Lead Opinion
{¶ 1} We decide in this case whether the United States Supreme Court’s holding in Graham v. Florida,
FACTUAL AND PROCEDURAL BACKGROUND
Moore’s Crimes
{¶ 2} The facts of this case do not engender a sense of sympathy for appellant, Brandon Moore. Moore embarked on a criminal rampage of escalating depravity on the evening of August 21, 2001, in Youngstown. He was then 15 years old. Early that evening, Moore robbed at gunpoint Jason Cosa and Christine Hammond in the driveway of Cosa’s home. Cosa and Hammond saw Moore get into an awaiting dark, older automobile as he fled the scene.
{¶ 4} As they were driving, he ordered her to give him her jewelry. After they drove a short distance, Moore stopped the car briefly behind the black car. Chaz Bunch entered the victim’s car through the rear passenger door. Bunch put a gun to her head and demanded her money.
{¶ 5} Moore continued driving, following the black car, which was being driven by Andre Bundy. As Moore drove, he inserted his fingers into M.K’s vagina. M.K. pleaded for her life. At one point, Moore drove close enough to the black car that he almost hit it, jerking to a stop; at that point, the cars were so close that M.K. could make out the black car’s license plate. She memorized the number.
{¶ 6} Eventually, Moore pulled ahead of the black car and drove down a dead-end street. The black car followed. Both cars parked near a gravel lot, and Bunch ordered M.K. out of thе car. Once outside the car, Moore and Bunch assaulted M.K., grabbing her by the hair and forcing their penises into her mouth; one would orally rape her while the other forced her head down. This was repeated two or three times, at gunpoint.
{¶ 7} Moore and Bunch then directed M.K. to the trunk of her car. At this point, another man, Jamar Callier, exited the black car and went through M.K’s belongings in the trunk. M.K. was told to pull her pants down and turn around. M.K. resisted, and in an attempt to avoid any further violence, told the attackers she was pregnant (she was not, in' fact, pregnant). But they showed no mercy; Moore and Bunch pushed her against the car, and at least one of them anally raped her.
{¶ 8} After the anal rape, Bunch threw M.K. to the ground, and he and Moore proceeded to vaginally and orally rape her. While one raped her vaginally, the other would force his penis into her mouth, and they would then switch places. Both were armed during the rapes.
{¶ 9} The attack finally ended when Callier pushed Bunch off M.K. Bunch said that he wanted to kill M.K., but Callier would not let him, telling Bunch that he could not kill a pregnant woman. Moore put his gun into M.K’s mouth and told
{¶ 10} Hysterical, M.K. got back into her car and drove immediately to the home of a relative of her boyfriend, where she had been attending a cookout before leaving to go to work. She arrived back at the party, got out of her car, and ran through the yard, screaming for help. When people came to her aid, she immediately yelled out the license-plate number she had memorized. Based on the license-plate number, police were eventually able to arrest all four people involved in the attack on M.K.
{¶ 11} In her testimony at trial, M.K. described the effect of the attack on her life: “[T]hey killed a part of me. They killed a part of my [soul] that I can never get back.”
Moore’s Convictions
{¶ 12} After Moore was taken into custody, juvenile proceedings were initiated against him. The case was transferred to the General Division of the Mahoning County Court of Common Pleas; a 12-count complaint with 11 firearm specifications was filed against Moore on May 16, 2002, for the crimes committed against Jason Cosa, Christine Hammond, and M.K. The complaint included three counts of aggravated robbery in violation of R.C. 2911.01(A)(1), three counts of rape in violation of R.C. 2907.02(A)(2), three counts of complicity to commit rape in violation of R.C. 2923.03(A)(2) and '2907.02(A)(2), one count of kidnаpping in violation of R.C. 2905.01(A)(4), one count of conspiracy to commit aggravated robbery in violation of R.C. 2923.01(A)(1) and 2911.01(A)(1), and one count of aggravated menacing in violation of R.C. 2903.21(A).
{¶ 13} Moore, Bunch, and Bundy were tried together. The trial began on September 23, 2002. On October 2, 2002, the jury found Moore guilty of all 12 counts and all the specifications. At the October 23, 2002 sentencing hearing, the trial court concluded that Moore “[could not] be rehabilitated, that it would be a waste of time and money and common sense to even give it a try.” The court announced to Moore, “I want to make sure you never get out of the penitentiary, and I’m going to make sure that you never get out of the penitentiary.” It sentenced Moore to the maximum prison term for each count, to be served consecutively, except for the menacing charge, which was to be served concurrently with the other sentences. The court also sentenced Moore to a prison term for each of the 11 firearm specifications, also to be served consecutively. The sentence totaled 141 years in prison.
{¶ 14} Moore’s appellate history is lengthy and knotty. We untangle it enough to establish the relevant through-line for purposes of the present appeal from the court of appeals’ denial of Moore’s application for reconsideration in his third direct appeal.
{¶ 15} In Moore’s first appeal, State v. Moore,
{¶ 16} On September 7, 2005, the trial court, on remand, resentenced Moore according to the appellate court’s instruction. The new sentence totaled 112 years. Moore appealed again, and in State v. Moore, 7th Dist. Mahoning No. 05 MA 178,
{¶ 17} On February 5, 2008, the trial court resentenced Moore to the aggregate 112-year рrison term. The judge told Moore at the sentencing hearing, “[I]t is the intention of this court that you should never be released from the penitentiary.”
{¶ 18} Moore’s appeal from that sentence is' the root of the present appeal. Moore appealed his resentencing, but his court-appointed counsel filed a brief pursuant to Anders v. California,
{¶ 19} In the meantime, Moore pursued other avenues of relief, and in that branch of his appellate history, first sought relief based on Graham,
{¶ 20} On April 20, 2010, the trial court issued a nunc pro tunc sentencing entry that complied with Crim.R. 32(C). On May 17, 2010, the United States Supreme Court decided Graham, holding that “for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.” Graham at 74. That same day, Moore filed a notice of appeal from the trial court’s nunc pro tunc entry; in his brief in support filed December 9, 2010, Moore raised several issues, including that pursuant to Graham, his 112-year sentence violated the Eighth Amendment to the United States Constitution.
{¶ 21} Diming the pendency of that appeal, this court held in State v. Lester,
{¶ 22} On September 16, 2013, about a month after gaining new counsel, Moore filed an application for delayed reconsideration of the court of appeals’ decision in
{¶ 23} A divided court denied Moore’s application. The majority’s two-paragraph opinion cited its judgment entries denying similar applications in State v. Bunch, 7th Dist. Mahoning No. 06 MA 106 (Aug. 8, 2013), which involved one of Moore’s codefendants, and State v. Barnette, 7th Dist. Mahoning No. 06 MA 135 (Sept. 16, 2013). State v. Moore, 7th Dist. Mahoning No. 08 MA 20,
{¶ 24} In Bunch, the court first considered the timeliness of the application for reconsideration under App.R. 26(A)(1); the decision appealed from had been announced in 2007, but Bunch’s application was not filed until 2013. Since the application was untimely, the court next considered whether Bunch had shown extraordinary circumstances meriting an enlargement of the time to request reconsideration pursuant to App.R. 14(B). Ultimately, the court held that Bunch had failed to show extraordinary circumstances, for two reasons.
{¶ 25} First, the court looked to the delay from the date of the Graham decision to the date the application for reconsideration was filed, a period of almost three years: “The almost three year delay in filing the application for reconsideration and motion to enlarge time does not lend support for a finding of extraordinary circumstances. Had the application and motion been filed more closely in time to the Graham decision it could support a finding of extraordinary circumstances.” Bunch at 3.
{¶26} Second, and “most important,” the court stated that “when appellate courts have found extraordinary circumstances based on binding decisions from higher courts, they have done so when the higher court’s case is directly on point.” Id. The court explained, “The basis for this reasoning is that appellate
{¶ 27} The court in Bunch pointed out that both Graham and Miller concerned cases that “were based specifically on life sentences without the possibility of parole; they were not based on ‘de facto’ life sentences.” Id. at 4. Thus, according to the court, although Bunch was a juvenile when he committed his crimes and his fixed-term sentence was 89 years, the fact that his sentence may be considered a “de facto” life sentence meant that his case was not directly on point with Graham or Miller. Further, the court stated that “as of yet, no Ohio Supreme Court or United States Supreme Court decision has extended the Graham or Miller holding to ‘de facto’ life sentences.” Id.
{¶ 28} The other decision the court cited in rejecting Moore’s application for reconsideration, Barnette (another case in which the appellant sought reconsideration of a 2007 decision in 2013), contained reasoning and language virtually identical to the court’s decision in Bunch.
{¶ 29} Moore appealed the denial of his application for reconsideration to this court. The cause is before this court upon the acceptance of a discretionary appeal.
