State v. Brown , 2018 Ohio 4185 ( 2018 )

[Cite as State v. Brown, 2018-Ohio-4185.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 17AP-695
(C.P.C. No. 17CR-1122)
v. :
(REGULAR CALENDAR)
DaeQuan M. Brown, :
Defendant-Appellant. :
D E C I S I O N
Rendered on October 16, 2018
On brief: Ron O'Brien, Prosecuting Attorney, and Seth L.
Gilbert, for appellee. Argued: Seth L. Gilbert.
On brief: Timothy Young, Ohio Public Defender, and Victoria
Bader, for appellant. Argued: Victoria Bader.
APPEAL from the Franklin County Court of Common Pleas
BROWN, P.J.
{¶ 1} Defendant-appellant, DaeQuan M. Brown, appeals from a judgment of the
Franklin County Court of Common Pleas accepting his guilty plea and finding him guilty of
one count of felonious assault, one count of felonious assault with a firearm specification,
and one count of harassment with a bodily substance. For the reasons that follow, we affirm.
{¶ 2} On October 15, 2016, in case No. 16JU-12291, a complaint was filed in the
Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch,
alleging Brown was delinquent for committing two offenses of felonious assault, in violation
of R.C. 2903.11(A)(2), felonies of the second degree if committed by an adult. The charges
included specifications for discharging a firearm from a motor vehicle.
{¶ 3} The facts recited by the prosecutor at a February 15, 2017 hearing indicated
the events giving rise to the complaint occurred at Linden McKinley High School in
No. 17AP-695 2
Columbus, Ohio, on October 13, 2016. The incident was "essentially a drive-by shooting
when school let out" where two students were shot and injured. (Feb. 15, 2017 Tr. at 10.)
Police investigated the incident, and witnesses identified Brown as the shooter. Brown was
16-years old at the time of the offense and on probation for two prior felony adjudications.
Attorney Lindsay Broderick was appointed to represent Brown. Plaintiff-appellee, the State
of Ohio, filed a motion, pursuant to R.C. 2152.12(B), asking the juvenile court to relinquish
jurisdiction and transfer the case to the general division of the Franklin County Court of
Common Pleas.
{¶ 4} On January 13, 2017, in case No. 17JU-557, a complaint was filed in the
Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch,
alleging Brown was delinquent for committing the offense of harassment with a bodily
substance, in violation of R.C. 2921.38(A), a felony of the fifth degree if committed by an
adult. The complaint stated that, while confined in a juvenile detention facility, Brown
threw urine on a juvenile detention officer when the officer attempted to collect his hygiene
kit. The state filed a R.C. 2152.12(B) motion asking the juvenile court to relinquish
jurisdiction over case No. 17JU-557 as well.
{¶ 5} A juvenile court judge conducted a hearing on January 24, 2017, at which
Brown was represented by counsel and Brown's mother was present. Brown's counsel
informed the court that, although the parties had reached a plea bargain which included a
jointly recommended sentence of eight years in adult court, Brown's mother was opposed
to the plea bargain. Brown's mother stated that "8 years for him is just too long for a child
to go to prison," and informed the court that she was considering retaining an attorney to
represent Brown. (Jan. 24, 2017 Tr. at 3.) The court informed Brown's mother of the
maximum amount of prison time Brown was facing on the charges, and noted that "[t]he
other thing * * * that could be added to the indictment would be participation in a criminal
gang." (Jan. 24, 2017 Tr. at 4-5.) The court continued the case.
{¶ 6} On February 8, 2017, the juvenile court held another hearing at which Brown
was represented by counsel, and Brown's mother and father were present. Brown's father
expressed to the court his dissatisfaction with Brown's appointed counsel, asserting that
Broderick had "walked away from" him when he attempted to discuss the case with her.
(Feb. 8, 2017 Tr. at 3.) The court explained that "Ms. Broderick [was] [Brown]'s attorney,"
and that, in order to discuss the case with either parent, Broderick would need a signed
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release from Brown "saying that she can discuss this case with you." (Feb. 8 2017 Tr. at 3,
4.) The court further explained to Brown's father Brown had previously indicated he wanted
to "take the plea to the eight years understanding that he's got a potential of almost forty
years hanging over his head." (Feb. 8, 2017 Tr. at 8.) Brown's father admitted that the
maximum prison time on the charges was "steep," but asserted he "believe[d] in [his] son's
innocence" and he was uncertain whether Brown's appointed attorney was going to "try to
defend that innocence." (Feb. 8, 2017 Tr. at 7.) The court continued the case.
