State v. Patrick (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Patrick, Slip Opinion No. 2020-Ohio-6803.]

NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.

SLIP OPINION NO. 2020-OHIO-6803
THE STATE OF OHIO, APPELLEE, v. PATRICK, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Patrick, Slip Opinion No. 2020-Ohio-6803.]
Criminal law—R.C. 2953.08(D)(3) does not preclude an appellate court from
reviewing a sentence imposed by a trial court for aggravated murder when
a defendant raises a constitutional claim regarding that sentence on
appeal—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—Court of appeals’ judgment reversed and cause remanded.
(No. 2019-0655—Submitted July 8, 2020—Decided December 22, 2020.)
APPEAL from the Court of Appeals for Mahoning County,
No. 17 MA 0091, 2019-Ohio-1189.
_________________
O’CONNOR, C.J.
{¶ 1} In this discretionary appeal, we consider whether R.C. 2953.08(D)(3)
precludes an appellate court from reviewing a sentence imposed by a trial court for
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aggravated murder when a defendant raises a constitutional claim regarding that
sentence on appeal. We hold that R.C. 2953.08(D)(3) does not preclude an
appellate court from doing so.
{¶ 2} Because we conclude that the statute does not preclude an appeal of a
sentence on constitutional grounds, we must also determine whether a trial court’s
imposition of a life-imprisonment sentence with parole eligibility upon a juvenile
offender, without consideration of the offender’s youth as a mitigating factor,
violates the Eighth and Fourteenth Amendments to the United States Constitution
and Article I, Section 9 of the Ohio Constitution. We hold that, consistent with our
decision in State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, 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.
I. RELEVANT BACKGROUND
{¶ 3} Appellant, Kyle Patrick, was charged in the Mahoning County
Juvenile Court with offenses stemming from the fatal shooting of Michael
Abinghanem that occurred in April 2012, when Patrick was 17 years old. The facts
of Patrick’s offenses are not relevant for the purposes of resolving this appeal but
are set forth in the decision of the Seventh District Court of Appeals below, 2019-
Ohio-1189, ¶ 6, 29-36.
{¶ 4} Patrick was bound over to be tried as an adult in the Mahoning County
Court of Common Pleas. He was indicted on one count of aggravated murder in
violation of R.C. 2903.01(B), one count of aggravated robbery in violation of R.C.
2911.01(A)(1), one count of tampering with evidence in violation of R.C.
2921.12(A)(1), and two firearm specifications pursuant to R.C. 2941.145(A). On
February 10, 2014, Patrick pleaded guilty to one count of murder with a one-year
firearm specification, one count of aggravated robbery with a one-year firearm
specification, and tampering with evidence.

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{¶ 5} Prior to sentencing, Patrick moved to withdraw his guilty plea. The
trial court denied the motion and on June 19, 2014, the court sentenced Patrick to
an aggregate sentence of life imprisonment with parole eligibility after 16 years.
His sentence consisted of life imprisonment with parole eligibility after 15 years
for the murder offense, to be served consecutively to the 1-year prison sentence for
the firearm specifications, and 11 years in prison for the aggravated-robbery offense
and 3 years in prison for the tampering-with-evidence offense, to be served
concurrently with the other sentences.
{¶ 6} Patrick appealed the trial court’s judgment denying his motion to
withdraw his guilty plea to the Seventh District, which reversed the trial court’s
judgment and remanded the matter for further proceedings. State v. Patrick, 2016-
Ohio-3283, 66 N.E.3d 169 (7th Dist.). Following a jury trial on the original
charges, the jury found Patrick guilty on all counts: aggravated murder, aggravated
robbery, tampering with evidence, and the firearm specifications.
{¶ 7} The trial court merged the aggravated-robbery conviction and its
accompanying firearm specification with the aggravated-murder conviction and its
accompanying firearm specification. The trial court then sentenced Patrick to life
imprisonment with parole eligibility after 30 years for the aggravated-murder
offense, plus a consecutive, mandatory 3-year prison term for the firearm
specification. The court also sentenced Patrick to 3 years in prison for the
tampering-with-evidence offense, to run concurrently with the other sentences.
Thus, the trial court ordered Patrick to serve life in prison with parole eligibility
after 33 years. The court stated in its sentencing entry that it had “considered the
record, oral statements, as well as the principles and purposes of sentencing under
Ohio Revised Code Section 2929.11, and ha[d] balanced the seriousness and
recidivism factors of Ohio Revised Code Section 2929.12.”
{¶ 8} On appeal to the Seventh District, Patrick argued that the trial court
had failed to consider his youth when it imposed a life sentence and therefore his

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sentence violated the Eighth and Fourteenth Amendments to the United States
Constitution and Article 1, Section 9 of the Ohio Constitution. The court of appeals
rejected this argument, concluding that Patrick’s sentence was distinguishable from
those at issue in decisions of the United States Supreme Court considering Eighth
Amendment challenges by juvenile offenders, because Patrick would be eligible
for parole after 33 years. 2019-Ohio-1189 at ¶ 15. The Seventh District also
concluded, “Pursuant to R.C. 2929.12, a trial court is not required to consider the
age of a defendant when issuing a felony sentence. While R.C. 2929.12(C) and (E)
provide that ‘any other relevant factors’ should be considered, the statute itself does
not mandate the sentencing court to consider the defendant’s age.” Id. at ¶ 16. As
a result, the Seventh District affirmed the trial court’s judgment. Id. at ¶ 13, 15-19.
{¶ 9} This court accepted discretionary review of Patrick’s first proposition
of law:

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 those provisions.

See 156 Ohio St.3d 1463, 2019-Ohio-2892, 126 N.E.3d 1167.
{¶ 10} This court held oral argument on April 28, 2020. On May 1, 2020,
we sua sponte ordered supplemental briefing on the following issues: “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.” 158 Ohio St.3d 1494, 2020-
Ohio-2746, 144 N.E.3d 428.

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II. ANALYSIS
{¶ 11} We first address the subject of our supplemental-briefing order.
Because we conclude that Patrick’s constitutional challenge to his sentence is not
barred by R.C. 2953.08(D)(3), we then address the issue raised in Patrick’s
proposition of law.
A. R.C. 2953.08(D)(3) does not preclude an appellate court from considering
the constitutionality of an aggravated-murder sentence imposed on a juvenile
offender tried as an adult
{¶ 12} R.C. 2953.08 was enacted in 1996 as part of Am.Sub.S.B. No. 2, 146
Ohio Laws, Part IV, 7136, and its companion legislation, Am.Sub.S.B. No. 269,
146 Ohio Laws, Part VI, 10752 (collectively referred to as “S.B. 2”). 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), however, 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.
{¶ 13} Patrick argues that R.C. 2953.08 created a new right to appeal a
felony sentence in addition to any other right to appeal. He argues that the statutory
preclusion against review of aggravated-murder sentences contained in R.C.
2953.08(D)(3) does not apply to his appeal, because he did not invoke appellate
jurisdiction under R.C. 2953.08. In fact, Patrick concedes that if an appellant seeks
review of an aggravated-murder sentence under R.C. 2953.08, the appellate court
would be precluded from conducting that review by R.C. 2953.08(D)(3). But
Patrick distinguishes his appeal as a constitutional challenge to the sentencing
process and, he argues, this court can review such challenges under R.C. 2505.03
and 2953.02. Finally, Patrick argues that if we accept the state’s argument that R.C.

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2953.08(D)(3) precludes any appellate review of aggravated-murder sentences,
then the provision is unconstitutional.
{¶ 14} The state argues that R.C. 2953.08 is the exclusive route to appeal a
felony sentence, unless a more specific statute applies. It argues that no more
specific statute provides a basis for Patrick to appeal his aggravated-murder
sentence and that neither R.C. 2505.03 nor R.C. 2953.02 applies to Patrick’s appeal.
1. R.C. 2953.08 is not the exclusive basis for appealing a sentence
{¶ 15} It is clear from the language in R.C. 2953.08 that the statute does not
establish the only basis by which a party may appeal a sentence. R.C. 2953.08(A)
begins by stating, “In addition to any other right to appeal * * *, 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 on one of the following grounds * * *.”
(Emphasis added.) The language “[in] addition to any other right to appeal”
appears again in R.C. 2953.08(B) regarding appeals by the prosecution. Also, R.C.
2953.08(E) states, “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.” (Emphasis
added.) These provisions referring to other methods of appeal make clear that R.C.
2953.08 does not prescribe the sole right to appeal a criminal sentence.
{¶ 16} Indeed, R.C. 2953.02 also provides a right to appeal a judgment or
final order to the court of appeals “[i]n 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 * * *.” (Emphasis added.) R.C. 2953.02 also provides, “A judgment
or final order of the court of appeals involving a question arising under the
Constitution of the United States or of this state may be appealed to the supreme
court as a matter of right.” The final judgment for purposes of appeal under R.C.
2953.02 is the sentence. See, e.g., State v. Danison, 105 Ohio St.3d 127, 2005-
Ohio-781, 823 N.E.2d 444, ¶ 6 (“Generally, in a criminal case, the final judgment

