[Cite as State v. Wiesenborn , 2019-Ohio-4487.]

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

STATE OF OHIO Plaintiff-Appellee

v. ZAREN P. WIESENBORN Defendant-Appellant : : : : : : : : : : Appellate Case No. 28224

Trial Court Case No. 2018-CR-864 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 1st day of November, 2019.

. . . . . . . . . . . MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 009590 0, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, Dayto n, Ohio 45422 Attorney for Plaintiff-Appellee ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P.O. Box 340214, B eavercreek, Ohio 45434 Attorney for Defendant-Appellant

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

WELBAUM, P.J.-2- {¶ 1} Defendant-Appellant, Zaren Wiesenborn, appeals from his convict ion and sentence on 13 counts of rape, 13 counts of gross sexual imposi tion (by force), and seven counts of kidnapping (sexual activity). After Wiesenborn pled no contest to all the charges, the trial court sentenced him (after merging some offe nses) to 78.5 years in prison. {¶ 2} Wiesenborn contends that the trial court erred in sentencing hi m to 78.5 years in prison because the record does not support consecutive sentences. In addition, he contends that his no contest pleas were not made knowingly, intelligently, and voluntarily because he was told that he was eligible for commun ity control sanctions. {¶ 3} We find that the trial court did not err in sentencing Wiesenb orn. Although the time at which Wiesenborn will be eligible to move for judic ial release under the combination of sentences for his juvenile and adult crimes exce eds his life expectancy, the sentence on the juvenile offenses would allow him to be rel eased when he is 52 years old; thus, the sentence did not violate State v. Moore , 149 Ohio St.3d 557, 2016-Ohio8288, 76 N.E.3d 1127. Also, the trial court did not err in ins tructing Wiesenborn with respect to his no-contest plea, and the plea, therefore, was ma de knowingly, intelligently, and voluntarily. The judgment of the trial court is affirmed.

I. Facts and Course of Proceedings {¶ 4} On March 1, 2018, Dayton Police Officers Jamie Luckowski and Br yan Camden were dispatched to an address in Dayton, Ohio, for a wel fare check. The police had received a call from a gentleman who had been speaking with his online girlfriend via-3- video chat and had seen some things happen between the girlfrie nd, “Audrey,” 1 and her brother, Wiesenborn. When the police arrived, Audrey answered the door. Audrey was a “smaller 17-year-old female” who appeared to have some disabi lities. She had difficulty speaking, was “partially handicapped,” and had troub le walking. The police explained why they were there and said they had received a call from a gentleman in another state, who asked them to check on her. {¶ 5} Audrey said she was okay, but the officers could tell “somethin g was wrong” and inquired further. Audrey indicated she had been in a disag reement with her brother and that he had perhaps touched her inappropriately. 2 She pointed to her chest and the

officers then asked if the brother had touched her on the chest . Audrey said yes. {¶ 6} After learning that Audrey’s parents were not home, the officer s asked if they could speak with Wiesenborn. Audrey took them up to the third floor of the home and

told Wiesenborn that someone was there to see him. Wiesenborn said “Who the f*ck is it?” As soon as Wiesenborn realized that police officers were there, his attitude immediately changed, and he became calm and well-spoken. {¶ 7} When the police office rs spoke with Wiesenbor n, he admi tted tha t after getting into an argument with Audrey, he dragged her across the room, pinned her on the floor, lifted her skirt, and sexually fondled her breasts. Wie senborn was then taken into custody and transported to jail. At the time, Wiesenborn was a senior in high school and was 19 years old.

1 For privacy reasons, we will refer to the victim as “Audrey.” T his is not her real name.

2 According to the record, Audrey and Wiesenborn were adopted an d were biologically unrelated

.-4- {¶ 8} Subsequently, Audrey told the police that on multiple occasions , Wiesenborn forcibly removed her from her room, took her clothes off, and a ttempted to place his penis into her vagina. He had also licked her vagina and had forced her to perform oral sex. During an interview with Detective Spears, Wiesenborn admitted to raping Audrey against her will. Wiesenborn further said that Audrey was not able to get away from him due to being pinned or being fearful. He admitted that he liked feeli ng the power of control over Audrey and did these things as punishment for her aggravating h im at home or at school. {¶ 9} On April 5, 2018, an indictment was filed charging Wiesenborn w ith having committed six counts of rape between November 30, 2016 and Febr uary 28, 2018. He was also charged with three counts of gross sexual imposition a nd two counts of kidnapping during the same time period. In addition, Wiesenbor n was charged with one count of gross sexual imposition and one count of kidnapping wi th respect to the incident on March 1, 2018. {¶ 10} After Wiesenborn pled not guilty, his appointed counsel filed a motion to suppress statements that Wiesenborn made to the police. Counse l also filed a motion for a competency and sanity evaluation. On July 9, 2018, after receiving the evaluation, the court found Wiesenborn competent to stand trial. The court then held a hearing on the motion to suppress and filed a decision in August 2018 over ruling the motion. {¶ 11} In September 2018, the State filed a reindictment, adding addit ional charges for earlier dates. With respect to the time period of January 4, 2013 through September 1, 2014, Wiesenborn was charged with two counts of kidnapping a nd six counts of gross sexual imposition. Concerning the time period from September 2 , 2014 through November 29, 2016, Wiesenborn was charged with three counts of gross sexual-5- imposition, two counts of kidnapping, and seven counts of rape. These charges all

