State v. Powell , 2021 Ohio 200 ( 2021 )

[Cite as State v. Powell, 2021-Ohio-200.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
GALLIA COUNTY
State of Ohio, : Case No. 20CA3
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
Tyrone Q. Powell, III, :
Defendant-Appellant. : RELEASED 1/26/2021
APPEARANCES:
Abigail Christopher and Lauren Hammersmith, Assistant State Public Defenders, Office
of the Ohio Public Defender, Columbus, Ohio for appellant.
Jason Holdren, Gallia County Prosecutor, Jeremy Fisher and Randy Dupree, Gallia
County Assistant Prosecutors, Gallipolis, Ohio, for appellee.
Hess, J.
{¶1} Tyrone Q. Powell, III appeals his murder conviction and contends that the
juvenile court abused its discretion when it refused to provide him with funding for an
investigator to help his attorneys prepare for the probable cause hearing and erred as a
matter of law when it denied his motion to suppress statements taken in violation of his
constitutional rights. Powell also argues that he did not knowingly and intelligently waive
his amenability hearing because he was not informed of the consequences of a transfer
to common pleas court. He argues that he was deprived of his right to effective assistance
of counsel because his attorney did not review all the evidence and properly investigate
the case before the probable cause hearing. Last, Powell contends that the juvenile court
Gallia App. No. 20CA3 2
violated his due process rights when it found probable cause for aggravated murder,
murder, and the gun specifications without credible evidence.
{¶2} We conclude that when Powell entered a guilty plea, he waived any alleged
constitutional violations unrelated to the entry of the guilty plea and nonjurisdictional
defects in the proceeding. Powell does not challenge his guilty plea and none of his
assignments of error raise jurisdictional errors. Therefore, Powell has waived them. We
overrule his assignments of error and affirm the trial court’s judgment.
I. PROCEDURAL HISTORY
{¶3} In May 2019, law enforcement filed a complaint in the Gallia County
Common Pleas Court, Juvenile Court Division against 15-year-old Powell for the April
2019 shooting death of Powell’s father, Tyrone Powell, II. The complaint contained one
count of aggravated murder in violation of R.C. 2903.01(A), an unclassified felony if
committed by an adult; one count of murder in violation of R.C. 2903.02(A) and one count
of murder in violation of R.C. 2903.02(B), both unclassified felonies if committed by an
adult; and two counts of aggravated robbery in violation of R.C. 2911.01(A)(3) and R.C.
2911.01(A)(1), both first degree felonies if committed by an adult. All counts contained
firearm specifications under R.C. 2152.021. The juvenile court appointed two attorneys
to represent Powell and he entered a plea denying the charges.
{¶4} The state filed a motion to transfer jurisdiction of the matter to the Gallia
County Common Pleas Court, General Division pursuant to Juv.R. 30 and R.C.
2152.10(B) and R.C. 2152.12(B) for criminal prosecution as an adult. In support of the
motion, the state alleged that the victim was Powell’s father, who was killed by a gunshot
Gallia App. No. 20CA3 3
wound to the head while Powell was on probation for felony level juvenile offenses
committed in Montgomery County, Ohio.
{¶5} At the first probable cause hearing Powell’s attorneys requested and the
court granted, a two-week continuance of the hearing to allow them time to review the
discovery materials provided by the state. Shortly thereafter, Powell’s attorneys sought
a second, 45-day continuance of the probable cause hearing to allow them additional time
to review the discovery. Powell’s attorneys also filed four additional motions seeking: (1)
that the juvenile court apply the Ohio Rules of Evidence to the probable cause hearing;
(2) an order requiring the state to provide full discovery at the probable cause stage; (3)
the appointment of a criminal investigator to assist counsel in effectively preparing for
trial; and (4) to suppress all oral, written, videotaped, and audiotaped statements Powell
made to investigators because they argued that Powell’s constitutional right against self-
incrimination was violated.
{¶6} The juvenile court granted Powell’s second request for a continuance of the
probable cause hearing and set the hearing date for July 25, 2019.
{¶7} Before the hearing commenced, the juvenile court addressed the pending
motions. On the discovery motion, the juvenile court stated that the parties agreed that
discovery demands had been met. Powell’s attorneys agreed that they had “all of the vital
information we need” even though “things will probably trickle in * * * but not pertinent to
today’s hearing.” On the motion to suppress, the juvenile court ruled that it was premature
at the probable cause stage, but it could be revisited in the future at the appropriate stage
in the proceedings. On the motion for a criminal investigator to assist them, Powell’s
attorneys stated that they wanted the juvenile court to consider their request as it hears
Gallia App. No. 20CA3 4
the evidence at the probable cause hearing and as they move forward with the case. The
juvenile court found that the request for investigative assistance was premature at the
probable cause stage, but agreed to look at the matter again at any future adjudication
phase. It does not appear from the record that the trial court addressed Powell’s request
that the Ohio Rules of Evidence be applied to the probable cause hearing. Thus, we
presume the motion was denied.
{¶8} Powell’s attorneys did not request any additional continuances of the
probable cause hearing or seek more time to review discovery. The juvenile court asked
Powell’s attorneys if they were ready to proceed with the hearing and they answered
affirmatively.
{¶9} At the hearing, Matthew White, a forensic scientist with the Ohio Bureau of
Criminal Investigations (BCI), testified as a firearms and ballistic expert. White testified
that he tested the Hi-Point model C9 9mm Luger semi-automatic pistol discovered during
the investigation and determined that it was operable and that the bullet that was removed
from the victim’s body was fired from that firearm. White testified that the Hi-Point in
question had two different types of safeties: a manual lever and a magazine safety. The
magazine safety operates such that if the magazine is removed, the firearm will not fire.
