State v. Roark , 2015 Ohio 3811 ( 2015 )

[Cite as State v. Roark, 2015-Ohio-3811.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
MERCER COUNTY
STATE OF OHIO, CASE NO. 10-14-11
PLAINTIFF-APPELLEE,
v.
TREVIN M. SANDERS ROARK, OPINION
DEFENDANT-APPELLANT.
Appeal from Mercer County Common Pleas Court
Trial Court No. 13-CRM-092
Judgment Affirmed
Date of Decision: September 21, 2015
APPEARANCES:
Stephen A. Goldmeier for Appellant
Matthew K. Fox for Appellee
Case No. 10-14-11
WILLAMOWSKI, J.
{¶1} Defendant-appellant Trevin M. Sanders Roark (“Appellant”) brings
this appeal from the judgment of the Court of Common Pleas of Mercer County.
Appellant claims that the trial court erred in sentencing him to consecutive life
sentences without the opportunity for parole and by requiring that his case be
transferred to adult court. For the reasons set forth below, the judgment is
affirmed.
{¶2} In November 2011, Appellant, Bryant Rhoades (“Rhoades”) and
additional unknown accomplices forcefully entered the home of Robert Grube
(“Robert”) and his daughter Colleen Grube (“Colleen”). Robert was 70 years old
at the time and was confined to a wheelchair. Colleen was 47 years old at the time
and provided care for Robert. Appellant and the other assailants targeted the home
to obtain money to support their methamphetamine addiction and even stopped on
their way to the house to get “high”. Once they forced their way into the home,
the assailants duct-taped Robert into his wheelchair and duct-taped Colleen and
put her on the couch. The assailants held the pair at gunpoint to prevent them
from escaping. The assailants then ransacked the home searching for items to
steal. Appellant then fired several shots into Colleen, killing her. After killing
Colleen, Appellant gave the gun to Rhoades knowing that Rhoades intended to kill
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Robert with it and Rhoades then did so. The purpose for the killings was to
prevent Robert and Colleen from identifying them.
{¶3} On March 26, 2013, a 27-count complaint was filed in the Juvenile
Division of the Mercer County Court of Common Pleas. J.Doc. 1.1 The next day
the State filed a motion to transfer the proceedings to the Criminal Division, based
on the charges contained in the complaint. J.Doc. 7. A probable cause hearing
was held in the Juvenile Court on June 7, 2013. J.Doc. 29. The Juvenile Court
found that Appellant’s date of birth was in April, 1994, which made him 17 years
old at the time of the offense. Id. The court also found that there was probable
cause to believe that Appellant had committed the offenses stated in the complaint
and that due to the nature of the offenses charged, the court was required to bind
Appellant over to the Criminal Division of the court for prosecution as an adult.
Id.{¶4} On June 10, 2013, the Mercer County Grand Jury indicted Appellant
on twenty-seven counts: 1) two counts of Aggravated Murder in violation of R.C.
2903.01(A) with firearm specifications; 2) two counts of Aggravated Murder in
violation of R.C. 2903.01(B) with firearm specifications; 3) two counts of Murder
in violation of R.C. 2903.02(A) with firearm specifications; 4) two counts of
Murder in violation of R.C. 2903.02(B) with firearm specifications; 5) two counts
1
The juvenile court’s docket was incorporated into the docket as items 1 and 2. For the purpose of clarity,
the items from that docket will be identified as J.Doc. and the number. Items from the Criminal Division
shall be identified as Doc. and the number.
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of Involuntary Manslaughter in violation of R.C. 2903.04(A) with firearm
specifications; 6) two counts of Kidnapping in violation of R.C. 2905.01(A)(2)
with firearm specifications; 7) two counts of Kidnapping in violation of R.C.
2905.01(A)(3) with firearm specifications; 8) two counts of Aggravated Robbery
in violation of R.C. 2911.01(A)(1) with firearm specifications; 9) two counts of
Aggravated Robbery in violation of R.C. 2911.01(A)(3) with firearm
specifications; 10) two counts of Aggravated Burglary in violation of R.C.
