[Cite as State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849.]




              THE STATE OF OHIO, APPELLEE, v. LONG, APPELLANT.
           [Cite as State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849.]
Criminal law—Sentencing—Youth as mitigating factor for juvenile offender—
        R.C. 2929.03(A)—Eighth Amendment to the United States Constitution.
     (No. 2012-1410—Submitted June 11, 2013—Decided March 12, 2014.)
     APPEAL from the Court of Appeals for Hamilton County, No. C-110160,
                                     2012-Ohio-3052.
                                ____________________
                               SYLLABUS OF THE COURT
1. A court, in exercising its discretion under R.C. 2929.03(A), must separately
        consider the youth of a juvenile offender as a mitigating factor before
        imposing a sentence of life without parole. (Miller v. Alabama, ___ U.S.
        ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), followed.)
2. The record must reflect that the court specifically considered the juvenile
        offender’s youth as a mitigating factor at sentencing when a prison term of
        life without parole is imposed.
                                ____________________
        LANZINGER, J.
        {¶ 1} In this case, we are asked whether a trial court violates the Eighth
Amendment by imposing a sentence of life imprisonment without parole for an
aggravated murder committed by a juvenile. We hold that a court, in exercising
its discretion under R.C. 2929.03(A), must separately consider the youth of a
juvenile offender as a mitigating factor before imposing a sentence of life without
parole in light of Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d
407 (2012).
                            SUPREME COURT OF OHIO




                              I. Case Background
       {¶ 2} Appellant, Eric Long, and his two codefendants were charged in a
13-count indictment with several offenses stemming from two separate shootings
in March 2009. When the offenses were committed, Long was 17 years old.
According to public information from the Ohio Department of Rehabilitation and
Correction, codefendant Fonta Whipple was 26 years old, and codefendant
Jashawn Clark was 25. http://www.drc.state.oh.us/OffenderSearch/Search.aspx.
       {¶ 3} Following a joint jury trial, all three codefendants were found guilty
of two counts of aggravated murder, three counts of felonious assault, two counts
of having weapons while under disability, one count of improperly discharging a
firearm into a habitation, and various firearm specifications.      Long was also
convicted of one count of carrying concealed weapons. At a joint sentencing
hearing with his two codefendants, Long was sentenced to consecutive terms of
life imprisonment without parole on the aggravated-murder counts and an
additional 19 years on the remaining counts and specifications, also consecutive.
       {¶ 4} Long appealed to the First District Court of Appeals. Among the
various assignments of error, he challenged his consecutive sentences of life
imprisonment without parole.     Long argued that the trial court had failed to
consider the factors set forth in R.C. 2929.12(A), (B), (C), (D), and (E) and the
principles and purposes of sentencing. Specifically, he contended that the trial
court had failed to consider his youth as a mitigating factor on the record and that
a life term imposed on a teenager amounts to cruel and unusual punishment.
       {¶ 5} In rejecting Long’s assignment of error based on the Eighth
Amendment to the United States Constitution, the First District noted that the
United States Supreme Court had recently held that a mandatory life-without-
parole sentence for juvenile offenders is cruel and unusual punishment in Miller v.
Alabama, ___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). The court of
appeals distinguished Miller on grounds that the sentence imposed by the trial




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court was not mandatory. R.C. 2929.03(A) allows the trial court to exercise its
discretion when sentencing for aggravated murder by imposing life imprisonment
without parole or with parole eligibility after 20, 25, or 30 years.
       {¶ 6} The appellate court further determined that the trial court “was able
to consider whether Long’s ‘youth and its attendant characteristics, along with the
nature of his crime, made a lesser sentence (for example, life with the possibility
of parole) more appropriate.’ Miller at [2460].” 2012-Ohio-3052, ¶ 52. The
court of appeals then detailed how it believed the record reflected that the trial
court did consider Long’s youth and its attendant characteristics. Id. at ¶ 53-54.
       {¶ 7} We accepted Long’s discretionary appeal on reconsideration. 133
Ohio St.3d 1502, 2012-Ohio-5693, 979 N.E.2d 348. The sole proposition of law
before this court is that “[t]he Eighth Amendment requires trial courts to consider
youth as a mitigating factor when sentencing a child to life without parole for a
homicide.” In adopting this proposition, we further hold that the record must
reflect that the court specifically considered the juvenile offender’s youth as a
mitigating factor at sentencing when a prison term of life without parole is
imposed.
                                 II. Legal Analysis
       A. Eighth Amendment
       {¶ 8} The Eighth Amendment to the United States Constitution states,
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.”        As we recently noted, “Central to 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.’ ” In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729,
¶ 25, quoting Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed.
793 (1910). As applied to juveniles, the United States Supreme Court has held
that the Eighth Amendment prohibits the imposition of the death penalty and the



