Saturday, May 30, 2015

Appellate Court Considers Lane’s Bindover, Life Sentence
March 26, 2014 by John Karlovec | No Comments

After 35 minutes of oral argument, the 11th District Court of Appeals made no decision on convicted Chardon Schools murderer T.J. Lane's appeal Wednesday morning.

After 35 minutes of oral argument, the 11th District Court of Appeals made no decision on convicted Chardon Schools murderer T.J. Lane’s appeal Wednesday morning.

Lane, who was convicted of shooting six students at Chardon High School — three fatally — on Feb. 27, 2012, filed an appeal last April that raised four issues seeking to have his conviction and sentence of lifetime in prison without parole overturned.

Lane was 17 at the time of the shooting — which killed Danny Parmertor, 16, Demetrius Hewlin, 16, and Russell King Jr., 17. and wounded Nick Walczak, 18, Nate Mueller, 17, and Joy Rickers, 19.

Because he was a juvenile, Lane was ineligible for the death penalty. He is currently serving three life sentences without parole at Allen Oakwood Correctional Institution in Lima.

Now 19, Lane did not attend the appellate hearing. However, his paternal grandparents, Jack and Carol Nolan, were seated in the back of the courtroom.

Also seated in the courtroom were the mothers of the three deceased students.

Lane’s court-appointed counsel, Michael Partlow, of Kent, told judges Cynthia Westcott Rice, Timothy Cannon and Thomas Wright he intended to focus on two of four issues on appeal in his allotted 15 minutes of argument: the constitutionality of Lane’s mandatory bindover from juvenile court to adult court and the imposition of a life sentence without the possibility of parole.

“This case is not about somehow getting Mr. Lane off,” Partlow told the court. “This case is about what sanction is appropriate and how do we get there.”

Partlow challenged an Ohio law that allowed Lane’s case to be transferred from juvenile court to adult court. That law requires a mandatory bindover to adult court when a juvenile who is 16 or 17 is accused of one or more serious crimes and there is probable cause to believe he or she committed the act.

He argued due process was violated when Geauga County Juvenile Court Judge Tim Grendell automatically transferred Lane to adult court without exercising any discretion in his decision to transfer him.

Partlow cited in the record when Grendell left the bench prior to handing down his decision and suggested the judge was thinking about the appropriateness of the transfer to adult court.

“One thing that strikes me … is he (Grendell) did take a break after both sides presented what they were going to present so that he could consider it,” Partlow said. “He came back and basically, he said, ‘Nothing in the statute gives him any flexibility, he has to do a bindover.'”

The interesting thing that no one knows, Partlow said, is why the break and what was Grendell considering?

“That leads me to believe that, perhaps, he felt that if he could consider something, there were some things to consider,” Partlow told the judges.

He also noted the issue of whether the statutory bindover provisions are constitutional is presently before the Ohio Supreme Court.

In addition, he argued the appellate court has discretion, notwithstanding Lane’s guilty plea, to consider the constitutionality of those provisions.

Cannon noted the case presently before the supreme court involved burglary and not homicide.

“All of the arguments, though, would apply equally to any kind of mandatory bindover,” Partlow argued.

In a mandatory bindover, a juvenile court cannot consider factors such as the sophistication and maturity of the juvenile or the likelihood of rehabilitation, he added.

Partlow said there is no empirical basis to distinguish between a 16-year-old or 17-year-old.

But Cannon pointed out the test is a “rational basis” test and it was Lane’s burden to present evidence during the bindover hearing that he should be treated differently than an adult offender.

Partlow conceded Lane’s defense team did not present such evidence at that hearing.

“Accepting empirical data was not something on his (Grendell’s) agenda,” he argued. “There were arguments made along those lines, though.”

Finally, Partlow argued Lane’s age at the time of the shooting had to be considered as a mitigating factor in fashioning an appropriate sentence.

Consequently, Partlow said Lane’s right to due process and equal protection were violated in this case as was his right to be free of cruel and unusual punishment.

Geauga County Prosecutor Jim Flaiz said during his 15 minutes that Grendell properly sent Lane to common pleas court after conducting required probable cause and competency hearings.

