State v. Cunningham ( 2022 )

[Cite as State v. Cunningham, 2022-Ohio-3497.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-21-1136
Appellee Trial Court No. CR0202001977
v.
Tacarie Cunningham DECISION AND JUDGMENT
Appellant Decided: September 30, 2022
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio State Public Defender, and
Timothy B. Hackett, Assistant State Public Defender, for appellant.
*****
MAYLE, J.
{¶ 1} Appellant, Tacarie Cunningham, appeals the June 11, 2021 judgment of the
Lucas County Court of Common Pleas sentencing him to 15 years to life in prison. For
the following reasons, we affirm.
I. Background and Facts
{¶ 2} Cunningham’s conviction in this case arose from the shooting death of C.C.
on March 15, 2020. Cunningham, who was 15 years old at the time, was initially charged
in the Lucas County Court of Common Pleas, Juvenile Division (“juvenile court”), with
complaints alleging felony murder in violation of R.C. 2903.02(B), an unclassified felony
if committed by an adult; felonious assault in violation of R.C. 2903.11(A)(2), a second-
degree felony if committed by an adult; and tampering with evidence in violation of R.C.
2921.12(A)(1), a third-degree felony if committed by an adult. The felony murder and
felonious assault complaints each included a specification under R.C. 2941.145 alleging
that Cunningham had a firearm on or about his person while committing the offense and
used it to facilitate the offense.
A. Juvenile court proceedings
1. Probable cause hearing
{¶ 3} On March 31, 2020, the state moved under R.C. 2152.10(B) and 2152.12(B)
to have Cunningham’s case transferred to the General Division of the Lucas County
Court of Common Pleas (“trial court”). On May 6, 2020, the juvenile court held a
hearing to determine if there was probable cause to believe that Cunningham had
committed felony murder, felonious assault, and tampering with evidence. The state
presented the testimony of two detectives from the Toledo Police Department (“TPD”),
Jason Mussery and Robert Bascone.
{¶ 4} Mussery testified that he was on call the morning of March 15, 2020, when
he received a report of a shooting homicide at an after-hours bar on West Sylvania in
Toledo. When he arrived at the bar, Mussery individually interviewed the seven
witnesses who were detained by TPD officers. Although he did not remember the name
2
of each witness, Mussery said that “all of them gave the same story as far as there was a
scuffle or something happening in the patio area in the back of the bar before they heard a
shot.”
{¶ 5} Mussery said that the bar had “two DVR systems” with video footage that
officers downloaded pursuant to a search warrant. The state played the video during
Mussery’s testimony.1 Mussery said that the footage showed a group of people,
including C.C. and Cunningham, by the door from the patio to the bar. The state also
showed Mussery state’s exhibit No. 1, which was a printout of a frame from the video
with one person circled. Mussery identified Cunningham as the person circled in the
photograph.
{¶ 6} Returning to the video, Mussery described “a scuffle at the door.” He said,
“You can’t see what’s happening. [Cunningham] goes towards the door, and it appears
that there is a scuffle. I don’t know if he was pushed away from the door, but as he backs
away from it, he pulls a gun out of his sweatshirt and he fires.” About a minute after
firing the gun, Cunningham reenters the patio area, reaches down, and picks up
something. Based on his training and experience, where Cunningham was standing when
he fired the gun, where Cunningham picked up the object, and the fact that police did not
find shell casings at the scene, Mussery concluded that Cunningham returned to the patio
area to pick up shell casings.
1
The state did not offer the video that it played during the probable cause hearing as an
exhibit, and the video is not included in the appellate record.
3
{¶ 7} Mussery learned the shooter’s identity from other officers before he watched
the surveillance video. They identified him as Cunningham. After watching the video
and learning that Cunningham was 15 years old, Mussery filed delinquency complaints
against Cunningham alleging felony murder with a gun specification, felonious assault
with a gun specification, and tampering with evidence. Mussery said that the tampering
complaint related to Cunningham removing shell casings from the crime scene. He
explained that shell casings are “very important because that’s how you link a crime to a
gun, and if you don’t have shell casings, you can’t do that.”
{¶ 8} At the time of the probable cause hearing, an autopsy had been conducted on
C.C., but the report was not yet ready. However, speaking as the lead investigator in the
case, Mussery said that C.C.’s cause of death was “[d]eath by gunfire.”
{¶ 9} On cross-examination, Mussery clarified that, although C.C. was outside on
the patio before the shooting, he was found on a set of steps inside the bar—not in the
patio area. Mussery claimed that there was no video from that area of the interior of the
bar.
{¶ 10} Mussery also said that police had not found the gun that they believed was
used in the shooting. However, while reviewing the video, Mussery saw “several guns”
in the patio area of the bar that night, including a gun that defense counsel characterized
as an “assault rifle” that police later found in a backpack. Mussery did not know the
caliber of the gun in the backpack or the caliber of the gun used to kill C.C. He did not
see Cunningham with a backpack at any point.
4
{¶ 11} Before the shooting, a man who was on the patio had a gun in his hand that
he put down. When he did so, another man came over and picked it up. The second man
then walked into the bar with the gun. Mussery did not know the caliber of this gun or if
it matched the caliber of the gun that killed C.C.
{¶ 12} While closely reviewing the video footage, Mussery acknowledged that
Cunningham had his left hand out of his pocket and did not have a gun shortly before the
shooting. Cunningham was also one of the people who was pushed back from the door
leading into the bar just before the shooting. Mussery agreed that it was possible that
Cunningham dropped something from his pockets when he was pushed and that he
returned to the patio after the shooting to pick up his personal property—not something
with evidentiary value. However, although he could not see on the video exactly what
Cunningham picked up, Mussery said that he “think[s] it’s highly unlikely” that the item
was Cunningham’s personal property. Mussery also acknowledged that, after the
shooting happened, several people walked back and forth through the patio area and
people who were not there at the time of the shooting walked into the bar through the
patio area. He did not see any of these people “bend down to the floor[,]” so he did not
think that any of them could have picked up a shell casing as they walked through.
{¶ 13} Mussery could not tell from the video how many shots were fired, but
based on the accounts that he gathered from the witnesses—whom Mussery described as
“about 50 percent cooperative”—he believed that there were two shots. He also believed
that Cunningham was the person who fired the shots based on what he saw in the video,
5
despite knowing that another handgun was in the bar less than three minutes before C.C.
was shot. As Mussery clarified on redirect, this was because Cunningham was the only
person who was visible in any portion of the surveillance video pointing a gun at
someone or firing a gun. But he conceded that there was no video of the interior of the
bar, so he had no way of knowing if someone inside the bar pointed a gun at C.C.
{¶ 14} The state’s other witness at the probable cause hearing was Bascone, a
detective with the TPD’s gang unit. Following C.C.’s shooting, someone from TPD’s
detective bureau sent the picture in state’s exhibit No. 1 to the gang unit to see if they
could identify the person circled in the picture. Bascone was able to identify the person
as Cunningham “[r]ight away” and did not have any doubts about his identification.
{¶ 15} After hearing the testimony, the juvenile court said that the standard for
probable cause required it to find that there was credible evidence supporting every
element of each offense and “whether its [sic] more likely than not that these offenses
were committed and that they were committed by Tacarie.” In finding probable cause,
the court explained
What I see is Tacarie shooting in the direction of where the victim
was. I know that [C.C.] died. Everybody stipulated that there was a
murder, that he was shot to death. There were no shell casings, and yet
there should have at least been a shell casing either where the victim was
found if someone inside the club killed him, or where Tacarie was and
there’s none either way. But we saw Tacarie bend down to pick something
6
up. I think that it’s more likely than not that not only was this murder—not
only this murder happened but that Tacarie Cunningham did it. Now,
again, that’s not proof beyond a reasonable doubt. All I need to make a
finding is that it’s more likely than not that that’s what happened, and I do
make that finding.
{¶ 16} Because Cunningham’s transfer to the trial court was discretionary under
R.C. 2152.12, the trial court ordered the required evaluations and amenability hearing
before determining whether to transfer jurisdiction of Cunningham’s case.
2. Amenability hearing
{¶ 17} On August 4, 2020, the juvenile court held a hearing to determine if
Cunningham was amenable to care or rehabilitation in the juvenile system, and if the
safety of the community required that Cunningham be subject to adult sanctions, as
required by R.C. 2152.12(B). At the hearing, the state presented the testimony of Dr.
Thomas Sherman, a psychiatrist, and Mussery.
{¶ 18} Sherman testified that he is the medical director at Court Diagnostic and
Treatment Center, and that he evaluated Cunningham for purposes of the amenability
hearing. When he conducts these evaluations, he looks at whether the child has a mental
illness or mental defect, the child’s maturity level, and whether the child is amenable to
rehabilitation in the juvenile system.
{¶ 19} Sherman described Cunningham as a “nice kid” who was polite and did not
show signs of serious mental illness. He thought that Cunningham “wasn’t very upfront”
7
and “was kind of vague in providing details[,]” but “[o]ther than that, nothing else was
peculiar.”
{¶ 20} Regarding mental illness, Sherman said that Cunningham had attention
deficit hyperactivity disorder, which is a mental illness, but “in terms of forensic
evaluations, mental illness translates to either severe depression, bipolar disorder or some
sort of psychotic disorder.”
{¶ 21} When he considers a child’s maturity, Sherman is “looking for [] gross
immaturity rather than maturity. * * * [W]hat interested me most is whether or not I’m
dealing with a kid or an adult.” Sherman did not think that he was “dealing with” a kid
when it came to Cunningham. He said that Cunningham “certainly did not appear to be
living the life of a typical 15-year old [sic]. * * * He traveled around. He went to Dayton
by himself. He was hanging out in the middle of the night.”
