State v. Mays , 2014 Ohio 3815 ( 2014 )

[Cite as State v. Mays, 2014-Ohio-3815.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100265
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ARRAN MAYS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-571433
BEFORE: Celebrezze, J., Boyle, A.J., and Stewart, J.
RELEASED AND JOURNALIZED: September 4, 2014
ATTORNEYS FOR APPELLANT
Timothy Young
Ohio Public Defender
By: Sheryl Trzaska
Assistant State Public Defender
Office of the Ohio Public Defender
250 East Broad Street
Suite 1400
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel T. Van
Norman Schroth
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Defendant-appellant, Arran Mays, appeals from his convictions and sentence
for aggravated robbery, robbery, felonious assault, and receiving stolen property. After a
careful review of the record and relevant case law, we affirm appellant’s convictions and
sentence.
I. Statement of the Facts
{¶2} Appellant’s convictions stem from the November 4, 2012 robberies of
victims Rita Stasienko, Kieonna Speights, and Navetta Clark.
{¶3} Testimony at trial revealed that at approximately 6:00 a.m. on November 4,
2012, Rita Stasienko walked from her home in Cleveland to a nearby bus stop. When
she arrived at the bus stop, she was robbed at gunpoint by “two guys.” After her purse
was taken, one of the individuals hit her in the head with his gun and fired it into the air
several times. Stasienko testified that she was unable to identify the individuals because
they were wearing masks. The individuals fled the scene in a small “beige” vehicle.
{¶4} Approximately 15 to 20 minutes after Stasienko was robbed, Kieonna
Speights was walking to her bus stop when a silver or gray Toyota Corolla pulled up next
to her. Speights testified that a man brandishing a gun jumped out of the backseat of the
vehicle and demanded her purse.
{¶5} The third victim, Navetta Clark, did not testify in this matter.
{¶6} Officer Sedlack of the Cleveland Police Department testified that on
November 4, 2012, he responded to a dispatch for shots fired in the area of East 75th and
Canton Avenue. When he arrived at the scene, Officer Sedlack conducted an initial
interview with Stasienko. According to Officer Sedlack, Stasienko provided him with a
brief description of the culprits and the vehicle in which they fled. While completing his
investigation into the robbery of Stasienko, Officer Sedlack received a dispatch regarding
the suspects’ vehicle possibly being involved in a second and third robbery.
{¶7} Sergeant Leonard Patrick Lentz of the Cleveland Police Department testified
that he received a dispatch indicating that three males in a silver or gray Toyota had
committed three robberies in the area. While patrolling, Sgt. Lentz observed a vehicle
matching the description driving north on East 124th Street. When Sgt. Lentz attempted
to get closer to the subject vehicle, it “took off” at a high rate of speed. Sgt. Lentz
testified that he pursued the vehicle for approximately one to five minutes before the
vehicle stopped near East 129th Street and the three individuals inside the vehicle
“bailed” and attempted to flee the scene. Sgt. Lentz stated that the driver, later identified
as codefendant Marcus Beauregard, jumped out of the vehicle holding a firearm in his
hand as he ran. Sgt. Lentz further identified appellant as the individual who was sitting
in the back seat of the vehicle prior to his attempt to flee the scene. Ultimately,
Beauregard and appellant were apprehended and arrested by responding officers.
{¶8} Finally, Sgt. Lentz testified that further investigation into the matter revealed
that the vehicle used to facilitate the robberies was stolen.
{¶9} Once appellant and Beauregard were detained, Speights was brought to the
scene and asked if she could identify either of the individuals inside the officers’ patrol
vehicle. Speights recognized one of the individuals, who was wearing a black hoodie, as
the person who robbed her at gunpoint. She recognized the second individual as the
driver of the vehicle.
II. Statement of the Case
{¶10} The 16-year-old appellant was named in a five-count complaint in Cuyahoga
J.C. No. DL-12-120394, charging him with three counts of aggravated robbery, with
one-and-three year firearm specifications; one count of receiving stolen property, with
one-and-three year firearm specifications; and one count of discharge of a firearm on or
near a prohibited premises.
