On May 17, 2022, the Supreme Court of Ohio, by a vote of 6-1, dismissed this case as improvidently accepted. Justice DeWine dissented and would affirm the judgment of the court of appeals.
On April 26, 2022, the Supreme Court of Ohio will hear oral argument in State of Ohio v. Austin M. Fuell, 2021-0794. At issue in this case is whether a mandatory life sentence with parole eligibility is unconstitutional as applied to young defendants, and whether juveniles have a right to cross-examine witnesses at bindover hearings.
Case Background
In 2019, police accused Austin M. Fuell of murder. Police alleged that Fuell, then 17 years old, had taken part in a home robbery with another person. The incident culminated in the fatal shooting of Jordan Ketring.
The juvenile court held a probable cause hearing to decide whether to bind Fuell over to the Clermont County Court of Common Pleas. The State attempted to show Fuell’s participation in the robbery, either as the shooter or as an accomplice. One witness, Ketring’s girlfriend, said she recognized Fuell despite the perpetrator wearing a mask, based on his eyes and demand for money from Ketring in the exact amount the witness knew Ketring had stolen from Fuell. The State presented evidence that a cell phone it said belonged to Fuell pinged a tower near the scene. But the detective who presented the cell phone evidence at the juvenile hearing admitted that the cell provider, Sprint, could not identify the owner of the phone number. The detective said he concluded the phone belonged to Fuell based on interviews and his discovery of the cell number written on a receipt and attributed to Fuell. The receipt was not submitted as evidence.
The State also presented text exchanges allegedly between Fuell and a friend, Kevin Baird. The exchanges revealed Baird shared an address adjacent to the crime scene, which was located where Ketring was staying that night: his girlfriend’s grandparents’ home. The State did not call the following people as witnesses, preventing defense counsel from cross-examining them at the juvenile hearing: Baird, a records custodian with Sprint, nor the analyst who obtained cell tower data. However, Fuell had an opportunity to call his own witnesses but declined.
The State did call an analyst who relied on toolmark identification — a field whose unreliability and subjectivity has been shown by the President’s Counsel of Advisors on Science and Technology, among other entities, and addressed by the United State Supreme Court. The analyst concluded that a gun confiscated from Fuell’s home had not fired the bullets recovered from the scene. However, months later, police say they discovered a detached 9mm barrel, whose origin was contested. The analyst attached the barrel to Fuell’s gun and concluded, based on questionable methods, that it fired the bullets.
The juvenile court found probable cause for Fuell’s involvement in the robbery, and it bound him over to adult court. Fuell later pleaded guilty to murder under R.C. 2929.02(B)(1). The statute calls for a mandatory sentence of life in prison with the possibility of parole after 15 years.
Fuell appealed to the Twelfth District on several grounds.
The Appeal
The relevant issues before the Twelfth District were twofold: First, Fuell argued that in transferring his case to adult court the juvenile court violated his constitutional rights under the Confrontation and Due Process clauses to cross-examine witnesses. And second, in requiring a mandatory fifteen-years-to-life sentence, Ohio law violates the Eighth Amendment because it does not allow judges to consider youth in sentencing decisions.
In a unanimous decision, the Twelfth District affirmed Fuell’s transfer to adult court and his sentence.
Judge Matthew Byrne wrote the opinion. Judges Robert Hendrickson and Mike Powell concurred.
Confrontation Clause issue
The Twelfth District held that the confrontation right is a trial right and does not extend to juvenile transfer hearings.
First, it cited several United States Supreme Court and Supreme Court of Ohio cases that have held that the confrontation right applies during an actual trial, not to preliminary hearings.
Judge Byrne wrote that Fuell failed to cite a case that stood for the proposition that the Confrontation Clause applies at juvenile transfer hearings. However, the Twelfth District pointed to two sister district cases in Ohio, including State v. Garner, and In re B.W., that held the right does not extend to juvenile transfer hearings.
Due Process Issue
Fuell argued that admission of the cell tower and text message evidence violated his due process rights, which, according to Fuell, include the right to confront witnesses.
While Judge Byrne acknowledged that children have due process rights in transfer hearings, he wrote that the U.S. Supreme Court, in Kent v. United States, held that those rights are duly upheld when a juvenile court issues its decision with stated reasons and allows the child to be represented by counsel.
The Twelfth District found that all due process requirements were met at Fuell’s transfer hearing. Admitting hearsay and other evidence that could raise Confrontation Clause issues, the court held, “is not inconsistent with fundamental fairness and due process of law described in Kent.”