{¶10} Jenny Comisford testified that she is a special agent with the special
investigation unit of the BCI and the lead agent assisting the Gallipolis Police Department
with the investigation of the death of Tyrone Powell, II. Detective Comisford testified that
she determined that Powell, his four siblings, and Teriana Strickland, an adult female,
were present in the house when Tyrone Powell, II was shot. Detective Comisford testified
that she interviewed Powell and was present when other law enforcement officers
Gallia App. No. 20CA3 5
interviewed him. During the first three interviews Powell told investigators that he thought
his father had a heart attack. In the fourth interview, after he was given his Miranda rights,
Powell told investigators that he accidentally pulled the trigger of the firearm as his father
placed it in his hand. Powell told investigators that his father had removed the firearm
from a box, told Powell to get a towel so Powell could avoid touching the firearm, and
then removed an empty magazine out of it before placing the firearm in Powell’s hand.
Powell stated that he accidentally pulled the trigger as his father placed the firearm in his
hands, after which the gun dropped to the floor. Powell told investigators that he did not
touch the gun again after it dropped to the floor. Powell’s statement that the magazine
had been removed before he accidently shot his father was inconsistent with the firearm’s
magazine safety feature as described by White.
{¶11} Detective Comisford testified that she had the internet search history from
Powell’s cell phone that showed a number of searches about the Hi-Point model C9
firearm. When she asked Powell about the search history, Powell told her that some of
the searches were made at his father’s request and the results were shared with his
father. Detective Comisford testified that the gun was collected a few days after the
shooting and processed for DNA evidence. Powell’s DNA was found on the trigger, the
grip, the back slide, and the magazine. The victim’s DNA was not found on those
components. Detective Comisford testified that she questioned Teriana Strickland, who
had been asleep next to the victim when he was shot. Strickland told investigators that
she was asleep during the shooting and it did not awaken her. Strickland passed a
subsequent polygraph test and was not considered a suspect.
Gallia App. No. 20CA3 6
{¶12} Detective Sgt. Justin Rice with the Gallipolis Police Department testified that
he has advanced training in Cell Bridge cell phone extraction. Detective Rice testified that
a Hi-Point model C9 9mm handgun was found by persons cleaning the residence on April
26, 2019, 11 days after the shooting. According to Detective Rice, two women were
helping move items out of the residence and found the firearm when they pulled a dresser
away from the wall in an upstairs bedroom. Detective Rice sent the firearm to be tested
for DNA and for ballistics. Detective Rice testified about the extraction of internet search
history data from Powell’s cell phone. The state introduced a multipage exhibit of the cell
phone extraction data. The results showed the Powell was researching whether the Hi-
Point model C9 firearm could kill a person.
{¶13} On cross-examination, Detective Rice testified that a neighbor reportedly
found blood-soiled towels and clothing in an outbuilding behind her house. However, Rice
could not recall whether those items had been submitted to BCI for analysis. He testified
that those items were still in the police evidence room.
{¶14} Powell presented no witnesses or evidence.
{¶15} The juvenile court found that the state met its burden to show probable
cause only as to count one, aggravated murder, and count two, murder, and the related
firearm specifications. However, the state did not meet its burden of proof as to counts
three through five concerning murder while committing aggravated robbery and
aggravated robbery.
{¶16} The juvenile court set a date for an amenability hearing. Prior to the start of
the amenability hearing, Powell and his attorneys stated on the record that Powell was
waiving his right to an amenability hearing. The juvenile court conducted a colloquy in
Gallia App. No. 20CA3 7
which Powell’s attorney and the court questioned Powell to determine if the waiver was
made voluntarily and knowingly. Powell did not object to the waiver colloquy. The juvenile
court issued a judgment entry finding that: (1) Powell knowingly and intelligently waived
his right to an amenability hearing; (2) Powell underwent a psychological evaluation,
which was admitted into evidence and considered by the juvenile court; and (3) it
considered all the factors in R.C. 2152.12(D) and (E) (factors considered in determining
whether to make a discretionary transfer) and determined that Powell was not amenable
to care or rehabilitation within the juvenile system, and that the safety of the community
may require that he be subject to adult sanctions. The juvenile court identified the factors
it found in favor of the transfer under R.C. 2152.12(D) and stated that there were no
factors in R.C. 2152.12(E) weighing against the transfer. The juvenile court ordered
Powell to be transferred to the general division of the common pleas court of Gallia County
for criminal prosecution as an adult. Powell did not object to the juvenile court’s
determination that his wavier was knowingly and intelligently made, the amenability
findings, or the transfer order.
{¶17} A bill of information was filed in the general division charging Powell with
one count of murder in violation of R.C. 2903.02(A). Powell pleaded guilty and he and
the state made a jointly recommended sentence of an indefinite term of 15 years to life in
prison. The trial court accepted and imposed the jointly recommended sentence.
{¶18} Powell appealed.
II. ASSIGNMENTS OF ERROR
{¶19} Powell assigns the following errors for our review:
1. The trial court abused its discretion when it refused to provide Ty with
funding for an investigator, in violation of his right to due process under
Gallia App. No. 20CA3 8
the Fifth and Fourteenth Amendments to the U.S. Constitution and
Article I, Section 16, of the Ohio Constitution; Ake v. Oklahoma, 470
U.S. 68, 77, 105 S.Ct. 1097, 84 L.Ed.2d 53 (1985); State v. Mason, 82
Ohio St.3d 144, 150, 694 N.E.2d 932 (1998). (7/25/2019 T.p. 40).
2. The juvenile court erred as a matter of law and violated Ty’s right to due
process when it summarily denied his motion to suppress statements
taken in violation of his Fifth and Fourteenth Amendments. Juv.R. 30;
R.C. 2152.12; Fifth and Fourteen Amendments to the U.S. Constitution;
Article I, Section 16 of the Ohio Constitution. (7/8/2019 Motion to
Suppress; 7/25/2019 T.p. 36).
