[Cite as State v. Moore, 2013-Ohio-5868.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

STATE OF OHIO,                               )
                                             )    CASE NO. 08 MA 20
        PLAINTIFF-APPELLEE,                  )
                                             )
        - VS -                               )       OPINION
                                             )        AND
BRANDON MOORE,                               )    JUDGMENT ENTRY
                                             )
        DEFENDANT-APPELLANT.                 )

CHARACTER OF PROCEEDINGS:                         Motion for Reconsideration.

JUDGMENT:                                         Motion Denied.

APPEARANCES:
For Plaintiff-Appellee:                           Attorney Paul J. Gains
                                                  Prosecuting Attorney
                                                  Attorney Ralph M. Rivera
                                                  Assistant Prosecuting Attorney
                                                  21 W. Boardman St., 6th Floor
                                                  Youngstown, OH 44503

For Defendant-Appellant:                          Attorney Kimberly A. Jolson
                                                  Attorney Rachel S. Bloomekatz
                                                  Jones Day
                                                  325 John H. McConnell Blvd.
                                                  Suite 600
                                                  P.O. Box 165017
                                                  Columbus, OH 43216-5017


JUDGES:
Hon. Mary DeGenaro
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite



                                                  Dated: December 9, 2013
[Cite as State v. Moore, 2013-Ohio-5868.]
        {¶1}    Defendant-Appellant Brandon Moore asks this Court for delayed
reconsideration of his resentencing appeal, State v. Moore (Moore III), 7th Dist. No. 08
MA 20, 2009-Ohio-1505 as he has no other avenue to avail himself of the retroactive
constitutional argument that his sentence violates Graham v. Florida, 560 U.S. 48, 130
S.Ct. 2011, 176 L.Ed. 2d 825 (2010). In Graham, the United States Supreme Court held
that imposing a life sentence without the possibility of parole upon nonhomicide juvenile
offenders as a category violates the prohibition against cruel and unusual punishment of
the Eighth Amendment to the United States Constitution. The Court reasoned that
because juveniles as a category are fundamentally different from adult offenders, they
cannot in the first instance be subjected to spending the rest of their natural lives in
prison. Rather, they must be afforded a 'meaningful opportunity' to establish that they are
rehabilitated and eligible for parole. Moore argues that his 112 year sentence deprives
him of a meaningful opportunity to obtain release as contemplated by Graham, because
the trial court imposed a de facto life sentence, and indicated as much at sentencing.
        {¶2}    We are unpersuaded by Moore's arguments. For the reasons articulated in
State v. Bunch, 7th Dist. No. 06 MA 106, J.E. August 8, 2013 and State v. Barnette, 7th
Dist. No. 06 MA 135, September 16, 2013, Appellant Brandon Moore's Delayed
Application for Reconsideration is denied. DeGenaro, P.J., dissents, see dissenting
opinion.

Vukovich, J., concurs.
Waite, J., concurs.
                                                                                      -2-


DeGenaro, P.J. dissents.
       {¶3}   Because Moore has no other avenue to make this argument, Moore's
delayed motion for reconsideration should be granted. App.R. 14(B) provides delayed
reconsideration "pursuant to App. R. 26(A) shall not be granted except on a showing of
extraordinary circumstances." That showing has been made here; namely, a United
States Supreme Court retroactive holding involving a criminal constitutional issue. We
would be considering an arguably valid extension of a constitutional argument which was
not available to Moore when his case was before the trial court, this Court and the Ohio
Supreme Court in either his direct or second appeal. Significantly, the day Graham was
announced, Moore filed his pro-se notice of appeal in Moore V, arguing that his sentence
was unconstitutional pursuant to Graham; however the panel refused to address that
argument, suggesting in dicta the issue was barred by res judicata and could be raised
via post-conviction proceedings.
       {¶4}   Turning to the merits of Moore's motion, R.C. 2929.20 enacted by the Ohio
Legislature subsequent to Graham provides a constitutionally meaningful opportunity to
seek parole or judicial release. Thus, on its face, Moore's argument fails. However,
under the facts of this case, Moore's sentence may be so long as to still impose a de
facto life sentence. Accordingly, Moore's motion for reconsideration should be granted,
and the case remanded to the trial court.
                             Facts and Procedural History
       {¶5}   This is Moore's seventh proceeding before this court. In October 2002,
Moore was convicted following a jury trial of 12 counts of aggravated robbery, rape,
complicity to rape, kidnapping, conspiracy to commit aggravated robbery, and aggravated
menacing, along with 11 firearm specifications pursuant to R.C. 2941.145(A). These
offenses arose from a brutal gang rape by Moore, Chaz Bunch, and two others. The
vicious attack began with the defendants abducting the victim while she was leaving her
place of employment and driving her to a secluded location, while Moore digitally raped
her. Arriving at a dead end street, Moore and Bunch proceeded to vaginally, orally and
anally rape the victim multiple times as well as simultaneously orally and vaginally raping
                                                                                       -3-


