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Date: 01-13-2018

Case Style:

State of Ohio v. Devonte Brown

Toledo teen charged with murder of ex-girlfriend and her brother takes plea deal

Case Number: CR0201502648

Judge: Arlene Singer

Court: IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

Plaintiff's Attorney: Julia R. Bates
Lucas County Prosecuting Attorney

Claudia A. Ford
and Andrew J. Lastra
Assistant Prosecuting Attorneys

Defendant's Attorney: Christopher S. Clark

Description: On August 10, 2015, appellant invaded the victim’s home, stabbed her 17
times, killed her son, raped, kidnapped and killed her daughter, and stole her vehicle.
When later confronted by police in the stolen vehicle, he fled and crashed.
{¶ 4} Appellant was the age of 16 at the time he committed these acts, and he was
the estranged boyfriend of the daughter. There was a no-contact order in place to keep
him from the victims’ home. Appellant had specifically been arrested and put on
postrelease control for assaulting the daughter in March 2015.
{¶ 5} On August 11, 2015, a delinquency complaint was filed in the juvenile court
and appellant was charged with murder in violation of R.C. 2903.02(B), a felony of the
first degree if charged as an adult. This was juvenile case No. JC15249424.01.
3.

{¶ 6} On August 27, 2015, the state moved the juvenile court to transfer the case
to the general division under R.C. 2152.10(A) and 2152.12(A), because appellant was
charged with a category one offense and was the age of 16 at the time of commission.
{¶ 7} The juvenile court held a hearing on September 17, 2015. At the hearing
appellant stipulated to being born on January 28, 1999, and being the age of 16 at the
time of the conduct for which he was charged. Based on these stipulations and additional
evidence, the court found probable cause existed and the case was bound over.
{¶ 8} On October 2, 2015, an indictment was filed in the general division,
charging appellant with nine counts: (count No. 1) aggravated murder in violation of R.C.
2903.01(B) and (F); (count No. 2) murder in violation of R.C. 2903.02(A) and 2929.02;
(count No. 3) aggravated murder in violation of R.C. 2903.01(B) and (F); (count No. 4)
murder in violation of R.C. 2903.02(A) and 2929.02; (count No. 5) attempted murder in
violation of R.C. 2923.02(A), 2903.02(A) and 2929.02, a felony of the first degree;
(count No. 6) aggravated robbery in violation of R.C. 2911.01(A)(3), a felony of the first
degree; (count No. 7) rape in violation of R.C. 2907.02(A)(2) (B), a felony of the first
degree; (count No. 8) kidnapping in violation of R.C. 2905.01(B)(1) and (C), a felony of
the first degree; and (count No. 9) failure to comply with order or signal of police in
violation of R.C. 2921.331(B) and (C)(5), a felony of the third degree. The charges were
brought under case No. 2015-CR-2648.
{¶ 9} Appellant originally pled not guilty by reason of insanity but, on June 3,
2016, withdrew that plea and pled guilty pursuant to Alford, to count Nos. 1, 3, 5, 7, 8
and 9. The other counts were dismissed.
4.

{¶ 10} The court engaged in the required colloquy with appellant and found he
was intelligently, knowingly, and voluntarily pleading guilty. The court accepted the
plea and found appellant guilty on count Nos. 1, 3, 5, 7, 8 and 9.
{¶ 11} Sentencing was scheduled for June 23, 2016, and a presentence
investigation report (PSI) was ordered. Appellant’s counsel also requested the court
allow a statement and psychological evaluation from a mental health professional, Dr.
Thomas Sherman, to assist in the sentencing process. The court stated it would review
the reports before sentencing.
{¶ 12} On June 23, 2016, a hearing was held but the court continued the matter
until July 18, 2016, because Sherman’s evaluation report was not made available. The
ordered PSI, however, was provided to the court for review.
{¶ 13} On July 18, 2016, another hearing was held, and based on new precedent of
this court in State v. Ragusa, 6th Dist. Lucas No. L-15-1244, 2016-Ohio-3373, the trial
court again engaged in Crim.R. 11 colloquy with appellant. The court clarified why it
was reengaging appellant, and eventually appellant’s counsel stated that appellant
intended to go forward with the plea.
{¶ 14} The court once more found appellant was intelligently, knowingly, and
voluntarily pleading guilty pursuant to Alford, to count Nos. 1, 3, 5, 7, 8 and 9.
Sentencing was set for July 21, 2016.
{¶ 15} At sentencing, appellant’s counsel made a statement in an effort to
mitigate. The state also made a statement. After the state, the living victim and other
family members made statements regarding the impact the crimes had on their lives.
5.

