State v. Garner

[Cite as State v. Garner, 

.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




STATE OF OHIO,
                                                          CASE NO. 1-23-60
         PLAINTIFF-APPELLEE,

    v.

KHYRESE GARNER,                                           OPINION

         DEFENDANT-APPELLANT.



                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR2022 0364

                                      Judgment Affirmed

                           Date of Decision: November 4, 2024



APPEARANCES:

         Brian A. Smith for Appellant

         John R. Willamowski, Jr. for Appellee
Case No. 1-23-60




EPLEY, J.

           {¶1} Defendant- Appellant Khyrese Garner appeals from his conviction in

the Allen County Court of Common Pleas after he pled no contest to a single count

of murder, an unclassified felony in violation of R.C. 2903.02(B), and was sentenced

to a mandatory term of 15 years to life in prison. For the reasons that follow, the

judgment of the trial court will be affirmed.

I.         Facts and Procedural History

           {¶2} On June 10, 2022, Garner (who was 17 at the time) and two friends

were with a few girls they had met and decided to procure marijuana. Garner and

the group planned to go to Jaden Halpern’s house, the former boyfriend of one of

the girls, because he was known to sell the drug. At some point, the plan changed

from buying marijuana from Halpern to taking it from him by force. To facilitate

the robbery, Garner and his group brought fake guns, including one that looked like

a rifle.

           {¶3} When the group arrived at Halpern’s house, they tried to lure him

outside to take the drugs and money and run, but when Halpern got suspicious and

refused to go outside, Garner and his friends charged in the front door, guns in hand.

In the confusion, Halpern’s father fired a gun, but instead of hitting one of the



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intruders, the bullet punctured his son’s abdomen, causing his death. Garner and the

others fled the scene but were eventually apprehended.

       {¶4} On June 15, 2022, Garner was charged in the Allen County Juvenile

Court with a series of crimes which, if committed by an adult, would be felonies,

including Count One – murder (R.C. 2903.02(B)); Count Two – aggravated burglary

(R.C. 2911.11(A)(1)); Count Three – aggravated robbery (R.C. 2911.01(A)(1)); and

Count Four – aggravated robbery (R.C. 2911.01(A)(3)). All four counts had

associated firearm specifications. The State later dismissed Count Three and its

firearm specification.

       {¶5} Following a probable cause hearing in juvenile court, the case was

transferred to the Allen County Court of Common Pleas where Garner was indicted

on Count 1 – murder; Count 2 – aggravated burglary; and Count 3 – aggravated

robbery. All three counts included firearm specifications. After several unsuccessful

motions to dismiss on constitutional grounds, on September 1, 2023, Garner pled

no contest to Count One – Murder. In exchange for the plea, the State agreed to

dismiss the remaining counts and all the firearm specifications. He was sentenced

to a mandatory term of 15 years to life in prison and given credit for 448 days served.

       {¶6} Garner has filed a timely appeal with four assignments of error. We will

address them in a manner that facilitates our analysis.




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II.    Constitutionality of Mandatory Bindover Law

       {¶7} In his first assignment of error, Garner argues that R.C. 2152.10(A)(1),

Ohio’s mandatory bindover law, is unconstitutional, both on its face and as applied

because it violates the Eighth Amendment to the United States Constitution and

Article I, Section 9 of the Ohio Constitution.

Cruel and Unusual Punishment

       {¶8} 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.” “Similarly, Article I, Section 9 of the Ohio

Constitution provides that ‘[e]xcessive bail shall not be required; nor excessive fines

imposed; nor cruel and unusual punishment inflicted.’ ” State v. Morris, 2022-Ohio-

4609, ¶ 7. The Ohio Supreme Court has noted that cruel and unusual punishment

applies only to the rare case where the penalty would be “ ‘considered shocking to

any reasonable person.’ ” State v. Weitbrecht, 

 (1999), quoting

McDougle v. Maxwell, 

 (1964); In re C.P., 

. “[P]unishments which are prohibited by the Eighth Amendment are limited to

torture or other barbarous punishments, degrading punishments unknown at

common law, and punishments which are so disproportionate to the offense as to

shock the moral sense of the community.” 