3. Ty did not knowingly and intelligently waive his amenability hearing
because he was not informed of the consequences of his case being
transferred to the common pleas court. Fifth and Fourteenth
Amendments to the U.S. Constitution; Article I, Section 16 of the Ohio
Constitution; State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544, 978
N.E.2d 434, ¶ 35-40. (10/30/2019 T.pp. 135-140).
4. Tyrone Powell, III was deprived of his constitutional right to the effective
assistance of counsel when counsel failed to review all evidence and
properly investigate the case before the probable cause hearing. Sixth
and Fourteenth Amendments to the U.S. Constitution; Article I, Section
16 of the Ohio Constitution. (7/25/2019 T.p. 35; 10/30/2019 T.p. 140).
5. The juvenile court violated Ty’s right to due process when it found
probable cause for aggravated murder, murder, and the gun
specifications in absence of credible evidence. R.C. 2152.12; Juv.R.
30(C); Fifth and Fourteenth Amendments to the U.S. Constitution; and
Article I, Section 16, Ohio Constitution. (A-1; 7/31/2019 Entry).
III. LAW AND ANALYSIS
A. The Bindover Procedure & Guilty Plea
{¶20} Juvenile courts have jurisdiction over children alleged to be delinquent for
committing acts that would constitute a crime if committed by an adult. R.C. 2151.23.
However, R.C. 2152.10 and R.C. 2152.12 provide for a mandatory or discretionary
transfer of the case to the court that would have jurisdiction over the offense if it had been
committed by an adult, commonly referred to as a “bindover procedure.” When the state
Gallia App. No. 20CA3 9
requests a discretionary transfer, the juvenile court must determine the age of the child,
whether probable cause exists to believe that the juvenile committed the act charged, and
whether the child is amenable to juvenile rehabilitation. R.C. 2152.12(B). Before
considering a transfer, the juvenile court must order an investigation of the child’s social
history, education, family situation and other factors that might bear on whether the child
is amenable to juvenile rehabilitation. R.C. 2152.12(C). In deciding whether to transfer
the case, the juvenile court must consider factors listed in R.C. 2152.12(D) and (E) to
determine whether 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. 2152.12(B)(3).
{¶21} To establish probable cause,
the state must provide credible evidence that “raises more than a mere
suspicion of guilt, but need not provide evidence proving guilt beyond a
reasonable doubt.” The juvenile court has the duty to assess the credibility
of the evidence and to determine whether the state has presented credible
evidence going to each element of the charged offense, but it is not
permitted to exceed the limited scope of the bindover hearing or to assume
the role of the fact-finder at trial. (Citations omitted.)
In re D.M., 140 Ohio St.3d 309, 2014-Ohio-3628, 18 N.E.3d 404, ¶ 10.
{¶22} A juvenile court “conducts a limited review of the evidence 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.’” State v. Legg, 2016-
Ohio-801, 63 N.E.3d 424, ¶ 35 (4th Dist.), quoting State v. Iacona, 93 Ohio St.3d 83, 93,
752 N.E.2d 937 (2001). However, the juvenile court may not “determine the merits of any
competing, credible prosecution and defense theories” because this is a matter reserved
for the factfinder at trial. Id.Gallia App. No. 20CA3 10
{¶23} A probable cause hearing is a preliminary, non-adjudicatory proceeding as
the court’s function is not to determine guilt, but rather whether there is probable cause
to believe the juvenile is guilty. State v. Burns, 8th Dist. Cuyahoga No. 108468, 2020-
Ohio-3966, ¶ 74; State v. Starling, 2d Dist. Clark No. 2018-CA-34, 2019-Ohio-1478, ¶ 26.
Because a probable cause hearing is non-adjudicatory, the evidence presented at the
hearing does not need to meet the same standards as those 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, and evidence that might be
suppressed on the basis of a Miranda violation is admissible during the hearing. Burns at
¶ 74; Starling at ¶ 27-28. “[S]tatutory and constitutional questions concerning the
admissibility of evidence are premature and need not be addressed” at a juvenile
probable cause hearing. State v. Whisenant, 127 Ohio App.3d 75, 85, 711 N.E.2d 1016(11th Dist. 1998); Burns at ¶ 77 (“defense counsel’s motion to suppress was not properly
before the juvenile court at the time of the probable cause hearing”); Starling at ¶ 32 (“we
find that filing a motion to suppress for the purposes of Starling’s probable cause hearing
would have been premature and improper”).
{¶24} The issue of whether the state presented sufficient evidence to demonstrate
probable cause to believe that the juvenile committed the act charged is a question of
law; an appellate court applies a de novo review. In re A.J.S., 120 Ohio St.3d 185, 2008-
Ohio-5307, 897 N.E.2d 629, ¶ 47, 51; Legg at ¶ 36. However, appellate courts defer to
the juvenile court’s “determinations regarding witness credibility.” Legg at ¶ 26. In
contrast, an amenability hearing is a broad assessment of individual circumstances and
is inherently individualized and fact-based. Thus, a juvenile court's determination
Gallia App. No. 20CA3 11
regarding a child's amenability to rehabilitation in the juvenile system is reviewed by an
appellate court under an abuse-of-discretion standard. In re M.P., 124 Ohio St.3d 445,
2010-Ohio-599, 923 N.E.2d 584, ¶ 13-14.
{¶25} Here Powell was transferred to the general division of the common pleas
court where he pleaded guilty.
“The plea of guilty is a complete admission of the defendant’s guilt.” Crim.R.
11(B)(1). See also State v. Shafer, 4th Dist. Adams No. 17CA1047, 2018-
Ohio-214, ¶ 21, quoting Menna v. New York, 423 U.S. 61, 62, 96 S.Ct. 241,
46 L.Ed.2d 195 (1975), fn. 2 (“a guilty plea constitutes ‘an admission of
factual guilt so reliable that, where voluntary and intelligent, it quite validly
removes the issue of factual guilt from the case’ ”). A guilty plea “ ‘renders
irrelevant those constitutional violations not logically inconsistent with the
valid establishment of factual guilt and which do not stand in the way of
conviction if factual guilt is validly established.’ ” State v. Fitzpatrick, 102
Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶ 78, quoting Menna at
62, fn. 2. Thus, 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.’ ” Id., quoting Tollett v.
Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). “In
other words, a voluntary, knowing, and intelligent guilty plea waives any
alleged constitutional violations unrelated to the entry of the guilty plea and
nonjurisdictional defects in the proceedings.” State v. Legg, 2016-Ohio 801,
63 N.E.3d 424, ¶ 12 (4th Dist.), citing State v. Ketterer, 111 Ohio St.3d 70,
2006-Ohio-5283, 855 N.E.2d 48, ¶ 105; State v. Storms, 4th Dist. Athens
No. 05CA30, 2006-Ohio-3547, ¶ 9.
State v. Martin, 4th Dist. Pike No. 19CA900, 2020-Ohio-3216, ¶ 6. A guilty plea also
waives the right to assert ineffective assistance of counsel unless counsel’s errors
affected the knowing and voluntary nature of the plea. Legg at ¶ 61; State v. E.T., 2019-
Ohio-1204, 134 N.E.3d 741, ¶ 37 (10th Dist.). Therefore, Powell’s guilty plea waives any
alleged constitutional violations that occurred in the bindover proceeding and
nonjurisdictional defects in the proceedings. Legg at ¶ 50.
Gallia App. No. 20CA3 12
{¶26} The issue of a court’s subject matter jurisdiction cannot be waived.
“[A]bsent 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. Wilson, 73 Ohio St.3d 40, 44-46, 652 N.E.2d 196 (1995). In Wilson, the juvenile
was 17 years old at the time of his criminal activity and never appeared before the juvenile
court, apparently because the state and the court mistakenly believed that he was 18
years of age when he committed the crime. He appeared before and was convicted and
sentenced by the general division of the court of common pleas without any bindover
proceeding or transfer order from the juvenile court.
{¶27} Not every error in a bindover proceeding is jurisdictional. Smith v. May, 159
Ohio St.3d 106, 2020-Ohio-61, 148 N.E.3d 542, ¶ 31 (“not every requirement [in R.C.
2152.12], even if mandatory, is jurisdictional in nature”); State v. Quarterman, 140 Ohio
St.3d 513, 2014-Ohio-4034, 19 N.E.3d 900 (claims that mandatory bindover procedures
violated due process and equal protection rights and the prohibition against cruel and
unusual punishment were nonjurisdictional and were forfeited when they were not raised
in the lower court); State v. Morgan, 153 Ohio St.3d 196, 2017-Ohio-7565, 103 N.E.3d
784 (juvenile court’s failure to appoint guardian ad litem at the amenability hearing was
nonjuridictional error, was forfeited, and was subject to a criminal plain error review); State
v. Martin, 154 Ohio St.3d 513, 2018-Ohio-3226, 116 N.E.3d 127, ¶ 25-27 (finding that the
safe harbor law that requires the appointment of a guardian ad litem for certain human-
trafficking victims charged with juvenile delinquency “are not jurisdictional requirements”).
{¶28} In Smith v. May, the appellant sought a writ of habeas corpus on the ground
that the adult court lacked jurisdiction over him because the juvenile court failed to comply
Gallia App. No. 20CA3 13
with a notice provision in the bindover statute. The Court ordered the parties to brief the
question: “Does the procedural error in the juvenile-bindover proceeding create a
jurisdictional defect that deprived the general division of the common pleas court of
subject-matter jurisdiction?” The Court answered “no” and determined that the procedural
error was not jurisdictional, the general division had jurisdiction over his criminal case,
and it affirmed the appellate court’s denial of the writ. In doing so, it overruled Gaskins v.
Shiplevy, 74 Ohio St.3d 149, 656 N.E.2d 1282 (1995) (“Gaskins I”) (Gaskins argued that
his criminal conviction was void because the juvenile court failed to have him undergo
mental and physical examinations that were statutorily required at the time; the transfer
was flawed and the adult court lacked jurisdiction). “The Gaskins I court was wrong in
adopting the broad rule that any deviation from the statutory bindover procedure renders
the adult court’s judgment void.” (Emphasis sic.) Smith v. May, 159 Ohio St.3d 106, 2020-
Ohio-61, 148 N.E.3d 542, ¶ 28, reconsideration denied, 158 Ohio St.3d 1437, 2020-Ohio-
877, 141 N.E.3d 254.
[W]e have held that key parts of the bindover procedure may be waived.
And we have reviewed for plain error when a juvenile failed to object at a
bindover hearing to a juvenile court’s procedural error. These cases
implicitly provide, contrary to Gaskins I, that noncompliance with a statutory
bindover requirement does not prevent a juvenile court from transferring its
jurisdiction over a case and does not render an adult court’s judgment void.
(Citations omitted.)
May at ¶ 18.
{¶29} The Court also noted that, while Gaskin I “had viewed all the requirements
of the bindover procedure as jurisdictional (and thus not waivable)” its subsequent review
after remand in Gaskins v. Shiplevy, 76 Ohio St.3d 380, 667 N.E.2d 1194 (1996) (“Gaskin
II”) held that the evidence of a waiver of these examination rights showed that there had
Gallia App. No. 20CA3 14
been full compliance with the bindover procedures, “thus signaling that the mandates of
the bindover statute were not jurisdictional after all.” May at ¶ 25. The Court also
recognized a developing body of case law that finds that bindover proceedings can be
waived. “This all shows that a bindover procedure is ‘proper’ even when the juvenile
waives R.C. 2152.12’s mandatory requirements. And if the requirements are waivable,
they are not jurisdictional.” May at ¶ 26.