{¶11} On December 13, 2012, the state moved for appellant’s case to be
transferred from the juvenile division to the general division of the common pleas court
for criminal prosecution. After a joint hearing for appellant and Beauregard on January
8, 2013, the juvenile court relinquished jurisdiction and transferred the case to the general
division pursuant to R.C. 2152.12.
{¶12} On February 19, 2013, appellant was indicted and charged in Cuyahoga C.P.
No. CR-13-571433 with two counts of kidnapping in violation of R.C. 2905.01(B)(2);
three counts of aggravated robbery in violation of R.C. 2911.01(A)(1); felonious assault
in violation of R.C. 2903.11(A)(2); theft of an elderly person in violation of R.C.
2913.02(A)(1); discharge of a firearm on or near a prohibited premises in violation of
R.C. 2923.162(A)(3); receiving stolen property in violation of R.C. 2913.51(A); and two
counts of failure to comply in violation R.C. 2921.331(B). All counts also included
one-and-three year firearm specifications.
{¶13} On July 10, 2013, appellant entered a guilty plea to Count 2, aggravated
robbery, with firearm and forfeiture specifications; amended Count 6, robbery, with
forfeiture specifications; amended Count 7, felonious assault, with forfeiture
specifications; and amended Count 10, receiving stolen property, with firearm and
forfeiture specifications. By recommendation of the state, the firearm specifications
attached to Counts 6 and 7 were deleted. The remaining counts were dismissed.
{¶14} On July 15, 2013, the trial court sentenced appellant to three years in
prison on Count 2, aggravated robbery, to run consecutively to the attached three-year
firearm specification. Further, the trial court sentenced appellant to two years each on
Counts 6 and 7, robbery and felonious assault, and six months on Count 10, receiving
stolen property, to run concurrently to each other and to Count 2, for a total prison term of
six years.
{¶15} Appellant now brings this timely appeal, raising seven assignments of error
for review.1
III. Law and Analysis
A. Mandatory Bindover
1 Appellant’s assignments of error are included in the appendix to this
opinion.
{¶16} In his first assignment of error, appellant argues that the juvenile court erred
when it found probable cause that he committed aggravated robbery with a firearm.
{¶17} “Juvenile courts possess exclusive jurisdiction over children alleged to be
delinquent for committing acts that would constitute a crime if committed by 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)(1). However, under certain circumstances, “the juvenile court has the duty
to transfer a case, or bind a juvenile over, to the adult criminal system.” Id., citing R.C.
2152.10 and 2152.12. There are two types of transfers under Ohio’s juvenile justice
system — mandatory and discretionary. State v. D.W., 133 Ohio St.3d 434,
2012-Ohio-4544, 978 N.E.2d 894, ¶ 10.
“Mandatory transfer removes discretion from judges in the transfer
decision in certain situations.” * * * “Discretionary transfer, as its name
implies, 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, 90, 728 N.E.2d 1059 (2000); R.C.
2152.12(A) and (B). When a juvenile court improperly transfers jurisdiction over a
minor to adult court, any subsequent conviction in the adult court is void for lack of
jurisdiction. State v. Washington, 2d Dist. Montgomery No. 20226, 2005-Ohio-6546, ¶
14, citing State v. Wilson, 73 Ohio St.3d 40, 44, 652 N.E.2d 196 (1995).
{¶18} Mandatory transfer is guided by R.C. 2152.10(A), which provides that,
under certain circumstances, a juvenile court must transfer cases to adult court for
criminal prosecution “as provided in section 2152.12 of the Revised Code.” Relevant to
the case at hand, R.C. 2152.10(A)(2)(b) states that an alleged juvenile delinquent is
eligible for mandatory transfer when:
(2) The child is charged with a category two offense, other than a violation
of section 2905.01 of the Revised Code, the child was sixteen years of age
or older at the time of the commission of the act charged, and either or both
of the following apply:
***
(b) The child is alleged to have had a firearm on or about the child’s person
or under the child’s control while committing the act charged and to have
displayed the firearm, brandished the firearm, indicated possession of the
firearm, or used the firearm to facilitate the commission of the act charged.