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is the sentence”); Columbus v. Taylor, 39 Ohio St.3d 162, 165, 529 N.E.2d 1382
(1988) (the final judgment in a criminal case is the sentence and the sentence is the
judgment); State v. Hunt, 47 Ohio St.2d 170, 174, 351 N.E.2d 106 (1976)
(“Generally, the sentence in a criminal case is the judgment”); State v.
Chamberlain, 177 Ohio St. 104, 106, 202 N.E.2d 695 (1964) (same); State v.
Thomas, 175 Ohio St. 563, 564, 197 N.E.2d 197 (1964) (“the sentence is the
judgment from which an appeal lies”); see also Berman v. United States, 302 U.S.
211, 212, 58 S.Ct. 164, 82 L.Ed. 204 (1937) (“Final judgment in a criminal case
means sentence. The sentence is the judgment”). Thus, R.C. 2953.02 also provides
a statutory right to appeal a criminal sentence.
{¶ 17} Moreover, the preclusive language in R.C. 2953.08(D)(3)
demonstrates that its scope is limited to the bases of appeal described in R.C.
2953.08. It 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.” (Emphasis added.) Id. In other words, R.C.
2953.08(D)(3) does not determine whether a sentence imposed for aggravated
murder is subject to review under any other statutory provision. In that way, R.C.
2953.08(D)(3)’s statutory language makes clear that it does not preclude other
potential avenues of appellate review. Thus, contrary to the state’s argument, there
is no indication in the language of R.C. 2953.02 and 2953.08 that the rights to
appeal described in the statutes conflict with each other.
{¶ 18} In order to determine whether R.C. 2953.08(D)(3) precludes
Patrick’s appeal, we must look to the scope of the right to appeal provided in R.C.
2953.08 to see if Patrick’s appeal—a constitutional challenge—is permitted under
that statute.

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2. R.C. 2953.08(D)(3) does not preclude an appellate court’s review of a
constitutional challenge to a sentence for aggravated murder or murder
{¶ 19} In his appeal to the Seventh District, Patrick challenged the
constitutionality of his sentence under the Eighth and Fourteenth Amendments to
the United States Constitution and Article I, Section 9 of the Ohio Constitution.
That is also the basis of the proposition of law that this court accepted for
discretionary review. Thus, it is clear that Patrick has raised a constitutional
challenge to his aggravated-murder sentence.
{¶ 20} Next, we look to the bases of appeal described in R.C. 2953.08 to
determine if they permit a constitutional challenge to a felony sentence. R.C.
2953.08(A)(1) and (5) describe the grounds for appeal if certain sentences are
imposed pursuant to R.C. 2929.14 or 2929.142. R.C. 2953.08(A)(2) applies to
sentences including a prison term imposed for a fourth- or fifth-degree felony or a
felony drug offense that could be subject to only a community-control sanction
under R.C. 2929.13(B). R.C. 2953.08(A)(3) applies to sentences imposed pursuant
to R.C. 2971.03. R.C. 2953.08(C) applies to consecutive sentences imposed under
R.C. 2929.14(C)(3) and certain additional sentences imposed under R.C. 2929.14.
{¶ 21} Patrick was sentenced under R.C. 2929.03, so none of the above-
mentioned provisions describe a basis for an appeal of his sentence. And, of course,
none describe a constitutional challenge to a sentence.
{¶ 22} R.C. 2953.08(A)(4) provides that a defendant may appeal a felony
sentence on the basis that the sentence “is contrary to law.” The term “contrary to
law appeared in R.C. 2953.08(A)(4) when R.C. 2953.08 was enacted through S.B.
2 in 1996. By that time, “contrary to law” had been defined as “in violation of
statute or legal regulations at a given time.” See, e.g., Black’s Law Dictionary 328
(6th Ed.1990). Also, we “consider the statutory language in context, construing
words and phrases in accordance with rules of grammar and common usage.” State
Farm Mut. Auto. Ins. Co. v. Grace, 123 Ohio St.3d 471, 2009-Ohio-5934, 918

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N.E.2d 135, ¶ 25. All the other bases of appeal described in R.C. 2953.08(A) relate
to whether the trial court followed statutory sentencing requirements. Reading R.C.
2953.08(A)(4) in that context, it follows that the “contrary to law” basis of appeal
is of a similar nature. Thus, we conclude that R.C. 2953.08(A)(4) does not describe
an appeal taken on constitutional grounds and that such an appeal is not an appeal
“under this section,” as described in R.C. 2953.08(D)(3). Accordingly, R.C.
2953.08(D)(3) does not preclude an appeal of a sentence for aggravated murder or
murder that is based on constitutional grounds.
{¶ 23} We now proceed to the merits of Patrick’s appeal.
B. A trial court must articulate its consideration of 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
{¶ 24} Patrick argues that based on the significant body of caselaw
explaining the differences between juveniles and adults for sentencing purposes,
“there is nothing constitutionally distinguishable about this case that warrants a
court in failing to account for youth as a mitigating factor in its sentencing
decision.”
{¶ 25} The state argues that a trial court is required to consider a juvenile
offender’s youth and to articulate that consideration in its sentencing decision only
before imposing life imprisonment without the possibility of parole. The state also
argues that when an offender is afforded the possibility of parole, the concerns
about a juvenile offender’s culpability and the possibility of rehabilitation
addressed by this court in Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890,
do not exist. Finally, the state argues that a sentencing court need not explicitly
articulate its consideration of the offender’s youth on the record and that an
appellate court may presume it was considered.

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1. Age is a relevant sentencing factor under R.C. 2929.12 when a trial court
sentences an offender who was a juvenile when he or she committed the offense
{¶ 26} At the outset, we must address the Seventh District’s conclusion
below that “[p]ursuant to R.C. 2929.12, a trial court is not required to consider the
age of a defendant when issuing a felony sentence. While R.C. 2929.12(C) and (E)
provide that ‘any other relevant factors’ should be considered, the statute itself does
not mandate the sentencing court to consider the defendant’s age.” 2019-Ohio-
1189 at ¶ 16.
{¶ 27} The United States Supreme Court “has repeatedly noted to us that
minors are less mature and responsible than adults, that they are lacking in
experience, perspective, and judgment, and that they are more vulnerable and
susceptible to the pressures of peers than are adults.” Long at ¶ 33 (O’Connor, C.J.,
concurring), citing J.D.B. v. North Carolina, 564 U.S. 261, 273-276, 131 S.Ct.
2394, 180 L.Ed.2d 310 (2011). And in Long, we expressly held that “youth is a
mitigating factor for a court to consider when sentencing a juvenile.” Id. at ¶ 19.
The fact that these statements about youth and its attendant characteristics were
made in cases addressing constitutional questions does not mean those
characteristics are present only in such cases. They are characteristics inherent to
juveniles in all cases. See Miller v. Alabama, 567 U.S. 460, 473, 132 S.Ct 2455,
183 L.Ed.2d 407 (2012) (“[N]one of what [Graham v. Florida, 560 U.S. 48, 130
S.Ct. 2011, 176 L.Ed.2d 825 (2010)] said about children—about their distinctive
and (transitory) mental traits and environmental vulnerabilities—is crime specific.
Those features are evident in the same way, and to the same degree, when * * * a
botched robbery turns into a killing”). Thus, contrary 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).

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{¶ 28} Of course, consideration of an offender’s youth and its attendant
characteristics does not demand a certain result. See Long, 138 Ohio St.3d 478,
2014-Ohio-849, 8 N.E.3d 890, at ¶ 37 (O’Connor, C.J., concurring) (“I caution that
our law requires only that youth be considered as a factor. It does not mandate any
particular result from that consideration”). And the scope of a trial court’s
consideration of youth must depend on the constitutional concerns present. “The
constitutional question, then, is how much to consider an offender’s youth, and how
much to consider his crime.” Id. at ¶ 35 (O’Connor, C.J., concurring).
2. A sentence of life imprisonment with parole eligibility triggers the same scope
of Eighth Amendment concern and need for consideration of youth during
sentencing that we recognized in Long
{¶ 29} Here, we are asked to determine whether a sentence of life in prison
with parole eligibility after 33 years imposed on a juvenile offender triggers the
same scope of Eighth Amendment concern and sentencing consideration that we
recognized in Long. We conclude that it does.
{¶ 30} In Long, we held that consistent with the United States Supreme
Court’s decision in Miller, 567 U.S. at 473, 132 S.Ct 2455, 183 L.Ed.2d 407, “[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 paragraph one of the syllabus. We also held that
“[t]he record must reflect that the court specifically considered the juvenile
offender’s youth as a mitigating factor at sentencing when a prison term of life
without parole is imposed.” Id. at paragraph two of the syllabus.
{¶ 31} We recognize that, unlike the defendant in Long, Patrick was not
sentenced to life imprisonment without the possibility of parole. But under R.C.
2929.03(A)(1), the relevant sentencing statute in both this case and Long, life
without parole was a potential sentence for Patrick. The trial court’s discretionary-
sentencing task required it to choose from a number of life-sentencing options, with

