[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

v. Anderson, Slip Opinion No. 2017-Ohio-5656.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2017-OHIO-5656

THE STATE OF OHIO, APPELLEE, v. ANDERSON, APPELLANT.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State v. Anderson, Slip Opinion No. 2017-Ohio-5656.] 

Criminal law—Sentencing—Trial tax—Eighth Amendment—Appellant failed to 

show that trial court imposed his sentence as penalty for exercising his right 

to jury trial instead of pleading guilty—Imposing mandatory minimum 

prison sentence of three years on juvenile offenders for aggravated robbery 

and for kidnapping does not violate Eighth Amendment’s prohibition 

against cruel and unusual punishment—Mandatory three-year prison 

sentence imposed on a juvenile offender tried as an adult for a conviction 

of a firearm specification does not violate Eighth Amendment—Court of 

appeals’ judgment affirming sentence affirmed. 

(No. 2016-0317—Submitted February 28, 2017—Decided July 5, 2017.) 

APPEAL from the Court of Appeals for Montgomery County, 

No. 26525, 2016-Ohio-135. 

_______________ 

 
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SYLLABUS OF THE COURT

1. Where one defendant pleads guilty to three felonies, agrees to testify against 

a codefendant, and receives a sentence of nine years, and the codefendant is 

convicted by a jury of four felonies and is sentenced to 19 years, and when 

the trial court specifically states that the sentence is not being imposed as a 

penalty for going to trial, no inference of impropriety arises if the sentence 

is within the range of penalties provided by law. 

2. Imposing a mandatory minimum sentence of three years on juvenile 

offenders for aggravated robbery and for kidnapping does not violate the 

Eighth Amendment’s prohibition against cruel and unusual punishment. 

3. A mandatory three year prison sentence imposed on a juvenile offender tried 

as an adult for a conviction of a firearm specification does not violate the 

Eighth Amendment because it serves a legitimate penological goal, is 

proportional to the crimes committed, and is not one of the harshest possible 

penalties for a juvenile offender. 

_______________ 

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. 
January Term, 2017 

3

{¶ 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, but 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 
SUPREME COURT OF OHIO

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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 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 them 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, ¶ 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 
January Term, 2017 

5

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 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, went to trial, and received no such reward.” 2016-Ohio-135, ¶ 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 at ¶ 40. 

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

propositions of law: 
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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 in 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 that certain sentences must 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. 
January Term, 2017 

7

{¶ 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 contends the trial court also made it clear Anderson’s 

election to go to trial did not play a part in his sentence and was not a penalty. 

Further, the state argues Boyd negotiated a plea agreement, waived his 

constitutional rights, admitted his involvement, and agreed to testify at Anderson’s 

trial to obtain a reduced sentence, whereas Anderson did not negotiate with the state 

for a lesser offense. Regarding Anderson’s argument that mandatory minimum 

sentencing is unconstitutional as applied to juveniles, the state asserts Ohio’s 

sentencing scheme provides an opportunity for the trial court to consider the child’s 

age and mitigating factors of youth. It also maintains a mandatory three year 

firearm specification does not constitute cruel and unusual punishment because it 

bears no similarity to a mandatory minimum sentence of life without parole or 

death, it is supported by a national consensus, and it withstands “ ‘[t]he judicial 

exercise of independent judgment,’ ” state’s brief at 29, quoting Graham, 560 U.S. 

at 67-68, 130 S.Ct. 2011, 176 L.Ed.2d 825. Finally, the state argues that we should 

decline to rule on whether sentencing a juvenile to a mandatory minimum adult 

felony violates due process because Anderson is raising this argument for the first 

time on appeal to this court. 

Issues on Appeal 

{¶ 19} This case presents two separate questions of law: first, whether 

imposing a longer prison term on a defendant who exercised his right to a jury trial 

than on a codefendant who pleaded guilty and agreed to testify against the 

defendant is an unconstitutional trial tax, and second, whether mandatory 

sentencing, as applied to juveniles, constitutes cruel and unusual punishment. 

 
SUPREME COURT OF OHIO

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Law and Analysis 

Sentencing Disparities between Codefendants 

{¶ 20} “[A] defendant is guaranteed the right to a trial and should never be 

punished for exercising that right or for refusing to enter a plea agreement * * *.” 