R.C. 2152.10(A)(2)(b).
{¶19} R.C. 2152.12(A) establishes the procedure a juvenile court must follow for
mandatory transfers. Section (A)(1)(b)(ii) of the statute states that:
(b) After a complaint has been filed alleging that a child is a delinquent
child by reason of committing a category two offense, the juvenile court at a
hearing shall transfer the case if the child was sixteen or seventeen years of
age at the time of the act charged and either of the following applies:
***
(ii) Division (A)(2)(b) of section 2152.10 of the Revised Code requires the
mandatory transfer of the case, and there is probable cause to believe that
the child committed the act charged. R.C. 2152.12(A)(1)(b)(ii).
{¶20} In the case at hand, there is no dispute that aggravated robbery is a category
two offense under R.C. 2152.02(CC)(1). Further, it was stipulated that appellant was 16
years old at the time of the offenses. Thus, the only issue before this court is whether the
state established the requisite probable cause necessary for a mandatory bindover of
appellant’s aggravated robbery offenses to the adult court.
{¶21} The probable cause standard for mandatory bindover requires the state to
provide credible evidence of every element of an offense to support a finding of probable
cause to believe that the juvenile committed the offense before ordering mandatory
waiver of the juvenile court’s jurisdiction pursuant to R.C. 2152.12(A). State v. Iacona,
93 Ohio St.3d 83, 93, 752 N.E.2d 937 (2001). Probable cause in this context is not guilt
beyond a reasonable doubt; it is evidence that raises more than a suspicion of guilt. In re
A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 16. This standard
requires the juvenile court to “evaluate the quality of the evidence presented by the state
in support of probable cause as well as any evidence presented by the respondent that
attacks probable cause.” Iacona at 93.
{¶22} In challenging the juvenile court’s judgment, appellant argues that the state
failed to provide credible evidence of every element of the offense of aggravated robbery
to support a finding of probable cause to believe that he committed the offenses in Counts
1 through 3 of his juvenile complaint, namely that he personally used a firearm in the
commission of these robberies.
{¶23} Our review of the juvenile court’s decision is mixed — we defer to the
court’s credibility determinations by reviewing for an abuse of discretion, but we conduct
a de novo review of the legal conclusion of whether there was probable cause to believe
that the juvenile committed the charged act. In re A.J.S. at ¶ 1.
{¶24} Pursuant to Iacona, the juvenile court is required to evaluate the quality of
the evidence presented by the state in support of probable cause as well as any evidence
presented by appellant that attacks probable cause. Iacona at 93.
{¶25} In cases involving the use of a firearm during the commission of an
aggravated robbery, the Supreme Court of Ohio has held that
the mandatory bindover provision of R.C.[2152.10(A)(2)(b)] does not apply
unless the child, himself or herself, had a firearm on or about the child’s
person or under the child’s control while committing the act charged and
the child displayed the firearm, brandished the firearm, indicated possession
of the firearm, or used the firearm to facilitate the commission of the act
charged.
Hanning, 89 Ohio St.3d 86, 728 N.E.2d 1059 (2000), at paragraph one of the syllabus.
{¶26} In the instant case, Count 2 of appellant’s juvenile complaint referred to the
alleged aggravated robbery of Kieonna Speights. At the probable cause hearing,
Speights testified that she was robbed at gunpoint by a man who jumped out of the back
seat of a small gray or silver Toyota. According to Speights, the gunman was wearing a
“black hoodie,” “khaki colored pants,” and had an “afro” or “dreads.” Approximately 45
minutes to an hour after her robbery, officers drove Speights to the location where
appellant was being detained to make a cold stand identification. When Speights arrived
at the scene, she positively identified the two males being detained by officers as the
perpetrators of her robbery — one as the driver of the vehicle and one as the gunman.
