State v. Jarrett , 2023 Ohio 811 ( 2023 )

[Cite as State v. Jarrett, 2023-Ohio-811.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111659
v. :
GUY JARRETT, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 16, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-13-574656-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel T. Van, Assistant Prosecuting
Attorney, for appellee.
Mary Catherine Corrigan, for appellant.
MICHELLE J. SHEEHAN, J.:
Defendant-appellant Guy Jarrett was convicted of aggravated murder
and related offenses after a jury trial in 2014. He received a term of life
imprisonment with parole eligibility after 45 years. This court affirmed his
convictions in his direct appeal. Jarrett was 17 at the time he committed the
offenses. In 2017, he filed a “Motion to Correct Unlawful/Void Sentence,” claiming
that his sentence violates the Eighth Amendment protection against cruel and
unusual punishment. The trial court, after a hearing, denied the motion.
While his motion was pending, the Supreme Court of Ohio released
State v. Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803, 172 N.E.3d 952, which held
that the trial court must expressly consider the youth of a juvenile offender as a
mitigating factor before imposing a sentence of life imprisonment even if the
sentence includes eligibility for parole. As we explain in the following, under the
existing law and precedents, the trial court could not revisit Jarrett’s sentence.
Accordingly, we affirm its judgment denying Jarrett’s motion.
Substantive and Procedural Background
On March 9, 2013, Byron Redd and two female friends stopped at a
birthday party in his neighborhood. When he and his friends were getting ready to
leave in his truck, Jarrett, in an attempt to rob the occupants of the vehicle, opened
the driver’s door and pointed a gun inside the truck, saying “you all know what it is,
give it up.” Redd told the women sitting in the back of the truck to duck and tried to
drive away, but the truck’s gear stick jammed temporarily and Redd was unable to
leave right away. Jarrett fired into the truck and continued to shoot as Redd fled in
his truck, trying to drive back to his house. Jarrett fired ten bullets into the fleeing
truck. Redd was struck by seven of the bullets. He eventually lost consciousness
and crashed into his own house. At the time of the incident, Jarrett was less than
two months away from turning 18.
Jarrett was bound over from the juvenile court to the common pleas
court and charged with aggravated murder, aggravated robbery, and other related
offenses. After a jury trial, he was convicted of all charges. On May 30, 2014, in a
nunc pro tunc entry, the trial court sentenced him to life in prison with parole
eligibility after 30 years for aggravated murder, consecutive to six years for robbery
and assault offenses, in addition to nine years on the firearm specifications. He
would reach parole eligibility after 45 years.1
On August 1, 2017, Jarrett, pro se, filed a “Motion to Correct
Unlawful/Void Sentence Per 8th Amendment: Cruel and Unusual Punishment.” He
claimed that his sentence of 45 years to life is void pursuant to Miller v. Alabama,
567 U.S. 460, 473, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), which held that the
Eighth Amendment forbids a sentencing scheme that mandates life in prison
without possibility of parole for juvenile offenders. He claimed that the trial court,
1 According to the state’s representation, under S.B. 256, enacted for the purposes
of allowing juvenile offenders who have been bound over to the adult court to reach their
parole eligibility sooner, Jarrett would be eligible for parole after serving 25 years.
by sentencing him to life imprisonment with parole eligibility after 45 years,
intended that he would never have a meaningful opportunity at parole.2
On September 8, 2020, Jarrett, through counsel, filed an amended
motion.3 Jarrett argued that a sentence of 45 years prior to eligibility of parole failed
to provide a meaningful opportunity required by Miller for a juvenile offender to
obtain release based on demonstrated maturity and rehabilitation. Jarrett attached
to the amended motion an appendix listing the life expectancy at different ages by
sex and race estimated by the CDC. He noted that, according to the estimate, a black
male born in 1995 like him has a life expectancy at birth of 65.2 years. Another
exhibit attached to the motion was an article from Prison Policy Initiative, a non-
partisan organization researching incarceration issues; according to the article, a
year of incarceration decreases one’s life expectancy by two years. Jarrett alleged
that, based on these statistics, he would not live to see his first parole hearing.
On September 11, 2020, the state filed a brief opposing Jarrett’s
motion. The state argued that Jarret’s motion was an untimely postconviction-relief
petition and, therefore, the trial court lacked jurisdiction to grant the motion. The
2 Jarrett directs our attention to page 1,241 of the transcript where the trial court
stated the following when addressing Jarrett: “I really fear with talk of the Instagram and
all this nonsense that someone is somehow glorifying what you did. But of course, you
go to prison for what could be the rest of your natural life, [and] I can’t imagine the glory
in that.”
