State v. Morgan , 2014 Ohio 5661 ( 2014 )

[Cite as State v. Morgan, 2014-Ohio-5661.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 13AP-620
(C.P.C. No. 12CR-5458)
v. :
(REGULAR CALENDAR)
Raymond Morgan, :
Defendant-Appellant. :
D E C I S I O N
Rendered on December 23, 2014
Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
appellee.
Timothy Young, Ohio Public Defender, and Charlyn Bohland,
for appellant.
APPEAL from the Franklin County Court of Common Pleas
LUPER SCHUSTER, J.
{¶ 1} Defendant-appellant, Raymond Morgan, appeals from a judgment entry of
the Franklin County Court of Common Pleas finding him guilty, pursuant to a guilty plea,
of one count of burglary, two counts of felonious assault with accompanying firearm
specifications, and one count of aggravated robbery with accompanying firearm
specification. For the following reasons, we affirm in part and reverse in part.
I. Facts and Procedural History
{¶ 2} This case originated as three separate complaints in the Franklin County
Court of Common Pleas, Division of Domestic Relations, Juvenile Branch ("juvenile
court") alleging appellant was a delinquent child. The first complaint charged appellant
with two counts of felonious assault, second-degree felonies, in violation of R.C.
No. 13AP-620 2
2903.11(A)(2) if committed by an adult, with accompanying firearm specifications
attached to each count. The second complaint charged appellant with one count of
aggravated robbery, a first-degree felony, in violation of R.C. 2911.01(A)(1) if committed
by an adult, one count of robbery, a second-degree felony, in violation of R.C.
2911.02(A)(1) if committed by an adult, one count of felonious assault, a second-degree
felony, in violation of R.C. 2903.11(A)(1) if committed by an adult, and one count of
kidnapping, a first-degree felony, in violation of R.C. 2905.01(A)(2) if committed by an
adult, with accompanying firearm specifications attached to each count. The third
complaint charged appellant with one count of receiving stolen property, a fifth-degree
felony, in violation of R.C. 2913.51(A) if committed by an adult. Appellant was 16 years
old at the time of the commission of the offenses and at the time the state filed the three
complaints.
{¶ 3} By motions filed March 5, 15, and 27, 2012, the state moved the juvenile
court, pursuant to Juv.R. 30 and R.C. 2152.12(B), to relinquish its jurisdiction and
transfer the three cases to the general division of the common pleas court for criminal
prosecution of appellant as an adult.
{¶ 4} At a hearing on June 14, 2012, appellant expressed a desire to the juvenile
court to have his attorney removed from the case "[b]ecause he's not trying to help me go
home." (June 14, 2012 Tr. 5.) The juvenile court determined appellant's counsel was
providing adequate and appropriate representation for appellant and directed that
appellant's counsel continue on in the case.
{¶ 5} The juvenile court conducted probable cause hearings for each of the three
complaints and found there was probable cause to believe that appellant committed all of
the charged offenses.
{¶ 6} On October 24, 2012, the juvenile court conducted an amenability hearing
for each of three complaints. Appellant was represented by counsel at the hearing but did
not have a parent or guardian present; his father died in January of that year and his
mother died shortly before the amenability hearing. The juvenile court noted it had
considered the psychological evaluation of Dr. Barbara Bergman recommending appellant
is amenable to care and/or rehabilitation in the juvenile system. The court nonetheless
noted "the particularly egregious nature of this gun violence crime spree," and concluded
No. 13AP-620 3
appellant is not amenable to care or rehabilitation in the juvenile system. (Oct. 24, 2012
Tr. 17.) The juvenile court sustained the state's motion to relinquish jurisdiction to the
general division of the common pleas court in an October 24, 2012 entry.
{¶ 7} Upon transfer, the general division of the common pleas court consolidated
all three juvenile cases into a single case number. Following transfer of jurisdiction, the
Franklin County Grand Jury returned a 13-count indictment reflecting the same charges
listed in the juvenile court complaints.