. Another key component

is that punishment for a crime should be graduated and proportioned to the offense.


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State v. Moore, 

. To reach the level of cruel and unusual

punishment, “the penalty must be so greatly disproportionate to the offense as to

shock the sense of justice of the community.” 

.

Juvenile Bindover

       {¶9} Juvenile courts have exclusive jurisdiction over children alleged to be

delinquent, but if a child is old enough and is alleged to have committed an act that

would be a felony if committed by an adult, the juvenile court may – and in some

cases must – transfer jurisdiction to adult court for prosecution. R.C. 2152.10, R.C.

2152.12. Both parties agree that under R.C. 2152.10(A)(1), Garner was subject to

mandatory transfer because he was over 16 years old at the time of the crime and

because he was charged with murder. Where the parties diverge, however, is whether

the Eighth Amendment permits this transfer.

Analysis

       {¶10} It is Garner’s contention that R.C. 2152.10’s mandatory transfer

scheme runs afoul of the Eighth Amendment because the statute does not require

the court to consider youthfulness in determining whether to transfer his case over

to adult court - an argument that has been rejected by Ohio courts.

       {¶11} Ohio courts have concluded that mandatory juvenile bind-over statutes

do not violate the Eighth Amendment because “to implicate the Eighth

Amendment’s ban on cruel and unusual punishments, there must be a punishment.

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Mandatory bindover does not constitute a punishment: it simply changes the forum

where punishment is determined.” State v. McKinney, 

 (1st

Dist.). See also State v. Lane, 

 (11th Dist.) (concluding that

mandatory bindover does not fit the definition of a punishment and thus, the

prohibition of cruel and unusual punishment would not apply); State v. Simmonds,

 (10th Dist.) (reasoning that there are no Eighth Amendment

issues “because [the statutes] do not govern the sentencing of juveniles but, rather,

whether a juvenile case must be transferred to adult court.”); State v. Anderson,

 (2d Dist.); State v. Mays, 

 (8th Dist.). As noted in

State v. Quarterman, 

 (9th Dist.), “[m]andatory bindover does

not equate to punishment any more than the mere prosecution of an adult in the

common pleas court constitutes punishment.”

       {¶12} Because the Cruel and Unusual Punishment Clauses of the United

States Constitution and the Ohio Constitution are only implicated by punishments,

and being transferred to adult court is not one, Garner’s first assignment of error is

overruled.

III.   Consideration of Youth in Bindover Proceedings

       {¶13} In his third assignment of error, Garner contends that his conviction

and sentence were contrary to law because neither the juvenile court nor the adult




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court considered his youthfulness as a factor in whether to transfer his case from

juvenile to adult court.

       {¶14} In the context of transferring the case from juvenile court to adult

court, we have already held that the Eighth Amendment does not apply because

there is no punishment involved. “Mandatory bindover does not equate to

punishment any more than the mere prosecution of an adult in the common pleas

court constitutes punishment.” 

. It is merely a procedure. Further,

Garner has not provided any cases to support his position other than those dealing

with sentencing, which would not apply to this argument.

       {¶15} To the extent that he argues his sentence is contrary to law, we reject

that claim as well. “A sentence is contrary to law when it does not fall within the

statutory range for the offense or if the trial court fails to consider the purposes and

principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors

set forth in R.C. 2929.12.” (Citation omitted.) State v. Brown, 

(2d Dist.); State v. Skaggs, 

, ¶ 11-13 (3d Dist.). Garner’s sentence

was within the statutory range set by the legislature, and the trial court (in both its

judgment entry and during the disposition) stated that it considered R.C. 2929.11

and 2929.12.

       {¶16} The third assignment of error is overruled.




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IV.    Jurisdiction

       {¶17} In his fourth assignment of error, Garner asserts that the trial court did

not have subject matter jurisdiction to convict and sentence him because neither the

juvenile or adult court considered his youthfulness as a factor in whether to transfer

the case. He claims this was a violation of the Eighth Amendment to the United

States Constitution and Article I, Section 9 of the Ohio Constitution.