LAW AND ANALYSIS
Moore’s Sentence
{¶ 30} To begin, we establish the potential prison term we are addressing in this case. Moore accepts the state’s interpretation of the effect of R.C. 2929.20(C)(5) on his 112-year sentence; under that interpretation, Moore would become eligible to file a motion for judicial release after serving 77 years of his sentence. R.C. 2929.20(C)(5) allows an offender to seek judicial release five years after the completion of the mandatory portions of the offender’s sentence. Moore’s six ten-year sentences relating to rape are mandatory, R.C. 2929.13(F), as are his four three-year sentences under the gun specifications, R.C. 2941.145. Moore would have to serve five additional years beyond the mandatory 72 years, for a total of 77 years, before becoming eligible to seek judicial release. Moore would thus be 92 years old before he would have his first chance to move a court for release. There is no dispute that his life expectancy falls well short of 92 years. A male who was 15 years of age in 2002 had a life expectancy of an
Proportionality Review
{¶ 31} The Eighth Amendment to the United States Constitution states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” A key component of the Constitution’s prohibition against cruel and unusual punishment is the “precept of justice that punishment for crime should be graduated and proportioned to [the] offense.” Weems v. United States,
{¶ 32} There are two classifications of proportionality review—one involving the length of term-of-years sentences given in a particular case and the other involving categorical restrictions. In this case, we deal with a categorical restriction. Within that classification, there are two subsets. One subset considers the nature of the offense—for example, in Kennedy v. Louisiana,
{¶ 33} In recent years, the United States Supreme Court has established categorical prohibitions of certain punishments for juveniles, pursuant to the Eighth Amendment. In Roper v. Simmons,
{¶ 34} Our focus in this case is Graham. The court did not address in Graham whether a term-of-years prison sentence that extends beyond an offender’s life
Graham
{¶ 35} Graham held that sentences of life imprisonment without parole for juvenile nonhomicide offenders were cruel and unusual in violation of the Eighth Amendment in light of three factors—the limited moral culpability of juvenile nonhomicide offenders, the inadequacy of penological theory justifying the length of life-without-parole sentences for such offenders, and the severity of life-without-parole sentences. Graham at 74.
{¶ 36} First, the court explained in Graham that a juvenile who did not kill or intend to kill has “twice diminished moral culpability” based on two factors: the nature of the crime and the juvenile’s age. Id. at 69. As for the nature of the crime, the court found that “[although an offense like robbery or rape is ‘a serious crime deserving serious punishment,’ Enmund [v. Florida,
{¶ 37} In addition, juveniles are less morally culpable than adults due to their youth and what comes with it:
[Roper and Graham] relied on three significant gaps between juveniles and adults. First, children have a “ ‘lack of maturity and an underdeveloped sense of responsibility,’ ” leading to recklessness, impulsivity, and heedless risk-taking. Roper,543 U.S., at 569 ,125 S.Ct. 1183 . Second, children “are more vulnerable * * * to negative influences and outside pressures,” including from their family and peers; they have limited “contro[l] over their own environment” and lack the ability to extricate themselves from horrific, crime-producing settings. Ibid. And third, a child’s character is not as “well formed” as an adult’s; his traits are “less fixed” and his actions less likely to be “evidence of irretrievable] depravity].” Id., at 570,125 S.Ct. 1183 .
(Ellipsis sic.) Miller,
{¶ 38} Because of the characteristics of youth, a depraved crime committed by a juvenile may not be indicative of an irredeemable individual.
These salient characteristics mean that “[i]t is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption.” [Roper] at 573, 125 S.Ct. 1183 . Accordingly, “juvenile offenders cannot with reliability be classified among the worst offenders.” Id., at 569,125 S.Ct. 1183 . A juvenile is not absolved of responsibility for his actions, but his transgression “is not as morally reprehensible as that of an adult.” Thompson [v. Oklahoma,487 U.S. 815 ] 835,108 S.Ct. 2687 , [101 L.Ed.2d 702 (1988)] (plurality opinion).
Graham,
{¶ 39} The inherently diminished moral culpability and other characteristics of juvenile offenders means that the recognized, legitimate goals of penal sanctions'—-retribution, deterrence, incapacitation, and rehabilitation—do not justify the imposition of the harshest penalties on juveniles who have committed nonhomicide crimes:
Roper and Graham emphasized that the distinctive attributes of youth diminish the penological justifications for imposing the harshest sentences on juvenile offenders, even when they commit terrible crimes. Because “ ‘[t]he heart of the retribution rationale’ ” relates to an offender’s blameworthiness, “ ‘the case for retribution is not as strong with a minor as with an adult.’ ” Graham,560 U.S., at 71 ,130 S.Ct., at 2028 (quoting Tison v. Arizona,481 U.S. 137 , 149,107 S.Ct. 1676 ,95 L.Ed.2d 127 (1987); Roper,543 U.S., at 571 ,125 S.Ct. 1183 ). Nor can deterrence do the work in this context, because “ ‘the same characteristics that render juveniles less culpable than adults’ ”—their immaturity, recklessness, and impetuosity— make them less likely to consider potential punishment. Graham,560 U.S., at 72 ,130 S.Ct., at 2028 (quoting Roper,543 U.S., at 571 ,125 S.Ct. 1183 ). Similarly, incapacitation could not support the life-without-parole sentence in Graham: Deciding that a “juvenile offender forever will be a danger to society” would require “mak[ing] a judgment that [he] is incorrigible”—but “ ‘incorrigibility is inconsistent with youth.’ ”560 U.S., at 72-73 ,130 S.Ct., at 2029 (quoting Workman v. Commonwealth,429 S.W.2d 374 , 378 (Ky.App.1968)). And for the same reason, rehabilitation could not justify that sentence. Life without parole “forswears altogether the rehabilitative ideal.” Graham,560 U.S., at 74 ,130 S.Ct., at 2030 . It reflects “an irrevocable judgment about [an offender’s] value and place in society,” at odds with a child’s capacity for change. Ibid.
{¶ 40} The severity of the life-without-parole penalty also formed part of the basis of the court’s decision in Graham. Graham explained that life-without-parole sentences are harsher when imposed on juveniles than when they are imposed on older defendants:
Life without parole is an especially harsh punishment for a juvenile. Under this sentence a juvenile offender will on average serve more years and a greater percentage of his life in prison than an adult offender. A 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only. * * * This reality cannot be ignored.
Graham at 70-71.
{¶ 41} The imposition of the most severe penalties on juveniles is contrary to what the court described in Miller,
{¶ 42} The most important attribute of the juvenile offender is the potential for change. Graham relates the difficulty in determining whether the commission of a crime is the result of immaturity or of irredeemable corruption. And so Graham protects juveniles categorically from a final determination while they are still youths that they are irreparably corrupt and undeserving of a chance to reenter society. “It remains true that ‘[fjrom a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.’ ” Graham,
{¶ 43} That is why Graham recognizes that although an offender convicted as a juvenile can ultimately spend a lifetime in jail, the offender has to be given a chance at some point to prove himself worthy of reentering society. A sentence must not “den[y] the juvenile offender a chance to demonstrate growth and maturity. Incapacitation cannot override all other considerations, lest the Eighth Amendment’s rule against disproportionate sentences be a nullity.” Id. at 73.
{¶ 44} Still, Graham does not foreclose the possibility that a defendant who commits a heinous crime as a youth will indeed spend his entire remaining
{¶ 45} Again, the state retains the ability, upon a meaningful evaluation of an offender who committed a nonhomicide as a juvenile, to impose lifetime incarceration upon the most serious offenders. “The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does prohibit States from making the judgment at the outset that those offenders never will be fit to reenter society.” Graham,
{¶ 46} The court in Graham did not establish a limit to how long a juvenile can remain imprisoned before getting the chance to demonstrate maturity and rehabilitation. But it is clear that the court intended more than to simply allow juveniles-turned-nonagenarians the oppоrtunity to breathe their last breaths as free people. The intent was not to eventually allow juvenile offenders the opportunity to leave prison in order to die but to live part of their lives in society. The court stated in Montgomery, a case involving a defendant who had been convicted of murder as a juvenile,
In light of what this Court has said in Roper, Graham, and Miller about how children are constitutionally different from adults in their level of culpability, * * * prisoners like Montgomery must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored.
Montgomery, — U.S. -,
{¶ 47} It does not take an entire lifetime for a juvenile offender to earn a first chance to demonstrate that he is not irredeemable. Pursuant to Graham, the Eighth Amendment prohibits the imposition of a sentence that denies a juvenile some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.
Applying Graham
Term-of-Years Sentences
{¶ 48} The state argues that Graham applies only to juvenile offenders sentenced to life imprisonment without parole for a nonhomicide offense. Al
{¶ 49} Graham cited the lessened moral culpability of juvenile offenders, the severity of the sentence, and the inapplicability of penological justifications for life sentences for juveniles as reasons for declaring life sentences for juvenile nonhomicide offenders unconstitutional under the Eighth Amendment. Those same factors apply to term-of-years prison sentences that exceed a juvenile offender’s expected lifespan.
{¶ 50} As in Graham, in this case the defendant was convicted of nonhomicide offenses that he committed as a juvenile and thus has twice-diminished moral culpability. That is the overriding element in this case. As the court stated in Miller, “[Cjhildren are different,” and “ ‘ “[o]ur history is replete with laws and judicial recognition” that children cannot be viewed simply as miniature adults.’ J.D.B. [v. North Carolina], 564 U.S. [261], at 274,
{¶ 51} The protections in Graham flow from the defendant’s juvenile status. The question we must consider is whether, under Graham, there is a consequential distinction between the life sentence imposed in Graham and the sentence imposed in this ease, which extends beyond Moore’s life expectancy.
