[Cite as State v. Zimmerman,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case Nos. 2015-CA-62 & : 2015-CA-63 v. : : Trial Court Case Nos. 2015-CR-70 & RAYMOND ZIMMERMAN : 2015-CR-137 : Defendant-Appellant : (Criminal Appeals from : Common Pleas Court)

...........

OPINION

Rendered on the ___8th___ day of ____April____, 2016.

...........

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Clark County Prosecuting Attorney, 50 East Columbia Street, Fourth Floor, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee

BROOKE M. BURNS, Atty. Reg. No. 0080256, Assistant State Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215 Attorney for Defendant-Appellant

.............

WELBAUM, J.

{¶ 1} In these cases, Defendant-Appellant, Raymond Zimmerman, appeals from

his convictions and sentences on one count of Murder, with a gun specification (Clark

County Common Pleas Court Case No. 2015-CR-70), and one count of Aggravated -2-

Robbery (Clark County Common Pleas Court Case No. 2015-CR-137). In support of his

appeal, Zimmerman contends that the trial court violated his right to due process by

sentencing him to a mandatory prison term of 15 years to life, because the non-rebuttable

sentencing presumption in R.C. 2929.02(B)(1) cannot lawfully be applied to juvenile

offenders. Zimmerman further contends that this automatic and mandatory term violates

his right to be free from cruel and unusual punishment. Finally, Zimmerman contends

that his trial counsel was ineffective because he failed to object to imposition of the

automatic and mandatory term of imprisonment.

{¶ 2} On a plain error basis, we conclude that R.C. 2929.02(B)(1) may be lawfully

applied to juvenile offenders without violating due process, and that the mandatory term

imposed by the statute does not violate Zimmerman’s right to be free from cruel and

unusual punishment. We further conclude that Zimmerman’s trial counsel did not

commit ineffective assistance by failing to raise these arguments in the trial court. Even

if the arguments had been timely raised, they are without merit. Accordingly, the

judgment of the trial court will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} On January 12, 2015, the body of William Henson was discovered in a

residence on Haddix Road in Clark County. When the police arrived, the residence had

been ransacked, and there were signs of a struggle. Henson died as the result of

multiple gunshot wounds. Based on information from statements at the scene, two

suspects were identified. Raymond Zimmerman, Henson’s nephew, was one of the

suspects. The police subsequently discovered information leading to Zimmerman’s -3-

location and executed a search warrant at an address on Wallace Drive in Fairborn, Ohio,

on January 15, 2015. They located and arrested Zimmerman at that address.

{¶ 4} On January 23, 2015, Zimmerman escaped from detention while in juvenile

custody. The following morning, a 70-year-old woman discovered Zimmerman in her

home. Zimmerman allegedly forced her, at knife point, to drive him to Fairborn, Ohio.

He was arrested in Fairborn later that day.

{¶ 5} At the time of these crimes, Zimmerman was 17 years old. The juvenile

court held probable cause hearings on February 5, 2015, and concluded that there was

probable cause that Zimmerman had committed Murder, a felony of the first degree on

January 12, 2015, in violation of R.C. 2903.02(A), and that transfer to the general division

of the common pleas court was mandatory under R.C. 2152.12.

{¶ 6} On February 9, 2015, Zimmerman was indicted in Clark County Common

Pleas Court Case No. 2015-CR-070, on one count of Aggravated Murder, one count of

Murder, three counts of Felony Murder, one count of Felonious Assault, one count of

Aggravated Robbery, one count of Aggravated Burglary, and one count of Theft of a

Firearm. All the counts carried firearm specifications.

{¶ 7} Subsequently, on March 16, 2015, Zimmerman was indicted in Clark County

Common Pleas Court Case No. 2015-CR-137, on one count of Aggravated Burglary, one

Count of Kidnapping, and one count of Theft, with an elderly person specification. These

charges related to the incident that occurred on the morning of January 24, 2015.

{¶ 8} Counsel was appointed for Zimmerman, and on May 11, 2015, Zimmerman

entered guilty pleas in both cases, pursuant to an agreed plea bargain. In exchange for

a guilty plea to Count Two of the indictment (Murder, with a gun specification) in Case -4-

No. 2015-CR-070, the State agreed to dismiss the remaining counts in the indictment,

and Zimmerman would be sentenced to a mandatory term of life in prison, with a

possibility of parole after 15 years, plus a three-year sentence on the gun specification.

