State v. Moore (Slip Opinion) ( 2016 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Moore, Slip Opinion No. 2016-Ohio-8288.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2016-OHIO-8288THE STATE OF OHIO, APPELLEE, v. MOORE, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Moore, Slip Opinion No. 2016-Ohio-8288.]
Criminal law—Eighth Amendment prohibition against cruel and unusual
punishments—United States Supreme Court’s holding in Graham v. Florida
prohibiting imposition of sentences of life imprisonment without parole on
juvenile nonhomicide offenders also prohibits imposition on juvenile
nonhomicide offender of term-of-years prison sentence that exceeds
offender’s life expectancy—Eighth Amendment’s prohibition of life
imprisonment without parole or its practical equivalent for juvenile
offenders is not limited to juveniles who commit a single nonhomicide
offense—Court of appeals abused discretion in denying appellant’s
application for reconsideration—Court of appeals’ judgment reversed and
cause remanded.
(No. 2014-0120—Submitted February 4, 2015—Decided December 22, 2016.)
APPEAL from the Court of Appeals for Mahoning County,
SUPREME COURT OF OHIO
No. 08 MA 20, 2013-Ohio-5868.
_________________
PFEIFER, J.
{¶ 1} We decide in this case whether the United States Supreme Court’s
holding in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825(2010), prohibiting the imposition of sentences of life imprisonment without parole
on juvenile nonhomicide offenders also prohibits the imposition of a term-of-years
prison sentence that exceeds the offender’s life expectancy on a juvenile
nonhomicide offender. We hold that pursuant to Graham, a term-of-years prison
sentence that exceeds a defendant’s life expectancy violates the Eighth Amendment
to the United States Constitution when it is imposed on a juvenile nonhomicide
offender.
FACTUAL AND PROCEDURAL BACKGROUND
Moore’s Crimes
{¶ 2} The facts of this case do not engender a sense of sympathy for
appellant, Brandon Moore. Moore embarked on a criminal rampage of escalating
depravity on the evening of August 21, 2001, in Youngstown. He was then 15
years old. Early that evening, Moore robbed at gunpoint Jason Cosa and Christine
Hammond in the driveway of Cosa’s home. Cosa and Hammond saw Moore get
into an awaiting dark, older automobile as he fled the scene.
{¶ 3} Later that night, at around 10:20, M.K., a 21-year-old student at
Youngstown State University, arrived for her night-shift job at a group home for
mentally handicapped women. While removing some things from the trunk of her
car, she noticed a black car driving up the street and stopping a few houses away.
Moore, wearing a mask, emerged from the vehicle and started running toward her.
When he arrived at her vehicle, he pressed a gun against her and instructed her to
give him all her money and belongings. When a porch light came on at the group
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home, Moore ordered M.K. to get into the passenger seat of her car. Moore then
got into the driver’s seat, ordered M.K. to start the car, and drove away with her.
{¶ 4} As they were driving, he ordered her to give him her jewelry. After
they drove a short distance, Moore stopped the car briefly behind the black car.
Chaz Bunch entered the victim’s car through the rear passenger door. Bunch put a
gun to her head and demanded her money.
{¶ 5} Moore continued driving, following the black car, which was being
driven by Andre Bundy. As Moore drove, he inserted his fingers into M.K.’s
vagina. M.K. pleaded for her life. At one point, Moore drove close enough to the
black car that he almost hit it, jerking to a stop; at that point, the cars were so close
that M.K. could make out the black car’s license plate. She memorized the number.
{¶ 6} Eventually, Moore pulled ahead of the black car and drove down a
dead-end street. The black car followed. Both cars parked near a gravel lot, and
Bunch ordered M.K. out of the car. Once outside the car, Moore and Bunch
assaulted M.K., grabbing her by the hair and forcing their penises into her mouth;
one would orally rape her while the other forced her head down. This was repeated
two or three times, at gunpoint.
{¶ 7} Moore and Bunch then directed M.K. to the trunk of her car. At this
point, another man, Jamar Callier, exited the black car and went through M.K.’s
belongings in the trunk. M.K. was told to pull her pants down and turn around.
M.K. resisted, and in an attempt to avoid any further violence, told the attackers she
was pregnant (she was not, in fact, pregnant). But they showed no mercy; Moore
and Bunch pushed her against the car, and at least one of them anally raped her.
{¶ 8} After the anal rape, Bunch threw M.K. to the ground, and he and
Moore proceeded to vaginally and orally rape her. While one raped her vaginally,
the other would force his penis into her mouth, and they would then switch places.
Both were armed during the rapes.
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{¶ 9} The attack finally ended when Callier pushed Bunch off M.K. Bunch
said that he wanted to kill M.K., but Callier would not let him, telling Bunch that
he could not kill a pregnant woman. Moore put his gun into M.K.’s mouth and told
her, “Since you were so good, I won’t kill you.” Moore warned her that they knew
who she was; he threatened to harm her and her family if she told anyone what had
happened.
{¶ 10} Hysterical, M.K. got back into her car and drove immediately to the
home of a relative of her boyfriend, where she had been attending a cookout before
leaving to go to work. She arrived back at the party, got out of her car, and ran
through the yard, screaming for help. When people came to her aid, she
immediately yelled out the license-plate number she had memorized. Based on the
license-plate number, police were eventually able to arrest all four people involved
in the attack on M.K.
{¶ 11} In her testimony at trial, M.K. described the effect of the attack on
her life: “[T]hey killed a part of me. They killed a part of my [soul] that I can never
get back.”
Moore’s Convictions
{¶ 12} After Moore was taken into custody, juvenile proceedings were
initiated against him. The case was transferred to the General Division of the
Mahoning County Court of Common Pleas; a 12-count complaint with 11 firearm
specifications was filed against Moore on May 16, 2002, for the crimes committed
against Jason Cosa, Christine Hammond, and M.K. The counts included three
counts of aggravated robbery in violation of R.C. 2911.01(A)(1), three counts of
rape in violation of R.C. 2907.02(A)(2), three counts of complicity to commit rape
in violation of R.C. 2923.03(A)(2) and 2907.02(A)(2), one count of kidnapping in
violation of R.C. 2905.01(A)(4), one count of conspiracy to commit aggravated
robbery in violation of R.C. 2923.01(A)(1) and 2911.01(A)(1), and one count of
aggravated menacing in violation of R.C. 2903.21(A).
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{¶ 13} Moore, Bunch, and Bundy were tried together. The trial began on
September 23, 2002. On October 2, 2002, the jury found Moore guilty of all 12
counts and all the specifications. At the October 23, 2002 sentencing hearing, the
trial court concluded that Moore “[could not] be rehabilitated, that it would be a
waste of time and money and common sense to even give it a try.” The court
announced to Moore, “I want to make sure you never get out of the penitentiary,
and I’m going to make sure that you never get out of the penitentiary.” It sentenced
Moore to the maximum prison term for each count, to be served consecutively,
except for the menacing charge, which was to be served concurrently with the other
sentences. The court also sentenced Moore to a prison term for each of the 11
firearm specifications, also to be served consecutively. The sentence totaled 141
years in prison.
Moore’s Appeals
{¶ 14} Moore’s appellate history is lengthy and knotty. We untangle it
enough to establish the relevant through-line for purposes of the present appeal
from the court of appeals’ denial of Moore’s application for reconsideration in his
third direct appeal.
{¶ 15} In Moore’s first appeal, State v. Moore, 161 Ohio App.3d 778, 2005-
Ohio-3311, 832 N.E.2d 85 (7th Dist.) (“Moore I”), the appellate court vacated
Moore’s conviction for conspiracy to commit aggravated robbery as well as the
accompanying firearm specification. Id. at ¶ 23. As for the other ten firearm
specifications, the appellate court instructed the trial court to impose at resentencing
a total of four separate terms: one for the specification attached to the charge for
the aggravated robbery of Cosa and Hammond and three for the specifications
attached to the charges for the aggravated robbery, rape, and kidnapping of M.K.
Id. at ¶ 55.
{¶ 16} On September 7, 2005, the trial court, on remand, resentenced Moore
according to the appellate court’s instruction. The new sentence totaled 112 years.
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Moore appealed again, and in State v. Moore, 7th Dist. Mahoning No. 05 MA 178,
2007-Ohio-7215 (“Moore II”), the appellate court vacated the entire sentence and
remanded for resentencing because Moore’s previous sentence had involved
judicial factfinding of the kind declared unconstitutional by this court in State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.
{¶ 17} On February 5, 2008, the trial court resentenced Moore to the
aggregate 112-year prison term. The judge told Moore at the sentencing hearing,
“[I]t is the intention of this court that you should never be released from the
penitentiary.”
{¶ 18} Moore’s appeal from that sentence is the root of the present appeal.
Moore appealed his resentencing, but his court-appointed counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967), seeking to withdraw from the case; Anders “permit[s] an attorney who, after
conscientious examination of the record, concludes that a criminal appeal is wholly
frivolous to so advise the court and request permission to withdraw, provided that
his request is accompanied with a brief identifying anything in the record that could
arguably support the client’s appeal,” Disciplinary Counsel v. Milhoan, 142 Ohio
St.3d 230, 2014-Ohio-5459, 29 N.E.3d 898, ¶ 8. Moore’s counsel was unable to
identify any issue that could arguably support an appeal, stating that he found “this
third appeal to be frivolous in the legal sense and without merit,” and the court
granted his motion to withdraw. State v. Moore, 7th Dist. Mahoning No. 08 MA
20, 2009-Ohio-1505 (“Moore III”). The court went on to consider the assignment
of error that Moore had raised in his pro se brief—that his resentencing pursuant to
Foster violated his due-process rights—and reviewed the entire record, concluded
that Moore’s appeal was meritless, and affirmed the trial court’s judgment. Moore
III at ¶ 24. The court announced its decision on March 24, 2009. It is this decision
that Moore moved the court to reconsider—but he did not do so until September
16, 2013.
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{¶ 19} In the meantime, Moore pursued other avenues of relief, and in that
branch of his appellate history, first sought relief based on Graham, 560 U.S. 48,
130 S.Ct. 2011, 176 L.Ed.2d 825. On December 30, 2009, Moore filed a petition
for a writ of mandamus and/or a writ of procedendo in the Seventh District Court
of Appeals, seeking to compel the trial court to issue a final, appealable judgment
entry of sentence for his original 2002 convictions that would comply with Crim.R.
32(C), containing all the elements set forth by this court in State v. Baker, 119 Ohio
St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163. On March 30, 2010, the appellate
court partially granted Moore’s petition, ordering the trial court to issue a revised
sentencing entry that complied with Crim.R. 32(C). State ex rel. Moore v.
Krichbaum, 7th Dist. Mahoning No. 09 MA 201, 2010-Ohio-1541 (“Moore IV”).
{¶ 20} On April 20, 2010, the trial court issued a nunc pro tunc sentencing
entry that complied with Crim.R. 32(C). On May 17, 2010, the United States
Supreme Court decided Graham, holding that “for a juvenile offender who did not
commit homicide the Eighth Amendment forbids the sentence of life without
parole.” Graham at 74. That same day, Moore filed a notice of appeal from the
trial court’s nunc pro tunc entry; in his brief in support filed December 9, 2010,
Moore raised several issues, including that pursuant to Graham, his 112-year
sentence violated the Eighth Amendment to the United States Constitution.
{¶ 21} During the pendency of that appeal, this court held in State v. Lester,
130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph one of the
syllabus, that “[a] nunc pro tunc judgment entry issued for the sole purpose of
complying with Crim.R. 32(C) to correct a clerical omission in a final judgment
entry is not a new final order from which a new appeal may be taken.” Based on
that decision, the court of appeals dismissed Moore’s appeal from the nunc pro tunc
entry. State v. Moore, 7th Dist. Mahoning No. 10-MA-85, 2011-Ohio-6220(“Moore V”). Although it dismissed the appeal on the basis of Lester, the court
briefly addressed Moore’s Graham-centered claim, stating that it was “barred in
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this case by the doctrine of res judicata” and that it was an “argument * * * more
properly raised in a petition for postconviction relief.” Moore V at ¶ 33. The court’s
decision was announced on November 30, 2011.
{¶ 22} On September 16, 2013, about a month after gaining new counsel,
Moore filed an application for delayed reconsideration of the court of appeals’
decision in Moore III, pursuant to App.R. 26(A)(1) and 14(B). App.R. 26(A)(1)
allows a party to file an application to request the panel that issued a decision to
reconsider its decision, but that application must be made no later than ten days
after the clerk of the court has mailed the judgment or order to the parties. App.R.
14(B) allows for an exception to the App.R. 26(A)(1) timeline—the court may
enlarge the time for filing an application for reconsideration “on a showing of
extraordinary circumstances.” Moore argued that the court should reconsider his
appeal because his sentence was unconstitutional pursuant to Graham and Miller v.
Alabama, __ U.S. __, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). In Miller, a case
involving a juvenile who had been convicted of murder and sentenced to a
mandatory term of life imprisonment without parole, the court held that “the Eighth
Amendment forbids a sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders,” reasoning that “[b]y making youth (and
all that accompanies it) irrelevant to imposition of that harshest prison sentence,
such a scheme poses too great a risk of disproportionate punishment.” Id. at 2469.
{¶ 23} A divided court denied Moore’s application. The majority’s two-
paragraph opinion cited its judgment entries denying similar applications in State
v. Bunch, 7th Dist. Mahoning No. 06 MA 106 (Aug. 8, 2013), which involved one
of Moore’s codefendants, and State v. Barnette, 7th Dist. Mahoning No. 06 MA
135 (Sept. 16, 2013). State v. Moore, 7th Dist. Mahoning No. 08 MA 20, 2013-
Ohio-5868, ¶ 2.
{¶ 24} In Bunch, the court first considered the timeliness of the application
for reconsideration under App.R. 26(A)(1); the decision appealed from had been
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announced in 2007, but Bunch’s application was not filed until 2013. Since the
application was untimely, the court next determined whether Bunch had shown
extraordinary circumstances meriting an enlargement of the time to request
reconsideration pursuant to App.R. 14(B). Ultimately, the court held that Bunch
failed to show extraordinary circumstances, for two reasons.
{¶ 25} First, the court looked to the delay from the date of the Graham
decision to the date the application for reconsideration was filed, a period of almost
three years: “The almost three year delay in filing the application for
reconsideration and motion to enlarge time does not lend support for a finding of
extraordinary circumstances. Had the application and motion been filed more
closely in time to the Graham decision it could support a finding of extraordinary
circumstances.” Bunch at 3.
{¶ 26} Second, and “most important,” the court stated that “when appellate
courts have found extraordinary circumstances based on binding decisions from
higher courts, they have done so when the higher court’s case is directly on point.”
Id. The court explained, “The basis for this reasoning is that appellate courts will
grant reconsideration petitions when either there is an obvious error in the appellate
court’s decision or when it is demonstrated that the appellate court did not properly
consider an issue.” Id. If a higher court’s decision is not directly on point, the court
reasoned, then any error would not be obvious and would not warrant the requisite
finding of extraordinary circumstances.
{¶ 27} The court in Bunch pointed out that both Graham and Miller
concerned cases that “were based specifically on life sentences without the
possibility of parole; they were not based on ‘de facto’ life sentences.” Id. at 4.
Thus, according to the court, although Bunch was a juvenile when he committed
his crimes and his fixed-term sentence was 89 years, the fact that his sentence may
be considered a “de facto” life sentence meant that his case was not directly on
point with Graham or Miller. Further, the court stated that “as of yet, no Ohio
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Supreme Court or United States Supreme Court decision has extended the Graham
or Miller holding to ‘de facto’ life sentences.” Id.
{¶ 28} The other decision the court cited in rejecting Moore’s application
for reconsideration, Barnette (another case in which the appellant sought
reconsideration of a 2007 decision in 2013), contained virtually identical reasoning
and language as the court’s decision in Bunch.
{¶ 29} Moore appealed the denial of his application for reconsideration to
this court. The cause is before this court upon the acceptance of a discretionary
appeal. 138 Ohio St.3d 1467, 2014-Ohio-1674, 6 N.E.3d 1204. Moore raises one
proposition of law: “The Eighth Amendment prohibits sentencing a juvenile to a
term-of-years sentence that precludes any possibility of release during the
juvenile’s life expectancy.”
LAW AND ANALYSIS
Moore’s Sentence
{¶ 30} To begin, we establish the potential prison term we are addressing in
this case. Moore accepts the state’s interpretation of the effect of R.C.
2929.20(C)(5) on his 112-year sentence; under that interpretation, Moore would
become eligible to file a motion for judicial release after serving 77 years of his
sentence. R.C. 2929.20(C)(5) allows an offender to seek judicial release five years
after the completion of the mandatory portions of the offender’s sentence. Moore’s
six ten-year sentences relating to rape are mandatory, R.C. 2929.13(F), as are his
four three-year sentences under the gun specifications, R.C. 2941.145. Moore
would have to serve five additional years beyond the mandatory 72 years, for a total
of 77 years, before becoming eligible to seek judicial release. Moore would thus
be 92 years old before he would have his first chance to move a court for release.