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imposition of life without the possibility of parole for nonhomicide offenses.
Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); Graham
v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Most recently,
the Eighth Amendment was held to ban mandatory life-without-parole sentences
on juveniles in Miller.
        B. Threshold Question
        {¶ 9} We first address Long’s threshold question of whether despite being
convicted of aggravated murder, Long committed a “homicide” offense as that
term is used in Graham. The United States Supreme Court stated in Graham that
a “juvenile offender who did not kill or intend to kill has a twice diminished
moral culpability,” id. at 69, and held that the Eighth Amendment prohibits the
imposition of a life-without-parole sentence on a juvenile for a nonhomicide
offense, id. at 82. Long argues that by using a complicity instruction, the trial
court permitted the jury to convict him of aggravated murder without necessarily
finding that he acted with prior calculation or with a specific intent to kill. He
concludes that this means that he was not actually convicted of a homicide
offense and could not be sentenced to life imprisonment without parole pursuant
to Graham. But because Long did not raise this issue in the court of appeals or
argue it in his memorandum seeking jurisdiction in this court, we will not
consider this issue, as it is not properly before the court.1 See State v. Chappell,
127 Ohio St.3d 376, 2010-Ohio-5991, 939 N.E.2d 1234, ¶ 26.
        {¶ 10} We now turn to Long’s argument that Miller requires us to remand
this case for a resentencing hearing that complies with Miller and Graham.




1. For this same reason, we also will not address Long’s argument that we should hold that the
Ohio Constitution, Article I, Section 9, requires that all children have the right to a meaningful
opportunity for release regardless of the crimes they have committed.




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         C. Miller v. Alabama
         {¶ 11} Long argues that Miller requires a trial court to consider the
defendant’s youth and its attendant characteristics when imposing sentence if that
defendant committed the offense as a juvenile. And he contends that the record
must show that the trial court actually considered the defendant’s youth. We
agree.
         {¶ 12} In Miller, the United States Supreme Court began by reviewing its
previous decisions regarding the sentencing of juveniles.


         Roper and Graham establish that children are constitutionally
         different from adults for purposes of sentencing.             Because
         juveniles have diminished culpability and greater prospects for
         reform, we explained, “they are less deserving of the most severe
         punishments.” Graham, 560 U.S. at 68, 130 S.Ct. at 2026, 176
         L.Ed.2d 825. Those cases relied on three significant gaps between
         juveniles and adults. First, children have a “ ‘lack of maturity and
         an   underdeveloped     sense   of    responsibility,’ ”   leading   to
         recklessness, impulsivity, and heedless risk-taking. Roper, 543
         U.S., at 569, 125 S.Ct. 1183, 161 L.Ed.2d 1. Second, children “are
         more vulnerable * * * to negative influences and outside
         pressures,” including from their family and peers; they have
         limited “contro[l] over their own environment” and lack the ability
         to extricate themselves from horrific, crime-producing settings.
         Ibid. And third, a child’s character is not as “well formed” as an
         adult’s; his traits are “less fixed” and his actions less likely to be
         “evidence of irretrievabl[e] deprav[ity].” Id., at 570, 125 S.Ct.
         1183, 161 L.Ed. 2d 1.




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Miller, 132 S.Ct. at 2464, 183 L.Ed.2d 407.
        {¶ 13} The Miller court continued:


        Most fundamentally, Graham insists that youth matters in
        determining the appropriateness of a lifetime of incarceration
        without the possibility of parole. In the circumstances there,
        juvenile status precluded a life-without-parole sentence, even
        though an adult could receive it for a similar crime. * * * “An
        offender’s age,” we made clear in Graham, “is relevant to the
        Eighth Amendment,” and so “criminal procedure laws that fail to
        take defendants’ youthfulness into account at all would be flawed.”
        Id., at ___, 130 S.Ct. 2011, 176 L.Ed.2d 825.


Id. at 2465-2466.
        {¶ 14} Miller concluded, “Although we do not foreclose a sentencer’s
ability to make that judgment [to impose life without parole] in homicide cases,
we require it to take into account how children are different, and how those
differences counsel against irrevocably sentencing them to a lifetime in prison.”
Id. at 2469. It reiterated:


        Our decision does not categorically bar a penalty for a class of
        offenders or type of crime—as, for example, we did in Roper or
        Graham.     Instead, it mandates only that a sentencer follow a
        certain process—considering an offender’s youth and attendant
        characteristics—before imposing a particular penalty.


