STATE OF OHIO, Plaintiff-Appellee, v. MALICKE FRANKLIN, Defendant-Appellant.
No. 107482
COURT OF APPEALS OF OHIO EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
September 19, 2019
2019-Ohio-3760
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 19, 2019
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-622587-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Anthony Thomas Miranda and Daniel A. Cleary, Assistant Prosecuting Attorneys, for appellee.
Paul W. Flowers Co., L.P.A., and Louis E. Grube, for appellant.
EILEEN T. GALLAGHER, P.J.:
{¶ 1} Defendant-appellant, Malicke Franklin (“Malicke”) appeals from his convictions and sentence following a guilty plea. He raises the following assignments of error for review:
The general division of the court of common pleas lacked subject matter jurisdiction because there was no enforceable statute authorizing the defendant’s transfer without an amenability hearing. - The trial court committed plain error by failing to merge all of defendant’s conviction at sentencing.
- Defendant’s counsel was constitutionally ineffective by agreeing that counts one and four were not allied offenses and by failing to argue that defendant’s convictions for inextricably related crimes should have merged.
- The findings made by the trial court in support of the defendant’s consecutive sentences pursuant to
R.C. 2929.14(C)(4) clearly and convincingly lack support in the record. - The findings made by the trial court in support of the defendant’s length of sentence pursuant to
R.C. 2929.11 and2929.12 clearly and convincingly lack support in the record. - If
R.C. 2953.08(G)(2)(a) entirely forecloses review of findings made pursuant toR.C. 2929.11 and2929.12 the statute violates the due process clauses of the Ohio and United States Constitutions.
{¶ 2} After careful review of the record and relevant case law, we affirm.
I. Procedural and Factual History
{¶ 3} In June 2017, Malicke was charged in the Cuyahoga County Court of Common Pleas, Juvenile Division, with three counts of aggravated murder, one count of aggravated burglary, and one count of kidnapping. In August 2017, the state moved for an order transferring jurisdiction to the court’s general division. The juvenile court held a hearing and determined that Malicke was subject to mandatory transfer.
{¶ 4} After jurisdiction was transferred, Malicke and his codefendants, Holley Hentges (“Hentges”) and Nicholas Franklin (“Nicholas”), were named in an
{¶ 5} In June 2018, Malicke entered into a plea agreement with the state. Following an extensive
{¶ 6} At the sentencing hearing, the trial court raised the issue of allied offenses. Following a brief discussion, the parties agreed that the crimes were not allied offenses.
{¶ 8} Malicke addressed the court and accepted responsibility for his actions and asked the court to impose a sentence that is not “harshful against [him].”
{¶ 9} The trial court then heard from the state and family members of C.F. Relevant to this appeal, the state disputed defense counsel’s interpretation of Malicke’s involvement in C.F.’s death. The state indicated that each of the three defendants entered C.F.’s home without consent and with the intent “to invoke serious physical harm that led to [C.F.’s] death.” The state informed the court that Malicke was seen hitting C.F. in has face while his brother was hitting C.F. in the body. The state noted that C.F. had “significant bruising all around his face and neck, scratches all along his neck, with a broken bone in his neck.” In addition, the state explained that the decision to have Malicke plead to attempted murder rather than involuntary manslaughter was not predicated on a determination that Malicke was “less culpable.” Rather, the state expressed that the plea agreement was tactically created “so that [Malicke] could be sentenced as an adult.” Finally, the state dismissed defense counsel’s reference to Hentges’s influence over Malicke,
{¶ 10} C.F.’s fiancée, victim R.K., stated that she is Hentges’s sister. R.K. detailed the mental and psychological harm she has endured as a result of her fiancé being killed just five days before their wedding. She asked the court to hold the defendants accountable for “everything they’ve done.” In addition, R.K. expressed her intent to obtain a protection order against the defendants, stating:
Oh, and, Your Honor, Malicke Franklin had a gun, hit my fiancé in the head with a gun. Then Malicke pointed the gun at me and told me if I said anything he was going to kill me. So there is threats from that — my sister’s family, and I fear for my life.