her, all at gunpoint. Telling her attackers she was pregnant in the hope of stopping the
attack, the other two defendants eventually stopped the rapes; the victim was escorted to
her car, when she was finally able to escape, after being told they knew who she was and
that she and her family would be killed if she reported the incident. State v. Moore
(Moore I), 161 Ohio App.3d 778, 2005-Ohio-3311, 832 N.E.2d 85, ¶3-9. The trial court's
October 29, 2002 judgment entry imposed maximum consecutive sentences on all
counts, except for the misdemeanor menacing charge to be served concurrently with the
other sentences, and consecutive sentences on the 11 firearm specifications, for an
aggregate sentence of 141 years.
      {¶6}   The procedural history of Moore's six prior appeals is detailed in State v.
Moore (Moore VI), 7th Dist. No. 12 MA 91, 2013-Ohio-1431, 990 N.E.2d 165:

             On direct appeal, this court affirmed in part, reversed in part, and
      remanded the matter for resentencing. In response to Moore's argument
      that the trial court failed to merge his firearm specifications, this court
      directed that upon remand, the trial court was limited to imposing, at most,
      one prison term for the firearm specifications contained in counts two and
      three of the indictment and, at most, three separate prison terms for the
      firearm specifications in counts one, four, five, six, seven, eight, nine, and
      ten. State v. Moore (Moore I), 161 Ohio App.3d 778, 2005-Ohio-3311, 832
      N.E.2d 85, ¶ 115 (7th Dist.). Moore applied to reopen his direct appeal
      based on an alleged speedy trial violation, which was denied. State v.
      Moore, 7th Dist. No. 02 CA 216, 2005-Ohio-5630, 2005 WL 2715460.
             Upon remand for resentencing, at the September 7, 2005 hearing
      and in the judgment entry entered that day, the trial court merged some of
      the firearm specifications and acknowledged the dismissal of one count, as
      directed by this court. The trial court then sentenced Moore to maximum,
      consecutive sentences on the remaining counts for an aggregate sentence
      of 112 years. Moore then filed his second appeal. This court vacated his
                                                                                  -4-


sentence based on State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470, and remanded the matter for resentencing. State v. Moore
(Moore II), 7th Dist. No. 05 MA 178, 2007-Ohio-7215, 2007 WL 4696843.
       The trial court held a resentencing hearing on January 24, 2008, and
it reimposed the 112 year prison term and designated Moore as a Tier III
sexual offender. Moore filed a third appeal, and this court upheld his
sentence. State v. Moore (Moore III), 7th Dist. No. 08 MA 20, 2009-Ohio-
1505, 2009 WL 825758.
       On December 30, 2009, Moore filed a petition for writ of mandamus
and/or procedendo with this court, seeking to compel the trial judge to issue
a final appealable judgment entry of sentence in compliance with Crim.R.
32(C) as set forth in State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330,
893 N.E.2d 163. Moore argued that he was entitled to a new sentencing
hearing and a revised sentencing entry that specified his manner of
conviction. This court granted the writs in part and ordered the trial court to
issue a revised sentencing entry that complied with Crim.R. 32(C). State ex
rel. Moore v. Krichbaum (Moore IV), 7th Dist. No. 09 MA 201, 2010-Ohio-
1541, 2010 WL 1316230.
       On April 7, 2010, Moore filed a pro-se motion to dismiss all further
proceedings due to unreasonable delay in sentencing. On April 20, 2010,
the trial court issued a nunc pro tunc judgment entry to comply with Crim.R.
32(C) and re-imposed the 112 year term of incarceration. Moore then
appealed on May 17, 2010. On May 19, 2010, the trial court overruled
appellant's motion to dismiss all further proceedings due to unreasonable
delay in sentencing. This court dismissed Moore's appeal on the basis of
State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142. This
court found that the nunc pro tunc judgment entry issued to comply with
Crim.R. 32(C) was not a final order subject to appeal. State v. Moore
(Moore V), 7th Dist. No. 10–MA–85, 2011-Ohio-6220, 2011 WL 6017942.
                                                                                        -5-