They also requested appellant be sentenced to the maximum sanctions. The trial court
allowed appellant and his counsel to share remarks prior to sentencing.
{¶ 16} The court then said its final remarks and considerations in imposing
sentence. The court discussed the facts of the case, appellant’s (seven) past delinquency
adjudications, and how appellant ignored the order to not have contact with the victims or
their household.
{¶ 17} The court then imposed sentence, which was journalized on July 22, 2016,
and which was issued as follows:
As to Count 1 (Aggravated Murder): It is ORDERED that
[appellant] serve a term of Life Imprisonment without the possibility of
Parole.
As to Count 3 (Aggravated Murder): It is ORDERED that
[appellant] serve a term of Life Imprisonment without the possibility of
Parole.
As to Count 5 (Attempt To Commit Murder): It is ORDERED that
[appellant] serve a prison term of 10 years.
As to Count 7 (Rape): It is ORDERED that [appellant] serve a
mandatory prison term of 10 years.
As to Count 8 (Kidnapping): It is ORDERED that [appellant] serve
a prison term of 10 years.
6.

As to Count 9 (Failure To Comply With An Order Or Signal Of A
Police Officer): It is ORDERED that [appellant] serve a prison term of 24
months.
Counts 1, 3, 5, 7, and 9 are ordered to be served consecutively to one
another, but, concurrently to count 8, for a total prison (sic) stated prison
term of Life Imprisonment without the possibility of parole, as to count 1
and 3, plus 20 years and 24 months.
{¶ 18} Appellant filed a timely notice of appeal on August 16, 2016, and now
appeals the sentence imposed.
Assignment of Error No. 1

{¶ 19} Appellant first asserts the general division did not have jurisdiction because
the juvenile court did not conduct an amenability hearing prior to binding over his case.
Appellee contends the general division properly proceeded after the juvenile court
relinquished jurisdiction.
{¶ 20} “[A]bsent a proper bindover procedure pursuant to [R.C. 2152.12], the
juvenile court has the exclusive subject matter jurisdiction over any case concerning a
child who is alleged to be a delinquent.” State v. Wilson, 73 Ohio St.3d 40, 44, 652
N.E.2d 196 (1995). “The exclusive subject matter jurisdiction of the juvenile court
cannot be waived.” Id.
{¶ 21} R.C. 2152.12(A)(1)(a)(i), in relevant part, provides that after a complaint
has been filed alleging a child is a delinquent child for committing an act that would be
murder if committed by an adult, the juvenile court at a hearing shall transfer the case if
7.

the child was sixteen years of age at the time of the act charged and there is probable
cause to believe that the child committed the act charged. (Emphasis added.). See also
In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 22.
{¶ 22} Further, R.C. 2152.12(I) provides:
Upon the transfer of a case under division (A) or (B) of this section,
the juvenile court shall state the reasons for the transfer on the record, and
shall order the child to enter into a recognizance with good and sufficient
surety for the child’s appearance before the appropriate court for any
disposition that the court is authorized to make for a similar act committed
by an adult. The transfer abates the jurisdiction of the juvenile court with
respect to the delinquent acts alleged in the complaint, and, upon the
transfer, all further proceedings pertaining to the act charged shall be
discontinued in the juvenile court, and the case then shall be within the
jurisdiction of the court to which it is transferred.
See, e.g., State v. Beauregard, 8th Dist. Cuyahoga No. 101418, 2015-Ohio-1021, ¶ 25.
{¶ 23} In Beauregard, for example, the Eighth District held that because three
aggravated robberies charged in the delinquency complaint were part of “the same course
of conduct,” the juvenile court had authority to transfer “the entire case pursuant to R.C.
2152.12(I),” upon mandatorily binding over any one of the counts alleged. Id. at ¶ 27.
Beauregard was the age of 16 at the time of committing the chain of robberies, which are
category two offenses, so he was bound over. He argued the juvenile court did not find

8.