(Emphasis added.) Id. at 2471.




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                               January Term, 2014




       {¶ 15} The Miller decision does not lay out the “certain process” that trial
judges should follow when sentencing juveniles.        Long urges that this court
should follow the lead of the Wyoming Supreme Court and require the
consideration of the following factors when sentencing a juvenile offender to life
without the possibility of parole: (1) the character and record of the juvenile, (2)
the background and mental and emotional development of the juvenile, (3) the
juvenile’s chronological age and the immaturity, impetuosity, and failure to
appreciate the risks and consequences associated with youth, (4) the family and
home environment that surrounds the juvenile, (5) the circumstances of the
offense, including the extent of the juvenile’s participation and the way familial
and peer pressure may have affected the juvenile, (6) whether the juvenile could
have been charged with and convicted of a lesser offense if not for
incompetencies associated with youth, such as the juvenile’s relative inability to
deal with police and prosecutors or to assist his own attorney, and (7) the
juvenile’s potential for rehabilitation. Bear Cloud v. State, 2013 WY 18, 294 P.3d
36, ¶ 42.
       {¶ 16} Although the Wyoming factors may prove helpful to courts as they
select appropriate sentences for juveniles, we note that Ohio statutes do not
require such findings. In imposing a prison sentence, the sentencing court has
discretion to state its own reasons in choosing a sentence within a statutory range
unless a mandatory prison term must be imposed.
       D. Ohio Sentencing
       {¶ 17} In Ohio, two statutory sections serve as a general guide for every
sentencing.   First, R.C. 2929.11(A) provides that the overriding purposes of
felony sentencing “are to protect the public from future crime by the offender and
others and to punish the offender.” To achieve these purposes, the trial court
“shall consider the need for incapacitating the offender, deterring the offender and
others from future crime, rehabilitating the offender, and making restitution.” Id.



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The sentence must be “commensurate with and not demeaning to the seriousness
of the offender’s conduct and its impact upon the victim, and consistent with
sentences imposed for similar crimes committed by similar offenders.” R.C.
2929.11(B). Thus, both the nature of the offender and the possibility of the
offender’s rehabilitation are already points for the court’s sentencing deliberation.
       {¶ 18} Second, R.C. 2929.12 specifically provides that in exercising its
discretion, a trial court must consider certain factors that make the offense more
or less serious and that indicate whether the offender is more or less likely to
commit future offenses. Although youth is not individually mentioned in the
statute, an offender’s conduct is considered less serious when there are
“substantial grounds to mitigate the offender’s conduct, although the grounds are
not enough to constitute a defense.” R.C. 2929.12(C)(4). R.C. 2929.12(C) and
(E) also permit a trial court to consider “any other relevant factors” to determine
that an offense is less serious or that an offender is less likely to recidivate. An
offender’s youth and the attendant circumstances of youth may be considered
under either of these provisions pursuant to Miller before the court imposes a
sentence on a juvenile. R.C. 2929.11 and 2929.12 do not prevent a court from
considering youth as a factor that makes an offense less serious or makes an
offender less likely to commit future offenses.
       {¶ 19} As applied to a juvenile found guilty of aggravated murder under
R.C. 2929.03(A), then, Ohio’s sentencing scheme does not fall afoul of Miller,
because the sentence of life without parole is discretionary. Nor is our criminal
procedure flawed under Graham and Miller by failing to take into account that a
defendant is a youthful offender. Nevertheless, for clarification, we expressly
hold that youth is a mitigating factor for a court to consider when sentencing a
juvenile. But this does not mean that a juvenile may be sentenced only to the
minimum term. The offender’s youth at the time of the offense must still be
weighed against any statutory consideration that might make an offense more




                                          8
                                  January Term, 2014




serious or an offender more likely to recidivate. Yet because a life-without-parole
sentence implies that rehabilitation is impossible, when the court selects this most
serious sanction, its reasoning for the choice ought to be clear on the record.
          E. Long’s Sentencing Hearing
          {¶ 20} Long argues that the trial court’s sentencing statement fails to
demonstrate that it followed the dictates of Miller to consider youth as a
mitigating factor. He acknowledges that Miller had not yet been decided when he
was sentenced but argues that due to his age, he should have received only a
minimum sentence. The state contends to the contrary that the record shows that
the trial court did consider Long’s youth before imposing sentence because the
sentencing memoranda, presentence investigation report, and statement by Long’s
attorney at sentencing detail Long’s history, character, and condition. The trial
court also had information concerning a number of aggravating factors that
support the sentence of life without parole.
          1. Sentencing Memoranda
          {¶ 21} Long submitted a sentencing memorandum requesting the
minimum sentence before his sentencing hearing. It focused on Long’s youth and
argued:


          Adolescents, are more vulnerable, more impulsive, and less self-
          disciplined that adults, and are without the same capacity to control
          their conduct and to think in long-range terms.           They are
          particularly impressionable and subject to peer pressure, and prone
          to experiment, risk-taking and bravado.      Crimes committed by
          youths may be just as harmful to victims as those committed by
          older persons, but they deserve less punishment because
          adolescents may have less capacity than adults to control their
          conduct. Moreover, youth crime as such is not exclusively the



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       offender’s fault; offenses by the young also represent a failure of
       family, school, and the social system, which share responsibility
       for the development of America’s youth.


(Footnotes omitted.)
       {¶ 22} The state in its sentencing memorandum also noted that Long was a
juvenile at the time of the offenses but pointed out that he had already
accumulated a lengthy juvenile record and had been committed to the Department
of Youth Services before the juvenile court relinquished jurisdiction over him.
Yet in its memorandum, the prosecutor treated the three defendants as a group,
although two had been adults when the crime was committed. With regard to the
aggravated-murder counts, the state requested


       that the Court impose upon each Defendant consecutive prison
       terms of Life imprisonment without parole. In making this request
       the State notes each Defendant’s youth (which means that even
       after thirty years they could still pose a danger to society); each
       Defendant’s total lack of remorse for his crimes; each Defendant’s
       total and complete imperviousness to rehabilitative efforts in the
       past; each Defendant’s criminal history as a predictor for future
       criminal behavior; and the utter and senseless violence perpetrated
       in this case against persons who had not harmed or threatened
       harm to Defendants.


Although both memoranda acknowledged Long’s status as a juvenile at the time
of the offense, they used that fact for divergent purposes—Long, to request the
minimum sentence; the state, to justify the maximum sentence.




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                                 January Term, 2014




       {¶ 23} In addition to the sentencing memoranda, a presentence
investigation report was prepared for the trial court’s review. Long declined to
provide a statement; so other than his juvenile record and a list of pending counts,
the report contains sparse details on his educational and family background or his
physical and mental condition.
       2. Sentencing Hearing
       {¶ 24} Each defendant’s attorney addressed the court before sentencing.
Long’s counsel stated:


               As the Court is aware, he was 17 when this happened. He
       was a juvenile. He was not previously convicted like the other two
       defendants. He doesn’t have time already. He starts with a clean
       slate in front of this Court.
               Your Honor, I would ask you to consider imposing the
       minimum term, because Eric won’t even be eligible for parole until
       he’s 47, and a lot can happen between now and that point, where
       he’s going to gain perspective, where he will become more secure,
       after all, he was a child. He was a juvenile when this happened. I
       think that puts him in a different light than the other two
       individuals.
               I think the Court can also glean from watching him
       throughout this whole process in a different situation.            His
       demeanor, the way that he’s dealt with this situation shows that he
       is dissimilar to his co-defendants.
               I think you can describe him sort of as a deer in headlights
       through the last portion of this court trial. I’d ask the Court to take
       that into consideration and give him a glimmer of hope, giving




                                         11
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       him a chance that some day he can return to society, hopefully a
       changed and rehabilitated man.
               I’d like you to take that into consideration. Judge, I’d ask
       you to impose minimum sentences, even though the minimum
       sentence in this case is very significant, and I’ll submit it.


(Emphasis added.) It is obvious that defense counsel raised the issue of Long’s
youth as a mitigating factor.
       {¶ 25} The state, however, argued that Long and his codefendants should
get the maximum penalty:


       I ask the court to impose a sentence of life without parole on each
       of these defendants, because I think that’s the only thing that will
       protect the public.
               I know that youth is usually a mitigating factor. In this
       case, we have people, despite their youth, that, as they stand before
       the Court, have shown no inclination to change, or to show that
       they recognize the terrible damage they’ve done. Why would you
       give a sentence that’s going to let them out, even at some date in
       the future? I ask the Court to make sure they stay where they are,
       and stay where they cannot hurt anybody else, and give them a
       sentence of life without parole.


