State v. Watson

[Cite as State v. Watson, 2021-Ohio-1361.]


                                       COURT OF APPEALS
                                    ASHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                 JUDGES:
                                               Hon. William B. Hoffman, P.J.
         Plaintiff-Appellee                    Hon. Patricia A. Delaney, J.
                                               Hon. Earle E. Wise, Jr., J.
 -vs-
                                               Case No. 20-COA-014
 MICHAEL S. WATSON

        Defendant-Appellant                    O P I N IO N




 CHARACTER OF PROCEEDINGS:                     Appeal from the Ashland County Court of
                                               Common Pleas, Case No. 19-CRI-194


 JUDGMENT:                                     Reversed and Remanded

 DATE OF JUDGMENT ENTRY:                       April 16, 2021


 APPEARANCES:


 For Plaintiff-Appellee                        For Defendant-Appellant

 CHRISTOPHER R. TUNNELL                        TIMOTHY B. HACKETT
 Ashland County Prosecuting Attorney           Assistant State Public Defender
                                               250 East Broad Street, Suite #1400
 AMY R. INZINA                                 Columbus, OH 43215
 Assistant Prosecuting Attorney
 110 Cottage Street
 Ashland, OH 44805
Ashland County, Case No. 20-COA-014                                                        2


Hoffman, P.J.
       {¶1}   Defendant-appellant Michael Watson appeals the judgment entered by the

Ashland County Common Pleas Court convicting him of two counts of aggravated murder

(R.C. 2903.01(A),(B)), four counts conspiracy to commit aggravated murder (R.C.

2923.01(A)(1), R.C. 2903.01(A),(B)), aggravated burglary (R.C. 2911.11(A)(2)),

aggravated robbery (R.C. 2911.01(A)(1)), and two counts of attempted murder (R.C.

2923.02(A), R.C. 2903.01(B)) following his pleas of guilty, and sentencing him to an

aggregate term of incarceration of life in prison with parole eligibility after thirty-eight

years. Appellee is the state of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶2}   On June 12, 2019, Appellant and three other men went to the Almond Tree

Inn in Ashland, where Timothy Maust and Elizabeth Bunnell lived, to obtain money from

a drug transaction. Appellant was seventeen years old at the time. When they arrived,

other people were in the area of the Almond Tree Inn, and they left. They discussed a

plan to return later and do whatever they had to in order to obtain the money, including

shooting someone if necessary.

       {¶3}   The men later returned to the Maust/Bunnell residence. Appellant carried

a .22 caliber Ruger handgun.       One of the men kicked in the door.         After a short

conversation with Bunnell, Appellant shot both Maust and Bunnell, killing Maust.

       {¶4}   A complaint was filed in the Ashland County Juvenile Court alleging

Appellant was delinquent based on complicity to aggravated murder with a firearm

specification, complicity to aggravated burglary with a firearm specification, and complicity

to attempted aggravated murder. Appellant was bound over to the Ashland County

Common Pleas Court for trial as an adult.
Ashland County, Case No. 20-COA-014                                                          3


       {¶5}   Appellant was indicted by the Ashland County Grand Jury with two counts

of aggravated murder, four counts of conspiracy to commit aggravated murder, two

counts of attempted aggravated murder, aggravated burglary, and aggravated robbery,

all with accompanying firearm specifications.

       {¶6}   On January 24, 2020, Appellant entered a plea agreement with the State in

which Appellant agreed to provide testimony against his co-defendants and plead guilty

to all charges. The parties agreed merger would apply to specific counts and the State

elected to have Appellant sentenced for one count of aggravated murder, one count of

conspiracy to aggravated murder, and aggravated robbery. The parties further agreed

the specifications merged and the State elected to have Appellant sentenced on the

specification accompanying aggravated murder.           The parties jointly agreed to a

sentencing recommendation of life in prison with parole eligibility after 30 years for

aggravated murder, with a three year term of incarceration for the accompanying firearm

specification; five to seven and one-half years in prison for conspiracy to aggravated

murder; and five to seven and one-half years in prison for aggravated robbery, to be

served consecutively for an aggregate prison term of thirty-eight years to life in prison.

