State v. Carlock , 2021 Ohio 4550 ( 2021 )

[Cite as State v. Carlock, 2021-Ohio-4550.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
JEFFERSON COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
KA’SAUN CARLOCK,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 19 JE 0017
Criminal Appeal from the
Court of Common Pleas of Jefferson County, Ohio
Case No. 18 CR 202
BEFORE:
Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed
Atty. Jane M. Hanlin, Prosecutor and Atty. Samuel A. Pate, Assistant Prosecutor, 16001
State Route 7, Steubenville, Ohio 43952, for Plaintiff-Appellee and
Atty. Timothy Hackett, Assistant State Public Defender, 250 East Broad Street, Suite
1400, Columbus, Ohio 43215, for Defendant-Appellant.
–2–
Dated:
December 23, 2021
Donofrio, J.
{¶1} Defendant-appellant, Ka’Saun Carlock, appeals from a Jefferson County
Common Pleas Court judgment sentencing him to a mandatory sentence of life in prison
with the possibility of parole after 15 years and a three-year firearm specification
sentence. The sentence followed appellant’s guilty plea to murder, aggravated robbery,
and tampering with evidence committed when he was 15 years old.
{¶2} On August 18, 2018, appellant was involved in an armed robbery of Dylan
Monroe, which resulted in Monroe’s death. Appellant was charged in juvenile court with
committing acts that would constitute murder, aggravated robbery, and tampering with
evidence if he was an adult at the time of commission.
{¶3} The juvenile court held an amenability hearing on December 12, 2018. It
determined that the matter would be transferred to the general division of the common
pleas court for further proceedings.
{¶4} On December 17, 2018, a Jefferson County Grand Jury indicted appellant
on one count of murder in violation of R.C. 2903.02(B) with an accompanying firearm
specification; one count of aggravated robbery in violation of R.C. 2911.01(A)(1) with an
accompanying firearm specification; and one count of tampering with evidence in violation
of R.C. 2921.12(A)(1). Appellant initially pleaded not guilty.
{¶5} Appellant and plaintiff-appellee, the State of Ohio, subsequently reached
a plea agreement. Per the terms of the agreement, appellant entered a guilty plea to the
indictment. Appellant and the state entered into an agreed recommendation of sentence,
which the trial court imposed.
{¶6} Pursuant to the agreed recommendation of sentence, the trial court
sentenced appellant to life in prison with parole eligibility after 15 years on the murder
count, three mandatory years on the firearm specification, ten years on the aggravated
robbery count, and 24 months on the tampering with evidence count. The court ordered
the sentences to run concurrently with each other except for the sentence on the firearm
specification, which it ordered appellant to serve consecutive to other sentences for a
total sentence of life in prison with parole eligibility after 18 years.
Case No. 19 JE 0017
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{¶7} Appellant filed a timely notice of appeal on September 23, 2019. Due to
numerous requests for extensions of time by both parties, the matter was not fully briefed
until June 9, 2021. Appellant now raises a single assignment of error.
{¶8} Appellant’s sole assignment of error states:
PER STATE V. PATRICK, R.C. 2929.02(B) AND KA’SAUN
CARLOCK’S RESULTING LIFE-TAIL SENTENCE ARE
UNCONSTITUTIONAL BECAUSE THE IMPOSITION OF ANY LIFE
IMPRISONMENT SENTENCE UPON A JUVENILE OFFENDER WITHOUT
JUDICIAL CONSIDERATION OF YOUTH VIOLATES THE FIFTH,
EIGHTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION; AND ARTICLE I, SECTIONS 9, 10 AND 16 OF THE
OHIO CONSTITUTION.
{¶9} Appellant argues that his life sentence is unconstitutional pursuant to the
Ohio Supreme Court’s decision in State v. Patrick, 164 Ohio St.3d 309, 2020-Ohio-6803,
172 N.E.3d 952. He contends that the trial court was required to, and failed to, articulate
its consideration of his youth as a mitigating factor before imposing a life sentence even
though the sentence contains a possibility of parole.
{¶10} Appellant goes on to assert that because R.C. 2929.02(B) does not allow
for any individualized consideration of youth, its mandatory life-tail sentence is
unconstitutional as applied to juveniles. He contends the Eighth Amendment now bars
mandatory life-with-the-possibility-of-parole sentences for juvenile offenders because
such sentences prevent the sentencing judge from accounting for youth and defining
characteristics.
{¶11} Initially, we must note that appellant failed to object to his sentence upon
constitutional grounds before the trial court. In fact, he agreed to the sentence as part of
his plea deal with the state. (Tr. 5-6). Generally, the question of whether a statute is
unconstitutional must be raised at the first opportunity which, in a criminal prosecution,
means in the trial court. State v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986).
On this basis, we can conclude that appellant has waived his argument on appeal.
