[Cite as In re E.S., 2020-Ohio-4244.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                    SANDUSKY COUNTY


In re E.S.                                       Court of Appeals No. S-19-020

                                                 Trial Court No. 21820428



                                                 DECISION AND JUDGMENT

                                                 Decided: August 28, 2020

                                         *****

        Adam Charles Stone, for appellant.

        Beth A. Tischler, Sandusky County Prosecuting Attorney, for appellee.

                                         *****

        PIETRYKOWSKI, J.

        {¶ 1} Appellant, E.S., an adjudged delinquent child, appeals from the final order

of disposition/sentencing entered by the Sandusky County Court of Common Pleas,

Juvenile Division, on March 28, 2019. For the reasons which follow, we affirm.
       {¶ 2} On appeal, appellant asserts two assignments of error:

              Assignment of Error I:

              The trial court erred in denying the Appellant’s Motion in

       Opposition to Mandatory Life-Tail Prison Term requesting that it decline to

       impose a mandatory life-tail prison term as the adult portion of the serious

       youthful offender disposition in this case on the grounds that the

       irrebuttable presumption in R.C. 2929.02(B)(1) violates due process when

       applied to juvenile offenders.

              Assignment of Error II:

              The trial court erred in denying the Appellant’s Motion in

       Opposition to Mandatory Life-Tail Prison Term requesting that it decline to

       impose a mandatory life-tail prison term as the adult portion of the serious

       youthful offender disposition in this case on the grounds that mandatory

       sentencing of a juvenile offender under R.C. 292902(B)(1) constitutes cruel

       and unusual punishment.

       {¶ 3} The trial court denied the state’s motion to bind over appellant to be tried as

an adult for fatally shooting his cousin, Jaylen Brock. The grand jury issued a five count

Bill of Indictment with serious youthful offender specifications as to each count.

Appellant admitted to Count 3 (felonious assault with firearm, a second-degree felony,

with a serious youthful offender specification) and to Count 4 (murder, an unclassified

felony, with both a firearm and a serious youthful offender specification). The remaining




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counts were dismissed. The trial court accepted appellant’s admissions and adjudicated

him to be a delinquent youth by commission of the offenses to which he admitted.

       {¶ 4} A disposition/sentencing hearing was held on March 28, 2019. Appellant

filed a memorandum in opposition to the mandatory life-tail prison term prior to the

sentencing hearing, which was denied by the trial court at the hearing.

       {¶ 5} The court found the “length of time, level of security, and types of

programming and resources available in the juvenile system alone are not adequate to

provide the Juvenile Court with a reasonable expectation that the purposes set forth in

Section 2152.01 of the Ohio Revised Code will be appropriately met.” Therefore, the

trial court entered a juvenile disposition order committing appellant to the Ohio

Department of Youth Services until age 21, with an additional, consecutive three-year

term for the firearm specification. Furthermore, the juvenile court imposed a suspended

serious youthful offender adult sentence of life in prison with opportunity for parole after

15 years on Count 4, with an additional three years for the firearm specification, to be

served consecutive to, and prior to, the sentence for murder. The court then merged the

sentences for Counts 3 and 4 and stayed the adult portion of the sentence, pursuant to

R.C. 2152.13, unless appellant failed to comply with the terms and conditions of

appellant’s Ohio Department of Youth Services commitment or otherwise violated the

law. Appellant appeals only the adult portion of his sentence.

       {¶ 6} Appellant’s two assignments of error are interrelated and will be considered

together. In his first assignment of error, appellant argues the trial court erred in denying




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his motion in opposition to the mandatory life-tail prison term on the ground that R.C.

2929.02(B)(1) violates due process when applied to juvenile offenders. Appellant argues

in his second assignment of error that the R.C. 2929.02(B)(1) mandatory sentence

constitutes cruel and unusual punishment and violates the Eight Amendment to the

United States Constitution applicable to the states through the Fourth Amendment.

       {¶ 7} Appellant bases both of his assignments of error on the view that courts now

recognize juvenile offenders should not be treated the same as adults for sentencing

purposes. The United States Supreme Court has held that under the Eighth Amendment

“children are constitutionally different from adults for purposes of sentencing.” Miller v.

Alabama, 567 U.S. 460, 471, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012); Graham v.

Florida, 560 U.S. 48, 68, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010); Roper v. Simmons,

543 U.S. 551, 568-569, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). See also State v. Long,

138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, ¶ 29, citing In re C.P., 131 Ohio

St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729. Accordingly, the United States Supreme

Court has struck down certain mandatory sentencing statutes which prevent the trial court

from taking into consideration the special considerations due juvenile offenders. Miller

at 479 (mandatory life-without-parole sentences for juvenile homicide offenders);

Graham at 74 (life-without-parole sentences for juvenile non-homicide offenders); Roper

at 568 (capital punishment for juveniles).

       {¶ 8} In the Roper/Graham/Miller line of cases, the United States Supreme Court

found the sentences imposed violated the Eighth Amendment protection against cruel and




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unusual punishment because the trial courts could not consider the mitigating

circumstances of the juvenile offender’s age before imposing the harshest sentences or

because the juvenile did not have the opportunity to demonstrate maturity or rehabilitation

potential before being sentenced to life without parole. The Miller case explained that the

substantive guarantee of the Eighth Amendment is the “[p]rotection against

disproportionate punishment,” and that for certain punishments, the punishment will be

“disproportionate when applied to juveniles.” Montgomery v. Louisiana, __ U.S. ___, 136

S.Ct. 718, 732-733, 193 L.Ed.2d 599 (2016). The greatest risk of disproportionate

punishments arises when the harshest of punishments are imposed—capital punishment

and life imprisonment without the possibility of parole. Id. at 733-734. Furthermore, in

Miller, supra, the United States Supreme Court recognized that the justifications for

imposing the harshest sentences do not apply in the case of juvenile offenders. Id. at 473.

