State v. Strowder

 (2010); State v. Moore,

, 2016-Ohio-
      8288,

.

               Having reviewed the record and pertinent law, we affirm the

sentence, but we remand for the issuance of a nunc pro tunc sentencing journal entry

in order to reflect what transpired at the September 26, 2018 sentencing hearing.

               This case originated in juvenile court when Strowder was 17 years old.

Following a mandatory bindover, Strowder and codefendant Isaiah Campbell

(“Campbell”) were indicted in a nine-count indictment in connection with an attack

upon a woman as she attempted to drive home following a family celebration. See

State v. Strowder, 8th Dist. Cuyahoga No. 105569,

2018-Ohio-1292

 (“Strowder I”).

Strowder was charged with three counts of rape with sexually violent predator

specifications, two counts of kidnapping, with one count alleging both a sexual

motivation specification and a sexually violent motivation specification, aggravated

robbery, felonious assault with a sexual motivation specification, grand theft (motor

vehicle), and receiving stolen property, in violation of R.C. 2913.51(A). All counts

also contained one-year and three-year firearm specifications.          Strowder was

acquitted of one of the rape charges, but was convicted of all remaining charges.

After obtaining additional testimony and evidence, the trial court found Strowder

guilty of the sexually violent predator specifications, thus adding a “life tail” to the

sexual offenses.   The court merged the aggravated robbery, grand theft, and
receiving stolen property convictions, and also merged the felonious assault

conviction into the rape, kidnapping, and aggravated robbery convictions. The court

imposed consecutive terms, sentencing Strowder to 50 years to life, and also ordered

that this term be served consecutively to Strowder’s nine-year sentence in another

matter from Stark County that resulted from a gang-related offense while he was in

the custody of the Ohio Department of Youth Services.

               On direct appeal, this court affirmed the convictions but reversed and

remanded the sentence pursuant to Graham,

, and Moore,

2016-Ohio-8288

, in

order to provide for Strowder, a juvenile offender, with a meaningful opportunity

for parole. Strowder I at ¶ 45.

On remand, the defense asked for a sentence that would enable

Strowder to be eligible for parole after 15 to 30 years, citing his difficult childhood,

and his participation in education, mental health, and other activities while in

prison. The court heard from Strowder who told the court that he is endeavoring to

improve. The court cited outlined Strowder’s extensive criminal history and

ultimately concluded that consecutive sentences should be imposed. The court

sentenced Strowder to a total of 12 years for the firearm specifications and a total of

22 years on the other offenses, noting that the rape and kidnapping convictions

carried a life tail, for a total sentence of 34 years-to-life. The court also ordered that

the sentence be served consecutively to the Stark County conviction, and Strowder

filed the instant appeal.
This court instructed the parties to advise us of the date when

Strowder will be eligible for parole. The parties stated that he would be eligible for

parole in this matter in October 2050, at age 54. The trial court subsequently

indicated that he would be eligible (in relation to both this matter and the Stark

County matter) in September 2057, when he is 61 years old.

Law and Analysis

Strowder argues that his sentence of 34 years-to-life imprisonment

constitutes cruel and unusual punishment because it does not provide him with a

meaningful opportunity for release.

The Eighth Amendment to the United States Constitution’s

prohibition against cruel and unusual punishment includes the “precept of justice

that punishment for crime should be graduated and proportioned to [the] offense.”

Moore,

2016-Ohio-8288

76 N.E.3d 1127, at ¶ 31

, quoting

Weems v. United States,

217 U.S. 349, 367

30 S.Ct. 544

54 L.Ed. 793

 (1910). This

aspect of the Eighth Amendment encompasses certain categorical restrictions,

including the categorical prohibitions of certain punishments for juveniles. Id. at ¶

33. Two such prohibitions are that courts may not impose mandatory life-without-

parole sentences on offenders who commit murder as juveniles, and courts may not

impose life-without-parole sentences on nonhomicide juvenile offenders. Id., citing

Miller v. Alabama,

567 U.S. 460

 (2012), and

Graham,

.
               In Graham, the court held that sentences of life imprisonment

without parole for juvenile nonhomicide offenders are cruel and unusual in light of

the limited moral culpability of these offenders, the inadequacy of penological

theory justifying such sentences, and the severity of such sentences in relation of

juvenile offenders. Graham at 74. However, the Graham court cautioned that it

was not “guarantee[ing] eventual freedom to a juvenile offender convicted of a

nonhomicide crime.” Rather,

      [w]hat the State must do … is give defendants like Graham some
      meaningful opportunity to obtain release based on demonstrated
      maturity and rehabilitation. It is for the State, in the first instance, to
      explore the means and mechanisms for compliance. It bears emphasis,
      however, that while the Eighth Amendment prohibits a State from
      imposing a life without parole sentence on a juvenile nonhomicide
      offender, it does not require the State to release that offender during
      his natural life. Those who commit truly horrifying crimes as juveniles
      may turn out to be irredeemable, and thus deserving of incarceration
      for the duration of their lives. 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.

