State v. Phipps , 2016 Ohio 663 ( 2016 )

[Cite as State v. Phipps, 2016-Ohio-663.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 15AP-524
v. : (C.P.C. No. 12CR-6254)
Sharvess M. Phipps, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on February 23, 2016
On brief: Ron O'Brien, Prosecuting Attorney, and
Barbara A. Farnbacher, for appellee. Argued: Barbara A.
Farnbacher.
On brief: Yeura R. Venters, Public Defender, and Emily L.
Huddleston, for appellant. Argued: George Schumann.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, P.J.
{¶ 1} Defendant-appellant, Sharvess M. Phipps, appeals the judgment of the
Franklin County Court of Common Pleas resentencing him following remand. For the
reasons that follow, we affirm in part and reverse in part the judgment of the trial court.
I. Facts and Procedural History
{¶ 2} The facts and procedural history of this case are more fully detailed in this
court's prior decision on appellant's direct appeal, State v. Phipps, 10th Dist. No. 13AP-
640, 2014-Ohio-2905 ("Phipps I"), and our decision on appellant's appeal of the denial of
his petition for postconviction relief, State v. Phipps, 10th Dist. No. 14AP-545, 2015-Ohio-
3042 ("Phipps II").
{¶ 3} As relevant here, on December 12, 2012, appellant was indicted on 41 felony
charges arising from a series of robberies, burglaries, and home invasions in May and
June 2012. Appellant entered a plea of guilty to 21 counts of the indictment. On
No. 15AP-524 2
January 25, 2013, the trial court sentenced appellant to an aggregate prison term of 172
years and 11 months. On June 14, 2013, the trial court conducted a resentencing hearing,
sentencing appellant to an aggregate prison term of 150 years. The trial court filed a
corrected judgment entry following the resentencing hearing on June 28, 2013.
{¶ 4} On July 23, 2013, appellant filed a direct appeal from the June 28, 2013
judgment entry. On June 30, 2014, this court rendered a decision on appellant's direct
appeal, affirming in part and reversing in part. Phipps I at ¶ 74. In that decision, we
found that the trial court failed to make the findings required by R.C. 2929.14(C)(4)
before imposing consecutive sentences. Id. at ¶ 57. Accordingly, we remanded for the
trial court to "consider whether consecutive sentences [were] appropriate pursuant to
R.C. 2929.14(C)(4) and, if so, to enter the proper findings on the record." Id.
Additionally, regarding whether appellant's convictions for aggravated robbery and
kidnapping were subject to merger, we found that "the record on appeal is not developed
sufficiently to determine whether the offenses were committed by the same conduct" and
concluded that the matter must be remanded for the trial court to determine whether
appellant's offenses should merge. Id. at ¶ 66.
{¶ 5} On April 7, 2014, during the pendency of his direct appeal, appellant filed a
petition for postconviction relief pursuant to R.C. 2953.21. On June 23, 2014, the trial
court denied the petition. On July 14, 2014, appellant filed a notice of appeal from the
denial of his petition for postconviction relief.
{¶ 6} On July 2, 2014, the trial court filed an entry scheduling appellant's
resentencing hearing for September 16, 2014 pursuant to this court's decision in Phipps I.
On August 14, 2014, appellant filed a motion to vacate the resentencing hearing, asserting
that the trial court lacked jurisdiction during the pendency of appellant's appeal of this
court's decision in Phipps I to the Supreme Court of Ohio. On September 2, 2014, the trial
court granted appellant's motion to vacate the September 16, 2014 resentencing hearing,
and scheduled the resentencing hearing for January 28, 2015. On January 16, 2015, the
trial court rescheduled appellant's resentencing hearing for April 22, 2015. On April 10,
2015, appellant filed a motion to vacate the April 22, 2015 resentencing hearing, asserting
that the trial court lacked jurisdiction during the pendency of appellant's postconviction
appeal to this court. On April 15, 2015, the trial court denied appellant's motion to vacate
the resentencing hearing.
No. 15AP-524 3
{¶ 7} On April 15, 2015, appellant filed a motion to withdraw his guilty plea
pursuant to Crim.R. 32.1. On April 16, 2015, plaintiff-appellee, State of Ohio, filed a
memorandum contra. On April 21, 2015, appellant filed a sentencing memorandum.
