On July 5, 2016, the Supreme Court of Ohio handed down a merit decision in State v. Anderson Slip Opinion No. 2017-Ohio-5656. Although the blog did not preview this case, it is a companion to the decision on the issue of a trial tax in State v. Rahab, Slip Opinion No. 2017-Ohio-1401, in which the court held that the trial court judge did not impermissibly give the defendant a harsher sentence for exercising his right to a jury trial, and adopted an actual vindictiveness standard in making this determination. (Analysis here). It is also a compliment to the court’s recent philosophical shift on the handling of juvenile offenders, as evidenced in State v. Aalim, Slip Opinion No. 2017-Ohio-2956. (Aalim II) (Analysis here). So the blog decided to give it a closer look.
In an opinion authored by Justice O’Donnell, which Justices Kennedy, DeWine, and Fischer joined in full, the court held the following:
- Just because a defendant who exercises his right to a jury trial and is convicted receives a far harsher sentence than a co-defendant who pleads and co-operates does not mean the trial court imposed an impermissible trial tax.
- Imposing certain mandatory minimum sentences on a juvenile non-homicide offender tried as an adult does not violate the Eighth Amendment.
Justice French concurred in judgment only. Chief Justice O’Connor concurred in part, and dissented in part, with an opinion. Justice O’Neill wrote a separate dissent. The case was argued February 28, 2017.
On April 20, 2012, when he was 16, Rickym Anderson, along with Dylan Boyd and a third person were involved in two separate criminal incidents. In the first, Boyd pointed a gun at Brian Williams and Tiesha Preston who were standing inside a garage in Dayton, Ohio. When both tried to run away, Boyd shot Williams, grabbed Preston, and forced her into the trunk of a car parked outside the garage. The trio stole a purse and some cigarettes from inside the car, then left.
Later that same day, Anderson and Boyd approached Star MacGowan, who was standing outside her apartment. Anderson threated to shoot McGowan, took her purse and her cell phone, and fled, along with Boyd, leaving the purse behind. A Dayton police officer stopped Anderson near MacGowan’s apartment, recovered the cell phone after searching Anderson, and found a firearm nearby.
A complaint was filed against Anderson in juvenile court, alleging the following offenses if committed by an adult: aggravated robbery, kidnapping and felonious assault, all with firearm specifications. Anderson’s case was transferred to the general division of common plea court pursuant to Ohio’s mandatory transfer statutes (the ones the court just held were constitutional in Aalim II). Both Boyd and Anderson were indicted on three counts of aggravated robbery, one count of felonious assault, and one count of kidnapping, all with firearm specifications.
Boyd agreed to plead guilty to one count of aggravated robbery with a firearm specification, one count of felonious assault, and one count of kidnapping. He also agreed to testify against Anderson if necessary. All of this was in exchange for the state’s agreement to recommend a nine year prison sentence. The trial court accepted the plea, and sentenced Boyd to nine years.
Anderson Opts for Jury Trial
Anderson opted for a jury trial. He was found not guilty of felonious assault, but guilty of three counts of aggravated robbery and one count of kidnapping, all with firearm specifications. Anderson was originally sentenced to 28 years in prison. That sentence was reversed on appeal, and at the re-sentencing, he was given an aggregate 19 year sentence—11 years for each of the aggravated robberies, to run concurrently, and three years for the firearm specification and five for the kidnapping, to run consecutively with the 11 year term.
At the re-sentencing, the trial court discussed the disparity between Boyd’s and Anderson’s sentences, saying that although they were equally culpable, Boyd got a lesser sentence for cooperating with the state, admitting his misconduct, and for his willingness to testify against Anderson if necessary. The court also specifically commented that Anderson was not receiving a penalty for going to trial, but rather for his criminal past and refusal to take responsibility for his actions. The Second District Court of Appeals unanimously upheld the sentence.
At the Supreme Court
There are two issues in this appeal-one involves the disparity in sentencing between co-defendants, the other challenging the constitutionality of the mandatory sentencing statutes in R.C. 2929 as applied to juveniles.