probable cause existed for one of the robberies, and therefore, transfer of that specific
count was in error. Id. at ¶ 22. The Eighth District, however, held that “regardless of
whether there was sufficient probable cause regarding the robbery of [victim 3], the
general division had jurisdiction over that count pursuant to R.C. 2152.12(I).” Id. at ¶ 25.
{¶ 24} Likewise, in this case, one charge of murder was brought before the
juvenile court, and a hearing was held on September 17, 2015. The juvenile court found
probable cause existed, and that appellant was the age of 16 at the time of the murder.
The case was transferred and an indictment was filed in the general division. The matter
properly proceeded where the court had jurisdiction over all counts pursuant to R.C.
2152.12(I).
{¶ 25} We note this determination is distinguishable from our recent holding in
State v. Rickard, 6th Dist. Erie Nos. E-16-056, E-16-057, 2017-Ohio-8614.
{¶ 26} In Rickard, we reversed and held the general division did not have
jurisdiction to convict Rickard because no proper bindover occurred in the juvenile court.
Id. at ¶ 21. The original case was for acts alleged to have occurred in January 2016. Id.
at ¶ 3. This original case was properly initiated in and transferred by the juvenile court.
At Rickard’s sentencing, however, the state introduced another case to be consolidated
with that original case. This second case was due to acts from June and July 2016, and
thus were not part of “a course of conduct” with the acts alleged in the transferred case.
See also Beauregard at ¶ 26 (defining “the same course of conduct” as “offenses that
through their similarity, regularity and time between them are concluded to be part of a
single episode, spree, or ongoing series”). We held no proper bindover occurred and the
9.

matter was remanded. Our rationale focused on how a new case was initiated without it
being transferred by the juvenile court.
{¶ 27} Distinguishable from Rickard, appellant here committed the offenses
alleged in a single episode on August 10, 2015. Although he was only charged with
murder in the August 11, 2015 delinquency complaint, the additional eight charges
brought in the October 2, 2015 general division indictment were for acts that were part of
the August 10, 2015 episode and, thus, were part of a “course of conduct.” See
Beauregard, Supra. We find no reversible error in appellant’s conviction based on the
bindover procedure followed below.
{¶ 28} Accordingly, the first assigned error is found not well-taken.
Assignment of Error No. 2

{¶ 29} Appellant’s second assignment of error consists of four arguments. We
will address each, but the fourth will be addressed within the discussion of the second.
A. Cruel and Unusual Punishment
{¶ 30} Appellant argues the imposition of life without the possibility of parole is
cruel and unusual punishment. Appellee contends appellant’s case is one of those rare
and uncommon cases where the sanction is appropriately imposed.
{¶ 31} The Eighth Amendment to the U.S. Constitution states, “Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.” State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, ¶ 8 (“Long
II”).
10.

{¶ 32} “Central to the Constitution’s prohibition against cruel and unusual
punishment is the precept of justice that punishment for crime should be graduated and
proportioned to [the] offense.” See In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967
N.E.2d 729, ¶ 25, quoting Weems v. U.S., 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793
(1910).
{¶ 33} As applied to juveniles, the United States Supreme Court has held that the
Eighth Amendment prohibits the imposition of the death penalty and the imposition of
life without the possibility of parole for nonhomicide offenses. (Emphasis added.) Roper
v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); Graham v. Florida,
560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). More recently, the Eighth
Amendment was held to ban mandatory life-without-parole sentences on juveniles in
Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012).
{¶ 34} Nevertheless, the Supreme Court of Ohio has clarified Ohio’s sentencing
scheme does not run afoul Miller “because the sentence of life without parole is
discretionary” when applied to “a juvenile found guilty of aggravated murder.” Long II
at ¶ 19.
{¶ 35} Based on the authority of Long II, we find it was not error for the court to
exercise discretion in sentencing appellant to consecutive terms of life without parole for
aggravated murders. Such a case, which results in two aggravated murder convictions,
most likely will always be among those rare and uncommon cases where the sanction is
appropriately imposed. The trial court did not violate the prohibition against cruel and
unusual punishment in that regard, and the first argument is not well-taken.
11.

