State v. Lane , 2014 Ohio 2010 ( 2014 )

[Cite as State v. Lane, 2014-Ohio-2010.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2013-G-3144
- vs - :
THOMAS M. LANE, III, :
Defendant-Appellant. :
Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 12 C
000058.
Judgment: Affirmed.
James R. Flaiz, Geauga County Prosecutor, Craig A. Swenson and Nicholas A.
Burling, Assistant Prosecutors, Courthouse Annex, 231 Main Street, Suite 3A,
Chardon, OH 44024 (For Plaintiff-Appellee).
Michael A. Partlow, 112 South Water Street, Suite C, Kent, OH 44240 (For Defendant-
Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Thomas M. Lane, III, appeals his conviction in the Geauga
County Court of Common Pleas following his guilty plea to three counts of aggravated
murder, two counts of attempted aggravated murder, and felonious assault. Appellant’s
conviction resulted from a shooting at Chardon High School in which he killed three
students, paralyzed another, and injured two others. At the time of the offenses,
appellant was 17 years old. At issue is whether Ohio’s mandatory juvenile bindover
statutes, at R.C. 2152.10 and R.C. 2152.12, are unconstitutional and whether
appellant’s sentence to life in prison without parole violates the prohibition against cruel
and unusual punishment. For the reasons that follow, we affirm.
Substantive Facts and Procedural History
{¶2} On March 1, 2012, a complaint was filed in the Geauga County Juvenile
Court, charging appellant with three counts of aggravated murder by shooting and killing
three students at Chardon High School, two counts of attempted aggravated murder
against two other students, and one count of felonious assault against another student.
On the same date, the state moved to transfer this case to the General Division of the
Court of Common Pleas for appellant to be tried as an adult.
{¶3} On March 21, 2012, the juvenile court ordered Phillip Resnick, M.D.,
forensic psychiatrist, to complete a competency evaluation to determine whether
appellant was competent to assist his attorneys in the juvenile court proceedings. On
May 2, 2012, the juvenile court held a competency hearing. Following the hearing, the
court found that appellant was competent for purposes of the juvenile proceedings.
{¶4} On May 24, 2012, the juvenile court held a bindover hearing. Following
the hearing, the court found that appellant was 17 years old on the date of the alleged
offenses. The court also found that probable cause existed to believe that appellant
committed three counts of aggravated murder and two counts of attempted aggravated
murder, which are “category one offenses” under R.C. 2152.02(B)(B), mandating
bindover under R.C. 2152.10 and R.C. 2152.12. As a result, the juvenile court
transferred appellant’s case to the general division.
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{¶5} On June 4, 2012, appellant was indicted in a six-count indictment charging
him with aggravated murder of Demetrius Hewlin, an unclassified felony, in violation of
R.C. 2903.01(A) (Count One), with a multiple-killings death penalty specification, in
violation of R.C. 2929.04(A)(5), and a firearm specification, in violation of R.C.
2941.145(A); aggravated murder of Russell King, Jr. (Count Two), with the same death
penalty specification and a firearm specification; aggravated murder of Daniel Parmertor
(Count Three), with the same death penalty specification and a firearm specification;
attempted aggravated murder of Nate Mueller, a felony of the first degree, in violation of
R.C. 2903.01(A) and R.C. 2923.02(A) (Count Four), with a firearm specification;
attempted aggravated murder of Nicholas Walczak (Count Five), with a firearm
specification; and felonious assault of Joy Rickers, a felony of the second degree, in
violation of R.C. 2903.11(A)(2) (Count Six), with a firearm specification. Appellant pled
not guilty. Subsequently, he pled not guilty by reason of insanity.
{¶6} On February 8, 2013, appellant filed a motion for an order referring him for
a competency evaluation by the Psycho-Diagnostic Clinic. The court granted the
motion. In her evaluation, Lynn A. Luna Jones, Ph.D., forensic psychologist, concluded
that appellant was competent to stand trial.
{¶7} On February 26, 2013, the trial court held a competency hearing, after
which the court found appellant was competent to stand trial. Later that day, he filed a
written guilty plea and the court held a change-of-plea hearing. After waiving his rights,
appellant withdrew his plea of not guilty by reason of insanity, and pled guilty to each
count of the indictment. Pursuant to the parties’ plea bargain, appellant pled guilty to
the aggravated murder of Demetrius Hewlin, Russell King, Jr., and Daniel Parmertor in
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Counts One, Two, and Three, respectively, and the firearm specifications to those
counts. Further, appellant pled guilty to attempted aggravated murder of Nate Mueller
and Nicholas Walczak in Courts Four and Five, respectively, and the firearm
specifications to those counts. Finally, appellant pled guilty to Count Six, felonious
assault of Joy Rickers, and the firearm specification to that count. In exchange for his
plea, the death penalty specifications were dismissed.
{¶8} In support of the factual basis for the guilty plea, the state offered: (1) the
video recording of appellant’s crimes, (2) the dash cam video of his apprehension by
Geauga County Sheriff’s Deputy Jon Bilicic, and (3) the video of appellant’s confession
given to detectives at the Geauga County Safety Center.
{¶9} The video taken from a security camera in the school cafeteria shows that
on February 27, 2012, at about 7:30 a.m., appellant is sitting alone at a table in the
cafeteria with his book bag on the table. He watches a group of eight to nine students
who are talking to each other at a nearby table. Appellant then moves to a table directly
behind this group of students and continues to watch them. One of these students, Nick
Walczak, is standing at the end of the table and the others are seated, some with their
backs to appellant and others facing in his direction.
{¶10} After watching these students for about eight minutes, appellant goes
through his book bag. He pulls out a handgun and a knife, stands, aims his gun at the
group of students in front of him, and starts shooting. Appellant shoots Russell King in
the back of the head. He also shoots Nick Walczak who falls to the floor. Appellant then
walks around his table and along the victims’ table while repeatedly shooting at them.
He shoots Demetrius Hewlin in the head and also shoots Daniel Parmertor in the head.
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Two other students, Nate Mueller and Joy Rickers, are also shot. Everyone in the
cafeteria runs out. Appellant also runs out of the cafeteria with his gun and knife.
{¶11} The video taken by a security camera in the adjoining hallway shows a
large group of students running frantically from the cafeteria and down the hallway.
While Nick Walczak is limping down the hallway, appellant runs up to him from behind
and shoots him again, this time in the back of his neck at close range. While appellant
is running up to Nick, one can see across the chest of appellant’s long-sleeve, pullover
shirt in large bold letters the word, “Killer.” Nick falls to the floor and appellant runs
away from him.