(Emphasis added.) It thus appears that the state was suggesting that for this
defendant, youth was not a mitigating factor.
       {¶ 26} The trial court stated:




                                          12
                                    January Term, 2014




               Having tried this case and heard this case for four weeks,
       having had experience with Mr. Whipple and Mr. Clark, having
       observed also the violent history and record of Mr. Long, it’s clear
       to me that all three defendants, for whatever reason, don’t value
       human life.
               I mean, the violence, senseless, just indiscriminate violence
       absolutely, as everyone has said here, absolutely no remorse. It’s
       chilling. It’s chilling to see you three stand here, and I have no
       doubt in my mind that if you walked out the door of this
       courtroom, you would kill again, and it wouldn’t bother you. And
       that’s sad, but it’s true.
               After considering the risks that you’ll commit another
       offense, the need for protecting the public, nature and
       circumstances of these offenses, your history, character and
       condition, Court finds that prison sentences are required.


The trial court proceeded to impose sentence on each count, ordering all three
defendants to serve life without parole on the aggravated-murder counts.
       {¶ 27} This record is presented to show that Long raised his youth as a
mitigating factor but that the state argued the opposite. Because the trial court did
not separately mention that Long was a juvenile when he committed the offense,
we cannot be sure how the trial court applied this factor. Although 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 its attendant
characteristics before imposing a sentence of life without parole. For juveniles,
like Long, a sentence of life without parole is the equivalent of a death penalty.
Miller, 132 S.Ct. at 2463, 183 L.Ed.2d 407. As such, it is not to be imposed




                                            13
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lightly, for as the juvenile matures into adulthood and may become amenable to
rehabilitation, the sentence completely forecloses that possibility.
        {¶ 28} The record shows a group sentencing of three that included one
defendant who was a juvenile at the time of the crime. Eric Long was situated
differently but might not have been given the benefit of the consideration of youth
as a mitigating factor. Therefore, his sentence did not comport with the newly
announced procedural strictures of Miller v. Alabama. We therefore reverse the
judgment of the First District and vacate Long’s sentence of life in prison without
the possibility of parole, and we remand the case to the trial court for
resentencing.
                                   III. Conclusion
        {¶ 29} The United States Supreme Court has indicated in Roper, Graham,
and Miller that juveniles who commit criminal offenses are not as culpable for
their acts as adults are and are more amenable to reform. We agreed with this
sentiment in In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729.
Miller did not go so far as to bar courts from imposing the sentence of life without
the possibility of parole on a juvenile. Yet because of the severity of that penalty,
and because youth and its attendant circumstances are strong mitigating factors,
that sentence should rarely be imposed on juveniles. Miller, ___ U.S. ___, 132
S.Ct. at 2469, 183 L.Ed.2d 407. In this case, the trial court must consider Long’s
youth as mitigating before determining whether aggravating factors outweigh it.
We therefore reverse the judgment of the court of appeals and remand this cause
to the trial court for resentencing.
                                                                  Judgment reversed
                                                                and cause remanded.
        O’CONNOR, C.J., and PFEIFER, FRENCH, and O’NEILL, JJ., concur.
        O’DONNELL and KENNEDY, JJ., dissent.
                              ____________________




                                         14
                                January Term, 2014




       O’CONNOR, C.J., concurring.
       {¶ 30} I concur in the majority’s judgment, opinion, and syllabus.
       {¶ 31} I write separately to make clear two important points upon which
all members of this court agree: a trial court must consider youth as a mitigating
factor when formulating a sentence for a crime committed by a juvenile, but the
court retains its broad discretion to determine how much weight to give that
factor. This appeal illustrates the tension in that equipoise.
       {¶ 32} There is nothing novel about the fact that our youth commit
murders and mayhem. But the legal lens through which we view their sentencing
has changed.
       {¶ 33} The United States Supreme Court has made clear that courts must
treat youths who commit murders and other serious crimes differently from adults
who commit those same crimes. See, e.g., Miller v. Alabama, ___ U.S. ___, 132
S.Ct. 2455, 183 L.Ed.2d 407 (2012) (holding that the imposition of mandatory
life-without-parole sentences on individuals who committed murders while they
were under the age of 18 violates the Eighth Amendment); Graham v. Florida,
560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (holding that imposition of
life-without-parole sentences on juveniles who did not commit homicides violates
the Eighth Amendment); Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161
L.Ed.2d 1 (2005) (holding that executions of individuals who were under the age
of 18 when they committed their crimes violates the Eighth and Fourteenth
Amendments). In so doing, the court has reminded us, repeatedly, that “[a]
child’s age is far ‘more than a chronological fact.’ ” J.D.B. v. North Carolina,
___ U.S. ___, 131 S.Ct. 2394, 2403, 180 L.Ed.2d 310 (2011), quoting Eddings v.
Oklahoma, 455 U.S. 104, 115, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). Indeed, the
court has seemed frustrated that it has repeatedly noted to us that minors are less
mature and responsible than adults, that they are lacking in experience,
perspective, and judgment, and that they are more vulnerable and susceptible to