Just last year, we validated Gaskins II. See Johnson v. Sloan, 154 Ohio
St.3d 476, 2018-Ohio-2120, 116 N.E.3d 91, ¶ 16-17. And in another recent
case, we held that a juvenile may waive the right to an amenability hearing,
which is central to any discretionary bindover procedure. D.W., 133 Ohio
St.3d 434, 2012-Ohio-4544, 978 N.E.2d 894, at ¶ 21. This all shows that a
bindover procedure is “proper” even when the juvenile waives R.C.
2152.12's mandatory requirements. And if the requirements are waivable,
they are not jurisdictional. See Wilson, 73 Ohio St.3d 40, 652 N.E.2d 196,
at paragraph two of the syllabus (“The exclusive subject matter jurisdiction
of the juvenile court cannot be waived”); State v. Mbodji, 129 Ohio St.3d
325, 2011-Ohio-2880, 951 N.E.2d 1025, ¶ 10 (“Because subject-matter
jurisdiction involves a court's power to hear a case, the issue can never be
waived or forfeited and may be raised at any time”).
While Gaskins II undermined Gaskins I by concluding that a juvenile may
waive the bindover procedure's statutory mandates, other cases have
undermined Gaskins I by concluding that a juvenile may forfeit them.
In Morgan, we held that R.C. 2151.281(A)(1) requires a juvenile court to
appoint a guardian ad litem at an amenability hearing when the juvenile's
parents are deceased and there is no guardian or legal custodian. 153 Ohio
St.3d 196, 2017-Ohio-7565, 103 N.E.3d 784, at ¶ 28. But we held that
noncompliance with the statute is subject to plain-error review. Id. at ¶ 49.
We also reviewed for plain error in State v. Martin, another case in which a
bindover error had occurred. 154 Ohio St.3d 513, 2018-Ohio-3226, 116
N.E.3d 127, ¶ 27. In these cases, we did not view an improper bindover
procedure as a fundamental defect that prevented the juvenile court from
transferring jurisdiction to an adult court. Indeed, in Martin, we
distinguished Wilson, noting that the juvenile “was not deprived of R.C.
2152.12 bindover proceedings altogether.” Martin at ¶ 25.
May at ¶ 26-27.
Gallia App. No. 20CA3 15
{¶30} The Court explained that while both jurisdictional and nonjurisdictional
errors may be raised on direct appeal, categorizing an error as nonjurisdictional “would
mean that a criminal offender may not collaterally attack a final judgment years after the
fact.” May at ¶ 31. Categorizing an error as jurisdictional would mean that it could be
collaterally attacked via a habeas corpus petition many years later, even if the petitioner
could have, but did not, raise the error on direct appeal.
{¶31} The Court rejected the petitioner’s arguments that the notice provision in
question was a prerequisite to the transfer of jurisdiction to an adult court and, therefore,
a jurisdictional error. “No language in R.C. 2152.12(G) [the relevant notice provision]
suggests that the provision of notice is a prerequisite to the transfer of jurisdiction to an
adult court.” It rejected the argument that by treating the notice provisions as waivable or
subject to forfeiture it renders it nonmandatory and ineffective:
But “not every requirement, even if mandatory, is jurisdictional in
nature.” Pryor at ¶ 15; see also Martin, 154 Ohio St.3d 513, 2018-Ohio-
3226, 116 N.E.3d 127, at ¶ 27 (“R.C. 2152.021's mandates are not
jurisdictional requirements”); Gonzalez v. Thaler, 565 U.S. 134, 146, 132
S.Ct. 641, 181 L.Ed.2d 619 (2012) (“calling a rule nonjurisdictional does not
mean that it is not mandatory or that a timely objection can be
ignored”); Union Pacific RR. Co. v. Brotherhood of Locomotive Engineers &
Trainmen Gen. Commt. of Adjustment, Cent. Region, 558 U.S. 67, 81, 130
S.Ct. 584, 175 L.Ed.2d 428 (2009), quoting Arbaugh, 546 U.S. at 510, 126
S.Ct. 1235, 163 L.E.2d 1097 (“Not all mandatory ‘prescriptions, however
emphatic,’ ” are properly classified as “ ‘jurisdictional’ ”). Holding that R.C.
2152.12(G) is nonjurisdictional would not mean that notice is
nonmandatory. A juvenile still may object to noncompliance and, even
absent an objection, may raise an issue of noncompliance on direct appeal
following conviction. See Golphin, 81 Ohio St.3d 543, 692 N.E.2d 608. But
it would mean that a criminal offender may not collaterally attack a final
judgment years after the fact.
May at ¶ 31.
Gallia App. No. 20CA3 16
{¶32} The Court also rejected the argument that the notice provision’s inclusion in
the bindover statute makes it a prerequisite to transfer, particularly in view of the Court’s
decision to overrule Gaskins I:
To be sure, this court has in some cases viewed R.C. 2152.12's mandatory
requirements as prerequisites to the transfer of jurisdiction. But in view of
our decision to overrule Gaskins I, Smith's argument has little force because
he does not consider whether R.C. 2152.12(G), in particular, clearly
establishes a barrier to the transfer of jurisdiction.
Id. at ¶ 32.
{¶33} Finally, the Court rejected the argument that the notice provision is a due-
process protection and thus jurisdictional. It noted that a juvenile may waive constitutional
rights and other key parts of bindover procedure, including amenability hearings:
This argument misses an important fact. We have held that a juvenile may
waive other key parts of the bindover procedure, such as an amenability
hearing. D.W., 133 Ohio St. 3d 434, 2012-Ohio-4544, 978 N.E.2d 894, at ¶
21. In support of that holding, we explained that “[e]ven though ‘[t]here is a
presumption against the waiver of constitutional rights,’ an individual can
still waive his constitutional rights as long as the waiver is made knowingly
and intelligently and is an intentional relinquishment of a known right.” Id. at
¶ 24, quoting Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct. 1245, 16 L.Ed.2d
314 (1966). Smith has not shown why his waiver of R.C. 2152.12(G)'s
protections—even if they are constitutional in character—was not
permissible.
