State v. J.R. , 2022 Ohio 1664 ( 2022 )

[Cite as State v. J.R., 2022-Ohio-1664.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110521
v. :
J.R., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: REVERSED, VACATED, AND REMANDED
RELEASED AND JOURNALIZED: May 19, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-652417-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jeffrey Schnatter and Samantha Sohl,
Assistant Prosecuting Attorneys, for appellee.
Paul W. Flowers, Co., L.P.A., Louis E. Grube and Melissa
A. Ghrist, for appellant.
EILEEN A. GALLAGHER, P.J.:
Defendant-appellant J.R. appeals her convictions after she was
bound over to the General Division of the Cuyahoga County Court of Common Pleas
(the “General Division”) and pled guilty to multiple counts in connection with an
armed burglary. J.R. contends that the General Division lacked subject-matter
jurisdiction over the case because (1) the attorney who represented her during the
juvenile-court proceedings was under a registration suspension at the time of the
representation and she was, therefore, denied her right to assistance of counsel in
violation of the United States and Ohio Constitutions and (2) the juvenile court
abused its discretion in ordering J.R. transferred to the General Division pursuant
to the discretionary bindover provisions in R.C. 2152.10 and 2152.12. J.R. also
contends that the juvenile court violated her constitutional right to confront and
cross-examine her accusers by admitting hearsay evidence at the amenability
hearing and that her indefinite sentence, imposed under the Reagan Tokes Law, is
unconstitutional.
For the reasons that follow, we find that J.R. was denied her
constitutional right to the assistance of counsel during the juvenile bindover
proceedings. Accordingly, we reverse the trial court’s judgment, vacate J.R.’s
convictions, vacate the juvenile court’s transfer order and remand the case to the
juvenile court for further proceedings.
Factual Background and Procedural History
Juvenile Court Proceedings
On February 27, 2020, the state filed a seven-count delinquency
complaint in the Cuyahoga County Court of Common Pleas, Juvenile Division
(Cuyahoga J.C. No. DL20102542), against J.R., alleging that she had committed acts
that would constitute the following crimes if she were an adult: one count of
aggravated murder, one count of aggravated robbery, one count of aggravated
burglary, one count of murder, two counts of felonious assault and one count of
attempted murder. Each of the counts also included one- and three-year firearm
specifications. The charges related to J.R.’s alleged participation in an armed
burglary on December 22, 2019 that resulted in the shooting death of Kevin King
and serious injury to Floyd Morgan. J.R. and her friend, S.B., who knew the victims,
allegedly “scoped out” King’s house, located on Auburndale Avenue in Cleveland,
Ohio for a potential burglary. Shortly after the girls left King’s house, three males
with firearms burst into the house and began shooting. J.R. and S.B. allegedly
assisted the males in gaining entry to the house by opening the door for them. J.R.
was 15 at the time of the incident. S.B. was 16.
On March 4, 2020, the state filed a notice of mandatory bindover and
a motion for an order to relinquish jurisdiction for the purpose of criminal
prosecution pursuant to R.C. 2152.10(B) (“motion for discretionary bindover”) on
the charges alleged in the complaint. J.R. retained attorney Robert Chester Brooks
II to represent her during the juvenile court proceedings. At J.R.’s arraignment held
later that day, the state withdrew the notice of mandatory bindover because J.R. did
not meet the statutory requirements for mandatory bindover. Brooks entered
denials, on J.R.’s behalf, “as to the entirety of the complaint” and the motion for
discretionary bindover.
The juvenile court scheduled a probable cause hearing. J.R.’s mother
was not present at the hearing. Brooks stated that because he had “made several
attempts to contact [J.R.’s mother] and was unable to get an answer,” a guardian ad
litem had been appointed for J.R. “to share with some of the decision making
relative to this.” On July 13, 2020, J.R. waived her probable cause hearing and
stipulated to a finding of probable cause. Brooks stated that he had “conferred with
the [g]uardian ad [l]item and informed him that our strategy was to stipulate as to
probable cause.” After conducting a colloquy explaining what it meant to stipulate
to probable cause and confirming that J.R. had an opportunity to discuss the issue
with her counsel and her mother, understood the consequences of waiving the
probable cause hearing and was doing so “knowingly, intelligently and voluntarily,”
the juvenile court accepted the stipulation, found that there was probable cause to
believe that J.R. had committed each of the acts charged and referred J.R. for “a full
investigation into [her] social history, education, family situation, and any other
factor on whether the child is amenable to juvenile rehabilitation,” including a
psychological evaluation by the Cuyahoga County Juvenile Court Diagnostic Clinic.
Amenability Hearing
On August 13, 2020, the juvenile court conducted an amenability
hearing to determine whether J.R.’s case should be transferred to the General
Division for prosecution as an adult. The parties stipulated to the admissibility of a
psychological evaluation report prepared by Dr. Lynn Williams, a forensic
psychologist with the Cuyahoga County Juvenile Court Diagnostic Clinic. Cleveland
Police Detective Charles McNeeley, Jr., Harrison Brill (J.R.’s probation officer) and
Kimberly King (the mother of the deceased victim) testified on behalf of the state at
the amenability hearing. Over Brooks’ objection, the state also read a statement
from the surviving victim, Morgan, into the record at the hearing. J.R. presented no
witnesses at the hearing.
Following the hearing, the juvenile court concluded that “the weight
of the factors that are in favor of transfer outweigh the other factors” and granted
the state’s motion for discretionary transfer. In its August 17, 2020 journal entry,
the juvenile court set forth its findings as follows:
The court finds after a full investigation including a mental
examination of said child made by a duly qualified person, and after full
consideration of the child’s prior juvenile record, family environment,
school record, efforts previously made to treat and rehabilitate the
child, including prior commitments to the Department of Youth
Services, the nature and severity of the offense herein, the age, physical,
and mental condition of the victim as effected by the matter herein, and
other matters of evidence, that there are reasonable grounds to believe
that the child herein is not amenable to care or rehabilitation within the
juvenile system.
The court further finds that the safety of the community may require
that the child be subject to adult sanctions.
The court considered the relevant factors in favor of transfer pursuant
to R.C. 2152.12(D) and makes the following findings:
1. The victim suffered physical or psychological harm, or serious
economic harm.
2. The child’s relationship with the victim facilitated the act charged.
3. At the time of the act charged, the child was awaiting a community
control sanction, or was on parole for a prior delinquent child
adjudication or conviction.
4. The results of any previous juvenile sanctions and programs indicate
that rehabilitation of the child will not occur in the juvenile system.
5. The child is emotionally, physically, or psychologically mature
enough for the transfer.
6. There is not sufficient time to rehabilitate the child within the
juvenile system.
The Court considered the relevant factors against transfer pursuant to
R.C. 21152.12(E) and makes the following findings:
1. The child was not the principal actor in the act charged, or, at the
time of the act charged, the child was under the negative influence or
coercion of another person.
On August 25, 2020, the juvenile court transferred the case to the
General Division for further proceedings.
Proceedings in the General Division1
On September 3, 2020, a Cuyahoga County Grand Jury indicted J.R.
and two codefendants, S.B. and Maurice Chesney, Jr. (one of the three alleged
shooters), on 11 counts: two counts of aggravated murder, one count of murder, two
counts of aggravated robbery, two counts of aggravated burglary, three counts of
felonious assault and one count of attempted murder. All of the counts included
one- and three-year firearm specifications. J.R. initially pled not guilty to all
charges.
On March 31, 2021, the parties reached a plea agreement. J.R. pled
guilty to four first-degree felonies: an amended count of involuntary manslaughter
with one- and three-year firearm specifications (Count 1), an amended count of
1 J.R. was represented by different counsel, attorneys in the Cuyahoga County
Public Defender’s Office, during the proceedings in the General Division.
aggravated robbery (deleting the firearm specifications) (Count 4), an amended
count of aggravated burglary (deleting the firearm specifications) (Count 6) and an
amended count of attempted murder (deleting the firearm specifications) (Count 9).
In exchange for her guilty pleas, the parties agreed that J.R. would receive a
recommended “base sentence of anywhere from eight to 18 years” if she “cooperates
and testifies against any and all co-conspirators” and that the remaining counts
against her would be nolled.
J.R. entered guilty pleas to the amended counts as agreed. After
conducting a plea colloquy,2 the trial court found that J.R. had entered her guilty
pleas “knowingly, voluntarily, and intelligently,” accepted her guilty pleas and
dismissed the remaining counts.