{¶ 22} Finally, regarding rehabilitation in the juvenile system, Sherman said that
asking him to “foretell the future” was a “difficult question.” He explained that, at 15
years old, Cunningham could spend six years at a Department of Youth Services
(“DYS”) facility, and that “[a] lot can happen in six years.” However, “[w]hat [Sherman]
worried about most in this case was the nature of the offense. It sounded to [Sherman] as
if it were just cold blooded, and [Cunningham] denied it. There was no remorse.”
Sherman referred to the video of a police interview with Cunningham that Sherman
watched as part of his evaluation. When the detective presented Cunningham with video
evidence of Cunningham with the gun in his hand, Cunningham “denied doing it.”
8
Sherman said that he was “not here to make a judgment whether or not [Cunningham] did
do it, but if he did, that certainly doesn’t sound real good.”
{¶ 23} Sherman went on to explain what he called the “Sherman rule”: “if [in] the
best of all worlds and price were no object and insurance covered everything, could I, in
six years, make a big difference if I were treating him personally? In this case I doubt it,
but, again, if he were a captive citizen, maybe I could.” Sherman reiterated that
predicting future outcomes is a “very difficult thing to determine.”
{¶ 24} Additionally, Sherman learned of a report that Cunningham had put a post
on Facebook that included the “the presentation of the victim as a trophy * * *.” If
Cunningham had, in fact, made such a post, Sherman said that it “certainly suggests to
[him] a lack of remorse, a lack of ability to put yourself in another person’s position * *
*. Those are indications * * * of an incipient antisocial character which would make it
almost beyond the realm of treatment, certainly beyond the realm of treatment with the
current situation of DYS.”
{¶ 25} In reaching his conclusion, Sherman considered the potentially unreliable
report about the Facebook post and its contents, the lack of remorse that he saw in
Cunningham’s police interview, Cunningham’s relatively minor juvenile record before
this case, and Cunningham’s age. Cunningham’s case was “not an easy call,” but
Sherman ultimately decided that, “if [Cunningham] did this [crime] and if the facts that I
have in front of me are true, that’s not a good prognosis for long-term treatment. But,
9
again, you know, we’re talking six years.” Sherman admitted that “up until the time of
the offense [Cunningham] clearly would fit a DYS transfer, but this is a different story.”
{¶ 26} On cross-examination, Sherman acknowledged that Cunningham’s only
prior juvenile adjudication was for criminal trespass, and that he believed that
Cunningham was amenable to juvenile court sanctions for that offense. Sherman went on
to say that “if this were some other kind of offense, armed robbery for example, I would
probably say that [Cunningham] could still be amenable to treatment. It’s the nature of
this offense that really swung the balance for me.”
{¶ 27} Sherman also admitted that what he perceived as Cunningham’s lack of
remorse could have been the result of other factors, such as Cunningham being adamant
that he had not committed the offenses and naturally being guarded because he was
facing serious charges and had never met Sherman.
{¶ 28} Regarding Cunningham’s maturity, Sherman agreed that Cunningham, at
15, lacked a full understanding of the consequences of the court proceedings and the
nature of his involvement with Sherman because “[t]here is a great deal of naivete that
comes with 15-year olds [sic] no matter what kind of lifestyle they have.” Although the
way that Cunningham was described in some of his school documents—impulsive,
talking about inappropriate topics, fighting, having difficulty with interpersonal
relationships—could show youthful immaturity, Sherman also said that they “could be
describing the worst psychopath at the age of 25 * * *.”
10
{¶ 29} Consistent with his testimony, Sherman’s report, which the state offered
into evidence, said that Cunningham provided generalities and vague information in
response to Sherman’s questions. In the history section, Cunningham reported that he
was raised by his mother and had five half-siblings whose exact ages he did not know.
He was a Toledo native, and had moved around a lot, but could not remember how many
addresses he had lived at or schools he had attended. He was unsure of what school he
would be attending if he were not in detention, but said he would be in tenth grade. He
also reported his ADHD diagnosis and said that he had taken medicine for it in the past,
although he was not taking it at the time of his meeting with Sherman. He said that he
uses marijuana because it makes him less hyper, but did not drink alcohol. Cunningham
reported having a girlfriend, who was also 15 and was pregnant.
{¶ 30} In the evaluation section, Sherman noted that Cunningham was pleasant
and friendly, despite giving vague and sometimes evasive answers. He said that
Cunningham “was always emphasizing the fact that he has ‘turned the corner’ in his life,
even though he continued to deny any participation in this offense.” Cunningham was
logical and oriented, and did not display characteristics of major mental disorders, signs
of depression or anxiety, abnormal or peculiar affect, or evidence of serious intellectual
incapacity, neurocognitive deficits, or memory problems.
{¶ 31} In reaching his conclusion about Cunningham’s amenability to treatment,
Sherman wrote that “[u]p until the time of the [underlying offenses], there appeared to be
no indication that he is a recidivistic criminal or antisocial personality. The nature of this
11
offense, however, (if indeed he committed it) is a cause of serious concern in terms of
future amenability.” If Cunningham were involved in the shooting, “he was the lone
actor and did not appear to be demonstrating any remorse denying the fact that he even
participated in the offense despite evidence apparently to the contrary.” Sherman went
on to explain that Cunningham’s lifestyle at the time of the shooting “certainly does not
indicate he was an ‘average’ 15-year-old.” Cunningham admitted to being at an after-
hours bar, but said that he could not remember what he was doing there; he claimed that
he just decided to go. Sherman also noted that Cunningham did not seem to have many
friends or close relationships.
{¶ 32} Taking all of these things into consideration, and based on the statutory
factors regarding transfer to the adult court, Sherman made three conclusions: (1) there
was no evidence that Cunningham suffered from a significant mental illness or defect; (2)
there was no evidence of “glaring immaturity and childlike behavior that would mitigate
against a transfer * * *”; and (3) the answer to the question of amenability depended upon
whether Cunningham actually committed the crimes he was accused of.
{¶ 33} Specifically regarding the third conclusion, Sherman said that
If indeed [Cunningham] was the lone actor and the lone “shooter”, it
would appear that the matter speaks for itself. The situation would be even
more serious if indeed he did put a Facebook post out advertising the victim
as a “trophy”. It appears as though he was living in what could best be
described as a “criminal environment”. There appeared to be no stability,
12
moving from school to school, home to home and apparently thinking
nothing of the fact that there were serious contrabands found in the house
where he was living [sic].
[] If on the other hand he was not a participant in the offense and
based upon his age, it would appear there would be no absolute
contraindications to him being kept in the juvenile system.
{¶ 34} The other witness that the state called at the amenability hearing was
Mussery. First, he testified about identifying Cunningham as the suspect in this case.
Although he identified the suspected shooter from the surveillance video, he did not
know the shooter’s name. Before he identified Cunningham as the person in the video,
he received an anonymous tip that the shooter was “very young and that they were in a
gang[,]” specifically the “Rec Squad [sic]” gang. Mussery eventually learned
Cunningham’s name from the gang unit of the TPD. Because of prior interactions with
Cunningham, “[t]he entire unit” was able to identify Cunningham from the photograph in
state’s exhibit No. 1, and they knew that he was affiliated with the RECC Squad gang.
Mussery did not have any personal knowledge that Cunningham was in a gang.
{¶ 35} A couple of days after the shooting, Mussery received another anonymous
tip. This caller said that a Facebook page had “a post about the victim of the shooting
being a trophy[,]” and that the post had already been taken down. When Mussery looked
up the Facebook page, he did not see a post about the victim, but he saw that the page
13
belonged to Cunningham, despite the page being listed under a name that was not
“Tacarie Cunningham.”
{¶ 36} According to Mussery, the only evidence that Cunningham knew C.C.
came from Cunningham saying during his interview that he knew who C.C. was, but
“they had no problems with each other or anything.” Based on what he could see in the
video, Mussery said that there appeared to be a dispute between other parties right before
the shooting happened, but that neither Cunningham nor C.C. was involved.
{¶ 37} Mussery was not able to discern a motive for the shooting in this case. He
said that, based on the video, “there doesn’t appear to be any reason to pull a gun and
shoot someone. * * * [Cunningham] wasn’t in any mortal danger.” Mussery also
observed that “in the moments leading up to the shooting if you watch the video,
[Cunningham] has a smile on his face the whole time. And most of the video, prior to the
shooting he has his hand in his pocket” that he later pulls the gun from. Mussery did not
come across anyone who had a grudge against C.C. and would want to kill him or find
any evidence that any of the adults at the bar that night had encouraged Cunningham to
shoot C.C.
{¶ 38} On cross, Mussery said that the only thing he did to verify the anonymous
tip about the Facebook page was call the phone number back, but the person did not want
to provide their name. He said that he “didn’t give [the tip] any weight at all. I put it in
my report.” Mussery acknowledged that he never saw the post that the caller referred to,
and that he could not try to subpoena Facebook for a post that had been taken down. He
14
also acknowledged that the name on the Facebook page was not Cunningham’s name,
that anyone could post pictures of Cunningham and make a page appear to belong to him,
and that he “[t]echnically” could not verify that the page belonged to Cunningham.
However, he believed the page was Cunningham’s based on the person’s friends, who
also had pictures of Cunningham on their pages, and a reference to the name on the
Facebook page that police found when they executed a search warrant at one of
Cunningham’s former residences. Mussery clarified on redirect that the initials “YTM”
were part of the name on the Facebook page and were also “carved on the porch of an
address that [Cunningham] has previously used[,]” which was vacant at the time TPD
officers searched it.
{¶ 39} The last piece of evidence that the juvenile court considered was
Cunningham’s social history, compiled as required by R.C. 2152.12(C). The probation
officer who created the report gathered information from Cunningham and his mother.
Mother reported that she and her family were residing in Dayton at the time of the
shooting, and Cunningham somehow made his way back to Toledo. Cunningham
admitted to coming to Toledo without mother’s consent and said that he was staying with
family members. Neither one was clear on how long Cunningham was in Toledo, but
they said that he returned to Dayton after the shooting. Mother also said that getting
Cunningham to follow his curfew was an ongoing problem, and she was concerned that
he did not fully understand the nature of the offenses he was accused of.