              This brings us to the instant matter and Moore's sixth appeal. On
       March 30, 2012, Moore filed a pro-se motion for resentencing, arguing that
       the trial court designating him a Tier III sex offender was error pursuant to
       State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108.
       He also filed a pro-se motion to correct the void portion of sentence,
       claiming the trial court failed to correctly merge his firearm specifications.
       On April 26, 2012, the State filed motions to dismiss in response to each of
       these motions.

Moore VI, ¶4-9.
       {¶7}   In Moore VI this court rejected most of Moore's arguments, reversing and
remanding the matter solely for a sex offender classification hearing pursuant to S.B. 5,
known as Megan's Law, Moore having been classified pursuant to the Adam Walsh Act.
                      Untimely Application for Reconsideration
                                      General Test
       {¶8}   With this procedural history in mind, we consider the timeliness of Moore's
motion. This court's decision in Deutsche Bank Natl. Trust Co. v. Knox, 7th Dist. No. 09
BE 4, 2011-Ohio-421 (Deutsche Bank II) is instructive here; not only does it outline
general principles for considering delayed motions for reconsideration, the specific facts
in that case support granting Moore's motion here. The panel analyzed the interplay
between App.R. 26 and 14 as follows:

              App.R. 26, which provides for the filing of an application for
       reconsideration in this court, includes no guidelines to be used in the
       determination of whether a decision is to be reconsidered.          The test
       generally applied is whether the motion for reconsideration calls to the
       attention of the court an obvious error in its decision or raises an issue for
       our consideration that was either not at all or was not fully considered by us
       when it should have been. An application for reconsideration is not
       designed for use in instances where a party simply disagrees with the
                                                                                         -6-


       conclusions reached and the logic used by an appellate court. Rather,
       App.R. 26 provides a mechanism by which a party may prevent
       miscarriages of justice that could arise when an appellate court makes an
       obvious error or renders an unsupportable decision under the law.
              Initially, we must address the timeliness of appellee's motion. * * *
       Yet even though appellee's motion was late, we may still consider it. This
       court has held that a motion for reconsideration can be entertained even
       though it was filed beyond the ten-day limit if the motion raises an issue of
       sufficient importance to warrant entertaining it beyond the time limit. In this
       case, we find that appellee's motion raises an issue of sufficient importance
       so as to warrant its consideration.
              Furthermore, App.R. 26 is not jurisdictional. App.R. 14(B) provides
       as much, stating:
              "For good cause shown, the court, upon motion, may enlarge or
       reduce the time prescribed by these rules or by its order for doing any act,
       or may permit an act to be done after the expiration of the prescribed time.
       The court may not enlarge or reduce the time for filing a notice of appeal or
       a motion to certify pursuant to App.R. 25. Enlargement of time to file an
       application for reconsideration * * * shall not be granted except on a
       showing of extraordinary circumstances." (Emphasis added.)
              Thus, App.R. 14(B) gives this court jurisdiction to enlarge the time to
       file an application for reconsideration.

Deutsche Bank II, ¶2-6 (internal citations omitted).
       {¶9}   In Deutsche Bank II, the appellee asked to supplement the record with a
transcript that had been ordered but due to a clerical mistake had not been filed on
appeal, and then for the court to reconsider its decision in light of the supplemented
record. In the underlying case, Deutsche Bank Natl. Trust Co. v. Knox, 7th Dist. No. 09-
BE-4, 2010-Ohio-3277 (Deutsche Bank I), the panel had reversed and remanded the trial
                                                                                        -7-


