State v. Johnson ( 2019 )

[Cite as State v. Johnson, 2019-Ohio-287.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO : APPEAL NO. C-170612
TRIAL NO. B-1704196
Plaintiff-Appellee, :
vs. : O P I N I O N.
DAVID ISAIAH JOHNSON, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: January 30, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond L. Katz, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Presiding Judge.
{¶1} Defendant-appellant David Isaiah Johnson appeals from his
convictions, in the Hamilton County Common Pleas Court, following his pleas of
guilty to two counts of robbery and a single count of receiving stolen property.
Johnson committed these offenses when he was 17 years old. He contends that the
convictions must be reversed because of errors in the juvenile court’s transfer of
jurisdiction of these cases to the common pleas court. Because Johnson cannot
demonstrate the claimed errors in the record on appeal, we affirm.
I. Johnson’s Multiple Offenses
{¶2} These prosecutions commenced as delinquency actions in juvenile
court. But the record of the actions taken by the juvenile court to transfer
jurisdiction to the trial court is slight.
a. Johnson’s description of the juvenile court proceedings
{¶3} In his appellate brief, Johnson explains that complaints were filed in
juvenile court alleging that Johnson had committed multiple offenses against
separate victims, each perpetrated on a separate day in early 2017. One complaint
charged Johnson with behavior that would have constituted the aggravated robbery
of Isaiah Woodard had Johnson been an adult, and an accompanying firearm
specification.
{¶4} Under R.C. 2152.12, a juvenile who has “committed a qualifying
offense and who meets certain age requirements is automatically removed from the
jurisdiction of the juvenile division and transferred to the adult court.” State v.
Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 2; see R.C.
2152.10(A)(2)(b) and 2152.12(A)(1)(b)(ii). This transfer of jurisdiction, colloquially
known as “mandatory bindover” is reserved “for extraordinary cases, involving older
or violent offenders.” Aalim at ¶ 36. Aggravated robbery is a qualifying “category
two offense” for purposes of mandatory bindover. R.C. 2152.02(BB). A court
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OHIO FIRST DISTRICT COURT OF APPEALS
ordering a mandatory bindover is not required to consider whether the child would
be amenable to care or rehabilitation within the juvenile system. See State v.
Cockrell, 2016-Ohio-5797, 70 N.E.3d 1168, ¶ 7 (1st Dist.).
{¶5} Johnson states that another juvenile complaint charged Johnson with
behavior that would have constituted the aggravated robbery of Steven Johnson had
he been an adult. A third complaint alleged that Johnson had been found in
possession of a stolen motor vehicle owned by Ella Washington, also a felony offense
if Johnson were an adult.
{¶6} Ohio’s bindover scheme permits other nonqualifying, or
“discretionary-bindover” offenses to be transferred without an amenability hearing
as long as the juvenile court has found probable cause to believe that the juvenile
committed a mandatory-bindover offense and that the mandatory-bindover offense
and “the additional [discretionary] charges arose from a common nucleus of
operative facts.” Id. at ¶ 17.
{¶7} Johnson states that the juvenile court characterized the aggravated
robbery of Woodard as a mandatory-bindover offense and the two lesser offenses
against Steven Johnson and Washington as discretionary offenses arising from a
common nucleus of operative facts. He asserts that the juvenile court transferred
these three cases to the trial court on that basis.
b. The record on appeal
{¶8} The trial court record on appeal, however, is silent as to almost all of
Johnson’s claims regarding events occurring in the juvenile court. It does reveal that
on July 24, 2017, the Hamilton County Grand Jury returned a six-count indictment
against Johnson. Two counts of the indictment alleged that Johnson had committed
aggravated-robbery and robbery offenses against Woodard. But the indictment
alleged only that Johnson had employed a bludgeon to facilitate the aggravated-
robbery offense. There was no accompanying firearm specification.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} Two other counts charge Johnson with the aggravated robbery and the
robbery of Steven Johnson. An additional count alleged that Johnson had
feloniously assaulted Woodard. And in the final count, the indictment alleged that
Johnson had been found in possession of a stolen motor vehicle owned by
Washington.
