State v. Strowder , 2019 Ohio 4573 ( 2019 )

[Cite as State v. Strowder, 2019-Ohio-4573.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 107855
v. :
DASHAWN STROWDER, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: November 7, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-16-604551-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Frank Romeo Zeleznikar and Carl Mazzone,
Assistant Prosecuting Attorneys, for appellee.
Brooke M. Burns, for appellant.
PATRICIA ANN BLACKMON, P.J.:
Appellant Dashawn Strowder (“Strowder”) appeals from the
sentence imposed on remand for his convictions for rape, kidnapping, robbery, and
felonious assault. He assigns the following errors for our review:
The Cuyahoga County Court of Common Pleas erred when it sentenced
[Strowder], a juvenile, nonhomicide offender, to a sentence that does
not provide him with a “meaningful opportunity for release.” Eighth
Amendment to the U.S. Constitution; Ohio Constitution, Article I,
Section 9; Graham v. Florida, 560 U.S. 48, 75, 130 S. Ct. 2011, 176
L. Ed. 2d 825 (2010); State v. Moore, 149 Ohio St. 3d 557, 2016-Ohio-
8288, 76 N.E.3d 1127.
Having reviewed the record and pertinent law, we affirm the
sentence, but we remand for the issuance of a nunc pro tunc sentencing journal entry
in order to reflect what transpired at the September 26, 2018 sentencing hearing.
This case originated in juvenile court when Strowder was 17 years old.
Following a mandatory bindover, Strowder and codefendant Isaiah Campbell
(“Campbell”) were indicted in a nine-count indictment in connection with an attack
upon a woman as she attempted to drive home following a family celebration. See
State v. Strowder, 8th Dist. Cuyahoga No. 105569, 2018-Ohio-1292 (“Strowder I”).
Strowder was charged with three counts of rape with sexually violent predator
specifications, two counts of kidnapping, with one count alleging both a sexual
motivation specification and a sexually violent motivation specification, aggravated
robbery, felonious assault with a sexual motivation specification, grand theft (motor
vehicle), and receiving stolen property, in violation of R.C. 2913.51(A). All counts
also contained one-year and three-year firearm specifications. Strowder was
acquitted of one of the rape charges, but was convicted of all remaining charges.
After obtaining additional testimony and evidence, the trial court found Strowder
guilty of the sexually violent predator specifications, thus adding a “life tail” to the
sexual offenses. The court merged the aggravated robbery, grand theft, and
receiving stolen property convictions, and also merged the felonious assault
conviction into the rape, kidnapping, and aggravated robbery convictions. The court
imposed consecutive terms, sentencing Strowder to 50 years to life, and also ordered
that this term be served consecutively to Strowder’s nine-year sentence in another
matter from Stark County that resulted from a gang-related offense while he was in
the custody of the Ohio Department of Youth Services.
On direct appeal, this court affirmed the convictions but reversed and
remanded the sentence pursuant to Graham, 560 U.S. 48, 130 S. Ct. 2011, 176
L. Ed. 2d 825, and Moore, 149 Ohio St. 3d 557, 2016-Ohio-8288, 76 N.E.3d 1127, in
order to provide for Strowder, a juvenile offender, with a meaningful opportunity
for parole. Strowder I at ¶ 45.
On remand, the defense asked for a sentence that would enable
Strowder to be eligible for parole after 15 to 30 years, citing his difficult childhood,
and his participation in education, mental health, and other activities while in
prison. The court heard from Strowder who told the court that he is endeavoring to
improve. The court cited outlined Strowder’s extensive criminal history and
ultimately concluded that consecutive sentences should be imposed. The court
sentenced Strowder to a total of 12 years for the firearm specifications and a total of
22 years on the other offenses, noting that the rape and kidnapping convictions
carried a life tail, for a total sentence of 34 years-to-life. The court also ordered that
the sentence be served consecutively to the Stark County conviction, and Strowder
filed the instant appeal.
This court instructed the parties to advise us of the date when
Strowder will be eligible for parole. The parties stated that he would be eligible for
parole in this matter in October 2050, at age 54. The trial court subsequently
indicated that he would be eligible (in relation to both this matter and the Stark
County matter) in September 2057, when he is 61 years old.
Law and Analysis
Strowder argues that his sentence of 34 years-to-life imprisonment
constitutes cruel and unusual punishment because it does not provide him with a
meaningful opportunity for release.
The Eighth Amendment to the United States Constitution’s
prohibition against cruel and unusual punishment includes the “precept of justice
that punishment for crime should be graduated and proportioned to [the] offense.”
Moore, 149 Ohio St. 3d 557, 2016-Ohio-8288, 76 N.E.3d 1127, at ¶ 31, quoting
Weems v. United States, 217 U.S. 349, 367, 30 S. Ct. 544, 54 L. Ed. 793 (1910). This
aspect of the Eighth Amendment encompasses certain categorical restrictions,
including the categorical prohibitions of certain punishments for juveniles. Id. at ¶
33. Two such prohibitions are that courts may not impose mandatory life-without-
parole sentences on offenders who commit murder as juveniles, and courts may not
impose life-without-parole sentences on nonhomicide juvenile offenders. Id., citing
Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), and
Graham, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825.