court, in part, because of the absence of the transcript. Deutsche Bank at ¶39-41.
Granting leave to supplement the record and reconsideration in Deutsche Bank II, the
panel reiterated that its original decision was due, in part, to the absence of that
transcript, and that it would have decided the case otherwise had the missing transcript
been in the record. Deutsche Bank II at ¶10, vacating its reversal in Deutsche Bank I and
affirming the trial court's decision. Deutsche Bank II at ¶14.
                             Extraordinary Circumstances
       {¶10} Absent from the analysis in Deutsche Bank II is a finding that the panel had
made an obvious error or omission in the original decision, an apparent requirement to
grant reconsideration under App.R. 26. However, in the interest of justice, the panel
determined that appellee's showing of extraordinary circumstances as contemplated by
App.R. 14, was sufficient for App.R. 26 purposes as well. Deutsche Bank II at ¶3. "The
Ohio Supreme Court has held that in this unique type of situation where there was an
accidental omission of part of a transcript, reconsideration should be allowed in light of
the accidentally omitted transcript portion." Deutsche Bank II at ¶9, citing Reichert v.
Ingersoll, 18 Ohio St.3d 220, 222–23, 480 N.E.2d 802 (1985).
       {¶11} Similarly, in State v. Degens, 6th Dist. No. L-11-1112, 2011-Ohio-3711,
where the appellant was seeking reconsideration of the appellate court's decision denying
bail and a stay of a four year prison sentence pending appeal, the Sixth District granted
reconsideration and moreover vacated its prior decision granting bail and a stay:

              Although appellant's motion neither calls to our attention an obvious
       error in our prior decision nor raises an issue that was not considered or not
       fully considered when it should have been, we find in the interests of justice
       that appellant's motion for reconsideration should be granted.

Degens at ¶5.
       {¶12} Because Moore filed his reconsideration motion well beyond the 10 days
provided by App.R. 26(A), we look to App.R. 14 for guidance. In Deutsche Bank II, a civil
case where a part of the transcript was omitted, and Degens, a criminal case involving a
                                                                                        -8-


four year sentence, reconsideration was granted on the basis of the interest of justice,
extraordinary circumstances having been shown based upon those facts: no error or
omission was found in the appellate panel's prior decision. Given this is a criminal matter
where an 112 year sentence was imposed, and Moore is arguing a Supreme Court
decision involving the Eighth Amendment retroactively applies to his sentence; Moore has
established extraordinary circumstances warranting delayed reconsideration. To do
otherwise in this narrow circumstance would create a miscarriage of justice that relief
under App.R. 26 was enacted to avoid.
       {¶13} Significantly, the day Graham was announced, Moore filed his pro-se notice
of appeal in Moore V. In that appeal, Moore argued that his sentence did not comply with
Crim.R. 32 and was unconstitutional pursuant to Graham. The panel held that pursuant
to State v. Lester, 2011-Ohio-5204, 130 Ohio St.3d 303, 958 N.E.2d 142, the clerical
correction the trial court made to Moore's original sentencing entry was not a final
appealable order and dismissed the appeal. Moore V, ¶21-2. Thus, it did not reach the
merits of Moore's Graham argument; suggesting in dicta the issue was barred by res
judicata and could be raised via post-conviction proceedings. Id., ¶33.
                              No Other Available Remedy
       {¶14} Reconsideration of our prior decision is warranted to avoid a manifest
injustice as Moore has no other avenue available to raise this constitutional challenge.
Moore is correct that R.C. 2953.23 does not permit a non-capital defendant to raise a
constitutional challenge to his sentence via post-conviction petition. State v. Barkley, 9th
Dist. No. 22351, 2005-Ohio-1268 ¶11. Contra Moore V, in dicta. Further, as discussed
above, he is correct that App.R. 14(B) only requires an extraordinary circumstance with
respect for reason for the delayed filing, not the length of the delay. Contra App.R. 5(A),
and App.R. 26(B), requiring a showing good cause for the length in the delay before filing
a motion for a delayed appeal or reopening, respectively.
       {¶15} Nor can Moore raise this claim via a state habeas petition. "Whoever is
unlawfully restrained of his liberty, or entitled to the custody of another, of which custody
such person is unlawfully deprived, may prosecute a writ of habeas corpus, to inquire into
                                                                                        -9-