State v. O’Dell, 45 Ohio St.3d 140, 147, 543 N.E.2d 1220 (1989). A state may, 

however, “encourage a guilty plea by offering substantial benefits in return for the 

plea.” Corbitt v. New Jersey, 439 U.S. 212, 219, 99 S.Ct. 492, 58 L.Ed.2d 466 

(1978). “The standard of punishment is necessarily different for those who plead 

and for those who go to trial. For those who plead, that fact itself is a consideration 

in sentencing, a consideration that is not present when one is found guilty by a 

jury.” Id. at 224, fn. 14. 

a. Federal Jurisdictions 

{¶ 21} Several federal circuit courts of appeal have held that a sentencing 

difference between codefendants raises no presumption of a penalty for standing 

trial. United States v. Sanchez Solis, 882 F.2d 693, 699 (2d Cir.1989) (rejecting 

defendant’s argument that he was “penalized for exercising his right to a trial” 

because of a “disparity in sentences” between the defendant and his codefendants); 

United States v. Chase, 838 F.2d 743, 751 (5th Cir.1988) (“However, a 

codefendant’s sentence is immaterial to the propriety of a sentence imposed on a 

defendant”); United States v. Frost, 914 F.2d 756, 774 (6th Cir.1990) (“Mere 

disparity in sentences is insufficient to show that the sentencing court penalized 

Frost and Griffin for going to trial”); United States v. Guerrero, 894 F.2d 261, 267 

(7th Cir.1990) (“A mere showing of disparity in sentences among codefendants did 

not, alone, demonstrate any abuse of discretion”); United States v. Granados, 962 

F.2d 767, 774 (8th Cir.1992) (“A defendant cannot rely upon his co-defendant’s 

sentence as a yardstick for his own; a sentence is not disproportionate just because 

it exceeds a co-defendant’s sentence”); United States v. Whitecotton, 142 F.3d 

1194, 1200 (9th Cir.1998) (“Disparity in sentences between codefendants is not 
January Term, 2017 

9

sufficient ground to attack a proper guidelines sentence”); United States v. Jackson, 

950 F.2d 633, 637-638 (10th Cir.1991) (rejecting claim of disparate sentences 

“based solely on the lesser sentence imposed on [a] codefendant”). 

b. State Court Jurisdictions 

{¶ 22} Two state supreme courts have reached conclusions in accord with 

the federal judiciary. See State v. Gregory, 340 N.C. 365, 424, 459 S.E.2d 638 

(1995) (“Disparity in the sentences imposed upon codefendants does not result in 

cruel and unusual punishment and is not unconstitutional”); People v. Caballero, 

179 Ill.2d 205, 217, 688 N.E.2d 658 (1997) (“A sentence imposed on a codefendant 

who pleaded guilty as part of a plea agreement does not provide a valid basis of 

comparison to a sentence entered after a trial”). 

{¶ 23} Here, a petit jury found Anderson guilty of four felonies and the trial 

court sentenced him to a term of 28 years which, upon remand, it reduced to an 

aggregate term of 19 years, including mandatory incarceration for aggravated first 

degree felonies and a mandatory three year penalty for the gun specification. The 

trial court also specifically stated at Anderson’s resentencing hearing that the 

sentence imposed is “not a penalty.” 

{¶ 24} This record highlights significant factual differences between these 

codefendants: Boyd pled to three felony offenses, cooperated with the state, and 

agreed to testify against Anderson, and the state agreed to recommend a nine year 

sentence to the court. By contrast, Anderson was found guilty by a jury of four 

felonies, with firearm specifications, and urges his sentence constitutes a trial tax 

because it is disproportionate to the Boyd sentence. It is not a trial tax. Rather, the 

trial court specifically stated that it did not punish Anderson for exercising his right 

to a jury trial, and here a comparison with the sentence of the codefendant is invalid 

because of the factual differences in their respective cases. 