In Graham, the court held that sentences of life imprisonment
without parole for juvenile nonhomicide offenders are cruel and unusual in light of
the limited moral culpability of these offenders, the inadequacy of penological
theory justifying such sentences, and the severity of such sentences in relation of
juvenile offenders. Graham at 74. However, the Graham court cautioned that it
was not “guarantee[ing] eventual freedom to a juvenile offender convicted of a
nonhomicide crime.” Rather,
[w]hat the State must do * * * is give defendants like Graham some
meaningful opportunity to obtain release based on demonstrated
maturity and rehabilitation. It is for the State, in the first instance, to
explore the means and mechanisms for compliance. It bears emphasis,
however, that while the Eighth Amendment prohibits a State from
imposing a life without parole sentence on a juvenile nonhomicide
offender, it does not require the State to release that offender during
his natural life. Those who commit truly horrifying crimes as juveniles
may turn out to be irredeemable, and thus deserving of incarceration
for the duration of their lives. The Eighth Amendment does not
foreclose the possibility that persons convicted of nonhomicide crimes
committed before adulthood will remain behind bars for life. It does
prohibit States from making the judgment at the outset that those
offenders never will be fit to reenter society.
(Emphasis added.) Id. at 75.
In Moore, the Ohio Supreme Court held that these considerations are
applicable to both juvenile offenders sentenced to life imprisonment without parole
for a nonhomicide offense and juvenile nonhomicide offenders sentenced to prison
for terms of years extending beyond life expectancy. Id. at ¶ 1, 48. The court
concluded that imposition of sentences for terms of years that extend beyond the
offender’s life expectancy are “functional life sentences.” Id. at ¶ 59.
In calculating Moore’s parole eligibility, the court noted that Moore
was sentenced to a total of 112 years, and his six ten-year sentences for rape and his
four three-year firearm specifications were mandatory terms under R.C. 2929.13(F)
and 2941.145. Moore would be eligible for parole after 77 years, or when he is 92
years old. This rendered Moore’s sentence a “functional life sentence.” Id., 149 Ohio
St.3d 557 2016-Ohio-8288, 76 N.E.3d 1127, at ¶ 30, 48 (applying U.S. Department
of Health and Human Services, National Vital Statistics Reports, Volume 52,
Number 3, at 26 (2003),
http://www.cdc.gov/nchs/data/nvsr/nvsr52/nvsr52_03.pdf (accessed Oct. 5,
2016). The Moore court also held that the “meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation” established in Graham, 560
U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825, is not reserved solely for juvenile offenders
who commit a single nonhomicide offense. Moore at ¶ 65.
Significantly, the Moore court recognized that “Graham is less
concerned about how many years an offender serves in the long term than it is about
the offender having an opportunity to seek release while it is still meaningful.” Id.
at ¶ 63. The Moore court reviewed various cases applying Graham and observed
that “[State v. Null, 836 N.W.2d 41 (Iowa 2013)] made clear that courts should not
undertake fine line-drawing to determine how close to the mark a sentencing court
can come to a defendant’s life expectancy.” However, the Moore court noted with
approval various cases finding Graham’s protections applicable (or “functional life
sentences” as used in Moore) to sentences with terms ranging from 50 years to 110
years to life.
Later, in State v. Watkins, 10th Dist. Franklin Nos. 13AP-133 and
13AP-134, 2018-Ohio-5137, the court reviewed various cases and concluded that
parole eligibility at 62 years old to be the “outer limit” of what is constitutionally
acceptable. Id. at ¶ 28-31. See also State v. Burns, 2d Dist. Montgomery No. 27374,
2018-Ohio-1419, ¶ 21-23 (juvenile defendant’s aggregate 44-years-to-life sentence
for aggravated murder was permissible where the defendant would be eligible for
parole at age 59); State v. Taylor, 2d Dist. Montgomery No. 27879, 2018-Ohio-
4628, ¶ 11 (juvenile defendant’s aggregate 41-years-to-life sentence for murder was
permissible where the defendant would be eligible for parole at age 58). See also Ira
v. Janecka, 419 P.3d 161 (N.M.2018) (sentence permissible where the defendant
would be eligible for parole at 62 years old); Demirdjian v. Gipson, 832 F.3d 1060
(9th Cir.2016) (sentence permissible where the defendant would be eligible for
parole at 66 years old); Bryant v. Foulk, E.D.Cal. No. 2:13-cv-1750-MCE-GGH, 2014
U.S. Dist. LEXIS 152770 (Oct. 28, 2014) (sentence permissible where the defendant
would be eligible for parole at 61 years old).