       {¶18} “[J]uvenile courts have exclusive jurisdiction over cases involving

juveniles alleged to have committed acts that would constitute criminal offenses if

committed by an adult.” State v. Williams, 

. See R.C. 2151.23

and 2152.03. The juvenile court relinquishes jurisdiction to the adult court through

a mandatory or discretionary bindover proceeding when certain requirements are

met. See R.C. 2152.12. “For a case involving a defendant who was 16 years old

when he allegedly committed murder, the juvenile court is required to ‘transfer the

case’ to the adult court if the juvenile court finds that there is probable cause to

believe   that   the   juvenile   ‘committed    the   act   charged.’ ”     Id.;   R.C.

2152.12(A)(1)(a)(i).

       {¶19} It does not appear that Garner objects to the procedure of transferring

his case to adult court. Instead, he again argues that “both the Eighth Amendment,

and Article I, Section 9 of the Ohio Constitution, require courts to separately

consider the youthfulness of the offender in whether to transfer the case[.]”

Appellant’s Brief at 23. As we have stated, cruel and unusual punishment is not
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implicated in the transfer of a 17-year-old to adult court because there is no

punishment involved. The Eighth Amendment and/or Article I, Section 9 is not

applicable.

       {¶20} The fourth assignment of error is overruled.

V.     Constitutionality of R.C. 2929.02(B)(1) as to Juveniles

       {¶21} In his second assignment of error, Garner argues that R.C.

2929.02(B)(1) is unconstitutional – both on its face and as applied – because it

violates the Eighth Amendment’s prohibition against cruel and unusual punishment.

It is his contention that because the statute makes no provision for a juvenile to

receive a sentence of less than 15 years to life, that it takes away the trial court’s

ability to impose a lesser sentence if it finds youthfulness to be a mitigating factor.

This “one-size-fits-all” approach, treating a child of less than 18 in the same manner

as an adult, according to him, is cruel and unusual punishment.

       {¶22} To support his argument, Garner relies on several United States

Supreme Court cases, beginning with Graham v. Florida, 

 (2010).

Graham, who was 16 at the time, was sentenced to life in prison without the

possibility of parole for armed burglary and attempted armed robbery. He argued

that such a harsh sentence was cruel and unusual punishment under the Eighth

Amendment. In a 6-3 decision, the United States Supreme Court held that

sentencing a juvenile to life without parole for non-homicide crimes violated the


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Eighth Amendment. It reasoned that “because juveniles have lessened culpability,

they are less deserving of the most severe punishments.” 

, citing Roper

v. Simmons, 

 (2005). A juvenile offender is not absolved of

responsibility for his or her actions, but the transgressions are “not as morally

reprehensible as that of an adult.” 

 quoting Thompson v. Oklahoma, 

 (1988).

       {¶23} Two years later, Miller v. Alabama, 

 (2012) extended the

logic further, this time to mandatory life sentences without the possibility of parole

on juvenile offenders convicted of murder. The Miller court concluded that because

of the unique circumstances of juveniles, the Eighth Amendment requires that they

are given a “meaningful opportunity to obtain release based on demonstrated

maturity and rehabilitation.” 

, quoting 

.

       {¶24} Ohio courts have followed suit. In State v. Long, 

, a

case involving aggravated murder, the Ohio Supreme Court held that “[a] court, in

exercising its discretion . . . must separately consider the youth of a juvenile offender

as a mitigating factor before imposing a sentence of life without parole.” 

 at

paragraph one of the syllabus. In State v. Patrick, 

, another

aggravated murder case, the Court held that “a sentence of life in prison with parole

eligibility imposed on a juvenile offender is analogous to a sentence of life in prison

without the possibility of parole for purposes of analysis under the Eighth



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Amendment and that a court must specifically consider a juvenile offender’s youth

as a mitigating factor at sentencing.” Id. at ¶ 36, 42.

       {¶25} Finally, in late 2022, the Ohio Supreme Court released State v. Morris,

. In a 4-3 decision, the Court upheld Patrick and affirmed that a

sentencing court must demonstrate on the record that it considered the offender’s

youth in sentencing. It should be noted, however, that the dissent called into question

the legitimacy of Morris’ lead opinion, arguing that requiring an on-the-record

finding that the court considered the defendant’s youth as a mitigating factor is in

direct contravention of the United States Supreme Court’s holding in Jones v.