(Emphasis added.) Id. at 75.

               In Moore, the Ohio Supreme Court held that these considerations are

applicable to both juvenile offenders sentenced to life imprisonment without parole

for a nonhomicide offense and juvenile nonhomicide offenders sentenced to prison

for terms of years extending beyond life expectancy. Id. at ¶ 1, 48. The court

concluded that imposition of sentences for terms of years that extend beyond the

offender’s life expectancy are “functional life sentences.” Id. at ¶ 59.
               In calculating Moore’s parole eligibility, the court noted that Moore

was sentenced to a total of 112 years, and his six ten-year sentences for rape and his

four three-year firearm specifications were mandatory terms under R.C. 2929.13(F)

and 2941.145. Moore would be eligible for parole after 77 years, or when he is 92

years old. This rendered Moore’s sentence a “functional life sentence.” Id.,

2016-Ohio-8288

76 N.E.3d 1127, at ¶ 30, 48

 (applying U.S. Department

of Health and Human Services, National Vital Statistics Reports, Volume 52,

Number                  3,                at                26                 (2003),

http://www.cdc.gov/nchs/data/nvsr/nvsr52/nvsr52_03.pdf           (accessed    Oct. 5,

2016). The Moore court also held that the “meaningful opportunity to obtain release

based on demonstrated maturity and rehabilitation” established in Graham,

, is not reserved solely for juvenile offenders

who commit a single nonhomicide offense.

Moore at ¶ 65

.

               Significantly, the Moore court recognized that “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.” Id.

at ¶ 63. The Moore court reviewed various cases applying Graham and observed

that “[State v. Null,

836 N.W.2d 41

 (Iowa 2013)] 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.” However, the Moore court noted with

approval various cases finding Graham’s protections applicable (or “functional life
sentences” as used in Moore) to sentences with terms ranging from 50 years to 110

years to life.

                 Later, in State v. Watkins, 10th Dist. Franklin Nos. 13AP-133 and

13AP-134,

2018-Ohio-5137

, the court reviewed various cases and concluded that

parole eligibility at 62 years old to be the “outer limit” of what is constitutionally

acceptable. Id. at ¶ 28-31. See also State v. Burns, 2d Dist. Montgomery No. 27374,

2018-Ohio-1419, ¶ 21-23

 (juvenile defendant’s aggregate 44-years-to-life sentence

for aggravated murder was permissible where the defendant would be eligible for

parole at age 59); State v. Taylor, 2d Dist. Montgomery No. 27879, 2018-Ohio-

4628, ¶ 11 (juvenile defendant’s aggregate 41-years-to-life sentence for murder was

permissible where the defendant would be eligible for parole at age 58). See also Ira

v. Janecka,

419 P.3d 161

 (N.M.2018) (sentence permissible where the defendant

would be eligible for parole at 62 years old); Demirdjian v. Gipson,

832 F.3d 1060


(9th Cir.2016) (sentence permissible where the defendant would be eligible for

parole at 66 years old); Bryant v. Foulk, E.D.Cal. No. 2:13-cv-1750-MCE-GGH,

2014 U.S. Dist. LEXIS 152770

 (Oct. 28, 2014) (sentence permissible where the defendant

would be eligible for parole at 61 years old).

                 In this matter, Strowder was originally sentenced to 50 years to life to

be served consecutively to the Stark County term. On this court’s remand in

Strowder I, the trial court made an extremely significant downward departure in

the sentence. On remand, Strowder’s 50 years to life sentence was reduced to 34

years to life (because of the life tail for the sexually violent predator specification),
and consecutive to the Stark County conviction. As set out in the record, Strowder

would have been eligible for parole at 54 years old strictly in relation to this offense.