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or without parole. In that way, the court’s individualized sentencing consideration
here differed little from the sentencing court’s individualized sentencing
consideration in Long.
{¶ 32} R.C. 2929.03(A)(1) gives a sentencing court a range of life-term
options: life without parole, life with parole eligibility after serving 20 years in
prison, life with parole eligibility after serving 25 years in prison, and life with
parole eligibility after serving 30 years in prison. Even when the state recommends
against a sentence of life without parole, as it did here, that sentence remains an
option under the trial court’s discretion. If, as Miller instructs, youth and its
attendant characteristics must be considered when a court imposes its harshest
penalties, see Miller at 477-478, then youth is also a necessary consideration when
a sentencing court determines at what point parole eligibility should be available
during a life sentence.
{¶ 33} 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). Parole eligibility does not guarantee a defendant’s
release from prison. As noted in the brief of amici curiae Office of the Ohio Public
Defender et al., Ohio’s parole-release rate was only 10.2 percent between 2011 and
2018. Bischoff, Ohio Parole Board Under Fire from Victims, Inmates, and
Lawmakers, Dayton Daily News (Apr. 7, 2019), available at
https://www.daytondailynews.com/news/state—regional-govt—politics/ohio-
parole-board-under-fire-from-victims-inmates-and-lawmakers/v3iPhe6kmV9w
Tm8SOxCpzO/ (accessed Nov. 25, 2020) [https://perma.cc/E4P3-HZRY]. In this

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way, Patrick’s sentence varies little from the state’s harshest punishment for a
juvenile offender who is tried as an adult.
{¶ 34} We also note a relevant distinction between Patrick’s sentence and
the sentence at issue in State v. Moore, 149 Ohio St.3d 557, 2016-Ohio-8288, 76
N.E.3d 1127. That case involved a juvenile who committed nonhomicide offenses
and received a 112-year aggregate prison sentence. Id. at ¶ 12-13, 16. This court
considered the impact of the Supreme Court’s categorical prohibition on the
imposition of life-without-parole sentences on juveniles for nonhomicide offenses
announced in Graham, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825, and
concluded that Moore’s sentence was unconstitutional because he would not be
eligible for judicial release until he was 92 years old. Moore at ¶ 30, 64.
{¶ 35} To be sure, Patrick was sentenced to life in prison with parole
eligibility after 33 years. Any suggestion that Patrick’s eligibility for parole in his
50s gives him a “meaningful opportunity to obtain release,” Moore at ¶ 47, is
misplaced. Parole eligibility for the first time in one’s 50s while under a life
sentence should not be confused with the opportunity for judicial release, which is
what was at issue in Moore, id. at ¶ 52.
{¶ 36} A decision whether to grant or deny parole lies with the parole board,
which is a part of the executive branch of our government. It is the judiciary,
however, that is primarily charged with safeguarding the constitutional guarantees
of the Eighth Amendment to the United States Constitution. For that reason, we
should not lightly draw distinctions among life sentences for purposes of
determining whether a life sentence violates constitutional protections. And it is
contrary to this court’s juvenile-sentencing decisions to suggest that there is no
constitutional remedy when a sentencing court fails to consider a juvenile
offender’s youth when imposing a life sentence. 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

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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.
{¶ 37} We also note that the state argues for a sort of categorical exception
that a sentencing court’s consideration of youth is not required under the Eighth
Amendment unless a life-without-parole sentence is actually imposed on a juvenile
offender. But the decisions in Miller and Long do not absolve sentencing courts
from considering a defendant’s youth during sentencing simply because parole
eligibility is ultimately included in the sentence. It is because a court must consider
youth and its attendant characteristics in its individualized sentencing decision that
the court may impose a sentence of life without the possibility of parole for a
homicide offense committed when the offender was a juvenile. See Long, 138 Ohio
St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, at ¶ 19 (explaining that consideration of
youth as a mitigating factor “does not mean that a juvenile may be sentenced only
to the minimum term. 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”); Miller, 567 U.S. at 480, 132 S.Ct
2455, 183 L.Ed.2d 407 (“Although we do not foreclose a sentencer’s ability to
make that judgment in homicide cases, we require it to take into account how
children are different, and how those differences counsel against irrevocably
sentencing them to a lifetime in prison”).
{¶ 38} Additionally, under Ohio’s statutory sentencing scheme, the
sentence ultimately imposed by a trial court does not determine what factors it must
consider under R.C. 2929.12. The factors in R.C. 2929.12 must be considered in

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order to determine the proper sentence—and here the youth of the offender and
youth’s attendant characteristics are relevant.
{¶ 39} We know that a sentence of life without the possibility of parole
“forswears altogether the rehabilitative ideal.” Graham, 560 U.S. at 74, 130 S.Ct.
2011, 176 L.Ed.2d 825. We also know that the characteristics of youth include
diminished culpability and heightened capacity for change. This brings to mind an
illustration.
{¶ 40} In the movie The Shawshank Redemption, the character “Red,”
portrayed by Morgan Freeman, faces the parole board after having served 40 years
of a life sentence and having been previously denied parole twice after serving 20
and 30 years of his sentence. In response to a member of the parole board’s
question about whether he has been rehabilitated, he responds: “Rehabilitated?
Well, now, let me see. * * * What do you really want to know? Am I sorry for
what I did?” Then, he explains:

There’s not a day goes by I don’t feel regret. Not because
I’m in here, or because you think I should. I look back on the way
I was then, a young, stupid kid who committed that terrible crime. I
want to talk to him. I want to try to talk some sense to him, tell him
the way things are, but I can’t. That kid’s long gone, and this old
man is all that’s left. I got to live with that.

The Shawshank Redemption (Castle Rock Entertainment 1994).
{¶ 41} 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.

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3. The record in this case does not demonstrate that the trial court considered
Patrick’s youth as a mitigating factor
{¶ 42} As we stated in Long, Miller mandates that “a trial court consider as
mitigating the offender’s youth and its attendant characteristics before imposing a
sentence of life without parole” (emphasis sic), Long at ¶ 27, and the “record must
reflect that the court specifically considered the juvenile offender’s youth as a
mitigating factor at sentencing when a prison term of life without parole is
imposed,” id. at paragraph two of the syllabus. Because we extend our application
in Long to Patrick’s sentence, we must determine whether the sentencing record
here reflects that the trial court specifically considered his youth as a mitigating
factor. We conclude that the sentencing court failed to articulate on the record
whether, and how, it considered Patrick’s youth in sentencing.
{¶ 43} At the sentencing hearing, Patrick’s youth was addressed by the state
and Patrick’s counsel. The prosecutor said, “I’m not going to recommend life
without parole on the aggravated murder because the Court of Appeals and the
Supreme Court have said that we should give them—juveniles—some chance at
having a life somewhere out there.” The state therefore recommended a sentence
on the aggravated-murder offense of life imprisonment with parole eligibility after
30 years.
{¶ 44} Patrick’s counsel also made a statement that referred to Patrick’s
youth in regard to sentencing:

[J]udge, if ever there was a case that was appropriate for mercy, I
think this is it. We’re talking about a young man who at the time of
this offense was 17 years old. Certainly that should be taken into
consideration when we sentence.
***

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 January Term, 2020

* * * [T]he idea of a murder was not really contemplated inside the
brain of Kyle Patrick that day. There was certainly some reckless
behavior and foolish behavior, and it was in fact intended to be a
robbery, and then ill-prepared group to commit this robbery which
then gave rise to the shooting death.
For what it’s worth, Judge, today Kyle Patrick denies that he
was the shooter. So he does acknowledge the idea of a robbery. He
does acknowledge that it was his weapon. Certainly acknowledges,
and he did from the beginning, that he tried to clean up the situation
when he went back, got the bag with whatever it was.
We had a deal worked out years ago in this case which I
thought was appropriate under the circumstances. However, I could
not convince Kyle, I could not explain to him—I wish I could do a
better job in my job, in my work—the idea of the felony murder or
the accomplice liability. Because he was adamant that he did not
shoot Big Mike, because he was adamant that he did not mean to
shoot Big Mike, he had a very difficult time understanding how our
system of justice could convict him of the murder of Big Mike under
the circumstances. So our deal that we had prior to trial I thought
was appropriate. And I think that, Judge, on the issue as far as how
you want to start this sentence, I do think that this is a case that
would be appropriate for mercy for a chance for life.