{¶ 11} Regarding the relevant consecutive sentence factors, the state referenced the seriousness of the crimes committed by the defendants and the lasting impact their actions have, and will continue to have, on the victims, stating:
[R.K.] now has to live — as well as for consecutive sentences — the seriousness and harm to the public, the threats to her, to the other witnesses, the significant harm that she still faces to this day, having to go through counseling and other issues like that. But the other thing is, a lot of women came up and spoke to you. A lot of women came in and spoke about how [Mr.] C.F. raised them, helped them. That’s a lot of people in the public that have been affected. Their children, his grandchildren, nieces, nephews, they all have been impacted by the behavior of this woman, who instead decided to bring a use of force. So the harm to the public and the seriousness in this case is they didn’t go over to confront him. This is family. They could have spoke to him. They went over there in a use of force. She actually got three men with her, the two actually contributed and fought and beat this man to his death. I think that’s almost stronger than shooting someone because you’re using your own power to kill someone.
{¶ 12} Finally, the trial court stated that it considered Malicke’s PSI, which detailed the circumstances that led to the attack of C.F., the magnitude of C.F.’s
{¶ 13} Upon consideration, the trial court sentenced Malicke to nine years in prison on each count, to run consecutively, for an aggregate prison term of 18 years.
{¶ 14} Malicke now appeals from his sentence.
II. Law and Analysis
A. Mandatory Transfer
{¶ 15} In the first assignment of error, Malicke argues the Cuyahoga County Court of Common Pleas, General Division, did not have jurisdiction over him. Malicke acknowledges that he was subject to mandatory transfer pursuant to
{¶ 16} In Aalim I, the Ohio Supreme Court held that the “mandatory transfer of juveniles to the general division of common pleas court violates juveniles’ right to due process” under the Ohio Constitution. Id. at ¶ 31. The court subsequently reconsidered its decision. State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883 (“Aalim II”). In Aalim II, the court held that “the mandatory bindover of certain juvenile offenders * * * complies with due process and equal protection.” Aalim II at ¶ 38. The court vacated its decision in Aalim I. Aalim II at id.
{¶ 17} Because the Ohio Supreme Court vacated its decision in Aalim I, that decision has no effect and is not applicable to this case.
{¶ 18} Accordingly, the first assignment of error is overruled.
B. Allied Offenses
{¶ 19} In the second assignment of error, Malicke argues the trial court erred by failing to merge his convictions as allied offenses. In the third assignment of error, Malicke claims that he was afforded ineffective assistance of counsel because his attorney conceded that his convictions should not merge.
{¶ 20}
{¶ 21} Malicke argues that he committed Count 1 (attempted murder) and Count 4 (aggravated burglary) by the same conduct. Malicke concedes that he did not object to the trial court’s failure to merge offenses. Therefore, he bears the burden of proof to demonstrate plain error on the record. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 22. “[E]ven if an accused shows that the trial court committed plain error affecting the outcome of the proceeding, an appellate court is not required to correct it.” Id. at ¶ 23. In Rogers, the Ohio Supreme Court “admonished courts to notice plain error with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” Rogers at id.
{¶ 22} It is well-established that where counts contain separate victims, the counts do not merge. See State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 23 (“[T]wo or more offenses of dissimilar import exist * * * when the defendant’s conduct constitutes offenses involving separate victims.”); State v. Crawley, 8th Dist. Cuyahoga No. 99636, 2014-Ohio-921, ¶ 41 (“[S]eparate victims alone established a separate animus for each offense”). Here, Count 1 named victim C.F. Count 4 named three victims — C.F., R.K., and T.L. Thus, because the counts name different victims, the offenses are not allied.
{¶ 24} The second and third assignments of error are overruled.
C. Consecutive Sentences
{¶ 25} In his fourth assignment of error, Malicke argues the imposition of consecutive sentences is not supported by the record.