resulted from events that occurred when Wiesenborn was between the ages of 14 and 17. Wiesenborn pled not guilty to these charges as well. {¶ 12} The State did not present any plea offers to Wiesenborn, nor di d it accept any of the offers that Wiesenborn made. On October 4, 2018, Wi esenborn pled no contest to all the charges (13 counts of rape, felonies of the first degree; seven counts of kidnapping (sexual activity), felonies of the first degree; and 13 counts of gross sexual imposition (by force), felonies of the fourth degree). The cou rt accepted Wiesenborn’s plea and found him guilty. On October 30, 2018, the trial cour t imposed less-thanmaximum sentences but imposed a ll sentences consecutively. Thi s resulted in a prison term of 78.5 years. The court also classified Wiesenborn as a Tier I and III sex offender. Before the judgment entry was filed, Wiesenborn filed a motion to withdraw his plea, but

the court did not rule on it. 3 Wiesenborn then filed a notice of appeal in December 2018.

I. Alleged Sentencing Errors {¶ 13} Wiesenborn’s First Assignment of Error states that: The Trial Court Erred in Sentencing the Defendant. {¶ 14} Under this assignment of error, Wiesenborn first contends that the record does not support the trial court’s imposition of consecutive se ntences. Specifically, Wiesenborn had no criminal record, was 19 years old at the time of sentencing, and expressed remorse. In addition, the majority of the charged of fenses (20 out of 33) took

3 The effect of the court’s failure to rule is that the motion i s still pending in the trial court, and the court can rule on the motion after our opinion in this case has been released. See State v. Wilson , 2d Dist. Montgomery No. 25482, 2014-Ohio-1764, ¶ 15-26.-6- place when he was a juvenile. In this regard, Wiesenborn argue s that if his behavior had been addressed while he was a juvenile, he would likely have re ceived treatment in an effort to rehabilitate him. Instead, when Audrey told their pa rents about the problem, the parents failed to intervene. The abuse then came to light afte r Wiesenborn turned 18. {¶ 15} On appeal, defendants can challenge consecutive sentences in tw o ways. “First, the defendant can argue that consecutive sentences are contrary to law because the court failed to make the necessary findings required by R.C . 2929.14(C)(4).” (Emphasis omitted.) State v. Adams , 2d Dist. Clark No. 2014-CA-13, 2015-Ohio-1160, ¶ 17, citing R.C. 2953.08(G)(2)(b) and State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio3177, 16 N.E.3d 659, ¶ 29. “Second, the defendant can argue th at the record does not support the findings made under R.C. 2929.14(C)(4).” Id ., citing R.C. 2953.08(G)(2)(a)

and State v. Moore , 2014-Ohio-5135, 24 N.E.3d 1197 (8th Dist.). In this case,

Wiesenborn does not assert that the trial court failed to make the findings that R.C. 2929.14(C)(4) requires. {¶ 16} Regarding the second type of challenge, and as pertinent here, “R.C. 2953.08(G)(2)(a) compels appellate courts to modify or vacate s entences if they find by clear and convincing evidence that the record does not support any relevant findings under * * * ‘division * * * (C)(4) of section 2929.14 * * * of the Revised Code.’ ” State v.

Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22, quo ting R.C. 2953.08(G)(2). “ ‘Clear and convincing evidence is that measur e or degree of proof which is more than a mere “preponderance of the evidence,” but not to the extent of such certainty as is required “beyond a reasonable doubt” in crimina l cases, and which will produce in the mind of the trier of fac[t] a firm belief or con viction as to the facts sought to-7- be established.’ ” Id ., quoting Cross v. Ledford , 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. {¶ 17} “R.C. 2929.14(C)(4) is an exception to the presumption in favor of concurrent sentences in R.C. 2929.41(A).” State v. Withrow , 2016-Ohio-2884, 64 N.E.3d 553, ¶ 29 (2d Dist.). As relevant here (according to th e trial court's findings), R.C. 2929.14(C)(4) provides that: If multiple prison terms are imposed on an offender for convict ions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive ser vice is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:

