State v. Brown

[Cite as State v. Brown, 2018-Ohio-117.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

State of Ohio Court of Appeals No. L-16-1181

Appellee Trial Court No. CR0201502648

v.

Devonte Brown DECISION AND JUDGMENT

Appellant Decided: January 12, 2018

*****

Julia R. Bates, Lucas County Prosecuting Attorney, Claudia A. Ford
and Andrew J. Lastra, Assistant Prosecuting Attorneys, for appellee.

Christopher S. Clark, for appellant.

*****

SINGER, J.

{¶ 1} Appellant, Devonte D. Brown, appeals the judgment of the Lucas County

Court of Common Pleas, in which he was sentenced to two consecutive terms of life
imprisonment without the possibility of parole, plus an additional 22 years incarceration.

Finding no error in the judgment, we affirm.

Assignments of Error

{¶ 2} Appellant sets forth the following assignments of error:

1. The Trial Court committed plain error as it did not have subject-

matter jurisdiction over Brown since he was subject to a mandatory

bindover, which violated his right to due process.

2. The Trial Court violated Brown’s right under the Eighth

Amendment to the United States Constitution, and Article I, Section 9 of

the Ohio Constitution against cruel and unusual punishment when it

sentenced him to two consecutive life without parole sentences.

Background

{¶ 3} On August 10, 2015, appellant invaded the victim’s home, stabbed her 17

times, killed her son, raped, kidnapped and killed her daughter, and stole her vehicle.

When later confronted by police in the stolen vehicle, he fled and crashed.

{¶ 4} Appellant was the age of 16 at the time he committed these acts, and he was

the estranged boyfriend of the daughter. There was a no-contact order in place to keep

him from the victims’ home. Appellant had specifically been arrested and put on

postrelease control for assaulting the daughter in March 2015.

{¶ 5} On August 11, 2015, a delinquency complaint was filed in the juvenile court

and appellant was charged with murder in violation of R.C. 2903.02(B), a felony of the

first degree if charged as an adult. This was juvenile case No. JC15249424.01.

2.
 {¶ 6} On August 27, 2015, the state moved the juvenile court to transfer the case

to the general division under R.C. 2152.10(A) and 2152.12(A), because appellant was

charged with a category one offense and was the age of 16 at the time of commission.

{¶ 7} The juvenile court held a hearing on September 17, 2015. At the hearing

appellant stipulated to being born on January 28, 1999, and being the age of 16 at the

time of the conduct for which he was charged. Based on these stipulations and additional

evidence, the court found probable cause existed and the case was bound over.

{¶ 8} On October 2, 2015, an indictment was filed in the general division,

charging appellant with nine counts: (count No. 1) aggravated murder in violation of R.C.

2903.01(B) and (F); (count No. 2) murder in violation of R.C. 2903.02(A) and 2929.02;

(count No. 3) aggravated murder in violation of R.C. 2903.01(B) and (F); (count No. 4)

murder in violation of R.C. 2903.02(A) and 2929.02; (count No. 5) attempted murder in

violation of R.C. 2923.02(A), 2903.02(A) and 2929.02, a felony of the first degree;

(count No. 6) aggravated robbery in violation of R.C. 2911.01(A)(3), a felony of the first

degree; (count No. 7) rape in violation of R.C. 2907.02(A)(2) (B), a felony of the first

degree; (count No. 8) kidnapping in violation of R.C. 2905.01(B)(1) and (C), a felony of

the first degree; and (count No. 9) failure to comply with order or signal of police in

violation of R.C. 2921.331(B) and (C)(5), a felony of the third degree. The charges were

brought under case No. 2015-CR-2648.

{¶ 9} Appellant originally pled not guilty by reason of insanity but, on June 3,

2016, withdrew that plea and pled guilty pursuant to Alford, to count Nos. 1, 3, 5, 7, 8

and 9. The other counts were dismissed.

3.
 {¶ 10} The court engaged in the required colloquy with appellant and found he

was intelligently, knowingly, and voluntarily pleading guilty. The court accepted the

plea and found appellant guilty on count Nos. 1, 3, 5, 7, 8 and 9.

{¶ 11} Sentencing was scheduled for June 23, 2016, and a presentence

investigation report (PSI) was ordered. Appellant’s counsel also requested the court

allow a statement and psychological evaluation from a mental health professional, Dr.