B. Irreparable Corruption
{¶ 36} Appellant asserts the trial court erred in failing to declare his acts reflected
irreparable corruption, which he argues is a finding required by Roper, Graham, and
Miller, as elaborated on in Montgomery v. Louisiana, ___U.S.___, 136 S.Ct. 718, 726
737, 193 L.Ed.2d 599 (2016). Appellee contends the court was not required to make a
finding of fact regarding appellant’s incorrigibility, and that appellant did not and cannot
argue the murders committed reflected transient immaturity.
{¶ 37} As stated in Montgomery, “Miller required that sentencing courts consider
a child’s diminished culpability and heightened capacity for change before condemning
him or her to die in prison.” (Citation omitted). Id. at 726. “Although Miller did not
foreclose a sentencer’s ability to impose life without parole on a juvenile, the Court
explained that a lifetime in prison is a disproportionate sentence for all but the rarest of
children, those whose crimes reflect ‘irreparable corruption.’” Id., quoting Miller, 567
U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407.
{¶ 38} “The age of the offender and the nature of the crime each bear on the
analysis.” Graham v. Florida, 560 U.S. 48, 69, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).
“The question is whether [the offender] can be deemed, at the time of sentencing, to be
irreparably corrupt, beyond redemption, and thus unfit ever to reenter society,
notwithstanding the diminished culpability and greater prospects for reform that
ordinarily distinguish juveniles from adults.” People v. Palafox, 231 Cal.App.4th 68, 91,
179 Cal.Rptr.3d 789 (2014) (affirming consecutive terms of life imprisonment under

12.

discretionary sentencing for murders committed by a 16-year-old). See also Montgomery
at 734 (“Miller did bar life without parole, however, for all but * * * those whose crimes
reflect permanent incorrigibility.).
{¶ 39} Initially, we find the trial court discussed how and why youth generally
weighs against imposing life without parole. At sentencing, the court stated:
First, children have a lack of maturity and an underdeveloped sense
of responsibility leading to reckless, impulsive, and heedless risk-taking.
Second, children are more vulnerable to negative influences and outside
pressures including family and peers. They have limited control over their
environment and a lack of ability to extricate themselves from horrific,
crime-producing settings. Third, a child’s character is not as well-formed
as an adult’s. His traits are less fixed and his actions are less likely to be
evidence of an irretrievable depravity. The offender’s youth at the time of
the offense must still be weighed against any statutory consideration that
might make an offense more serious or an offender more likely to
recidivate.* * *
(Emphasis added.)
{¶ 40} Next, we find the court discussed how “the nature of the offense[] to which
this harsh penalty” applies in this case was unprecedentedly violent. Graham at 69. At
sentencing, the court stated:
These were crimes of rage and control. They were not the first or
second, but they were the third in a series of offenses committed by the
13.

[appellant] against [the daughter]. These were not crimes of passion, but
they were premeditated. They were depraved. They were monstrous.
These were crimes of a nature not previously seen in this community.
(Emphasis added.)
{¶ 41} We will also address appellant’s fourth argument, in which he asserts the
court failed to “specifically and separately” consider his youth as a mitigating factor.
i. Considering Offender’s Youth
{¶ 42} We agree appellant’s age factors against imposing a life sentence without
the possibility of parole because youth is, as a matter of law, a mitigating factor. See
Montgomery at 726, ___U.S.___, 136 S.Ct. 718, 736-737, 193 L.Ed.2d 599.
{¶ 43} “Although 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
its attendant characteristics before imposing a sentence of life without parole.” Long II,
138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, at ¶ 27.
{¶ 44} Here, the court was made aware of the mitigating effect of appellant’s
youth by trial counsel and the state, and the court explicitly confirmed it understood
appellant’s youth was a mitigating factor.
{¶ 45} At sentencing, appellant’s counsel made a statement about appellant and
his youth in an effort to mitigate. Specifically, counsel discussed how juveniles are
different than adults, and how appellant’s rage and resulting crimes were reflection of his
immaturity.
14.