{¶12} Meanwhile, Deputy Bilicic, while on routine patrol, was advised of the
shooting and given a description of the suspect. The deputy was told that the suspect
had fled the high school. At about 8:30 a.m., Deputy Bilicic was dispatched to Woodin
Road, about one mile from the school, and advised the suspect was at that location.
When Deputy Bilicic approached the area, he saw appellant sitting on the side of the
road with his handgun and knife near him. After Deputy Bilicic advised appellant of his
Miranda rights, he said he just shot people at the high school.
{¶13} Deputy Bilicic drove appellant to the Geauga County Safety Center where
he was interviewed by two Geauga County Sheriff’s detectives. After again being
advised of his Miranda rights, appellant said that at about 7:00 that morning, he rode the
school bus to Chardon High School. He went in the school with a .22-caliber,
semiautomatic Ruger handgun and a knife he had put in his book bag. He said he
brought the gun because he planned to shoot people. He brought the knife in case he
needed another weapon while reloading his gun. He said he went in and out of the
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bathroom three times because he wanted to shoot students and was thinking about
doing it. He said that when he left the bathroom for the last time, he sat alone at a table
directly behind a group of students he was going to shoot so he would be close to them.
{¶14} Appellant said that at about 7:30 a.m., he switched the safety off on the
gun. He then pulled his pistol and knife out of his book bag. He stood up and, while
aiming at the group, fired all ten rounds in the clip. He realized he needed to reload his
gun so he ran out of the cafeteria. Appellant said that as he left the cafeteria, an adult
cafeteria monitor started following him so appellant spun around and aimed his gun at
him so he would not chase him. Appellant then ran down the hallway and exited the
building.
{¶15} Appellant said that after he ran out of the school, he dropped the empty
clip out of the gun and loaded it with a second clip. He ran into the woods until he
reached a road. He sat down on the side of the road until Deputy Bilicic approached
him.
{¶16} Appellant said he did not know why he did this. He said he does not have
problems with anyone and was not upset with anyone. He said that no one had bullied
him. This was just something he chose to do. He said that by doing this he was trying
to accomplish something. He said he created this goal and he needed to see it through.
He said he had been thinking about doing this for about two weeks.
{¶17} Appellant said he stole the gun the day before the shooting from his uncle
while he was visiting him. He also stole a second magazine and a handful of bullets
that were stored with the gun. When he stole the gun it was empty. The night before
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the shooting, he loaded both magazines and put one of them in the gun. He put the gun
in his book bag that morning because he felt he would probably shoot people.
{¶18} Appellant said he did not choose any particular people to shoot. Rather,
he said he shot at a random group of people. He said that, while he had seen these
students before, he did not know them. He said he aimed at their heads so they would
die quicker and not suffer.
{¶19} Appellant said he attended Chardon High School for the first half of ninth
grade. Since then, he has attended Lake Academy, an alternative high school in
Willoughby. He decided to go there because Lake Academy gives its students the
option of working while going to school. He said he planned to work and earn money to
go to college. Every school day, he takes the school bus to Chardon High School,
which arrives there at about 7:00 a.m. He does not take classes there. He just waits in
the cafeteria for about one-half hour until 7:30 a.m., when he catches a bus that takes
him to Auburn Career Center in Concord Township. From there, he takes another bus
to Lake Academy. Appellant said he shot the students while he was waiting for the bus
to take him to Auburn Career Center.
{¶20} Appellant said he is in the eleventh grade, but also takes twelfth grade
classes. He was going to graduate that year so he would be graduating early. He was
planning to go to college to study psychology. He believes he is more mature than
others his age.
{¶21} Appellant said he bought the shirt with the word “Killer” printed across the
chest about one week earlier. He said he wore it today because he was going to be
shooting people.
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{¶22} In response to the detectives’ questions, appellant insisted he never shot
anyone while he was running down the hallway.
{¶23} Appellant said he shot a lot of bullets into a small group of people and
thought someone would be killed. He said he knows what he did was wrong; he feels
terrible for doing it; and he has regret.
{¶24} Appellant said he has lived with his maternal grandparents since he was
about three years old. He said that at that time, the court decided his parents were not
fit to raise him and his grandparents were awarded custody.
{¶25} Dr. Lynn A. Luna Jones of the Psycho-Diagnostic Clinic stated in her
competency report that during appellant’s prior competency evaluation with Dr. Resnick,
appellant told him that he had heard voices and experienced delusions. However,
appellant admitted to Dr. Jones that he has never actually experienced any of these
symptoms. Appellant admitted he “lied” to Dr. Resnick when he told him he had heard
voices. With regard to appellant’s report to Dr. Resnick that he experienced anxiety and
confusion, he denied that he ever felt that way. He also denied he had any prior fears
of losing his mind, as he had previously reported. Appellant said he reported these
symptoms because he was trying to appear schizophrenic. Finally, he said he lied
about his report of being a victim of sexual abuse because he thought it “couldn’t hurt”
to say he was.
{¶26} Appellant said he was able to successfully manipulate Ravenwood mental
health staff at the jail to believe he was mentally ill. He said he feigned symptoms of
being depressed, suicidal, sexually abused, psychotic, and schizophrenic. He said he
was able to “force [himself] to cry when necessary to convince staff he was depressed.”
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He said he told staff he was claustrophobic so he could be put in with the general jail
population instead of being segregated from the other inmates. Regarding the voices
he reported to staff at the Geauga County Safety Center, appellant said he “made it all
up.”
{¶27} When Dr. Jones asked appellant why he decided to change his report of
mental health symptoms, he said he “was afraid that if [he] didn’t come clean, they
wouldn’t let me change my plea to guilty.”
{¶28} Dr. Jones concluded that appellant has no mental condition or defect and
has no signs of delusions, hallucinations, anxiety, depression, or psychosis. She further
concluded that appellant fabricated these symptoms in order to evade prosecution.
{¶29} The court found that appellant voluntarily entered his guilty plea; accepted
his guilty plea; and found him guilty of each count of the indictment. The court ordered
a pre-sentence report and scheduled the matter for sentencing.
{¶30} The case proceeded to sentencing on March 19, 2013. After taking his
seat at the defense table, appellant took off his dress shirt, revealing an undershirt with
the word “Killer” written on it similar to the shirt he wore on February 27, 2012.
Appellant’s counsel told the court that appellant is now 18 years old, and had instructed
him not to present any mitigation on his behalf. Instead, he said appellant wanted to
make a statement on his own behalf. Counsel said that he had urged him not to make
the statement he expected appellant to make, but that he has the right to make it.
{¶31} Appellant told the court he voluntarily and against the advice of his
counsel waived his right to present information in mitigation of punishment. Appellant
then turned around and, with his middle finger raised toward the victims’ families, said to
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them: “This hand that pulled the trigger, that killed your sons, now masturbates to the
memory. F_ _ _ all of you.”