{¶ 8} On April 22, 2015, the trial court held a resentencing hearing, sentencing
appellant to an aggregate prison term of 150 years. On April 23, 2015, the trial court filed
a resentencing judgment entry. On April 27, 2015, the trial court filed a corrected
resentencing judgment entry. On April 30, 2015, the trial court filed two additional
sentencing entries which appear to contain mere typographical corrections.
II. Assignments of Error
{¶ 9} Appellant appeals assigning the following three errors for our review:
1. The trial court erred by failing to merge Mr. Phipps'
convictions at sentencing in violation of R.C. 2941.25(A), the
Fifth and Fourteenth Amendments to the United States
Constitution, and Article I, Sections 10 and 16 of the Ohio
Constitution.
2. The trial court erred by resentencing Mr. Phipps because it
lacked jurisdiction to do so because the same matter was
pending before the Tenth District Court of Appeals for review.
3. The trial court erred by failing to consider Mr. Phipps'
youth when imposing a life sentence.
For ease of discussion, we address the assignments of error out of order.
A. Second Assignment of Error—Jurisdiction
{¶ 10} We first consider appellant's second assignment of error as it raises a
jurisdictional question. Specifically, appellant asserts that the trial court lacked
jurisdiction to resentence him during the pendency of his appeal from the trial court's
denial of his petition for postconviction relief.
{¶ 11} Generally, " 'trial courts lack authority to reconsider their own valid final
judgments in criminal cases.' " State ex rel. Cruzado v. Zaleski, 111 Ohio St. 3d 353, 2006-
Ohio-5795, ¶ 18, quoting State ex rel. White v. Junkin, 80 Ohio St. 3d 335, 338 (1997). See
State v. Bowman, 10th Dist. No. 02AP-1025, 2003-Ohio-5341, ¶ 20. The Supreme Court
has " 'consistently held that once an appeal is perfected, the trial court is divested of
jurisdiction over matters that are inconsistent with the reviewing court's jurisdiction to
reverse, modify, or affirm the judgment.' " State ex rel. Sullivan v. Ramsey, 124 Ohio
St.3d 355, 2010-Ohio-252, ¶ 17, quoting State ex rel. Rock v. School Emp. Retirement Bd.,
No. 15AP-524 4
96 Ohio St. 3d 206, 2002-Ohio-3957, ¶ 8; State ex rel. Special Prosecutors v. Judges,
Court of Common Pleas, 55 Ohio St. 2d 94, 95 (1978).
{¶ 12} "The postconviction relief process is a civil collateral attack on a criminal
judgment, not an appeal of that judgment." State v. Ibrahim, 10th Dist. No. 14AP-355,
2014-Ohio-5307, ¶ 8, citing State v. Davis, 10th Dist. No. 13AP-98, 2014-Ohio-90, ¶ 17,
citing State v. Calhoun, 86 Ohio St. 3d 279, 281 (1999). "Postconviction relief is a means
by which the petitioner may present constitutional issues to the court that would
otherwise be impossible to review because the evidence supporting those issues is not
contained in the record of the petitioner's criminal conviction." Ibrahim at ¶ 8.
"Postconviction review is not a constitutional right but, rather, is a narrow remedy which
affords a petitioner no rights beyond those granted by statute." Id., citing Calhoun at 281-
82. "A postconviction relief petition does not provide a petitioner a second opportunity to
litigate his or her conviction." Id. at ¶ 8.
{¶ 13} Here, because the postconviction relief process is a collateral civil
proceeding, it is not a matter inconsistent with the trial court's jurisdiction over a criminal
conviction and sentence. "Trial courts routinely consider petitions for postconviction
relief even while an appeal from the conviction is pending either in the court of appeals or
in this court." Morgan v. Eads, 104 Ohio St. 3d 142, 2004-Ohio-6110, ¶ 15. Indeed, in this
case, the trial court considered and rendered judgment on appellant's petition for
postconviction relief which was filed during the pendency of appellant's direct appeal of
his conviction and sentence.
