[Cite as State v. Lane, 2014-Ohio-2010.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


STATE OF OHIO,                                  :      OPINION

                 Plaintiff-Appellee,            :
                                                       CASE NO. 2013-G-3144
        - vs -                                  :

THOMAS M. LANE, III,                            :

                 Defendant-Appellant.           :


Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 12 C
000058.

Judgment: Affirmed.


James R. Flaiz, Geauga County Prosecutor, Craig A. Swenson and Nicholas A.
Burling, Assistant Prosecutors, Courthouse Annex, 231 Main Street, Suite 3A,
Chardon, OH 44024 (For Plaintiff-Appellee).

Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Thomas M. Lane, III, appeals his conviction in the Geauga

County Court of Common Pleas following his guilty plea to three counts of aggravated

murder, two counts of attempted aggravated murder, and felonious assault. Appellant’s

conviction resulted from a shooting at Chardon High School in which he killed three

students, paralyzed another, and injured two others.        At the time of the offenses,

appellant was 17 years old. At issue is whether Ohio’s mandatory juvenile bindover
statutes, at R.C. 2152.10 and R.C. 2152.12, are unconstitutional and whether

appellant’s sentence to life in prison without parole violates the prohibition against cruel

and unusual punishment. For the reasons that follow, we affirm.

Substantive Facts and Procedural History

       {¶2}   On March 1, 2012, a complaint was filed in the Geauga County Juvenile

Court, charging appellant with three counts of aggravated murder by shooting and killing

three students at Chardon High School, two counts of attempted aggravated murder

against two other students, and one count of felonious assault against another student.

On the same date, the state moved to transfer this case to the General Division of the

Court of Common Pleas for appellant to be tried as an adult.

       {¶3}   On March 21, 2012, the juvenile court ordered Phillip Resnick, M.D.,

forensic psychiatrist, to complete a competency evaluation to determine whether

appellant was competent to assist his attorneys in the juvenile court proceedings. On

May 2, 2012, the juvenile court held a competency hearing. Following the hearing, the

court found that appellant was competent for purposes of the juvenile proceedings.

       {¶4}   On May 24, 2012, the juvenile court held a bindover hearing. Following

the hearing, the court found that appellant was 17 years old on the date of the alleged

offenses. The court also found that probable cause existed to believe that appellant

committed three counts of aggravated murder and two counts of attempted aggravated

murder, which are “category one offenses” under R.C. 2152.02(B)(B), mandating

bindover under R.C. 2152.10 and R.C. 2152.12.            As a result, the juvenile court

transferred appellant’s case to the general division.




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      {¶5}   On June 4, 2012, appellant was indicted in a six-count indictment charging

him with aggravated murder of Demetrius Hewlin, an unclassified felony, in violation of

R.C. 2903.01(A) (Count One), with a multiple-killings death penalty specification, in

violation of R.C. 2929.04(A)(5), and a firearm specification, in violation of R.C.

2941.145(A); aggravated murder of Russell King, Jr. (Count Two), with the same death

penalty specification and a firearm specification; aggravated murder of Daniel Parmertor

(Count Three), with the same death penalty specification and a firearm specification;

attempted aggravated murder of Nate Mueller, a felony of the first degree, in violation of

R.C. 2903.01(A) and R.C. 2923.02(A) (Count Four), with a firearm specification;

attempted aggravated murder of Nicholas Walczak (Count Five), with a firearm

specification; and felonious assault of Joy Rickers, a felony of the second degree, in

violation of R.C. 2903.11(A)(2) (Count Six), with a firearm specification. Appellant pled

not guilty. Subsequently, he pled not guilty by reason of insanity.

      {¶6}   On February 8, 2013, appellant filed a motion for an order referring him for

a competency evaluation by the Psycho-Diagnostic Clinic.          The court granted the

motion. In her evaluation, Lynn A. Luna Jones, Ph.D., forensic psychologist, concluded

that appellant was competent to stand trial.

      {¶7}   On February 26, 2013, the trial court held a competency hearing, after

which the court found appellant was competent to stand trial. Later that day, he filed a

written guilty plea and the court held a change-of-plea hearing. After waiving his rights,

appellant withdrew his plea of not guilty by reason of insanity, and pled guilty to each

count of the indictment. Pursuant to the parties’ plea bargain, appellant pled guilty to

the aggravated murder of Demetrius Hewlin, Russell King, Jr., and Daniel Parmertor in




                                               3
Counts One, Two, and Three, respectively, and the firearm specifications to those

counts. Further, appellant pled guilty to attempted aggravated murder of Nate Mueller

and Nicholas Walczak in Courts Four and Five, respectively, and the firearm

specifications to those counts. Finally, appellant pled guilty to Count Six, felonious

assault of Joy Rickers, and the firearm specification to that count. In exchange for his

plea, the death penalty specifications were dismissed.

       {¶8}   In support of the factual basis for the guilty plea, the state offered: (1) the

video recording of appellant’s crimes, (2) the dash cam video of his apprehension by

Geauga County Sheriff’s Deputy Jon Bilicic, and (3) the video of appellant’s confession

given to detectives at the Geauga County Safety Center.

       {¶9}   The video taken from a security camera in the school cafeteria shows that

on February 27, 2012, at about 7:30 a.m., appellant is sitting alone at a table in the

cafeteria with his book bag on the table. He watches a group of eight to nine students

who are talking to each other at a nearby table. Appellant then moves to a table directly

behind this group of students and continues to watch them. One of these students, Nick

Walczak, is standing at the end of the table and the others are seated, some with their

backs to appellant and others facing in his direction.

       {¶10} After watching these students for about eight minutes, appellant goes

through his book bag. He pulls out a handgun and a knife, stands, aims his gun at the

group of students in front of him, and starts shooting. Appellant shoots Russell King in

the back of the head. He also shoots Nick Walczak who falls to the floor. Appellant then

walks around his table and along the victims’ table while repeatedly shooting at them.

He shoots Demetrius Hewlin in the head and also shoots Daniel Parmertor in the head.




                                             4
Two other students, Nate Mueller and Joy Rickers, are also shot. Everyone in the

cafeteria runs out. Appellant also runs out of the cafeteria with his gun and knife.

       {¶11} The video taken by a security camera in the adjoining hallway shows a

large group of students running frantically from the cafeteria and down the hallway.

While Nick Walczak is limping down the hallway, appellant runs up to him from behind

and shoots him again, this time in the back of his neck at close range. While appellant

is running up to Nick, one can see across the chest of appellant’s long-sleeve, pullover

shirt in large bold letters the word, “Killer.” Nick falls to the floor and appellant runs

away from him.

       {¶12} Meanwhile, Deputy Bilicic, while on routine patrol, was advised of the

shooting and given a description of the suspect. The deputy was told that the suspect

had fled the high school. At about 8:30 a.m., Deputy Bilicic was dispatched to Woodin

Road, about one mile from the school, and advised the suspect was at that location.

