[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Anderson, Slip Opinion No. 2017-Ohio-5656.]




                                           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. 2017-OHIO-5656
           THE STATE OF OHIO, APPELLEE, v. ANDERSON, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
     may be cited as State v. Anderson, Slip Opinion No. 2017-Ohio-5656.]
Criminal law—Sentencing—Trial tax—Eighth Amendment—Appellant failed to
        show that trial court imposed his sentence as penalty for exercising his right
        to jury trial instead of pleading guilty—Imposing mandatory minimum
        prison sentence of three years on juvenile offenders for aggravated robbery
        and for kidnapping does not violate Eighth Amendment’s prohibition
        against cruel and unusual punishment—Mandatory three-year prison
        sentence imposed on a juvenile offender tried as an adult for a conviction
        of a firearm specification does not violate Eighth Amendment—Court of
        appeals’ judgment affirming sentence affirmed.
     (No. 2016-0317—Submitted February 28, 2017—Decided July 5, 2017.)
            APPEAL from the Court of Appeals for Montgomery County,
                                No. 26525, 2016-Ohio-135.
                                     _______________
                             SUPREME COURT OF OHIO




                             SYLLABUS OF THE COURT
1.     Where one defendant pleads guilty to three felonies, agrees to testify against
       a codefendant, and receives a sentence of nine years, and the codefendant is
       convicted by a jury of four felonies and is sentenced to 19 years, and when
       the trial court specifically states that the sentence is not being imposed as a
       penalty for going to trial, no inference of impropriety arises if the sentence
       is within the range of penalties provided by law.
2.     Imposing a mandatory minimum sentence of three years on juvenile
       offenders for aggravated robbery and for kidnapping does not violate the
       Eighth Amendment’s prohibition against cruel and unusual punishment.
3.     A mandatory three year prison sentence imposed on a juvenile offender tried
       as an adult for a conviction of a firearm specification does not violate the
       Eighth Amendment because it serves a legitimate penological goal, is
       proportional to the crimes committed, and is not one of the harshest possible
       penalties for a juvenile offender.
                                 _______________
       O’DONNELL, J.
       {¶ 1} Rickym Anderson appeals from a judgment of the Second District
Court of Appeals affirming the 19 year prison sentence imposed on him at
resentencing for his involvement in the robberies of Brian Williams, Tiesha
Preston, and Star MacGowan and the kidnapping of Preston.
       {¶ 2} Anderson failed to show that the trial court imposed the sentence as a
penalty for exercising his right to a jury trial instead of pleading guilty. It is true
that Anderson’s codefendant, Dylan Boyd, received a nine year sentence, but he
pled guilty to three felonies and agreed to testify against Anderson; by way of
contrast, a jury found Anderson guilty of four felonies, the court specifically stated
the 19 year sentence was not a penalty for going to trial, and the sentence imposed
was within the range of punishment authorized by law.




                                            2
                                  January Term, 2017




          {¶ 3} Neither does the sentence violate the Eighth Amendment to the
United States Constitution’s prohibition against cruel and unusual punishment
because it does not involve the imposition of the harshest possible penalties for
juveniles, it is proportionate to the offenses committed by Anderson, and there is
no national consensus against imposing mandatory sentences on juveniles tried as
adults.
          {¶ 4} Anderson also contends that the mandatory sentencing scheme set
forth in R.C. Chapter 2929 violates due process as applied to children, but because
he failed to raise this argument in the lower courts it is forfeited and he cannot raise
it for the first time in his appeal to this court.
          {¶ 5} We therefore affirm the judgment of the appellate court.
                            Facts and Procedural History
          {¶ 6} On April 20, 2012, 16 year old Rickym Anderson, Dylan Boyd, and
M.H. noticed Brian Williams and Tiesha Preston standing inside a garage at 615
Yale Avenue in Dayton, Ohio. Boyd, along with Anderson and M.H., entered the
garage, pointed a gun at Williams and Preston, and yelled, “Don’t move.”
However, they both tried to run at that point, but Boyd shot Williams, grabbed
Preston, and forced her into the trunk of a car parked outside the garage. After
stealing a purse and cigarettes from inside that vehicle, they left.
          {¶ 7} That same day, Anderson and Boyd approached Star MacGowan who
was standing outside her apartment in Dayton. Anderson showed MacGowan a
handgun, told her, “I’m gonna pop you,” and demanded money from her.
MacGowan handed over her purse, and he and Boyd took her cell phone, left the
purse, and ran. Subsequently, a Dayton police officer apprehended Anderson near
MacGowan’s apartment. The officer recovered MacGowan’s cell phone from a
search of Anderson’s person, and located a firearm 30 to 40 feet away.
          {¶ 8} On July 5, 2012, the state of Ohio filed a complaint against Anderson
in the juvenile court alleging offenses that, if committed by an adult, would