15
{¶ 40} Cunningham reported not having any close friends, but having a few
friends he regularly spent time with. He had one friend who had been in trouble with the
law and one who was involved with a gang. Cunningham denied being involved with
any gangs.
{¶ 41} The last record of Cunningham attending school before the March 2020
shooting was in January 2020, in Monroe, Michigan, where the family was living at the
time. He was in eighth grade. According to the school records, Cunningham was
suspended in late January because he came to school smelling like marijuana and
admitted to being high. He did not return to school after the suspension. The school
noted a “Law Enforcement Truancy Referral” on Cunningham’s record, and listed the
reason that Cunningham was withdrawn from the school as “[u]nable to locate.”
Cunningham’s grade cards from sixth and seventh grades, when he attended Toledo
Public Schools (“TPS”), show chronic absenteeism and generally poor grades, with his
grade point average for each year falling below 1.0. Cunningham had an individualized
education plan (“IEP”) when he was at TPS. The evaluations done for the IEP showed
that Cunningham’s general intelligence level was in the borderline-low range compared
to peers his age, his academic functioning was significantly below his grade level, and he
had behavioral problems that were severe enough to require his placement at schools for
children with behavioral problems. Cunningham struggled with impulsivity, was seen
kicking other students, throwing objects, and being in other people’s personal space, and
16
had trouble attending to tasks and putting forth the effort required to improve his
academic performance.
{¶ 42} Cunningham had received mental health services and treatment for ADHD
in the past, but was not prescribed any medicine or under the care of a doctor at the time
of the social history. He reported that his drug of choice was marijuana, but he had not
used it in the past 30 days because he had been in the detention center. Mother said that
Cunningham’s drug use was a problem, but he had not participated in any drug treatment
services.
{¶ 43} Based on the information available to the probation officer who compiled
the social history, the officer determined that Cunningham “did not display the ability to
recognized high risk situations.” The officer noted that Cunningham admitted to driving
a stolen car without a license, selling drugs, and violating his curfew, which supported
the officer’s conclusion that Cunningham “did not display the ability to weigh the pros
and cons to specific situations” and “did not display a pattern for making pro-social
decisions.” He acknowledged that “his poor decision has placed him into this
predicament[,]” but was “confident that the truth will come out in court.” The probation
officer also noted that Cunningham expressed empathy for C.C.’s family and shared how
his actions impacted his own family.
{¶ 44} After hearing the testimony and evidence at the amenability hearing, the
juvenile court determined that Cunningham’s case should be transferred to the trial court.
In explaining its reasoning, the court said,
17
[T]his is very difficult for me as a judge, as a person, as a parent.
I've been on the bench about—over 13 years now here, and I do not recall
any other murder cases involving a 15-year old [sic]—or I should say a
discretionary [transfer] murder * * * where the murder occurred for no
apparent reason. * * *
This case really bothers me, Tacarie. Because I saw the video, and I
found that it’s probable that you killed this guy. And for purposes of
today’s hearing, I have to assume guilt because I made a probable cause
finding. Every section—every factor that’s considered for or against
transfer requires that I assume guilt. If I didn’t, we wouldn’t be here.
* * * The statute says it’s not just about whether there’s time for
rehabilitation. The statute [R.C.] 2152.12(B) states that the child is not
amenable within the juvenile system and the safety of the community
requires the child to be subject to adult sanctions, of those are the two
factors that I have to decide. * * *
The factors against that decision are (E) (5), that he has previously
not been adjudicated a delinquent child. That’s true. And the other factor
against transfer is that there are six years within which to give him services.
The factors in favor of transfer are that the victim died. That’s
subsection (1). Subsection (5) that he—that Tacarie had a firearm on him,
and that for purposes of today I assume he killed him. And (8), the child is
18
emotionally, physically or psychologically mature enough for the transfer.
If he were six months older, he would have been a mandatory transfer. And
I’m not saying that’s the basis of my decision. But I understand what Dr.
Sherman was saying when he said if he’s guilty of this, then it doesn’t
matter that there are six years left. There’s actually not six years left.
There’s about five. But it doesn’t matter because this is such a cold
blooded act, assuming that this—that he did this. It is cold blooded with no
apparent motive, and I do think that there is a connection between him
being identified by every member of the gang unit and this murder. Do I
think that he had a beef with the victim, I have no idea. Nobody does. But
I almost wish he had. That would give me some reason for this murder.
And I think what bothers me the most about this is in 13 years on the bench
I have never seen anybody just kill somebody without any reason to do it,
much less a 15-year old [sic]. So in considering those factors, there are
more factors in favor of transfer than against it. But in addition, I don’t
think that Tacarie is amenable to treatment or care, rehabilitation in the
juvenile justice system. And I do think that the community needs to be
protected from him. * * *
The court went on to say that it thought that “there is a chance that [Cunningham] will
end up being found not guilty * * *” in the trial court because “[t]here are some good
arguments when you’re looking at [proof] beyond a reasonable doubt, * * *” but for
19
purposes of determining whether Cunningham’s case should be transferred, the court
“thought there was plenty of evidence to show that this was just a cold blooded murder
for no apparent reason, and that is really a scary thing.”
3. Transfer decision
{¶ 45} On August 7, 2020, the juvenile court filed a judgment entry transferring
jurisdiction to the trial court. The juvenile court determined that (1) Cunningham was
charged with delinquency by reason of committing acts that would be felonies if
committed by an adult; (2) probable cause was found to believe that Cunningham
committed the acts he was charged with; (3) Cunningham was 15 years old at the time of
the offense; and (4) a medical examination, social history investigation, and mental
evaluation were completed and considered, as required by R.C. 2152.12(C) and Juv.R.
30. The court reiterated that it was required to determine whether Cunningham was
amenable to care and rehabilitation in the juvenile system and whether the safety of the
community may require that Cunningham be subject to adult sanctions.
{¶ 46} After considering the factors in R.C. 2152.12(D) and (E), the juvenile court
said that it was
clearly convinced that factors in favor of transfer, [R.C.] 2152.12
(D), (1), (5), and (8), outweigh factors against transfer, [R.C.] 2152.12 (E)
(5) and (8) [sic]. Although this youth would be in the juvenile system for 5
more years, it is not the amount of time but rather the nature of this crime
20
that leads this Court to believe he would not be amenable to treatment
within that period of time.
B. Trial court proceedings
{¶ 47} Following the juvenile court’s transfer of jurisdiction, Cunningham was
indicted on one count each of felony murder in violation of R.C. 2903.02(B), an
unclassified felony; felonious assault in violation of R.C. 2903.11(A)(2), a second-degree
felony; and tampering with evidence in violation of R.C. 2921.12(A)(1), a third-degree
felony. The felony murder and felonious assault charges each included a firearm
specification under R.C. 2941.145.
{¶ 48} Cunningham eventually entered a guilty plea under North Carolina v.
Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to the felony murder charge.
In exchange, the state agreed to dismiss the firearm specification attached to the murder
charge and the remaining charges in the indictment. At the plea hearing, the trial court
found Cunningham guilty of felony murder.
{¶ 49} At the sentencing hearing, the trial court imposed a definite prison term of
15 years to life, with parole eligibility after 15 years, and ordered Cunningham to register
with the violent offender database upon his release from prison.
C. Appeal
{¶ 50} Cunningham now appeals, raising seven assignments of error:
Assignment of Error I: The juvenile court violated Tacarie’s right to
due process, fundamental fairness, and the presumption of innocence when
21
it determined that Tacarie was guilty of the offenses charged for the
purpose of finding that he was not amenable to treatment in the juvenile
system.
Assignment of Error II: The trial court abused its discretion and
violated due process when it found that Tacarie was not amenable to
treatment when the government did not present clear and convincing
evidence to support this claim.
Assignment of Error III: Without a clear standard of proof, R.C.
2152.12(B) violates a child’s right to procedural due process and fairness.
Assignment of Error IV: The juvenile court violated Tacarie’s right
to due process and abused its discretion when it failed to weigh all
dispositional options provided by statute, including a serious youthful
offender disposition.
Assignment of Error V: The juvenile court erred when it found
probable cause despite the absence of credible evidence.
Assignment of Error VI: Alternatively, the “more than a mere
suspicion” standard used in probable cause hearings violated Tacarie’s right
to procedural due process in transfer proceedings.
Assignment of Error VII: Tacarie was deprived of his right to the
effective assistance of counsel.
II. Law and Analysis
22
{¶ 51} In his assignments of error, Cunningham argues, broadly, that the juvenile
court’s probable cause and amenability determinations were not supported by sufficient,
credible evidence; the standard of proof that the court used for the probable cause
determination and the lack of a clear standard of proof in R.C. 2152.12(B) violate his
procedural due process rights; the court violated his due process rights by presuming his
guilt and failing to weigh the possibility of a serious youthful offender (“SYO”)
disposition during the amenability hearing; and he received ineffective assistance of
counsel. For ease of discussion, we address his arguments out of order.
A. Juvenile transfer law
{¶ 52} Before addressing Cunningham’s assignments of error, we first review the
law applicable to juvenile bindover hearings.
1. Statutory requirements
{¶ 53} The juvenile court has exclusive subject matter jurisdiction over the case of
a child who is alleged to be delinquent because he committed acts that would be
considered crimes if they were committed by an adult. State v. Wilson, 73 Ohio St.3d 40,
43-44, 652 N.E.2d 196 (1995); R.C. 2151.23(A)(1) (“The juvenile court has exclusive
original jurisdiction * * * [c]oncerning any child who on or about the date specified in the
complaint * * * is alleged * * * to be * * * a delinquent * * * child * * *.”); R.C.