On April 21, 2021, the trial court sentenced J.R. to an aggregate
minimum prison term of 13 years and a maximum prison term of 18 years.3 The
2 Although the parties have not raised the issue, we note that the trial court’s plea
colloquy did not comply with Crim.R. 11(C)(2)(c). The transcript shows that the trial court
never informed J.R. that she had a right to compulsory process, i.e., to subpoena and call
witnesses to testify on her behalf. This constitutes plain error and would warrant vacating
J.R.’s convictions. See, e.g., State v. Miller, 159 Ohio St.3d 447, 2020-Ohio-1420, 151
N.E.3d 617, ¶ 13 (“[A] trial court’s failure to notify a defendant of his constitutional rights
listed in Crim.R. 11(C)(2)(c) amounts to plain error.”), citing State v. Veney, 120 Ohio
St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 24; State v. Martin, 12th Dist. Warren No.
CA2018-09-105, 2019-Ohio-2792, ¶ 24-32, 36 (sua sponte finding trial court committed
plain error by not properly advising appellant of her constitutional rights pursuant to
Crim.R. 11(C)(2)(c) and vacating defendant’s conviction and no contest plea).
3 The court found that the involuntary manslaughter and aggravated burglary
counts were allied offenses of similar import that merged for sentencing, and the state
elected to have J.R. sentenced on the involuntary manslaughter count. As to Count 1, the
trial court found that the one- and three-year firearm specifications merged for
sentencing. The court sentenced J.R. to three years on the firearm specification to be
served prior to and consecutive to a minimum ten-year term on the base offense. In
trial court also imposed five years of mandatory postrelease control. Defense
counsel objected to the constitutionality of the Reagan Tokes Law at both the
change-of-plea hearing and the sentencing hearing.
J.R. appealed, raising the following assignments of error for review:
Assignment of Error I: The General Division lacked subject matter
jurisdiction over these proceedings because the Juvenile Division’s
decision to bind the defendant over for prosecution as an adult was an
abuse of discretion.
Assignment of Error II: The defendant was denied the right to confront
and cross-examine her accusers during the bindover hearing in the
Juvenile Division.
Assignment of Error III: The trial court erred by sentencing the
defendant pursuant to the Reagan Tokes Law, which violates the state
and federal guarantees of procedural due process.
Notice of Attorney Suspension
Throughout the juvenile court proceedings, J.R. was represented by
Brooks. However, unbeknownst to J.R., the state or the juvenile court, on
November 1, 2019 — four months before he entered his notice of appearance for J.R.
— Brooks was suspended from the practice of law in Ohio for noncompliance with
Gov.Bar R. VI. Gov.Bar R. VI requires attorneys to file a certificate of registration
and pay a registration fee on a biennial basis. Brooks had not registered for the
2019/2021 attorney-registration biennium by the September 1, 2019 deadline and
accordance with the Reagan Tokes law, the court imposed “an additional five years, as an
indefinite term” to the sentence on Count 1, resulting in an aggregate indefinite sentence
of 13 years to 18 years. On Counts 4 and 9, the trial court sentenced J.R. to eight years on
each count, to be served concurrently with each other and concurrently with the sentence
on Count 1.
had not filed evidence of compliance with Gov.Bar R. VI or come into compliance
with the rule within 60 days of the deadline. 11/05/2019 Administrative Actions,
2019-Ohio-4529. His suspension remained in effect throughout the juvenile court
proceedings. Brooks was again “sanctioned and suspended” on October 14, 2020
for not complying with the continuing legal education requirements mandated by
Gov.Bar R. X(3) and not filing evidence of compliance or coming into compliance as
required by Gov.Bar R. X(18)(A). Brooks had not completed his continuing legal
education requirements for the 2014/2015, 2016/2017 or 2018/2019 biennial
compliance periods. 10/15/2020 Administrative Actions, 2020-Ohio-4908.4
On December 8, 2021, the state filed a “notice of attorney suspension”
with the trial court, advising J.R. and the trial court that Brooks had been under a
registration suspension since November 1, 2019 and a continuing legal education
suspension since October 14, 2020.
On December 15, 2021, J.R. filed an unopposed motion with this
court to supplement the record with the notice of suspension and requesting leave
to raise the following additional assignment of error for review:
Assignment of Error IV: The General Division lacked subject matter
jurisdiction over these proceedings because the defendant was denied
the assistance of counsel at her bindover hearing in the Juvenile
Division.
4 According to the Ohio Supreme Court’s online attorney directory, those
suspensions remain in effect as of March 7, 2022. See Ohio Supreme Court Attorney
Directory, https://www.supremecourt.ohio.gov/AttorneySearch/#/40881/attyinfo
(accessed Mar. 7, 2022).
On January 10, 2022, this court granted J.R.’s motion and ordered
additional briefing on J.R.’s fourth assignment of error.
Law and Analysis
We address J.R.’s fourth assignment of error first.5 In her fourth
assignment of error, J.R. argues that because Brooks was suspended from the
practice of law in Ohio at the time he represented her, she was “complete[ly]
deni[ed]” the assistance of counsel at her bindover hearing in violation of the Sixth
Amendment to the United States Constitution and Article I, Section 10 of the Ohio
Constitution. She contends that, due to this “structural error” and “defect in the
bindover procedure,” the General Division lacked subject-matter jurisdiction over
the case and her convictions must be vacated.
The Bindover Procedure
“Juvenile courts possess exclusive jurisdiction over children alleged
to be delinquent for committing acts that would constitute a crime if committed by
5 We note that J.R.’s convictions in this case resulted from guilty pleas.
As a general
matter, a valid guilty plea waives all nonjurisdictional appealable errors except those that
preclude a knowing, intelligent and voluntary plea. See, e.g., State v. Elliott, 8th Dist.
Cuyahoga No. 102226, 2015-Ohio-3766, ¶ 14; State v. Mays, 2014-Ohio-3815, 18 N.E.3d
850, ¶ 44 (8th Dist.) (“‘[A] defendant who * * * voluntarily, knowingly, and intelligently
enters a guilty plea with the assistance of counsel “may not thereafter raise independent
claims relating to the deprivation of constitutional rights that occurred prior to the entry
of the guilty plea.’””), quoting State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167,
810 N.E.2d 927, ¶ 78, quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36
L.Ed.2d 235 (1973).
As noted above, however, the trial court did not comply with Crim.R. 11(C)(2)(c)
when accepting J.R.’s guilty pleas. As such, J.R.’s guilty pleas were not valid. Thus, even
if the alleged constitutional error in this case were otherwise waivable, J.R.’s guilty pleas
would not preclude her from raising the issue here.
an adult.” In re M.P., 124 Ohio St.3d 445, 2010-Ohio-599, 923 N.E.2d 584, ¶ 11,
citing R.C. 2151.23(A); Mays at ¶ 17.
Under certain circumstances, however, the juvenile court may
transfer a case, or bind a juvenile over, to the adult criminal system where the
juvenile may be tried as an adult and face criminal sanctions. R.C. 2152.10; 2152.12;
In re M.P. at ¶ 11. There are two types of transfers under Ohio’s juvenile justice
system — mandatory transfers and discretionary transfers. State v. D.W., 133 Ohio
St.3d 434, 2012-Ohio-4544, 978 N.E.2d 894, ¶ 10. As stated above, this case
involves a discretionary transfer.
A “‘[d]iscretionary transfer * * * allows judges the discretion to
transfer or bind over to adult court certain juveniles who do not appear to be
amenable to care or rehabilitation within the juvenile system or appear to be a threat
to public safety.”’ Id., quoting State v. Hanning, 89 Ohio St.3d 86, 728 N.E.2d 1059(2000); R.C. 2152.12(B). Where a complaint is filed alleging that a child is
delinquent for committing an act that would be a felony if committed by an adult,
the juvenile court may transfer the case to the General Division if the juvenile court
finds (1) the child was 14 years of age or older at the time of the act charged; (2) there
is probable cause to believe that 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 that the child be subject to adult sanctions.
R.C. 2152.10(B); 2152.12(B).
If the first two elements are met, the juvenile court must continue the
proceedings for 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); Juv.R.
30(C). Once that investigation is complete, the juvenile court holds an amenability
hearing to determine whether the child is “amenable to care or rehabilitation within
the juvenile system” or whether “the safety of the community may require that the
child be subject to adult sanctions.” R.C. 2152.12(B)(3); Juv.R. 30(C). In making
this determination, the juvenile court must consider all relevant factors, including
17 factors specified in R.C. 2152.12(D) and (E) that weigh in favor of or against a
transfer. R.C. 2152.12(B)(3), (C)-(E); Juv.R. 30(C). ‘“Absent a proper bindover
procedure * * *, the juvenile court has the exclusive subject-matter jurisdiction over
any case concerning a child who is alleged to be a delinquent.’” State v. Smith, Slip
Opinion No. 2022-Ohio-274, ¶ 41, quoting State v. Wilson, 73 Ohio St.3d 40, 652
N.E.2d 196 (1995), paragraph one of the syllabus. That jurisdiction cannot be
waived. Wilson at paragraph two of the syllabus. A conviction rendered by a court
lacking subject-matter jurisdiction is void. State v. Harper, 160 Ohio St.3d 480,
2020-Ohio-2913, 159 N.E.3d 248, ¶ 22 (“‘[A] judgment of conviction is void if
rendered by a court having either no jurisdiction over the person of the defendant
or no jurisdiction of the subject matter, i.e., jurisdiction to try the defendant for the
crime for which he was convicted.’”), quoting State v. Perry, 10 Ohio St.2d 175, 178,
226 N.E.2d 104 (1967).
A Juvenile’s Right to Counsel During Bindover Proceedings
Because of the “tremendous consequences” following a decision that
a child must lose the protections of the juvenile system and face trial as an adult, a
bindover proceeding — a “critically important” stage in juvenile proceedings — must
“measure up to the essentials of due process and fair treatment.” Kent v. United
States, 383 U.S. 541, 553-554, 556, 560-562, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966)
(There must be “procedural regularity” in a bindover proceeding “sufficient in the
particular circumstances to satisfy the basic requirements of due process and
fairness.”); see also In re D.M., 140 Ohio St.3d 309, 2014-Ohio-3628, 18 N.E.3d 404,
¶ 11.