{¶ 52} Did the trial court sentence Moore to life in prison? Undoubtedly, that was the aim of the sentencing court, as reflected in its statements at sentencing— “I want to make sure you never get out of the penitentiary, and I’m going to mаke sure that you never get out of the penitentiary”—and at resentencing— “[I]t is the intention of this court that you should never be released from the penitentiary.” The fact that Moore could survive his current sentence is not outside the realm of possibility; Moore accepts the state’s interpretation of R.C. 2929.20(C)(5), under which he would become eligible to file a motion for judicial release after serving 77 years of his sentence. Still, Moore would be 92 years old, well beyond his life expectancy, before he would have his first chance to move the court for release.
{¶ 53} Graham discusses the fact that under a life-without-parole sentence, a juvenile offender “will on average serve more years and a greater percentage of his life in prison than an adult offender.” Graham,
{¶ 54} In Sumner v. Shuman,
{¶ 55} The court held in Graham that life-without-parole sentences lacked penological justification when imposed on juvenile nonhomicide offenders. If “none of the goals of penal sanctions that have been recognized as legitimate— retribution, deterrence, incapacitation, and rehabilitation * * *—provides an adequate justification” for imposing a life-without-parole sentence on a juvenile nonhomicide offender, Graham at 71, then a term-of-years sentence that extends beyond a juvenile nonhomicide offender’s expected lifespan does not have peno-logical justification either. As the court held in Graham, retribution is related to the moral culpability of the offender; retribution does not justify imposing on a person with twice-diminished moral culpability a sentence that is the most severe in terms of years served that a state can impose.
{¶ 56} Deterrence is also insufficient to justify the practice of imposing a sentence on a juvenile that extends past his life expectancy. Graham held that “[djeterrence does not suffice to justify” a life sentence: “Because juveniles’ ‘lack of maturity and underdeveloped sense of responsibility * * * often result in impetuous and ill-considered actions and decisions,’ Johnson v. Texas,
{¶ 58} Finally, as far as rehabilitation is concerned, like a life-without-parole sentence, a term-of-years sentence that extends beyond a juvenile’s life expectancy “forswears altogether the rehabilitative ideal. By denying the defendant the right to reenter the community, the State makes an irrevocable judgment about that person’s value and place in society. This judgment is not appropriate in light of a juvenile nonhomicide offender’s capacity for change and limited moral culpability.” Id. at 74.
{¶ 59} The sentence imposed on Moore is functionally a life sentence. We see no significant difference between a sentence of life imprisonment without parole and a term-of-years prison sentence that would extend beyond the defendant’s expected lifespan before the possibility of parole. The court in Graham was not barring a terminology—“life without parole”—but rather a punishment that removes a juvenile from society without a meaningful chance to demonstrate rehabilitation and obtain release. The state may not impose at the outset its harshest sentences on a person -with twice-diminished moral culpability.
{¶ 60} It makes little sense that a juvenile offender sentenced to prison for life without parole would get a chance, pursuant to Graham, to prove his or her rehabilitation and be released but a juvenile offender sentenced to a functional life term would not. Could a court that imposed an unconstitutional life-without-parole sentence on a juvenile offender correct Eighth Amendment deficiencies upon remand by resentencing the defendant to a term-of-years sentence when parole would be unavailable until after the natural life expectancy of the defendant? Certainly not.
{¶ 61} Further, the United States Supreme Court has all but abolished life-without-parole sentences even for those juveniles who commit homicide:
Miller did not go so far as to bar courts from imposing the sentence of life without the possibility of parole on a juvenile. Yet because of the severity of that penalty, and because youth and its attendant circumstances are strong mitigating factors, that sentence should rarely be imposed on juveniles.
{¶ 62} Under his current sentence, Moore would probably die in prison. If he did survive the 77 years that he is required to serve, his period of incarceration likely would be among the longest ever served in Ohio. That would be the case despite the fact that he did not commit the ultimate crime of murder and was not fully formed when he committed his nonhomicide crimes. The “imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.” Miller at 474. Because Moore was a child when he committed his crimes, he must be treated differently, pursuant to Graham. The key principle in Graham is that the commission of a nonhomicide offense in childhood should not preclude the offender from the opportunity to someday demonstrate that he is worthy to reenter society: “The Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide. A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term.” Graham,
{¶ 63} It is consistent with Graham to conclude that a term-of-years prison sentence extending beyond a juvenile defendant’s life expectancy does not provide a realistic opportunity to obtain release before the end of the term. Graham decried the fact that the defendant in that case would have no opportunity to obtain release “even if he spends the next half century attempting to atone for his crimes and learn from his mistakes.” Id. at 79. Certainly, the court envisioned that any nonhomicide juvenile offender would gain an opportunity to obtain release sooner than after three-quarters of a century in prison. Graham is less concerned about how many years an offender serves in the long term than it is about the offender having an opportunity to seek release while it is still meaningful.
{¶ 64} We determine that pursuant to Graham, a sentence that results in a juvenile defendant serving 77 years before a court could for the first time consider based on demonstrated maturity and rehabilitation whether that defen
Multiple Offenses
{¶ 65} The state also argues that Graham does not extend to juveniles sentenced to lengthy prison terms consisting of multiple, consecutive fixed-term sentences for nonhomicide offenses. The state argues that in Graham, the court simply held that the Eighth Amendment forbids the sentence of life imprisonment without parole for juvenile offenders who commit a single nonhomicide offense. We reject that argument.
{¶ 66} We note at the outset that the defendant in Graham had committed multiple offenses. When Graham was 16 years old, he and an accomplice entered a restaurant at closing time with the intent to rob it; the accomplice hit the restaurant manager in the back of the head with a metal bar, causing a head injury that required stitches. Graham wаs charged as an adult with armed burglary with assault or battery, a first-degree felony carrying a maximum penalty of life imprisonment without the possibility of parole, and attempted armed robbery, a second-degree felony carrying a maximum penalty of 15 years’ imprisonment. He pleaded guilty to both charges under a plea agreement. The trial court withheld adjudication of guilt and sentenced Graham to three years’ probation, the first year of which had to be spent in the county jail. Graham,
{¶ 67} Less than six months after his release from jail, Graham was involved in an armed home-invasion robbery. Later that same evening, he and his accomplices attempted another home invasion, and an accomplice was shot. Graham later admitted to police that he had been involved in two or three other robberies before that night. Id. at 54-55.
{¶ 68} The trial court found that Graham had violated his probation by committing a home-invasion robbery, by possessing a firearm, and by associating with persons engaged in criminal activity. Id. at 55. Citing an “escalating pattern of criminal conduct” and a desire to protect the community, the trial court sentenced Graham to the maximum sentence on each of the two original charges—life on the first charge and 15 years on the second. Id. at 57.
{¶ 69} The Supreme Court in Graham acknowledged that Graham committed serious crimes early on in his period of supervised release, “posed an immediate risk,” and deserved to be separated from society “in order to prevent what the trial court described as an ‘escalating pattern of criminal conduct.’ ” Id. at 73. In full recognition of the multiple crimes that Graham committed, the court conclud
{¶ 70} The court created “a clear line * * * necessary to prevent the possibility that life without parole sentences will be imposed on juvenile nonhomicide offenders who are not sufficiently culpable to merit that punishment.” Id. Graham enunciated “a categorical rule [that] gives all juvenile nonhomicide offenders a chance to demonstrate maturity and reform.” Id. at 79. It did not limit that holding to juveniles who were sentenced for only one offense.
{¶ 71} Instead, the protections in Graham apply to juvenilеs who do not commit homicide. Moore fits that description. The court specifically rejected a case-by-case approach that would have required courts “to take the offender’s age into consideration as part of a case-specific gross disproportionality inquiry, weighing it against the seriousness of the crime.” Id. at 77. The court admitted that “[t]his approach would allow courts to account for factual differences between cases and to impose life without parole sentences for particularly heinous crimes.” Id.
{¶ 72} In adopting a categorical approach, the court specifically rejected proportionality review on a case-by-case basis because “it does not follow that courts taking a case-by-case proportionality approach could with sufficient accuracy distinguish the few incorrigible juvenile offenders from the many that have the capacity for change.” Id. The court in Roper had held that simply considering youth as a mitigating factor was insufficient because of an “unacceptable likelihood * * * that the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the juvenile offender’s objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe than death.” Roper,
{¶ 74} We conclude that the Eighth Amendment prohibition of life imprisonment without parole or its practical equivalent for juvenile offenders is not limited to juveniles who commit a single nonhomicide offense.
Consistency with Other States
{¶ 75} Our holding is consistent with those of other high courts that have held that for purposes of applying the Eighth Amendment protections set forth in Graham and Miller, there is no meaningful distinction between sentences of life imprisonment without parole and prison sentences that extend beyond a juvenile’s life expectancy.
{¶ 76} In People v. Caballero,
{¶ 77} In Henry v. State,
Thus, we believe that the Graham Court had no intention of limiting its new categorical rule to sentences denominated under the exclusive term of “life in prison.” Instead, we have determined that Graham applies to ensure that juvenile nonhomicide offenders will not be sentenced to terms of imprisonment without affording them a meaningful opportunity for early release based on a demonstration of maturity and rehabilitation.
