“Additionally, we conclude that the difference between a sentence of life in prison with parole eligibility after a term of years and a sentence of life without the possibility of parole is not material for purposes of an Eighth Amendment challenge by an offender who was a juvenile when he or she committed the offense.”

Chief Justice O’Connor, majority decision

“Today, relying on the Eighth Amendment, the majority imposes procedural requirements protecting against the imposition of punishments that have never been found to violate the Eighth Amendment for any class of people—sentences of life with the possibility of parole.”

Justice Kennedy, dissenting opinion

On December 22, 2020, the Supreme Court of Ohio handed down a merit decision in State v. Patrick 2020-Ohio-6803. Chief Justice O’Connor wrote the majority opinion, which addresses two separate issues. The first issue, on which the Court asked for supplemental briefing after the oral argument, is whether R.C. 2953.08(D) precludes appellate review of a sentence for aggravated murder imposed by the trial court. On this issue, the Court was unanimous that it does not, although on this point, Justice Donnelly had a different rationale from the majority opinion but agrees with the conclusion.  The second issue is whether, before imposing a life sentence with the possibility of parole, a trial court must state on the record its consideration of the youth of a juvenile offender (Patrick was bound over from juvenile court to be tried as an adult).  On this issue the Court split 4-3, with Justices French, Donnelly, and Stewart joining the Chief’s majority opinion, and Justices Kennedy, DeWine, and Fischer dissenting.  Justice Kennedy wrote separately on this issue, joined by Justice DeWine, but not by Justice Fischer, who simply dissented from this portion of the opinion without joining Justice Kennedy’s partial dissent.  The case was argued April 28, 2020, but because of the requested supplemental briefing, was deemed submitted July 8, 2020.

Case Background

Kyle Patrick was charged in the Mahoning County Juvenile Court with various offenses arising from the shooting of Michael Abinghanem which occurred when Patrick was 17 years old. Patrick’s case was bound over to the Mahoning County Court of Common Pleas, where he was to be tried as an adult. He was charged with aggravated murder, aggravated robbery, tampering with evidence, and two firearm specifications.

On February 10, 2014, Patrick entered a guilty plea but then attempted to withdraw it shortly thereafter. The trial court denied the motion and on June 19, 2014, sentenced Patrick to an aggregate sentence of life with parole eligibility after 16 years. Patrick appealed and the Seventh District reversed and remanded the trial court’s judgment. Patrick proceeded with a jury trial and was found guilty on all counts.  This time the trial court sentenced Patrick to a life sentence with parole eligibility after 30 years, plus three years on the gun specification, for a total of life in prison with parole eligibility after 33 years.

On appeal the second time to the Seventh District, Patrick argued that the trial court had failed to consider his youth when imposing a life sentence in violation of the 8^th and 14^th Amendments and Article I Section 9 of the Ohio Constitution.

The Seventh District rejected Patrick’s argument and affirmed the judgment of the trial court. The appeals court found Patrick’s sentence distinguishable from the U.S. Supreme Court caselaw which considered Eighth Amendment challenges by juvenile offenders because Patrick would be eligible for parole after 33 years. The appeals court also held that the trial court was not required to consider the age of a defendant when issuing a felony sentence.

Read the oral argument preview of the case here.

Key Precedent

U.S. Const. Amend. VIII (Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.)

Ohio Const. Art. I, § 9 (Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted.)

R.C. 2929.03(A)(1) (Aggravated murder is an unclassified felony that carries a possible prison sentence of life imprisonment without parole or life imprisonment with parole eligibility after 20 years, 25 years, or 30 years.)

R.C. 2929.12(C) (The sentencing court shall consider all of the following factors that apply regarding the offenders, the offense, or the victim, and any other relevant factors, as indicating that the offender’s conduct is less serious than conduct normally constituting the offense.)

R.C. 2929.12(E) (The sentencing court shall consider all of the following factors that apply regarding the offender, and any other relevant factors, as factors indicating that the offender is not likely to commit future crimes.)