When Deputy Bilicic approached the area, he saw appellant sitting on the side of the

road with his handgun and knife near him. After Deputy Bilicic advised appellant of his

Miranda rights, he said he just shot people at the high school.

       {¶13} Deputy Bilicic drove appellant to the Geauga County Safety Center where

he was interviewed by two Geauga County Sheriff’s detectives.           After again being

advised of his Miranda rights, appellant said that at about 7:00 that morning, he rode the

school bus to Chardon High School.          He went in the school with a .22-caliber,

semiautomatic Ruger handgun and a knife he had put in his book bag. He said he

brought the gun because he planned to shoot people. He brought the knife in case he

needed another weapon while reloading his gun. He said he went in and out of the




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bathroom three times because he wanted to shoot students and was thinking about

doing it. He said that when he left the bathroom for the last time, he sat alone at a table

directly behind a group of students he was going to shoot so he would be close to them.

       {¶14} Appellant said that at about 7:30 a.m., he switched the safety off on the

gun. He then pulled his pistol and knife out of his book bag. He stood up and, while

aiming at the group, fired all ten rounds in the clip. He realized he needed to reload his

gun so he ran out of the cafeteria. Appellant said that as he left the cafeteria, an adult

cafeteria monitor started following him so appellant spun around and aimed his gun at

him so he would not chase him. Appellant then ran down the hallway and exited the

building.

       {¶15} Appellant said that after he ran out of the school, he dropped the empty

clip out of the gun and loaded it with a second clip. He ran into the woods until he

reached a road. He sat down on the side of the road until Deputy Bilicic approached

him.

       {¶16} Appellant said he did not know why he did this. He said he does not have

problems with anyone and was not upset with anyone. He said that no one had bullied

him. This was just something he chose to do. He said that by doing this he was trying

to accomplish something. He said he created this goal and he needed to see it through.

He said he had been thinking about doing this for about two weeks.

       {¶17} Appellant said he stole the gun the day before the shooting from his uncle

while he was visiting him. He also stole a second magazine and a handful of bullets

that were stored with the gun. When he stole the gun it was empty. The night before




                                            6
the shooting, he loaded both magazines and put one of them in the gun. He put the gun

in his book bag that morning because he felt he would probably shoot people.

         {¶18} Appellant said he did not choose any particular people to shoot. Rather,

he said he shot at a random group of people. He said that, while he had seen these

students before, he did not know them. He said he aimed at their heads so they would

die quicker and not suffer.

         {¶19} Appellant said he attended Chardon High School for the first half of ninth

grade.     Since then, he has attended Lake Academy, an alternative high school in

Willoughby. He decided to go there because Lake Academy gives its students the

option of working while going to school. He said he planned to work and earn money to

go to college. Every school day, he takes the school bus to Chardon High School,

which arrives there at about 7:00 a.m. He does not take classes there. He just waits in

the cafeteria for about one-half hour until 7:30 a.m., when he catches a bus that takes

him to Auburn Career Center in Concord Township. From there, he takes another bus

to Lake Academy. Appellant said he shot the students while he was waiting for the bus

to take him to Auburn Career Center.

         {¶20} Appellant said he is in the eleventh grade, but also takes twelfth grade

classes. He was going to graduate that year so he would be graduating early. He was

planning to go to college to study psychology. He believes he is more mature than

others his age.

         {¶21} Appellant said he bought the shirt with the word “Killer” printed across the

chest about one week earlier. He said he wore it today because he was going to be

shooting people.




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       {¶22} In response to the detectives’ questions, appellant insisted he never shot

anyone while he was running down the hallway.

       {¶23} Appellant said he shot a lot of bullets into a small group of people and

thought someone would be killed. He said he knows what he did was wrong; he feels

terrible for doing it; and he has regret.

       {¶24} Appellant said he has lived with his maternal grandparents since he was

about three years old. He said that at that time, the court decided his parents were not

fit to raise him and his grandparents were awarded custody.

       {¶25} Dr. Lynn A. Luna Jones of the Psycho-Diagnostic Clinic stated in her

competency report that during appellant’s prior competency evaluation with Dr. Resnick,

appellant told him that he had heard voices and experienced delusions.        However,

appellant admitted to Dr. Jones that he has never actually experienced any of these

symptoms. Appellant admitted he “lied” to Dr. Resnick when he told him he had heard

voices. With regard to appellant’s report to Dr. Resnick that he experienced anxiety and

confusion, he denied that he ever felt that way. He also denied he had any prior fears

of losing his mind, as he had previously reported. Appellant said he reported these

symptoms because he was trying to appear schizophrenic. Finally, he said he lied

about his report of being a victim of sexual abuse because he thought it “couldn’t hurt”

to say he was.

       {¶26} Appellant said he was able to successfully manipulate Ravenwood mental

health staff at the jail to believe he was mentally ill. He said he feigned symptoms of

being depressed, suicidal, sexually abused, psychotic, and schizophrenic. He said he

was able to “force [himself] to cry when necessary to convince staff he was depressed.”




                                            8
He said he told staff he was claustrophobic so he could be put in with the general jail

population instead of being segregated from the other inmates. Regarding the voices

he reported to staff at the Geauga County Safety Center, appellant said he “made it all

up.”

       {¶27} When Dr. Jones asked appellant why he decided to change his report of

mental health symptoms, he said he “was afraid that if [he] didn’t come clean, they

wouldn’t let me change my plea to guilty.”

       {¶28} Dr. Jones concluded that appellant has no mental condition or defect and

has no signs of delusions, hallucinations, anxiety, depression, or psychosis. She further

concluded that appellant fabricated these symptoms in order to evade prosecution.

       {¶29} The court found that appellant voluntarily entered his guilty plea; accepted

his guilty plea; and found him guilty of each count of the indictment. The court ordered

a pre-sentence report and scheduled the matter for sentencing.

       {¶30} The case proceeded to sentencing on March 19, 2013. After taking his

seat at the defense table, appellant took off his dress shirt, revealing an undershirt with

the word “Killer” written on it similar to the shirt he wore on February 27, 2012.

Appellant’s counsel told the court that appellant is now 18 years old, and had instructed

him not to present any mitigation on his behalf. Instead, he said appellant wanted to

make a statement on his own behalf. Counsel said that he had urged him not to make

the statement he expected appellant to make, but that he has the right to make it.

       {¶31} Appellant told the court he voluntarily and against the advice of his

counsel waived his right to present information in mitigation of punishment. Appellant

then turned around and, with his middle finger raised toward the victims’ families, said to




                                             9
them: “This hand that pulled the trigger, that killed your sons, now masturbates to the

memory. F_ _ _ all of you.”

      {¶32} Phyllis Ferguson, Demetrius Hewlin’s mother, stated that appellant’s

murder of her son has devastated the lives of every member of their family. She spoke

of how kind and unselfish Demetrius was. Ms. Ferguson said that whenever her back

hurt, Demetrius would put her shoes on and tie them for her. She said that appellant

stole her son’s life and he should never be allowed to do this to anyone again.