                                             3
                             SUPREME COURT OF OHIO




constitute aggravated robbery, kidnapping, and felonious assault—all with firearm
specifications. The juvenile court found probable cause to believe that Anderson
had committed the offenses and transferred the case to the General Division of the
Montgomery County Court of Common Pleas for criminal prosecution.
        {¶ 9} A Montgomery County Grand Jury returned indictments against
Anderson and Boyd charging them each with three counts of aggravated robbery,
one count of felonious assault, and one count of kidnapping—all with firearm
specifications.
        {¶ 10} Boyd negotiated a plea with the state and agreed to testify against
Anderson, if necessary, in exchange for the state agreeing to recommend imposition
of a nine year sentence. The court accepted the plea, and as a result, Boyd pleaded
guilty to one count of aggravated robbery, with a firearm specification, one count
of felonious assault, and one count of kidnapping, and the trial court sentenced him
to a total of nine years.
        {¶ 11} Anderson, however, exercised his right to a jury trial and was found
not guilty of felonious assault, but guilty of three counts of aggravated robbery, and
the firearm specifications attached to those felonies, and one count of kidnapping,
with a firearm specification. At sentencing, the court imposed an aggregate prison
term of 28 years.
        {¶ 12} Anderson appealed his convictions and sentence, and the Second
District Court of Appeals affirmed in part, reversed in part, and remanded the matter
for resentencing, concluding the trial court did not make the necessary findings to
impose consecutive sentences and instructing that it needed to reexamine the jail
time credit Anderson received. State v. Anderson, 2d Dist. Montgomery No. 25689,
2014-Ohio-4245, ¶ 6.
        {¶ 13} At resentencing, the trial court imposed an aggregate term of 19
years in prison, sentencing Anderson to 11 years for each of the aggravated robbery
counts and ordering those sentences to be served concurrently. The trial court also




                                          4
                                January Term, 2017




imposed a mandatory three year term on the firearm specification and five years for
kidnapping and ordered those sentences to run consecutively to the 11 year term.
       {¶ 14} The trial court, in discussing the disparity between Anderson’s and
Boyd’s sentences, stated they were “equally culpable” but that Boyd received a
nine year sentence because he reached an agreement with the state, admitted to his
misconduct, and agreed to testify against Anderson if required.             Regarding
Anderson’s sentence, the trial court stated, “It’s not a penalty. In fact, people go to
trial and get on community control. That has nothing to do with it.” The trial court
also noted Anderson’s criminal history and commented that he did not take
responsibility for what he had done.
       {¶ 15} The Second District Court of Appeals affirmed the resentencing and
held the trial court adequately dispelled any inference Anderson was punished for
exercising his right to a jury trial and noted that Boyd had received a reward for
pleading guilty and agreeing to testify against Anderson while “Anderson stood on
his rights, went to trial, and received no such reward.” 2016-Ohio-135, ¶ 11. The
appellate court also concluded mandatory minimum sentences imposed on a
juvenile offender in adult court do not constitute cruel and usual punishment. Id.
at ¶ 40. The court further cited Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455,
183 L.Ed.2d 407 (2012), Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176
L.Ed.2d 825 (2010), and Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161
L.Ed.2d 1 (2005), establishing categorical prohibitions against sentencing juveniles
to mandatory life without parole, to a life sentence without parole for non-homicide
offenses, or to death for offenses committed as juveniles, but concluded that none
of these cases can reasonably be extended to prohibit mandatory sentencing for
juvenile offenders tried in adult court. 2016-Ohio-135 at ¶ 40.
       {¶ 16} Anderson appealed to this court, and we accepted the following two
propositions of law:




                                          5
                             SUPREME COURT OF OHIO




               When one codefendant who proceeds to trial receives a
       sentence twice as long as a codefendant who enters a plea, an
       appellate court cannot dispel the possibility of an impermissible trial
       tax merely by referring to the disparity as a reward to the
       codefendant for entering a plea.
               The mandatory sentencing statutes in R.C. 2929 are
       unconstitutional as applied to children because they do not permit
       the trial court to make an individualized determination about a
       child’s sentence or the attributes of youth.


