‘Functional Life Sentences’ for Juvenile Nonhomicide Offenders Unconstitutional
A Supreme Court majority cited a U.S. Supreme Court’s 2010 decision that life sentences imprisonment without parole for juvenile nonhomicide offenders also prohibits “term-of-years” prison sentences that exceed the juvenile offender’s life expectancy.
The U.S. Supreme Court’s 2010 Graham v. Florida declared that a life without parole sentence for a juvenile who did not commit homicide violated the U.S. Constitution’s Eighth Amendment prohibition on cruel and unusual punishment.
Five of the seven Ohio Supreme Court justices issued written opinions in the case of Brandon Moore’s 2002 conviction for a series of crimes in Mahoning County. In the majority opinion, Justice Paul E. Pfeifer wrote that Moore, who was 15 years old at the time of the crime, must be provided some chance earlier in his incarceration to “demonstrate maturity and rehabilitation,” but did not specify when that should be.
Justice Judith Ann Lanzinger wrote a concurring opinion urging the Court to explain more about when Moore should be given a meaningful opportunity to seek parole, noting that the majority opinion only indicates that 77 years before eligibility is too long.
Justices Sharon L. Kennedy and Judith L. French wrote separate dissenting opinions, both pointing to the procedural problems with Moore’s appeal of his sentence, arguing that he waited too long to file his appeal, and that the Seventh District Court of Appeals was correct in denying his appeal.
Chief Justice Maureen O’Connor concurred with Justice Pfeifer’s opinion, and wrote a separate opinion to address the procedural issues raised by the dissenting justices and to explain why it was proper for the state’s high court to consider Moore’s appeal.
Fairness of Sentence and Procedural Issues Raised
The Ohio Supreme Court noted that its holding is consistent with those of other state high courts . These courts have held that for purposes of applying the Eighth Amendment protections set forth in Graham, there is no meaningful distinction between sentences of life imprisonment without parole and prison sentences that extend beyond a juvenile’s life expectancy.
The Ohio Supreme Court also points out that it joins other state supreme courts that have held that Eighth Amendment protections apply to juvenile offenders sentenced to multiple terms that together do not make an offender eligible for parole until after the offender’s life expectancy.
Justice Pfeifer wrote that the decision does not guarantee Moore will ever be granted parole, but only offers him a chance to present his argument for parole at an earlier age than 92.
Moore’s 2002 conviction had already been through several appeals by the time the U.S. Supreme Court decided Graham in 2010. The day of the Graham ruling, Moore filed an appeal of another aspect of his case, and his brief in support of that appeal cited Graham. But the appellate court ultimately determined that the technical issue Moore raised in that appeal was not appealable. Moore raised the Graham ruling again in his appeal before the Ohio Seventh District Court of Appeals in 2013, when he asked that court to reconsider its 2009 decision affirming his sentence. Ohio appellate rules give an offender 10 days to ask the appeals court to reconsider its decision, but there is a provision extending the deadline if there are “extraordinary circumstances.”
The Ohio Supreme Court majority agreed that the Graham ruling fit the definition of extraordinary circumstances, allowing Moore’s appeal to go forward, which led to today’s Court decision. The dissenting justices argued the Graham decision only applies to a life without parole sentences, which Moore did not receive, and that a U.S. Supreme Court case that did not directly address a state’s sentence is not considered an extraordinary circumstance.
Moore Participates in Series of Crimes
Justice Pfeifer wrote that the facts of the case “do not engender a sense of sympathy for Moore,” whom he found “embarked on a criminal rampage of escalating depravity on the evening of August 21, 2001, in Youngstown.”
Moore robbed Jason Cosa and Christine Hammond at gunpoint in Cosa’s driveway and later encountered a 21-year-old Youngstown State University student identified by the court as M.K. Moore was attempting to rob her at gunpoint when a porch light from the group home where M.K. worked came on. Moore ordered her into her car, and drove her car to meet with another car driven by Andre Bundy, who was with Chaz Bunch and Jamar Callier. They proceeded to drive M.K. to a dead-end street where they robbed her. Moore, Bunch, and Callier repeatedly raped her. Moore stuck his gun in M.K.’s mouth, and warned her that the group knew who she was, and threatened to harm her and her family if she told anyone what happened.
M.K. memorized the other car’s license plate and drove immediately to a house where she had attended a cookout earlier in the day. She was able to tell friends the license plate number, and police were eventually able to arrest all four involved in the attack.