{¶ 7} The juvenile court held the final hearing on the cases on February 15, 2017.
Brown was represented by counsel and Brown's mother was present at the hearing.
Initially, Attorney Eric Henry addressed the court, explaining that Brown's family
attempted to hire him to represent Brown, but Brown had "indicated that he wishe[d] to
remain with Ms. Broderick as his attorney." (Feb. 15, 2017 Tr. at 2.) Brown affirmed he
wanted to continue with Broderick as his attorney.
{¶ 8} The prosecutor informed the court the parties had reached a resolution on
the cases through which Brown would stipulate to probable cause, stipulate he was not
amenable to the juvenile justice system, and plead guilty to the charges once the case was
transferred to adult court. The parties would then make a "joint recommendation for an 8-
year prison sentence." (Feb. 15, 2017 Tr. at 5.) The prosecutor additionally noted that
although there was "reference to a possible other offense in the felony packet," the state
agreed "not to pursue any charges out of that incident as part of this plea." (Feb. 15, 2017
Tr. at 5.) Broderick confirmed the prosecutor had adequately set forth the parties' plea
agreement.
{¶ 9} Following a colloquy with Brown, the juvenile court accepted Brown's
stipulation to probable cause and found Brown had "waive[d] his right to an amenability
hearing." (Feb. 21, 2017 Jgmt. Entry.) The court granted the state's motions to relinquish
jurisdiction in case Nos. 16JU-12291 and 17JU-557, and ordered the cases be transferred to
the general division of the common pleas court for prosecution of Brown as an adult.
{¶ 10} On February 28, 2017, Brown was indicted in the general division of the
Franklin County Court of Common Pleas on two counts of felonious assault, both with
firearm specifications, and one count of harassment with a bodily substance. The court
ordered a nolle prosequi be entered to the firearm specification related to the felonious
assault charge in Count 2 of the indictment. On August 30, 2017, Brown pled guilty to the
No. 17AP-695 4
charges. The court issued a judgment entry convicting Brown and sentencing him to 5 years
on the felonious assault charge in Count 1, to be served consecutively to the 3-year firearm
specification on that count, 5 years on Count 2, and 12 months on Count 3, with Counts 2
and 3 being served concurrently with Count 1, for a total sentence of 8 years imprisonment.
{¶ 11} Brown appeals, assigning the following errors for our review:
[I.] The Franklin County Juvenile Court erred when it
transferred DaeQuan Brown's case to criminal court because it
did so without obtaining a knowing, intelligent, and voluntary
waiver of DaeQuan's right to an amenability determination.
State v. D.W., 133 Ohio St. 3d 434, 2012-Ohio-4544, 978
N.E.2d 894; Fourteenth Amendment to the U.S. Constitution;
Article I, Section 16 of the Ohio Constitution.
[II.] The juvenile court abused its discretion when it failed to
appoint a guardian ad litem for DaeQuan Brown, in violation
of Juv.R. 4(B)(2) and R.C. 2152.281(A)(2).
[III.] DaeQuan Brown was denied the effective assistance of
counsel, in violation of the Sixth and Fourteenth Amendments
to the U.S. Constitution; and, Article I, Section 10, Ohio
Constitution.
{¶ 12} Brown's first assignment of error asserts the juvenile court erred when it
transferred Brown's case to the general division of the common pleas court because it did
so without obtaining a knowing, intelligent, and voluntary waiver of Brown's right to an
amenability determination.
{¶ 13} Brown's counsel in juvenile court did not object to the juvenile court's
acceptance of Brown's amenability waiver. As such, we review for plain error. State v.
Morgan, 153 Ohio St. 3d 196, 2017-Ohio-7565, ¶ 54 (holding that "criminal plain-error
review applies to unpreserved errors that occur in a juvenile-delinquency proceeding").
{¶ 14} "Notice of plain error * * * is to be taken with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice." State v.