In addition, the Twelfth District held that the state showed probable cause even without the unconfronted evidence, citing the eyewitness testimony and toolmark analysis of the firearm. Thus, any finding of a violation of due process would have been harmless error.
Youth and Potential Life Sentence Issue
Fuell argued that R.C. 2929.02(B)(1)’s mandatory life sentence with the possibility of parole after 15 years qualifies as cruel and unusual punishment because a mandatory sentence does not allow a court to consider a juvenile defendant’s youth.
However, Fuell failed to object to his sentence on this constitutional ground at the trial level, so the Twelfth District considered whether the claimed constitutional violation by the trial court qualified as “plain error” which is one of the conditions necessary to allow the appellate court to conduct a review of an issue not raised below.
The Twelfth District pointed to language in State v. Patrick that supports Fuell’s argument: “. . . 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.”
But Judge Byrne also pointed to contrary arguments, including that Patrick considered R.C. 2929.03, while Fuell was sentenced under R.C. 2929.02. Patrick was convicted of aggravated murder while Fuell was convicted of murder. He further distinguished this case from Patrick by stating R.C. 2929.03 included a potential sentence of life without parole, while R.C. 2929.02 did not. “A sentence of life imprisonment without the possibility of parole was not an option available to the court in this case,” Judge Byrne wrote. Byrne noted that there is no precedent that a life sentence with the possibility of parole after 15 years is unconstitutional when applied to a juvenile offender
Based on these significant differences from Patrick, the Twelfth District held that the trial court had not committed plain error when it adhered to the mandatory sentence set forth in R.C. 2929.02(B)(1).
*The Twelfth District wrote: “R.C. 2929.02 and R.C. 2929.03 were amended effective April 12, 2021. All references to R.C. 2929.02 and R.C. 2929.03 in [the appellate court’s opinion] are to the versions of those statutes that were effective prior to April 12, 2021.”
Key Statutes and Precedent
U.S. Const. Amend. V (“No person shall . . . be deprived of life, liberty, or property, without due process of law.”)
U.S. Const. Amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against him . . .”)
U.S. Const. Amend. VIII (“Excessive bail shall not be required, . . . nor cruel and unusual punishments inflicted.”)
U.S. Const. Amend. XIV (“No state shall . . . deprive any person of life, liberty, or property, without due process of law. . .”)
R.C. 2152.12(A)(1)(a) (if a delinquency complaint is filed for an act that would be murder or aggravated murder if committed by an adult, the court shall transfer the case to adult court if the juvenile is 16 or 17 and there is probable cause to believe the juvenile committed the offense.)
R.C. 2903.02 (Ohio statute criminalizing homicide)
R.C. 2929.02(B)(1) (“. . .[W]hoever is convicted of or pleads guilty to murder in violation of section 2903.02 of the Revised Code shall be imprisoned for an indefinite term of fifteen years to life.”)
R.C. 2929.03 (“(1) Except as provided in division (A)(2) or (H) of this section, the trial court shall impose one of the following sentences on the offender: (a) Life imprisonment without parole; (b) Subject to division (A)(1)(e) of this section, life imprisonment with parole eligibility after serving twenty years of imprisonment; (c) Subject to division (A)(1)(e) of this section, life imprisonment with parole eligibility after serving twenty-five full years of imprisonment; (d) Subject to division (A)(1)(e) of this section, life imprisonment with parole eligibility after serving thirty full years of imprisonment. . .”)
Henderson v. Maxwell, 176 Ohio St. 187 (1964) (confrontation right “relates to the actual trial for the commission of the offense and not to the preliminary examination where it is determined whether the accused is to be bound over to the Grand Jury.”)
Pointer v. Texas, 380 U.S. 400 (1965) (“[T]o deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment’s guarantee of due process of law.”)
Kent v. United States, 383 U.S. 541 (1966) (asserting that “there is no place in our system of law for reaching a [juvenile transfer] result of such tremendous consequences without ceremony—without hearing, without effective assistance of counsel, without a statement of reasons” and that transfer hearings in juvenile court are “critically important.”)
Barber v. Page, 390 U.S. 719 (1968) (“The right to confrontation is basically a trial right.”)
Goldberg v. Kelly, 397 U.S. 254 (1970) (“In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.”)
State v. Carmichael, 35 Ohio St. 2d 1 (1973) (holding use of hearsay evidence without cross-examination of declarant did not violate juvenile’s rights at bindover hearing.)
Mathews v. Eldridge, 424 U.S. 319 (1976) (“. . .identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”)
State v. Self, 56 Ohio St.3d 73 (1990) (“Section 10, Article I [of the Ohio Constitution] provides no greater right of confrontation than the Sixth Amendment.”)