Moore’s case was transferred from juvenile court to the Mahoning County Common Pleas Court. Moore, Bunch, and Bundy were tried together, and Moore was convicted of all 12 counts and 11 firearm specifications filed against him. The charges included three counts each of aggravated robbery, rape, and complicity to commit rape, and single counts of kidnapping, complicity to commit aggravated robbery, and aggravated menacing. The trial court judge stated that Moore could not be rehabilitated and “it would be a waste of time and money and common sense to even give it a try.”
The judge told Moore, “I want to make sure you never get out of the penitentiary, and I’m going to make sure that you never get out of the penitentiary.”
The trial court sentenced Moore to the maximum prison terms for the 12 counts and added the sentences for the 11 firearm specifications, with all to be served consecutively except for one count to run concurrently. The sentence totaled 141 years in prison.
Lengthy Appeals Process Ensues
Moore pursued appeals of his convictions and sentence; the appellate court vacated his conviction for conspiracy to commit aggravated robbery and the accompanying firearm specification, and reduced the number of other gun specifications from 10 to four. At resentencing, the trial court reduced his sentence to 112 years, with the trial judge again stating that his intention was that Moore “never be released from the penitentiary.”
Moore’s appeal of his new sentence resulted in the Seventh District affirming the trial court in March 2009. However, he filed a procedural appeal with the Seventh District, which ordered the trial court to revise the sentencing entry in the court record. Moore’s appeal of the sentencing entry took place when Graham was decided in 2010. It was in the sentencing entry appeal that Moore first raised Graham and asked that he receive a new appeal based on the decision, but the appeals court dismissed the case in 2011.
In 2013, Moore obtained a new lawyer and sought “delayed reconsideration” of the Seventh District’s affirmation of his 112-year sentence. While the rules for appellate courts require an application for reconsideration to be filed within 10 days of the decision being mailed to the parties, the deadline can be extended “on a showing of extraordinary circumstances.” Moore argued that this was an extraordinary circumstance. He cited Graham, which prohibited life sentences without parole for juvenile nonhomicide offenders and the U.S. Supreme Court’s Miller v. Alabama, which was decided in 2012 and held that juvenile offenders who commit murder cannot be subject to mandatory sentences of life in prison without parole.
A divided Seventh District rejected Moore’s appeal, partially based on its decision in an appeal made by Bunch, another of M.K.’s attackers. The appeals court finalized Bunch’s sentence in 2007 and ruled that his 2013 motion to reconsider was too late. The court ruled Bunch waited three years after Graham to first raise the issue, and also that a higher court’s decision is only binding on a lower court if the case is “directly on point.”
The Seventh District concluded Graham and Miller were based specifically on life without parole sentences, and not a “de facto” life sentence where an offender receives multiple fixed sentences that run consecutively. The appellate court also noted the Ohio Supreme Court had not ruled on whether Graham and Miller apply to “de facto” life sentences.
Moore turned to the Ohio Supreme Court, which agreed to hear his appeal.
Moore’s Sentence Examined
Justice Pfeifer explained that Moore first becomes eligible to file a motion for judicial release after serving 77 years of his sentence because R.C. 2929.20(C)(5) allows such a request five years after completion of the mandatory portions of an offender’s sentence.
As a result of the appeals, Moore received six 10-year mandatory sentences for the rape convictions and four three-year sentences for the gun specifications, all to be served consecutively for a total of 72 years. After serving five more years, Moore would have the opportunity to file a motion for judicial release, 77 years into the sentence, which would be when Moore is 92.
Justice Pfeifer wrote that Moore’s life expectancy is well short of 92, and that federal statistics predict a black male who was 15 in 2002 has a life expectancy of an additional 55 years, meaning Moore is statistically predicted to live until he is about 70.
Cruel and Unusual Punishment Review
A key component of the Eighth Amendment’s protection against cruel and unusual punishment is “proportionality,” that is, whether the sentence fits the crime. There are two classifications of proportionality review—one involving the length of term-of-years sentences given in a particular case and the other involving categorical restrictions. One type of categorical restriction considers characteristics of the offender.
Justice Pfeifer noted that in recent years the U.S. Supreme Court has established categorical punishment bans for juvenile offenders that include the Graham and Miller holdings. He noted that in Roper v. Simmons the high court in 2005 prohibited death penalties for offenders who committed their crimes before they were 18.