Case No. 19 JE 0017
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{¶12} The waiver doctrine stated in Awan is discretionary, however, and an
appellate court may review claims of defects affecting substantial rights for plain error,
despite the appellant's failure to bring the claim to the trial court’s attention. State v. Fuell,
12th Dist. Clermont No. CA2020-02-008, 2021-Ohio-1627, ¶ 70, citing In re M.D., 38 Ohio
St.3d 149, 151, 527 N.E.2d 286 (1988). Pursuant to Crim.R. 52(B), “[p]lain errors or
defects affecting substantial rights may be noticed although they were not brought to the
attention of the court.” Under this doctrine, we will examine appellant’s claim for plain
error.
{¶13} The Eighth Amendment to the United States Constitution states:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” The Ohio Constitution includes identical language.
{¶14} In support of his position, appellant first cites to Miller v. Alabama, 567
U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). In Miller, the United State Supreme
Court held 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 465. In so holding, the Court observed that children are
constitutionally different from adults for purposes of sentencing and since children have
diminished culpability and greater prospects for reform, “they are less deserving of the
most severe punishments.” Id. at 471, quoting Graham v. Florida, 560 U.S. 48, 68, 130
S.Ct. 2011, 176 L.Ed.2d 825 (2010).
{¶15} Appellant next cites to State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849,
8 N.E.3d 890. In Long, the Ohio Supreme Court, following Miller, held that “[a] court, in
exercising its discretion under R.C. 2929.03(A), 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. The Court further held that the record must reflect
that the sentencing court specifically considered the juvenile offender's youth as a
mitigating factor when imposing a prison term of life without parole. Id. at paragraph two
of the syllabus.
{¶16} Finally, appellant cites to Patrick, 2020-Ohio-6803, where the Ohio
Supreme Court expressly extended Long to juvenile life sentences with the possibility of
parole. The Court held that, consistent with Long, “a trial court must separately consider
Case No. 19 JE 0017
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the youth of a juvenile offender as a mitigating factor before imposing a life sentence
under R.C. 2929.03, even if that sentence includes eligibility for parole.” Id. at ¶ 2. The
Court reasoned in part: “The difference between a sentence of life in prison with parole
eligibility after a term of years and a sentence of life without the possibility of parole is not
material for purposes of an Eighth Amendment challenge by an offender who was a
juvenile when he or she committed the offense.” Id. at ¶ 33.
{¶17} The state argues that Patrick does not apply here. It contends that Patrick
was solely focused on whether Long, supra, applied to an aggravated murder sentence
when the sentence was something less than life without the possibility of parole. It asserts
that Patrick was focused on R.C. 2929.03(A)(1) and the trial court’s task of choosing
among various life sentences.
{¶18} In support of its position, the state cites to State v. Starling, 2d Dist. Clark
No. 2018-CA-34, 2019-Ohio-1478, appeal not allowed, 156 Ohio St.3d 1486, 2019-Ohio-
3331, 129 N.E.3d 453. In that case, the Second District held that because the juvenile,
who was sentenced to 15 years in prison with parole eligibility after 15 years, would be
considered for parole after having served 15 years in prison, the rationale in Miller, supra,and Long, supra, did not apply. Id. at ¶ 67. The court further rejected the argument that
mandatory sentences imposed on juveniles in adult court are invalid as a violation of the
Eighth Amendment. Id. at ¶ 68.
{¶19} Recently, in State v. Fuell, 12th Dist. Clermont No. CA2020-02-008, 2021-
Ohio-1627, appeal allowed, 164 Ohio St.3d 1419, 2021-Ohio-2923, 172 N.E.3d 1042, the
Twelfth District addressed an identical situation as in the case at bar. In that case, Fuell
was 17 years old at the time of his offense. His case was bound over from juvenile court
to the common pleas court. Fuell eventually pleaded guilty to murder and the trial court
sentenced him to life in prison with the possibility of parole after 15 years. On appeal,
Fuell argued that R.C. 2929.02(B)(1)’s mandatory sentence of life imprisonment with the
possibility of parole after 15 years constituted cruel and unusual punishment because a
mandatory sentence does not allow a court to consider a juvenile defendant's youth. Like
appellant in this case, Fuell did not raise this issue in the trial court. So the Twelfth District
applied a plain error review.
Case No. 19 JE 0017
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{¶20} The court first pointed out an important difference between Long, supra,
and Patrick, supra, and Fuell’s case. Long and Patrick analyzed R.C. 2929.03, because
the defendants in those cases were convicted of aggravated murder. Id. at ¶ 68. Fuell
was sentenced under a different statute, R.C. 2929.02, because he was convicted of
murder, not aggravated murder. Id.
{¶21} The court next found that it was not “plain,” under a plain error analysis,
that Patrick requires consideration of age when a trial court imposes R.C. 2929.02(B)(1)’s
mandatory sentence of life in prison with parole eligibility after 15 years on a juvenile
defendant convicted of murder. Id. at ¶ 72. The court noted that Patrick does contain
some language that suggests that may be the case. Id. For example, the court pointed
to Patrick’s statement that “ ‘the severity of a sentence of life in prison on a juvenile
offender, even if parole eligibility is part of the life sentence, is analogous to a sentence
of life in prison without the possibility of parole for the purposes of the Eighth Amendment.’
” Id. quoting Patrick at ¶ 36.