{¶ 45} Patrick’s mother said the following at the sentencing hearing
regarding Patrick’s youth:

Kyle wasn’t the ringleader. He’s not a street kid with no
family or no home and bouncing from place to place. When this

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 SUPREME COURT OF OHIO

began, he was a sheltered 17-year-old boy. He was a wannabe
gangster who thought * * * hanging around these 20-year-old street
thugs would make him cool, and he made a bad decision. I’m not
saying he shouldn’t be punished. I’m sorry.
***
Kyle isn’t a monster. He’s a human being capable of
remorse. He smiles when he’s anxious and nervous. He wears his
heart on his sleeve. He’s too trusting of the wrong people, and he’s
loyal to a fault. He wasn’t the ringleader. Those boys came back to
my house because I thought in a controlled environment we could
monitor the situation. There was always someone home.
***
Kyle was never a leader. He was a follower of the wrong
people, and he’s my son, and he’s a grandson, and he’s a brother,
and he’s a nephew, and no matter how strong we are as a family, we
are going to get through this.

{¶ 46} After hearing these statements, the trial court made no mention of
how its consideration of Patrick’s youth factored into its decision to impose the
second harshest penalty available for the aggravated-murder offense and
accompanying firearm specification—life with parole eligibility after 33 years—
even though parole eligibility after 23 or 28 years was also a possible sentence for
aggravated murder with a firearm specification, R.C. 2929.03(A)(1). In
announcing its sentence, the trial court stated:

I was trying to think in all of the years that I have done this
if there has ever been a case that to me seemed as senseless as this

18
 January Term, 2020

one. And we’ve had, of course, our share, but I can’t think of many.
To me this is a senseless loss of life.
***
Actually this is an easy call for me given what I know from
the evidence introduced at trial and given the verdict of the jury.
Considering the factors contained in section 2929 of the
revised code, of course you are not eligible for community control.
It’s going to be the sentence of this court that you * * * serve a
sentence of life imprisonment with parole eligibility after serving 30
full years. As to the firearm specification, a definite sentence of
three years that must be served prior to and consecutive to the
sentence imposed in Count One. I agree that Count Two and the
specification merges with Count One. I’m going to impose a
definite sentence of three years on Count Three.

{¶ 47} We note that at Patrick’s first sentencing hearing, after he had
pleaded guilty and before he appealed the trial court’s denial of his motion to
withdraw that plea, the trial court sentenced him to life in prison with parole
eligibility after 16 years. At Patrick’s subsequent sentencing hearing, after hearing
statements about Patrick’s youth from the prosecution, Patrick’s counsel, and
Patrick’s mother, the trial court imposed a more severe sentence than it had
previously imposed. Thus, it is unclear from the record whether, and if so, how,
the trial court considered Patrick’s youth.
{¶ 48} It is not enough to assume that the trial court must have considered
Patrick’s youth in determining the sentence because the prosecution and defense
counsel addressed his youth in their statements to the court during the sentencing
hearing. The same thing occurred in Long and we held otherwise. See Long, 138
Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, at ¶ 20-28. The fact that the

19
 SUPREME COURT OF OHIO

prosecution here—unlike the prosecution in Long—properly asserted that youth
should be a mitigating factor also does not materially distinguish the sentencing
record in this case. Here, as in Long, it cannot be determined from the record
whether, and if so, how, the trial court considered Patrick’s youth because the trial
court failed to articulate any such consideration in the sentencing record.
III. CONCLUSION
{¶ 49} For the foregoing reasons, we reverse the judgment of the Seventh
District Court of Appeals and remand the cause to the trial court for resentencing.
Judgment reversed
and cause remanded.
FRENCH and STEWART, JJ., concur.
DONNELLY, J., concurs, with an opinion.
KENNEDY, J., concurs in part and dissents in part, with an opinion joined by
DEWINE, J.
FISCHER, J., concurs in part II(A) and dissents from parts II(B) and III.
_________________
DONNELLY, J., concurring.
{¶ 50} I agree with the conclusion of the majority in Part II(A) of its opinion
that R.C. 2953.08(D)(3) does not preclude an appellate court from considering the
constitutionality of an aggravated-murder sentence imposed upon a juvenile
offender tried as an adult. I write separately because I arrive at that same conclusion
by somewhat different means and because I disagree with some of the analysis
applied by the majority to reach its conclusion.
{¶ 51} I further agree with the majority that a trial court must articulate its
consideration of 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 I accordingly join in full Part II(B) of the majority
opinion.

20
 January Term, 2020

{¶ 52} I therefore concur in the court’s judgment.
R.C. 2953.08(D)(3) does not foreclose appellate review of an aggravated-
murder sentence
{¶ 53} I agree with the majority that R.C. 2953.08(D)(3) does not preclude
an appellate court from considering the constitutionality of a noncapital aggravated-
murder or murder sentence. For the reasons that I will explain, I question whether
R.C. 2953.08(D)(3) was truly intended to bar any appellate review of a noncapital
aggravated-murder sentence. Taking the text of R.C. 2953.08(D)(3) at face value,
I agree with the majority that R.C. 2953.08 does not extinguish other statutory
rights of appeal which, in my view, include but are not necessarily limited to
appeals challenging the constitutionality of a noncapital aggravated-murder
sentence.
{¶ 54} R.C. 2953.08(D)(3) was first enacted as a part of the 1996 criminal-
sentencing reforms, Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136, and its
companion legislation, Am.Sub.S.B. No. 269, 146 Ohio Laws, Part VI, 10752
(collectively, “S.B. 2”). Before S.B. 2 was enacted, Ohio law accorded trial courts
broad discretion in imposing a criminal sentence and appellate courts generally
would not review a sentence that was authorized by law and within the applicable
statutory limits. See State v. Hill, 70 Ohio St.3d 25, 29, 635 N.E.2d 1248 (1994);
Toledo v. Reasonover, 5 Ohio St.2d 22, 213 N.E.2d 179 (1965), paragraph one of
the syllabus. A sentence so imposed would not be disturbed on appeal absent an
abuse of discretion. See State v. Grigsby, 80 Ohio App.3d 291, 302, 609 N.E.2d
183 (8th Dist.1992); State v. Cassidy, 21 Ohio App.3d 100, 102, 487 N.E.2d 322
(9th Dist.1984); State v. Longo, 4 Ohio App.3d 136, 141, 446 N.E.2d 1145 (8th
Dist.1982).
{¶ 55} After the passage of S.B. 2, “R.C. 2953.08 specifically and
comprehensively defines the parameters and standards—including the standard of
review—for felony-sentencing appeals.” State v. Marcum, 146 Ohio St.3d 516,

21
 SUPREME COURT OF OHIO

2016-Ohio-1002, 59 N.E.3d 1231, ¶ 21. And although 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,”
a review of the statutory history and a close examination of the statutory text
confirms for me that R.C. 2953.08(D)(3) does not foreclose appellate review of
Patrick’s sentence.
It is unclear whether R.C. 2953.08(D)(3) was intended to bar appellate review of
a noncapital aggravated-murder sentence
{¶ 56} When R.C. 2953.08(D)(3) became law on July 1, 1996, it was
codified with R.C. 2953.08(D)(1). See S.B. 2, 146 Ohio Laws, Part IV, 7564. At
that time, there was only one possible sentence for a noncapital-aggravated-murder
conviction: life imprisonment with parole eligibility after serving 20 years. See
former R.C. 2929.03(A), S.B. 2, 146 Ohio Laws, Part IV, 7453-7454. Because
there was only one possible sentence for such a conviction, the apparent bar to
appellate review of such a sentence under R.C. 2953.08(D) made logical sense.
{¶ 57} Effective March 23, 2005, however, additional sentences for a
noncapital aggravated-murder conviction were added in Sub.H.B. No. 184, 150
Ohio Laws, Part III, 5043 (“H.B. 184”). As amended, R.C. 2929.03 allows a trial
court to impose one of four sentences once a defendant is convicted of noncapital
aggravated murder: life imprisonment without parole, R.C. 2929.03(A)(1)(a); life
imprisonment with parole eligibility after 20 years of imprisonment, R.C.
2929.03(A)(1)(b); life imprisonment with parole eligibility after 25 years of
imprisonment, R.C. 2929.03(A)(1)(c); or life imprisonment with parole eligibility
after 30 years of imprisonment, R.C. 2929.03(A)(1)(d).
{¶ 58} “The legislative history plainly shows that the General Assembly’s
intent in enacting the current version of R.C. 2929.03(A) was to ensure that trial-
court judges had discretion to choose among the four options listed above when
sentencing those convicted of aggravated murder.” State v. Phillips, 3d Dist. No.