This “due process and fair treatment” includes the right of an accused
juvenile to the assistance of counsel. See, e.g., Kent at 561-562 (A juvenile’s right to
counsel in a bindover proceeding “is not a formality” or “a grudging gesture to a
ritualistic requirement”; “[i]t is of the essence of justice.”); see also In re Gault, 387
U.S. 1, 36, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (a juvenile facing commitment to an
institution has a right to counsel “‘at every step in the proceedings against him’”;
“[t]he juvenile needs the assistance of counsel to cope with problems of law, to make
skilled inquiry into the facts, to insist upon regularity of the proceedings, and to
ascertain whether he has a defense and to prepare and submit it”), quoting Powell
v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158 (1932); In re C.S., 115 Ohio
St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 78 (a juvenile’s right to counsel in
juvenile court proceedings “is a venerable right at the core of the administration of
justice and due process”). ‘“[T]he right to counsel is the right to the effective
assistance of counsel.’” In re C.S. at ¶ 93, quoting McMann v. Richardson, 397 U.S.
759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), fn. 4.6
Per Se Ineffective Assistance of Counsel
Generally, to establish a violation of the right to counsel, the
represented individual must show that (1) counsel’s performance fell below an
objective standard of reasonable representation and (2) counsel’s errors prejudiced
the individual, i.e., a reasonable probability that but for counsel’s errors, the
outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687-
688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d
136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. Although this
test originated in context of criminal proceedings, courts have applied the
Strickland test in determining whether a juvenile was denied the effective assistance
of counsel in juvenile proceedings as well. See, e.g., In re J.T., 2017-Ohio-7723, 85
6 Although it appears that Brooks was privately retained by J.R. rather than
appointed by the court, this distinction does not alter J.R.’s constitutional right to
effective assistance of counsel. Cf. Solina v. United States, 709 F.2d 160, 165 (2d
Cir.1983) (‘“A proper respect for the Sixth Amendment disarms petitioner’s contention
that defendants who retain their own lawyers are entitled to less protection than
defendants for whom the State appoints counsel * * *. The vital guarantee of the Sixth
Amendment would stand for little if the often uninformed decision to retain a particular
lawyer could reduce or forfeit the defendant’s entitlement to constitutional protection.
* * * [W]e see no basis for drawing a distinction between retained and appointed counsel
that would deny equal justice to defendants who must choose their own lawyers.”’),
quoting Cuyler v. Sullivan, 446 U.S. 335, 344-345, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).
N.E.3d 763, ¶ 36 (8th Dist.); State v. Johnson, 2015-Ohio-96, 27 N.E.3d 9, ¶ 51 (8th
Dist.).
In United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d
657 (1984), the United States Supreme Court recognized a “narrow exception” to the
Strickland requirements when considering whether a criminal defendant was
denied his or her right to counsel under the Sixth Amendment. See State v. Lucas,
2020-Ohio-1602, 154 N.E.3d 262, ¶ 36 (8th Dist.). The court held that there are
certain circumstances “that are so likely to prejudice the accused that the cost of
litigating their effect in a particular case is unjustified,” such that ineffectiveness and
prejudice are presumed and a denial of an accused’s Sixth Amendment right to
counsel is found “without inquiry into the actual conduct” of the proceedings.7
7
In so holding, the United States Supreme Court distinguished and rejected “an
inferential approach” utilized by the Tenth Circuit Court of Appeals in determining that
the defendant’s constitutional right to the effective assistance of counsel had been
violated. In reversing the defendant’s conviction, the Tenth Circuit had inferred that the
defendant’s constitutional right to the effective assistance of counsel had been violated
based on its evaluation of five criteria: (1) the time afforded for investigation and
preparation, (2) the experience of counsel, (3) the gravity of the charge, (4) the complexity
of possible defenses and (5) the accessibility of witnesses to counsel. Cronic at 652-653.
The United States Supreme Court held that the Tenth Circuit had erred in using this
approach, noting that although these five factors “are relevant to an evaluation of a
lawyer’s effectiveness in a particular case,” “neither separately nor in combination do they
provide a basis for concluding that competent counsel was not able to provide [the
defendant] with the guiding hand that the Constitution guarantees.” Id. at 662-663. The
Court further held that “only when surrounding circumstances justify a presumption of
ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel’s
actual performance at trial,” that that case was “not one in which the surrounding
circumstances [made] it unlikely that the defendant could have received the effective
assistance of counsel” and that the defendant could, therefore, “make out a claim of
ineffective assistance only by pointing to specific errors made by trial counsel.” Id. at 662,
666.
Cronic at 658-660. These circumstances include (1) the complete denial of counsel,
i.e., such as where counsel is “totally absent, or prevented from assisting the accused
during a critical stage of the proceeding,” (2) circumstances where counsel “entirely
fails” to subject the state’s case to “meaningful adversarial testing,” (3)
circumstances where counsel “actively represented conflicting interests” and (4)
circumstances where “although counsel is available to assist the accused,” “the
likelihood that any lawyer, even a fully competent one, could provide effective
assistance is so small that a presumption of prejudice is appropriate.” Id. at 658-
660 and fn. 25, 28; see also Strickland at 692 (“Actual or constructive denial of the
assistance of counsel altogether is legally presumed to result in prejudice.”). J.R.
contends that this is such a case, i.e., that representation by an attorney with a
suspended license is a per se violation of an accused’s constitutional right to counsel.
J.R. argues that because Brooks “did not rise to the level of counsel contemplated by
the Supreme Court of Ohio’s standards for an attorney,” “nobody filled the role of
the attorney contemplated by the Sixth Amendment”8 for J.R. during the bindover
proceedings and that, due to this “structural error,” J.R. was not required to show
specific attorney errors or prejudice from Brooks’ representation in order to
8 Although J.R. asserts that her constitutional right to counsel under both the
United States and Ohio Constitutions were violated, she specifically addresses only “the
Sixth Amendment violation in [her] case” in her argument. As discussed in greater detail
below, we analyze J.R.’s right to the effective assistance of counsel through the lens of due
process. However, because J.R. does not claim that she was entitled to greater protection
or was afforded broader rights under the Ohio Constitution, we do not separately analyze
J.R.’s rights under the United States and Ohio Constitutions here.
establish a violation of her constitutional right to the effective assistance of counsel.
See Lucas at ¶ 33-43 (discussing structural error in the context of the Sixth
Amendment right to counsel).9
The state responds that there is no legal basis for applying a per se
rule that representation by an attorney with a suspended license violates a juvenile’s
constitutional right to counsel. The state further asserts that J.R. has not shown that
she was denied her right to the effective assistance of counsel because she was
“represented by licensed attorneys from the moment her case was bound over to the
General Division, through multiple pretrials, plea negotiations, change of plea, and
sentencing” and because she has not shown that “Brooks’ actions” during the
9 In Lucas, the appellant claimed that he was denied the right to counsel under the
Sixth Amendment and Cronic due to counsel’s animus towards and bias against him.
2020-Ohio-1602, 154 N.E.3d 262, at ¶ 33-52. This court held that the appellant was not
denied his right to counsel, that appellant’s reliance on Cronic was misplaced and that a
structural-error analysis was inapplicable where appellant’s counsel was present,
participated in the trial, cross-examined the state’s witnesses and did not fail to attempt
to test the state’s case. Id. at ¶ 37. The court explained:
Structural error, such as the absence of counsel for a criminal
defendant, is characterized by the “entire conduct of the trial from beginning
to end [being] obviously affected[.]” Arizona v. Fulminante, 499 U.S. 279,
309-310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). The total deprivation of the
right to counsel at trial is a constitutional deprivation and structural defect
that affects “the framework within which the trial proceeds, rather than
simply an error in the trial process itself.” Id. at 310. Structural error is said
to infect the entire trial process. Neder v. United States, 527 U.S. 1, 8, 119
S.Ct. 1827, 144 L.Ed.2d 35 (1999).