                              Positions of the Parties
       {¶ 17} Anderson maintains a marked difference between the sentences for
two equally culpable codefendants, where one codefendant pleads guilty and the
other goes to trial, gives rise to trial tax concerns, and if no other evidence on the
record justifies the disparity between sentences, the disparity should be construed
as a trial tax and the impermissibly enhanced sentence should be reversed. He
further argues his sentence should be reversed because neither the appellate court
nor the trial court listed any permissible reasons for the disparity in Anderson’s and
Boyd’s sentences. Additionally, Anderson contends his sentence violates the
Eighth Amendment’s prohibition against cruel and unusual punishment because the
trial court was not permitted to make an individualized determination about
Anderson and depart from mandatory minimums because Ohio law requires certain
sentences for firearm specifications, at least a three year sentence for first degree
felonies, and that certain sentences must be served consecutively to others. He also
argues due process demands that adult courts should be given discretion to sentence
according to the juvenile or adult codes. Anderson asserts this argument is couched
in Eighth Amendment jurisprudence and has always been raised this way.




                                          6
                                January Term, 2017




       {¶ 18} The state maintains Anderson failed to establish his sentence is
directly disproportionate to the sentence Boyd received because there is no
requirement that codefendants receive the same sentence, particularly where one
codefendant goes to trial and the other receives a lesser sentence as a result of a
negotiated plea agreement. It contends the trial court also made it clear Anderson’s
election to go to trial did not play a part in his sentence and was not a penalty.
Further, the state argues Boyd negotiated a plea agreement, waived his
constitutional rights, admitted his involvement, and agreed to testify at Anderson’s
trial to obtain a reduced sentence, whereas Anderson did not negotiate with the state
for a lesser offense. Regarding Anderson’s argument that mandatory minimum
sentencing is unconstitutional as applied to juveniles, the state asserts Ohio’s
sentencing scheme provides an opportunity for the trial court to consider the child’s
age and mitigating factors of youth. It also maintains a mandatory three year
firearm specification does not constitute cruel and unusual punishment because it
bears no similarity to a mandatory minimum sentence of life without parole or
death, it is supported by a national consensus, and it withstands “ ‘[t]he judicial
exercise of independent judgment,’ ” state’s brief at 29, quoting Graham, 560 U.S.
at 67-68, 130 S.Ct. 2011, 176 L.Ed.2d 825. Finally, the state argues that we should
decline to rule on whether sentencing a juvenile to a mandatory minimum adult
felony violates due process because Anderson is raising this argument for the first
time on appeal to this court.
                                 Issues on Appeal
       {¶ 19} This case presents two separate questions of law: first, whether
imposing a longer prison term on a defendant who exercised his right to a jury trial
than on a codefendant who pleaded guilty and agreed to testify against the
defendant is an unconstitutional trial tax, and second, whether mandatory
sentencing, as applied to juveniles, constitutes cruel and unusual punishment.




                                         7
                             SUPREME COURT OF OHIO




                                 Law and Analysis
                   Sentencing Disparities between Codefendants
        {¶ 20} “[A] defendant is guaranteed the right to a trial and should never be
punished for exercising that right or for refusing to enter a plea agreement * * *.”
State v. O’Dell, 45 Ohio St.3d 140, 147, 543 N.E.2d 1220 (1989). A state may,
however, “encourage a guilty plea by offering substantial benefits in return for the
plea.” Corbitt v. New Jersey, 439 U.S. 212, 219, 99 S.Ct. 492, 58 L.Ed.2d 466
(1978). “The standard of punishment is necessarily different for those who plead
and for those who go to trial. For those who plead, that fact itself is a consideration
in sentencing, a consideration that is not present when one is found guilty by a
jury.” Id. at 224, fn. 14.
                              a. Federal Jurisdictions
        {¶ 21} Several federal circuit courts of appeal have held that a sentencing
difference between codefendants raises no presumption of a penalty for standing
trial. United States v. Sanchez Solis, 882 F.2d 693, 699 (2d Cir.1989) (rejecting
defendant’s argument that he was “penalized for exercising his right to a trial”
because of a “disparity in sentences” between the defendant and his codefendants);
United States v. Chase, 838 F.2d 743, 751 (5th Cir.1988) (“However, a
codefendant’s sentence is immaterial to the propriety of a sentence imposed on a
defendant”); United States v. Frost, 914 F.2d 756, 774 (6th Cir.1990) (“Mere
disparity in sentences is insufficient to show that the sentencing court penalized
Frost and Griffin for going to trial”); United States v. Guerrero, 894 F.2d 261, 267
(7th Cir.1990) (“A mere showing of disparity in sentences among codefendants did
not, alone, demonstrate any abuse of discretion”); United States v. Granados, 962
F.2d 767, 774 (8th Cir.1992) (“A defendant cannot rely upon his co-defendant’s
sentence as a yardstick for his own; a sentence is not disproportionate just because
it exceeds a co-defendant’s sentence”); United States v. Whitecotton, 142 F.3d
1194, 1200 (9th Cir.1998) (“Disparity in sentences between codefendants is not




