[Cite as State v. Jones, 2015-Ohio-3506.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 26333
:
v. : Trial Court Case No. 2013-CR-3596
:
ROBERT L. JONES, JR. : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 28th day of August, 2015.
...........
MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. No. 0070162,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
WILLIAM O. CASS, JR., Atty. Reg. No. 0034517, 135 West Dorothy Lane, Suite 209,
Dayton, Ohio 45429
Attorney for Defendant-Appellant
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HALL, J.
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{¶ 1} Robert L. Jones, Jr. appeals from his conviction and sentence following a
guilty plea to charges of aggravated murder, aggravated robbery, intimidation of a crime
victim, attempted breaking and entering, and firearm specifications.
{¶ 2} Jones advances two assignments of error challenging his aggregate
sentence of 36 years to life in prison. First, he contends the trial court erred in failing to
consider his youth and its attendant characteristics before imposing sentence. Second,
he claims his sentence violates the constitutional prohibition against cruel and unusual
punishment.
{¶ 3} The record reflects that Jones and others had attempted to break into the
Ohio Loan Company on September 13, 2013. (PSI report at 3). Their plan was to shoot a
door lock with a handgun, enter the business, and steal guns. (Id.). When the attempted
entry failed, Jones became “disgusted.” While walking away, he encountered 75-year-old
Take Gangloff at a bus stop. Jones shot her in the head when she resisted his attempt to
rob her and tried to flee. (Id. at 2-3). He later bragged about the incident, telling a friend it
was “funny when the ‘old lady dropped.’”1 (Id. at 3). Two weeks after murdering Gangloff,
Jones attempted to rob a Shell gas station with a sawed-off shotgun. Jones and a
companion fled when the clerk advised them he was behind bullet-proof glass and called
the police. (Id.). Jones was 17 years old when he committed these offenses. He turned 18
just days before his sentencing hearing.
1
In its appellate brief, the State provides additional details about Jones’ shooting of
Gangloff. In support, the State cites a sentencing memorandum it filed below. (Appellee’s
brief at 2). According to the sentencing memorandum, Jones bragged to friends that he
had “just bodied” the victim and described himself as “a pure savage.” The sentencing
memorandum, however, provides no citation to support these or other details, which are
not found in the PSI report or anywhere else in the record before us. (Doc. #53 at 4).
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{¶ 4} At sentencing, the trial court imposed prison terms of life with parole eligibility
after 30 years for aggravated murder, 11 years for aggravated robbery, and 3 years for
intimidation of a crime victim. It also imposed separate 3-year sentences for the firearm
specifications (one for each incident) and a 180-day jail term for the attempted breaking
and entering. The trial court ordered the sentences for aggravated murder, aggravated
robbery, and attempted breaking and entering to be served concurrently. It ordered the
sentences for the two firearm specifications to be served consecutive to one another and
consecutive to the other sentences. The result was an aggregate sentence of 36 years to
life in prison. (Doc. #60).
{¶ 5} In his first assignment of error, Jones contends the trial court erroneously
failed to consider his youth and its attendant characteristics before imposing his
sentence. He claims the trial court was obligated to do so under Miller v. Alabama, __
U.S. __, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).
{¶ 6} We find this assignment of error unpersuasive. Contrary to Jones’ argument,
the record reflects that the trial court did take into account his youth and its attendant
characteristics. Before imposing sentence, the trial court stated:
* * * First of all, the Court has struggled with fashioning an
appropriate sentence. We use the term remorse. From the State’s
perspective, they advocate that the Defendant is not truly remorseful.
[Defense counsel] would assure me that he is. And the reality of that all is
that I just don’t know. I can’t know that. The only person that knows the level
of his remorse and how genuine it is or is not is Mr. Jones and as so many
people have stood before me to express that, he has[,] which is appropriate
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that he does. But I can’t know whether that remorse is genuine or not.
The Court believes in notions of redemption and resurrection and the
Court believes that those things can occur in the here and now. And not just
in an afterlife. And so the Court is mindful of that as well.
The Court is mindful that the Defendant hardly had an idyllic
childhood. And the Court is mindful that he has a father whose [sic] still
serving time for himself committing a murder. The Court can only imagine
what sort of forces that bring[s] to bear in a young life.
The Court is mindful that the Defendant is youthful and that we aren’t
any of us as wise at 17 or 18 as we might be 20, 30 years down the road. I
think that’s a given. The Court is mindful of the significant emotional and
developmental intellectual challenges that Mr. Fenway has brought to the
Court’s attention.
But the Court would also be remiss if I did not say that in trying to
wrap my head around this matter and in trying to fashion a sentence that’s
appropriate, the Court cannot help but note that the death of the 75-year-old
woman who waited on a bus alone in the darkness, her life was taken and
for what? For absolutely no purpose that I can think of. She had absolutely
no contact or familiarity with Mr. Jones nor he with her. And the Court just
has this notion that she was there much as a swimmer on a beach is there
when a predator happens by.
It’s just very, very difficult for the Court to come to grips with this
situation. The Court is also mindful that within a matter of days of this
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incident, as heinous as this was, the Defendant was embroiled in yet
another incident which was the aggravated robbery of a Shell station where
those present were threatened with a sawed off shotgun.
(Emphasis added) (Tr. at 32-33).
{¶ 7} The foregoing remarks demonstrate that the trial court explicitly considered
Jones’ relative youth and its attendant characteristics. In fact, his youth appears likely to
have been a mitigating factor that persuaded the trial court not to impose a sentence of
life in prison without parole for the aggravated murder (an option it had under R.C.