Long, 53 Ohio St. 2d 91 (1978), paragraph three of the syllabus. "For a court to notice plain
error, the error must be an obvious defect in a trial's proceedings, it must have affected
substantial rights, and it must have affected the outcome of the trial." State v. Steele, 138
Ohio St. 3d 1, 2013-Ohio-2470, ¶ 30, citing State v. Eafford, 132 Ohio St. 3d 159, 2012-Ohio-
2224, ¶ 11. Even if an error satisfies these three requirements, "Crim.R. 52(B) states only
No. 17AP-695 5
that a reviewing court 'may' notice plain forfeited errors; a court is not obliged to correct
them." State v. Barnes, 94 Ohio St. 3d 21, 27 (2002).
{¶ 15} "The juvenile court has exclusive original jurisdiction to hear complaints
alleging that a juvenile is a delinquent child by reason of having committed an offense that
would be a crime if committed by an adult." State v. Brown, 10th Dist. No. 13AP-349, 2014-
Ohio-314, ¶ 14. "A juvenile offender may not be tried as an adult unless the juvenile court
transfers jurisdiction of the matter to an adult court." State v. Hicks, 10th Dist. No. 13AP-
429, 2014-Ohio-1444, ¶ 8, citing State v. Golphin, 81 Ohio St. 3d 543, 545 (1998). Absent a
proper "bind-over proceeding in the juvenile court, the common pleas court lacks subject-
matter jurisdiction over the case and any conviction obtained there is void ab initio." Id.,
citing State v. Wilson, 73 Ohio St. 3d 40, 44 (1995).
{¶ 16} Two types of transfer exist under Ohio's juvenile justice system: discretionary
and mandatory. State v. Hanning, 89 Ohio St. 3d 86, 90 (2000). In instances of
discretionary bindover, as in the present case, the juvenile court may transfer the case if the
court finds that: (1) the child was 14 years of age or older at the time of the act charged,
(2) there is probable cause to believe the child committed the act charged, and (3) the child
is not amenable to care or rehabilitation within the juvenile system and the safety of the
community may require the child be subject to adult sanctions. R.C. 2152.12(B).
{¶ 17} In making its determination, the juvenile court is required to consider
whether the factors in favor of transferring jurisdiction, contained in R.C. 2152.12(D),
outweigh the factors against transferring jurisdiction, contained in R.C. 2152.12(E). R.C.
2152.12(B)(3). Additionally, R.C. 2152.12(C) provides that, before considering a
discretionary bindover of a juvenile, the court shall 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." The
juvenile "may waive" the R.C. 2152.12(C) examination, so long as the waiver is "competently
and intelligently" made. R.C. 2152.12(C). The juvenile court possesses wide latitude to
retain or relinquish jurisdiction, and the ultimate decision rests within the juvenile court's
sound discretion. State v. Watson, 47 Ohio St. 3d 93, 95 (1989); In re A.J.S., 120 Ohio St. 3d
185, 2008-Ohio-5307, ¶ 39.
{¶ 18} The amenability hearing is a "critical stage of the juvenile proceedings," as it
determines whether "the juvenile faces a delinquency adjudication, or adult criminal
No. 17AP-695 6
sanctions and the label 'felon.' " State v. D.W., 133 Ohio St. 3d 434, 2012-Ohio-4544, ¶ 12,
citing Kent v. United States, 383 U.S. 541, 560 (1966). The juvenile court must hold "an
amenability hearing before determining whether to transfer a juvenile from the juvenile
court system to the adult criminal system." Id. at ¶ 21; Juv.R. 30(C).
{¶ 19} However, a juvenile may waive the amenability hearing, provided: "(1) the
juvenile, through counsel, expressly states on the record a waiver of the amenability hearing
and (2) the juvenile court engages in a colloquy on the record with the juvenile to determine
that the waiver was made knowingly, voluntarily, and intelligently." Id. at syllabus. See also
Juv.R. 3(E) (providing that "[o]ther rights of a child may be waived with permission of the
court"). This "two-step process" effectively "balances the parens patriae duty of the juvenile
court with the juvenile's due process rights." Id. at ¶ 42.
{¶ 20} The juvenile court in D.W. concluded that no amenability hearing was
necessary, as the court had previously bound the same juvenile over to adult court in a prior
case. Id. at ¶ 3. The Supreme Court of Ohio held that "a juvenile court cannot bind over a
juvenile on the sole basis that the juvenile has been previously bound over." Id. at ¶ 46.