Speights further identified Beauregard and appellant in court as the men involved in her
robbery. While the state could have asked Speights to clarify on the record which of the
two defendants she was specifically identifying as the gunman, Sgt. Lentz confirmed that
appellant was the individual who was sitting in the back seat of the vehicle prior to
fleeing from the police.
{¶27} Considering the totality of the testimony presented, we find that probable
cause existed to believe appellant personally possessed a firearm during the aggravated
robbery of Speights. Accordingly, mandatory bindover on Count 2, aggravated robbery,
was appropriate.
{¶28} Moreover, without determining whether there was probable cause to believe
appellant personally possessed a firearm during the offenses committed against Stasienko
and Clark, we find that the trial court did not err in transferring Counts 1 and 3 of
appellant’s juvenile complaint to the adult court. As explained further in appellant’s
second assignment of error, because the offenses in this matter were committed during the
same course of conduct, 2 the trial court had the authority to transfer the entire case
pursuant to R.C. 2152.12(I) once it found sufficient probable cause to warrant a
mandatory transfer of Count 2 to the adult court. See State v. Brookshire, 2d Dist.
Montgomery No. 25853, 2014-Ohio-1971, ¶ 14 (holding that when multiple offenses
arise from the same “course of conduct” and the juvenile court properly transfers the
mandatory transfer offense to the adult court, all further proceedings on the remaining
offenses are discontinued in the juvenile court pursuant to R.C. 2152.12(I)). To hold
2 Offenses committed during the “same course of conduct” have been defined
as “offenses that through their similarity, regularity and time between them are
concluded to be part of a single episode, spree, or ongoing series of offenses.”
United States v. Sheehan, D.Montana No. CR 09-13-M-DWM, 2009 U.S. Dist.
LEXIS 99800 (Oct. 27, 2009).
otherwise would jeopardize judicial economy and would require dual proceedings in two
separate courts on the same set of facts and circumstances. See Washington, 2d Dist.
Montgomery No. 20226, 2005-Ohio-6546, ¶ 26.
{¶29} Appellant’s first assignment of error is overruled.
B. Transfer of “Non-Category” Offense
{¶30} In his second assignment of error, appellant argues that the juvenile court
committed plain error when it transferred Count 4 of his juvenile complaint, receiving
stolen property, to the adult court.
{¶31} Within this assignment of error, appellant argues that, pursuant to R.C.
2152.12(F)(2), once the juvenile court determined that appellant was subject to mandatory
bindover based on his aggravated robbery charges, it was then required to comply with
the amenability procedures outlined in R.C. 2152.12(B) for the discretionary bindover
offense of receiving stolen property before transferring the charge to the adult court.
{¶32} In applying the statutory scheme in R.C. 2152.12(F), the Second District has
held that when a mandatory transfer offense and a “non-category” offense arise from the
same course of conduct and the juvenile court properly transfers the mandatory transfer
offense to the adult court, all further proceedings on the discretionary transfer offense are
discontinued in the juvenile court pursuant to R.C. 2152.12(I), and the juvenile court is
relieved of the requirements under R.C. 2152.12(F). Washington at ¶ 26; see also State
v. Henderson, 2d Dist. Montgomery No. 21866, 2007-Ohio-5368.
{¶33} In pertinent part, R.C. 2152.12(I) provides:
The transfer [of a case under division (A) of this section] abates the
jurisdiction of the juvenile court with respect to the delinquent acts alleged
in the complaint, and, upon the transfer, all further proceedings pertaining
to the act charged shall be discontinued in the juvenile court, and the case
then shall be within the jurisdiction of the court to which it is transferred as
described in division (H) of section 2151.23 of the Revised Code.