                                          8
                                 January Term, 2017




sufficient ground to attack a proper guidelines sentence”); United States v. Jackson,
950 F.2d 633, 637-638 (10th Cir.1991) (rejecting claim of disparate sentences
“based solely on the lesser sentence imposed on [a] codefendant”).
                             b. State Court Jurisdictions
        {¶ 22} Two state supreme courts have reached conclusions in accord with
the federal judiciary. See State v. Gregory, 340 N.C. 365, 424, 459 S.E.2d 638
(1995) (“Disparity in the sentences imposed upon codefendants does not result in
cruel and unusual punishment and is not unconstitutional”); People v. Caballero,
179 Ill.2d 205, 217, 688 N.E.2d 658 (1997) (“A sentence imposed on a codefendant
who pleaded guilty as part of a plea agreement does not provide a valid basis of
comparison to a sentence entered after a trial”).
        {¶ 23} Here, a petit jury found Anderson guilty of four felonies and the trial
court sentenced him to a term of 28 years which, upon remand, it reduced to an
aggregate term of 19 years, including mandatory incarceration for aggravated first
degree felonies and a mandatory three year penalty for the gun specification. The
trial court also specifically stated at Anderson’s resentencing hearing that the
sentence imposed is “not a penalty.”
        {¶ 24} This record highlights significant factual differences between these
codefendants: Boyd pled to three felony offenses, cooperated with the state, and
agreed to testify against Anderson, and the state agreed to recommend a nine year
sentence to the court. By contrast, Anderson was found guilty by a jury of four
felonies, with firearm specifications, and urges his sentence constitutes a trial tax
because it is disproportionate to the Boyd sentence. It is not a trial tax. Rather, the
trial court specifically stated that it did not punish Anderson for exercising his right
to a jury trial, and here a comparison with the sentence of the codefendant is invalid
because of the factual differences in their respective cases.
        {¶ 25} Thus, where one defendant pleads guilty to three felonies, agrees to
testify against a codefendant, and receives a sentence of nine years, and the




                                           9
                              SUPREME COURT OF OHIO




codefendant is convicted by a jury of four felonies and is sentenced to 19 years, and
when the trial court specifically states that the sentence is not being imposed as a
penalty for going to trial, no inference of impropriety arises if the sentence is within
the range of penalties provided by law.
                               Mandatory Sentencing
       {¶ 26} Anderson urges that mandatory sentencing with respect to juveniles
constitutes cruel and unusual punishment under the Eighth Amendment to the
United States Constitution because it mandates trial courts treat children as if they
were adults. The state responds that imposing a mandatory minimum sentence or
a mandatory consecutive prison term for a firearm specification on a juvenile being
tried as an adult does not prevent courts from making an individualized
determination of the appropriate sentence, nor does it make the sentence cruel and
unusual. The statutory penalty for those convicted of first degree felonies is a term
of three to eleven years. R.C. 2929.14(A)(1). And R.C. 2929.14(B)(1)(a)(ii) and
(C)(1)(a) specify a mandatory three year term served consecutively with, and prior
to, any prison term for an underlying felony if the offender is convicted of a firearm
specification.
                         a. Cruel and Unusual Punishment
       {¶ 27} The Eighth Amendment to the United States Constitution precludes
cruel and unusual punishment. “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.’ ” (Brackets sic.)
State v. Moore, ___ Ohio St.3d ___, 2016-Ohio-8288, ___ N.E.3d ___ ¶ 31, quoting
Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910). To
constitute cruel and unusual punishment, “the penalty must be so greatly
disproportionate to the offense as to shock the sense of justice of the community.”
McDougle v. Maxwell, 1 Ohio St.2d 68, 70, 203 N.E.2d 334 (1964).




