[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 poss ibility of parole after2. accepting his guilty plea to aggravated murder. Finding no err or in the proceedings below, we affirm. Facts and Procedural Background {¶ 2} Following transfer from the Wood County Juvenile Court, on Dece mber 18, 2019, appellant, a 16-year-old at the time of the underlying cr ime 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 ame nded 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, bu t acknowledged that the incorrect statutory subsection was referenced in the original i ndictment based upon a scrivener’s error. On December 20, 2019, appellant appeared be fore 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 appe llant’s insanity plea. At the hearing, the court received a report fro m the Court Diagnostic and Treatment Center (“CDTC”). Based upon its evaluation of appell ant, CDTC found that

he did not suffer from a mental disease or defect which rendere d 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 ev idence without objection, and

the matter was continued.3. {¶ 4} Thereafter, on April 23, 2020, appellant appeared before the tr ial court for a change of plea hearing. At the outset of the hearing, the cour t 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 a ppellant 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 inv estigation report and scheduled the matter for sentencing on June 4, 2020. {¶ 5} Prior to the sentencing hearing, on May 29, 2020, appellant’s d efense 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 psycho logical 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 pos sibility 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 th at 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 presentenc e investigation report, letters that were submitted on behalf of the victim, ma terials 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, an d “all other matters

that were sent to the Court for its review.” The court then he ard statements from defense counsel, the state, and the victim’s mother. Appellant decline d 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 receiv e 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 t he harm it caused. The court further observed that appellant’s medical evaluations rev ealed 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 defenseless5. victim in this case. Ultimately, the court found that appellan t “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 i rreparable corruption. This Court has looked for redeeming qualities of the Defendant, a hi nt of remorse and/or the possibility for rehabilitation and cannot find anything to indi cate 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 o f parole. In addition, the court ordered appellant to pay the costs of prosecution. There after, appellant filed his timely notice of appeal. B. Assignments of Error {¶ 11} On appeal, appellant assigns the following errors for our revie w: I. Appellant received ineffective assistance of counsel in viol ation of his rights under the Sixth and Fourteenth Amendments to the Uni ted States Constitution and Article I, §10 of the Constitution of the Stat e 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 Sta tes Constitution and Article I, §9 of the Ohio Constitution to be f ree 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 rece ived ineffective

assistance of trial counsel. To demonstrate ineffective assist ance 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 b e highly deferential” with a “strong presumption that counsel’s conduct falls within the wid e 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 f or 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) req uest a waiver of costs that were imposed under R.C. 2947.23 due to appellant’s permane nt indigency status. Appellant’s first two arguments challenge trial counsel’s perfo rmance prior to the entry of appellant’s guilty plea in this case. This is important to note, because the Ohio Supreme Court has said that7. [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 th e offense with which he is charged, he may not thereafter raise independent cl aims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intellig ent 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 righ t to assert an ineffectiveassistance-of-counsel claim unless the defendant argues that ‘c ounsel’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 a n adequate investigation of the facts of the case and not objecting to the joinder of unrel ated cases. State v. Hill , 10th Dist. Franklin No. 10AP-634, 2011-Ohio-2869, ¶ 14. The court i n Hill refused to consider these ineffective assistance arguments, because they w ere 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 ineffec tive assistance claim in this case, appellant raises matters that occurred prio r to his entry of a guilty plea. These arguments, relating to trial counsel’s allegedly inadequa te 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 t hese arguments waived,

and we need not address them further. {¶ 16} We now turn to appellant’s third argument, that trial counsel w as ineffective for failing to request a waiver of costs. In its s entencing entry, the trial court’s imposition of costs was limited to the costs of prosecution. U nder R.C. 2947.23(A)(1)(a), trial courts “shall include in the sentence the costs of prosec ution * * * and render a judgment against the defendant for such costs.” The statute “r equires a trial court to impose the costs of prosecution against all convicted defendant s.” State v. Davis , 159 Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d 560, ¶ 13. However, t he statute also “allows a trial court to waive the costs of prosecution at any time aft er sentencing.” Id . at ¶ 4, citing R.C. 2947.23(C) (“The court retains jurisdiction to waiv e, suspend, or modify the payment of the costs of prosecution * * * at the time of senten cing or at any time thereafter.”). {¶ 17} In his brief, appellant argues that his trial counsel should ha ve sought a waiver of the payment of his costs of prosecution at sentencing , because he is indigent9. and is not likely to be able to pay such costs given his senten ce of life in prison without the possibility of parole. We disagree. {¶ 18} We have previously considered whether trial counsel’s failure t o seek a waiver of the costs of prosecution at the time of sentencing co nstitutes 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 dec ision 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 tim ing of a motion, seeking waiver of payment, is a matter of trial strateg y.”), and State v. Southam , 6th Dist. Fulton No. F-18-004, 2018-Ohio-5288, ¶ 67-68 (rejecti ng 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 con stitute deficient performance). In Holt , we noted that Holt’s trial counsel was focused upon persuadin g the trial court that Holt was a candidate for probation and thu s stressed Holt’s redeeming qualities and rehabilitative efforts rather than his economic s ituation. Id. at ¶ 9. We found that this was a strategic decision that does not give ris e to a claim of ineffective10. 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 (“T rial strategy