* * * (b) At least two of the multiple offenses were committed as par t of one or more courses of conduct, and the harm caused by two or m ore of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’ s conduct. {¶ 18} In imposing consecutive sentences , the trial court made the fol lowing statements, in addition to using the appropriate statutory lang uage: * * * Mr. Wiesenborn, your statement just now was one that star ted with the alleged charges. You indicated that – well, at the end of seve ral minutes-8- that you were sorry. Having watched you throughout the sentenc ing hearing this morning, through the statements made by [Audrey], your only reaction during those statements [was] when she asked for life without parole. Now, that’s a sentence that’s not permitted by law, bu t that was the only reaction. Mr. Wiesenborn, your letter and your statements of remorse ring hollow. Your admissions of enjoying power and punishing your s ister by raping and molesting her for years are loud and clear. You stated just now you hadn’t cried in two years. You made [Audrey] cry for years. You abused, assaulted and tortured her for almost a third of her life. Those offenses started when you were a ju venile as well. They stopped and then they started again. At any point, you kne w what you were doing was wrong. At some point, you knew what you were do ing was wrong. You shattered and trampled her trust as her older adopt ive brother. The fact that [your parents] knew about the offenses and not on ly did nothing, but then permitted it to happen because they couldn’t be bothered to go upstairs and their treatment of [Audrey] since this indic tment and since her removal from home frankly is sickening. Their indifference though does not, as repugnant as it is, forg ive you for your actions. You knew what you were doing when you were systematically torturing her for years. Transcript of Proceedings (“Tr.”), Sentencing Hearing, pp. 86-8 7. {¶ 19} After reviewing the record, we cannot say that consecutive sent ences were-9- clearly and convincingly unsupported by the record. According to the presentence investigation report (“PSI”), Audrey indicated that when she wa s younger, Wiesenborn looked up pornography and made her watch it. She further said that what she saw made her sick, but after Wiesenborn turned it off, he tried to mimic the video. Audrey indicated that Wiesenborn did this frequently and would remove her clothe s forcefully. She tried to resist, but could not fight back because she was younger and more frail. After removing Audrey’s clothes, Wiesenborn would try to put his peni s in her vagina but it did not work because she was small. He would then digitally penetr ate her, lick her vagina, and force her mouth open while putting his penis in her mouth. {¶ 20} This conduct began when Audrey was 12 or 13 years old and happe ned on a weekly basis, at times every other week. After the initial e vents, Audrey told her parents, who spoke with Wiesenborn and told him it was not righ t and that he could go to jail. While these assaults stopped for a time, they eventually started again. Audrey’s father admitted knowing of the previous incidents and spoke wit h Wiesenborn, who said he would not do those things any longer. However, the parents did not obtain any counseling for Audrey, and when they heard commotion upstairs, Wiesenborn claimed he was doing laundry (Audrey’s room was next to the laundry mac hines). The parents apparently did not bother to check. {¶ 21} During questioning by the police, Wiesenborn admitted tormentin g and sexually molesting Audrey. He further admitted that he “got re ally excited when he felt he had power and authority.” He also attempted to blame Audrey for some of the conduct, claiming that she watched pornography on her own volit ion with him when she was 13 years old and that she wanted to try some of the things they saw on the computer.-10- In addition, Wiesenborn stated during the presentence investiga tion that sometimes Audrey initiated sexual conduct, and that she was making claims due to a “revenge” plan against him and his family, because they were not involved in A udrey’s personal life and

were involved in his extracurricular activities. {¶ 22} The PSI further indicated that Audrey’s parents pressured her d uring the proceedings to drop the charges and told her that if she contin ued, the family would be torn apart and she would have to enter another foster home. Au drey ended up in another

foster home. {¶ 23} In view of the record, Wiesenborn clearly lacked remorse and tr ied to blame Audrey for the sexual assaults, which occurred repeatedly over a number of years. Although Wiesenborn did not have a criminal record, it is only because he intimidated Audrey and because his parents did not take appropriate steps t o protect her. {¶ 24} In addition to arguing that consecutive sentences were not supp orted by the record, Wiesenborn contends that his sentence was unconstitutio nal under the Eighth Amendment. In support of this argument, Wiesenborn cites Moore , 149 Ohio St.3d 557, 2016-Ohio-8288, 76 N.E.3d 1127. {¶ 25} As the current sentence stands, Wiesenborn would be eligible to file a motion for judicial release “not earlier than the later of the date on which the offender has served one-half of the offender’s stated prison term or the dat e specified” in R.C. 2929.20(C)(4). R.C. 2929.20(C)(5). The date specified in R.C. 2929.20(C)(4) is “not earlier than five years after the expiration of all mandatory p rison terms.” {¶ 26} Under the convictions from the initial indictment, 30 years in prison were mandatory, based on the five-year sentences imposed for each of the six rape-11- convictions. For the convictions from the second or reindictme nt, 28 more years in prison were mandatory, based on the four-year sentences imposed for each of the seven juvenile rape convictions. Thus, Wiesenborn would be eligible to file a motion for judicial

release on the later of the following: (1) one half of the stated prison term, i.e. , 39.25 years, or (2) completion of the 58 years of mandatory sentences plus five years, i.e., 63 years (minus the 244 days of jail credit he received for time s pent in confinement). At that time, Wiesenborn would be 81 or 82 years old, as he was 19 years old at the time of sentencing. {¶ 27} The State argues that Moore does not apply because Wiesenborn committed one or more crimes as an adult. In addition, the Sta te contends that the sentence is not divisible and that Wiesenborn’s juvenile senten ce cannot be separated

out to conduct the test in Moore

. {¶ 28} “The Eighth Amendment to the United States Constitution states, ‘Excessive bail shall not be required, nor excessive fines impo sed, nor cruel and unusual punishments inflicted.’ A key component of the Constitution’s prohibition against cruel and unusual punishment is the ‘precept of justice that punishme nt for crime should be graduated and proportioned to [the] offense.’ Weems v. United States , 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910). ‘Protection against di sproportionate punishment is the central substantive guarantee of the Eighth Amendment.’ Montgomery v.

Louisiana , __ U.S. __, 136 S.Ct. 718, 732-733, 193 L.Ed.2d 599 (2016).” Moore, 149 Ohio St.3d 557, 2016-Ohio-8288, 76 N.E.3d 1127, at ¶ 31. {¶ 29} “It is generally accepted that punishments which are prohibited by the Eighth Amendment are limited to torture or other barbarous puni shments, degrading-12- punishments unknown at common law, and punishments which are so disproportionate to the offense as to shock the moral sense of the community.” McDougle v. Maxwell , 1 Ohio St.2d 68, 69, 203 N.E.2d 334 (1964). “There are two class ifications of proportionality review – one involving the length of term-of-ye ars sentences given in a particular case and the other invo lving categorica l restriction s.” Moore at ¶ 32. {¶ 30} A proportionality review based on categorical restrictions invo lves “ ‘cases in which the Court implements the proportionality standard by c ertain categorical

restrictions.’ ” In re C.P. , 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, ¶ 26, quoting Graham v. Florida , 560 U.S. 48, 59, 130 S.Ct. 2011, 176 L.Ed.2d 825. “Within that classification, there are two subsets, ‘one considering th e nature of the offense, the other considering the characteristics of the offender.’ ” Id. at ¶ 27, quoting Graham at 60. “The court engages in a two-step process in adopting categ orical rules in regard to punishment: first, the court considers whether there is a natio nal consensus against the sentencing practice at issue, and second, the court determines ‘in the exercise of its own independent judgment whether the punishment in question violate s the Constitution. ’ ”