{¶ 8} Appellant initially entered a plea of not guilty. On April 30, 2013, appellant
entered a guilty plea to an amended complaint of one count of burglary, two counts of
felonious assault enhanced with firearm specifications, and one count of aggravated
robbery enhanced with a firearm specification. At the plea hearing, the prosecutor recited
the pertinent facts.
{¶ 9} According to the stipulated facts, the offenses contained in appellant's
indictment occurred in four separate incidents over the course of two days. On
February 8, 2012, police received a report from Craig Youngman that someone had
broken into his residence and stolen two semiautomatic handguns, a camera, and a
camera lens. Later that same day, Bruce Sedlock was walking into his home through his
front door when he heard a gunshot and realized he had been shot in the leg. He located a
spent bullet on the kitchen floor, called police, and was transported to Grant Medical
Center by ambulance.
{¶ 10} Approximately 30 minutes later, Eric Hayes exited his vehicle on Steward
Avenue when he saw two males walk by him. He heard two gunshots and realized he had
been shot. Hayes was also transported to Grant Medical Center where he underwent
surgery to remove his spleen as a result of the gunshot wounds. Hayes did not get a clear
look at the person who shot him.
{¶ 11} The next day, February 9, 2012, Jimmy White was walking alone on East
Whittier Street when he passed appellant, R.D., and Joshua Morgan, appellant's brother.
When White looked over his shoulder, he saw Joshua approaching him with a handgun
which he pointed at White and demanded White's property. White pulled a utility knife
from his pocket and stabbed Joshua in the neck while at the same time trying to wrestle
the gun away from him. During the struggle for the gun, White was shot in the left leg.
No. 13AP-620 4
White eventually succeeded in grabbing Joshua's gun only to realize appellant and R.D.
were approaching him and R.D. was also holding a gun. White shot R.D. as he
approached, and appellant and Joshua fled the scene.
{¶ 12} Through the course of their investigation, police were able to determine that
appellant and R.D. were responsible for all four incidents while Joshua was only involved
in the February 9, 2012 incident. The firearm used to shoot Sedlock, Hayes, and White
was one of the weapons reported stolen from Youngman's residence. Additionally, police
recovered Youngman's camera at the shared residence of appellant and Joshua.
{¶ 13} The trial court accepted appellant's guilty plea and sentenced him at a
May 22, 2013 sentencing hearing to 3 years for the burglary conviction, 3 years each for
the two felonious assault convictions with additional 3-year firearm specifications
attached to each, and 3 years for the aggravated robbery conviction with an additional 3-
year firearm specification. The trial court further ordered the 3-year burglary sentence to
run concurrent with the two felonious assault and one aggravated robbery sentences,
which are to be served consecutive to each other for a total sentence of 18 years
imprisonment. The trial court journalized appellant's convictions and sentence in a May
23, 2013 judgment entry. Appellant did not timely appeal but requested leave to file a
delayed appeal pursuant to App.R. 5(A). We granted appellant's motion for leave to file
delayed appeal. State v. Morgan, 10th Dist. No. 13AP-620 (Jan. 16, 2014) (memorandum
decision).
II. Assignments of Error
{¶ 14} Appellant assigns the following five assignments of error for our review:
I. The juvenile court committed plain error when it failed to
appoint a guardian ad litem for [appellant's] amenability
hearing, in violation of Juv.R. 4(B)(1) and R.C. 2151.281(A)(1).
II. The trial court abused its discretion when it transferred
[appellant's] case for criminal prosecution, in violation of R.C.
2152.12(B); Fifth and Fourteenth Amendments to the U.S.
Constitution, and Article I, Section 10, Ohio Constitution.
III. The juvenile court erred when it failed to investigate
[appellant's] claim of ineffective assistance of defense counsel,
in violation of the Sixth and Fourteenth Amendments to the
No. 13AP-620 5
U.S. Constitution; and, Article I, Section 10, Ohio
Constitution.
IV. The trial court erred when it sentenced [appellant] to
consecutive sentences without complying with R.C.