R.C. 2953.02 (There is a right to appeal a judgment or final order to the court of appeals in a capital case in which a sentence of death is imposed for an offense committed before January 1, 1995, and in any other criminal case. A judgment or final order of the court of appeals involving a question arising under the U.S. Constitution or the Ohio Constitution may be appealed to the supreme court as a matter of right.)

R.C. 2953.08(A) (In addition to any other right to appeal and except as provided in division (D) of this section, a defendant who is convicted of or pleads guilty to a felony may appeal as a matter of right the sentence imposed upon the defendant.)

R.C. 2953.08(A)(4) (A defendant may appeal a felony sentence on the basis that the sentence is contrary to law.)

R.C. 2953.08(B) (In addition to any other right to appeal and except as provided in division (D) of this section, a prosecuting attorney, a city director of law, village solicitor, or similar chief legal officer of a municipal corporation, or the attorney general, may appeal as a matter of right a sentence imposed upon a defendant who is convicted of or pleads guilty to a felony.)

R.C. 2953.08(D)(3) (A sentence imposed for aggravated murder or murder pursuant to sections 2929.02 to 2929.06 of the Revised Code is not subject to review under this section.)

R.C. 2953.08(E) (A sentence appeal under this section shall be consolidated with any other appeal in the case. If no other appeal is filed, the court of appeals may review only the portions of the trial record that pertain to sentencing.)

Columbus v. Taylor, 39 Ohio St.3d 162 (1988) (The final judgment in a criminal case is the sentence and the sentence is the judgment.)

State v. Danison, 2005-Ohio-781 (“Generally, in a criminal case, the final judgment is the sentence.”)

State Farm Mut. Auto. Ins. Co. v. Grace, 2009-Ohio-5934 (The Court must consider “the statutory language in context, construing words and phrases in accordance with rules of grammar and common usage.”)

Graham v. Florida, 460 U.S. 48 (2010) (The Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit a homicide.)

J.D.B. v. North Carolina, 564 U.S. 261 (2011) (A child’s age is a relevant factor when determining whether an interrogation is custodial for purposes of Miranda v. Arizona.) 

 Miller v. Alabama, 567 U.S. 460 (2012) (A mandatory sentencing scheme that requires all minors convicted of homicide to receive a life sentence without possibility of parole, regardless of their age or the nature of their crimes, violates the Eighth Amendment’s ban on cruel and unusual punishment because a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.)

State v. Long, 2014-Ohio-849 (In exercising its discretion under R.C. 2929.03(A), a court must separately consider the youth of a juvenile offender as a mitigating factor before imposing a life sentence without parole and the record must reflect that the court specifically considered the juvenile offender’s youth as a mitigating factor at sentencing.)

State v. Moore, 2016-Ohio-8288 (A term of years so long as to be a de facto life without parole sentence violates the Eighth Amendment because it denies a juvenile a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.)

Patrick’s Proposition of Law Accepted for Review

Imposition of any life imprisonment sentence upon a juvenile offender without taking into consideration factors commanded by the Eighth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Constitution of Ohio violates these provisions.

Does the Court Adopt Patrick’s Proposed Proposition of Law?

The Court agrees that failure to consider the age of a juvenile given a sentence of life imprisonment, even one which allows for the possibility of parole, is an Eighth Amendment violation. The Ohio Constitution is not separately addressed.

Merit Decision

Analysis

Part I: The Jurisdictional Issue

After oral argument, the Court, sua sponte, requested additional briefing on the following:

“The effect, if any, of R.C. 2953.08(D)(3)) on this court’s and the court of appeals’ ability to review appellant’s sentence. The parties should address whether that provision denies either court subject-matter jurisdiction and, if not, whether it otherwise limits the scope of the appeal here or in the court of appeals.”

Short Answer

The Court concludes that Patrick’s constitutional challenge to his sentence is not barred by R.C. 2953.08(D)(3).