Appellant was not totally deprived of his right to counsel throughout
the entire trial. Nor do we find that counsel’s alleged pretrial statement
infected the entire trial process.
Lucas at ¶ 38-39.
bindover proceedings fell below an objective standard of reasonable representation
or prejudiced J.R. under the Strickland test.
In support of her argument, J.R. cites this court’s decision in State v.
Newcome, 62 Ohio App.3d 619, 577 N.E.2d 125 (8th Dist.1989). In Newcome, the
defendant filed a postsentence motion to withdraw his guilty pleas to four counts of
sexual battery, arguing that he was denied the effective assistance of counsel because
his defense counsel was under suspension10 at the time he entered his guilty pleas.
Id. at 620. This court held that the “[d]efendant did not receive his constitutional
right to the assistance of counsel at the time he pled guilty because he was
represented by counsel who was suspended from the practice of law” and that,
therefore, the defendant had “met his burden of establishing the existence of
manifest injustice” to warrant the postsentence withdrawal of his guilty pleas. Id.
Newcome, however, was a conceded error case. The state agreed that,
under the circumstances of that case, the defendant “should have the opportunity to
withdraw his plea.” Id. Because the state had conceded the error, the court’s
discussion of the issue was brief. The panel did not provide any analysis of the issue
or cite to any legal authority in support of its determination that the “[d]efendant
did not receive his constitutional right to the assistance of counsel at the time he
pled guilty because he was represented by counsel who was suspended from the
practice of law.” Id.
10There are very limited facts set forth in the Newcome decision. Accordingly, it
is unknown what led to defense counsel’s suspension in that case.
In support of its argument, the state cites this court’s decision in State
v. Allen, 121 Ohio App.3d 666, 700 N.E.2d 682 (8th Dist.1997). In Allen, Allen filed
a petition for postconviction relief, arguing that he was denied his right to effective
assistance of counsel at the preliminary hearing because, unbeknownst to him,
Thomas McMahon, the attorney who had been appointed to represent him at the
preliminary hearing (and who had advised him to waive his right to a preliminary
hearing), had been suspended from the practice law in Ohio at the time he
represented Allen. Id. at 667-668. Allen claimed that he had relied upon
McMahon’s advice to waive the preliminary hearing despite knowing that his
nephew had confessed to the charges at issue and that a preliminary hearing might
have caused the police to further investigate the case. Id. at 668. Following his
direct appeal, Allen learned that McMahon had been indefinitely suspended from
the practice of law before he was appointed to represent him at the preliminary
hearing. McMahon had received a public reprimand resulting from neglect of an
unrelated legal matter. When McMahon failed to pay ordered costs, the Ohio
Supreme Court found him in contempt and granted him ten days within which to
purge the contempt. When McMahon failed to purge the contempt, the Ohio
Supreme Court ordered his indefinite suspension. Id.
In Allen, which was decided after Newcome, the panel affirmed the
trial court’s denial of the petition for postconviction relief and “decline[d] to impose
a per se rule that would vitiate the results of a criminal trial in the absence of
demonstrated error and prejudice resulting from the suspended attorney’s
representation” where the “only purported act of legal representation” by the
suspended attorney “consisted of advising a petitioner that he should waive the right
to a preliminary hearing.” Id. at 667-668. The court held that although “McMahon’s
suspension from the practice of law prevented him from representing petitioner in
the capacity as an ‘attorney’ at the preliminary hearing,” his suspension did “not
necessarily suggest a per se rule that petitioner lacked ‘counsel’ in a way that would
void his conviction.” Id. at 669.
In reaching its decision, this court distinguished Newcome as follows:
Violations of the Sixth Amendment right to counsel do not
necessarily require per se reversals of convictions. In State v. Bonnell,
61 Ohio St.3d 179, 573 N.E.2d 1082 (1991), the supreme court rejected
the imposition of a per se rule for Sixth Amendment violations
occurring at arraignment and held that the accused “must demonstrate
that he was prejudiced by the absence of counsel at the arraignment.”
Id. at 182; see, also, State v. Evans, 63 Ohio St. 3d 231, 250, 586 N.E.2d
1042 (1992).
Petitioner cites to our holding in State v. Newcome as reflecting
our adoption of a per se rule relating to Sixth Amendment violations,
but the issue in Newcome was whether the trial court abused its
discretion by refusing to permit Newcome to withdraw his guilty plea
after the parties learned that Newcome’s attorney had been under
suspension at the time. With the state agreeing that Newcome should
have been permitted to withdraw his guilty plea, we held that Newcome
demonstrated manifest injustice sufficient to permit the plea
withdrawal. 62 Ohio App.3d at 620. In reaching this conclusion, we
stated, “Defendant did not receive his constitutional right to the
assistance of counsel at the time he pled guilty because he was
represented by an attorney who was suspended from the practice of
law.” Id.
The quoted portion of Newcome should not be read as imposing
a per se rule. Because the state conceded the issue on appeal, we had
no occasion to engage in any analysis on the right to counsel issue.
Moreover, as the trial court noted, the violation in Newcome
culminated with an uncounseled guilty plea, the ultimate act in a
criminal case. The extent of petitioner’s lack of representation in this
case, however, consisted only of waiving the right to a preliminary
hearing. As a practical matter, waiving the preliminary hearing simply
bound the matter over to the grand jury, which found probable cause
to return an indictment. The trial court appointed different counsel to
represent Petitioner at his arraignment in the court of common pleas,
and petitioner’s Sixth Amendment rights were preserved throughout
the trial.
Allen at 669-670.
The court further noted that its “position,” i.e., rejecting a per se rule
that representation by a suspended attorney violates a defendant’s Sixth
Amendment right to counsel, was “consistent with federal court decisions
construing alleged per se violations of the Sixth Amendment”:
Per se violations of the right to counsel have only been found to arise in
one of two limited circumstances: (1) counsel was not, at the time of
the accused’s trial, duly licensed to practice law because of a failure ever
to meet the substantive requirements to practice law or (2) the attorney
is implicated in the accused’s crimes. See Bellamy v. Codgell, 974 F.2d
302, 306 (2d Cir.1992); Vance v. Lehman, 64 F.3d 119, 122 (3d
Cir.1995). As to the first criteria (which is applicable to the issue raised
in this appeal), the “constitutional question is whether the court has
satisfied itself of the advocate’s competence and authorized him to
practice law.” Reese v. Peters, 926 F.2d 668, 670 (7th Cir.1991).
Allen at 670-671.
The court held that McMahon’s suspension “did not implicate his
qualifications ‘ever’ to meet the substantive qualifications to practice law in the state
of Ohio,” that his “admission to the bar necessarily indicated either that he passed
the Ohio bar examination or was approved for admission without examination by
virtue of admission to the bar of another state” and that “having gained proper
admission to the bar,” McMahon’s suspension “does not suggest a per se violation
of the right to counsel.” Id. at 671.
The court found that the defendant had failed to show any prejudice
resulting from McMahon’s advice to waive the preliminary hearing, noting that
“[g]iven the compelling evidence that suggested probable cause to issue an
indictment,” it could not say that “the result would have been different” if the
defendant had been appointed “fully licensed counsel” and had not waived the
preliminary hearing. Id. at 670, 672. Because the defendant had failed to show “a
constitutional error in the proceedings below,” the court affirmed the trial court’s
denial of the defendant’s petition for postconviction relief. Id.; see also State v.
Jordan, 5th Dist. Muskingum No. CT2003-0029, 2005-Ohio-6064, ¶ 43 (where
defendant’s trial counsel was suspended from the practice of law on the second day
of trial but word of the suspension had not “reached the trial judge or anyone in the
courtroom on that day,” court did not find “the existence of a per se violation” of
defendant’s rights “based solely on defense counsel’s suspension”).
In the context of criminal proceedings, courts have consistently
recognized that “a layman masquerading as an attorney,” i.e., a person who has
never been properly licensed to practice law in any jurisdiction, or who obtained
admission to the bar by fraudulent means, cannot be considered “counsel” under
the Sixth Amendment regardless of the legal skill exercised. Representation of a
defendant by such an “attorney” is generally to be a per se violation of the
defendant’s Sixth Amendment right to counsel, without the need to establish
Strickland’s requirements. See, e.g., Solina, 709 F.2d at 161, 166-169 (2d Cir.1983);
United States v. Novak, 903 F.2d 883 (2d Cir.1990); Huckelbury v. State, 337 So.2d
400, 402-403 (Fla.App.1976); People v. Felder, 47 N.Y.2d 287, 291, 293, 418
N.Y.S.2d 295, 391 N.E.2d 1274 (1979); see also Annotation, Criminal Defendant’s
Representation by Person Not Licensed to Practice Law as Violation of Right to
Counsel, 19 A.L.R.5th 351 (1994).