However, the sentence was ordered to be served consecutively to the Stark County

conviction, so he will be eligible at age 61 in relation to both offenses. Under the case

law, this is not a functional life sentence. It provides Strowder with a realistic and

meaningful opportunity to demonstrate maturity and reform, and it potentially

enables him to return to society within his normal life expectancy. Moreover, given

the nature of the offenses and that Strowder was determined to have a “high risk” of

reoffending, the trial court fashioned a sentence that punishes for the extremely

heinous offenses without imposing cruel and unusual punishment.

               That being said, we urge the legislature to examine this important

issue in order to provide courts with additional guidance and to directly address the

issue of juvenile offender parole eligibility. “Precisely when a juvenile offender

facing a long term-of-years prison sentence should be granted the opportunity for

release is a legitimate policy issue subject to fair debate.” Watkins,

2018-Ohio-5137, at ¶ 32

. Courts should not arbitrarily pick the point at which multiple aggregated

sentences may become the functional equivalent of life without parole. In addition,

legislative assistance could help courts to reconcile Moore’s acknowledgement that

“the state retains the ability, upon a meaningful evaluation of an offender who

committed a nonhomicide offense as a juvenile, to impose lifetime incarceration

upon the most serious offenders” with the requirement of a meaningful “opportunity

to obtain release based on demonstrated maturity and rehabilitation.”
               Accordingly, the assigned error is without merit.

               Finally, the defense and state both note that the trial judge committed

a clerical error in the issuance of the judgment entry of conviction regarding the four

firearm specifications. The court stated during the sentencing hearing as follows:

      This Court is going to sentence the defendant on Count 2 to 11 years
      consecutive to 11 years on Count 3. Concurrent to 11 years on Count 4.
      Concurrent to 11 years on Count 5. Counts 2 will have the three-year
      firearm spec to be served prior to and consecutive with the three years.
      Count 3 will also have a three-year firearm spec as the law requires me
      to do which will also be consecutive to and prior to the 11 years. And
      the Court will also run the 1 three-year firearm spec on Counts 4 and 5
      consecutive to the other three-year firearm spec for a total of 34 years.

               Yet the court’s sentencing order states:

      Count 2: Three year firearm spec to be served prior to and consecutive
      with 11 years to life.

      Count3: Three year firearm spec to be served prior to and consecutive
      with 11 years to life.

      Counts 2 and 3 to run consecutive to one another and concurrent to all
      other counts.

      Count 4: Three year firearm spec to be served prior to and consecutive
      with 11 years to life.

      Count 5: Three year firearm spec to be served prior to and consecutive
      with 11 years to life.

      Counts 4 and 5 to run concurrent to each other and to Counts 2 and 3.

      Pursuant to R.C. 2929.14(B)(1)(g), the firearm specs are to run
      concurrent to one another for a total of 12 years on the firearm specs.
      Total sentence 22 years plus 12 years on the firearm specs =34 years.

      Consecutive to case out of Stark County.
              In accordance with the foregoing, the court must issue a nunc pro

tunc correction to reflect the information provided at sentencing regarding the four

firearm specifications.

              Judgment is affirmed and remanded to the trial court for further

proceedings consistent with this opinion.

      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 is terminated. Case remanded to

the trial court for the issuance of a nunc pro tunc sentencing journal entry and

execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.


                                 _______
PATRICIA ANN BLACKMON, PRESIDING JUDGE

ANITA LASTER MAYS, J., CONCURS;
LARRY A. JONES, SR., J., DISSENTS
WITH SEPARATE OPINION


LARRY A. JONES, SR., J., DISSENTING:

              “The ‘imposition of a State’s most severe penalties on juvenile

offenders cannot proceed as though they were not children.’” Moore,

2016-Ohio-8288

76 N.E.3d 1127, at ¶ 62

, quoting Miller,

567 U.S. at 474

. For the reasons that follow, I dissent.

               There is no dispute that the crimes committed in this case were

heinous and deserving of punishment ─ Strowder deserves to spend a significant

amount of time in prison. But just as we cannot ignore the horrible facts of this case,

we also cannot ignore the fact that Strowder was a child when he committed these

crimes and the fact that, based on his sentence, he will be 61 years old before he has

his first opportunity for release from prison. Even though Strowder committed

unspeakable acts, he is a juvenile nonhomicide offender; therefore, as determined

by the United States Supreme Court and Ohio Supreme Court, he deserves a chance

to have a meaningful opportunity at life outside of prison.

               This court remanded Strowder I to hold a sentencing hearing that

comported with Moore and Graham,

.

On appeal, we are to consider whether his current sentence provides a “meaningful

opportunity” as guaranteed by the Eighth Amendment. Because Strowder is not

eligible to go in front of the parole board until 2057, when he will be 61 years old, I

find that it does not. I believe the sentence the trial court imposed in this case is

therefore unconstitutional.