22
 January Term, 2020

15-12-02, 2012-Ohio-5950, ¶ 16. Despite having given trial courts discretion to
select from a range of possible sentences under R.C. 2929.03, the General
Assembly made no change to the terms of R.C. 2953.08(D). See State v. Smith, 1st
Dist. No. C-180227, 2020-Ohio-649, ¶ 39. It is instructive to note, however, that
when amending R.C. 2929.03(A) to provide four sentencing options for noncapital
aggravated murder, the General Assembly did not then or thereafter enact any
provision stating that a sentence so imposed under R.C. 2929.03(A) was not subject
to any appellate review under that or any other section of the Revised Code.
{¶ 59} From my review of the statutory history, it is not clear whether the
seemingly anomalous preclusion of appeals for aggravated-murder and murder
sentences truly reflects a deliberate and conscious legislative-policy decision to
single out these specific crimes for differential adverse treatment or whether this is
simply the result of an unfortunate 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.
{¶ 60} I acknowledge that in State v. Porterfield, 106 Ohio St.3d 5, 2005-
Ohio-3095, 829 N.E.2d 690, ¶ 17, this court found that R.C. 2953.08(D) was
unambiguous and “clearly means what it says: * * * a sentence [imposed for
aggravated murder or murder pursuant to R.C. 2929.02 to 2929.06] cannot be
reviewed.” But Porterfield, which was decided on July 6, 2005, involved
aggravated-murder sentences that were imposed prior to the March 2005 sentence-
changing amendments effected by H.B. 184. Under that prior sentencing scheme,
Porterfield in fact received the only sentence authorized by that prior law: 20 years
to life on each of his aggravated-murder convictions. Id. at ¶ 2. Porterfield does
not speak to whether the bar to appeal in R.C. 2953.08(D)(3) was intended to bar

23
 SUPREME COURT OF OHIO

all appeals pertaining to sentences once the former mandatory sentence was
replaced by four discretionary sentencing options.1
{¶ 61} While one may question whether R.C. 2953.08(D)(3) now really
means what it says, there is no denying that it says what it says. The text of R.C.
2953.08(D)(3) is still unambiguous: a sentence imposed for aggravated murder
pursuant to R.C. 2929.02 to 2929.06 “is not subject to review under this section,”
i.e., R.C. 2953.08. But as discussed hereafter, that does not mean that the sentence
is not subject to any appellate review.
The plain language of R.C. 2953.08 indicates that it is not the exclusive method to
appealing a noncapital aggravated-murder sentence
{¶ 62} By its terms, R.C. 2953.08(D)(3) states that only a noncapital
aggravated-murder sentence is not subject to review under R.C. 2953.08. As the
majority opinion recognizes, the introductory text of R.C. 2953.08(A) indicates that
the appeal rights established by R.C. 2953.08 are “ ‘[i]n addition to any other right
of appeal,’ ” majority opinion at ¶ 15, quoting R.C. 2953.08(A), but R.C. 2953.08
“does not establish the only basis by which a party may appeal a sentence”
[emphasis sic], id. at ¶ 15. The majority opinion correctly recognizes that in any
criminal case, the court of appeals may review the judgment or final order of a court
of record inferior to the court of appeals pursuant to R.C. 2953.02. See also R.C.
2505.03(A) (“Every final order, judgment, or decree of a court * * * may be
reviewed on appeal by a court of common pleas, a court of appeals, or the supreme
court, whichever has jurisdiction”).

1. I would respectfully encourage the General Assembly to re-examine whether it intended to
foreclose all appeals of sentences for noncapital aggravated murder and murder, giving particular
consideration to whether there is any rational basis—in ordinary parlance or in the more
particularized equal-protection sense—to deny such appeals to this particular class of offenders.

24
 January Term, 2020

{¶ 63} In addition to these independent statutory rights to appeal, R.C.
2953.07 separately authorizes Ohio’s courts of appeals to review criminal sentences
that are claimed to be “contrary to law.” It specifically provides as follows:

Upon the hearing of an appeal other than an appeal from a
mayor’s court, the appellate court may affirm the judgment or
reverse it, in whole or in part, or modify it, and order the accused to
be discharged or grant a new trial. The appellate court may remand
the accused for the sole purpose of correcting a sentence imposed
contrary to law, provided that, on an appeal of a sentence imposed
upon a person who is convicted of or pleads guilty to a felony that
is brought under section 2953.08 of the Revised Code, division (G)
of that section applies to the court.

(Emphasis added.) R.C. 2953.07(A). S.B. 2 added this emphasized language to
the statute. 146 Ohio Laws, Part IV, 7136, 7562. Thus, before and after the passage
of S.B. 2, R.C. 2953.07 generally authorized—and authorizes—Ohio’s appellate
courts to review criminal sentences that were or are claimed to be “contrary to law.”
{¶ 64} From the foregoing, I can conclude only that R.C. 2953.08 does not
control, much less foreclose, an appeal of a criminal sentence that contests the
discretionary sentence imposed under R.C. 2929.03(A) following a conviction for
noncapital aggravated murder. Had the General Assembly intended to prohibit an
appeal of a sentence for noncapital aggravated murder or murder, it could have said
somewhere that such sentences “are not subject to appellate review.” But stating
that such sentences “are not subject to review” under R.C. 2953.08 does not mean
that they are not subject to any appellate review at all. I therefore agree that R.C.
2953.08(D)(3) does not foreclose appellate review of an aggravated-murder
sentence.

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 SUPREME COURT OF OHIO

The statutory rights to appeal a noncapital aggravated-murder sentence include
but are not necessarily limited to appeals challenging the constitutionality of the
sentence
{¶ 65} I agree with the majority that the statutory right to appeal permits an
appellate court to consider the constitutionality of an aggravated-murder sentence.
To be clear, however, I believe that the statutory right to appeal under R.C. 2953.02
and 2953.07 include, but are not necessarily limited to, appeals challenging the
constitutionality of an aggravated-murder sentence.
{¶ 66} For its part, the majority opinion appears to draw a distinction
between constitutional and statutory appeals when it looks “to the scope of the
right to appeal provided in R.C. 2953.08 to see if Patrick’s appeal—a constitutional
challenge—is permitted under that statute.” Majority opinion at ¶ 18. I respectfully
disagree with this portion of the majority opinion’s analysis. Because R.C.
2953.08(A) and (D)(3) expressly except noncapital aggravated-murder and murder
sentences from being subject to appellate review under R.C. 2953.08, it is illogical
for the majority to look to the scope of the appeal rights provided by R.C. 2953.08
to ascertain whether Patrick’s constitutional challenge to his noncapital aggravated-
murder sentence is within the scope of that statute. R.C. 2953.08 tells us twice that
it is not.
{¶ 67} The majority nevertheless proceeds to note that the appeals allowed
by R.C. 2953.08(A)(1), (2), (3), (4) and (5) all expressly concern statutory
sentencing requirements. Majority opinion at ¶ 19-22.2 According to the majority,

2. Acknowledging here that a trial court’s failure to comply with statutory sentencing requirements
can be appealed for being “contrary to law” under R.C. 2953.08(A)(4) is inconsistent with this
court’s decision in State v. Jones, ___ Ohio St.3d ___, 2020-Ohio-6729, ___ N.E.3d ___, in which
the court concluded that although R.C. 2929.11 and 2929.12 are statutory sentencing requirements
mandated by the General Assembly for every felony sentence, the failure to comply with those
statutory sentencing requirements is not subject to appeal pursuant to R.C. 2953.08. I remain of the
view that the failure to observe those statutory sentencing requirements can be reviewed on appeal
for being “contrary to law.” See State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d
169, ¶ 45 (Donnelly, J., dissenting).

26
 January Term, 2020

R.C. 2953.08 controls appeals that challenge the trial court’s compliance with
statutory sentencing requirements but does not control appeals that challenge the
constitutionality of the trial court’s sentence.
{¶ 68} To the extent the majority opinion purports to draw a distinction
between constitutional-based and statutory-based appeals, I am not aware of any
law that limits or otherwise qualifies the grounds upon which a criminal sentence
can be challenged on appeal. As I have previously indicated, the General Assembly
did not proscribe appeals of noncapital aggravated-murder sentences. Nor did it
qualify appeals depending on whether the challenge is based on a constitutional
argument. I therefore do not believe that we have the authority to allow appeals on
certain grounds and disallow appeals on other grounds.
{¶ 69} 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. For instance, an appeal could encompass an
argument that a discretionary sentence was based on an illegal consideration such
as the offender’s race, ethnic background, gender, or religion. See R.C. 2929.11(C)
(expressly forbidding a sentence based on the offender’s race, ethnic background,
gender, or religion). It is unfathomable to think that an offender’s sentence based
on such odious considerations could escape any appellate review just because the
underlying crime was aggravated murder. What rational basis could justify that
invidious discriminatory treatment?
{¶ 70} An appeal could likewise encompass—consistent with the law
before the enactment of S.B. 2—a challenge to a sentence that was authorized by
law and within the statutory range but was nevertheless an abuse of the sentencing
court’s discretion. What rational basis could justify a demonstrable abuse of
judicial discretion?