Id . at ¶ 29, quoting Graham at 61. {¶ 31} Moore involved a “categorical restriction.” Moore , 149 Ohio St.3d 557, 2016-Ohio-8288, 76 N.E.3d 1127, at ¶ 32. The defendant was 15 years old at the time of his crimes, and was sentenced to 141 years in prison on 12 c ounts, including three counts of rape, three counts of aggravated robbery, three count s of complicity to commit rape, one count of kidnapping, one count of conspiracy to commi t aggravated robbery, one count of aggravated menacing, and 11 firearm specifications

. Id . at ¶ 12. All the crimes involved one victim, and the trial court told Moore that it wanted to make sure he-13- never got out of the penitentiary. Id . at ¶ 13. Ultimately, Moore was resentenced, but still received a term of 112 years, and the trial court again s tressed its intent to make sure Moore never left prison. Id . at ¶ 17. The case then ultimately came before the Supreme

Court of Ohio. {¶ 32} In addressing the issues, the Supreme Court of Ohio first obser ved that due to mandatory sentences for the rapes and gun specifications, Mo ore would not be eligible to seek judicial release until he was 92 years old. This would exceed his life expectancy of around 54.9 years. Moore at ¶ 30. {¶ 33} The court then noted that in a recent decision, the United Stat es Supreme Court had “prohibited the imposition of life-without-parole sen tences on juvenile offenders

who did not commit homicide.” Id . at ¶ 33, citing Graham , 560 U.S. 48, 130 S.Ct. 2011,

176 L.Ed.2d 825. While Graham did not address “whether a term-of-years prison sentence that extends beyond an offender’s life expectancy – a functional life sentence –

falls under the Graham categorical bar,” the Supreme Court of Ohio concluded that

“ Graham does establish a categorical prohibition of such sentences.” Id . at ¶ 34. {¶ 34} In explaining its rationale, the court focused on a number of f actors distinguishing juveniles. First, due to their age and the natu re of the crime, juveniles who

do not kill nor intend to kill have “ ‘twice diminished moral c ulpability.’ ” Id . at ¶ 36, quoting

Graham at 69. Concerning the crime’s nature, the court noted that “ ‘[a]lthough an offense like robbery or rape is “a serious crime deserving seri ous punishment,” * * * those crimes differ from homicide crimes in a moral sense,’ such that nonhomicide defendants ‘are categorically less deserving of the most serious forms of punishment than are

murderers.’ ” Id ., quoting Graham at 69. (Other citation omitted.)-14- {¶ 35} As to the “characteristics of youth,” which indicate that “a de praved crime committed by a youth may not be indicative of an irredeemable i ndividual,” the court focused on three salient factors that cause juveniles to be “le ss morally culpable than

adults.” Id . at ¶ 37-38. These included: (1) an underdeveloped sense of r esponsibility and lack of maturity, which leads to impulsivity, recklessness, and risk-taking; (2) children’s vulnerability to outside pressure and negative influ ences, which include their peers and family, as well as limited control over their environ ment and their lack of “ ‘ability to extricate themselves from horrific, crime-producing settings ’ ”; and (3) the fact that children’s characters are not fully formed, their traits are no t as fixed as those of adults, and their actions are not as likely to indicate depravity that is irretrievable. Id. at ¶ 37, quoting Miller v. Alabama , 567 U.S. 460, 471, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). (Other citation omitted.) {¶ 36} The Supreme Court of Ohio further observed in Moore that “[t]he inherently diminished moral culpability and other characteristics of juven ile offenders means that the recognized, legitimate goals of penal sanctions – retribution, deterrence, incapacitation, and rehabilitation – do not justify the imposition of the harsh est penalties on juveniles who

have committed nonhomicide crimes.” Id. at ¶ 39. Additionally, the court stressed that “[t]he most important attribute of the juvenile offender is the potential for change.

Graham relates the difficulty in determining whether the commission o f a crime is the result of immaturity or of irredeemable corruption. And so Graham protects juveniles categorically from a final determination while they are still y ouths that they are irreparably corrupt and undeserving of a chance to reenter society.” Id . at ¶ 42. {¶ 37} Notably, the court stressed that Graham “does not guarantee an eventual-15- release.” Instead, the State must “ ‘give defendants like Grah am some meaningful opportunity to obtain release based on demonstrated maturity an d rehabilitation.’ ” Id . at ¶ 44. While Graham involved juvenile offenders sentenced to life imprisonment wit hout parole for non-homicide offenses, the court found that the same factors (“the lessened moral culpability of juvenile offenders, the severity of the se ntence, and the inapplicability of penological justifications for life sentences for juveniles as reasons for declaring life sentences for juvenile nonhomicide offenders unconstitutional u nder the Eighth Amendment”) also “apply to term-of-years prison sentences that exceed a juvenile offender’s expected lifespan.” Id . at ¶ 49. Accordingly, the court remanded the case to the trial court for resentencing. Id . at ¶ 100. {¶ 38} Ohio courts have rejected the extension of Graham to offenders who are 18 years of age or older. See Ohio v. Vinson , 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 52-53 (8th Dist.), citing State v. Phipps , 10th Dist. Franklin No. 15AP-524, 2016-Ohio-663, State