He also argued Ohio courts, including the 11th District Court of Appeals, have upheld the state’s mandatory bindover provisions.

While the supreme court is considering the issue, Flaiz told the judges they needed to look at what the law currently holds.

“What the law is right now — mandatory juvenile bindover in aggravated homicide cases is constitutional,” Flaiz said.

He added, “When you look at mandatory bindover for 16 and 17 years olds, the legislature has made a statement and the statement is that, for the most serious crimes, juveniles should be treated as adults.

“If you’re 16, if you’re 17 and you commit an aggravated homicide, commit an aggravated murder, you should be treated as an adult. The legislature has made it very clear: we’re not just going to let a 17-year-old who shoots somebody in the head out of (Department of Youth Services) when they turn 21.”

Flaiz also noted there was a competency evaluation and probable cause hearing in juvenile court, and there were other constitutional protections followed in the mandatory bindover proceedings.

“That proceeding, I believe, was rock solid,” he said.

Partlow argued the Ohio Supreme Court in State v. Long, handed down earlier this month, held a youth’s age must be considered as a mitigating factor before a trial court can hand down a life sentence without the possibility of parole for a juvenile convicted of aggravated murder.

The court’s ruling noted the record must reflect the court gave such consideration.

Partlow said the trial court record is silent on evidence that Geauga County Common Pleas Court Judge David Fuhry considered Lane’s youth as a mitigating factor before handing down his sentence.

Flaiz initially told the judges the Long decision upheld Ohio’s “sentencing scheme” for juvenile offenders as constitutional.

Then, on the issue of whether Fuhry considered Lane’s youth as a mitigating factor before handing down a sentence of life without parole, Flaiz said the pre-sentence investigation report contained age information, juvenile court information, information about Lane’s stay at the Portage-Geauga Juvenile Detention Center and Lane’s educational history.

He added the State of Ohio did not recommend a life sentence without the possibility of parole, but asked the court to fashion a sentence that was appropriate under the circumstances.

“And the trial court did take into account those circumstances,” Flaiz said. “The trial court specifically mentioned the defendant’s age at sentencing; he specifically talked about it.”

Flaiz described Fuhry’s sentence as one of the most “well reasoned and thorough” he has ever seen.

“Clearly, the trial court judge went through the entire record,” he said. “What’s most important here … is that there were several exhaustive psychological reports that are part of this record, that were part of what the trial court judge reviewed.”

Those reports contained information about age, maturity, family and educational background, and mental condition, Flaiz said.

“We had a ton of psychological information,” he said, noting there also was an extensive competency evaluation filed right before Lane entered his guilty plea as well as a competency evaluation in juvenile court that focused almost entire on his age and psychological factors.

“It’s almost impossible for the trial court to have had more of this information available,” Flaiz argued. “How much more information could he (Fuhry) have had?”

While Flaiz conceded Fuhry did not say on the record the “magic words” that he considered youth as a mitigating factor in arriving at an appropriate sentence, Flaiz argued there is extensive evidence in the record to show Fuhry did consider Lane’s youth.

Fuhry concluded Lane was not an impressionable youth, was almost 17 and a half, was intelligent and suffered no mental impairment, Flaiz said.

“When you look at what the judge says … you can interpret that as youth is a mitigating factor. You look at youths, youths are impressionable. Youths can be influenced,” Flaiz argued. “And the judge says that didn’t happen here. You have somebody here who had a calculated plan, knew what he was doing and methodically and cold-bloodedly went into a school and killed these kids.”

Wright challenged Partlow during his five-minute rebuttal on the entire record. He suggested the entire record showed that Fuhry “thoughtfully” considered Lane’s youth as a mitigating factor and, in fact, addressed four factors routinely considered in cases involving juveniles.

A decision on Lane’s appeal could take several weeks to several months, Flaiz said after the hearing.

“This won’t be the last step. No matter what happens here today, I anticipate that the case will be appealed to the Ohio Supreme Court or it could be sent back for re-sentencing,” Flaiz said. “Under either of these scenarios, we’re going to have further proceedings. So, it’s not going to be over for awhile, unfortunately.”



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