{¶ 14} Appellant points to Bowman, State v. Hunt, 10th Dist. No. 04AP-1177,
2005-Ohio-3144, and Special Prosecutors in support of his position that the trial court
was divested of jurisdiction to resentence him during the pendency of his appeal from the
denial of the petition for postconviction relief. However, we find those cases inapplicable
to the present matter. In both Bowman and Hunt, the trial court filed amended judgment
entries while the direct appeal of the defendant's conviction was pending before the court
of appeals. Bowman at ¶ 14-15, 21; Hunt at ¶ 4, 11. However, here, only appellant's
appeal from the denial of his petition for postconviction relief was pending before this
court, as we had already remanded appellant's direct appeal of his conviction and
sentence to the trial court for resentencing. In Special Prosecutors, the Supreme Court
found that the trial court lacked jurisdiction to entertain a motion to withdraw a guilty
plea after the direct appeal had been perfected. Id. at 97-98. However, unlike a motion to
No. 15AP-524 5
withdraw a guilty plea, a trial court retains jurisdiction to consider a motion for
postconviction relief during the pendency of a direct appeal. R.C. 2953.21(C) ("The court
shall consider a petition * * * even if a direct appeal of the judgment is pending.");
Morgan at ¶ 15. Thus, the rule articulated in Special Prosecutors is inapplicable here
when considering a trial court's jurisdiction over resentencing during the pendency of an
appeal from the denial of a petition for postconviction relief.
{¶ 15} Therefore, we find that the trial court was not divested of jurisdiction to
resentence appellant following the notice of appeal from the denial of his petition for
postconviction relief. Accordingly, we overrule appellant's second assignment of error.
B. First Assignment of Error—Merger
{¶ 16} In his first assignment of error, appellant asserts that the trial court erred by
failing to merge his convictions for aggravated robbery and kidnapping. Appellant argues
that the facts of this case demonstrate that (1) there was no separate, identifiable harm,
(2) there was no separate animus, and (3) the offenses were committed simultaneously in
conjunction with one another. Thus, appellant contends that the convictions merge
pursuant to State v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, which clarified the analysis
of allied offenses articulated in State v. Johnson, 128 Ohio St. 3d 153, 2010-Ohio-6314.
{¶ 17} R.C. 2941.25(A), Ohio's allied-offenses statute, provides that "[w]here the
same conduct by defendant can be construed to constitute two or more allied offenses of
similar import, the indictment or information may contain counts for all such offenses,
but the defendant may be convicted of only one." The Supreme Court has held that "two
or more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when
the defendant's conduct constitutes offenses involving separate victims or if the harm that
results from each offense is separate and identifiable." Ruff at ¶ 26. In determining
whether offenses are allied offenses within the meaning of R.C. 2941.25(A), a court must
consider the offender's conduct through the following questions: "(1) Were the offenses
dissimilar in import or significance? (2) Were they committed separately? and (3) Were
they committed with separate animus or motivation?" Id. at ¶ 31. Separate convictions
are permissible should the court, considering the conduct, animus, and import, answer in
the affirmative as to any of those questions. Id.
{¶ 18} "At its heart, the allied-offense analysis is dependent upon the facts of a case
because R.C. 2941.25 focuses on the defendant's conduct." Id. at ¶ 26. Because this test is
inherently fact-dependent, it is recognized that " 'this analysis * * * may result in varying
No. 15AP-524 6
results for the same set of offenses in different cases.' " Id. at ¶ 32, quoting Johnson at
¶ 52.
{¶ 19} Pursuant to the allied-offenses statute, where it is determined that the
defendant has been found guilty of allied offenses, "the trial court must accept the state's
choice among allied offenses, 'merge the crimes into a single conviction for sentencing,
and impose a sentence that is appropriate for the merged offense.' " (Emphasis sic.) State
v. Bayer, 10th Dist. No. 11AP-733, 2012-Ohio-5469, ¶ 21, quoting State v. Wilson, 129
Ohio St. 3d 214, 2011-Ohio-2669, ¶ 13. We review de novo a trial court's ruling as to
whether convictions merge under the allied-offenses doctrine. State v. Corker, 10th Dist.
No. 13AP-264, 2013-Ohio-5446, ¶ 28, citing State v. Roush, 10th Dist. No. 12AP-201,
2013-Ohio-3162, ¶ 47.
{¶ 20} A conviction for aggravated robbery, as defined in R.C. 2911.01(A)(1),
requires proof that an offender displayed, brandished, or used a deadly weapon in order
to facilitate a theft offense. Corker at ¶ 29. Pursuant to R.C. 2905.01, kidnapping
requires proof that an offender by force, threat, or deception restrained another of his or
her liberty or removed another from the place where he or she was found. Id.
{¶ 21} The Supreme Court has recognized that the commission of aggravated
robbery necessarily involves restraint of the victim. Corker at ¶ 29, citing State v.
Jenkins, 15 Ohio St. 3d 164, 198 (1984), fn. 29; see also State v. Broomfield, 10th Dist. No.