{¶ 9} In Case No. 2015-CR-137, in exchange for Zimmerman’s guilty plea to

Aggravated Burglary, the State agreed to dismiss the remaining counts of the indictment.

In addition, the parties agreed to a ten-year sentence, and that the sentence would run

consecutive to the sentence in 2015-CR-070. The total sentence, thus, would be life in

prison, with parole eligibility after 28 years.

{¶ 10} After engaging in a Crim.R. 11 colloquy with Zimmerman, the trial court

accepted his guilty pleas, and sentenced him the same day to life in prison, with parole

eligibility after 28 years. Zimmerman timely appeals from his convictions and sentences.

II. Alleged Violation of Due Process

{¶ 11} Zimmerman’s First Assignment of Error states that:

The Clark County Court of Common Pleas Violated Raymond

Zimmerman’s Right to Due Process When It Sentenced Him to a Mandatory

Prison Term of 15 Years to Life Because the Irrebuttable Presumption in

R.C. 2929.02(B)(1) Cannot Be Lawfully Applied to Juvenile Offenders.

Fourteenth Amendment to the U.S. Constitution; Ohio Constitution, Article

I, Section 16.

{¶ 12} Under this assignment of error, Zimmerman argues that Ohio’s mandatory

sentencing requirements for homicide offenders violate due process by imposing

presumptions in sentencing that cannot be rebutted, and improperly result in juvenile -5-

offenders being treated the same as culpable adult offenders.

{¶ 13} R.C. 2929.02(B)(1) states, in pertinent part, that “whoever is convicted of or

pleads guilty to murder in violation of section 2903.02 of the Revised Code shall be

imprisoned for an indefinite term of fifteen years to life.” Thus, the statute imposes a

specific sentence, no matter what a defendant’s status may be. As Zimmerman

maintains, this statute prevents trial courts from taking a defendant’s youth into

consideration during sentencing. However, Zimmerman forfeited arguments about the

statute’s constitutionality by failing to raise them in the trial court. State v. Quarterman,

,

,

.

{¶ 14} In Quarterman, the defendant challenged the constitutionality of Ohio’s

mandatory bindover provisions. The Supreme Court of Ohio held, however, that the

defendant had forfeited the error because he failed to raise unconstitutionality in the trial

court.

at ¶ 8 and 15, citing State v. Awan,

,

(1986). (Other citations omitted.) In this regard, the court acknowledged it had

discretion to consider plain error, but noted that in such a situation, a defendant must

show “that but for a plain or obvious error, the outcome of the proceeding would have

been otherwise, and reversal must be necessary to correct a manifest miscarriage of

justice.” Id. at ¶ 16, citing State v. Davis,

,

,

. Ultimately, the court concluded that the defendant had failed to

adequately raise even plain error, and refused to consider the issue the defendant had

presented. Id. at ¶ 17-21.

{¶ 15} Exercising our discretion to consider plain error, we conclude, after

reviewing the issues, that the trial court did not commit plain error, and reversal is not -6-

required to correct a manifest miscarriage of justice.

{¶ 16} In arguing that R.C. 2929.02(B)(1) is unconstitutional, Zimmerman relies on

the fact that children are not as mature and responsible as adults. He also relies on

decisions of the United States Supreme Court that have drawn “bright-line” distinctions

between punishments for youthful offenders, even where they are transferred to adult

court.

{¶ 17} In Miller v. Alabama, ___ U.S. ___,

,

(2012),

the United States Supreme Court discussed a series of prior cases in which the court had

recognized that “children are constitutionally different from adults for purposes of

sentencing.”

, citing Roper v. Simmons,

,

,

(2005), and Graham v. Florida,

,

,

(2010). The court stressed its prior explanation that “[b]ecause juveniles have

diminished culpability and greater prospects for reform, * * * ‘they are less deserving of

the most severe punishments.’ ” Id., quoting Graham, 560 U.S. at 68. In addition, the

court 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.” Miller,

.

{¶ 18} Miller was a homicide case in which the defendant had been sentenced to

life imprisonment without parole.

