[Cite as State v. Roark, 2015-Ohio-3811.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MERCER COUNTY




STATE OF OHIO,                                            CASE NO. 10-14-11

       PLAINTIFF-APPELLEE,

      v.

TREVIN M. SANDERS ROARK,                                  OPINION

       DEFENDANT-APPELLANT.



                 Appeal from Mercer County Common Pleas Court
                           Trial Court No. 13-CRM-092

                                      Judgment Affirmed

                          Date of Decision: September 21, 2015



APPEARANCES:

        Stephen A. Goldmeier for Appellant

        Matthew K. Fox for Appellee
Case No. 10-14-11



WILLAMOWSKI, J.

      {¶1} Defendant-appellant Trevin M. Sanders Roark (“Appellant”) brings

this appeal from the judgment of the Court of Common Pleas of Mercer County.

Appellant claims that the trial court erred in sentencing him to consecutive life

sentences without the opportunity for parole and by requiring that his case be

transferred to adult court.   For the reasons set forth below, the judgment is

affirmed.

      {¶2} In November 2011, Appellant, Bryant Rhoades (“Rhoades”) and

additional unknown accomplices forcefully entered the home of Robert Grube

(“Robert”) and his daughter Colleen Grube (“Colleen”). Robert was 70 years old

at the time and was confined to a wheelchair. Colleen was 47 years old at the time

and provided care for Robert. Appellant and the other assailants targeted the home

to obtain money to support their methamphetamine addiction and even stopped on

their way to the house to get “high”. Once they forced their way into the home,

the assailants duct-taped Robert into his wheelchair and duct-taped Colleen and

put her on the couch. The assailants held the pair at gunpoint to prevent them

from escaping. The assailants then ransacked the home searching for items to

steal. Appellant then fired several shots into Colleen, killing her. After killing

Colleen, Appellant gave the gun to Rhoades knowing that Rhoades intended to kill




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Robert with it and Rhoades then did so. The purpose for the killings was to

prevent Robert and Colleen from identifying them.

         {¶3} On March 26, 2013, a 27-count complaint was filed in the Juvenile

Division of the Mercer County Court of Common Pleas. J.Doc. 1.1 The next day

the State filed a motion to transfer the proceedings to the Criminal Division, based

on the charges contained in the complaint. J.Doc. 7. A probable cause hearing

was held in the Juvenile Court on June 7, 2013. J.Doc. 29. The Juvenile Court

found that Appellant’s date of birth was in April, 1994, which made him 17 years

old at the time of the offense. Id. The court also found that there was probable

cause to believe that Appellant had committed the offenses stated in the complaint

and that due to the nature of the offenses charged, the court was required to bind

Appellant over to the Criminal Division of the court for prosecution as an adult.

Id.

         {¶4} On June 10, 2013, the Mercer County Grand Jury indicted Appellant

on twenty-seven counts: 1) two counts of Aggravated Murder in violation of R.C.

2903.01(A) with firearm specifications; 2) two counts of Aggravated Murder in

violation of R.C. 2903.01(B) with firearm specifications; 3) two counts of Murder

in violation of R.C. 2903.02(A) with firearm specifications; 4) two counts of

Murder in violation of R.C. 2903.02(B) with firearm specifications; 5) two counts


1
  The juvenile court’s docket was incorporated into the docket as items 1 and 2. For the purpose of clarity,
the items from that docket will be identified as J.Doc. and the number. Items from the Criminal Division
shall be identified as Doc. and the number.

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of Involuntary Manslaughter in violation of R.C. 2903.04(A) with firearm

specifications; 6) two counts of Kidnapping in violation of R.C. 2905.01(A)(2)

with firearm specifications; 7) two counts of Kidnapping in violation of R.C.

2905.01(A)(3) with firearm specifications; 8) two counts of Aggravated Robbery

in violation of R.C. 2911.01(A)(1) with firearm specifications; 9) two counts of

Aggravated Robbery in violation of R.C. 2911.01(A)(3) with firearm

specifications; 10) two counts of Aggravated Burglary in violation of R.C.