3For unknown reasons, the docket reflects that this motion was “granted” on
February 9, 2018. On August 21, 2020, Jarrett, through counsel, filed a “Motion to set for
Hearing Pursuant to Granted Motion to Correct Unlawful Sentence Per Eighth
Amendment Cruel and Unusual Punishment.” Counsel noted that, although the motion
was “granted,” the court had not set a hearing for resentencing.
state also argued that Miller did not apply because Jarrett did not receive a sentence
of life imprisonment without parole. The state in addition argued that Jarrett’s
claim was barred by res judicata because he could have raised the constitutional
claim on his direct appeal.
While Jarrett’s motion was pending, on December 22, 2020, the
Supreme Court of Ohio decided Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803, 172
N.E.3d 952, holding that the trial court must expressly consider the juvenile
offender’s age as a mitigating factor when imposing a term of life imprisonment,
even if the term includes eligibility for parole.
On June 6, 2022, the trial court held a hearing on the matter. Jarrett’s
counsel argued that Jarrett’s sentence of life imprisonment with parole eligibility
after 45 years was tantamount to a life term without parole eligibility because, based
on his life expectancy, he is unlikely to have a meaningful opportunity to appear
before the parole board. Counsel argued that the Supreme Court of Ohio’s decision
in Patrick also supported a resentencing. The state argued Jarrett’s motion was an
untimely petition for postconviction relief and also argued that the Supreme Court
of Ohio’s decisions in State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159
N.E.3d 248, and State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162
N.E.3d 776, precluded resentencing. The trial court denied the motion pursuant to
Harper/Henderson.
Instant Appeal
Jarrett raises the following two assignments of error:
I. The trial court erred by failing to grant the appellant’s motion for a
resentencing.
II. The trial court’s reliance on State v. Henderson, [161 Ohio St.3d
285, 2020-Ohio-4784, 162 N.E.3d 776], is in error.
For ease of discussion, we address these assignments of error jointly.
Life Imprisonment for Juvenile Offenders
The issue of whether a juvenile could be sentenced to a life sentence
without parole eligibility was decided by the Supreme Court of Ohio in State v. Long,
138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890. The Supreme Court of Ohio held
that a court, in exercising its discretion under R.C. 2929.03(A), which governs the
imposition of sentences for aggravated murder, “must separately consider the youth
of a juvenile offender as a mitigating factor before imposing a sentence of life
without parole.” Id. at paragraph one of the syllabus, citing Miller, 567 U.S. 460,
473, 132 S.Ct. 2455, 183 L.Ed.2d 407 (“a mandatory life-without-parole sentence for
juvenile offenders is cruel and unusual punishment”).4 The court in Long held that
4 In Montgomery v. Louisiana, 577 U.S. 190, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016),
the United States Supreme Court further held that Miller announced a substantive rule
and is therefore retroactive.
the record must reflect consideration of the offender’s youth as a mitigating factor
when the court imposes a life term without parole eligibility on a juvenile offender.
Six years after Long, in Patrick, 164 Ohio St.3d 309, 2020-Ohio-
6803, 172 N.E.3d 952, a juvenile offender who received a sentence of life
imprisonment with parole eligibility after 33 years argued (in his direct appeal) that
the trial court failed to consider his youth when it imposed a life sentence and his
sentence violated the Eighth and Fourteenth Amendments to the United States
Constitution and Article I, Section 9 of the Ohio Constitution.
A majority of the Ohio Supreme Court agreed and extended the
holding of Long to juvenile offenders who are sentenced to life imprisonment with
parole eligibility. The court determined that the difference between a sentence of
life in prison with parole eligibility and a sentence of life without the possibility of
parole is not material for purposes of an Eighth Amendment challenge. Patrick at ¶
33. The court held that a trial court must separately consider the youth of a juvenile
offender as a mitigating factor before imposing a life sentence even if the sentence
includes eligibility for parole. Id. at ¶ 2.
Subsequently, in State v. Morris, Slip Opinion No. 2022-Ohio-4609,
a majority of the court reaffirmed its holding in Patrick. The issue in Morris was
whether Patrick was effectively overruled by a subsequent United States Supreme
Court decision, Jones v. Mississippi, 593 U.S.___, 141 S.Ct. 1307, 209 L.Ed.2d 390(2021). In Jones, the United States Supreme Court held that “trial courts may
sentence juveniles to life without parole without making a separate factual finding
of permanent incorrigibility and that an on-the-record finding is not required.”