the cause of such imprisonment, restraint, or deprivation." R.C. 2725.01. Because as a
matter of law it is an open question in Ohio as to how much of a lengthy sentence a
juvenile offender must serve before being eligible to seek judicial release or parole, Moore
cannot state that he is unlawfully in custody; his habeas claim is not ripe.
       {¶16} Nor can Moore raise this claim via a federal habeas petition. Pursuant to
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) a retroactive
application of Graham fails in federal habeas proceedings because a defendant cannot
establish that the state court sentence was "'contrary to, or involved an unreasonable
application of, clearly established Federal law.' 28 U.S.C. § 2254(d)(1). The Supreme
Court has recently clarified that 'clearly established Federal Law' means the law that
existed at the time of 'the last state-court adjudication on the merits.' Greene v. Fisher, –
–– U.S. ––––, 132 S.Ct. 38, 45, 181 L.Ed.2d 336 (2011)." Bunch v. Smith, 685 F.3d 546,
549 (6th Cir. 2012) (Graham challenge to 89 year sentence rejected under AEDPA
procedural parameters). Similarly, in Goins v. Smith, No. 4:09-CV-1551, 2012 WL
3023306 (N.D.Ohio July 24, 2012) the district court rejected Goins' habeas petition
primarily pursuant to the Sixth Circuit's AEDPA analysis in Bunch. Because Graham was
not the clearly established law at the time Moore's case was being considered by the trial
court and this court, the AEDPA bars federal habeas relief on that basis. Thus, if Moore
would raise Graham in a federal habeas petition, it would be rejected on procedural
grounds as it had been in Bunch and Goins.
                                    Graham v. Florida
       {¶17} Turning to the merits of Moore's argument, he contends that his 112 year
sentence deprives him of a meaningful opportunity to obtain release as contemplated by
Graham, because in effect the trial court imposed a life sentence, and indicated as much
at sentencing. In Graham, by a 5-4 vote, the Supreme Court held that, categorically,
nonhomicide juvenile offenders cannot be sentenced to life without parole. A related
issue currently pending before the Ohio Supreme Court in State v. Long, Case No. 2012-
1410 is whether it is constitutional to impose a non-mandatory sentence of life without the
possibility of parole upon a nonhomicide juvenile defendant. That this issue is presently
                                                                                        - 10 -


pending before the Ohio Supreme Court lends further support to hearing Moore's
argument herein.
       {¶18} In the underlying case in Long, the First District held that it was
constitutional, reasoning that in Graham the life sentence in Florida was mandatory,
whereas it is discretionary in Ohio. State v. Long, 1st Dist. No. C-110160, 2012-Ohio-
3052, appeal accepted, 133 Ohio St.3d 1502, 2012-Ohio-5693, 979 N.E.2d 348 (oral
argument on June 11, 2013). However, in Graham the majority drew no such distinction;
it held the Eighth Amendment prohibited the imposition of a life without parole sentence
upon a juvenile nonhomicide offender. Graham, 130 S.Ct. at 2034. That prohibition was
later extended to juvenile homicide offenders in Miller v. Alabama, 132 S.Ct. 2455, 183
L.Ed.2d 407 (2012).
       {¶19} Moore argues here that under an extension of Graham's categorical holding,
a de facto life sentence without the possibility of parole, i.e., an extraordinarily long
sentence (in this case 112 years) that becomes in all practicality a life sentence, though
not explicitly so imposed, is unconstitutional. This precise issue was concededly left open
by the majority in Graham:

              A State is not required to guarantee eventual freedom to a juvenile
       offender convicted of a nonhomicide crime. What the State must do,
       however, is give defendants like Graham some meaningful opportunity to
       obtain release based on demonstrated maturity and rehabilitation. It is for
       the State, in the first instance, to explore the means and mechanisms for
       compliance. It bears emphasis, however, that while the Eighth Amendment
       forbids a State from imposing a life without parole sentence on a juvenile
       nonhomicide offender, it does not require the State to release that offender
       during his natural life. Those who commit truly horrifying crimes as juveniles
       may turn out to be irredeemable, and thus deserving of incarceration for the
       duration of their lives. The Eighth Amendment does not foreclose the
       possibility that persons convicted of nonhomicide crimes committed before
                                                                                        - 11 -


       adulthood will remain behind bars for life. It does forbid States from making
       the judgment at the outset that those offenders never will be fit to reenter
       society. (Emphasis Added)

Graham, 130 S.Ct. at 2030.
       {¶20} The majority in Graham signaled that it may be constitutionally valid to
impose lengthy sentences upon nonhomicide juvenile offenders whose crimes are
especially heinous, brutal, depraved and grotesque; and moreover, after a meaningful
opportunity to demonstrate maturity and rehabilitation, to keep a juvenile offender
incarcerated for their natural life if they prove to be irredeemable. But an initial, outright
life without parole sentence is constitutionally prohibited. Id. The analysis of Chief
Justice Roberts in his concurring in judgment opinion, concluding that the sentencing
decision in these circumstances should be made on a case by case basis, alludes to the
issue Moore presents here:

              So much for Graham. But what about Milagro Cunningham, a 17–
       year–old who beat and raped an 8–year–old girl before leaving her to die
       under 197 pounds of rock in a recycling bin in a remote landfill? See
       Musgrave, Cruel or Necessary? Life Terms for Youths Spur National
       Debate, Palm Beach Post, Oct. 15, 2009, p. 1A. Or Nathan Walker and
       Jakaris Taylor, the Florida juveniles who together with their friends gang-
       raped a woman and forced her to perform oral sex on her 12–year–old
       son? See 3 Sentenced to Life for Gang Rape of Mother, Associated Press,
       Oct. 14, 2009. The fact that Graham cannot be sentenced to life without
       parole for his conduct says nothing whatever about these offenders, or
       others like them who commit nonhomicide crimes far more reprehensible
       than the conduct at issue here. The Court uses Graham's case as a vehicle
       to proclaim a new constitutional rule—applicable well beyond the particular
       facts of Graham's case—that a sentence of life without parole imposed on
                                                                                      - 12 -


       any juvenile for any nonhomicide offense is unconstitutional. This
       categorical conclusion is as unnecessary as it is unwise.
              A holding this broad is unnecessary because the particular conduct
       and circumstances at issue in the case before us are not serious enough to
       justify Graham's sentence. In reaching this conclusion, there is no need for
       the Court to decide whether that same sentence would be constitutional if
       imposed for other more heinous nonhomicide crimes.
       ***
              In any event, the Court's categorical conclusion is also unwise. Most
       importantly, it ignores the fact that some nonhomicide crimes—like the ones
       committed by Milagro Cunningham, Nathan Walker, and Jakaris Taylor—
       are especially heinous or grotesque, and thus may be deserving of more
       severe punishment.

Graham, 130 S.Ct. at 2041 (Roberts, C.J. concurring in judgment)
       {¶21} The issue raised by Moore in this case, where the juvenile's sentence is so
lengthy that, in effect, a life sentence without the possibility of parole was imposed in
contravention of the Eighth Amendment, was expressly raised by Justice Thomas in his
dissenting opinion, albeit framed from the State's perspective rather than the juvenile
offender. How long of a sentence can the trial court impose, without violating the Eighth
Amendment, where it finds the crime to be exceptionally depraved and rare in its brutality:

              Both the Court and the concurrence claim their decisions to be
       narrow ones, but both invite a host of line-drawing problems to which courts
       must seek answers beyond the strictures of the Constitution. The Court
       holds that "[a] State is not required to guarantee eventual freedom to a
       juvenile offender convicted of a nonhomicide crime," but must provide the
       offender with "some meaningful opportunity to obtain release based on
       demonstrated maturity and rehabilitation." Ante, at 2030. But what, exactly,
       does such a "meaningful" opportunity entail? When must it occur? And
                                                                                      - 13 -


        what Eighth Amendment principles will govern review by the parole boards
        the Court now demands that States empanel? The Court provides no
        answers to these questions, which will no doubt embroil the courts for
        years.

Graham, 130 S.Ct. at 2057, (Thomas, J., dissenting.)
        {¶22} Thus, the Supreme Court is apparently unanimous in foreseeing that a
crime so heinous, even though committed by a juvenile, would warrant imposing a
sentence so long that, once a 'meaningful opportunity' to establish rehabilitation has been
afforded, the juvenile still would remain incarcerated for their natural life. The question
Moore's case presents here is where to draw that sentencing line.
        {¶23} Moore argues that according to the Ohio Department of Rehabilitation and
Correction, he and three other nonhomicide juvenile offenders, sentenced by the same
trial judge, have the longest sentences in Ohio. However, a review of the facts from the
direct appeals of these four juveniles, Moore and his co-defendant Bunch, summarized
above, and co-defendants Chad Barnette and James Goins, demonstrate they were
involved in two separate criminal incidents that were truly horrifying crimes rare for their
brutality and depravity. Barnette I; State v. Goins, 7th Dist. No. 02 CA 68, 2005-Ohio-
1439; State v. Moore, 7th Dist. No. 02 CA 216, 161 Ohio App.3d 778, 2005-Ohio-3311,
832 N.E.2d 85, State v. Bunch, 7th Dist. No 02 CA 196, 2005-Ohio-3309. Nonetheless,
the Supreme Court has held that juvenile offenders, consistent with the heinous nature of
their crimes, must be given a 'meaningful opportunity' at some point during the course of
their sentence, to establish they have rehabilitated; or after that review are found to be
irredeemable and must remain incarcerated for their natural lives. Graham, 130 S.Ct. at
2030.
                       R.C. 2929.20 Affords Meaningful Review
        {¶24} Since Moore's original sentencing, not only has Graham been decided,
Ohio's judicial release statute has been modified, which may afford Moore the
                                                                                        - 14 -


