State Files U.S. Supreme Court Cert. Petition in Brandon Moore Case.

Further update: On October 2, 2017, the U.S. Supreme Court denied the state’s cert. petition. 

Update: On June 14, 2017, the cert. petition was distributed for conference of September 25, 2017.

Read Moore’s brief in opposition here.

Case Background

Brandon Moore was sentenced to an aggregate prison term of 112 years in prison for convictions for three counts of aggravated robbery, three counts of rape, three counts of complicity to commit rape, one count of kidnapping, one count of complicity to commit aggravated robbery, and one count of aggravated menacing. Moore was fifteen years old when he committed these crimes. This was not a sentence for a single offense, but a series of sentences, running consecutively. Moore will be eligible for release at age 92.

Supreme Court of Ohio Decision

Moore successfully argued to the Supreme Court of Ohio that the sentence he received was a de facto life sentence, which denied him any meaningful opportunity for release, contrary to the U.S. Supreme Court ruling in Graham v. Florida 560 U.S. 48 (2010). Graham held that juvenile non-homicide offenders cannot be sentenced to life without the possibility of parole. In State v. Moore,  2016-Ohio-8288,  a 4-3 opinion authored by Justice Pfeifer, the court held that a term-of-years prison sentence imposed on a juvenile non-homicide offender that exceeds the offender’s life expectancy violates the Eighth Amendment ban on cruel and unusual punishment. There were five separate opinions written in the case. The majority did not suggest when a “meaningful opportunity for release” might be for Moore, although Justice Lanzinger made some suggestions in a separate concurrence. Read an analysis of the merit decision here.

State Seeks Review in U.S. Supreme Court

On March 22, 2017, the state filed a petition for certiorari in the U.S. Supreme Court in the Moore case. The Supreme Court of Ohio stayed Moore’s re-sentencing pending resolution of the cert. petition.

In its cert. petition, the state’s key argument is the same one it made before the Ohio high court, and that is that Graham involved a life sentence for a single non-homicide offense, whereas the Moore case involves consecutive fixed-term sentences for multiple non-homicide offenses, so the mandate in Graham should not apply to Moore.

The state presented these three questions for review in its petition:

  • Does Graham’s categorical rule apply to consecutive, fixed-term prison sentences for multiple non-homicide offenses committed by a juvenile that result in a lengthy aggregate sentence?
  • If Graham’s categorical rule applies to consecutive, fixed-term prison sentences for multiple non-homicide offenses, at what point must a juvenile be provided “some meaningful opportunity for release?”
  • Does Graham apply retroactivity to juveniles sentenced to consecutive, fixed-term prison sentences for multiple non-homicide offenses that result in a lengthy aggregate sentence?

The State advocates for a literal reading of the Graham decision, arguing that Ohio’s interpretation is not supported by the plain language of the case.  In extending Graham beyond its narrow holding, prohibiting life imprisonment without the possibility of release for a single non-homicide offense, the Supreme Court of Ohio adopted a case-by-case proportionality review. However, this view was expressly rejected in Graham because of the difficulty in applying it. Even though the U.S. Supreme Court provided a categorical rule, Ohio unreasonably expanded upon it to include aggregate (“de facto”) life sentences.

It was erroneous to replace a clear bright-line rule with a subjective determination of when an individual no longer has a “meaningful opportunity to obtain release.” Graham gave little guidance on this point. Even courts that have extended Graham, as Ohio has, have not agreed on the point at which a meaningful opportunity for release occurs. There are simply too many variables that courts would have to take into account to make this determination. The classification as a de facto life sentence is not an easy one, and will likely give rise to disputes about how a lifespan should be measured or estimated. This case-by-case method creates more problems than solutions. For example, Ohio offered no guidance for instances where the aggregate sentence could be increased by subsequent crimes while incarcerated or by crimes committed in other jurisdictions.

The state points out in its petition that Moore’s then-juvenile co-defendant, Chaz Bunch, twice petitioned the U.S. Supreme Court to extend the holding in Graham to lengthy consecutive fixed term sentences for multiple non-homicide offenses, based on the same facts and rationales offered up by Moore, but the Court declined to accept either case.  And the state notes that there is presently a split of authority among the federal circuits and among state appellate courts on this question. This case offers the U.S. Supreme Court an opportunity not only to resolve the split of authority, but to ensure that the categorical holding in Graham is properly and consistently applied.

Read the state’s complete petition for certiorari here.



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