{¶ 25} Thus, where one defendant pleads guilty to three felonies, agrees to 

testify against a codefendant, and receives a sentence of nine years, and the 
SUPREME COURT OF OHIO

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codefendant is convicted by a jury of four felonies and is sentenced to 19 years, and 

when the trial court specifically states that the sentence is not being imposed as a 

penalty for going to trial, no inference of impropriety arises if the sentence is within 

the range of penalties provided by law. 

Mandatory Sentencing 

{¶ 26} Anderson urges that mandatory sentencing with respect to juveniles 

constitutes cruel and unusual punishment under the Eighth Amendment to the 

United States Constitution because it mandates trial courts treat children as if they 

were adults. The state responds that imposing a mandatory minimum sentence or 

a mandatory consecutive prison term for a firearm specification on a juvenile being 

tried as an adult does not prevent courts from making an individualized 

determination of the appropriate sentence, nor does it make the sentence cruel and 

unusual. The statutory penalty for those convicted of first degree felonies is a term 

of three to eleven years. R.C. 2929.14(A)(1). And R.C. 2929.14(B)(1)(a)(ii) and 

(C)(1)(a) specify a mandatory three year term served consecutively with, and prior 

to, any prison term for an underlying felony if the offender is convicted of a firearm 

specification. 

a. Cruel and Unusual Punishment 

{¶ 27} The Eighth Amendment to the United States Constitution precludes 

cruel and unusual punishment. “A key component of 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.’ ” (Brackets sic.) 

State v. Moore, ___ Ohio St.3d ___, 2016-Ohio-8288, ___ N.E.3d ___ ¶ 31, quoting 

Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910). To 

constitute cruel and unusual punishment, “the penalty must be so greatly 

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

McDougle v. Maxwell, 1 Ohio St.2d 68, 70, 203 N.E.2d 334 (1964). 
January Term, 2017 

11 

{¶ 28} In Graham, the United States Supreme Court stated that in adopting 

categorical rules to define Eighth Amendment standards, the court first considers 

“whether there is a national consensus against the sentencing practice at issue,” and 

second, it determines “in the exercise of its own independent judgment whether the 

punishment in question violates the Constitution.” 560 U.S. at 61, 130 S.Ct. 2011, 

176 L.Ed.2d 825. 

i. National Consensus 

{¶ 29} In determining whether a national consensus exists against 

mandatory sentencing for juvenile offenders, “ ‘[t]he “clearest and most reliable 

objective evidence of contemporary values is the legislation enacted by the 

country’s legislatures,” ’ ” id. at 62, quoting Atkins v. Virginia, 536 U.S. 304, 312, 

122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), quoting Penry v. Lynaugh, 492 U.S. 302, 

331, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Although this factor “is not itself 

determinative of whether a punishment is cruel and unusual,” it is “ ‘entitled to 

great weight.’ ” Id. at 67, quoting Kennedy v. Louisiana, 554 U.S. 407, 434, 128 

S.Ct. 2641, 171 L.Ed.2d 525 (2008). 

{¶ 30} In this case, Anderson concedes there is no national consensus 

against mandatory sentencing for juveniles, and indeed, “most states permit or 

require some or all juvenile offenders to be given mandatory minimum sentences.” 

State v. Lyle, 854 N.W.2d 378, 386 (Iowa 2014). We agree there is no evidence of 

a national consensus against the imposition of mandatory sentences on juvenile 

offenders tried as adults. 

ii. Independent Review 

{¶ 31} “The judicial exercise of independent judgment requires 

consideration of the culpability of the offenders at issue in light of their crimes and 

characteristics, along with the severity of the punishment in question.” Graham, 

560 U.S. at 67, 130 S.Ct. 2011, 176 L.Ed.2d 825. Also relevant is “whether the 

challenged sentencing practice serves legitimate penological goals.” Id.
SUPREME COURT OF OHIO

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{¶ 32} In Roper, where the trial court imposed the death penalty on 

Christopher Simmons, who was 17 years old when he murdered Shirley Crook, the 

United States Supreme Court concluded that “the Eighth and Fourteenth 

Amendments forbid imposition of the death penalty on offenders who were under 

the age of 18 when their crimes were committed. 543 U.S. at 578, 125 S.Ct. 1183, 

161 L.Ed.2d 1. 

{¶ 33} In Graham, where the trial court sentenced Terrance Graham to life 

in prison with no possibility of release for an armed burglary that he committed at 

age 16, the court held that “the Constitution prohibits the imposition of a life 

without parole sentence on a juvenile offender who did not commit homicide” and 

stated that “[a] State need not guarantee the offender eventual release, but if it 

imposes a sentence of life it must provide him or her with some realistic opportunity 

to obtain release before the end of that term.” Graham at 82.