v. Nitsche , 2016-Ohio-3170, 66 N.E.3d 135 (8th Dist.), and State v. Rolland , 7th Dist. Mahoning No. 12 MA 68, 2013-Ohio-2950. However, none of these cases involved the type of hybrid situation involved in the case before us. {¶ 39} The Supreme Court of Ohio has also said that “[w]here none of t he individual sentences imposed on an offender are grossly disprop ortionate to their respective offenses, an aggregate prison term resulting from co nsecutive imposition of those sentences does not constitute cruel and unusual punishmen t.” State v. Hairston , 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073 (2008), syl labus. {¶ 40} In Hairston , a 24-year old defendant was sentenced to a 134-year prison term based on “guilty pleas to four counts of aggravated robber y, four counts of-16- kidnapping, three counts of aggravated burglary, all with firea rm specifications, and three counts of having a weapon while under disability.” Id . at ¶ 1. The charges were based on three home invasions that occurred within a period of about one month. Id . at ¶ 3-5. However, each of the individual prison terms were within the ra nge that the General Assembly had authorized. Id . at ¶ 20. As a result, the Supreme Court of Ohio concluded that the sentences were not “grossly disproportionate ,” nor were they “shocking to a reasonable person or to the community’s sense of justice.” Id . at ¶ 23. Again, however, the defendant in Hairston was not being held responsible for conduct as a juvenile. {¶ 41} After Moore , the Eighth District Court of Appeals reversed a 50-year sentence of a defendant who had been convicted of a rape he com mitted when he was 17 years old, and remanded the case for resentencing. The cour t commented that “[t]he standard is whether the nonhomicide juvenile offender has a mea ningful opportunity for parole.” State v. Strowder , 8th Dist. Cuyahoga No. 105569, 2018-Ohio-1292, ¶ 44. {¶ 42} In State v. Watkins , 2018-Ohio-5137, 126 N.E.3d 381 (10th Dist.), the defendant was 16 years old at the time of his charged offenses, which included “six counts of aggravated robbery in violation of R.C. 2911.01, six counts of robbery in violation of R.C. 2911.02, six counts of kidnapping in violation of R.C. 290 5.01, two counts of rape in violation of R.C. 2907.02, and two counts of gross sexual impos ition in violation of R.C. 2907.05. These counts all contained a firearm specification pu rsuant to R.C. 2941.145.”

Id . at ¶ 3. On the morning of trial, the defendant pled guilty t o “five counts of aggravated robbery, and one count each of robbery, sexual battery, and gro ss sexual imposition, as well as three firearm specifications,” and was sentenced to a t otal prison term of 67 years.-17- Id . at ¶ 4-5. {¶ 43} After the Tenth District Court of Appeals affirmed the trial co urt’s judgment, the Supreme Court of Ohio accepted the defendant’s appeal and h eld it for the decision

in Moore

. Id . at ¶ 7. Following that decision, the court reversed the judg ment of the court of appeals and remanded it for further consideration base d on Moore

. Id . at ¶ 8. {¶ 44} On reconsideration, the court of appeals noted that on completi on of his full sentence, the defendant would be 85 years old. The court furth er observed that because his “aggregate sentence exceeds his life expectancy, the consti tutionality of his sentence under the Eighth Amendment turns on whether he has a meaningful opportunity to demonstrate maturity and rehabilitation prior to the completion of his sentences.” Id . at ¶ 24. The court then focused on the mandatory terms. Because only nine years of the sentence was mandatory, the court found that the defendant woul d be eligible for judicial release under R.C. 2929.20(C)(5) after serving 33 and one-half years, which would be when he was 50 years old. Id . at ¶ 25. {¶ 45} The court then found that the potential for judicial release at that age would provide the defendant with “a reasonable opportunity to demonst rate maturity and rehabilitation so that he can reenter society with enough time left for a meaningful life outside of prison.” Id . Furthermore, the court stressed that, unlike Moore, who was offered only “ ‘the prospect of geriatric release,’ ” the defen dant in Watkins would have “the opportunity to demonstrate maturity and rehabilitation at an age when most people are still in good health and in their prime working years.” Id . at ¶ 28. As a result, the court found that the sentence did not violate the Eighth Amendm ent as Moore and

Graham had interpreted it. Id . at ¶ 32.-18- {¶ 46} We have read all the Ohio cases citing Moore and have not found any that involve offenses that occurred both before and after the age of 18. We reject the State’s

contention that Moore is wholly inapplicable because Wiesenborn committed some crimes as an adult. The fact that youthful crimes existed cann ot be entirely discounted. In applying Moore , we find it necessary to focus on Wiesenborn’s eligibility for release for the juvenile portion of the sentence rather than the total. {¶ 47} In the case before us, seven counts of rape (with total mandato ry sentences of 28 years) involved events that occurred when Wiesenborn was between the ages of 15 and 17. Wiesenborn’s earliest age for judicial release elig ibility for those convictions would be around age 52 (19 plus 28 plus five), which is within the limits that have been held appropriate. {¶ 48} The total mandatory sentence for the six rapes that occurred af ter Wiesenborn turned 18 years old was 30 years. As noted earlier, due to the consecutive nature of the sentences, and the statutory provisions for judic ial release, the earliest Wiesenborn can apply for judicial release is when he is 81 or 8 2. A non-Hispanic black male who was 18 years of age in 2017 had a life expectancy of 7 1.5 years. See U.S. Department of Health and Human Services, National Vital Statist ics Reports, Vol. 68, No. 9, at 10, https://www.cdc.gov/nchs/data/nvsr/nvsr68/nvsr68_09-5 08.pdf (accessed Oct. 23, 2019). 4 However, Wiesenborn’s sentence exceeds his life expectancy on ly as a result of the 30 year sentence imposed for offenses committed w hen he was an adult. {¶ 49} The positions argued by both parties would bring unreasonable results.