{¶22} But the court went on to find that there are strong reasons to doubt that
Patrick would extend to a murder sentence. First, it noted that Patrick solely considered
R.C. 2929.03, but Fuell was sentenced pursuant R.C. 2929.02. Id. at ¶ 73. The court
emphasized that Patrick did not involve the statute at issue, and, therefore Patrick was
not necessarily controlling. Id. Next, the court found that a close reading of Patrick
revealed that the Ohio Supreme Court was focused on the need to consider a juvenile
defendant's youth when the sentencing court was presented with sentencing options that
included the possibility of life imprisonment without the possibility of parole. Id. at ¶ 74. It
noted that Patrick emphasized that R.C. 2929.03 included a range of options that included
life without the possibility of parole. Id., citing Patrick at ¶¶ 32-36. The court again noted
that a sentence of life imprisonment without the possibility of parole was not an option
available to the court in this case, where Fuell pleaded guilty to murder and the trial court
was required to apply the mandatory sentence of life imprisonment with the possibility of
parole after 15 years as provided in R.C. 2929.02(B)(1). Id.
{¶23} Finally, the court pointed out that Patrick did not hold that the least of R.C.
2929.03’s four possible sentences – that is, life imprisonment with the possibility of parole
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after 20 years – was unconstitutional when applied to a juvenile. Id. at ¶ 75. The court
went on to state:
We are unaware of any decision by the Ohio Supreme Court or any other
court holding that a life sentence with the possibility of parole after 15 years
is unconstitutional when applied to a juvenile offender. The absence of any
such decision is unsurprising, as a sentence of life in prison with the
possibility of parole after 15 years provides a juvenile with a meaningful
possibility of release. A juvenile defendant who commits murder and is
sentenced at age 17 could be eligible for release from prison at age 32 –
hardly the type of lifetime scenario that so concerned the Ohio Supreme
Court in Patrick. Id. at ¶ 35, 39-41. If the Ohio Supreme Court in Patrick did
not hold that a 20-to-life sentence is unconstitutional there is certainly an
argument that a 15-to-life sentence cannot be unconstitutional.
Id. The court then concluded:
There are plausible arguments as to why the reasoning applied in Patrick
may or may not require a court to hold that R.C. 2929.02(B)(1)’s mandatory
sentence is unconstitutional as applied to juveniles, including Fuell. The
Ohio Supreme Court has not held that the mandatory sentence available
under R.C. 2929.02(B)(1) is unconstitutional as applied to juveniles. In this
situation we therefore do not find that the trial court committed “plain” error,
and we decline to exercise our discretion to apply plain error analysis here,
where Fuell failed to object to his sentence. [State v.] Barnes, 94 Ohio St.
3d [21] at 28, [2002-Ohio-68,] 759 N.E.2d 1240 (“[I]f a forfeited error is not
plain, a reviewing court need not examine whether the defect affects a
defendant's substantial rights; the lack of a ‘plain’ error within the meaning
of Crim.R. 52(B) ends the inquiry and prevents recognition of the defect.”).
Id. at ¶ 76.
{¶24} Appellant’s case here is identical to that in Fuell. Like Fuell, appellant
pleaded guilty to murder, not aggravated murder as in Patrick. Thus, this case involved
Case No. 19 JE 0017
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a different statute than the one the Court analyzed in Patrick. Importantly, life without the
possibility of parole was not even a sentencing option in this case. Moreover, as in Fuell,
appellant did not object to his sentence or raise an issue of its constitutionality in the trial
court. In fact, he agreed to the sentence. And the Twelfth District articulated numerous
well-justified reasons why this un-objected to argument did not rise to the level of plain
error.
{¶25} Appellant does raise one argument that Fuell did not raise. He contends
that the trial court here was required to, and failed to, articulate its consideration of his
youth as a mitigating factor before imposing a life sentence.
{¶26} But the trial court did consider appellant’s youth on the record at the
sentencing hearing. In examining the R.C. 2929.12(C) statutory factors indicating that
appellant’s conduct was less serious than that normally constituting the offense, the trial
court noted that appellant was 15 at the time of the offense. (Tr. 30). Then, when
considering the recidivism factors under R.C. 2929.12(D)(E), the court again pointed that
appellant was 15 years old at the time of the commission of the offense and 16 at the time
of sentencing. (Tr. 30). The court stated that given appellant’s “tender age,” it was
unknown what appellant would do in terms of recidivism. (Tr. 30). Thus, the court twice
considered appellant’s youth before sentencing him.
{¶27} Given the above reasoning, we follow the Twelfth District’s decision in
Fuell and conclude that the trial court did not commit plain error in sentencing appellant
in accordance with R.C. 2929.02 to life in prison with parole eligibility after 15 years.
{¶28} Accordingly, appellant’s sole assignment of error is without merit and is
overruled.
{¶29} For the reasons stated above, the trial court’s judgment is hereby affirmed.
Waite, J., concurs.
Robb, J., concurs.
Case No. 19 JE 0017
[Cite as State v. Carlock, 2021-Ohio-4550.]
For the reasons stated in the Opinion rendered herein, the sole assignment of error
is overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Jefferson County, Ohio, is affirmed. Costs to be waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.