12AP-469, 2013-Ohio-1676, ¶ 14; State v. Noor, 10th Dist. No. 13AP-165, 2014-Ohio-3397,
¶ 87. However, this court has found that aggravated robbery and kidnapping are not
allied offenses of similar import where the restraint of the victim extends beyond the time
required to commit the aggravated robbery. Corker at ¶ 30, citing State v. Logan, 60
Ohio St. 2d 126 (1979), syllabus.
{¶ 22} In Noor, we surveyed recent cases from this court analyzing merger of
kidnapping and aggravated robbery offenses.1 In the earliest case, State v. Davis, 10th
Dist. No. 09AP-869, 2011-Ohio-1023, we held that kidnapping did not merge with
aggravated robbery because the facts demonstrated a separate animus for the charges. Id.
at ¶ 23. In that case, the victims were held at gunpoint while the robbers demanded
money and then were bound and driven around for several hours while the defendant
continued to demand money. Id. at ¶ 15.
1We note that these decisions were issued prior to Ruff. Nevertheless, we find that the factual and legal
analysis involved in these decisions to be instructive in performing the analysis prescribed in Ruff.
No. 15AP-524 7
{¶ 23} In State v. Sidibeh, 192 Ohio App. 3d 256, 2011-Ohio-712 (10th Dist.), the
defendant restrained the liberty of the occupants of a home while others rummaged
through the house. The facts in that case revealed that the restraint lasted no longer than
necessary to complete the aggravated robbery. Although the victims were moved to the
common area of the home, we found that movement of the victims was not so substantial
as to indicate significance independent of committing the aggravated robbery. As a result,
we held that the kidnapping and aggravated robbery offenses merged. Id. at ¶ 61.
{¶ 24} In State v. Vance, 10th Dist. No. 11AP-755, 2012-Ohio-2594, we held that
kidnapping and aggravated robbery offenses did not merge because the kidnapping was
prolonged and involved transporting the victim over a considerable distance. Id. at ¶ 16.
In that case, the defendant entered the victim's vehicle, held her captive at gunpoint,
demanded money, drove her to an ATM where he withdrew money from her account,
drove her to a drug house where he ordered her to remain in the van, and then returned
and drove her to another location, where he exited the car and told her to drive away. In
total, the incident lasted approximately one hour and fifteen minutes.
{¶ 25} In Broomfield, we held that the offenses of robbery and kidnapping were
not subject to merger because the movement of victims during the course of a robbery had
significance independent of the robbery. Id. at ¶ 19. We noted that the kidnapping
exposed the victim to an increased risk of substantial harm and that one victim was
moved to a separate bedroom location within the house before the defendant sexually
assaulted the victim. Further, we found that the restraint "appear[ed] to have lasted
longer than necessary to complete the robbery." Id.
{¶ 26} In Noor, the defendants held 11 victims at gunpoint in a residence,
demanding money and property from the occupants. Id. at ¶ 3. The victims were
threatened, assaulted, and restrained of their liberty for approximately 20 to 40 minutes
until the victims overcame the robbers, terminating the robbery. Finding the facts to be
analogous to those in Sidibeh and considering our holding in Broomfield, we concluded
that the aggravated robbery offenses merged with the kidnapping offenses. Noor at ¶ 95.
{¶ 27} Here, in Phipps I, we found that merger of the offenses was not discussed at
the sentencing hearings, and the record did not reflect that the trial court considered or
applied the merger analysis required by R.C. 2941.25(A). In our decision, we noted that
"the prosecutor's summary statement at the plea hearing contains the only factual
No. 15AP-524 8
background regarding the incident." Id. at ¶ 66. We provided the factual summary as
follows:
[O]n June 20, 2012, appellant and [his accomplice], wearing
black ski masks and gloves, entered a residence. They held
one victim at gunpoint, got the second victim out of bed at
gunpoint, and led both victims around the house looking for
items of value. The two eventually took watches, a laptop,
some iPods, and jewelry.
Id. at ¶ 31. We found that "limited facts as recited by the prosecutor raise an issue as to
whether the offenses are subject to merger," but concluded that "the record on appeal
[was] not developed sufficiently" for us to conclusively determine the issue. Id. at ¶ 66.