2911.11(A)(1) with firearm specifications; 11) two counts of Aggravated Burglary

in violation of R.C. 2911.11(A)(2) with firearm specifications; 12) two counts of

Burglary in violation of R.C. 2911.12(A)(1) with firearm specifications; 13) two

counts of Theft in violation of R.C. 2913.02(A)(1) with firearm specifications; and

one count of Theft in violation of R.C. 2913.02(A)(1);(B)(4) with a firearm

specification. Doc. 3. Appellant was arraigned on July 2, 2013, and entered pleas

of not guilty to all counts of the indictment. Doc. 19.

       {¶5} On February 27, 2014, a hearing was held for Appellant to change his

plea from not guilty to guilty on some of the charges pursuant to a negotiated plea

agreement. Doc. 61. Appellant agreed to enter guilty pleas to Counts One and

Two of Aggravated Murder with firearm specifications, Counts Fifteen and

Sixteen of Aggravated Robbery without specifications, and Counts Nineteen and

Twenty of Aggravated Burglary without specifications. Id. In return, the State

agreed to enter a nolle prosequi as to all remaining counts and the firearm

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specifications for the Aggravated Robbery and Aggravated Burglary charges. Id.

The trial court accepted the pleas of guilty and following an undisputed statement

of the facts and circumstances surrounding the charges, found Appellant to be

guilty. Doc. 64. Prior to sentencing, the State and Appellant entered into a

stipulation of facts and law regarding merger. Doc. 91. They agreed that the

firearm specifications on Counts One and Two arose out of the same transaction

and merged, with the State electing to have Appellant sentenced on the

specification for Count Two. Id. They also agreed that Counts Fifteen and

Sixteen merged as did Counts Nineteen and Twenty. Id. The State elected to

proceed to sentencing on Counts Sixteen and Count Nineteen. Id.

      {¶6} A sentencing hearing was held on August 19, 2014. Doc. 92. The

trial court indicated that Appellant would be sentenced on Count One with a

firearm specification, Count Two, Count Sixteen, and Count Nineteen. Id. The

trial court then sentenced Appellant to serve a prison term of life without

possibility of parole for Counts One and Two, with the sentence for Count Two to

be served consecutive to that of Count One. Id. The trial court then ordered

Appellant to serve a three year prison term for the gun specification, to be served

consecutive to Counts One and Two. Id. For Counts Sixteen and Nineteen, the

trial court ordered Appellant to serve prison terms of eleven years each, to be

served consecutively to each other as well as Counts One and Two. Id. Appellant



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filed his notice of appeal from this judgment on September 18, 2014. Doc. 113.

On appeal, Appellant raises the following assignments of error.

                             First Assignment of Error

       Because the record does not support [Appellant’s] two
       consecutive life-without-parole sentences, the trial court abused
       its discretion in imposing them.

                           Second Assignment of Error

       [Appellant’s] mandatory transfer to adult court pursuant to
       R.C. 2152.10(A)(1)(a) and 2152.12(A)(1)(a) violates his right to
       due process, to equal protection, and to be free from cruel and
       unusual punishment.

In the interest of clarity, we will address the second assignment of error first.

       {¶7} In the second assignment of error, Appellant challenges his mandatory

transfer to adult court. Appellant claims that the mandatory nature of the statute is

a due process violation because it removes the juvenile court’s ability to make

individualized determinations regarding transfer. Appellant also claims that the

mandatory transfer rule violates his right to equal protection under the law by

treating similarly situated juveniles of different ages differently.           Finally,

Appellant claims that the mandatory transfer violates his right to be free from

cruel and unusual punishment by creating a mandatory sentencing scheme.

       {¶8} In this case, the transfer of Appellant from the juvenile court to the

adult court was controlled by R.C. 2152.10 and R.C. 2152.12.

       (A) A child who is alleged to be a delinquent child is eligible for
       mandatory transfer and shall be transferred as provided in

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      section 2152.12 of the Revised Code in any of the following
      circumstances:

      (1) The child is charged with a category one offense and either of
      the following apply:

      (a) The child was sixteen years of age or older at the time of the
      act charged.

      ***

      (2) The child is charged with a category two offense, other than a
      violation of section 2905.01 of the Revised Code, the child was
      sixteen years of age or older at the time of the commission of the
      act charged, and either or both of the following apply:

      ***

      (b) The child is alleged to have had a firearm on or about the
      child’s person or under the child’s control while committing the
      act charged and to have displayed the firearm, brandished the
      firearm, indicated possession of the firearm, or used the firearm
      to facilitate the commission of the act charged.