                                          10
                                   January Term, 2017




       {¶ 28} In Graham, the United States Supreme Court stated that in adopting
categorical rules to define Eighth Amendment standards, the court first considers
“whether there is a national consensus against the sentencing practice at issue,” and
second, it determines “in the exercise of its own independent judgment whether the
punishment in question violates the Constitution.” 560 U.S. at 61, 130 S.Ct. 2011,
176 L.Ed.2d 825.
                                  i. National Consensus
       {¶ 29} In determining whether a national consensus exists against
mandatory sentencing for juvenile offenders, “ ‘[t]he “clearest and most reliable
objective evidence of contemporary values is the legislation enacted by the
country’s legislatures,” ’ ” id. at 62, quoting Atkins v. Virginia, 536 U.S. 304, 312,
122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), quoting Penry v. Lynaugh, 492 U.S. 302,
331, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Although this factor “is not itself
determinative of whether a punishment is cruel and unusual,” it 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).
       {¶ 30} In this case, Anderson concedes there is no national consensus
against mandatory sentencing for juveniles, and indeed, “most states permit or
require some or all juvenile offenders to be given mandatory minimum sentences.”
State v. Lyle, 854 N.W.2d 378, 386 (Iowa 2014). We agree there is no evidence of
a national consensus against the imposition of mandatory sentences on juvenile
offenders tried as adults.
                                  ii. Independent Review
       {¶ 31} “The     judicial     exercise     of   independent   judgment   requires
consideration of the culpability of the offenders at issue in light of their crimes and
characteristics, along with the severity of the punishment in question.” Graham,
560 U.S. at 67, 130 S.Ct. 2011, 176 L.Ed.2d 825. Also relevant is “whether the
challenged sentencing practice serves legitimate penological goals.” Id.




                                            11
                             SUPREME COURT OF OHIO




       {¶ 32} In Roper, where the trial court imposed the death penalty on
Christopher Simmons, who was 17 years old when he murdered Shirley Crook, the
United States Supreme Court concluded that “the Eighth and Fourteenth
Amendments forbid imposition of the death penalty on offenders who were under
the age of 18 when their crimes were committed. 543 U.S. at 578, 125 S.Ct. 1183,
161 L.Ed.2d 1.
       {¶ 33} In Graham, where the trial court sentenced Terrance Graham to life
in prison with no possibility of release for an armed burglary that he committed at
age 16, the court held that “the Constitution prohibits the imposition of a life
without parole sentence on a juvenile offender who did not commit homicide” and
stated that “[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 at 82.
       {¶ 34} And in Miller, where “two 14-year-old offenders * * * were
convicted of murder and sentenced to life imprisonment without the possibility of
parole,” the court concluded that “mandatory life without parole for those under the
age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition
on ‘cruel and unusual punishments.’ ” 567 U.S. at 465, 132 S.Ct. 2455, 183
L.Ed.2d 407.
       {¶ 35} The court further noted that “Graham, Roper, and our individualized
sentencing decisions make clear that a judge or jury must have the opportunity to
consider mitigating circumstances before imposing the harshest possible penalty
for juveniles.” (Emphasis added.) Id. at 489.
       {¶ 36} Anderson’s argument that his sentence is unconstitutional because
the trial court was not permitted to make an individualized determination when
sentencing him is not well taken. Anderson, Boyd, and M.H. robbed Williams and
Preston at gunpoint, and after shooting Williams, kidnapped Preston by forcing her
into the trunk of a car. Then Anderson and Boyd approached MacGowan, took her




                                         12
                                January Term, 2017




purse at gunpoint, and stole her cell phone. After being convicted of three counts
of aggravated robbery and one count of kidnapping with gun specifications,
Anderson, who faced a potential maximum sentence of 50 years, was resentenced
to an aggregate term of 19 years.
       {¶ 37} This case is more analogous to State v. Taylor G., 315 Conn. 734,
744, 110 A.3d 338 (2015), where the Supreme Court of Connecticut rejected Taylor
G.’s argument that his ten and five year mandatory minimum sentences for first
degree sexual assault and risk of injury to a child, as applied to juveniles, violated
the Eighth Amendment’s prohibition against cruel and unusual punishment. The
court concluded:


       The defendant’s sentences not only were far less severe than the
       sentences at issue in Roper, Graham and Miller, but were consistent
       with the principle of proportionality at the heart of the eighth
       amendment      protection    because    the   mandatory      minimum
       requirements, while limiting the trial court’s discretion to some
       degree, still left the court with broad discretion to fashion an
       appropriate sentence that accounted for the defendant’s youth and
       immaturity when he committed the crimes.


Id.
       {¶ 38} Here, R.C. 2929.14(A)(1) requires that a trial court impose a
mandatory minimum sentence of three years for first degree aggravated robbery
and kidnapping convictions, which is far less severe than the sentences imposed in
Roper, Graham, and Miller, and also does not violate the principle of
proportionality at the heart of the Eighth Amendment because the mandatory
minimum requirements leave the trial court with discretion to choose “from a wide