In this matter, Strowder was originally sentenced to 50 years to life to
be served consecutively to the Stark County term. On this court’s remand in
Strowder I, the trial court made an extremely significant downward departure in
the sentence. On remand, Strowder’s 50 years to life sentence was reduced to 34
years to life (because of the life tail for the sexually violent predator specification),
and consecutive to the Stark County conviction. As set out in the record, Strowder
would have been eligible for parole at 54 years old strictly in relation to this offense.
However, the sentence was ordered to be served consecutively to the Stark County
conviction, so he will be eligible at age 61 in relation to both offenses. Under the case
law, this is not a functional life sentence. It provides Strowder with a realistic and
meaningful opportunity to demonstrate maturity and reform, and it potentially
enables him to return to society within his normal life expectancy. Moreover, given
the nature of the offenses and that Strowder was determined to have a “high risk” of
reoffending, the trial court fashioned a sentence that punishes for the extremely
heinous offenses without imposing cruel and unusual punishment.
That being said, we urge the legislature to examine this important
issue in order to provide courts with additional guidance and to directly address the
issue of juvenile offender parole eligibility. “Precisely when a juvenile offender
facing a long term-of-years prison sentence should be granted the opportunity for
release is a legitimate policy issue subject to fair debate.” Watkins, 2018-Ohio-5137,
at ¶ 32. Courts should not arbitrarily pick the point at which multiple aggregated
sentences may become the functional equivalent of life without parole. In addition,
legislative assistance could help courts to reconcile Moore’s acknowledgement that
“the state retains the ability, upon a meaningful evaluation of an offender who
committed a nonhomicide offense as a juvenile, to impose lifetime incarceration
upon the most serious offenders” with the requirement of a meaningful “opportunity
to obtain release based on demonstrated maturity and rehabilitation.”
Accordingly, the assigned error is without merit.
Finally, the defense and state both note that the trial judge committed
a clerical error in the issuance of the judgment entry of conviction regarding the four
firearm specifications. The court stated during the sentencing hearing as follows:
This Court is going to sentence the defendant on Count 2 to 11 years
consecutive to 11 years on Count 3. Concurrent to 11 years on Count 4.
Concurrent to 11 years on Count 5. Counts 2 will have the three-year
firearm spec to be served prior to and consecutive with the three years.
Count 3 will also have a three-year firearm spec as the law requires me
to do which will also be consecutive to and prior to the 11 years. And
the Court will also run the 1 three-year firearm spec on Counts 4 and 5
consecutive to the other three-year firearm spec for a total of 34 years.
Yet the court’s sentencing order states:
Count 2: Three year firearm spec to be served prior to and consecutive
with 11 years to life.
Count3: Three year firearm spec to be served prior to and consecutive
with 11 years to life.
Counts 2 and 3 to run consecutive to one another and concurrent to all
other counts.
Count 4: Three year firearm spec to be served prior to and consecutive
with 11 years to life.
Count 5: Three year firearm spec to be served prior to and consecutive
with 11 years to life.
Counts 4 and 5 to run concurrent to each other and to Counts 2 and 3.
Pursuant to R.C. 2929.14(B)(1)(g), the firearm specs are to run
concurrent to one another for a total of 12 years on the firearm specs.
Total sentence 22 years plus 12 years on the firearm specs =34 years.
Consecutive to case out of Stark County.
In accordance with the foregoing, the court must issue a nunc pro
tunc correction to reflect the information provided at sentencing regarding the four
firearm specifications.
Judgment is affirmed and remanded to the trial court for further
proceedings consistent with this opinion.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court for the issuance of a nunc pro tunc sentencing journal entry and
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_______
PATRICIA ANN BLACKMON, PRESIDING JUDGE
ANITA LASTER MAYS, J., CONCURS;
LARRY A. JONES, SR., J., DISSENTS
WITH SEPARATE OPINION
LARRY A. JONES, SR., J., DISSENTING:
“The ‘imposition of a State’s most severe penalties on juvenile
offenders cannot proceed as though they were not children.’” Moore, 149 Ohio St. 3d
557, 2016-Ohio-8288, 76 N.E.3d 1127, at ¶ 62, quoting Miller, 567 U.S. at 474, 132
S. Ct. 2455, 183 L. Ed. 2d 407. For the reasons that follow, I dissent.
There is no dispute that the crimes committed in this case were
heinous and deserving of punishment ─ Strowder deserves to spend a significant
amount of time in prison. But just as we cannot ignore the horrible facts of this case,
we also cannot ignore the fact that Strowder was a child when he committed these
crimes and the fact that, based on his sentence, he will be 61 years old before he has
his first opportunity for release from prison. Even though Strowder committed
unspeakable acts, he is a juvenile nonhomicide offender; therefore, as determined
by the United States Supreme Court and Ohio Supreme Court, he deserves a chance
to have a meaningful opportunity at life outside of prison.
This court remanded Strowder I to hold a sentencing hearing that
comported with Moore and Graham, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825.