{¶ 21} The court likened a juvenile's waiver of their right to an amenability hearing
to the waiver of counsel. Id. at ¶ 28. In In re C.S., 115 Ohio St. 3d 267, 2007-Ohio-4919, the
court held that an effective "waiver of the right to counsel by a juvenile must be voluntary,
knowing, and intelligent," and the juvenile court judge should "engage in a meaningful
dialogue with the juvenile" instead of "relying solely on a prescribed formula or script for
engaging a juvenile during the consideration of the waiver" of counsel. Id. at ¶ 106-07. See
also Juv.R. 3(D)1 (incorporating the holding of C.S. and setting forth the requirements for
a juvenile's waiver of counsel). The D.W. court noted that "the holding in In re C.S. and the
language of Juv.R. 3 are persuasive and applicable to the standard" for waiving the
amenability hearing. D.W. at ¶ 32.
1Any waiver of the right to counsel shall be made in open court, recorded, and in writing. In determining
whether a child has knowingly, intelligently, and voluntarily waived the right to counsel, the court shall look
to the totality of the circumstances including, but not limited to: the child's age, intelligence, education,
background and experience generally and in the court system specifically, the child's emotional stability,
and the complexity of the proceedings. The court shall ensure that a child consults with a parent, custodian,
guardian, or guardian ad litem, before any waiver of counsel. However, no parent, guardian, custodian, or
other person may waive the child's right to counsel. Juv.R. 3(D).
No. 17AP-695 7
{¶ 22} The February 15, 2017 hearing transcript demonstrates Brown made a
knowing, voluntary, and intelligent waiver of his right to an amenability hearing. After
Brown's counsel affirmed that Brown wanted to stipulate to probable cause and to the lack
of amenability, the court personally addressed Brown. Brown stated his name, date of birth,
and the last grade he had completed in school. Brown affirmed that he could read and write
the English language, and that he was not under the influence of any substance that would
affect his ability to understand what was happening at the hearing. The following exchange
then occurred:
JUDGE JAMISON: You understand that you are not having a
trial today?
DAEQUAN BROWN: Yes.
JUDGE JAMISON: You understand that if you admit to these
charges and the stipulations that your case will be transferred
to the adult system -- the General Division for prosecution?
DAEQUAN BROWN: Yes, ma'am.
JUDGE JAMISON: Have you had ample time to discuss this
case with Ms. Broderick?
DAEQUAN BROWN: Yes.
JUDGE JAMISON: Do you believe that the legal advice that she
has given you is in your best interest to follow?
DAEQUAN BROWN: Yes, ma'am.
JUDGE JAMISON: Okay. You understand that the State has
offered, in exchange of this admission, to a sentence of 8 years
in a Ohio Department of Rehabilitation and Correction
Institution?
DAEQUAN BROWN: Yes, ma'am.
JUDGE JAMISON: That you will not be held in the juvenile
system?
DAEQUAN BROWN: Yes, ma'am.
JUDGE JAMISON: Okay. You understand that by stipulating
to probable cause that you are waiving your right to have this
No. 17AP-695 8
Court have a hearing on that matter and make a decision that
your case should be transferred?
DAEQUAN BROWN: Yes.
JUDGE JAMISON: And you're also stipulating that the victims
did suffer bodily harm and you were already on probation for
another felony offense and that you are not what we call
amenable or should not be kept in the juvenile system; you
understand that you are stipulating or admitting to those
things?
DAEQUAN BROWN: Yes, ma'am.
(Feb. 15 2017 Tr. at 6-8.)
{¶ 23} The court asked Brown if anyone had "attempted in any way to force [him] to
change [his] mind in this matter." (Feb. 15, 2017 Tr. at 8.) Brown stated his mother and
father had both advised him not to take the plea deal, but he wanted to take the plea deal.
The court assured that Brown understood the maximum possible penalties he was facing
on the charges. Brown affirmed he was making these decisions "voluntarily * * * and of [his]
own freewill." (Feb. 15, 2017 Tr. at 9.) The court again asked Brown if he was "satisfied with
[his] attorney," and Brown responded "Yes, ma'am." (Feb. 15, 2017 Tr. at 10.)