There is no dispute that his life expectancy falls well short of 92 years. A male who
was 15 years of age in 2002 had a life expectancy of an additional 60.2 years; a 15-
year-old black male had a life expectancy of an additional 54.9 years. U.S.
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Department of Health and Human Services, National Vital Statistics Reports,
Volume 52, Number 3, at 26 (2003),
http://www.cdc.gov/nchs/data/nvsr/nvsr52/nvsr52_03.pdf (accessed Oct. 5, 2016).
Therefore, we must consider whether a minimum 77-year sentence, i.e., a sentence
that extends beyond the life expectancy of the offender, is constitutional when
imposed on a 15-year-old nonhomicide offender.
Proportionality Review
{¶ 31} The Eighth Amendment to the United States Constitution states,
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” A key component of the Constitution’s prohibition
against cruel and unusual punishment is the “precept of justice that punishment for
crime should be graduated and proportioned to [the] offense.” Weems v. United
States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910). “Protection against
disproportionate punishment is the central substantive guarantee of the Eighth
Amendment.” Montgomery v. Louisiana, __ U.S. __, 136 S.Ct. 718, 732-733, 193
L.Ed.2d 599 (2016).
{¶ 32} There are two classifications of proportionality review—one
involving the length of term-of-years sentences given in a particular case and the
other involving categorical restrictions. In this case, we deal with a categorical
restriction. Within that classification, there are two subsets. One subset considers
the nature of the offense—for example, in Kennedy v. Louisiana, 554 U.S. 407,
437, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008), the United States Supreme Court
held that capital punishment is impermissible for defendants who commit a
nonhomicide rape of a child. The second subset considers the characteristics of the
offender; in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335(2002), for instance, the court ruled that the Eighth Amendment prohibits the
execution of a mentally retarded defendant.
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{¶ 33} In recent years, the United States Supreme Court has established
categorical prohibitions of certain punishments for juveniles, pursuant to the Eighth
Amendment. In Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1(2005), the court prohibited imposition of the death penalty on defendants who
committed their crimes before the age of 18; in Graham, 560 U.S. 48, 130 S.Ct.
2011, 176 L.Ed.2d 825, the court prohibited the imposition of life-without-parole
sentences on juvenile offenders who did not commit homicide; and in Miller, __
U.S. __, 132 S.Ct. 2455, 183 L.Ed.2d 407, the court prohibited the mandatory
imposition of life-without-parole sentences on offenders who had committed
murder as juveniles.
{¶ 34} Our focus in this case is Graham. The court did not address in
Graham whether a term-of-years prison sentence that extends beyond an offender’s
life expectancy—a functional life sentence—falls under the Graham categorical
bar. But we conclude that Graham does establish a categorical prohibition of such
sentences.
Graham
{¶ 35} Graham held that sentences of life imprisonment without parole for
juvenile nonhomicide offenders were cruel and unusual in violation of the Eighth
Amendment in light of three factors—the limited moral culpability of juvenile
nonhomicide offenders, the inadequacy of penological theory justifying the length
of life-without-parole sentences for such offenders, and the severity of life-without-
parole sentences. Graham at 74.
{¶ 36} First, the court explained in Graham that a juvenile who did not kill
or intend to kill has “twice diminished moral culpability” based on two factors: the
nature of the crime and the juvenile’s age. Id. at 69. As for the nature of the crime,
the court found that “[a]lthough an offense like robbery or rape is ‘a serious crime
deserving serious punishment,’ Enmund [v. Florida, 458 U.S. 782] 797, 102 S.Ct.
3368, [73 L.Ed.2d 1140 (1982)], those crimes differ from homicide crimes in a
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moral sense,” such that nonhomicide defendants “are categorically less deserving
of the most serious forms of punishment than are murderers.” Graham at 69.
{¶ 37} In addition, juveniles are less morally culpable than adults due to
their youth and what comes with it:
[Roper and Graham] relied on three significant gaps between
juveniles and adults. First, children have a “ ‘lack of maturity and
an underdeveloped sense of responsibility,’ ” leading to
recklessness, impulsivity, and heedless risk-taking. Roper, 543
U.S., at 569, 125 S.Ct. 1183. Second, children “are more vulnerable
* * * to negative influences and outside pressures,” including from
their family and peers; they have limited “contro[l] over their own
environment” and lack the ability to extricate themselves from
horrific, crime-producing settings. Ibid. And third, a child’s
character is not as “well formed” as an adult’s; his traits are “less
fixed” and his actions less likely to be “evidence of irretrievabl[e]
deprav[ity].” Id., at 570, 125 S.Ct. 1183.
(Ellipsis sic.) Miller, __ U.S. __, 132 S.Ct. at 2464, 183 L.Ed.2d 407.
{¶ 38} Because of the characteristics of youth, a depraved crime committed
by a juvenile may not be indicative of an irredeemable individual.
These salient characteristics mean that “[i]t is difficult even for
expert psychologists to differentiate between the juvenile offender
whose crime reflects unfortunate yet transient immaturity, and the
rare juvenile offender whose crime reflects irreparable corruption.”
[Roper] at 573, 125 S.Ct. 1183. Accordingly, “juvenile offenders
cannot with reliability be classified among the worst offenders.” Id.,13
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at 569, 125 S.Ct. 1183. A juvenile is not absolved of responsibility
for his actions, but his transgression “is not as morally reprehensible
as that of an adult.” Thompson [v. Oklahoma, 487 U.S. 815] 835,
108 S.Ct. 2687, [101 L.Ed.2d 702 (1988)] (plurality opinion).
Graham, 560 U.S. at 68, 130 S.Ct. 2011, 176 L.Ed.2d 825.
{¶ 39} The inherently diminished moral culpability and other
characteristics of juvenile offenders means that the recognized, legitimate goals of
penal sanctions—retribution, deterrence, incapacitation, and rehabilitation—do not
justify the imposition of the harshest penalties on juveniles who have committed
nonhomicide crimes:
Roper and Graham emphasized that the distinctive attributes
of youth diminish the penological justifications for imposing the
harshest sentences on juvenile offenders, even when they commit
terrible crimes.
Because “ ‘[t]he heart of the retribution rationale’ ” relates
to an offender’s blameworthiness, “ ‘the case for retribution is not
as strong with a minor as with an adult.’ ” Graham, 560 U.S., at __,
130 S.Ct., at 2028 (quoting Tison v. Arizona, 481 U.S. 137, 149, 107
S.Ct. 1676, 95 L.Ed.2d 127 (1987); Roper, 543 U.S., at 571, 125
S.Ct. 1183). Nor can deterrence do the work in this context, because
“ ‘the same characteristics that render juveniles less culpable than
adults’ ”—their immaturity, recklessness, and impetuosity—make
them less likely to consider potential punishment. Graham, 560
U.S., at __, 130 S.Ct., at 2028 (quoting Roper, 543 U.S., at 571, 125
S.Ct. 1183). Similarly, incapacitation could not support the life-
without-parole sentence in Graham: Deciding that a “juvenile
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offender forever will be a danger to society” would require
“mak[ing] a judgment that [he] is incorrigible”—but “
‘incorrigibility is inconsistent with youth.’ ” 560 U.S., at __, 130
S.Ct., at 2029 (quoting Workman v. Commonwealth, 429 S.W.2d
374, 378 (Ky.App.1968)). And for the same reason, rehabilitation
could not justify that sentence. Life without parole “forswears
altogether the rehabilitative ideal.” Graham, 560 U.S., at __, 130
S.Ct., at 2030. It reflects “an irrevocable judgment about [an
offender’s] value and place in society,” at odds with a child’s
capacity for change. Ibid.
(Brackets sic.) Miller at 2465.
{¶ 40} The severity of the life-without-parole penalty also formed part of
the basis of the court’s decision in Graham. Graham explained that life-without-
parole sentences are harsher when imposed on juveniles than when they are
imposed on older defendants:
Life without parole is an especially harsh punishment for a
juvenile. Under this sentence a juvenile offender will on average
serve more years and a greater percentage of his life in prison than
an adult offender. A 16-year-old and a 75-year-old each sentenced
to life without parole receive the same punishment in name only. *
* * This reality cannot be ignored.
Graham at 70-71.
{¶ 41} The imposition of the most severe penalties on juveniles is contrary
to what the court described in Miller, __ U.S. __, 132 S.Ct. at 2466, 183 L.Ed.2d
407, as “Graham’s (and also Roper’s) foundational principle: that imposition of a
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State’s most severe penalties on juvenile offenders cannot proceed as though they
were not children.”
{¶ 42} The most important attribute of the juvenile offender is the potential
for change. Graham relates the difficulty in determining whether the commission
of a crime is the result of immaturity or of irredeemable corruption. And so Graham
protects juveniles categorically from a final determination while they are still
youths that they are irreparably corrupt and undeserving of a chance to reenter
society. “It remains true that ‘[f]rom a moral standpoint it would be misguided to
equate the failings of a minor with those of an adult, for a greater possibility exists
that a minor’s character deficiencies will be reformed.’ ” Graham, 560 U.S. at 68,
130 S.Ct. 2011, 176 L.Ed.2d 825, quoting Roper, 543 U.S. at 570, 125 S.Ct. 1183,
161 L.Ed.2d 1.
{¶ 43} That is why Graham recognizes that although an offender convicted
as a juvenile can ultimately spend a lifetime in jail, the offender has to be given a
chance at some point to prove himself worthy of reentering society. A sentence
must not “den[y] the juvenile offender a chance to demonstrate growth and
maturity. Incapacitation cannot override all other considerations, lest the Eighth
Amendment’s rule against disproportionate sentences be a nullity.” Id. at 73.
{¶ 44} Still, Graham does not foreclose the possibility that a defendant who
commits a heinous crime as a youth will indeed spend his entire remaining lifetime
in prison; Graham does not guarantee an eventual release. “What the State must
do, however, is give defendants like Graham some meaningful opportunity to
obtain release based on demonstrated maturity and rehabilitation.” Id. at 75.
Graham leaves it to the states to determine how to achieve that requirement: “It is
for the State, in the first instance, to explore the means and mechanisms for
compliance.” Id.
{¶ 45} Again, the state retains the ability, upon a meaningful evaluation of
an offender who committed a nonhomicide as a juvenile, to impose lifetime
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incarceration upon the most serious offenders. “The Eighth Amendment does not
foreclose the possibility that persons convicted of nonhomicide crimes committed
before adulthood will remain behind bars for life. It does prohibit States from
making the judgment at the outset that those offenders never will be fit to reenter
society.” Graham, 560 U.S. at 75, 130 S.Ct. 2011, 176 L.Ed.2d 825.
{¶ 46} The court in Graham did not establish a limit to how long a juvenile
can remain imprisoned before getting the chance to demonstrate maturity and
rehabilitation. But it is clear that the court intended more than to simply allow
juveniles-turned-nonagenarians the opportunity to breathe their last breaths as free
people. The intent was not to eventually allow juvenile offenders the opportunity
to leave prison in order to die but to live part of their lives in society. The court
stated in Montgomery, a case involving a defendant who had been convicted of
murder as a juvenile,
In light of what this Court has said in Roper, Graham, and Miller
about how children are constitutionally different from adults in their
level of culpability, * * * prisoners like Montgomery must be given
the opportunity to show their crime did not reflect irreparable
corruption; and, if it did not, their hope for some years of life outside
prison walls must be restored.
Montgomery, __ U.S. __, 136 S.Ct. at 736-737, 193 L.Ed.2d 599.
{¶ 47} It does not take an entire lifetime for a juvenile offender to earn a
first chance to demonstrate that he is not irredeemable. Pursuant to Graham, the
Eighth Amendment prohibits the imposition of a sentence that denies a juvenile
some meaningful opportunity to obtain release based on demonstrated maturity and
rehabilitation.
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Applying Graham
Term-of-Years Sentences
{¶ 48} The state argues that Graham applies only to juvenile offenders
sentenced to life imprisonment without parole for a nonhomicide offense.
Although the defendant in Graham was serving a life sentence, we conclude that
the principles behind Graham apply equally to a juvenile nonhomicide offender
sentenced to prison for a term of years that extends beyond the offender’s life
expectancy.
{¶ 49} Graham cited the lessened moral culpability of juvenile offenders,
the severity of the sentence, and the inapplicability of penological justifications for
life sentences for juveniles as reasons for declaring life sentences for juvenile
nonhomicide offenders unconstitutional under the Eighth Amendment. Those same
factors apply to term-of-years prison sentences that exceed a juvenile offender’s
expected lifespan.
{¶ 50} As in Graham, in this case the defendant was convicted of
nonhomicide offenses that he committed as a juvenile and thus has twice-
diminished moral culpability. That is the overriding element in this case. As the
court stated in Miller, “[C]hildren are different,” and “ ‘ “[o]ur history is replete
with laws and judicial recognition” that children cannot be viewed simply as
miniature adults.’ J.D.B., 564 U.S., at __, 131 S.Ct., at 2404 (quoting Eddings, 455
U.S., at 115-116, 102 S.Ct. 869).” Miller, __ U.S. __, 132 S.Ct. at 2470, 183
L.Ed.2d 407.
{¶ 51} The protections in Graham flow from the defendant’s juvenile
status. The question we must consider is whether, under Graham, there is a
consequential distinction between the life sentence imposed in Graham and the
sentence imposed in this case, which extends beyond Moore’s life expectancy.
{¶ 52} Did the trial court sentence Moore to life in prison? Undoubtedly,
that was the aim of the sentencing court, as reflected in its statements at
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sentencing—“I want to make sure you never get out of the penitentiary, and I’m
going to make sure that you never get out of the penitentiary”—and at
resentencing—“[I]t is the intention of this court that you should never be released
from the penitentiary.” The fact that Moore could survive his current sentence is
not outside the realm of possibility; Moore accepts the state’s interpretation of R.C.
2929.20(C)(5), under which he would become eligible to file a motion for judicial
release after serving 77 years of his sentence. Still, Moore would be 92 years old,
well beyond his life expectancy, before he would have his first chance to move the
court for release.
{¶ 53} Graham discusses the fact that under a life-without-parole sentence,
a juvenile offender “will on average serve more years and a greater percentage of
his life in prison than an adult offender.” Graham, 560 U.S. at 70, 130 S.Ct. 2011,
176 L.Ed.2d 825. The same mathematical reality—that a person who begins
serving a life sentence as a juvenile serves a greater number of years and a greater
percentage of his or her life in prison than a person who starts serving his sentence
as an adult—extends to multidecade sentences that outstrip a juvenile’s life
expectancy. The practical reality is that juveniles sentenced to terms extending
beyond their life expectancies are serving the lengthiest sentences—in terms of the
number of years actually served in prison—that a state can impose.
{¶ 54} In Sumner v. Shuman, 483 U.S. 66, 83, 107 S.Ct. 2716, 97 L.Ed.2d
56 (1987), the court compared sentences of life without parole and term-of-years
sentences extending beyond an offender’s life expectancy in addressing a Nevada
statute that imposed a mandatory death sentence on a prisoner who committed
murder in prison while serving a life-without-parole sentence. The court responded
to the argument that the death penalty was a necessary deterrent to a person serving
a life-without-parole sentence: “Close consideration of the deterrence argument
also points up the fact that there is no basis for distinguishing, for purposes of
deterrence, between an inmate serving a life sentence without possibility of parole
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and a person serving several sentences of a number of years, the total of which
exceeds his normal life expectancy.” Id. The court recognized that a person serving
a term-of-years sentence extending beyond his life expectancy is in as hopeless a
situation as a person serving a sentence of life without parole.
{¶ 55} The court held in Graham that life-without-parole sentences lacked
penological justification when imposed on juvenile nonhomicide offenders. If
“none of the goals of penal sanctions that have been recognized as legitimate—
retribution, deterrence, incapacitation, and rehabilitation * * *—provides an
adequate justification” for imposing a life-without-parole sentence on a juvenile
nonhomicide offender, Graham at 71, then a term-of-years sentence that extends
beyond a juvenile nonhomicide offender’s expected lifespan does not have
penological justification either. As the court held in Graham, retribution is related
to the moral culpability of the offender; retribution does not justify imposing on a
person with twice-diminished moral culpability a sentence that is the most severe
in terms of years served that a state can impose.
{¶ 56} Deterrence is also insufficient to justify the practice of imposing a
sentence on a juvenile that extends past his life expectancy. Graham held that
“[d]eterrence does not suffice to justify” a life sentence: “Because juveniles’ ‘lack
of maturity and underdeveloped sense of responsibility * * * often result in
impetuous and ill-considered actions and decisions,’ Johnson v. Texas, 509 U.S.