      {¶33} Holly Walczak, Nick Walczak’s mother, while looking at appellant, said,

“You can smile all you want.” She told appellant that because he took a gun to school

and shot innocent students, he changed the lives of every member of her family and

their quiet, peaceful town will never be the same.      Her son is now paralyzed and

confined to a wheelchair. She said that Nick had driven appellant home from school

and was always kind to him, and she asked appellant why he would want to hurt Nick.

She thus debunked appellant’s statement to the detectives that he did not know his

victims. She told the court she watches her son suffer daily as a result of his injuries.

She asked the court to never release appellant from prison because he is dangerous

and has caused too much pain.

      {¶34} Crystal King, Russell King’s older sister, told the court that the murder of

her brother has been the most difficult thing she has ever had to endure. She said she

was driving to work on February 27, 2012, when her fiancé called her and said there

had been a shooting at the high school. She called Russell’s cell phone over and over,

but there was no answer. She called her father. When he answered, he could hardly

breathe. She asked if he had heard anything, and he said, “he’s been shot.” Her




                                           10
parents picked her up from work and drove her to the hospital. The doctor said it was

very bad. He said Russell had been shot in the head and was in surgery and if he

made it, he would be disabled. They went in the waiting room, which was filled with so

many people, the hospital staff moved them to a conference room. She said she does

not remember seeing any faces, just a sea of friends and family members that filled the

entire hallway. Realizing that all these people were there for her brother brought tears

to her eyes. She then returned to Russell’s room. As she walked in, her mother was

yelling, “no, no, no,” over and over again. Crystal learned that Russell had just passed

away. She said that appellant took not only the life of her only sibling and her parents’

only son, he also took the sense of safety from every parent in the community who

sends their children to school. She said that appellant took so much away from so

many people, he deserves to spend the rest of his life in prison without parole. Like

Holly Walczak, Crystal said that Russell and appellant used to be friends, again

contradicting appellant’s statement to police that he did not know his victims.

       {¶35} Finally, Dina Parmertor, Daniel Parmertor’s mother, told the court that

appellant murdered her son Danny who was just 16 years old. She said she will suffer

the rest of her life without her son. She is in pain every minute of every day. She no

longer wants to enjoy life or visit with family and friends. She will never be the same

because of appellant. She said that appellant has stolen her life. She said he also stole

Danny from his little brother and sister. Her younger children do not see the mother

they used to know because she is in constant anguish. They want to help her, but they

are in too much pain themselves. She said she sees no remorse from appellant.




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         {¶36} The court sentenced appellant on Count One, the aggravated murder of

Demetrius Hewlin, to life in prison without parole; on Count Two, the aggravated murder

of Russell King, Jr., to life in prison without parole; and on Count Three, the aggravated

murder of Daniel Parmertor, to life in prison without parole. With respect to Count Four,

the attempted aggravated murder of Nate Mueller, the court sentenced appellant to

eight years in prison.     On Count Five, the attempted aggravated murder of Nick

Walczak, the court found that, after shooting Nick, appellant chased him down the

hallway as Nick was running for his life. Appellant sprinted up behind him and shot him

from behind. Nick is now paralyzed and confined to a wheelchair. The court noted that

appellant’s conduct merits the maximum sentence of 11 years in prison. On Count Six,

the felonious assault of Joy Rickers, the court sentenced appellant to six years in

prison. Each of these prison terms was ordered to be served consecutively to each

other.

         {¶37} The court also imposed three-year prison terms for four of the firearm

specifications to Counts One, Two, Three, and Five, the aggravated murders and the

attempted aggravated murder of Nick Walczak, based on appellant’s overall objectives

in his criminal enterprise and the serious injuries he inflicted. The court noted that these

four victims suffered the most extreme injury, the three murdered victims having lost

their lives and Nick being confined to a wheelchair. These terms were ordered to be

served consecutively to the prison terms imposed for each of the four underlying

felonies.

         {¶38} Thus, in addition to the three life terms for the aggravated murders, the

court imposed a total of 25 years in prison on the other offenses and 12 years for the




                                            12
firearm specifications, all of which were ordered to be served consecutively, for a total of

37 years in prison.

       {¶39} Appellant     appeals    his   conviction    and    sentence,    asserting   four

assignments of error.     Because his first two assigned errors are related, they are

considered together. They allege:

       {¶40} “[1.] THE JUVENILE TRIAL COURT COMMITTED PLAIN, REVERSIBLE

ERROR BY BINDING APPELLANT OVER TO THE COURT OF COMMON PLEAS TO

BE TRIED AS AN CONSTITUTIONAL RIGHTS (SIC).

       {¶41} “[2.] THE TRIAL COURT COMMITTED PLAIN ERROR, AS A MATTER

OF LAW, BY SENTENCING APPELLANT TO THREE TERMS OF INCARCERATION

OF   LIFE    WITHOUT       THE    POSSIBILITY       OF    PAROLE,      IN    VIOLATION    OF

APPELLANT’S CONSTITUTIONAL RIGHTS.”

Effect of Appellant’s Guilty Plea on His Constitutional Challenge to Mandatory

Bindover

       {¶42} As a preliminary matter, the state argues that because appellant pled

guilty, he waived the right to challenge the constitutionality of Ohio’s mandatory

bindover statutes, at R.C. 2152.10 and R.C. 2152.12. In support, the state cites State v.

Quarterman, 9th Dist. Summit No. 26400, 2013-Ohio-3606, discretionary appeal

allowed at 137 Ohio St.3d 1440, 2013-Ohio-5678, in which the Ninth District held that by

pleading guilty, the juvenile defendant, whose case had been bound over to the general

division, waived his right to challenge the constitutionality of Ohio’s mandatory bindover

provisions and his attorney’s failure to object to their application. Id. at ¶8.




                                              13
       {¶43} However, this court in State v. Platt, 11th Dist. Portage No. 89-P-2065,

1990 Ohio App. LEXIS 3508 (Aug. 17, 1990), rejected this argument. In Platt, this court

held that a voluntary guilty plea waives all defects in the case, except the lack of subject

matter jurisdiction of the court that accepted the plea. Id. at *4-*5. Further, this court

held that by entering a guilty plea, a juvenile does not waive objections to constitutional

deficiencies in the bindover hearing wherein the juvenile court transferred jurisdiction to

the general division. Id. at *5-*6. Accord State v. Riggins, 68 Ohio App.2d 1 (8th

Dist.1980), paragraph two of the syllabus.

       {¶44} Thus, appellant’s challenge to the constitutionality of Ohio’s mandatory

bindover statutes is properly before this court.

