Oral Argument Preview: Sentencing a Juvenile Non-Homicide Offender to a “De-Facto” Life Sentence. State of Ohio v. Brandon Moore.

Update: On December 22, 2016, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

Read the analysis of the oral argument here.

On February 4, 2015 the Supreme Court of Ohio will hear oral argument in the case of State of Ohio v. Brandon Moore, 2014-0120. The issue in this case is whether a juvenile offender can be sentenced to a “de facto” life sentence for non-homicide convictions.

Case Background

After several appeals and re-sentencings, Brandon Moore was sentenced to a 112-year prison term for convictions in 2002 on three counts of rape, three counts of complicity to rape, three counts of aggravated robbery, kidnapping, and firearm offenses, all arising from offenses he committed when he was fifteen years old.  A final error in the sentencing judgment entry was corrected by nunc pro tunc entry in April of 2010.

In May of 2010, the U.S. Supreme Court decided Graham v. Florida. The same day Graham was handed down, Moore filed a pro se notice of appeal from the April 2010 nunc pro tunc sentencing entry.  Counsel was appointed for him on this appeal, in which Moore challenged his sentence as being in violation of Graham. Finding this not to be a final appealable order, the court of appeals declined to address the Graham issue.  In September of 2013, Moore filed a delayed application for reconsideration of his last direct appeal, arguing that his sentence violated The Eighth Amendment.

In a split decision, the Seventh District Court of Appeals denied Moore’s motion for delayed reconsideration, finding that he failed to show an extraordinary circumstance in filing his delayed application because Graham applied only to a sentence of life without possibility of parole, and thus did not apply to his case. The dissenting judge would find that Moore did meet the standard of extraordinary circumstance, because he raised “an arguably valid extension of a constitutional argument” based on a U.S. Supreme Court decision not previously available to him.  She would find Graham applicable to Moore’s case, noting that without reconsideration, Moore has no other avenue to make this argument, which he had timely raised.

Key Precedent

Graham v. Florida 560 U.S. 48 (2010) (sentencing juvenile non-homicide offenders to life without parole is an Eighth Amendment violation).

Miller v. Alabama 567 U.S. ____ (2012) (A mandatory sentence of life without parole on a juvenile offender is cruel and unusual punishment and thereby violates the Eighth Amendment).

Moore v. Biter 725 F.3d 1184 (9th Cir. 2013) (Graham may be applied retroactively to de facto life sentences)

State v. Long 2014-Ohio-849 (2014) (a court must separately consider youth of a juvenile offender as a mitigating factor before imposing a sentence of life without parole)

State v. Hairston 2008-Ohio-2338 (Where none of the individual sentences imposed on an offender are grossly disproportionate to their respective offenses, an aggregate prison term resulting from consecutive imposition of those sentences does not constitute cruel and unusual punishment.)

Bunch v. Smith 685 F.3d 546 (6th Cir. 2012) (Graham only applies to a life without parole sentence and should not be extended to de facto life sentence cases) (Bunch was a co-defendant involved in the same offenses as Moore. Bunch was sentenced to an aggregate of 89 year term of incarceration.)

Eighth Amendment of the United States Constitution (Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted)

Moore’s Argument

The crux of Moore’s argument hinges on the general principles on which Graham was decided. The rule of law in Graham is unequivocal-it is an Eighth Amendment violation to sentence a juvenile non-homicide offender to life without parole. First, juveniles are categorically and objectively different from adults. Second, their ability to reform and change behavior has been scientifically proven as more likely than adults. Third, the law has been molded in accordance with the concept that juveniles do not possess the same moral culpability as adults do. Applying these principles, Moore submits that Graham does not just apply to explicit “life without parole sentences” for juvenile non homicide offenses. The holding also applies to consecutive sentences that result in a de facto life sentence.

Moore’s interpretation of Graham strictly prohibits a juvenile from remaining behind bars for life without a meaningful opportunity to be released. Since Moore is unable even to apply for judicial release until he is 107-years-old, this should be considered a violation of the cruel and unusual punishment clause. Furthermore, the trial court’s intent was to ensure that Moore “never be released from the penitentiary.” This is exactly the sort of sentencing scheme that Graham and its progeny have sought to prevent. Nothing beyond semantics separates a “life without parole” sentence and a 112-year sentence. Moore posits that the goal in both is to prevent the juvenile from ever entering society again.