{¶34} In this case, appellant’s receiving stolen property charge resulted from his
act of “receiving or retaining” the stolen 2006 Toyota Corolla used to complete the
aggravated robberies against Speights, Stasienko, and Clark. Because we find that the
offenses underlying appellant’s delinquency charges arose from the same course of
conduct and that the juvenile court properly ordered proceedings on Count 2 transferred
to the adult court pursuant to R.C. 2152.12(A)(1)(b)(ii), all further proceedings in the
juvenile division on the receiving stolen property charge were thereafter discontinued per
R.C. 2152.12(I), and the juvenile court’s jurisdiction was terminated. Accordingly, the
juvenile court was relieved of any requirement that R.C. 2152.12(F) otherwise imposes to
conduct further hearings or to make findings with respect to appellant’s eligibility to be
tried as a juvenile on the discretionary offense before transferring proceedings on that
charge to the adult court.
{¶35} Appellant’s second assignment of error is overruled.
C. “Reverse Bindover” Procedure
{¶36} In his third assignment of error, appellant argues the trial court erred when it
failed to sentence him in accordance with R.C. 2152.121 for Counts 6, 7, and 10, and
further failed to remand the matter to the juvenile court after imposing a stayed sentence.
{¶37} Initially, we note that appellant failed to raise this issue before the trial
court. Accordingly, we are limited to plain-error review. To establish plain error,
appellant must point to an obvious error that affected the outcome of the proceedings
below. State v. Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, ¶ 6.
Reversal is warranted only if the outcome “clearly would have been different absent the
error.” State v. Hill, 92 Ohio St.3d 191, 203, 749 N.E.2d 274 (2001). Therefore, any
error must have affected the outcome of the trial in this matter.
{¶38} R.C. 2152.121 provides, in pertinent part:
(A) If a complaint is filed against a child alleging that the child is a
delinquent child and the case is transferred pursuant to division (A)(1)(a)(i)
or (A)(1)(b)(ii) of section 2152.12 of the Revised Code, the juvenile court
that transferred the case shall retain jurisdiction for purposes of making
disposition of the child when required under division (B) of this section.
(B) If a complaint is filed against a child alleging that the child is a
delinquent child, if the case is transferred pursuant to division (A)(1)(a)(i)
or (A)(1)(b)(ii) of section 2152.12 of the Revised Code, and if the child
subsequently is convicted of or pleads guilty to an offense in that case, the
sentence to be imposed or disposition to be made of the child shall be
determined as follows:
(1) The court in which the child is convicted of or pleads guilty to the
offense shall determine whether, had a complaint been filed in juvenile
court alleging that the child was a delinquent child for committing an act
that would be that offense if committed by an adult, division (A) of section
2152.12 of the Revised Code would have required mandatory transfer of the
case or division (B) of that section would have allowed discretionary
transfer of the case. The court shall not consider the factor specified in
division (B)(3) of section 2152.12 of the Revised Code in making its
determination under this division.
(2) If the court in which the child is convicted of or pleads guilty to the
offense determines under division (B)(1) of this section that, had a
complaint been filed in juvenile court alleging that the child was a
delinquent child for committing an act that would be that offense if
committed by an adult, division (A) of section 2152.12 of the Revised Code
would not have required mandatory transfer of the case, and division (B) of
that section would not have allowed discretionary transfer of the case, the
court shall transfer jurisdiction of the case back to the juvenile court that
initially transferred the case, the court and all other agencies that have any
record of the conviction of the child or the child’s guilty plea shall expunge
the conviction or guilty plea and all records of it, the conviction or guilty
plea shall be considered and treated for all purposes other than as provided
in this section to have never occurred, the conviction or guilty plea shall be
considered and treated for all purposes other than as provided in this section
to have been a delinquent child adjudication of the child, and the juvenile
court shall impose one or more traditional juvenile dispositions upon the
child under sections 2152.19 and 2152.20 of the Revised Code.