Some courts have held that “a per se rule of ineffectiveness” is
warranted only where counsel has never been admitted to practice in any
jurisdiction. See, e.g., United States v. Mitchell, 216 F.3d 1126, 1132 (D.C.Cir.2000)
(declining “to extend the per se ineffectiveness rule beyond those cases in which a
defendant is represented by a person never properly admitted to any bar” and
holding that “the fact of suspension does not, by itself, render counsel ineffective
under the Sixth Amendment”); United States v. Watson, 479 F.3d 607, 611 (8th
Cir.2007) (declining “to extend a per se ineffective assistance of counsel rule to cases
where the defendant was represented by a trained and qualified attorney, albeit one
with licensing problems”); see also Elfgeeh v. United States, 681 F.3d 89, 93 (2d
Cir.2012) (extending the “per se ineffectiveness rule” to representation by an
individual, who prior to the representation in question, had been disbarred in all
jurisdictions in which he or she had once been admitted).
Other courts have also distinguished between “technical” licensing
defects or “administrative” suspensions and “serious” or “substantive” violations in
considering whether representation by a suspended or unlicensed attorney is a per
se violation of an accused’s right to counsel under the Sixth Amendment. See, e.g.,
Solina, 709 F.2d at 167; Novak, 903 F.2d at 888-890; see also People v. Gamino,
362 Ill. Dec. 605, 2012 IL App (1st) 101077, 973 N.E.2d 1001, ¶ 21-22 (2012) (“a
criminal defendant who is unknowingly represented by an individual who has been
disbarred or suspended from the practice of law for any reason relating to lack of
legal ability or moral character suffers a per se violation of his sixth amendment right
to effective assistance of counsel”); Grant, 2010 PA Super 45, 992 A.2d 152, at ¶ 19-
20 (“We reject the * * * distinction between administrative and substantive
discipline. Courts have consistently distinguished between technical licensing
defects and serious violations of bar regulations reflecting an incompetence to
practice law. Where the attorney’s license has been suspended or his/her credentials
to practice have otherwise been impaired as a result of mere technical defects, the
constitutional right to counsel is not violated and prejudice is not presumed. Where
the attorney’s license has been suspended or he/she has been disbarred for
substantive violations, constitutional rights are violated and harm is presumed.”).
But see People v. Pubrat, 451 Mich. 589, 597, 548 N.W.2d 595 (1996) (“The
dispositive issue is the attorney’s effectiveness as counsel, rather than the
nomenclature used to describe the disciplinary proceedings. Either administrative
or substantive discipline may reflect on an attorney’s professional competency, and
either may also reflect shortcomings that are purely personal. * * * [A]dministrative
discipline may reflect on an attorney’s fitness to practice law, while substantive
discipline will not always demonstrate professional incompetence.”); see also People
v. Kenny, 30 P.3d 734, 742-744 (Colo.App. 2000) (rejecting a per se rule of
ineffectiveness where properly licensed attorneys have been suspended or disbarred
and “the technical/substantive distinction” and holding that “if an attorney is less
than fully licensed, the Sixth Amendment’s concerns are best satisfied by applying a
case-by-case approach”); Cantu v. State, 930 S.W.2d 594, 601-603
(Tex.Crim.App.1996) (applying a “case-by-case approach” in holding that a
suspended attorney “is incompetent as a matter of law if the reasons for the
discipline imposed reflect so poorly upon the attorney’s competence that it may
reasonably be inferred that the attorney was incompetent to represent the defendant
in the proceeding in question” and identifying seven noninclusive factors to consider
in determining whether a suspended attorney is “incompetent as a matter of law”).11
Most courts that have considered the issue have, however, held that
representation by a once properly licensed attorney who was suspended for the
nonpayment of registration fees or bar dues does not, in and of itself, constitute a
per se violation of a defendant’s Sixth Amendment right to counsel. See, e.g., Beto
v. Barfield, 391 F.2d 275 (5th Cir.1968); Reese, 926 F.2d at 669-670; United States
v. Dumas, 796 F. Supp. 42, 45-46 (D.Mass.1992); People v. Medler, 177 Cal. App.3d
927, 223 Cal. Rptr. 401 (1986); Dolan v. State, 469 So.2d 142 (Fla.App.1985);
Cornwell v. Dodd, 270 Ga. 411, 412, 509 S.E.2d 919 (1999); People v. Brigham, 151
11In Kenny and Cantu, the courts stated that this inquiry is “totally separate” from
the traditional Strickland analysis because, “if trial counsel is found to be incompetent as
a matter of law,” there would be no need to inquire into attorney errors or prejudice.
Kenny at 744; Cantu at 602-603 and fn. 8.
Ill.2d 58, 63-64, 600 N.E.2d 1178 (1992); Johnson v. State, 225 Kan. 458, 590 P.2d
1082 (1979); Jones v. State, 747 S.W.2d 651, 654-655 (Mo.App.1988); State v.
Vanderpool, 286 Neb. 111, 124, 835 N.W.2d 52 (2013); New Jersey v. Green, 274
N.J. Super. 15, 643 A.2d 18 (N.J.App.1994); People v. Kieser, 79 N.Y.2d 936, 1175,
582 N.Y.S.2d 988, 591 N.E.2d 1174 (1992); Commonwealth v. Bretz, 2003 PA Super
298, 830 A.2d 1273; Hill v. State, 393 S.W.2d 901 (Tex.Crim.App.1965). But see
People v. Brewer, 88 Mich.App. 756, 761-762, 279 N.W.2d 307 (1979) (although
recognizing that the alleged suspension of defendant’s attorney for failure to pay his
bar dues did not make out a per se case of ineffective assistance of counsel,
remanding for an evidentiary hearing to determine whether the allegations were
correct and whether the defendant had received inadequate assistance of counsel
due to “the implications, in terms of quality of representation, arising out of
counsel’s having neglected to pay his annual dues”).
In concluding that an attorney suspended for failure to pay
registration fees or bar dues could still constitute “counsel” for Sixth Amendment
purposes, some courts have looked to the historic meaning of “counsel” and the fact
that licensing of attorneys has not always been a prerequisite for the practice of law.
In Reese, for example, the defendant’s attorney had been suspended from the
practice of law in Illinois after failing to pay his bar dues before he represented the
defendant at trial in an Illinois court. 926 F.2d at 669. The defendant argued that
his attorney’s suspension was an “automatic violation” of the Sixth Amendment
because he had no “assistance of counsel” at trial. Id. The Seventh Circuit disagreed
and held that the suspended attorney could still meet the requirements of “counsel”
for Sixth Amendment purposes, maintaining that it was akin to an attorney who is
admitted to practice pro hac vice in a case:
Reese asks us to equate the “Counsel” to which the sixth amendment
refers with “member of the bar in good standing” in modern parlance.
* * * Reese’s representative at trial, was not authorized to practice law.
He had neglected to pay his dues, and the state had suspended his
license. * * * Although [Reese’s attorney] eventually paid the dues and
penalties and was reinstated to the bar, * * * nothing we could find in
Illinois law makes the reinstatement retroactive. * * * That means,
Reese submits, that he had no “Assistance of Counsel for his defence”
within the meaning of the Constitution.
***
“Counsel” in 1791 meant a person deemed by the court fit to act as
another’s legal representative and inscribed on the list of attorneys. See
Section 35 of the Judiciary Act of 1789. There were no bar exams, no
unified bars, no annual dues, no formal qualifications. Although there
were a handful of law schools, none was accredited by the ABA (there
was no ABA), and few students completed the program. * * * Would-be
lawyers earned the right to practice through apprenticeship, appearing
in court under the tutelage of a practitioner until they satisfied the
presiding judge that they could handle cases independently. Part of
that tradition survives in the practice of admission pro hac vice. Courts
grant motions allowing representation by persons who do not belong
to their bars. Usually the person admitted pro hac vice belongs to some
bar, but it may be the bar of a distant state or a foreign nation. The
enduring practice of admission pro hac vice demonstrates that there is
no one-to-one correspondence between “Counsel” and membership in
the local bar.
The constitutional question is whether the court has satisfied itself of
the advocate’s competence and authorized him to practice law. * * *
Lawyers who do not pay their dues violate a legal norm, but not one
established for the protection of clients; suspensions used to wring
money from lawyers’ pockets do not stem from any doubt about their
ability to furnish zealous and effective assistance. [Reese’s counsel]
may well have belonged to the bar of a federal district court in 1980,
and his failure to pay his state dues would not have produced automatic
suspension from the federal bar. * * *
It would make no sense to say that [Reese’s counsel] could furnish
“Counsel” in 1980 in a federal prosecution, to which the sixth
amendment applies directly, but not in a state prosecution, to which
the sixth amendment applies only by its absorption through the due
process clause of the fourteenth. * * * [A] lawyer whose license had
been suspended for failure to pay dues still may be “Counsel.” * * *
What matters for constitutional purposes is that the legal
representative was enrolled after the court concluded that he was fit to
render legal assistance. [Reese’s counsel] satisfies that standard.