{¶ 34} And in Miller, where “two 14-year-old offenders * * * were 

convicted of murder and sentenced to life imprisonment without the possibility of 

parole,” the court concluded that “mandatory life without parole for those under the 

age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition 

on ‘cruel and unusual punishments.’ ” 567 U.S. at 465, 132 S.Ct. 2455, 183 

L.Ed.2d 407. 

{¶ 35} The court further noted that “Graham, Roper, and our individualized 

sentencing decisions make clear that a judge or jury must have the opportunity to 

consider mitigating circumstances before imposing the harshest possible penalty

for juveniles.” (Emphasis added.) Id. at 489. 

{¶ 36} Anderson’s argument that his sentence is unconstitutional because 

the trial court was not permitted to make an individualized determination when 

sentencing him is not well taken. Anderson, Boyd, and M.H. robbed Williams and 

Preston at gunpoint, and after shooting Williams, kidnapped Preston by forcing her 

into the trunk of a car. Then Anderson and Boyd approached MacGowan, took her 
January Term, 2017 

13 

purse at gunpoint, and stole her cell phone. After being convicted of three counts 

of aggravated robbery and one count of kidnapping with gun specifications, 

Anderson, who faced a potential maximum sentence of 50 years, was resentenced 

to an aggregate term of 19 years. 

{¶ 37} This case is more analogous to State v. Taylor G., 315 Conn. 734, 

744, 110 A.3d 338 (2015), where the Supreme Court of Connecticut rejected Taylor 

G.’s argument that his ten and five year mandatory minimum sentences for first 

degree sexual assault and risk of injury to a child, as applied to juveniles, violated 

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

court concluded: 

The defendant’s sentences not only were far less severe than the 

sentences at issue in Roper, Graham and Miller, but were consistent 

with the principle of proportionality at the heart of the eighth 

amendment protection because the mandatory minimum 

requirements, while limiting the trial court’s discretion to some 

degree, still left the court with broad discretion to fashion an 

appropriate sentence that accounted for the defendant’s youth and 

immaturity when he committed the crimes. 

Id. 

{¶ 38} Here, R.C. 2929.14(A)(1) requires that a trial court impose a 

mandatory minimum sentence of three years for first degree aggravated robbery 

and kidnapping convictions, which is far less severe than the sentences imposed in 

Roper, Graham, and Miller, and also does not violate the principle of 

proportionality at the heart of the Eighth Amendment because the mandatory 

minimum requirements leave the trial court with discretion to choose “from a wide 
SUPREME COURT OF OHIO

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range of sentencing possibilities that equaled or exceeded the minimum term of 

imprisonment.” Taylor G. at 746. 

{¶ 39} Accordingly, imposing a mandatory minimum sentence of three 

years on juvenile offenders for aggravated robbery and for kidnapping does not 

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

{¶ 40} Here, although the court sentenced Anderson to 11 years for each 

aggravated robbery conviction, these were imposed concurrently, but consecutive 

to a five year sentence for the kidnapping conviction, and the court imposed a 

consecutive three year firearm penalty as well. 

{¶ 41} Regarding the firearm specification, we have held in State v. White, 

142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.2d 939, ¶ 31, “The purpose of a 

firearm specification is to enhance the punishment of criminals who voluntarily 

introduce a firearm while committing an offense and to deter criminals from using 

firearms.” 

{¶ 42} Courts of other jurisdictions have upheld longer mandatory 

sentences than the three year firearm specification at issue in this case. See State v. 