                                         13
                             SUPREME COURT OF OHIO




range of sentencing possibilities that equaled or exceeded the minimum term of
imprisonment.” Taylor G. at 746.
       {¶ 39} Accordingly, imposing a mandatory minimum sentence of three
years on juvenile offenders for aggravated robbery and for kidnapping does not
violate the Eighth Amendment’s prohibition against cruel and unusual punishment.
       {¶ 40} Here, although the court sentenced Anderson to 11 years for each
aggravated robbery conviction, these were imposed concurrently, but consecutive
to a five year sentence for the kidnapping conviction, and the court imposed a
consecutive three year firearm penalty as well.
       {¶ 41} Regarding the firearm specification, we have held in State v. White,
142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.2d 939, ¶ 31, “The purpose of a
firearm specification is to enhance the punishment of criminals who voluntarily
introduce a firearm while committing an offense and to deter criminals from using
firearms.”
       {¶ 42} Courts of other jurisdictions have upheld longer mandatory
sentences than the three year firearm specification at issue in this case. See State v.
Brown, 300 Kan. 542, 564, 331 P.3d 781 (2014) (“A hard 20 life sentence does not
irrevocably adjudge a juvenile offender unfit for society. Rather, in line with the
concerns expressed in Graham, it gives the offender a “ ‘meaningful opportunity to
obtain release based on demonstrated maturity and rehabilitation’ ” by permitting
parole after the mandatory 20-year minimum prison term is served), quoting
Graham, 560 U.S. at 75, 130 S.Ct. 2011, 176 L.Ed.2d 825; Ouk v. Minnesota, 847
N.W.2d 698, 701 (Minn.2014) (“a mandatory sentence of life imprisonment with
the possibility of release after 30 years is not encompassed within the rule in Miller
* * * because it does not require the imposition of the harshest term of
imprisonment: life without the possibility of release”); Commonwealth v. Okoro,
471 Mass. 51, 59, 26 N.E.3d 1092 (2015) (“we do not read Miller as a whole to
indicate that the proportionality principle at the core of the Eighth Amendment




                                          14
                                  January Term, 2017




would bar a mandatory sentence of life with parole eligibility after fifteen years for
a juvenile convicted of murder in the second degree”).
        {¶ 43} We conclude, therefore, that a mandatory three year prison sentence
imposed on a juvenile offender tried as an adult for a conviction of a firearm
specification does not violate the Eighth Amendment because it serves a legitimate
penological goal, is proportional to the crimes committed, and is not one of the
harshest possible penalties for a juvenile offender.
                                    b. Due Process
        {¶ 44} Because Anderson has failed to raise the issue of whether sentencing
a juvenile bound over for trial as an adult to a mandatory sentence violates due
process in the appellate court or the trial court, he has forfeited his right to present
it for the first time in this court. Accordingly, we decline to address it in this appeal.
State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15.
                                      Conclusion
        {¶ 45} A disparity existing between sentences imposed on codefendants is
insufficient to establish a trial court imposed a longer sentence as a trial tax. Neither
does Anderson’s aggregate 19 year sentence constitute cruel and unusual
punishment because there is no national consensus against mandatory sentencing
for juveniles, the sentence is proportional to the crimes he committed, and it is not
one of the harshest possible penalties for juvenile offenders tried as adults.
        {¶ 46} Finally, Anderson has forfeited his right to argue that mandatory
sentencing violates due process because he failed to raise that issue on direct appeal.
Accordingly, we affirm the judgment of the court of appeals.
                                                                    Judgment affirmed.
        KENNEDY, FISCHER, and DEWINE, JJ., concur.
        FRENCH, J., concurs in judgment only.
        O’CONNOR, C.J., concurs in part and dissents in part, with an opinion.
        O’NEILL, J., dissents, with an opinion.




                                           15
                            SUPREME COURT OF OHIO




                               _________________
       O’CONNOR, C.J., concurring in part and dissenting in part.
       {¶ 47} I disagree with the court’s judgment for the reasons that I articulated
in my dissenting opinion in State v. Aalim, ___ Ohio St.3d ___, 2017-Ohio-2956,
__ N.E.3d ___. Because I believe that the mandatory-transfer scheme codified in
R.C. 2152.10(A)(2)(b) and 2152.12(A)(1)(b) is unconstitutional, I would conclude
that appellant, Rickym Anderson, was bound over to adult court without due
process. Therefore, in my view, the General Division of the Montgomery County
Court of Common Pleas lacked jurisdiction to try Anderson, and his convictions
and sentence were void ab initio. See, e.g., State v. Golphin, 81 Ohio St.3d 543,
547, 692 N.E.2d 608 (1998). Accordingly, I would not reach the merits of
Anderson’s appeal. Instead, I would remand this case to the juvenile court with
instructions to follow the procedure for discretionary transfer, including the
investigation required by R.C. 2152.12(C) followed by an amenability hearing
pursuant to R.C. 2152.12(B).
       {¶ 48} Pursuant to the majority’s holding in Aalim, however, the trial court
did not lack jurisdiction to try Anderson. With respect to the merits of the “trial
tax” issue that he raises, I concur with the majority that the court did not punish
Anderson for exercising his right to stand trial. I write separately to discuss the
underlying circumstances in greater detail in an effort to provide guidance to
sentencing courts. As the complexity of the first syllabus paragraph of the majority
opinion demonstrates, these inquiries are fact-specific and require a review of the
specific statements made by the court at the sentencing hearing and the
circumstances of the codefendants’ convictions.
       {¶ 49} In this case, I would find that clarifying statements made by the trial
court at Anderson’s resentencing—in addition to the court’s statement that
Anderson’s sentence was not imposed as a penalty for going to trial and the fact
that his sentence fell within the range of penalties provided by law—support the