2152.02(E)(1) (defining a “[d]elinquent child” as “[a]ny child, except a juvenile traffic
offender, who violates any law of this state or the United States, or any ordinance of a
political subdivision of the state, that would be an offense if committed by an adult”). In
23
certain cases, however, the juvenile court can transfer jurisdiction over a child’s case to
the adult court under the procedures outlined in R.C. 2152.10 and 2152.12.
{¶ 54} Because Cunningham was under 16 when the acts alleged in this case
occurred, and the acts alleged in the complaints would be felonies if committed by an
adult, the juvenile court had discretion to transfer his case to the trial court. R.C.
2152.10(B); R.C. 2152.12(B). To make a discretionary transfer, the juvenile court is
required to make three findings: “(1) [t]he child was fourteen years of age or older at the
time of the act charged[;] (2) [t]here is probable cause to believe that the child committed
the act charged[; and] (3) [t]he child is not amenable to care or rehabilitation within the
juvenile system, and the safety of the community may require that the child be subject to
adult sanctions.” R.C. 2152.12(B)(1)-(3). The juvenile court is also required to “order an
investigation into the child’s social history, education, family situation, and any other
factor bearing on whether the child is amenable to juvenile rehabilitation, including a
mental examination of the child * * *.” R.C. 2152.12(C).
{¶ 55} To establish probable cause to believe that a juvenile committed an offense,
the state must present “credible evidence that ‘raises more than a mere suspicion of guilt,
but need not provide evidence proving guilt beyond a reasonable doubt.’” In re D.M.,
140 Ohio St.3d 309, 2014-Ohio-3628, 18 N.E.3d 404, ¶ 10, quoting State v. Iacona, 93
Ohio St.3d 83, 93, 752 N.E.2d 937 (2001). While the state is required to present credible
evidence going to every element of the offense to establish probable cause, the evidence
“does not have to be unassailable” to qualify as credible. (Emphasis added.) In re A.J.S.,
24
120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 46, citing Iacona at 93, 95; In
re D.M.S., 2021-Ohio-1214, 170 N.E.3d 61, ¶ 19 (2d Dist.), citing In re B.W., 2017-Ohio-
9220, 103 N.E.3d 266, ¶ 21 (7th Dist.).
{¶ 56} In making its probable cause determination, the juvenile court is required to
evaluate the quality of the evidence that the state presents in support of probable cause, as
well as any evidence that the juvenile presents attacking probable cause. Iacona at 93,
citing Kent v. United States, 383 U.S. 541, 563, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966).
However, the Supreme Court has “expressly limited the [juvenile] court’s review of the
evidence presented at the bindover hearing * * *” to the narrow issue of probable cause.
A.J.S. at ¶ 43, citing Iacona at 96. That is, “while the juvenile court has a duty to assess
the credibility of the evidence and to determine whether the state has presented credible
evidence going to each element of the charged offense, it is not permitted to exceed the
limited scope of the bindover hearing or to assume the role of the ultimate fact-finder.”
Id. at ¶ 44.
{¶ 57} After finding probable cause, the juvenile court must determine under R.C.
2152.12(B)(3) whether the child is amenable to care or rehabilitation in the juvenile
system and whether the safety of the community may require the child to face adult
sanctions. To make this decision, the juvenile court is required to determine whether the
factors in R.C. 2152.12(D) in favor of transferring jurisdiction “outweigh” the factors in
R.C. 2152.12(E) in favor of retaining jurisdiction. As applicable to Cunningham, the
R.C. 2152.12(D) factors in favor of transfer are:
25
(1) The victim of the act charged suffered physical or psychological
harm, or serious economic harm, as a result of the alleged act.
***
(5) The child had a firearm on or about the child’s person or under
the child’s control at the time of the act charged, the act charged is not a
violation of section 2923.12 of the Revised Code, and the child, during the
commission of the act charged, allegedly used or displayed the firearm,
brandished the firearm, or indicated that the child possessed a firearm.
***
(8) The child is emotionally, physically, or psychologically mature
enough for the transfer.
***
And, as applicable to Cunningham, the R.C. 2152.12(E) factors in favor of retaining
jurisdiction are:
(5) The child previously has not been adjudicated a delinquent child.
***
(8) There is sufficient time to rehabilitate the child within the
juvenile system and the level of security available in the juvenile system
provides a reasonable assurance of public safety.
{¶ 58} When weighing these and any other relevant factors, the juvenile court has
wide latitude in determining whether it should retain or relinquish jurisdiction over a
26
juvenile, and its decision will not be reversed absent an abuse of discretion. In re D.M.,
6th Dist. Lucas Nos. L-16-1237, L-16-1238, and L-16-1270, 2017-Ohio-8768, ¶ 35,
citing State v. Ramirez, 12th Dist. Butler No. CA2010-11-305, 2011-Ohio-6531. Abuse
of discretion means that the juvenile court’s decision was unreasonable, arbitrary, or
unconscionable. State ex rel. Askew v. Goldhart, 75 Ohio St.3d 608, 610, 665 N.E.2d
200 (1996). “‘As long as the court considers the appropriate statutory factors and there is
some rational basis in the record to support the court’s findings when applying those
factors,’ a juvenile court’s decision to retain or relinquish jurisdiction will be upheld on
appeal.” D.M. at ¶ 35, quoting State v. Phillips, 12th Dist. Clinton No. CA2009-03-001,
2010-Ohio-2711, ¶ 39; see also State v. Blair, 5th Dist. Stark No. 2016CA00180, 2017-
Ohio-5865, ¶ 30; State v. West, 167 Ohio App.3d 598, 2006-Ohio-3518, 856 N.E.2d 285,
¶ 10 (4th Dist.).
{¶ 59} Once the juvenile court decides to transfer jurisdiction, it is required to
state on the record its reasons for transferring a case and indicate the specific factors in
R.C. 2152.12(D) and (E) that it relied on in making its transfer determination. R.C.
2152.12(B)(3), (I).
2. Constitutional requirements
{¶ 60} Transferring a juvenile’s case to adult court also implicates constitutional
rights. Due-process rights are applicable to juveniles through the Due Process Clause of
the Fourteenth Amendment to the United States Constitution and Article I, Section 16 of
the Ohio Constitution. State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d
27883, ¶ 23, citing In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 79;
In re Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); and In re C.P., 131
Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729, ¶ 71. Thus, in addition to complying
with the statutory requirements in R.C. 2152.12, transfer hearings must also protect a
child’s due process rights.
{¶ 61} The Ohio Supreme Court has said that “in the context of a juvenile-court
proceeding, the term ‘due process’ ‘“expresses the requirement of ‘fundamental fairness,’
a requirement whose meaning can be as opaque as its importance is lofty.”’” Id., quoting
C.S. at ¶ 80, quoting Lassiter v. Dept. of Social Servs. of Durham Cty., North Carolina,
452 U.S. 18, 24, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Based on the circumstances of
the case, “[a] court’s task is to ascertain what process is due * * * while being true to the
core concept of due process in a juvenile case—to ensure orderliness and fairness.” C.S.
at ¶ 81, citing McKeiver v. Pennsylvania, 403 U.S. 528, 541, 91 S.Ct. 1976, 29 L.Ed.2d
647 (1971) (plurality opinion).
{¶ 62} The Ohio Supreme Court, echoing precedent set by the Supreme Court of
the United States, has outlined the scope of due process protections in the juvenile
transfer process, finding that a transfer should not occur “‘without ceremony—without
hearing, without effective assistance of counsel, without a statement of reasons.’” State
v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544, 978 N.E.2d 894, ¶ 20, quoting Kent, 383
U.S. at 554, 86 S.Ct. 1045, 16 L.Ed.2d 84. A “bindover hearing is a ‘critically important
proceeding’ and [] the hearing ‘must measure up to the essentials of due process and fair
28
treatment.’” D.M., 140 Ohio St.3d 309, 2014-Ohio-3628, 18 N.E.3d 404, at ¶ 11, quoting
Kent at 562; see also D.W. at ¶ 20 (“The safeguard of a hearing is contained in the
Revised Code and Rules of Juvenile Procedure, and it is grounded in due process and
other constitutional protections.”); Aalim at ¶ 25. However, despite the transfer hearing
being a “critically important” hearing that “directs the proceedings down one of two
paths with drastically different potential outcomes, [a child’s] liberty is not yet at stake *
* *, [and] further proceedings before a factfinder are required to determine whether [the
child] committed the charged offenses beyond a reasonable doubt.” State v. Garner, 6th
Dist. Lucas No. L-18-1269, 2020-Ohio-4939, ¶ 24.
B. Probable cause arguments
1. Cunningham forfeited his arguments regarding the constitutionality
of the probable cause standard in R.C. 2152.12(B).
{¶ 63} We first address Cunningham’s sixth assignment of error. In it, he argues
that the standard for probable cause in R.C. 2152.12(B) violates his right to procedural
due process. He contends that due process and fair treatment require more than “minimal
certainty” before “subjecting a child to the rigors of adult prosecution and punishment.”
{¶ 64} The state responds that Cunningham forfeited this issue by failing to raise it
in the juvenile court, and that any error does not rise to the level of plain error. Further,
the state argues that Cunningham failed to show that he had a fundamental liberty interest
at stake at the time of the transfer hearing, the standard for probable cause requires the
state to show more than minimal certainty before a child can be bound over to the adult
29
court, and Cunningham does not attempt to propose a different standard or definition of
probable cause.
{¶ 65} Initially, we agree with the state that Cunningham forfeited this issue by
failing to raise it in the either the juvenile court or the trial court.
{¶ 66} An appellant who fails to challenge the constitutionality of a statute in the
trial court forfeits all but plain-error review on appeal. State v. Quarterman, 140 Ohio
St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 2. Plain error is error that affects
substantial rights. Crim.R. 52(B). Three things are required to make an error a “plain
error”: (1) there must be an error, i.e., a deviation from a legal rule; (2) the error must be
plain, i.e., the error “must be an ‘obvious’ defect in the trial proceedings”; and (3) the
error must have affected a defendant’s substantial rights, i.e., “the trial court’s error must
have affected the outcome of * * *” the proceedings. State v. Barnes, 94 Ohio St.3d 21,
27, 759 N.E.2d 1240 (2002). Plain error should be found “only in exceptional
circumstances and only to prevent a manifest miscarriage of justice.” State v. Hill, 92
Ohio St.3d 191, 203, 749 N.E.2d 274 (2001), citing State v. Long, 53 Ohio St.2d 91, 372
N.E.2d 804 (1978), paragraph three of the syllabus.