27
 SUPREME COURT OF OHIO

{¶ 71} And an appeal could encompass a claim alleging that a discretionary
sentence was imposed vindictively to punish the defendant for exercising his or her
constitutional right to a trial. See State v. O’Dell, 45 Ohio St.3d 140, 543 N.E.2d
1220 (1989), paragraph two of the syllabus. On that point, the facts of this case are
a source of particular concern for me. Appellant, Kyle Patrick, originally pleaded
guilty and was sentenced to an aggregate sentence of life imprisonment with parole
eligibility after 16 years. However, after Patrick’s guilty plea was reversed, see
State v. Patrick, 2016-Ohio-3283, 66 N.E.3d 169 (7th Dist.), his case proceeded to
trial and Patrick, who was 17 years old at the time of his offenses, was thereafter
given a far more severe penalty—life imprisonment with parole eligibility after 33
years.3 And that sentence was imposed after the trial court had recognized that
Patrick might not have been the shooter.
{¶ 72} Nevertheless, whether Patrick was forced to pay a trial tax4 for
exercising his constitutional right to a jury trial is an issue that cannot be explored
further here, because Patrick did not raise that issue in the court of appeals or in this
court.
{¶ 73} 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.
_________________

3. The aggregate sentence was 33 years to life based on the aggravated-murder sentence of 30 years
to life, the consecutive 3-year firearm-specification sentence, and the concurrent 3-year tampering-
with-evidence sentence.

4. See State v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431, ¶ 8 (“a sentence
vindictively imposed on a defendant for exercising his constitutional right to a jury trial is contrary
to law”).

28
 January Term, 2020

KENNEDY, J., concurring in part and dissenting in part.
{¶ 74} I agree with the majority that R.C. 2953.08(D)(3) does not preclude
an appellate court from reviewing the constitutionality of a sentence for murder or
aggravated murder. I dissent, however, from the majority’s holding that the Eighth
Amendment to the United State Constitution demands that a trial court must
separately consider—on the record—the youth of a juvenile offender as a
mitigating factor prior to imposing a sentence for life with the possibility of parole.
R.C. 2953.08 does not preclude an appellate court from reviewing a
murder or aggravated-murder sentence when a defendant raises a
constitutional claim regarding that sentence on appeal
{¶ 75} R.C. 2953.08(D)(3) precludes a defendant from seeking review of a
murder sentence pursuant only to an appeal brought under R.C. 2953.08. There are
other ways to appeal a murder or aggravated-murder sentence—R.C. 2953.02
provides a general right to appeal and R.C. 2505.03(A) provides that “[e]very final
order, judgment, or decree of a court * * * may be reviewed on appeal by a court
of common pleas, a court of appeals, or the supreme court, whichever has
jurisdiction.” In State v. Matthews, 81 Ohio St.3d 375, 691 N.E.2d 1041 (1998),
syllabus, this court held that R.C. 2505.03 applies to appeals in criminal cases.
{¶ 76} This court has explained that there are limits to sentencing review:
“[T]he Court of Appeals cannot hold that a trial court abused its discretion by
imposing too severe a sentence on a defendant convicted of violating an ordinance,
where the sentence imposed is within the limits authorized by the applicable
ordinance and statutes.” Toledo v. Reasonover, 5 Ohio St.2d 22, 213 N.E.2d 179
(1965), paragraph one of the syllabus. However, there are exceptions to the general
premise that once a defendant has been proved guilty of an offense beyond a
reasonable doubt he is eligible for any statutory penalty associated with that
offense. The discretion of the court does not extend to unconstitutional sentences:

29
 SUPREME COURT OF OHIO

Every person has a fundamental right to liberty in the sense
that the Government may not punish him unless and until it proves
his guilt beyond a reasonable doubt at a criminal trial conducted in
accordance with the relevant constitutional guarantees. But a person
who has been so convicted is eligible for, and the court may impose,
whatever punishment is authorized by statute for his offense, so long
as that penalty is not cruel and unusual, and so long as the penalty
is not based on an arbitrary distinction that would violate the Due
Process Clause * * *.

(Citations omitted, first emphasis sic, and second emphasis added.) Chapman v.
United States, 500 U.S. 453, 465, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991).
{¶ 77} In reviewing a defendant’s sentence under an Eighth Amendment
claim in Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983),
the United States Supreme Court stated, “Reviewing courts * * * should grant
substantial deference to the broad authority that legislatures necessarily possess in
determining the types and limits of punishments for crimes, as well as to the
discretion that trial courts possess in sentencing convicted criminals. But no
penalty is per se constitutional.” A review of a sentence under the Eighth
Amendment is not a review of the trial court’s discretion:

Absent specific authority, it is not the role of an appellate court to
substitute its judgment for that of the sentencing court as to the
appropriateness of a particular sentence; rather, in applying the
Eighth Amendment the appellate court decides only whether the
sentence under review is within constitutional limits.

30
 January Term, 2020

Id. at fn. 16.
{¶ 78} R.C. 2953.08(D)(3) does not preclude appellate review of a murder
or aggravated-murder sentence, and an appellate court need not defer to the trial
court’s imposed sentence if that sentence is unconstitutional. Therefore, the appeal
of appellant, Kyle Patrick, is properly before us.
The constitutionality of Patrick’s sentence
{¶ 79} I dissent from the majority’s holding regarding the substance of
Patrick’s appeal. Patrick relies exclusively on the Eighth Amendment to the United
States Constitution in appealing his sentence, arguing that his sentence violates that
amendment’s protection against cruel and unusual punishment because the trial
court failed to take into consideration on the record Patrick’s youth before imposing
a sentence of life with parole eligibility after 33 years. The majority agrees, despite
the lack of legal authority in support of that proposition. Today’s holding is without
precedent in the Eighth Amendment jurisprudence of this court or of the United
States Supreme Court. And that is no surprise, given that the majority holds that a
sentence of life in prison with the possibility of parole is the equivalent of a sentence
of life without the possibility of parole for purposes of the Eighth Amendment. To
the contrary, the two types of punishment are not equivalent. Pursuant to the Eighth
Amendment, there is a categorical ban against the imposition of a life-without-
parole sentences on all but the most incorrigible juveniles, and certain procedural
protections have arisen—including a consideration of the youth of the offender
before sentencing that person to life without parole—to ensure that the penalty is
imposed on only those rarest of juveniles, those whose crimes reflect irreparable
corruption. 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. The majority applies protections designed to

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further categorical restrictions to a punishment against which there is no categorical
ban.
{¶ 80} The Eighth Amendment to the United States Constitution, which
applies to the states through the Fourteenth Amendment, provides, “Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” This court has stated:

Historically, the Eighth Amendment has been invoked in extremely
rare cases, where it has been necessary to protect individuals from
inhumane punishment such as torture or other barbarous acts.
Robinson v. California (1962), 370 U.S. 660, 676, 82 S.Ct. 1417,
1425, 8 L.Ed.2d 758, 768. Over the years, it has also been used to
prohibit punishments that were found to be disproportionate to the
crimes committed. In McDougle v. Maxwell (1964), 1 Ohio St.2d
68, 30 O.O.2d 38, 203 N.E.2d 334, this court stressed that Eighth
Amendment violations are rare. We stated that “[c]ases in which
cruel and unusual punishments have been found are limited to those
involving sanctions which under the circumstances would be
considered shocking to any reasonable person.” Id. at 70, 30 O.O.2d
at 39, 203 N.E.2d at 336. Furthermore, “the penalty must be so
greatly disproportionate to the offense as to shock the sense of
justice of the community.” Id. See also State v. Chaffin (1972), 30
Ohio St.2d 13, 59 O.O.2d 51, 282 N.E.2d 46, paragraph three of the
syllabus.

State v. Weitbrecht, 86 Ohio St.3d 368, 370-371, 715 N.E.2d 167 (1999).
{¶ 81} The original understanding of the Eighth Amendment, at least in the
case of juveniles, has expanded from a consideration of merely the nature of the

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punishment to how the punishment is procedurally imposed. Certain punishments
have been found to be categorically unconstitutional for crimes that have been
committed by juveniles, including the death penalty, see Roper v. Simmons, 543
U.S. 551, 568, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), and a sentence of life without
the possibility of parole for a juvenile who committed a nonhomicide offense, see
Graham v. Florida, 560 U.S. 48, 74-75, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).
But in Miller v. Alabama, 567 U.S. 460, 479-480, 132 S.Ct. 2455, 183 L.Ed.2d 407
(2012), the court began to focus on the procedural considerations that should be
addressed before a court imposes certain punishments against a juvenile. In Miller,
the court held that under the Eighth Amendment, trial courts cannot impose
mandatory life-without-parole sentences—even on juvenile homicide offenders—
because the automatic imposition of that penalty “runs afoul of [its] cases’
requirement of individualized sentencing for defendants facing the most serious
penalties,” id. at 465. The court wrote that its “decision does not categorically bar
a penalty for a class of offenders or type of crime—as, for example, [the court] did
in Roper or Graham. Instead, it mandates only that a sentencer follow a certain
process—considering an offender’s youth and attendant characteristics—before
imposing a particular penalty.” Id. at 483. In Montgomery v. Louisiana, __ U.S.
__, 136 S.Ct. 718, 734, 193 L.Ed.2d 599 (2016), the court clarified that Miller had
“rendered life without parole an unconstitutional penalty for ‘a class of defendants
because of their status’—that is, juvenile offenders whose crimes reflect the
transient immaturity of youth.” Id. at 734, citing Penry v. Lynaugh, 492 U.S. 302,
330, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), abrogated by Atkins v. Virginia, 536
U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Therefore, the sentencing judge
must “take into account ‘how children are different, and how those differences
counsel against irrevocably sentencing them to a lifetime in prison.’ ” Montgomery
at 733, quoting Miller at 480. The court in Montgomery recognized that “a
sentencer might encounter the rare juvenile offender who exhibits such irretrievable

