State v. Wade , 2020 Ohio 5399 ( 2020 )

[Cite as State v. Wade, 2020-Ohio-5399.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 19AP-350
v. : (C.P.C. No. 15CR-6266)
Jordyn Wade, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on November 24, 2020
On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
Gilbert, for appellee.
On brief: Jeffery A. Linn, II, for appellant.
APPEAL from the Franklin County Court of Common Pleas
BEATTY BLUNT, J.
{¶ 1} Defendant-appellant, Jordyn Wade, appeals the May 6, 2019 decision of the
Franklin County Court of Common Pleas resentencing him to a combined sentence of 172
1/2 years to life for 4 aggravated murders and 24 other associated felonies. This court
affirmed the jury's verdict of guilt following Wade's trial, but reversed as to his sentence at
State v. Wade, 10th Dist. No. 16AP-674, 2018-Ohio-976 ("Wade I"). This court also
affirmed the trial court's judgment denying his motion for a new trial at State v. Wade, 10th
Dist. No. 18AP-848, 2019-Ohio-3464 ("Wade II"). This timely appeal follows the trial
court's April 17, 2019 resentencing hearing, and Wade asserts two assignments of error—
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No. 19AP-350
first that his sentence is unconstitutional, and then that his resentencing counsel was
ineffective for failure to present mitigation evidence at sentencing.
{¶ 2} The full facts of the case were set forth by this court in Wade I. Wade was 16
years old at the time of the offenses, and was convicted as an aider and abettor for the
crimes committed during the course of a burglary and robbery, including a felonious assault
and several murders. According to the evidence adduced at trial he was an active and armed
participant in the robbery, and he directly encouraged his codefendant to shoot the five
victims—only one survived. She identified Wade from photo lineups and testified at trial as
to the events of the crime. See Wade I at ¶ 1-30.
{¶ 3} He was found guilty and sentenced to an aggregate sentence of 172 1/2 years
to life. He appealed his conviction to this court, and we reversed on sentencing issues. We
concluded that the trial court had erred by imposing a life sentence without parole on a
juvenile without specifically considering Wade's youth as a mitigating factor, as required
under State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849, and Miller v. Alabama, 567 U.S.
460 (2012). The State conceded the error on appeal, observing that Wade's sentence was
the "functional equivalent" of a life-without-parole because it consists of consecutive prison
terms exceeding a juvenile's life expectancy, see State v. Moore, 149 Ohio St.3d 557, 2016-
Ohio-8288, ¶ 60-62, and therefore that, in accordance with Long, the case should be
remanded to consider Wade's youth as a mitigating factor. This court accordingly vacated
Wade's sentence and remanded the case to the trial court for further proceedings. Wade I
at ¶ 63.
{¶ 4} On remand, the trial court held a brief resentencing hearing, and reimposed
the same term of incarceration. (See April 17, 2019 Transcript). The findings of the court
supporting in their entirety are as follows:
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No. 19AP-350
THE COURT: I have reviewed the pre-sentence investigation.
I have considered as a mitigating and attendant circumstance
the defendant's youth. And my sentence in this case is based
upon the overriding principles and purposes of felony
sentencing stated in 2929.11. Specifically, to protect the public
from future crime by you and others; to punish you using the
minimum sanctions that I determine will accomplish these
purposes without imposing any unnecessary burden on state
and local government resources; to ensure that the sentence is
consistent with other similar offenses committed by like
offenders; that the sentence is proportionate to the harm you
caused and the impact upon the victims; and that your sentence
is not based upon any impermissible purpose.
Finally, in determining your sentence I have considered all
seriousness and recidivism factors of 2929.12(B) through (E).
More serious: Injury to the victim or victims was worsened by
the physical, mental condition or age of the victims. The victims
suffered serious physical, psychological and economic harm.
The offense was committed as part of an organized criminal
activity. I do not find any factors of the less serious.