Reese at 669-670.
Other courts have reasoned that representation by a suspended
attorney does not per se violate the Sixth Amendment because an attorney’s failure
to pay bar dues has “nothing to do” with the attorney’s competence, legal ability or
skill. As the Kansas Supreme Court explained in Johnson, 225 Kan. at 465, 590 P.2d
1082:
In spite of his suspension, we cannot say as a matter of law that
[defense counsel] was unable to represent effectively the [defendant]
during the period of his suspension. Although the payment of the
registration fee is a prerequisite to the ethical practice of law in this
state, the payment itself has nothing to do with the legal ability of the
attorney. Just as the payment of the fee does not guarantee that an
attorney will practice law in a competent manner, the nonpayment of
the fee does not necessarily imply that the nonpaying attorney will
perform in an incompetent manner. In each instance, we must
examine the actual representation afforded the accused person. In so
doing, this court is obligated to * * * look to the substance of the
representation in discerning the competency or incompetency of the
representation by the attorney.
Id. at 465; see also Jones, 747 S.W.2d at 655; Hill, 393 S.W.2d at 904;
Vanderpool at 123. But see Brewer, 88 Mich. App. at 762, 279 N.W.2d 307(recognizing that “the failure of an attorney to remit his state bar dues is
strong evidence that such attorney is no longer sufficiently interested in the
practice of law to adequately defend his client’s interests”).
Juvenile’s Right to Counsel as an Element of Due Process
In resolving the issue presented in this case, we are mindful of the
source and context of the right at stake. At issue here is whether J.R., a juvenile, was
denied her right to the assistance of counsel when she was represented by Brooks
during the juvenile court bindover proceedings. As such, we believe “[o]ur analysis
here must be placed in the context of the juvenile courts, which occupy a unique
place in our legal system.” In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874
N.E.2d 1177, at ¶ 65.
Whereas a criminal defendant’s right to counsel emanates from the
Sixth Amendment, a juvenile’s constitutional right to counsel in juvenile court
proceedings ‘“flows to the juvenile through the Due Process Clause of the Fourteenth
Amendment, not the Sixth Amendment.”’12 State v. Bode, 144 Ohio St.3d 155, 2015-
Ohio-1519, 41 N.E.3d 1156, ¶ 15, 19 (noting that because “juvenile proceedings are
civil,” “juvenile rights to counsel” in those proceedings “arise under the
constitutional protection of due process”), quoting In re C.S. at ¶ 79; see also State
12We are aware that, at times, this court and others have conflated the two, noting
that an accused juvenile has “the same rights” to effective assistance of counsel as an adult
criminal defendant under the Sixth Amendment. In the particular circumstances of this
case, however, we believe it is important to highlight and consider the source of a
juvenile’s constitutional right to the assistance of counsel.
v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 23 (“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.”).13 The Ohio Supreme Court explained the significance of this
distinction in In re C.S. as follows:
Because the juvenile’s right to counsel is predicated on due
process, it is malleable rather than rigid. * * * “For all its consequence,
‘due process’ has never been, and perhaps can never be, precisely
defined. * * * [D]ue process ‘is not a technical conception with a fixed
content unrelated to time, place and circumstances.’ [Cafeteria &
Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 81 S.Ct.
1743, 6 L.Ed.2d 1230 (1961)]. Rather, the phrase expresses the
requirement of ‘fundamental fairness,’ a requirement whose meaning
can be as opaque as its importance is lofty. Applying the Due Process
Clause is therefore an uncertain enterprise which must discover what
‘fundamental fairness’ consists of in a particular situation by first
considering any relevant precedents and then by assessing the several
interests that are at stake.” Lassiter v. Dept. of Social Servs. of Durham
Cty., North Carolina, 452 U.S. 18, 24-25, 101 S.Ct. 2153, 68 L.Ed.2d
640 (1981).
The flexibility of due process lies in its scope after it has been
determined that some process is due, and due process doctrine
recognizes that “not all situations calling for procedural safeguards call
for the same kind of procedure.” Morrissey v. Brewer, 408 U.S. 471,
481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). A court’s task is to ascertain
what process is due in a given case, * * * while being true to the core
concept of due process in a juvenile case — to ensure orderliness and
fairness. * * *
13 The General Assembly has acknowledged the importance of counsel in juvenile
proceedings by codifying a juvenile’s right to counsel in R.C. 2151.352. R.C. 2151.352
provides, in relevant part, that “[a] child * * * is entitled to representation by legal counsel
at all stages of the proceedings under * * * Chapter 2152. of the Revised Code.” Juv.R.
4(A) also states, in relevant part: “Every party shall have the right to be represented by
counsel and every child, * * * the right to appointed counsel if indigent. These rights shall
arise when a person becomes a party to a juvenile court proceeding.”
The fact that the right to counsel in a juvenile case arises from
due process does not diminish its importance. A juvenile typically lacks
sufficient maturity and good judgment to make good decisions
consistently and sufficiently foresee the consequences of his actions.
* * * Thus, “[t]he juvenile needs the assistance of counsel to cope with
problems of law, to make skilled inquiry into the facts, to insist upon
regularity of the proceedings and to ascertain whether he has a defense
and to prepare and submit it.” (Footnote omitted.) Gault, 387 U.S. at
36, 87 S.Ct. 1428, 18 L.Ed.2d 527.
In re C.S. at ¶ 80-82.
Applying these principles and considering the totality of the
circumstances surrounding Brooks’ representation of J.R. in this case, including the
reason for and duration of Brooks’ suspension, the context, scope and duration of
Brooks’ representation of J.R. and other factors relevant to Brooks’ effective
representation of J.R., we find that J.R. was denied her constitutional right to the
assistance of counsel under the United States and Ohio Constitutions when she was
represented by Brooks during the bindover proceedings.
The state attempts to downplay the significance of Brooks’ role and
suspension in this case. The state asserts that there was no denial of J.R.’s right to
counsel because (1) the probable cause and amenability hearings at which Brooks
represented J.R. were “preliminary” and “non-adjudicatory,” (2) Brooks’ suspension
was simply due to “failure to pay his fees” and (3) “Brooks did not fail to ever meet
the substantive requirements [for practicing law in Ohio] because he was at one time
a properly licensed attorney authorized to practice law.” We disagree.
Few, if any, determinations are more significant in the life of an
accused juvenile offender than whether the accused juvenile offender will be tried in
an adult court. See, e.g., Smith, Slip Opinion No. 2022-Ohio-274, at ¶ 21 (‘“The
transfer hearing implicates far more significant issues than the venue or forum of
trial; it serves as a vehicle by which a child offender is deprived of the rehabilitation
and treatment potential of the juvenile-justice system.’”), quoting State v. Aalim,
150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 73 (O’Connor, C.J.,
dissenting); Kent, 383 U.S. at 553-554, 556, 560-562, 86 S.Ct. 1045, 16 L.Ed.2d 84.
As such, a juvenile bindover proceeding is much more akin to the “ultimate act in a
criminal case” in Newcome than the preliminary hearing in Allen.
Indeed, although “[o]ther rights of a child may be waived with
permission of the court,” this state recognizes that representation by counsel at a
bindover proceeding is so important that it cannot be waived. Juv.R. 3(A)(1), (E)
(“A child’s right to be represented by counsel may not be waived * * * at a hearing
conducted pursuant to Juv.R. 30.”); Staff Note to 7-1-94 Amendment to Juv.R. 3
(“Juv.R. 3 now makes specific reference to bindover proceedings delineated in
Juv.R. 30 to remind the court and practitioners that a juvenile cannot waive counsel
at any stage of the bindover procedure.”); State v. D.W., 133 Ohio St.3d 434, 2012-
Ohio-4544, 978 N.E.2d 894, ¶ 36 (“[T]he child’s right to counsel is required by
Juv.R. 3, which provides that a child may not waive the right to be represented by
counsel at a transfer hearing conducted pursuant to Juv.R. 30.”).
At the time Brooks entered his appearance for J.R. in March 2020, he
had been under suspension from the practice of law in Ohio for more than four
months for his failure to comply with Gov.Bar R. VI and had failed to comply with
his Ohio continuing legal education requirements for more than five years.
This state’s registration and continuing legal education requirements
are not unduly burdensome. Active attorneys must file a certificate of registration
with the Office of Attorney Services of the Supreme Court and pay a $350
registration fee on or before the first day of September in each odd-numbered year.
Gov.Bar R. VI(2)(A). They must also complete 24 hours of accredited continuing
legal education activities, including two-and-a-half hours of instruction on topics
related to professional conduct, every two years. Gov.Bar R. X(3).