Henry at 679-680, citing Graham at 75.
{¶ 78} Henry held that the Constitution requires a mechanism for review of lengthy sentences given to juvenile offenders:
In light of Graham, and other Supreme Court precedent, we conclude that the Eighth Amеndment will not tolerate prison sentences that lack a review mechanism for evaluating this special class of offenders for demonstrable maturity and reform in the future because any term of imprisonment for a juvenile is qualitatively different than a comparable period of incarceration is for an adult.
Henry at 680.
{¶ 79} In State ex rel. Morgan v. State,
{¶ 80} The Iowa Supreme Court in State v. Ragland,
The spirit of the, constitutional mandates of Miller and Graham instruct that much more is at stake in the sentencing of juveniles than merely-making sure that parole is possible. In light of our increased understanding of the decision making of youths, the sentencing process must be tailored to account in a meaningful way for the attributes of juveniles that are distinct from adult conduct. At the core of all of this also lies the profound sense of what a person loses by beginning to serve a lifetime of incarceration as a youth.
Ragland at 121. Ragland held that Miller’s requirement of individualized sentencing consideration for youths facing life-without-parole sentences also “applies to sentences that are the functional equivalent of life without parole.” Ragland at 121-122.
{¶ 81} In Null, another murder case, the court addressed the defendant’s minimum sentence of 52.5 years. The court stated that “[e]ven if lesser sentences than life without parole might be less problematic, we do not regard the juvenile’s potential future release in his or her late sixties after a half century of incarceration sufficient to escape the rationales of Graham or Miller.” Null at 71. The court recognized that the likelihood of simply surviving a sentence does not provide the protection to juvenile offenders envisioned by Graham: “The prospect of geriatric release, if one is to be afforded the opportunity for release at all, does not provide a ‘meaningful opportunity’ to demonstrate the ‘maturity and rehabilitation’ required to obtain release and reenter society as required by Graham, 560 U.S. at [75],
{¶ 82} Moreover, Null made clear that courts should not undertake fine line-drawing to determine how close to the mark a sentencing court can come to a defendant’s life expectancy: “[W]e do not believe the determination of whether the principles of Miller or Graham apply in a given case should turn on the niceties of epidemiology, genetic analysis, or actuarial sciences in determining precise mortality dates.” Null at 71. The important factor, instead, is the recognition that children have lessened moral culpability and are redeemable and so must be given a chance to demonstrate the change they have undergone since committing their crimes:
In coming to this conclusion, we note the repeated emphasis of the Supreme Court in Roper, Graham, and Miller of the lessened culpability of juvenile offenders, how difficult it is to determine which juvenileoffender is one of the very few that is irredeemable, and the importance of a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Graham, 560 U.S. at [75], 130 S.Ct. at 2030 ,176 L.Ed.2d at 845-46 . We also note that in the flurry of legislative action that has taken place in the wake of Graham and Miller, many of the new statutes have allowed parole eligibility for juveniles sentenced to long prison terms for homicides to begin after fifteen or twenty-five years of incarceration.
Null at 71-72.
{¶ 83} Similarly, the Wyoming Supreme Court has held that “a lengthy aggregate sentence for closely-related crimes whose practical effect is that the juvenile offender will spend his lifetime in prison triggers the Eighth Amendment protections set forth by the United States Supreme Court in Miller.” Bear Cloud v. State,
The United States Supreme Court’s Eighth Amendment jurisprudence requires that a process be followed before we make the judgment that juvenile “offenders never will be fit to reenter society.” Graham,560 U.S. at 75 ,130 S.Ct. at 2030 . That process must be applied to the entire sentencing package, when the sentence is life without parole, or when aggregate sentences result in the functional equivalent of life without parole.
Bear Cloud at ¶ 37.
{¶ 84} In Casiano v. Commr. of Corr.,
A juvenile offender is typically put behind bars before he has had the chance to exercise the rights and responsibilities of adulthood, such as establishing a career, marrying, raising a family, or voting. Even assuming the juvenile offender does live to be released, after a half century of incarceration, he will have irreparably lost the opportunity to engage meaningfully in many of these activities and will be left with seriously diminished prospects for his quality of life for the few years he has left. Ajuvenile offender’s release when he is in his late sixties comes at an age when the law presumes that he no longer has productive employment prospects. * * *
The United States Supreme Court viewed the concept of “life” in Miller and Graham more broadly than biological survival; it implicitly endorsed the notion that an individual is effectively incarcerated for “life” if he will have no opportunity to truly reenter society or have any meaningful life outside of prison.
Casiano at 78. Thus, the court held that the imposition of a 50-year sentence— like the life-without-parole sentence in Miller—required the trial court to “engage in an individualized sentencing process that accounts for the mitigating circumstances of youth and its attendant characteristics.” Casiano at 59.
{¶ 85} In People v. Reyes,
A mandatory term-of-years sentence that cannot be served in one lifetime has the same practical effect on a juvenile defendant’s life as would an actual mandatory sentence of life without parole—in either situation, the juvenile will die in prison. Miller makes clear that a juvenile may not be sentenced to a mandatory, unsurvivable prison term without first considering in mitigation his youth, immaturity, and potential for rehabilitation. * * * Accordingly, we hold that sentencing a juvenile offender to a mandatory term of years that is the functional equivalent of life without the possibility of parole constitutes cruel and unusual punishment in violation of the eighth amendment.
Reyes at ¶ 9.
{¶ 86} We agree with these other state high courts that have held that for purposes of applying the Eighth Amendment protections discussed in Graham and Miller, there is no distinction between life-without-parole sentences for juveniles and term-of-years sentences that leave a juvenile offender without a meaningful opportunity to demonstrate rehabilitation and growth leading to possible early release within the juvenile offender’s expected lifespan.
Procedure
{¶ 88} Graham’s prohibition on sentences of life imprisonment without parole for juvenile nonhomicide offenders also applies to prison sentences that are the functional equivalent of life sentences. But is Moore procedurally able to gain the protection of the Eighth Amendment at this stage of his proceedings? He asks this court to overturn the court of appeals’ refusal to grant reconsideration of its March 24, 2009 decision affirming his 112-year sentence. Graham was decided on May 17, 2010. Moore filed his application for reconsideration on September 16, 2013.
{¶ 89} App.R. 26(A)(1) allows parties ten days to move an appellate court for reconsideration of a decision: “Application for reconsideration of any cause or motion submitted on appeal shall be made in writing no later than ten days after the clerk has both mailed to the parties the judgment or order in question and made a note on the docket of the mailing as required by App.R. 30(A).” But under App.R. 14(B), the appellate court may expand or contract any time period set forth in the Appellate Rules, and the rule specifically allows a court to extend the time period for seeking reconsideration “on a showing of extraordinary circumstances.” App.R. 14(B) reads:
For good cause shown, the court, upon motion, may enlarge or reduce the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of the prescribed time. * * * Enlargement of time to file an application for reconsideration or for en banc consideration pursuant to App.R. 26(A) shall not be granted except on a showing of extraordinary circumstances.
{¶ 90} Thus, the court below had the authority to grant Moore an extension of time to file his application for reconsideration if he showed “extraordinary circumstances.” Ohio appellate courts have granted applications for delayed reconsideration well over a year after the issuance of the original decision, citing subsequent decisions of this court as providing the required extraordinary circumstances. See, e.g., State v. Finley, 1st Dist. Hamilton No. C-061052,
{¶ 91} The court below denied Moore’s application for reconsideration based on its earlier decisions in Bunch, 7th Dist. Mahoning No. 06 MA 106, and Barnette, 7th Dist. Mahoning No. 06 MA 135. The court cited identical reasons for denying applications for reconsideration in Bunch and Barnette; both cases are inapplicable here.
{¶ 92} First, the court in Bunch and Barnette relied in part on the three-year lag time in both cases between the announcement of Graham and the filing of the application for reconsideration in state court. In Bunch, the court noted that Bunch had promptly raised Graham in his federal appeals but not in Ohio courts. The court wrote, “Had the application and motion been filed more closely in time to the Graham decision it could support a finding of extraordinary circumstances.” Bunch at 3.
{¶ 93} Moore, on the other hand, first attempted to raise Graham in Ohio courts on the same day Graham was decided. He filed a notice of appeal from the trial court’s April 20, 2010 nunc pro tunc sentencing entry on May 17, 2010, the same day Graham was announced; in his merit brief—filed in December 2010 after he had procured appointed counsel—he raised the issue that Graham prohibited his lengthy sentence. That appeal was not dismissed until November 2011. Despite the fact that the court dismissed the appeal for lack of a final, appealable order, the court added in dicta that Moore’s Graham-based argument was “barred in this case by the doctrine of res judicata” and “is one more
{¶ 94} So, unlike the appellants in Bunch and Barnette, Moore did attempt to raise Graham in state court contemporaneously with its release but was discouraged from pursuing relief on that basis in dicta by the court of appeals. Once Moore obtained new counsel, however, in September 2013, he filed an application for reconsidеration raising Graham just over a month later.