. In view of the factors discussed above,

the United States Supreme Court stated that:

Mandatory life without parole for a juvenile precludes consideration of his

chronological age and its hallmark features—among them, immaturity,

impetuosity, and failure to appreciate risks and consequences. It prevents -7-

taking into account the family and home environment that surrounds him—

and from which he cannot usually extricate himself—no matter how brutal

or dysfunctional. It neglects the circumstances of the homicide offense,

including the extent of his participation in the conduct and the way familial

and peer pressures may have affected him. Indeed, it ignores that he

might have been charged and convicted of a lesser offense if not for

incompetencies associated with youth—for example, his inability to deal

with police officers or prosecutors (including on a plea agreement) or his

incapacity to assist his own attorneys. See, e.g., Graham, 560 U.S., at ––

––, 130 S.Ct., at 2032 (“[T]he features that distinguish juveniles from adults

also put them at a significant disadvantage in criminal proceedings”); J.D.B.

v. North Carolina, 564 U.S. ––––, ––––,

, 2400–2401,

(2011) (discussing children's responses to interrogation). And

finally, this mandatory punishment disregards the possibility of rehabilitation

even when the circumstances most suggest it.

Miller,

. As a result, the court held that “the Eighth Amendment forbids

a sentencing scheme that mandates life in prison without possibility of parole for juvenile

offenders.”

.

{¶ 19} In a subsequent decision, the Supreme Court of Ohio followed Miller and

held that “[a] court, in exercising its discretion under R.C. 2929.03(A), must separately

consider the youth of a juvenile offender as a mitigating factor before imposing a sentence

of life without parole.” State v. Long,

,

,

,

paragraph one of the syllabus. -8-

{¶ 20} After Miller and Long had been decided, we considered whether a trial court

erred in failing to take a defendant’s youth into account when imposing a sentence for

Aggravated Murder under R.C. 2929.03(A). State v. Jones, 2d Dist. Montgomery No.

26333,

. We held that Miller and Long did not apply, because the

trial court did not impose a life sentence without the possibility of parole. Id. at ¶ 8. We

went on to note that even if Long could arguably be read more broadly to require

evaluation of youth as a mitigating factor, the trial court had, in fact, considered factors

pertaining to the defendant’s youth. Id. at ¶ 9.

{¶ 21} In a subsequent case, we concluded that a trial court did not err in

sentencing a youthful defendant, even when the court specifically stated during the

sentencing hearing that it would not consider the defendant’s youth. State v. Hawkins,

2d Dist. Clark No. 2015-CA-16,

, ¶ 8. The defendant in Hawkins pled

guilty to Aggravated Murder and was sentenced to life in prison with parole eligibility after

he had served 30 years for the murder charge and three years for a firearm specification.

Id. at ¶ 5-8. He was 17 years old when he committed the crime. Id. at ¶ 2.

{¶ 22} In arguing that the trial court erred by failing to consider his youth, the

defendant relied on Long and Miller. Id. at ¶ 11. We rejected his argument, however.

First, we observed that we had recently discussed both Long and Miller in Jones. Id. at

¶ 12, citing Jones at ¶ 8. We then noted that Jones had also cited to State v. Hammond,

8th Dist. Cuyahoga No. 100656,

, in which “the Eighth District Court of

Appeals refused to extend the holding in Long to every sentence involving a juvenile

offender.” Id. at ¶ 13, citing Jones at ¶ 9, fn.2. We agreed with this approach, stating

that: -9-

As the record reveals, like the juvenile offenders in Jones and

Hammond, Hawkins did not receive a life sentence without parole.

Instead, he received a sentence of life in prison with the possibility of parole

after serving 33 years in prison. In turn, the concerns in Long with respect

to culpability and the possibility of rehabilitation do not exist in this case, as

it is still possible for Hawkins to become amenable to rehabilitation as he

matures into adulthood and to potentially be released on parole after serving

33 years in prison. Therefore, because there is no authority extending the

holding in Long to every prison sentence imposed on a juvenile offender,

and because the concerns discussed in Long do not exist here, we do not

find that the trial court erred when it decided not to consider Hawkins's youth

at sentencing.

Hawkins, 2d Dist. Clark No. 2015-CA-16,

, ¶ 16.

{¶ 23} In the case before us, the trial court did not refuse to consider Zimmerman’s

youth. Instead, the court indicated at the plea hearing that the only possible sentence

the court could impose for Murder was a mandatory sentence of life in prison with parole

eligibility after 15 years. Transcript of Plea and Disposition Hearing, p. 8. The court

assured that Zimmerman was aware of this before the court accepted his guilty plea. Id.

at pp. 8-9.

{¶ 24} In view of our prior authority, we conclude that R.C. 2929.02(B)(1) is not

unconstitutional. The decisions in Long and Miller do not apply, because the case before

us does not involve a sentence of life in prison without parole. Zimmerman will be eligible

for parole, as was noted, when he has served a prison term of 28 years. -10-

{¶ 25} We also recently rejected a defendant’s argument that mandatory

sentences imposed on juveniles in adult court are invalid as a violation of the Eighth

Amendment. State v. Anderson, 2d Dist. Montgomery No. 26525,

.