{¶ 26} We review felony sentences under the standard set forth in
{¶ 27}
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under postrelease control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 28} Compliance with
{¶ 29} Where the trial court made the requisite consecutive sentencing findings,
Clear and convincing evidence is that measure or degree of proof which is more than a mere “preponderance of the evidence,” but not to the extent of such certainty as is required “beyond a reasonable doubt” in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. “This is an extremely deferential standard of review.” State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 21 (8th Dist.).
{¶ 30} Regarding the scope of the information to be considered by the sentencing court,
{¶ 31} Thus, “
{¶ 32} On appeal, Malicke does not argue that the trial court failed to make the requisite consecutive-sentencing findings under
{¶ 34} Upon receiving the foregoing information, the trial court then carefully considered Malicke’s familial relationship with the victims, discussed the great harm caused by the offenses, weighed the need to protect the public, and evaluated the proportionality of the punishment to Malicke’s conduct. The trial court described the crimes committed by Malicke as “extremely violent” and
A man [was] beaten to death by three people in front of his fiancée and the other occupants of the home. * * * [The] three of you did it together, you’re all equally responsible and that’s the way the Court sees it.
{¶ 35} Finally, regarding the great or unusual harm caused by the multiple offenses, the record contained ample information that, in addition to the unquestionable harm caused by the attempted murder offense, other victims present in the home were caused great emotional and psychological harm by Malicke’s commission of the aggravated burglary offense. As stated, the harm caused by the aggravated burglary derived from a carefully calculated plan to forcefully enter C.F.’s home. The offense was committed against family members, with an understanding that they would be present in the home, and without regard for their safety as the defendants forced their way inside the home and attempted to settle a vendetta against C.F.
{¶ 36} On appeal, Malicke merely disputes the trial court’s interpretation of his conduct and reiterates the mitigation arguments that were raised by defense counsel during the sentencing hearing. While Malicke disagrees with the trial court’s decision to exercise its discretion to impose consecutive sentences,
{¶ 37} We note that Malicke’s lack of a criminal history did not render the imposition of consecutive sentences to be inappropriate in this case. As this court has previously explained, even where a defendant has no criminal history, consecutive sentences may be imposed if the court makes one of the alternative findings under
{¶ 38} The record further reflects that the trial court considered Malicke’s claims of remorse and whether he was likely to commit future crimes as required under
D. Purposes and Principles of Felony Sentencing
{¶ 40} In his fifth assignment of error, Malicke argues the record clearly and convincingly does not support the nine-year prison term imposed on each offense. Malicke submits that this court “should recognize that the record does not support the
{¶ 41} A sentence is contrary to law if it falls outside the statutory range for the particular degree of offense or if the trial court fails to consider the purposes and principles of felony sentencing set forth in
{¶ 42} Pursuant to
{¶ 43} Furthermore, in imposing a felony sentence, “the court shall consider the factors set forth in [
{¶ 44} When a sentence is imposed solely after consideration of the factors in
{¶ 45} In this case, the record demonstrates that the trial court imposed individual prison terms within the applicable statutory ranges and carefully considered the relevant factors set forth under
{¶ 46} Viewing Malicke’s arguments in their entirety, it is evident that he finds the prison terms imposed in this case to be excessive. However, as this court has previously explained,
“‘The weight to be given to any one sentencing factor is purely discretionary and rests with the trial court.’” State v. Price, 8th Dist. Cuyahoga No. 104341, 2017-Ohio-533, ¶ 20, quoting State v. Ongert, 8th Dist. Cuyahoga No. 103208, 2016-Ohio-1543, ¶ 10, citing State v. Torres, 8th Dist. Cuyahoga No. 101769, 2015-Ohio-2038, ¶ 11. A lawful sentence “‘cannot be deemed contrary to law because a defendant disagrees with the trial court’s discretion to individually weigh the sentencing factors. As long as the trial court considered all sentencing factors, the sentence is not contrary to law and the appellate inquiry ends.’” Price at id., quoting Ongert at ¶ 12.