{¶ 95} Even so, the delay in filing was the less significant reason cited by the court for rejecting the applications for reconsideration in Bunch and Barnette. The court in both cases wrote that the more important reason was that “when appellate courts have found extraordinary circumstances based on binding decisions from higher courts, they have done so when the higher court’s case is directly on point,” Bunch at 3, citing State v. Lawson,
{¶ 96} For the reasons discussed above, we have established that Moore’s case is controlled by Graham and that there is no meaningful distinction between the two cases. A defendant convicted of crimes he committed as a juvenile cannot at the outset be sentenced to a lifetime in prison—whether labeled “life in prison without parole” or consisting of a term of years extending beyond the defendant’s life expectancy—without having a meaningful opportunity to establish maturity and rehabilitation justifying release.
{¶ 97} Generally, a new decision does not apply to convictions that were final when the decision was announced. But “courts must give retroactive effect to new substantive rules of constitutional law. Substantive rules include * * * ‘rules prohibiting a certain category of punishment for a class of defendants because of their status or offense.’ ” Montgomery, — U.S. -,
{¶ 98} In Montgomery, the court held that “when a new substantive rule of constitutional law controls the outcome of a case, the Constitution requires state collateral-review courts to give retroactive effect to that rule.” Id. at —,
{¶ 99} This court has applied an abuse-of-discretion standard in reviewing an appellate court’s decision regarding an application for reconsideration. Reichert v. Ingersoll,
CONCLUSION
{¶ 100} We hold in this case that Graham’s categorical prohibition of sentences of life imprisonment without the possibility of parole for juveniles who commit nonhomicide crimes applies to juvenile nonhomicide offenders who are sentenced to term-of-years sentences that exceed their life expectancies. The court of appeals abused its discretion in failing to grant Moore’s application for reconsideration. The 112-year sentence the trial court imposed on Moore violates the Eighth Amendment’s prohibition against cruel and unusual punishments. We reverse the judgment of the court of appeals and vacate Moore’s sentence, and we remand the cause to the trial court for resentencing in conformity with Graham.
Judgment reversed and cause remanded.
Concurrence Opinion
concurring.
{¶ 101} I fully concur in the majority opinion’s holding that Graham v. Florida,
ANALYSIS
{¶ 102} The' first dissenting opinion would hold on both procedural and substantive grounds that the appeal is meritless. The second dissenting opinion also suggests that the cause is not properly before us but does not reach the merits of the claims raised by appellant, Brandon Moore, even though the propriety of the procedural analysis turns largely on the substantive analysis of whether extraordinary circumstances warrant allowing an application for delayed reconsideration. However framed, both dissenting opinions ultimately assert that the Seventh District Court of Appeals in this case did not abuse its discretion in denying Moore’s application because, at the time of that decision, there purportedly was ample authority for the notion that Graham did not apply to lengthy term-of-years sentences. But the authority on which the dissenting justices rely is less compelling than the dissenting justices suggest.
The standard for granting an application for delayed reconsideration
{¶ 103} “ ‘App.R. 26 provides a mechanism by which a party may prevent miscarriages of justice that could arise when an appellate court makes an obvious error or renders an unsupportable decision under the law.’ ” Corporex Dev. & Constr. Mgt., Inc. v. Shook, Inc., 10th Dist. Franklin No. 03AP-269,
{¶ 104} The plain language of App.R. 14(B) permits a court to enlarge the time to reconsider a judgment under App.R. 26(A)(1) upon a showing of extraordinаry circumstances. Although the extraordinary-circumstances standard is a limited one, Ohio courts have recognized those circumstances in three categories of cases.
{¶ 105} In the first category, the Seventh District has held that omissions in records can constitute an extraordinary circumstance warranting delayed reconsideration. See, e.g., Deutsche Bank Natl. Trust Co. v. Knox, 7th Dist. Belmont No. 09-BE-4,
{¶ 106} The second category of cases features the announcement of a new rule of law that applies directly to a pending appeal, which is the basis for the
{¶ 107} The third category of cases in which an application for delayed reconsideration may be granted consists of cases in which the question presented in the application raises an issue of sufficient importance to warrant entertaining it beyond the ten-day limit. See, e.g., Carroll v. Feiel,
Graham is a decision of sufficient importance to warrant granting Moore’s application for delayed reconsideration of his lengthy term-of-years sentence
{¶ 108} In this case, Moore received a 112-year aggregate sentence for nonhomicide offenses that he committed when he was 15 years old. At sentencing, Judge R. Scott Krichbaum opined that Moore could not be rehabilitated and baldly informed Moore of the court’s intention to ensure that Moore would never be released from confinement.
{¶ 109} Notwithstanding Moore’s significant crimes, such a penalty is exactly what a majority of the United States Supreme Court agreed was unconstitutional in Graham. But despite the significance of the Graham claim raised by Moore, the court of appeals summarily dispensed with it:
We are unpersuaded by Moore’s arguments. For the reasons articulated in State v. Bunch, 7th Dist. No. 06 MA 106, J.E. August 8, 2013 and State v. Barnette, 7th Dist. No. 06 MA 135, September 16, 2013, Appellant Brandon Moore’s Delayed Application for Reconsideration is denied.
{¶ 110} Consideration of youth in sentencing is no longer a subject of political or jurisprudential debate; the high court has decided Miller v. Alabama,
deprives the convict of the most basic liberties without giving hope of restoration, except perhaps by executive clemency—the remote possibility of which does not mitigate the harshness of the sentence * * *. [T]his sentence “means denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of [the convict], he will remain in prison for the rest of his days.”
(Second brackets sic.) Id. at 69-70, quoting Naovarath v. State,
{¶ 112} Judges must treat juveniles differently, no matter how horrific their crimes may be. And different treatment of juveniles in nonhomicide cases requires “some meaningful opportunity” to reenter society, id. at 75. The trial court’s sentence in this case is irreconcilable with Graham, and the court of appeals’ summary denial of Moore’s application for delayed reconsideration is irreconcilable with the extraordinary-circumstances standard applicable to App.R. 26(A). As Judge DeGenaro stated in her dissent from the court of appeals’ refusal to consider Moore’s claim on its merits:
Because Moore has no other avenue to make this argument, Moore’s delayed application for reconsideration should be granted. App.R. 14(B) provides delayed reconsideration “pursuant to App.R. 26(A) shall not be granted except on a showing of extraordinary circumstances.” That showing has been made here; namely, a United States Supreme Court retroactive holding involving a criminal constitutional issue. We would be considering an arguably valid extension of a constitutional argument which was not available to Moore when his case was before the trial court, this Court and the Ohio Supreme Court in either his direct or second appeal. Significantly, the day Graham was announced, Moore filed his pro-se notice of appeal in [State v. Moore, 7th Dist. No. 10-MA-85,2011-Ohio-6220 ,2011 WL 6017942 ], arguing that his sentence was unconstitutionalpursuant to Graham; however the panel refused to address that argument, suggesting in dicta the issue was barred by res judicata and could be raised via post-conviction proceedings.
(Emphasis sic.)
{¶ 113} Even assuming arguendo that “[rjelief under App.R. 14(B) is subject to the court of appeals’ discretion,” dissenting opinion, French, J., at ¶ 193, citing L.R. Patrick, Inc. v. Karlsberger & Assocs., Architects, Inc., 10th Dist. Franklin No. 81AP-70,
{¶ 114} Before proceeding, I note my agreement with the dissenting justices that “abuse of discretion” in a criminal case means more than an error of law or judgment and implies that the lower court’s attitude was unreasonable, arbitrary, or unconscionable. See State v. Adams,
The dissents’ reliance on federal habeas law is improper
{¶ 115} Both dissents rely upon federal habeas decisions governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. 2254(d). Dissenting opinion of French, J., at ¶ 198, citing Bunch v. Smith,
{¶ 117} Because the standard employed in AEDPA is so highly deferential to state cоurts, it is virtually impossible for a federal court sitting in habeas to give relief to a juvenile. Budder v. Addison,
{¶ 118} In Budder, a 16-year-old committed horrific crimes: he cut the throat of another juvenile and stabbed her repeatedly on her stomach, arms, and legs, and after she dove from a moving car to escape him, he raped and sexually assaulted her. The trial judge sentenced him to two terms of life imprisonment without parole for the rapes, to life imprisonment for assault and battery with a deadly weapon, and to 20 years of imprisonment for sodomy, all sentences to be served consecutively. The state appellate court reversed in part in light of Graham, which was decided days after the juvenile’s sentencing, and modified the sentences for the rape convictions to life imprisonment with the possibility of parole. But even after that modification, the juvenile would not be eligible for parole until he had served almost 132 years in prison. Id. at 1215.
{¶ 120} If a federal court considering an AEDPA-controlled habeas petition cannot declare that three consecutive life sentences imposed on a juvenile who would not be eligible for parole until he had served nearly 132 years in prison violates the Eighth Amendment under Graham, there can be no doubt how “highly deferential” the AEDPA standard is.