                                         16
                                January Term, 2017




conclusion that Anderson was not subjected to an impermissible trial tax. Although
the trial court stated that “all three people involved in these [crimes] were equally
culpable,” it also thoroughly explained why Anderson was sentenced to a
significantly longer prison term than his codefendant.
       {¶ 50} First, the trial court noted that Anderson’s codefendant “admitted
what he did and * * * agreed to testify against [Anderson] if required.” As the
majority explains, the fact that the codefendant pled guilty and accepted
responsibility for his role in the crimes is a reasonable consideration in sentencing.
Majority opinion at ¶ 24. The trial court found that while Anderson’s codefendant
accepted responsibility and agreed to a prison sentence as part of his plea
agreement, Anderson continued to deny culpability as late as the time of the
presentence-investigation report, when he “reported he was with some people who
decided to rob some people * * * [and] stated he personally did not comment [sic]
any offense but was hanging around with people who did and that he was not under
the control of himself as the drugs had taken over his mind.”
       {¶ 51} Second, the trial court emphasized that although Anderson did not
brandish a weapon during each of the crimes, he was involved in all of them and
never made an effort to leave but instead continued to participate in the offenses.
And he did brandish a weapon during one of the later crimes.
       {¶ 52} Third, the trial court described Anderson’s prior offenses, which
included theft, robbery, and disorderly-conduct adjudications, probation violations,
and a corrections commitment.
       {¶ 53} The trial court cited the above facts in explaining its findings that
Anderson was not amenable to treatment and that a 19-year prison sentence was
justified, emphasizing in particular the fact that Anderson failed to take
responsibility even after being convicted and admitting that he was present at the
commission of each crime.




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       {¶ 54} In addition to the trial court’s unequivocal statement that the
sentence was “not a penalty” imposed on Anderson for failing to plead guilty and
the facts that Anderson was found guilty of four felonies and his codefendant pled
guilty only to three, the trial court’s detailed rationale for imposing a 19-year
sentence is sufficient to defeat Anderson’s claim that his sentence was based on an
impermissible trial tax.    The record reflects that the trial court considered
Anderson’s numerous prior offenses and prior failures to abide by court orders, the
nature and circumstances of the offenses that he committed in this case, and his
refusal to accept responsibility for his criminal conduct.
       {¶ 55} This is not to suggest that such a detailed explanation is required at
every sentencing. However, in the circumstances here, the trial judge’s explanation
has provided this court a sufficient record upon which to conclude that there was
no sentencing error.
                               _________________
       O’NEILL, J., dissenting.
       {¶ 56} Respectfully, I must dissent.
       {¶ 57} In light of the specific facts of this record, I agree that appellant,
Rickym Anderson, did not incur a “trial tax” for exercising his right to stand trial.
It appears instead that his codefendant benefitted from a plea deal in which the state
agreed to recommend a nine-year prison sentence. At Anderson’s first sentencing
hearing, the court made no reference to his decision to stand trial and explained that
Anderson’s prior offenses justified the severe adult sentence imposed. And at
resentencing, the court explained on the record that it was not imposing a trial tax
on Anderson.
       {¶ 58} I do not believe that the imposition of different sentences on
codefendants alone can raise the inference of a trial tax. Even if that were the
standard, the trial court explained unequivocally that Anderson was not being