State v. Iacona, 93 Ohio St.3d 83 (2001) (bindover hearing in juvenile court need not find whether the accused is guilty but “basic principles of fairness and due process . . . require that counsel for a juvenile be provided access to information possessed by the state that might tend to disprove probable cause at the bindover stage.”)
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (“Like expert witnesses generally, an analyst’s lack of proper training or deficiency in judgment may be disclosed in cross-examination.”)
Miller v. Alabama, 567 U.S. 460 (2012) (“By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory-sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual punishment.”)
State v. Hood, 2012-Ohio-6208 (admission of phone records that had not been authenticated as business records was constitutional error under the Confrontation Clause.)
State v. Long, 2014-Ohio-849 (failing to consider youth’s age in sentencing for aggravated murder under R.C. 2929.03(A) constituted violation of Eighth Amendment.)
In re B.W., 2017-Ohio-9220 (7th Dist.) (holding Confrontation Clause does not apply to admissibility of evidence issues at juvenile transfer hearings.)
State v. Anderson, 2017-Ohio-5656 (“A hard 20 year life sentence does not irrevocably adjudge a juvenile offender unfit for society. Rather, in line with the concerns expressed in Graham, it gives the offender a ‘meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation’ by permitting parole after the mandatory 20-year minimum prison term is served.)
State of Ohio v. E.T., Jr., 2019-Ohio-1204 (affirming finding of probable cause by juvenile court based on single eyewitness only “50 percent” certain of the identification. Eyewitness was subject to cross-examination.)
State v. Garner, 2020-Ohio-4939 (holding defendant did not have confrontation right during juvenile bindover hearing because it was not a trial and defendant’s liberty interest was not yet at stake.)
State v. Patrick, 2020-Ohio-6803 (holding that “a trial court must separately consider the youth of a juvenile offender as a mitigating factor before imposing a life sentence under R.C. 2929.03, even if that sentence includes eligibility for parole” and “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.”)
Votes to Accept the Case
Yes: Chief Justice O’Connor and Justices Donnelly, Stewart, and Brunner
No: Justices Kennedy, Fischer, and DeWine
Fuell’s Propositions of Law Accepted for Review
First Proposition of Law
Juvenile offenders have a state and federal due process right to cross-examine witnesses whose hearsay statements are presented to provide probable cause for mandatory transfer to adult court.
Second Proposition of Law
Under Miller v. Alabama, State v. Long, and State v. Patrick, R.C. 2929.02(B)’s mandatory fifteen-years-to-life sentence for murder is unconstitutional as applied to juvenile offenders because it does not permit judicial consideration of youth at sentencing.
State’s Proposed Counter Propositions of Law
First Proposed Counter Proposition of Law
Juveniles have no Due Process right to confrontation in a mandatory bindover hearing.
Second Proposed Counter Proposition of Law
Where a trial court considers a juvenile’s age as a mitigating factor at sentencing, or where the sentence itself affords a juvenile a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation, the sentence does not violate the Eighth Amendment.
Fuell’s Argument
Due Process Argument
Fuell’s constitutional protections in juvenile court flow from the Due Process Clause of the Fourteenth Amendment. Confrontation and cross-examination rights are “core due process protections.” These rights apply in adversarial settings “where decisions turn on questions of fact.”
Thus, the State and the lower courts’ interpretation of these rights is too narrow. They do not only apply to criminal trials where guilt or innocence is decided. Decisions by the U.S. Supreme Court have illustrated that these rights extend beyond trials.
Given the stakes of juvenile transfer hearings, which are adversarial proceedings, confrontation and cross-examination are vital. Evidence is subject to criticism, and defendants are guaranteed effective counsel, which supports the adversarial nature of the proceedings.
These hearings also serve a fact-finding function — whether evidence supports “prosecutive merit.” Juvenile judges weigh credibility of witnesses, and their findings bind appellate courts.
Children’s liberty interests are implicated in transfer hearings, as a decision to remove a case to adult court affects potential confinement lengths. Such decisions can be the difference between “five years’ confinement and a death sentence,” as the Kent court stated.
Considering these significant interests at stake, courts should ensure due process protections are in place. This view is supported by policy, as cross-examination allows defense counsel to weed out incompetent or fraudulent witnesses.
For Fuell to have discredited the cell-tower evidence linking him to the area of the crime, counsel needed to examine the analyst. Sprint in this case could not link the phone number to an owner. Equally important, Fuell’s counsel deserved a chance to confront Baird, who allegedly exchanged texts with Fuell.