Recidivism likely: The offender was on bail prior to sentencing
or was on probation; prior adjudication of delinquency; failure
to respond favorably in the past to sanctions imposed for
criminal convictions; demonstrated a pattern of drug or alcohol
abuse related to the offenses and refuses to acknowledge it or
refuses treatment. I also find that he shows no remorse
whatsoever in this matter.
I have reviewed the State versus Long decision cited by the
Court of Appeals, and I have considered the fact that Mr. Wade
was three weeks prior to his 17th birthday when the murders
had occurred. I do note from the pre-sentence investigation
that the defendant has had a history of criminal convictions, in
particular, beginning at the age of 12. He was convicted of
aggravated arson at the age of 12; at the age of 13, theft. He had
multiple school attendance violations; improper handling of a
firearm; again, possession of drugs, tampering with evidence,
theft, curfew, another theft. Possession of drugs was dismissed;
burglary, and I believe he was placed on receiving stolen
property [sic] at the age of 16 when all of those convictions [sic]
occurred.
He was placed on probation, I guess, for Juvenile Court three
times. He never successfully completed that. He was sentenced
[sic] to Department of Youth Services in 2014. There is [sic]
allegations that he was, and it was proven at trial, that he was a
member of various gangs.
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No. 19AP-350
With respect to his home life, the defendant describes his
childhood as overall good. He was never abused as a child. He
also indicates that he never witnessed any domestic violence.
He has been placed on probation for several cases, all of which
were terminated unsuccessfully.
He is associated as a member of the Banger Squad, which is the
name of the young members section of the larger Windsor
Terrace Posse criminal gang, which is a Crips criminal gang.
There is [sic] multiple photographs obtained from his phone in
which he was posing holding a handgun and five of them also
doing gang signs.
The last grade he attended school before dropping out was
ninth grade. He was expelled from his first school. The
defendant also denied being diagnosed with any mental health
issues.
In the State v. Long decision, they indicate [sic] that as a
juvenile, they sometimes can be easily manipulated and
easily—I believe the exact terminology is that they are more
vulnerable to negative influences and outside pressures.
And I sat through the entire trial. There is no indication
whatsoever that Robert Adams in any way coerced, directed or
imposed undue influence. And, in fact, prior to Mr. Adams
shooting the five people, four of which passed, he was
encouraged by the defendant and requesting him to go ahead
and something in the record to the extent, "Go ahead and kill
them all." So he was actually the one encouraging the
homicides.
So I have considered his youth, his upbringing, his prior
criminal record, and I will impose the original sentence in this
matter.
Id. at 4-8.
{¶ 5} On appeal, Wade argues that the imposition of a 172 1/2-year minimum term
with a life tail based on these findings constitutes cruel and unusual punishment, and that
his sentencing counsel's failure to request or consider a mitigation expert for the
resentencing hearing violated his right to the assistance of counsel. We address each
assignment of error in turn.
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No. 19AP-350
Assignment of Error No. 1: The trial court imposed a
sentence in violation of Mr. Wade's constitutional protections.
{¶ 6} Wade argues that his sentence is unconstitutional under the Eighth
Amendment to the U. S. Constitution and Article I, Section 9, Ohio Constitution because it
constitutes cruel and unusual punishment. In Long, 2014-Ohio-849, at ¶ 19, the Supreme
Court of Ohio interpreted and applied Miller, 567 U.S. 460, and held that
[a]s applied to a juvenile found guilty of aggravated murder
under R.C. 2929.03(A) * * * youth is a mitigating factor for a
court to consider when sentencing a juvenile. * * * The
offender's youth at the time of the offense must still be weighed
against any statutory consideration that might make an offense
more serious or an offender more likely to recidivate. Yet
because a life-without-parole sentence implies that
rehabilitation is impossible, when the court selects this most
serious sanction, its reasoning for the choice ought to be clear
on the record.
Wade cites Long, Miller, and Montgomery v. Louisiana, __ U.S. __, 136 S.Ct. 718 (2016)
(which amplified Miller and applied its requirements retroactively to a 53-year-old life-
without-parole sentence for a homicide) in support of his contention.