{¶32} Phyllis Ferguson, Demetrius Hewlin’s mother, stated that appellant’s
murder of her son has devastated the lives of every member of their family. She spoke
of how kind and unselfish Demetrius was. Ms. Ferguson said that whenever her back
hurt, Demetrius would put her shoes on and tie them for her. She said that appellant
stole her son’s life and he should never be allowed to do this to anyone again.
{¶33} Holly Walczak, Nick Walczak’s mother, while looking at appellant, said,
“You can smile all you want.” She told appellant that because he took a gun to school
and shot innocent students, he changed the lives of every member of her family and
their quiet, peaceful town will never be the same. Her son is now paralyzed and
confined to a wheelchair. She said that Nick had driven appellant home from school
and was always kind to him, and she asked appellant why he would want to hurt Nick.
She thus debunked appellant’s statement to the detectives that he did not know his
victims. She told the court she watches her son suffer daily as a result of his injuries.
She asked the court to never release appellant from prison because he is dangerous
and has caused too much pain.
{¶34} Crystal King, Russell King’s older sister, told the court that the murder of
her brother has been the most difficult thing she has ever had to endure. She said she
was driving to work on February 27, 2012, when her fiancé called her and said there
had been a shooting at the high school. She called Russell’s cell phone over and over,
but there was no answer. She called her father. When he answered, he could hardly
breathe. She asked if he had heard anything, and he said, “he’s been shot.” Her
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parents picked her up from work and drove her to the hospital. The doctor said it was
very bad. He said Russell had been shot in the head and was in surgery and if he
made it, he would be disabled. They went in the waiting room, which was filled with so
many people, the hospital staff moved them to a conference room. She said she does
not remember seeing any faces, just a sea of friends and family members that filled the
entire hallway. Realizing that all these people were there for her brother brought tears
to her eyes. She then returned to Russell’s room. As she walked in, her mother was
yelling, “no, no, no,” over and over again. Crystal learned that Russell had just passed
away. She said that appellant took not only the life of her only sibling and her parents’
only son, he also took the sense of safety from every parent in the community who
sends their children to school. She said that appellant took so much away from so
many people, he deserves to spend the rest of his life in prison without parole. Like
Holly Walczak, Crystal said that Russell and appellant used to be friends, again
contradicting appellant’s statement to police that he did not know his victims.
{¶35} Finally, Dina Parmertor, Daniel Parmertor’s mother, told the court that
appellant murdered her son Danny who was just 16 years old. She said she will suffer
the rest of her life without her son. She is in pain every minute of every day. She no
longer wants to enjoy life or visit with family and friends. She will never be the same
because of appellant. She said that appellant has stolen her life. She said he also stole
Danny from his little brother and sister. Her younger children do not see the mother
they used to know because she is in constant anguish. They want to help her, but they
are in too much pain themselves. She said she sees no remorse from appellant.
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{¶36} The court sentenced appellant on Count One, the aggravated murder of
Demetrius Hewlin, to life in prison without parole; on Count Two, the aggravated murder
of Russell King, Jr., to life in prison without parole; and on Count Three, the aggravated
murder of Daniel Parmertor, to life in prison without parole. With respect to Count Four,
the attempted aggravated murder of Nate Mueller, the court sentenced appellant to
eight years in prison. On Count Five, the attempted aggravated murder of Nick
Walczak, the court found that, after shooting Nick, appellant chased him down the
hallway as Nick was running for his life. Appellant sprinted up behind him and shot him
from behind. Nick is now paralyzed and confined to a wheelchair. The court noted that
appellant’s conduct merits the maximum sentence of 11 years in prison. On Count Six,
the felonious assault of Joy Rickers, the court sentenced appellant to six years in
prison. Each of these prison terms was ordered to be served consecutively to each
other.
{¶37} The court also imposed three-year prison terms for four of the firearm
specifications to Counts One, Two, Three, and Five, the aggravated murders and the
attempted aggravated murder of Nick Walczak, based on appellant’s overall objectives
in his criminal enterprise and the serious injuries he inflicted. The court noted that these
four victims suffered the most extreme injury, the three murdered victims having lost
their lives and Nick being confined to a wheelchair. These terms were ordered to be
served consecutively to the prison terms imposed for each of the four underlying
felonies.
{¶38} Thus, in addition to the three life terms for the aggravated murders, the
court imposed a total of 25 years in prison on the other offenses and 12 years for the
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firearm specifications, all of which were ordered to be served consecutively, for a total of
37 years in prison.
{¶39} Appellant appeals his conviction and sentence, asserting four
assignments of error. Because his first two assigned errors are related, they are
considered together. They allege:
{¶40} “[1.] THE JUVENILE TRIAL COURT COMMITTED PLAIN, REVERSIBLE
ERROR BY BINDING APPELLANT OVER TO THE COURT OF COMMON PLEAS TO
BE TRIED AS AN CONSTITUTIONAL RIGHTS (SIC).
{¶41} “[2.] THE TRIAL COURT COMMITTED PLAIN ERROR, AS A MATTER
OF LAW, BY SENTENCING APPELLANT TO THREE TERMS OF INCARCERATION
OF LIFE WITHOUT THE POSSIBILITY OF PAROLE, IN VIOLATION OF
APPELLANT’S CONSTITUTIONAL RIGHTS.”
Effect of Appellant’s Guilty Plea on His Constitutional Challenge to Mandatory
Bindover
{¶42} As a preliminary matter, the state argues that because appellant pled
guilty, he waived the right to challenge the constitutionality of Ohio’s mandatory
bindover statutes, at R.C. 2152.10 and R.C. 2152.12. In support, the state cites State v.
Quarterman, 9th Dist. Summit No. 26400, 2013-Ohio-3606, discretionary appeal
allowed at 137 Ohio St.3d 1440, 2013-Ohio-5678, in which the Ninth District held that by
pleading guilty, the juvenile defendant, whose case had been bound over to the general
division, waived his right to challenge the constitutionality of Ohio’s mandatory bindover
provisions and his attorney’s failure to object to their application. Id. at ¶8.
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{¶43} However, this court in State v. Platt, 11th Dist. Portage No. 89-P-2065,
1990 Ohio App. LEXIS 3508 (Aug. 17, 1990), rejected this argument. In Platt, this court
held that a voluntary guilty plea waives all defects in the case, except the lack of subject
matter jurisdiction of the court that accepted the plea. Id. at *4-*5. Further, this court
held that by entering a guilty plea, a juvenile does not waive objections to constitutional
deficiencies in the bindover hearing wherein the juvenile court transferred jurisdiction to
the general division. Id. at *5-*6. Accord State v. Riggins, 68 Ohio App.2d 1 (8th
Dist.1980), paragraph two of the syllabus.