Id. at ¶ 33. The Court held that the error was not jurisdictional and the sentencing court
did not lack subject-matter jurisdiction. Id. at ¶ 34.
{¶34} If an error in a bindover proceeding is nonjurisdictional, it can be waived by
a voluntary guilty plea or forfeited by the failure to preserve it in the juvenile court
proceedings. In State v. Morgan, 153 Ohio St.3d 196, 2017-Ohio-7565, 103 N.E.3d 784,
a juvenile delinquent was transferred to the adult court and pleaded guilty to burglary,
felonious assault and aggravated robbery with firearm specifications. On appeal, he
Gallia App. No. 20CA3 17
challenged the juvenile court’s failure to appoint a guardian ad litem at the amenability
hearing even though he failed to raise the issue in the juvenile court. The Ohio Supreme
Court held that the plain-error standard that courts apply in criminal proceedings should
apply when errors that are not preserved arise in juvenile-delinquency proceedings. Id. at
¶ 49.
{¶35} In State v. Martin, 154 Ohio St.3d 513, 2018-Ohio-3226, 116 N.E.3d 127,
the juvenile was bound over to adult court and entered a guilty plea to aggravated murder
and felonious assault, with firearm specifications. On appeal, Martin contended that the
juvenile court was required to apply Ohio’s “safe harbor” law, which benefits certain
human-trafficking victims and requires a guardian ad litem be appointed. Martin did not
raise this issue or make an objection in the juvenile court. The appellate court found that
Martin had forfeited the error. The Ohio Supreme Court held that the failure to appoint a
guardian ad litem for the amenability hearing under the safe-harbor law was a non-
jurisdictional issue and could be forfeited.
In State v. Wilson, 73 Ohio St.3d 40, 652 N.E.2d 196 (1995), this court held
that unless proper bindover proceedings occur, the juvenile court has
exclusive jurisdiction over cases concerning children alleged to be
delinquent and that jurisdiction cannot be waived, id. at syllabus. But Martin
was not deprived of R.C. 2152.12 bindover proceedings altogether, and she
does not argue that the court's amenability ruling was erroneous. Rather,
she argues that the juvenile court's failure to appoint a guardian ad litem
and to consider and apply the safe-harbor law invalidated her transfer to
adult court.
Martin at ¶ 25.
{¶36} Because the Court found that Martin had forfeited any safe-harbor error by
failing to raise it in juvenile court, the Court did not address the question of whether
Martin’s guilty plea resulted in a waiver:
Gallia App. No. 20CA3 18
[W]e hold that when there was no objection to a juvenile court's failure to
consider the applicability of R.C. 2152.021(F), as in this case, the criminal
plain-error standard applies. And here, Martin cannot carry her burden of
demonstrating plain error. Because she cannot do so, we need not address
whether her guilty plea in adult court waived her claim that the juvenile court
erred in failing to consider R.C. 2152.021(F).
Martin at ¶ 2.
B. The Errors Powell Raises Are Not Jurisdictional and Are Waived
{¶37} Powell raises five assignments of error and we must determine whether his
guilty plea results in a waiver of these alleged errors. Based on May and relevant habeas
corpus case law, we find that none of Powell’s assignments of error raise jurisdictional
challenges; he waived the errors when he pleaded guilty. Powell does not contest the
validity of his guilty plea. He pled guilty to murder, which removed the issue of factual guilt
from the case. He has waived all constitutional violations that occurred prior to the entry
of the guilty plea. We find that none of the purported juvenile court errors created a
jurisdictional defect that deprived the adult court of subject-matter jurisdiction.
1. Failure to Appoint an Investigator
{¶38} For his first assignment of error, Powell contends the juvenile court erred
when it failed to appoint a criminal investigator to assist his attorneys with the probable
cause hearing. “Deviation from a bindover procedure gives rise to a potentially valid
habeas claim only if the applicable statute clearly makes the procedure a prerequisite to
the transfer of jurisdiction to an adult court.” May, at ¶ 29. Because habeas corpus claims
raise jurisdictional challenges, a deviation from a bindover procedure gives rise to
jurisdictional errors only if the applicable statute clearly makes the procedure a
prerequisite to the transfer of jurisdiction to the adult court. However, not only is there no
statutory requirement that an investigator be appointed to assist with the probable cause
Gallia App. No. 20CA3 19
hearing as a prerequisite to a transfer to adult court, there is no statutory requirement at
all. Therefore, a failure to appoint an investigator cannot possibly be a barrier to the adult
court obtaining jurisdiction. Because any error in the refusal to appoint an investigator is
not jurisdictional, Powell waived this error when he pleaded guilty.
{¶39} We overrule his first assignment of error.
2. Motion to Suppress
{¶40} For his second assignment of error Powell contends that the juvenile court
erred when it denied his motion to suppress statements made in violation of his Miranda
rights. However, as we discussed above, probable cause hearings are non-adjudicatory
– the Ohio Rules of Evidence and constitutional questions concerning admissibility are
premature and are not addressed at this stage. There is no statutory requirement that the
juvenile court hear and resolve a suppression motion at the probable cause hearing.
Thus, a suppression hearing is not a statutory procedure that is a prerequisite to the
transfer of jurisdiction to an adult court. Any error in denying the suppression motion is
not jurisdictional and was waived when Powell entered his guilty plea.
{¶41} We overrule his second assignment of error.
3. Errors in the Waiver Colloquy
{¶42} For his third assignment of error Powell claims that his waiver of the
amenability hearing was invalid because during the waiver colloquy, the juvenile court
failed to explain the increased penalties to him before accepting his waiver. He did not
object to the colloquy in juvenile court or object to the juvenile court’s findings in its
transfer order. Powell is not claiming that he never waived the amenability hearing; he is
Gallia App. No. 20CA3 20
claiming that his waiver is invalid because the juvenile court’s colloquy to determine the
validity of the waiver was inadequate.
