When Brandon Moore was 15, he and two other young men went on what now-retired Justice Paul Pfeifer described as “a criminal rampage of escalating depravity.” Moore’s case was transferred to adult court. The rape victim in the case testified that “[T]hey killed a part of me. They killed a part of my [soul] that I can never get back.”

Moore was originally sentenced by Mahoning County Court of Common Pleas Judge R. Scott Krichbaum to 141 years in prison. At that first sentencing hearing, Judge Krichbaum stated that Moore “[could not] be rehabilitated, that it would be a waste of time and money and common sense to even give it a try,” adding that he wanted to make sure Moore never got out of the penitentiary. The Seventh District Court of Appeals reversed that 141 year sentence.

At a third mandated re-sentencing (the second was reversed because of improper judicial fact-finding) Judge Krichbaum imposed an aggregate sentence of 112 years. With that sentence, Moore would have been eligible for judicial release at age 92. The judge commented that “[I]t is the intention of this court that you should never be released from the penitentiary.” That sentenced was upheld by the Seventh District, and Moore appealed to the Supreme Court of Ohio.

Moore’s 112 year sentence was struck down by the Supreme Court of Ohio on December 22, 2016, mostly on the authority of the U.S. Supreme Court decision in Graham v. Florida 560 U.S. 48 (2010), which banned a sentence of life without parole for juvenile non-homicide offenders. In State v. Moore, 2016-Ohio-8288, a 4-3 decision written by Justice Pfeifer, the court held that an aggregate term-of-years prison sentence imposed on a juvenile non-homicide offender that exceeds the offender’s life expectancy amounted to a de facto life sentence, and thus runs afoul of Graham, and that Moore had to be given some meaningful opportunity for release. Moore’s sentence was vacated, and the case was sent back to the Mahoning County Court of Common Pleas for re-sentencing.

Now-retired Justice Judy Lanzinger wrote a separate concurrence in Moore, trying to give some guidance to the trial court upon re-sentencing. She wrote this:

“But I write separately due to concern that in simply remanding for “resentencing in conformity with Graham,”… we leave unaddressed the problem of when the “meaningful opportunity” would take place. While we hold that 77 years is too long to wait, how exactly does the trial court follow our instruction and resentence Moore? What is a constitutional sentence, and how is it arrived at? We have chosen not to say.” She went on to add that there was no statute on point, but suggested the judicial release statutes might be instructive.

Noting that 12 years on the 4 firearm specifications was mandatory time, Lanzinger, voicing disapproval of the current tendency to “max and stack” in sentencing, suggested that the trial judge might reduce the maximum penalties on some or all of the 10 underlying felony counts of which Moore was convicted, or run some or all of them concurrently rather than consecutively. Lanzinger wrote that these suggestions were “offered only as a temporary approach to implementing this court’s instructions upon remand.” The prosecution tried, but failed, to get the case into the U.S. Supreme Court.

Before his remanded re-sentencing, Moore filed a detailed pro se affidavit of disqualification against Judge Krichbaum. On January 2, 2018, Judge Krichbaum voluntarily recused himself from the case. The case was re-assigned to Mahoning County Common Pleas Court Judge Maureen Sweeney, who re-sentenced Moore on April 17, 2018. Judge Sweeney followed some of Justice Lanzinger’s suggestions, in that she ordered some of Moore’s sentences to run concurrently, but she still ordered the maximum sentences on the rape charges, and slightly less than the maximum on the kidnapping charge, all to run consecutively, which, when added to the mandatory time for the firearms specifications amounted to a total sentence of 50 years.  That will make Moore, who is now 31, eligible for judicial release at age 62. Is that a “meaningful opportunity” for release?  I have no idea.  Stay tuned.