State v. Bailey, 8th Dist. Cuyahoga No. 107216, 2019-Ohio-1242, ¶ 15.
{¶ 47} In an effort to challenge the adequacy of the trial court’s statutory considerations, Malicke is merely asking this court to substitute our judgment for that of the trial court, which, as stated, appellate courts are not permitted to do. McCoy, 8th Dist. Cuyahoga No. 107029, 2019-Ohio-868, at ¶ 19 (“We cannot substitute our judgment for that of the sentencing judge.”). Moreover, by asking this court to view the seriousness and scope of his conduct in light of the relevant mitigating factors, Malicke is encouraging this court to independently weigh the sentencing factors, which appellate courts are also not permitted to do. Ongert at ¶ 14; Price at ¶ 20; Bailey at ¶ 15; State v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431, ¶ 10, and State v. Anderson, 8th Dist. Cuyahoga No. 103490, 2016-Ohio-3323, ¶ 9.
{¶ 48} In many regards, this case perfectly illustrates the appellate dilemma created by the Ohio Supreme Court’s apparent extension of the clear and convincing standard set forth under
{¶ 49} In this court’s en banc decision in State v. Jones, 2018-Ohio-498, 105 N.E.3d 702 (8th Dist.), the court held that:2
under State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, the Ohio Supreme Court read
R.C. 2929.11 and2929.12 intoR.C. 2953.08(G)(2)(a) , allowing an appellate court to increase, reduce, or otherwise modify a sentence or vacate the sentence and remand the matter to the sentencing court for re-sentencing if the record does not support the sentencing court’s findings underR.C. 2929.13(B) or (D),R.C. 2929.14(B)(2)(e) or (C),R.C. 2929.20(I) , as well asR.C. 2929.11 and2929.12 .
Id. at ¶ 5, 21.
{¶ 50} Unquestionably, neither Marcum nor Jones have expressly overruled this court’s well-settled position that reviewing courts are (1) not entitled to substitute their judgment for that of the trial court, and (2) are not entitled to independently weigh the sentencing factors set forth under
{¶ 51} For these reasons, the reversal of a felony sentence imposed within the applicable statutory range is only appropriate where there is objective information in the record that the trial court (1) failed to consider
{¶ 52} A conclusion to the contrary would result in inconsistent appellate decisions and, most importantly, the inappropriate substitution of a trial court‘s sentencing discretion. As stated, Ohio courts have routinely characterized appellate review of felony sentencing as “extremely deferential” to the sentencing court. See
{¶ 53} Based on the foregoing, we find no error in Malicke‘s sentence; his fifth assignment of error is overruled.
E. Due Process
{¶ 54} In his sixth assignment of error, Malicke advances a due process argument. He claims that, while existing case law precedents do not require an appellate court to review the findings made by the trial court in support of a criminal sentence, the Due Process Clause of the
{¶ 55} Finding no merit to his due process claims under the current law of Ohio, we overrule Malicke‘s sixth assignment of error.
{¶ 56} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
LARRY A. JONES, SR., J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE OPINION
LARRY A. JONES, SR., J., CONCURRING IN PART AND DISSENTING IN PART:
{¶ 58} Pursuant to Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 123, a reviewing court should “review those sentences that are imposed after consideration of the factors in
{¶ 59} Thus, under
{¶ 61} After a thorough review of the record, I would find by clear and convincing evidence that the record does not support Malicke‘s sentence.
{¶ 62}
The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
(Emphasis added.)
{¶ 63} A sentence of nine years on each count does not achieve those purposes. Malicke was 16 years old when, at the direction of his mother, he participated in these crimes. The parties, and the court, agreed that, if not for Malicke‘s mother, the crimes probably would have not been committed.