{¶ 28} At the resentencing hearing on April 22, 2015, the state offered the
following factual summary:
[Assistant Prosecuting Attorney]: [O]n June 20, 2012 at 1:20
p.m., [the] victims * * * reported a robbery. [The victims] were
inside their residence [when] [t]wo male blacks, one wearing a
black ski mask, gloves, and all black clothing and the other
wearing a black bandanna over his face with black gloves
entered through an unlocked front door.
Both suspects displayed pistols and the first suspect
demanded money from [one victim] at gunpoint and asked if
there was anyone else in the house. [The victim] stated his
grandmother was in the bedroom, and the second suspect
proceeded to the bedroom and ordered her out at gunpoint.
The second suspect held both victims at gunpoint and the first
suspect began ransacking their residence, putting property
into a black duffel bag and a blue drawstring backpack.
The suspects stole a total of five watches, one being a Mark
Ecko watch with the original box, a Toshiba laptop, another
laptop computer, two Apple Ipods, a residential telephone,
and jewelry.
During the robbery one suspect told [one victim] that he has
17 hollow points in his gun. [The victim] stated that the
suspects fled out the front door southbound * * *.
(Apr. 22, 2015 Tr. 12-13.)
{¶ 29} Based on the factual recitation provided by the state at the resentencing
hearing, we find that the offenses of aggravated robbery and kidnapping are allied
offenses of similar import subject to merger. Under the framework provided by Ruff, we
first consider whether the offenses were dissimilar in import or significance. We find the
No. 15AP-524 9
facts in this case to be more akin to those of Sidibeh, in which the movement of the
victims to a common area of the house did not demonstrate significance independent of
the robbery. See also Noor at ¶ 95. Therefore, based on the limited facts in the record, we
cannot find that the harm resulting from each offense is separate and identifiable, and
thus not dissimilar in import. Ruff at ¶ 23.
{¶ 30} Next, we consider whether the conduct demonstrates that the offenses were
committed separately. The state claims in its brief that the victims were "held at gunpoint
for a prolonged period of time." (Appellee's Brief, 18.) However, the record is silent as to
the amount of time the kidnapping and robbery lasted. Further, unlike in Vance, in which
the kidnapping involved conduct beyond being merely incident to the commission of the
robbery, the factual record in this case reflects that the kidnapping was limited to the
restraint of the victims necessary to commit the offense of aggravated robbery. See also
Corker at ¶ 29, 31. Therefore, in the absence of additional facts, we find that the
kidnapping and robbery were not committed separately.
{¶ 31} Finally, we consider whether the offenses were committed with separate
animus or motivation. Nothing in the record demonstrates that the kidnapping was
committed with any separate animus or motivation from the completion of the robbery.
The state cites to State v. Merryman, 4th Dist. No. 12CA28, 2013-Ohio-4810, ¶ 52, in
support of its claim that the confinement of the victims was "secretive, as they were not
able to leave their home." (Appellee's Brief, 22.) In Merryman, the court considered
whether the offenses of rape and kidnapping were subject to merger. The court found
that the defendant's conduct in moving the victim from the hallway to the bathroom
demonstrated a desire to avoid detection, and therefore the offense of kidnapping was
committed with a separate motive from that of the offense of rape. Id. at ¶ 52. However,
unlike in Merryman, nothing in the record of this case demonstrates that the movement
of the victims within the residence was performed out of a desire to create secrecy.
Therefore, we find Merryman inapposite to this matter. Further, unlike in Davis in
which the prolonged restraint of the victim demonstrated animus separate from that of
the robbery, as previously mentioned, the limited record before us does not reflect any
evidence of prolonged restraint of the victims.
{¶ 32} Therefore, based on the facts and circumstances in the record and
considering the holdings in Ruff and other applicable precedent, we find that the
No. 15AP-524 10
aggravated robbery offenses merge with the kidnapping offenses. Accordingly, we sustain
appellant's first assignment of error.
C. Third Assignment of Error—Appellant's Youth
{¶ 33} In his third assignment of error, appellant contends the trial court erred by
failing to consider his youth as a relevant factor under R.C. 2929.12. In support of his
argument, appellant points to recent decisions of the United States Supreme Court which
have noted the lesser culpability of juvenile offenders due to developmental differences
between juveniles and adults. See, e.g., Miller v. Alabama, __ U.S. __, 132 S. Ct. 2455
(2012); Graham v. Florida, 560 U.S. 48 (2010); Roper v. Simmons, 543 U.S. 551 (2005).