Morris at ¶ 10, citing Jones at 1314-1319, 1321.
The Supreme Court of Ohio determined that Patrick was not
overruled by Jones because “[a] trial court’s assessing that a defendant is
permanently incorrigible is not the same thing as considering a defendant’s youth
as a mitigating factor before imposing a sentence of life in prison without the
possibility of parole.” Morris at ¶ 12. The juvenile offender in Morris therefore
successfully challenged (in his direct appeal) his sentence of life imprisonment with
parole eligibility after 38 to 43 years.
There are three reasons, however, why the trial court properly denied
Jarrett’s motion in the instant case. First, while in both Patrick and Morris the
constitutional claim was raised in direct appeal, Jarrett’s motion was an untimely
postconviction-relief petition. Second, even if the motion was timely, his claim
would be barred by res judicata pursuant to the Ohio Supreme Court’s decisions in
Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, and Henderson, 161
Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776. Third, as the law currently
stands, Patrick does not apply retroactively.
Untimely Postconviction-Relief Petition
Jarrett’s convictions became final on May 30, 2014, and this court
affirmed his convictions in his direct appeal in State v. Jarrett, 8th Dist. Cuyahoga
No. 101245, 2015-Ohio-1287. Jarrett captioned his motion as a “Motion to Correct
Unlawful/Void sentence Per Eighth Amendment Cruel and Unusual Punishment.”
Despite its caption, however, the motion is a postconviction-relief petition. State v.
Parker, 157 Ohio St.3d 460, 2019-Ohio-3848, 137 N.E.3d 1151, ¶ 16 (a motion
seeking correction of sentence filed after a direct appeal on the ground that
constitutional rights have been violated is a petition for postconviction relief).
Jarrett’s motion, filed beyond the one-year time period, is an
untimely postconviction-relief petition. While R.C. 2953.23 provides certain narrow
exceptions allowing the trial court to grant untimely postconviction-relief petitions,
Jarrett’s situation, where he sought to have a new Ohio Supreme Court decision
applied to him, does not fit into any exceptions. R.C. 2953.23(A)(1)(a) and (b).
While R.C. 2953.23(A) vests a common pleas court with authority to grant relief on
an untimely petition when the petitioner asserts a claim based on a new state or
federal right recognized by the United States Supreme Court, the statute provides
no exception allowing an untimely petition to be granted based on a new decision of
the Supreme Court of Ohio. Parker at ¶ 2.5
Harper/Henderson Bars the Claim
Even if Jarrett’s motion had been timely, his Eighth Amendment
claim would be barred by res judicata. In Harper, 160 Ohio St.3d 480, 2020-Ohio-
5 R.C. 2953.23(A) provides that a trial court lacks authority to grant an untimely petition
unless one of the two statutory exceptions applies. The first exception, which is the
exception pertinent to this case, permits the trial court to entertain an untimely petition
if both of the following apply:
(a) Either the petitioner shows that the petitioner was unavoidably
prevented from discovery of the facts upon which the petitioner must
rely to present the claim for relief, or, subsequent to the period
2913, the Supreme Court of Ohio changed its void/voidable sentence jurisprudence,
holding that a sentence is void only where the sentencing court lacks jurisdiction
over the case or the defendant. The court held that the trial court’s improper
imposition of postrelease control renders a sentence voidable, not void, and
therefore the error in sentencing must be challenged on direct appeal. Because
appellant Harper did not challenge the sentencing error in his direct appeal, res
judicata precluded him from challenging it afterward. The holding in Harper is
subsequently extended to any claims of sentencing error in Henderson, 161 Ohio
St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776. “A sentence is void only if the
sentencing court lacks jurisdiction over the subject matter of the case or personal
prescribed in division (A)(2) of section 2953.21 of the Revised Code or
to the filing of an earlier petition, the United States Supreme Court
recognized a new federal or state right that applies retroactively to
persons in the petitioner’s situation, and the petition asserts a claim
based on that right.
(b) The petitioner shows by clear and convincing evidence that, but for
constitutional error at trial, no reasonable factfinder would have found
the petitioner guilty of the offense of which the petitioner was convicted
or, if the claim challenges a sentence of death that, but for constitutional
error at the sentencing hearing, no reasonable factfinder would have
found the petitioner eligible for the death sentence.
(Emphasis added.)
