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7th District affirms maximum sentence for non-homicide juvenile offender
TRACEY BLAIR
Legal News Reporter
Published: November 9, 2020
A Mahoning County trial court did not err by sentencing a juvenile non-homicide offender to the maximum time in prison for participating in robbing and gang raping a college student at gunpoint.
The 7th District Court of Appeals recently affirmed appellant Brandon Moore’s sentence on his convictions for three counts each of aggravated robbery, rape and complicity to rape, and one count each of kidnapping and aggravated menacing, plus multiple firearm specifications.
Moore argued his sentence did not provide a “meaningful opportunity for release” in violation of the Eighth Amendment.
The crimes occurred on Aug. 21, 2001, when Moore was 15 years old. That night, Jason Cosa pulled into his driveway and was confronted by Moore, who pushed a gun into Cosa’s face and demanded money. Moore fled in a waiting car after taking the possessions of Cosa’s two passengers.
That same evening, Moore approached M.K., a 21-year-old student at Youngstown State University. As she was opening the trunk of her car, Moore put a gun into her stomach and demanded money. He was wearing a mask, but removed the mask during the robbery.
He began telling M.K. how beautiful she was and forced her to the passenger side of her car. He then followed another vehicle driven by codefendant Andre Bundy. M.K. gave him her jewelry and asked to be released, but Bundy refused.
Soon afterward, Moore stopped the car and codefendant Chaz Bunch entered M.K.'s car through the back door. Bunch put a gun to M.K.'s head and demanded money. Throughout the ordeal, M.K. pleaded with them not to kill her, according to appellate records.
As they continued to follow the other vehicle, Moore and Bunch ordered M.K. to get out of the car and pointed their guns at her. They took turns orally raping her multiple times. M.K. again pleaded that they not kill her, and they then took her to the trunk of her car.
Once at the trunk, codefendant Jamar Callier took some of M.K.'s possessions. M.K. told her attackers she was pregnant, in an attempt to avoid being raped again, but was anally raped by one of the men.
Bunch then put his gun into her back and forced her to the front of the car. Bunch threw M.K. to the ground. While she was on the ground, Moore and Bunch took turns vaginally and orally raping her. While one was vaginally raping her, the other would perform an oral rape, and vice versa.
At some point, codefendant Callier came over and forced them to stop. Bunch stated that he wanted to kill her, but Callier would not let him.
M.K. later drove to the home of her boyfriend's uncle and began screaming out the license plate number of the car she had seen. She was immediately taken to the hospital.
The assailants were arrested that night after Youngstown Officer Anthony Vitullo heard a broadcast of the license plate of the suspects' vehicle (with two numbers transposed) and noticed a similar vehicle in the Dairy Mart parking lot. Vitullo followed the vehicle, which soon ran a stop sign and pulled into a driveway.
The case was transferred from juvenile court to the general division.
Appellant, Bunch, and Bundy were tried together. The jury found Moore guilty of all counts and all specifications.
At the sentencing hearing, the trial court told Moore, “I want to make sure you never get out of the penitentiary, and I'm going to make sure that you never get out of the penitentiary.”
In Moore's first appeal, the appellate court vacated his conviction for conspiracy to commit aggravated robbery as well as the accompanying firearm specification. The new sentence totaled 112 years. Moore appealed again, and the appellate court vacated the entire sentence and remanded for resentencing because Moore's previous sentence had involved judicial factfinding of the kind declared unconstitutional by the 7th District in State v. Foster.
On Feb. 5, 2008, the trial court resentenced Moore to the aggregate 112-year prison term. Moore appealed his resentencing and pursued other avenues of relief.
On May 17, 2010, the U.S. Supreme Court decided Graham, holding that “for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole.”
The Ohio Supreme Court vacated appellant’s 112-year sentence, and remanded the matter to the trial court for resentencing in accordance with Graham, holding that “a term-of-years prison sentence that exceeds a defendant's life expectancy violates the Eighth Amendment to the United States Constitution when it is imposed on a juvenile nonhomicide offender.”
The Graham Court explained that a juvenile nonhomicide offender has “‘twice diminished moral culpability’” given the nature of the crime and the juvenile’s age.
On remand from the Ohio Supreme Court, the trial court held a resentencing hearing on April 17, 2018. This time, the trial court sentenced appellant to a total of 50 years in prison. Moore will be eligible for parole at the age of 62.
“He claims that by this time, people are ‘about to finish’ their lives,” 7th District Judge Gene Donofrio said in his opinion. “Appellant takes for granted, however, that most people are living full, productive lives at age 62. Appellant also urges that a national consensus exists against the sentencing practice at issue. But, as demonstrated by a review of how other states have handled similar sentences, there does not exist a national consensus against a 50-year sentence with an opportunity for judicial release after 47 years at which time the offender will be 62 years old. To the contrary, numerous states have upheld similar sentences as constitutional and not in violation of Graham.
“In consideration of all of the above, we cannot conclude that appellant’s sentence in this case violates the Eighth Amendment, Graham, or Moore. Appellant’s 50-year sentence with the opportunity for release at age 62 provides a meaningful opportunity for release with the chance to live part of his life outside of prison.”
Appellate judges Cheryl L. Waite and Carol Ann Robb concurred. The case is cited State v. Moore, 2020-Ohio-4715.