350, 367, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993), they are less likely to take a
possible punishment into consideration when making decisions.” (Ellipsis sic.)
Graham, 560 U.S. at 72, 130 S.Ct. 2011, 176 L.Ed.2d 825. It is unrealistic to think
that a sentence that likely extends for a lifetime could have more of a deterrent
effect on a child than a life-without-parole sentence.
{¶ 57} The penological goal of incapacitation falls short as a justification
for term-of-years sentences that extend beyond a juvenile’s expected lifespan
because of the inability to determine whether a juvenile offender is incorrigible and
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necessitates being separated from society for what will probably be the remainder
of the juvenile’s lifetime. “To justify life without parole on the assumption that the
juvenile offender forever will be a danger to society requires the sentencer to make
a judgment that the juvenile is incorrigible. The characteristics of juveniles make
that judgment questionable.” Id. at 72-73.
{¶ 58} Finally, as far as rehabilitation is concerned, like a life-without-
parole sentence, a term-of-years sentence that extends beyond a juvenile’s life
expectancy “forswears altogether the rehabilitative ideal. By denying the defendant
the right to reenter the community, the State makes an irrevocable judgment about
that person’s value and place in society. This judgment is not appropriate in light
of a juvenile nonhomicide offender’s capacity for change and limited moral
culpability.” Id. at 74.
{¶ 59} The sentence imposed on Moore is functionally a life sentence. We
see no significant difference between a sentence of life imprisonment without
parole and a term-of-years prison sentence that would extend beyond the
defendant’s expected lifespan before the possibility of parole. The court in Graham
was not barring a terminology—“life without parole”—but rather a punishment that
removes a juvenile from society without a meaningful chance to demonstrate
rehabilitation and obtain release. The state may not impose at the outset its harshest
sentences on a person with twice-diminished moral culpability.
{¶ 60} It makes little sense that a juvenile offender sentenced to prison for
life without parole would get a chance, pursuant to Graham, to prove his or her
rehabilitation and be released but a juvenile offender sentenced to a functional life
term would not. Could a court that imposed an unconstitutional life-without-parole
sentence on a juvenile offender correct Eighth Amendment deficiencies upon
remand by resentencing the defendant to a term-of-years sentence when parole
would be unavailable until after the natural life expectancy of the defendant?
Certainly not.
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{¶ 61} Further, the United States Supreme Court has all but abolished life-
without-parole sentences even for those juveniles who commit homicide:
Miller did not go so far as to bar courts from imposing the sentence
of life without the possibility of parole on a juvenile. Yet because
of the severity of that penalty, and because youth and its attendant
circumstances are strong mitigating factors, that sentence should
rarely be imposed on juveniles.
State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, ¶ 29, citing
Miller, __ U.S. __, 132 S.Ct. at 2469, 183 L.Ed.2d 407. As the court recognized in
Montgomery, “Before Miller, every juvenile convicted of a homicide offense could
be sentenced to life without parole. After Miller, it will be the rare juvenile offender
who can receive that same sentence.” Montgomery, __ U.S. __, 136 S.Ct. at 734,
193 L.Ed.2d 599. Graham cannot stand for the proposition that juveniles who do
not commit homicide must serve longer terms in prison than the vast majority of
juveniles who commit murder, who, because of Miller, are all but assured the
opportunity to demonstrate maturity and rehabilitation at a meaningful point in their
sentences.
{¶ 62} Under his current sentence, Moore would probably die in prison. If
he did survive the 77 years that he is required to serve, his period of incarceration
likely would be among the longest ever served in Ohio. That would be the case
despite the fact that he did not commit the ultimate crime of murder and was not
fully formed when he committed his nonhomicide crimes. The “imposition of a
State’s most severe penalties on juvenile offenders cannot proceed as though they
were not children.” Miller at 2466. Because Moore was a child when he committed
his crimes, he must be treated differently, pursuant to Graham. The key principle
in Graham is that the commission of a nonhomicide offense in childhood should
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not preclude the offender from the opportunity to someday demonstrate that he is
worthy to reenter society: “The Constitution prohibits the imposition of a life
without parole sentence on a juvenile offender who did not commit homicide. A
State need not guarantee the offender eventual release, but if it imposes a sentence
of life it must provide him or her with some realistic opportunity to obtain release
before the end of that term.” Graham, 50 U.S. at 82, 130 S.Ct. 2011, 176 L.Ed.2d
825.
{¶ 63} It is consistent with Graham to conclude that a term-of-years prison
sentence extending beyond a juvenile defendant’s life expectancy does not provide
a realistic opportunity to obtain release before the end of the term. Graham decried
the fact that the defendant in that case would have no opportunity to obtain release
“even if he spends the next half century attempting to atone for his crimes and learn
from his mistakes.” Id. at 79. Certainly, the court envisioned that any nonhomicide
juvenile offender would gain an opportunity to obtain release sooner than after three
quarters of a century in prison. Graham is less concerned about how many years
an offender serves in the long term than it is about the offender having an
opportunity to seek release while it is still meaningful.
{¶ 64} We determine that pursuant to Graham, a sentence that results in a
juvenile defendant serving 77 years before a court could for the first time consider
based on demonstrated maturity and rehabilitation whether that defendant could
obtain release does not provide the defendant a meaningful opportunity to reenter
society and is therefore unconstitutional under the Eighth Amendment.
Multiple Offenses
{¶ 65} The state also argues that Graham does not extend to juveniles
sentenced to lengthy prison terms consisting of multiple, consecutive fixed-term
sentences for nonhomicide offenses. The state argues that in Graham, the court
simply held that the Eighth Amendment forbids the sentence of life imprisonment
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without parole for juvenile offenders who commit a single nonhomicide offense.
We reject that argument.
{¶ 66} We note at the outset that the defendant in Graham had committed
multiple offenses. When Graham was 16 years old, he and an accomplice entered
a restaurant at closing time with the intent to rob it; the accomplice hit the restaurant
manager in the back of the head with a metal bar, causing a head injury that required
stitches. Graham was charged as an adult with armed burglary with assault or
battery, a first-degree felony carrying a maximum penalty of life imprisonment
without the possibility of parole, and attempted armed robbery, a second-degree
felony carrying a maximum penalty of 15 years’ imprisonment. He pleaded guilty
to both charges under a plea agreement. The trial court withheld adjudication of
guilt and sentenced Graham to three years’ probation, the first year of which had to
be spent in the county jail. Graham, 560 U.S. at 53-54, 130 S.Ct. 2011, 176 L.Ed.2d
825.
{¶ 67} Less than six months after his release from jail, Graham was
involved in an armed home-invasion robbery. Later that same evening, he and his
accomplices attempted another home invasion, and an accomplice was shot.
Graham later admitted to police that he had been involved in two or three other
robberies before that night. Id. at 54-55.
{¶ 68} The trial court found that Graham had violated his probation by
committing a home-invasion robbery, by possessing a firearm, and by associating
with persons engaged in criminal activity. Id. at 55. Citing an “escalating pattern
of criminal conduct” and a desire to protect the community, the trial court sentenced
Graham to the maximum sentence on each of the two original charges—life on the
first charge and 15 years on the second. Id. at 57.
{¶ 69} The Supreme Court in Graham acknowledged that Graham
committed serious crimes early on in his period of supervised release, “posed an
immediate risk,” and deserved to be separated from society “in order to prevent
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what the trial court described as an ‘escalating pattern of criminal conduct.’ ” Id.
at 73. In full recognition of the multiple crimes that Graham committed, the court
concluded, however, that “it does not follow that he would be a risk to society for
the rest of his life.” Id. The nature or number of the crimes he committed was less
important than who he was at the time he committed them: a juvenile whose age,
coupled with his commission of nonhomicide crimes, left him with “limited moral
culpability” such that he could not be condemned at the outset to a lifetime of
imprisonment without any hope for release. Id. at 74.
{¶ 70} The court created “a clear line * * * necessary to prevent the
possibility that life without parole sentences will be imposed on juvenile
nonhomicide offenders who are not sufficiently culpable to merit that punishment.”
Id. Graham enunciated “a categorical rule [that] gives all juvenile nonhomicide
offenders a chance to demonstrate maturity and reform.” Id. at 79. It did not limit
that holding to juveniles who were sentenced for only one offense.
{¶ 71} Instead, the protections in Graham apply to juveniles who do not
commit homicide. Moore fits that description. The court specifically rejected a
case-by-case approach that would have required courts “to take the offender’s age
into consideration as part of a case-specific gross disproportionality inquiry,
weighing it against the seriousness of the crime.” Id. at 77. The court admitted that
“[t]his approach would allow courts to account for factual differences between
cases and to impose life without parole sentences for particularly heinous crimes.”
Id.
{¶ 72} In adopting a categorical approach, the court specifically rejected
proportionality review on a case-by-case basis because “it does not follow that
courts taking a case-by-case proportionality approach could with sufficient
accuracy distinguish the few incorrigible juvenile offenders from the many that
have the capacity for change.” Id. The court in Roper had held that simply
considering youth as a mitigating factor was insufficient because of an
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“unacceptable likelihood * * * that the brutality or cold-blooded nature of any
particular crime would overpower mitigating arguments based on youth as a matter
of course, even where the juvenile offender’s objective immaturity, vulnerability,
and lack of true depravity should require a sentence less severe than death.” Roper,
543 U.S. at 573, 125 S.Ct. 1183, 161 L.Ed.2d 1. The Graham court instructed that
the same is the case with life-without-parole sentences: “Here, as with the death
penalty, ‘[t]he differences between juvenile and adult offenders are too marked and
well understood to risk allowing a youthful person to receive’ a sentence of life
without parole for a nonhomicide crime ‘despite insufficient culpability.’ ”
Graham, 560 U.S. at 78, 130 S.Ct. 2011, 176 L.Ed.2d 825, quoting Roper at 572-
573.
{¶ 73} “[N]one of what [Graham] said about children—about their
distinctive (and transitory) mental traits and environmental vulnerabilities—is
crime-specific.” Miller, __ U.S. __, 132 S.Ct. at 2465, 183 L.Ed.2d 407. Whether
the sentence is the product of a discrete offense or multiple offenses, the fact
remains that it was a juvenile who committed the one offense or several offenses
and who has diminished moral culpability. To suggest that a life-without-parole
sentence would be permissible for a juvenile who committed multiple offenses
would be to ignore the categorical restriction against that penalty for juveniles who
do not commit homicide. A court cannot impose a sentence that is barred because
of the identity of the offender on the ground that the offender committed multiple
crimes. As an adult offender who commits multiple, nonhomicide offenses cannot
become eligible for the death penalty, neither can a juvenile offender become
eligible for the most severe penalty permissible for juveniles by committing
multiple nonhomicide offenses. The number of offenses committed cannot
overshadow the fact that it is a child who has committed them.
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{¶ 74} We conclude that the Eighth Amendment prohibition of life
imprisonment without parole or its practical equivalent for juvenile offenders is not
limited to juveniles who commit a single nonhomicide offense.
Consistency with Other States
{¶ 75} Our holding is consistent with those of other high courts that have
held that for purposes of applying the Eighth Amendment protections set forth in
Graham and Miller, there is no meaningful distinction between sentences of life
imprisonment without parole and prison sentences that extend beyond a juvenile’s
life expectancy.
{¶ 76} In People v. Caballero, 55 Cal.4th 262, 268-269, 145 Cal.Rptr. 286,
282 P.3d 291 (2012), the California Supreme Court held that “sentencing a juvenile
offender for a nonhomicide offense to a term of years with a parole eligibility date
that falls outside the juvenile offender’s natural life expectancy constitutes cruel
and unusual punishment in violation of the Eighth Amendment.” The defendant in
that case had been convicted of multiple counts of attempted murder and would
become eligible for parole only after serving 110 years. The court stated that
“Graham’s analysis does not focus on the precise sentence meted out. Instead,
* * * it holds that a state must provide a juvenile offender ‘with some realistic
opportunity to obtain release’ from prison during his or her expected lifetime.”
Caballero at 268, quoting Graham, 560 U.S. at 82, 130 S.Ct. 1183, 176 L.Ed.2d
825.
{¶ 77} In Henry v. State, 175 So.3d 675 (Fla.2015), the Florida Supreme
Court declared unconstitutional a term-of-years sentence imposed on a
nonhomicide offender. The defendant in Henry had been sentenced to an aggregate
sentence of 90 years, with mandatory prison time until he reached age 95. The
court declared that sentence unconstitutional pursuant to Graham. The court
pointed out that the specific term or terminology of the sentence is not
determinative as to whether the sentence violates the Eighth Amendment:
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Thus, we believe that the Graham Court had no intention of limiting
its new categorical rule to sentences denominated under the
exclusive term of “life in prison.” Instead, we have determined that
Graham applies to ensure that juvenile nonhomicide offenders will
not be sentenced to terms of imprisonment without affording them
a meaningful opportunity for early release based on a demonstration
of maturity and rehabilitation.
Henry at 679-680, citing Graham at 75.
{¶ 78} Henry held that the Constitution requires a mechanism for review of
lengthy sentences given to juvenile offenders:
In light of Graham, and other Supreme Court precedent, we
conclude that the Eighth Amendment will not tolerate prison
sentences that lack a review mechanism for evaluating this special
class of offenders for demonstrable maturity and reform in the future
because any term of imprisonment for a juvenile is qualitatively
different than a comparable period of incarceration is for an adult.
Henry at 680.
{¶ 79} In State ex rel. Morgan v. State, __ So.3d __, 2016 WL 6125428(La.2016), the Supreme Court of Louisiana addressed a sentence of “99 years [of]
imprisonment at hard labor without the benefit of parole, probation, or suspension
of sentence” imposed on a defendant who had committed armed robbery at age 17.
Id. at *1. The court held that “the categorical rule in Graham applies to the
defendant’s 99-year sentence without parole insofar as it is the functional
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equivalent of a life sentence and denies him a meaningful opportunity for release,
to which he is entitled.” Id. at *8.
{¶ 80} The Iowa Supreme Court in State v. Ragland, 836 N.W.2d 107 (Iowa
2013), and State v. Null, 836 N.W.2d 41 (Iowa 2013), held that the constitutional
infirmities of life-without-parole sentences for juveniles could not be overcome
simply by imposing lengthy term-of-years sentences. Ragland dealt with a murder
defendant who was sentenced to 60 years in prison; the defendant was 18 years old
at the time of his imprisonment, and the sentence took him to the edge of his life
expectancy. Ragland at 119. The court in Ragland, noting that “it is important that
the spirit of the law not be lost in the application of the law,” wrote:
The spirit of the constitutional mandates of Miller and
Graham instruct that much more is at stake in the sentencing of
juveniles than merely making sure that parole is possible. In light
of our increased understanding of the decision making of youths, the
sentencing process must be tailored to account in a meaningful way
for the attributes of juveniles that are distinct from adult conduct.
At the core of all of this also lies the profound sense of what a person
loses by beginning to serve a lifetime of incarceration as a youth.
Ragland at 121. Ragland held that Miller’s requirement of individualized
sentencing consideration for youths facing life-without-parole sentences also
“applies to sentences that are the functional equivalent of life without parole.”
Ragland at 121-122.
{¶ 81} In Null, another murder case, the court addressed the defendant’s
minimum sentence of 52.5 years. The court stated that “[e]ven if lesser sentences
than life without parole might be less problematic, we do not regard the juvenile’s
potential future release in his or her late sixties after a half century of incarceration
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sufficient to escape the rationales of Graham or Miller.” Null at 71. The court
recognized that the likelihood of simply surviving a sentence does not provide the
protection to juvenile offenders envisioned by Graham: “The prospect of geriatric
release, if one is to be afforded the opportunity for release at all, does not provide
a ‘meaningful opportunity’ to demonstrate the ‘maturity and rehabilitation’
required to obtain release and reenter society as required by Graham, 560 U.S. at
__, 130 S.Ct. at 2030, 176 L.Ed.2d at 845-46.” Null at 71.
{¶ 82} Moreover, Null made clear that courts should not undertake fine line-
drawing to determine how close to the mark a sentencing court can come to a
defendant’s life expectancy: “[W]e do not believe the determination of whether the
principles of Miller or Graham apply in a given case should turn on the niceties of
epidemiology, genetic analysis, or actuarial sciences in determining precise
mortality dates.” Null at 71. The important factor, instead, is the recognition that
children have lessened moral culpability and are redeemable and so must be given
a chance to demonstrate the change they have undergone since committing their
crimes:
In coming to this conclusion, we note the repeated emphasis of the
Supreme Court in Roper, Graham, and Miller of the lessened
culpability of juvenile offenders, how difficult it is to determine
which juvenile offender is one of the very few that is irredeemable,
and the importance of a “meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation.” Graham, 560
U.S. at __, 130 S.Ct. at 2030, 176 L.Ed.2d at 845-46. We also note
that in the flurry of legislative action that has taken place in the wake
of Graham and Miller, many of the new statutes have allowed parole
eligibility for juveniles sentenced to long prison terms for homicides
to begin after fifteen or twenty-five years of incarceration.