{¶44} Thus, appellant’s challenge to the constitutionality of Ohio’s mandatory
bindover statutes is properly before this court.
Ohio’s Mandatory Bindover of Juvenile Offenders
{¶45} Appellant argues that Ohio’s mandatory bindover statutes are
unconstitutional in that they allegedly violate due process and equal protection and the
right to be free from cruel and unusual punishment. We do not agree.
{¶46} A duly enacted Ohio statute enjoys “a strong presumption of
constitutionality.” State v. Collier, 62 Ohio St.3d 267, 269 (1991). Further, where
reasonably possible, courts must interpret challenged statutes so as to avoid
constitutional infirmities. Akron v. Rowland, 67 Ohio St.3d 374, 380 (1993). Before a
court may declare a statute unconstitutional, the party challenging its constitutionality
bears the heightened burden of proving beyond a reasonable doubt that a clear conflict
exists between the legislation and some particular constitutional provision. State v.
May, 11th Dist. Ashtabula No. 2005-A-0011, 2006-Ohio-3406, ¶19; State ex rel.
Dickman v. Defenbacher, 164 Ohio St. 142 (1955), paragraph one of the syllabus.
14
Accordingly, there is a strong presumption that Ohio’s mandatory bindover statutes are
constitutional. Further, the constitutionality of a statute is a matter of law that we review
de novo. State v. Jenson, 11th Dist. Lake No. 2005-L-193, 2006-Ohio-5169, ¶5.
{¶47} R.C. 2152.02(BB) provides that a “category one offense" means
aggravated murder, murder, attempted aggravated murder, or attempted murder.
{¶48} Further, R.C. 2152.10(A)(1)(a) provides that a child who is alleged to be a
delinquent child is eligible for mandatory transfer and shall be transferred pursuant to
R.C. 2152.12 if the child is charged with a category one offense, and the child was at
least 16 years old at the time of the offense.
{¶49} Moreover, R.C. 2152.12(A)(1)(a)(i) provides that 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 to the
general division if the child was 16 or 17 years old at the time of the offense and there is
probable cause to believe that the child committed the offense. In explaining this
statute, the Supreme Court of Ohio has stated:
{¶50} [The juvenile] court has a duty to transfer a case when it
determines that the elements of the transfer statute are met, to wit:
(1) the charged act would be aggravated murder, murder,
attempted aggravated murder, or attempted murder if committed by
an adult, (2) the child was 16 or 17 at the time of the act, [and] (3)
there is probable cause to believe that the child committed the act
15
charged. R.C. 2152.12(A)(1)(a). In re A.J.S.,120 Ohio St.3d 185,
2008-Ohio-5307, ¶22.
Appellant’s Due Process Challenge to Mandatory Bindover
{¶51} First, appellant argues that Ohio’s mandatory bindover statutes violated
his right to due process. Although he does not expressly state whether his argument is
based on procedural or substantive due process, we interpret it as based on the former.
State v. Lee, 11th Dist. Lake No. 97-L-091, 1998 Ohio App. LEXIS 4250, *12 (Sep. 11,
1998).
{¶52} Procedural due process under the Fourteenth Amendment to the United
States Constitution and Section 15, Article I of the Ohio Constitution are identical and
require that, before the state can divest a person of a right, he or she must be given
notice and an opportunity to be heard. Lee, supra.
{¶53} Appellant argues his due process rights were violated because Ohio’s
bindover statutes do not provide for an amenability hearing at which the court considers
the factors set forth in Kent v. United States, 383 U.S. 541 (1966), before the juvenile
court orders a bindover.
{¶54} In Kent, the District of Columbia’s bindover statute provided that the
juvenile court may waive its jurisdiction over the juvenile, but did not provide any
definitive bindover procedures. After a motion for a bindover was filed, the judge
summarily and without any hearing or explanation ordered the juvenile to be held for
trial as an adult. The juvenile was then tried and convicted. The court of appeals
affirmed. The Supreme Court of the United States reversed the conviction on the
ground that due process required more procedure than was provided to the juvenile. Id.16
at 556. The Supreme Court in Kent held that in order to satisfy due process: (1) the
juvenile court must hold a hearing, (2) at which the juvenile is represented by counsel,
and (3) the juvenile court must provide a statement of reasons for its bindover decision.
Id. at 557. Further, the Court in Kent held that in deciding whether to order a bindover,
the juvenile court should consider certain listed factors. Id. at 566-567.
{¶55} As noted above, appellant argues that, pursuant to Kent, due process
required an amenability hearing before he could be bound over to the general division.
However, this court in Lee, supra, held that Kent does not stand for this proposition.
Lee, supra, at *15. As in this case, the defendant in Lee argued that Ohio’s mandatory
bindover statutes violated due process because, in his view, he was entitled to an
amenability hearing pursuant to Kent. However, this court in Lee held that the
defendant was granted the procedural protections required by Kent because a probable
cause hearing was held at which the defendant was represented by counsel and the
trial court made findings of fact in support of its order transferring jurisdiction to the
general division. Lee, supra, at *15-*16. Further, this court in Lee held that due process
does not require an amenability hearing. Id. at *16.
{¶56} Moreover, the Third District in State v. Kelly, 3d Dist. Union No. 14-98-26,
1998 Ohio App. LEXIS 5630 (Nov. 18, 1998), also held that Ohio’s mandatory bindover
statutes do not violate due process. Id. at *22. As in the instant case, the defendant in
Kelly argued that, because the mandatory bindover statutes do not provide for an
amenability hearing at which juvenile courts are required to consider the factors listed in
Kent, supra, Ohio’s mandatory bindover statutes violate due process.
17
{¶57} The Third District in Kelly noted that the bindover statute at issue in Kent
involved discretionary, rather than mandatory, bindovers. The court in Kelly stated that,
because the Kent factors were intended to address the problem of arbitrary decision-
making and disparate treatment in discretionary bindover determinations, due process
does not require use of these factors when the legislature has statutorily eliminated
discretionary bindover determinations. Id. at *19-*20.
{¶58} The Third District in Kelly stated that due process does not require a
weighing of specific factors prior to a transfer; it merely requires that such transfers not
be made on an arbitrary basis. Id. at *20. Thus, the court held that due process does
not prevent the General Assembly from eliminating the weighing of the Kent factors for
certain serious offenses, provided that removal is rationally related to a legitimate
governmental purpose. Id. The court stated that, because an amenability hearing using
the Kent factors is not a fundamental right, the rational basis test applies, and, in
applying that test, the court held that Ohio’s mandatory bindover statutes are rationally
related to the legitimate governmental objective of deterring violent juvenile crime. Id.