4 The most recent volume, which was published in August 2019, co vers the year 2017. Thus, we have calculated from 2017, when Wiesenborn was 18 year s old. The PSI indicates that Wiesenborn is African-American.-19- We reject Wiesenborn’s argument because, for example, if a defe ndant were sentenced for 20, first-degree felony non-homicide offenses committed as an adult and one fifthdegree felony offense committed as a juvenile, Moore would apply. We reject the State’s argument because if 20 of such offenses were committed as a juv enile and one as an adult, the defendant would be deprived of the protection of Moore

. {¶ 50} Consequently, we conclude that the appropriate procedure when a pplying

Moore for a sentence imposed for crimes committed both when the defe ndant was a juvenile and an adult is to determine whether the sentence impo sed for the juvenile offenses exceeds the defendant’s life expectancy. Since Wiesen born will be eligible for release at age 52 as a result of the sentences imposed for offe nses he committed as a juvenile we find that Moore does not apply. {¶ 51} The trial court considered Wiesenborn’s age in imposing the sen tence. Wiesenborn’s attorney argued at sentencing that the Court shoul d consider that 60% of the offenses were committed when he was a juvenile. Tr. p. 82. When addressing Wiesenborn as the sentence was imposed, the Court noted that “t hose offenses started when you were a juvenile as well.” Tr. p. 86. All of the sente nces imposed for offenses committed by Wiesenborn when he was a juvenile were less than t hose imposed for the

same adult crimes. {¶ 52} Accordingly, the First Assignment of Error is overruled.

III. The Plea {¶ 53} Wiesenborn’s Second Assignment of Error states that: Zaren Wiesenborn’s Pleas Were Not Made Knowingly, Intelligently ,-20- and Voluntarily. {¶ 54} Under this assignment of error, Wiesenborn contends that his pl ea was not made knowingly, intelligently, and voluntarily because he was i nformed in the plea forms for gross sexual imposition and kidnapping that he was eligible to be sentenced to community control. He notes that because he pled to 13 counts of rape, with mandatory sentences, community control sanctions were not possible. {¶ 55} “To be constitutionally valid and comport with due process, a g uilty plea must be entered knowingly, intelligently, and voluntarily.” State v. Bateman , 2d Dist. Champaign No. 2010CA15, 2011-Ohio-5808, ¶ 5, citing Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). “Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and

the Ohio Constitution.” State v. Engle , 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). “Compliance with the procedures mandated by Crim.R. 11(C) when a defendant enters a plea of guilty or no contest to a felony charge, absent any ind icia of coercion, creates a presumption that the plea was knowing, intelligent, and volunta ry.” State v. Ogletree , 2d Dist. Montgomery No. 21995, 2008-Ohio-772, ¶ 7. {¶ 56} “Literal compliance with Crim.R. 11 is certainly the preferred practice, but the fact that the trial judge did not do so does not require va cation of the defendant’s guilty plea if the reviewing court determines that there was substanti al compliance.” State v.

Nero , 56 Ohio St.3d 106, 108, 564 N.E.2d 474, 476 (1990). “Substan tial compliance means that under the totality of the circumstances the defendan t subjectively understands the implications of his plea and the rights he is waiving.” Id . “Furthermore, a defendant who challenges his guilty plea on the basis that it was not kno wingly, intelligently, and-21- voluntarily made must show a prejudicial effect.” Id ., citing State v. Stewart , 51 Ohio St.2d 86, 93, 364 N.E.2d 1163 (1977) and Crim.R. 52(A). “The t est is whether the plea

would have otherwise been made.” Id

. {¶ 57} In the case before us, our review of the record indicates that the trial court fully complied with the requirements of Crim.R. 11(C). Among o ther things, this rule requires trial courts to address defendants personally and dete rmine that they are “making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.” Crim.R. 11(C)(2)(a). {¶ 58} According to the record, Wiesenborn initially appeared in court on October 2, 2018, and entered pleas of no contest to the charges. Howev er, because there were questions about whether a mandatory sentence for first-degree r ape was required, the trial court held a second plea hearing on October 4, 2018. Tr. , Plea Hearing, at p. 46. During this hearing, Wiesenborn said he understood that first-d egree rapes required a mandatory prison term. Id . at pp. 46-47. After securing Wiesenborn’s understanding, the court stated that it would go over the entire plea process again. Id . at p. 47. {¶ 59} Among other things, Wiesenborn stated that he had reviewed the plea forms with counsel, and that counsel had clarified them. Id . at p. 48. The plea form for the rape charges clearly stated that prison terms were mandatory an d that Wiesenborn was not eligible for community control sanctions. See Doc. #86, p. 1. The plea forms for the kidnapping and gross sexual imposition charges did state that W iesenborn was eligible for community control sanctions. See Doc. # 87, p. 1 and Doc. #88, p. 1. However, in-22- discussing the kidnapping and gross sexual imposition felonies, the trial court said: “Now, do you understand on the first degree rape, because of the mand atory nature of a prison term, that you are not eligible for those community control san ctions on those counts?” Tr., Plea Hearing, at p. 52. Wiesenborn responded, “Yes sir.” Id . at p. 53. {¶ 60} Consequently, the trial court properly informed Wiesenborn abou t community control, and the court did comply with Crim.R. 11(C)( 2)(a). As a result, Wiesenborn’s Second Assignment of Error is without merit and is overruled.

