CASE No CHAD BARNETTE, CASE No. 02CA65. Mahoning County Prosecutor's Office. Office of the Ohio Public Defender

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1 ^ 0/?/0/ ^z IN THE SUPREME COURT OF OHIO STATFL OF OHIO, V. PLAINTIFF-APPELLEE, CHAD BARNETTE, CASE No ON DISCRETIONARY APPEAL. FROM THE MAHONING COUNTY COURT OF APPEALS, SEVENTH APPELLATE DIS'IRICT, CASE No. 02CA65 DEFENDA NT-APPELLANT. MOTION FOR RECONSIDERATION OF APPELLANT CHAD BARNETTE Mahoning County Prosecutor's Office Paul J. Gains, Mahoning County Prosecutor Office of the Ohio Public Defender Stephen P. Hardwick, Assistant Public Defender 21 W. Boardman Street, 61h Floor Youngstown, Ohio (330) (330) (fax) 250 E. Broad Street, Suite 1400 Columbus, Ohio (614) (614) (fax) Counsel for Appellee, State of Ohio Counsel. for Appellant, Chad Barnette, is. f;^^f",.j^sr,f^

2 MOTION FOR RECONSIDERATION OF APPELLANT CHAD BARNETTE Introduction This Court should reconsider its deci.sion not to hear this case because a preliminary study-released two days after this Court declined to hear this casesindicates that the average life expectancy of a black man in prison is roughly years, and Chad will not be eligible to even seek judicial release until age 61. If this Court does not accept this case for briefing, it should hold it for the decisions in State v. Eric Long, Case No , and State v. Alexander Qltiarterman, Case No Eric Long's case involves the application of Miller v. Alabama, U.S., 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), to an aggravated murder sentence imposed on a child. And in Quarterman, this Court will decide whether Miller and earlier cases prohibit all mandatory bindovers of children to adult court. Because Chad was bound over without an amenability hearing, if Quarterman prevails, Chad will arguably be entitled to an amenability hearing in juvenile court. Finally, this Court should also consider this case jointly with six other similar cases already submitted to the Court. 1

3 Factual and Procedural History 1. Chad was not dilatory in pursuing his challenge: He filed his initial motion for delayed reconsideration 29 days after completing his challenge to his initial sentence. The State has not contested that Chad has continuously litigated his sentence based on the issues he raised before the United States Supreme Court issued Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). He lost his timely habeas action on February 14, He filed a motion for delayed reconsideration under his initial appeal number. 29 days later. Barnette v> Kelley, Case No. 4:09CV1005, 2013 U.S. Dist. LEXIS (N.D. Ohio Feb. 14, 2013). Over the dissent of Judge DeGenaro, the Seventh District ruled that he should file the delayed reconsideration motion in his appeal from his resentencing. In State v. Barnette, 7th Dist. Mahoning No. 02C:A65 (June 28, 2013). Three business days later, Chad filed his motion for delayed reconsideration in this case. The court of appeals denied that motion, and this timely discretionary appeal followed. II. Facts. Chad and a co-defendant repeatedly pushed, hit, and kicked an 84 year-old man with their hands, feet, and the man's phone. They caused a concussion, a spinal cord contusion, fractured vertebrae, a punctured lung, and broken ribs and multiple other wounds. They then locked him in his basement and stole a set of keys from the kitchen. They also robbed an elderly couple in their home. They dragged the woman through the house demanding money, and hit her on the head and legs with a shotgun. They hit 2

4 the man on his head with plates and other objects, causing profuse bleeding. They stole $187 and a television. Despite the brutality, they did not cross the line drawn in Graham - they did not kill. Because they did not kill, any sentence must provide them a "meaningful opportunity for release." Graham at 75. Discussion 1. The best available evidence shows that Chad is expected to live only until his 50's, but his sentence does not permit him to seek release until. his after he is 61 years old.i A study released in January 2014 reported that other studies have shown that an.a:frican-ainer.ican prisoner can, on average, only expect to live until his fifties. Stacie Nelson Colling, Esq., Adele Cummings, PhD, There is no N.teanin&l Opporttcnity in Meaningless Data (Jan. 24, 2014), Lip1^c^^xds^2014 i)1/[_.if^] Expectaricy-ArtzcJc!^^^nmitgsl.xa^Jf (accessed Jan. 30, 2014). One cited stildy showed that men who entered the Michigan prison system as children and stayed in the system died, on average, at age Id. at 27-28, citing Deborah LaBelle, Michigan Life Expectancy Z?ata for Youth Serving Natural Life Sentence (Apr. 19, 2013), http;/ffarrsentencinofvomfh org/wp-content/t^ploads/2t)1^/q2ii^lich^a^:z-life- One dissenting judge claimed that Chad would be eligible to seek judicial release in his "mid-to late fifties[.]" Respectfully, the dissenting judge was inco.rrect. Chad received an 84-year prison term, but that includes 6 years of firearm specifications, which camlot be reduced, even under House Bill 86. Accordingly, only 78 years of his sentence may be reduced down to 39 years. He inust serve the 6 years of specification time day-for-day. R.C (B)(1)(b). Because he was 1.6 years old at the time of the offense, he will not be allowed to ask for judicial release until he is past his 615' birthday. 3

