What’s On Their Minds: Sentencing a Juvenile Non-Homicide Offender. 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.

“This was a sentence designed to keep the juvenile in custody for his natural life.  The question is, does Graham prohibit that under these circumstances?” Justice Judy Lanzinger.

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

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.  Moore will be eligible for judicial release at age 92.

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 motion 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.

Read the oral argument preview of the case here.

Key Precedent

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

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)

At Oral Argument

Moore’s Argument

Procedurally, it is important that the court address the merits of this case, to clarify that Graham v. Florida is applicable.  The motion for delayed reconsideration should have been granted because it is clear that Graham is to apply retroactively. Additionally, there is no other way for Moore to get his claim heard on the merits. Finally, Moore himself was very diligent, in that he filed a pro se notice of appeal the very day Graham was decided, raising the issue, but the appeal failed on other technical grounds and the appeals court never decided the Graham issue.

Substantively, Graham requires that all juvenile non-homicide offenders be given a meaningful opportunity for release, based on demonstrated maturity and rehabilitation.  This does not mean the juvenile is guaranteed release.  It could be that a particular juvenile never proves that he is fit to re-enter society.  But what a judge cannot do is decide at the outset that a juvenile non-homicide offender is never fit to re-enter society, by giving a sentence that is so long that it ensures the juvenile will die in prison. A sentence that denies a juvenile non-homicide offender the meaningful opportunity for release violates the Eighth Amendment.

Graham held that all juvenile non-homicide offenders have twice diminished moral culpability, because they are juveniles and because they didn’t commit homicides. That means a court cannot give the harshest sentence to a juvenile non-homicide offender, which is life without the possibility of release.  It would violate proportionality to do that.  While Graham addressed a single offense, its reasoning applies to multiple consecutive non-homicide sentences when they amount to life in prison. Graham makes no distinction between single and multiple offenses. The determinative distinction in Graham is between a homicide offense, and a non-homicide offense or offenses, no matter how heinous. A sentence for a non-homicide offense that exceeds a juvenile’s life expectancy denies the requisite meaningful opportunity for release.

This court has the responsibility to step in to ensure that legislatively enacted sentences comply with the Eighth Amendment. There is no bright line rule as to what is a meaningful opportunity for release. That is for the trial court to determine. Other high courts that have considered the issue have given some guidelines to their trial courts—you don’t have to be perfect actuaries, and geriatric release won’t do.

Moore must be resentenced in this case, and in that sentence he must be given a meaningful opportunity for release.

Prosecution’s Argument

This case offers so many procedural hurdles that it might best be dismissed on that basis.  But if the court gets past those, Graham simply does not apply to the facts of this case, because Graham involved a life sentence for one single non-homicide offense, and this case involves multiple convictions resulting in a series of sentences that run consecutively. The sentence in this case was an aggregate sentence; Graham spoke only to a single non-aggregate sentence. This court’s precedent in Hairston requires that each individual sentence be evaluated, so if each individually offers a meaningful possibility of release, that is good enough. When looked at that way, there is no constitutional violation in this case.

What Was On Their Minds

A lot, since the argument ran nearly an hour. And yet, once over the procedural hurdles, the whole thing boiled down to a simple difference in the interpretation of Graham­-does the reasoning in Graham apply only to a single non-homicide offense, or to multiple consecutive sentences for non-homicide offenses which amount to life in prison.

Graham, Graham, Graham

If the court agrees with Moore, what happens next, asked Justice Pfeifer?

There was no statutory violation with the sentences imposed here, was there, asked Justice Lanzinger? (both sides agreed there was not). Did the trial court say at sentencing that it was his intent that Moore would never be released? (both sides agreed the trial judge had said that.) Is that the problem here? Hasn’t the U.S. Supreme Court articulated an almost substantive right for a meaningful opportunity for a juvenile non-homicide offender to be released? Isn’t that the issue here? It’s just the opportunity for release? Later she asked if other state supreme courts that have dealt with this issue have distinguished Graham on the basis that there was only one offense. (answer: there is a split on that.)

Graham only addressed a single offense, not multiple convictions, didn’t it, asked Justice O’Donnell? It doesn’t speak to the meaningful opportunity for release where there are multiple convictions consecutively sentenced, does it?  Isn’t Graham distinguishable on its facts? Or does it apply to this case? Does Moore have a meaningful opportunity for release?