{¶ 24} Brown acknowledges that he "expressed his intent to waive his right to an
amenability hearing on the record and through counsel," but argues his waiver was
deficient because the juvenile court "failed to fully apprise [him] of the nature of the
hearing, rights he had, and the consequences of waiving those rights before accepting his
stipulation." (Appellant's Brief at 12.) Specifically, Brown argues that because the juvenile
court failed to explain "what amenability meant," failed to explain the R.C. 2152.12(C)
requirements, and failed to explain the R.C. 2152.12(D) and (E) factors, his waiver of the
amenability hearing was not knowingly, voluntarily, or intelligently made. (Appellant's
Brief at 13.)
{¶ 25} The juvenile court was not obligated to define amenability or to explain the
components of R.C. 2152.12(C), (D), and (E) to Brown before accepting his waiver of the
amenability hearing. Notably, there is nothing in D.W. which states that a meaningful
dialogue with the juvenile must include explanation of R.C. 2152.12(C), (D), and (E).
No. 17AP-695 9
{¶ 26} In State v. J.T.S., 10th Dist. No. 14AP-516, 2015-Ohio-1103, the appellant
argued the juvenile court "was obligated to provide appellant with a legal definition of
probable cause before accepting his stipulation" to probable cause. Id. at ¶ 30. This court
disagreed, observing there was "no need to impose such an obligation upon the juvenile
court." Id. at ¶ 31. Rather, it was "reasonable for the juvenile court to rely on appellant's
representation in open court that he had the opportunity to discuss the proceedings with
his legal counsel and that he understood the right he was waiving by entering into a
stipulation." Id. Compare id. at fn. 3, citing State v. Jells, 53 Ohio St. 3d 22 (1990),
paragraph one of the syllabus; State v. Bays, 87 Ohio St. 3d 15, 20 (1999) (holding that a
"trial court is not required to inform the defendant of all the possible implications of
waiver," and that a defendant "need not have a complete or technical understanding of the
jury trial right in order to knowingly and intelligently waive it").
{¶ 27} The juvenile court herein was entitled to rely on Brown's statement that he
had ample time to discuss the case with his attorney and he was satisfied with the advice
she had provided him. The court personally addressed Brown, and Brown unequivocally
stipulated that he was not amenable to rehabilitation in the juvenile justice system. Brown
understood that, as a result of his stipulations, his case would be removed from juvenile
court and transferred to adult court for prosecution. The juvenile court's colloquy
demonstrates compliance with the Juv.R. 3(D) requirements for securing a knowing,
voluntary, and intelligent waiver, as the court considered Brown's age, education, prior
experiences in the court system, the nature of the proceedings, and ensured that Brown had
consulted with his parents. See Juv.R. 3(D); D.W. at ¶ 32.
{¶ 28} Accordingly, the record demonstrates the juvenile court engaged in a
colloquy on the record with Brown to determine that Brown made a knowing, intelligent,
and voluntary waiver of his right to an amenability hearing. As Brown also expressed his
intent to waive the amenability hearing on the record and through counsel, both of the D.W.
requirements are satisfied in the present case.
{¶ 29} Furthermore, Brown fails to establish any prejudice resulting from the
juvenile court's acceptance of his waiver. Brown states that "[h]ad the court held a full
amenability hearing, it is possible that he would have been found to be amenable and the
court could have retained jurisdiction." (Appellant's Brief at 15.) However, in Morgan the
court "decline[d] to recognize a 'presumed prejudicial' plain-error standard." Id. at ¶ 50. To
No. 17AP-695 10
constitute plain error in juvenile court proceedings, the juvenile must "prove that the error
affected the outcome of the proceeding, that is, that he would not have been bound over to
the adult court." Id. at ¶ 51. "[S]peculation cannot prove prejudice." Morgan at ¶ 53.
Accordingly, Brown's contention that it was possible the court could have retained
jurisdiction is insufficient to demonstrate plain error.
{¶ 30} Several of the R.C. 2152.12(D) factors in favor of transfer were present in the
case including Brown caused physical harm to the victims, there were indications that the
shooting was gang related, Brown used a firearm to commit the offense, and Brown was on
probation for two prior felony adjudications at the time of the new offenses. See R.C.
2152.12(D)(1), (4), (5), and (6). Additionally, Brown had not done well on probation, as he
failed to show up to a meeting with his probation officer and "tested positive for marijuana,
morphine, and opiates" while "on ankle monitor." (Oct. 19, 2016 Tr. at 4.) See R.C.
2152.12(D)(7). In contrast, few if any of the R.C. 2152.12(E) factors against transfer were
applicable in the present case. See R.C. 2152.12(E). Accordingly, Brown fails to demonstrate
plain error.
