Interest in the case of Brandon Moore continues to be very high, so here is an update.

First, here’s a brief review of this long-litigated case. Moore was originally sentenced to 141 years in prison for his role in a horrific gang rape in 2001 when he was 15 years old. The Seventh District Court of Appeals reversed and sent the case back for re-sentencing. This second sentence was also reversed because of improper judicial factfinding. At a third mandated re-sentencing Moore was sentenced to an aggregate sentence of 112 years. With that sentence, Moore would have been eligible for judicial release at age 92.

Moore appealed this third sentence to the Supreme Court of Ohio, arguing that a juvenile nonhomicide offender cannot be sentenced to what amounted to a “de facto” life sentence, and must be given a meaningful opportunity for release.

On December 22, 2016, the Supreme Court of Ohio handed down a merit decision in State v. Moore, 2016-Ohio-8288. In a 4-3 opinion written by now-retired Justice Paul Pfeifer, the Court held that a term-of-years prison sentence imposed on a juvenile nonhomicide offender that exceeds the offender’s life expectancy violates the Eighth Amendment ban on cruel and unusual punishment. The majority held that consistent with the U.S. Supreme Court decision in Graham v. Florida, juvenile nonhomicide offenders must be given “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”

There were five separate opinions in this 77-page decision. The section of the decision most pertinent to what is going on now is the separate concurrence written by now-retired Justice Judy Lanzinger, who wrote to express her concern that the case was being remanded for resentencing without suggesting when a “meaningful opportunity for release” might be, other than the fact that 77 years is too long. She noted that unfortunately there was no statute on point, and that Ohio sentencing law presently seemed to encourage the longest prison terms for multiple offenses with no limit on the number of consecutive sentences imposed (known as “max and stack”) so long as a trial court made the requisite statutory findings.

Lanzinger made two sentencing suggestions pertinent to this case. Twelve years for the four firearm specifications was mandatory and consecutive, so twelve years of the sentence was a must. After that, Lanzinger suggested that the trial court could either reduce the maximum penalties on some or all of the underlying remaining felonies or impose some or all of the sentences concurrently rather than consecutively.  Under the first option, Moore could be eligible for judicial release after 21 years, at age 36. Under the other scenario Moore could be eligible for judicial release after 31 years, at age 46. Read an analysis of the decision in Moore here.

But at the latest re-sentencing, on April 17, 2018, Mahoning County Common Pleas Court Judge Maureen Sweeney (the original judge in the case, Judge Scott Krichbaum, recused himself from the case on January 2, 2018) sentenced Moore to eight years on each of the three aggravated robbery counts, ten years on each of the three rape counts, ten years on each of the three complicity to rape counts, eight years on the kidnapping count, and six months on the aggravated menacing count. Judge Sweeney ordered the three eight-year aggravated robbery sentences to run concurrently with each other and concurrently with the other sentences. She ordered the three ten-year rape sentences to run consecutively to each other and concurrently with the other sentences. She ordered the three ten-year complicity sentences to run concurrently with each other and concurrently with the other sentences. She ordered the eight-year kidnapping sentence to run consecutively to the other sentences. And she ordered the six-month aggravated menacing sentence to run concurrently with the other sentences. The court also sentenced Moore to the mandatory four three-year terms on each of four firearm specifications, after merging several of the specifications, to be served prior to and consecutive to the other sentences. In all, Judge Sweeney sentenced Moore to a total of 50 years in prison with the opportunity to request judicial release after 47 years, at which time Moore will be 62 years old.

Moore appealed to the Seventh District again, arguing that a 50-year sentence for a juvenile nonhomicide offender does not provide a “meaningful opportunity for release,” and thus violates the Eighth Amendment of the U.S. Constitution and Article I Section 9 of the Ohio Constitution.

On September 23, 2020, in a unanimous opinion authored by Judge Gene Donofrio, and joined by Judges Cheryl L. Waite and Carol Ann Robb, the Seventh District affirmed.

Moore made the following arguments in his most recent unsuccessful appeal to the Seventh District:

• His sentence is unconstitutional because it does not allow him to spend a substantial part of his life outside prison.
• It is improper for the court to use an actuarial approach based on life expectancy tables. The fact that he is African American, entered prison as a juvenile, and has a heart condition all decrease his life expectancy, making it likely that he will not survive his sentence.
• A 50-year sentence for a juvenile nonhomicide offender violates evolving standards of decency under the Eighth Amendment. 

The appeals court looked at out-of-state decisions, finding some holding that a sentence of 50 years violated Graham while others did not. The appeals court also rejected Moore’s invitation to expand the holding of his case in the Supreme Court of Ohio to allow a juvenile non-homicide offender the chance to spend a “substantial” part of his or her life outside prison, noting that the actual holding in Moore did not include the word “substantial” before the word “part.”

“These cases (Graham and Moore) only require that juvenile nonhomicide offenders be given a meaningful opportunity to demonstrate rehabilitation so that they may spend part of their lives outside of prison,” the appeals court noted.

The Seventh District also rejected Moore’s argument that the court should not factor judicial release into the analysis of whether his sentence is unconstitutional.

On November 6, 2020, Moore appealed this most recent decision to the Supreme Court of Ohio, seeking jurisdiction with the following two propositions of law, both incorporating arguments he lost in his most recent appeal to the Seventh District:

Proposition of Law 1: A sentence that denies a juvenile nonhomicide offender a “meaningful opportunity” to prove he has rehabilitated for a half-century violates the Eighth Amendment to the U.S. Constitution and Article I, § 9 of the Ohio Constitution.

Proposition of Law 2: Judicial release under R.C. 2929.20, which can be denied without a hearing, is a constitutionally inadequate procedure for guaranteeing a juvenile nonhomicide offender a “meaningful opportunity for release,” as required by the Eighth Amendment to the U.S. Constitution and Article I, § 9 of the Ohio Constitution.

On January 13, 2021, Moore filed a joint motion with the Mahoning County Prosecutor’s office, seeking to withdraw his appeal to the Supreme Court of Ohio on the grounds that the Ohio legislature had enacted SB 256, signed into law January 9, 2021. This new law provides a parole opportunity for all juvenile nonhomicide offenders, thus giving Moore a chance for parole that he did not have as part of the sentence he was appealing. Under the terms of this new law, Moore is eligible for parole after serving 18 years in prison, making him eligible for parole now, as he was first incarcerated in October 2002. On January 21, 2021, the Court granted the joint motion to withdraw the appeal.  Although Moore is now at least eligible for parole, whether parole is granted is another matter.  Stay tuned.