced to death in 1986 for murdering

John McGrath. Lott has spent the last four decades successfully postponing his

execution for various reasons that need not be elaborated upon. It is undisputed

that at the time of his conviction, the death penalty was properly imposed under

Ohio’s then valid law.

In 2002, 16 years after Lott’s original conviction, the United States

Supreme Court held that the execution of an intellectually disabled individual

violates the Eighth Amendment’s ban against cruel and unusual punishments.

Atkins v. Virginia, 536 U.S. 304 (2002). Shortly thereafter, Lott filed a successive

petition for postconviction relief under R.C. 2953.21, et seq., based on the Ohio

Supreme Court’s application of the Atkins standard in State v. Lott, 2002-Ohio-

6625.2 The Lott standard required a showing of “(1) significantly subaverage

intellectual functioning, (2) significant limitations in two or more adaptive skills,

such as communication, self-care, and self-direction, and (3) onset before the age of

18” and also created a rebuttable presumption of not being disabled if the offender’s

IQ was over 70. Id. at ¶ 12. The successive petition was denied, and although

appealed, Lott failed to pursue the appeal and it was dismissed for failure to file the

record. That decision was never challenged by Lott. The State contends that the

2 Lott previously filed a petition for postconviction relief that was denied in 1993.

State v. Lott, 1994 Ohio App. LEXIS 4965 (8th Dist. Nov. 3, 1994). appeal was abandoned because Lott failed to produce any experts at the time able to

declare him intellectually disabled based on the Lott test.

In 2019, the Ohio Supreme Court overruled Lott based on new United

States Supreme Court decisions applying “updated medical diagnostic standards.”

See State v. Ford, 2019-Ohio-4539 (applying Moore v. Texas, 581 U.S. 1 (2017), and

Hall v. Florida, 572 U.S. 701 (2014)). The new test established by Ford is as follows:

For purposes of eligibility for the death penalty, a court determining whether a defendant is intellectually disabled must consider three core elements: (1) intellectual-functioning deficits (indicated by an IQ score approximately two standard deviations below the mean—i.e., a score of roughly 70 or lower when adjusted for the standard error of measurement, (2) significant adaptive deficits in any of the three adaptive-skill sets (conceptual, social, and practical), and (3) the onset of these deficits while the defendant was a minor.

Id. at ¶ 100. As the record currently stands, the State concedes that Lott would meet

the new standard and would then be ineligible for the death penalty should it have

been imposed today. That is not the issue in this appeal.

The problem Lott faces is the lack of any procedural mechanism he

can validly invoke to reopen his 40-year-old conviction. This problem is not new in

Ohio, but the concern is elevated in light of the nature of this case and Ohio’s

inability to carry out the death-penalty sentence. In any given 40-year period,

substantive law undoubtedly changes.

The Ohio Supreme Court issued a plurality opinion that is instructive.

In State v. Parker, 2019-Ohio-3848, the defendant was sentenced to an eight-year,

mandatory term of imprisonment based on a sentencing enhancement stemming from his adjudication of juvenile delinquency predating the felony conviction. Id. at

¶ 4. Parker attempted to challenge the constitutionality of that enhancement to no

avail. Id. at ¶ 5.

The Ohio Supreme Court declined to review Parker’s case in 2013.

In 2016, in a different case with the same factual and procedural background, State

v. Hand, 2016-Ohio-5504, the Ohio Supreme Court held that felony enhancements

based on juvenile delinquency adjudications were “fundamentally unfair.” Parker

at ¶ 7. Following that decision, Parker attempted to vacate his conviction through a

successive petition for postconviction relief applying that new decision, which was

rejected based on the letter of R.C. 2953.23(A)(1). In order to file a successive

petition for postconviction relief, the offender must, in pertinent part, demonstrate

a decision by the United States Supreme Court recognizing a new constitutional

right. Id. A newly decided state supreme court decision does not satisfy that

requirement. Id. at ¶ 22. Parker’s conviction was deemed final based on the trial

court’s lack of jurisdiction to vacate a final sentence, with the deciding vote

concurring in judgment only with the plurality decision. See generally id.