{¶ 31} Based on the foregoing, appellant's first assignment of error is overruled.
{¶ 32} Brown's second assignment of error asserts the juvenile court abused its
discretion by failing to appoint a guardian ad litem ("GAL"), in violation of Juv.R. 4(B)(2)
and R.C. 2152.281(A)(2).
{¶ 33} A GAL is a "person appointed to protect the interests of a party in a juvenile
court proceeding." Juv.R. 2(O). A GAL provides the juvenile court with a recommendation
regarding the child's best interests. Sup.R. 48(D)(1).
{¶ 34} R.C. 2151.281(A)(2) provides that the juvenile court shall appoint a GAL to
protect the interests of a child in any proceeding where "[t]he court finds that there is a
conflict of interest between the child and the child's parent." Juv.R. 4(B)(2) provides that
the juvenile court shall appoint a GAL to protect the interests of a child when "[t]he interests
of the child and the interests of the parent may conflict." See In re Sappington, 123 Ohio
App.3d 448, 453 (2d Dist.1997) (noting that Juv.R. 4(B)(2) "does not require an actual
conflict of interest to trigger the need for a guardian ad litem"). "In theory, then," as the
parent is the "natural guardian of a child," the parent and the GAL "have the same
responsibility." In re Howard, 119 Ohio App. 3d 201, 206 (1st Dist.1997), syllabus. Thus, the
No. 17AP-695 11
law only requires "the appointment of a guardian ad litem where the interests of the parent
and the child conflict." Id.
{¶ 35} As " 'the juvenile court is in the best position to weigh the relevant facts in
determining whether a potential conflict of interest exists between the parent and child,' "
we review such decisions for an abuse of discretion. State v. Simmonds, 10th Dist. No.
14AP-1065, 2015-Ohio-4460, ¶ 10, quoting Sappington at 453-54. Specifically, reversible
error exists if the record "reveals a strong enough possibility of conflict of interest between
parent and child to show that the juvenile court abused its discretion by not so finding."
Sappington at 454. See also Howard at 206 (noting that a conflict exists when the parent
"clearly ha[s] her own agenda, or [is] advocating her own best interest"); Simmonds at ¶ 13
(finding no conflict of interest as there was "nothing in the record indicating that the mother
or the grandmother's interests were no longer consistent with a role that properly protects
the child"). As Brown did not object to the failure of the juvenile court to appoint a GAL,
the alleged error is subject to the plain error standard of review. Morgan at ¶ 55.
{¶ 36} "A 'colorable claim of conflict' frequently arises in a delinquency proceeding
when a parent speaks against a child's penal interests." State v. Legg, 4th Dist. No. 14CA23,
2016-Ohio-801, ¶ 18, quoting In re Bostwick, 4th Dist. No. 05CA2820, 2005-Ohio-5123,
¶ 8. See In re J.C., 5th Dist. No. 14CA23, 2015-Ohio-4664, ¶ 33-34; In re Slider, 160 Ohio
App.3d 159, 2005-Ohio-1457, ¶ 12 (4th Dist.) However, courts have been "unwilling to
adopt a bright-line rule that would require the appointment of a guardian ad litem in every
case in which a child's parents or legal guardians speak against the child's interests." Legg
at ¶ 18, citing Howard at 207. Instead, "courts have examined the record to determine
whether the parent or legal guardian expressed any interest inconsistent with the child's
interests." Id. See In re D.A.G., 4th Dist. No. 13CA3366, 2013-Ohio-3414, ¶ 54; Howard at
207.
{¶ 37} The presence of counsel is a factor the court should consider in appointing a
GAL. Simmonds at ¶ 11. A juvenile court "should be more sensitive to potential conflicts of
interest under Juv.R. 4(B)(2) when there is no other person present to protect the rights
and interests of the minor." Sappington at 455. See also Juv.R. 4(C)(1) (providing that, if
the appointed GAL is an attorney, "the guardian may also serve as counsel to the ward
providing no conflict between the roles exist[s]"). Brown was represented by counsel at
every proceeding in juvenile court.