5 ExpectancvData-Youth-Serving-Life pdf (Accessed Jan. 30, 2013). The Colling/Cummings study also cited a study in the United Kingdom that found that life expectancy for male prisoners dying of natural causes was 56 years. Colling/Cummings at 28, citing David Oliviere et al., editors, Death, Dying, and Social Differences, Oxford University Press (2012). The Colling/Cummings study performed its own analysis of deaths in Colorado prisons, and found that 54% of all deaths occurred before the prisoner reached his 55th birthday. And the average age of death was 52.8 years. Colling/Cummings at 17. While it's true that some of the cited studies were authored by groups supporting the rights of children, and that, by its own terms, the Colling/Cummings study was preliminary, the conclusions are similar to data provided by the United States Department of Justice, which explains that in 2011, 47% of all state prisoner deaths occurred before the age of 55. Margaret E. Noonan, BJS Statistician, Scott Ginder, RTI International, Office of Justice Programs, Bureau of justice Statistics, Mortality in Local Jails and State Prisons, Statistical Tables (Aug. 2013), Table 18, (accessed Jan. 30, 2014), p. 21. So, according to the United States Department of Justice, barely more than half of long-term inmates lived past their 54th birthday in And while there are no figures precisely for 61-year-olds (the age Chad will be when he can seek judicial release), Colorado statistics show that 81% of male inmates die by age 64. Colling/Cummings at 18. 4

6 The opportunity to seek release after a child will probably be dead is not the meaning{ul opportunity Grahaan requires. IL In the alternative, this Court should consider Chad's case along with the cases of five other similarly situated defendants. With the recent filing of State v. Brandon Moore, Case No , by Brandon's pro bono counsel, Jones Day, this Court now has before it seven cases involving six child-defendants that address an issue that has split courts across the cuuntry-how Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) and Miller v. Alabama, _ U.S., 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), apply to sentencing structures that were enacted without the guidance of those two ground-breaking decisions. This Court has accepted two of the cases. State v. Eric Long, Case No ; and State v. Alexander Quarterman, Case No Long has been briefed and argued on the merits, and Quarterman is currently being briefed. `l'his Court has declined to hear this and another case by votes of 4-3,'- and a third case by a vote of Those two cases are pending on reconsideration. A. The following Graham-related cases are now before this Court: 1. State v. Eric Long, Case No This case has been accepted, briefed, and argued. It is currently awaiting decision. lt involves the question of whether the record must show that trial courts properly considered youth as a 2 The other case decided on a 4-3 vote is State v. Bunch, Case No State v. WWillie Evans, Case No

7 mitigating factor before sentencing a child to life without parole fnr a homicide. 2. State v. Alexander Quarterman, Case IlTo This case has been accepted, and is currently being briefed. It concerns whether Graham and Miller extend to ban not only lifelong sentences for non-homicide offenders, but also bans all mandatory bindovers of children to adult court. 3. State v. Brandon Moore, Case No Brandon's case is pending as a jurisdictional appeal. It concerns a 112-year sentence imposed on a child for a sexual assault, as well as a separate robbery committed on the same day. After years of pro se appeals, Brandon obtained Jones Day as pro bono counsel. Brandon was 15 years old at the time of his offense. 4. State v. Chad Barnette, Case No (this case). Chad was sentenced to 84 years in prison. The trial judge said he was "making sure that [Chad] never get[s] out[]"llnder House Bill 86, Chad is eligible to seek judicial release at age 61, which is approximately the life expectancy of an African American male entering prison at age 16. This is an appeal from the denial of his motion for delayed reconsideration filed in his post-foster direct appeal. On January 22, 2014, this Court declined to hear this case by a vote of State v. Chaz Bunch, Case No Chaz was the co-defendant in Brandon Moore's sexual assault case. Chaz's cases is pending before this Court on a motion for reconsideration of this Court's 4-3 decision to decline jurisdiction. Chaz faces a sentence that will make him eligible for judicial release at age State v. Willie Evans, Case no Willie was sentenced to life without parole for aggravated murder. He filed a motion for delayed reconsideration under Graham. The State's only defense to his motion is that Miller does not apply 6