      (3) Division (A)(2) of section 2152.12 of the Revised Code
      applies.

R.C. 2152.10. A “category one offense” includes violations of R.C. 2903.01 and

2903.02. R.C. 5152.02(BB)(1). A “category two offense” includes violations of

R.C. 2903.04, 2905.01, 2911.01, and 2911.11. R.C. 2152.02(CC).


      (A)(1)(a) After a complaint has been filed alleging that a child is
      a delinquent child for committing an act that would be
      aggravated murder, murder, attempted aggravated murder, or
      attempted murder if committed by an adult, the juvenile court at
      a hearing shall transfer the case if either of the following applies:



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       (i) The child was sixteen or seventeen years of age at the time of
       the act charged and there is probable cause to believe that the
       child committed the act charged.

       ***

       (b) After a complaint has been filed alleging that a child is a
       delinquent child by reason of committing a category two offense,
       the juvenile court at a hearing shall transfer the case if the child
       was sixteen or seventeen years of age at the time of the act
       charged and either of the following applies:

       ***

       (ii) Division (A)(2)(b) of section 2152.10 of the Revised Code
       requires the mandatory transfer of the case, and there is
       probable cause to believe that the child committed the act
       charged.

R.C. 2152.12.

       {¶9} Appellant was charged with violations of R.C. 2903.01 and 2903.02,

which are category one offenses. He was seventeen years of age at the time of the

offense. Therefore, pursuant to R.C. 2152.10(A) and R.C. 2152.12(A), the trial

court was required to transfer Appellant to the general division of the court.

Likewise, Appellant was charged with several category two offenses which also

would have mandated a transfer to the general division of the court.

       {¶10} Appellant claims that the mandatory nature of R.C. 2152.10 and

2152.12 violate his constitutional rights to due process, equal protection, and to be

free from cruel and unusual punishments. The Supreme Court of Ohio addressed a

similar case in State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19


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N.E.3d 900. In Quarterman, the defendant was transferred to the adult courts after

the juvenile court determined that there was probable cause to believe that he had

committed acts which would be aggravated robbery with a firearm if he were an

adult. Id. at ¶6. Quarterman eventually pled guilty to one count of aggravated

robbery and the trial court accepted this plea and imposed the jointly

recommended sentence. In his appeal, Quarterman claimed for the first time that

the mandatory bindover procedures set forth in R.C. 2152.10 and 2152.12 violated

his rights to due process and equal protection and the prohibition against cruel and

unusual punishment. Id. at ¶9. The Ninth District held that by pleading guilty,

Quarterman had waived his right to challenge the mandatory bindover.             Id.

Quarterman appealed to the Supreme Court, which accepted the discretionary

appeal. On appeal, Quarterman raised similar arguments to those raised here. Id.

at ¶ 11-12.

       {¶11} The Court in Quarterman did not reach the merits of Quarterman’s

appeal. Instead the Court focused on whether Quarterman had raised the issue

prior to appeal.

       It is a well-established rule that “‘an appellate court will not
       consider any error which counsel for a party complaining of the
       trial court’s judgment could have called but did not call to the
       trial court’s attention at a time when such error could have been
       avoided or corrected by the trial court.’” * * * As we explained
       in [State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986)], “the
       question of the constitutionality of a statute must generally be
       raised at the first opportunity and, in a criminal prosecution,
       this means in the trial court.” * * * Quarterman forfeited his

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       constitutional challenges to R.C. 2152.10(A)(2)(b) and
       2152.12(A)(1)(b) by failing to object to the mandatory bindover
       procedures in either the juvenile court or the general division of
       the common pleas court.

Id. at ¶15 (citations omitted). The Court concluded that since Quarterman had

failed to preserve the issue of the constitutionality of R.C. 2152.10 and 2152.12,

the matter is not proper on appeal and would not be addressed. Id. at 22.