On appeal, we are to consider whether his current sentence provides a “meaningful
opportunity” as guaranteed by the Eighth Amendment. Because Strowder is not
eligible to go in front of the parole board until 2057, when he will be 61 years old, I
find that it does not. I believe the sentence the trial court imposed in this case is
therefore unconstitutional.
In 2005, the United States Supreme Court prohibited the imposition
of the death penalty for juvenile offenders. Roper v. Simmons, 543 U.S. 551, 125
S. Ct. 1183, 161 L. Ed. 2d 1 (2005). Five years later, the court prohibited the
imposition of life without parole sentences for juvenile nonhomicide offenders.
Graham at 75. More recently, the court prohibited the mandatory imposition of life
without parole for juvenile homicide offenders in Miller, 567 U.S. 460, 132 S. Ct.
2455, 183 L. Ed. 2d 407.
In each of these cases, the Supreme Court has justified its holdings, in
part, because of the recognition that children are different from adults:
(1) [C]hildren have a “lack of maturity and an underdeveloped sense
of responsibility” leading to recklessness, impulsivity, and heedless
risktaking.”
(2) [C]hildren “are more vulnerable * * * to negative influences and
outside pressures,” including from their family and peers; they have
limited “contro[l] over their own environment” and “lack the ability to
extricate themselves from horrific, crime-producing settings.”
(3) A child’s character is not as well formed as an adults; his [or her]
traits are “less fixed” and his [or her] actions less likely to be “evidence
of irretrievabl[e] deprav[ity].”
Miller at 471, citing Roper at 569-570.
A “child’s age is far ‘more than a chronological fact.’” J.D.B. v. North
Carolina, 564 U.S. 261, 323, 131 S. Ct. 2394, 180 L. Ed. 2d 310 (2011), quoting
Eddings v. Oklahoma, 455 U.S. 104, 115, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982). “It is a
fact that ‘generates common sense conclusions about [a child’s] behavior and
perception.’” J.D.B. at id., quoting Yarborough v. Alvarado, 541 U.S. 652, 674, 124
S. Ct. 2140, 158 L. Ed. 2d 938 (2004) (Breyer, J., dissenting). A child’s “transient
rashness, proclivity for risk, and inability to assess consequences” not only lessen a
child’s moral culpability, but also enhance the prospect that as the years go by and
neurological development occurs, a child’s deficiencies will be reformed. Miller at
472.
“The most important attribute of the juvenile offender is the
potential for change.” Moore, 149 Ohio St. 3d 557, 2016-Ohio-8288, 76 N.E.3d 1127,
at ¶ 42. Both the United States Supreme Court and the Ohio Supreme Court have
found that imposing sentences that exceed the life expectancy of juvenile
nonhomicide offenders is cruel and unusual punishment. This is because “[t]he
Eighth Amendment * * * prohibit[s] States from making the judgment at the outset
that [juvenile nonhomicide] offenders will never be fit to reenter society.” Moore at
¶ 45, quoting Graham, 560 U.S. at 75, 130 S. Ct. 2011, 176 L. Ed. 2d 825.
[A] juvenile who did not kill or intend to kill has “twice diminished
moral culpability” based on * * * the nature of the crime and the
juvenile’s age. As for the nature of the crime, the [U.S. Supreme
Court] found that “[a]lthough an offense like robbery or rape ‘is a
serious crime deserving serious punishment,’ those crimes differ from
homicide-crimes in a moral sense,” such that nonhomicide
defendants “are categorically less deserving of the most serious forms
of punishment than are murderers.”
Moore at ¶ 36, quoting Graham at 69.
Thus, as reflected in the above cited cases, juveniles have lessened
moral culpability and are potentially redeemable. Because no one can definitively
say at the onset whether a juvenile’s crimes, even crimes like Strowder committed,
are the result of immaturity or are the product of “irreparable corruption,” all
children who are convicted of nonhomicide offenses in criminal court must be
granted a “meaningful opportunity to obtain release, based on demonstrated
maturity and rehabilitation.” Graham at 68. “It does not take an entire lifetime for
a juvenile offender to earn a first chance to demonstrate that he [or she] is not
irredeemable.” Moore at ¶ 47. Yet, based on his current sentence, Strowder will not
earn that first chance until he is 61 years old, having been in prison (or its juvenile
equivalent) since he was 17 years old.
While Strowder may certainly live past the age of 61, the United
States Supreme Court views the concept of a life sentence “more broadly than
biological survival * * * an individual is effectively incarcerated for ‘life’ if he [or she]
will have no opportunity to truly reenter society or have a meaningful life outside of
prison.” Moore at ¶ 84, quoting Casiano v. Commr. of Corr., 317 Conn. 52, 78, 115
A.3d 1031 (2015).
A juvenile offender is typically put behind bars before he [or she] has
had the chance to exercise the rights and responsibilities of adulthood,
such as establishing a career, marrying, raising a family, or voting.