{¶ 121} Federal habeas jurisdiction serves an important purpose. But we must remember that federal habeas review is driven at least as much by principles of finality, comity, and respect for the sovereignty of state courts as it is driven by principles of constitutional correctness. Harrington,
{¶ 122} I am nоt oblivious to the importance of finality in criminal decisions. “The importance of finality in any justice system, including the criminal justice system,” should not be understated. Witt v. State,
The doctrine of finality should be abridged only when a more compelling objective appears, such as ensuring fairness and uniformity in individual adjudications. Thus, society recognizes that a sweeping change of law can so drastically alter the substantive or procedural underpinnings of a final conviction and sentence that the machinery of post-conviction relief is necessary to avoid individual instances of obvious injustice. Considerations of fairness and uniformity make it very “difficult to justify deprivinga person of his liberty or his life, under process no longer considered acceptable and no longer applied to indistinguishable cases.”
Witt at 925, quoting American Bar Association, Standards Relating to Post-Conviction Remedies 37 (1968).
{¶ 123} This is particularly true when, as occurred in Graham, a court announces a new rule of law that applies retroactively.
{¶ 124} We who sit at the pinnacle of a state judiciary should be reluctant to adopt the limited standards of federal habeas jurisdiction as a proper proxy for the rigorous constitutional analysis that claims like Moore’s deserve. See State v. Ronquillo, 190 Was.App. 765,
The dissents’ reliance on state court decisions is an unpersuasive, post hoc rationalization for the court of appeals’ abuse of discretion in refusing to consider Moore’s claims
{¶ 125} I turn now to the nonhabeas decisions cited by the dissenting justices. That authority is sparse and suspect.
{¶ 126} Both dissenting justices suggest that when the court of appeals denied Moore’s application for delayed reconsideration, numerous courts had held that Graham is inapplicable to lengthy term-of-years sentences. But the appellate court did not cite a single case that the dissenting justices rely upon here to support the appellate court’s decision. See
{¶ 127} Justice French relies on two state court decisions cited in State v. Bunch, 7th Dist. Mahoning No. 06 MA 106 (Aug. 8, 2013), and State v. Barnette, 7th Dist. Mahoning No. 06 MA 135 (Sept. 16, 2013) (the two judgment entries cited in the court of appeals’ opinion summarily denying Moore’s application for delayed reconsideration)—State v. Kasic,
{¶ 128} Kasic is wholly distinguishable from the present case. The defendant in Kasic committed a series of arsons and related crimes that spanned nearly a year and included crimes he committed as an adult. See Kasic at ¶ 11 and 12. There is no reason to believe that Graham has any application to defendants who commit crimes after they reach the age of majority. See Roper v. Simmons,
{¶ 129} Henry, the other state court decision cited in Justice French’s dissent, is a Florida intermediate-appellate court decision that was pending on appeal at the time the Seventh District cited it in Bunch and Barnette. See Henry v. State,
{¶ 130} More importantly, it was subsequently quashed—unanimously—by the Florida Supreme Court. Henry v. State,
In light of the United States Supreme Court’s long-held and consistent view that juveniles are different—with respect to prison sentences that are lawfully imposable on adults convicted for the same criminal offenses—we conclude that, when tried as an adult, the specific sentence that a juvenile nonhomicide offender receives for committing a given offense is not dispositive as to whether the prohibition against cruel and unusual punishment is implicated. Thus, we believe that the Graham Court had no intention of limiting its new categorical rule to sentences denominated under the exclusive term of “life in prison.” Instead, we have determined that Graham applies to ensure that juvenile nonhomicide offenders will not be sentenced to terms of imprisonment without affording them a meaningful opportunity for early release based on a demonstration of maturity and rehabilitation. See Graham,560 U.S. at 75 ,130 S.Ct. 2011 [176 L.Ed.2d 825 ].
In light of Graham, and other Supreme Court precedent, we conclude that the Eighth Amendment will not tolerate prison sentences that lack areview mechanism for evaluating this special class of offenders for demonstrable maturity and reform in the future because any term of imprisonment' for a juvenile is qualitatively different than a comparable period of incarceration is for an adult.
Henry at 680.
{¶ 131} Decisions like Kasic, Henry, Bunch, and State v. Brown,
{¶ 132} First, as the Nevada Supreme Court has recognized, these decisions ignore that the United States Supreme Court did nothing in Graham to specifically limit its holding to offenders who were convicted of a single nonhomicide offense. State v. Boston, — Nev. -,
{¶ 133} Second, these decisions ignore the foundational rationales for the high court’s prohibition on state court sentences, imposed at the outset, that forever prohibit consideration of a juvenile offender’s ability to reenter society. “[T]he teachings of the Roper/Graham/Miller trilogy require sentencing courts to provide an individualized sentencing hearing to weigh the factors for determining a juvenile’s ‘diminished culpability and greater prospects for reform’ when, as here, the aggregate sentences result in the functional equivalent of life without parole.” Bear Cloud v. State,
{¶ 134} Lastly, I note that to the extent Justice Kennedy believes that Graham is distinguishable from this appeal, see dissenting opinion of Kennedy, J., at ¶ 154-155, her sole authority is Justice Alito’s dissenting opinion in Graham—a summary analysis that no other justice joined, see Graham at 124-125 (Alito, J., dissenting). But a dissent is just that: “[a] disagreement with a majority opinion,” Black’s Law Dictionary 574 (10th Ed.2014), without force of law or
CONCLUSION
{¶ 135} Graham is one of the most momentous decisions in American juvenile law. Given its significance, the stated intention of the sentencing judge in this case, the de facto life sentence he imposed, and the curtness with which the court of appeals denied Moore’s application to reconsider his sentence in light of Graham, I conclude that the appellate court abused its discretion in refusing to consider Moore’s claim. The court was not bound to accept his arguments, but it was bound to consider them more thoughtfully after allowing the application for delayed reconsideration.
{¶ 136} I concur fully in the majority opinion, which addresses the significant constitutional question that is properly before us and which holds that the court of appeals abused its discretion in failing to recognize that extraordinary circumstances were presented by Moore’s application, i.e., the unconstitutional imposition of a lengthy term-of-years sentence on a juvenile offender.
Notes
. The Supreme Court has explained the framework to be used in determining whether a rule announced should be applied retroactively to judgments in criminal cases that are already final on direct review, noting that although “a new rule is generally applicable only to cases that are still on direct review,” there are two exceptions: “A new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a
. Justice Kennedy includes an unpublished state intermediate-appellate court decision, State v. Merritt, Tenn.Crim.App. No. M2012-00829-CCA-R3CD,
Concurrence Opinion
concurring.
{¶ 137} I concur in the majority’s holding that an aggregate prison term for multiple offenses that extends beyond the defendant’s natural lifespan is a life-without-parole sentence by another name. Therefore, Graham v. Florida,
{¶ 138} But I write separately due to concern that in simply remanding for “resentencing in conformity with Graham” majority opinion at ¶ 100, we leave unaddressed the problem of when the “meaningful opportunity” would take place. While we hold that 77 years is too long to wait, how exactly does the trial court
{¶ 139} Unfortunately, no statute is on point and, in fact, Ohio felony-sentencing law now seems to encourage the longest prison terms for multiple offenses as there is no limit on the number of consecutive sentences a trial court may impose once the trial court makes any of the findings required by R.C. 2929.14(C)(4). We upheld against an Eighth Amendment attack the imposition of maximum, consecutive sentences for an aggregate term of 134 years for the nonhomicide offenses of a 24-year-old in State v. Hairston,
{¶ 140} In the absence of specific statutory authority then, on remand in this case, the trial court must determine at what point in his sentence Moore should be allowed the chance to demonstrate his maturity and rehabilitation to potentially obtain an earlier release from custody. The court may not just provide a review date for parole or judicial release in the sentencing entry as it must still follow current law.
{¶ 141} I believe the existing judicial-release statute can help the court in choosing a sentence that will satisfy Graham even though the statute itself does not mention the specific situation before us. Judicial release is governed by R.C. 2929.20. Those eligible are defined in R.C. 2929.20(A), and unless certain offenses have been committed, none of which were committed in Moore’s case, the length of the nonmandatory prison term determines the time for application. See R.C. 2929.20(C). Moore’s aggregate 112-year prison sentence consists of 12 years of mandatory time for four three-year gun specifications, with the remainder of his sentence being ten maximum prison terms of ten years each for first-degree felonies, see former R.C. 2929.14(A)(1), Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136, 7464 (providing for maximum ten-year sentence for first-
{¶ 142} On resentencing, however, the trial court must craft a sentence that will allow Moore a meaningful opportunity to obtain judicial release before he is 92. Because mandatory time must be served without reduction, the court must resentence Moore the same way on the four firearm specifications for at least 12 years of mandatory and consecutive time. The rest of his sentence is subject to the court’s modification. It must be emphasized again that allowing Moore an earlier opportunity to apply for judicial release does not guarantee the release. It allows him the chance to persuade the judge that he need not be in prison for the rest of his natural life. The timing of eligibility will depend on the court’s sentencing decision.