{¶ 46} The state also mentioned the court must consider appellant’s youth as a
mitigating factor. The state specifically said the court “must take into account how
[appellant was] different because he is a juvenile” who, as a result of being young, was
“reckless and immature,” was “vulnerable to negative outside influences,” and had
“character [that was] not well-formed.” The state followed contending the crimes had
nothing to do with immaturity, that jealousy and rage are what drove appellant, that no
outside influences led to the crimes, and that there was nothing extraordinary in
appellant’s history to suggest the court should be lenient in sentencing.
{¶ 47} Lastly, the transcript reflects the court explicitly stated its obligations under
Long II. The court recognized Long II was “the law relevant to sentencing a juvenile
who faces the potential sentence of life without the possibility of parole.” The court
discussed how Long II requires “the youth of a juvenile offender” be separately
considered “as a mitigating factor before imposing a life sentence without parole[.]”
Also noted was how “the record must reflect that the trial court specifically considered
the juvenile offender’s youth as a mitigating factor[.]”
{¶ 48} Accordingly, based on the statements made in open court, we find
appellant’s youth as a mitigating factor was extensively argued, considered, balanced and
weighed. Any argument to the contrary is meritless.
ii. Considering the Nature of the Offenses
{¶ 49} Further, we agree with the trial court that the nature of the offenses
committed is unprecedentedly violent and heinous.
15.

{¶ 50} We primarily note “[juvenile offenders] who do not kill, intend to kill, or
foresee that life will be taken are categorically less deserving of the most serious forms of
punishment than are murderers.” See Graham at 69, 560 U.S. 48, 130 S.Ct. 2011, 176
L.Ed.2d 825, citing to Kennedy v. Louisiana, 554 U.S. 407, 128 S.Ct. 2641, 171 L.Ed.2d
525 (2008); Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982);
Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987); and Coker v.
Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977).
{¶ 51} However, appellant here was indeed a “murderer.” Id. In fact, he was
found guilty of two counts of aggravated murder. We find this case is certainly rare and
uncommon due to the evil disregard for life appellant exhibited when he intentionally
ended two lives and attempted to end another. This is not a case in which transient
immaturity or an outside influence was a contributing factor; and to the contrary, the
record reveals appellant was the sole perpetrator to plan and commit such heinous and
inexcusable acts.
iii. Additional Considerations
{¶ 52} Based on its factoring of appellant’s youth and the nature of the crimes, we
cannot say the trial court failed to adequately consider or address how appellant’s acts
reflected irreparable corruption. Even going beyond those factors, we find the record
supports a finding of irreparable corruption. The court thoroughly explained its thoughts
and reasons for imposing consecutive terms of life without parole, there implying the
crimes at issue reflected irreparable corruption. See Montgomery at 734, ___U.S.___,
136 S.Ct. 718, 736-737, 193 L.Ed.2d 599 (clarifying Miller does not require courts make
16.

or state findings of fact regarding a child’s incorrigibility). Based on the explanation as
to why it was imposing the specific sanctions, we can say with certainty that the court
reflected on the magnitude and impact the crimes had on the people present and on the
community as a whole.
{¶ 53} More specifically, the record reveals before sentencing appellant the court
considered the disturbing facts as a guide and stated that it balanced the likelihood of
recidivism factors. The court also dismissed the argument that the crimes committed
were one-time acts of passion, which was a position put forth by appellant and his expert
witness, Dr. Sherman. The court discussed the impact on the victims and their property,
appellant’s criminal record, the seriousness of the conduct, and the danger appellant
posed to the public. Based on its statements, the court imposed sentence in accordance
with the criteria under R.C. 2929.11 and 2929.12. Accordingly, we find no error in the
judgment and conclusion that the crimes reflected irreparable corruption. Although the
court did not repeatedly say “irreparable corruption,” the necessary factors were
considered. Any argument to the contrary is meritless.
C. Impossibility of Finding Youth Irreparable
{¶ 54} Lastly addressed, appellant asserts it is impossible to find a juvenile’s acts
reflect irreparable corruption because no juvenile mind is fully developed. Appellee does
not directly address this argument, but does assert appellant did not put forth this position
at trial and, hence, must and cannot meet the plain-error standard.
17.