2911.11(A)(1) with firearm specifications; 11) two counts of Aggravated Burglary
in violation of R.C. 2911.11(A)(2) with firearm specifications; 12) two counts of
Burglary in violation of R.C. 2911.12(A)(1) with firearm specifications; 13) two
counts of Theft in violation of R.C. 2913.02(A)(1) with firearm specifications; and
one count of Theft in violation of R.C. 2913.02(A)(1);(B)(4) with a firearm
specification. Doc. 3. Appellant was arraigned on July 2, 2013, and entered pleas
of not guilty to all counts of the indictment. Doc. 19.
{¶5} On February 27, 2014, a hearing was held for Appellant to change his
plea from not guilty to guilty on some of the charges pursuant to a negotiated plea
agreement. Doc. 61. Appellant agreed to enter guilty pleas to Counts One and
Two of Aggravated Murder with firearm specifications, Counts Fifteen and
Sixteen of Aggravated Robbery without specifications, and Counts Nineteen and
Twenty of Aggravated Burglary without specifications. Id. In return, the State
agreed to enter a nolle prosequi as to all remaining counts and the firearm
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specifications for the Aggravated Robbery and Aggravated Burglary charges. Id.The trial court accepted the pleas of guilty and following an undisputed statement
of the facts and circumstances surrounding the charges, found Appellant to be
guilty. Doc. 64. Prior to sentencing, the State and Appellant entered into a
stipulation of facts and law regarding merger. Doc. 91. They agreed that the
firearm specifications on Counts One and Two arose out of the same transaction
and merged, with the State electing to have Appellant sentenced on the
specification for Count Two. Id. They also agreed that Counts Fifteen and
Sixteen merged as did Counts Nineteen and Twenty. Id. The State elected to
proceed to sentencing on Counts Sixteen and Count Nineteen. Id.{¶6} A sentencing hearing was held on August 19, 2014. Doc. 92. The
trial court indicated that Appellant would be sentenced on Count One with a
firearm specification, Count Two, Count Sixteen, and Count Nineteen. Id. The
trial court then sentenced Appellant to serve a prison term of life without
possibility of parole for Counts One and Two, with the sentence for Count Two to
be served consecutive to that of Count One. Id. The trial court then ordered
Appellant to serve a three year prison term for the gun specification, to be served
consecutive to Counts One and Two. Id. For Counts Sixteen and Nineteen, the
trial court ordered Appellant to serve prison terms of eleven years each, to be
served consecutively to each other as well as Counts One and Two. Id. Appellant
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filed his notice of appeal from this judgment on September 18, 2014. Doc. 113.
On appeal, Appellant raises the following assignments of error.
First Assignment of Error
Because the record does not support [Appellant’s] two
consecutive life-without-parole sentences, the trial court abused
its discretion in imposing them.
Second Assignment of Error
[Appellant’s] mandatory transfer to adult court pursuant to
R.C. 2152.10(A)(1)(a) and 2152.12(A)(1)(a) violates his right to
due process, to equal protection, and to be free from cruel and
unusual punishment.
In the interest of clarity, we will address the second assignment of error first.
{¶7} In the second assignment of error, Appellant challenges his mandatory
transfer to adult court. Appellant claims that the mandatory nature of the statute is
a due process violation because it removes the juvenile court’s ability to make
individualized determinations regarding transfer. Appellant also claims that the
mandatory transfer rule violates his right to equal protection under the law by
treating similarly situated juveniles of different ages differently. Finally,
Appellant claims that the mandatory transfer violates his right to be free from
cruel and unusual punishment by creating a mandatory sentencing scheme.
{¶8} In this case, the transfer of Appellant from the juvenile court to the
adult court was controlled by R.C. 2152.10 and R.C. 2152.12.
(A) A child who is alleged to be a delinquent child is eligible for
mandatory transfer and shall be transferred as provided in
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section 2152.12 of the Revised Code in any of the following
circumstances:
(1) The child is charged with a category one offense and either of
the following apply:
(a) The child was sixteen years of age or older at the time of the
act charged.