In sum, the State’s argument should be rejected. Children have confrontation rights at transfer hearings. Withholding these rights “creates far too great a risk of untrustworthy decisions, and deprives children of the fundamental fairness guaranteed by the state and federal constitutions.”
Judicial Consideration of Youth under the Eighth Amendment
Under State v. Patrick, which considered a conviction under R.C. 2929.03, trial courts must weigh an offender’s youth before imposing a life sentence, even when that sentence contains a parole possibility.
R.C. 2929.02, under which Fuell was convicted, does not allow for such consideration because of its mandatory fifteen-to-life sentence. Thus, the statute is unconstitutional when applied to juveniles.
Patrick relies on the United States Supreme Court’s decision in Miller v. Alabama. Miller cited scientific data about children’s brain development and psychology, showing that compared with adults, children are more rash and less capable of assessing risk. The Court thus found that the Eighth Amendment requires courts to “take into account how children are different” during sentencing to avoid disproportionate punishment.
The Supreme Court of Ohio in Patrick, as it had done in State v. Long, expressed the constitutional rule that courts weighing a life sentence must consider an offender’s youth. Patrick, therefore, renders R.C. 2929.02(B) unconstitutional, as its mandatory sentence renders courts unable to consider youth at sentencing.
Patrick applies here because this Court expressly stated that there is no difference between life sentences without parole and such sentences with a parole possibility “after a term of years.” Mandatory life sentences and mandatory life sentences with a parole possibility are both unconstitutional. Such sentences “subject children to the same harshest available punishment as more-culpable adults.”
The appellate court understated Fuell’s sentence, calling it “hardly the type of lifetime scenario” considered in Patrick. This argument wrongly ignores that Fuell’s sentence will not necessarily end in fifteen years. It could extend for his entire lifetime, especially considering Ohio’s parole-release rate is about 10 percent. In addition, parole decisions are the prerogative of the executive branch. The judiciary must safeguard constitutional rights, not the executive.
This Court should find R.C. 2929.02(B) unconstitutional, as applied to juveniles, under Patrick. As Patrick stated, “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.”
State’s Argument
Due Process Argument
Fuell’s Due Process claim to a confrontation right in bindover hearings should fail.
First, no such right has ever been recognized. The United States Supreme Court in Kent held that while juveniles have certain rights at bindover hearings, such as the right to counsel, these hearings can be informal and do not require the protections of a criminal trial.
Second, this Court in State v. Carmichael recognized that bindover hearings are preliminary proceedings and hearsay evidence without a cross-examination opportunity does not violate a juvenile’s rights. No subsequent decision by either courts or legislatures have granted juveniles a confrontation right at bindover hearings. This is because such a right is a trial right, and, as this Court found in Iacona, bindover hearings are not trials as guilt is not at issue.
The United States Supreme Court, in Breed v. Jones, also specifically found that bindover hearings are not adjudicatory hearings. They are gatekeeping proceedings based on probable cause.
Fuell’s argument fails to recognize that the right to confrontation, whether derived from the Confrontation Clause or Due Process Clause, derives from the same common law principles. Violations of the right normally only arise at trial when prior testimony of an unavailable witness is used.
Finally, under the Mathews v. Eldridge framework, “affording the right to confrontation to mandatory bindover hearings is unnecessary.” While defendants facing indictment hold a liberty interest that is at stake, they have no right to confront witnesses at that stage. A juvenile at a bindover hearing has a lower liberty interest, only facing a potential greater restraint on their liberty, while defendants at a preliminary hearing face actual restraint.
In addition, if transferred to adult court, juveniles will have an opportunity to cross-examine witnesses during their trials. An erroneous deprivation of juveniles’ liberty interest is not at risk without confrontation at bindover hearings.
The government’s interest is seriously implicated by affording juveniles confrontation rights at bindover hearings. Doing so might place “intolerable burden on the time and resources of the courts.” As Justice Brennan previously stated, courts cannot “easily accommodate lengthy preliminary hearings.”
Most states do not afford juveniles the right of confrontation at bindover hearings, and those that do recognize the right not in the Constitution but in enacted law or by rule.
In any event, in this case the evidence against Fuell from testifying witnesses was sufficient to find probable cause. Thus even if the cell tower data and phone messages were excluded, the decision to bind Fuell over to adult court should stand.
Finally, even if the Court finds Fuell had the right to confront and cross examine witnesses, any error was harmless as the State still put on sufficient evidence to support a finding of probable cause.