{¶43} In State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544, 978 N.E.2d 894,
there was no evidence in the record that the juvenile waived the amenability hearing. The
Court held that “an amenability hearing under R.C. 2152.12(B)(3) may be waived
provided (1) the juvenile, through counsel, expressly states on the record a waiver of the
amenability hearing and (2) the juvenile court engages in a colloquy on the record with
the juvenile to determine that the waiver was made knowingly, voluntarily, and
intelligently.” Id. at ¶ 47. The bindover proceedings require either that an amenability
hearing be held or that the juvenile court conduct the two-step waiver process set forth in
D.W.
{¶44} Here the juvenile court conducted the two-step waiver process, but Powell
contends the waiver colloquy was inadequate, making his waiver invalid. However, as
discussed in May, the fact that an amenability hearing or, alternatively, a waiver of it are
mandatory, does not make them jurisdictional. May at ¶ 18. “[We have held that key parts
of the bindover procedure may be waived * * *. These cases implicitly provide * * * that
noncompliance with a statutory bindover requirement does not prevent a juvenile court
from transferring its jurisdiction over a case and does not render an adult court’s judgment
void” Id. “And if the requirements are waivable, they are not jurisdictional.” Id. at ¶ 26.
Because the juvenile court conducted the waiver colloquy – even if we assume it was
faulty – it could transfer the case to the adult court and the adult court had subject-matter
jurisdiction. May at ¶ 37-38, 41 (Kennedy, J., concurring in judgment only, joined by
DeWine, J.). Any error by the juvenile court in conducting the waiver colloquy was not
Gallia App. No. 20CA3 21
jurisdictional and made the judgment voidable, not void. “[W]hen a specific action is within
a court’s subject-matter jurisdiction, any error in the exercise of that jurisdiction renders
the court’s judgment voidable, not void.” May at ¶ 40 (Kennedy, J., concurring in judgment
only, joined by DeWine, J.).
{¶45} As the May concurrence explained, the reason the adult court lacked
jurisdiction in State v. Wilson, supra, was because the juvenile court never held any
bindover proceedings and did not issue an order transferring the case to the adult court.
As a result, the adult court never had jurisdiction. However, where the juvenile court holds
bindover proceedings – albeit faulty ones – and issues an order transferring the case to
the adult court, then the adult court does have subject-matter jurisdiction. The error is not
jurisdictional and the court’s judgment is only voidable, not void. May at ¶ 41-42 (Kennedy,
J. concurring in judgment only, joined by DeWine, J.); State v. Deems, 10th Dist. No.
19AP857, 2020-Ohio-4076, ¶ 23 (interpreting Smith v. May and finding that a juvenile
court’s failure to order a physical examination as required by the former bindover statute
was not a jurisdictional error and did not deprive the adult court of jurisdiction).
{¶46} Habeas corpus cases also support our determination that errors in an
amenability-hearing waiver colloquy are not jurisdictional. A criminal offender cannot
collaterally attack a final judgment many years later by raising challenges to the juvenile
court’s waiver colloquy. Errors in the waiver colloquy are not jurisdictional and must be
brought on appeal, not as a habeas claim. For example, in Smith v. Bradshaw, petitioner
argued that his criminal conviction was void and he was entitled to a writ of habeas corpus
because his bindover procedure was improper on the grounds that: (1) he had not had a
physical and mental examination and (2) “his waiver of the probable cause hearing had
Gallia App. No. 20CA3 22
been invalid.” Smith v. Bradshaw, 109 Ohio St.3d 50, 2006-Ohio-1829, 845 N.E.2d 516,
¶ 7. The Court affirmed the dismissal of his habeas corpus petition because, “Smith had
an adequate remedy at law by appeal to raise his claims.” Id. at ¶ 11. The Court reasoned,
“Smith cites no habeas corpus case involving waiver of a probable-cause determination
in support of his claim of improper bindover. Instead, he relies predominately on cases
resolved in the ordinary course of law on appeal rather than by extraordinary writ.” Id. at
¶ 14. Smith could not challenge the validity of his waiver of the probable cause hearing
via a habeas corpus petition, which means that an error in the waiver was not
jurisdictional. Just as Gaskin II was “signaling that the mandates of the bindover statute
were not jurisdictional after all,” the decision in Smith v. Bradshaw signals that errors in a
juvenile court’s waiver colloquy are not jurisdictional. May at ¶ 25.
{¶47} The purported error in the juvenile court’s amenability-hearing waiver
colloquy is not jurisdictional. Powell waived it by pleading guilty.1
{¶48} We overrule his third assignment of error.
4. Ineffective Assistance of Counsel
{¶49} Powell’s fourth assignment of error raises an ineffective assistance of
counsel claim in which he claims that his attorneys needed an investigator to help them
prepare for the probable cause hearing, they did not get one, and therefore they were
unable to properly prepare for the probable cause hearing. He speculates that, if better
prepared, his attorneys “could have called additional witnesses to refute the government’s
1 Because we find that Powell waived this error with his guilty plea, we need not determine whether he
forfeited it by failing to object and, therefore, we need not conduct a plain-error review. State v.
Quarterman, 140 Ohio St.3d 513, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15 (explaining the difference
between waiver and forfeitures); State v. Martin, 154 Ohio St.3d 513, 2018-Ohio-3226, 116 N.E.3d 127, ¶
2 (because Martin had forfeited the error but could not show plain-error, the Court did not need to
determine if the error was waived by her guilty plea).
Gallia App. No. 20CA3 23
evidence.” He argues that he was “not able to refute the government’s evidence at
probable cause, which caused the juvenile court to find probable cause.” The record
shows that: (1) Powell was appointed not one, but two experienced attorneys; (2) he was
provided all the relevant discovery prior to the probable cause hearing; (3) he was granted
several extensions of the hearing date so that his attorneys could fully review the
discovery; (4) his attorneys did not seek any additional extensions of the hearing date;
and (5) when the juvenile court asked if they were ready to proceed with the hearing, they
responded affirmatively.