constitutionally required 'meaningful opportunity' to prove he has been rehabilitated and
eligible for parole as contemplated by Graham.
      {¶25} R.C. 2929.20, governing judicial release, now provides in pertinent part
relative to Moore's sentence:

      (A)(1)(a) Except as provided in division (A)(1)(b) of this section, "eligible
      offender" means any person who, on or after April 7, 2009, is serving a
      stated prison term that includes one or more nonmandatory prison terms.
      ***
      (B) On the motion of an eligible offender or upon its own motion, the
      sentencing court may reduce the eligible offender's aggregated
      nonmandatory prison term or terms through a judicial release under this
      section.
      (C) An eligible offender may file a motion for judicial release with the
      sentencing court within the following applicable periods:
      ***
      (4) If the aggregated nonmandatory prison term or terms is more than five
      years but not more than ten years, the eligible offender may file the motion
      not earlier than five years after the eligible offender is delivered to a state
      correctional institution or, if the prison term includes a mandatory prison
      term or terms, not earlier than five years after the expiration of all
      mandatory prison terms.


      (5) If the aggregated nonmandatory prison term or terms is more than ten
      years, the eligible offender may file the motion not earlier than the later of
      the date on which the offender has served one-half of the offender's stated
      prison term or the date specified in division (C)(4) of this section.
      (Emphasis added.)
                                                                                       - 15 -


       {¶26} The interplay between this statute and Graham was discussed in the
unsuccessful habeas petition of James Goins. In Goins v. Smith, the District Court held
that for AEDPA purposes Graham was not the clearly established law at the time Goins'
84 year sentence was imposed or reviewed on the merits for the last time, and his claim
failed for that reason. Moreover, the District Court found that Goins failed to establish
that Graham clearly applied to him, noting it was bound by the Sixth Circuit's decision in
Bunch v. Smith, which held that because Graham was limited to juvenile offenders who
were specifically sentenced to life without parole and no federal court had extended
Graham to juvenile offenders sentenced to consecutive, fixed-term sentences for multiple
nonhomicide offenses, the Sixth Circuit could not hold that Bunch's sentenced violated
clearly established federal law. For that reason, the District Court could not so hold with
respect to Goins, "even though an eighty-nine-year aggregate sentence [referring to
Bunch, Goins' sentence is 84 years] without the possibility of parole may be—and
probably is—the functional equivalent of life without the possibility of parole." Goins v.
Smith at *6.
       {¶27} Having disposed of Goins' habeas petition on the narrow AEDPA procedural
grounds, the District Court noted in dicta:

               Perhaps more important, the Ohio General Assembly has changed
       Ohio's sentencing law to markedly improve Goins's ability to pursue
       release. In particular, Ohio law now permits a defendant to re-quest judicial
       release after he has served a portion of his sentence. Accordingly, Goins
       now faces a mandatory prison term of 42 or 45 years, after which he will be
       able to apply for judicial release. [Doc. 23; 25]. See Ohio H. 86, 129th Gen.
       Assembly (eff. Sept. 30, 2011) (amending Ohio Rev. Code § 2929.20 to
       permit offenders to file a motion for judicial release with the sentencing
       court after the later of one-half of their stated prison terms or five years
       after expiration of their mandatory prison terms). Although he faces an
                                                                                     - 16 -


       extremely long sentence, Goins does not face a sentence on the order of
       the one imposed in Graham.