Ohio’s Mandatory Bindover of Juvenile Offenders

       {¶45} Appellant     argues   that   Ohio’s   mandatory     bindover   statutes   are

unconstitutional in that they allegedly violate due process and equal protection and the

right to be free from cruel and unusual punishment. We do not agree.

       {¶46} A duly enacted Ohio statute enjoys “a strong presumption of

constitutionality.”   State v. Collier, 62 Ohio St.3d 267, 269 (1991). Further, where

reasonably possible, courts must interpret challenged statutes so as to avoid

constitutional infirmities. Akron v. Rowland, 67 Ohio St.3d 374, 380 (1993). Before a

court may declare a statute unconstitutional, the party challenging its constitutionality

bears the heightened burden of proving beyond a reasonable doubt that a clear conflict

exists between the legislation and some particular constitutional provision. State v.

May, 11th Dist. Ashtabula No. 2005-A-0011, 2006-Ohio-3406, ¶19; State ex rel.

Dickman v. Defenbacher, 164 Ohio St. 142 (1955), paragraph one of the syllabus.




                                             14
Accordingly, there is a strong presumption that Ohio’s mandatory bindover statutes are

constitutional. Further, the constitutionality of a statute is a matter of law that we review

de novo. State v. Jenson, 11th Dist. Lake No. 2005-L-193, 2006-Ohio-5169, ¶5.

       {¶47} R.C. 2152.02(BB) provides that a “category one offense" means

aggravated murder, murder, attempted aggravated murder, or attempted murder.

       {¶48} Further, R.C. 2152.10(A)(1)(a) provides that a child who is alleged to be a

delinquent child is eligible for mandatory transfer and shall be transferred pursuant to

R.C. 2152.12 if the child is charged with a category one offense, and the child was at

least 16 years old at the time of the offense.

       {¶49} Moreover, R.C. 2152.12(A)(1)(a)(i) provides that after a complaint has

been filed alleging that a child is a delinquent child for committing an act that would be

aggravated murder, murder, attempted aggravated murder, or attempted murder if

committed by an adult, the juvenile court at a hearing shall transfer the case to the

general division if the child was 16 or 17 years old at the time of the offense and there is

probable cause to believe that the child committed the offense.           In explaining this

statute, the Supreme Court of Ohio has stated:

       {¶50} [The juvenile] court has a duty to transfer a case when it

              determines that the elements of the transfer statute are met, to wit:

              (1) the charged act would be aggravated murder, murder,

              attempted aggravated murder, or attempted murder if committed by

              an adult, (2) the child was 16 or 17 at the time of the act, [and] (3)

              there is probable cause to believe that the child committed the act




                                             15
               charged. R.C. 2152.12(A)(1)(a). In re A.J.S.,120 Ohio St.3d 185,

               2008-Ohio-5307, ¶22.

Appellant’s Due Process Challenge to Mandatory Bindover

         {¶51} First, appellant argues that Ohio’s mandatory bindover statutes violated

his right to due process. Although he does not expressly state whether his argument is

based on procedural or substantive due process, we interpret it as based on the former.

State v. Lee, 11th Dist. Lake No. 97-L-091, 1998 Ohio App. LEXIS 4250, *12 (Sep. 11,

1998).

         {¶52} Procedural due process under the Fourteenth Amendment to the United

States Constitution and Section 15, Article I of the Ohio Constitution are identical and

require that, before the state can divest a person of a right, he or she must be given

notice and an opportunity to be heard. Lee, supra.

         {¶53} Appellant argues his due process rights were violated because Ohio’s

bindover statutes do not provide for an amenability hearing at which the court considers

the factors set forth in Kent v. United States, 383 U.S. 541 (1966), before the juvenile

court orders a bindover.

         {¶54} In Kent, the District of Columbia’s bindover statute provided that the

juvenile court may waive its jurisdiction over the juvenile, but did not provide any

definitive bindover procedures.    After a motion for a bindover was filed, the judge

summarily and without any hearing or explanation ordered the juvenile to be held for

trial as an adult. The juvenile was then tried and convicted. The court of appeals

affirmed. The Supreme Court of the United States reversed the conviction on the

ground that due process required more procedure than was provided to the juvenile. Id.




                                           16
at 556. The Supreme Court in Kent held that in order to satisfy due process: (1) the

juvenile court must hold a hearing, (2) at which the juvenile is represented by counsel,

and (3) the juvenile court must provide a statement of reasons for its bindover decision.

Id. at 557. Further, the Court in Kent held that in deciding whether to order a bindover,

the juvenile court should consider certain listed factors. Id. at 566-567.

       {¶55} As noted above, appellant argues that, pursuant to Kent, due process

required an amenability hearing before he could be bound over to the general division.

However, this court in Lee, supra, held that Kent does not stand for this proposition.

Lee, supra, at *15. As in this case, the defendant in Lee argued that Ohio’s mandatory

bindover statutes violated due process because, in his view, he was entitled to an

amenability hearing pursuant to Kent.        However, this court in Lee held that the

defendant was granted the procedural protections required by Kent because a probable

cause hearing was held at which the defendant was represented by counsel and the

trial court made findings of fact in support of its order transferring jurisdiction to the

general division. Lee, supra, at *15-*16. Further, this court in Lee held that due process

does not require an amenability hearing. Id. at *16.

       {¶56} Moreover, the Third District in State v. Kelly, 3d Dist. Union No. 14-98-26,

1998 Ohio App. LEXIS 5630 (Nov. 18, 1998), also held that Ohio’s mandatory bindover

statutes do not violate due process. Id. at *22. As in the instant case, the defendant in

Kelly argued that, because the mandatory bindover statutes do not provide for an

amenability hearing at which juvenile courts are required to consider the factors listed in

Kent, supra, Ohio’s mandatory bindover statutes violate due process.




                                            17
       {¶57} The Third District in Kelly noted that the bindover statute at issue in Kent

involved discretionary, rather than mandatory, bindovers. The court in Kelly stated that,

because the Kent factors were intended to address the problem of arbitrary decision-

making and disparate treatment in discretionary bindover determinations, due process

does not require use of these factors when the legislature has statutorily eliminated

discretionary bindover determinations. Id. at *19-*20.

       {¶58} The Third District in Kelly stated that due process does not require a

weighing of specific factors prior to a transfer; it merely requires that such transfers not

be made on an arbitrary basis. Id. at *20. Thus, the court held that due process does

not prevent the General Assembly from eliminating the weighing of the Kent factors for

certain serious offenses, provided that removal is rationally related to a legitimate

governmental purpose. Id. The court stated that, because an amenability hearing using

the Kent factors is not a fundamental right, the rational basis test applies, and, in

applying that test, the court held that Ohio’s mandatory bindover statutes are rationally

related to the legitimate governmental objective of deterring violent juvenile crime. Id.

       {¶59} The court in Kelly held that the procedural prerequisites to transfer

described in Kent, i.e., representation by counsel, a hearing, and a statement of

reasons, are provided for in Ohio’s mandatory bindover statutes. Kelly, supra, at *21.