The Text

Always good to start with the text. R.C. 2953.08(A) states, “In addition to any other right to appeal and except as provided in division (D) of this section, a defendant who is convicted of or pleads guilty to a felony may appeal as a matter of right the sentence imposed upon the defendant…”

 R.C. 2953.08(D)(3) states that “a sentence imposed for aggravated murder or murder pursuant to sections 2929.02 to 2929.06 of the Revised Code is not subject to review under this section.” Patrick was sentenced pursuant to R.C. 2929.03.

The key words in these statutes are “in addition to any other right of appeal” and “under this section,” respectively. 

Position of the Parties

Patrick argues that R.C. 2953.08 created a new right to appeal a felony sentence, in addition to any other such right. He argues that the ban on an appeal under R.C. 2953.08(D)(3) does not apply in his case because he didn’t appeal under that section. His appeal was a constitutional challenge to the sentencing process, which a court can review under R.C. 2905.03 and 2953.02. Patrick argues that accepting the state’s argument that R.C. 2953.08(D) eliminates any appellate review of an aggravated murder sentence would make that provision unconstitutional.

The state argues R.C. 2953.08 is the only route to appeal a felony sentence unless a more specific statute applies, and none does in this case.

R.C. 2953 is not the only path to appellate review

According to the majority, the statutory language in R.C. 2953.08—specifically, the “in addition to any other right to appeal” language—makes it clear that R.C. 2953.08 is not the only route to appeal a criminal sentence. R.C. 2953.02 also provides a right to appeal a judgment (meaning a sentence in this instance) or final order involving a Constitutional question to the supreme court as a matter of right. Nor do the two sections conflict.

R.C. 2953 does not preclude a constitutional challenge to aggravated murder or murder

Patrick did raise a constitutional challenge to his sentence for aggravated murder and was sentenced under R.C. 2929.03. Pursuant to R.C. 2953.08(A)(4), a defendant may appeal a felony sentence as being contrary to law. All of the bases of appeal described in R.C. 2953.08(A) relate to whether the trial court followed statutory sentencing requirements, so R.C. 2953.08(A)(4) must be read in that context, and the meaning of the “contrary to law” grounds for appeal must be considered to be of a similar nature. So, the Court concludes here that R.C. 2953.08(A)(4) does not describe appeals taken on constitutional grounds. Thus, an appeal taken on constitutional grounds is not an appeal “under this section” as set forth in R.C. 2953.08(D)(3). The bottom line here is that R.C. 2953.08(D)(3) does not preclude the appeal of a sentence for murder or aggravated murder challenging the constitutionality of the sentence.

Whew! Jurisdiction can be a heavy lift. Now onward to the merits.

Part II. Sentencing a Juvenile Offender

Youth Must be Considered

Position of the Parties

Patrick argues that given all that is now known and acknowledged in the caselaw about the differences between adults and juveniles, courts must take youth into account as a mitigating factor in sentencing, with or without the possibility of parole.

The state argues youth need only be taken into account before imposing a sentence of life without the possibility of parole, which was not the case here. This difference represents a longstanding disagreement among the justices.  The state also argues that a sentencing court need not expressly set forth its consideration of youth on the record, and that an appellate court may presume youth was considered. 

Back to Familiar U.S. Supreme Court Juvenile Law Territory

Youth as a Factor in Sentencing

The appeals court in this case concluded that even though R.C. 2929.12 provides “any other relevant factors” should be considered, a trial court is not required to consider the age of a defendant when issuing a felony sentence. Wrong, says the majority.