               In 2005, the United States Supreme Court prohibited the imposition

of the death penalty for juvenile offenders. Roper v. Simmons,

543 U.S. 551

125 S.Ct. 1183

161 L.Ed.2d 1

 (2005).       Five years later, the court prohibited the

imposition of life without parole sentences for juvenile nonhomicide offenders.
Graham at 75. More recently, the court prohibited the mandatory imposition of life

without parole for juvenile homicide offenders in Miller,

567 U.S. 460

.

              In each of these cases, the Supreme Court has justified its holdings, in

part, because of the recognition that children are different from adults:

      (1) [C]hildren have a “lack of maturity and an underdeveloped sense
      of responsibility” leading to recklessness, impulsivity, and heedless
      risktaking.”

      (2) [C]hildren “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.”

      (3) A child’s character is not as well formed as an adults; his [or her]
      traits are “less fixed” and his [or her] actions less likely to be “evidence
      of irretrievabl[e] deprav[ity].”

Miller at 471, citing

Roper at 569-570

.

               A “child’s age is far ‘more than a chronological fact.’” J.D.B. v. North

Carolina,

564 U.S. 261, 323

131 S.Ct. 2394

180 L.Ed.2d 310

 (2011), quoting

Eddings v. Oklahoma,

455 U.S. 104, 115

102 S.Ct. 869

71 L.Ed.2d 1

 (1982). “It is a

fact that ‘generates common sense conclusions about [a child’s] behavior and

perception.’” J.D.B. at

id.,

 quoting Yarborough v. Alvarado,

541 U.S. 652, 674

124 S.Ct. 2140

158 L.Ed.2d 938

 (2004) (Breyer, J., dissenting). A child’s “transient

rashness, proclivity for risk, and inability to assess consequences” not only lessen a

child’s moral culpability, but also enhance the prospect that as the years go by and
neurological development occurs, a child’s deficiencies will be reformed. Miller at

472.

               “The most important attribute of the juvenile offender is the

potential for change.” Moore,

2016-Ohio-8288

76 N.E.3d 1127, at ¶ 42

. Both the United States Supreme Court and the Ohio Supreme Court have

found that imposing sentences that exceed the life expectancy of juvenile

nonhomicide offenders is cruel and unusual punishment. This is because “[t]he

Eighth Amendment … prohibit[s] States from making the judgment at the outset

that [juvenile nonhomicide] offenders will never be fit to reenter society.”

Moore at ¶ 45

, quoting Graham,

.

       [A] juvenile who did not kill or intend to kill has “twice diminished
       moral culpability” based on … the nature of the crime and the
       juvenile’s age. As for the nature of the crime, the [U.S. Supreme
       Court] found that “[a]lthough an offense like robbery or rape ‘is a
       serious crime deserving serious punishment,’ those crimes differ from
       homicide-crimes in a moral sense,” such that nonhomicide
       defendants “are categorically less deserving of the most serious forms
       of punishment than are murderers.”

Moore at ¶ 36

, quoting Graham at 69.

               Thus, as reflected in the above cited cases, juveniles have lessened

moral culpability and are potentially redeemable. Because no one can definitively

say at the onset whether a juvenile’s crimes, even crimes like Strowder committed,

are the result of immaturity or are the product of “irreparable corruption,” all

children who are convicted of nonhomicide offenses in criminal court must be

granted a “meaningful opportunity to obtain release, based on demonstrated
maturity and rehabilitation.” Graham at 68. “It does not take an entire lifetime for

a juvenile offender to earn a first chance to demonstrate that he [or she] is not

irredeemable.”

Moore at ¶ 47

. Yet, based on his current sentence, Strowder will not

earn that first chance until he is 61 years old, having been in prison (or its juvenile

equivalent) since he was 17 years old.

                 While Strowder may certainly live past the age of 61, the United

States Supreme Court views the concept of a life sentence “more broadly than

biological survival … an individual is effectively incarcerated for ‘life’ if he [or she]

will have no opportunity to truly reenter society or have a meaningful life outside of

prison.”

Moore at ¶ 84

, quoting Casiano v. Commr. of Corr.,

317 Conn. 52

, 78,

115 A.3d 1031

 (2015).

