[Cite as State v. Miller, 2021-Ohio-3381.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

WOOD COUNTY 

State of Ohio Court of Appeals No. WD-20-047 

 

 Appellee Trial Court No. 2019CR0561 

 

v. 

 

Tyler Russell Miller DECISION AND JUDGMENT

Appellant Decided: September 24, 2021 

* * * * * 

Paul A. Dobson, Wood County Prosecuting Attorney, and 

David T. Harold, Assistant Prosecuting Attorney, for appellee. 

Lawrence A. Gold, for appellant 

* * * * * 

ZMUDA, P.J. 

I. Introduction 

{¶ 1} Appellant, T.M., appeals the judgment of the Wood County Court of 

Common Pleas, sentencing him to life in prison without the possibility of parole after 
2.

accepting his guilty plea to aggravated murder. Finding no error in the proceedings 

below, we affirm. 

Facts and Procedural Background 

{¶ 2} Following transfer from the Wood County Juvenile Court, on December 18, 

2019, appellant, a 16-year-old at the time of the underlying crime in this case, was 

indicted on one count of aggravated murder in violation of R.C. 2903.01(A), (F), and 

2929.02(A), an unclassified felony. The state subsequently amended the indictment by 

deleting the reference to R.C. 2903.01(F) and replacing it with R.C. 2903.01(G). 

Appellant’s defense counsel did not object to the amendment, but acknowledged that the 

incorrect statutory subsection was referenced in the original indictment based upon a 

scrivener’s error. On December 20, 2019, appellant appeared before the trial court and 

entered a plea of not guilty by reason of insanity. 

{¶ 3} On February 21, 2020, the matter proceeded to a hearing on appellant’s 

insanity plea. At the hearing, the court received a report from the Court Diagnostic and 

Treatment Center (“CDTC”). Based upon its evaluation of appellant, CDTC found that 

he did not suffer from a mental disease or defect which rendered him incapable of 

knowing the wrongfulness of his act, and thus was not entitled to a finding of insanity. 

Upon receipt of the report, the trial court admitted it into evidence without objection, and 

the matter was continued. 
3.

{¶ 4} Thereafter, on April 23, 2020, appellant appeared before the trial court for a 

change of plea hearing. At the outset of the hearing, the court denied appellant’s insanity 

plea based upon the findings articulated in CDTC’s report.1

 After appellant’s insanity 

plea was denied, appellant indicated his desire to enter a plea of guilty to the sole charge 

contained in the amended indictment. The trial court engaged appellant in a thorough 

Crim.R. 11 colloquy, after which it accepted appellant’s guilty plea. At the end of the 

hearing, the court ordered the preparation of a presentence investigation report and 

scheduled the matter for sentencing on June 4, 2020. 

{¶ 5} Prior to the sentencing hearing, on May 29, 2020, appellant’s defense 

counsel filed a sentencing memorandum with the trial court. In the memorandum, 

defense counsel asked the trial court not to impose a sentence of life in prison without the 

possibility of parole, and offered appellant’s youth and psychological condition as factors 

mitigating against such a sentence. 

{¶ 6} Five days later, on June 4, 2020, appellant appeared before the trial court for 

sentencing. At the outset of the sentencing hearing, the state suggested to the court that, 

in order to impose a sentence of life in prison without the possibility of parole, it would 

need to recognize appellant’s youth as a mitigating factor and make a finding that 

1

 Appellant did not request any additional evaluations beyond that performed by CDTC. 
4.

appellant was irreparably corrupt. In support of its position, the state cited our decision 

in State v. Brown, 6th Dist. Lucas No. L-16-1181, 2018-Ohio-132. 

{¶ 7} Thereafter, the court noted its consideration of the presentence investigation 

report, letters that were submitted on behalf of the victim, materials from Toledo Hospital 

and Harbor Behavioral Health that were provided to the court by appellant’s defense 

counsel, appellant’s sentencing memorandum, the CDTC report, and “all other matters 

that were sent to the Court for its review.” The court then heard statements from defense 

counsel, the state, and the victim’s mother. Appellant declined to offer any mitigating 

statements on his own behalf. 