                                          15
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the pressures of peers than are adults. See id. at 2404. Generally stated, the
rationale for the disparate treatment is that “juveniles have diminished culpability
and greater prospects for reform” and “ ‘are less deserving of the most severe
punishments.’ ” Miller at 2464, quoting Graham at 2026. We, as judges, must
consider an offender’s youth when determining which sentence to impose.
       {¶ 34} But at the same time, the court has not suggested that courts
cannot, or should not, impose significant sanctions on youthful offenders. To the
contrary, it has recognized that it is “beyond question” that a youth who commits
a murder deserves severe punishment. Miller at 2469. And it has held that a state
is not required to guarantee eventual freedom to a juvenile offender convicted of a
nonhomicide crime; the state need only offer a meaningful opportunity for the
juvenile offender to be released, “based on demonstrated maturity and
rehabilitation.” Graham at 75.
       {¶ 35} The constitutional question, then, is how much to consider an
offender’s youth, and how much to consider his crime. See Graham at 67.
       {¶ 36} Ohio’s sentencing scheme generally requires judges not only to
protect the public, but also to punish and rehabilitate the offender by imposing
sanctions that are commensurate with the offender’s conduct and its impact on the
victim. R.C. 2929.11(A) and (B). The General Assembly has afforded judges
great discretion in fashioning proper sentences, constrained only by guideposts
that require the sentencing judge to consider certain factors that help determine
the seriousness of the crime and the likelihood of recidivism. R.C. 2929.12.
Today, we reaffirm that discretion, but we add to the sentencing calculus by
holding that an offender’s youth must be an articulated consideration in the
sentencing analysis, at least in cases in which life without parole is a potential
sanction.
       {¶ 37} Our syllabus and analysis are clear. Our holdings today make clear
that a judge must separately consider youth as a mitigating factor and that the




                                        16
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record must clearly reflect that that consideration took place in sentencing an
offender to life without parole for offenses committed as a minor. Those holdings
are paramount. But in joining them, I caution that our law requires only that
youth be considered as a factor. It does not mandate any particular result from
that consideration.
       {¶ 38} As a court of last resort, our role is to ensure that sentences meted
out by a judge are sentences that comply with statutory commands and
constitutional principles. It is not to second-guess decisions made by a trial judge
on whether, on the facts, any offender, including youthful offenders, should be
given a particular sentence.
       {¶ 39} In remanding this cause, we do not opine on the merits of Long’s
sentence. We simply ensure that whatever sentence the judge imposes, even if the
sentence remains the same, is imposed according to all protections the law affords
the offender. Though “appropriate occasions for sentencing juveniles to [the]
harshest possible penalty will be uncommon,” Miller, 132 S.Ct. at 2469, 183
L.Ed.2d 407, they do arise.
       {¶ 40} Reasonable minds will certainly differ as to which sentence is most
fitting for Eric Long. But whether we believe that the juvenile justice system
failed Long, or that Long failed the system, the result is the same: dead young
men, wounded young men, incarcerated-for-life young men. None of us should
take much solace in that.
                               ____________________
       O’DONNELL, J., dissenting.
       {¶ 41} I respectfully dissent.
       {¶ 42} Eric Long was almost 18 years old when he, Fonta Whipple, and
Jashawn Clark fired assault-style weapons into a dwelling in Lincoln Heights,
striking Kyrie Maxberry in the face and Mark Keeling in the spine. Days later, he
participated in the killing of Scott Neblett and Keith Cobb, both of whom were



                                        17
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shot to death with the same assault-style weapons while driving on Interstate 75
north of Cincinnati.
       {¶ 43} A jury found him guilty of two counts of aggravated murder, three
counts of felonious assault, two counts of having weapons while under disability,
one count of improperly discharging a firearm into a habitation, one count of
carrying concealed weapons, and various firearm specifications, and as a result,
the trial court imposed a sentence of consecutive terms of life imprisonment
without the possibility of parole on the murder counts plus an additional term of
19 years on the remaining counts and specifications, served consecutively. While
there is no question that the United States Constitution permits the imposition of a
sentence of life without parole on a juvenile offender convicted of murder in
appropriate circumstances, the singular question presented here is whether the
trial court sufficiently indicated that it had considered Long’s youth to be a
mitigating factor before imposing sentence.
       {¶ 44} The only argument Long advanced in the trial court focused on the
proposition that a juvenile offender’s youth is a mitigating factor.          In his
sentencing memorandum in that regard, Long asserted, “The importance of
treating a defendant’s youth as a mitigating factor cannot be underestimated,” and
he noted that juveniles are less mature, more impetuous, and more susceptible to
outside influence and psychological damage while also lacking the experience,
judgment, and capacity to control their conduct. He maintained that youth crime
is not exclusively the juvenile offender’s fault, but represents a failure of family,
school, and society. And he emphasized that his culpability is diminished by his
youth, immaturity, and vulnerability to peer pressure from his adult codefendants.
Thus, Long urged that he should not be sentenced to life in prison without the
possibility of parole based on his chronological age (17 years and 9 months) at the
time of his crimes.