***
(2) The child is charged with a category two offense, other than a
violation of section 2905.01 of the Revised Code, the child was
sixteen years of age or older at the time of the commission of the
act charged, and either or both of the following apply:
***
(b) The child is alleged to have had a firearm on or about the
child’s person or under the child’s control while committing the
act charged and to have displayed the firearm, brandished the
firearm, indicated possession of the firearm, or used the firearm
to facilitate the commission of the act charged.
(3) Division (A)(2) of section 2152.12 of the Revised Code
applies.
R.C. 2152.10. A “category one offense” includes violations of R.C. 2903.01 and
2903.02. R.C. 5152.02(BB)(1). A “category two offense” includes violations of
R.C. 2903.04, 2905.01, 2911.01, and 2911.11. R.C. 2152.02(CC).
(A)(1)(a) After a complaint has been filed alleging that a child is
a delinquent child for committing an act that would be
aggravated murder, murder, attempted aggravated murder, or
attempted murder if committed by an adult, the juvenile court at
a hearing shall transfer the case if either of the following applies:
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(i) The child was sixteen or seventeen years of age at the time of
the act charged and there is probable cause to believe that the
child committed the act charged.
***
(b) After a complaint has been filed alleging that a child is a
delinquent child by reason of committing a category two offense,
the juvenile court at a hearing shall transfer the case if the child
was sixteen or seventeen years of age at the time of the act
charged and either of the following applies:
***
(ii) Division (A)(2)(b) of section 2152.10 of the Revised Code
requires the mandatory transfer of the case, and there is
probable cause to believe that the child committed the act
charged.
R.C. 2152.12.
{¶9} Appellant was charged with violations of R.C. 2903.01 and 2903.02,
which are category one offenses. He was seventeen years of age at the time of the
offense. Therefore, pursuant to R.C. 2152.10(A) and R.C. 2152.12(A), the trial
court was required to transfer Appellant to the general division of the court.
Likewise, Appellant was charged with several category two offenses which also
would have mandated a transfer to the general division of the court.
{¶10} Appellant claims that the mandatory nature of R.C. 2152.10 and
2152.12 violate his constitutional rights to due process, equal protection, and to be
free from cruel and unusual punishments. The Supreme Court of Ohio addressed a
similar case in State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19
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N.E.3d 900. In Quarterman, the defendant was transferred to the adult courts after
the juvenile court determined that there was probable cause to believe that he had
committed acts which would be aggravated robbery with a firearm if he were an
adult. Id. at ¶6. Quarterman eventually pled guilty to one count of aggravated
robbery and the trial court accepted this plea and imposed the jointly
recommended sentence. In his appeal, Quarterman claimed for the first time that
the mandatory bindover procedures set forth in R.C. 2152.10 and 2152.12 violated
his rights to due process and equal protection and the prohibition against cruel and
unusual punishment. Id. at ¶9. The Ninth District held that by pleading guilty,
Quarterman had waived his right to challenge the mandatory bindover. Id.
Quarterman appealed to the Supreme Court, which accepted the discretionary
appeal. On appeal, Quarterman raised similar arguments to those raised here. Id.
at ¶ 11-12.
{¶11} The Court in Quarterman did not reach the merits of Quarterman’s
appeal. Instead the Court focused on whether Quarterman had raised the issue
prior to appeal.
It is a well-established rule that “‘an appellate court will not
consider any error which counsel for a party complaining of the
trial court’s judgment could have called but did not call to the
trial court’s attention at a time when such error could have been
avoided or corrected by the trial court.’” * * * As we explained
in [State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986)], “the
question of the constitutionality of a statute must generally be
raised at the first opportunity and, in a criminal prosecution,
this means in the trial court.” * * * Quarterman forfeited his
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constitutional challenges to R.C. 2152.10(A)(2)(b) and
2152.12(A)(1)(b) by failing to object to the mandatory bindover
procedures in either the juvenile court or the general division of
the common pleas court.
Id. at ¶15 (citations omitted). The Court concluded that since Quarterman had
failed to preserve the issue of the constitutionality of R.C. 2152.10 and 2152.12,
the matter is not proper on appeal and would not be addressed. Id. at 22.