In this case, Jarrett did not assert the recognition of a new federal or state right by
the Supreme Court of the United States. While Miller, 567 U.S. 460, 473, 132 S.Ct. 2455,
183 L.Ed.2d 407, grants a substantive right, State v. Moore, 149 Ohio St.3d 557, 2016-
Ohio-8288, ¶ 97-99, Miller is not a new decision issued subsequent to Jarrett’s
convictions. His claim based on Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803, 172
N.E.3d 952, is equally unavailing because the statute does not provide an exception based
on a new state or federal right recognized by a new Ohio Supreme Court decision.
jurisdiction over the accused.” Id. at ¶ 27. Before these decisions, a sentence
imposed in violation of law was considered void and subject to collateral attack in
postconviction proceedings; subsequent to these decisions, errors other than those
regarding the trial court’s jurisdiction can only be corrected on direct appeal. See
State v. Jones, 8th Dist. Cuyahoga No. 110855, 2022-Ohio-1674, ¶ 5.
Jarrett’s claim that his sentence of life imprisonment with parole
eligibility after 45 years is tantamount to a life term without parole eligibility and
constituted cruel and unusual punishment pursuant to Miller could have been
raised in his direct appeal and is now barred by res judicata, pursuant to Harper and
Henderson.
Whether Patrick can be Applied Retroactively
After Jarrett’s conviction became final, the Supreme Court of Ohio
decided Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803, 172 N.E.3d 952, and held
that a trial court must expressly consider the youth of a juvenile offender as a
mitigating factor when sentencing a juvenile offender to a life term, even if the term
includes parole eligibility. On appeal, Jarrett cites Patrick in support of his claim.
While we have explained in the foregoing that Jarrett’s request for resentencing is
untimely and also barred by res judicata, for the sake of completeness, we briefly
address the question of whether the trial court can revisit Jerrett’s sentence in light
of Patrick.
“A new judicial ruling may be applied only to cases that are pending
on the announcement date.” Ali v. State, 104 Ohio St.3d 328, 2004-Ohio-6592, 819
N.E.2d 687, ¶ 6, citing State v. Evans, 32 Ohio St.2d 185, 186, 291 N.E.2d 466 (1972).
“[A] new decision does not apply to convictions that were final when the decision
was announced.” Moore, 149 Ohio St.3d 557, 2016-Ohio-8288, at ¶ 97. In State v.
Wiesenborn, 2d Dist. Montgomery No. 29388, 2022-Ohio-3762, ¶ 26, the Second
District concluded that Patrick may not be applied retroactively to a final conviction
and the juvenile offender — who was sentenced to consecutive 78.5 years for rape
and related offenses — had no legal right to have Patrick applied to his case because
he had no appeal pending when Patrick was decided.
While we recognize that “courts must give retroactive effect to new
substantive rules of constitutional law,” Moore at ¶ 97, we agree with the Second
District that the rule announced in Patrick is a procedural rule and does not apply
retroactively. Wiesenborn at ¶ 26.6 Our determination comports with the principle
that “[a]bsent statutory authority, a trial court is generally not empowered to modify
6 We note that in State v. Hawkins, 2015-Ohio-5383, 55 N.E.3d 505 (2d
Dist.), appellant filed a delayed application for reconsideration, arguing Patrick
applied retroactively. The Second District held that Patrick is procedural and
therefore does not apply retroactively. The Supreme Court of Ohio accepted the case
for discretionary review. State v. Hawkins, 167 Ohio St.3d 1450, 2022-Ohio-2246,
189 N.E.3d 822. The appeal, however, was ultimately dismissed by appellant.
Subsequently, the court denied review of Wiesenborn, where appellant claimed in
one of the propositions of law that Patrick is substantive and must be given
retroactive effect. 03/01/2023 Case Announcements #2, 2023-Ohio-580, appeal not
accepted for review, State v. Wiesenborn, Case No. 2022-1462
a criminal sentence by reconsidering its own final judgment.” State v. Carlisle, 131
Ohio St.3d 127, 2011-Ohio-6553, 961 N.E.2d 671, ¶ 1.
While we recognize the potential merit of Jarrett’s claim that the trial
court should have considered his youth as a mitigating factor before sentencing him
to a term that might effectively be a life term without the possibility of parole, we are
nonetheless bound by the existing law and precedents. As an inferior court, we are
unable to grant the relief sought by Jarrett as the law currently stands. The first and
second assignments of error are overruled.
The trial court’s judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. Case remanded to the
trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MICHELLE J. SHEEHAN, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and
MICHAEL JOHN RYAN, J., CONCUR