“[C]ontrary to the Seventh District’s conclusion, age is undoubtedly a relevant factor that should be considered when a trial court sentences an offender who was a juvenile when he or she committed the offense, and therefore, youth is a relevant sentencing consideration under R.C. 2929.12(C) and (E),” wrote O’Connor. This conclusion is bolstered by decisions from the U.S. Supreme Court in J.D.B. v. North Carolina (minors are less mature than adults, lacking in experience, perspective and judgment and are more vulnerable to peer pressure than adults), Graham v. Florida (banning life without parole sentence for juvenile non-homicide offenders) and Miller v. Alabama (Forbids imposition of mandatory life without parole sentences for all juvenile offenders). Also relevant here is the Court’s own precedent in State v. Long in which the Court held that a trial court must consider youth as a mitigating factor in sentencing a juvenile.  Long also held, however, that consideration of an offender’s youth and its characteristics does not mandate any particular result.

So, how much should youth be considered here? The same amount as in a case such as Long where there was no possibility of parole for Long. Although life without parole was not the sentence ultimately given to Patrick, it could have been.

“Additionally, we conclude that the difference between a sentence of life in prison with parole eligibility after a term of years and a sentence of life without the possibility of parole is not material for purposes of an Eighth Amendment challenge by an offender who was a juvenile when he or she committed the offense. The state and the Seventh District have failed to recognize that spending one’s life in prison is a real possibility under all the life-sentencing options in R.C. 2929.03(A)(1)…Therefore, we conclude that the severity of a sentence of life in prison on a juvenile offender, even if parole eligibility is part of the life sentence, is analogous to a sentence of life in prison without the possibility of parole for the purposes of the Eighth Amendment. Accordingly, such a sentence should be treated consistently with that imposed in Long, as instructed by Miller. Given the high likelihood of the juvenile offender spending his or her life in prison, the need for an individualized sentencing decision that considers the offender’s youth and its attendant characteristics is critical when life without parole is a potential sentence,” O’Connor wrote.

The bottom line here is that the majority rejects the state’s argument that a sentencing court is not required under the Eighth Amendment to consider youth unless a life-without-parole sentence is imposed on a juvenile offender. The dissent, on the other hand, does buy that argument.

“Certainly, before imposing a life sentence on a juvenile offender, there is room in our justice system for a trial court to make an individualized sentencing determination that articulates its consideration of the offender’s youth, and all that comes with it, before an old man is all that is left,” O’Connor wrote.

Record Fails to Show Patrick’s Youth was Considered in Sentencing

Extending the holding in Long to Patrick’s sentence, the majority reviews what was said at the sentencing hearing and concludes that the sentencing court failed to set out in the record how and whether it considered Patrick’s youth in sentencing. The majority notes that at his first sentencing hearing, Patrick was sentenced to life in prison with parole eligibility after 16 years and adds that with this more severe sentence it was unclear from the record how and whether the trial court considered Patrick’s youth. The majority holds that it cannot just be assumed that the trial court considered Patrick’s youth in the sentence given because the trial court failed to articulate any such considerations in the sentencing record.

Justice Donnelly’s Position

Jurisdiction To Review Aggravated Murder Sentence

Donnelly agrees that R.C. 2953.08(D)(3) does not preclude appellate review of the constitutionality of a noncapital murder or aggravated murder sentence but gets there by a different route than the majority.

Historical Perspective

Before the criminal sentencing reform that was enacted in 1996, trial courts had broad discretion in sentencing, and a sentence that was authorized by law and within permissible limits was generally not disturbed on appeal unless there had been an abuse of discretion. When what was then S.B. 2 was passed, R.C. 2953.08(D) stated that “a sentence imposed for aggravated murder or murder pursuant to sections 2929.02 to 2929.06 is not subject to review under this section.”  But, says Donnelly, a review of the history and text indicates to him that appellate review of Patrick’s sentence is not foreclosed under this section.

At the time R.C. 2953.08(D)(3) went into effect, the only possible sentence for a non-capital aggravated murder conviction was life with the possibility of parole after 20 years, so it made sense to bar appellate review since this was the only option. But in 2005, additional sentencing options were added—life without parole, and life with parole eligibility after 20, 25, or 30 years.  This was to give trial judges discretion to choose among the four options in a case of aggravated murder. But while adding these options, the legislature made no changes to R.C. 2929.03(A), and did not enact any provision stating that these new sentencing options were not subject to appellate review. So, to Donnelly, it is not clear whether this ongoing preclusion of appeals for aggravated murder and murder was a conscious choice or simply the result of a legislative oversight.  