{¶ 26} In Anderson, the defendant was not convicted of homicide, but received

what appeared to be mandatory sentences for aggravated robbery and kidnapping

convictions, due to the fact that a firearm was involved. Id. at ¶ 36. In this regard, we

commented that:

Even accepting, arguendo, that Ohio law compelled the trial court to

impose punishment of at least three years in prison for Anderson's

substantive first-degree felony counts and a consecutive three-year term for

the merged firearm specifications, we see no violation of the Eighth

Amendment to the U.S. Constitution or Article I, Section 9 of the Ohio

Constitution. Contrary to the implication of Anderson's appellate brief, not

all “mandatory” punishment imposed on juveniles in adult court is cruel and

unusual. In State v. Long,

,

,

, for example, the Ohio Supreme Court considered whether Ohio's

felony sentencing scheme constituted cruel and unusual punishment as

applied to a juvenile convicted of aggravated murder in adult court and

sentenced to life without parole. In Long, the defendant faced a mandatory

minimum sentence of life with parole eligibility after twenty years.

. In the course of its ruling, the Ohio Supreme Court recognized that

Miller banned mandatory life-without-parole sentences on juveniles tried in

adult court. Id. at ¶ 8. Nowhere in Long, however, did the court suggest -11-

that * * * the Eighth Amendment or Article I, Section 9 prohibit any and all

mandatory sentences on juveniles tried in adult court. See also State v.

Reidenbach, 5th Dist. Coshocton No. 2014CA0019,

(rejecting argument by juvenile tried in adult court that imposition of punitive

and mandatory Tier III sex-offender requirements on him constituted cruel

and unusual punishment).

(Emphasis sic.) Anderson at ¶ 37.

{¶ 27} As a final matter, our review of cases decided by the Supreme Court of Ohio

and the United States Supreme Court after Miller shows no indication that the holding in

Miller has been extended to situations like the present.

{¶ 28} Accordingly, since there is no plain error, and no manifest miscarriage of

justice requiring reversal, the First Assignment of Error is overruled.

III. Alleged Cruel and Unusual Punishment

{¶ 29} Zimmerman’s Second Assignment of Error states that:

The Clark County Court of Common Pleas Violated Raymond

Zimmerman’s Right to Be Free From Cruel and Unusual Punishments

When It Imposed an Automatic and Mandatory Prison Term of 15 Years to

Life, in Accordance with R.C. 2929.02(B)(1). Eighth Amendment to the

U.S. Constitution; Ohio Constitution, Article I, Section 9; Miller v. Alabama,

___ U.S. ___,

,

(2012).

{¶ 30} Under this assignment of error, Zimmerman makes essentially the same

arguments that he asserted in support of the alleged due process violation. He again -12-

refers to Miller and Long, and the idea that R.C. 2929.02(B)(1) inappropriately precludes

trial courts from taking a juvenile’s youth into consideration for purposes of sentencing.

{¶ 31} Again, Zimmerman did not raise this issue in the trial court, and we will

review the issue only for plain error. Quarterman,

,

,

. For the reasons already explained in connection with the

First Assignment of Error, we find no plain error nor any manifest miscarriage of justice.

Id. at ¶ 16.

{¶ 32} “[T]he bulk of Eighth Amendment jurisprudence concerns not whether a

particular punishment is barbaric, but whether it is disproportionate to the crime. Central

to 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.’ ”

In re C.P.,

,

,

, ¶ 25, quoting Weems

v. United States,

,

,

(1910).

{¶ 33} “Proportionality review falls within two general classifications: the first

involves ‘challenges to the length of term-of-years sentences given all the circumstances

in a particular case.’ The second, which until recently was applied only in capital cases,

involves ‘cases in which the Court implements the proportionality standard by certain

categorical restrictions.’ ” Id. at ¶ 26, quoting Graham, 560 U.S. at 59,

,

. Zimmerman urges analysis under the latter category, which requires

courts to engage in a two-step process: “first, the court considers whether there is a

national consensus against the sentencing practice at issue, and second, the court

determines ‘in the exercise of its own independent judgment whether the punishment in

question violates the Constitution.’ ” Id. at ¶ 29, quoting Graham at 60. -13-

{¶ 34} In this regard, Zimmerman focuses on the “growing consensus against

subjecting children to adult treatment” and the fact that even where cases involving

children are decided in adult court, a defendant’s youth is a consideration in sentencing.