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Null at 71-72.
{¶ 83} Similarly, the Wyoming Supreme Court has held that “a lengthy
aggregate sentence for closely-related crimes whose practical effect is that the
juvenile offender will spend his lifetime in prison triggers the Eighth Amendment
protections set forth by the United States Supreme Court in Miller.” Bear Cloud v.
State, 2014 WY 113, 334 P.3d 132, ¶ 32 (2014). The defendant in Bear Cloud had
been convicted of murder and aggravated burglary and sentenced to a term of 45
years. The court concluded,
The United States Supreme Court’s Eighth Amendment
jurisprudence requires that a process be followed before we make
the judgment that juvenile “offenders never will be fit to reenter
society.” Graham, 560 U.S. at 75, 130 S.Ct. at 2030. That process
must be applied to the entire sentencing package, when the sentence
is life without parole, or when aggregate sentences result in the
functional equivalent of life without parole.
Bear Cloud at ¶ 37.
{¶ 84} In Casiano v. Commr. of Corr., 317 Conn. 52, 115 A.3d 1031 (2015),
the Supreme Court of Connecticut held that the defendant’s 50-year sentence fell
within Miller’s mandate of individualized sentencing for juvenile homicide
offenders:
A juvenile offender is typically put behind bars before he has
had the chance to exercise the rights and responsibilities of
adulthood, such as establishing a career, marrying, raising a family,
or voting. Even assuming the juvenile offender does live to be
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released, after a half century of incarceration, he will have
irreparably lost the opportunity to engage meaningfully in many of
these activities and will be left with seriously diminished prospects
for his quality of life for the few years he has left. A juvenile
offender’s release when he is in his late sixties comes at an age when
the law presumes that he no longer has productive employment
prospects. * * *
The United States Supreme Court viewed the concept of
“life” in Miller and Graham more broadly than biological survival;
it implicitly endorsed the notion that an individual is effectively
incarcerated for “life” if he will have no opportunity to truly reenter
society or have any meaningful life outside of prison.
Casiano at 78. Thus, the court held that the imposition of a 50-year sentence—like
the life-without parole sentence in Miller—required the trial court to “engage in an
individualized sentencing process that accounts for the mitigating circumstances of
youth and its attendant characteristics.” Casiano at 59.
{¶ 85} In People v. Reyes, 2016 IL 119271, 68 N.E.3d 884, the defendant
was sentenced to a 97-year prison term for the first-degree murder and two
attempted murders he committed when he was 16 years old; he was required to
serve at least 89 years of his sentence. Id. at ¶ 2. The Supreme Court of Illinois
held that the mandatory, functional equivalent of a life sentence was
unconstitutional pursuant to Miller:
A mandatory term-of-years sentence that cannot be served
in one lifetime has the same practical effect on a juvenile
defendant’s life as would an actual mandatory sentence of life
without parole—in either situation, the juvenile will die in prison.
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Miller makes clear that a juvenile may not be sentenced to a
mandatory, unsurvivable prison term without first considering in
mitigation his youth, immaturity, and potential for rehabilitation.
* * * Accordingly, we hold that sentencing a juvenile offender to a
mandatory term of years that is the functional equivalent of life
without the possibility of parole constitutes cruel and unusual
punishment in violation of the eighth amendment.
Reyes at ¶ 9.
{¶ 86} We agree with these other state high courts that have held that for
purposes of applying the Eighth Amendment protections discussed in Graham and
Miller, there is no distinction between life-without-parole sentences for juveniles
and term-of-years sentences that leave a juvenile offender without a meaningful
opportunity to demonstrate rehabilitation and growth leading to possible early
release within the juvenile offender’s expected lifespan.
{¶ 87} We note also that most of these cases from other state supreme courts
involved juveniles who had been convicted of multiple offenses. The defendants
in both Caballero and Henry were sentenced for committing multiple offenses, and
both courts held that the functional life sentences imposed on them violated the
Eighth Amendment pursuant to Graham. Caballero had been convicted of three
counts of attempted murder, Caballero, 55 Cal.4th at 265, 145 Cal.Rptr. 286, 282
P.3d 291, and Henry had been convicted of three counts of sexual battery with a
deadly weapon or physical force, one count of kidnapping with intent to commit a
felony (with a firearm), two counts of robbery, one count of carjacking, one count
of burglary of a dwelling, and one count of possession of 20 grams or less of
cannabis, Henry v. State, 82 So.3d 1084, 1085 (Fla.App.2012). Likewise, in Bear
Cloud, Null, Casiano, and Reyes, the courts held that the protections of Miller
applied in cases in which the defendants had been convicted of murder and of other
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offenses; Bear Cloud was sentenced for first-degree murder, aggravated burglary,
and conspiracy to commit aggravated burglary, Bear Cloud, 2014 WY 113, 334
P.3d 132, at ¶ 1, Null was sentenced for second-degree murder and first-degree
robbery, Null, 836 N.W.2d at 45, Casiano was convicted of felony murder,
attempted robbery, and conspiracy to commit robbery, Casiano, 317 Conn. at 55,
115 A.3d 1031, and Reyes was sentenced for first-degree murder and two counts
of attempted murder, Reyes, 2016 IL 119271, 63 N.E.3d 884, at ¶ 2.
Procedure
{¶ 88} Graham’s prohibition on sentences of life imprisonment without
parole for juvenile nonhomicide offenders also applies to prison sentences that are
the functional equivalent of life sentences. But is Moore procedurally able to gain
the protection of the Eighth Amendment at this stage of his proceedings? He asks
this court to overturn the court of appeals’ refusal to grant reconsideration of its
March 24, 2009 decision affirming his 112-year sentence. Graham was decided on
May 17, 2010. Moore filed his application for reconsideration on September 16,
2013.
{¶ 89} App.R. 26(A)(1) allows parties ten days to move an appellate court
for reconsideration of a decision: “Application for reconsideration of any cause or
motion submitted on appeal shall be made in writing no later than ten days after the
clerk has both mailed to the parties the judgment or order in question and made a
note on the docket of the mailing as required by App.R. 30(A).” But under App.R.
14(B), the appellate court may expand or contract any time period set forth in the
appellate rules, and the rule specifically allows a court to extend the time period for
seeking reconsideration “on a showing of extraordinary circumstances.” App.R.
14(B) reads:
For good cause shown, the court, upon motion, may enlarge
or reduce the time prescribed by these rules or by its order for doing
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any act, or may permit an act to be done after the expiration of the
prescribed time. * * * Enlargement of time to file an application for
reconsideration or for en banc consideration pursuant to App.R.
26(A) shall not be granted except on a showing of extraordinary
circumstances.
{¶ 90} Thus, the court below had the authority to grant Moore an extension
of time to file his application for reconsideration if he showed “extraordinary
circumstances.” Ohio appellate courts have granted applications for delayed
reconsideration well over a year after the issuance of the original decision, citing
subsequent decisions of this court as providing the required extraordinary
circumstances. See, e.g., State v. Finley, 1st Dist. Hamilton No. C-061052, 2010-
Ohio-5203, ¶ 6 (reconsideration granted over two years after original decision);
State v. Gandy, 1st Dist. Hamilton No. C-070152, 2010-Ohio-2873, ¶ 8
(reconsideration granted 20 months after original decision); Lyttle v. Ohio, 12th
Dist. Butler No. CA2010-04-089, 2012-Ohio-3042, 2012 WL 2520466, *1
(reconsideration granted over 18 months after original decision).
{¶ 91} The court below denied Moore’s application for reconsideration
based on its earlier decisions in Bunch, 7th Dist. Mahoning No. 06 MA 106, and
Barnette, 7th Dist. Mahoning No. 06 MA 135. The court cited identical reasons for
denying applications for reconsideration in Bunch and Barnette; both cases are
inapplicable here.
{¶ 92} First, the court in Bunch and Barnette relied in part on the three-year
lag time in both cases between the announcement of Graham and the filing of the
application for reconsideration in state court. In Bunch, the court noted that Bunch
had promptly raised Graham in his federal appeals but not in Ohio courts. The
court wrote, “Had the application and motion been filed more closely in time to the
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Graham decision it could support a finding of extraordinary circumstances.” Bunch
at 3.
{¶ 93} Moore, on the other hand, first attempted to raise Graham in Ohio
courts on the same day Graham was decided. He filed a notice of appeal from the
trial court’s April 20, 2010 nunc pro tunc sentencing entry on May 17, 2010, the
same day Graham was announced; in his merit brief—filed in December 2010 after
he had procured appointed counsel—he raised the issue that Graham prohibited his
lengthy sentence. That appeal was not dismissed until November 2011. Despite
the fact that the court dismissed the appeal for lack of a final, appealable order, the
court added in dicta that Moore’s Graham-based argument was “barred in this case
by the doctrine of res judicata” and “is one more properly raised in a petition for
postconviction relief.” Moore V, 7th Dist. Mahoning No. 10-MA-85, 2011-Ohio-
6220, at ¶ 33.
{¶ 94} So, unlike the appellants in Bunch and Barnette, Moore did attempt
to raise Graham in state court contemporaneously with its release but was
discouraged from pursuing relief on that basis in dicta by the court of appeals. Once
Moore obtained new counsel, however, in September 2013, he filed an application
for reconsideration raising Graham just over a month later.
{¶ 95} Even so, the delay in filing was the less significant reason cited by
the court for rejecting the applications for reconsideration in Bunch and Barnette.
The court in both cases wrote that the more important reason was that “when
appellate courts have found extraordinary circumstances based on binding
decisions from higher courts, they have done so when the higher court’s case is
directly on point,” Bunch at 3, citing State v. Lawson, 2013-Ohio-803, 984 N.E.2d
1126, ¶ 6 (10th Dist.), State v. Truitt, 1st Dist. Hamilton No. C-050188, 2011-Ohio-
1885, ¶ 3, and State v. Thomas, 1st Dist. Hamilton No. C-010724, 2009-Ohio-971,
¶ 5; Barnette at 3 (same). The court reasoned that because Graham and Miller were
not directly on point, those cases did not demonstrate any obvious error in the
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appellate court’s decision and, therefore, that the requisite finding of extraordinary
circumstances warranting the enlargement of the time for filing an application for
reconsideration was missing.
{¶ 96} For the reasons discussed above, we have established that Moore’s
case is controlled by Graham and that there is no meaningful distinction between
the two cases. A defendant convicted of crimes he committed as a juvenile cannot
at the outset be sentenced to a lifetime in prison—whether labeled “life in prison
without parole” or consisting of a term of years extending beyond the defendant’s
life expectancy—without having a meaningful opportunity to establish maturity
and rehabilitation justifying release.
{¶ 97} Generally, a new decision does not apply to convictions that were
final when the decision was announced. But “courts must give retroactive effect to
new substantive rules of constitutional law. Substantive rules include * * * ‘rules
prohibiting a certain category of punishment for a class of defendants because of
their status or offense.’ ” Montgomery, __ U.S. __, 136 S.Ct. at 728, 193 L.Ed.2d
599, quoting Penry v. Lynaugh, 492 U.S. 302, 330, 109 S.Ct. 2934, 106 L.Ed.2d
256 (1989). Graham prohibits life-without-parole sentences or their equivalents
for juveniles.
{¶ 98} In Montgomery, the court held that “when a new substantive rule of
constitutional law controls the outcome of a case, the Constitution requires state
collateral-review courts to give retroactive effect to that rule.” Id. at 729.
Specifically, Montgomery involved the application of the court’s decision in Miller
prohibiting the automatic imposition of a life-without-parole sentence on a
defendant who had committed a homicide as a juvenile. The court found that
“Miller announced a substantive rule of constitutional law.” Montgomery at 734.
In doing so, it recognized that “Miller is no less substantive than are Roper and
Graham.” Montgomery at 734.
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{¶ 99} This court has applied an abuse-of-discretion standard in reviewing
an appellate court’s decision regarding an application for reconsideration. Reichert
v. Ingersoll, 18 Ohio St.3d 220, 224, 480 N.E.2d 802 (1985). In this case, we hold
that the court of appeals abused its discretion in not granting Moore’s application
for reconsideration concerning his unconstitutional sentence. Extraordinary
circumstances warranted the request for delayed reconsideration—the on-point,
substantive, retroactive United States Supreme Court decision in Graham.
CONCLUSION
{¶ 100} We hold in this case that Graham’s categorical prohibition of
sentences of life imprisonment without the possibility of parole for juveniles who
commit nonhomicide crimes applies to juvenile nonhomicide offenders who are
sentenced to term-of-years sentences that exceed their life expectancies. The court
of appeals abused its discretion in failing to grant Moore’s application for
reconsideration. The 112-year sentence the trial court imposed on Moore violates
the Eighth Amendment’s prohibition against cruel and unusual punishments. We
reverse the judgment of the court of appeals and vacate Moore’s sentence, and we
remand the cause to the trial court for resentencing in conformity with Graham.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., and LANZINGER and O’NEILL, JJ., concur.
O’CONNOR, C.J., concurs, with an opinion.
LANZINGER, J., concurs, with an opinion.
KENNEDY, J., dissents, with an opinion joined by O’DONNELL, J.
FRENCH, J., dissents, with an opinion.
_________________
O’CONNOR, C.J., concurring.
{¶ 101} I fully concur in the majority opinion’s holding that Graham v.
Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), prohibits the
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imposition, in nonhomicide cases, of a sentence that exceeds a juvenile offender’s
life expectancy. I write separately to address the dissenting justices’ suggestion that
this cause is not properly before us and to explain why this appeal satisfies the
extraordinary-circumstances standard for granting an application for delayed
reconsideration.
ANALYSIS
{¶ 102} The first dissenting opinion would hold on both procedural and
substantive grounds that the appeal is meritless. The second dissenting opinion also
suggests that the cause is not properly before us but does not reach the merits of the
claims raised by appellant, Brandon Moore, even though the propriety of the
procedural analysis turns largely on the substantive analysis of whether
extraordinary circumstances warrant allowing an application for delayed
reconsideration. However framed, both dissenting opinions ultimately assert that
the Seventh District Court of Appeals in this case did not abuse its discretion in
denying Moore’s application because, at the time of that decision, there purportedly
was ample authority for the notion that Graham did not apply to lengthy term-of-
years sentences. But the authority on which the dissenting justices rely is less
compelling than the dissenting justices suggest.
The standard for granting an application for delayed reconsideration
{¶ 103} “ ‘App.R. 26 provides a mechanism by which a party may prevent
miscarriages of justice that could arise when an appellate court makes an obvious
error or renders an unsupportable decision under the law.’ ” Corporex Dev. &
Constr. Mgt., Inc. v. Shook, Inc., 10th Dist. No. 03AP-269, 2004-Ohio-2715, ¶ 2,
quoting State v. Owens, 112 Ohio App.3d 334, 336, 678 N.E.2d 956 (11th
Dist.1996).
{¶ 104} The plain language of App.R. 14(B) permits a court to enlarge the
time to reconsider a judgment under App.R. 26(A)(1) upon a showing of
extraordinary circumstances. Although the extraordinary-circumstances standard
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is a limited one, Ohio courts have recognized those circumstances in three
categories of cases.
{¶ 105} In the first category, the Seventh District has held that omissions in
records can constitute an extraordinary circumstance warranting delayed
reconsideration. See, e.g., Deutsche Bank Natl. Trust Co. v. Knox, 7th Dist. No.
09-BE-4, 2011-Ohio-421, ¶ 9. Accord Reichert v. Ingersoll, 18 Ohio St.3d 220,
222-223, 480 N.E.2d 802 (1985). Because this category of cases does not
encompass the present case, it is not discussed in this opinion.
{¶ 106} The second category of cases features the announcement of a new
rule of law that applies directly to a pending appeal, which is the basis for the
majority’s conclusion that the cause is properly before us. I agree that Ohio
appellate courts routinely recognize that extraordinary circumstances exist when
this court issues an opinion that is directly on point with the issue raised on appeal.
See, e.g., State v. Lawson, 2013-Ohio-803, 984 N.E.2d 1126, ¶ 6 (10th Dist.); Lyttle
v. Ohio, 12th Dist. Butler No. CA2010-04-089, 2012-Ohio-3042, ¶ 5; State v.
Cedeno, 192 Ohio App.3d 738, 743, 950 N.E.2d 582 (1st Dist.2011); State v. Truitt,
1st Dist. Hamilton No. C-050188, 2011-Ohio-1885, ¶ 3.