and even debatable trial tactics do not establish ineffective a ssistance 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 o f trial strategy. Here, appellant’s trial counsel advocated on behalf of appellant at s entencing in such a way that the trial court’s attention was drawn to appellant’s age and la ck 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 t hat might allow appellant to

be released from incarceration. Consistent with our decision i n Holt , we find that this tactical decision does not rise to the level of deficient perfo rmance under Bradley , and we therefore reject appellant’s argument that trial counsel was in effective 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 constit utionality of his prison sentence, stating that the sentence violates his rig hts under the Eighth Amendment to the United States Constitution and the correspondi ng provision in the11. Ohio Constitution, which prohibit cruel and unusual punishment. While he seemingly asserts a constitutional argument in the language he uses in hi s assignment of error, the argument he actually advances in the body of his brief in suppo rt 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 co rrupt.” Appellant argues that the trial court’s finding that he is irreparably corrupt was no t 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 t o 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 mer its 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 impo sed, nor cruel and unusual12. punishments inflicted.” “Central to the Constitution’s prohibi tion against cruel and unusual punishment is the precept of justice that punishment fo r 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 nonhom icide 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 sch eme providing for a mandatory sentence of life without the possibility of parole for juvenil e offenders. Miller

v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Howeve r, discretionary sentences of life in prison without the possibili ty for parole is permissible for “the rare juvenile offender whose crime reflects irreparabl e 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 o f juvenile offenders, those whose crimes reflect permanent incorrigibility .”). 2

2 The case law uses the terms “permanently corrupt” and “permane nt incorrigibility” interchangeably to convey the idea that the juvenile offender i s, 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 d ecisions 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 t hat 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 ma y be imposed without a separate factual finding that the juvenile offender is permanen tly incorrigible. “In other words, per Jones , the sentencer is not required to provide an on-the-record sen tencing 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, no twithstanding the diminished culpability and greater prospects for reform that or dinarily 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 sentencin g limits in cases involving defendants under 18 convicted of murder. State s may categorically prohibit life without parole for all offenders un der 18. Or States may require sentencers to make extra factual findings be fore sentencing an offender under 18 to life without parole. Or Sta tes 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 sub stantive appellate review of life-without-parole sentences. All of thos e options, and others, remain available to the States.

Jones at 1323. {¶ 27} Taken together, the foregoing cases establish that sentencing j uveniles to life in prison without the possibility of parole for aggravated murder is permissible under

the United States Constitution and the Ohio Constitution so lon g as (1) the sentence may be imposed at the sentencing court’s discretion, (2) the juveni le offender committed a crime that reflects the offender’s permanent incorrigibility, w hich the court is not required to separately articulate, and (3) the sentencing court takes the mitigating factor15. of the juvenile’s age into consideration when exercising its di scretion and explains its reasoning for imposing the most serious sentence. Here, each o f 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. 292 9.02(A) that was in effect at the time of appellant’s sentence, whoever pleads guil ty 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 aggr avating specifications under R.C. 2929.04(A), the trial court has four sentencing opti ons 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 a fter 25 years in prison, and life imprisonment with parole eligibility after 30 years in pri son. 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 eig hteen years of age or older at the time of the commission of the offense shall be imp risoned 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 prov ided under H.B. 86 and finding that “a person who received a penalty or punishment pri or 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 “doe s not run afoul of

Miller .” Long at ¶ 19. Thus, the first requirement (that the sentence of lif e in prison without the possibility of parole may be imposed at the sentenc ing court’s discretion) is

met. {¶ 30} As to the second requirement, the trial court made a specific f inding at sentencing that appellant is irreparably corrupt, even though i t 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 crit eria, 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 defens eless victim “20 to 25 times,” and described appellant as a “cold-blooded, remorseless murderer.” {¶ 31} Finally, the trial court complied with the third requirement wh en it expressly considered appellant’s age as a mitigating factor, an d stated: “I would agree that the most severe penalties should be rarely imposed on juve niles. So, again, that [is] not missed here, the Court is considering your age as a mitigat ing factor.” Notwithstanding appellant’s youth, the court found that the ser iousness of the offense and appellant’s likelihood of recidivism (given his complete lack o f remorse and fantasizing about becoming a serial killer) weighed in favor of a finding t hat appellant is irreparably17. corrupt and an attendant sentence of life in prison with the po ssibility of parole. This finding was supported by the record, including appellant’s fail ure to acknowledge fault or express any remorse at sentencing despite being provided an opp ortunity 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 i n 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 applica tion of such criteria to the facts of this case, we reject appellant’s assertion that the tr ial court abused its discretion at sentencing, and we thus find appellant’s second assignment of e rror is not well-taken.

Conclusion {¶ 33} In light of the foregoing, the judgment of the Wood County Cour t of Common Pleas is affirmed. The costs of this appeal are assesse d 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 pu rsuant 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 Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.