“If original intent is any indication, then the basis for seemingly barring appellate review would appear to have been based on the fact that there was only one sentence available at the time. If that is in fact the case, then R.C. 2953.08(D)(3) would now appear to have become quite literally a law of unintended consequences,” Donnelly wrote.  In a footnote, Donnelly “respectfully encourages” the legislature to re-examine whether it really intended to foreclose all appeals of sentences for aggravated murder and murder noncapital sentences.

The Statutory Language

R.C. 2953.08(D)(3) expressly and plainly states that a noncapital aggravated murder case is not subject to review under R.C. 2953.08. But as the majority recognized, that leaves other routes of appellate review open, such as R.C. 2953.02. To this, Donnelly adds R.C. 2953.07, which authorizes appellate review of criminal sentences claimed to be contrary to law. So, Donnelly agrees that the language “not subject to review” in R.C. 2953.08 does not mean not subject to any appellate review at all.

Constitutional Challenge to Sentence

Finally, Donnelly agrees with the majority that the statutory right to appeal allows an appellate court to consider the constitutionality of an aggravated murder sentence.  He would find that the statutory right to appeal pursuant to R.C. 2953.02 and R.C. 2953.07 include but are not limited to constitutional challenges. He disagrees with the majority’s drawing of a distinction between constitutional and statutory appeals when examining the scope of the right to appeal under R.C. 2953.08. He finds it illogical for the majority to look at the scope of appellate rights provided by R.C. 2953.08 to determine whether Patrick’s constitutional challenge to his sentence is within the scope of that statute when the text clearly states that it is not. He thus disagrees with the majority holding that R.C. 2953.08 controls appeals that challenge the trial court’s compliance with statutory, but not constitutional requirements.

“I therefore do not believe that we have the authority to allow appeals on certain grounds and disallow appeals on other grounds,” Donnelly wrote, adding, “In my view, R.C. 2953.08(D)(3) does not foreclose appellate review of an aggravated-murder sentence, and the statutory rights to appeal under R.C. 2953.02 and 2953.07 include, but are not necessarily limited to, appeals challenging the constitutionality of a sentence.”

Finally, Donnelly expressed his concern that Patrick was given a much stiffer sentence for exercising his right to a jury trial. When Patrick originally pleaded guilty, he was sentenced to life with parole eligibility after 16 years. But when his guilty plea was reversed, and he went to trial, his sentence was upped to life with the possibility of parole after 33 years.  But, as Donnelly also notes, Patrick did not raise this “trial tax” issue on appeal.

Bottom Line, Donnelly Opinion

“While my reservations with the majority opinion may be more with what is not said than with what is said, I agree with its conclusion here that R.C. 2953.08(D)(3) does not preclude an appellate court from considering the constitutionality of an aggravated-murder sentence. I accordingly concur with the court’s judgment.”

Justice Kennedy’s Position

Jurisdiction

Kennedy agrees with the majority that R.C. 2953.08(D)(3) does not preclude appellate review of the constitutionality of a murder or aggravated murder sentence. 

Kennedy posits that R.C. 2953.08(D)(3) only precludes appellate review under this provision, but there are other routes of appeal of a murder or aggravated murder sentence such as R.C. 2953.02 and R.C. 2505.03(A). She notes that “a review of a sentence under the Eighth Amendment is not a review of the trial court’s discretion,” meaning that an appellate court need give no deference to the sentence imposed by the trial court if that sentence is unconstitutional.

The Constitutionality of Patrick’s Sentence

Kennedy blasts the majority for its holding, finding it unprecedented both under the Court’s own jurisprudence and that of the U.S. Supreme Court to find an Eighth Amendment violation with a sentence that allows for the possibility of parole.