{¶ 107} The third category of cases in which an application for delayed
reconsideration may be granted consists of cases in which the question presented
in the application raises an issue of sufficient importance to warrant entertaining it
beyond the ten-day limit. See, e.g., Carroll v. Feiel, 1 Ohio App.3d 145, 145-146,
439 N.E.2d 962 (8th Dist.1981). Notably, the Seventh District, the appellate court
that denied Moore’s application, has recognized that this rule exists. State v. Boone,
114 Ohio App.3d 275, 277, 683 N.E.2d 67 (7th Dist.1996).
Graham is a decision of sufficient importance to warrant granting Moore’s
application for delayed reconsideration of his lengthy term-of-years sentence
{¶ 108} In this case, Moore received a 112-year aggregate sentence for
nonhomicide offenses that he committed when he was 15 years old. At sentencing,
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Judge Krichbaum opined that Moore could not be rehabilitated and baldly informed
Moore of the court’s intention to ensure that Moore would never be released from
confinement.
{¶ 109} Notwithstanding Moore’s significant crimes, such a penalty is
exactly what a majority of the United States Supreme Court agreed was
unconstitutional in Graham. But despite the significance of the Graham claim
raised by Moore, the court of appeals summarily dispensed with it:
We are unpersuaded by Moore’s arguments. For the reasons
articulated in State v. Bunch, 7th Dist. No. 06 MA 106, J.E. August
8, 2013 and State v. Barnette, 7th Dist. No. 06 MA 135, September
16, 2013, Appellant Brandon Moore’s Delayed Application for
Reconsideration is denied.
2013-Ohio-5868, ¶ 2.
{¶ 110} Consideration of youth in sentencing is no longer a subject of
political or jurisprudential debate; the high court has decided Miller v. Alabama, __
U.S. __, 132 S.Ct. 2455, 2468, 183 L.Ed.2d 407 (2012), Graham, and Roper v.
Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), and we may not
ignore those commands any more than the court of appeals or Judge Krichbaum
may do so.
{¶ 111} The gravity of the Supreme Court’s decision in Graham is apparent
from its holding that the Eighth Amendment categorically bars a sentence of life
without parole for juvenile nonhomicide offenders. Graham, 560 U.S. at 82, 130
S.Ct. 2011, 176 L.Ed.2d 825. The court not only compared life-without-parole
sentences for juveniles to the death penalty, id. at 69; see also Miller at 2463, but
also noted that life-without-parole sentences are “irrevocable,” Graham at 69. As
the court explained, a sentence of life without parole
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deprives the convict of the most basic liberties without giving hope
of restoration, except perhaps by executive clemency—the remote
possibility of which does not mitigate the harshness of the
sentence * * *. [T]his sentence “means denial of hope; it means that
good behavior and character improvement are immaterial; it means
that whatever the future might hold in store for the mind and spirit
of [the convict], he will remain in prison for the rest of his days.”
(Second brackets sic.) Id. at 69-70, quoting Naovarath v. State, 105 Nev. 525, 526,
779 P.2d 944 (1989).
{¶ 112} Judges must treat juveniles differently, no matter how horrific their
crimes may be. And different treatment of juveniles in nonhomicide cases requires
“some meaningful opportunity” to reenter society, id. at 75. The trial court’s
sentence in this case is irreconcilable with Graham, and the court of appeals’
summary denial of Moore’s application for delayed reconsideration is
irreconcilable with the extraordinary-circumstances standard applicable to App.R.
26(A). As Judge DeGenaro stated in her dissent from the court of appeals’ refusal
to consider Moore’s claim on its merits:
Because Moore has no other avenue to make this argument,
Moore’s delayed application for reconsideration should be granted.
App.R. 14(B) provides delayed reconsideration “pursuant to App.R.
26(A) shall not be granted except on a showing of extraordinary
circumstances.” That showing has been made here; namely, a
United States Supreme Court retroactive holding involving a
criminal constitutional issue. We would be considering an arguably
valid extension of a constitutional argument which was not available
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to Moore when his case was before the trial court, this Court and the
Ohio Supreme Court in either his direct or second appeal.
Significantly, the day Graham was announced, Moore filed his pro-
se notice of appeal in [State v. Moore, 7th Dist. No. 10-MA-85,
2011-Ohio-6220], arguing that his sentence was unconstitutional
pursuant to Graham; however the panel refused to address that
argument, suggesting in dicta the issue was barred by res judicata
and could be raised via post-conviction proceedings.
(Emphasis sic.) 2013-Ohio-5868, at ¶ 3 (DeGenaro, J., dissenting).
{¶ 113} Even assuming arguendo that “[r]elief under App.R. 14(B) is
subject to the court of appeals’ discretion,” dissenting opinion, French, J., at 3,
citing L.R. Patrick, Inc. v. Karlsberger & Assocs., Architects, Inc., 10th Dist.
Franklin No. 81AP-70, 1981 WL 3231, *1 (June 4, 1981), we are not compelled to
rubber-stamp the ruling of the court of appeals. And as explained below, the
authorities cited by the dissenting justices do not undermine the majority’s
conclusion that the appellate court abused its discretion in refusing to grant Moore’s
application for delayed reconsideration.
{¶ 114} Before proceeding, I note my agreement with the dissenting
justices that “abuse of discretion” in a criminal case means more than an error of
law or judgment and implies that the lower court’s attitude was unreasonable,
arbitrary, or unconscionable. See State v. Adams, 62 Ohio St.2d 151, 157, 404
N.E.2d 144 (1980), citing Steiner v. Custer, 137 Ohio St. 448, 31 N.E.2d 855(1940); see also Steiner at 451 (an abuse of discretion is “ ‘a view or action “that
no conscientious judge, acting intelligently, could honestly have taken” ’ ”),
quoting Long v. George, 296 Mass. 574, 579, 7 N.E.2d 149 (1937), quoting Davis
v. Boston Elevated Ry. Co., 235 Mass. 482, 502, 126 N.E. 841 (1920). But
“discretion” “ ‘means the equitable decision of what is just and proper under the
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circumstances,’ ” including the rights and interests of all parties, justice, and equity.
Long at 578, quoting Paquette v. Fall River, 278 Mass. 172, 174, 179 N.E. 588(1932), quoting The Styria v. Morgan, 186 U.S. 1, 9, 22 S.Ct. 731, 46 L.Ed. 1207(1902). And “[j]udicial discretion must be carefully—and cautiously—exercised
before this court will uphold an outright dismissal of a case on purely procedural
grounds.” Reichert, 18 Ohio St.3d at 222, 480 N.E.2d 802.
The dissents’ reliance on federal habeas law is improper
{¶ 115} Both dissents rely upon federal habeas decisions governed by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
2254(d). Dissenting opinion of French, J., at 6-7, citing Bunch v. Smith, 685 F.3d
546, 550 (6th Cir.2012) (Graham did not “clearly establish” that consecutive, fixed-
term sentences for juveniles are unconstitutional when they amount to “the practical
equivalent of life without parole”), and Goins v. Smith, N.D.Ohio No. 4:09-CV-
1551, 2012 WL 3023306, *6 (July 24, 2012), aff’d, 556 Fed.Appx. 434 (6th
Cir.2014); dissenting opinion of Kennedy, J., at 6-8, citing Bunch v. Smith at 550-
552.
{¶ 116} But a federal court hearing a habeas case must judge the merits of
a prisoner’s claim by applying the “ ‘highly deferential’ ” standard imposed by
AEDPA. Harrington v. Richter, 562 U.S. 86, 105, 131 S.Ct. 770, 178 L.Ed.2d 624(2011), quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). That standards forbids a federal court from granting habeas
relief in a collateral attack on a state court’s judgment unless that decision was
“contrary to” clearly established federal law, 28 U.S.C. 2254(d)(1), i.e., one in
which “the state court applie[d] a rule different from the governing law set forth
[by the Supreme Court] or * * * decide[d] a case differently than [the Supreme
Court] has done on a set of materially indistinguishable facts.” Bell v. Cone, 535
U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002), citing Williams v. Taylor,
529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Indeed, in federal
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habeas review, reasonable, good-faith interpretations of federal constitutional
precedent by state courts will stand even if subsequent federal constitutional
decisions render them incorrect. See Lockhart v. Fretwell, 506 U.S. 364, 372-373,
113 S.Ct. 838, 122 L.Ed.2d 180 (1993). See also Harrington at 102 (“If this
[AEDPA] standard is difficult to meet, that is because it was meant to be”); Bousley
v. United States, 523 U.S. 614, 620, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (noting
that a principal function of habeas corpus is “ ‘ “to assure that no man has been
incarcerated under a procedure which creates an impermissibly large risk that the
innocent will be convicted” ’ ” and that a new rule of law does not apply on habeas
review unless they are of such a nature that “without [it] the likelihood of an
accurate conviction is seriously diminished” [brackets sic]), quoting Teague v.
Lane, 489 U.S. 288, 312-313, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality
opinion), quoting Desist v. United States, 394 U.S. 244, 262, 89 S.Ct. 1030, 22
L.Ed.2d 248 (1969).
{¶ 117} Because the standard employed in AEDPA is so highly deferential
to state courts, it is virtually impossible for a federal court sitting in habeas to give
relief to a juvenile. Budder v. Addison, 169 F.Supp.3d 1213 (W.D.Okla.2016),
appeal filed Apr. 6, 2016, is illustrative.
{¶ 118} In Budder, a 16-year-old committed horrific crimes: he cut the
throat of another juvenile and stabbed her repeatedly on her stomach, arms, and
legs, and after she dove from a moving car to escape him, he raped and sexually
assaulted her. The trial judge sentenced him to two terms of life imprisonment
without parole for the rapes, to life imprisonment for assault and battery with a
deadly weapon, and to 20 years of imprisonment for sodomy, with all sentences to
be served consecutively. The state appellate court reversed in part in light of
Graham, which was decided days after the juvenile’s sentencing, and modified the
sentences for the rape convictions to life imprisonment with the possibility of
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parole. But even after that modification, the juvenile would not be eligible for
parole until he had served almost 132 years in prison. Id. at 1215.
{¶ 119} Although the federal habeas court recognized that the modified
aggregate sentence remained the functional equivalent of life without parole, it
nevertheless found that habeas relief was not warranted. As it explained, “the court
is confronting the issue of the constitutionality of [the] petitioner’s sentences on
habeas review, constrained by AEDPA’s ‘highly deferential standard * * * [which]
demands that state-court decisions be given the benefit of the doubt.’ ” (Brackets
sic.) Id. at 1220, quoting Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357,
154 L.Ed.2d 279 (2002). Applying the AEDPA standard, the court concluded that
the petitioner’s sentences did not violate clearly established law. Id.{¶ 120} If a federal court considering an AEDPA-controlled habeas petition
cannot declare that three consecutive life sentences imposed on a juvenile who
would not be eligible for parole until he had served nearly 132 years in prison
violates the Eighth Amendment under Graham, there can be no doubt how “highly
deferential” the AEDPA standard is.
{¶ 121} Federal habeas jurisdiction serves an important purpose. But we
must remember that federal habeas review is driven at least as much by principles
of finality, comity, and respect for the sovereignty of state courts as it is driven by
principles of constitutional correctness. Harrington, 562 U.S. at 103, 131 S.Ct.
770, 178 L.Ed.2d 624; Painter, O’Sullivan v. Boerckel and the Default of State
Prisoners’ Federal Claims: Comity or Tragedy?, 78 N.C.L.Rev. 1604, 1604-1606
(2000). See also Bator, Finality in Criminal Law and Federal Habeas Corpus for
State Prisoners, 76 Harv.L.Rev. 441, 442-444 (1963). And but for principles of
finality, the rationales for AEDPA’s highly deferential standard are not ones that
are applicable to the consideration of App.R. 26(A)(1) applications for
reconsideration, nor have we previously suggested that they were.
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{¶ 122} I am not oblivious to the importance of finality in criminal
decisions. “The importance of finality in any justice system, including the criminal
justice system, cannot be understated.” Witt v. State, 387 So.2d 922, 925
(Fla.1980). But the benefits of finality must be balanced with principles of fairness.
Ferguson v. State, 789 So.2d 306, 312 (Fla.2001). As the Florida Supreme Court
has held,
The doctrine of finality should be abridged only when a more
compelling objective appears, such as ensuring fairness and
uniformity in individual adjudications. Thus, society recognizes
that a sweeping change of law can so drastically alter the substantive
or procedural underpinnings of a final conviction and sentence that
the machinery of post-conviction relief is necessary to avoid
individual instances of obvious injustice. Considerations of fairness
and uniformity make it very “difficult to justify depriving a person
of his liberty or his life, under process no longer considered
acceptable and no longer applied to indistinguishable cases.”
Witt at 925, quoting American Bar Association, Standards Relating to Post-
Conviction Remedies 37 (1968).
{¶ 123} This is particularly true when, as occurred in Graham, a court
announces a new rule of law that applies retroactively.1 See, e.g., Moore v. Biter,
1
The Supreme Court has explained the framework to be used in determining whether a rule
announced should be applied retroactively to judgments in criminal cases that are already final on
direct review, noting that although “a new rule is generally applicable only to cases that are still on
direct review,” there are two exceptions: “A new rule applies retroactively in a collateral proceeding
only if (1) the rule is substantive or (2) the rule is a “ ‘ “watershed rul[e] of criminal procedure”
implicating the fundamental fairness and accuracy of the criminal proceeding.’ ” Whorton v.
Bockting, 549 U.S. 406, 416, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007), quoting Saffle v. Parks, 494
U.S. 484, 495, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990), quoting Teague, 489 U.S. at 311, 109 S.Ct.
1060, 103 L.Ed.2d 334.
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725 F.3d 1184, 1190-1191 (9th Cir.2013); In re Sparks, 657 F.3d 258, 260 (5th Cir.
2011); Loggins v. Thomas, 654 F.3d 1204, 1221 (11th Cir.2011). See also In re
Williams, 759 F.3d 66, 70 (D.C.Cir.2014) (permitting a prisoner to file a successive
habeas petition based on Graham claims because there was a sufficient showing
that Graham applies retroactively); State v. Callaway, 658 So.2d 983, 987
(Fla.1995) (“The concern for fairness and uniformity in individual cases outweighs
any adverse impact that retroactive application of the rule might have on decisional
finality”).
{¶ 124} We who sit at the pinnacle of a state judiciary should be reluctant
to adopt the limited standards of federal habeas jurisdiction as a proper proxy for
the rigorous constitutional analysis that claims like Moore’s deserve. See State v.
Ronquillo, 190 Wash.App. 765, 361 P.3d 779, ¶ 24 (2015) (describing Bunch v.
Smith, 685 F.3d 546, as “a habeas matter[ ] [that] is unhelpful because of the
restricted standard of review”); see also Danforth v. Minnesota, 552 U.S. 264, 280-
281, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008) (describing Teague’s rule of
nonretroactivity as one “fashioned to achieve the goals of federal habeas while
minimizing federal intrusion into state criminal proceedings” and “intended to limit
the authority of federal courts to overturn state convictions—not to limit a state
court’s authority to grant relief for violations of new rules of constitutional law
when reviewing its own State’s convictions”). Indeed, even courts that refuse to
apply Graham to lengthy term-of-years aggregate sentences question the propriety
of using federal habeas cases to do so. See State ex rel. Morgan v. Louisiana, __
So.3d __, 2016 WL 6125428 (La. 2016), fn.8. The constitutional propriety of a
112-year aggregate sentence imposed on a defendant who committed the
underlying crimes as a juvenile is a question that should be answered carefully,
based on federal and state constitutional precedent rather than a rigid federal
statutory scheme that has no direct application to the question before us.
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The dissents’ reliance on state court decisions is an unpersuasive, post hoc
rationalization for the court of appeals’ abuse of discretion in refusing to
consider Moore’s claims
{¶ 125} I turn now to the nonhabeas decisions cited by the dissenting
justices. That authority is sparse and suspect.
{¶ 126} Both dissenting justices suggest that when the court of appeals
denied Moore’s application for delayed reconsideration, numerous courts had held
that Graham is inapplicable to lengthy term-of-years sentences. But the appellate
court did not cite a single case that the dissenting justices rely upon here to support
the appellate court’s decision. See 2013-Ohio-5868. Moreover, the decisions cited
by the dissenting justices do not support the court of appeals’ refusal to consider
Moore’s Graham claim because some of those decisions were not extant at the
time2 and the ones that did exist are poorly reasoned attempts to avoid the holding
in Graham.
{¶ 127} Justice French relies on two state court decisions cited in State v.
Bunch, 7th Dist. Mahoning No. 06 MA 106 (Aug. 8, 2013), and State v. Barnette,
7th Dist. Mahoning No. 06 MA 135 (Sept. 16, 2013) (the two judgment entries
cited in the court of appeals’ opinion summarily denying Moore’s application for
delayed reconsideration)—State v. Kasic, 228 Ariz. 228, 265 P.3d 410(Ariz.App.2011), and Henry v. State, 82 So.3d 1084, 1089 (Fla.App.2012),
quashed, 175 So.3d 675 (Fla.2015). Justice Kennedy includes Kasic in her
analysis, which is more extensive but ultimately no more persuasive than Justice
French’s.