2929.14(C)(4), in violation of his right to due process as
guaranteed by the Fourteenth Amendment to the U.S.
Constitution; and, Article I, Section 16, Ohio Constitution.
V. [Appellant] was denied the effective assistance of counsel,
in violation of the Sixth and Fourteenth Amendments to the
U.S. Constitution; Section 10, Article I, Ohio Constitution.
III. First Assignment of Error – Guardian Ad Litem
{¶ 15} In his first assignment of error, appellant argues it was reversible error for
the juvenile court to fail to appoint a guardian ad litem for him at his amenability hearing.
{¶ 16} The parties disagree over the standard we should apply in reviewing the
juvenile court's failure to appoint a guardian ad litem for appellant prior to the
amenability hearing. Appellant asserts that because both R.C. 2151.281(A)(1) and Juv.R.
4(B)(1) use mandatory language for the appointment of a guardian ad litem when a
juvenile has no parents, the juvenile court's failure to appoint a guardian ad litem is
reversible error as a matter of law. The state responds that appellant did not request the
appointment of a guardian ad litem, so we may review only for plain error.
{¶ 17} R.C. 2151.281 governs the appointment of a guardian ad litem in juvenile
court proceedings. In relevant part, the statute provides that "[t]he court shall appoint a
guardian ad litem, subject to rules adopted by the supreme court, to protect the interests
of a child in any proceeding concerning an alleged or adjudicated delinquent child or
unruly child when * * * [t]he child has no parent, guardian, or legal custodian." R.C.
2151.281(A)(1). Similarly, Juv.R. 4(B)(1) states that "[t]he court shall appoint a guardian
ad litem to protect the interests of a child or incompetent adult in a juvenile court
proceeding when * * * [t]he child has no parents, guardian, or legal custodian."
{¶ 18} This court has never addressed the issue of whether the juvenile court's
failure to comply with the mandates in R.C. 2151.281(A)(1) and Juv.R. 4(B)(1) is reversible
error as a matter of law or whether an appellate court can review only for plain error
where there is no objection to the trial court's failure to comply with the statute and rule.
No. 13AP-620 6
However, we have previously considered a trial court's failure to appoint a guardian ad
litem in other circumstances. In State v. Kendrick, 10th Dist. No. 98AP-1305 (Sept. 30,
1999), we analogized the failure to appoint a guardian under Civ.R. 17(B) to the failure to
appoint a guardian in the juvenile system under Juv.R. 4 and reviewed only for plain error
where no request for a guardian ad litem was made. Id. Similarly, we applied a plain
error analysis to an incompetent adult's failure to object to the level of participation of the
guardian ad litem at trial. In re K.J.D., 10th Dist. No. 12AP-652, 2013-Ohio-610, ¶ 50.
{¶ 19} We have found plain error in matters involving a guardian ad litem in
juvenile court proceedings " 'only in the extremely rare case involving exceptional
circumstances where error seriously affects the basic fairness, integrity, or public
reputation of the judicial process itself.' " In re A.L., 10th Dist. No. 07AP-638, 2008-Ohio-
800, ¶ 24, quoting In re McLemore, 10th Dist. No. 03AP-714, 2004-Ohio-680, ¶ 11.
Stated another way, we will conclude the juvenile court committed plain error by failing to
appoint a guardian ad litem for appellant "only if we conclude that the alleged error
seriously affected the 'basic fairness, integrity, or public reputation' of the proceedings
below." Id., citing Goldfuss v. Davidson, 79 Ohio St.3d 116 (1997), syllabus.