{¶ 8} Upon consideration of the foregoing, the court found appellant to be 

irreparably corrupt. The court noted that appellant’s age was a mitigating factor, but 

found that it was outweighed by appellant’s inability to receive rehabilitative mental 

health treatment due to his aggressive behavior toward medical professionals, and also 

appellant’s lack of any remorse over his criminal conduct and the harm it caused. The 

court further observed that appellant’s medical evaluations revealed his “homicidal 

ideations,” the fact that he wished to become a serial killer, and his past behavior 

involving the killing of animals and subsequently eating their eyes and hearts. The court 

then reviewed the conduct for which appellant was found guilty of aggravated murder, 

noting the premeditated nature of the stabbing that led to the death of the defenseless 
5.

victim in this case. Ultimately, the court found that appellant “appear[ed] to be a coldblooded, remorseless murderer.” 

{¶ 9} In its sentencing entry, the court reiterated the findings set forth above, and 

stated: “[T]his court finds that the Defendant’s acts reflect irreparable corruption. This 

Court has looked for redeeming qualities of the Defendant, a hint of remorse and/or the 

possibility for rehabilitation and cannot find anything to indicate that is possible.” 

{¶ 10} Based upon its finding that appellant was irreparably corrupt, the trial court 

sentenced appellant to life in prison without the possibility of parole. In addition, the 

court ordered appellant to pay the costs of prosecution. Thereafter, appellant filed his 

timely notice of appeal. 

B. Assignments of Error 

{¶ 11} On appeal, appellant assigns the following errors for our review: 

I. Appellant received ineffective assistance of counsel in violation of 

his rights under the Sixth and Fourteenth Amendments to the United States 

Constitution and Article I, §10 of the Constitution of the State of Ohio. 

II. The court abused its discretion in sentencing Appellant, a 

juvenile, to life in prison without the possibility of parole, in prohibition of 

Appellant’s rights under the Eighth Amendment of the United States 

Constitution and Article I, §9 of the Ohio Constitution to be free from the 

infliction of cruel and unusual punishment. 
6.

II. Analysis 

A. Ineffective Assistance of Counsel 

{¶ 12} In his first assignment of error, appellant argues that he received ineffective 

assistance of trial counsel. To demonstrate ineffective assistance of counsel, appellant 

must first show that trial counsel’s representation “fell below an objective standard of 

reasonableness.” Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 

L.Ed.2d 674 (1984). Because “effective assistance” may involve different approaches or 

strategies, our scrutiny of trial counsel’s performance “must be highly deferential” with a 

“strong presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance.” State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 

(1989), quoting Strickland at 689. Should appellant demonstrate her trial counsel’s 

performance was defective, appellant must also demonstrate that prejudice resulted. 

Bradley at paragraph two of the syllabus. 

{¶ 13} Here, appellant argues that his trial counsel was ineffective for failing to (1) 

engage in motion practice, (2) challenge the constitutionality of appellant’s bindover 

from juvenile court under R.C. 2152.10 and 2152.12, and (3) request a waiver of costs 

that were imposed under R.C. 2947.23 due to appellant’s permanent indigency status. 

Appellant’s first two arguments challenge trial counsel’s performance prior to the entry 

of appellant’s guilty plea in this case. This is important to note, because the Ohio 

Supreme Court has said that 
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[A] guilty plea represents a break in the chain of events which has 

preceded it in the criminal process. When a criminal defendant has 

solemnly admitted in open court that he is in fact guilty of the offense with 

which he is charged, he may not thereafter raise independent claims relating 

to the deprivation of constitutional rights that occurred prior to the entry of 

the guilty plea. He may only attack the voluntary and intelligent character 

of the guilty plea. 

State v. Spates, 64 Ohio St.3d 269, 272, 595 N.E.2d 351 (1992). 