IV. Conclusion {¶ 61} Wiesenborn’s First and Second Assignments of Error having been overruled, the judgment of the trial court is affirmed.

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

HALL, J., concurs. DONOVAN, J., dissents: {¶ 62} I disagree with the majority’s resolution of the first assignme nt of error. A sentence of de facto life without parole is indeed just for cer tain adult non-homicide offenders; Wiesenborn is not one of them. The controlling inqui ry herein is not simply whether Wiesenborn’s sentence provides for parole eligibility w ithin his lifetime, but whether his sentence impinges on the same substantive concerns that make the imposition of a life sentence without parole on juvenile non-ho micide offenders impermissible under the Eighth Amendment. In the hybrid scenari o which confronts us-23- (combined juvenile and adult offenses), Eighth Amendment review must be rigorous. Youth and its attendant circumstances were not considered by th e trial court. Since Wiesenborn’s eligibility to move for judicial release under the combination of sentences for juvenile and adult offenses exceed his life expectancy, his 781⁄2 year sentence violates

Moore , 149 Ohio St.3d 557, 2016-Ohio-8288, 76 N.E.3d 1127, as well a s a litany of U.S. Supreme Court cases

. {¶ 63} Countless recent cases have signaled salutary judicial recognit ion of the relevance to punishment of blameworthiness. These cases draw a sharp distinction between offenses committed by a juvenile as opposed to offenses committed by an adult. Although the United States Supreme Court itself has characteriz ed its punishment jurisprudence as lacking a “unifying principle,” Kennedy v. Louisiana, 554 U.S. 407, 436- 37, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008), the message over th e last decade and beyond is clear: “youth matters.” Miller v. Alabama, 567 U.S. 460, 473, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012); see also Graham v. Florida , 560 U.S. 48, 76, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). In fact, Justice O’Connor noted in Johnson v. Texas , 509 U.S. 350, 113 S.Ct. 2658, 125 L.Ed. 290 (1993): * * * I had thought we made clear in Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) that the vicissitudes of you th bear directly on the young offender’s culpability and responsibility for crime: “[Y]outh is more than a chronological fact. It is a time and co ndition of life when a person may be most susceptible to influence and to psychological damage. Our history is replete with laws and judi cial recognition that minors, especially in their earlier years, gen erally are-24- less mature and responsible than adults. Particularly during th e formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment expected of adults.” Id. at 115-116, 102 S.Ct., at 877 (footnotes and internal quotation ma rks omitted.) See also Graham [v. Collins], 506 U.S. [461] at 518, 113 S.Ct., at 924 (SOUTER, J., dissenting) (“Youth may be understood to mitigate by reducing a defendant’s moral culpability for the crime, for whi ch emotional and cognitive immaturity and inexperience with life render him less responsible.”)

Id. at 376 (O’Connor, J., dissenting.); see also Roper v. Simmons , 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (“Three general differences be tween juveniles under 18 and adults demonstrate that juvenile offenders cannot with reli ability be classified among the worst offenders.”). {¶ 64} “There is no dispute that a defendant’s youth is a relevant mit igating factor.”

Johnson at 367. An offender’s youth must be an articulated consideratio n in the sentencing analysis in cases which result in de facto life impr isonment where the court is sentencing both for juvenile and adult conduct. “ ‘[J]ust as th e chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful defendant be duly consi dered’ in assessing his culpability.” Miller at 476, quoting Eddings at 116. {¶ 65} This record affirmatively establishes that an inexperienced tri al judge completely ignored the law embodied in Roper, Miller, Graham, Eddings, and Moore and-25- all the other doctrinal implications of youthful offender casel aw. The trial court focused entirely on aggravating factors and the nature of the offenses. It was lost on the trial court that culpability belongs to the offender and not the offenses. “[T]he typical characteristics of youth, which include immaturity, impetuosity, and poor risk assessment, are to be regarded as mitigating, not aggravating factors.” State v. Null , 836 N.W.2d 41, 75 (Iowa 2013), citing Miller at 475-480. Significantly, the solitary reference to Wiesenborn ’s age by the trial court was actually articulated in the context of a ggravation, not mitigation: [THE COURT]: You stated just now you hadn’t cried in two years