{¶ 20} This court has consistently declined to find plain error in matters involving
a guardian ad litem where the record does not demonstrate prejudice to the appellant. In
Kendrick this court stated: "the failure to appoint a guardian ad litem does not constitute
reversible error where no request for a guardian ad litem is made or defendant cannot
show prejudice" and noted "the record fails to even hint at that which a guardian ad litem
could contribute, or how defendant was prejudiced by the lack of one." Similarly, in K.J.D.
this court concluded that even if the limited level of the guardian ad litem's participation
at trial amounted to error, the appellant "has not pointed to anything in the record
suggesting the [guardian ad litem's] not participating in proceedings prejudiced her,
much less demonstrated the level of prejudice necessary for plain error." Id. at ¶ 50,
citing In re Amber G. & Josie G., 6th Dist. No. L-04-1091, 2004-Ohio-5665, ¶ 17
(declining to presume prejudice and determining that even where a guardian ad litem was
not appointed but clearly should have been, whether the error constitutes reversible error
depends on "whether there was any prejudice by the failure to appoint a guardian ad
litem").
No. 13AP-620 7
{¶ 21} We are cognizant that some other appellate districts have concluded that an
appellant need not object to the trial court's failure to appoint a guardian ad litem in order
to warrant reversal. In re K.B., 170 Ohio App.3d 121, 2007-Ohio-396, ¶ 12 (8th Dist.)
(concluding that "the absence of an objection does not preclude a reversal due to the
juvenile court's failure to appoint a [guardian ad litem] when required under R.C.
2151.281(A)(2) or Juv.R. 4(B)(2)"), citing In re Etter, 134 Ohio App.3d 484, 492 (1st
Dist.1998); In re Cook, 11th Dist. No. 2003-A-0132, 2005-Ohio-5288, ¶ 30 (stating "the
absence of an objection does not preclude a reversal due to the juvenile court's failure to
appoint a guardian ad litem when required under R.C. 2151.281(A)(2) or Juv.R. 4(B)(2),"
and determining the juvenile court abused its discretion when it did not appoint a
guardian ad litem where "[a]n examination of the record clearly demonstrates at least the
strong possibility of a conflict between appellant and his father"). Id. at ¶ 32. However,
neither these cases nor the cases from this court squarely address the issue of a juvenile
court's failure to appoint a guardian ad litem specifically under R.C. 2151.281(A)(1) or
Juv.R. 4(B)(1). As the Fourth District recently explained, "[s]ome courts have held that a
juvenile need not request a trial court to appoint a guardian ad litem or object to a court's
failure to appoint one when a mandatory duty to do so exists." In re D.A.G., 4th Dist. No.
13CA3366, 2013-Ohio-3414, ¶ 45, citing In re Dennis, 11th Dist. No. 2006-A-0040, 2007-
Ohio-2432, ¶ 29. "Other courts have reviewed an appellant's failure to request the trial
court to appoint a guardian ad litem or to object using a plain error analysis." Id., citing
In re M.T., 6th Dist. No. L-09-1197, 2009-Ohio-6674, ¶ 14-15; In re A.K., 9th Dist. No.
09CA0025-M, 2009-Ohio-4941, ¶ 8, rev'd on other grounds, In re Cases Held for the
Decision in D.J.S., 130 Ohio St.3d 253, 2011-Ohio-5349; In re Smith, 3d Dist. No. 14-05-
33, 2006-Ohio-2788, ¶ 35; In re McHugh Children, 5th Dist. No. 2004CA00091, 2005-
Ohio-2345, ¶ 37. The Fourth District has taken an approach less strict than plain error.
In re Slider, 160 Ohio App.3d 159, 2005-Ohio-1457, ¶ 11 (4th Dist.). Thus, we recognize
there is a lack of consistency among the various appellate districts throughout Ohio on
this issue. However, given this court's precedent on matters more generally involving a
guardian ad litem, we will review only for plain error and will not reverse unless appellant
can demonstrate he suffered prejudice from the juvenile court's error.
No. 13AP-620 8
{¶ 22} The record indicates appellant's father died in January 2012. Appellant's
mother had attended each of appellant's hearings before the amenability hearing on
October 24, 2012. However, at the October 24, 2012 hearing, appellant's counsel
informed the juvenile court that appellant's mother had recently died. A woman who
identified herself as appellant's "godsister" was present at his amenability hearing and
appellant's counsel described her as "[a] very close friend of the family who's taken over
the role of mom since her * * * recent death," but there is no indication in the record that
this woman was appellant's legal guardian or custodian following the death of appellant's
mother. (Oct. 24, 2012 Tr. 12.)