Anderson argues that absent any record evidence justifying the disparity in the sentences between two equally culpable co-defendants, his sentence should be construed as an impermissible trial tax, and must be reversed. In his case, he argues, there were no permissible reasons for the disparity in the two sentences.
Anderson also argues that his sentence violates the Eighth Amendment ban on cruel and unusual punishment, because the trial court could not make individualized determinations about him due to the mandatory minimums for firearm specifications and certain first degree felonies, and the requirement that certain sentences must be served consecutively with others. He also argues that due process requires judges in adult courts to have the discretion to sentence according to juvenile or adult codes.
The state argues there is no requirement that co-defendants receive the same sentence, especially where, as here, one fully cooperated with the prosecution and admitted his responsibly and the other didn’t. The state also points out that the trial court made it crystal clear that Anderson’s decision to go to trial played no part in the sentence, and was not a penalty.
On the constitutional challenge, the state argues that Ohio’s adult sentencing scheme does not prevent the trial judge from making an individualized sentencing determination, and that the mandatory three year minimum firearm specification is perfectly permissible because it is wholly unlike the kinds of mandatory sentences invalidated by the U.S. Supreme Court in its recent juvenile sentencing jurisprudence. Finally, the state argues Anderson waived any due process challenge.
Analysis of Trial Tax Issue
The court made short shrift of the sentencing disparity challenge. While agreeing with the general principle that a defendant should never be punished for exercising his right to go to trial or for refusing to plead, the fact that a defendant is willing or unwilling to plead is a fair consideration to take into account when sentencing.
The court found that the record in this case showed significant differences between the co-defendants. Boyd was willing to plead, to co-operate with the state and to testify against Anderson. Anderson was found guilty of four felonies with firearm specifications by a jury. The trial court specifically stated Anderson’s sentence was not a trial tax, and the sentence was within the range of penalties allowed by law. End of story.
Mandatory Sentencing of a Juvenile
The court spent more time on Anderson’s challenge to mandatory sentencing as applied to juveniles. Anderson challenged his sentence for the felonies and for the firearm specification. He argued that mandatory sentencing with respect to juveniles constitutes cruel and unusual punishment because it requires trial courts to treat children as adults.
Here is the trio of recent U.S. Supreme Court decisions on juvenile sentencing:
Roper v. Simmons,, 543 U.S. 551 (2005) (Prohibits death penalty for offenses committed while the defendant was a juvenile.)
Graham v. Florida, 560 U.S. 48 (2010) (The Eighth amendment prohibits life sentences without parole for juvenile non-homicide offenders. These offenders, especially when there was no intent to kill have “twice diminished moral culpability.” Therefore, they must be allowed the opportunity to demonstrate their maturity and rehabilitation, and must be given a meaningful opportunity for release.)
Miller v. Alabama, 132 S.Ct. 2455 (2012) (Forbids imposition of mandatory life without parole sentence for juvenile homicide offenders.)
In analyzing Anderson’s Eighth Amendment challenge, the court interpreted Graham as requiring the court to consider whether there is a national consensus against the sentencing practice at issue and whether in the exercise of its own independent judgment the punishment involved violates the Constitution.
The first mandate was easy—Anderson conceded there was no national consensus against mandatory sentencing for juveniles tried as adults. So the court moved on to independent review.
In its independent review, the court considered Anderson’s culpability in light of the crimes committed, and the severity of the punishment. Here, the court found Anderson’s mandatory minimum sentence of three years for each of the aggravated robbery charges far less severe than the sentences of life without the possibility of parole banned in Graham and Miller, even with Anderson’s sentences for each robbery conviction running consecutively with the sentence for kidnapping and the firearm specification. The court found the sentence did not violate the principle of proportionality because of the wide range of sentencing possibilities available to the trial court, and the fact that the trial judge retained the discretion to fashion a sentence that took youth and immaturity into account. Anderson’s challenge to the three year firearm specification got no traction and very little analysis. O’Donnell, who as I have written many times has no sympathy for juveniles who commit serious offenses, wrote that the mandatory three year prison sentence for the gun specification served “ a legitimate penological goal, is proportional to the crimes committed, and is not one of the harshest possible penalties for a juvenile offender. “
The court agreed with the state that Anderson never raised this issue below, and therefore waived it.
