Merit Decision. Failure to Raise Constitutional Challenges Below Proves Fatal. State v. Quarterman.

On September 23, 2014, the Supreme Court of Ohio handed down a merit decision in State v. Quarterman,2014-Ohio-4034. The defendant in this case raised a constitutional challenge to Ohio’s mandatory bind-over statutes. In a unanimous opinion written by Justice Terrence O’Donnell, in which Justice Judy Lanzinger concurred in judgment only, the Court did not decide the constitutional question because of Quarterman’s failure to raise the issue below or demonstrate plain error. The court expressed no opinion on the constitutionality of the challenged statutes. This wasn’t quite a dismissal as improvidently allowed decision, as the state urged, but close. That might have been kinder. The case was argued July 8, 2014.

Case Background

Then-sixteen-year-old Alexander Quarterman robbed a group of friends playing cards at gunpoint. Because of his age and because of the gun, the case had to be transferred to adult court, where Quarterman pled guilty to aggravated robbery. He was sentenced to four years imprisonment.

Quarterman appealed his conviction, arguing that Ohio’s mandatory bind-over statute is unconstitutional because it prohibits the juvenile court from considering the mitigating factor of youth before transferring the case to adult court in violation of due process, equal protection, and the ban on cruel and unusual punishment.

The Ninth District Court of Appeals unanimously affirmed the conviction and sentence. A panel divided in reasoning found that Quarterman failed to preserve his constitutional claims for appeal.

Read the oral argument preview of the case here, and the analysis of that argument here.

The Challenged Statutes

R.C. 2152.10(A)(2)(b) (Transfer is mandatory for offenses by juveniles involving a firearm)

R.C. 2152.12(A)(1)(b) (Transfer is mandatory for certain offenses if the child is sixteen or seventeen at the time of the act charged.)

Merit Decision

Executive Summary

Quarterman forfeited the constitutional challenges because he didn’t raise the issues in the trial court, and he also didn’t address the application of the plain error rule to this case.

Quarterman’s Failure to Object to the Mandatory Bindover

When the juvenile court relinquished jurisdiction over this case and transferred it to the general division of the common pleas court, Quarterman did not object, nor did he object when there to being there. He pled guilty in a plea agreement which was accepted by the court, which imposed a jointly recommended sentence.

Quarterman’s Constitutional Arguments at the Ohio Supreme Court

Due Process

Quarterman argued that due process requires that a juvenile judge have the discretion to decide whether a bindover is appropriate, regardless of the age of the child or the nature of the offense. Mandatory transfer deprives a child of any meaningful individualized consideration by the juvenile judge. Youth is supposed to be a mitigating factor, but mandatory transfer eliminates this.

Equal Protection

Quarterman argued that mandatory bindover violates equal protection, because it treats some children differently from others without any empirical evidence to justify the age-based distinction.

Cruel and Unusual Punishment

Quarterman argued that there is a national consensus that has evolved requiring an individualized determination by a juvenile judge before a child can be transferred to adult court, and Ohio’s mandatory transfer statute is contrary to this “evolving standard of decency.”

State’s Argument

First and foremost, the state argued all these claims have been either waived or forfeited, so the appeal should be dismissed as improvidently allowed. Addressing the merits, the state argued that there is no U.S. Supreme Court case addressing the constitutionality of mandatory bindover statutes, there is a rational basis for treating older juveniles who use guns differently from younger children, and finally, that bindover is not punishment, so reliance on the Eighth Amendment is misplaced.

Consequences of Failure to Preserve Constitutional Challenges for Appellate Review

The balance of the opinion is a primer on the right and wrong way to bring constitutional challenges.

Quarterman argued that the Supreme Court has the discretion to consider a constitutional challenge raised for the first time on appeal, and that the general division of common pleas court lacked subject matter jurisdiction over his case, which is never waivable. The Supreme Court’s response to this was harsh.

Principle Number 1: Raise It or Lose It

“It is a well-established rule that “ ‘an appellate court will not consider any error which counsel for a party complaining of the trial court’s judgment could have called but did not call to the trial court’s attention at a time when such error could have been avoided or corrected by the trial court.’ ” State v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986), wrote O’Donnell. “The question of the constitutionality of a statute must generally be raised at the first opportunity and, in a criminal prosecution, this means in the trial court,” O’Donnell wrote, adding that justice is better served when these issues are first argued in the lower courts.

Conclusion Number 1

Since Quarterman failed to object to the mandatory bindover proceeding either in juvenile or adult court, he has forfeited this constitutional challenge.

Principle Number 2: Plain Error Review

The Supreme Court has the discretion to consider a forfeited constitutional challenge. It can review a decision for plain error. To do that, the court requires “a showing that but for a plain or obvious error, the outcome of the proceeding would have been otherwise, and reversal must be necessary to correct a manifest miscarriage of justice.” State v. Davis, 2008-Ohio-2. The burden of asserting plain error is on the party asserting it. The court will also review a forfeited constitutional challenge “where the rights and interests involved may warrant it.” In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus.

Conclusion Number 2

Quarterman fell short in every respect on plain error review

  • He did not present a proposition of law responsive to the finding by the appeals court that he failed to preserve the constitutional challenges for appellate review.
  • Quarterman never even asserted that that the application of the mandatory transfer statute to his case amounted to plain error.
  • He never raised the jurisdictional argument until his reply brief. O’Donnell noted that appellate courts generally will not consider a new issue presented for the first time in a reply brief, criticizing Quarterman for not even dealing with the plain error argument in the reply brief.

Case Conclusion

Quarterman didn’t do the right thing from the beginning, and didn’t try to fix it right on appeal. Court of appeals is affirmed.

Case Syllabus

None

Concluding Observations

This one is a shame because the constitutional arguments are really interesting, especially in light of the recent rulings from the U.S. Supreme Court about how and why juveniles are different. And it was well argued. BUT, as I noted after argument:

“First of all, waiver is just huge here. I think the subject matter jurisdiction tacked on at the end by the defense in its reply brief to help salvage this issue was just as the prosecutor described it—a figleaf. Still, the court did take this case in, knowing full well about the waiver issues. The court does have the discretion to hear previously waived constitutional challenges—a discretion that is exercised most sparingly. If the court does agree to address the merits here, it would undoubtedly issue strong and emphatic disclaimers about how this should not be viewed as standard procedure.”

Given the fact that Quarterman never did raise any of these issues below, I’m surprised the court agreed to hear this case in the first place.

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