{¶ 143} I suggest that to remain in accord with the sentencing statutes, the trial court may either reduce the maximum penalties on some or all of the underlying ten felonies or may decide to impose some or all of them concurrently rather than consecutively. To illustrate, if the court were to grant minimum sentences for all ten underlying felonies, Moore would be sentenced to 12 plus 30 years for a stated prison term of 42 years. See R.C. 2929.14(A)(1) (providing for three-year minimum term for first-degree felonies committed by Moore). Under the judicial-release statute, this would mean that he would have an opportunity to apply for judicial release after serving 21 years, when he would be 36 years old. See R.C. 2929.20(C)(5) (if the aggregated nonmandatory term or terms is more than ten years, the earliest opportunity is one-half of the stated prison term). Alternatively, the court could impose concurrent sentences for some or all of the first-degree felonies. For example, Moore was found guilty of three rapes and three conspiracies to commit rape. If all these sentences remained maximum terms but were made concurrent, the prison term for these six offenses would be 10 years instead of 60, and without any other modification, would allow Moore to apply for judicial release at age 46 after serving 31 years (one-half of the stated prison term of 62 years).
{¶ 144} These are just two examples of ways in which the trial court at resentencing can allow Moore’s eligibility for judicial release before the passage of 77 years.
{¶ 145} Of course, the General Assembly could choose an entirely new method to ensure that Graham’s requirements are followed by enacting specific time
. Moore was also sentenced to a six-month term for aggravated menacing to be served concurrently with the felony sentences.
Dissenting Opinion
dissenting.
{¶ 146} Because the court of appeals was without authority to consider the motion for delayed reconsideration and because Graham v. Florida,
{¶ 147} While I agree with the majority’s statement of the facts and procedural history of this case, it is important to emphasize several dates and court decisions.
{¶ 148} Appellant, Brandon Moore, was convicted in 2002. He appealed his convictions several times, but on March 24, 2009, the court of appeals issued a judgment that affirmed his resentencing. State v. Moore, 7th Dist. Mahoning No. 08 MA 20,
I. Delayed Reconsideration of Moore III
{¶ 149} An appellate court’s decision regarding an application for reconsidera- . tion of its judgment is reviewed under an abuse-of-discretion standard. Reichert v. Ingersoll,
{¶ 150} “Courts of appeal[s] have jurisdiction to reconsider their judgments on a timely motion filed pursuant to App.R. 26 until an appeal as of right is filed in this court, or this court rules on a motion to certify the record.” State ex rel. LTV Steel Co. v. Gwin,
{¶ 152} Under App.R. 26(A)(1), a party may seek reconsideration no later than ten days after the clerk of courts has mailed the judgment or order to the parties. However, applying App.R. 14(B), courts of appeals have held that upon ‘“a showing of extraordinary circumstances,’” they may accept an application for reconsideration beyond the ten-day limit. (Emphasis added.) E.g., Rice v. Rice, 7th Dist. Columbiana No. 2001-CO-28,
{¶ 153} On March 24, 2009, the court of appeals affirmed the trial court’s resentencing of Moore for his 2002 convictions. Under LTV Steel, the court of appeals had jurisdiction to reconsider its judgment in Moore III until Moore appealed that judgment to this court or the 45-day appeal period expired. Moore did not appeal Moore III and did not file his application for reconsideration until September 16, 2013, more than four years after Moore III was decided and approximately three years after Graham was decided. Therefore, the court of appeals lacked authority to reconsider Moore III. Accordingly, the court of appeals did not abuse its discretion in denying Moore’s application for reconsideration.
II. Graham Is Distinguishable
{¶ 154} It is important to understand what the United States Supreme Court decided and what it did not decide in Graham,
{¶ 155} The court in Graham did not decide whether the imposition of consecutive, fixed-term prison sentences for multiple nonhomicide offenses that result in a lengthy aggregate sentence violate the Eighth Amendment. As pointed out in Justice Alito’s dissent in the case: “[Graham ] holds only that Tor a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.’ * * * Nothing in the Court’s opinion affects
III. An Invitation to Extend Graham Was Denied
{¶ 156} One of Moore’s codefendants, Chaz Bunch, was convicted of aggravated robbery, three counts of rape, three counts of complicity to commit rape, kidnapping, conspiracy to commit aggravated robbery—all with firearm specifications—and aggravated menacing. State v. Bunch, 7th Dist. Mahoning No. 02 CA 196,
{¶ 157} Thereafter, Bunch filed a petition for a writ of habeas corpus in federal district court, alleging that his 89-year sentence was cruel and unusual punishment in violation of the Eighth Amendment. Bunch v. Smith, N.D.Ohio No. 1:09 CV 901,
{¶ 158} Thereafter, Bunch appealed to the Sixth Circuit Court of Appeals. Bunch v. Smith,
{¶ 159} A writ of habeas corpus will issue only if the holding at issue is “ ‘сontrary to, or involve[s] an unreasonable application of, clearly established Federal law.’ ” Greene v. Fisher,
{¶ 160} Even though Graham was not decided until after Bunch had exhausted his state appeals, the Sixth Circuit nevertheless determined that an argument could be made that Graham applies retroactively on collateral review under Teague v. Lane,
{¶ 161} The Sixth Circuit recognized that while both cases involved juveniles who committed nonhomicide offenses, Graham involved a sentence of life in prison while Bunch’s case involved “consecutive, fixed-term sentences—the longest of which was 10 years—for committing multiple nonhomicide offenses.” Bunch v. Smith,
(¶ 162} Bunch appealed to the United States Supreme Court, which denied certiorari. Bunch v. Bobby, 569 U.S. -,
IV. Other Jurisdictions Recognize that Graham’s Holding Is Limited
{¶ 163} While the majority points to courts in some jurisdictions that have extended Graham to cases involving consecutive, fixed-term sentences for multiple nonhomicide offenses, courts in other jurisdictions have not done so. The Louisiana Supreme Court has held that Graham does not apply to a juvenile offender who has been sentenced to multiple sentences that, when aggregated, result in a lengthy term-of-years sentence. And courts in Tennessee, Arizona, and Virginia have all recognized that Graham’s holding is limited to cases in which the defendant received an actual life sentence without the possibility of ■parole for a nonhomicide offense committed while a juvenile.
A. Louisiana
{¶ 164} The majority cites State ex rel. Morgan v. State,
{¶ 165} In Brown, a juvenile was convicted of aggravated kidnapping and four counts of armed robbery. The trial court imposed a mandatory life sentence for aggravated kidnapping and ten years in prison for each of the armed-robbery convictiоns to be served consecutively for 40 additional years, without the possibility of parole for any of the convictions.
{¶ 166} Brown filed a motion challenging his sentence as illegal under Graham. The trial court agreed, holding that Brown was eligible for parole on all five convictions, and the intermediate appellate court affirmed. The Louisiana Supreme Court “granted the State’s writ application to consider its argument that while the district court properly eliminated the parole restriction on the life sentence, nothing in Graham authorized it to amend [Brown’s] four 10-year armed robbery sentences.” Brown at 334-335. The court recognized that following Graham, the legislature had amended a state sentencing statute in order to allow inmates serving a life sentence without the possibility of parole for a nonhomicide offense committed while a juvenile to become eligible for parole after serving 30 years. Brown at 341.
{¶ 167} The court then considered whether Graham applied to Brown’s sentence. Brown was 16 years old at the time of his offenses. Therefore, Brown would not become eligible for parole until at least age 86—once he had served 30 years for the kidnapping conviction and ten years for each of the four armed-robbery convictions. Brown,
In our view, Graham does not prohibit consecutive term of year sentences for multiple offenses committed while a defendant was under the age of 18, even if they might exceed a defendant’s lifetime, and, absent any further guidance from the United States Supreme Court, we defer to the legislature which has the constitutional authority to authorize such sentences.
Brown at 341-342.
{¶ 168} The Brown court concluded that “nothing in Graham addresses a defendant convicted of multiple offenses and given term of year sentences, that, if tacked on to the life sentence parole eligibility date, equate to a possible release date when the defendant reaches the age of 86.” Brown at 342.
{¶ 169} The court in Morgan distinguished Brown:
Brown was convicted of five offenses resulting in five consecutive sentences which, when aggregated, resulted in a term pursuant to which he would have no opportunity for release; here, the defendant was convicted of a single offense and sentenced to a single term which affords him no opportunity for release. In declining to extend Graham to modify any of Brown’s term-of-years sentences, we were most influenced by the fact that his actual duration of imprisonment would be so lengthy only because he had committed five offenses. * * * In contrast, any concern about a policy that would afford an opportunity for parole to defendants convicted of multiple offenses is not implicated here.
(Emphasis added.) Morgan,
B. Tennessee
{¶ 170} In State v. Merritt, the defendant pleaded guilty to nine counts of rape of a child committed when the defendant was 17 years old. Tenn.Crim.App. No. M2012-00829-CCA-R3CD,
{¶ 171} On appeal, Merritt argued that his prison sentence was a de facto life sentence without the possibility of parole and constituted cruel and unusual punishment under Graham,
Although the Defendant’s effective 225-year sentence is the equivalent of life imprisonment, the sentence does not violate Graham’s specific holding because he was not sentenced to life imprisonment without the possibility of parole. We conclude that Graham applies only to juveniles sentenced to life imprisonment without the possibility of parole for nonhomicide offenses and that the Defendant is not entitled to relief on this basis.