       {¶12} In this case, the situation is almost identical. The State filed a motion

in the juvenile court to transfer the case to adult court and a hearing was held on

the motion. At no time before the hearing or during the hearing did Appellant

raise the issue of the constitutionality of the mandatory transfer statutes with the

juvenile court. The case was transferred to the general division where Appellant

was tried as an adult. At no time before the trial court did Appellant raise the issue

of the constitutionality of R.C. 2152.10 or 2152.12. The first time this issue was

raised was on appeal. Pursuant to the holding in Quarterman, these issues cannot

be raised for the first time on appeal. By not raising them in either the juvenile

court or the trial court, Appellant has forfeited the right to raise this issue. Thus,

this court need not address them. The second assignment of error is overruled.

       {¶13} Appellant claims in the first assignment of error that the trial court

erred in sentencing him to consecutive life sentences without the opportunity for

parole. This court initially notes that R.C. 2953.08(D)(3) prohibits review of a

sentence imposed for aggravated murder. See State v. Hawkins, 4th Dist. Gallia


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No. 13CA3, 2014-Ohio-1224; State v. Jones, 2d Dist. Clark No. 2012 CA 61,

2013-Ohio-4820; and State v. Patterson, 5th Dist. Stark No. 2012CA00098, 2013-

Ohio-1647. This statutory limitation on appeal has been in existence since 1996.

Appellant was convicted of two counts of aggravated murder and the sentence

imposed was within the statutory limits. Thus, his sentence is not subject to

appellate review pursuant to R.C. 2953.08(D)(3). However, courts, including the

Supreme Court of Ohio, do sometimes address these sentences regardless of the

statute. See State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.2d 890;

State v. Long, 1st Dist. Hamilton No. C-140398, 2015-Ohio-2114 (upon remand

from the Supreme Court after first addressing the issue in the case that was

reviewed by the Supreme Court); State v. Lane, 11th Dist. Geauga No. 2013-G-

3144, 2014-Ohio-2010; and State v. Harwell, 149 Ohio App.3d 147, 2002-Ohio-

4349, 776 N.E.2d 524 (6th Dist.). In the interest of justice we will address the

merits of the appeal to the sentence as well.

       {¶14} The issue of imposing life sentences without the possibility of parole

has been addressed frequently in the last few years. The first major case to

address the issue was Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176

L.Ed.2d 825 (2010). In Graham, the defendant committed armed burglary and

another crime while he was 16 years old. Id. at 48. The defendant entered a plea

agreement which placed him on probation and withheld an adjudication of guilt.

Id. Later, the defendant violated the terms of his probation by committing another

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crime and his probation was revoked. Id. The trial court then adjudicated him as

guilty of the earlier charge and sentenced him to life in prison for the burglary. Id.

Because Florida has no parole system, the life sentence left the defendant with no

possibility of release except executive clemency. Id. The defendant then appealed

his sentence as being cruel and unusual punishment in violation of the Eighth

Amendment. Id.

       {¶15} The U.S. Supreme Court addressed the issue and stated that pursuant

to the Eighth Amendment, punishments “must respect the human attributes even

of those who have committed serious crimes.” Id. at 59. This includes insuring

that the punishment is not disproportionate to the crime. Id. The Court stated that

an attempt to express the community’s moral outrage or to right the balance for the

wrong to the victim, the sentencing goal of retribution is not as strong with a

minor as it would be with an adult. Id. at 71. Likewise, the Court determined that

the sentencing goal of deterrence does not justify a life sentence without the

possibility of parole because for the same reason that juveniles are less culpable

than adults, juveniles will be less susceptible to deterrence. Id. at 72. “Because

juveniles’ ‘lack of maturity and underdeveloped sense of responsibility * * * often

result in impetuous and ill-considered actions and decisions,’ Johnson v. Texas,

509 U.S. 350, 367, 113 S.Ct. 26658, 125 L.Ed.2d 290 (1993), they are less likely

to take a possible punishment into consideration when making decisions.”

Graham, supra at 72.        The Court then addressed the sentencing goal of

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incapacitation and determined that it was not a justifiable reason for a sentence of

life in prison for a non-homicide offense. Id.

       To justify life without parole on the assumption that the juvenile
       offender forever will be a danger to society requires the
       sentencer to make a judgment that the juvenile is incorrigible.
       The characteristics of juveniles make that judgment
       questionable. “It is difficult even for expert psychologists to
       differentiate between the juvenile offender whose crime reflects
       unfortunate yet transient immaturity, and the rare juvenile
       offender whose crime reflects irreparable corruption.” * * * As
       one court concluded in a challenge to a life without parole
       sentence for a 14-year-old, “incorrigibility is inconsistent with
       youth.”