2929.03(A)) and not to impose consecutive sentences on the other substantive counts.
Although Jones notes that the PSI report did not specifically identify his youth as a
mitigating factor in its analysis of the statutory seriousness and recidivism factors, the trial
court appears to have recognized it as such.
{¶ 8} Jones’ reliance on Miller v. Alabama is misplaced in any event. In Miller, the
U.S. Supreme Court invalidated mandatory sentencing schemes that require juveniles
convicted of homicide to “receive lifetime incarceration without possibility of parole,
regardless of their age and age-related characteristics and the nature of their crimes[.]”
Miller at 2475. The Ohio Supreme Court recently applied Miller in State v. Long, 138 Ohio
St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, another case cited by Jones. In Long, the
defendant received a sentence of life in prison without parole for an aggravated murder
he committed at age 17. Citing Miller, the Ohio Supreme Court held that “a court, in
exercising its discretion under R.C. 2929.03(A), must separately consider the youth of a
juvenile offender as a mitigating factor before imposing a sentence of life without
parole[.]” Long at ¶ 1. In the present case, of course, the trial court did not impose a
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sentence of life without parole. Therefore, neither Miller nor Long directly applies here.
{¶ 9} We recognize, however, that Long arguably might be read more expansively
to mean that an offender’s youth always must be considered as a mitigating factor. At one
point, the majority purported to hold without qualification “that youth is a mitigating factor
for a court to consider when sentencing a juvenile.” Long at ¶ 19. Even if this broad
statement has vitality outside the context of that case,2 the record persuades us that the
trial court did consider Jones’ youth in mitigation of the sentence it imposed. As noted
above, the trial court addressed his age in the context of recognizing the fact that
juveniles are not as wise or mature as adults and the fact that he may have been
influenced by the circumstances of a difficult childhood. The trial court’s reference to
“notions of redemption and resurrection” also suggest it believed he might be capable of
rehabilitation. For these reasons, we believe the trial court complied with Long to the
extent it had any applicability here. Accordingly, the first assignment of error is overruled.
{¶ 10} In his second assignment of error, Jones claims his aggregate sentence of
36 years to life in prison constitutes cruel and unusual punishment in violation of the
Eighth Amendment. In support, he reasons that this sentence, which makes him eligible
for parole at age 54, is tantamount to a sentence of life without parole. He then relies on
Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2 825 (2010), for the
proposition that the Eighth Amendment prohibits sentences of life without parole for
juvenile offenders who commit non-homicide offenses. Although Jones was convicted of
2
But see State v. Hammond, 8th Dist. Cuyahoga No. 100656, 2014-Ohio-4673, ¶ 21
(“Although Hammond acknowledges that Long applies to juveniles who receive a
sentence of life without parole, he urges us to extend the rationale to any sentence
involving a juvenile. Hammond, however, fails to offer any authority in support of
extending the holding of Long to the instant case.”).
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a homicide offense, he asserts that the same reasoning applies here and that he must
have a “meaningful opportunity” for release. Finally, Jones cites statistical evidence for
the proposition that his life expectancy in prison will be reduced to age 54 or less.
Therefore, he reasons that he effectively has received a life sentence in violation of the
Eighth Amendment.
{¶ 11} We are not persuaded by Jones’ argument. Graham has no applicability
here for two reasons: (1) Jones was not convicted of a non-homicide offense, and (2) he
did not receive a sentence of life without parole. With regard to juvenile homicide
offenders such as Jones, the only sentences that have been found to violate the Eighth
Amendment are death sentences and mandatory sentences of life without parole. Roper
v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); Miller v. Alabama,
supra. In Long, the Ohio Supreme Court recognized that Ohio’s sentencing scheme in
R.C. 2929.03(A), under which the trial court had discretion to impose either (1) life without
parole or (2) life with parole eligibility after serving a definite period of 20, 25, or 30 years,
“does not fall afoul” of Miller’s reading of the Eighth Amendment “because the sentence of
life without parole is discretionary.” Long at ¶ 19; see also Miller at 2469 (recognizing that
discretionary sentences of life without parole for juveniles are not prohibited by the Eighth
Amendment).
{¶ 12} Here Jones did not even receive a discretionary sentence of life without
parole. Although the trial court could have imposed such a sentence, it elected to impose
a sentence of life with parole eligibility after 30 years. Except for Jones’ two
firearm-specification sentences, which were required by law to be served consecutively,
the trial court also ordered all other sentences to be served concurrently. Even if we
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accept Jones’ statistical evidence that the average life expectancy for a person in his
position is 54 years or less, we find no authority for the proposition that his sentence
violates the Eighth Amendment. Eighth Amendment violations involve punishments that
under the circumstances would shock the conscience of any reasonable person. State v.
Mayberry, 2d Dist. Montgomery No. 26025, 2014-Ohio-4706, ¶ 38. We see nothing
conscience-shocking about Jones’ sentence, which was within the statutory range and
was not even the maximum sentence he could have received. Accordingly, the second
assignment of error is overruled.
{¶ 13} The judgment of the Montgomery County Common Pleas Court is affirmed.
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FROELICH, P.J., and WELBAUM, J., concur.
Copies mailed to:
Mathias H. Heck
Kirsten A. Brandt
William O. Cass, Jr.
Hon. Steven K. Dankof