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depravity that rehabilitation is impossible and life without parole is justified.” Id.
at 733. But the court also acknowledged that Miller contained no requirement that
trial courts make a finding of fact regarding a child’s incorrigibility. Id. at 735.
{¶ 82} In State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890,
which was decided before Montgomery, this court went beyond the holding in
Miller and held that a trial court must make some statement on the record taking
into account an offender’s youth before imposing a sentence of life in prison
without the possibility of parole.
{¶ 83} Even with this shift to process from the core protection of the Eighth
Amendment, the nature of the punishment has continued to be at the forefront. That
is, there are procedural implications for courts because of the gravity of the
punishment. The overriding concern is that the court not impose the punishment
on someone undeserving. 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.
{¶ 84} In Miller, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407, the United
States Supreme Court held that the Eighth Amendment precludes the mandatory
imposition of a life sentence that does not include the possibility of parole for a
person who committed murder before the age of 18. And this court held in Long
that a trial court must make some statement on the record that the court had taken
into account an offender’s youth before imposing a sentence of life in prison
without the possibility of parole. But neither this court nor the United States
Supreme Court has ever held that the Eighth Amendment requires a trial court to
state at the time of sentencing that it has considered the youth of an offender before
imposing a sentence that provides an opportunity for parole. 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

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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.
{¶ 85} At the center of the jurisprudence regarding juveniles and life-
without-parole sentences is the nature of the sentence. Graham, 560 U.S. 48, 130
S.Ct. 2011, 176 L.Ed.2d 825, is the seminal case in which the court considered the
constitutionality of life-without-parole sentences for juveniles. In Graham, the
court held that the Eighth and Fourteenth Amendments prohibit the imposition of a
life-without-parole sentence on a juvenile offender who did not commit a homicide.
A fundamental aspect of the court’s holding in Graham was its comparison of the
characteristics of a life-without-parole sentence and a death sentence. Life-without-
parole terms, the court wrote, “share some characteristics with death sentences that
are shared by no other sentences.” (Emphasis added.) Id. at 69. Although the state
does not execute a defendant who has been sentenced to life without parole, “the
sentence alters the offender’s life by a forfeiture that is irrevocable.” Id. A life-
without-parole sentence takes everything from the defendant; “[i]t deprives the
convict of the most basic liberties without giving hope of restoration, except
perhaps by executive clemency—the remote possibility of which does not mitigate
the harshness of the sentence.” Id. at 69-70, citing Solem, 463 U.S. at 300-301, 103
S.Ct. 3001, 77 L.Ed.2d 637. A life-without-parole sentence “ ‘means denial of
hope; it means that good behavior and character improvement are immaterial; it
means that whatever the future might hold in store for the mind and spirit of [the
convict], he will remain in prison for the rest of his days.’ ” (Brackets added in

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Graham.) Id. at 70, quoting Naovarath v. State, 105 Nev. 525, 526, 779 P.2d 944
(1989). The court wrote that a life-without-parole sentence “gives no chance for
fulfillment outside prison walls, no chance for reconciliation with society, no
hope.” Id. at 79. A life sentence with the possibility of parole, on the other hand,
does not carry the weight of a life-without-parole sentence. A juvenile sentenced
to life with the possibility of parole does have a chance for fulfillment outside
prison walls. He is not destined to remain in prison until death. Hope is not denied.
Good behavior and character improvement are not immaterial. A sentence with the
possibility of parole offers “some meaningful opportunity to obtain release based
on demonstrated maturity and rehabilitation,” id. at 75, while a sentence of life
without parole does not.
{¶ 86} In Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, at ¶ 27,
this court pointed to the unique harshness of a life without parole sentence: “For
juveniles, like Long, a sentence of life without parole is the equivalent of a death
penalty. * * * As such, it is not to be imposed lightly, for as the juvenile matures
into adulthood and may become amenable to rehabilitation, the sentence
completely forecloses that possibility.” This court also stated that while Miller did
not bar a court from imposing life without parole, it is “because of the severity of
that penalty, and because youth and its attendant circumstances are strong
mitigating factors, that sentence should rarely be imposed on juveniles,” (emphasis
added) id. at ¶ 29. We further held that a trial court has a duty to clarify its reasoning
before imposing life without parole “because a life-without-parole sentence implies
that rehabilitation is impossible, when the court selects this most serious sanction,
its reasoning for the choice ought to be clear on the record.” Id. at ¶ 19. Because
the trial court did not separately mention that Long had been a juvenile when he
committed the offense, this court determined that it could not be sure how the court
had applied that factor and therefore vacated the sentence and remanded the cause
for resentencing. Id. at ¶ 27, 29.

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{¶ 87} Again in Long, it was the seriousness of the sanction that gave rise
to the procedural protection for the juvenile. Because the life-without-parole
sentence is so grave and categorically banned except for only the worst offenders,
a court must determine that a person who receives that sentence is properly within
the small group of juveniles to whom it may apply. To ensure that this sentence is
appropriate before a trial court imposes it, this court required an on-the-record
finding of the trial court’s reasoning.
{¶ 88} The protections afforded in Graham, 560 U.S. 48, 130 S.Ct. 2011,
176 L.Ed.2d 825, Miller, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407, and Long
all inure for persons for whom a life-without-parole sentence is imposed. Certainly,
the lessened culpability associated with youth is also an important factor. But a
sentence of life in prison without the eligibility for parole is the sentence by which
the United States Supreme Court and this court have drawn the line for Eighth
Amendment juvenile-offender-sentencing purposes. The Eighth Amendment’s
requirement that a trial court consider the youth of the defendant and the attendant
characteristics of youth does not extend to Patrick’s sentence of life imprisonment
with parole eligibility after 33 years. Patrick asserts that for the purposes of
requiring a court to consider the youth of a defendant before imposing a sentence,
there “is no reason to distinguish a homicide case with a life sentence that is not life
without parole * * * from a homicide case where [life without parole] is imposed.”
(Emphasis sic.) But that difference between penalties is vital—it is the lack of an
opportunity for release that is the catalyst for the Eighth Amendment’s
requirements. When courts consider Eighth Amendment cruel-and-unusual-
punishment issues, the punishment involved necessarily forms the basis of the
analysis. It is the unique severity of and hopelessness engendered by a life-without-
parole sentence imposed on a juvenile defendant—under which the defendant will
never have the chance to prove himself worthy of release for a crime committed
before full transition into adulthood—that impels the court’s requirement to

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consider youth under Miller and Long. When a juvenile offender faces a sentence
that includes the prospect of parole eligibility during middle adulthood, the same
concerns do not arise.
{¶ 89} Patrick can point to no pronouncement that there is an Eighth
Amendment-based categorical restriction against a sentence of life with possibility
of parole. A sentence of 33 years to life in prison comports with “Miller’s central
intuition—that children who commit even heinous crimes are capable of change,”
Montgomery, ___ U.S. at ___, 136 S.Ct. at 736, 193 L.Ed.2d 599. This is in contrast
to the sentences that have been held to violate the Eighth Amendment when
imposed on juvenile offenders, which include a death sentence, a life-without-
parole sentence for a nonhomicide, and a life-without-parole sentence imposed
without consideration of the youth of the offender. Each of those sentences
forecloses a juvenile offender from the opportunity to re-enter society without first
considering whether he is amenable to rehabilitation, and that is why they have
been held to violate the Eighth Amendment. A life sentence with the possibility of
parole is different and is therefore not subject to the same mandates to comply with
the Eighth Amendment. Therefore, although Patrick points out that his case
involves the same “features of youth—delayed development, lessened moral
culpability, all the things addressed in the cases” and that those features “are not
ameliorated because a trial judge decides to select a life sentence that [allows for
parole],” his sentence does not involve the same constitutional problems as the
sentences involved in Miller and Long. Youth does not require dispensation from
extended punishment; it guarantees only a meaningful chance to one day reenter
society. Patrick’s sentence gives him that.
{¶ 90} Pursuant to this court’s and United States Supreme Court’s
jurisprudence, the features of a juvenile defendant’s youth are almost always
incompatible with a life-without-parole sentence, and therefore a sentencing court
must consider a juvenile defendant’s youth and the characteristics attendant to

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youth before imposing that sentence. But when a sentence does not foreclose
redemption and re-entry into society, as is the case here, the Eighth Amendment
does not require a consideration of the juvenile defendant’s youth and does not
require that the record reflect that the court specifically considered the juvenile’s
youth at sentencing. So although Patrick’s youth makes him comparable to the
defendants in Miller and Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890,
his sentence sets him apart from them.
{¶ 91} Patrick’s sentence in this case grants him the opportunity for parole
after he has served 33 years in prison. The possibility of parole exists for Patrick;
he has the “hope for some years of life outside prison walls.” Montgomery, ___
U.S. at ___, 136 S.Ct. at 737. And that hope is not illusory.
{¶ 92} But the majority suggests that that eventual release is a hopeless
dream. It does so by impugning Ohio’s parole system, citing to a context-free
statistic that Ohio’s parole rate was only 10.2 percent from 2011 to 2018, majority
opinion at ¶ 33. The majority does not say how many of the persons seeking parole
during those years were juveniles when they committed their crimes, how many
had shown personal growth, or how many had already served 30 years. Here, the
majority suggests that a life sentence with the possibility of parole is essentially a
life sentence without the possibility of parole since achieving a positive result from
the Parole Board is a long shot.
{¶ 93} The majority makes an important point that I agree with: “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
* * *.” Majority opinion at ¶ 41. Trial judges should endeavor to proceed that way.
But the Eighth Amendment protection against cruel and unusual punishment does
not demand it. And that is all we are considering in this case.

