[Cite as State v. Taylor, 2018-Ohio-4628.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellee                       :   Appellate Case No. 27879
                                                   :
 v.                                                :   Trial Court Case No. 2008-CR-1087
                                                   :
 GUDONAVON J. TAYLOR                               :   (Criminal Appeal from
                                                   :   Common Pleas Court)
          Defendant-Appellant                      :
                                                   :

                                              ...........

                                             OPINION

                          Rendered on the 16th day of November, 2018.

                                              ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

GUDONAVON J. TAYLOR, Inmate No. 627-232, Trumbull Correctional Institution, P.O.
Box 901, Leavittsburg, Ohio 44430
      Defendant-Appellant, Pro Se

                                             .............




WELBAUM, P.J.
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       {¶ 1} Defendant-appellant, Gudonavon J. Taylor, appeals pro se from a judgment

of the Montgomery County Court of Common Pleas overruling his “Motion to Vacate

Unlawful Sentence.” For the reasons outlined below, the judgment of the trial court will

be affirmed.



                             Facts and Course of Proceedings

       {¶ 2} In 2008, the Montgomery County Grand Jury indicted 17-year-old Taylor on

three counts of murder, two counts of felonious assault, one count of having weapons

while under disability, and one count of discharging a firearm on or near a prohibited

premises. Each of the counts included a three-year firearm specification. The firearm

specification on the charge for having weapons while under disability was later dismissed

by the State.

       {¶ 3} Following a jury trial, Taylor was found guilty of each indicted offense and

specification, excluding the charge for having weapons while under disability, which was

tried to the bench.     Following a bench trial, Taylor was also found guilty of having

weapons while under disability. After Taylor was found guilty of all the charged offenses

and specifications, the trial court sentenced Taylor to an aggregate term of 41 years to

life in prison with the possibility of parole.

       {¶ 4} Taylor appealed from his conviction and sentence, which this court affirmed

in State v. Taylor, 2d Dist. Montgomery No. 23990, 2013-Ohio-186. Taylor’s appeal was

thereafter reopened, and this court reaffirmed his conviction and sentence in State v.

Taylor, 2d Dist. Montgomery No. 23990, 2014-Ohio-3647. Three years after this court
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reaffirmed Taylor’s conviction, Taylor filed a pro se “Motion to Vacate Unlawful Sentence,”

the denial of which is the subject of this appeal.

       {¶ 5} In his “Motion to Vacate Unlawful Sentence,” Taylor argued that pursuant to

Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) and State v.

Moore, 149 Ohio St.3d 557, 2016-Ohio-8288, 76 N.E.3d 1127, his sentence violated the

Eighth Amendment’s prohibition against cruel and unusual punishment. After taking the

matter under advisement, the trial court overruled Taylor’s motion upon finding that the

decisions in Miller and Moore were distinguishable from Taylor’s case and that Taylor’s

sentence was lawful.

       {¶ 6} Taylor now appeals from the trial court’s decision overruling his “Motion to

Vacate Unlawful Sentence,” raising two assignments of error for review.



                                First Assignment of Error

       {¶ 7} Under his First Assignment of Error, Taylor contends the trial court erred in

failing to vacate his sentence. Specifically, Taylor claims the trial court erroneously

concluded that the holding in Miller was inapplicable to his case. Taylor maintains that,

pursuant to Miller, his prison sentence violates the Eighth Amendment’s prohibition

against cruel and unusual punishment. We disagree.

       {¶ 8} Miller involved two cases wherein two 14-year-old defendants were

convicted of murder and sentenced to life in prison without the possibility of parole.

Miller, 567 U.S. at 465, 132 S.Ct. 2455, 183 L.Ed.2d 407. In both cases, the sentencing

court did not have any discretion to impose a different punishment, as state law mandated

the sentences that were imposed. Id. The United States Supreme Court found that
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“such a scheme prevents those meting out punishment from considering a juvenile’s

‘lessened culpability’ and greater ‘capacity for change,’ and runs afoul of our cases’

requirement of individualized sentencing for defendant’s facing the most serious

penalties.” Id., quoting Graham v. Florida, 560 U.S. 48, 68, 74, 130 S.Ct. 2011, 176

L.Ed.2d 825 (2010). As a result, the court held in Miller “that mandatory life without

parole for those under the age of 18 at the time of their crimes violates the Eighth

Amendment’s prohibition on ‘cruel and unusual punishments.’ ” (Emphasis added.) Id.