{¶12} In this case, the situation is almost identical. The State filed a motion
in the juvenile court to transfer the case to adult court and a hearing was held on
the motion. At no time before the hearing or during the hearing did Appellant
raise the issue of the constitutionality of the mandatory transfer statutes with the
juvenile court. The case was transferred to the general division where Appellant
was tried as an adult. At no time before the trial court did Appellant raise the issue
of the constitutionality of R.C. 2152.10 or 2152.12. The first time this issue was
raised was on appeal. Pursuant to the holding in Quarterman, these issues cannot
be raised for the first time on appeal. By not raising them in either the juvenile
court or the trial court, Appellant has forfeited the right to raise this issue. Thus,
this court need not address them. The second assignment of error is overruled.
{¶13} Appellant claims in the first assignment of error that the trial court
erred in sentencing him to consecutive life sentences without the opportunity for
parole. This court initially notes that R.C. 2953.08(D)(3) prohibits review of a
sentence imposed for aggravated murder. See State v. Hawkins, 4th Dist. Gallia
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No. 13CA3, 2014-Ohio-1224; State v. Jones, 2d Dist. Clark No. 2012 CA 61,
2013-Ohio-4820; and State v. Patterson, 5th Dist. Stark No. 2012CA00098, 2013-
Ohio-1647. This statutory limitation on appeal has been in existence since 1996.
Appellant was convicted of two counts of aggravated murder and the sentence
imposed was within the statutory limits. Thus, his sentence is not subject to
appellate review pursuant to R.C. 2953.08(D)(3). However, courts, including the
Supreme Court of Ohio, do sometimes address these sentences regardless of the
statute. See State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.2d 890;
State v. Long, 1st Dist. Hamilton No. C-140398, 2015-Ohio-2114 (upon remand
from the Supreme Court after first addressing the issue in the case that was
reviewed by the Supreme Court); State v. Lane, 11th Dist. Geauga No. 2013-G-
3144, 2014-Ohio-2010; and State v. Harwell, 149 Ohio App.3d 147, 2002-Ohio-
4349, 776 N.E.2d 524 (6th Dist.). In the interest of justice we will address the
merits of the appeal to the sentence as well.
{¶14} The issue of imposing life sentences without the possibility of parole
has been addressed frequently in the last few years. The first major case to
address the issue was Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176
L.Ed.2d 825 (2010). In Graham, the defendant committed armed burglary and
another crime while he was 16 years old. Id. at 48. The defendant entered a plea
agreement which placed him on probation and withheld an adjudication of guilt.
Id. Later, the defendant violated the terms of his probation by committing another
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crime and his probation was revoked. Id. The trial court then adjudicated him as
guilty of the earlier charge and sentenced him to life in prison for the burglary. Id.
Because Florida has no parole system, the life sentence left the defendant with no
possibility of release except executive clemency. Id. The defendant then appealed
his sentence as being cruel and unusual punishment in violation of the Eighth
Amendment. Id.
{¶15} The U.S. Supreme Court addressed the issue and stated that pursuant
to the Eighth Amendment, punishments “must respect the human attributes even
of those who have committed serious crimes.” Id. at 59. This includes insuring
that the punishment is not disproportionate to the crime. Id. The Court stated that
an attempt to express the community’s moral outrage or to right the balance for the
wrong to the victim, the sentencing goal of retribution is not as strong with a
minor as it would be with an adult. Id. at 71. Likewise, the Court determined that
the sentencing goal of deterrence does not justify a life sentence without the
possibility of parole because for the same reason that juveniles are less culpable
than adults, juveniles will be less susceptible to deterrence. Id. at 72. “Because
juveniles’ ‘lack of maturity and underdeveloped sense of responsibility * * * often
result in impetuous and ill-considered actions and decisions,’ Johnson v. Texas,
509 U.S. 350, 367, 113 S.Ct. 26658, 125 L.Ed.2d 290 (1993), they are less likely
to take a possible punishment into consideration when making decisions.”
Graham, supra at 72. The Court then addressed the sentencing goal of
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incapacitation and determined that it was not a justifiable reason for a sentence of
life in prison for a non-homicide offense. Id.