Thomas Sherman, to assist in the sentencing process. The court stated it would review

the reports before sentencing.

{¶ 12} On June 23, 2016, a hearing was held but the court continued the matter

until July 18, 2016, because Sherman’s evaluation report was not made available. The

ordered PSI, however, was provided to the court for review.

{¶ 13} On July 18, 2016, another hearing was held, and based on new precedent of

this court in State v. Ragusa, 6th Dist. Lucas No. L-15-1244, 2016-Ohio-3373, the trial

court again engaged in Crim.R. 11 colloquy with appellant. The court clarified why it

was reengaging appellant, and eventually appellant’s counsel stated that appellant

intended to go forward with the plea.

{¶ 14} The court once more found appellant was intelligently, knowingly, and

voluntarily pleading guilty pursuant to Alford, to count Nos. 1, 3, 5, 7, 8 and 9.

Sentencing was set for July 21, 2016.

{¶ 15} At sentencing, appellant’s counsel made a statement in an effort to

mitigate. The state also made a statement. After the state, the living victim and other

family members made statements regarding the impact the crimes had on their lives.

4.
They also requested appellant be sentenced to the maximum sanctions. The trial court

allowed appellant and his counsel to share remarks prior to sentencing.

{¶ 16} The court then said its final remarks and considerations in imposing

sentence. The court discussed the facts of the case, appellant’s (seven) past delinquency

adjudications, and how appellant ignored the order to not have contact with the victims or

their household.

{¶ 17} The court then imposed sentence, which was journalized on July 22, 2016,

and which was issued as follows:

As to Count 1 (Aggravated Murder): It is ORDERED that

[appellant] serve a term of Life Imprisonment without the possibility of

Parole.

As to Count 3 (Aggravated Murder): It is ORDERED that

[appellant] serve a term of Life Imprisonment without the possibility of

Parole.

As to Count 5 (Attempt To Commit Murder): It is ORDERED that

[appellant] serve a prison term of 10 years.

As to Count 7 (Rape): It is ORDERED that [appellant] serve a

mandatory prison term of 10 years.

As to Count 8 (Kidnapping): It is ORDERED that [appellant] serve

a prison term of 10 years.

5.
 As to Count 9 (Failure To Comply With An Order Or Signal Of A

Police Officer): It is ORDERED that [appellant] serve a prison term of 24

months.

Counts 1, 3, 5, 7, and 9 are ordered to be served consecutively to one

another, but, concurrently to count 8, for a total prison (sic) stated prison

term of Life Imprisonment without the possibility of parole, as to count 1

and 3, plus 20 years and 24 months.

{¶ 18} Appellant filed a timely notice of appeal on August 16, 2016, and now

appeals the sentence imposed.

Assignment of Error No. 1

{¶ 19} Appellant first asserts the general division did not have jurisdiction because

the juvenile court did not conduct an amenability hearing prior to binding over his case.

Appellee contends the general division properly proceeded after the juvenile court

relinquished jurisdiction.

{¶ 20} “[A]bsent a proper bindover procedure pursuant to [R.C. 2152.12], the

juvenile court has the exclusive subject matter jurisdiction over any case concerning a

child who is alleged to be a delinquent.” State v. Wilson, 73 Ohio St.3d 40, 44, 652

N.E.2d 196 (1995). “The exclusive subject matter jurisdiction of the juvenile court

cannot be waived.” Id.

{¶ 21} R.C. 2152.12(A)(1)(a)(i), in relevant part, provides that after a complaint

has been filed alleging a child is a delinquent child for committing an act that would be

murder if committed by an adult, the juvenile court at a hearing shall transfer the case if

6.
the child was sixteen years of age at the time of the act charged and there is probable

cause to believe that the child committed the act charged. (Emphasis added.). See also

In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 22.

{¶ 22} Further, R.C. 2152.12(I) provides:

Upon the transfer of a case under division (A) or (B) of this section,

the juvenile court shall state the reasons for the transfer on the record, and

shall order the child to enter into a recognizance with good and sufficient

surety for the child’s appearance before the appropriate court for any

disposition that the court is authorized to make for a similar act committed

by an adult. The transfer abates the jurisdiction of the juvenile court with

respect to the delinquent acts alleged in the complaint, and, upon the

transfer, all further proceedings pertaining to the act charged shall be

discontinued in the juvenile court, and the case then shall be within the

jurisdiction of the court to which it is transferred.