Even assuming the juvenile offender does live to be released, after a
half century of incarceration, he [or she] will have irreparably lost the
opportunity to engage meaningfully in many of these activities and
will be left with seriously diminished prospects for his [or her] quality
of life for the few years he [or she] has left. A juvenile offender’s
release when he [or she] is in his [or her] late sixties comes at an age
when the law presumes that he [or she] no longer has productive
employment prospects. Indeed, the offender will be age-qualified for
Social Security benefits without ever having had the opportunity to
participate in gainful employment.
Casiano at 77.
Thus, “[a]s a practical matter, a juvenile offender sentenced to a
lengthy term-of-years sentence will not have a ‘meaningful opportunity for release.”’
Cloud v. State, 2014 WY 113, 334 P.3d 132, ¶ 34 (2014). “The United States
Sentencing Commission recognizes this reality when it equates a sentence of 470
months (39.17 years) to a life sentence.” Id., citing U.S. Sentencing Commission
Preliminary Quarterly Data Report (through Mar. 31, 2014), at 8.1
In determining whether Strowder’s sentence would give him a
meaningful opportunity to have a life outside prison, this court should note that
Moore, 149 Ohio St. 3d 557, 2016-Ohio-8288, 76 N.E.3d 1127, and Graham, 560 U.S.
at 75, 130 S. Ct. 2011, 176 L. Ed. 2d 825, tell us that a sentence should be composed
not with the intent “to eventually allow juvenile offenders the opportunity to leave
prison in order to die” but with the intent that juvenile offenders will be able to “live
part of their lives in society.” See Moore at ¶ 46. “Graham is less concerned about
how many years an offender serves in the long term than it is about the offender
having an opportunity to seek release while it is still meaningful.” Moore at ¶ 63.
Thus, pursuant to Graham and Moore, the constitutional requirement is that the
juvenile offender be given the chance to seek release while his or her life “is still
meaningful”— a meaningful opportunity to seek a meaningful life outside of prison.
I emphasize that allowing Strowder an earlier chance at parole does
not guarantee release. The Graham court recognized that “those who commit truly
horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving
1The most recent report kept the same calculation. See U.S. Sentencing
Commission Quarterly Data Report (through Mar. 31, 2019),
at A-4, https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal
sentencing-statistics/quarterly-sentencing-updates/USSC_Quarter_Report_2nd_ Y19.
pdf (accessed July 30, 2019).
of incarceration for the duration of their lives.” Id. at 75. Moreover, as a practical
matter, it is unlikely that Strowder, a violent offender with a life-tail sentence, will
be granted parole the first time he appears before the parole board. See Ohio
Department of Rehabilitation and Correction, Calendar Year 2018 Report,
https://drc.ohio.gov/Portals/0/PAROLE%20BOARD%20REPORT_CY2018%20A
NNUAL.pdf (accessed Aug. 6, 2019) (In 2018, 1,269 inmates appeared before the
parole board. The board granted parole to only 226 (17.8%).)
Although neither the United States Supreme Court nor the Ohio
Supreme Court has given numeric figures when defining “meaningful opportunity”
in years, the courts provide guidance to sentencing courts by highlighting what
defining principles require different treatment of juveniles under the constitution.
For example, courts must recognize a juvenile offender’s “capacity for change and
limited moral culpability,” offer “hope of restoration,” give a “chance for fulfillment
outside prison walls,” and “for reconciliation with society.” Graham at 74-79. This
recognition includes the opportunity for the juvenile offender to achieve “maturity
of judgment and self-recognition of human worth and potential.” Id. at 79.
Sentencing courts must also keep in mind that the United States
Supreme Court has equated the “meaningful opportunity for release based on
demonstrated maturity and rehabilitation” with a “hope for some years of life
outside prison walls.” Carter v. State, 461 Md. 295, 356, 192 A.3d 695 (2018), citing
Montgomery v. Louisiana, 577 U.S.___, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016); see
also Moore, 149 Ohio St. 3d 557, 2016-Ohio-8288, 76 N.E.3d 1127 (finding that
juvenile nonhomicide offender must be given a chance to demonstrate the change
they have undergone since committing their crimes so that they can potentially
reenter society with enough time left for a meaningful life outside of prison).
As other states have recognized, Graham, 560 U.S. at 75, 130 S. Ct.
2011, 176 L. Ed. 2d 825, envisioned “more than the mere act of release or a de minimis
quantum of time outside prison.” People v. Contreras, 4 Cal.5th 349, 368, 411 P.3d
445, 229 Cal. Rptr. 3d 249 (2018). Graham spoke of the chance to rejoin society in
qualitative terms — “the rehabilitative ideal” — that contemplates a sufficient period
to achieve reintegration as a productive and respected member of the citizenry.
Contreras at id. Because courts have recognized that children are different from
adults, children convicted in criminal court must be given the opportunity to regain
their “value and place in society.” Graham at 79. As the Ohio Supreme Court
recognized in Moore, Graham’s holding is more than mere formalism. Instead,
Moore determined that the “key principle” for ensuring that a juvenile nonhomicide
offender receives a constitutional sentence is that the juvenile offender have the
opportunity to someday demonstrate that they are worthy to reenter society. Id. at
¶ 63.