{¶ 23} Because appellant had no parent, guardian or legal custodian at the time of
his amenability hearing, he falls within the provisions of R.C. 2151.281(A)(1) and Juv.R.
4(B)(1). Additionally, because the statute and rule both use mandatory language for the
appointment of a guardian ad litem in this situation, we agree with appellant that it was
error for the trial court to fail to appoint a guardian ad litem. See, e.g., Smith at ¶ 34-35
(concluding that "because R.C. 2151.281(A) and Juv.R. 4(B) are mandatory, the juvenile
court[']s failure to appoint a guardian ad litem when these provisions are applicable
would constitute reversible error," but where the appellant failed to object to the absence
of an appointed guardian ad litem, an appellate court will review only for plain error). We
must next determine whether that error caused appellant to suffer prejudice sufficient to
reverse on the basis of plain error.
{¶ 24} The state first argues there was no prejudice to appellant because appellant
was represented by counsel. As the state acknowledges, however, "[t]he duty of a lawyer
to his client and the duty of a guardian ad litem to his ward are not always identical and,
in fact, may conflict." In re Baby Girl Baxter, 17 Ohio St.3d 229, 232 (1985). "The role of
guardian ad litem is to investigate the ward's situation and then to ask the court to do
what the guardian feels is in the ward's best interest," while "[t]he role of the attorney is to
zealously represent his client within the bounds of the law." Id. Nonetheless, the state
argues the roles of attorney and guardian ad litem can often coincide and that they do so
here. The state relies on the Sixth District's decision in M.T. for the proposition that there
is no prejudice from the juvenile court's failure to appoint a guardian ad litem where
counsel safeguard's the client's rights and advocates in accordance with the client's
No. 13AP-620 9
wishes. Id. at ¶ 17. The state argues that "[i]t is difficult to imagine that a [guardian ad
litem] would have recommended anything other than that [appellant] should not be
bound over—which is exactly what [appellant's] counsel argued at the amenability
hearing," so there was no indication that appellant's "best interests" conflicted with
counsel's role in protecting appellant's substantive and procedural rights. (Appellee's
Brief, 15.) Thus, the state would have us conclude that because appellant "failed to
demonstrate how a guardian ad litem would have acted differently or produced a different
result," appellant is unable to establish prejudice sufficient to warrant reversal under a
plain error standard. M.T. at ¶ 18.
{¶ 25} We agree generally that a guardian ad litem for appellant probably would
have advocated for appellant's retention in the juvenile system rather than transfer to the
general division of the common pleas court. Additionally, we have no way of knowing
what a guardian would have argued because one was not appointed. See, e.g., State v.
Roush, 10th Dist. No. 12AP-201, 2013-Ohio-3162, ¶ 42 (concluding that in considering an
ineffective assistance of counsel claim, "[b]ecause we do not know what [an uncalled
witness] would have said if he testified at trial, we cannot find that the absence of the
[witness'] testimony prejudicially affected the outcome of defendant's trial"). While
appellant articulates in a general sense the important function that a guardian ad litem
provides in juvenile court, outlining the general requirements set forth in Sup.R. 48(D),
appellant does not articulate how, specifically, the juvenile court's failure to appoint a
guardian ad litem here prejudiced him. In addition to being represented by counsel who
advocated that appellant not be bound over for criminal prosecution, appellant also had
the comprehensive and favorable psychologist's report from Dr. Bergman. Taking these
considerations together, we agree with the state that appellant is unable to demonstrate
prejudice from the juvenile court's failure to appoint him a guardian ad litem.
{¶ 26} Second, the state argues that the presence of appellant's self-identified
"godsister" at the amenability hearing alleviated the necessity to appoint a guardian ad
litem. While the extent of the godsister's role in appellant's life is unclear, we agree with
the state that appellant cannot demonstrate "that the basic fairness of [his] trial was
undermined or that its result was affected by the fact that" a family friend appeared to
support appellant instead of a parent, guardian or legal custodian. In re J.J., 10th Dist.