{¶59} The court in Kelly held that the procedural prerequisites to transfer
described in Kent, i.e., representation by counsel, a hearing, and a statement of
reasons, are provided for in Ohio’s mandatory bindover statutes. Kelly, supra, at *21.
Thus, the Third District held that the elimination of a separate amenability hearing does
not violate procedural due process. Id.
{¶60} Further, the Second and Ninth Districts have also held that Ohio’s
mandatory bindover statutes do not violate due process. State v. Ramey, 2d Dist.
Montgomery No. 16442, 1998 Ohio App. LEXIS 2617, *2-*3 (May 22, 1998); State v.
18
Collins, 9th Dist. Lorain No. 97CA006845, 1998 Ohio App. LEXIS 2474, *5 (June 3,
1998).
{¶61} Moreover, appellant does not cite any case law holding that a mandatory
bindover statute violates due process.
{¶62} Here, appellant was represented by counsel at a probable cause hearing
held by the juvenile court. Further, the juvenile court’s judgment entry included findings
of fact supporting its decision transferring the matter to the general division. Based on
the foregoing authority, Ohio’s mandatory bindover statutes do not violate due process.
Appellant’s Equal Protection Challenge to Mandatory Bindover
{¶63} Next, appellant argues that Ohio’s mandatory bindover statutes violated
his right to equal protection under the Fourteenth Amendment to the United States
Constitution and Article I, Section 2 of the Ohio Constitution.
{¶64} The standard for determining if a statute violates equal protection is
“essentially the same under state and federal law.” Fabrey v. McDonald Village Police
Dept., 70 Ohio St.3d 351, 353 (1994). “Under a traditional equal protection analysis,
class distinctions in legislation are permissible if they bear some rational relationship to
a legitimate governmental objective. Departures from traditional equal protection
principles are permitted only when burdens upon suspect classifications or
abridgements of fundamental rights are involved.” State ex rel. Vana v. Maple Hts. City
Council, 54 Ohio St.3d 91, 92 (1990). The bindover statutes do not affect a suspect
class (e.g., race or gender) or a fundamental right (e.g., speech or religion). Lee, supra,
at *17. In fact, appellant concedes the rational basis test applies to his equal-protection
19
challenge. Thus, the bindover statutes need only bear a rational relationship to a
legitimate governmental purpose Adkins v. McFaul, 76 Ohio St.3d 350, 351 (1996).
{¶65} Appellant argues that no rational basis exists for the disparate treatment
in the bindover statutes of juveniles who are 14 or 15 years old as opposed to those
who are 16 or 17 years old. Under the bindover statutes, juveniles who are 16 or 17 are
subject to mandatory bindover if probable cause exists to believe they committed a
category one offense. In contrast, similarly-situated juveniles who are 14 or 15 are only
subject to mandatory bindover if they were previously adjudicated delinquent and
committed to the department of youth services for committing a category one offense.
R.C. 2152.10(A)(1)(b).
{¶66} Appellant contends that this disparate treatment is not supported by
scientific evidence. However, as the party challenging the constitutionality of the
statutes, appellant had the burden to prove beyond a reasonable doubt that the statutes
are unconstitutional, i.e., that the subject classification is not rationally related to a
legitimate governmental objective. Because appellant failed to meet this burden, he
failed to rebut the strong presumption that Ohio’s mandatory bindover statutes are
constitutional.
{¶67} In any event, the purpose of this legislation is to protect society and
reduce violent crime by juveniles. Lee, supra, at *17. Contrary to appellant’s argument,
juveniles who are 14 or 15 are markedly different from those who are 16 or 17 in many
ways, e.g., in terms of physical development and maturity. Juveniles who are 14 years
old are typically still immature, while those who are 17, or in appellant’s case, 17 and
one-half years old, are nearly adults. Thus, the legislature’s decision to single out older
20
juvenile homicide offenders, who are potentially more street-wise, hardened,
dangerous, and violent, is rationally related to this legitimate governmental purpose.
{¶68} Further, this court in Lee, supra, has held that Ohio’s mandatory bindover
statutes do not violate equal protection. Id. at *17. In addition, the Second, Third, and
Ninth Districts have likewise held that Ohio’s mandatory bindover statutes do not violate
equal protection. Ramey, supra; Kelly, supra, at *26-*27; Collins, supra, at *5.
{¶69} Moreover, appellant does not cite any case law holding that a mandatory
bindover statute violates equal protection.
{¶70} In view of the foregoing analysis, Ohio’s mandatory bindover statutes do
not violate equal protection.
Appellant’s Eighth Amendment Challenge to Mandatory Bindover
{¶71} Next, appellant argues his bindover under Ohio’s mandatory bindover
statutes and his sentence to life in prison without parole violated the prohibition against
cruel and unusual punishment pursuant to the Eighth Amendment to the United States
Constitution and Article I, Section 9 of the Ohio Constitution. “‘A punishment does not
violate the constitutional prohibition against cruel and unusual punishments, if it be not
so greatly disproportionate to the offense as to shock the sense of justice of the
community.’” State v. Dioneff, 11th Dist. Ashtabula No. 2006-A-0063, 2007-Ohio-3387,
¶79, quoting State v. Chaffin, 30 Ohio St.2d 13 (1972), paragraph three of the syllabus.
“‘Eighth Amendment violations are rare and instances of cruel and unusual punishment
are limited to those punishments, which, under the circumstances, would be considered
shocking to any reasonable person.’” Dioneff, supra, quoting State v. Rhodes, 11th Dist.
Lake No. 2000-L-089, 2001 Ohio App. LEXIS 5650, *21 (December 14, 2001).
21
Sentences that fall within the statutory range cannot amount to cruel and unusual
punishment. State v. Bengal, 11th Dist. Lake No. 2006-L-123, 2007-Ohio-2691, ¶17;
State v. Gladding, 66 Ohio App.3d 502, 513 (11th Dist.1990); State v. Long, 1st Dist.
Hamilton No. C-110160, 2012-Ohio-3052, (“Long I”), reversed on other grounds at
____Ohio St.3d ____, 2014-Ohio-849.
{¶72} With respect to appellant’s argument that his mandatory bindover
constituted cruel and unusual punishment, he does not cite any case law holding that
the mandatory transfer of juveniles to the general division without an amenability
hearing constitutes punishment, let alone cruel and unusual punishment.