“An opportunity to obtain release does not seem ‘meaningful’ or
‘realistic’ within the meaning of Graham if the chance of living long enough to make
use of that opportunity is roughly the same as a coin toss.” Contreras at 364. Here,
the trial court did not grant Strowder a meaningful opportunity for release when it
sentenced him to a term of years that precludes parole board review until he is 61
years old.
It is clear from the sentencing transcript that the trial court failed to
follow the mandate we set forth in Strowder I ─ to resentence Strowder to a term of
years that would afford him a “meaningful opportunity for parole.” Strowder I at ¶
45. Instead, the trial court determined what sentence length would fall short of
Strowder’s life expectancy, asking the parties if they had consulted actuarial tables,
before stating that a sentence of 34 years was “under the life expectancy. If anyone
had checked and we checked the tables, I believe the life expectancy is upward of 70
and 80 years depending on race and other things.” But Moore, 149 Ohio St. 3d 557,
2016-Ohio-8288, 76 N.E.3d 1127, was not only concerned with release while an
offender could create a meaningful life; Moore emphasized that courts should not
“undertake fine line-drawing to determine how close to the mark a sentencing court
can come to a defendant’s life expectancy.” Id. at ¶ 82, citing Null, 836 N.W.2d 41,
citing Graham. “The important factor, instead, is the recognition that children have
lessened moral culpability and are redeemable and so must be given a chance to
demonstrate the change they have undergone since committing their crimes.”
Moore, 149 Ohio St. 3d 557, 2016-Ohio-8288, 76 N.E.3d 1127, at id. Given the
immense challenges facing a person who spends decades in prison, I simply do not
agree that release from prison after spending the majority of one’s life incarcerated,
from adolescence into one’s sixties, allows the opportunity to reenter society with
enough time left for a “meaningful and productive life outside prison.” Contrary to
this court’s mandate in Strowder I, “fine line-drawing” is exactly what the trial court
did.
There are two other problems with the court’s sentence. First, the
court’s use of actuarial tables raises concerns about equal protection, given the
differences in life expectancy among races, genders, etc. Second, life expectancy is
an average. Not surprisingly, the life expectancy of people who have been
imprisoned for most of their lives is not the same as people who have spent the
majority of their lives outside of prison. See State v. Gilbert, Wash. App. No. 33794-
4-III, 2018 Wash. App. LEXIS 740, ¶ 108 (Apr. 3, 2018) (Fearing, J., dissenting),
rev’d, 193 Wash.2d 169, 438 P.3d 133 (2019) (“Court decisions fail to mention that
incarceration decreases one’s life expectancy. * * * [F]or every year spent behind
bars, overall life expectancy decreases two years. This evidence suggests that a
juvenile offender sentenced to a fifty-year term of imprisonment may never
experience freedom.”) See also People v. Buffer, 2019 IL 122327, ¶ 66, citing
Deborah LaBelle, Michigan Life Expectancy Data for Youth Serving Natural Life
Sentences (2013), available at http://www.lb7.uscourts.gov/documents/17-
12441.pdf [https://perma.cc/9PSY-3B6Q] (accessed July 30, 2019) (concluding
that Michigan juveniles sentenced to natural life sentences have an average life
expectancy of 50.6 years); Straley, Miller’s Promise: Re-Evaluating Extreme
Criminal Sentences for Children, 89 Wash. L. Rev. 963, 986, fn. 142 (2014) (“The
high levels of violence and communicable diseases, poor diets, and shoddy health
care [in prison] all contribute to a significant reduction in life expectancy behind
bars.”); Null at id. (acknowledging that “long-term incarceration [may present]
health and safety risks that tend to decrease life expectancy as compared to the
general population”); United States v. Tavares, 436 F. Supp. 2d 493, 500 (E.D.N.Y.
2006) (finding that persistent problems in prisons of rape, gang violence, use of
excessive force by officers, and contagious diseases lead to a lower life expectancy).
Courts in other states have determined that life expectancy data
should not be used when determining whether a juvenile offender’s sentence
violates the Eighth Amendment. The Supreme Court of Iowa held that whether a
sentence violates Graham must not “turn on the niceties of epidemiology, genetic
analysis, or actuarial sciences in determining precise mortality dates.” Null at id.
The Supreme Court of New Jersey held that “[j]udges * * * should not resort to
general life-expectancy tables when they determine the overall length of a sentence,”
since “those tables rest on informed estimates, not firm dates, and the use of factors
like race, gender, and income could raise constitutional issues.” State v. Zuber, 227
N.J. 422, 449, 152 A.3d 197 (N.J. 2017). See also Cloud, 2014 WY 113, 334 P.3d 132;
Cummings and Colling, There is No Meaningful Opportunity in Meaningless Data:
Why it is Unconstitutional to Use Life Expectancy Tables in Post-Graham
Sentences, 18 U.C. Davis J. Juv.L. & Policy 267 (2014) (criticizing Colorado courts’
reliance on life expectancy tables in sentencing juvenile offenders).