2
Justice Kennedy includes an unpublished state intermediate-appellate court decision, State v.
Merritt, Tenn.Crim.App. No. M2012-00829-CCA-R3CD, 2013 WL 6505145 (Dec. 10, 2013), and
Vasquez v. Commonwealth, 291 Va. 232, 781 S.E.2d 920 (2016), as justifications for the court of
appeals’ denial of Moore’s application for delayed reconsideration. But neither decision had been
published at the time that the court of appeals announced its decision in this case and thus cannot
support the court of appeals’ denial of Moore’s application. Accordingly, I do not consider them in
my analysis.
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{¶ 128} Kasic is wholly distinguishable from the present case. The
defendant in Kasic committed a series of arsons and related crimes that spanned
nearly a year and included crimes he committed as an adult. See Kasic at ¶ 11 and
12. There is no reason to believe that Graham has any application to defendants
who commit crimes after they reach the age of majority. See Roper v. Simmons,
543 U.S. 551, 574, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (“The age of 18 is the
point where society draws the line for many purposes between childhood and
adulthood. It is, we conclude, the age at which the line for death eligibility ought
to rest”); State v. Bates, 464 S.W.3d 257, 268 (Mo.App.2015) (holding that Miller,
which holds that the imposition of mandatory sentences of life without parole on
defendants who committed their crimes while under the age of 18 violates the
Eighth Amendment’s prohibition on “cruel and unusual punishments,” is applicable
only to juveniles and not to those who commit their crimes after the age of 18
years); Humphrey v. Stewart, No. 2:15-cv-12638, 2015 WL 4967152 (E.D.Mich.
Aug. 20, 2015) (“Neither Graham nor Miller have been extended to adults
offenders”).
{¶ 129} Henry, the other state court decision cited in Justice French’s
dissent, is a Florida intermediate-appellate court decision that was pending on
appeal at the time the Seventh District cited it in Bunch and Barnette. See Henry v.
State, 107 So.3d 405 (Fla.2012) (announcing that the court had accepted
jurisdiction of the cause).
{¶ 130} More importantly, it was subsequently quashed—unanimously—
by the Florida Supreme Court. Henry v. State, 175 So.3d 675 (Fla.2015). In so
doing, the Florida high court unequivocally concluded that Graham applies to
juveniles who are sentenced to the functional equivalent of life without parole.
Henry at 679-680. In language with direct application to Judge Krichbaum’s stated
intention in sentencing Moore, it held, “Graham prohibits the state trial courts from
sentencing juvenile nonhomicide offenders to prison terms that ensure these
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January Term, 2016
offenders will be imprisoned without obtaining a meaningful opportunity to obtain
future early release during their natural lives based on their demonstrated maturity
and rehabilitation.” Henry at 680. It then reiterated,
In light of the United States Supreme Court’s long-held and
consistent view that juveniles are different—with respect to prison
sentences that are lawfully imposable on adults convicted for the
same criminal offenses—we conclude that, when tried as an adult,
the specific sentence that a juvenile nonhomicide offender receives
for committing a given offense is not dispositive as to whether the
prohibition against cruel and unusual punishment is implicated.
Thus, we believe that the Graham Court had no intention of limiting
its new categorical rule to sentences denominated under the
exclusive term of “life in prison.” Instead, we have determined that
Graham applies to ensure that juvenile nonhomicide offenders will
not be sentenced to terms of imprisonment without affording them
a meaningful opportunity for early release based on a demonstration
of maturity and rehabilitation. See Graham, 560 U.S. at 75, 130
S.Ct. 2011 [176 L.Ed.2d 825].
In light of Graham, and other Supreme Court precedent, we
conclude that the Eighth Amendment will not tolerate prison
sentences that lack a review mechanism for evaluating this special
class of offenders for demonstrable maturity and reform in the future
because any term of imprisonment for a juvenile is qualitatively
different than a comparable period of incarceration is for an adult.
Henry at 680.
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{¶ 131} Decisions like Kasic, Henry, Bunch, and State v. Brown, 118 So.3d
332 (La.2013), are unpersuasive for at least two reasons.
{¶ 132} First, as the Nevada Supreme Court has recognized, these decisions
ignore that the United States Supreme Court did nothing in Graham to specifically
limit its holding to offenders who were convicted of a single nonhomicide offense.
State v. Boston, 363 P.3d 453, 457 (Nev.2015). And Miller, which was decided
after Graham but before the Seventh District’s denial of Moore’s application for
delayed reconsideration, involved a juvenile offender who had been convicted of
multiple crimes, see 132 S.Ct. at 2461, 183 L.Ed.2d 407, but the Supreme Court
offered no indication in Miller that the fact that the juvenile had been convicted of
multiple crimes affected its analysis.
{¶ 133} Second, these decisions ignore the foundational rationales for the
high court’s prohibition on state court sentences, imposed at the outset, that forever
prohibit consideration of a juvenile offender’s ability to reenter society. “[T]he
teachings of the Roper/Graham/Miller trilogy require sentencing courts to provide
an individualized sentencing hearing to weigh the factors for determining a
juvenile’s ‘diminished culpability and greater prospects for reform’ when, as here,
the aggregate sentences result in the functional equivalent of life without parole.”
Bear Cloud v. State, 2014 WY 113, 334 P.3d 132, ¶ 33, quoting Miller at 2464.
Whether the principles of Graham apply in a given case should not turn “on the
niceties of epidemiology, genetic analysis, or actuarial sciences in determining
precise mortality dates” but, rather, on the Supreme Court’s repeated emphasis “in
Roper, Graham, and Miller of the lessened culpability of juvenile offenders, how
difficult it is to determine which juvenile offender is one of the very few that is
irredeemable, and the importance of a ‘meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation.’ ” State v. Null, 836 N.W.2d
41, 71-72 (Iowa 2013), quoting Graham, 560 U.S. at 75, 130 S.Ct. 2011, 176
L.Ed.2d 825.
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{¶ 134} Lastly, I note that to the extent Justice Kennedy believes that
Graham is distinguishable from this appeal, see dissenting opinion of Kennedy, J.,
at 4-5, her sole authority is Justice Alito’s dissenting opinion in Graham—a
summary analysis that no other justice joined, see Graham at 124-125 (Alito, J.,
dissenting). But a dissent is just that: “[a] disagreement with a majority opinion,”
Black’s Law Dictionary 574 (10th Ed.2014), without force of law or precedential
value. Even if Justice Alito’s dissenting opinion had persuasive value, it is not
binding on this court. We must adhere to the majority opinions of the United States
Supreme Court on federal constitutional matters because it is the ultimate arbiter of
the federal Constitution, Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 7 L.Ed.2d
663 (1962), just as our trial and intermediate appellate courts must adhere to our
majority opinions because we are the ultimate arbiters of Ohio law, Addis v. Howell,
137 Ohio App.3d 54, 57-58, 738 N.E.2d 37 (2d Dist.2000); accord Mullaney v.
Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975).
CONCLUSION
{¶ 135} Graham is one of the most momentous decisions in American
juvenile law. Given its significance, the stated intention of the sentencing judge in
this case, the de facto life sentence he imposed, and the curtness with which the
court of appeals denied Moore’s application to reconsider his sentence in light of
Graham, I conclude that the appellate court abused its discretion in refusing to
consider Moore’s claim. The court was not bound to accept his arguments, but it
was bound to consider them more thoughtfully after allowing the application for
delayed reconsideration.
{¶ 136} I concur fully in the majority opinion, which addresses the
significant constitutional question that is properly before us and which holds that
the court of appeals abused its discretion in failing to recognize that extraordinary
circumstances were presented by Moore’s application, i.e., the unconstitutional
imposition of a lengthy term-of-years sentence on a juvenile offender.
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_________________
LANZINGER, J., concurring.
{¶ 137} I concur in the majority’s holding that an aggregate prison term for
multiple offenses that extends beyond the defendant’s natural lifespan is a life-
without-parole sentence by another name. Therefore, Graham v. Florida, 560 U.S.
48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), which forbids imposition of life-
without-parole sentences for juvenile nonhomicide offenders, applies to this case.
I also agree that allowing review of the 112-year sentence of appellant, Brandon
Moore, only after 77 years when he is 92 does not provide the “meaningful
opportunity to obtain release” that Graham requires, id. at 75.
{¶ 138} But I write separately due to concern that in simply remanding for
“resentencing in conformity with Graham,” majority opinion at ¶ 100, we leave
unaddressed the problem of when the “meaningful opportunity” would take place.
While we hold that 77 years is too long to wait, how exactly does the trial court
follow our instruction and resentence Moore? What is a constitutional sentence,
and how is it arrived at? We have chosen not to say.
{¶ 139} Unfortunately, no statute is on point and, in fact, Ohio felony-
sentencing law now seems to encourage the longest prison terms for multiple
offenses as there is no limit on the number of consecutive sentences a trial court
may impose once the trial court makes any of the findings required by R.C.
2929.14(C)(4). We upheld against an Eighth Amendment attack the imposition of
maximum, consecutive sentences for an aggregate term of 134 years for the
nonhomicide offenses of a 24-year-old in State v. Hairston, 118 Ohio St.3d 289,
2008-Ohio-2338, 888 N.E.2d 1073. Just as in Moore’s case, Hairston received
separate terms for firearm specifications as well as the longest term within the
authorized range for each individual offense, all to be served consecutively. Id. at
¶ 9. In my separate opinion in Hairston, the General Assembly was asked to
consider restoring guidelines to establish when consecutive sentences are
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appropriate so as to discourage the routine “max and stack” of prison terms in
multiple-count indictments. Id. at ¶ 28-33 (Lanzinger, concurring). Although it
subsequently enacted R.C. 2929.14(C)(4), as part of 2011 Am.Sub.H.B. No. 86,
effective September 30, 2011, to require trial courts to make certain statutory
findings before imposing consecutive sentences, the General Assembly did not
place any limit on the length of these aggregate sentences. Because the General
Assembly has yet to address “max and stack” sentencing, it is unlikely to quickly
enact a new statute to govern the judicial release of offenders who committed their
offenses while juveniles.
{¶ 140} In the absence of specific statutory authority then, on remand in this
case, the trial court must determine at what point in his sentence Moore should be
allowed the chance to demonstrate his maturity and rehabilitation to potentially
obtain an earlier release from custody. The court may not just provide a review
date for parole or judicial release in the sentencing entry as it must still follow
current law.
{¶ 141} I believe the existing judicial-release statute can help the court in
choosing a sentence that will satisfy Graham even though the statute itself does not
mention the specific situation before us. Judicial release is governed by R.C.
2929.20. Those eligible are defined in R.C. 2929.20(A), and unless certain offenses
have been committed, none of which were committed in Moore’s case, the length
of the nonmandatory-prison term determines the time for application. See R.C.
2929.20(C). Moore’s aggregate 112-year prison sentence consists of 12 years of
mandatory time for four, three-year gun specifications, with the remainder of his
sentence being ten maximum prison terms of ten years each for first-degree
felonies, see former R.C. 2929.14(A)(1), Am.Sub.S.B. No. 2, 146 Ohio Laws, Part
IV, 7136, 7464 (providing for maximum ten-year sentence for first-degree felonies
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committed by Moore at time of his resentencing).3 As the record shows, the trial
judge intended to and did impose the harshest penalty possible by imposing all the
felony terms consecutively: “[I]t is the intention of this court that you should never
be released from the penitentiary.”
{¶ 142} On resentencing, however, the trial court must craft a sentence that
will allow Moore a meaningful opportunity to obtain judicial release before he is
92. Because mandatory time must be served without reduction, the court must
resentence Moore the same way on the four firearm specifications for at least 12
years of mandatory and consecutive time. The rest of his sentence is subject to the
court’s modification. It must be emphasized again that allowing Moore an earlier
opportunity to apply for judicial release does not guarantee the release. It allows
him the chance to persuade the judge that he need not be in prison for the rest of his
natural life. The timing of eligibility will depend on the court’s sentencing decision.
{¶ 143} I suggest that to remain in accord with the sentencing statutes, the
trial court may either reduce the maximum penalties on some or all of the
underlying ten felonies or may decide to impose some or all of them concurrently
rather than consecutively. To illustrate, if the court were to grant minimum
sentences for all ten underlying felonies, Moore would be sentenced to 12 plus 30
years for a stated prison term of 42 years. See R.C. 2929.14(A)(1) (providing for
three-year minimum term for first-degree felonies committed by Moore). Under
the judicial-release statute, this would mean that he would have an opportunity to
apply for judicial release after serving 21 years, when he would be 36 years old.
See R.C. 2929.20(C)(5) (if the aggregated nonmandatory term or terms is more than
ten years, the earliest opportunity is one-half of the stated prison term).
Alternatively, the court could impose concurrent sentences for some or all of the
first-degree felonies. For example, Moore was found guilty of three rapes and three
3
Moore was also sentenced to a six-month term for aggravated menacing to be served concurrently
with the felony sentences.
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conspiracies to commit rape. If all these sentences remained maximum terms but
were made concurrent, the prison term for these six offenses would be 10 years
instead of 60, and without any other modification, would allow Moore to apply for
judicial release at age 46 after serving 31 years (one-half of the stated prison term
of 62 years).
{¶ 144} These are just two examples of ways in which the trial court at
resentencing can allow Moore’s eligibility for judicial release before the passage of
77 years.
{¶ 145} Of course, the General Assembly could choose an entirely new
method to ensure that Graham’s requirements are followed by enacting specific
time limits for one who was a juvenile at the time of the offense to have a
meaningful opportunity to obtain release. My suggestions are offered only as a
temporary approach to implementing this court’s instructions upon remand.
_________________
KENNEDY, J., dissenting.
{¶ 146} Because the court of appeals was without authority to consider the
motion for delayed reconsideration and because Graham v. Florida, 560 U.S. 48,
130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), does not extend to a juvenile offender
sentenced to consecutive, fixed prison terms for multiple nonhomicide offenses, I
dissent. I would affirm the judgment of the court of appeals.
{¶ 147} While I agree with the majority’s statement of the facts and
procedural history of this case, it is important to emphasize several dates and court
decisions.
{¶ 148} Moore was convicted in 2002. He appealed his convictions several
times, but on March 24, 2009, the court of appeals issued a judgment that affirmed
his resentencing. State v. Moore, 7th Dist. Mahoning No. 08 MA 20, 2009-Ohio-
1505 (“Moore III”). Moore did not appeal that judgment. On September 16, 2013,
approximately four years after his convictions became final and nearly three years
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after Graham was decided, Moore filed a motion for delayed reconsideration of
Moore III for the purpose of arguing that Graham applied to his sentence.
I. Delayed Reconsideration of Moore III
{¶ 149} An appellate court’s decision regarding an application for
reconsideration of its judgment is reviewed under an abuse-of-discretion standard.
Reichert v. Ingersoll, 18 Ohio St.3d 220, 222, 480 N.E.2d 802 (1985). An “ ‘ “abuse
of discretion” connotes more than an error of law or of judgment; it implies that the
court’s attitude is unreasonable, arbitrary or unconscionable.’ ” State ex rel.
Associated Builders & Contrs. of Cent. Ohio v. Franklin Cty. Bd. of Commrs., 125
Ohio St.3d 112, 2010-Ohio-1199, 926 N.E.2d 600, ¶ 43 (Pfeifer, J., dissenting),
quoting State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶ 150} “Courts of appeal[s] have jurisdiction to reconsider their
judgments on a timely motion filed pursuant to App.R. 26 until an appeal as of right
is filed in this court, or this court rules on a motion to certify the record.” State ex
rel. LTV Steel Co. v. Gwin, 64 Ohio St.3d 245, 249, 594 N.E.2d 616 (1992), citing
State v. Murphy, 49 Ohio St.3d 293, 551 N.E.2d 1292 (1990), and Cincinnati v.
Alcorn, 122 Ohio St. 294, 171 N.E. 330 (1930). And “by virtue of the jurisdiction
conferred by Section 3(B), Article IV, Ohio Constitution, courts of appeals also
have inherent authority, in the furtherance of justice, to reconsider their judgments
sua sponte.” LTV Steel at 249, citing Tuck v. Chapple, 114 Ohio St. 155, 151 N.E.
48 (1926).
{¶ 151} However, under Article IV, Section 3(A)(3) of the Ohio
Constitution, judgments of the courts of appeals “are final unless appealed as of
right or by a request for [the Supreme Court’s] discretionary review pursuant to
Section 2(B)(2), Article IV, Ohio Constitution.” LTV Steel at 249. “[I]f no such
appeal is filed, the judgment is binding and no longer subject to the court of appeals’
jurisdiction to reconsider.” Id. at 249-250, citing Wigton v. Lavender, 9 Ohio St.3d
40, 43, 457 N.E.2d 1172 (1984).