       A juvenile offender is typically put behind bars before he [or she] 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 [or she] will have irreparably lost the
       opportunity to engage meaningfully in many of these activities and
       will be left with seriously diminished prospects for his [or her] quality
       of life for the few years he [or she] has left. A juvenile offender’s
       release when he [or she] is in his [or her] late sixties comes at an age
       when the law presumes that he [or she] no longer has productive
       employment prospects. Indeed, the offender will be age-qualified for
       Social Security benefits without ever having had the opportunity to
       participate in gainful employment.

Casiano at 77

.

                 Thus, “[a]s a practical matter, a juvenile offender sentenced to a

lengthy term-of-years sentence will not have a ‘meaningful opportunity for release.”’

Cloud v. State,

2014 WY 113

334 P.3d 132, ¶ 34

 (2014). “The United States
Sentencing Commission recognizes this reality when it equates a sentence of 470

months (39.17 years) to a life sentence.”

Id.,

 citing U.S. Sentencing Commission

Preliminary Quarterly Data Report (through Mar. 31, 2014), at 8.1

                In determining whether Strowder’s sentence would give him a

meaningful opportunity to have a life outside prison, this court should note that

Moore,

2016-Ohio-8288

, and Graham,

, tell us that a sentence should be composed

not with the intent “to eventually allow juvenile offenders the opportunity to leave

prison in order to die” but with the intent that juvenile offenders will be able to “live

part of their lives in society.” See Moore at ¶ 46. “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.” Moore at ¶ 63.

Thus, pursuant to Graham and Moore, the constitutional requirement is that the

juvenile offender be given the chance to seek release while his or her life “is still

meaningful”— a meaningful opportunity to seek a meaningful life outside of prison.

I emphasize that allowing Strowder an earlier chance at parole does

not guarantee release. The Graham court recognized that “those who commit truly

horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving

1The most recent report kept the same calculation. See U.S. Sentencing
Commission Quarterly Data Report (through Mar. 31, 2019),
at A-4, https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal
sentencing-statistics/quarterly-sentencing-updates/USSC_Quarter_Report_2nd_ Y19.
pdf (accessed July 30, 2019).
of incarceration for the duration of their lives.” Id. at 75. Moreover, as a practical

matter, it is unlikely that Strowder, a violent offender with a life-tail sentence, will

be granted parole the first time he appears before the parole board. See Ohio

Department of Rehabilitation and Correction, Calendar Year 2018 Report,

https://drc.ohio.gov/Portals/0/PAROLE%20BOARD%20REPORT_CY2018%20A

NNUAL.pdf (accessed Aug. 6, 2019) (In 2018, 1,269 inmates appeared before the

parole board. The board granted parole to only 226 (17.8%).)

Although neither the United States Supreme Court nor the Ohio

Supreme Court has given numeric figures when defining “meaningful opportunity”

in years, the courts provide guidance to sentencing courts by highlighting what

defining principles require different treatment of juveniles under the constitution.

For example, courts must recognize a juvenile offender’s “capacity for change and

limited moral culpability,” offer “hope of restoration,” give a “chance for fulfillment

outside prison walls,” and “for reconciliation with society.” Graham at 74-79. This

recognition includes the opportunity for the juvenile offender to achieve “maturity

of judgment and self-recognition of human worth and potential.” Id. at 79.

Sentencing courts must also keep in mind that the United States

Supreme Court has equated the “meaningful opportunity for release based on

demonstrated maturity and rehabilitation” with a “hope for some years of life

outside prison walls.” Carter v. State,

461 Md. 295, 356

192 A.3d 695

 (2018), citing

Montgomery v. Louisiana, 577 U.S.___,

136 S.Ct. 718

193 L.Ed.2d 599

 (2016); see

also Moore,

2016-Ohio-8288

 (finding that
juvenile nonhomicide offender must be given a chance to demonstrate the change

they have undergone since committing their crimes so that they can potentially

reenter society with enough time left for a meaningful life outside of prison).

               As other states have recognized, Graham,

, envisioned “more than the mere act of release or a de minimis

quantum of time outside prison.” People v. Contreras,

4 Cal.5th 349, 368

411 P.3d 445

229 Cal. Rptr.3d 249

 (2018). Graham spoke of the chance to rejoin society in

qualitative terms — “the rehabilitative ideal” — that contemplates a sufficient period

to achieve reintegration as a productive and respected member of the citizenry.

Contreras at

id.