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punished severely for invoking his right to stand trial but, rather, because he
committed crimes for which he deserved to be treated severely.
       {¶ 59} Nonetheless, I cannot join the majority. I agree with the chief justice
that the court of appeals’ judgment should be reversed and the matter remanded to
the juvenile court because Anderson was transferred to adult court under the
unconstitutional mandatory-transfer statutes. I would reverse and remand pursuant
to the logic of State v. Aalim, ___ Ohio St.3d ___, 2016-Ohio-8278, ___ N.E.3d
___, reconsidered and vacated, __ Ohio St.3d __, 2017-Ohio-2956, __ N.E.3d __.
       {¶ 60} Moreover, I cannot agree with the majority’s decision not to
determine whether a mandatory sentence comports with the due-process
protections owed to juvenile offenders simply because Anderson challenged his
mandatory sentence only under the Eighth Amendment to the United States
Constitution. This is a legally invalid distinction, because the prohibition against
cruel and unusual punishments in the Eighth Amendment is inherently a due-
process protection that applies against Ohio through incorporation in the
Fourteenth Amendment’s Due Process Clause. Roper v. Simmons, 543 U.S. 551,
560, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); see also Louisiana ex rel. Francis v.
Resweber, 329 U.S. 459, 463, 67 S.Ct. 374, 91 L.Ed. 422 (1947) (plurality opinion)
(“The Fourteenth [Amendment] would prohibit by its due process clause execution
by a state in a cruel manner”). The Eighth Amendment itself does not apply to the
states, but its protections are inherent in the procedures owed by the states to the
people under the Fourteenth Amendment. For that reason it is odd to say that
Anderson challenged his mandatory sentence under the Eighth Amendment but
forfeited the issue under the Due Process Clause.
       {¶ 61} Nonetheless, the majority relies again today on the principle that
“ ‘an appellate court will not consider any error which counsel for a party
complaining of the trial court’s judgment could have called but did not call to the
trial court’s attention at a time when such error could have been avoided or




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corrected by the trial court,’ ” State v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d
277 (1986), quoting State v. Childs, 14 Ohio St.2d 56, 236 N.E.2d 545 (1968),
paragraph three of the syllabus. See majority opinion at ¶ 44, citing State v.
Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15. In
rejecting the chance to consider the due-process issue, the majority opinion says
nothing about the countervailing principle that “this court has discretion to consider
a forfeited constitutional challenge to a statute” and “review the trial court decision
for plain error,” Quarterman at ¶ 16. If this court is going to exercise its discretion
to avoid considering an important constitutional issue under the plain-error
standard, I think that it should say so and explain why.
       {¶ 62} For at least the past 100 years, the lodestar of juvenile justice has
been individualized assessment. See In re Gault, 387 U.S. 1, 14-15, 87 S.Ct. 1428,
18 L.Ed.2d 527 (1967) (“From the juvenile court statute adopted in Illinois in 1899,
the system has spread to every State in the Union, the District of Columbia, and
Puerto Rico. * * * The early reformers * * * believed that society’s role was not to
ascertain whether the child was ‘guilty’ or ‘innocent,’ but ‘What is he, how has he
become what he is, and what had best be done in his interest and in the interest of
the state to save him from a downward career’ ”); Miller v. Alabama, 567 U.S. 460,
478-479, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012); In re C.P., 131 Ohio St.3d 513,
2012-Ohio-1446, 967 N.E.2d 729, ¶ 77-78; Aalim, __ Ohio St.3d __, 2016-Ohio-
8278, __ N.E.3d __, at ¶ 18-19.
       {¶ 63} Children have the due-process right to be evaluated prior to the
imposition of punishment by a judge who has paid special attention to their
particular circumstances. C.P. at ¶ 77-78. I do not believe that this right ceases to
exist when a juvenile court sends a child upstairs to adult court for adult
proceedings. The defendant is still a juvenile, without regard to what forum he
finds himself in. Not every child who displays, brandishes, indicates possession of,
or uses a firearm to commit an offense deserves exactly the mandatory three




                                          20
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additional years of imprisonment required by R.C. 2929.14(B)(1)(a)(ii). Judges are
elected in their communities to impose punishment in each case that comes before
them. The mandatory sentencing scheme, when applied to those who committed
their crimes while juveniles, thwarts the right to individualized assessment by
imposing a one-size-fits-all punishment.
       {¶ 64} For the foregoing reasons, I dissent.
                              _________________
       Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and
Meagan D. Woodall and Heather N. Jans, Assistant Prosecuting Attorneys, for
appellee.
       Timothy Young, Ohio Public Defender, and Stephen A. Goldmeier and
Charlyn Bohland, Assistant Public Defenders, for appellant.
       Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor,
Michael J. Hendershot, Chief Deputy Solicitor, Stephen P. Carney, Deputy
Solicitor, and Aaron S. Farmer, Assistant Attorney General, urging affirmance on
behalf of amicus curiae Ohio Attorney General Michael DeWine.
       Ron O’Brien, Franklin County Prosecuting Attorney, and Seth L. Gilbert,
Assistant Prosecuting Attorney, urging affirmance on behalf of amicus curiae
Franklin County Prosecuting Attorney Ron O’Brien.
                              _________________




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