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{¶ 152} Under App.R. 26(A)(1), a party may seek reconsideration no later
than ten days after the clerk of courts has mailed the judgment or order to the
parties. However, applying App.R. 14(B), courts of appeals have held that upon
“ ‘a showing of extraordinary circumstances,’ ” they may accept an application for
reconsideration beyond the ten-day limit. (Emphasis added.) E.g., Rice v. Rice,
7th Dist. Columbiana No. 2001-CO-28, 2002-Ohio-5032, ¶ 2, quoting App.R.
14(B). But under LTV Steel, no court of appeals can reconsider its judgment if the
time for appealing that judgment to this court has expired and no appeal was filed.
{¶ 153} On March 24, 2009, the court of appeals affirmed the trial court’s
resentencing of Moore for his 2002 convictions. Under LTV Steel, the court of
appeals had jurisdiction to reconsider its judgment in Moore III until Moore
appealed that judgment to this court or the 45-day appeal period expired. Moore
did not appeal Moore III and did not file his application for reconsideration until
September 16, 2013, more than four years after Moore III was decided and
approximately three years after Graham was decided. Therefore, the court of
appeals lacked authority to reconsider Moore III. Accordingly, the court of appeals
did not abuse its discretion in denying Moore’s application for reconsideration.
II. Graham Is Distinguishable
{¶ 154} It is important to understand what the United States Supreme Court
decided and what it did not decide in Graham, 560 U.S. 48, 130 S.Ct. 2011, 176
L.Ed.2d 825. In Graham, the juvenile defendant was found guilty of armed
burglary and attempted armed robbery and ultimately sentenced to life
imprisonment for the armed burglary and 15 years for the attempted armed robbery.
Because Florida had abolished its parole system, Graham’s life sentence was a
sentence for life without parole. Id. at 57.
{¶ 155} The court in Graham did not decide whether the imposition of
consecutive, fixed-term prison sentences for multiple nonhomicide offenses that
result in a lengthy aggregate sentence violate the Eighth Amendment. As pointed
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out in Justice Alito’s dissent in the case: “[Graham] holds only that ‘for a juvenile
offender who did not commit homicide the Eighth Amendment forbids the sentence
of life without parole.’ * * * Nothing in the Court’s opinion affects the imposition
of a sentence to a term of years without the possibility of parole.” (Emphasis sic.)
Id. at 124 (Alito, J., dissenting), quoting id. at 74.
III. An Invitation to Extend Graham Was Denied
{¶ 156} One of Moore’s codefendants, Chaz Bunch, was convicted of
aggravated robbery, three counts of rape, three counts of complicity to commit rape,
kidnapping, conspiracy to commit aggravated robbery—all with firearm
specifications—and aggravated menacing. State v. Bunch, 7th Dist. Mahoning No.
02 CA 196, 2005-Ohio-3309. Similar to the trial judge in Moore’s case, the trial
judge who sentenced Bunch imposed maximum, consecutive sentences on each
offense, except for the menacing charge, which resulted in an aggregate 115-year
prison term. The court of appeals affirmed Bunch’s convictions (except for his
conspiracy conviction) but remanded for resentencing, resulting in a new aggregate
sentence of 89 years in prison. The court of appeals affirmed the new sentence,
State v. Bunch, 7th Dist. Mahoning No. 06MA 106, 2007-Ohio-7211, and we
denied Bunch’s discretionary appeal, State v. Bunch, 118 Ohio St.3d 1410, 2008-
Ohio-2340, 886 N.E.2d 872.
{¶ 157} Thereafter, Bunch filed a petition for a writ of habeas corpus in
federal district court, alleging that his 89-year sentence was cruel and unusual
punishment in violation of the Eighth Amendment. Bunch v. Smith, N.D.Ohio No.
1:09 CV 901, 2010 WL 750116 (Mar. 2, 2010). Graham was pending in the
Supreme Court at the time, but the federal district court declined to stay
consideration of Bunch’s petition, finding Graham distinguishable because
Graham involved a life sentence without the possibility of parole. Id. at *2.
Consequently, the court dismissed Bunch’s petition. Id. at *3.
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{¶ 158} Thereafter, Bunch appealed to the Sixth Circuit Court of Appeals.
Bunch v. Smith, 685 F.3d 546 (6th Cir.2012). While his appeal was pending, the
Supreme Court decided Graham.
{¶ 159} A writ of habeas corpus will issue only if the holding at issue is
“ ‘contrary to, or involve[s] an unreasonable application of, clearly established
Federal law.’ ” Greene v. Fischer, __ U.S. __, 132 S.Ct. 38, 45, 181 L.Ed.2d 336(2011), quoting 28 U.S.C. 2254(d)(1). “[C]learly established Federal Law” means
the law that existed at the time of “the last state-court adjudication on the merits.”
Id.{¶ 160} Even though Graham was not decided until after Bunch had
exhausted his state appeals, the Sixth Circuit nevertheless determined that an
argument could be made that Graham applies retroactively on collateral review
under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).
Bunch v. Smith at 550. However, the court determined that it did not need to address
that “threshold question” because even if the court assumed that Graham did apply
retroactively, “[it] is not clearly applicable to [Bunch].” Bunch v. Smith at 550.
The Sixth Circuit’s reasoning in reaching this decision is persuasive support for the
conclusion that Graham does not extend to Moore’s case.
{¶ 161} The Sixth Circuit recognized that while both cases involved
juveniles who committed nonhomicide offenses, Graham involved a sentence of
life in prison while Bunch’s case involved “consecutive, fixed-term sentences—the
longest of which was 10 years—for committing multiple nonhomicide offenses.”
Bunch v. Smith, 685 F.3d at 551. The court observed that Graham “made it clear
that [it] ‘concerns only those juvenile offenders sentenced to life without
parole solely for a nonhomicide offense.’ ” (Emphasis sic.) Bunch v. Smith at 551,
quoting Graham, 560 U.S. at 63, 130 S.Ct. 2011, 176 L.Ed.2d 825. The Sixth
Circuit pointed out that Graham’s analysis confirms this limitation by “not
encompass[ing] consecutive fixed-term sentences”: Graham “did not analyze
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sentencing laws or actual sentencing practices regarding consecutive, fixed-term
sentences for juvenile nonhomicide offenders.” Bunch v. Smith at 551-552. The
Sixth Circuit added, “ ‘If the [United States] Supreme Court has more in mind, it
will have to say what that is.’ ” Id. at 552, quoting Henry v. State, 82 So.3d 1084,
1089 (Fla.App.2012), quashed, 175 So.3d 675 (Fla.2015).
{¶ 162} Bunch appealed to the United States Supreme Court, which denied
certiorari. Bunch v. Bobby, __ U.S. __, 133 S.Ct. 1996, 185 L.Ed.2d 865 (2013).
IV. Other Jurisdictions Recognize that Graham’s Holding Is Limited
{¶ 163} While the majority points to courts in some jurisdictions that have
extended Graham to cases involving consecutive, fixed-term sentences for multiple
nonhomicide offenses, courts in other jurisdictions have not done so. The
Louisiana Supreme Court has held that Graham does not apply to a juvenile
offender who has been sentenced to multiple sentences that, when aggregated,
result in a lengthy term-of-years sentence. And courts in Tennessee, Arizona, and
Virginia have all recognized that Graham’s holding is limited to cases in which the
defendant received an actual life sentence without the possibility of parole for a
nonhomicide offense committed while a juvenile.
A. Louisiana
{¶ 164} The majority cites State ex rel. Morgan v. State, __So.3d__, 2016
WL 6125428 (La.2016), a Louisiana Supreme Court decision, in support of its
holding that Graham applies to Moore’s sentence. As the majority asserts, in
Morgan, the court held that “the categorical rule in Graham applies to the
defendant’s 99-year sentence without parole insofar as it is the functional
equivalent of a life sentence and denies him a meaningful opportunity for release,
to which he is entitled.” Id. at *8. However, noting that Morgan was sentenced to
a single 99-year term, the court distinguished the case from State v. Brown, 118
So.3d 332 (La.2013), in which it had addressed the application of Graham to a
different sentence three years earlier. Morgan at *4.
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{¶ 165} In Brown, a juvenile was convicted of aggravated kidnapping and
four counts of armed robbery. The trial court imposed a mandatory life sentence
for aggravated kidnapping and ten years in prison for each of the armed-robbery
convictions to be served consecutively for 40 additional years, without the
possibility of parole for any of the convictions.
{¶ 166} Brown filed a motion challenging his sentence as illegal under
Graham. The trial court agreed, holding that Brown was eligible for parole on all
five convictions, and the intermediate appellate court affirmed. The Louisiana
Supreme Court “granted the State’s writ application to consider its argument that
while the district court properly eliminated the parole restriction on the life
sentence, nothing in Graham authorized it to amend [Brown’s] four 10-year armed
robbery sentences.” Brown at 334-335. The court recognized that following
Graham, the legislature had amended a state sentencing statute in order to allow
inmates serving a life sentence without the possibility of parole for a nonhomicide
offense committed while a juvenile to become eligible for parole after serving 30
years. Brown at 341.
{¶ 167} The court then considered whether Graham applied to Brown’s
sentence. Brown was 16 years old at the time of his offenses. Therefore, Brown
would not become eligible for parole until at least age 86—once he had served 30
years for the kidnapping conviction and ten years for each of the four armed-
robbery convictions. Brown, 118 So.3d at 342. The court stated:
In our view, Graham does not prohibit consecutive term of year
sentences for multiple offenses committed while a defendant was
under the age of 18, even if they might exceed a defendant’s
lifetime, and, absent any further guidance from the United States
Supreme Court, we defer to the legislature which has the
constitutional authority to authorize such sentences.
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Brown at 341-342.
{¶ 168} The Brown court concluded that “nothing in Graham addresses a
defendant convicted of multiple offenses and given term of year sentences, that, if
tacked on to the life sentence parole eligibility date, equate to a possible release
date when the defendant reaches the age of 86.” Brown at 342.
{¶ 169} The court in Morgan distinguished Brown:
Brown was convicted of five offenses resulting in five consecutive
sentences which, when aggregated, resulted in a term pursuant to
which he would have no opportunity for release; here, the
defendant was convicted of a single offense and sentenced to a
single term which affords him no opportunity for release. In
declining to extend Graham to modify any of Brown’s term-of-
years sentences, we were most influenced by the fact that his actual
duration of imprisonment would be so lengthy only because he had
committed five offenses. * * * In contrast, any concern about a
policy that would afford an opportunity for parole to defendants
convicted of multiple offenses is not implicated here.
(Emphasis added.) Morgan, __So.3d__, 2016 WL 6125428, at *4. Therefore,
Brown continues to stand for the proposition that Graham does not apply to a
juvenile offender who has been sentenced to multiple sentences that, when
aggregated, result in a lengthy term-of-years sentence. Similar to the juvenile
defendant in Brown, Moore was a juvenile offender who had been sentenced to
multiple sentences that, when aggregated, result in a lengthy term-of-years
sentence. Consequently, contrary to the majority’s assertion, Louisiana Supreme
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Court precedent is still consistent with the conclusion that Graham is not applicable
to Moore’s lengthy term-of-years sentence.
B. Tennessee
{¶ 170} In State v. Merritt, the defendant pleaded guilty to nine counts of
rape of a child committed when the defendant was 17 years old. Tenn.Crim.App.
No. M2012-00829-CCA-R3CD, 2013 WL 6505145 (Dec. 10, 2013). The trial
court imposed a 25-year prison term for each of the nine offenses to be served
consecutively, for an aggregate prison sentence of 225 years.
{¶ 171} On appeal, Merritt argued that his prison sentence was a de facto
life sentence without the possibility of parole and constituted cruel and unusual
punishment under Graham, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825.
Although the Tennessee Court of Criminal Appeals reversed the sentence after
determining that it was excessive, the court rejected Merritt’s argument that his
sentence was unconstitutional under Graham. Merritt at *6. The court reasoned:
Although the Defendant’s effective 225-year sentence is the
equivalent of life imprisonment, the sentence does not violate
Graham’s specific holding because he was not sentenced to life
imprisonment without the possibility of parole. We conclude that
Graham applies only to juveniles sentenced to life imprisonment
without the possibility of parole for nonhomicide offenses and that
the Defendant is not entitled to relief on this basis.
(Emphasis added.) Merritt at *6.
C. Arizona
{¶ 172} In State v. Kasic, the defendant was found guilty of, among other
offenses, six arsons and one attempted arson—some of which he committed at the
age of 17—and the court imposed an aggregate prison term of 139.75 years. 228
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Ariz. 228, 265 P.3d 410 (Ariz.App.2011). On appeal, Kasic argued that the
“reasons underlying the Court’s decision in Graham are applicable to juveniles,
such as [Kasic], serving a term-of-years sentence exceeding the juvenile’s life
expectancy.” Kasic at ¶ 20. The Arizona Court of Appeals disagreed, reasoning
that Graham “ ‘concerns only those juvenile offenders sentenced to life without
parole solely for a nonhomicide offense.’ ” Kasic at ¶ 20, quoting Graham at 63.
The court gleaned further support for its conclusion in recognizing that “[Graham]
emphasized ‘that while the Eighth Amendment forbids a State from imposing a life
without parole sentence on a juvenile nonhomicide offender, it does not require the
State to release that offender during his natural life.’ ” Kasic at ¶ 20, quoting
Graham at 75.
D. Virginia
{¶ 173} In Vasquez v. Commonwealth, two juveniles, Vasquez and
Valentin, robbed and repeatedly sexually assaulted a woman. 291 Va. 232, 781
S.E.2d 920 (2016), cert. denied, __ U.S. __, __ S.Ct. __, __ L.Ed.2d __, 2016 WL
4380983 (Dec. 5, 2016). After a bench trial, the court found both defendants guilty
of multiple criminal offenses and imposed multiple term-of-years sentences.
Ultimately, Vasquez received an aggregate sentence of 133 years in prison and
Valentin received an aggregate sentence of 68 years in prison. Vasquez and
Valentin appealed to the Virginia Court of Appeals, which denied relief to both.
{¶ 174} Vasquez and Valentin appealed to the Virginia Supreme Court,
arguing that their sentences constituted cruel and unusual punishment and urging
the court to “expand Graham’s prohibition of life-without-parole sentences to
nonlife sentences that, when aggregated, exceed the normal life spans of juvenile
offenders.” Vasquez at 241. The court refused to extend Graham, noting that
Graham applied “only to ‘the imposition of a life without parole sentence on a
juvenile offender who did not commit homicide.’ ” (Emphasis added in Vasquez.)
Id., quoting Graham, 560 U.S. at 82, 130 S.Ct. 2011, 176 L.Ed.2d 825. The court
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recognized that both Vasquez and Valentin were subject to multiple sentences and
that “[t]he only reason that the aggregate sentences exceeded their life expectancies
was because they committed so many separate crimes. These cases are nothing like
Graham, which involved a single crime resulting in a single life-without-parole
sentence.” Id. at 243. The court concluded:
We find no basis for declaring the aggregate sentences imposed on
Vasquez and Valentin to be cruel and unusual under the Eighth
Amendment. Nothing in Graham dictates that multiple sentences
involving multiple crimes be treated, for Eighth Amendment
purposes, in exactly the same manner as a single life-without-parole
sentence for a single crime.
Id. at 251.
V. Graham’s Analysis Is Insufficient to Justify Extending Its Holding to
Consecutive, Fixed-Term Sentences for Multiple Nonhomicide Offenses
{¶ 175} Even assuming for the sake of argument that Graham could apply
to consecutive, fixed-term sentences for multiple nonhomicide offenses, there are
practical problems that require additional inquiry and might preclude the extension
of Graham.
A. Determining Life Expectancy Is a Slippery Slope
{¶ 176} The majority uses life-expectancy data reported by the Centers for
Disease Control (“CDC”) to conclude that Moore will probably die before he
becomes eligible to be released. But there are a myriad of sources for determining
life expectancy. For example, in Boneshirt v. United States, the defendant was
convicted of a murder committed as a juvenile and sentenced to 48 years in prison.
D.S.D. No. CIV 13-3008-RAL, 2014 WL 6605613 (Nov. 19, 2014). Boneshirt
claimed that his sentence was a de facto life sentence and therefore unconstitutional
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under Miller v. Alabama, __ U.S. __, 132 U.S. 2455, 183 L.Ed.2d 407 (sentencing
a juvenile offender who commits murder to a mandatory life sentence violates the
Eighth Amendment). In exploring whether Boneshirt’s sentence was a de facto life
sentence, the court considered numerous sources, including statistics from the
United States Sentencing Commission, Internal Revenue Service (IRS) actuarial
tables, and Social Security actuarial tables, as well as a mortality study showing
particularly low life expectancies for Native American males in certain South
Dakota counties. The court noted that while it is “easy” to view a 100-year sentence
as a de facto life sentence, Boneshirt’s 48-year sentence, which he began serving at
age 18, “makes for a more difficult answer.” Boneshirt at *9. Undoubtedly,
determining whether a lengthy term-of-years aggregate sentence is a de facto life
sentence will be a difficult, case-by-case determination.