Id. at 72-73 (citations omitted). Finally, the Court addressed the sentencing goal

of rehabilitation.

       A sentence of life imprisonment without parole, however, cannot
       be justified by the goal of rehabilitation, the penalty forswears
       altogether the rehabilitative ideal. By denying the defendant the
       right to reenter the community, the State makes an irrevocable
       judgment about that person’s value and place in society. This
       judgment is not appropriate in light of a juvenile nonhomicide
       offender’s capacity for change and limited moral culpability. A
       State’s rejection of rehabilitation, moreover goes beyond a mere
       expressive judgment. As one amicus notes, defendants serving
       life without parole sentences are often denied access to
       vocational training and other rehabilitative services that are
       available to other inmates. * * * For juvenile offenders, who are
       most in need of and receptive to rehabilitation, * * * the absence
       of rehabilitative opportunities or treatment makes the
       disproportionality of the sentence all the more evident.

Id. at 74. The Court then concluded that the Eighth Amendment prohibited the

sentence of life without parole for an offender who did not commit homicide. Id.

The Court went on to state that “[a]n offender’s age is relevant to the Eighth

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Amendment, and criminal procedure laws that fail to take defendant’s

youthfulness into account at all would be flawed.” Id. at 76.

       {¶16} In 2012, the U.S. Supreme Court again addressed the issue of life

sentences without parole for juvenile in the case of Miller v. Alabama, ___ U.S.

___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Miller was a case that involved two

defendants:   Miller from Alabama and Jackson from Arkansas.             Id.   Both

defendants were fourteen at the time they committed their offenses. Id. Miller

was convicted of capital murder and was sentenced to life in prison without the

possibility of parole. Id. Jackson was convicted of capital felony murder and

aggravated robbery and was also sentenced to life in prison without the possibility

of parole. Id. Both of the sentences in these cases were mandated by statute. Id.

at 2457. The Court held that the Eighth Amendment forbids a sentencing scheme

that mandates life in prison without the possibility of parole for juvenile homicide

offenders. Id. at 2475.

       [A] judge or jury must have the opportunity to consider
       mitigating circumstances before imposing the harshest possible
       penalty for juveniles. By requiring that all children convicted of
       homicide receive lifetime incarceration without possibility of
       parole, regardless of their age and age-related characteristics
       and the nature of their crimes, the mandatory sentencing
       schemes before us violate this principle of proportionality, and
       so the Eighth Amendment’s ban on cruel and unusual
       punishment.

Id.   However, the Court was clear that this decision did not “categorically bar a

penalty for a class of offenders” but instead only mandated “that a sentence follow

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a certain process- considering an offender’s youth and attendant characteristics –

before imposing a particular penalty.” Id. at 2471.

       {¶17} In 2014, the Supreme Court of Ohio weighed in on the issue of life

sentences without the possibility of parole for juveniles in the case of Long, supra.

In Long, Long and his codefendants were charged with several offenses arising

from two separate shootings. Id. at ¶2. Long was 17 years old at the time of the

offenses. Id. Following a jury trial, Long was found guilty of two counts of

aggravated murder along with other felonies and various firearm specifications.

Id. at ¶3. Long was sentenced to consecutive terms of life imprisonment without

parole on the aggravated murder counts and an additional 19 years in prison to be

served consecutively on the remaining counts and specifications. Id. On appeal,

Long claimed that the consecutive sentences of life imprisonment without parole

violated the Eighth Amendment and that the trial court failed to consider his youth

as a mitigating factor. Id. at ¶4. The First District Court of Appeals rejected

Long’s arguments and affirmed the judgment of the trial court. Id. at ¶5. The

Supreme Court then accepted the appeal. Id. at ¶7.

       {¶18} The Supreme Court considered whether Ohio’s sentencing scheme

for juveniles violated the holdings in Graham and Miller. Id. at ¶19. The Court

determined that it did not because the imposition of the sentence was not

mandatory and it took into consideration the age of the offender. Id.



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       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 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.

Id.

