Petition for Writ of Certiorari — Devonte Brown, Petitioner v. Ohio

No.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2017

DEVONTE BROWN, PETITIONER

Vv.

STATE OF OHIO, RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO

PETITION FOR A WRIT OF CERTIORARI

Office of the Ohio Public Defender

Charlyn Bohland #0088080

Assistant State Public Defender

Member of the Bar of this Court #801223)

250 East Broad Street, Suite 1400

Columbus, Ohio 43215

(614) 466-5394

(614) 752-5167—Fax

Charlyn.Bohland@opd.ohio.gov

Counsel for Petitioner, Devonte Brown

QUESTION PRESENTED

Whether this Court’s precedent requires a trial court’s record to reflect’

specific consideration of irreparable corruption before sentencing the

child to life in prison without the possibility of parole. U.S. Const.

amend. VIII; Montgomery v. Louisiana, 186 S.Ct. 718, 193 L.Ed.2d 599

(2016); Miller v. Alabama, 567 U.S. 460, 182 S.Ct. 2455, 183 L.Ed.2d 407

(2012).

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT

There are no parties to the proceeding other than those listed in the caption.

Under SuP. CT. R. 29.6, Petitioner states that no parties are corporations.

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TABLE OF CONTENTS

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Question Presented occ eessesesesesssesssesescsescesseesssscsasecsessssesssssssustarsescsessssacees “deseveneeeaes i

Parties to the Proceedings and Corporate Disclosure Statement ...........:ccccccssesseceeeee ii

Table of Content .0.....ccccssssscecccssesesssseesssecseseessessasacsescsesesecsesssessessussssorsessesssesvatacereses ii

Table of Authorities... ceccccssesscsssesssesescssscscssscsssesssssesevssssscssscadncasasseacasseaeneaeecees iv

Petition for a Writ of Certiovari...........cccceessssesssssscseseessssssesssvscscacssssessesssensasscscecarscnens 1

Opinions Below... sscessssesssssssessscsesssscssssscesesssscsessssosossssassssecsesesererasssessseueracstacaenscas 1

Jurisdictional Statement «0.00... eessesssessssesseesseeseessesseessntesssnsesnecsessassssecssnesaseeneseneessnteens 1

Constitutional Provision .......... es essssseesssecssesssssesesessssscseescssecsescsssenserscsuscsessassessssucesacses 1

Statement of the Case... .ccccscssscssssssssssessseseseseessescsescsesssnesesarsassussessevssessvsececensearasases 2

Reasons for Granting the WYit .........ccccccsscsesessscsesessscsssessscscsescsrsesseacsesessesesseseseacersasas 3

Conclusion .......scccccsccsscsesseesessescerscnescnesensseseeseessesesssssssssssesssuecsessacsescavecscacavsvsssessesrsatecars 7

Appendix:

APPENDIX A: State of Ohio v. Devonte Brown, Supreme Court of Ohio Case

No. 2018-0305, Entry (May 28, 2018) oo. cessesessssssssssstsssseassseseseecsessesscessssssesess A-1

APPENDIX B: State of Ohio v. Devonte Brown, Lucas County Court of Appeals

Case No. L-16-1181, Judgment Entry Jan. 12, 2018)... eescesecceccecesseseeseeee A-2

iii

TABLE OF AUTHORITIES

Page No.

Cases:

Ford v. Wainwright, 477 U.S. 399, 4106 S.Ct. 2595, 91 L.Ed.2d 335 (1986).......... 4

Miller v. Alabama, 567 U.S. 460, 132 8.Ct. 2455, 188 L.Ed.2d 407 (2012).. passim

Montgomery v. Louisiana, 136 S.Ct, 718, 193 L.Ed.2d 599 (2016) .........0000 passim

State v. Brown, 2018 Ohio App. LEXIS 122 (2018) w..ccceesscccssssessecseeseees passim

State v. Brown, 152 Ohio St.3d 1482, 2018-Ohio-1990, 98 N.E.3d 295 (2018)....... 1

State v. Long, 188 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.8d 890.......ccccccssseees 6

Constitutional Provision:

U.S. CONST. amen. VITI...... cee cccceesesscecesssssssscscsessssstssesseascssessrsatsercecensensssasenee 1,3

Statute:

28 U.S.C. § 210160)... ccecccsccssssssessssssenscssseseseecseeseecsscseesssseucenscssasseseeesonsesassascesearsasene 1

iv

PETITION FOR A WRIT OF CERTIORARI

Petitioner Devonte Brown asks this Court to issue a Writ of Certiorari to

review the judgment of the Supreme Court of Ohio, entered on May 23, 2018,

declining jurisdiction of his Lucas County, Sixth District, Court of Appeals case,

affirming the life-without-parole sentence entered in his case.