C. Arizona
{¶ 172} In State v. Kasic, the defendant was found guilty of, among other offenses, six arsons and one attempted arson—some of which he committed at the age of 17—and the court imposed an aggregate prison term of 139.75 years.
D. Virginia
{¶ 173} In Vasquez v. Commonwealth, two juveniles, Vasquez and Valentin, robbed and repeatedly sexually assaulted a woman.
{¶ 174} Vasquez and Valentin appealed to the Virginia Supreme Court, arguing that their sentences constituted cruel and unusual punishment and urging the court to “expand Graham’s prohibition of life-without-parole sentences to nonlife sentences that, when aggregated, exceed the normal life spans of juvenile offenders.” Vasquez at 241. The court refused to extend Graham, noting that Graham applied “only to ‘the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.’ ” (Emphasis added in Vasquez.) Id., quoting Graham,
We find no basis for declaring the aggregate sentences imposed on Vasquez and Valentin to be cruel and unusual under the Eighth Amendment. Nothing in Graham dictates that multiple sentences involving multiple crimes be treated, for Eighth Amendment purposes, in exactly the same manner as a single life-without-parole sentence for a single crime.
Id. at 251.
V. Graham’s Analysis Is Insufficient to Justify Extending Its Holding to Consecutive, Fixed-Term Sentences for Multiple Nonhomicide Offenses
{¶ 175} Even assuming for the sake of argument that Graham could apply to consecutive, fixed-term sentences for multiple nonhomicide offenses, there are practical problems that require additional inquiry and might preclude the extension of Graham.
A. Determining Life Expectancy Is a Slippery Slope
{¶ 176} The majority uses life-expectancy data reported by the Centers for Disease Control (“CDC”) to conclude that Moore will probably die before he becomes eligible to be released. But there are a myriad of sources for determining life expectancy. For example, in Boneshirt v. United States, the defendant was convicted of a murder committed as a juvenile and sentenced to 48 years in prison. D.S.D. No. CIV 13-3008-RAL,
{¶ 178} Similarly, as imprisoned juveniles grow older, some will encounter new health issues that could shorten their lives. Would courts have to periodically reevaluate each juvenile’s health and lifestyle for the purpose of re-estimating the juvenile’s life expectancy?
{¶ 179} There are many sources for life-expectancy data and many factors that affect an individual’s life expectancy, and neither Graham nor the majority have explored these issues.
B. Determination of National Consensus as Required by Graham’s Categorical-Rule Analysis
{¶ 180} The categorical-rule analysis employed in Graham included two steps.
{¶ 181} The first step required the court to determine whether there was a national consensus against sentencing juvenile offenders who commit nonhomi-cide offenses to a sentence of life in prison without parole, and the second step required the court to apply its own Eighth Amendment decisions to determine whether that sentencing practice violated the Eighth Amendment. Id. at 61-62. The results of the first step of the analysis, national consensus, while “not [] determinative of whether a punishment is cruel and unusual is ‘entitled to great weight.’ ” Id. at 67, quoting Kennedy v. Louisiana,
{¶ 182} The United States Supreme Court “leave[s] to the State the task of developing appropriate ways to enforce the constitutional restriction upon its execution of sentences.” Ford v. Wainwright,
{If 183} In determining whether imposing a life sentence on a juvenile nonho-micide offender violated the Eighth Amendment, the court in Graham looked at developments in brain “science” and concluded that juveniles are different from adults in that juveniles are “ ‘more vulnerable or susceptible to negative influences and outside pressures, including peer pressure’; and their characters are ‘not as well formed.’ ”
{¶ 184} While I agree that the science and penological considerations are relevant in formulating a sentence!, these subjects are for the General Assembly— not the courts—to debate and weigh in establishing sentencing guidelines for juvenile offenders. See O’Mara,
{¶ 185} The General Assembly has made a policy decision creating a bindover scheme for a juvenile defendant who commits one of a multitude of types of offenses at a certain age. R.C. 2152.10. Therefore, it is the General Assembly that must consider relevant factors, such as the growing body of science and pronouncements by the United States Supreme Court, and promulgate appropri
{¶ 186} And it is this court’s obligation to educate Ohio judges who would impose consecutive, fixed-term sentences for multiple nonhomicide offenses committed by a juvenile about the vulnerability and susceptibility of juveniles to negative influences and peer pressure, the science of brain development and the growing body of evidence that juveniles’ characters are not as well formed as those of adults, and the law as enunciated by the United States Supreme Court that a trial judge can fashion an individualized sentence to meet the overriding purposes of felony sentencing, see R.C. 2929.11.
{¶ 187} While I would gladly add my voice to the conversation supporting the creation of separate sentencing guidelines for juvenile offenders who are bound over to the adult system, I cannot join today’s majority when there is no basis in law and when to do so, in my opinion, would violate the separation-of-powers doctrine, which “[t]his court has repeatedly affirmed” is embedded in the Ohio Constitution, State ex rel. Bray v. Russell,
VII. Conclusion
{¶ 188} Because the court of appeals was without authority to consider the application for delayed reconsideration and because Graham v. Florida,
. During the 131st session of the General Assembly, the legislature considered a bill to “enact section 2967.132 of the Revised Code to provide special parole eligibility dates for persons with an indefinite or life sentence imposed for an offense committed when the person was less than 18 years of age.” Am.H.B. No. 521, at 1.
Dissenting Opinion
dissenting.
{¶ 189} I respectfully dissent.
{¶ 190} This discretionary appeal stems from the application of appellant, Brandon Moore, for delayed reconsideration of his direct appeal from his resentencing pursuant to State v. Foster,
{¶ 191} On March 24, 2009, the Seventh District affirmed Moore’s resentenc-ing, following the remand pursuant to Foster, and rejected Moore’s pro se assignment of error that the resentencing violated his right to due process. State v. Moore, 7th Dist. Mahoning No. 08 MA 20,
{¶ 192} On September 16, 2013, Moore filed an application for delayed reconsideration of Moore III pursuant to App.R. 26(A)(1) and 14(B). The standard for reviewing an application for reconsideration is whether the application calls to the court’s attention an obvious error in its decision or raises an issue that the court either did not consider at all or did not consider fully when it should have. Matthews v. Matthews, 5 Ohio App.3d 140, 143,
{¶ 193} Moore’s application for reconsideration was unquestionably untimely under App.R. 26(A)(1), but the court of appeals implicitly recognized—consistent with the majority opinion’s holding here—that it had authority, pursuant to App.R. 14(B), to permit the untimely filing upon a showing of extraordinary circumstances. App.R. 14(B) authorizes a court of appeals to enlarge the time for doing any act or to permit the act to be done after the expiration of the prescribed time upon a showing of good cause, but “[enlargement of time to file an application for reconsideration * * * pursuant to App. R. 26(A) shall not be granted except on a showing of extraordinary circumstances.” Relief under App.R. 14(B) is subject to the court of appeals’ discretion. L.R. Patrick, Inc. v. Karlsberger & Assocs., Architects, Inc., 10th Dist. Franklin No. 81AP-70,
{¶ 194} I agree with both the majority opinion and Justice Kennedy’s dissenting opinion that the appropriate standard of review in this case is abuse of discretion. See Reichert v. Ingersoll,
{¶ 195} The court of appeals summarily denied Moore’s application for the reasons it articulated in State v. Bunch, 7th Dist. Mahoning No. 06 MA 106 (Aug. 8, 2013), and State v. Barnette, 7th Dist. Mahoning No. 06 MA 135 (Sept. 16, 2013). State v. Moore, 7th Dist. Mahoning No. 08 MA 20,
{¶ 196} In Bunch, the court stated, “[W]hen appellate courts have found extraordinary circumstances based on binding decisions from higher courts, they have done so when the higher court’s case is directly on point.” Bunch at 3. It reasoned, “[I]f the higher court’s binding decision is not directly on point, there would not be an obvious error and, as such, the requisite finding of extraordinary circumstances, to enlarge the time for filing an application for reconsideration, would not be warranted.” Id.
{¶ 197} Any error regarding application of Graham and Miller to the facts of Moore’s case was far from obvious. The majority opinion acknowledges that the defendant in Graham was serving a life sentence, and the actual holding in Graham states, “The Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” (Emphasis added.)
{¶ 199} Finally, Moore did not challenge his sentence based on the Eighth Amendment in Moore III. Rather, Moore raised a single assignment of error that his resentencing violated his right to due process. Even accepting the majority’s conclusion that Moore’s sentence violates the Eighth Amendment to the United States Constitution, Graham and Miller do not establish an obvious error in the Seventh District’s decision upholding Moore’s resentencing on due-process grounds. Moore was not entitled to use an application for delayed reconsideration as a substitute for a request that the court consider, in the first instance, an issue that was not previously presented to the court. A court of appeals may not ordinarily consider on a motion for reconsideration an issue that was not previously raised. Fenton v. Time Warner Entertainment Co., 2d Dist. Montgomery No. 19755,
{¶ 200} Because Graham and Miller are not directly on point, because neither this court nor the United States Supreme Court has extended Graham and Miller to Moore’s situation, because case law from across the country conflicts as to whether Graham and Miller apply to Moore’s situation, and because Moore