       {¶19} The Court then considered the record to see if the trial court had

adequately considered Long’s youth as a mitigating factor. The review of the

record indicated to the court that the age of Long was argued by defense counsel

to request the minimum sentence and by the State to justify the maximum

sentence. Id. at ¶22. At the sentencing hearing, the defense again raised Long’s

age as a reason for granting the minimum sentence so that Long would have the

opportunity for rehabilitation. Id. at 24. The State then argued to the trial court

that Long’s youth was not a mitigating factor and there was no reason to allow

him to have a chance at getting out of prison and reoffend. Id. at ¶25. The trial

court, however, did not mention the youth of Long in any way. Id. at ¶26-27. The

Court noted that a sentence of life without the possibility of parole was the

equivalent of the death penalty for juveniles. Id. at ¶27. “As such, it is not to be

imposed lightly, for as the juvenile matures into adulthood and may become

amenable to rehabilitation, the sentence completely forecloses that possibility.”


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Id. The Court then determined that the record did not adequately reveal that the

trial court considered the youth of Long as a mitigating factor and thus reversed

the judgment for resentencing.

       {¶20} The Eleventh District Court of Appeals has also dealt with a case

where the defendant was sentenced to consecutive sentences of life in prison

without the possibility of parole. In Lane, supra, Lane entered pleas of guilty to

three counts of aggravated murder for the shooting of three classmates at school,

two counts of attempted aggravated murder for shooting two other classmates and

one count of felonious assault for seriously injuring another student. Id. at ¶1. At

the time of the offenses, Lane was 17 years old. Id. The trial court later sentenced

Lane to three life sentences without the possibility of parole for the aggravated

murder convictions and an aggregate sentence of twenty-five years in prison on

the remaining charges. Id. at ¶36. All of the sentences were ordered to be served

consecutive to the others. Id. On appeal, Lane challenged the imposition of three

consecutive life sentences without the possibility of parole as violating his

constitutional rights. In the sentencing of Lane, the trial court did not explicitly

state that it had considered the defendant’s youth as a mitigating factor, but the

record indicated that it had. Id. at ¶99. The record indicated that the trial court

stated that Lane was seventeen and one half years of age at the time, that he was

an intelligent student who was planning to graduate early and attend college, and

that he considered himself to be mature for his age. Id. at ¶101. The court noted

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that Lane knew what he did was wrong and that Lane’s actions were not the result

of any persuasion by adults or peers in that Lane alone planned the crime and

executed it. Id. at ¶101, 103. Based upon the statements by the trial court, the

appellate court determined that the youth of Lane as a mitigating factor was

considered, but that other factors outweighed it. Id. at ¶108. In determining that

there was no error, the court held as follows.

       In summary, the trial court was not bound by a mandatory
       sentencing scheme, and considered the factors outlined in Miller
       in imposing sentence. Moreover, by complying with Miller, the
       trial court also complied with [Long]. Further, we cannot say
       appellant’s sentence of life in prison without parole is so
       disproportionate to the crimes he committed as to shock the
       community’s sense of justice. Although appellant’s sentence is
       severe, it is not disproportionately so. He shot six students in
       school, three of whom were killed and another paralyzed,
       without provocation and in cold blood. The horrific and
       senseless nature of this homicide is compounded by the fact that,
       at sentencing, appellant showed no remorse and even contempt
       for his victims and their families. In addition, appellant’s
       sentence was within the statutory range for each count of which
       he was convicted. We therefore hold that appellant’s sentence
       did not amount to cruel and unusual punishment.

Id. at 109. The court also found that the trial court made all necessary findings to

impose consecutive sentences and that the consecutive sentences were supported

by the record. Id. at ¶127-130.

       {¶21} In this case, the parties submitted sentencing memoranda to the trial

court prior to sentencing Appellant.      The trial court also had a pre-sentence

investigation report to consider. At the sentencing hearing, several members of


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the victims’ family testified as to the impact the offenses had on them and asked

the trial court to impose the maximum sentence.           The State then made the

following argument.

          Your Honor, just last week I argued that this court impose the
          maximum and consecutive sentence upon [Rhoades]. I’m not
          going to do that today, but I am on behalf of the State of Ohio
          compelled to advocate that this court impose a lengthy and
          significant consecutive prison term and leave to the discretion of
          the court the duration of those terms. And I do that for one
          reason.