 Because courts have recognized that children are different from

adults, children convicted in criminal court must be given the opportunity to regain

their “value and place in society.” Graham at 79. As the Ohio Supreme Court

recognized in Moore, Graham’s holding is more than mere formalism. Instead,

Moore determined that the “key principle” for ensuring that a juvenile nonhomicide

offender receives a constitutional sentence is that the juvenile offender have the

opportunity to someday demonstrate that they are worthy to reenter society. Id. at

¶ 63.

               “An opportunity to obtain release does not seem ‘meaningful’ or

‘realistic’ within the meaning of Graham if the chance of living long enough to make

use of that opportunity is roughly the same as a coin toss.”

Contreras at 364

. Here,

the trial court did not grant Strowder a meaningful opportunity for release when it
sentenced him to a term of years that precludes parole board review until he is 61

years old.

               It is clear from the sentencing transcript that the trial court failed to

follow the mandate we set forth in Strowder I ─ to resentence Strowder to a term of

years that would afford him a “meaningful opportunity for parole.” Strowder I at ¶

45. Instead, the trial court determined what sentence length would fall short of

Strowder’s life expectancy, asking the parties if they had consulted actuarial tables,

before stating that a sentence of 34 years was “under the life expectancy. If anyone

had checked and we checked the tables, I believe the life expectancy is upward of 70

and 80 years depending on race and other things.” But Moore,

2016-Ohio-8288

, was not only concerned with release while an

offender could create a meaningful life; Moore emphasized 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.” Id. at ¶ 82, citing Null,

836 N.W.2d 41

,

citing Graham. “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.”

Moore,

2016-Ohio-8288

, at

id.

 Given the

immense challenges facing a person who spends decades in prison, I simply do not

agree that release from prison after spending the majority of one’s life incarcerated,

from adolescence into one’s sixties, allows the opportunity to reenter society with

enough time left for a “meaningful and productive life outside prison.” Contrary to
this court’s mandate in Strowder I, “fine line-drawing” is exactly what the trial court

did.

                There are two other problems with the court’s sentence. First, the

court’s use of actuarial tables raises concerns about equal protection, given the

differences in life expectancy among races, genders, etc. Second, life expectancy is

an average.     Not surprisingly, the life expectancy of people who have been

imprisoned for most of their lives is not the same as people who have spent the

majority of their lives outside of prison. See State v. Gilbert, Wash. App. No. 33794-

4-III,

2018 Wash. App. LEXIS 740

, ¶ 108 (Apr. 3, 2018) (Fearing, J., dissenting),

rev’d,

193 Wash.2d 169

438 P.3d 133

 (2019) (“Court decisions fail to mention that

incarceration decreases one’s life expectancy. … [F]or every year spent behind

bars, overall life expectancy decreases two years. This evidence suggests that a

juvenile offender sentenced to a fifty-year term of imprisonment may never

experience freedom.”) See also People v. Buffer,

2019 IL 122327

, ¶ 66, citing

Deborah LaBelle, Michigan Life Expectancy Data for Youth Serving Natural Life

Sentences     (2013),   available   at   http://www.lb7.uscourts.gov/documents/17-

12441.pdf [https://perma.cc/9PSY-3B6Q] (accessed July 30, 2019) (concluding

that Michigan juveniles sentenced to natural life sentences have an average life

expectancy of 50.6 years); Straley, Miller’s Promise: Re-Evaluating Extreme

Criminal Sentences for Children,

89 Wash. L. Rev. 963

, 986, fn. 142 (2014) (“The

high levels of violence and communicable diseases, poor diets, and shoddy health

care [in prison] all contribute to a significant reduction in life expectancy behind
bars.”); Null at

id.

 (acknowledging that “long-term incarceration [may present]

health and safety risks that tend to decrease life expectancy as compared to the

general population”); United States v. Tavares,

436 F.Supp.2d 493, 500

 (E.D.N.Y.

2006) (finding that persistent problems in prisons of rape, gang violence, use of

excessive force by officers, and contagious diseases lead to a lower life expectancy).

               Courts in other states have determined that life expectancy data

should not be used when determining whether a juvenile offender’s sentence

violates the Eighth Amendment. The Supreme Court of Iowa held that whether a

sentence violates Graham must not “turn on the niceties of epidemiology, genetic

analysis, or actuarial sciences in determining precise mortality dates.” Null at

id.