There is nothing in the record to suggest that Brooks’ suspension for
failure to comply with the Ohio Supreme Court’s biennial registration requirements
was due to mere oversight. Brooks was not immediately suspended after he failed
to timely submit his form and fee. He was suspended from the practice of law in
Ohio only after (1) he had not registered for the 2019/2021 attorney-registration
biennium by the September 1, 2019 deadline, (2) he was sent notice of his
noncompliance and informing him that he would be summarily suspended from the
practice of law in Ohio and not entitled to practice law in Ohio unless he filed
evidence of compliance with the requirements of Gov.Bar R. VI or came into
compliance within 60 days of the deadline and (3) he failed to file evidence of
compliance with Gov.Bar R. VI or to come into compliance with the rule within 60
days of the deadline. Gov.Bar R. VI(10)(B); 11/05/2019 Administrative Actions,
2019-Ohio-4529.
Pursuant to Gov.Bar R. VI(10)(D), an attorney who is summarily
suspended for failure to comply with the registration requirements “may be
reinstated to the practice of law by applying for reinstatement with the Office of
Attorney Services, complying with the requirements of [Gov.Bar R. VI(2)], including
payment of the applicable registration fee, and paying a reinstatement fee of three
hundred dollars.” However, this is not a situation where, upon learning of his
suspension, Brooks promptly complied with Gov.Bar VI, paid his fees and was
reinstated. To date, Brooks has never been reinstated.
Pursuant to Gov.Bar R. VI(10)(C), an attorney who is summarily
suspended pursuant to Gov.Bar R. VI(10)(B) “shall not,” among other things,
“[p]ractice law in Ohio,” “[h]old the attorney’s self out as authorized to practice law
in Ohio” or “[p]ractice before any nonfederal court or agency in this state on behalf
of any person except the attorney’s self” — all of which Brooks did here. There is
nothing in the record to suggest that Brooks had advised J.R. or her family that he
was suspended from practicing law in Ohio during the time of his representation.
By all accounts, although Brooks was aware of his suspension, J.R., the state and the
trial court were unaware of his suspension until December 2021, during the
pendency of this appeal. Although we recognize that ‘“the breach of an ethical
standard does not necessarily make out a denial of the Sixth Amendment guarantee
of assistance of counsel,”’ Allen, 121 Ohio App.3d at 672, 700 N.E.2d 682, quoting
Nix v. Whiteside, 475 U.S. 157, 165, 89 L.Ed.2d 123, 106 S.Ct. 988 (1986), we believe
that Brooks’ knowing, willful violation of orders from the Ohio Supreme Court and
his unlawful representation of clients while suspended reflects directly on Brooks’
lack of legal competence to provide effective assistance of counsel to accused
juveniles such as J.R. See also Pubrat, 451 Mich. at 597, 548 N.W.2d 595(recognizing that “the failure to pay bar dues may be an intentional violation of the
rule which demonstrates that the attorney does not accord proper weight to the
rules” and “also may raise the possibility that an attorney will neglect a client’s
interests as well because the attorney is unable or unwilling to keep track of
obligations”).
Furthermore, at the time he represented J.R., Brooks was not only
subject to suspension under Gov.Bar R. VI(10)(B), he had not complied with
mandatory continuing legal education requirements for more than five years.
The stated purpose of Ohio’s continuing legal education requirement
is “to maintain and improve the quality of legal and judicial services in Ohio.”
Gov.Bar R. X(1)(A). Compliance with continuing legal education requirements is an
important and essential obligation of each attorney licensed to practice law in this
state, to ensure that Ohio attorneys maintain the knowledge and skills necessary to
provide effective assistance to clients. Giving due consideration to the importance
and role of continuing legal education in this state, we believe “a failure of this
magnitude” also “reflects directly on [Brooks’] lack of competence to practice law”
here. See Grant, 2010 Pa Super 45, 992 A.2d 152, at ¶ 22 (“any person failing to
comply [with continuing legal education requirements] for an extended period of
time * * * must be presumed to be incompetent to practice law in this
Commonwealth and incapable of representing clients in our courtrooms”). Where,
as here, an attorney repeatedly fails to comply with basic registration and continuing
legal education requirements, one cannot help but question whether the attorney is
providing competent legal representation, including exercising reasonable
judgment, paying sufficient attention to issues pertinent to the representation14 and
giving an accused proper legal advice. If an attorney cannot be bothered to comply
with these most basic requirements of practicing law in the state, how can we have
confidence that the attorney is effectively representing his or her juvenile clients?
14 Upon review of the record, there are a couple of items that give us pause here.
For example, during the amenability hearing, Probation Officer Brill testified that when
J.R. and her mother moved to Cuyahoga County in April 2018, J.R. was on probation for
“an F1 battery case” in Wisconsin. Dr. Williams’ psychological evaluation report similarly
refers to a charge of “Battery (F-1)” in Case No. 17JV124. This was apparently the only
prior felony case in which J.R. was allegedly involved. However, based on other
information in the record regarding J.R.’s Wisconsin adjudications, it does not appear
that these statements regarding a prior “F1 battery case” are correct. (Emphasis added.)
The information that is in the record relating to the Wisconsin charges (including
the only sources relating to the Wisconsin charges identified the psychological evaluation
report) indicates that J.R. was charged in Case No. 17JV124 with one count of what would
have been Class I felony battery under Wisconsin law if she were an adult. That same
source indicates that “it was agreed” that J.R. would admit to an amended charge of Class
A misdemeanor battery on that count and another Class A misdemeanor battery count in
that case; to a misdemeanor battery count in 17JV115 and to a misdemeanor count of
obstructing an officer in 17JV138. Although Brill acknowledged, during Brooks’ cross-
examination, that he did not know any of the details of the “felony battery” case, including
what facts led to the “felony battery” charge or how the elements of that charge under
Wisconsin law compared with a “felony battery” charge under Ohio law, Brooks did not
object to Brill’s testimony or otherwise address these discrepancies at the amenability
hearing. Further, in the psychological evaluation report — to which Brooks stipulated on
J.R.’s behalf — Dr. Williams noted that she was denied access to records relating to J.R.’s
“Applewood Centers’ Tapestry clinical diagnoses, interventions and treatment progress”
from March 2019-June 2020 and that J.R.’s case manager, with whom J.R. reportedly
had a “good relationship,” had informed Dr. Williams that she “could not discuss the case”
with Dr. Williams because she did not have an appropriate release. There is no indication
in the record that Brooks raised this issue with the court.
Although the record reflects that, at the amenability hearing, Brooks
cross-examined the state’s witnesses, objected to testimony by Detective McNeeley
on matters regarding which he had no personal knowledge and objected to the
admission of Morgan’s statement, we also note that Brooks stipulated to probable
cause and presented no witnesses on J.R.’s behalf at the amenability hearing.15
Whether those decisions were, in fact, reasonable strategic decisions
given the evidence and the circumstances, we cannot say there is insufficient
evidence in the record before us to allow us to make that determination. Although
a “properly licensed” attorney is generally presumed to be competent and his or her
strategic or tactical decisions entitled to deference, see, e.g., State v. Moore, 8th Dist.
Cuyahoga Nos. 108962, 108963 and 108964, 2020-Ohio-3459, ¶ 50; State v. Black,
2019-Ohio-4977, 149 N.E.3d 1132, ¶ 35 (8th Dist.), citing State v. Smith, 17 Ohio
St.3d 98, 100, 477 N.E.2d 1128 (1985), no such presumption or deference applies
where, as here, the attorney is not properly licensed to practice law.
Where a juvenile is facing the prospect of being tried in an adult court,
no one should be left to doubt whether the juvenile received competent
representation during those proceedings from an attorney who had been prohibited
from practicing law in this state. As stated above, there are certain circumstances
15 In her supplemental appellate brief, J.R. also asserts that Brooks “negotiated a
deal on her behalf to participate in the state’s case against her co-defendants, which
ultimately led to the plea agreement in this case”; however, there is nothing in the record
to support that claim. The record reflects only that, at the conclusion of the amenability
hearing, Brooks advised the juvenile court that J.R. had “some information she would like
to provide to the prosecution” and requested “time in which we could do that.”
that are “so likely to prejudice the accused that the cost of litigating the effect in a
particular case is unjustified.” Cronic, 466 U.S. at 658. Considering the totality of
the circumstances here, we believe this is such a case and that the circumstances
warrant the presumption that J.R. was denied the effective assistance of counsel
without the need for J.R. to establish specific attorney errors or prejudice as a result
of the representation.
Because J.R. was denied her constitutional right to counsel during the
bindover proceedings, we reverse J.R.’s convictions, vacate the juvenile court’s
July 14, 2020 order finding probable cause, vacate the juvenile court’s August 17,
2020 order granting a discretionary transfer of the case to the General Division
pursuant to R.C. 2152.12(B) and remand the case to the juvenile court for further
proceedings.