See, e.g., State v. Beauregard, 8th Dist. Cuyahoga No. 101418, 2015-Ohio-1021, ¶ 25.

{¶ 23} In Beauregard, for example, the Eighth District held that because three

aggravated robberies charged in the delinquency complaint were part of “the same course

of conduct,” the juvenile court had authority to transfer “the entire case pursuant to R.C.

2152.12(I),” upon mandatorily binding over any one of the counts alleged. Id. at ¶ 27.

Beauregard was the age of 16 at the time of committing the chain of robberies, which are

category two offenses, so he was bound over. He argued the juvenile court did not find

7.
probable cause existed for one of the robberies, and therefore, transfer of that specific

count was in error. Id. at ¶ 22. The Eighth District, however, held that “regardless of

whether there was sufficient probable cause regarding the robbery of [victim 3], the

general division had jurisdiction over that count pursuant to R.C. 2152.12(I).” Id. at ¶ 25.

{¶ 24} Likewise, in this case, one charge of murder was brought before the

juvenile court, and a hearing was held on September 17, 2015. The juvenile court found

probable cause existed, and that appellant was the age of 16 at the time of the murder.

The case was transferred and an indictment was filed in the general division. The matter

properly proceeded where the court had jurisdiction over all counts pursuant to R.C.

2152.12(I).

{¶ 25} We note this determination is distinguishable from our recent holding in

State v. Rickard, 6th Dist. Erie Nos. E-16-056, E-16-057, 2017-Ohio-8614.

{¶ 26} In Rickard, we reversed and held the general division did not have

jurisdiction to convict Rickard because no proper bindover occurred in the juvenile court.

Id. at ¶ 21. The original case was for acts alleged to have occurred in January 2016. Id.

at ¶ 3. This original case was properly initiated in and transferred by the juvenile court.

At Rickard’s sentencing, however, the state introduced another case to be consolidated

with that original case. This second case was due to acts from June and July 2016, and

thus were not part of “a course of conduct” with the acts alleged in the transferred case.

See also Beauregard at ¶ 26 (defining “the same course of conduct” as “offenses that

through their similarity, regularity and time between them are concluded to be part of a

single episode, spree, or ongoing series”). We held no proper bindover occurred and the

8.
matter was remanded. Our rationale focused on how a new case was initiated without it

being transferred by the juvenile court.

{¶ 27} Distinguishable from Rickard, appellant here committed the offenses

alleged in a single episode on August 10, 2015. Although he was only charged with

murder in the August 11, 2015 delinquency complaint, the additional eight charges

brought in the October 2, 2015 general division indictment were for acts that were part of

the August 10, 2015 episode and, thus, were part of a “course of conduct.” See

Beauregard, Supra. We find no reversible error in appellant’s conviction based on the

bindover procedure followed below.

{¶ 28} Accordingly, the first assigned error is found not well-taken.

Assignment of Error No. 2

{¶ 29} Appellant’s second assignment of error consists of four arguments. We

will address each, but the fourth will be addressed within the discussion of the second.

A. Cruel and Unusual Punishment

{¶ 30} Appellant argues the imposition of life without the possibility of parole is

cruel and unusual punishment. Appellee contends appellant’s case is one of those rare

and uncommon cases where the sanction is appropriately imposed.

{¶ 31} The Eighth Amendment to the U.S. Constitution states, “Excessive bail

shall not be required, nor excessive fines imposed, nor cruel and unusual punishments

inflicted.” State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, ¶ 8 (“Long

II”).

9.
 {¶ 32} “Central to the Constitution’s prohibition against cruel and unusual

punishment is the precept of justice that punishment for crime should be graduated and

proportioned to [the] offense.” See In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967

N.E.2d 729, ¶ 25, quoting Weems v. U.S., 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793

(1910).

{¶ 33} As applied to juveniles, the United States Supreme Court has held that the

Eighth Amendment prohibits the imposition of the death penalty and the imposition of

life without the possibility of parole for nonhomicide offenses. (Emphasis added.) Roper

v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); Graham v. Florida,

560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). More recently, the Eighth

Amendment was held to ban mandatory life-without-parole sentences on juveniles in

Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).

{¶ 34} Nevertheless, the Supreme Court of Ohio has clarified Ohio’s sentencing

scheme does not run afoul Miller “because the sentence of life without parole is

discretionary” when applied to “a juvenile found guilty of aggravated murder.” Long II

at ¶ 19.