{¶ 64} There is no doubt that a tragedy occurred in this case — a man lost his life. But incarcerating a juvenile for 18 years, or even nine years, will not serve to
{¶ 65} In addition, the court was charged with considering Malicke separate and apart from his brother and mother but also to sentence him consistent with sentences imposed for similar crimes by similar offenders under
{¶ 66} Nor do I believe the record supports the findings pursuant to
{¶ 67} During the sentencing hearing, the court stated that all three defendants’ actions resulted in C.F.‘s death and speculated that if there had been fewer participants, someone who was present in the home could have stopped the beating. This fact alone, however, has nothing to do with the relative seriousness of Malicke‘s individual conduct in this case. The court noted that Malicke was present
{¶ 68} Each defendant was convicted and sentenced; I would find that imputing each defendant‘s conduct to the other defendants as a ground to impose consecutive sentences unfair — the defendants were not charged and convicted as a co-conspirators; they were codefendants. This record does not reflect that the court judged Malicke separate from his mother and brother. In fact, quite the opposite occurred. The court specifically stated: “[The] three of you did it together, you‘re all equally responsible and that‘s the way the Court sees it.”
{¶ 69} Another trouble I have is with the trial court‘s findings that consecutive sentences were necessary to protect the public from future crime by the defendants, and that consecutive sentences were not disproportionate to the danger Malicke poses to the public. Implicit in those findings is a finding that, based on the defendant‘s prior criminal history, he is likely, if not incarcerated to consecutive terms, to offend again. Malicke, however, had no prior record. Thus, on this record, I cannot agree that there exists a need to impose consecutive sentences to protect the public from future crime by Malicke, or that they are not disproportionate to the danger he poses to the public.
{¶ 71} There are other concerns as well. In Ohio, as with the rest of the nation, the overall prison population has skyrocketed in recent decades. In 2016, Ohio had 70,365 people in prison compared to 13,489 inmates in 1980. State by State Data, https://www.sentencingproject.org/the-facts/#map?dataset option=BWR (accessed May 8, 2019). Ohio ranks 15th in the nation in the number of incarcerated individuals. State by State Data, https://www.sentencingproject.org/the-facts/#rankings?dataset-option=SIR (accessed May 8, 2019). In 2015, there were 2,163 juveniles in Ohio prisons. Id.
{¶ 72} The number of people imprisoned for a violent crime increased by over 300% between 1980 and 2009. Nazgol Ghandnoosh, The Next Step: Ending Excessive Punishment for Violent Crimes, https://www.sentencingproject.org/
Although the violent crime rate has plummeted to half of its early 1990s level, the number of people imprisoned for a violent offense grew until 2009, and has since declined by just 3 [percent]. This trend stems from increased prison admissions and sentence lengths, despite evidence that excessive penalties are counterproductive.
Id.
{¶ 73} A growing number of studies have shown that lengthy prison sentences do not make the public safer, in part, because “long-term sentences produce diminishing returns for public safety as individuals ‘age out’ of the high crime years.” Mauer, Long-Term Sentences: Time to Reconsider the Scale of Punishment, 87:1 UMKC.L.Rev. 121 (2018). In other words, the risk an individual may pose to public safety declines with age and each successive year of incarceration is likely to produce diminishing returns for public safety. Id. at 122.
{¶ 74} Under current law, Malicke‘s bindover from juvenile court was mandatory. But the state offered Malicke a plea to attempted murder instead of the plea offered to his adult codefendants, involuntary manslaughter, to prevent his case from returning to juvenile court. The state admitted the plea was designed to keep Malicke in the general division, in spite of the fact that:
[t]ransferring youth to the adult criminal justice system has proven to neither broadly deter youth offending nor to reduce reoffending among those convicted. In fact, a systematic review of scientific studies found increased reoffending among those youth who had been tried as adults compared to those tried as juveniles for similar offenses.
(Citations omitted.) Id.
Compared to adults, [juveniles] are more likely to be harmed by exposure to stress and trauma, but they are also more likely to benefit from rehabilitation. In view of what we know about conditions of confinement in correctional facilities, it‘s no surprise that juveniles who are released from adult facilities are in worse shape, and are more likely to reoffend, than their counterparts with similar criminal histories who are released from facilities designed with adolescents in mind.