(3) If the court in which the child is convicted of or pleads guilty to the
offense determines under division (B)(1) of this section that, had a
complaint been filed in juvenile court alleging that the child was a
delinquent child for committing an act that would be that offense if
committed by an adult, division (A) of section 2152.12 of the Revised Code
would not have required mandatory transfer of the case but division (B) of
that section would have allowed discretionary transfer of the case, the court
shall determine the sentence it believes should be imposed upon the child
under Chapter 2929. of the Revised Code, shall impose that sentence upon
the child, and shall stay that sentence pending completion of the procedures
specified in this division. Upon imposition and staying of the sentence, the
court shall transfer jurisdiction of the case back to the juvenile court that
initially transferred the case and the juvenile court shall proceed in
accordance with this division. In no case may the child waive a right to a
hearing of the type described in division (B)(3)(b) of this section, regarding
a motion filed as described in that division by the prosecuting attorney in
the case.
***
(4) If the court in which the child is convicted of or pleads guilty to the
offense determines under division (B)(1) of this section that, had a
complaint been filed in juvenile court alleging that the child was a
delinquent child for committing an act that would be that offense if
committed by an adult, division (A) of section 2152.12 of the Revised Code
would have required mandatory transfer of the case, the court shall impose
sentence upon the child under Chapter 2929. of the Revised Code.
{¶39} Here, appellant entered pleas of guilty in the common pleas court to one
count of aggravated robbery with a firearm specification, as charged in Count 2; one
count of robbery as amended in Count 6; one count of felonious assault as amended in
Count 7; and one count of receiving stolen property as charged in Count 10. Within this
assignment of error, appellant is not challenging his sentence on Count 2, which relates to
his conduct against Speights and resulted in a sentence of 6 years (3-year firearm
specification to run prior and consecutive to the 3 years imposed on the base charge).
Instead, appellant’s argument focuses on his robbery, felonious assault, and receiving
stolen property convictions, which he maintains would not have been eligible for
mandatory bindover “had he been charged with those offenses in the juvenile court prior
to transfer.” R.C. 2152.121(B). However, in sentencing appellant on Counts 6, 7, and
10, the court ordered those terms to run concurrently to the six years imposed on Count 2,
which required a mandatory transfer, for an aggregate sentence of six years. Thus, even
if this court were to find error in the trial court’s application of R.C. 2152.121(B) with
respect to Counts 6, 7, and 10, appellant’s sentence would not change. We therefore find
that any alleged error would be harmless and would not have affected the outcome in this
matter. See State v. Bradford, 5th Dist. Stark No. 2013 CA 00124, 2014-Ohio-904.
{¶40} Moreover, we do not interpret R.C. 2152.121(B) as requiring the common
pleas court to complete a separate analysis for each charge appellant ultimately pled guilty
to once it determined under R.C. 2152.121(B)(4) that Count 2, aggravated robbery,
required mandatory transfer of the entire case. In our view, once the trial court made this
determination, it was permitted to sentence appellant on each count he pled guilty to in
CR-13-571433 under Chapter 2929 of the Ohio Revised Code.
{¶41} Appellant’s third assignment of error is overruled.
D. Constitutional Challenges
{¶42} For purposes of convenience, we will address appellant’s fourth, fifth, and
sixth assignments of error together. Under these assignments of error, appellant argues
that R.C. 2152.10(A)(2)(b) and 2152.12(A)(1)(b), which govern the mandatory transfer of
juvenile cases to adult court, violate his constitutional rights to due process, equal
protection, and to be free from cruel and unusual punishment.
{¶43} As an initial matter, we note that “[f]ailure to raise at the trial court level the
issue of the constitutionality of a statute or its application, which issue is apparent at the
time of trial, constitutes a waiver of such issue.” In re I.A., 2d Dist. Montgomery No.
25078, 2012-Ohio-4973, ¶ 4, quoting State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277(1986), syllabus. In this case, appellant failed to raise his constitutional challenges to the
mandatory transfer in the juvenile court or the trial court, and therefore waived his
arguments on appeal. See State v. Jones, 8th Dist. Cuyahoga No. 88493,
2007-Ohio-3265.
{¶44} In addition, “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.’” 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). Because appellant does not challenge the validity of his plea, he waived his
right to challenge the constitutionality of R.C. 2152.10 and 2152.12 by pleading guilty.