{¶10} Johnson entered pleas of guilty to the counts alleging the robbery of
Steven Johnson and Woodard, felonies of the second degree, and to receiving
Washington’s stolen property, a fourth-degree felony. The other charges, including
the more serious aggravated-robbery charges, were dismissed. The trial court
accepted Johnson’s pleas and continued the matter for sentencing.
{¶11} The transcript of the September 13, 2017 sentencing hearing reveals
that the parties and the trial court were aware that the case had been transferred
from juvenile court under a mandatory-bindover procedure. At the hearing,
Johnson’s trial counsel informed the court that
this is one of these odd, odd cases where it went from juvenile court as
a mandatory bind-over, so there was never an amenability hearing in
Juvenile Court.
When it came out of grand jury, it no longer was mandatory.
[Ohio’s reverse-bindover scheme] does provide for the Court a
procedure where you would simply find that it was set up as
mandatory; it came out as non-mandatory, and then it would allow
you to stay the sentence and send it back to juvenile court and allow
them the discretion to have an amenability hearing.
{¶12} On September 22, 2017, the trial court entered a judgment of
conviction imposing sentence, including an aggregate prison term of six years. And
the court stayed its judgment.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} Since Johnson had not actually been convicted of any qualifying
offense for purposes of mandatory bindover, the trial court remanded the case to the
juvenile court under the reverse-bindover procedure identified in R.C. 2151.121(B).
The reverse-bindover scheme requires the trial court to transfer cases back to the
juvenile court after considering “what the juvenile court would have been required to
do with the case[s] if the juvenile had been charged with only those offenses for
which convictions were obtained.” State v. D.B., 150 Ohio St.3d 452, 2017-Ohio-
6952, 82 N.E.3d 1162, ¶ 12.
{¶14} The two final substantive entries of record reflect Johnson’s premature
notice of appeal on November 6, and the trial court’s November 7, 2017 judgment
entry imposing the identical sentences that it had imposed before reverse bindover.
It is from this entry alone that Johnson has appealed here. Compare In re D.M., 6th
Dist. Lucas No. L-16-1237, 2017-Ohio-8768, ¶ 5 (appellant challenging juvenile
court’s transfer of jurisdiction appealed from both the juvenile court case containing
the transfer orders, and from the criminal judgment of conviction); see State v.
Marshall, 1st Dist. Hamilton No. C-150383, 2016-Ohio-3184.
{¶15} We note that Johnson has brought separate appeals from juvenile
court challenging, inter alia, the bindover of the receiving-stolen-property action and
an additional aggravated-robbery offense against a different victim. On June 29,
2018, in response to a motion by Johnson, this court consolidated this appeal with
those separate appeals for purposes of oral argument only. Nothing in that entry did,
or could have, added materials filed in the juvenile court to the record certified for
our review in this appeal numbered C-170612. Johnson ultimately waived oral
argument.
II. Constitutional Challenges to Mandatory Bindover
{¶16} In his first assignment of error, Johnson asserts the juvenile court
erred when it transferred this matter to the trial court on grounds that the
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OHIO FIRST DISTRICT COURT OF APPEALS
mandatory-transfer scheme it employed, codified in R.C. 2152.10(A)(2)(B) and
2151.12(A)(1)(b), was unconstitutional. Since Johnson did not raise this objection in
the trial court, we review only for plain error. See Crim.R. 52(B); see also State v.
Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21.
{¶17} The Ohio Supreme Court has held the statutory scheme that Johnson
challenges “complies with due process and equal protection as guaranteed by the
Ohio and United States Constitutions.” Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956,
83 N.E.3d 883, at ¶ 38. Since Johnson cannot demonstrate error, much less plain
error, the first assignment of error is overruled.
{¶18} In a related assignment of error, Johnson claims that he was denied
the effective assistance of counsel when his trial counsel failed to challenge the
constitutionality of the bindover procedure as set forth in his first assignment of
error. To prevail on this claim, Johnson must first show his trial counsel’s performance
was deficient. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984); State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989), paragraph
two of the syllabus.