Mississippi, 

 (2021), which held that sentencing courts are not required

to expressly consider a juvenile’s age on the record. The dissent highlighted that

the Jones court stated that it has “never required an on-the-record sentencing

explanation” and that “Miller did not impose a formal factfinding requirement.” Id

at 101, 116.

       {¶26} While noting that Garner’s argument is well-thought-out and well-

reasoned, we believe there are significant reasons not to extend the holdings of

Patrick and Morris to this case. First, while the appellants in Patrick and Morris

were convicted of aggravated murder pursuant to R.C. 2903.01 (or in Morris’ case,

complicity to commit aggravated murder) and sentenced under R.C. 2929.03,

Garner pled no contest to felony murder (R.C. 2903.02(B)) and was sentenced under

R.C. 2929.02(B)(1). Both scenarios deal with homicides, but Patrick and Morris

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concerned R.C. 2929.03 – a statute that provides for multiple punishment options,

and Garner was sentenced under a separate statute that does not. Because of that,

Patrick and Morris are not controlling.

       {¶27} It is also significant that we have found no case (either from the Ohio

Supreme Court or another appellate court) holding that a sentence of 15 years to life

is unconstitutional when applied to a juvenile offender. Further, the United States

Supreme Court has concluded that based on the unique circumstances of juveniles,

the Eighth Amendment requires that juvenile offenders be given a “ ‘meaningful

opportunity to obtain release based on demonstrated maturity and rehabilitation.’ ”

Miller, 

, quoting Graham v. Florida, 

 (2010). That

is, a juvenile offender must have “hope of restoration,” and a “chance for fulfillment

outside prison walls.” 

. In the case of a juvenile like Garner, who

is subject to a term of 15 years to life, there is no question he will get that kind of

opportunity. Garner was 17 years old when he was sentenced; he will be eligible for

parole and release in his early 30’s, likely ensuring him decades of “fulfillment

outside the prison walls.” See also State v. Brown, 

 (2014) (By

permitting parole after the mandatory 20-year minimum term is served, sentence

gives juvenile offender a meaningful opportunity to obtain release); Commonwealth

v. Okoro, 

 (2015) (“We do not read Miller . . . to indicate that the

proportionality principle at the core of the Eighth Amendment would bar a



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mandatory sentence of life with parole eligibility after fifteen years for a juvenile

convicted of murder[.]”).

       {¶28} Finally, from an even higher-level view of the Eighth Amendment,

Garner’s 15 years to life sentence is not problematic because the punishment is not

“grossly disproportionate” to the crime. Ohio courts have noted that the Eighth

Amendment does not mandate strict proportionality between crime and sentence,

and that “only in the rare case in which a threshold comparison of the crime

committed and the sentence imposed leads to an inference of gross

disproportionality” is cruel and unusual punishment implicated. State v. Weitbrecht,

 (1999), quoting Harmelin v. Michigan, 

(1991) (Kennedy, J. concurring). As to the question of “gross disproportionality,”

those cases are limited to ones involving sanctions which are considered “shocking

to any reasonable person.” Id. at 371. “[T]he penalty must be so greatly

disproportionate to the offense as to shock the sense of justice of the community.”

Id. quoting 

.

       {¶29} Here, we have a young man who decided to force his way, gun in hand,

into his drug dealer’s house to steal marijuana. In the process, the homeowner

accidentally shot and killed his own son who was at the door of his house. Another

young person died - at the hands of his own father - because Garner decided to steal

drugs. There can be very little doubt that a 15 years to life sentence is not grossly



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disproportionate to the crime of murder. Certainly, it would not shock the sense of

justice of the community.

       {¶30} R.C. 2929.02(B)(1) is not unconstitutional on its face or as applied to

Garner. The second assignment of error is overruled.

VI.    Conclusion

       {¶31} The judgment of the trial court is affirmed.

                                                               Judgment Affirmed

ZIMMERMAN and MILLER, J.J., concur.

/hls

… Judge Christopher B. Epley of the Second District Court of Appeals, sitting
by Assignment of the Chief Justice of the Supreme Court of Ohio.




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