                                         18
                                 January Term, 2014




          {¶ 45} At the sentencing hearing, his defense counsel reiterated these
same arguments, emphasizing that Long was a juvenile offender, contrasting his
culpability with that of the adult codefendants and asking for “a glimmer of hope”
and “a chance that some day he can return to society, hopefully a changed and
rehabilitated man.” The state agreed that “youth is usually a mitigating factor”
but discounted it, given Long’s “horrendous” juvenile record and his complete
failure to show any interest in rehabilitation or to acknowledge the harm he
caused.
          {¶ 46} At sentencing, the trial court said that it had considered the
“circumstances of [these] offenses, your history, character and condition,” and it
sentenced Long to life in prison without the possibility of parole. The First
District Court of Appeals affirmed, concluding that the trial court had discretion
to impose life with or without parole and “was able to consider whether Long’s
‘youth and its attendant characteristics, along with the nature of his crime, made a
lesser sentence (for example, life with the possibility of parole) more
appropriate.’ ” 2012-Ohio-3052, ¶ 52, quoting Miller v. Alabama, ___ U.S. ___,
132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012). The appellate court determined
that the trial court had considered those factors, because defense counsel had
focused on Long’s youth as a mitigating factor and the trial court had stated it
considered Long’s “history, character and condition.”
          {¶ 47} This court accepted Long’s discretionary appeal on one proposition
of law: “The Eighth Amendment requires trial courts to consider youth as a
mitigating factor when sentencing a child to life without parole for a homicide.”
                          Cruel and Unusual Punishment
          {¶ 48} In construing the Eighth Amendment, the United States Supreme
Court adopted categorical bans on sentencing practices specially focused on
juvenile offenders based on their lesser culpability and greater potential for
rehabilitation. In Roper v. Simmons, 543 U.S. 551, 578, 125 S.Ct. 1183, 161



                                         19
                            SUPREME COURT OF OHIO




L.Ed.2d 1 (2005), the court held that the Eighth Amendment prohibits the
imposition of capital punishment on children under the age of 18.          And in
Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), it
concluded that the Eighth Amendment forbids a sentence of life without the
possibility of parole for a juvenile convicted of a nonhomicide offense.
        {¶ 49} Most recently, in Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455,
2460, 183 L.Ed.2d 407, the court held that a state sentencing scheme that requires
“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.’ ”     Comparing sentences of life without parole for juvenile
offenders to a death sentence, the United States Supreme Court applied its
precedents demanding individualized sentencing in capital cases and required that
the juvenile offender have “an opportunity to advance,” and the sentencer have “a
chance to assess,” any mitigating factors. Id. at 2467.
        {¶ 50} The court, however, declined to categorically bar the imposition of
a sentence of life without the possibility of parole on juvenile offenders,
explaining that “[a]lthough we do not foreclose a sentencer’s ability to make that
judgment in homicide cases, we require it to take into account how children are
different, and how those differences counsel against irrevocably sentencing them
to a lifetime in prison.” Miller at 2469. Thus, the court determined 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
2475.
        {¶ 51} Unlike the sentencing scheme invalidated in Miller, here, Long had
“an opportunity to advance,” and the trial court had “a chance to assess,” Long’s
youth as a mitigating factor. Ohio does not have a mandatory penalty scheme that
requires the trial court to sentence all offenders—juvenile and adult—to life
without parole in these circumstances. Rather, R.C. 2929.03(A)(1) vests the trial




                                         20
                                January Term, 2014




court with discretion to impose life imprisonment with or without the possibility
of parole on an offender found guilty of aggravated murder.             Thus, Ohio’s
sentencing statutes do not violate Miller, which struck down only those
sentencing schemes that completely foreclose the consideration of the youth of a
juvenile offender.
       {¶ 52} Further, nothing in Miller prescribes the weight that the court must
give this mitigating factor in imposing sentence; even in the context of capital
sentencing, “the Constitution does not require a State to ascribe any specific
weight to particular factors, either in aggravation or mitigation, to be considered
by the sentencer.” Harris v. Alabama, 513 U.S. 504, 512, 115 S.Ct. 1031, 130
L.Ed.2d 1004 (1995). Rather, as we explained in State v. Jackson, 107 Ohio St.3d
53, 2005-Ohio-5981, 836 N.E.2d 1173:


               We have long held that in imposing sentence, the
       assessment of and weight given to mitigating evidence are within
       the trial court's discretion. State v. Lott (1990), 51 Ohio St.3d 160,
       171, 555 N.E.2d 293. “The fact that mitigation evidence is
       admissible ‘does not automatically mean that it must be given any
       weight.’ State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273,
       509 N.E.2d 383, paragraph two of the syllabus.” State v. Mitts
       (1998), 81 Ohio St.3d 223, 235, 690 N.E.2d 522.


Id. at ¶ 106. Thus, although a trial court is required to consider youth as a
mitigating factor, it may exercise its discretion as to what weight it will give to
that factor in connection with the other relevant sentencing factors.
       {¶ 53} Nor does Miller require the court to explicitly state that it has
considered any particular mitigating factor. And as we reiterated in State v.
Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 363, “ ‘While a



                                         21
                              SUPREME COURT OF OHIO




sentencing court must consider all evidence of mitigation, it need not discuss each
factor individually.’ State v. Phillips (1995), 74 Ohio St.3d 72, 102, 656 N.E.2d
643, citing Parker v. Dugger (1991), 498 U.S. 308, 314-315, 111 S.Ct. 731, 112
L.Ed.2d 812.” Contrary to the majority’s assertion, the trial court’s failure to
“separately mention that Long was a juvenile when he committed the offense”
does not mean that “we cannot be sure how the trial court applied this factor” or
otherwise conduct an effective review of the sentence. Majority opinion at ¶ 27.
No one disputed that Long was a juvenile, and in any case, the Supreme Court
recognized in Clemons v. Mississippi, 494 U.S. 738, 750, 110 S.Ct. 1441, 108
L.Ed.2d 725 (1990), that the sentencer need not make written findings concerning
mitigating circumstances in order for an appellate court to perform an effective
review.
          {¶ 54} Significantly, in Miller, the court implicitly recognized that
although the youth of a juvenile offender is a mitigating factor, the mitigating
weight of youth necessarily decreases as the offender grows older; in fact, Miller
noted that there are differences between a 14-year-old offender and a 17-year-old
offender and directed courts “to take into account the differences among
defendants and crimes.” Miller, 132 S.Ct. at 2469, 183 L.Ed.2d 407, fn. 8. Yet
here, Long was only three months shy of his 18th birthday, and he presented no
concrete information about his personal background or family history that would
have allowed the court to evaluate his mental condition and development,
maturity, and relative culpability for his crimes. Long cannot fail to present
specific mitigating evidence and then fault the trial court for not considering it.
Compare State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011,
¶ 21 (“the burden of going forward with the evidence of a mental state, as a
mitigating factor during a capital trial, is on the accused”).
          {¶ 55} It cannot be assumed that the trial court ignored Long’s argument
that his chronological age at the time of the offense, standing alone, sufficiently




                                          22
                                January Term, 2014




mitigates his conduct to make a sentence of life without parole inappropriate.
Rather, it is manifest that whatever significance the trial court attributed to Long’s
youth, it did not outweigh his “violent history and record,” his lack of remorse
and likelihood to “kill again,” and the seriousness of his crimes, which involved
firing assault-type weapons into an occupied dwelling and at occupants of a
speeding vehicle, killing two persons and seriously injuring two others. In my
view, the trial court carefully followed the law in this area and properly exercised
its discretion in concluding that a sentence of life without the possibility of parole
was appropriate in this case. I would therefore affirm the judgment of the court of
appeals.
       KENNEDY, J., concurs in the foregoing opinion.
                             ____________________
       Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W.
Springman, Chief Assistant Prosecuting Attorney, for appellee.
       Timothy Young, Ohio Public Defender, and Stephen P. Hardwick,
Assistant Public Defender, for appellant.
       Michael DeWine, Attorney General, and Peter K. Glenn-Applegate,
Deputy Solicitor, urging affirmance for amicus curiae Ohio Attorney General.
       Marsha L. Levick, urging reversal for amicus curiae Juvenile Law Center.
       Kilpatrick, Townsend & Stockton, L.L.P., and Gia L. Cincone, urging
reversal for amicus curiae National Association of Criminal Defense Lawyers.
                          _________________________




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