Judicial Consideration of Youth under the Eighth Amendment
The fifteen-years-to-life mandatory sentence for murder under R.C. 2929.02(B) provides a “meaningful opportunity to obtain release.”
Patrick only appears to render unconstitutional all life sentences with the possibility of parole meted out without judicial consideration of youth. In fact, when juveniles are subject to such decisions but have a meaningful opportunity for release, based on demonstrated maturity and rehabilitation, the importance of their youth is diminished.
This Court in State v. Moore demonstrated that a life sentence that offers a “reasonable opportunity” for release satisfies the Eighth Amendment’s requirement to consider an offender’s youth as a mitigating factor.
The Ohio Public Defender argued in an amicus brief filed in the Patrick case that a “meaningful opportunity” should include parole eligibility after 15 years of incarceration. The Ohio General Assembly seemed to agree when it enacted new sentencing reforms but did not alter the mandatory sentence contained in R.C. 2929.02(B).
Prior to Patrick, this Court signaled in Anderson that life sentences with mandatory minimums do not violate the Eighth Amendment. Thus the mandatory sentence in Fuell’s case does not violate the Eighth Amendment.
Fuell’s argument elevates form over function. It would render constitutional a statute that allows discretion between a 14-years-to-life sentence and a 15-years-to-life sentence, as that allows a court to consider an offender’s age. But there is “little functional difference” between the two sentences.
The mandatory sentencing structure of R.C. 2929.02(B) is not unconstitutional.
Fuell’s Reply
Due Process does not turn on labels such as “non-adjudicatory” but rather on substance. Due Process requires an ability to confront where critical fact decisions are at issue.
The State elevates “convenience over fairness.” The State compares bindover hearings to grand jury proceedings. But the latter are not adversarial evidentiary hearings. A more apt comparison is to preliminary hearings, in which defendants are able to cross-examine witnesses.
The State misreads cases like Kent, which expanded children’s rights. These cases did not limit due process rights as the State suggests.
The State also used the wrong harmless error standard. The standard is not whether, without the attacked evidence, the same decision would have been reached. The correct standard instead asks if the offending evidence “contributed to the court’s decision.” Here, the cell tower data and text messages attributed to Fuell influenced the juvenile court’s decision. The State even acknowledged the evidence was “central to the prosecutor’s case.”
As for Fuell’s second proposition of law, Fuell does not argue that certain sentences are per se unconstitutional but rather when child-offenders are involved, the Constitution requires consideration of age when life terms are involved.
Under R.C. 2929.02(B), such consideration is not possible. This Court need not rewrite the statute but should call on the legislature to do so. Until then, less-harsh sentences should be added, as done in cases like Miller, so that courts have discretion when sentencing children.
Amici in Support of Fuell
Juvenile Law Center and Children’s Law Center, Inc., et al.
The Juvenile Law Center, the Children’s Law Center, Inc., and the Cuyahoga, Franklin, Hamilton, and Montgomery County public defender’s offices provide legal services and advocate for youth both inside and outside of criminal courtrooms. They work to ensure fairness and their clients will be impacted by this decision.
Youths face heavy “collateral consequences,” such as barriers to employment, housing and higher education, that stem from criminal convictions in adult court. In addition, youth in adult penal facilities witness and suffer brutalities by staff and other inmates. Taken together, these can result in lasting financial and psychological impacts on people like Fuell. In addition, Black youth face bias in juvenile courts, and they “comprise the overwhelming majority of mandatory bindovers each year.”
Bindover hearings must afford youth with due process protections, including the right to cross-examine witnesses.
National Juvenile Defender Center
The National Juvenile Defender Center provides support to public defenders and child advocates, among others. The Center is concerned with ensuring quality representation and justice for youth.
The right to counsel is impinged when defendants are precluded from presenting their youth as a mitigating factor. Counsel owes unique duties to young defendants, and counsel is ineffective unless counsel is able to make mitigating efforts through such data as family background, educational and psychiatric reports, and all other mitigation materials.
This Court should find R.C. 2929.02(B) unconstitutional as applied to youth.
Amicus in Support of State
Ohio Prosecuting Attorneys Association
The Cuyahoga County Prosecutor’s Office, a member of the OPAA, prosecutes delinquency cases. Fuell’s claims, if accepted, would lengthen proceedings and require the Court to invent a sentencing alternative not enacted by the General Assembly. Granting juveniles a confrontation right at bindover hearings would also create redundancy, as these same witnesses would still testify at trial.
This Court should affirm the appellate court by holding that the Confrontation Clause does not apply to bindover hearings and that R.C. 2929.02(B) is not unconstitutional.
Student Contributor: Max Londberg