{¶50} In Legg, a juvenile defendant that had pleaded guilty in adult court
challenged errors made in his juvenile bindover proceedings. We found that the appellant
“who pleads guilty waives the right to claim ineffective assistance of counsel on appeal,
except to the extent that counsel’s deficient performance cause the plea to be less than
knowing and voluntary.” Legg at ¶ 61. However, due to the lack of guidance in the
bindover case law, we reviewed the ineffective assistance claim anyway, “[a]ssuming,
arguendo” that it was not waived. Legg at ¶ 61. In Starling, supra, a case decided prior to
May, the appellate court found this type of claim only “indirectly” attacks the jurisdiction
of the trial court. Starling at ¶ 23; Bozsik v. Hudson, 110 Ohio St.3d 245, 2006-Ohio-4356,
852 N.E.2d 1200, ¶ 7 (“Claims involving the ineffective assistance of counsel or the
alleged denial of the right to counsel are not cognizable in habeas corpus.”). Recently the
Eleventh District Court of Appeals held that a claim of ineffective assistance of counsel
arising from a bindover proceeding could not be raised via a habeas corpus petition
because it could be raised on direct appeal or by a postconviction petition and thus,
Gallia App. No. 20CA3 24
implicitly, the error was not jurisdictional. Washington v. Eppinger, 11th Dist. No. 2020-T-
0024, 2020-Ohio-3851, ¶ 46, 49.
{¶51} Powell’s contention, which is unsupported by the record, is that his
attorneys did not adequately prepare for the probable cause hearing, which resulted in a
violation of his Sixth Amendment right to counsel. Powell does not contend that this
alleged constitutional violation deprived the adult court of jurisdiction or invalidated his
guilty plea. We find that his ineffective assistance of counsel claim, even if meritorious,
was not a jurisdictional error and did not deprive the adult court of jurisdiction. Powell
waived this claim with his guilty plea.
{¶52} We overrule Powell’s fourth assignment of error.
5. Sufficiency of Evidence to Support Probable Cause Determination
{¶53} For his fifth assignment of error Powell contends that the juvenile court’s
probable cause finding was not supported by sufficient evidence because the state relied
on hearsay and unauthenticated documents and did not adequately investigate other
potential suspects.
{¶54} In Legg, appellant contended that the juvenile court’s probable cause
finding was not supported by the evidence. Legg, 2016-Ohio-801, ¶ 24. We recognized
the need for further guidance from the Ohio Supreme Court on whether errors in the
bindover procedure are jurisdictional. Legg at ¶ 30-31. We observed that several Ohio
appellate courts have held that a defendant who pleads guilty in common pleas court may
challenge on appeal a juvenile court’s probable cause finding in support of the bindover.
Id. at ¶ 30. We found it “arguable” that “a challenge to the sufficiency of probable cause
evidence in a mandatory bindover proceeding” raised a jurisdictional error. However, “in
Gallia App. No. 20CA3 25
the absence of further guidance from the Ohio Supreme Court” we decided that his guilty
plea did not result in a waiver:
Thus, even though appellant entered a guilty plea, thereby completely
admitting that he committed aggravated murder, we will consider his claim
that the state did not present sufficient evidence to establish probable cause
to believe he committed the acts charge in the delinquency complaints.
Legg at ¶ 31; but see Agee v. Russell, 92 Ohio St.3d 540, 2001-Ohio-1279, 751 N.E.2d
1043 (2001) (In response to Agee’s challenge to his probable cause hearing, the Court
found the error was not jurisdictional: “In the absence of a patent and unambiguous lack
of jurisdiction, Agee had an adequate remedy at law by appeal to raise his claim
concerning the allegedly improper bindover.”); Smith v. Bradshaw, 109 Ohio St.3d 50,
2006-Ohio-1829, 845 N.E.2d 516 (alleged invalidity of waiver of probable cause hearing
was not jurisdictional); contra State v. E.T., 2019-Ohio-1204, 134 N.E.3d 741, ¶ 42-45
(10th Dist.) (a pre-May decision discussing whether appellant’s claim that the state did
not present sufficient evidence to establish probable cause was waived by the appellant’s
guilty plea in adult court and determining that a juvenile court’s finding of probable cause
in the face of insufficient evidence was a jurisdictional error and reviewed it).
{¶55} Like amenability hearings, probable cause hearings may be waived, or the
juvenile may stipulate to probable cause. State v. J.T.S., 10th Dist. Franklin No. 14AP-
516, 2015-Ohio-1103, ¶ 20. Because probable cause hearings are waivable, they are not
jurisdictional. May, 2020-Ohio-61, at ¶ 26 (a bindover procedure is “proper” even when
the juvenile waives a mandatory requirement, “And if the requirements are waivable, they
are not jurisdictional.”). Powell’s claim that the state did not present sufficient evidence of
probable cause does not raise a jurisdictional error. He waived it by his guilty plea and he
Gallia App. No. 20CA3 26
“quite validly” removed the issue of factual guilt from the case. State v. Shafer, 4th Dist.
Adams No. 17CA1047, 2018-Ohio-214, ¶ 21.
{¶56} We overrule Powell’s fifth assignment of error.
IV. CONCLUSION
{¶57} Powell waived all nonjurisdictional errors in his bindover proceeding when
he pleaded guilty in the common pleas court, general division. He does not contest the
validity of his guilty plea and none of Powell’s assignments of error raise jurisdictional
challenges. We find that he has waived the purported errors in the bindover proceeding
and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
Gallia App. No. 20CA3 27
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the GALLIA
COUNTY COURT OF COMMON PLEAS, to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty-day period, or the failure of the Appellant to file a notice of appeal with the Supreme
Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules
of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio
dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.