{¶ 55} For persuasive support appellant cites an opinion from the Supreme Court
of Iowa, wherein the court addressed the impossibility of declaring a child’s acts reflect
irreparable corruption. See State v. Sweet, 879 N.W.2d 811 (Iowa 2016).
{¶ 56} In Sweet, a 17-year-old killed his maternal grandparents and was charged
with two counts of first-degree murder. At trial Sweet reached a plea deal, and the court
accepted the plea and requested a presentence investigation (PSI) report before
sentencing. The PSI report revealed Sweet suffered from a turbulent family dynamic and
life, depression or bipolar disorder, being raped at the age of four, alcohol and drug
abuse, attention deficit disorder, and physical and mental abuse by the victim
grandfather.
{¶ 57} At sentencing Sweet offered testimony of Dr. Stephen Hart, a qualified
expert in the field of clinical psychology. Hart reviewed medical records and interviewed
Sweet prior to testifying. Hart summarized his scientific understanding of the adolescent
brain, and introduced to the record the school of thought that “until the age of about
twenty-five there is a period of rapid change or development in the adolescent brain.” Id.
at 815. Hart stated “the earliest a determination could be made regarding Sweet’s
potential for rehabilitation was age thirty.” Id. at 816. This was due to Sweet’s youth.
{¶ 58} Despite Hart’s testimony, the Sweet lower court sentenced Sweet to life in
prison without the possibility of parole.
{¶ 59} On direct appeal, the Supreme Court of Iowa (“the Sweet court”)
summarized the lower court judgment as follows:
18.

The district court noted that Sweet was seventeen years and three
months old at the time of the murder[s]. While his maturity was debatable,
the district court stressed that the crimes were premeditated. The district
court felt that Dr. Hart’s characterization of Sweet’s possibility of
rehabilitation as mixed was overly optimistic. Further, the district court
found Sweet’s case was the rare case in which a sentence of life without the
possibility of parole was warranted, as the murders were horrific and
showed utter lack of humanity. The district court concluded that Sweet was
currently, and will continue to be, a threat to society and that the interests of
justice and community safety outweighed mitigating factors.
Sweet at 816.
{¶ 60} The main issue on appeal was “whether the small number of juvenile
offenders convicted of murder may be sentenced at time of trial to life in prison without
the possibility of parole or whether such a determination must be made at a later date by a
parole board.” Id. at 836. In addressing the issue, the court concluded that “sentencing
courts should not be required to make speculative up-front decisions on juvenile
offenders’ prospects for rehabilitation because they lack adequate predictive information
supporting such a decision.” Id. at 839. The court further found “[t]he parole board [is]
better able to discern whether the offender is irreparably corrupt after time has passed,
after opportunities for maturation and rehabilitation have been provided, and after a
record of success or failure in the rehabilitative process is available.” Id. The matter was
remanded for Sweet to be resentenced to a prison term where he could later seek parole.
19.

{¶ 61} Consistent with Sweet, appellant here argues it was impossible for the trial
court to find the aggravated murders, rape and attempted murder he committed reflect
irreparable corruption because his mind was and is not yet developed.
{¶ 62} We find this position is not well-taken because it undermines the court’s
power to sentence and limits the court’s statutorily granted discretion.
i. Power to Sentence
{¶ 63} “The judicial power of the state is vested in a supreme court, courts of
appeals, courts of common pleas and divisions thereof[.]” See Ohio Constitution, Article
IV, Section 1. “The several judges* * * of the common pleas * * * shall* * * have and
exercise such power and jurisdiction, at chambers, or otherwise, as may be directed by
law.” (Emphasis added.) See Ohio Constitution, Article IV, Section 18.
{¶ 64} As “directed by law,” id., the power of the judiciary includes the power to
sentence a convicted offender. See R.C. 2152.12(I), supra, (“the case then shall be within
the jurisdiction of the court to which it is transferred”); R.C. 2929.03(A)(1)(a), infra,
(stating that for aggravated murder “the trial court shall impose one of the following
sentences on the offender”); Crim.R. 32(C) (providing that a judgment of conviction shall
set forth the sentence and judge’s signature); State v. Byers, 7th Dist. Columbiana No. 07
CO-39, 2008-Ohio-5051, ¶ 70 (exploring the “judiciary branch” and “its power to
sentence”).
{¶ 65} This power in the judiciary has existed for Ohio common pleas courts since
the inception of the state’s Constitution, which explicitly stated “the judges of the court
20.

