State v. Anderson

• Decision Date: 05 July 2017
• Docket Number: No. 2016–0317.,2016–0317.
• Citation: 87 N.E.3d 1203,151 Ohio St.3d 212,2017 Ohio 5656
• Parties: The STATE of Ohio, Appellee, v. ANDERSON, Appellant.
• Court: Ohio Supreme Court

151 Ohio St.3d 212

87 N.E.3d 1203

2017 Ohio 5656

The STATE of Ohio, Appellee,

v.ANDERSON, Appellant.

No. 2016–0317.

Supreme Court of Ohio.

Submitted Feb. 28, 2017.

Decided July 5, 2017.

Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Meagan D. Woodall and Heather N. Jans, Assistant Prosecuting Attorneys, for appellee.

Timothy Young, Ohio Public Defender, and Stephen A. Goldmeier and Charlyn Bohland, Assistant Public Defenders, for appellant.

Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Michael J. Hendershot, Chief Deputy Solicitor, Stephen P. Carney, Deputy Solicitor, and Aaron S. Farmer, Assistant Attorney General, urging affirmance on behalf of amicus curiae Ohio Attorney General Michael DeWine.

Ron O'Brien, Franklin County Prosecuting Attorney, and Seth L. Gilbert, Assistant Prosecuting Attorney, urging affirmance on behalf of amicus curiae Franklin County Prosecuting Attorney Ron O'Brien.

O'DONNELL, J.

{¶ 1} Rickym Anderson appeals from a judgment of the Second District Court of Appeals affirming the 19 year prison sentence imposed on him at resentencing for his involvement in the robberies of Brian Williams, Tiesha Preston, and Star MacGowan and the kidnapping of Preston.

{¶ 2} Anderson failed to show that the trial court imposed the sentence as a penalty for exercising his right to a jury trial instead of pleading guilty. It is true that Anderson's codefendant, Dylan Boyd, received a nine year sentence, but he pled guilty to three felonies and agreed to testify against Anderson; by way of contrast, a jury found Anderson guilty of four felonies, the court specifically stated the 19 year sentence was not a penalty for going to trial, and the sentence imposed was within the range of punishment authorized by law.

{¶ 3} Neither does the sentence violate the Eighth Amendment to the United States Constitution's prohibition against cruel and unusual punishment, because it does not involve the imposition of the harshest possible penalties for juveniles, it is proportionate to the offenses committed by Anderson, and there is no national consensus against imposing mandatory sentences on juveniles tried as adults.

{¶ 4} Anderson also contends that the mandatory sentencing scheme set forth in R.C. Chapter 2929 violates due process as applied to children, but because he failed to raise this argument in the lower courts, it is forfeited and he cannot raise it for the first time in his appeal to this court.

{¶ 5} We therefore affirm the judgment of the appellate court.

Facts and Procedural History

{¶ 6} On April 20, 2012, 16 year old Rickym Anderson, Dylan Boyd, and M.H. noticed Brian Williams and Tiesha Preston standing inside a garage at 615 Yale Avenue in Dayton, Ohio. Boyd, along with Anderson and M.H., entered the garage, pointed a gun at Williams and Preston, and yelled, "Don't move." However, they both tried to run at that point, and Boyd shot Williams, grabbed Preston, and forced her into the trunk of a car parked outside the garage. After stealing a purse and cigarettes from inside that vehicle, they left.

{¶ 7} That same day, Anderson and Boyd approached Star MacGowan who was standing outside her apartment in Dayton. Anderson showed MacGowan a handgun, told her, "I'm gonna pop you," and demanded money from her. MacGowan handed over her purse, and he and Boyd took her cell phone, left the purse, and ran. Subsequently, a Dayton police officer apprehended Anderson near MacGowan's apartment. The officer recovered MacGowan's cell phone from a search of Anderson's person, and located a firearm 30 to 40 feet away.

{¶ 8} On July 5, 2012, the state of Ohio filed a complaint against Anderson in the juvenile court alleging offenses that, if committed by an adult, would constitute aggravated robbery, kidnapping, and felonious assault—all with firearm specifications. The juvenile court found probable cause to believe that Anderson had committed the offenses, and it transferred the case to the General Division of the Montgomery County Court of Common Pleas for criminal prosecution.

{¶ 9} A Montgomery County Grand Jury returned indictments against Anderson and Boyd charging each with three counts of aggravated robbery, one count of felonious assault, and one count of kidnapping—all with firearm specifications.