“There is no Eighth Amendment categorical ban against the imposition of sentences of life with the possibility of parole, and therefore there is no Eighth Amendment-based procedure necessary to winnow the imposition of that sentence to only incorrigible defendants,” Kennedy wrote. She extensively reviews the U.S. Supreme Court jurisprudence on the constitutionality of various punishments of juvenile offenders, (see our precedent section) and notes that in State v. Long the Ohio high court went beyond the holding in Miller in holding that a trial court must make some kind of statement on the record showing that the trial court took youth into account before imposing a life without the possibility of parole sentence on a juvenile offender. She notes that this was a “shift to process from the core protection of the Eighth Amendment.”

“Because a trial court that sentences a juvenile offender to a sentence of life with the possibility of parole after 33 years is not subject to the requirements of Miller or Long, I would hold that the trial court’s failure to specifically note on the record that it had considered Patrick’s youth did not render the sentence unconstitutional under the Eighth Amendment. Whether Ohio’s sentencing statutes require a trial court to consider an offender’s youth in a case not involving a life-without-parole sentence is not before us. The only issue before us is whether the Eighth Amendment requires a trial court to consider the youth of an offender before imposing a life sentence that includes the possibility of parole after 33 years. The Eighth Amendment does not so require,” Kennedy wrote. She goes on to emphasize, in the remainder of her dissent, the significant difference between a life sentence with the possibility of parole and a life sentence without any possibility of parole. The former offers “some meaningful opportunity for release based on demonstrated maturity and rehabilitation,” while the latter offers no hope at all. It is the seriousness of the sanction, she notes, that gives rise to the added procedural protection for juveniles. 

For Eighth Amendment purposes, the line is drawn at a sentence of life in prison without the possibility of parole. So, it would not cover Patrick’s situation in this case. It is the lack of opportunity for release that is the catalyst for the Eighth Amendment’s requirements according to Kennedy. A sentence like Patrick’s that includes the possibility of parole does not trigger the same concerns as those raised in Miller and Long.

 Kennedy agrees with the majority that it is a best practice for a trial court to articulate its consideration of an offender’s youth when making an individualized sentencing determination. But she is also quick to note that the Eighth Amendment does not require this. So, in this case there was no Eighth Amendment requirement that the trial court state on the record its findings about the impact of Patrick’s youth in sentencing him. Kennedy also notes that even though the trial court never explicitly stated on the record that it had considered Patrick’s youth before sentencing him, the record and sentencing entry show that the trial court did consider Patrick’s youth. Kennedy cites to various oral statements during the sentencing hearing about Patrick’s youth.

Kennedy does throw one bone to Patrick in her lengthy dissent.  She writes that she thinks it is time “for Ohio’s lawmakers to undertake a meaningful study and review of the sentencing of juveniles tried as adults,” but goes on to add for the umpteenth time that it is not the Court’s role to rewrite the sentencing laws.  And she ends her dissent with this:

“There is much in the majority opinion that I agree with. But this case is here because Patrick argues that the sentence imposed on him by the trial court violates the Eighth Amendment to the United States Constitution because the trial court failed to consider on the record Patrick’s youth as mitigation. The Eighth Amendment simply has no such requirement regarding a juvenile homicide offender whose sentence includes the meaningful opportunity for parole. Neither this court nor the United States Supreme Court has ever said otherwise.”

Justice DeWine joined this dissent.

Case Disposition

The court of appeals is reversed, and the case remanded to the trial court for resentencing.

Trial Court Judge (reversed)

 Mahoning County Common Pleas Court Judge John M. Durkin

Seventh District Court of Appeals (reversed)

Opinion authored by Judge Gene Donofrio, joined by Judges Cheryl L. Waite and David A. D’Apolito

Concluding Observations

This decision represents a longstanding disagreement over the treatment and sentencing of juvenile offenders with Chief Justice O’Connor leading the progressive wing on this issue, and Justice Kennedy leading the conservative side. For another example, see State v. Aalim, 2017-Ohio-2956.