To justify life without parole on the assumption that the juvenile
offender forever will be a danger to society requires the
sentencer to make a judgment that the juvenile is incorrigible.
The characteristics of juveniles make that judgment
questionable. “It is difficult even for expert psychologists to
differentiate between the juvenile offender whose crime reflects
unfortunate yet transient immaturity, and the rare juvenile
offender whose crime reflects irreparable corruption.” * * * As
one court concluded in a challenge to a life without parole
sentence for a 14-year-old, “incorrigibility is inconsistent with
youth.”
Id. at 72-73 (citations omitted). Finally, the Court addressed the sentencing goal
of rehabilitation.
A sentence of life imprisonment without parole, however, cannot
be justified by the goal of rehabilitation, the penalty forswears
altogether the rehabilitative ideal. By denying the defendant the
right to reenter the community, the State makes an irrevocable
judgment about that person’s value and place in society. This
judgment is not appropriate in light of a juvenile nonhomicide
offender’s capacity for change and limited moral culpability. A
State’s rejection of rehabilitation, moreover goes beyond a mere
expressive judgment. As one amicus notes, defendants serving
life without parole sentences are often denied access to
vocational training and other rehabilitative services that are
available to other inmates. * * * For juvenile offenders, who are
most in need of and receptive to rehabilitation, * * * the absence
of rehabilitative opportunities or treatment makes the
disproportionality of the sentence all the more evident.
Id. at 74. The Court then concluded that the Eighth Amendment prohibited the
sentence of life without parole for an offender who did not commit homicide. Id.
The Court went on to state that “[a]n offender’s age is relevant to the Eighth
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Amendment, and criminal procedure laws that fail to take defendant’s
youthfulness into account at all would be flawed.” Id. at 76.
{¶16} In 2012, the U.S. Supreme Court again addressed the issue of life
sentences without parole for juvenile in the case of Miller v. Alabama, ___ U.S.
___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Miller was a case that involved two
defendants: Miller from Alabama and Jackson from Arkansas. Id. Both
defendants were fourteen at the time they committed their offenses. Id. Miller
was convicted of capital murder and was sentenced to life in prison without the
possibility of parole. Id. Jackson was convicted of capital felony murder and
aggravated robbery and was also sentenced to life in prison without the possibility
of parole. Id. Both of the sentences in these cases were mandated by statute. Id.
at 2457. The Court held that the Eighth Amendment forbids a sentencing scheme
that mandates life in prison without the possibility of parole for juvenile homicide
offenders. Id. at 2475.
[A] judge or jury must have the opportunity to consider
mitigating circumstances before imposing the harshest possible
penalty for juveniles. By requiring that all children convicted of
homicide receive lifetime incarceration without possibility of
parole, regardless of their age and age-related characteristics
and the nature of their crimes, the mandatory sentencing
schemes before us violate this principle of proportionality, and
so the Eighth Amendment’s ban on cruel and unusual
punishment.
Id. However, the Court was clear that this decision did not “categorically bar a
penalty for a class of offenders” but instead only mandated “that a sentence follow
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a certain process- considering an offender’s youth and attendant characteristics –
before imposing a particular penalty.” Id. at 2471.
{¶17} In 2014, the Supreme Court of Ohio weighed in on the issue of life
sentences without the possibility of parole for juveniles in the case of Long, supra.In Long, Long and his codefendants were charged with several offenses arising
from two separate shootings. Id. at ¶2. Long was 17 years old at the time of the
offenses. Id. Following a jury trial, Long was found guilty of two counts of
aggravated murder along with other felonies and various firearm specifications.
Id. at ¶3. Long was sentenced to consecutive terms of life imprisonment without
parole on the aggravated murder counts and an additional 19 years in prison to be
served consecutively on the remaining counts and specifications. Id. On appeal,
Long claimed that the consecutive sentences of life imprisonment without parole
violated the Eighth Amendment and that the trial court failed to consider his youth
as a mitigating factor. Id. at ¶4. The First District Court of Appeals rejected
Long’s arguments and affirmed the judgment of the trial court. Id. at ¶5. The
Supreme Court then accepted the appeal. Id. at ¶7.