{¶19} In light of our resolution of the first assignment of error, counsel’s
failure to raise the constitutional issue was not deficient performance and thus could
not have, on that basis, denied Johnson a reliable and fundamentally fair proceeding.
See In re B.H., 1st Dist. Hamilton Nos. C-180108 and C-180109, 2018-Ohio-3350, ¶
13; see also Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).
The sixth assignment of error is overruled.
III. Appellate Review Limited to the Record on Appeal
{¶20} In three of Johnson’s remaining assignments of error—the second,
fourth, and fifth—he argues the juvenile court erred in transferring jurisdiction to the
trial court. In his third assignment of error, he argues because of those errors, the trial
court lacked subject-matter jurisdiction to accept Johnson’s pleas and to impose
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OHIO FIRST DISTRICT COURT OF APPEALS
sentence. Each of these assignments of error fails on the most fundamental basis of
appellate review: that claimed errors must be demonstrated in the record certified for
appeal.
{¶21} Appellate review is strictly limited to the record on appeal. See
Morgan v. Eads, 104 Ohio St.3d 142, 2004-Ohio-6110, 818 N.E.2d 1157, ¶ 13; see
also State v. Bumu, 1st Dist. Hamilton No. C-160492, 2017-Ohio-6901, ¶ 13. The
“record on appeal” consists of three categories of documents identified in App.R. 9:
the original papers and exhibits thereto filed in the trial court; the transcript of
proceedings, if any, including exhibits; and a certified copy of the docket and journal
entries prepared by the clerk of the trial court, here the common pleas court.
App.R. 9(A)(1).
{¶22} The appellant bears the burden of “identifying in the record the error
on which [an] assignment of error is based.” App.R. 12(A)(2). When an appellant
relies upon facts shown in a transcript of proceedings, the duty to provide that
transcript also falls upon the appellant. See Knapp v. Edwards Laboratories, 61
Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). Under App.R. 9(B), this duty includes
the obligation to order a transcript of any “proceedings [he] considers necessary for
inclusion in the record,” and to ensure that the transcript of the proceedings required
by App.R. 9(B)(6) is “filed with the clerk of the trial court under App.R. 10(A).”
{¶23} When the appellant has failed in his duty to ensure that the record on
appeal includes the items necessary to the resolution of the assigned errors, the
reviewing court presumes the regularity of the lower court’s proceedings. Knapp at
199.
{¶24} Here, Johnson has failed to ensure that the record on appeal contains
transcripts of the evidentiary hearings before the juvenile court, or the juvenile
court’s rulings on those evidentiary matters, including whether there was probable
cause to believe that Johnson had used a firearm to commit the aggravated robbery
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OHIO FIRST DISTRICT COURT OF APPEALS
of Woodard, whether the other offenses at issue arose from a common nucleus of
operative facts with the firearm offense, and whether Johnson was amenable to
rehabilitation as a juvenile. Finally, the record does not contain the juvenile court’s
entries actually transferring jurisdiction to the trial court and characterizing whether
those transfers were mandatory or discretionary. Compare Marshall, 1st Dist.
Hamilton No. C-150383, 2016-Ohio-3184 (appellant challenging the juvenile court’s
transfer of jurisdiction included records of juvenile court proceedings in the record
on appeal).
{¶25} In his second assignment of error, Johnson argues that the juvenile
court failed to hold an amenability hearing before transferring to the common pleas
court the cases alleging that Johnson had robbed Steven Johnson and had received the
stolen property of Washington. He maintains that these two nonmandatory-bindover
offenses did not share a common nucleus of operative facts with the case charging
Johnson with the aggravated robbery of Woodard, an offense subject to mandatory
bindover. See R.C. 2152.10(A)(2)(b) and 2152.10(B); see Cockrell, 2016-Ohio-5797, 70
N.E.3d 1168, at ¶ 17.