{¶ 67} The appellant has the burden of demonstrating that plain error occurred.
Quarterman at ¶ 2. In the context of a juvenile transfer hearing, to show the prejudice
necessary to establish plain error, the appellant must “prove that the error affected the
outcome of the proceeding, that is, that he would not have been bound over to the adult
30
court” but for the alleged error. State v. Morgan, 153 Ohio St.3d 196, 2017-Ohio-7565,
103 N.E.3d 784, ¶ 52.
{¶ 68} Here, Cunningham argues that the juvenile court erred by using the
probable cause standard for bindover hearings established more than two decades ago in
Iacona, 93 Ohio St.3d 83, 752 N.E.2d 937. But he does not even attempt to argue that
the court committed plain error by using this standard. In short, although Cunningham
contends that there was an error—i.e., violation of his procedural due process rights—he
does not explain how this error was obvious or argue that he would not have been bound
over to the trial court but for the juvenile court’s use of the probable cause standard in
Iacona.2 “We are not obligated to search the record or formulate legal arguments on
behalf of the parties, because appellate courts do not sit as self-directed boards of legal
inquiry and research, but [preside] essentially as arbiters of legal questions presented and
argued by the parties before them.” (Brackets sic and internal quotations omitted.)
Quarterman at ¶ 19, citing State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933
N.E.2d 753, ¶ 78 (O’Donnell, J., concurring in part and dissenting in part); and Carducci
v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983).
{¶ 69} Because Cunningham did not argue plain error regarding the probable
cause standard, we decline to find it. Cunningham’s sixth assignment of error is not well-
taken.
2. The state presented sufficient evidence to support
2
Cunningham also fails to propose an alternative standard for probable cause in
discretionary transfer hearings that would satisfy procedural due process.
31
the juvenile court’s finding of probable cause.
{¶ 70} In his fifth assignment of error, Cunningham argues that the state presented
only “minimal” evidence at the probable cause hearing that raised “many questions”
about Cunningham’s “actual involvement” in the shooting. He claims that these
questions led to the juvenile court finding probable cause without the state presenting the
required credible evidence.
{¶ 71} The state responds that the evidence it presented at the probable cause
hearing was legally sufficient to support the juvenile court’s probable cause finding, and
that it was not required to disprove alternate theories of the case before the juvenile court
could find probable cause.
{¶ 72} A juvenile court’s probable cause determination presents a mixed question
of law and fact. A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, at ¶ 51.
In reviewing that decision, we defer to the juvenile court’s findings of fact, as long as
they are supported by some competent, credible evidence. State v. Taylor, 6th Dist.
Lucas No. L-15-1309, 2017-Ohio-139, ¶ 15, citing A.J.S. at ¶ 50. But we review de novo
the court’s legal conclusion of whether the state presented sufficient evidence to
demonstrate probable cause to believe that the juvenile committed the acts charged. Id.{¶ 73} After hearing the evidence, the juvenile court said that the following facts
supported its probable cause determination: (1) Cunningham was “shooting in the
direction of where the victim was”; (2) “[e]verybody stipulated that there was a murder,
that [C.C.] was shot to death”; and (3) there were no shell casings found at the scene,
32
either inside the bar near C.C.’s body—like there would have been if someone inside the
bar killed him—or on the patio near where Cunningham shot his gun, “[b]ut we saw
Tacarie bend down to pick something up.” The juvenile court’s finding that
“[e]verybody stipulated that there was a murder, that [C.C.] was shot to death” is
incorrect. The parties stipulated that “the victim in this case is deceased[,]” but did not
agree to anything more than that. The remainder of the court’s factual findings are
supported by some competent, credible evidence, so we will use those facts to determine
if the evidence is legally sufficient to support a finding of probable cause.
{¶ 74} In this case, Cunningham was charged with felony murder, felonious
assault, and tampering with evidence.
{¶ 75} To establish probable cause for felony murder, the state had to provide
credible evidence that Cunningham caused the death of C.C. as a proximate result of
committing or attempting to commit an offense of violence that is a first- or second-
degree felony. R.C. 2903.02(B). Felonious assault in violation of R.C. 2903.11(A)(2) is
a second-degree felony offense of violence. R.C. 2903.11(D)(1)(a); R.C.
2901.01(A)(9)(a).
{¶ 76} To establish probable cause for felonious assault, the state had to provide
credible evidence that Cunningham caused or attempted to cause physical harm to
another by means of a deadly weapon. R.C. 2903.11(A)(2). “Physical harm” is “any
injury, illness, or other physiological impairment, regardless of its gravity or duration.”
R.C. 2901.01(A)(3). A gun is a deadly weapon. In re Marcus T.D., 6th Dist. Lucas No.
33
L-02-1376, 2004-Ohio-477, ¶ 9; R.C. 2923.11(A), (B); see also State v. Vondenberg, 61
Ohio St.2d 285, 289, 401 N.E.2d 437 (1980) (trier of fact can draw reasonable inferences
about the deadly nature of a weapon used in the commission of a crime).
{¶ 77} And to establish probable cause for tampering with evidence, the state had
to provide credible evidence that Cunningham knew that an investigation was in progress
or was likely to be instituted and concealed or removed potential evidence with the
purpose to impair the potential evidence’s value or availability in the investigation. R.C.
2921.12(A)(1); State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175, ¶
11. A person acts “knowingly,” regardless of his purpose, when he is aware that his
conduct will probably cause a certain result or will probably be of a certain nature. R.C.
2901.22(B). A person has knowledge of circumstances when he is aware that such
circumstances probably exist. Id. An offender’s knowledge of a likely investigation can
be inferred when the crime is a type—such as a shooting death in a public place—that is
likely to be reported, and the likelihood of an investigation is measured at the time of the
alleged tampering. State v. Martin, 151 Ohio St.3d 470, 2017-Ohio-7556, 90 N.E.3d 857,
¶ 110, 116, 118 (“As a matter of common sense, we can infer that a person who had shot
two people and left them for dead in a residential neighborhood would know that an
investigation was likely. * * * Homicides are highly likely to be discovered and
investigated.”). A person acts “purposely” when it is his intention to cause a certain
result. R.C. 2901.22(A).
34
{¶ 78} The evidence at the probable cause hearing showed that a person—
positively identified as Cunningham—pointed and fired a gun at an area where C.C. had
been standing shortly before the shooting. After Cunningham fired the gun, C.C. was
found inside the building, which was in the direction that Cunningham aimed, with a
gunshot wound. The parties stipulated that C.C. was dead, and Mussery, after
investigating the crime, believed that he had died by “gunfire.” Taken together, this
shows that Cunningham shot a gun—a deadly weapon—which fired a bullet that
presumably hit C.C., causing physical harm to C.C. and ultimately leading to his death.
This evidence—although far from complete or perfect—is sufficient to “raise[] more than
a mere suspicion of [Cunningham’s] guilt * * *” of felonious assault and felony murder,
which is all that is required at the probable cause hearing. Iacona, 93 Ohio St.3d at 93,
752 N.E.2d 937.
{¶ 79} Additionally, the state presented evidence that Cunningham returned to the
patio and picked up something approximately one minute after shooting the gun.
Mussery’s law enforcement experience led him to believe that Cunningham picked up
shell casings because of where Cunningham was standing when he shot the gun, where
he bent down to pick up the item, and the fact that no shell casings were recovered from
the patio or inside the bar. The juvenile court found Mussery’s testimony credible on this
point, and we defer to the juvenile court’s findings of fact. We can infer that
Cunningham knew that the police were likely to investigate a shooting at a bar,
particularly when the shooting resulted in someone’s death. See Martin at ¶ 110, 116,
35
118. We can also infer that Cunningham’s purpose in removing shell casings from the
patio—where a shooting just happened—was to impair their value or availability in the
forthcoming investigation. State v. Smith, 6th Dist. Lucas No. L-14-1224, 2016-Ohio-
150, ¶ 24 (it is reasonable to infer that a person who picks up shell casings after a
shooting and removes them from the place where the shooting happened does so to
impair their availability as evidence in an investigation); State v. Hallman, 8th Dist.
Cuyahoga No. 103675, 2016-Ohio-3465, ¶ 15. Taken together, this is sufficient to
“raise[] more than a mere suspicion of [Cunningham’s] guilt * * *” of tampering with
evidence. Iacona at 93.
{¶ 80} Cunningham complains that the state’s evidence creates more questions
about the circumstances of the crimes than it does answers, and that there were
potentially other explanations for how C.C. ended up dead, which, he claims, shows a
lack of credible evidence supporting the juvenile court’s probable cause determination.
However, as the juvenile court pointed out, it was not required to find that the state
proved the crimes beyond a reasonable doubt. Relatedly, the state’s evidence was only
required to be credible; it did not have to be unassailable, as Cunningham seems to
argue. A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, at ¶ 46; D.M.S.,
2021-Ohio-1214, 170 N.E.3d 61, at ¶ 19. Moreover, the state is not required to disprove
alternate theories of the crime at the probable cause hearing, and the juvenile court
oversteps its limited, gatekeeping role if it weighs the merits of competing prosecution
36
and defense theories of the case, which are matters for the ultimate trier of fact. A.J.S. at
¶ 43, 61.
{¶ 81} In sum, the juvenile court’s findings of fact (with the exception of its
misstatement about the parties’ stipulation regarding the fact of C.C.’s death) were
supported by some competent, credible evidence. And the state presented credible
evidence of each element of the crimes charged sufficient to raise more than a mere
suspicion of Cunningham’s guilt of felony murder, felonious assault, and tampering with
evidence. Accordingly, the juvenile court did not err by finding probable cause to believe
that Cunningham committed the crimes.