{¶18} The Supreme Court considered whether Ohio’s sentencing scheme
for juveniles violated the holdings in Graham and Miller. Id. at ¶19. The Court
determined that it did not because the imposition of the sentence was not
mandatory and it took into consideration the age of the offender. Id.
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Nevertheless, for clarification, we expressly hold that youth is a
mitigating factor for a court to consider when sentencing a
juvenile. But this 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. Yet 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.
{¶19} The Court then considered the record to see if the trial court had
adequately considered Long’s youth as a mitigating factor. The review of the
record indicated to the court that the age of Long was argued by defense counsel
to request the minimum sentence and by the State to justify the maximum
sentence. Id. at ¶22. At the sentencing hearing, the defense again raised Long’s
age as a reason for granting the minimum sentence so that Long would have the
opportunity for rehabilitation. Id. at 24. The State then argued to the trial court
that Long’s youth was not a mitigating factor and there was no reason to allow
him to have a chance at getting out of prison and reoffend. Id. at ¶25. The trial
court, however, did not mention the youth of Long in any way. Id. at ¶26-27. The
Court noted that a sentence of life without the possibility of parole was the
equivalent of the death penalty for juveniles. Id. at ¶27. “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.”
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Id. The Court then determined that the record did not adequately reveal that the
trial court considered the youth of Long as a mitigating factor and thus reversed
the judgment for resentencing.
{¶20} The Eleventh District Court of Appeals has also dealt with a case
where the defendant was sentenced to consecutive sentences of life in prison
without the possibility of parole. In Lane, supra, Lane entered pleas of guilty to
three counts of aggravated murder for the shooting of three classmates at school,
two counts of attempted aggravated murder for shooting two other classmates and
one count of felonious assault for seriously injuring another student. Id. at ¶1. At
the time of the offenses, Lane was 17 years old. Id. The trial court later sentenced
Lane to three life sentences without the possibility of parole for the aggravated
murder convictions and an aggregate sentence of twenty-five years in prison on
the remaining charges. Id. at ¶36. All of the sentences were ordered to be served
consecutive to the others. Id. On appeal, Lane challenged the imposition of three
consecutive life sentences without the possibility of parole as violating his
constitutional rights. In the sentencing of Lane, the trial court did not explicitly
state that it had considered the defendant’s youth as a mitigating factor, but the
record indicated that it had. Id. at ¶99. The record indicated that the trial court
stated that Lane was seventeen and one half years of age at the time, that he was
an intelligent student who was planning to graduate early and attend college, and
that he considered himself to be mature for his age. Id. at ¶101. The court noted
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that Lane knew what he did was wrong and that Lane’s actions were not the result
of any persuasion by adults or peers in that Lane alone planned the crime and
executed it. Id. at ¶101, 103. Based upon the statements by the trial court, the
appellate court determined that the youth of Lane as a mitigating factor was
considered, but that other factors outweighed it. Id. at ¶108. In determining that
there was no error, the court held as follows.
In summary, the trial court was not bound by a mandatory
sentencing scheme, and considered the factors outlined in Miller
in imposing sentence. Moreover, by complying with Miller, the
trial court also complied with [Long]. Further, we cannot say
appellant’s sentence of life in prison without parole is so
disproportionate to the crimes he committed as to shock the
community’s sense of justice. Although appellant’s sentence is
severe, it is not disproportionately so. He shot six students in
school, three of whom were killed and another paralyzed,
without provocation and in cold blood. The horrific and
senseless nature of this homicide is compounded by the fact that,
at sentencing, appellant showed no remorse and even contempt
for his victims and their families. In addition, appellant’s
sentence was within the statutory range for each count of which
he was convicted. We therefore hold that appellant’s sentence
did not amount to cruel and unusual punishment.
Id. at 109. The court also found that the trial court made all necessary findings to
impose consecutive sentences and that the consecutive sentences were supported
by the record. Id. at ¶127-130.