Brown, 300 Kan. 542, 564, 331 P.3d 781 (2014) (“A hard 20 life sentence does not 

irrevocably adjudge a juvenile offender unfit for society. Rather, in line with the 

concerns expressed in Graham, it gives the offender a “ ‘meaningful opportunity to 

obtain release based on demonstrated maturity and rehabilitation’ ” by permitting 

parole after the mandatory 20-year minimum prison term is served), quoting 

Graham, 560 U.S. at 75, 130 S.Ct. 2011, 176 L.Ed.2d 825; Ouk v. Minnesota, 847 

N.W.2d 698, 701 (Minn.2014) (“a mandatory sentence of life imprisonment with 

the possibility of release after 30 years is not encompassed within the rule in Miller

* * * because it does not require the imposition of the harshest term of 

imprisonment: life without the possibility of release”); Commonwealth v. Okoro, 

471 Mass. 51, 59, 26 N.E.3d 1092 (2015) (“we do not read Miller as a whole to 

indicate that the proportionality principle at the core of the Eighth Amendment
January Term, 2017 

15 

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

a juvenile convicted of murder in the second degree”). 

{¶ 43} We conclude, therefore, that a mandatory three year prison sentence 

imposed on a juvenile offender tried as an adult for a conviction of a firearm 

specification does not violate the Eighth Amendment because it serves a legitimate 

penological goal, is proportional to the crimes committed, and is not one of the 

harshest possible penalties for a juvenile offender. 

b. Due Process 

{¶ 44} Because Anderson has failed to raise the issue of whether sentencing 

a juvenile bound over for trial as an adult to a mandatory sentence violates due 

process in the appellate court or the trial court, he has forfeited his right to present 

it for the first time in this court. Accordingly, we decline to address it in this appeal. 

State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15. 

Conclusion 

{¶ 45} A disparity existing between sentences imposed on codefendants is 

insufficient to establish a trial court imposed a longer sentence as a trial tax. Neither 

does Anderson’s aggregate 19 year sentence constitute cruel and unusual 

punishment because there is no national consensus against mandatory sentencing 

for juveniles, the sentence is proportional to the crimes he committed, and it is not 

one of the harshest possible penalties for juvenile offenders tried as adults. 

{¶ 46} Finally, Anderson has forfeited his right to argue that mandatory 

sentencing violates due process because he failed to raise that issue on direct appeal. 

Accordingly, we affirm the judgment of the court of appeals. 

Judgment affirmed. 

KENNEDY, FISCHER, and DEWINE, JJ., concur. 

FRENCH, J., concurs in judgment only. 

O’CONNOR, C.J., concurs in part and dissents in part, with an opinion. 

O’NEILL, J., dissents, with an opinion. 
SUPREME COURT OF OHIO

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_________________ 

O’CONNOR, C.J., concurring in part and dissenting in part. 

{¶ 47} I disagree with the court’s judgment for the reasons that I articulated 

in my dissenting opinion in State v. Aalim, ___ Ohio St.3d ___, 2017-Ohio-2956, 

__ N.E.3d ___. Because I believe that the mandatory-transfer scheme codified in 

R.C. 2152.10(A)(2)(b) and 2152.12(A)(1)(b) is unconstitutional, I would conclude 

that appellant, Rickym Anderson, was bound over to adult court without due 

process. Therefore, in my view, the General Division of the Montgomery County 

Court of Common Pleas lacked jurisdiction to try Anderson, and his convictions 

and sentence were void ab initio. See, e.g., State v. Golphin, 81 Ohio St.3d 543, 

547, 692 N.E.2d 608 (1998). Accordingly, I would not reach the merits of 

Anderson’s appeal. Instead, I would remand this case to the juvenile court with 

instructions to follow the procedure for discretionary transfer, including the 

investigation required by R.C. 2152.12(C) followed by an amenability hearing 

pursuant to R.C. 2152.12(B). 

{¶ 48} Pursuant to the majority’s holding in Aalim, however, the trial court 

did not lack jurisdiction to try Anderson. With respect to the merits of the “trial 

tax” issue that he raises, I concur with the majority that the court did not punish 

Anderson for exercising his right to stand trial. I write separately to discuss the 

underlying circumstances in greater detail in an effort to provide guidance to 

sentencing courts. As the complexity of the first syllabus paragraph of the majority 

opinion demonstrates, these inquiries are fact-specific and require a review of the 

specific statements made by the court at the sentencing hearing and the 

circumstances of the codefendants’ convictions. 