OPINIONS BELOW

On January 12, 2018, the Lucas County, Sixth District, Court of Appeals

affirmed Devonte Brown’s life-without-parole sentence. That opinion is available at

State v. Brown, 2018 Ohio App. LEXIS 122 (Ohio Ct. App. Jan. 12, 2018). On May 23,

2018, the Supreme Court of Ohio declined jurisdiction of Devonte’s case. That denial,

which was issued without an opinion, can be found at State v. Brown, 152 Ohio St.3d

1482, 2018-Ohio-1990, 98 N.E.3d 295 (Ohio 2018).

JURISDICTIONAL STATEMENT

On May 23, 2018, the Supreme Court of Ohio declined jurisdiction of Devonte

Brown’s jurisdictional appeal. Devonte now timely files this petition within 90 days

of that decision. This Court’s jurisdiction is invoked under 28 U.S.C. § 2101(c).

CONSTITUTIONAL PROVISION

The Eighth Amendment to the U.S. Constitution provides:

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

unusual punishments inflicted.” U.S. CONST. amend. VIII.

STATEMENT OF THE CASE

“On August 10, 2015, [then 16-year-old Devonte Brown] invaded the victim’s

home, stabbed her 17 timesf;] killed her son[;] raped, kidnapped, and killed her

daughter[;] and stole her vehicle. When later confronted by the police in the stolen

vehicle, [Devonte] fled and crashed.” Brown, 2018 Ohio App. LEXIS at *3.

On September 22, 2015, following a probable cause hearing, the Lucas County

Juvenile Court transferred Devonte’s case to the Common Pleas Court for prosecution

as an adult, pursuant to Ohio’s mandatory transfer statutes. Id. at * 7. After transfer,

Devonte was indicted on nine felony charges. Id. at * 8.

On June 6, 2016, Devonte entered an Alford Plea to two counts of aggravated

murder, attempted murder, rape, kidnapping, and failure to comply; the other counts

were dismissed. Jd. at-*-9.-The trial court sentenced Devonte to 2 terms of life in

prison without the possibility of parole, plus 20 years and 24 months. Id. at * 17.

Devonte filed a timely direct appeal to the Sixth District Court of Appeals to challenge

the mandatory transfer of his case and the life-without-parole sentence.

The Sixth District affirmed Devonte’s sentence. Brown, 2018 Ohio App. LEXIS:

at *1. After reviewing the record, the Sixth District determined that the trial court

discussed and considered Devonte’s age and the gravity of the offenses prior. to

electing the sentence. Id. at * 39-40. The Sixth District explained that “based on the

statements made in open court, we find appellant’s youth as a mitigating factor was

extensively argued, considered, balanced and weighed.” Id. at * 48. The Sixth District

held that “the record supports a finding of irreparable corruption,” although the trial

court did not make a finding regarding irreparable corruption. Id. at * 52.

On February 26, 2018, Devonte filed a timely memorandum in support of

jurisdiction to the Supreme Court of Ohio, asking that court to review the

constitutionality of his sentence. On May 23, 2018, the Supreme Court of Ohio

declined jurisdiction of Devonte’s case, without an opinion. This timely Petition for a

Writ of Certiorari follows.

REASONS FOR GRANTING. THE WRIT

Six months before Devonte’s sentencing hearing, this Court announced that

Miller v. Alabama created a retroactive, substantive rule of law. Montgomery v.

Louisiana, 136 8.Ct. 718, 736, 193 L.Ed.2d.599 (2016), citing Miller v. Alabama, 567

US. 460, 472-473,-182-S.Ct. 2455, 183 L.Ed.2d 407 (2012). In it, this Court drew a -

line: A life-without-parole sentence is unconstitutional if it is imposed on a child

whose crime reflects unfortunate and transient immaturity, even if a trial court

considers the child’s youth. Montgomery at 734. This Court explained the following:

Miller, then, did more than require a sentencer to consider a juvenile

offender’s youth before imposing life without parole; it established that

the penalogical justifications for life without parole collapse in light of

the “distinctive attributes of youth.’ Even if a court considers a child’s

age before sentencing him or her to a lifetime in prison, that sentence

violates the Eighth Amendment for a child whose crime reflects

‘unfortunate yet transient immaturity.’ Because Miller determined that

sentencing a child to life without parole is excessive for all but the ‘rare

juvenile offender whose crime reflects irreparable corruption.’

(Internal citations omitted.) Id.

This Court did not set forth a specific procedure for sentencing children. But,

the lack of a specific procedure does not diminish the constitutional rule established.

Instead, this Court noted the careful balance it intended to strike as follows:

When a new substantive rule of constitutional law is established, this

Court is careful to limit the scope of any attendant procedural

requirement to avoid intruding more than necessary upon the States’

sovereign administration of their criminal justice system. Fidelity to

this important principle of federalism, however, should not be construed

to demean the substantive character of the federal right at issue. That

Miller did not impose a formal factfinding requirement does not leave

the States free to sentence a child whose crime reflects transient

immaturity to life without parole. To the contrary, Miller established

that this punishment is disproportionate under the Eighth Amendment.