{¶ 35} Based on the authority of Long II, we find it was not error for the court to

exercise discretion in sentencing appellant to consecutive terms of life without parole for

aggravated murders. Such a case, which results in two aggravated murder convictions,

most likely will always be among those rare and uncommon cases where the sanction is

appropriately imposed. The trial court did not violate the prohibition against cruel and

unusual punishment in that regard, and the first argument is not well-taken.

10.
 B. Irreparable Corruption

{¶ 36} Appellant asserts the trial court erred in failing to declare his acts reflected

irreparable corruption, which he argues is a finding required by Roper, Graham, and

Miller, as elaborated on in Montgomery v. Louisiana, ___U.S.___, 136 S.Ct. 718, 726-

737, 193 L.Ed.2d 599 (2016). Appellee contends the court was not required to make a

finding of fact regarding appellant’s incorrigibility, and that appellant did not and cannot

argue the murders committed reflected transient immaturity.

{¶ 37} As stated in Montgomery, “Miller required that sentencing courts consider

a child’s diminished culpability and heightened capacity for change before condemning

him or her to die in prison.” (Citation omitted). Id. at 726. “Although Miller did not

foreclose a sentencer’s ability to impose life without parole on a juvenile, the Court

explained that a lifetime in prison is a disproportionate sentence for all but the rarest of

children, those whose crimes reflect ‘irreparable corruption.’” Id., quoting Miller, 567

U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407.

{¶ 38} “The age of the offender and the nature of the crime each bear on the

analysis.” Graham v. Florida, 560 U.S. 48, 69, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).

“The question is whether [the offender] can be deemed, at the time of sentencing, to be

irreparably corrupt, beyond redemption, and thus unfit ever to reenter society,

notwithstanding the diminished culpability and greater prospects for reform that

ordinarily distinguish juveniles from adults.” People v. Palafox, 231 Cal.App.4th 68, 91,

179 Cal.Rptr.3d 789 (2014) (affirming consecutive terms of life imprisonment under

11.
discretionary sentencing for murders committed by a 16-year-old). See also Montgomery

at 734 (“Miller did bar life without parole, however, for all but * * * those whose crimes

reflect permanent incorrigibility.).

{¶ 39} Initially, we find the trial court discussed how and why youth generally

weighs against imposing life without parole. At sentencing, the court stated:

First, children have a lack of maturity and an underdeveloped sense

of responsibility leading to reckless, impulsive, and heedless risk-taking.

Second, children are more vulnerable to negative influences and outside

pressures including family and peers. They have limited control over their

environment and a lack of ability to extricate themselves from horrific,

crime-producing settings. Third, a child’s character is not as well-formed

as an adult’s. His traits are less fixed and his actions are less likely to be

evidence of an irretrievable depravity. The offender’s youth at the time of

the offense must still be weighed against any statutory consideration that

might make an offense more serious or an offender more likely to

recidivate.* * *

(Emphasis added.)

{¶ 40} Next, we find the court discussed how “the nature of the offense[] to which

this harsh penalty” applies in this case was unprecedentedly violent. Graham at 69. At

sentencing, the court stated:

These were crimes of rage and control. They were not the first or

second, but they were the third in a series of offenses committed by the

12.
 [appellant] against [the daughter]. These were not crimes of passion, but

they were premeditated. They were depraved. They were monstrous.

These were crimes of a nature not previously seen in this community.

(Emphasis added.)

{¶ 41} We will also address appellant’s fourth argument, in which he asserts the

court failed to “specifically and separately” consider his youth as a mitigating factor.

i. Considering Offender’s Youth

{¶ 42} We agree appellant’s age factors against imposing a life sentence without

the possibility of parole because youth is, as a matter of law, a mitigating factor. See

Montgomery at 726, ___U.S.___, 136 S.Ct. 718, 736-737, 193 L.Ed.2d 599.

{¶ 43} “Although Miller does not require that specific findings be made on the

record, it does mandate that a trial court consider as mitigating the offender’s youth and

its attendant characteristics before imposing a sentence of life without parole.” Long II,

138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, at ¶ 27.

{¶ 44} Here, the court was made aware of the mitigating effect of appellant’s

youth by trial counsel and the state, and the court explicitly confirmed it understood

appellant’s youth was a mitigating factor.