I recognize that some Ohio courts have upheld long-term sentences
for nonhomicide juvenile offenders post-Graham, 560 U.S. at 75, 130 S. Ct. 2011, 176
L. Ed. 2d 825 and Moore, 149 Ohio St. 3d 557, 2016-Ohio-8288, 76 N.E.3d 1127. In
Watkins, 10th Dist. Franklin Nos. 13AP-133 and 13AP-134, 2018-Ohio-5137,
discretionary appeal not allowed, 155 Ohio St. 3d 1422, 2019-Ohio-1421, 120
N.E.3d 868, the Tenth District Court of Appeals determined that opportunity for
judicial release at age 50 complies with the Eighth Amendment as interpreted by
Graham and Moore. Watkins at ¶ 25. Based on Moore, Watkins found that term-
of-years sentences that exceed a juvenile defendant’s life expectancy for
nonhomicide offenses may be acceptable when a defendant has the opportunity to
demonstrate maturity and rehabilitation before his or her “geriatric” years. Watkins
at ¶ 30.
Watkins concluded that Moore “made clear” that juvenile sentences
run afoul of the Eighth Amendment when: (1) the aggregate sentence exceeds the
juvenile’s life expectancy; and (2) the juvenile has no meaningful opportunity to
obtain release and reenter society based upon demonstrated maturity and
rehabilitation prior to the completion of the sentence. Watkins at ¶ 22. Watkins
concluded that the appellant’s sentence was constitutional because he would have
the opportunity for judicial release at age 50, which would give him the “opportunity
to seek release while it is still meaningful.” Id. at ¶ 32.
Watkins interpreted Moore to mean a juvenile nonhomicide sentence
does not violate the Eighth Amendment even if the aggregate sentence exceeds the
juvenile’s life expectancy so long as the juvenile has a meaningful opportunity to
obtain release and reenter society based upon demonstrated maturity and
rehabilitation prior to the completion of his or her lengthy prison term. While
Watkins recognized “significant challenges that confront any defendant who
reenters society after many years of incarceration,” the court found that the
defendant would have “the opportunity to demonstrate maturity and rehabilitation
at an age when most people are still in good health and in their prime working
years”:
[T]he possibility for judicial release at age 50 grants Watkins the
opportunity to reenter society with enough time left for a meaningful
and productive life outside prison. To conclude otherwise would
suggest there is not enough time left after a person reaches age 50 for
life to be meaningful and productive. This is a proposition we cannot
accept.
Id. at ¶ 28.
I disagree with the analysis in Watkins, 10th Dist. Franklin Nos.
13AP-133 and 13AP-134, 2018-Ohio-5137. The court relied on two Ohio cases where
the appellate courts held that eligibility for parole at age 58 or 59 does not violate
the Eighth Amendment: State v. Taylor, 2d Dist. Montgomery No. 27879, 2018-
Ohio-4628, ¶ 11, and State v. Burns, 2d Dist. Montgomery No. 27374, 2018-Ohio-
1419, ¶ 21-23. But Taylor and Burns concerned juvenile homicide offenders ─
Taylor, who was convicted of murder and Burns, who was convicted of aggravated
murder. See Graham, 560 U.S. at 69, 130 S. Ct. 2011, 176 L. Ed. 2d 825
(distinguishing nonhomicide offenses from homicide offenses “in a moral sense”
because nonhomicide juvenile offenders “are categorically less deserving of the most
serious forms of punishment than are murderers.”)
The majority in this case also rely on Taylor and Burns; because
those cases involve homicide offenses, such reliance is misplaced. In addition,
Strowder will be 11 years older than Watkins when he first becomes eligible for
parole. Moreover, Watkins’ conclusion that it cannot accept a proposition that one
cannot have a meaningful life after age 50: (1) ignores the harsh realities of spending
one’s entire adult life incarcerated, (2) ignores the difference between continuing a
meaningful life into one’s 50s versus attempting to start a meaningful life after being
incarcerated for the majority of one’s life. See Casiano, 317 Conn. at 78, 115 A.3d
1031.
In a recent case from our district, State v. Collins, 8th Dist. Cuyahoga
Nos. 106590, 107341, 2019-Ohio-249, ¶ 21, this court upheld a 29-year sentence
where the juvenile offender would be eligible for judicial release after 14.5 years,
when he will be 32 years old. The current case is distinguishable; Strowder was
sentenced to a 34-years-to-life sentence and will not be eligible for parole until he is
61, almost twice the age of the offender in Collins.
When a juvenile is sentenced to a long term-of-years sentence, as
occurred in this case, the juvenile often ends up serving more years than his or her
adult equivalent. See Moore, 149 Ohio St. 3d 557, 2016-Ohio-8288, 76 N.E.3d 1127,
at ¶ 62, quoting Graham, 560 U.S. at 50, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (Under a
life-without-parole sentence, a juvenile offender “will on average serve more years
and a greater percentage of his [or her] life in prison than an adult offender.”)