{¶ 49} In this case, I would find that clarifying statements made by the trial 

court at Anderson’s resentencing—in addition to the court’s statement that 

Anderson’s sentence was not imposed as a penalty for going to trial and the fact 

that his sentence fell within the range of penalties provided by law—support the 
January Term, 2017 

17 

conclusion that Anderson was not subjected to an impermissible trial tax. Although 

the trial court stated that “all three people involved in these [crimes] were equally 

culpable,” it also thoroughly explained why Anderson was sentenced to a 

significantly longer prison term than his codefendant. 

{¶ 50} First, the trial court noted that Anderson’s codefendant “admitted 

what he did and * * * agreed to testify against [Anderson] if required.” As the 

majority explains, the fact that the codefendant pled guilty and accepted 

responsibility for his role in the crimes is a reasonable consideration in sentencing. 

Majority opinion at ¶ 24. The trial court found that while Anderson’s codefendant 

accepted responsibility and agreed to a prison sentence as part of his plea 

agreement, Anderson continued to deny culpability as late as the time of the 

presentence-investigation report, when he “reported he was with some people who 

decided to rob some people * * * [and] stated he personally did not comment [sic] 

any offense but was hanging around with people who did and that he was not under 

the control of himself as the drugs had taken over his mind.” 

{¶ 51} Second, the trial court emphasized that although Anderson did not 

brandish a weapon during each of the crimes, he was involved in all of them and 

never made an effort to leave but instead continued to participate in the offenses. 

And he did brandish a weapon during one of the later crimes. 

{¶ 52} Third, the trial court described Anderson’s prior offenses, which 

included theft, robbery, and disorderly-conduct adjudications, probation violations, 

and a corrections commitment. 

{¶ 53} The trial court cited the above facts in explaining its findings that 

Anderson was not amenable to treatment and that a 19-year prison sentence was 

justified, emphasizing in particular the fact that Anderson failed to take 

responsibility even after being convicted and admitting that he was present at the 

commission of each crime. 
SUPREME COURT OF OHIO

18 

{¶ 54} In addition to the trial court’s unequivocal statement that the 

sentence was “not a penalty” imposed on Anderson for failing to plead guilty and 

the facts that Anderson was found guilty of four felonies and his codefendant pled 

guilty only to three, the trial court’s detailed rationale for imposing a 19-year 

sentence is sufficient to defeat Anderson’s claim that his sentence was based on an 

impermissible trial tax. The record reflects that the trial court considered 

Anderson’s numerous prior offenses and prior failures to abide by court orders, the 

nature and circumstances of the offenses that he committed in this case, and his 

refusal to accept responsibility for his criminal conduct. 

{¶ 55} This is not to suggest that such a detailed explanation is required at 

every sentencing. However, in the circumstances here, the trial judge’s explanation 

has provided this court a sufficient record upon which to conclude that there was 

no sentencing error. 

_________________ 

O’NEILL, J., dissenting.

{¶ 56} Respectfully, I must dissent. 

{¶ 57} In light of the specific facts of this record, I agree that appellant, 

Rickym Anderson, did not incur a “trial tax” for exercising his right to stand trial. 

It appears instead that his codefendant benefitted from a plea deal in which the state 

agreed to recommend a nine-year prison sentence. At Anderson’s first sentencing 

hearing, the court made no reference to his decision to stand trial and explained that 

Anderson’s prior offenses justified the severe adult sentence imposed. And at 

resentencing, the court explained on the record that it was not imposing a trial tax 

on Anderson. 

{¶ 58} I do not believe that the imposition of different sentences on 

codefendants alone can raise the inference of a trial tax. Even if that were the 

standard, the trial court explained unequivocally that Anderson was not being 
January Term, 2017 

19 

punished severely for invoking his right to stand trial but, rather, because he 

committed crimes for which he deserved to be treated severely. 