See, e.g., Bradford, 5th Dist. Stark No. 2013 CA 00124, 2014-Ohio-904, ¶ 76-79; State
v. Quarterman, 9th Dist. Summit No. 26400, 2013-Ohio-3606, ¶ 3-6 (both cases finding
that the defendant was prevented from arguing on appeal that R.C. 2152.10(A)(2)(b) and
2152.12(A)(1)(b) violated his constitutional rights to due process, equal protection, and to
be free from cruel and unusual punishment because the defendant pled guilty to the
charges against him and did not contest the validity of his plea).
{¶45} Moreover, even if this court were to consider appellant’s constitutional
arguments, several appellate districts have already determined that the statutory
provisions requiring mandatory transfer do not violate due process and equal protection
rights under the Fourteenth Amendment. See, e.g., State v. Ramey, 2d Dist. Montgomery
No. 16442, 1998 Ohio App. LEXIS 2617 (May 22, 1998); State v. Agee, 133 Ohio
App.3d 441, 728 N.E.2d 442 (2d Dist.1999); State v. Kelly, 3d Dist. Union No. 14-98-26,
1998 Ohio App. LEXIS 5630 (Nov. 18, 1998); State v. Lee, 11th Dist. Lake No.
97-L-091, 1998 Ohio App. LEXIS 4250 (Sept. 11, 1998); State v. Collins, 9th Dist.
Lorain No. 97CA006845, 1998 Ohio App. LEXIS 2474 (June 3, 1998) (all finding that
the mandatory transfer provisions in former R.C. 2151.26(B), which is now codified as
R.C. 2152.12, do not violate a juvenile’s constitutional rights to due process and equal
protection under the law). We will continue to follow the precedent on this issue unless
otherwise advised by the Supreme Court of Ohio.
{¶46} Additionally, appellant’s argument that the mandatory transfer statute
violates his Eighth Amendment right to be free from cruel and unusual punishment is
unpersuasive. “The Eighth Amendment to the United States Constitution states that
‘[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.’” State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.2d
890, ¶ 8. “‘[C]ases in which cruel and unusual punishments have been found are limited
to those involving sanctions which under the circumstances would be considered
shocking to any reasonable person.’” State v. Weitbrecht, 86 Ohio St.3d 368, 371, 715
N.E.2d 167 (1999), quoting McDougle v. Maxwell, 1 Ohio St.2d 68, 70, 203 N.E.2d 334(1964). The penalty must be “‘so greatly disproportionate to the offense as to shock the
sense of justice of the community.’” State v. Hairston, 118 Ohio St.3d 289,
2008-Ohio-2338, 888 N.E.2d 1073, ¶ 14, quoting Weitbrecht at 371. “As applied to
juveniles, the United States Supreme Court has held that the Eighth Amendment prohibits
the imposition of the death penalty and the imposition of life without the possibility of
parole for nonhomicide offenses.” Long at ¶ 8, citing Roper v. Simmons, 543 U.S. 551,
125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011,
176 L.Ed.2d 825 (2010). “Most recently, the Eighth Amendment was held to ban
mandatory life-without-parole sentences on juveniles in Miller [v. Alabama, [567] U.S.
, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)].” Id.{¶47} The statutory provisions at issue in this case, however, do not govern the
sentencing of juveniles, but instead govern whether a juvenile case must be transferred to
adult court for adjudication. As stated in the concurrence in Quarterman, 9th Dist.
Summit No. 26400, 2013-Ohio-3606, “[m]andatory bindover does not equate to
punishment any more than the mere prosecution of an adult in the common pleas court
constitutes punishment.” Id. at ¶ 16. Furthermore, appellant provides no support for
applying Eighth Amendment protections to matters that do not constitute punishment.
Accordingly, his Eighth Amendment argument is not well taken.
{¶48} Notwithstanding the fact that appellant waived his constitutional challenges
to R.C. 2152.12, we find no merit to his challenges, and therefore overrule his fourth,
fifth, and sixth assignments of error.