Thus, the Third District held that the elimination of a separate amenability hearing does

not violate procedural due process. Id.

       {¶60} Further, the Second and Ninth Districts have also held that Ohio’s

mandatory bindover statutes do not violate due process. State v. Ramey, 2d Dist.

Montgomery No. 16442, 1998 Ohio App. LEXIS 2617, *2-*3 (May 22, 1998); State v.




                                            18
Collins, 9th Dist. Lorain No. 97CA006845, 1998 Ohio App. LEXIS 2474, *5 (June 3,

1998).

         {¶61} Moreover, appellant does not cite any case law holding that a mandatory

bindover statute violates due process.

         {¶62} Here, appellant was represented by counsel at a probable cause hearing

held by the juvenile court. Further, the juvenile court’s judgment entry included findings

of fact supporting its decision transferring the matter to the general division. Based on

the foregoing authority, Ohio’s mandatory bindover statutes do not violate due process.

Appellant’s Equal Protection Challenge to Mandatory Bindover

         {¶63} Next, appellant argues that Ohio’s mandatory bindover statutes violated

his right to equal protection under the Fourteenth Amendment to the United States

Constitution and Article I, Section 2 of the Ohio Constitution.

         {¶64} The standard for determining if a statute violates equal protection is

“essentially the same under state and federal law.” Fabrey v. McDonald Village Police

Dept., 70 Ohio St.3d 351, 353 (1994). “Under a traditional equal protection analysis,

class distinctions in legislation are permissible if they bear some rational relationship to

a legitimate governmental objective. Departures from traditional equal protection

principles are permitted only when burdens upon suspect classifications or

abridgements of fundamental rights are involved.” State ex rel. Vana v. Maple Hts. City

Council, 54 Ohio St.3d 91, 92 (1990). The bindover statutes do not affect a suspect

class (e.g., race or gender) or a fundamental right (e.g., speech or religion). Lee, supra,

at *17. In fact, appellant concedes the rational basis test applies to his equal-protection




                                            19
challenge.   Thus, the bindover statutes need only bear a rational relationship to a

legitimate governmental purpose Adkins v. McFaul, 76 Ohio St.3d 350, 351 (1996).

       {¶65} Appellant argues that no rational basis exists for the disparate treatment

in the bindover statutes of juveniles who are 14 or 15 years old as opposed to those

who are 16 or 17 years old. Under the bindover statutes, juveniles who are 16 or 17 are

subject to mandatory bindover if probable cause exists to believe they committed a

category one offense. In contrast, similarly-situated juveniles who are 14 or 15 are only

subject to mandatory bindover if they were previously adjudicated delinquent and

committed to the department of youth services for committing a category one offense.

R.C. 2152.10(A)(1)(b).

       {¶66} Appellant contends that this disparate treatment is not supported by

scientific evidence. However, as the party challenging the constitutionality of the

statutes, appellant had the burden to prove beyond a reasonable doubt that the statutes

are unconstitutional, i.e., that the subject classification is not rationally related to a

legitimate governmental objective. Because appellant failed to meet this burden, he

failed to rebut the strong presumption that Ohio’s mandatory bindover statutes are

constitutional.

       {¶67} In any event, the purpose of this legislation is to protect society and

reduce violent crime by juveniles. Lee, supra, at *17. Contrary to appellant’s argument,

juveniles who are 14 or 15 are markedly different from those who are 16 or 17 in many

ways, e.g., in terms of physical development and maturity. Juveniles who are 14 years

old are typically still immature, while those who are 17, or in appellant’s case, 17 and

one-half years old, are nearly adults. Thus, the legislature’s decision to single out older




                                            20
juvenile homicide offenders, who are potentially more street-wise, hardened,

dangerous, and violent, is rationally related to this legitimate governmental purpose.

       {¶68} Further, this court in Lee, supra, has held that Ohio’s mandatory bindover

statutes do not violate equal protection. Id. at *17. In addition, the Second, Third, and

Ninth Districts have likewise held that Ohio’s mandatory bindover statutes do not violate

equal protection. Ramey, supra; Kelly, supra, at *26-*27; Collins, supra, at *5.

       {¶69} Moreover, appellant does not cite any case law holding that a mandatory

bindover statute violates equal protection.

       {¶70} In view of the foregoing analysis, Ohio’s mandatory bindover statutes do

not violate equal protection.

Appellant’s Eighth Amendment Challenge to Mandatory Bindover

       {¶71} Next, appellant argues his bindover under Ohio’s mandatory bindover

statutes and his sentence to life in prison without parole violated the prohibition against

cruel and unusual punishment pursuant to the Eighth Amendment to the United States

Constitution and Article I, Section 9 of the Ohio Constitution. “‘A punishment does not

violate the constitutional prohibition against cruel and unusual punishments, if it be not

so greatly disproportionate to the offense as to shock the sense of justice of the

community.’” State v. Dioneff, 11th Dist. Ashtabula No. 2006-A-0063, 2007-Ohio-3387,

¶79, quoting State v. Chaffin, 30 Ohio St.2d 13 (1972), paragraph three of the syllabus.

“‘Eighth Amendment violations are rare and instances of cruel and unusual punishment

are limited to those punishments, which, under the circumstances, would be considered

shocking to any reasonable person.’” Dioneff, supra, quoting State v. Rhodes, 11th Dist.

Lake No. 2000-L-089, 2001 Ohio App. LEXIS 5650, *21 (December 14, 2001).




                                              21
Sentences that fall within the statutory range cannot amount to cruel and unusual

punishment. State v. Bengal, 11th Dist. Lake No. 2006-L-123, 2007-Ohio-2691, ¶17;

State v. Gladding, 66 Ohio App.3d 502, 513 (11th Dist.1990); State v. Long, 1st Dist.

Hamilton No. C-110160, 2012-Ohio-3052, (“Long I”), reversed on other grounds at

____Ohio St.3d ____, 2014-Ohio-849.

       {¶72} With respect to appellant’s argument that his mandatory bindover

constituted cruel and unusual punishment, he does not cite any case law holding that

the mandatory transfer of juveniles to the general division without an amenability

hearing constitutes punishment, let alone cruel and unusual punishment.

       {¶73} The prohibition against cruel and unusual punishment by its very terms

applies only to punishments. The word “punishment” has been defined as follows: “In

criminal law[, a]ny * * * penalty * * * or confinement inflicted upon a person by authority

of the * * * sentence of a court, for some crime or offense committed by him * * *.”

Black’s Law Dictionary 1398 (4th Ed. Rev. 1968). Further, “[m]andatory bindover does

not equate to punishment any more than the mere prosecution of an adult in the

common pleas court constitutes punishment.”        Quarterman, supra, at ¶16 (J. Carr,

concurring).