{¶ 10} Boyd negotiated a plea with the state and agreed to testify against Anderson, if necessary, in exchange for the state agreeing to recommend imposition of a nine year sentence. The court accepted the plea, and as a result, Boyd pleaded guilty to one count of aggravated robbery, with a firearm specification, one count of felonious assault, and one count of kidnapping, and the trial court sentenced him to a total of nine years.

{¶ 11} Anderson, however, exercised his right to a jury trial and was found not guilty of felonious assault, but guilty of three counts of aggravated robbery and the firearm specifications attached to those felonies and one count of kidnapping with a firearm specification. At sentencing, the court imposed an aggregate prison term of 28 years.

{¶ 12} Anderson appealed his convictions and sentence, and the Second District Court of Appeals affirmed in part, reversed in part, and remanded the matter for resentencing, concluding the trial court did not make the necessary findings to impose consecutive sentences and instructing that it needed to reexamine the jail time credit Anderson received. State v. Anderson, 2d Dist. Montgomery No. 25689, 2014-Ohio-4245, 2014 WL 4792558, ¶ 6.

{¶ 13} At resentencing, the trial court imposed an aggregate term of 19 years in prison, sentencing Anderson to 11 years for each of the aggravated robbery counts and ordering those sentences to be served concurrently. The trial court also imposed a mandatory three year term on the firearm specification and five years for kidnapping and ordered those sentences to run consecutively to the 11 year term.

{¶ 14} The trial court, in discussing the disparity between Anderson's and Boyd's sentences, stated they were "equally culpable" but that Boyd had received a nine year sentence because he reached an agreement with the state, admitted to his misconduct, and agreed to testify against Anderson if required. Regarding Anderson's sentence, the trial court stated, "It's not a penalty. In fact, people go to trial and get on community control. That has nothing to do with it." The trial court also noted Anderson's criminal history and commented that he did not take responsibility for what he had done.

{¶ 15} The Second District Court of Appeals affirmed the resentencing and held the trial court adequately dispelled any inference Anderson was punished for exercising his right to a jury trial, and noted that Boyd had received a reward for pleading guilty and agreeing to testify against Anderson while "Anderson stood on his rights and went to trial, received no such reward." 2016-Ohio-135, 2016 WL 197122, ¶ 11. The appellate court also concluded mandatory minimum sentences imposed on a juvenile offender in adult court do not constitute cruel and usual punishment. Id. at ¶ 40. The court further cited Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), and Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), establishing categorical prohibitions against sentencing juveniles to mandatory life without parole, to a life sentence without parole for non-homicide offenses, or to death for offenses committed as juveniles, but concluded that none of these cases can reasonably be extended to prohibit mandatory sentencing for juvenile offenders tried in adult court. 2016-Ohio-135, 2016 WL 197122, at ¶ 40.

{¶ 16} Anderson appealed to this court, and we accepted the following two propositions of law:

When one codefendant who proceeds to trial receives a sentence twice as long as a codefendant who enters a plea, an appellate court cannot dispel the possibility of an impermissible trial tax merely by referring to the disparity as a reward to the codefendant for entering a plea.

The mandatory sentencing statutes in R.C. 2929 are unconstitutional as applied to children because they do not permit the trial court to make an individualized determination about a child's sentence or the attributes of youth.

Positions of the Parties

{¶ 17} Anderson maintains a marked difference between the sentences for two equally culpable codefendants, where one codefendant pleads guilty and the other goes to trial, gives rise to trial tax concerns, and if no other evidence on the record justifies the disparity between sentences, the disparity should be construed as a trial tax and the impermissibly enhanced sentence should be reversed. He further argues his sentence should be reversed because neither the appellate court nor the trial court listed any permissible reasons for the disparity between Anderson's and Boyd's sentences. Additionally, Anderson contends his sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment because the trial court was not permitted to make an individualized determination about Anderson and depart from mandatory minimums because Ohio law requires certain sentences for firearm specifications, at least a three year sentence for first degree felonies, and certain sentences to be served consecutively to others. He also argues due process demands that adult courts should be given discretion to sentence according to the juvenile or adult codes. Anderson asserts this argument is couched in Eighth Amendment jurisprudence and has always been raised this way.

{¶ 18} The state maintains Anderson failed to establish his sentence is directly disproportionate to the sentence Boyd received because there is no requirement that codefendants receive the same sentence, particularly where one codefendant goes to trial and the other receives a lesser sentence as a result of a negotiated plea agreement. It...