{¶ 7} In Wade I, this court reversed based on Long and held that the trial court had
sentenced Wade to life without parole without adequately considering Wade's youth and
its attendant characteristics and without considering Wade's youth as a mitigating factor,
and because the trial court "did not comply with R.C. 2929.03(A) and (B), as explained in
Long * * *." Wade I at ¶ 60-62. Accordingly, the question for our review is whether the trial
court's statements that it considered Wade's youth at the rehearing was sufficient to comply
with the requirements of Long, Miller, and Montgomery and with this court's prior remand
in Wade I.
{¶ 8} We conclude that the trial court complied with the foregoing caselaw and our
remand. To be sure, the trial court's findings are limited and do not explain how Wade's
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No. 19AP-350
youth and his environment during his childhood, growth, and development shaped him,
nor do they specifically state whether Wade's actions demonstrated a permanent condition
or were instead a juvenile response that Wade would in time abandon. Wade suggests that
the judge's discussion in support of the sentence reduces Long to the question of whether
the youth was more susceptible to "negative influences and outside pressures" at the time
of the crime. See Tr. at 8-9. But the court also recounted on the record how Wade's juvenile
record began early, how the severity of his offenses increased at a dramatic rate, and how
he had already received substantial unsuccessful treatments in the juvenile system. The
court's findings further establish that Wade did not suffer abuse or otherwise have a home
environment that would offer some explanation for his actions, that he willfully encouraged
his codefendant to kill the four victims, and that he showed a total lack of remorse for his
crimes. Long, Miller, Montgomery and Wade I do not require sentencing courts to reject
life sentences for juvenile offenders convicted of homicide; they simply require trial courts
to account for the youth of juveniles as a mitigating factor when sentencing for murder.
Here, the trial court specifically stated that it had evaluated the defendant's youth and
determined that an effective life without parole sentence of 172 ½ years to life was
appropriate punishment. We do not believe that caselaw required the trial court to do more
than that, even if it would be a better practice to do so. Accordingly, we conclude that the
trial court did not err in its sentence, and that Wade's rights under the U. S. Constitution
and the Ohio Constitution to be free of cruel and unusual punishment were not violated.
Assignment of Error No. 2: Appellant was denied his Sixth
Amendment right to effective assistance of counsel when
counsel failed to present mitigation at sentencing.
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No. 19AP-350
{¶ 9} In order to obtain a reversal on appeal for ineffective assistance of counsel, a
defendant must demonstrate both that defense counsel's performance was deficient, and
that counsel's deficient performance prejudiced the defense. See generally Strickland v.
Washington, 466 U.S. 668, 686 (1984). Wade argues that his counsel's failure to consider
requesting a mitigation expert was ineffective assistance. But Wade cannot demonstrate
prejudice under Strickland based on the record before us—even assuming his counsel was
deficient in not requesting a mitigation expert or psychological expert, we have no record
as to what that expert's testimony might have been, or whether such evidence would have
or should have affected the trial court's analysis in any way. Such "off-the-record" claims
are appropriately pursued by the filing of a petition for postconviction relief filed under R.C.
2953.21 rather than a direct appeal. See, e.g., State v. Sidibeh, 10th Dist. 12AP-498, 2013-
Ohio-2309, ¶ 8, quoting State v. Murphy, 10th Dist. 00AP-233, 2000 Ohio App. LEXIS
6129 (Dec. 26, 2000) (petition for postconviction relief " 'is a means to reach constitutional
issues which would otherwise be impossible to reach because the evidence supporting those
issues is not contained in the record.' "). Accordingly, Wade cannot demonstrate any error
with the trial court's judgment.
{¶ 10} For the reasons stated, Wade's two assignments of error are overruled, and
the judgment and sentence of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BROWN,J., concurs.
BRUNNER, J., concurs in judgment only.