No. 17AP-695 12
{¶ 38} Brown asserts that an "obvious conflict of interest" existed between Brown
and his parents, as Brown's parents "both expressed their opposition to the plea agreement
and even retained private counsel to meet with [Brown]." (Appellant's Brief at 20; 19.) We
disagree. There is nothing in the record indicating that Brown's parents were advancing
their own interests or agenda, or that they were acting in any manner inconsistent with a
role which properly protected the child. Brown's parents did not advocate against Brown's
penal interest. Rather, Brown's parents expressed their desire for Brown to experience the
least amount of punishment possible.
{¶ 39} Brown and his parents simply disagreed regarding how Brown's interest in
serving the least amount of prison time should be accomplished. Brown's parents did not
want him to take the plea bargain, and attempted to retain private counsel for him in the
hopes that the case would either remain in juvenile court or that Brown would be acquitted
on the charges if the case were transferred to adult court. Brown, after consulting with his
appointed counsel, believed that accepting the plea deal with the eight-year sentencing
recommendation was in his best interest. Thus, while Brown and his parents may have
disagreed as to the method, their overall interests were aligned. Neither the "statute [n]or
the rule requires that every time a parent and child disagree, a guardian ad litem must be
appointed." Howard at 206.
{¶ 40} Moreover, Brown fails to articulate how the juvenile court's failure to appoint
a GAL prejudiced him. Although Brown notes that a GAL "would have provided the court
with an unbiased, third party recommendation regarding [Brown's] best interest," there is
nothing in the record indicating that a GAL would not have found the plea deal to be in
Brown's best interest. (Appellant's Brief at 25.) Compare In re C.N., 3d Dist. No. 6-17-16,
2018-Ohio-2442, ¶ 10. Brown fails to establish that the outcome of the proceeding would
have been different if the court had appointed a GAL. Accordingly, Brown fails to
demonstrate plain error.
{¶ 41} Based on the foregoing, Brown's second assignment of error is overruled.
{¶ 42} Brown's third assignment of error asserts he was deprived of the effective
assistance of counsel in the juvenile court. Brown asserts his counsel was constitutionally
ineffective "for failing to object to the juvenile court's failure to engage in a meaningful
dialogue with [Brown] prior to accepting his amenability waiver and fail[ing] to appoint a
guardian ad litem." (Appellant's Brief at 28.)
No. 17AP-695 13
{¶ 43} To establish a claim of ineffective assistance of counsel, a defendant must
satisfy a two-prong test. Strickland v. Washington, 466 U.S. 668, 687 (1984). The
defendant must show that: (1) defense counsel's performance was so deficient that he was
not functioning as the counsel guaranteed under the Sixth Amendment to the United States
Constitution, and (2) defense counsel's errors prejudiced defendant. Id. To show prejudice,
a defendant must establish a reasonable probability that, but for his counsel's errors, the
result of the trial would have been different. Id. at 694. The failure to make either showing
defeats a claim of ineffectiveness of trial counsel. Id. at 697.
{¶ 44} In Ohio, a properly licensed attorney is presumed competent. State v.
Monford, 190 Ohio App. 3d 35, 2010-Ohio-4732, ¶ 78 (10th Dist.), citing Vaughn v.
Maxwell, 2 Ohio St. 2d 299, 301 (1965). Matters of trial strategy and even debatable trial
tactics do not establish ineffective assistance of counsel. Id. at ¶ 79, citing State v. Conway,
109 Ohio St. 3d 412, 2006-Ohio-2815, ¶ 101.
{¶ 45} As demonstrated above, the court's colloquy with Brown regarding his
amenability waiver was sufficient and there was no conflict of interest between Brown and
his parents which necessitated appointment of a GAL. See State v. Foust, 105 Ohio St. 3d
137, 2004-Ohio-7006, ¶ 120 (holding that, where "counsel had no basis for objecting,"
counsel could not "be deficient for failing to object"). Moreover, considering the maximum
amount of prison time Brown was facing and the likelihood of transfer, Brown's counsel
successfully negotiated a highly favorable plea deal for her client. Compare J.T.S. at ¶ 52.
Brown fails to establish a reasonable probability that he would not have been bound over
to adult court if his counsel had objected to either the colloquy or the lack of a GAL.
Accordingly, Brown fails to demonstrate he was deprived of the effective assistance of
counsel.
{¶ 46} Based on the foregoing, Brown's third assignment of error is overruled.
{¶ 47} Having overruled Brown's three assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK and BRUNNER, JJ., concur.
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