{¶ 14} In State v. Rivera, 6th Dist. Wood No. WD-19-086, 2021-Ohio-1343, we 

recognized the foregoing principle in a case involving a claim of ineffective assistance of 

counsel, and stated: “a defendant’s guilty plea waives the right to assert an ineffectiveassistance-of-counsel claim unless the defendant argues that ‘counsel’s errors affected the 

knowing and voluntary character of the plea.’” Id. at ¶ 10, quoting State v. Green, 11th 

Dist. Trumbull No. 2017-Ohio-0073, 2018-Ohio-3536, ¶ 18-19. In another case, which 

we cited in our decision in Rivera, the Tenth District addressed the defendant’s 

arguments that counsel was ineffective for failing to conduct an adequate investigation of 

the facts of the case and not objecting to the joinder of unrelated cases. State v. Hill, 10th 

Dist. Franklin No. 10AP-634, 2011-Ohio-2869, ¶ 14. The court in Hill refused to 

consider these ineffective assistance arguments, because they were not related to the 

knowing or voluntary nature of the defendant’s guilty plea. Id. at ¶ 15. 
8.

{¶ 15} Similarly, in his first two arguments in support of his ineffective assistance 

claim in this case, appellant raises matters that occurred prior to his entry of a guilty plea. 

These arguments, relating to trial counsel’s allegedly inadequate motion practice and 

failure to challenge appellant’s bindover from juvenile court, do not challenge the 

knowing and voluntary nature of his plea. Therefore, we find these arguments waived, 

and we need not address them further. 

{¶ 16} We now turn to appellant’s third argument, that trial counsel was 

ineffective for failing to request a waiver of costs. In its sentencing entry, the trial court’s 

imposition of costs was limited to the costs of prosecution. Under R.C. 2947.23(A)(1)(a), 

trial courts “shall include in the sentence the costs of prosecution * * * and render a 

judgment against the defendant for such costs.” The statute “requires a trial court to 

impose the costs of prosecution against all convicted defendants.” State v. Davis, 159 

Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d 560, ¶ 13. However, the statute also “allows 

a trial court to waive the costs of prosecution at any time after sentencing.” Id. at ¶ 4, 

citing R.C. 2947.23(C) (“The court retains jurisdiction to waive, suspend, or modify the 

payment of the costs of prosecution * * * at the time of sentencing or at any time 

thereafter.”). 

{¶ 17} In his brief, appellant argues that his trial counsel should have sought a 

waiver of the payment of his costs of prosecution at sentencing, because he is indigent 
9.

and is not likely to be able to pay such costs given his sentence of life in prison without 

the possibility of parole. We disagree. 

{¶ 18} We have previously considered whether trial counsel’s failure to seek a 

waiver of the costs of prosecution at the time of sentencing constitutes deficient 

performance. Recently, in State v. Holt, 6th Dist. Lucas No. L-19-1101, 2020-Ohio6650, we stated: “Because defendants have ‘flexibility’ under R.C. 2947.23(C) as to 

when to request a waiver, the decision not to request a waiver at sentencing and instead to 

postpone it until later has been found to be a matter of trial strategy.” Id. at ¶ 8, citing 

State v. Eblin, 5th Dist. Muskingum No. CT2019-0036, 2020-Ohio-1216, ¶ 16; see also

State v. Pultz, 6th Dist. Wood No. WD-14-083, 2016-Ohio-329, ¶ 61 (“[T]he decision of 

when to file the motion to waive the payment of costs can be a matter of trial strategy.”), 

State v. Moore, 6th Dist. Erie No. E-19-009, 2019-Ohio-4609, ¶ 14 (“[T]he timing of a 

motion, seeking waiver of payment, is a matter of trial strategy.”), and State v. Southam, 

6th Dist. Fulton No. F-18-004, 2018-Ohio-5288, ¶ 67-68 (rejecting ineffective assistance 

argument and finding that trial counsel’s failure to request a waiver of the costs of 

prosecution was a matter of trial strategy and thus did not constitute deficient 

performance). In Holt, we noted that Holt’s trial counsel was focused upon persuading 

the trial court that Holt was a candidate for probation and thus stressed Holt’s redeeming 

qualities and rehabilitative efforts rather than his economic situation. Id. at ¶ 9. We 

found that this was a strategic decision that does not give rise to a claim of ineffective 
10. 

assistance of counsel under the first prong of the Bradley test. Id., citing State v. 

Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 101 (“Trial strategy 

and even debatable trial tactics do not establish ineffective assistance of counsel.”). 

{¶ 19} Similarly, in this case, we find that trial counsel’s decision not to seek a 

waiver of the costs of prosecution at sentencing was a matter of trial strategy. Here, 

appellant’s trial counsel advocated on behalf of appellant at sentencing in such a way that 

the trial court’s attention was drawn to appellant’s age and lack of mental development. 

Trial counsel made this tactical decision in order to convince the trial court to impose a 

sentence that included the possibility of parole for appellant. Rather than focus the 

argument around whether appellant would ever have the means to pay the costs of his 

prosecution, trial counsel elected to advocate for a sentence that might allow appellant to 

be released from incarceration. Consistent with our decision in Holt, we find that this 

tactical decision does not rise to the level of deficient performance under Bradley, and we 

therefore reject appellant’s argument that trial counsel was ineffective for failing to 

request a waiver of the costs of prosecution. 

{¶ 20} Accordingly, appellant’s first assignment of error is not well-taken. 

B. Sentencing Considerations 

{¶ 21} In his second assignment of error, appellant raises the constitutionality of 

his prison sentence, stating that the sentence violates his rights under the Eighth 

Amendment to the United States Constitution and the corresponding provision in the 
11. 

Ohio Constitution, which prohibit cruel and unusual punishment. While he seemingly 

asserts a constitutional argument in the language he uses in his assignment of error, the 

argument he actually advances in the body of his brief in support of his second 

assignment of error is not constitutional in nature. Instead, appellant’s argument 

challenges the trial court’s finding that he is “irreparably corrupt.” Appellant argues that 

the trial court’s finding that he is irreparably corrupt was not based upon a proper 

analysis of “the multiple factors that must be considered prior to ordering a sentence that 

should rarely be imposed.” 

{¶ 22} Under App.R. 12(A)(2), we may disregard an assignment of error presented 

for review if the party raising it fails to argue it separately in the appellate brief. 

Appellant fails to argue the constitutional issue he raises in his second assignment of 

error, and we would therefore be justified in disregarding the second assignment of error 

outright. Nonetheless, in the interests of justice, we elect to address the merits of the 

argument appellant makes in the body of his brief. See Barksdale v. Van’s Auto Sales, 

Inc., 38 Ohio St.3d 127, 128, 527 N.E.2d 284, (1988) (noting that a “basic tenet of Ohio 

jurisprudence [is] that cases should be determined on their merits and not on mere 

procedural technicalities”) and App.R. 12(A)(1)(b) (instructing appellate courts to 

determine appeals on the merits). 

{¶ 23} The Eighth Amendment to the United States Constitution states, 

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual 
12. 

punishments inflicted.” “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.” See In re C.P., 131 Ohio St.3d 513, 2012-

Ohio-1446, 967 N.E.2d 729, ¶ 25, quoting Weems v. U.S., 217 U.S. 349, 367, 30 S.Ct. 

544, 54 L.Ed. 793 (1910). 

{¶ 24} In the context of juvenile offenders, the United States Supreme Court has 

held that the Eighth Amendment prohibits the imposition of the death penalty and the 

imposition of life without the possibility of parole for nonhomicide offenses. Roper v. 

Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); Graham v. Florida, 560 

U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). In addition, the United States Supreme 

Court has previously struck as unconstitutional a statutory scheme providing for a 

mandatory sentence of life without the possibility of parole for juvenile offenders. Miller 

v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). However, 

discretionary sentences of life in prison without the possibility for parole is permissible 

for “the rare juvenile offender whose crime reflects irreparable corruption.” Roper at 

573; see also Montgomery v. Louisiana, 577 U.S. 190, 209, 136 S.Ct. 718, 193 L.Ed.2d 

599 (2016) (“Miller did bar life without parole, however, for all but the rarest of juvenile 

offenders, those whose crimes reflect permanent incorrigibility.”).2

2

 The case law uses the terms “permanently corrupt” and “permanent incorrigibility” 

interchangeably to convey the idea that the juvenile offender is, at the time of sentencing, 
13. 