{¶ 35} As was noted, we have previously rejected the contention that mandatory

sentences for juveniles who are tried as adults violates the Eighth Amendment prohibition

against cruel and unusual punishment. Anderson, 2d Dist. Montgomery No. 26525,

. In Jones, we also rejected the argument of the defendant (who

turned 18 just before sentencing) that his 36 years-to-life sentence for Aggravated Murder

and other charges was cruel and unusual punishment. Jones, 2d Dist. Montgomery No.

26333,

. The defendant in Jones relied on Graham, and

argued that his sentence, which made him eligible for parole at 54 years old, equated to

a life sentence without parole. He claimed that he must be provided a meaningful

opportunity for release. Jones at ¶ 10. The defendant also argued that statistically, his

life expectancy in prison was 54 years or less.

{¶ 36} We rejected these arguments, stressing that Graham was inapplicable

because the defendant in Jones had not been convicted of a non-homicide offense and

did not receive a life sentence without parole. Id. at ¶ 11. In this regard, we emphasized

that concerning “juvenile homicide offenders such as Jones, the only sentences that have

been found to violate the Eighth Amendment are death sentences and mandatory

sentences of life without parole.” (Citations omitted.) Id. The same reasoning applies

here, and there was neither plain error nor a manifest miscarriage of justice in the

sentence imposed on Zimmerman. In fact, Zimmerman’s sentence is considerably less

than the sentence we affirmed in Jones. Accordingly, the Second Assignment of Error -14-

is overruled.

IV. Alleged Ineffective Assistance of Counsel

{¶ 37} Zimmerman’s Third Assignment of Error states that:

Raymond Zimmerman Was Denied Effective Assistance of Counsel,

in Violation of the Sixth and Fourteenth Amendments to the United States

Constitution and Article I, Section 10 of the Ohio Constitution.

{¶ 38} Under this assignment of error, Zimmerman contends that his trial counsel

was ineffective because he failed to object to the unconstitutionality of R.C.

2929.02(B)(1).

{¶ 39} Ineffective assistance of trial counsel claims are reviewed under the

analysis established in Strickland v. Washington,

,

,

(1984), and adopted by the Supreme Court of Ohio in State v. Bradley,

,

(1989). Based on these cases, trial attorneys are

entitled to a strong presumption that their conduct falls within a wide range of reasonable

assistance. Strickland,

. “Counsel's performance will not be deemed

ineffective unless and until counsel's performance is proved to have fallen below an

objective standard of reasonable representation and, in addition, prejudice arises from

counsel's performance.” (Citations omitted.) Bradley,

, paragraph

two of the syllabus. “To show that a defendant has been prejudiced by counsel's

deficient performance, the defendant must prove that there exists a reasonable probability

that, were it not for counsel's errors, the result of the trial would have been different.”

at paragraph three of the syllabus. -15-

{¶ 40} Trial counsel was not ineffective in the case before us. Even if

Zimmerman’s counsel had raised due process and cruel and unusual punishment

arguments in the trial court, Zimmerman would not be entitled to relief. For the reasons

previously mentioned, R.C. 2929.02(B)(1) does not violate either due process or

prohibitions against cruel and unusual punishment. The Third Assignment, therefore, is

without merit and is overruled.

V. Conclusion

{¶ 41} All of Zimmerman’s assignments of error having been overruled, the

judgment of the trial court is affirmed.

.............

HALL, J., concurs.

DONOVAN, P.J., dissenting: {¶ 42} I dissent. After Miller, legislative action affirmatively illustrates its

significance. Miller is not limited to barring mandatory life-without-parole sentences but

also affects discretionary sentencing schemes by requiring the consideration of youth as

a mitigating factor. After Miller, several state legislatures have amended their applicable

statutes to require the consideration of youth and its attendant characteristics and

circumstances as a mitigating factor. See Florida Stat. Ann. § 921.1401;

;

;

(as

amended, 2015 Nevada Laws Ch. 152 (AB 267)); 18 Pa. Cons. Stat. Ann. § 1102.1;

;

.

{¶ 43} Accordingly, I would reverse and remand for re-sentencing for the reasons -16-

articulated in my dissent in Hawkins which addressed Miller and Long in detail.

..........

Copies mailed to:

Ryan A. Saunders Brooke M. Burns Hon. Douglas M. Rastatter