The Supreme Court of New Jersey held that “[j]udges … should not resort to

general life-expectancy tables when they determine the overall length of a sentence,”

since “those tables rest on informed estimates, not firm dates, and the use of factors

like race, gender, and income could raise constitutional issues.” State v. Zuber,

227 N.J. 422, 449

152 A.3d 197

 (N.J. 2017). See also Cloud,

2014 WY 113

334 P.3d 132

;

Cummings and Colling, There is No Meaningful Opportunity in Meaningless Data:

Why it is Unconstitutional to Use Life Expectancy Tables in Post-Graham

Sentences, 18 U.C. Davis J. Juv.L. & Policy 267 (2014) (criticizing Colorado courts’

reliance on life expectancy tables in sentencing juvenile offenders).

               I recognize that some Ohio courts have upheld long-term sentences

for nonhomicide juvenile offenders post-Graham,

 and Moore,

2016-Ohio-8288

. In
Watkins, 10th Dist. Franklin Nos. 13AP-133 and 13A

P-134, 2018-Ohio-5137

,

discretionary appeal not allowed,

155 Ohio St.3d 1422

2019-Ohio-1421

120 N.E.3d 868

, the Tenth District Court of Appeals determined that opportunity for

judicial release at age 50 complies with the Eighth Amendment as interpreted by

Graham and Moore.

Watkins at ¶ 25

. Based on Moore, Watkins found that term-

of-years sentences that exceed a juvenile defendant’s life expectancy for

nonhomicide offenses may be acceptable when a defendant has the opportunity to

demonstrate maturity and rehabilitation before his or her “geriatric” years.

Watkins at ¶ 30

.

                Watkins concluded that Moore “made clear” that juvenile sentences

run afoul of the Eighth Amendment when: (1) the aggregate sentence exceeds the

juvenile’s life expectancy; and (2) the juvenile has no meaningful opportunity to

obtain release and reenter society based upon demonstrated maturity and

rehabilitation prior to the completion of the sentence.

Watkins at ¶ 22

. Watkins

concluded that the appellant’s sentence was constitutional because he would have

the opportunity for judicial release at age 50, which would give him the “opportunity

to seek release while it is still meaningful.” Id. at ¶ 32.

               Watkins interpreted Moore to mean a juvenile nonhomicide sentence

does not violate the Eighth Amendment even if the aggregate sentence exceeds the

juvenile’s life expectancy so long as the juvenile has a meaningful opportunity to

obtain release and reenter society based upon demonstrated maturity and

rehabilitation prior to the completion of his or her lengthy prison term. While
Watkins recognized “significant challenges that confront any defendant who

reenters society after many years of incarceration,” the court found that the

defendant would have “the opportunity to demonstrate maturity and rehabilitation

at an age when most people are still in good health and in their prime working

years”:

       [T]he possibility for judicial release at age 50 grants Watkins the
       opportunity to reenter society with enough time left for a meaningful
       and productive life outside prison. To conclude otherwise would
       suggest there is not enough time left after a person reaches age 50 for
       life to be meaningful and productive. This is a proposition we cannot
       accept.

Id. at ¶ 28.

                  I disagree with the analysis in Watkins, 10th Dist. Franklin Nos.

13AP-133 and 13AP-134,

2018-Ohio-5137

. The court relied on two Ohio cases where

the appellate courts held that eligibility for parole at age 58 or 59 does not violate

the Eighth Amendment: State v. Taylor, 2d Dist. Montgomery No. 27879, 2018-

Ohio-4628, ¶ 11, and State v. Burns, 2d Dist. Montgomery No. 27374, 2018-Ohio-

1419, ¶ 21-23. But Taylor and Burns concerned juvenile homicide offenders ─

Taylor, who was convicted of murder and Burns, who was convicted of aggravated

murder.        See Graham,

560 U.S. at 69


(distinguishing nonhomicide offenses from homicide offenses “in a moral sense”

because nonhomicide juvenile offenders “are categorically less deserving of the most

serious forms of punishment than are murderers.”)
                The majority in this case also rely on Taylor and Burns; because

those cases involve homicide offenses, such reliance is misplaced. In addition,

Strowder will be 11 years older than Watkins when he first becomes eligible for

parole. Moreover, Watkins’ conclusion that it cannot accept a proposition that one

cannot have a meaningful life after age 50: (1) ignores the harsh realities of spending

one’s entire adult life incarcerated, (2) ignores the difference between continuing a

meaningful life into one’s 50s versus attempting to start a meaningful life after being

incarcerated for the majority of one’s life. See Casiano, 317 Conn. at 78,

115 A.3d 1031

.