          Your Honor, [Appellant] is guilty of aggravated murder and
          other crimes. He’s guilty of the offenses for which he is about to
          be sentenced, whether or not he is the primary offender or an
          accessory under Ohio law. And in November of 2011, that day
          that Robert and Colleen died and were murdered, he did
          absolutely nothing right. But he’s done two things right since
          then. He confessed his crimes, and he eventually agreed to
          cooperate with the State of Ohio in the prosecution of [Rhoades]
          and the continuing efforts of the State of Ohio and law
          enforcement to uncover the truth about that night. For those
          reasons, your Honor, I defer to the discretion of the court about
          the duration of a lengthy and significant prison term * * *.

Tr. 29-30. The State also told the trial court that Appellant was a juvenile at the

time of the offenses and that the trial court needed to consider that in mitigation.

Tr. 30.

          {¶22} Next, defense counsel presented its argument against a sentence of

life in prison without the possibility of parole.

          In [Long] decided earlier this year, the Ohio Supreme Court
          stated because juveniles have diminished culpability and
          prospects for reform, they are less deserving of the most severe
          punishments, in this case life without possibility of parole. There

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      are three significant gaps between juveniles and adults. First,
      children have a lack of maturity and an underdeveloped sense of
      responsibility, therefore leading to recklessness and risk-taking
      and impulsivity. Second, children are more vulnerable to
      negative influences and outside pressures, including from their
      family, friends, and peers. Third, a child’s character is not as
      well formed or fixed as an adult’s, therefore leading to the
      possibility of reform.

      As stated in Miller v. Alabama, the United States Supreme Court
      case, only a relatively small portion of adolescents who engage in
      illegal activity develop entrenched patterns of problem behavior.
      Developments in psychology and brain science continue to show
      fundamental differences between juvenile and adult minds
      which lessons a child’s moral culpability and enhances the
      prospect that as the years go by and neurological development
      occurs in the brain, a child – his deficiencies will be reformed.

      * * * Given [Appellant’s] environmental considerations, family
      circumstances, personality traits, bad judgments due to youth,
      mental and emotional issues, or any combination of these and
      similar factors, this court must sentence [Appellant] to the
      minimum sentence allowed under R.C. 2929.023.

      Through the presentence investigation report, [Appellant] was
      not a juvenile of average intelligence. I believe he only finished
      the 8th grade and suffered from various mental and emotional
      disorders such as bipolar, anxiety, ADHD. Further [Appellant’s]
      maturity level was not that of an average juvenile at the time of
      committing of the crimes. However, to say that [Appellant] will
      never be able to be rehabilitated is without merit.

Tr. 34-36. Defense counsel also pointed out that Appellant had shown genuine

remorse by turning himself into the police, confessing, and helping them to catch

Rhoades. Tr. 36-37. Appellant then made a statement as well.

      First off, your Honor, I’d like to say – to apologize to the family
      for what I have done to their loved ones. Your life will never be
      the same. I do think about it every day. It’s always on my mind,

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          and I’m sorry that you guys have to live with it for the rest of
          your life.

          I have took [sic] a lot of responsibility from that day to now.
          I’ve made a lot of mistakes in my life. I understand what I’ve
          done. I understand how I’ve affected the Grube’s family, my
          family, and myself. If I could change what happened, I would.
          But today, all I want is everybody to know that I’m sorry for
          what I’ve done to you guys’ loved ones. I cooperated on my
          own. Myself – I didn’t contact the detectives or anybody
          because of myself. I contacted the detectives for the family to get
          closure, to know what happened to their loved ones. I think
          about it every day. It’s in my mind day in, day out, all night.
          That’s it, your Honor.

Tr. 38.

          {¶23} The trial court took a short recess and returned to sentence the

defendant.

          Having acknowledged hearing the victims’ statements and
          proceeding with the on-record proceedings today, the court
          wishes to confirm for the record the preliminary findings with
          one minor alteration. That being that the court recited that the
          preliminary finding of the court based upon the presentence
          investigation with regard to the defendant’s remorse was that he
          had shown no remorse. And based upon his statements today,
          although the court questions whether that remorse he indicated
          in his statement about being sorry to the victims’ family, the
          court would find he still has not indicated any genuine remorse
          as the court is not convinced that he has the understanding of
          what he’s done to that extent and the impact at least on the
          families.