Moore attacks most of his procedural hurdles in his reply brief. First, Graham should apply retroactively based on the substantive change in the law and the immense ramifications of imprisonment. Second, Moore’s delay in filing his motion for reconsideration should not preclude the court from reaching the merits of his case. His delay was caused by an additional hurdle when his nunc pro tunc judgment entry was not considered a final appealable order. Even if the court considers the motion untimely, than the extraordinary circumstances presented under Graham should permit the court to reach the merits of the case.

State’s Argument

The State first attacks Moore’s argument from a procedural standpoint. Moore’s delay in filing prohibits reconsideration absent an extraordinary circumstance. The State hammers on the extensive three-year delay as a primary basis for affirming the Seventh District’s decision and submits that the delay was not caused by anything that would rise to the level of extraordinary. Additionally, an application for reconsideration must be centered on an “obvious error” made by the court. The State asserts that the Seventh District based its decision on inapplicability of Graham and that a disagreement with a court’s reasoning or logic is not grounds for reconsideration.

According to the State, Graham’s holding deals with a sentence of life without parole and cannot be properly extended to cover multiple, consecutive fixed-term sentences like Moore received.

This bright-line rule was established with purpose and should not be deviated from.  If courts deviate from the life without parole standard, then they will be forced to decide arbitrarily when a juvenile offender’s sentence is considered a de facto life sentence. This premise does not comport with the explicit holding from Graham that only deals specifically with life without parole sentences.

The current case is further distinguishable from Graham, because Moore was convicted on numerous, heinous counts that when combined add up to a de facto life sentence. Graham relates to life sentences for a single non-homicide offense, not multiple non-homicide offenses. Using that distinction, the State goes on to assert that because Graham is distinguishable, it cannot be applied retroactively.

Finally the State asserts that because Graham deals with a single offense, the Hairston analysis applies. Based on the holding from Hairston, if an individual sentence viewed in isolation is grossly disproportionate to the committed offense, it is a violation of the Eighth Amendment. However if the individual sentences are proportionate to the committed offenses, then the overall term to be served is not in violation of the cruel and unusual punishment clause.  In this case, each of Moore’s separate sentences were proportionate with the crimes committed and do not trigger the Eighth Amendment.

Moore’s Proposed Proposition of Law

The Eighth Amendment prohibits sentencing a juvenile to a term-of-years sentence that precludes any possibility of release during a juvenile’s life expectancy.

State’s Proposed Counter Proposition of Law

The Eighth Amendment does not prohibit trial courts from sentencing juvenile offenders who commit non-homicide offenses to multiple, consecutive fixed-term sentences that may preclude the possibility of release during the juvenile offender’s life.

Amicus Briefs in Support of Moore

A joint amicus brief in support of Moore by former Attorneys General James Petro and Nancy Hardin Rogers, and retired Ohio Supreme Court Justice Evelyn Lundberg Stratton further elaborate on the fundamental differences between adults and juveniles. The outlined differences included a lack of biological maturity, susceptibility to peer pressure, and inability to asses risk and consequences. The brief also argues that a de facto life sentence for a non-violent juvenile goes against society’s duty, ability, and opportunity to rehabilitate minors.

The Juvenile Law Center’s brief in support of Moore focuses on Graham’s essence in affording juveniles a meaningful opportunity to obtain release. Many states have already extended Graham to de facto life sentences and the length of time imposed on Moore is indistinguishable from a life without parole sentence.

The National Association of Criminal Defense Lawyers’ brief in support of Moore highlights the fundamental differences between children and adults, primarily on the concept of culpability. Children are viewed as categorically less culpable than adults and therefore should be subjected to categorically less severe sentences and more opportunities to establish reform.

Amicus Brief in Support of the State

The Prosecuting Attorney Association’s brief in support of the State first focuses on the immense procedural hurdles Moore has to clear before even getting to the merits. Second, the Association focuses on the bright-line, limited holding of Graham and how it is inapplicable in the current case. Finally, the rule is unworkable: a juvenile could potentially commit every non-homicide crime possible and have each sentence compressed into a specific timeframe that permits release and courts cannot properly determine a life expectancy for juveniles on a case by case basis.

Amicus Brief in Support of Neither Party

A neutral brief written by five leading neuroscientists was also filed in the present case. However, the brief inherently provides more support for Moore as it discusses the “significant structural, functional, and chemical changes during adolescence.”

Student Contributor: Austin LiPuma

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