In a key question of the day, Chief Justice O’Connor asked how the court should balance out the fact that the individual sentences are well within the statutory scheme against the considerations in Graham. And why did it matter that Graham had one sentence, as opposed to the series of sentences that would run consecutively, as Moore did? Later she asked if the retroactive application of Graham muddies the waters in this matter. Is a 112 year sentence with the possibility of release at 92 any different, in practicality, from a life sentence? And if the rationale for extending Graham is based on lack of maturity and the developing brain, why doesn’t the same rationale apply to homicide offenses?

Wasn’t the U.S. Supreme Court talking about the crime, not the time, asked Justice O’Neill? Didn’t the trial court say, you’re not coming back, and wasn’t that what was improper here?

Is there any point at which a juvenile could commit horrendous non-homicidal crimes, stacked up further than we have in this case, where that wouldn’t violate the Eighth amendment, asked Justice French?

Procedural Hurdles

Could the court reverse the court of appeals without reaching the merits and have the appeals court look at the merits first, asked Justice French? What gets us to extraordinary circumstances here?

Didn’t Moore waive the Graham issues here, asked Justice O’Donnell? Should the court agree that all similarly situated incarcerated juveniles have a right to a delayed reconsideration based on Graham? Or is this appeal over because this court procedurally cannot hear a delayed motion for reconsideration of an order three years prior? There has been a final determination and this is res judicata?

What is the proper avenue at this point, asked Justice Pfeifer?

In the key exchange of the day with the prosecutor on the procedural hurdles, Chief Justice O’Connor commented that one had to admit there was no avenue to get to the high court but for the fact of reconsideration for a delayed appeal, which coupled with the retroactivity language of Graham “leads us to deciding this on the merits.” She also asked how Moore could have raised the issue any sooner, since Graham wasn’t out yet.


Exactly when will Moore be eligible for release, asked Justice French?

Would Moore get a hearing before age 92, asked Justice O’Donnell?

On each particular offense for which Moore was convicted, what was the maximum possible sentence for the most egregious of the offenses, asked Justice Pfeifer?

Legislative Deference

Isn’t this a legislative question, asked Justice O’Neill?

In determining a meaningful opportunity for release, have other state courts determined an actual number in place of their legislature? Sentencing is a legislative matter—if we are talking about meaningful opportunity for release for multiple juvenile non-homicide offenses, shouldn’t it be for the legislature to determine the number, asked Justice Lanzinger, expressing a concern all the justices seemed to feel.

Couldn’t the legislature step in and set an age at which an opportunity for release must be given, asked Chief Justice O’Connor?

Guidance to Trial Courts

How much of a sentence is violative, asked Justice Lanzinger? How would the court determine at what number a sentence would be violative?

At what age does a juvenile have a meaningful opportunity for release, asked Chief Justice O’Connor? And how does a trial court know that?  Must there be a hearing and a developed record? Must there be experts like health experts and prison population experts? Who is entitled to such a hearing?  What if the opportunity for release occurs at age eighty?  Is that a problem?

Let’s say we get a life expectancy of 85. What guidance does that give a trial court? This kid is going to be 85, so you can only give him a sentence of 70 years, asked Justice O’Neill? And is there a problem with the fact that the co-defendant in this case is eligible for judicial release sooner than Moore?

Isn’t it unfair to the trial courts just to say we don’t know how much time is too much—you figure it out, asked Justice Pfeifer? How do we do more than that?

How It Looks From The Bleachers

To Professor Bettman

Like a win for Moore, but with some reservation, and not unanimously. I think the defense is going to get over the considerable procedural hurdles for several reasons—Moore actually did try to raise the issue of his sentence pro se the day Graham was decided; Graham clearly applies retroactively, and absent a delayed reconsideration here, there is no avenue for Moore to have this issue heard and considered.  The Chief seemed to accept that about half way through the argument, and the longer Moore’s superb lawyer argued, the less significant the issue seemed to become, except to Justice French, who seemed unable to get past this.