       {¶ 9} Appellant asserts Ohio’s mandatory sentencing scheme, as applied to a

serious youthful offender disposition sentence under R.C. 2152.13(D)(1)(a) (which

requires a court to impose a sentence as if the juvenile were an adult) and R.C.

2929.02(B)(1) (which mandates that every person convicted of murder “shall be

imprisoned for an indefinite term of fifteen years to life”) is unconstitutional. He argues

that R.C. 2929.02(B)(1)(a) violates the holding in Miller, supra, because it does not allow

the trial court to consider the individual culpability of the juvenile offender. Both of

appellant’s assignments of error center on the argument that treating juveniles like adults

for sentencing and the mandatory sentence under R.C. 2929.02(B)(1) is unconstitutional




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because the statute creates a non-rebuttable presumption that a juvenile offender is as

equally and morally culpable as an adult who commits the same offense.

       {¶ 10} Appellant first bases his constitutionality claim on a violation of due

process. However, he fails to fully develop his argument to identify whether he asserts a

lack of substantive or procedural due process. He argues only that irrebuttable

presumption of R.C. 2929.02(B)(1) violates due process because the juvenile offender

cannot present any evidence to mitigate against imposing the mandatory indefinite term

of 15 years to life. We disagree.

       {¶ 11} The Ohio Supreme Court adopted the holding in Miller, supra, and held

that the trial court must consider an offender’s youth as a mitigating factor before

imposing a sentence for aggravated murder under R.C. 2929.03(A), which requires the

trial court to sentence the offender to either life imprisonment without parole or life

imprisonment with parole eligibility after serving 20, 25, or 30 years. State v. Long, 138

Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, paragraphs one and two of the syllabus.

Furthermore, the Ohio Supreme Court found that Ohio’s sentencing scheme protects the

constitutional right of the juvenile offender to be considered as different from adult

offenders (less culpable and more amenable to reform). Id. at ¶ 29. The court found that

although R.C. 2929.11 and 2929.12 do not mention juvenile offenders, these statutes

specifically guide every sentencing decision and require consideration of the nature of the

offender and his or her rehabilitation. Id. at ¶ 17-19. Nonetheless, the Long court

reversed the juvenile offender’s sentence because the trial court never indicated in its




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sentencing entry whether it considered the offender’s age as a mitigating factor in

sentencing. Id. at ¶ 29.

       {¶ 12} Based on the analysis in Long, supra, we find that the General Assembly

has already provided for individualized sentencing and consideration of mitigating

evidence relating to the juvenile’s age through R.C. 2929.11 and 2929.12. Therefore, we

find R.C. 2929.02(B)(1) does not violate appellant’s due process rights and find his first

assignment of error not well-taken.

       {¶ 13} Similarly, appellant argues in his second assignment of error that the

mandatory sentence required by R.C. 2929.02(B)(1) constitutes cruel and unusual

punishment in violation of the Eighth Amendment to the United States Constitution,

which is applicable to the states through the Fourth Amendment. Again, appellant argues

the mandatory sentence under R.C. 2929.02(B)(1) is unconstitutional because it provides

for a non-rebuttable presumption that a juvenile offender is as equally and morally

culpable as an adult who commits the same offense.

       {¶ 14} Several courts of appeals have already rejected the argument that the

Miller, supra, and Long, supra, holdings should be extended to cases where the juvenile

is sentenced to mandatory life in prison with the possibility of parole. State v. Stephens,

11th Dist. Portage No. 2018-P-0090, 2019-Ohio-3150, ¶ 31; State v. Starling, 2d Dist.

Clark No. 2018-CA-34, 2019-Ohio-1478, ¶ 67; State v. Alexander, 8th Dist. Cuyahoga

No. 104281, 2017-Ohio-9011, ¶ 13; State v. Terrell, 8th Dist. Cuyahoga No. 103428,




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2016-Ohio-4563, ¶ 18-21; State v. Jones, 2d Dist. Montgomery No. 26333, 2015-Ohio-

3506, ¶ 11-12. We find these cases persuasive and reject appellant’s argument as well.

       {¶ 15} “The bar for cruel and unusual punishment is high.” United States v.

Juvenile Male, 670 F.3d 999, 1010 (9th Cir.2012). Furthermore, as noted above, it is

when the sentencing court imposes the harshest punishments that the risk of

disproportionate sentencing is at its highest. Montgomery v. Louisiana, __ U.S. ___, 136

S.Ct. 733-734, 193 L.Ed.2d 599; State v. Warren, 118 Ohio St.3d 200, 2008-Ohio-2011,

887 N.E.2d 1145, ¶ 25, citing Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680,

115 L.Ed.2d 836 (1991). “[T]he Eighth Amendment does not require strict

proportionality between crime and sentence but forbids only extreme sentences that are

grossly disproportionate to the crime.” Warren, supra. See also State v. Glaze, 6th Dist.

Lucas No. L-17-1269, 2019-Ohio-53, ¶ 25. Therefore, we agree with the other appellate

districts that the holdings in the Roper/Graham/Miller cases are limited to capital and

life-without-parole sentences. Therefore, we find R.C. 2929.02(B)(1) does not violate

appellant’s Eighth Amendment rights. Appellant’s second assignment of error is found

not well-taken.

       {¶ 16} Having found that the trial court did not commit error prejudicial to

appellant and that substantial justice has been done, the judgment of the Sandusky

County Court of Common Pleas, Juvenile Division, is affirmed. Appellant is ordered to

pay the costs of this appeal pursuant to App.R. 24.

                                                                       Judgment affirmed.




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                                                                      In re E.S.
                                                                      C.A. No. S-19-020




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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