{¶ 82} Cunningham’s fifth assignment of error is not well-taken.
C. Amenability issues
1. Cunningham’s constitutional rights were not
violated during the amenability phase.
{¶ 83} In his first assignment of error, Cunningham argues that the juvenile court
violated his rights to due process, fundamental fairness, and the presumption of
innocence by presuming that he was guilty before determining whether he was amenable
to care or rehabilitation in the juvenile system. The court’s improper focus on his guilt,
combined with Sherman’s improper focus on his lack of remorse, he claims, led to the
court finding him not amenable and improperly transferring him to adult court.
{¶ 84} The state responds that the factors listed in R.C. 2152.12(D) and (E) that
the juvenile court must weigh in making its amenability determination are written in a
37
way that requires the court to assume that the juvenile committed the acts charged. It
argues that the court did not violate any of Cunningham’s rights by following the
requirements of the statute and that a child’s level of remorse is routinely considered in
amenability hearings.
{¶ 85} We agree with Cunningham that the juvenile court misspoke when it stated
that it was required to “assume guilt” during the amenability phase. But, upon review of
the entire proceedings, we do not find any evidence to suggest that this single
misstatement affected the fundamental fairness of the amenability hearing.
{¶ 86} As a preliminary matter, we cannot deny that the outcome of a transfer
hearing has significant consequences for a juvenile. See State v. Smith, 167 Ohio St.3d
423, 2022-Ohio-274, -- N.E.3d --, ¶ 21, quoting Aalim, 150 Ohio St.3d 489, 2017-Ohio-
2956, 83 N.E.3d 883, at ¶ 73 (O’Connor, C.J., dissenting) (“The transfer hearing * * *
serves as a vehicle by which a child offender is deprived of the rehabilitation and
treatment potential of the juvenile-justice system.”). However, an amenability hearing, at
its core, is nothing more than a hearing to determine the forum that will ultimately hear
the child’s case and determine his guilt or innocence. State v. LaRosa, 11th Dist.
Trumbull No. 2018-T-0097, 2020-Ohio-160, ¶ 36 (“[T]he purpose of the amenability
determination is establishing which forum will ultimately hear the case—the juvenile
division or the general division.); State v. McKinney, 2015-Ohio-4398, 46 N.E.3d 179, ¶
13 (1st Dist.) (“The bindover proceeding simply changed the forum in which
[appellant’s] guilt or innocence was to be determined.”). As a consequence, neither a
38
juvenile’s liberty interests nor his presumption of innocence are implicated at the
amenability hearing. Garner, 6th Dist. Lucas No. L-18-1269, 2020-Ohio-4939, at ¶ 24
(Although a transfer hearing is a “critically important” hearing that “directs the
proceedings down one of two paths with drastically different potential outcomes, [a
child’s] liberty is not yet at stake * * *, [and] further proceedings before a factfinder are
required to determine whether [the child] committed the charged offenses beyond a
reasonable doubt.”); LaRosa at ¶ 36 (“a presumption of innocence is not relevant during
an amenability determination * * *”); McKinney at ¶ 13 (“We question whether the
transfer of jurisdiction implicates the Due Process Clause at all. The transfer didn’t
deprive [appellant] of his liberty. That happened later, when the general division of the
common pleas court found him guilty and imposed sentence.”). Because the presumption
of innocence is not implicated during an amenability hearing, we find that the juvenile
court did not violate Cunningham’s constitutional rights in making its amenability
determination.
{¶ 87} Moreover, although the factors in R.C. 2152.12(D) and (E) are written so
that a juvenile court can, as much as practicable, consider an accused juvenile-offender’s
amenability without encroaching upon the child’s presumption of innocence by
repeatedly referring to “the alleged act,” “the act charged,” and the child “allegedly
committing” the act, it would be impossible for the court to consider the child’s
amenability to treatment and rehabilitation in the juvenile system without considering the
child’s role in the act and, at least to some extent, his level of culpability. See, e.g., R.C.
39
2152.12(D)(1) (“The victim of the act charged suffered physical or psychological harm,
or serious economic harm, as a result of the alleged act.”), (E)(2) (“The child acted under
provocation in allegedly committing the act charged.”); see also State v. Watson, 47 Ohio
St.3d 93, 96, 547 N.E.2d 1181 (1989) (“Generally the greater the culpability of the
offense, the less amenable will the juvenile be to rehabilitation.”). Thus, while the statute
does not direct the juvenile court to “assume” that an accused juvenile-offender is
“guilty” at the amenability stage, it is unrealistic to expect that issues of culpability will
be entirely absent from an amenability hearing.
{¶ 88} Further, we find Cunningham’s claims that the juvenile court was
“confus[ed]” by Sherman’s opinions that Cunningham was not amenable to staying in the
juvenile system because of his guilt and lack of remorse are unavailing.
{¶ 89} Under R.C. 2152.12(D) and (E), the juvenile court is required to consider
“any other relevant factors * * *” in determining whether the factors in favor of retaining
jurisdiction over a child outweigh the factors in favor of relinquishing jurisdiction.
(Emphasis added.) “Although the seriousness of the crime is not a factor specified under
R.C. 2152.12(D), the juvenile court is permitted to consider it in making a discretionary
bindover decision.” State v. Erwin, 10th Dist. Franklin No. 09AP-918, 2012-Ohio-776, ¶
11, citing Watson at syllabus. Similarly, although it is not listed in the statute, “the
remorse of a juvenile offender is regularly discussed and presented to the court in aid of
determining whether the offender is amenable to rehabilitation within the juvenile
system.” LaRosa at ¶ 37 (collecting cases).
40
{¶ 90} First, we find that Cunningham misconstrues Sherman’s opinion regarding
Cunningham’s “guilt.” Sherman did not say that Cunningham was not amenable to
staying in the juvenile system because he was guilty. He opined that, if Cunningham
actually committed the murder, he was not amenable to staying in the juvenile system
because of the way in which the murder was committed. The distinction is important.
The information that Sherman had available to him during his evaluation led him to
conclude that “[t]he nature of this offense, however, (if indeed he committed it) is a cause
of serious concern in terms of future amenability.” (Emphasis added.) That is, Sherman
was concerned about the nature and circumstances of the offenses that Cunningham was
charged with and what those meant for Cunningham’s amenability (i.e., if Cunningham
was the lone actor and sole shooter who murdered someone without expressing remorse,
and denied his involvement despite apparent evidence to the contrary, Sherman was
concerned that Cunningham was not amenable to treatment in the juvenile system).
Sherman did not say that Cunningham was not amenable because he committed a crime;
he said that Cunningham was not amenable if he committed this specific crime because of
the specific details of the crime. This took into account the nature of the acts that
Cunningham was charged with, which was an appropriate consideration. Erwin at ¶ 11.
The juvenile court did not err by relying on Sherman’s opinion regarding the nature of
the crimes as they related to Cunningham’s amenability.
{¶ 91} Second, Sherman testified that Cunningham’s apparent lack of remorse was
a sign of “an incipient antisocial character which would make it almost beyond the realm
41
of treatment, certainly beyond the realm of treatment with the current situation of
DYS[,]” which is certainly relevant to the juvenile court’s amenability determination. He
also testified that what came across as a lack of remorse could have been the product of
Cunningham’s professed innocence and general guardedness from being in an unfamiliar
situation with an unfamiliar person. This information was all relevant to the juvenile
court’s amenability determination, and the trial court did not err by relying on it.
{¶ 92} In sum, nothing about the amenability hearing was fundamentally unfair.
Cunningham’s presumption of innocence was not implicated at the amenability stage, and
the factors that the juvenile court considered were proper. Therefore, we find that
Cunningham’s first assignment of error is not well-taken.
2. Cunningham forfeited his arguments about
the constitutionality of R.C. 2152.12(B).
{¶ 93} In his third assignment of error, Cunningham argues that R.C. 2152.12(B)
is unconstitutional because it does not specify the level of proof needed to show that a
child is not amenable to care or rehabilitation in the juvenile system or allocate the
burden of proof. He contends that the state, as the proponent of the transfer, should be
allocated the burden of proof, and that it should have to prove that the child is not
amenable by clear and convincing evidence.3
3
The Supreme Court of Ohio accepted issues similar to those that Cunningham argues in
his third and fourth assignments of error in State v. Nicholas, Supreme Court case No.
2020-1429. The case has been argued and is pending a decision on three propositions of
law:
42
{¶ 94} The state responds that Cunningham forfeited this issue by failing to raise it
in the juvenile court. Assuming that he did not forfeit the issue, the state contends that
R.C. 2152.12(B)(3) is constitutional on its face because, as Cunningham points out in his
brief, the use of “outweigh” in the statute suggests a preponderance-of-the-evidence
standard, so the statute is not silent on the issue of the burden of proof. The state also
contends that the statutory scheme intentionally does not have a burden of persuasion;
instead, each side is permitted to “present relevant and competent evidence to assist the
court in its determination of which statutory factors are applicable and whether the
juvenile is amenable to treatment in the juvenile system.”
{¶ 95} Like with the constitutionality of the probable cause standard, Cunningham
did not raise this issue in the juvenile court or the trial court, so he has forfeited all but
plain-error review. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, at
¶ 2. And, like with his sixth assignment of error, Cunningham does not attempt to make
a plain-error argument regarding the constitutionality of R.C. 2152.12(B), and we are not
First Proposition of Law: Because standards of review are functions
of due process, non-amenability decisions must be supported by clear and
convincing evidence[.]
Second Proposition of Law: As the party moving for discretionary
transfer under R.C. 2152.12(B), prosecutors bear the burden of proving the
child is not amenable to juvenile court treatment. A transfer decision
without any affirmative proof of non-amenability must be reversed[.]