{¶73} The prohibition against cruel and unusual punishment by its very terms
applies only to punishments. The word “punishment” has been defined as follows: “In
criminal law[, a]ny * * * penalty * * * or confinement inflicted upon a person by authority
of the * * * sentence of a court, for some crime or offense committed by him * * *.”
Black’s Law Dictionary 1398 (4th Ed. Rev. 1968). Further, “[m]andatory bindover does
not equate to punishment any more than the mere prosecution of an adult in the
common pleas court constitutes punishment.” Quarterman, supra, at ¶16 (J. Carr,
concurring).
{¶74} Because appellant’s mandatory bindover was not a penalty or
confinement inflicted on him pursuant to a sentence of the juvenile court, it was not a
punishment, and appellant’s mandatory bindover did not constitute cruel and unusual
punishment.
22
Appellant’s Eighth Amendment Challenge to his Life-Without-Parole Sentence
{¶75} Appellant cites no case law holding that a sentence of life without parole
imposed on a juvenile following his or her conviction of an intentional homicide amounts
to cruel and unusual punishment. Instead, he relies on a trilogy of cases decided by the
United States Supreme Court. However, each of these cases is inapposite as none
holds that the sentence of a juvenile homicide offender to a discretionary sentence of
life without parole constitutes cruel and unusual punishment.
{¶76} First, in Miller v. Alabama, 132 S.Ct. 2455 (2012), the United States
Supreme Court held that a mandatory life-without-parole sentence for juvenile homicide
offenders is cruel and unusual punishment. Id. at 2469.
{¶77} However, Miller is distinguishable because appellant’s sentence of life
without parole was discretionary, not mandatory. State v. Long, ____ Ohio St.3d ____,
2014-Ohio-849 (“Long II”), ¶5. The trial court had the discretion to impose either life
without parole or life with parole eligibility after serving a definite period of 20, 25, or 30
years. Id.; R.C. 2929.03(A)(1). Thus, “Ohio’s sentencing scheme does not [run] afoul
of Miller, because the sentence of life without parole is discretionary.” Long II at ¶19.
{¶78} Next, in Roper v. Simmons, 543 U.S. 551 (2005), the United States
Supreme Court held that the imposition of the death penalty on juvenile offenders is
cruel and unusual punishment. Id. at 575. However, Roper is distinguishable because
appellant was not sentenced to death.
{¶79} Finally, in Graham v. Florida, 560 U.S. 48 (2010), the United States
Supreme Court held that the imposition of a life-without-parole sentence on a juvenile
offender who did not commit homicide is cruel and unusual punishment. Id. at 82.
23
Graham is distinguishable since appellant was convicted of three counts of aggravated
murder.
{¶80} While none of these cases applies to appellant’s sentence, he essentially
argues this court should extend their holdings to invalidate his life-without-parole
sentence. However, appellant does not reference any pertinent authority supporting
such extension. To the contrary, the Supreme Court in Miller, supra, stated that a
sentencing court is not precluded from imposing a life-without-parole sentence on a
juvenile homicide offender. Id. at 2469; accord Long II at ¶14.
{¶81} It is worth noting that in Graham, supra, the United States Supreme Court
stated that 44 states, the District of Columbia, and the federal government permit
sentences of life without parole for juvenile homicide offenders. Id. at 2034-2036.
The United States Supreme Court’s Decision in Miller v. Alabama
{¶82} Pursuant to Miller, supra, a sentencing court must consider mitigating
circumstances, including the juvenile’s youth and its attendant circumstances, before a
juvenile homicide offender can be sentenced to life without parole. Id. at 2475. The
Supreme Court in Miller held that a mandatory sentence of life without parole imposed
on a juvenile is cruel and unusual punishment because such sentence:
{¶83} precludes consideration of his chronological age and its hallmark
features--among them, [1] immaturity, impetuosity, and failure to
appreciate risks and consequences. It prevents taking into account
[2] the family and home environment that surrounds him--and from
which he cannot usually extricate himself--no matter how brutal or
dysfunctional. It neglects [3] the circumstances of the homicide
24
offense, including [4] the extent of his participation in the conduct
and the way familial and peer pressures may have affected him. Id.
at 2468.
{¶84} The United States Supreme Court decided Miller in 2012, one year before
appellant’s sentencing, which occurred in March 2013.
{¶85} In Long II, decided in 2014, the Supreme Court of Ohio expressly followed
Miller in holding that a trial court, in sentencing a juvenile offender for aggravated
murder, must consider his youth as a mitigating factor before imposing a sentence of life
without parole. Id. at paragraph one of the syllabus. Further, the Ohio Supreme Court
in Long II held that the record must reflect that the court specifically considered the
juvenile offender’s youth as a mitigating factor at sentencing when imposing a prison
term of life without parole. Id. at paragraph two of the syllabus.
{¶86} The Court in Long II stated that, “[a]lthough Miller does not require that
specific findings be made on the record, it does mandate that a trial court consider as
mitigating the offender’s youth and attendant characteristics before imposing a sentence
of life without parole.” (Emphasis sic.) Id. at ¶27. The Court held that the offender’s
youth at the time of the offense must be “weighed against any statutory consideration
that might make an offense more serious or an offender more likely to recidivate.” Id. at
¶19. The Court stated that, because a life-without-parole sentence implies that
rehabilitation is impossible, when the court imposes such sentence, its reasons for this
sentence should be on the record. Id.
{¶87} Although appellant explicitly waived the right to present information in
mitigation of punishment, appellant’s trial counsel fully informed the court that it was
25
required to consider appellant’s age as a mitigating factor. He quoted a pleading
recently filed in the United States Supreme Court, as follows:
{¶88} Jurisprudence has been toward more not less protection for
juvenile offenders.
{¶89} This trend began in Thompson v. Oklahoma in which William
Thompson challenged a death sentence pronounced for his first
degree murder conviction which stemmed from his active
participation in a brutal murder at the age of 15.
{¶90} The Supreme Court of the United States held that regardless of the
underlying crime, the death penalty violated the Eighth
Amendment’s prohibition of cruel and unusual punishment when
applied against the offender under the age of 16.
{¶91} Two decades later, relying on similar rationales concerning the
developmental differences between children and adults, the Court
expanded that prohibition of death sentences for children to include
all juveniles under the age of 18, and that was Roper v. Simmons.
Following Roper, the Supreme Court of the United States * * * held
constitutionally impermissible sentences of life without the
possibility of parole for juvenile offenders convicted of crime other
than homicide, and that was in the Graham case.
{¶92} Then the Miller case came before the Supreme Court of the United
States only two years later.
26
{¶93} The Court extended Graham to bar mandatory life sentences
without parole for juveniles who commit homicide.