{¶ 34} In Roper, the court found that the Eighth and Fourteenth Amendments to
the U.S. Constitution "forbid imposition of the death penalty on offenders who were
under the age of 18 when their crimes were committed." Id. at 578. In Graham, the court
found that "[b]ecause '[t]he age of 18 is the point where society draws the line for many
purposes between childhood and adulthood,' those who were below that age when the
offense was committed may not be sentenced to life without parole for a nonhomicide
crime." Id. at 74-75, quoting Roper at 574. In Miller, the court extended this line of
reasoning to crimes including homicide to hold that "mandatory life without parole for
those under the age of 18 at the time of their crimes violates the Eighth Amendment's
prohibition on 'cruel and unusual punishments.' " Id. at 2460.
{¶ 35} Here, appellant, who was 19 years old at the time of the offenses in question,
argues that his relative youth should have been taken into consideration during
sentencing because "he lacked * * * maturity and had an underdeveloped sense of
responsibility." (Appellant's Brief, 17.) Appellant provided the trial court with such
arguments in a sentencing memo supported in part by the affidavit of Antoinette
Kavanaugh, Ph.D. In her affidavit, Dr. Kavanaugh provided a "brief review of literature
describing the course of brain development and psychosocial maturity during
adolescence/emerging adulthood," in which she "highlight[ed] findings as they pertain to
those 18 years of age or over." (Sentencing Memo, exhibit H, 1.)
{¶ 36} At the sentencing hearing, while discussing the contents of the sentencing
memo with the trial court, counsel for appellant asked the court to "extend Graham,
Miller, and Roper of the United States Supreme Court to [appellant]." (Apr. 22, 2015
Tr. 41.) After considering the arguments, the trial court refused to extend the holdings in
No. 15AP-524 11
those cases to appellant, finding that there was no legal authority to support such an
extension.
{¶ 37} We are unaware of, and appellant fails to point to, any pertinent legal
authority to support the extension of Roper, Graham, and Miller to persons who were not
juveniles at the time of the commission of the offense. Indeed, in Roper, Graham, and
Miller, the United States Supreme Court explicitly referred to the age of 18 as the divide
between juveniles and adults when considering developmental differences under the
Eighth Amendment. Roper at 578-79; Graham at 82; Miller at 2460. The United States
Supreme Court explained its use of the age of 18 to establish the divide as follows:
Drawing the line at 18 years of age is subject, of course, to the
objections always raised against categorical rules. The
qualities that distinguish juveniles from adults do not
disappear when an individual turns 18. By the same token,
some under 18 have already attained a level of maturity some
adults will never reach. For the reasons we have discussed,
however, a line must be drawn. * * * The age of 18 is the point
where society draws the line for many purposes between
childhood and adulthood.
Roper at 574.
{¶ 38} Following Miller, the Sixth Circuit considered whether to extend Miller to
persons over the age of 18. United States v. Marshall, 736 F.3d 492 (6th Cir.2013). The
court found that "[c]onsiderations of efficiency and certainty require a bright line
separating adults from juveniles" and that "[f]or purposes of the Eighth Amendment, an
individual's eighteenth birthday marks that bright line." Id. at 500. In Ohio, the Seventh
District recently concluded that "Roper, Graham and Miller are inapplicable" to a
defendant who was not a juvenile at the time of the commission of the offense because the
protections at issue in those cases "apply only to juvenile offenders." State v. Rolland, 7th
Dist. No. 12 MA 68, 2013-Ohio-2950, ¶ 15.
{¶ 39} Here, appellant offers no persuasive justification for the extension of the
reasoning articulated in Roper, Graham, and Miller under the facts of this case. Further,
unlike in Marshall, in which the defendant presented testimony from experts who had
personally examined him, appellant provides no relevant expert testimony specific to his
developmental status.
{¶ 40} In conclusion, on the facts of this case, we cannot agree that the trial court
erred by refusing to consider appellant's age through extension of the holdings in Roper,
No. 15AP-524 12
Graham, and Miller in the determination of his sentence. Accordingly, we overrule
appellant's third assignment of error.
III. Disposition
{¶ 41} Having sustained appellant's first assignment of error and overruled
appellant's second and third assignments of error, we affirm in part and reverse in part
the judgment of the Franklin County Court of Common Pleas. We therefore remand this
case to that court for further proceedings, consistent with this decision and law, regarding
the merger of the aggravated robbery and kidnapping offenses.
Judgment affirmed in part,
reversed in part, and cause remanded.
TYACK and BROWN, JJ., concur.
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