No. 13AP-620 10
No. 06AP-495, 2006-Ohio-6151, ¶ 26. While we are sympathetic to the fact that appellant
faced the amenability hearing without a parent, guardian or legal custodian, we are
reluctant to find plain error where appellant does not articulate how the juvenile court's
error resulted in any prejudice to appellant.
{¶ 27} Appellant argues that even if we do not find reversible error from the trial
court's failure to appoint a guardian ad litem, we must nonetheless reverse for the trial
court's failure to comply with the notice requirements of R.C. 2152.12(G). Under R.C.
2152.12(G), for transfer of cases from juvenile court, the juvenile court "shall give notice in
writing of the time, place, and purpose of any hearing * * * to the child's parents,
guardian, or other custodian and to the child's counsel at least three days prior to the
hearing." Similarly, Juv.R. 30(D) requires that "[n]otice in writing of the time, place, and
purpose of any hearing held pursuant to this rule shall be given to the state, the child's
parents, guardian, or other custodian and the child's counsel at least three days prior to
the hearing, unless written notice has been waived on the record."
{¶ 28} The record shows the juvenile court sent notice of the amenability hearing
to appellant's mother on October 19, 2012. While the exact date of appellant's mother's
death is unclear from the record, appellant's counsel filed a motion for a continuance on
October 18, 2012, one day prior to the notice of amenability hearing, for the stated reason
of "[f]uneral service for [j]uvenile's mother." However, even if we were to agree with
appellant that the juvenile court erred in not complying with the notice provisions of R.C.
2152.12(G) and Juv.R. 30(D), appellant once again does not demonstrate prejudice from
this error. As this court has noted, the purpose of R.C. 2152.12(G) is "to protect juveniles
by informing their caregivers of any pending actions involving the juveniles so that the
caregivers can offer assistance, guidance, and support to the juveniles." State v.
Reynolds, 10th Dist. No. 06AP-915, 2007-Ohio-4178, ¶ 12. Appellant does not suggest he
was unaware of the hearing or unprepared, nor does he articulate how the outcome of the
proceeding would have been different had his mother received proper notice before her
death.
{¶ 29} The statutory requirement to appoint a guardian ad litem in R.C.
2151.281(A)(1) is mandatory. However, given that this court has required some indication
of prejudice in cases involving the failure to appoint a guardian ad litem, and there is no
No. 13AP-620 11
indication that appellant suffered any prejudice from the juvenile court's failure to
appoint a guardian ad litem here, we cannot conclude this is one of those rare, exceptional
cases in which the public's confidence in the judicial system has been undermined.
Accordingly, because appellant cannot demonstrate plain error from the juvenile court's
failure to appoint a guardian ad litem, we overrule appellant's first assignment of error.
IV. Second Assignment of Error – Transfer of Jurisdiction
{¶ 30} In his second assignment of error, appellant argues the juvenile court
abused its discretion when it transferred appellant's case to the general division of the
common pleas court for criminal prosecution. R.C. 2152.12 governs the transfer of cases
from juvenile court. Under R.C. 2152.12(A), certain cases are subject to mandatory
bindover to the common pleas court. As applicable here, appellant was subject to the
discretionary bindover provisions under R.C. 2152.12(B). An appellate court reviews a
juvenile court's transfer of a case to the common pleas court for an abuse of discretion.
State v. Erwin, 10th Dist. No. 09AP-918, 2012-Ohio-776, ¶ 7, citing State v. Steele, 10th
Dist. No. 00AP-499 (June 28, 2001), and In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-
5307, ¶ 39. An abuse of discretion connotes a decision that is unreasonable, arbitrary or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
{¶ 31} Pursuant to R.C. 2152.12(B), the juvenile court may transfer a juvenile to
common pleas court if the juvenile court finds all of the following:
(1) The child was fourteen years of age or older at the time of
the act charged.