Chief Justice O’Connor’s Position
Part I: The Bind-Over
The Chief reiterated her position from Aalim I (State v. Aalim, Slip Opinion No. 2016-Ohio-8278) and Aalim II that she finds the juvenile mandatory transfer statutes unconstitutional. She would hold that Anderson was sent to adult court without due process, that adult court lacked jurisdiction to try him, and therefore his conviction and sentence were void. She therefore would not reach the merits of Anderson’s appeal, but rather would remand the case to juvenile court for an amenability hearing. But, as she is bound by precedent, she went on to consider the other issues.
Part II: The Trial Tax
O’Connor agrees with the majority that the trial court did not punish Anderson for exercising his right to trial. She decided to write separately to address the underlying circumstances in greater detail to provide guidance to sentencing courts. Essentially, the Chief found that the trial court’s clarifying statements at re-sentencing, the court’s specific and express statement that the sentence was not imposed as a penalty for going to trial, and the fact that the sentence fell within a permissible range of penalties all supported the conclusion that Anderson was not subject to an improper trial tax. Specifically, she cited the trial court’s points about Anderson’s continuing refusal to accept responsibility for his actions, his lack of any effort to leave when the offenses were in progress, his brandishing of a weapon in one of the crimes, and his prior record as a basis for the finding that there was no trial tax or sentencing error. The Chief also noted that a detailed explanation like the one in this case is not required at every sentencing.
The Chief did not write anything separately on Anderson’s Eighth Amendment challenge.
Justice O’Neill’s Dissent
Justice O’Neill’s position is multi-faceted. First, he agreed that on the facts of this record, Anderson did not receive a trial tax for going to trial. He agrees that the imposition of different sentences on co-defendants does not in and of itself raise the inference of a trial tax. And he was satisfied with the explanation of the trial judge in this case that Anderson was not being punished for invoking his right to trial.
Next, O’Neill re-iterated his agreement with Chief Justice O’Connor that the mandatory juvenile bind-over statutes are unconstitutional, which was the position of both in Aalim I and Aalim II.
But O’Neill does not agree that Anderson waived his due process argument because he only challenged his mandatory sentence on Eighth Amendment grounds. To O’Neill, “the prohibition against cruel and unusual punishments in the Eighth Amendment is inherently a due process protection…” He also chides the majority for failing to point out that it has the discretion to consider a forfeited constitutional challenge under plain error review.
Clearly O’Neill sees a due process violation here. He would find that children have a due-process right to be individually evaluated before sentencing is imposed, in adult court as well as in juvenile court. To him, not every kid who shows or uses a firearm in the commission of an offense automatically deserves a mandatory three years.
“The mandatory sentencing scheme, when applied to those who committed their crimes while juveniles, thwarts the right to individualized assessment by imposing a one-size-fits-all punishment,” O’Neill wrote. Essentially, that’s the same position the Aalim I majority took about mandatory bind-overs.
- Where one defendant pleads guilty to three felonies, agrees to testify against a codefendant, and receives a sentence of nine years, and the codefendant is convicted by a jury of four felonies and is sentenced to 19 years, and when the trial court specifically states that the sentence is not being imposed as a penalty for going to trial, no inference of impropriety arises if the sentence is within the range of penalties provided by law.
- Imposing a mandatory minimum sentence of three years on juvenile offenders for aggravated robbery and for kidnapping does not violate the Eighth Amendment’s prohibition against cruel and unusual punishment.
- A mandatory three year prison sentence imposed on a juvenile offender tried as an adult for a conviction of a firearm specification does not violate the Eighth Amendment because it serves a legitimate penological goal, is proportional to the crimes committed, and is not one of the harshest possible penalties for a juvenile offender.
The long run for special protections for juvenile offenders may be coming to an end.