{¶94} Now, in doing so, the high court recognized and adhered to
Graham and perhaps Roper’s rationale and foundational principle
that the imposition of a state’s most severe penalty on a juvenile
offender cannot proceed as though they were not children.
{¶95} Appellant’s trial counsel then stated as follows:
{¶96} Respectfully, today, I move your Honor to fashion a sentence that
reflects the reality of [appellant’s] mental and psychiatric states. I
ask this of your Honor even in the face of almost certain disdain for
[appellant] because the law deems important that he was a juvenile
at the time.
{¶97} The prosecutor took no exception with the foregoing as being a
functionally adequate recitation for purposes of sentencing appellant. And unlike Long,
the prosecutor did not argue that appellant’s youth justified a maximum sentence.
{¶98} It was against this backdrop that the trial court considered all Miller factors
and afforded each one proper weight based on the particular facts of this case. That
some of the Miller factors did not favor appellant at sentencing does not mean that the
trial court failed to consider appellant’s youth as mitigating.
{¶99} Accordingly, despite the lack of an explicit statement from the trial court
that it considered this juvenile offender’s youth as mitigating, the record reflects that it
did so. The trial court simply found that, even considering the mitigating factors set forth
27
in Miller, life without the possibility of parole was warranted. That conclusion is a
function of the facts, not a breakdown in the process.
{¶100} Thus, the trial court’s sentence complied with Miller. Further, while the
Ohio Supreme Court had not yet decided Long II when appellant was sentenced,
because the Court in Long II explicitly followed Miller, by considering the Miller factors in
fashioning appellant’s sentence, the trial court also complied with Long II. The trial
court’s consideration of the Miller factors is summarized as follows:
{¶101} First, the trial court considered appellant’s age and level of maturity. The
court noted he was 17 and one-half years old at the time of his crimes. He was an
intelligent student planning to graduate early and to attend college. He considered
himself to be mature for his age. He suffered no mental or cognitive impairment. He
was not insane, incompetent, or impaired at any relevant time. The court noted that,
while there were and are no mental impairment issues, appellant feigned symptoms of
mental illness when interacting with Dr. Resnick and the jail staff. The court noted that
appellant knew what he did was wrong. This is why he hid his weapons in his book
bag; fled from the school after the shooting; and acknowledged his wrongdoing soon
after he was apprehended.
{¶102} Second, the trial court considered appellant’s home and family
environment. The court noted that he had a tumultuous upbringing, both as an infant
and as an adolescent. His parents lost custody of him when he was three years old
because they did not properly care for him. However, since that time, appellant’s
maternal grandparents have provided a home for him; have raised him; and have been
loving and caring guardians. The court noted that appellant sought to better himself by
28
holding various jobs and transferring to Lake Academy, which allowed him to work while
going to school.
{¶103} Third, the trial court stated that “[m]any juvenile offenders are manipulated
or pressured into committing crime by adults or peers who urge or incite the juvenile to
commit crimes. They prey upon the vulnerability of an impressionable youth. * * * That
didn’t occur here. These crimes were all Defendant’s, and [he] was not an
impressionable youth. * * * He did this on his own.” The court noted that appellant
planned, prepared for, and executed this scheme by himself. He was not manipulated or
pressured by anyone into committing these crimes. He confided in no one and he had
no accomplice. The court explicitly stated that it considered each of the foregoing
factors in imposing sentence.
{¶104} Fourth, the court considered the circumstances of appellant’s offenses
and the extent of his participation in them. The court noted that appellant planned his
attack long before the shootings and methodically carried out that plan. He stole a
handgun, two magazines, and bullets from his uncle the day before the shootings. The
night before, he loaded both magazines and put one in the gun. The morning before,
he put the gun, the spare magazine, and a knife in his book bag, and hid them there
until he took them out in the cafeteria. He intentionally dressed the part by wearing a
shirt with the word “Killer” labeled across the chest. Further, appellant was relentless in
his shooting. He ambushed eight unsuspecting students who were talking with each
other and did nothing to provoke him. He shot six students in the cafeteria resulting in
the death of three of them. While students and faculty were running out of the cafeteria
and down the hallway, appellant aimed his gun at an adult monitor who was running
29
after him to prevent him from chasing him. While in the hallway, appellant ran up to
Nick Walczak, who appellant had shot in the cafeteria, and shot him again from behind.
Appellant emptied the magazine in the gun of all ten of its shells. Further, the court
noted that the nature of the injuries and their impact on the victims and their families
were particularly unusual and intense. All six victims were juveniles who had lives filled
with potential. Those who were killed have been deprived of their lives. The survivors
and their families have suffered devastating physical pain and psychological injury, and
they face a future that is forever tainted by appellant’s conduct. Nick is paralyzed and
confined to a wheelchair, severely challenged physically and psychologically, with a
serious economic impact on his family.
{¶105} In addition, the court noted that appellant never stated his motive for this
merciless rampage. The court noted that, while being interrogated, appellant said he
did not know why he shot people. He said it was just something he chose to do. The
court stated that, while appellant’s motive was unclear, it appeared he wanted to make
a name for himself and to make front page news. Thus, it was no coincidence that on
the day of the shootings, appellant boldly and brazenly wore a shirt that displayed
across his chest the word “Killer.” The court stated that because appellant attacked
without discernible motive or provocation, appellant is “extremely dangerous.”
{¶106} Further, the court noted that appellant has shown no remorse, making him
more likely to re-offend. In his interview with the detectives, appellant said that after he
fired the first few rounds, he regretted it and felt terrible. However, the court noted that
he repeatedly shot his gun at students in the cafeteria and in the hall until all rounds in
30
the clip were fired. Further, when he was informed at the Safety Center during his
interview that one of his victims had died, he showed no remorse.
{¶107} We also note that appellant’s conduct at sentencing showed a complete
lack of remorse.
{¶108} This case is distinguishable from Long II. In that case, the trial court did
not even mention at sentencing that Long was a juvenile when he committed his
offenses. As a result, the Ohio Supreme Court stated it could not be sure how the trial
court applied this factor. Id. at ¶27. Further, in Long II, the trial court had conducted a
group sentencing of Long and his two adult accomplices at the same time. As a result,
the Supreme Court in Long II stated that Long might not have been given the benefit of
the consideration of youth as a mitigating factor. Id. at ¶28. In contrast, here, the trial
court explicitly considered the mitigating factors of appellant’s youth on the record.
Further, in weighing appellant’s youth against other pertinent factors, including the
nature of the crimes and appellant’s participation in them, the court found these factors
outweighed the mitigating factors of appellant’s youth.
{¶109} 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 II. 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
31
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.
{¶110} Appellant’s first and second assignments of error are overruled.