       {¶74} Because appellant’s mandatory bindover was not a penalty or

confinement inflicted on him pursuant to a sentence of the juvenile court, it was not a

punishment, and appellant’s mandatory bindover did not constitute cruel and unusual

punishment.




                                            22
Appellant’s Eighth Amendment Challenge to his Life-Without-Parole Sentence

       {¶75} Appellant cites no case law holding that a sentence of life without parole

imposed on a juvenile following his or her conviction of an intentional homicide amounts

to cruel and unusual punishment. Instead, he relies on a trilogy of cases decided by the

United States Supreme Court. However, each of these cases is inapposite as none

holds that the sentence of a juvenile homicide offender to a discretionary sentence of

life without parole constitutes cruel and unusual punishment.

       {¶76} First, in Miller v. Alabama, 132 S.Ct. 2455 (2012), the United States

Supreme Court held that a mandatory life-without-parole sentence for juvenile homicide

offenders is cruel and unusual punishment. Id. at 2469.

       {¶77} However, Miller is distinguishable because appellant’s sentence of life

without parole was discretionary, not mandatory. State v. Long, ____ Ohio St.3d ____,

2014-Ohio-849 (“Long II”), ¶5. The trial court had the discretion to impose either life

without parole or life with parole eligibility after serving a definite period of 20, 25, or 30

years. Id.; R.C. 2929.03(A)(1). Thus, “Ohio’s sentencing scheme does not [run] afoul

of Miller, because the sentence of life without parole is discretionary.” Long II at ¶19.

       {¶78} Next, in Roper v. Simmons, 543 U.S. 551 (2005), the United States

Supreme Court held that the imposition of the death penalty on juvenile offenders is

cruel and unusual punishment. Id. at 575. However, Roper is distinguishable because

appellant was not sentenced to death.

       {¶79} Finally, in Graham v. Florida, 560 U.S. 48 (2010), the United States

Supreme Court held that the imposition of a life-without-parole sentence on a juvenile

offender who did not commit homicide is cruel and unusual punishment. Id. at 82.




                                              23
Graham is distinguishable since appellant was convicted of three counts of aggravated

murder.

      {¶80} While none of these cases applies to appellant’s sentence, he essentially

argues this court should extend their holdings to invalidate his life-without-parole

sentence. However, appellant does not reference any pertinent authority supporting

such extension. To the contrary, the Supreme Court in Miller, supra, stated that a

sentencing court is not precluded from imposing a life-without-parole sentence on a

juvenile homicide offender. Id. at 2469; accord Long II at ¶14.

      {¶81} It is worth noting that in Graham, supra, the United States Supreme Court

stated that 44 states, the District of Columbia, and the federal government permit

sentences of life without parole for juvenile homicide offenders. Id. at 2034-2036.

The United States Supreme Court’s Decision in Miller v. Alabama

      {¶82} Pursuant to Miller, supra, a sentencing court must consider mitigating

circumstances, including the juvenile’s youth and its attendant circumstances, before a

juvenile homicide offender can be sentenced to life without parole. Id. at 2475. The

Supreme Court in Miller held that a mandatory sentence of life without parole imposed

on a juvenile is cruel and unusual punishment because such sentence:

      {¶83} precludes consideration of his chronological age and its hallmark

             features--among them, [1] immaturity, impetuosity, and failure to

             appreciate risks and consequences. It prevents taking into account

             [2] the family and home environment that surrounds him--and from

             which he cannot usually extricate himself--no matter how brutal or

             dysfunctional. It neglects [3] the circumstances of the homicide




                                            24
              offense, including [4] the extent of his participation in the conduct

              and the way familial and peer pressures may have affected him. Id.

              at 2468.

       {¶84} The United States Supreme Court decided Miller in 2012, one year before

appellant’s sentencing, which occurred in March 2013.

       {¶85} In Long II, decided in 2014, the Supreme Court of Ohio expressly followed

Miller in holding that a trial court, in sentencing a juvenile offender for aggravated

murder, must consider his youth as a mitigating factor before imposing a sentence of life

without parole. Id. at paragraph one of the syllabus. Further, the Ohio Supreme Court

in Long II held that the record must reflect that the court specifically considered the

juvenile offender’s youth as a mitigating factor at sentencing when imposing a prison

term of life without parole. Id. at paragraph two of the syllabus.

       {¶86} The Court in Long II stated that, “[a]lthough Miller does not require that

specific findings be made on the record, it does mandate that a trial court consider as

mitigating the offender’s youth and attendant characteristics before imposing a sentence

of life without parole.” (Emphasis sic.) Id. at ¶27. The Court held that the offender’s

youth at the time of the offense must be “weighed against any statutory consideration

that might make an offense more serious or an offender more likely to recidivate.” Id. at

¶19.   The Court stated that, because a life-without-parole sentence implies that

rehabilitation is impossible, when the court imposes such sentence, its reasons for this

sentence should be on the record. Id.

       {¶87} Although appellant explicitly waived the right to present information in

mitigation of punishment, appellant’s trial counsel fully informed the court that it was




                                            25
required to consider appellant’s age as a mitigating factor.          He quoted a pleading

recently filed in the United States Supreme Court, as follows:

      {¶88} Jurisprudence has been toward more not less protection for

             juvenile offenders.

      {¶89} This trend began in Thompson v. Oklahoma in which William

             Thompson challenged a death sentence pronounced for his first

             degree murder conviction which stemmed from his active

             participation in a brutal murder at the age of 15.

      {¶90} The Supreme Court of the United States held that regardless of the

             underlying    crime,   the     death    penalty    violated    the   Eighth

             Amendment’s prohibition of cruel and unusual punishment when

             applied against the offender under the age of 16.

      {¶91} Two decades later, relying on similar rationales concerning the

             developmental differences between children and adults, the Court

             expanded that prohibition of death sentences for children to include

             all juveniles under the age of 18, and that was Roper v. Simmons.

             Following Roper, the Supreme Court of the United States * * * held

             constitutionally   impermissible       sentences   of   life   without   the

             possibility of parole for juvenile offenders convicted of crime other

             than homicide, and that was in the Graham case.

      {¶92} Then the Miller case came before the Supreme Court of the United

             States only two years later.




                                             26
       {¶93} The Court extended Graham to bar mandatory life sentences

              without parole for juveniles who commit homicide.

       {¶94} Now, in doing so, the high court recognized and adhered to

              Graham and perhaps Roper’s rationale and foundational principle

              that the imposition of a state’s most severe penalty on a juvenile

              offender cannot proceed as though they were not children.

       {¶95} Appellant’s trial counsel then stated as follows:

       {¶96} Respectfully, today, I move your Honor to fashion a sentence that

              reflects the reality of [appellant’s] mental and psychiatric states. I

              ask this of your Honor even in the face of almost certain disdain for

              [appellant] because the law deems important that he was a juvenile

              at the time.

       {¶97} The prosecutor took no exception with the foregoing as being a

functionally adequate recitation for purposes of sentencing appellant. And unlike Long,

the prosecutor did not argue that appellant’s youth justified a maximum sentence.