of common pleas shall by virtue of their offices, be conservators of the peace in their
respective counties.” See Ohio Constitution of 1802, Article 3, Section 7.
{¶ 66} Therefore, because this power to sentence is granted to the common pleas
court, in this case we find to disallow the court from finding impliedly or otherwise that
an episode in which appellant committed two aggravated murders, a rape, and an
attempted murder reflects irreparable corruption undermines that power.
ii. Court Discretion
{¶ 67} Furthermore, often granted with this power to sentence is discretion to
impose specific sanctions typically within statutory guidelines and ranges.
{¶ 68} For example, R.C. 2929.03(A) provides possible sanctions for offenders
who commit aggravated murder.
(A) If the indictment or count in the indictment charging aggravated
murder does not contain one or more specifications of aggravating
circumstances listed in division (A) of section 2929.04 of the Revised
Code, then, following a verdict of guilty of the charge of aggravated
murder, the trial court shall impose sentence on the offender as follows:
(1) Except as provided in division (A)(2) of this section, the trial
court shall impose one of the following sentences on the offender:
(a) Life imprisonment without parole;
(b) Subject to division (A)(1)(e) of this section, life imprisonment
with parole eligibility after serving twenty years of imprisonment;
21.

(c) Subject to division (A)(1)(e) of this section, life imprisonment
with parole eligibility after serving twenty-five full years of imprisonment;
(d) Subject to division (A)(1)(e) of this section, life imprisonment
with parole eligibility after serving thirty full years of imprisonment;* * *
(Emphasis added.) See R.C. 2929.03(A)(1)(a)-(d).
{¶ 69} Pursuant to R.C. 2929.03(A)(1)(a), appellant here was sentenced to
consecutive terms of “Life imprisonment without parole.” Imposition of these sanctions
required an exercise of discretion to determine whether appellant’s crimes reflected
irreparable corruption as mandated in Miller, supra. Forbidding such a finding due to
appellant’s youth, as held in Sweet, limits the court’s sentencing discretion.
{¶ 70} We note review of Ohio case law supports exercising discretion and
sentencing juveniles to life without parole despite their undeveloped minds. See, e.g.,
State v. Long, 1st Dist. Hamilton No. C-140398, 2015-Ohio-2114, ¶ 16-18 (“Long III”);
State v. Lane, 11th Dist. Geauga No. 2013-G-3144, 2014-Ohio-2010, ¶ 82-109; State v.
Rafferty, 9th Dist. Summit No. 26724, 2015-Ohio-1629, ¶ 120-125; State v. Roark, 3d
Dist. Mercer No. 10-14-11, 2015-Ohio-3811, ¶ 22- 23.
iii. Plain Error
{¶ 71} As a final note, we find convincing appellee’s assertion that appellant did
not put forth this argument at trial and, therefore, must meet the plain-error standard.
{¶ 72} “The failure to raise a constitutional issue at the trial level waives the right
to advance a constitutional argument at the appellate level.” City of Toledo v. Jenkins,
6th Dist. Lucas No. L-14-1164, 2015-Ohio-1270, ¶ 15, citing State v. Traxler, 6th Dist.
22.

Williams No. WM-06-005, 2007-Ohio-2025. Absent plain error, “appellant waived his
constitutional arguments.” Traxler at ¶ 18, citing Crim.R. 52(B) (“[P]lain error that
affects a substantial right may, even in the absence of an objection, be considered [on
appeal].”).
{¶ 73} Plain-error applies where: (1) the trial court erred or deviated from a legal
rule; and, (2) that error or deviation prejudiced appellant, or affected his or her substantial
rights. See, e.g., State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶
7.
{¶ 74} We first find no error or deviation from law in this case, as we decline to
subscribe to the rationale put forth in Sweet which supports that it is impossible for a trial
court to find a juvenile’s offenses reflect irreparable corruption. See Sweet, 879 N.W.2d
at 839.
{¶ 75} We second find there is no evidence in the record supporting appellant’s
rehabilitative process has been a success. Thus we cannot say he has been prejudiced by
the imposition of life without parole.
{¶ 76} Consequently this is not the exceptional case where the plain-error doctrine
applies. See State v. Long, 53 Ohio St.2d 91, 95, 372 N.E.2d 804 (1978) (“The plain
error rule is to be invoked only in exceptional circumstances to avoid a miscarriage of
justice.”). We therefore find multiple grounds to dispose of this third argument, and
appellant’s second assignment of error fails in its entirety.

Outcome: } For the foregoing reasons, the judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay costs pursuant to App.R. 24.

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