{¶ 45} At sentencing, appellant’s counsel made a statement about appellant and

his youth in an effort to mitigate. Specifically, counsel discussed how juveniles are

different than adults, and how appellant’s rage and resulting crimes were reflection of his

immaturity.

13.
 {¶ 46} The state also mentioned the court must consider appellant’s youth as a

mitigating factor. The state specifically said the court “must take into account how

[appellant was] different because he is a juvenile” who, as a result of being young, was

“reckless and immature,” was “vulnerable to negative outside influences,” and had

“character [that was] not well-formed.” The state followed contending the crimes had

nothing to do with immaturity, that jealousy and rage are what drove appellant, that no

outside influences led to the crimes, and that there was nothing extraordinary in

appellant’s history to suggest the court should be lenient in sentencing.

{¶ 47} Lastly, the transcript reflects the court explicitly stated its obligations under

Long II. The court recognized Long II was “the law relevant to sentencing a juvenile

who faces the potential sentence of life without the possibility of parole.” The court

discussed how Long II requires “the youth of a juvenile offender” be separately

considered “as a mitigating factor before imposing a life sentence without parole[.]”

Also noted was how “the record must reflect that the trial court specifically considered

the juvenile offender’s youth as a mitigating factor[.]”

{¶ 48} Accordingly, based on the statements made in open court, we find

appellant’s youth as a mitigating factor was extensively argued, considered, balanced and

weighed. Any argument to the contrary is meritless.

ii. Considering the Nature of the Offenses

{¶ 49} Further, we agree with the trial court that the nature of the offenses

committed is unprecedentedly violent and heinous.

14.
 {¶ 50} We primarily note “[juvenile offenders] who do not kill, intend to kill, or

foresee that life will be taken are categorically less deserving of the most serious forms of

punishment than are murderers.” See Graham at 69, 560 U.S. 48, 130 S.Ct. 2011, 176

L.Ed.2d 825, citing to Kennedy v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d

525 (2008); Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982);

Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987); and Coker v.

Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977).

{¶ 51} However, appellant here was indeed a “murderer.” Id. In fact, he was

found guilty of two counts of aggravated murder. We find this case is certainly rare and

uncommon due to the evil disregard for life appellant exhibited when he intentionally

ended two lives and attempted to end another. This is not a case in which transient

immaturity or an outside influence was a contributing factor; and to the contrary, the

record reveals appellant was the sole perpetrator to plan and commit such heinous and

inexcusable acts.

iii. Additional Considerations

{¶ 52} Based on its factoring of appellant’s youth and the nature of the crimes, we

cannot say the trial court failed to adequately consider or address how appellant’s acts

reflected irreparable corruption. Even going beyond those factors, we find the record

supports a finding of irreparable corruption. The court thoroughly explained its thoughts

and reasons for imposing consecutive terms of life without parole, there implying the

crimes at issue reflected irreparable corruption. See Montgomery at 734, ___U.S.___,

136 S.Ct. 718, 736-737, 193 L.Ed.2d 599 (clarifying Miller does not require courts make

15.
or state findings of fact regarding a child’s incorrigibility). Based on the explanation as

to why it was imposing the specific sanctions, we can say with certainty that the court

reflected on the magnitude and impact the crimes had on the people present and on the

community as a whole.

{¶ 53} More specifically, the record reveals before sentencing appellant the court

considered the disturbing facts as a guide and stated that it balanced the likelihood of

recidivism factors. The court also dismissed the argument that the crimes committed

were one-time acts of passion, which was a position put forth by appellant and his expert

witness, Dr. Sherman. The court discussed the impact on the victims and their property,

appellant’s criminal record, the seriousness of the conduct, and the danger appellant

posed to the public. Based on its statements, the court imposed sentence in accordance

with the criteria under R.C. 2929.11 and 2929.12. Accordingly, we find no error in the

judgment and conclusion that the crimes reflected irreparable corruption. Although the

court did not repeatedly say “irreparable corruption,” the necessary factors were

considered. Any argument to the contrary is meritless.

C. Impossibility of Finding Youth Irreparable

{¶ 54} Lastly addressed, appellant asserts it is impossible to find a juvenile’s acts

reflect irreparable corruption because no juvenile mind is fully developed. Appellee does

not directly address this argument, but does assert appellant did not put forth this position

at trial and, hence, must and cannot meet the plain-error standard.