{¶ 25} In State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, the 

Ohio Supreme Court examined the United States Supreme Court’s decisions in Roper, 

Graham, Miller, and Montgomery, to determine whether a trial court violates the Eighth 

Amendment to the United States Constitution when it sentences a juvenile offender to life 

in prison without the possibility of parole. The court found that such a sentence could be 

imposed on a juvenile offender under R.C. 2929.03(A), but only after consideration of 

the youth of the offender as a mitigating factor. Id. at paragraph one of the syllabus. 

{¶ 26} Seven years after Long was decided, on April 22, 2021, the United States 

Supreme Court issued its decision in Jones v. Mississippi, --- U.S. ----, 141 S.Ct. 1307, 

209 L.Ed.2d 390 (2021). There, the court clarified Miller and its progeny and held that a 

sentence of life in prison without the possibility of parole may be imposed without a 

separate factual finding that the juvenile offender is permanently incorrigible. “In other 

words, per Jones, the sentencer is not required to provide an on-the-record sentencing 

explanation containing an implicit (or explicit) finding of the offender’s permanent 

incorrigibility.” State v. Tirado, 858 S.E.2d 628, 2021-NCCOA-291, ¶ 25, citing Jones at 

1321. Instead, the imposition of a sentence of life in prison without the possibility of 

parole for juvenile offenders “requires only a discretionary sentencing process for 

“‘beyond redemption, and thus unfit ever to reenter society, notwithstanding the 

diminished culpability and greater prospects for reform that ordinarily distinguish 

juveniles from adults.’” State v. Brown, 6th Dist. Lucas No. L-16-1181, 2018-Ohio-132, 

¶ 38, quoting People v. Palafox, 231 Cal.App.4th 68, 91, 179 Cal.Rptr.3d 789 (2014). 
14. 

juvenile offenders.” (Emphasis sic.) Wynn v. State, AL Court of Criminal Appeals No. 

CR-19-0589, --- So.3d ----, 2021 WL 2177656 *9 (May 28, 2021). However, the court in 

Jones was careful to explain that its decision 

does not preclude the States from imposing additional sentencing limits in 

cases involving defendants under 18 convicted of murder. States may 

categorically prohibit life without parole for all offenders under 18. Or 

States may require sentencers to make extra factual findings before 

sentencing an offender under 18 to life without parole. Or States may 

direct sentencers to formally explain on the record why a life-withoutparole sentence is appropriate notwithstanding the defendant’s youth. 

States may also establish rigorous proportionality or other substantive 

appellate review of life-without-parole sentences. All of those options, and 

others, remain available to the States. 

Jones at 1323. 

{¶ 27} Taken together, the foregoing cases establish that sentencing juveniles to 

life in prison without the possibility of parole for aggravated murder is permissible under 

the United States Constitution and the Ohio Constitution so long as (1) the sentence may 

be imposed at the sentencing court’s discretion, (2) the juvenile offender committed a 

crime that reflects the offender’s permanent incorrigibility, which the court is not 

required to separately articulate, and (3) the sentencing court takes the mitigating factor 
15. 

of the juvenile’s age into consideration when exercising its discretion and explains its 

reasoning for imposing the most serious sentence. Here, each of the three requirements is 

met. 

{¶ 28} Here, appellant was convicted of aggravated murder in violation of R.C. 

2903.01(A), (G), and 2929.02(A). Under the version of R.C. 2929.02(A) that was in 

effect at the time of appellant’s sentence, whoever pleads guilty to aggravated murder in 

violation of R.C. 2903.01 “shall * * * be imprisoned for life, as determined pursuant to 

sections 2929.022, 2929.03, and 2929.04 of the Revised Code.”3

 If, like in this case, the 

defendant’s aggravated murder charge is not accompanied by aggravating specifications 

under R.C. 2929.04(A), the trial court has four sentencing options from which to choose. 