{¶21} In this case, the parties submitted sentencing memoranda to the trial
court prior to sentencing Appellant. The trial court also had a pre-sentence
investigation report to consider. At the sentencing hearing, several members of
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the victims’ family testified as to the impact the offenses had on them and asked
the trial court to impose the maximum sentence. The State then made the
following argument.
Your Honor, just last week I argued that this court impose the
maximum and consecutive sentence upon [Rhoades]. I’m not
going to do that today, but I am on behalf of the State of Ohio
compelled to advocate that this court impose a lengthy and
significant consecutive prison term and leave to the discretion of
the court the duration of those terms. And I do that for one
reason.
Your Honor, [Appellant] is guilty of aggravated murder and
other crimes. He’s guilty of the offenses for which he is about to
be sentenced, whether or not he is the primary offender or an
accessory under Ohio law. And in November of 2011, that day
that Robert and Colleen died and were murdered, he did
absolutely nothing right. But he’s done two things right since
then. He confessed his crimes, and he eventually agreed to
cooperate with the State of Ohio in the prosecution of [Rhoades]
and the continuing efforts of the State of Ohio and law
enforcement to uncover the truth about that night. For those
reasons, your Honor, I defer to the discretion of the court about
the duration of a lengthy and significant prison term * * *.
Tr. 29-30. The State also told the trial court that Appellant was a juvenile at the
time of the offenses and that the trial court needed to consider that in mitigation.
Tr. 30.
{¶22} Next, defense counsel presented its argument against a sentence of
life in prison without the possibility of parole.
In [Long] decided earlier this year, the Ohio Supreme Court
stated because juveniles have diminished culpability and
prospects for reform, they are less deserving of the most severe
punishments, in this case life without possibility of parole. There
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are three significant gaps between juveniles and adults. First,
children have a lack of maturity and an underdeveloped sense of
responsibility, therefore leading to recklessness and risk-taking
and impulsivity. Second, children are more vulnerable to
negative influences and outside pressures, including from their
family, friends, and peers. Third, a child’s character is not as
well formed or fixed as an adult’s, therefore leading to the
possibility of reform.
As stated in Miller v. Alabama, the United States Supreme Court
case, only a relatively small portion of adolescents who engage in
illegal activity develop entrenched patterns of problem behavior.
Developments in psychology and brain science continue to show
fundamental differences between juvenile and adult minds
which lessons a child’s moral culpability and enhances the
prospect that as the years go by and neurological development
occurs in the brain, a child – his deficiencies will be reformed.
* * * Given [Appellant’s] environmental considerations, family
circumstances, personality traits, bad judgments due to youth,
mental and emotional issues, or any combination of these and
similar factors, this court must sentence [Appellant] to the
minimum sentence allowed under R.C. 2929.023.
Through the presentence investigation report, [Appellant] was
not a juvenile of average intelligence. I believe he only finished
the 8th grade and suffered from various mental and emotional
disorders such as bipolar, anxiety, ADHD. Further [Appellant’s]
maturity level was not that of an average juvenile at the time of
committing of the crimes. However, to say that [Appellant] will
never be able to be rehabilitated is without merit.
Tr. 34-36. Defense counsel also pointed out that Appellant had shown genuine
remorse by turning himself into the police, confessing, and helping them to catch
Rhoades. Tr. 36-37. Appellant then made a statement as well.
First off, your Honor, I’d like to say – to apologize to the family
for what I have done to their loved ones. Your life will never be
the same. I do think about it every day. It’s always on my mind,
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and I’m sorry that you guys have to live with it for the rest of
your life.
I have took [sic] a lot of responsibility from that day to now.
I’ve made a lot of mistakes in my life. I understand what I’ve
done. I understand how I’ve affected the Grube’s family, my
family, and myself. If I could change what happened, I would.
But today, all I want is everybody to know that I’m sorry for
what I’ve done to you guys’ loved ones. I cooperated on my
own. Myself – I didn’t contact the detectives or anybody
because of myself. I contacted the detectives for the family to get
closure, to know what happened to their loved ones. I think
about it every day. It’s in my mind day in, day out, all night.
That’s it, your Honor.
Tr. 38.