{¶26} However, the juvenile court transcripts and entries that Johnson cites to
advance this contention were never filed in the trial court in this case, numbered B-
1704196. They are not attached to any original paper that was properly filed. They
are not listed in the certified copy of the docket and journal entries prepared by the
clerk of the trial court. Thus, they are not part of our record on appeal. See App.R. 9.
{¶27} But Johnson’s allegations of potentially serious defects in the juvenile
court’s transfer of jurisdiction are supported only by statements in the parties’
appellate briefs or by documents attached to Johnson’s brief. A reviewing court
cannot rely on matters raised in briefs, or attached thereto, but not supported in the
record, to resolve assignments of error. See State v. Tekulve, 188 Ohio App.3d 792,
2010-Ohio-3604, 936 N.E.2d 1030, ¶ 4 (1st Dist.); see also State v. Ishmail, 54 Ohio
8OHIO FIRST DISTRICT COURT OF APPEALS
St.2d 402, 377 N.E.2d 500 (1978), syllabus. The second assignment of error is
overruled on the sole basis that the claimed error is not demonstrated in the record.
{¶28} Johnson’s fourth assignment of error, in which he asserts that the
juvenile court erred in finding probable cause to believe that he had used a firearm to
facilitate the aggravated robbery of Woodard, is overruled on the same basis. Without a
transcript of the proceedings at the probable-cause and bindover hearings, and without
the entries which reflect the juvenile court’s decisions, Johnson cannot demonstrate
error in the record on appeal. See Knapp, 61 Ohio St.2d at 199, 400 N.E.2d 384. The
fourth assignment of error is overruled.
{¶29} In his fifth assignment of error, Johnson argues the juvenile court erred
in determining after reverse bindover from the trial court that Johnson was not
amenable to rehabilitation in the juvenile system. The record in this appeal reflects
that after imposing sentence, the trial court remanded the matter to the juvenile
court for proceedings under R.C. 2152.121(B)(3). It also reflects that the matter was
returned to the trial court no later than November 7, 2017, when the trial court
reissued its sentencing entry. However, the record does not contain any of the
evidentiary material from the juvenile court that would demonstrate an alleged error
in its reverse-bindover amenability determination. The fifth assignment of error is
overruled.
{¶30} Finally, Johnson asserts, in his third assignment of error, that because
of the alleged defects in the juvenile court’s bindover proceedings, the trial court
lacked subject-matter jurisdiction to adjudicate the charged offenses.
{¶31} Johnson argues, and the state does not dispute, that defects in
bindover proceedings affect the subject-matter jurisdiction of the common pleas
court to try a juvenile as an adult. See State v. Wilson, 73 Ohio St.3d 40, 44, 652
N.E.2d 196 (1995) (holding that absent a proper bindover procedure the juvenile
court has exclusive subject-matter jurisdiction over any case concerning a child who
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OHIO FIRST DISTRICT COURT OF APPEALS
is alleged to be delinquent); State v. Amos, 1st Dist. Hamilton No. C-150265, 2016-
Ohio-1319, ¶ 28 (noting that jurisdictional defects cannot be waived by a subsequent
guilty plea in adult court).
{¶32} But again, our record is silent as to what transpired in the juvenile
court and does not reflect any claimed defect in the trial court’s subject-matter
jurisdiction. The fifth assignment of error is overruled.
{¶33} We note, however, that a judgment imposed by a court that lacks
subject-matter jurisdiction is void. See State v. Payne, 114 Ohio St.3d 502, 2007-
Ohio-4642, 873 N.E.2d 306, ¶ 27. And while a trial court’s jurisdiction over a
criminal case is limited after it renders judgment, it retains jurisdiction to correct a
void judgment. See State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884
N.E.2d 568, ¶ 23; State v. Gilbert, 1st Dist. Hamilton No. C-110382, 2013-Ohio-238,
¶ 6.
IV. Conclusion
{¶34} Having overruled each of Johnson’s six assignments of error, we affirm
the judgment of the trial court.
Judgment affirmed.
ZAYAS and MILLER, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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