Goins v. Smith at *7.
       {¶28} Similarly, Moore can avail himself of R.C. 2929.20. Thus, the ultimate issue
to be resolved is whether the 'meaningful opportunity' contemplated by the Supreme
Court in Graham is afforded Moore via the amendments made by the Ohio Legislature to
Ohio's judicial release statute. After serving the mandatory portion and one-half of the
nonmandatory portion of his 112 year sentence before he is eligible for parole, does that
length of time afford Moore with the meaningful opportunity to be evaluated and a
determination made whether he is rehabilitated or unredeemable? Based upon the
analysis of the three separate opinions in Graham, and the dicta in Goins v. Smith, on its
face, R.C. 2929.20 affords Moore a meaningful review in conformity with the Eighth
Amendment. Moore was fifteen when he committed the crimes, which were especially
heinous and brutal, as recounted in his direct appeal. This warrants that he serve a
lengthy sentence before he can be considered for judicial release, and be granted the
opportunity to prove he is rehabilitated. Graham cannot be read to mean or even
extended to mean, that upon that review Moore will be granted judicial release.
       {¶29} What is clear from Graham is that if a juvenile offender is sentenced to, say,
200 years for multiple offenses, including mandatory and nonmandatory sentences,
pursuant to R.C. 2929.20 he would have to serve 100 years before being eligible for
parole, this would not be constitutional under Graham. What if it was 75 years, or 50
years? An explicit versus de facto life sentence is a distinction without a difference. In
any event, the determination of whether R.C. 2929.20 provides a juvenile nonhomicide
offender a meaningful opportunity to demonstrate rehabilitation must be made on a case
by case basis, in order to consider the character of the juvenile, the facts supporting the
offenses, and the length of the sentence. Moore was 15 years old at the time he
committed these heinous crimes, and the trial court imposed a 112 year aggregate
sentence consisting of mandatory and non-mandatory terms. The trial court was clear
                                                                                        - 17 -


that the lengthy sentence was imposed to ensure Moore never left the penitentiary; thus
imposing a de facto life sentence.
       {¶30} Pursuant to statute it appears that Moore may have to serve approximately
60 years of his sentence before he could seek judicial release, at the age of 75.
However, it would be premature for us to determine whether or not Moore's 112 year
sentence is unconstitutional in light of the nature of his crimes. As the trier of fact, the
trial court must have the first opportunity to apply the holding in Graham within the context
of R.C. 2929.20, and impose a constitutional sentence commensurate with the rarity and
severity of Moore's crimes.
                                        Conclusion
       {¶31} Moore's delayed motion for reconsideration should be considered in the
interest of preventing a manifest injustice, because a criminal defendant should have
some mechanism to seek review of an asserted retroactive constitutional protection.
Moreover, Moore in fact raised the issue in Moore V and we declined to address the
issue; thus we should do so now.
       {¶32} As to the merits, the United States Supreme Court has made it clear that as
a category, juvenile offenders, irrespective of the nature of their crimes, may not be
explicitly sentenced to life without the possibility of parole; they must categorically be
afforded a meaningful opportunity to establish they have rehabilitated and can be paroled.
At the heart of the Court's decisions in Graham and Miller is that juvenile offenders as a
category fundamentally differ from adult offenders. Given those holdings and underlying
rationale, it would appear that juvenile offenders implicitly sentenced to life without parole
via consecutive maximum sentences for multiple offenses, which results in no opportunity
for parole violates the Eight Amendment. Where a juvenile who has committed 'truly
horrifying crimes' receives a de facto life sentence for one or multiple offenses, that
juvenile must, nonetheless, be eligible, at some point, to be evaluated and a
determination made whether they are rehabilitated, or that they "may turn out to be
irredeemable, and thus deserving of incarceration for the duration of their lives. The
Eighth Amendment does not foreclose the possibility that persons convicted of
                                                                                     - 18 -


nonhomicide crimes committed before adulthood will remain behind bars for life. It does
forbid States from making the judgment at the outset that those offenders never will be fit
to reenter society." Graham, 130 S.Ct. 2030.
       {¶33} Subsequent to the decision in Graham, the Ohio Legislature amended R.C.
2929.20 to afford juvenile and adult offenders sentenced to a non-mandatory sentence of
more than 10 years the opportunity to seek judicial release after having served one-half of
their stated non-mandatory sentence.        As this appears to afford the 'meaningful
opportunity' contemplated by Graham, on its face, Moore's argument fails. However,
under the facts of this case, Moore's sentence may be so long as to still impose a de
facto life sentence. Accordingly, Moore's motion for reconsideration should be granted,
and the case remanded to the trial court.