       {¶98} It was against this backdrop that the trial court considered all Miller factors

and afforded each one proper weight based on the particular facts of this case. That

some of the Miller factors did not favor appellant at sentencing does not mean that the

trial court failed to consider appellant’s youth as mitigating.

       {¶99} Accordingly, despite the lack of an explicit statement from the trial court

that it considered this juvenile offender’s youth as mitigating, the record reflects that it

did so. The trial court simply found that, even considering the mitigating factors set forth




                                              27
in Miller, life without the possibility of parole was warranted.      That conclusion is a

function of the facts, not a breakdown in the process.

       {¶100} Thus, the trial court’s sentence complied with Miller. Further, while the

Ohio Supreme Court had not yet decided Long II when appellant was sentenced,

because the Court in Long II explicitly followed Miller, by considering the Miller factors in

fashioning appellant’s sentence, the trial court also complied with Long II. The trial

court’s consideration of the Miller factors is summarized as follows:

       {¶101} First, the trial court considered appellant’s age and level of maturity. The

court noted he was 17 and one-half years old at the time of his crimes. He was an

intelligent student planning to graduate early and to attend college. He considered

himself to be mature for his age. He suffered no mental or cognitive impairment. He

was not insane, incompetent, or impaired at any relevant time. The court noted that,

while there were and are no mental impairment issues, appellant feigned symptoms of

mental illness when interacting with Dr. Resnick and the jail staff. The court noted that

appellant knew what he did was wrong. This is why he hid his weapons in his book

bag; fled from the school after the shooting; and acknowledged his wrongdoing soon

after he was apprehended.

       {¶102} Second, the trial court considered appellant’s home and family

environment. The court noted that he had a tumultuous upbringing, both as an infant

and as an adolescent. His parents lost custody of him when he was three years old

because they did not properly care for him.        However, since that time, appellant’s

maternal grandparents have provided a home for him; have raised him; and have been

loving and caring guardians. The court noted that appellant sought to better himself by




                                             28
holding various jobs and transferring to Lake Academy, which allowed him to work while

going to school.

       {¶103} Third, the trial court stated that “[m]any juvenile offenders are manipulated

or pressured into committing crime by adults or peers who urge or incite the juvenile to

commit crimes. They prey upon the vulnerability of an impressionable youth. * * * That

didn’t occur here. These crimes were all Defendant’s, and [he] was not an

impressionable youth. * * * He did this on his own.” The court noted that appellant

planned, prepared for, and executed this scheme by himself. He was not manipulated or

pressured by anyone into committing these crimes. He confided in no one and he had

no accomplice. The court explicitly stated that it considered each of the foregoing

factors in imposing sentence.

       {¶104} Fourth, the court considered the circumstances of appellant’s offenses

and the extent of his participation in them. The court noted that appellant planned his

attack long before the shootings and methodically carried out that plan. He stole a

handgun, two magazines, and bullets from his uncle the day before the shootings. The

night before, he loaded both magazines and put one in the gun. The morning before,

he put the gun, the spare magazine, and a knife in his book bag, and hid them there

until he took them out in the cafeteria. He intentionally dressed the part by wearing a

shirt with the word “Killer” labeled across the chest. Further, appellant was relentless in

his shooting. He ambushed eight unsuspecting students who were talking with each

other and did nothing to provoke him. He shot six students in the cafeteria resulting in

the death of three of them. While students and faculty were running out of the cafeteria

and down the hallway, appellant aimed his gun at an adult monitor who was running




                                            29
after him to prevent him from chasing him. While in the hallway, appellant ran up to

Nick Walczak, who appellant had shot in the cafeteria, and shot him again from behind.

Appellant emptied the magazine in the gun of all ten of its shells. Further, the court

noted that the nature of the injuries and their impact on the victims and their families

were particularly unusual and intense. All six victims were juveniles who had lives filled

with potential. Those who were killed have been deprived of their lives. The survivors

and their families have suffered devastating physical pain and psychological injury, and

they face a future that is forever tainted by appellant’s conduct. Nick is paralyzed and

confined to a wheelchair, severely challenged physically and psychologically, with a

serious economic impact on his family.

       {¶105} In addition, the court noted that appellant never stated his motive for this

merciless rampage. The court noted that, while being interrogated, appellant said he

did not know why he shot people. He said it was just something he chose to do. The

court stated that, while appellant’s motive was unclear, it appeared he wanted to make

a name for himself and to make front page news. Thus, it was no coincidence that on

the day of the shootings, appellant boldly and brazenly wore a shirt that displayed

across his chest the word “Killer.” The court stated that because appellant attacked

without discernible motive or provocation, appellant is “extremely dangerous.”

       {¶106} Further, the court noted that appellant has shown no remorse, making him

more likely to re-offend. In his interview with the detectives, appellant said that after he

fired the first few rounds, he regretted it and felt terrible. However, the court noted that

he repeatedly shot his gun at students in the cafeteria and in the hall until all rounds in




                                            30
the clip were fired. Further, when he was informed at the Safety Center during his

interview that one of his victims had died, he showed no remorse.

      {¶107} We also note that appellant’s conduct at sentencing showed a complete

lack of remorse.

      {¶108} This case is distinguishable from Long II. In that case, the trial court did

not even mention at sentencing that Long was a juvenile when he committed his

offenses. As a result, the Ohio Supreme Court stated it could not be sure how the trial

court applied this factor. Id. at ¶27. Further, in Long II, the trial court had conducted a

group sentencing of Long and his two adult accomplices at the same time. As a result,

the Supreme Court in Long II stated that Long might not have been given the benefit of

the consideration of youth as a mitigating factor. Id. at ¶28. In contrast, here, the trial

court explicitly considered the mitigating factors of appellant’s youth on the record.

Further, in weighing appellant’s youth against other pertinent factors, including the

nature of the crimes and appellant’s participation in them, the court found these factors

outweighed the mitigating factors of appellant’s youth.

      {¶109} In summary, the trial court was not bound by a mandatory sentencing

scheme, and considered the factors outlined in Miller in imposing sentence. Moreover,

by complying with Miller, the trial court also complied with Long II. Further, we cannot

say appellant’s sentence of life in prison without parole is so disproportionate to the

crimes he committed as to shock the community’s sense of justice.                Although

appellant’s sentence is severe, it is not disproportionately so. He shot six students in

school, three of whom were killed and another paralyzed, without provocation and in

cold blood. The horrific and senseless nature of this homicide is compounded by the




                                            31
fact that, at sentencing, appellant showed no remorse and even contempt for his victims

and their families. In addition, appellant’s sentence was within the statutory range for

each count of which he was convicted. We therefore hold that appellant’s sentence did

not amount to cruel and unusual punishment.

       {¶110} Appellant’s first and second assignments of error are overruled.