       {¶7}   The trial court convicted Appellant upon his pleas of guilty and sentenced

him in accordance with the agreed upon sentence. It is from the March 13, 2020 judgment

of the Ashland County Common Pleas Court Appellant prosecutes his appeal, assigning

as error:



              PER STATE V. PATRICK, MICHAEL WATSON’S 38-LIFE

       SENTENCE IS UNCONSTITUTIONAL BECAUSE THE IMPOSITION OF
Ashland County, Case No. 20-COA-014                                                         4


       ANY LIFE IMPRISONMENT SENTENCE UPON A JUVENILE OFFENDER

       WITHOUT JUDICIAL CONSIDERATION OF YOUTH VIOLATES THE

       FIFTH, EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED

       STATES CONSTITUTION; AND ARTICLE I, SECTIONS 9, 10 AND 16 OF

       THE OHIO CONSTITUTION.



                                                 I.

       {¶8}   Appellant argues his sentence of thirty-eight years to life in prison is

unconstitutional based on the December 22, 2020 decision of the Ohio Supreme Court in

State v. Patrick, 2020 -Ohio- 6803. Patrick, who was a juvenile at the time of the offenses,

was convicted of aggravated murder, aggravated robbery, and tampering with evidence

following jury trial as an adult. He was sentenced to an aggregate term of incarceration

of life with parole eligibility after 33 years. The Ohio Supreme Court held the Eighth

Amendment’s prohibition on cruel and unusual punishment requires a trial court, before

imposing a sentence which includes a possibility of life imprisonment on a juvenile

offender, to consider and articulate its consideration of the offender’s youth as a mitigating

factor when imposing sentence. Id. at ¶2. “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.” Id. at ¶36. In so holding, the Ohio

Supreme Court noted:
Ashland County, Case No. 20-COA-014                                                         5


            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. We also know that the characteristics of youth include

     diminished culpability and heightened capacity for change. This brings to

     mind an illustration.

            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).

            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.
Ashland County, Case No. 20-COA-014                                                       6


       {¶9}   Id. at ¶¶39-41.

       {¶10} In the instant case, the record is devoid of an articulation of consideration

of Appellant’s youth by the trial court prior to imposing a sentence which included a

potential term of life imprisonment. While we recognized the trial court did not have the

benefit of the Ohio Supreme Court’s decision in Patrick at the time sentence was imposed,

we find Appellant’s sentence is unconstitutional for the reasons set forth in Patrick.

       {¶11} The State argues this case is distinguishable from Patrick because the

instant case involves a jointly recommended sentence agreed to by Appellant as part of

a plea bargain. R.C. 2953.08(D)(1), governing the right to appeal felony sentencing,

provides, “A sentence imposed upon a defendant is not subject to review under this

section if the sentence is authorized by law, has been recommended jointly by the

defendant and the prosecution in the case, and is imposed by a sentencing judge.”

Appellant’s sentence is not authorized by law without a consideration of youth as a

mitigating factor and articulation of such consideration, and thus the sentence is

appealable pursuant to statute.

       {¶12} A trial court is not bound by the sentence recommended in a plea

agreement. See, e.g., State v. Ybarra, 5th Dist. Licking No. 14-CA-8, 2014-Ohio-3485, ¶

22; State v. Stevens, 5th Dist. No. Richland 16CA60, 2017-Ohio-2970, 91 N.E.3d 159, ¶

24. Because the trial court ultimately determines the sentence entered in a particular

case, we find the same policy considerations underlying the Patrick decision regarding

the potential of a juvenile serving a life sentence apply whether the sentence is part of a

plea agreement or imposed following trial. We find the constitutional responsibility placed

upon the trial court to consider the youth of the offender in mitigation of a potential life
Ashland County, Case No. 20-COA-014                                                          7


sentence and to articulate such consideration on the record is not abrogated simply

because the sentence was jointly recommended, particularly in the instant case where

Patrick had not yet been decided at the time the plea agreement was entered.

       {¶13} Appellant also argues pursuant to Am. Sub. S.B. No. 256, his sentence of

life with parole eligibility in thirty years for aggravated murder is not authorized by law, as

the new sentencing bill for juvenile homicide offenders limits parole eligibility to an

aggregate 25 years. The bill, effective April 12, 2021, is made retroactive. However, we

find any discussion of the applicability of the sentencing provisions of the bill to Appellant

to be premature at this time. Because we are reversing the sentence entered in the

instant case based on the constitutional concerns set forth in Patrick, the issues

surrounding the applicability of the new sentencing bill will first be considered by the trial

court on remand. Any discussion of the bill’s applicability to the instant case would be an

advisory opinion at this juncture of the proceedings.
Ashland County, Case No. 20-COA-014                                               8


      {¶14} The assignment of error is sustained. The judgment of the Ashland County

Common Pleas Court is reversed, and this case is remanded for resentencing in

accordance with the law, consistent with this opinion.




By: Hoffman, P.J.
Delaney, J. and
Wise, Earle, J. concur