{¶ 177} Moreover, data can be used only to estimate one’s life expectancy,
as there are numerous factors that can affect an individual’s actual lifespan. For
example, according to the CDC, life expectancy is at least ten years shorter for
smokers than for nonsmokers. CDC, Tobacco-Related Mortality,
http://www.cdc.gov/tobacco/data_statistics/fact_sheets/health_effects/tobacco_rel
ated_mortality/ (accessed Oct. 18, 2016). Would courts need to take such personal
factors into account when determining life expectancy?
{¶ 178} Similarly, as imprisoned juveniles grow older, some will encounter
new health issues that could shorten their lives. Would courts have to periodically
reevaluate each juvenile’s health and lifestyle for the purpose of re-estimating the
juvenile’s life expectancy?
{¶ 179} There are many sources for life-expectancy data and many factors
that affect an individual’s life expectancy, and neither Graham nor the majority
have explored these issues.
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B. Determination of National Consensus as Required by Graham’s
Categorical-Rule Analysis
{¶ 180} The categorical-rule analysis employed in Graham included two
steps. 560 U.S. at 61, 130 S.Ct. 2011, 176 L.Ed.2d 825.
{¶ 181} The first step required the court to determine whether there was a
national consensus against sentencing juvenile offenders who commit nonhomicide
offenses to a sentence of life in prison without parole, and the second step required
the court to apply its own Eighth Amendment decisions to determine whether that
sentencing practice violated the Eighth Amendment. Id. at 61-62. The results of
the first step of the analysis, national consensus, while “not [ ] determinative of
whether a punishment is cruel and unusual is ‘entitled to great weight.’ ” Id. at 67,
quoting Kennedy v. Louisiana, 554 U.S. 407, 434, 128 S.Ct. 2641, 171 L.Ed.2d 525(2008). The court in Graham determined whether there was a national consensus
against sentencing a juvenile who committed a nonhomicide offense to life in
prison without parole, not whether there was a national consensus against
sentencing a defendant who committed multiple nonhomicide offenses while a
juvenile to consecutive, fixed prison terms that exceed the offender’s life
expectancy. Arguably, consideration of whether there is a national consensus
against the latter type of sentence could yield a different result. Without this
analysis, Graham cannot be extended to consecutive, fixed-term sentences for
multiple nonhomicide offenses like Moore’s. The majority opinion never even
addresses the first step of the categorical-rule analysis employed in Graham.
VI. The Separation-of-Powers Doctrine Grants the General Assembly Sole
Authority to Enact Sentencing Guidelines
{¶ 182} The United States Supreme Court “leave[s] to the State the task of
developing appropriate ways to enforce the constitutional restriction upon its
execution of sentences.” Ford v. Wainwright, 477 U.S. 399, 416, 106 S.Ct. 2595,
91 L.Ed.2d 335 (1986) (plurality opinion). It is well settled that “[t]he power to
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define and classify and prescribe punishment for felonies committed within the
state is lodged in the General Assembly of the state.” State v. O’Mara, 105 Ohio
St. 94, 136 N.E. 885 (1922), syllabus, rev’d in part on other grounds, Steele v.
State, 121 Ohio St. 332, 333, 168 N.E. 846 (1929). Accordingly, “the authority for
a trial court to impose sentences derives from the statutes enacted by the General
Assembly.” State v. Bates, 118 Ohio St.3d 174, 2008-Ohio-1983, 887 N.E.2d 328,
¶ 12.
{¶ 183} In determining whether imposing a life sentence on a juvenile
nonhomicide offender violated the Eighth Amendment, the court in Graham looked
to “science” and concluded that juveniles are different from adults in that juveniles
are “ ‘more vulnerable or susceptible to negative influences and outside pressures,
including peer pressure;’ and their characters are ‘not as well formed.’ ” 560 U.S.
at 68, 130 S.Ct. 2011, 176 L.Ed.2d 825, quoting Roper v. Simmons, 543 U.S. 551,
569-570, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). Pursuant to this “science,” the
court concluded that “ ‘[i]t is difficult even for expert psychologists to differentiate
between the juvenile offender whose crime reflects unfortunate yet transient
immaturity, and the rare juvenile offender whose crime reflects irreparable
corruption.’ ” Id. at 68, quoting Roper at 573. The court also considered
“penological justifications” (e.g., retribution, deterrence, incapacitation,
rehabilitation) for imposing a life sentence on a juvenile nonhomicide offender. Id.
at 71.
{¶ 184} While I agree that the science and penological considerations are
relevant in formulating a sentence, these subjects are for the General Assembly—
not the courts—to debate and weigh in establishing sentencing guidelines for
juvenile offenders. See O’Mara, 105 Ohio St. 94, 136 N.E. 885, at syllabus. To
do so here by extending Graham to consecutive, fixed-term sentences for multiple
nonhomicide offenses will effectively invalidate the sentences imposed for certain
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offenses, which will have the effect of permitting an offender to commit some
offenses “for free.”
{¶ 185} The General Assembly has made a policy decision creating a
bindover scheme for a juvenile defendant who commits one of a multitude of types
of offenses at a certain age. R.C. 2152.10. Therefore, it is the General Assembly
that must consider relevant factors, such as the growing body of science and
pronouncements by the United States Supreme Court, and promulgate appropriate
sentencing guidelines for those juveniles whom the General Assembly has deemed
must be subjected to adult consequences.
{¶ 186} And it is this court’s obligation to educate Ohio judges who would
pass consecutive, fixed-term sentences for multiple nonhomicide offenses
committed by a juvenile about the vulnerability and susceptibility of juveniles to
negative influences and peer pressure, the science of brain development and the
growing body of evidence that juveniles’ characters are not as well formed as those
of adults, and the law as enunciated by the United States Supreme Court that a trial
judge can fashion an individualized sentence to meet the overriding purposes of
felony sentencing, see R.C. 2929.11.
{¶ 187} While I would gladly add my voice to the conversation supporting
the creation of separate sentencing guidelines for juvenile offenders who are bound
over to the adult system, I cannot join today’s majority when there is no basis in
law and when to do so, in my opinion, would violate the separation-of-powers
doctrine, which “[t]his court has repeatedly affirmed” is embedded in the Ohio
Constitution, State ex rel. Bray v. Russell, 89 Ohio St.3d 132, 134, 729 N.E.2d 359(2000).4
4
During the 131st session of the General Assembly, the legislature considered a bill to “enact section
2967.132 of the Revised Code to provide special parole eligibility dates for persons with an
indefinite or life sentence imposed for an offense committed when the person was less than 18 years
of age.” Am.H.B. No. 521, at 1.
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VII. Conclusion
{¶ 188} Because the court of appeals was without authority to consider the
application for delayed reconsideration and because Graham v. Florida, 560 U.S.
48, 130 S.Ct. 2011, 176 L.Ed.2d 825, does not extend to a juvenile offender who is
sentenced to consecutive, fixed prison terms for multiple nonhomicide offenses, I
dissent. I would affirm the judgment of the court of appeals.
O’DONNELL, J., concurs in the foregoing opinion.
_________________
FRENCH, J., dissenting.
{¶ 189} I respectfully dissent.
{¶ 190} This discretionary appeal stems from the application of appellant,
Brandon Moore, for delayed reconsideration of his direct appeal from his
resentencing pursuant to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470. Moore asks us to decide whether the constitutional prohibition against
life-without-parole sentences for juvenile nonhomicide offenders announced in
Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and
extended to mandatory life-without-parole sentences for juvenile homicide
offenders in Miller v. Alabama, __ U.S. __, 132 S.Ct. 2455, 183 L.Ed.2d 407(2012), also prohibits lengthy term-of-years sentences that approximate de facto
life sentences. But we need not reach the constitutional question because, no matter
how the court decides it, the Seventh District Court of Appeals did not abuse its
discretion by denying Moore’s application for delayed reconsideration. I would
therefore affirm the court of appeals’ judgment.
{¶ 191} On March 24, 2009, the Seventh District affirmed Moore’s
resentencing, following the remand pursuant to Foster, and rejected Moore’s pro
se assignment of error that the resentencing violated his right to due process. State
v. Moore, 7th Dist. Mahoning No. 08 MA 20, 2009-Ohio-1505 (“Moore III”). The
court noted that this was Moore’s third appeal, that most issues with respect to his
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convictions and sentence were res judicata, and that its review was limited to issues
arising from Moore’s most recent resentencing. Moore did not appeal the March
24, 2009 decision.
{¶ 192} On September 16, 2013, Moore filed an application for delayed
reconsideration of Moore III pursuant to App.R. 26(A)(1) and 14(B). The standard
for reviewing an application for reconsideration is whether the application calls to
the court’s attention an obvious error in its decision or raises an issue that the court
either did not consider at all or did not consider fully when it should have.
Matthews v. Matthews, 5 Ohio App.3d 140, 450 N.E.2d 278 (10th Dist.1981),
paragraph two of the syllabus. Moore argues that his sentence violates the
constitutional rule established in Graham.
{¶ 193} Moore’s application for reconsideration was unquestionably
untimely under App.R. 26(A)(1), but the court of appeals implicitly recognized—
consistent with the majority opinion’s holding here—that it had authority, pursuant
to App.R. 14(B), to permit the untimely filing upon a showing of extraordinary
circumstances. App.R. 14(B) authorizes a court of appeals to enlarge the time for
doing any act or to permit the act to be done after the expiration of the prescribed
time upon a showing of good cause, but “[e]nlargement of time to file an application
for reconsideration * * * pursuant to App. R. 26(A) shall not be granted except on
a showing of extraordinary circumstances.” Relief under App.R. 14(B) is subject
to the court of appeals’ discretion. L.R. Patrick, Inc. v. Karlsberger & Assocs.,
Architects, Inc., 10th Dist. Franklin No. 81AP-70, 1981 WL 3231, *1 (June 4,
1981).
{¶ 194} I agree with both the majority opinion and Justice Kennedy’s
dissenting opinion that the appropriate standard of review in this case is abuse of
discretion. See Reichart v. Ingersoll, 18 Ohio St.3d 220, 222, 224, 480 N.E.2d 802(1985). An abuse of discretion connotes a decision that is unreasonable, arbitrary
or unconscionable. Gen. Motors Corp. v. Tracy, 73 Ohio St.3d 29, 32, 652 N.E.2d
73SUPREME COURT OF OHIO
188 (1995). Assuming that the court of appeals had authority under App.R. 14(B)
to consider Moore’s application for delayed reconsideration more than four years
after the decision in Moore III, it did not abuse its discretion in denying the
application.
{¶ 195} The court of appeals summarily denied Moore’s application for the
reasons it articulated in State v. Bunch, 7th Dist. Mahoning No. 06 MA 106 (Aug.
8, 2013), and State v. Barnette, 7th Dist. Mahoning No. 06 MA 135 (Sept. 16,
2013). State v. Moore, 7th Dist. Mahoning No. 08 MA 20, 2013-Ohio-5868, ¶ 2.
In both of those cases, the court rejected applications for delayed reconsideration
in which the applicants asked the court to extend the holdings in Graham and Miller
to prohibit “de facto life sentences” for juveniles. In Bunch and Barnette, the court
found no extraordinary circumstances under App.R. 14(B) for two reasons: the
lengthy delay between the Graham and Miller decisions and the applications for
delayed reconsideration and, “most important[ly],” Graham and Miller were not
directly on point and neither this court nor the United States Supreme Court had
extended them to de facto life sentences. Bunch at 3; Barnette at 3.
{¶ 196} In Bunch, the court stated, “[W]hen appellate courts have found
extraordinary circumstances based on binding decisions from higher courts, they
have done so when the higher court’s case is directly on point.” Bunch at 3. It
reasoned, “[I]f the higher court’s binding decision is not directly on point, there
would not be an obvious error and, as such, the requisite finding of extraordinary
circumstances, to enlarge the time for filing an application for reconsideration,
would not be warranted.” Id.{¶ 197} Any error regarding application of Graham and Miller to the facts
of Moore’s case was far from obvious. The majority opinion acknowledges that
the defendant in Graham was serving a life sentence, and the actual holding in
Graham states, “The Constitution prohibits the imposition of a life without parole
sentence on a juvenile offender who did not commit homicide.” (Emphasis added.)
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560 U.S. at 82, 130 S.Ct. 2011, 176 L.Ed.2d 825. Miller extended that
constitutional prohibition to mandatory life-without-parole sentences to juvenile
homicide offenders. ___ U.S. ___, 132 S.Ct. at 2464, 183 L.Ed.2d 407. Unlike the
defendants in Graham and Miller, however, Moore did not receive a sentence of
life without parole. Rather, having been found guilty of 12 counts and 11 firearm
specifications, Moore received multiple, consecutive term-of-years sentences,
which added up to a lengthy aggregate prison term. So, even if the considerations
underlying Graham would support extending that case to lengthy term-of-years
sentences, the Supreme Court’s decisions in Graham and Miller, as the Seventh
District held in Bunch and Barnette, are not directly on point.
{¶ 198} Here, the majority extrapolates from Graham the rule that the
Eighth Amendment prohibits the imposition of any sentence on a juvenile—
whether designated a life sentence or a term-of-years sentence—that extends
beyond the offender’s life expectancy and denies the offender a meaningful
opportunity to obtain release based on demonstrated maturity and rehabilitation.
But when the court of appeals denied Moore’s application for delayed
reconsideration, not only had neither this court nor the United States Supreme Court
extended Graham in the manner that Moore requests, but numerous courts had held
that Graham does not apply to lengthy term-of-years sentences. See, e.g., State v.
Kasic, 228 Ariz. 228, 265 P.3d 410, ¶ 20 (Ariz.App.2011); Henry v. State, 82 So.3d
1084, 1089 (Fla.App.2012), quashed, 175 So.3d 675 (Fla.2015). See also Goins v.
Smith, N.D.Ohio No. 4:09-CV-1551, 2012 WL 3023306, *6 (July 24, 2012), aff’d,
556 Fed.Appx. 434 (6th Cir.2014); Bunch v. Smith, 685 F.3d 546, 550 (6th
Cir.2012) (denying habeas relief under the Antiterrorism and Effective Death
Penalty Act of 1996 because Graham did not clearly apply to lengthy term-of-years
sentence for multiple nonhomicide offenses; Graham “did not clearly establish that
consecutive, fixed-term sentences for juveniles who commit multiple nonhomicide
offenses are unconstitutional when they amount to the practical equivalent of life
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without parole”). In its decisions denying applications for delayed reconsideration
in Bunch and Barnette, the Seventh District cited five decisions from other states
that refused to extend Graham to prohibit lengthy term-of-years sentences, while
also acknowledging two decisions from other states that held to the contrary. In
any event, there was no clear authority as to whether the holdings of Graham and
Miller extend to lengthy term-of-years sentences like Moore’s.
{¶ 199} Finally, Moore did not challenge his sentence based on the Eighth
Amendment in Moore III. Rather, Moore raised a single assignment of error that
his resentencing violated his right to due process. Even accepting the majority’s
conclusion that Moore’s sentence violates the Eighth Amendment to the United
States Constitution, Graham and Miller do not establish an obvious error in the
Seventh District’s decision upholding Moore’s resentencing on due-process
grounds. Moore was not entitled to use an application for delayed reconsideration
as a substitute for a request that the court consider, in the first instance, an issue that
was not previously presented to the court. A court of appeals may not ordinarily
consider on a motion for reconsideration an issue that was not previously raised.
Fenton v. Time Warner Entertainment Co., 2d Dist. Montgomery No. 19755, 2003-
Ohio-6317, ¶ 2, citing Whiteside, Ohio Appellate Practice 700 (2003) (author’s
comment).
{¶ 200} Because Graham and Miller are not directly on point, because
neither this court nor the United States Supreme Court has extended Graham and
Miller to Moore’s situation, because case law from across the country conflicts as
to whether Graham and Miller apply to Moore’s situation, and because Moore III
did not include an Eighth Amendment challenge, I cannot conclude that the Seventh
District abused its discretion by denying Moore’s application for delayed
reconsideration. Accordingly, I dissent.
_________________
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Paul J. Gains, Mahoning County Prosecuting Attorney, and Ralph M.
Rivera, Assistant Prosecuting Attorney, for appellee.
Jones Day and Rachel S. Bloomekatz, for appellant.
Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Assistant
Public Defender, urging reversal for amicus curiae Office of the Ohio Public
Defender.
Marsha Levick, urging reversal for amicus curiae Juvenile Law Center.
Jenner & Block, L.L.P., Matt