In Moore’s case, the Ohio Supreme Court examined whether Graham applies only to a sentence of life-without-parole for a juvenile, nonhomicide offender or whether Graham also applies to “a functional life sentence” imposed on such an offender. The Court concluded that it applies to both.
Justice Pfeifer wrote the protections in Graham are based on the offender’s status as a juvenile, and he found there is no “consequential distinction between the life sentence imposed in Graham and the sentence imposed in this case, which extends beyond Moore’s life expectancy.” He pointed to the trial court judge’s intent to sentence Moore to life in prison, repeatedly stating his aim was to ensure that Moore never got out of the penitentiary.
“It makes little sense that a juvenile offender sentenced to prison for life without parole would get a chance, pursuant to Graham, to prove his or her rehabilitation and be released but a juvenile offender sentenced to a functional life term would not,” he concluded.
“The most important attribute of the juvenile offender is the potential for change. Graham relates the difficulty in determining whether the commission of a crime is the result of immaturity or of irredeemable corruption. And so Graham protects juveniles categorically from a final determination while they are still youths that they are irreparably corrupt and undeserving of a chance to re-enter society,” he wrote.
Court Addresses Procedural Issue
In applying Graham to Moore’s case, the Court reversed the Seventh District’s determination that Moore waited too long to raise the issue. The Seventh District asserted in Bunch’s case and another that the three-year lag time to first raise the issue was too late. However, Justice Pfeifer noted that unlike the others, Moore raised the issue in an appeal filed on the same day Graham was decided, albeit in a different procedural appeal.
The Seventh District had also ruled that Graham was not on point with Moore’s circumstances. Justice Pfeifer wrote that the Court “established that Moore’s case is controlled by Graham and that there is no meaningful distinction between the two cases. A defendant convicted of crimes he committed as a juvenile cannot at the outset be sentenced to a lifetime in prison—whether labeled ‘life in prison without parole’ or consisting of a term of years extending beyond the defendant’s life expectancy—without having a meaningful opportunity to establish maturity and rehabilitation justifying release.”
The Court concluded that the court of appeals had abused its discretion in not granting Moore’s application for reconsideration. Justice Pfeifer wrote, “Extraordinary circumstances warranted the delayed request for reconsideration—the on-point, substantive, retroactive United States Supreme Court decision in Graham.”
Imposing the Graham decision
Justice Pfeifer wrote Graham does not guarantee an eventual release, but simply directs that states must give an offender a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” The U.S. Supreme Court left it to the states to determine how to achieve that requirement.
Without directing the lower court on the exact amount of time Moore must serve before receiving a parole hearing, the Court reversed the judgment of the court of appeals, vacated Moore’s sentence, and remanded the case to the trial court for resentencing in conformity with Graham.
Chief Justice Maureen O’Connor and Justices Lanzinger and William M. O’Neill joined Justice Pfeifer’s opinion.
Concurrence Would Provide Additional Direction
Justice Lanzinger wrote in her concurrence that the Court has not indicated what would be a constitutional sentence for Moore, and that Ohio felony-sentencing law now seems to encourage long prison terms for multiple offenses because there is no limit on the number of consecutive sentences a trial court can impose. She indicated the Court has moved to discourage these “max and stack” sentences.
“Because the General Assembly has yet to address ‘max and stack’ sentencing, it is unlikely to quickly enact a new statute to govern the judicial release of offenders who committed their offenses while juveniles,” she wrote.
Justice Lanzinger suggested that the current judicial-release statutes may help guide the trial court. She presented two possible scenarios -- one would grant Moore his first hearing when he turns 36, and the other at age 46.
“Of course, the General Assembly could choose an entirely new method to ensure that Graham’s requirements are followed by enacting specific time limits for one who was a juvenile at the time of the offense to have a meaningful opportunity to obtain release. My suggestions are offered only as a temporary approach to implementing this court’s instructions upon remand,” she wrote.
Chief’s Concurrence Addresses Dissents
Chief Justice O’Connor in her concurrence challenged the rationale of the dissenting justices and explained that “extraordinary circumstances” applied to Moore’s appeal. Appellate courts should reconsider rulings where there is a new rule of law that applies directly to the pending appeal, and when a question of significant importance is raised. She wrote the Graham decision was sufficiently important to warrant reconsideration in Moore’s case.