{¶111} For his third assignment of error, appellant alleges:
{¶112} “THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL
COUNSEL, IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS TO SUCH.”
Ineffective Assistance of Trial Counsel
{¶113} Appellant argues that if this court holds the issues raised in his first two
assignments of error, i.e., his mandatory bindover and his life-without-parole sentence,
were not preserved for appeal, then his trial counsel was ineffective in not doing so.
{¶114} In order to support a claim of ineffective assistance of counsel, the
defendant must satisfy a two-prong test. First, he must show that counsel’s
performance was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984).
Second, the defendant must show the deficient performance prejudiced the defense. Id.In order to satisfy this prong, “[t]he defendant must show that there is a reasonable
probability that, but for counsel’s * * * errors, the result of the [trial] would have been
different.” Id. at 694. In the context of a guilty plea, the defendant must demonstrate that
there is a reasonable probability that, but for his counsel’s errors, he would not have
pled guilty and instead would have insisted on going to trial. State v. Curd, 11th Dist.
Lake No. 2003-L-030, 2004-Ohio-7222, ¶110.
32
{¶115} With respect to appellant’s argument that his attorney failed to object and
thus failed to preserve his challenge to his mandatory bindover, since we hold that
appellant did not waive this challenge, he was not prejudiced by his attorney’s failure to
object.
{¶116} Next, with respect to appellant’s argument that his attorney failed to
preserve his constitutional challenge to his life-without-parole sentence by not
presenting any constitutional argument in support of his objection, we note that in
addition to trial counsel’s objection to appellant’s sentence, counsel also cited Miller,
Graham, and Roper. Further, the state concedes on appeal that appellant’s trial
counsel specifically objected to appellant’s sentence and preserved this issue for
appeal. Because appellant’s trial counsel raised this issue in the trial court, the issue
was preserved and counsel’s performance was not deficient.
{¶117} We therefore hold that appellant did not receive ineffective assistance of
trial counsel.
{¶118} Appellant’s third assignment of error is overruled.
{¶119} For his fourth and final assigned error, appellant contends:
{¶120} “THE TRIAL COURT’S IMPOSITION OF CONSECUTIVE SENTENCES
UPON THE APPELLANT IS NOT SUPPORTED BY THE TRIAL COURT’S FINDINGS.”
Appellant’s Consecutive Sentences
{¶121} Because appellant argues his consecutive sentences were not supported
by the trial court’s findings, we review his sentence pursuant to R.C. 2953.08(G)(2)(a).
That section provides that the appellate court may vacate the sentence and remand the
matter to the sentencing court for resentencing if the appellate court clearly and
33
convincingly finds that the record does not support the sentencing court’s findings under
R.C. 2929.14(C).
{¶122} The Eighth District recently stated in State v. Venes, 8th Dist. Cuyahoga
No. 98682, 2013-Ohio-1891:
{¶123} It is * * * important to understand that the clear and convincing
standard used by R.C. 2953.08(G)(2) is written in the negative. It does not
say that the trial judge must have clear and convincing evidence to
support its findings. Instead, it is the court of appeals that must clearly and
convincingly find that the record does not support the court’s findings. In
other words, the restriction is on the appellate court, not the trial judge.
This is an extremely deferential standard of review. Venes, supra, at ¶ 21.
{¶124} Pursuant to R.C. 2929.14(C)(4), consecutive sentences can be imposed if
the court finds that (1) consecutive sentences are necessary to protect the public from
future crime or to punish the offender and that (2) consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public. In addition to these two factors, the court must find, as
pertinent here, that 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 was so great or unusual that no one prison term for any of the offenses
adequately reflects the seriousness of the offender’s conduct. R.C. 2929.14(C)(4)(b).
{¶125} Subsequent to this amendment in the consecutive sentencing law, Ohio
Appellate Districts have held that R.C. 2929.14(C)(4) requires trial courts to make the
34
foregoing findings when imposing consecutive sentences. State v. Koeser, 11th Dist.
Portage No. 2013-P-0041, 2013-Ohio-5838, ¶21.
{¶126} However, while the requirement that fact-finding occur was re-enacted by
H.B. 86, the requirement that a sentencing court give reasons for imposing consecutive
sentences, which existed under former R.C. 2929.19(B)(2), was not re-enacted.
Koeser, supra, at ¶22. Thus, a sentencing court is not statutorily required to give
reasons for its findings. Id.{¶127} Turning now to the instant case, the trial court complied with R.C.
2929.14(C)(4) in finding that: (1) consecutive sentences are necessary to protect the
public from future crime and to punish appellant; (2) consecutive sentences are not
disproportionate to the seriousness of his conduct and to the danger he poses to the
public; and (3) appellant committed two or more of these offenses as part of one or
more courses of conduct, and the harm caused by two or more of the offenses was so
great or unusual that no one prison term for any of the offenses adequately reflects the
seriousness of his conduct.
{¶128} Further, we note the court’s findings were supported by the record. In
addition, while the court was not required to provide reasons in support of its findings,
the trial court did so and the court’s reasons were also supported by the record.
{¶129} In fact, appellant does not dispute that the trial court made the findings
required by R.C. 2929.14(C). Nor does he deny that these findings were supported by
the record. Instead, he argues that this case is no more serious than many other
aggravated murder cases in which consecutive sentences are not imposed, making
consecutive sentences inappropriate here. Thus, his argument challenges only the trial
35
court’s imposition of consecutive sentences for his aggravated murder offenses, not the
remaining crimes. Further, nothing in R.C. 2953.08(G)(2) suggests that a different
appellate standard of review, let alone the standard suggested by appellant, applies in
the case of multiple counts of aggravated murder.
{¶130} In any event, we cannot agree with appellant’s argument that this case is
not sufficiently serious to warrant consecutive sentences. Appellant did not act on
impulse, on provocation, or under pressure from peers or adults. To the contrary, he
planned this attack weeks in advance before he went to school that day with a loaded
gun. He shot three young students to death. He shot another student several times,
confining him to a wheelchair and subjecting him to a life of pain and disability.
Appellant also brought indescribable pain, grief, and lifelong tragedy to the victims’
families.
{¶131} Applying the appellate standard of review in R.C. 2953.08(G)(2), we do
not clearly and convincingly find that the record does not support the trial court’s
findings under R.C. 2929.14(C).
{¶132} Appellant’s fourth assignment of error is overruled.
{¶133} For the reasons stated in the opinion of this court, appellant’s
assignments of error lack merit and are overruled. It is the judgment and order of this
court that the judgment of the Geauga County Court of Common Pleas is affirmed.
TIMOTHY P. CANNON, P.J.,
THOMAS R. WRIGHT, J.,
concur.
36