16.
 {¶ 55} For persuasive support appellant cites an opinion from the Supreme Court

of Iowa, wherein the court addressed the impossibility of declaring a child’s acts reflect

irreparable corruption. See State v. Sweet, 879 N.W.2d 811 (Iowa 2016).

{¶ 56} In Sweet, a 17-year-old killed his maternal grandparents and was charged

with two counts of first-degree murder. At trial Sweet reached a plea deal, and the court

accepted the plea and requested a presentence investigation (PSI) report before

sentencing. The PSI report revealed Sweet suffered from a turbulent family dynamic and

life, depression or bipolar disorder, being raped at the age of four, alcohol and drug

abuse, attention deficit disorder, and physical and mental abuse by the victim-

grandfather.

{¶ 57} At sentencing Sweet offered testimony of Dr. Stephen Hart, a qualified

expert in the field of clinical psychology. Hart reviewed medical records and interviewed

Sweet prior to testifying. Hart summarized his scientific understanding of the adolescent

brain, and introduced to the record the school of thought that “until the age of about

twenty-five there is a period of rapid change or development in the adolescent brain.” Id.

at 815. Hart stated “the earliest a determination could be made regarding Sweet’s

potential for rehabilitation was age thirty.” Id. at 816. This was due to Sweet’s youth.

{¶ 58} Despite Hart’s testimony, the Sweet lower court sentenced Sweet to life in

prison without the possibility of parole.

{¶ 59} On direct appeal, the Supreme Court of Iowa (“the Sweet court”)

summarized the lower court judgment as follows:

17.
 The district court noted that Sweet was seventeen years and three

months old at the time of the murder[s]. While his maturity was debatable,

the district court stressed that the crimes were premeditated. The district

court felt that Dr. Hart’s characterization of Sweet’s possibility of

rehabilitation as mixed was overly optimistic. Further, the district court

found Sweet’s case was the rare case in which a sentence of life without the

possibility of parole was warranted, as the murders were horrific and

showed utter lack of humanity. The district court concluded that Sweet was

currently, and will continue to be, a threat to society and that the interests of

justice and community safety outweighed mitigating factors.

Sweet at 816.

{¶ 60} The main issue on appeal was “whether the small number of juvenile

offenders convicted of murder may be sentenced at time of trial to life in prison without

the possibility of parole or whether such a determination must be made at a later date by a

parole board.” Id. at 836. In addressing the issue, the court concluded that “sentencing

courts should not be required to make speculative up-front decisions on juvenile

offenders’ prospects for rehabilitation because they lack adequate predictive information

supporting such a decision.” Id. at 839. The court further found “[t]he parole board [is]

better able to discern whether the offender is irreparably corrupt after time has passed,

after opportunities for maturation and rehabilitation have been provided, and after a

record of success or failure in the rehabilitative process is available.” Id. The matter was

remanded for Sweet to be resentenced to a prison term where he could later seek parole.

18.
 {¶ 61} Consistent with Sweet, appellant here argues it was impossible for the trial

court to find the aggravated murders, rape and attempted murder he committed reflect

irreparable corruption because his mind was and is not yet developed.

{¶ 62} We find this position is not well-taken because it undermines the court’s

power to sentence and limits the court’s statutorily granted discretion.

i. Power to Sentence

{¶ 63} “The judicial power of the state is vested in a supreme court, courts of

appeals, courts of common pleas and divisions thereof[.]” See Ohio Constitution, Article

IV, Section 1. “The several judges* * * of the common pleas * * * shall* * * have and

exercise such power and jurisdiction, at chambers, or otherwise, as may be directed by

law.” (Emphasis added.) See Ohio Constitution, Article IV, Section 18.

{¶ 64} As “directed by law,” id., the power of the judiciary includes the power to

sentence a convicted offender. See R.C. 2152.12(I), supra, (“the case then shall be within

the jurisdiction of the court to which it is transferred”); R.C. 2929.03(A)(1)(a), infra,

(stating that for aggravated murder “the trial court shall impose one of the following

sentences on the offender”); Crim.R. 32(C) (providing that a judgment of conviction shall

set forth the sentence and judge’s signature); State v. Byers, 7th Dist. Columbiana No. 07-

CO-39, 2008-Ohio-5051, ¶ 70 (exploring the “judiciary branch” and “its power to

sentence”).