Third Proposition of Law: To meaningfully decide whether juvenile
offenders are not amenable to juvenile court treatment, juvenile judges
must first weigh all the available dispositional options, especially, where
provided by statute, a serious youthful offender disposition[.]
43
required to make one for him. Id. at ¶ 19. Accordingly, Cunningham’s third assignment
of error is not well-taken.
3. The juvenile court did not abuse its discretion
by finding Cunningham amenable to transfer.
{¶ 96} In his second assignment of error, Cunningham argues that the juvenile
court erred by finding that he was not amenable to care or rehabilitation within the
juvenile system because it did not fully consider the reasons that Cunningham was
amenable to staying in the juvenile system, such as his signs of immaturity, or clearly
articulate its reasons for deciding to transfer the case. He contends that the court should
have specifically explained why Cunningham could not be rehabilitated in the time
before he turned 21 and what rehabilitation goals could and could not be accomplished
before Cunningham aged out of the juvenile system. He also argues that the juvenile
court’s amenability decision was not supported by clear and convincing evidence.
{¶ 97} The state responds that the juvenile court considered the statutory factors
and there is a rational basis in the record to support its amenability finding, so the court
did not abuse its discretion by finding that Cunningham was not amenable to remaining
in the juvenile system.
{¶ 98} Cunningham’s argument against the juvenile court’s amenability
determination is threefold: (1) the court improperly weighed the factors, (2) the court
provided insufficient justification for its findings, and (3) the court improperly relied on
Sherman’s “flawed” report. We address each argument in turn.
44
a. Weight of the factors
{¶ 99} First, Cunningham argues that the juvenile court “did not consider all the
reasons Tacarie was amenable to treatment in the juvenile system.” Specifically,
Cunningham complains that the court did not consider that (1) he “had limited juvenile
court involvement and had never participated in any programming through the juvenile
court or been incarcerated”; (2) the court’s concerns for public safety could be addressed
by the “myriad of options that combine treatment and locked placement * * *” in the
juvenile system; and (3) he was not mature enough for transfer because he “showed signs
of immaturity when meeting with Dr. Sherman and by putting himself in a bad situation
the night of the offense by being at an after-hours night club where multiple people had
weapons.”
{¶ 100} The juvenile court’s wide latitude to determine whether to retain or
relinquish jurisdiction over a child’s case means that the court also has the discretion to
decide how much weight to give to each factor in R.C. 2152.12(D) and (E). In re M.A.,
12th Dist. Brown No. CA2018-07-005, 2019-Ohio-829, ¶ 33, citing State v. Everhardt,
3d Dist. Hancock No. 5-17-25, 2018-Ohio-1252, ¶ 22; and State v. Marshall, 1st Dist.
Hamilton No. C-150383, 2016-Ohio-3184, ¶ 15. As long as the juvenile court considered
the factors in the statute and the record contains some rational basis to support the court’s
findings, we will not find that the court abused its discretion. D.M., 6th Dist. Lucas Nos.
L-16-1237, L-16-1238, and L-16-1270, 2017-Ohio-8768, at ¶ 47. An appellant’s
disagreement with the way the juvenile court weighed the factors is not a reason to
45
reverse the court’s decision. See State v. Ramsden, 12th Dist. Clinton No. CA2020-11-
016, 2021-Ohio-3071, ¶ 23, appeal accepted 165 Ohio St.3d 1503, 2022-Ohio-85, 179
N.E.3d 118 (“[G]iven that it is the juvenile court, and not [the appellate] court, that has
the discretion to determine how much weight should be afforded to the factors set forth in
R.C. 2152.12(D) and (E), [appellant’s] challenge to the weight that the juvenile court
ultimately decided to attribute to each [of] those factors lacks merit.”).
{¶ 101} Here, the juvenile court acknowledged that Cunningham did not have a
history of involvement with the juvenile court and that he would have approximately five
years to receive treatment if the juvenile court retained jurisdiction. Although the court
did not get into the specifics of why it found that Cunningham was mature enough for
transfer, the record contains Sherman’s testimony and report, which explain that he looks
for “gross immaturity” that would weigh against transfer, rather than the general
“characteristics of youth” that Cunningham points to in his brief (things that Sherman
called “boyishness rather than maturity * * *” in his testimony). Sherman concluded that
Cunningham was not living a 15-year-old’s lifestyle and behaved more like an adult than
a child; two examples that Sherman pointed to were Cunningham traveling to Toledo
from Dayton by himself without his mother’s knowledge and spending time at an after-
hours bar. There is a rational basis in the record to support the court’s findings on these
issues. Although Cunningham might have wanted the court to give these factors more
weight or make a determination more in his favor, we cannot find that the juvenile court
46
abused its discretion regarding the issues of his lack of juvenile court involvement and his
maturity for transfer.
b. Specificity of findings
{¶ 102} Next, Cunningham argues that the juvenile court did not make certain,
highly-specific findings to justify its decision that he was not amenable to staying in the
juvenile system. He relies on State v. D.H., 2d Dist. Montgomery No. 26383, 2015-Ohio-
3259, in which a divided panel of the Second District reversed the juvenile court’s
amenability determination because
[t]he juvenile court’s entry under review contains insufficient factual
findings to identify how the court reached its conclusion that D.H. could
not be rehabilitated in the juvenile system. The entry does not identify
which of the reports and records reviewed by the psychologist were also
reviewed and considered by the court. The transcript reveals that no
exhibits or documentary evidence were admitted in evidence at the
amenability hearing * * *. The court does not identify or discuss what
programs are, or are not, available in the juvenile system to satisfy the
child’s health needs * * *. Additionally, the court does not make any
specific findings about the child’s educational deficiencies, and does not
identify what programs are, or are not, available in the juvenile system to
meet D.H.’s educational needs. The * * * juvenile court’s findings contain
no discussion of what rehabilitation goals can, or cannot, be accomplished
47
in the juvenile system * * *, or what programs are, or are not, available in
the juvenile system to accomplish these goals. We note that if the juvenile
court had denied the motion to transfer D.H., upon a finding of
delinquency, the court could have imposed a number of different juvenile
dispositions * * *. The juvenile court’s entry relinquishing jurisdiction did
not discuss why none of these options would suffice to rehabilitate D.H. in
the juvenile system, especially in light of the fact that he had no prior
delinquency adjudications * * *.
Id. at ¶ 17.
{¶ 103} However, we—and numerous other districts—have observed that “‘other
courts have never gone so far as the Second District in directing the juvenile court’s
analysis’” in an amenability determination. D.M. at ¶ 47, quoting Blair, 5th Dist. Stark
No. 2016CA00180, 2017-Ohio-5865, at ¶ 39; and citing State v. Reeder, 2016-Ohio-212,
57 N.E.3d 458, ¶ 18 (10th Dist.); Marshall at ¶ 15; and State v. Rice, 12th Dist. Butler
No. CA2016-01-005, 2016-Ohio-5372, ¶ 18, fn. 2. In D.M., we rejected the nitpicky
approach required by the Second District and “reiterate[d] that [a]s long as the court
considers the appropriate statutory factors and there is some rational basis in the record to
support the court’s findings when applying those factors, we cannot conclude that the
[juvenile] court abused its discretion in deciding whether to transfer jurisdiction.” (First
brackets added and internal quotation omitted.) Id. We did not require the juvenile court
to “‘individually analyze each and every possible avenue for juvenile rehabilitation and
48
decide that [D.M.] was not amenable to them.’” Id. at ¶ 50, quoting State v. Curtis, 3d
Dist. Allen No. 1-15-55, 2016-Ohio-6978, ¶ 50. We see no reason to reverse course here.
{¶ 104} The juvenile court’s transfer entry in this case is succinct, but it includes
the factors that it found applicable and provides its reasons for relinquishing jurisdiction:
“Although this youth would be in the juvenile system for 5 more years, it is not the
amount of time but rather the nature of this crime that leads this Court to believe he
would not be amenable to treatment within that period of time.” More importantly, the
record in this case does not suffer from the deficiencies that the majority in D.H. found in
its record. We have sufficient information to conduct a meaningful review of the juvenile
court’s decision, including the testimony of Mussery and Sherman, Sherman’s report, the
investigation report required by R.C. 2152.12(C), and a selection of Cunningham’s
school records.
{¶ 105} Because the record allows us to conduct a meaningful review of the
juvenile court’s decision, we find that Cunningham’s argument regarding the specificity
of the juvenile court’s findings lacks merit.
c. Sherman’s report
{¶ 106} Finally, Cunningham claims that the juvenile court was improperly
influenced by Sherman’s “flawed” conclusions that Cunningham could not be
rehabilitated because of the seriousness of the offense and his lack of remorse, while also
49
finding that, up until the shooting, there were no “absolute contraindications” to keeping
Cunningham in the juvenile system.4
{¶ 107} We have already determined that Cunningham’s perceived remorse and
the seriousness of the offenses were proper considerations under the “any other relevant
factors * * *” provisions in R.C. 2152.12(D) and (E). Erwin, 10th Dist. Franklin No.
09AP-918, 2012-Ohio-776, at ¶ 11; LaRosa, 11th Dist. Trumbull No. 2018-T-0097,
2020-Ohio-160, at ¶ 37. Thus, the fact the Sherman took these factors into consideration
in reaching his conclusions does not make his report “flawed.” He was clear that his
amenability recommendation hinged on whether Cunningham was actually involved in
the crime because of the nature of the murder (i.e., if Cunningham was the shooter, he
acted alone, did not appear to feel remorse about his participation, and potentially posted
on Facebook about the victim being a “trophy”).