       {¶ 9} Contrary to Taylor’s claim otherwise, the holding in Miller does not apply to

his case. As noted above, Miller holds that the Eighth Amendment is violated when a

juvenile offender is sentenced to “mandatory life without parole.” Id. Taylor, however,

received a sentence of 41 years to life in prison with the possibility of parole. Therefore,

unlike the defendants in Miller, Taylor will be eligible for parole when he is 58 years old.

Accordingly, Taylor’s reliance on Miller is misplaced, and the trial court correctly

concluded that Miller is distinguishable and inapplicable to the case at bar.

       {¶ 10} In support of his appeal, Taylor also cites to Moore, 149 Ohio St.3d 557,

2016-Ohio-8288, 76 N.E.3d 1127. In Moore, the Supreme Court of Ohio held that “a

term-of-years prison sentence that exceeds a defendant’s life expectancy violates the

Eighth Amendment to the United States Constitution when it is imposed on a juvenile

nonhomicide offender.” Moore at ¶ 1. In reaching this decision, the court relied on

Graham, a decision that prohibited the imposition of life sentences without parole on

juvenile nonhomicide offenders.

       {¶ 11} Like Miller, the holding in Moore is inapplicable to the present case. Moore

is inapplicable because Taylor is not a “nonhomicide offender,” as Taylor was convicted
                                                                                          -5-


of murder. In addition, Taylor’s sentence of 41 years to life prison is not a “term-of-years”

sentence, but an indefinite sentence that does not exceed his life expectancy since he is

eligible for parole at age 58. See State v. Burns, 2d Dist. Montgomery No. 27374, 2018-

Ohio-1419, ¶ 21-23 (rejecting a juvenile defendant’s claim that his life sentence for

aggravated murder unconstitutionally exceeded his life expectancy under circumstances

where the defendant would become eligible for parole at age 59). Taylor’s sentence is

also in stark contrast to the 112-year prison sentence that was overturned in Moore. See

Moore at ¶ 100.

       {¶ 12} That said, Taylor’s sentence is certainly lengthy, and “ ‘[p]rotection against

disproportionate punishment is the central substantive guarantee of the Eighth

Amendment.’ ” Id. at ¶ 31, quoting Montgomery v. Louisiana, ___ U.S. ___, 136 S.Ct.

718, 732-733, 193 L.Ed.2d 599 (2016). Taylor, however, failed to demonstrate how his

sentence was disproportionate to the multiple, serious offenses for which he was

convicted. Taylor also failed to demonstrate that the trial court did not consider his youth

and other relevant factors at sentencing. Instead, Taylor’s Eighth Amendment claim is

based solely on inapplicable case law.

       {¶ 13} Taylor’s First Assignment of Error is overruled.



                              Second Assignment of Error

       {¶ 14} Under his Second Assignment of Error, Taylor claims he was denied equal

protection of the law as guaranteed by the Fourteenth Amendment when the trial court

failed to apply Miller to his case. In support of this claim, Taylor contends that other

juvenile offenders with sentences similar to his were afforded Eighth Amendment
                                                                                       -6-

protections by virtue of the holding in Miller. Therefore, according to Taylor, he should

be afforded the same protection. We once again disagree.

       {¶ 15} “The Equal Protection Clauses of both the United States and the Ohio

Constitution guarantee that no one will be denied the same protection of the laws enjoyed

by others in like circumstances.” (Citation omitted.) State v. Klembus, 146 Ohio St.3d

84, 2016-Ohio-1092, 51 N.E.3d 641, ¶ 8. As previously noted, juvenile offenders who

receive Eighth Amendment protections by virtue of Miller are those who are sentenced to

a mandatory term of life in prison without the possibility of parole. Miller, 567 U.S. at

465, 132 S.Ct. 2455, 183 L.Ed.2d 407.        Because Taylor is eligible for parole, his

circumstances are markedly different from those of juvenile offenders who enjoy Eighth

Amendment protections under Miller. For this reason, Taylor’s equal protection claim

lacks merit.

       {¶ 16} Taylor’s Second Assignment of Error is overruled.



                                      Conclusion

       {¶ 17} Having overruled both of Taylor’s assignments of error, the judgment of the

trial court is affirmed.

                                    .............

DONOVAN, J. and TUCKER, J., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Andrew T. French
Gudonavon J. Taylor
Hon. Gregory F. Singer
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