The same mathematical reality — that a person who begins serving a
life sentence as a juvenile serves a greater number of years and a
greater percentage of his or her life in prison than a person who starts
serving his sentence as an adult — extends to multidecade sentences
that outstrip a juvenile’s life expectancy. The practical reality is that
juveniles sentenced to terms extending beyond their life expectancies
are serving the lengthiest sentences — in terms of the number of years
actually served in prison — that a state can impose.
Moore at ¶ 53.
I also emphasize that, in Ohio, Strowder, who is a juvenile
nonhomicide offender, has a parole eligibility date that far exceeds the parole
eligibility date for an offender sentenced to life in prison for murder. See R.C.
2903.02 and 2929.02 (With some exceptions, a person convicted of murder shall be
imprisoned for an indefinite term of 15 years to life.). In addition, although I
recognize our focus is the age that Strowder is eligible for parole and whether, at that
age, he will have a meaningful opportunity to reenter society, the court should not
discount that role of the parole board in determining his release; the discretion of
the Ohio Adult Parole Authority and the parole board over parole matters is “wide-
ranging.” State ex rel. Keith v. Ohio Adult Parole Auth., 141 Ohio St. 3d 375, 2014-
Ohio-4270, 24 N.E.3d 1132, ¶ 26.
A prisoner has no constitutional or statutory right to parole. State ex
rel. Henderson v. Ohio Dept. of Rehab. & Corr., 81 Ohio St. 3d 267,
268, 1998 Ohio 631, 690 N.E.2d 887 (1998). Because there is no such
right, a prisoner who is denied parole is not deprived of liberty as long
as state law makes the parole decision discretionary. Id. at
125. Under R.C. 2967.03, the parole decision in Ohio is discretionary.
Keith at ¶ 19.
If an inmate is denied parole at his or her hearing, under most
circumstances, the board need not hold another hearing for up to ten years. Ohio
Adm.Code 5120:1-1-10(B) (“If the parole board denies parole at an inmate’s
regularly constituted hearing and does not set a projected release date, then the
board must set a time for a subsequent hearing not more than ten years from the
date of the first hearing.”).2
The majority posits that Strowder’s sentence is constitutional
because it is not a “functional life sentence” and provides him with a “realistic and
meaningful opportunity to demonstrate maturity and reform” and the “potential to
return to society within his normal life expectancy.” I disagree. While the facts of
this case, as in Moore, 149 Ohio St. 3d 557, 2016-Ohio-8288, 76 N.E.3d 1127,
certainly do not “engender a sense of sympathy” for Strowder, the mandate in
Strowder I was clear and, for me, the question is simple: Will Strowder have a
meaningful opportunity to reenter society and have a meaningful life after being
incarcerated for almost his entire adult life, from age 17 to 61, given all the
circumstances, risks, and dangers attendant to prison life? I opine that he will not
2Although some progress is being made in Ohio to reform the parole system and
parole boards, see https://governor.ohio.gov/wps/portal/gov/governor/media/news-
and-media/ 050119 (accessed Aug. 6, 2019), Ohio is lagging behind other states. Contrast
Pennsylvania, which has one of the largest populations of prisoners serving life without
parole (5,102 prisoners, of whom 480 were juveniles at the time of their offense), but,
where, on average, 58 percent of parole applicants were granted parole between February
2015 and January 2016. False Hope: How Parole Systems Fail Youth Serving Extreme
Sentences, https://www.aclu.org/sites/default/files/field_document/121416-aclu-pa-
role reportonlinesingle.pdf (accessed Aug. 6, 2019).
and, therefore, under Graham, 560 U.S. at 50, 130 S. Ct. 2011, 176 L. Ed. 2d 825, and
Moore, his sentence is unconstitutional.
“[I]t is important that the spirit of the law not be lost in the
application of the law”:
The spirit of the constitutional mandates of Miller [567 U.S. 460, 132
S. Ct. 2455, 183 L. Ed. 2d 407] and Graham instruct that much more is
at stake in the sentencing of juveniles than merely making sure that
parole is possible. In light of our increased understanding of the
decision making of youths, the sentencing process must be tailored to
account in a meaningful way for the attributes of juveniles that are
distinct from adult conduct. At the core of all of this also lies the
profound sense of what a person loses by beginning to serve a lifetime
of incarceration as a youth.
Moore at ¶ 80, citing State v. Ragland, 836 N.W.2d 107, 121 (Iowa 2013).
A juvenile nonhomicide offender sentenced to a 34-years-to-life
sentence when the first opportunity for parole is at age 61 violates the Eighth
Amendment’s prohibition on cruel and unusual punishment as set forth in Graham
and Moore. I would sustain the assignment of error and reverse Strowder’s
sentence.