(nternal citations omitted). Id. at 735, citing Ford v. Wainwright, 477 U.S. 399, 416-

417, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (“[W]e leave to the State[s] the task of

developing appropriate ways to enforce the constitutional restriction upon [their]

execution of sentences.”).

Montgomery makes Miller’s substantive rule clear: a life-without-parole

sentence is unconstitutional if it is imposed on a child whose crime reflects

unfortunate and transient immaturity, even if a trial court considers the child’s

youth. Monigomery at 734, After Montgomery, a consideration of youth alone is not

enough. For a reviewing court to evaluate the constitutionality of a child’s sentence,

the trial court’s record must demonstrate not only a consideration of youth and its

attendant circumstances, but a consideration of irreparable corruption and transient

immaturity. See Montgomery at 734.

However, in this case, the trial court only considered “how and why youth

generally weigh against imposing life without parole.” Brown, 2018 Ohio App. LEXIS

at *89, 47 (‘The court discussed how [Ohio Law] requires ‘the youth of a juvenile

offender’ be separately. considered ‘as a mitigating factor before imposing a. life

2

sentence without parole.”), The trial court did not consider irreparable corruption or

transient immaturity. In reviewing the sentence, the Sixth District recognized that

the trial court did not mention irreparable corruption; yet, the appellate court sua

sponte determined that “[t]he court explained its thoughts and reasons for imposing

consecutive terms of life without parole, there implying the crimes at issue reflected

irreparable corruption.” Id. at | 52. “Although the [trial] court did not repeatedly say

‘irreparable corruption, the necessary factors were considered.” Id. at § 53.

Considering the nature and gravity of offenses is an important part of every

sentencing analysis, but it is not a substitute for determining if a child’s actions

represent transient immaturity or irreparable corruption. See Miller, 567 U.S. at 473,

182 S.Ct. 2455, 183 L.Ed.2d 407 (explaining that juvenile vulnerabilities are not

crime-specific); Montgomery, 136 S.Ct. at 727, 193 L.Ed.2d 599 (“States may not

disregard a controlling, constitutional command in their own courts.”). Rather, this

Court’s substantive rule is clear: a life-without-parole sentence is unconstitutional if

the child’s actions reflect unfortunate and transient immaturity. Monigomery at 734.

Additionally, the Sixth District’s justification of Devonte’s sentence conflicts with the

constitutional rule. An insinuation that a child qualifies for the class of offenders

eligible for a life-without-parole sentence is not enough. See Brown at 52.

Montgomery would seem to require more: that the record must reflect that the trial

court considered the specific difference between irreparable corruption and transient

immaturity before it sentenced the child: See Montgomery at 734.

As this Court noted, states can determine how best to implement Miller’s

substantive rule. For instance, this Court noted that “[a] state may remedy a Miller

violation by permitting juveniles homicide offenders to be considered for parole,

rather than by resentencing them.” Montgomery at 736. That may very well be an

option for Ohio’s legislature to implement in the future. But, it does not change the

trial- court’s current duty to ensure that a child’s sentence is constitutionally

compliant.

With a consideration of youth alone, Ohio's sentencing scheme is

unconstitutional. See id. (Miller, then, did more that require a sentencer to consider

a juvenile offender’s-youth before imposing life without parole ... .”). In-its-decisionaffirming the life-without-parole sentence imposed in this case, the Sixth District

explained that “Ohio’s sentencing scheme does not run afoul of Miller ‘because the

sentence of life without parole is discretionary’ when applied to a ‘juvenile found

guilty of aggravated murder.” Brown, 2018 Ohio App. LEXIS at *34, quoting State v.

Long, 188 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, J 19 (applying this Court’s

principles in Miller to the sentencing of children in Ohio and requiring a trial court

to consider a child’s youth). The Sixth District failed to recognize that. more is

required under Montgomery. And, in denying Devonte’s appeal, the Supreme Court

of Ohio declined the invitation to bring Ohio’s sentencing considerations in line with

this Court’s precedent. As it currently stands, the sentencing scheme in Ohio must

be remedied considering Monigomery’s explanation that Miller banned life without

- parole for a certain class of offenders: children whose.crimes reflect unfortunate and

transient immaturity, and not irreparable corruption. Montgomery at 734.

CONCLUSION

This Court’s decision in Montgomery defines the substantive right in Miller

and requires more than a consideration of age—it requires consideration of

irreparable corruption before sentencing a child to life without parole. Montgomery,

186 S.Ct. at 734, 736, 193 L.Ed.2d 599. Ohio law fails to acknowledge these important

considerations. For the foregoing reasons, the Petition for a Writ of Certiorari should

‘be granted.

Respectfully submitted,

Office of the.-Ohio Public Defender

(2 D asl Kohlonel

Charlyn Bohfand 40088080

Assistant State Public Defender

Member of the Bar of this Court #301223)

250 East Broad Street, Suite 1400

Columbus, -Ohio 48215

(614) 466-5394

(614) 752-5167—Fax

charlyn.Bohland@opd.ohio.gov

Counsel for Petitioner, Devonte Brown