These include life in prison without parole, life imprisonment with parole eligibility after 

20 years in prison, life imprisonment with parole eligibility after 25 years in prison, and 

life imprisonment with parole eligibility after 30 years in prison. R.C. 2929.03(A)(1). 

3

 R.C. 2929.02(A) was amended by the General Assembly, effective April 12, 2021, and 

now specifies that “no person who is not found to have been eighteen years of age or 

older at the time of the commission of the offense shall be imprisoned for life without 

parole.” However, because appellant was sentenced prior to the effective date of this 

amendment, the foregoing language does not apply to him. R.C. 1.58(B); see also 

McIntyre v. Hooks, 162 Ohio St.3d 213, 2020-Ohio-3529, 165 N.E.3d 229, ¶ 10 

(applying R.C. 1.58(B) in the context of reduced sentences provided under H.B. 86 and 

finding that “a person who received a penalty or punishment prior to the effective date of 

H.B. 86 is not eligible to receive an H.B. 86 lesser penalty or punishment.”). 
16. 

{¶ 29} In Long, the Ohio Supreme Court found that the foregoing sentencing 

procedure under R.C. 2929.03(A) is discretionary, and thus “does not run afoul of 

Miller.” Long at ¶ 19. Thus, the first requirement (that the sentence of life in prison 

without the possibility of parole may be imposed at the sentencing court’s discretion) is 

met. 

{¶ 30} As to the second requirement, the trial court made a specific finding at 

sentencing that appellant is irreparably corrupt, even though it was not required to do so 

in light of Jones. Under Jones, “unless the record affirmatively reflects otherwise, the 

trial court will be deemed to have considered the relevant criteria, such as mitigating 

circumstances, enumerated in the sentencing rules.” Jones at 1321. But here, the court 

did more than was required when it reviewed appellant’s conduct, highlighting the 

heinous nature of appellant’s premeditated stabbing of a defenseless victim “20 to 25 

times,” and described appellant as a “cold-blooded, remorseless murderer.” 

{¶ 31} Finally, the trial court complied with the third requirement when it 

expressly considered appellant’s age as a mitigating factor, and stated: “I would agree 

that the most severe penalties should be rarely imposed on juveniles. So, again, that [is] 

not missed here, the Court is considering your age as a mitigating factor.” 

Notwithstanding appellant’s youth, the court found that the seriousness of the offense and 

appellant’s likelihood of recidivism (given his complete lack of remorse and fantasizing 

about becoming a serial killer) weighed in favor of a finding that appellant is irreparably 
17. 

corrupt and an attendant sentence of life in prison with the possibility of parole. This 

finding was supported by the record, including appellant’s failure to acknowledge fault or 

express any remorse at sentencing despite being provided an opportunity to do so. 

{¶ 32} Based upon the foregoing, we find that the trial court properly sentenced 

appellant to life in prison without the possibility of parole in this case. Having 

considered the entire record in this case, and in light of the trial court’s thorough 

examination of the relevant sentencing criteria and its application of such criteria to the 

facts of this case, we reject appellant’s assertion that the trial court abused its discretion at 

sentencing, and we thus find appellant’s second assignment of error is not well-taken. 

Conclusion 

{¶ 33} In light of the foregoing, the judgment of the Wood County Court of 

Common Pleas is affirmed. The costs of this appeal are assessed to appellant under 

App.R. 24. 

Judgment Affirmed. 
18. 

State of Ohio v. 

Tyler Russell Miller 

WD-20-047 

 A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

Mark L. Pietrykowski, J. ____________________________ 

 JUDGE 

Thomas J. Osowik, J. 

____________________________ 

Gene A. Zmuda, P.J. JUDGE 

CONCUR. 

____________________________ 

JUDGE 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.supremecourt.ohio.gov/ROD/docs/.