J.R.’s fourth assignment of error is sustained. Based on our
resolution of J.R.’s fourth assignment of error, her remaining assignments of error
are moot.
Judgment reversed, vacated, and remanded.
It is ordered that appellant recover from appellee the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_______
EILEEN A. GALLAGHER, PRESIDING JUDGE
EMANUELLA D. GROVES, J., CONCURS;
MICHELLE J. SHEEHAN, J., CONCURS IN JUDGMENT ONLY (WITH
SEPARATE OPINION)
MICHELLE J. SHEEHAN, J., CONCURRING IN JUDGMENT ONLY:
I respectfully concur in judgment only because I do not believe that
the circumstances in this case warrant finding that appellant did not receive the
assistance of counsel during the bindover proceedings. Our precedent requires that
we analyze counsel’s performance to determine whether appellant suffered
ineffective assistance of counsel per the requirements of Strickland v. Washington,
466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In so doing, I would
overrule appellant’s fourth assignment of error. I would further overrule her first
and second assignments of error. However, I would notice plain error in the plea
proceedings, vacate appellant’s convictions, and find appellant’s third assignment
of error moot.
As to appellant’s first assignment of error, I would find that the
juvenile court did not abuse its discretion in transferring the case to the general
division of the common pleas court where it conducted an amenability hearing,
considered the applicable statutory factors, and its decision to transfer the case had
a rational basis. State v. Hughley, 8th Dist. Cuyahoga No. 108771, 2o2o-Ohio-4741,
¶ 23. (Reviewing court is bound to affirm bindover decision where juvenile court
weighs the statutory factors and there is a rational basis for its findings relating to
those factors.)
Appellant’s second and fourth assignments of error are interrelated.
Under the second assignment of error, appellant argues that she was denied the
right to confront and cross-examine witnesses at the amenability hearing. Under
the fourth assignment of error, appellant alleges ineffective assistance of counsel
because 1) counsel was suspended from the practice of law, 2) counsel provided
ineffective assistance resulting in prejudice by advising appellant to waive the
preliminary hearing, and 3) counsel failed to enforce her right to confront and cross-
examine witnesses at the amenability hearing.
The Ohio Supreme Court held that a juvenile has a right to counsel
and found that this right to counsel derived from the constitutional right to due
process. In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 79. But
we have found that once the right to counsel is present, the right to effective
assistance of counsel under the Sixth Amendment is also present. In re I.R., 2021-
Ohio-3103, 179 N.E.3d 138, ¶ 83 (8th Dist.) (“The right to counsel, guaranteed in
juvenile proceedings by R.C. 2151.352 and by Juv.R. 4, includes the right to the
effective assistance of counsel.”).
The majority opinion determines that the totality of the
circumstances in this case warrants a presumption that appellant did not have
counsel due to the nature and extent of counsel’s suspension from the practice of
law. However, this court has been presented with determining whether to presume
ineffective assistance of counsel where counsel appeared under a suspended law
license and I believe that precedent constrains our analysis of this case.
In State v. Allen, 121 Ohio App.3d 666, 700 N.E.2d 682 (8th
Dist.1997), this court recognized that a per se finding of ineffective assistance of
counsel has been found where “(1) counsel was not, at the time of the accused’s trial,
duly licensed to practice law because of a failure ever to meet the substantive
requirements to practice law or (2) the attorney is implicated in the accused’s
crimes.” Id., citing Bellamy v. Codgell, 974 F.2d 302, 306 (2d Cir.1992); Vance v.
Lehman, 64 F.3d 119, 122 (3d Cir.1995); United States v. Rondon, 204 F.3d 376,
379-380 (2d Cir.2000).
As these two circumstances do not apply in this case, I would not find
that appellant received ineffective assistance of counsel, nor would I deviate from
our precedent to presume appellant received ineffective assistance of counsel
without an analysis of counsel’s representation.
In juvenile proceedings, once the right to counsel attaches so does the
right to effective assistance of counsel. In re I.R., 2021-Ohio-3103, 179 N.E.3d 138,
¶ 83. Although the majority opinion finds that a party in juvenile court whose
attorney is suspended for failing to register and comply with CLE requirements may
be found to have not been represented by counsel, we are constrained by Allen,
supra, to apply Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, to
determine whether suspended counsel’s representation was ineffective. E.g., In re
Gray, 8th Dist. Cuyahoga Nos. 75984 and 75985, 2000 Ohio App. LEXIS 1734, 4
(Apr. 20, 2000), citing Jones v. Lucas Cty. Children Servs. Bd., 46 Ohio App.3d 85,
546 N.E.2d 471 (6th Dist.1984) (“The standard for ineffective assistance of counsel
utilized in actions affecting orders of dispositions made by juvenile courts is the
same as applied in criminal cases.”). Thus, appellant must show that counsel’s
actions fell “below an objective standard of reasonable representation and, in
addition, prejudice arises from counsel's performance.” State v. Bradley, 42 Ohio
St.3d 136, 137, 538 N.E.2d 373 (1989), paragraph two of the syllabus, following State
v. Lytle, 48 Ohio St. 2d 391, 358 N.E.2d 623 (1976); Strickland at 668. We recently
explained the application of this standard:
Counsel’s performance may be found to be deficient if counsel “made
errors so serious that counsel was not functioning as the ‘counsel’
guaranteed the defendant by the Sixth Amendment.” Strickland at
687. To establish prejudice, “the defendant must prove that there exists
a reasonable probability that, were it not for counsel’s errors, the result
of the trial would have been different.” Bradley at paragraph two of the
syllabus; see also Strickland at 687.
State v. Courts, 8th Dist. Cuyahoga No. 110368, 2022-Ohio-690, ¶ 35
Under her fourth assignment of error, appellant argues that counsel
erred by advising her to waive a probable cause hearing in the juvenile court. Even
if counsel’s advice to waive the probable cause hearing were construed as deficient
representation, appellant has not shown that without a waiver of the hearing, the
outcome would be different; e.g., that the state would not have been able to present
evidence sufficient of probable cause if a hearing were held. State v. J.T.S., 10th
Dist. Franklin No. 14AP-516, 2015-Ohio-1103, ¶ 52 (“Moreover, given the operative
facts of the case as recited by the prosecutor, there is nothing in the record to suggest
that a hearing would have yielded a different result.”); State v. Jackson, 1st Dist.
Hamilton Nos. C-180159 and C-180209, 2020-Ohio-80, ¶ 26 (“Jackson suffered no
resulting prejudice because the record contains no indication that the state lacked
sufficient evidence to prove his guilt or that the juvenile court would not have found
probable cause that Jackson had committed the charged offenses.”); State v. Pruitt,
11th Dist. Trumbull No. 2001-T-0121, 2002-Ohio-7164, ¶ 60 (“Even if defense
counsel had not waived the preliminary bindover hearing and the state was required
to produce evidence of probable cause, there is no indication that the state’s
evidence would fall short concerning appellant’s alleged role in the crime.”)
Under the second assignment of error, I would find that appellant was
not denied the right to confront and cross-examine witnesses at the amenability
hearing in the juvenile court because amenability hearings are non-adjudicatory and
the evidence presented need not meet the same standards required for admissibility
at trial. See In Re J.R., 8th Dist. Cuyahoga No. 110241, 2021-Ohio-2272, ¶ 37 (“Given
that a probable cause hearing is non-adjudicatory, the evidence presented at a
probable cause hearing need not meet the same standards required for admissibility
at trial. Confrontation clause standards for the admissibility of evidence and the
Ohio Rules of Evidence do not apply to probable cause hearings.”).
Accordingly, I would overrule the second assignment of error.
Further, because I would not find error at the amenability hearing, I would not find
counsel was ineffective at the amenability hearing.
Finally, even though I would overrule appellant’s first, second, and
fourth assignments of error, I would notice plain error in the plea proceedings
because the trial court did not strictly comply with Crim.R. 11(C)(2)(c) by failing to
inform appellant that she was waiving the right to compulsory process. State v.
Wilson, 8th Dist. Cuyahoga No. 82770, 2004-Ohio-499, ¶ 13 (“We find
as plain error that the trial court did not properly inform the appellant of his
constitutional right to compel, summon, or otherwise require witnesses to appear
and testify on his behalf.”); State v. Day, 8th Dist. Cuyahoga No. 88725, 2007-Ohio-
4052, ¶ 31 (In finding plain error, the court held “[t]he trial court's failure to strictly
comply with the requirement of informing appellant of his constitutional right to
compulsory process is a substantial error and constitutes a manifest miscarriage of
justice.”). I would then vacate appellant’s convictions, remand this case to the trial
court, and find appellant’s third assignment of error moot. See State v. Bond, 8th
Dist. Cuyahoga No. 110520, 2022-Ohio-373, ¶ 31-34.