It is not really disputed that the holding in Graham applies retroactively. The crux of the substantive disagreement in case is whether the key holding in Graham in a single non-homicide offense– that a juvenile non-homicide offender must have a meaningful opportunity for release–also applies to an aggregate sentence for several non-homicide offenses, the situation before the court.  I think by the end of argument, Chief Justice O’Connor, and Justices Lanzinger, Pfeifer, and O’Neill were ready to accept that the philosophy and the science behind diminished moral culpability for juvenile non-homicide offenders articulated in Graham warrants the application of Graham to the aggregate sentence in this case. (no one argued that the sentence imposed in the case was contrary to any sentencing statute.) O’Connor and Lanzinger have been especially sympathetic to the science behind the developing adolescent brain.  The key point for Justice Lanzinger undoubtedly was the undisputed fact in this case that at sentencing, the trial judge stated several times that it was his intent to ensure that Moore never would be released again.  Once Graham is accepted as applicable to this case, that utterance would be fatal.

The reluctance in finding this sentence to be an Eighth Amendment violation was best expressed by Justice Pfeifer—leaving the trial courts with no guidance as to what a meaningful opportunity for release means. Age 50? 55? 60? Clearly not 92, or not a “geriatric” release, as Moore’s counsel put it.  Still, despite any bright line direction for trial courts, I predict the court will clearly take up its mantle of responsibility, and strike this sentence down.

I think Justice O’Donnell, who I have written numerous times on this blog, is just not sympathetic at all to juveniles who commit heinous offenses, will join Justice French in dissent. He could find the case is procedurally barred, but I think it more likely that he will accept the state’s argument that this case, involving an aggregate sentence, none of which singly would run afoul of Graham, is factually distinguishable, and that Graham just does not apply here.

Finally, kudos to both counsel for excellent arguments to a very hot bench.  Mahoning County Assistant Prosecutor Ralph Rivera was very professional, even when needing to make concessions against the state’s interest in the case.  Moore’s counsel, Rachel Bloomekatz, of Jones Day, was absolutely spectacular—one of the best oral arguments I have heard.  She took control of the argument right from the outset, carefully led the court away from the procedural hurdles, defined the jurisprudential issue for the court as requiring a juvenile non-homicide offender (which she repeatedly emphasized) a meaningful opportunity for release, and stayed on message throughout. She was clear, articulate, focused, and totally non-defensive, even in the light of some very tough questioning.

To Student Contributor Austin LiPuma

First, I would be remiss without addressing the exceptional presentation from Moore’s counsel. Her responses towards a very hot bench were exceedingly responsive and instructive. Immediately the numerous procedural hurdles were discussed; was the delayed motion for reconsideration a proper avenue for Moore to assert a Graham violation? Counsel strongly asserted that the retroactive application of Graham qualifies as an extraordinary circumstance and permits the court to address the merits of the case. My fears that the argument may be bogged down by a procedural battle were short-lived as the justices immediately turned to the effects of mandatory bindovers. This is where the surprising simplicity of Moore’s argument truly began to resonate. Graham requires that each and every juvenile  non-homicide defendant be afforded a “meaningful opportunity for release.” This repeated line became the mantra of the argument and slowly but surely swept away the justices’ concerns over legislative deference, trial court burdens, and aggregate sentence structures.

The state faced an uphill battle once the procedural boundaries appeared to be non-problematic. In one of its many concessions, the state acknowledged that if Graham is applicable it does effectively preclude Moore from a meaningful opportunity for release. By the state’s own calculations, that opportunity will not present itself until Moore is 92, effectively violating Graham’s holding. The justices appeared underwhelmed by the argument that Graham is distinguishable based on a single life sentence versus a series of strung together sentences. However, the courts propensity to rely on express statutory language was something that the state attempted to hang its hat on. As Chief Justice O’Connor stated, can’t the “legislature intervene and impose a sentence structure” as it relates to non-homicide sentences for juveniles?

However, as Moore’s rebuttal noted, the duty of this court is to apply the Graham holding by protecting the Eighth Amendment rights of  juveniles as determined by the United States Supreme Court. Prior to the argument, I was uncertain about how the court might handle the extensive procedural hurdles as well as the difference between Moore’s de facto sentences and Graham’s single life sentence. I predict that the overarching purpose of Graham in affording juveniles a meaningful opportunity for release will persuade the justices in favor of Moore.





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