E. Ineffective Assistance of Counsel
{¶49} In his seventh assignment of error, appellant argues that he was denied
effective assistance of counsel when trial counsel failed to object to his case being
transferred to the adult court.
{¶50} Under this assignment of error, appellant contends that his trial counsel was
ineffective in failing to object to the juvenile court’s transfer of his aggravated robbery
charges to the adult court. Appellant also argues that his trial counsel was ineffective in
failing to object to the constitutionality of the mandatory transfer of his case.
{¶51} We review allegations of ineffective assistance of trial counsel under the
two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley, 42
Ohio St.3d 136, 538 N.E.2d 373 (1989). To prevail on an ineffective-assistance claim,
appellant must establish that his trial counsel’s performance was deficient and that the
deficient performance prejudiced him. Strickland at paragraph two of the syllabus. A
trial counsel’s performance is deficient if the conduct complained of fell below an
objective standard of reasonableness. Id.{¶52} Trial counsel is entitled to a strong presumption that his or her conduct falls
within the wide range of reasonable assistance. Id. As for prejudice, a trial counsel’s
deficient performance is prejudicial when counsel’s errors are serious enough to create a
reasonable probability that, but for the errors, the result of trial would have been different.
Id.{¶53} In this case, we have already concluded that the juvenile court properly
transferred appellant’s aggravated robbery charges to the adult court pursuant to R.C.
2152.10 and 2152.12. Therefore, trial counsel’s failure to object to the transfer did not
fall below an objective standard of reasonableness. Likewise, having concluded that
appellant’s constitutional challenges have no merit, it was not unreasonable for his trial
counsel to abstain from objecting to the constitutionality of the mandatory bindover
provisions in R.C. 2152.12.
{¶54} For the foregoing reasons, appellant has failed to establish that his trial
counsel’s performance was deficient. Accordingly, appellant’s ineffective assistance
claim must fail because he cannot satisfy the first prong of Strickland.
{¶55} Appellant’s seventh assignment of error is overruled.
{¶56} Judgment affirmed.
It is ordered that appellee recover from appellant 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 common
pleas court to carry this judgment into execution. The defendant’s convictions having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
MARY J. BOYLE, A.J., and
MELODY J. STEWART, J., CONCUR
APPENDIX
Appellant’s assignments of error:
I. The juvenile court erred when it found probable cause that Arran Mays
committed aggravated robbery with a firearm.
II. The juvenile court committed plain error when it transferred Count 4,
receiving stolen property, as a mandatory transfer offense.
III. The trial court erred when it failed to sentence Arran Mays in
accordance with R.C. 2152.121 for Counts 6, 7, and 10, and failed to
remand the matter to the juvenile court after imposing a stayed sentence.
IV. The juvenile court erred when it transferred Arran Mays’s case for
criminal prosecution because the mandatory transfer provisions in R.C.
2152.10(A)(2)(b) and R.C. 2152.12(A)(1)(b) violate a child’s right to due
process as guaranteed by the Fourteenth Amendment to the United States
Constitution and Article I, Section 16, Ohio Constitution.
V. The juvenile court erred when it transferred Arran Mays’s case to adult
court because the mandatory-transfer provisions in R.C. 2152.10(A)(2)(b)
and R.C. 2152.12(A)(1)(b) violate a child’s right to equal protection as
guaranteed by the Fourteenth Amendment to the United States Constitution
and Ohio Constitution, Article I, Section 2.
VI. The juvenile court erred when it transferred Arran Mays’s case to adult
court because the mandatory-transfer provisions in R.C. 2152.10(A)(2)(b)
and R.C. 2152.12(A)(1)(b) violate the prohibition against cruel and unusual
punishment a guaranteed by the Eighth and Fourteenth Amendments to the
United States Constitution and Ohio Constitution, Article I, Section 9.
VII. Defense counsel rendered ineffective assistance by failing to object to
an unconstitutional transfer and illegal sentence.