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{¶ 94} The majority makes a point to state that pursuant to Long, 138 Ohio
St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, a trial court must consider the youth of
the offender as a mitigating factor in every sentencing situation, pursuant to R.C.
2929.12(C) and (E). However, Patrick does not argue about what R.C. 2929.12
requires, he argues about what the Eighth Amendment requires. The trial court was
under no constitutional obligation to enunciate on the record its findings about the
impact of Patrick’s youth in sentencing him.
{¶ 95} Here, although the trial court did not specifically state on the record
that it had considered Patrick’s youth before imposing its sentence, the record
reflects that the trial court did consider Patrick’s youth and its attendant
characteristics before it imposed its sentence. In the sentencing entry, the trial court
stated that it had “considered the record, oral statements, as well as the principles
and purposes of sentencing under Ohio Revised Code Section 2929.11, and ha[d]
balanced the seriousness and recidivism factors of Ohio Revised Code Section
2929.12.” The statements made during the sentencing hearing by the state,
Patrick’s counsel, and Patrick’s mother all called attention to Patrick’s youth. The
issue of Patrick’s youth was squarely before the trial court at the time of sentencing.
{¶ 96} Despite the fact that the trial court had determined that the
aggravated murder that Patrick committed was among the most senseless offenses
it had ever seen, the court did not impose the harshest possible penalty. Based on
that fact and the statements made during the sentencing hearing, I conclude that
Patrick’s youth factored into the trial court’s sentencing decision.
{¶ 97} The Supreme Court in Miller sets forth five considerations that a
court imposing a mandatory life-without-parole sentence on a juvenile offender
who is tried as an adult is precluded from considering, therefore making such a
sentence unconstitutional:

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 January Term, 2020

[First,] [m]andatory life without parole for a juvenile precludes
consideration of his chronological age and its hallmark features—
among them, immaturity, impetuosity, and failure to appreciate risks
and consequences. [Second,] [i]t prevents taking into account the
family and home environment that surrounds him—and from which
he cannot usually extricate himself—no matter how brutal or
dysfunctional. [Third,] [i]t neglects the circumstances of the
homicide offense, including the extent of his participation in the
conduct and the way familial and peer pressures may have affected
him. [Fourth,] * * * it ignores that he might have been charged and
convicted of a lesser offense if not for incompetencies associated
with youth—for example, his inability to deal with police officers
or prosecutors (including on a plea agreement) or his incapacity to
assist his own attorneys. See, e.g., Graham, 560 U.S. at 78, [130
S.Ct. 2011, 176 L.Ed.2d 825] (“[T]he features that distinguish
juveniles from adults also put them at a significant disadvantage in
criminal proceedings”); J.D.B. v. North Carolina, 564 U.S. 261,
269, 131 S.Ct. 2394, 180 L.Ed.2d 310 (2011) (discussing children’s
responses to interrogation). And finally, this mandatory punishment
disregards the possibility of rehabilitation even when the
circumstances most suggest it.

(Ninth brackets added in Miller.) Miller, 567 U.S. at 477-478, 132 S.Ct. 2455, 183
L.Ed.2d 407.
{¶ 98} Each of those considerations was addressed in some way during
Patrick’s sentencing hearing. Patrick’s counsel’s statement was relevant to the
court’s consideration of Patrick’s “chronological age and its hallmark features—
among them, immaturity, impetuosity, and failure to appreciate risks and

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consequences,” id. at 477. Counsel stated that the idea of murder had not been
contemplated by Patrick, that Patrick had acted recklessly and foolishly, and that
an ill-prepared robbery led to a shooting death. He also spoke to another factor—
the “incompetencies associated with youth,” id., including Patrick’s inability to
assist his counsel. Patrick’s counsel explained that he could not convince Patrick
to maintain the plea agreement that would have resulted in a murder conviction
with a sentence of 16 years to life rather than an aggravated-murder conviction with
a more severe sentence.
{¶ 99} Patrick’s mother discussed in her statement the circumstances of the
offense and how Patrick was susceptible to peer pressure; she said he was a
wannabe gangster who hung around with 20-year-old street thugs. She mentioned
his family life, which was by no means “brutal or dysfunctional,” id.; instead, it
could be considered to be a support system for an eventual reentry into life outside
of prison. Her statement also reflected on another factor discussed in Miller—the
possibility for rehabilitation; she talked about Patrick’s capability of remorse and
his loyalty and said that “he wears his heart on his sleeve.”
{¶ 100} Finally, the prosecutor discussed the possibility of Patrick’s
rehabilitation. He recognized that courts have determined that juveniles should be
given “some chance of having a life somewhere out there.” This contrasts with the
statement of the prosecutor in Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d
890, at ¶ 22, who used the defendant’s youth against him, arguing that the defendant
and his codefendants were so young that even if they served 30 years in prison they
would prove a danger to society upon release.
{¶ 101} It is evident from the record—especially the trial court’s reliance
on the oral statements made during the sentencing hearing, which repeatedly
referred to Patrick’s youth and the attendant characteristics of his youth—that the
trial court considered Patrick’s youth before declining to enter the lengthiest
sentence available and instead imposing the 33-years-to-life sentence.

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 January Term, 2020

{¶ 102} Although I would find the trial court did not violate Patrick’s
Eighth Amendment rights in this case, I do believe that it is time for Ohio
lawmakers to undertake a meaningful study and review of the sentencing of
juveniles tried as adults. But ours is not the power to rewrite sentencing laws.
Whether the brain science cited by the court in Graham, 560 U.S. at 68, 130 S.Ct.
2011, 176 L.Ed.2d 825 (recognizing that “parts of the brain involved in behavior
control continue to mature through late adolescence”) and the penological
considerations relating to that science might support a modernized sentencing
scheme for juvenile offenders tried in adult court—e.g., amici curiae in support of
Patrick suggest that juvenile offenders should become eligible for parole after
serving 15 years of incarceration—establishing such a structure is not within the
province of this court. “The power to define and classify and prescribe punishment
for felonies committed within the state is lodged in the General Assembly * * *.”
State v. O’Mara, 105 Ohio St. 94, 136 N.E. 885 (1922), paragraph one of the
syllabus, overruled in part on other grounds, Steele v. State, 121 Ohio St. 332, 168
N.E. 846 (1929). Other states have responded to the decisions in Graham and
Miller by amending their sentencing statutes for juveniles tried as adults. See
Contreras, 4 Cal.5th at 370, 411 P.3d 445, 229 Cal.Rptr.3d 249 (collecting
statutes).
{¶ 103} “It is a fundamental precept of our tripartite form of state
government that the General Assembly is the ultimate arbiter of public policy.”
Cleveland v. State, 157 Ohio St.3d 330, 2019-Ohio-3820, 136 N.E.3d 466, ¶ 40.
The General Assembly established the juvenile-bindover scheme contained in R.C.
2152.12, which allows the transfer of juvenile cases to adult court and allows
juveniles to be tried as adults. It follows that it is within the General Assembly’s
authority to evaluate the body of science regarding the differences between
juveniles and adults and the penological justifications for punishment of juveniles
as adults and to modify Ohio’s sentencing scheme accordingly.

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{¶ 104} 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. Therefore,
I dissent from that portion of the majority opinion.
DEWINE, J., concurs in the foregoing opinion.
_________________
Paul J. Gains, Mahoning County Prosecuting Attorney, and Ralph M.
Rivera, Assistant Prosecuting Attorney, for appellee.
John B. Juhasz, for appellant.
Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and
Diane R. Brey, Deputy Solicitor General, urging affirmance for amicus curiae, Ohio
Attorney General Dave Yost.
Timothy Young, Ohio Public Defender, and Brooke M. Burns, Assistant
Public Defender; and Juvenile Law Center, Marsha L. Levick, and Andrew R.
Keats, urging reversal for amici curiae, Office of the Ohio Public Defender,
Juvenile Law Center, Inc., Central Juvenile Defender Center, Children’s Law
Center, Cuyahoga County Public Defender’s Office, National Juvenile Defender
Center, and Schubert Center for Child Studies.
_________________

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