          And with regard to the issue raised by the defendant through
          counsel, the court has taken into consideration as required by
          law the defendant’s age at the time of these offenses, he being
          under the age of 18 years at the time of these offenses; and
          therefore, acknowledging that he is less deserving of the
          maximum punishment that an adult would be deserving of

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      simply because his character traits are not as likely to have
      already become fixed. Nevertheless, the court believes that he
      has the ability to be held accountable as an adult. He’s been
      bound over to this court as an adult. He was 17 years and 7
      months old at the time of these offenses. Further, he has a
      criminal record as a juvenile that began, as indicated by the
      comments on record, since he was ten years old and has been
      appropriately punished even as an adult while he was a juvenile
      previously in Randolph County, Indiana. And he was thereafter
      placed under terms of probation and violated that probation and
      had it revoked when he was just over 18 years of age. So the
      court is convinced he understands and should have understood
      at the time of the commission of these offenses the severity of
      these actions that he chose to commit.

Tr. 39-41.   Based upon what the trial court stated, it considered the age of

Appellant before imposing the sentence. The holding in Long does not prohibit

the imposition of a life sentence without the possibility of parole, but rather only

requires that the record reflect that the trial court considered the age of the

defendant in mitigation of the maximum sentence. The record clearly shows that

the age was considered. Thus, the trial court complied with the requirements of

Miller and Long in determining the sentence.

      {¶24} Appellant also claims that the imposition of consecutive life

sentences without the possibility of parole was an error.       The imposition of

consecutive sentences is governed by R.C. 2929.14(C)(4).

      If multiple prison terms are imposed on an offender for
      convictions of multiple offenses, the court may require the
      offender to serve the prison terms consecutively if the court finds
      that the consecutive service is necessary to protect the public
      from future crime or to punish the offender and that consecutive
      sentences are not disproportionate to the seriousness of the

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      offender’s conduct and to the danger the offender poses to the
      public, and if the court also finds any of the following:

      (a) The offender committed one or more of the multiple offenses
      while the offender was awaiting trial or sentencing, was under a
      sanction imposed pursuant to section 2929.16, 2929.17, or
      2929.18 of the Revised Code, or was under post-release control
      for a prior offense.

      (b) At least two of the multiple offenses were committed as part
      of one or more courses of conduct, and the harm caused by two
      or more of the multiple offenses so committed was so great or
      unusual that no single prison term for any of the offenses
      committed as part of any of the courses of conduct adequately
      reflects the seriousness of the offender’s conduct.

      (c) The offender’s history of criminal conduct demonstrates that
      consecutive sentences are necessary to protect the public from
      future crime by the offender.

R.C. 2929.14(C)(4). The trial court in this case found that consecutive sentences

were necessary to protect the public from future crimes and to punish Appellant,

that the consecutive sentences were not disproportionate to the seriousness of the

offenses and the danger he posed to the public. Tr. 41. The trial court also found

that the offenses were multiple offenses committed as part of a course of conduct

and that the harm caused by the offenses were so great that no single prison term

would adequately reflect the seriousness of his conduct. Tr. 41. Finally, the trial

court found that based upon Appellant’ criminal history consecutive sentences

were necessary to protect the public from future crimes. Tr. 41. A review of the

record shows that Appellant and his associates broke into Robert and Colleen’s

home, restrained them with duct tape, stole from them, then Appellant shot

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Colleen multiple times before giving the gun to Rhoades so that Rhoades could

shoot Robert. The only reason given for the shooting was to prevent Robert and

Colleen from identifying them as the perpetrators of the home invasion. The

offenses were very serious and they caused the ultimate harm to the victims, the

loss of their life after first being terrorized by the home invaders. Robert was an

elderly gentleman who was bound to his wheelchair to prevent him from fleeing.

Colleen was his daughter, who was also restrained and was Robert’s primary

caregiver. Given the harm caused to the victim and the senseless nature of it, the

record supports the trial court’s findings and conclusion that consecutive sentences

were appropriate. Therefore the first assignment of error is overruled.

       {¶25} Having found no errors in the particulars assigned and argued, the

judgment of the Court of Common Pleas of Mercer County is affirmed.

                                                               Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/hlo




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