{¶ 108} In reaching its amenability determination, the juvenile court interpreted
Sherman’s recommendation to mean that “if [Cunningham is] guilty of this, then it
doesn’t matter that there are six years left [for treatment in the juvenile system] * * *
because this is such a cold blooded act, assuming that this—that he did this. It is cold
blooded with no apparent motive * * *.” That fact, combined with the other factors in
4
Cunningham’s brief quotes Sherman as saying “that there was ‘nothing in Tacarie’s past
that showed he would not be amenable to treatment.’” This statement does not appear in
the juvenile court transcript or Sherman’s report. The closest statement in the transcript
is Sherman agreeing when Cunningham’s attorney said, “Other than the offense for what
we’re here, there is nothing in Tacarie’s history that shows he would not be amenable to
the sanctions that could be produced.”
50
favor of transfer, led the court to conclude that the factors in favor of transfer outweighed
the factors against transfer, that Cunningham was not amenable to care or rehabilitation
in the juvenile system, and that the community needed to be protected from him. There is
a rational basis in the record to support the juvenile court’s decision, so we cannot find
that the court abused its discretion.
{¶ 109} Cunningham’s second assignment of error is not well-taken.
D. The juvenile court did not commit plain error by failing to explicitly
consider the possibility of Cunningham receiving a SYO disposition.
{¶ 110} In his fourth assignment of error, Cunningham argues that the juvenile
court should have considered all possible dispositional options—including the possibility
of a SYO disposition—before deciding to transfer his case to the trial court. He contends
that the juvenile court’s failure to do so was plain error that prevented him from receiving
treatment in the juvenile system, and that we should vacate his sentence and remand his
case to the juvenile court.
{¶ 111} In response, the state argues that Cunningham failed to show that the
juvenile court committed plain error by not considering all possible disposition options
before transferring the case, and, in any case, a SYO disposition is not an option unless
the state elects to pursue it, which it did not do in this case.
{¶ 112} At its most basic, a serious youthful offender disposition is a more
restrictive disposition for juveniles who are not transferred to adult court that includes a
stayed adult sentence, which is only imposed if the juvenile fails to successfully complete
51
the juvenile portion of his disposition. State v. D.H., 120 Ohio St.3d 540, 2009-Ohio-9,
901 N.E.2d 209, ¶ 18, citing R.C. 2152.11 and 2152.13. A juvenile court can only
impose a SYO disposition if the prosecutor initiates the SYO process by indicting the
child as a serious youthful offender, filing a bill of information designating the child as a
serious youthful offender, or, until the prosecutor can get an indictment or information,
including the SYO designation in the original juvenile complaint or filing a written notice
of intent to seek a SYO disposition.5 R.C. 2152.13(A)(1)-(4).
{¶ 113} Simply put, the procedural posture of Cunningham’s case meant that he
was not eligible for a SYO disposition. First, his case was transferred out of the juvenile
court, which immediately makes the definition of “serious youthful offender”
inapplicable to him. R.C. 2152.02(W) (“‘Serious youthful offender’ means a person who
is eligible for a mandatory SYO or discretionary SYO but who is not transferred to adult
court under a mandatory or discretionary transfer * * *.” (Emphasis added.)).
{¶ 114} Second, the juvenile court could not have imposed a SYO disposition
even if it had retained jurisdiction because the state did not seek a SYO designation in
5
Except in cases where the juvenile court is required to impose a mandatory SYO
disposition on juveniles who are subject to mandatory transfer because they were 16
years or older at the time that they (1) allegedly committed an act that would be
aggravated murder, murder, attempted aggravated murder, or attempted murder if
committed by an adult or (2) allegedly committed an act that would be voluntary
manslaughter, kidnapping, rape, aggravated arson, aggravated robbery, aggravated
burglary, or first-degree-felony involuntary manslaughter if committed by an adult and
the juvenile had a firearm on or about their person or under their control and displayed,
brandished, indicated they possessed, or used the firearm to facilitate the commission of
the act. R.C. 2152.13(A); R.C. 2152.121(B), (B)(3); R.C. 2152.12(A)(1)(a)(i),
(A)(1)(b)(ii); R.C. 2152.02(BB).
52
this case. Because Cunningham was only 15 at the time of the shooting, he did not fall
into the group of alleged delinquents who automatically receive a SYO designation.
When the juvenile is under 16, nothing in the SYO statutes permits the juvenile court to
designate the child as a serious youthful offender or impose a blended SYO dispositional
sentence without some affirmative action from the state seeking the SYO designation and
disposition. See R.C. 2152.13(A)(1)-(4); 2152.121(B)(3). As we discussed above, a
juvenile court is not required to “individually analyze each and every possible avenue for
juvenile rehabilitation and decide that [the juvenile] was not amenable to them” before
deciding to transfer the case to adult court. (Internal quotation omitted.) D.M., 6th Dist.
Lucas Nos. L-16-1237, L-16-1238, and L-16-1270, 2017-Ohio-8768, at ¶ 50. We think
this is particularly true when asking the court to conduct an analysis would be a
completely academic exercise in the absence of the state’s request for a SYO designation.
{¶ 115} Both the Second District and the Tenth District have recently addressed
this same issue and reached the same conclusion. See State v. Nicholas, 2020-Ohio-3478,
155 N.E.3d 304, ¶ 74-78 (2d Dist.), appeal allowed 161 Ohio St.3d 1439, 2021-Ohio-
375, 162 N.E.3d 822; and State v. L.A.B., 10th Dist. Franklin No. 20AP-120, 2021-Ohio-
4323, ¶ 68-75, appeal allowed 166 Ohio St.3d 1483, 2022-Ohio-1284, 186 N.E.3d 815.
As the Tenth District summarized its conclusion in L.A.B., at ¶ 75, because
the juvenile court determined appellant was not amenable to care or
rehabilitation within the juvenile system and granted the request for transfer
to adult court, and where the state did not initiate the process for a SYO
53
disposition, appellant has failed to show the juvenile court erred in failing
to consider a blended sentence as part of its amenability determination.
We agree. Cunningham’s fourth assignment of error is not well-taken.
E. Cunningham did not receive ineffective assistance of counsel.
{¶ 116} In his final assignment of error, Cunningham argues that his trial counsel
provided ineffective assistance by failing to advocate for a clear and convincing evidence
standard of proof for the amenability hearing and failing to seek a SYO disposition. He
claims that the outcome of his case would have been different if trial counsel had asked
for these things, and that he was prejudiced by counsel’s failure.
{¶ 117} The state responds that counsel cannot be found ineffective for failing to
ask the juvenile court to “apply a standard of proof that is not supported by the law,” or
seek an unavailable sentence, and that Cunningham was not prejudiced by either of these
things.
{¶ 118} To prevail on a claim of ineffective assistance of counsel, the appellant
must show that counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial court cannot be relied on as having produced a just
result. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). Properly licensed Ohio lawyers are presumed to be competent, State v. Gondor,
112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62, and there are “countless”
ways for an attorney to provide effective assistance in a case, so “‘[j]udicial scrutiny of
54
counsel’s performance must be highly deferential.’” State v. Bradley, 42 Ohio St.3d 136,
142, 538 N.E.2d 373 (1989), quoting Strickland at 689.
{¶ 119} To establish ineffective assistance of counsel, the appellant must show
“(1) deficient performance of counsel, i.e., performance falling below an objective
standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability
that, but for counsel’s errors, the proceeding’s result would have been different.” State v.
Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204. “‘A reasonable
probability is a probability sufficient to undermine confidence in the outcome.’” State v.
Sanders, 94 Ohio St.3d 150, 151, 761 N.E.2d 18 (2002), quoting Strickland at 694.
{¶ 120} Counsel is “strongly presumed” to have rendered adequate assistance and
“the defendant must overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’” State v. Smith, 17 Ohio
St.3d 98, 100, 477 N.E.2d 1128 (1985), quoting Strickland at 694-695. Generally, trial
strategy and tactical decisions—even debatable ones—cannot form the basis of a claim of
ineffective assistance of counsel. State v. Grissom, 6th Dist. Erie No. E-08-008, 2009-
Ohio-2603, ¶ 22
{¶ 121} Cunningham first argues that his trial counsel was ineffective for failing to
ask for a SYO disposition. However, as discussed under the fourth assignment of error,
Cunningham was not eligible for a SYO disposition because his case was in the adult
court and the state did not seek the SYO designation, so we cannot say that counsel acted
unreasonably in failing to ask the court to impose a SYO sentence. Counsel is not
55
required to raise meritless issues. State v. Jones, 91 Ohio St.3d 335, 354, 744 N.E.2d
1163 (2001), citing State v. Taylor, 78 Ohio St.3d 15, 31, 676 N.E.2d 82 (1997). Even if
trial counsel had asked for a SYO blended sentence, it is highly unlikely that the juvenile
court would have granted the request (because it is unsupported by the SYO statutes), so
there is no reasonable probability that the request would have changed the outcome of the
case.
{¶ 122} We also find that trial counsel’s performance did not fall below an
objective standard of reasonable representation regarding the standard of proof for the
amenability hearing. Although Cunningham claims that “the burden of proof at an
amenability hearing is not settled[,]” and his attorney should have taken the opportunity
to advocate for a different standard of proof, the case law does not show conflicts among
the districts or any confusion about how juvenile courts are to make their amenability
determinations. And Cunningham cannot show that he was prejudiced by counsel’s
failure to ask for a new standard of proof because the juvenile court used the standard that
Cunningham wanted his counsel to advocate for. In its transfer entry, the juvenile court
said that it was “clearly convinced” that the factors in favor of transfer outweighed the
factors against transfer, which indicates that the court found Cunningham not amenable
by clear and convincing evidence.
{¶ 123} Because Cunningham cannot demonstrate that his counsel’s performance
fell below an objective standard of reasonable representation, or that he was prejudiced
56
by counsel’s alleged failings, Cunningham cannot prove that he received ineffective
assistance of counsel. Accordingly, his seventh assignment of error is not well-taken.
III. Conclusion
{¶ 124} For the foregoing reasons, the June 11, 2021 judgment of the Lucas
County Court of Common Pleas is affirmed. Cunningham is ordered to pay the costs of
this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
Christine E. Mayle, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
57