Jessica Lahey, The Steep Costs of Keeping Juveniles in Adult Prisons, (Jan. 8, 2016), https://www.theatlantic.com/education/archive/2016/01/the-cost-of-keeping juveniles-in-adult-prisons/423201 (accessed May 13, 2019), citing Steinberg, Laurence, Age of Opportunity: Lessons from the New Science of Adolescence (2014).
{¶ 76} In considering the burden to local and state resources, the costs are staggering. It costs $123,400 a year to confine a juvenile in a juvenile facility and $25,900 a year to house an adult in adult prison.3 (Internal citation omitted.)
{¶ 77} The racial disparities in the prison population also cannot be ignored. In 2014, there were 289 per 100,000 whites in prison versus 1,625 per 100,000 imprisoned blacks.4 Shadow Report to the United Nations on Racial Disparities in the United States Criminal Justice System (Aug. 31, 2013), https://www.sentencingproject.org/publications/shadow-report-to-the-united nations-human-rights-committee-regarding-racial-disparities-in-the-united states-criminal-justice-system (accessed May 8, 2019). “Racial minorities are more likely than white Americans to be arrested; once arrested, they are more likely to be convicted; and once convicted, they are more likely to face stiff sentences.” Id. At
{¶ 78} The disparity is present in juvenile incarceration as well: In 2015, there were 86 to 98 per 100,000 white juveniles in custody and 433 to 560 per 100,000 black juveniles in custody. Joshua Rovner, Racial Disparities in Youth Commitments and Arrests (Apr. 1, 2016), https://www.sentencingproject.org/publications/ racial-disparities-in-youth-commitments-and-arrests (accessed May 8, 2019). Of those juveniles who were in custody in 2015, 44 percent were black, despite the fact that African Americans comprise only 16 percent of all youth in the United States. Black Disparities in Youth Incarceration (Sept. 12, 2017) https://www.sentencingproject.org/wp-content/uploads/2017/09/Black-Disparities-in Youth-Incarceration.pdf (accessed May 8, 2019). Overall, the racial disparity between black and white youth in custody has increased 22 percent since 2001. Id. And of those juveniles bound over to adult court in Ohio, 76% are minorities. Children‘s Law Center, Falling Through the Cracks: A New Look at Ohio Youth in the Adult Criminal Justice System (May 2012), https://static1.squarespace.com/static/571f750f4c2f858e510aa661/t/57d97b37d2b8578c2ccbe572/1473870660296/Falling-Through-The-Cracks-A-New-Look-at-Ohio-Youth-in-the-Adult-Criminal Justice-System-May-2012.pdf (accessed May 13, 2019).
{¶ 79} Racial disparities pervade every facet of our criminal justice system. “Roughly 12% of the United States population is black. Yet in 2011, black Americans
Once minority defendants are convicted, they are likely to be sentenced more harshly than white defendants convicted for similar crimes. As in other areas of the criminal justice system, much overt racial discrimination in the sentencing process has been eliminated over the past decades — yet race remains a significant factor in sentencing decisions.
Id.5
{¶ 80} While the reasons for racial disparity in our criminal justice system are multi-faceted, “a sizable proportion of racial disparities in prison cannot be explained by criminal offending.” Ashley Nellis, The Color of Justice: Racial and Ethnic Disparity in State Prisons (June 14, 2016), https://www.sentencingproject.org/publications/color-of-justice-racial-and-ethnic disparity-in-state-prisons (accessed May 8, 2019). In other words, it is not as simple as stating that there are more blacks in prison because blacks commit more crimes than their white counterparts. Studies show more varied factors such as “policies and practices that drive disparity; the role of implicit bias and stereotypes in decision making; and, structural disadvantages in communities of color which are associated with high rates of offending and arrest.” Id.
{¶ 82} Thus, pursuant to