{¶ 59} Nonetheless, I cannot join the majority. I agree with the chief justice 

that the court of appeals’ judgment should be reversed and the matter remanded to 

the juvenile court because Anderson was transferred to adult court under the 

unconstitutional mandatory-transfer statutes. I would reverse and remand pursuant 

to the logic of State v. Aalim, ___ Ohio St.3d ___, 2016-Ohio-8278, ___ N.E.3d 

___, reconsidered and vacated, __ Ohio St.3d __, 2017-Ohio-2956, __ N.E.3d __. 

{¶ 60} Moreover, I cannot agree with the majority’s decision not to 

determine whether a mandatory sentence comports with the due-process 

protections owed to juvenile offenders simply because Anderson challenged his 

mandatory sentence only under the Eighth Amendment to the United States 

Constitution. This is a legally invalid distinction, because the prohibition against 

cruel and unusual punishments in the Eighth Amendment is inherently a dueprocess protection that applies against Ohio through incorporation in the 

Fourteenth Amendment’s Due Process Clause. Roper v. Simmons, 543 U.S. 551, 

560, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); see also Louisiana ex rel. Francis v. 

Resweber, 329 U.S. 459, 463, 67 S.Ct. 374, 91 L.Ed. 422 (1947) (plurality opinion) 

(“The Fourteenth [Amendment] would prohibit by its due process clause execution 

by a state in a cruel manner”). The Eighth Amendment itself does not apply to the 

states, but its protections are inherent in the procedures owed by the states to the 

people under the Fourteenth Amendment. For that reason it is odd to say that 

Anderson challenged his mandatory sentence under the Eighth Amendment but 

forfeited the issue under the Due Process Clause. 

{¶ 61} Nonetheless, the majority relies again today on the principle that 

“ ‘an appellate court will not consider any error which counsel for a party 

complaining of the trial court’s judgment could have called but did not call to the 

trial court’s attention at a time when such error could have been avoided or 
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corrected by the trial court,’ ” State v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 

277 (1986), quoting State v. Childs, 14 Ohio St.2d 56, 236 N.E.2d 545 (1968), 

paragraph three of the syllabus. See majority opinion at ¶ 44, citing State v. 

Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15. In 

rejecting the chance to consider the due-process issue, the majority opinion says 

nothing about the countervailing principle that “this court has discretion to consider 

a forfeited constitutional challenge to a statute” and “review the trial court decision 

for plain error,” Quarterman at ¶ 16. If this court is going to exercise its discretion 

to avoid considering an important constitutional issue under the plain-error 

standard, I think that it should say so and explain why. 

{¶ 62} For at least the past 100 years, the lodestar of juvenile justice has 

been individualized assessment. See In re Gault, 387 U.S. 1, 14-15, 87 S.Ct. 1428, 

18 L.Ed.2d 527 (1967) (“From the juvenile court statute adopted in Illinois in 1899, 

the system has spread to every State in the Union, the District of Columbia, and 

Puerto Rico. * * * The early reformers * * * believed that society’s role was not to 

ascertain whether the child was ‘guilty’ or ‘innocent,’ but ‘What is he, how has he 

become what he is, and what had best be done in his interest and in the interest of 

the state to save him from a downward career’ ”); Miller v. Alabama, 567 U.S. 460, 

478-479, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012); In re C.P., 131 Ohio St.3d 513, 

2012-Ohio-1446, 967 N.E.2d 729, ¶ 77-78; Aalim, __ Ohio St.3d __, 2016-Ohio8278, __ N.E.3d __, at ¶ 18-19. 

{¶ 63} Children have the due-process right to be evaluated prior to the 

imposition of punishment by a judge who has paid special attention to their 

particular circumstances. C.P. at ¶ 77-78. I do not believe that this right ceases to 

exist when a juvenile court sends a child upstairs to adult court for adult 

proceedings. The defendant is still a juvenile, without regard to what forum he 

finds himself in. Not every child who displays, brandishes, indicates possession of, 

or uses a firearm to commit an offense deserves exactly the mandatory three 
January Term, 2017 

21 

additional years of imprisonment required by R.C. 2929.14(B)(1)(a)(ii). Judges are 

elected in their communities to impose punishment in each case that comes before 

them. The mandatory sentencing scheme, when applied to those who committed 

their crimes while juveniles, thwarts the right to individualized assessment by 

imposing a one-size-fits-all punishment. 

{¶ 64} For the foregoing reasons, I dissent. 

_________________ 

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. 

_________________