8 retroactively, an issue that has split courts rtationwide. On January 22, 2014, this Court declined to hear this case by a vote of 5-2. A motion for reconsideration was filed on January 31, State v. Chad Barnette, Case No This is Chad's appeal from the denial of his application for delayed reconsideration filed in his pre-foster direct appeal, which two members of the Seventh District, over a dissent by Judge DeGenaro, held should have been filed in his second appeal. This case is pending on Chad's motion to reconsider the denial of jurisdiction. B. Consolidation would avoid piecemeal review. Piecemeal review could lead to the anomalous result that identically situated defendants would get different results simply because some were filed a few months earlier than others. Consolidation would also permit this Court to issue a single signed opinion, which would avoid the ambiguity that could result from opinions issued separately in separate cases. As a result, this Court should either hold the cases that have not yet been accepted for the decisions in Long and Qitarterman, or consolidate the cases that have not yet been argued so that they may be considered together. 1. This and other cases involve the question of how far to extend Graham. Further, both Chad's case and Quarterman involve the question of the reach of Graham. In Chad's case, the question is whether Graham's requirement that children convicted of non-homicide offenses have a "meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation[,]"applies to children facing lifelong term-of-years sentences, or whether that Graltam applies only to children facing 7

9 life-long sentences expressly labeled as ""life." See Graham at 75. In Quarterman, the issue is whether Graham should be extended to ban not only life sentences for children, but also all mandatory juvenile bindovers. If Graham extends to ban the mandatory transfer of children to adult court, the decision certainly applies to ban life-long term-of-years sentences that deny children any opportunity for release. 2. The State agrees that this case is related to State v. Long, Case No In its January 13, 2014 response to Chad's earlier motion to hold this case only for State v. Quarterman, the State argued that State v. Long, 1st Dist. Hamilton No. C , 2012-Ohio-3052, disposes of the issue Ch.ad presents. Response at 4. The State confused Miller's ban on mandatory Iife-without-parole for homicides with Graham's bari on all life-without-parole for non-homicide offenses. But, more importantly, the State missed that this Court accepted an appeal from th.e First District's decision in Long. Case No Because the State concedes that the decision in Long should impact the decision in this case, Chaz asks this Court to hold his case for the decision in Long. III. The State omits a critical word from the holding of the United States Supreme Court. In its filings in this Court, the State correctly underlines the gravity of these cases - they all involve very serious juvenile offenses in which innocent people were hurt. But they also involve sentences that many courts have called cruel and unusual. 8

10 The State's assertion that, Chad's claim fails because he "has an. opportunity to obtain a release from the penitentiary" leaves out a critical word-meaningful. State's Response (Jan. 13, 2014). The United States Supreme Court does not require merely any opportunity for release, it requires a meaningful opportunity for release. Graham at 75. IV. Judge DeGenaro has dissented. Furthermore, Seventh District Judge DeGenaro has twice dissented (one of the times in Chad's case), arguing that these issues should be decided on the merits. State v. Chad Barnette, 7th Dist. Mahoning No. 02 CA 65, JE, June 28, 2013, at 11 (DeGenaro, J. dissenting); State v. Chad Brandon Moore, 7th Dist. M:alioning No. 08MA20, 2013-Ohio- 5863, 'ff 13 (DeGenaro, J. dissenting). Conclusion This Court should hear this case and decide it along with State v. Eric Long, Case No , State v. Quarterman, Case No , State v. Chaz Bunch, Case No , State v. Willie Evans, Case No , and State v. Chad Barnette, Case No In the alternative, this Court should hold this case for the decisions in Long and Quarterman. Respectfully submitted, Office of th Fio Public Defender y: Stephen P. wick ( ) Assistant Public Defender 9

11 250 E. Broad Street, Suite 1400 Columbus, Ohio (614) (614) (fax) Counsel for Appellant Chad Barnette CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing was forwarded by to Assistant Prosecuting Attorney Ralph Rivera, rrivera@mahoningcountyoh.gov, on this 31st day of January, Stephen P. Ha 2) Assistant Public Defender J?40b244 Counsel for Appellant Chad Barnette 10