       {¶111} For his third assignment of error, appellant alleges:

       {¶112} “THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL

COUNSEL, IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS TO SUCH.”

Ineffective Assistance of Trial Counsel

       {¶113} Appellant argues that if this court holds the issues raised in his first two

assignments of error, i.e., his mandatory bindover and his life-without-parole sentence,

were not preserved for appeal, then his trial counsel was ineffective in not doing so.

       {¶114} In order to support a claim of ineffective assistance of counsel, the

defendant must satisfy a two-prong test.          First, he must show that counsel’s

performance was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984).

Second, the defendant must show the deficient performance prejudiced the defense. Id.

In order to satisfy this prong, “[t]he defendant must show that there is a reasonable

probability that, but for counsel’s * * * errors, the result of the [trial] would have been

different.” Id. at 694. In the context of a guilty plea, the defendant must demonstrate that

there is a reasonable probability that, but for his counsel’s errors, he would not have

pled guilty and instead would have insisted on going to trial. State v. Curd, 11th Dist.

Lake No. 2003-L-030, 2004-Ohio-7222, ¶110.




                                            32
          {¶115} With respect to appellant’s argument that his attorney failed to object and

thus failed to preserve his challenge to his mandatory bindover, since we hold that

appellant did not waive this challenge, he was not prejudiced by his attorney’s failure to

object.

          {¶116} Next, with respect to appellant’s argument that his attorney failed to

preserve his constitutional challenge to his life-without-parole sentence by not

presenting any constitutional argument in support of his objection, we note that in

addition to trial counsel’s objection to appellant’s sentence, counsel also cited Miller,

Graham, and Roper.          Further, the state concedes on appeal that appellant’s trial

counsel specifically objected to appellant’s sentence and preserved this issue for

appeal. Because appellant’s trial counsel raised this issue in the trial court, the issue

was preserved and counsel’s performance was not deficient.

          {¶117} We therefore hold that appellant did not receive ineffective assistance of

trial counsel.

          {¶118} Appellant’s third assignment of error is overruled.

          {¶119} For his fourth and final assigned error, appellant contends:

          {¶120} “THE TRIAL COURT’S IMPOSITION OF CONSECUTIVE SENTENCES

UPON THE APPELLANT IS NOT SUPPORTED BY THE TRIAL COURT’S FINDINGS.”

Appellant’s Consecutive Sentences

          {¶121} Because appellant argues his consecutive sentences were not supported

by the trial court’s findings, we review his sentence pursuant to R.C. 2953.08(G)(2)(a).

That section provides that the appellate court may vacate the sentence and remand the

matter to the sentencing court for resentencing if the appellate court clearly and




                                               33
convincingly finds that the record does not support the sentencing court’s findings under

R.C. 2929.14(C).

      {¶122} The Eighth District recently stated in State v. Venes, 8th Dist. Cuyahoga

No. 98682, 2013-Ohio-1891:

      {¶123} It is * * * important to understand that the clear and convincing

      standard used by R.C. 2953.08(G)(2) is written in the negative. It does not

      say that the trial judge must have clear and convincing evidence to

      support its findings. Instead, it is the court of appeals that must clearly and

      convincingly find that the record does not support the court’s findings. In

      other words, the restriction is on the appellate court, not the trial judge.

      This is an extremely deferential standard of review. Venes, supra, at ¶ 21.

      {¶124} Pursuant to R.C. 2929.14(C)(4), consecutive sentences can be imposed if

the court finds that (1) consecutive sentences are necessary to protect the public from

future crime or to punish the offender and that (2) consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public. In addition to these two factors, the court must find, as

pertinent here, that at least two of the multiple offenses were committed as part of one

or more courses of conduct, and the harm caused by two or more of the multiple

offenses was so great or unusual that no one prison term for any of the offenses

adequately reflects the seriousness of the offender’s conduct. R.C. 2929.14(C)(4)(b).

      {¶125} Subsequent to this amendment in the consecutive sentencing law, Ohio

Appellate Districts have held that R.C. 2929.14(C)(4) requires trial courts to make the




                                            34
foregoing findings when imposing consecutive sentences. State v. Koeser, 11th Dist.

Portage No. 2013-P-0041, 2013-Ohio-5838, ¶21.

       {¶126} However, while the requirement that fact-finding occur was re-enacted by

H.B. 86, the requirement that a sentencing court give reasons for imposing consecutive

sentences, which existed under former R.C. 2929.19(B)(2), was not re-enacted.

Koeser, supra, at ¶22. Thus, a sentencing court is not statutorily required to give

reasons for its findings. Id.

       {¶127} Turning now to the instant case, the trial court complied with R.C.

2929.14(C)(4) in finding that: (1) consecutive sentences are necessary to protect the

public from future crime and to punish appellant; (2) consecutive sentences are not

disproportionate to the seriousness of his conduct and to the danger he poses to the

public; and (3) appellant committed two or more of these offenses as part of one or

more courses of conduct, and the harm caused by two or more of the offenses was so

great or unusual that no one prison term for any of the offenses adequately reflects the

seriousness of his conduct.

       {¶128} Further, we note the court’s findings were supported by the record. In

addition, while the court was not required to provide reasons in support of its findings,

the trial court did so and the court’s reasons were also supported by the record.

       {¶129} In fact, appellant does not dispute that the trial court made the findings

required by R.C. 2929.14(C). Nor does he deny that these findings were supported by

the record. Instead, he argues that this case is no more serious than many other

aggravated murder cases in which consecutive sentences are not imposed, making

consecutive sentences inappropriate here. Thus, his argument challenges only the trial




                                           35
court’s imposition of consecutive sentences for his aggravated murder offenses, not the

remaining crimes.    Further, nothing in R.C. 2953.08(G)(2) suggests that a different

appellate standard of review, let alone the standard suggested by appellant, applies in

the case of multiple counts of aggravated murder.

       {¶130} In any event, we cannot agree with appellant’s argument that this case is

not sufficiently serious to warrant consecutive sentences.      Appellant did not act on

impulse, on provocation, or under pressure from peers or adults. To the contrary, he

planned this attack weeks in advance before he went to school that day with a loaded

gun. He shot three young students to death. He shot another student several times,

confining him to a wheelchair and subjecting him to a life of pain and disability.

Appellant also brought indescribable pain, grief, and lifelong tragedy to the victims’

families.

       {¶131} Applying the appellate standard of review in R.C. 2953.08(G)(2), we do

not clearly and convincingly find that the record does not support the trial court’s

findings under R.C. 2929.14(C).

       {¶132} Appellant’s fourth assignment of error is overruled.

       {¶133} For the reasons stated in the opinion of this court, appellant’s

assignments of error lack merit and are overruled. It is the judgment and order of this

court that the judgment of the Geauga County Court of Common Pleas is affirmed.



TIMOTHY P. CANNON, P.J.,

THOMAS R. WRIGHT, J.,

concur.




                                            36