She noted the sentencing judge “opined that Moore could not be rehabilitated and baldly informed Moore of the court’s intention to ensure that Moore would never be released from prison.”
“Notwithstanding Moore’s significant crimes, such a penalty is exactly what a majority of the United States Supreme Court agreed was unconstitutional in Graham. But despite the significance of the Graham claim raised by Moore, the court of appeals summarily dispensed with it,” she wrote.
The chief justice added that the dissenting justices improperly relied on federal decisions in habeas corpus cases that are not analytically relevant, and noted: “We who sit at the pinnacle of a state judiciary should be reluctant to adopt the limited standards of federal habeas jurisdiction as a proper proxy for the rigorous constitutional analysis that claims like Moore’s deserve.”
She also questioned the dissenting justices’ reliance on other states’ courts’ decisions that have been overruled or are less persuasive than the logic used by the state courts applying the Graham limits to functional life sentences for nonhomicide juvenile offenders.
Dissent Finds Graham Does Not Apply
Justice Kennedy dissents on both procedural and substantive grounds. First, she concluded that Moore’s appeal was procedurally barred. Moore’s conviction was final on March 24, 2009, but Moore did not file his delayed motion to reconsider that judgment until almost four years later, and nearly three years after Graham was decided. Justice Kennedy concluded that pursuant to the Ohio Supreme Court’s 1992 State ex rel. LTV Steel Co. v. Gwin decision once Moore failed to timely appeal his March 24, 2009 conviction to this court, the court of appeals lost jurisdiction to reconsider that judgment. Consequently, the court of appeals properly denied Moore’s delayed motion for reconsideration of his March 24, 2009 conviction for the purpose of applying Graham.
Justice Kennedy also concluded that Graham did not apply to Moore’s sentence on substantive grounds. She wrote that Graham is substantively different because it applies only to juveniles sentenced to life without parole noting that Justice Samuel Alito in his dissent in Graham wrote that nothing in the court opinion affects the imposition of terms-of-years sentences without the possibility of parole. Justice Kennedy noted that Arizona, Louisiana, Tennessee, and Virginia all limit Graham to life without prole sentence for juveniles.
Justice Kennedy also noted that the United States Supreme Court had the opportunity to extend the holding in Graham to one of Moore’s co-defendants -- Chaz Bunch, but failed to so when it rejected his appeal. Similar to Moore, Bunch was not sentenced to life without parole. Rather, he was sentenced to prison terms to be imposed consecutively, resulting in a lengthy term-of-years prison term. After Bunch’s conviction was affirmed on appeal, he sought a writ of habeas corpus in federal court. Bunch argued to the federal Sixth Circuit Court of Appeals that Graham applied to his case, but the court found Graham only applied to life without parole sentences.
Justice Kennedy further concluded that there are practical problems in applying the sentence because courts will have to determine what the life expectancy of the offender is in order to determine if a sentence exceeds it. “Undoubtedly, determining whether a lengthy term-of-years aggregate sentence is a de facto life sentence will be a difficult, case-by-case determination,” she wrote.
Finally, Justice Kennedy determined that it is the role of the General Assembly to enact sentencing statutes defining terms of incarceration, not the court. In particular, she asserted the General Assembly as the legislative branch of government is the appropriate body to consider the “science” that is necessary as to whether juveniles are different from adults, and therefore should be subject to different punishments.
Justice Terrence O’Donnell joined Justice Kennedy’s opinion.
In a separate dissent, Justice French wrote the Seventh District did not abuse its discretion when it refused to reconsider Moore’s appeal. She noted that to overturn an appeals court’s denial of an application for delayed reconsideration, the Supreme Court must find the appeals court decision was “unreasonable, arbitrary, or unconscionable.” The Seventh District found Graham and Miller did not apply to de facto life sentences, and at the time neither the U.S. Supreme Court nor the Ohio Supreme Court had ruled that those decisions apply to the sentence Moore received.
She noted at the time the Seventh District ruled, the appellate court cited five other states that did not apply Graham and two states that did apply the decision to term-of-years sentences.
“Even accepting the majority’s conclusion that Moore’s sentence violates the Eighth Amendment to the United States Constitution, Graham and Miller do not establish an obvious error in the Seventh District’s decision upholding Moore’s resentencing on due-process grounds,” she concluded.
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