Importantly, the plurality rejected an argument that Civ.R. 60(B)(5)

(the catchall provision of the rule for relief from judgments) could be used to

circumvent the limitations on successive petitions for postconviction relief under

R.C. 2953.23(A)(1). According to Parker, “a petition for postconviction relief is ‘the

exclusive remedy by which a person may bring a collateral challenge to the validity

of a conviction or sentence in a criminal case.’” Id. at ¶ 33, quoting State v. Schlee, 2008-Ohio-545, ¶ 12, and R.C. 2953.21(K). The plurality’s rejection of Civ.R. 60(B)

as an alternative to a successive petition for postconviction relief weighs on the

outcome in this case.

With this background in mind, Lott filed a motion for relief under

Civ.R. 60(B)(4) from the trial court’s early 2000 decision denying his successive

petition for postconviction relief filed after the Atkins decision. According to Lott,

he is not attempting to use Civ.R. 60(B)(4) to reopen his conviction, but to reopen

the civil postconviction proceeding he initiated in 2003, which in turn is the

mechanism to challenge his otherwise final conviction.

Under Civ.R. 60(B)(4), a litigant may seek relief from a final

judgment if the “prior judgment upon which it is based has been reversed or

otherwise vacated.” According to Lott, the denial of his successive petition for

postconviction relief in the early 2000s was based on the Lott decision, which was

overruled by Ford. The trial court denied Lott’s motion, determining that Lott was

in effect attempting to circumvent the limitations on successive petitions for

postconviction relief under R.C. 2953.23, limitations that Lott concedes preclude

him from filing a successive petition because the decision upon which his argument

relies is an Ohio Supreme Court decision. See Parker.

Lott appealed that decision, claiming that

[t]he trial court erred when it mischaracterized Appellant’s Ohio R. Civ. P. 60(B) motion as a successive post-conviction petition because that motion did not present a new claim for relief, but rather asked the trial court to reconsider its earlier decision that Appellant is not intellectually disabled in light of the Ohio Supreme Court’s decision to overrule the standards for assessing intellectual disability announced in Appellant’s own case.

That question is currently pending before the Ohio Supreme Court. State v. Hill,

2024-Ohio-5529. The appellate court in Hill faced an identical issue of whether the

Ohio Supreme Court’s change in the legal test for intellectually disabled offenders

awaiting the sentence of death may be challenged through a Civ.R. 60(B) motion

instead of the postconviction-relief statutes. The Eleventh District answered that

question in the affirmative. State v. Hill, 2023-Ohio-4486 (11th Dist.).

Lott’s sole argument in this appeal is based on Civ.R. 57(B) and the

notion that courts may look to civil rules when no applicable Rule of Criminal

Procedure exists. He exclusively relies on the Eleventh District’s Hill decision. The

overarching problem with Lott’s argument is that the legislature has created

statutory procedure for vacating final convictions, and part of that procedure limits

when and how a successive petition for postconviction relief can be filed. Under R.C.

2956.23(A)(1), an untimely successive petition can be filed based on new evidence

or when “the United States Supreme Court recognized a new federal or state right

that applies retroactively to persons in the petitioner’s situation.” Civ.R. 60(B)

cannot supplant what the legislature prohibits.

Lott does not dispute that in order to file a successive petition for

postconviction relief, the petitioner must meet the requirements of R.C.

2953.23(A)(1). He presents no explanation for why he did not pursue a successive petition after Moore, 581 U.S. 1 (2017), and Hall, 572 U.S. 701 (2014), were released

by the Supreme Court.

According to Lott, his case differs from those offenders who have

never filed a petition for postconviction relief, who must demonstrate an exception

to the time limits under R.C. 2953.23(A)(1), because he is seeking relief from his

successive petition and, therefore, R.C. 2953.23(A)(1) does not apply. In other

words, Lott would read the successive petition requirements out of the statute and

have those only apply to an untimely petition. The statute cannot be read in such a

fashion. It provides two avenues to challenge a conviction after the original deadline

expires: either through an untimely filing of the first petition, or through a

successive petition, both of which require adherence to the statutory limitations.