                In a recent case from our district, State v. Collins, 8th Dist. Cuyahoga

Nos. 106590, 107341,

2019-Ohio-249, ¶ 21

, this court upheld a 29-year sentence

where the juvenile offender would be eligible for judicial release after 14.5 years,

when he will be 32 years old. The current case is distinguishable; Strowder was

sentenced to a 34-years-to-life sentence and will not be eligible for parole until he is

61, almost twice the age of the offender in Collins.

                When a juvenile is sentenced to a long term-of-years sentence, as

occurred in this case, the juvenile often ends up serving more years than his or her

adult equivalent. See Moore,

2016-Ohio-8288

76 N.E.3d 1127, at ¶ 62

, quoting Graham,

560 U.S. at 50

 (Under a

life-without-parole sentence, a juvenile offender “will on average serve more years

and a greater percentage of his [or her] life in prison than an adult offender.”)
      The same mathematical reality — that a person who begins serving a
      life sentence as a juvenile serves a greater number of years and a
      greater percentage of his or her life in prison than a person who starts
      serving his sentence as an adult — extends to multidecade sentences
      that outstrip a juvenile’s life expectancy. The practical reality is that
      juveniles sentenced to terms extending beyond their life expectancies
      are serving the lengthiest sentences — in terms of the number of years
      actually served in prison — that a state can impose.

Moore at ¶ 53.

                 I also emphasize that, in Ohio, Strowder, who is a juvenile

nonhomicide offender, has a parole eligibility date that far exceeds the parole

eligibility date for an offender sentenced to life in prison for murder. See R.C.

2903.02 and 2929.02 (With some exceptions, a person convicted of murder shall be

imprisoned for an indefinite term of 15 years to life.). In addition, although I

recognize our focus is the age that Strowder is eligible for parole and whether, at that

age, he will have a meaningful opportunity to reenter society, the court should not

discount that role of the parole board in determining his release; the discretion of

the Ohio Adult Parole Authority and the parole board over parole matters is “wide-

ranging.” State ex rel. Keith v. Ohio Adult Parole Auth.,

141 Ohio St.3d 375

, 2014-

Ohio-4270,

24 N.E.3d 1132, ¶ 26

.

      A prisoner has no constitutional or statutory right to parole. State ex
      rel. Henderson v. Ohio Dept. of Rehab. & Corr.,

81 Ohio St.3d 267, 268

1998 Ohio 631

690 N.E.2d 887

 (1998). Because there is no such
      right, a prisoner who is denied parole is not deprived of liberty as long
      as state law makes the parole decision discretionary. Id. at
      125. Under R.C. 2967.03, the parole decision in Ohio is discretionary.

Keith at ¶ 19

.
                If an inmate is denied parole at his or her hearing, under most

circumstances, the board need not hold another hearing for up to ten years. Ohio

Adm.Code 5120:1-1-10(B) (“If the parole board denies parole at an inmate’s

regularly constituted hearing and does not set a projected release date, then the

board must set a time for a subsequent hearing not more than ten years from the

date of the first hearing.”).2

                The majority posits that Strowder’s sentence is constitutional

because it is not a “functional life sentence” and provides him with a “realistic and

meaningful opportunity to demonstrate maturity and reform” and the “potential to

return to society within his normal life expectancy.” I disagree. While the facts of

this case, as in Moore,

2016-Ohio-8288

,

certainly do not “engender a sense of sympathy” for Strowder, the mandate in

Strowder I was clear and, for me, the question is simple: Will Strowder have a

meaningful opportunity to reenter society and have a meaningful life after being

incarcerated for almost his entire adult life, from age 17 to 61, given all the

circumstances, risks, and dangers attendant to prison life? I opine that he will not



       2Although some progress is being made in Ohio to reform the parole system and
parole boards, see https://governor.ohio.gov/wps/portal/gov/governor/media/news- and-media/ 050119 (accessed Aug. 6, 2019), Ohio is lagging behind other states. Contrast
Pennsylvania, which has one of the largest populations of prisoners serving life without
parole (5,102 prisoners, of whom 480 were juveniles at the time of their offense), but,
where, on average, 58 percent of parole applicants were granted parole between February
2015 and January 2016. False Hope: How Parole Systems Fail Youth Serving Extreme
Sentences,    https://www.aclu.org/sites/default/files/field_document/121416-aclu-parole reportonlinesingle.pdf (accessed Aug. 6, 2019).
and, therefore, under Graham,

560 U.S. at 50

, and

Moore, his sentence is unconstitutional.

               “[I]t is important that the spirit of the law not be lost in the

application of the law”:

      The spirit of the constitutional mandates of Miller [

567 U.S. 460