{¶ 65} This power in the judiciary has existed for Ohio common pleas courts since

the inception of the state’s Constitution, which explicitly stated “the judges of the court

19.
of common pleas shall by virtue of their offices, be conservators of the peace in their

respective counties.” See Ohio Constitution of 1802, Article 3, Section 7.

{¶ 66} Therefore, because this power to sentence is granted to the common pleas

court, in this case we find to disallow the court from finding impliedly or otherwise that

an episode in which appellant committed two aggravated murders, a rape, and an

attempted murder reflects irreparable corruption undermines that power.

ii. Court Discretion

{¶ 67} Furthermore, often granted with this power to sentence is discretion to

impose specific sanctions typically within statutory guidelines and ranges.

{¶ 68} For example, R.C. 2929.03(A) provides possible sanctions for offenders

who commit aggravated murder.

(A) If the indictment or count in the indictment charging aggravated

murder does not contain one or more specifications of aggravating

circumstances listed in division (A) of section 2929.04 of the Revised

Code, then, following a verdict of guilty of the charge of aggravated

murder, the trial court shall impose sentence on the offender as follows:

(1) Except as provided in division (A)(2) 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;

20.
 (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;* * *

(Emphasis added.) See R.C. 2929.03(A)(1)(a)-(d).

{¶ 69} Pursuant to R.C. 2929.03(A)(1)(a), appellant here was sentenced to

consecutive terms of “Life imprisonment without parole.” Imposition of these sanctions

required an exercise of discretion to determine whether appellant’s crimes reflected

irreparable corruption as mandated in Miller, supra. Forbidding such a finding due to

appellant’s youth, as held in Sweet, limits the court’s sentencing discretion.

{¶ 70} We note review of Ohio case law supports exercising discretion and

sentencing juveniles to life without parole despite their undeveloped minds. See, e.g.,

State v. Long, 1st Dist. Hamilton No. C-140398, 2015-Ohio-2114, ¶ 16-18 (“Long III”);

State v. Lane, 11th Dist. Geauga No. 2013-G-3144, 2014-Ohio-2010, ¶ 82-109; State v.

Rafferty, 9th Dist. Summit No. 26724, 2015-Ohio-1629, ¶ 120-125; State v. Roark, 3d

Dist. Mercer No. 10-14-11, 2015-Ohio-3811, ¶ 22- 23.

iii. Plain Error

{¶ 71} As a final note, we find convincing appellee’s assertion that appellant did

not put forth this argument at trial and, therefore, must meet the plain-error standard.

{¶ 72} “The failure to raise a constitutional issue at the trial level waives the right

to advance a constitutional argument at the appellate level.” City of Toledo v. Jenkins,

6th Dist. Lucas No. L-14-1164, 2015-Ohio-1270, ¶ 15, citing State v. Traxler, 6th Dist.

21.
Williams No. WM-06-005, 2007-Ohio-2025. Absent plain error, “appellant waived his

constitutional arguments.” Traxler at ¶ 18, citing Crim.R. 52(B) (“[P]lain error that

affects a substantial right may, even in the absence of an objection, be considered [on

appeal].”).

{¶ 73} Plain-error applies where: (1) the trial court erred or deviated from a legal

rule; and, (2) that error or deviation prejudiced appellant, or affected his or her substantial

rights. See, e.g., State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶

7.

{¶ 74} We first find no error or deviation from law in this case, as we decline to

subscribe to the rationale put forth in Sweet which supports that it is impossible for a trial

court to find a juvenile’s offenses reflect irreparable corruption. See Sweet, 879 N.W.2d

at 839.

{¶ 75} We second find there is no evidence in the record supporting appellant’s

rehabilitative process has been a success. Thus we cannot say he has been prejudiced by

the imposition of life without parole.

{¶ 76} Consequently this is not the exceptional case where the plain-error doctrine

applies. See State v. Long, 53 Ohio St.2d 91, 95, 372 N.E.2d 804 (1978) (“The plain

error rule is to be invoked only in exceptional circumstances to avoid a miscarriage of

justice.”). We therefore find multiple grounds to dispose of this third argument, and

appellant’s second assignment of error fails in its entirety.

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 Conclusion

{¶ 77} For the foregoing reasons, the judgment of the Lucas County Court of

Common Pleas is affirmed. Appellant is ordered to pay costs pursuant to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J. _______________________________
JUDGE
James D. Jensen, J.
_______________________________
Christine E. Mayle, P.J. JUDGE
CONCUR.
_______________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.

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