A successive petition is a petition filed after a previous petition was

denied. Because Lott has twice availed himself of the postconviction statute, in

order to attempt to vacate his conviction based on a new development in the law, he

must meet the requirements of R.C. 2953.23(A)(1), as would any other convicted

felon. Should relief be offered in his favor in this particular case, this court would

have to create an exception applicable to any offender seeking to file a successive

petition who does not meet the statutory requirements — enabling them to advance

the same claims under Civ.R. 60(B) when not permitted to do so under R.C. 2953.23.

We decline this approach based on binding authority stating that R.C. 2953.21, et

seq., is the exclusive mechanism to vacate a final conviction. Schlee, 2008-Ohio- 545, at ¶ 12. In order to file a successive petition for postconviction relief, the

offender must establish the exceptions set forth in R.C. 2953.23(A)(1).

In Parker, the plurality rejected the notion that Civ.R. 60(B)(5) could

be used to circumvent the successive petition requirements. That same reasoning

applies to Civ.R. 60(B)(4). Permitting an offender to successfully file any

Civ.R. 60(B) motion to vacate the final conviction when a successive petition for

postconviction relief is not an available mechanism, because the statutory

requirements are not met, would simply render the statutory requirements a nullity.

Any offender wishing to file a successive petition, necessarily meaning a previous

petition was denied, would simply file a Civ.R. 60(B) motion to vacate the previous

decision without regard to the successive petition requirements.

It is wholly within the legislative prerogative to create exceptions to

R.C. 2953.23(A)(1) should those be necessary in death-penalty cases. Absent those

statutory exceptions to the filing of successive petitions, it is not for an intermediate

appellate court to create new substantive rights to challenge decades-old convictions

when the legislature has foreclosed that possibility.

It must also be acknowledged that the procedural history of this

particular case makes it a poor candidate to expand the law in Lott’s favor regardless

of the above conclusion. Even if we considered Lott’s argument regarding the

applicability of Civ.R. 60(B), the civil standard precludes his obtaining relief. Lott

concedes that he voluntarily abandoned his appeal of the early 2003 decision

denying his then successive petition for postconviction relief. Under the general civil standard for relief from a final judgment, he cannot now avail himself of Civ.R. 60.

It has long been held that Civ.R. 60(B) cannot be used as a substitute for appeal.

Pilkington N. Am., Inc. v. Toledo Edison Co., 2015-Ohio-4797, ¶ 34, citing Bank of

Am., N.A. v. Kuchta, 2014-Ohio-4275, ¶ 16, and Harris v. Anderson, 2006-Ohio-

1934, ¶ 8-9. Failing to appeal the trial court’s decision precludes the losing party

from attempting to vacate that decision through Civ.R. 60(B). MTGLQ Investors,

L.P. v. McKind, 2024-Ohio-5848, ¶ 31 (6th Dist.), citing Kuchta, at ¶ 16. Even if we

were inclined to accept Lott’s argument and follow Hill, the procedural posture of

this particular case would require an arbitrary exception (applying Civ.R. 60(B)

contrary to the R.C. 2953.23 requirements for successive petitions for

postconviction relief) built on a second exception (using Civ.R. 60(B) as a substitute

for an abandoned appeal) to achieve the desired result. That type of result-oriented

relief is not for an intermediate appellate court to provide.

I acknowledge the harshness of this result being proposed, but Lott is

asking for a general rule permitting the use of Civ.R. 60(B) in situations in which a

convicted offender cannot avail themselves of the exception to the prohibition

against successive petitions for postconviction relief established under R.C. 2953.23.

The legislature made a policy decision establishing the limits of successive petitions

for postconviction relief. Those policy decisions should not be overridden by

judicially created exceptions established by an appellate court.

For those reasons, I respectfully dissent and would affirm the decision

of the trial court and, thereby, create a conflict with the Eleventh District’s decision.