. You made [Audrey] cry for years. You abused, assaulted and tort ured her for almost a third of her life. Those offenses started when you were a juvenile as well. They stopped and then they started again. At any point, you knew what you were doing was wrong. You shattered and tramp led her trust as her older adoptive brother. This singular reference to Wiesenborn’s juvenile status reflect s only that the trial court knew Wiesenborn was a juvenile at the time 20 of the 33 of offe nses were committed. This statement does not establish that the court “weighed it (y outh) in any way, shape, form, or manner. See Miller at 477. The constitutional significance of the trilogy of Roper, Graham, Miller ( along with Moore) , for purposes of assessing proportionate punishment under the Eight Amendment, was completely ignored by the trial court. The majority notes Wiesenborn’s prison sentence was less for the juvenile offenses , but the aggregate difference was miniscule, 39 years versus 391⁄2 years. “Children who commit even heinous crimes are capable of change” and in all but the most e xtreme circumstances, are required to “have hope for some years of life outside priso n walls.” Montgomery v.-26- Louisiana, __ U.S. __, 136 S.Ct. 718, 725, 736-37, 193 L.Ed.2d 599 (2016). {¶ 66} The suggestion by the majority that Wiesenborn is eligible for release at age 52 is meaningless and illogical in the Eighth Amendment calculu s. 5 It ignores the aggregate life sentence imposed upon a youthful, 19-year-old of fender who committed the majority of the crimes as a juvenile. Wiesenborn cannot be released until he is 81, beyond his life expectancy. The sentence offers him no hope for rehabilitation and no hope for life beyond prison walls. The only way Wiesenborn leav es prison is in a coffin. “Mercy without justice is the mother of dissolution; justice wi thout mercy is cruelty.” See Lee, Justice Benjamin Nathan Cardozo and his Two Most Important Questions: Reflections on the Choice of Tycho Brahe, 34 Touro L.Rev. 237, 242 (2018) (quoting Thomas Aquinas). {¶ 67} Wiesenborn’s record consists entirely of the offenses at issue in this case. Rehabilitation efforts in juvenile court had not previously fai led (an obvious aggravating factor); they never occurred. Wiesenborn’s father merely mentio ned possible jail time to his son when he knew that his son (a juvenile) was raping his s ister in the family home. Children are “less likely to take a possible punishment into co nsideration when making decisions[,]” especially “when that punishment is rarely impose d.” Graham, 560 U.S. at 72, 130 S.Ct. 2011, 176 L.Ed.2d 825. There was unquestionably a lack of parental supervision as well as a total neglect of parental responsibili ties in Wiesenborn’s home.

5 The majority fails to recognize that the adult sentence of 391⁄2 years will be served first pursuant to the Judgment Entry of Conviction. By suggesting we look at age 52 as a release date on just the juvenile offenses, the majority leaves the impression it is creating a procedure to justify a particular outcome in the context of s entencing review. That is, it seeks to characterize a de facto life sentence of 78 years as s omething less than Wiesenborn’s natural life.-27- The victim was not spared and protected by her parents. Nor did Wiesenborn receive the appropriate counseling or juvenile court intervention and sanct ions (including potential DYS committment) he so clearly needed. No appropriate steps wer e taken to insure consequences for Wiesenborn and no effort was made to protect h is victim. The trial judge characterized Wiesenborn’s parents’ inaction as “sickenin g.” However, the Eighth Amendment requires consideration of the reality that Wiesenborn was trapped in a dysfunctional family over which he had no control. See, generally, Miller, 567 U.S. at 477- 478, 132 S.Ct. 2455, 183 L.Ed.2d 825. {¶ 68} Furthermore, the trial court made no reference to a competency and sanity report which contained critical information regarding the famil y dynamics and Wiesenborn’s mental health history. Notably, Wiesenborn was on an antidepr essant and seeing a professional at Good Samaritan Behavior Health. He was suicidal, having been taken by ambulance to the hospital by Dayton Police. The report further reflected he was three months shy of high school graduation and excelled in play ing the viola. I recognize the weight to be given to these facts rested with the trial cou rt, but like youth, they appear

not to have been considered at all. {¶ 69} The majority’s analysis of this case results in an affirmance o f a sentence for a non-homicide youthful offender far outside the norm of lo cal judicial practice. We should not continue to uphold such outlier sentences, particula rly where juvenile conduct is involved and youth is not considered or addressed. This sent ence must be leavened with crucial Eighth Amendment considerations applied to Wiesenb orn’s juvenile offenses. The highest court of the land has emphasized “defendants who do not kill, intend to kill or foresee that life will be taken are categorically less deser ving of the most serious forms-28- of punishment than are murderers. * * * Although an offense lik e * * * rape ‘is a serious crime deserving serious punishment,’ those crimes differ from h omicide crimes in a moral sense.” (Citations omitted.) Graham at 69. {¶ 70} Taking the distinctive attributes of youth into account is cons istent with Ohio’s long-stated sentencing objectives and the United States Supreme Court’s judgment that “youth matters.” Miller at 483. I acknowledge this court’s recent decision in State v. Serna, 2d Dist. Champaign No. 2018-CA-16, 2019-Ohio-4102, wherein this court held “the [trial] court did not have an obligation to consider Serna’s age [17] as a mitigating

factor.” 6 I believe this to be a wholly incorrect statement of law. Yo uth does matter. “The offender’s youth at the time of the offense must still be weigh ed against any statutory consideration that might make an offense more serious or an off ender more likely to

recidivate.” State v. Long , 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, ¶ 19. {¶ 71} “* * * [O]ur system of justice recognizes that appellate courts do have a responsibility – expressed in the proportionality principle – n ot to shut their eyes to grossly disproportionate sentences that are materially unjust.” (Emphas is sic.) Hutto v. Davis, 454 U.S. 370, 377, 102 S.Ct. 703, 70 L.Ed.2d 556, (1982) (Powell, J ., concurring.); Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, guarantees the autonomy of trial judges, such that we do not strike down simply harsh sentences, but we do have a constitutional obligation to ensure sentences remain within con stitutional boundaries.

Wiesenborn’s sentence does not. {¶ 72} I would reverse and remand for resentencing.

6 Notably, in Serna, the Judgment Entry of Conviction notes “that because the human brain is not completely developed until approximately the age o f 25, Serna ‘was not * * * neurologically developed’ at the time of the offense.”-29-

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