{¶23} The trial court took a short recess and returned to sentence the
defendant.
Having acknowledged hearing the victims’ statements and
proceeding with the on-record proceedings today, the court
wishes to confirm for the record the preliminary findings with
one minor alteration. That being that the court recited that the
preliminary finding of the court based upon the presentence
investigation with regard to the defendant’s remorse was that he
had shown no remorse. And based upon his statements today,
although the court questions whether that remorse he indicated
in his statement about being sorry to the victims’ family, the
court would find he still has not indicated any genuine remorse
as the court is not convinced that he has the understanding of
what he’s done to that extent and the impact at least on the
families.
And with regard to the issue raised by the defendant through
counsel, the court has taken into consideration as required by
law the defendant’s age at the time of these offenses, he being
under the age of 18 years at the time of these offenses; and
therefore, acknowledging that he is less deserving of the
maximum punishment that an adult would be deserving of
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simply because his character traits are not as likely to have
already become fixed. Nevertheless, the court believes that he
has the ability to be held accountable as an adult. He’s been
bound over to this court as an adult. He was 17 years and 7
months old at the time of these offenses. Further, he has a
criminal record as a juvenile that began, as indicated by the
comments on record, since he was ten years old and has been
appropriately punished even as an adult while he was a juvenile
previously in Randolph County, Indiana. And he was thereafter
placed under terms of probation and violated that probation and
had it revoked when he was just over 18 years of age. So the
court is convinced he understands and should have understood
at the time of the commission of these offenses the severity of
these actions that he chose to commit.
Tr. 39-41. Based upon what the trial court stated, it considered the age of
Appellant before imposing the sentence. The holding in Long does not prohibit
the imposition of a life sentence without the possibility of parole, but rather only
requires that the record reflect that the trial court considered the age of the
defendant in mitigation of the maximum sentence. The record clearly shows that
the age was considered. Thus, the trial court complied with the requirements of
Miller and Long in determining the sentence.
{¶24} Appellant also claims that the imposition of consecutive life
sentences without the possibility of parole was an error. The imposition of
consecutive sentences is governed by R.C. 2929.14(C)(4).
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court finds
that the consecutive service is necessary to protect the public
from future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the
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offender’s conduct and to the danger the offender poses to the
public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or
2929.18 of the Revised Code, or was under post-release control
for a prior offense.
(b) At least two of the multiple offenses were committed as part
of one or more courses of conduct, and the harm caused by two
or more of the multiple offenses so committed was so great or
unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from
future crime by the offender.
R.C. 2929.14(C)(4). The trial court in this case found that consecutive sentences
were necessary to protect the public from future crimes and to punish Appellant,
that the consecutive sentences were not disproportionate to the seriousness of the
offenses and the danger he posed to the public. Tr. 41. The trial court also found
that the offenses were multiple offenses committed as part of a course of conduct
and that the harm caused by the offenses were so great that no single prison term
would adequately reflect the seriousness of his conduct. Tr. 41. Finally, the trial
court found that based upon Appellant’ criminal history consecutive sentences
were necessary to protect the public from future crimes. Tr. 41. A review of the
record shows that Appellant and his associates broke into Robert and Colleen’s
home, restrained them with duct tape, stole from them, then Appellant shot
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Colleen multiple times before giving the gun to Rhoades so that Rhoades could
shoot Robert. The only reason given for the shooting was to prevent Robert and
Colleen from identifying them as the perpetrators of the home invasion. The
offenses were very serious and they caused the ultimate harm to the victims, the
loss of their life after first being terrorized by the home invaders. Robert was an
elderly gentleman who was bound to his wheelchair to prevent him from fleeing.
Colleen was his daughter, who was also restrained and was Robert’s primary
caregiver. Given the harm caused to the victim and the senseless nature of it, the
record supports the trial court’s findings and conclusion that consecutive sentences
were appropriate. Therefore the first assignment of error is overruled.
{¶25} Having found no errors in the particulars assigned and argued, the
judgment of the Court of Common Pleas of Mercer County is affirmed.
Judgment Affirmed
SHAW and PRESTON, J.J., concur.
/hlo
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