(2) There is probable cause to believe that the child
committed the act charged.
(3) The child is not amenable to care or rehabilitation within
the juvenile system, and the safety of the community may
require that the child be subject to adult sanctions.
The statute further requires the juvenile court, in making the amenability determination,
to consider whether the factors indicating the case should be transferred outweigh the
factors indicating the case should remain in juvenile court. R.C. 2152.12(B)(3). Here,
appellant argues the trial court abused its discretion in making its amenability finding
under R.C. 2152.12(B)(3).
No. 13AP-620 12
{¶ 32} R.C. 2152.12(D) lists the following factors that a juvenile court must
consider in favor of transferring a juvenile to the general division of the common pleas
court:
(1) The victim of the act charged suffered physical or
psychological harm, or serious economic harm, as a result of
the alleged act.
(2) The physical or psychological harm suffered by the victim
due to the alleged act of the child was exacerbated because of
the physical or psychological vulnerability or the age of the
victim.
(3) The child's relationship with the victim facilitated the act
charged.
(4) The child allegedly committed the act charged for hire or
as a part of a gang or other organized criminal activity.
(5) The child had a firearm on or about the child's person or
under the child's control at the time of the act charged, the act
charged is not a violation of section 2923.12 of the Revised
Code, and the child, during the commission of the act
charged, allegedly used or displayed the firearm, brandished
the firearm, or indicated that the child possessed a firearm.
(6) At the time of the act charged, the child was awaiting
adjudication or disposition as a delinquent child, was under a
community control sanction, or was on parole for a prior
delinquent child adjudication or conviction.
(7) The results of any previous juvenile sanctions and
programs indicate that rehabilitation of the child will not
occur in the juvenile system.
(8) The child is emotionally, physically, or psychologically
mature enough for the transfer.
(9) There is not sufficient time to rehabilitate the child within
the juvenile system.
{¶ 33} The juvenile court must then weigh the factors in R.C. 2152.12(D) against
the factors listed in R.C. 2152.12(E) that weigh against transfer of jurisdiction, including:
(1) The victim induced or facilitated the act charged.
No. 13AP-620 13
(2) The child acted under provocation in allegedly committing
the act charged.
(3) The child was not the principal actor in the act charged, or,
at the time of the act charged, the child was under the
negative influence or coercion of another person.
(4) The child did not cause physical harm to any person or
property, or have reasonable cause to believe that harm of that
nature would occur, in allegedly committing the act charged.
(5) The child previously has not been adjudicated a delinquent
child.
(6) The child is not emotionally, physically, or psychologically
mature enough for the transfer.
(7) The child has a mental illness or is a mentally retarded
person.
(8) There is sufficient time to rehabilitate the child within the
juvenile system and the level of security available in the
juvenile system provides a reasonable assurance of public
safety.
{¶ 34} In addition to considering the factors listed in R.C. 2152.12(D) and (E), the
juvenile court "shall order an investigation into the child's social history, education, family
situation, and any other factor bearing on whether the child is amenable to juvenile
rehabilitation, including a mental examination of the child by a public or private agency or
a person qualified to make the examination." R.C. 2152.12(C).
{¶ 35} Appellant argues the juvenile court abused its discretion because it
discounted Dr. Bergman's psychological report finding appellant was amenable to
treatment and, instead, placed too great of weight on the nature of the offenses
committed. "Although the seriousness of the crime is not a factor specified under R.C.
2152.12(D), the juvenile court is permitted to consider it in making a discretionary
bindover decision." Erwin at ¶ 11, citing State v. Watson, 47 Ohio St.3d 93 (1989),
syllabus.
No. 13AP-620 14
{¶ 36} We are mindful that "the juvenile court enjoys wide latitude to retain or
relinquish jurisdiction." Watson at 95. Further, courts can look to whether "the totality of
the evidence supports a finding that the juvenile is not amenable to treatment." Id. The
hearing transcript indicates the juvenile court expressly considered and weighed the
factors both in favor of and against transfer. The court found four factors in favor of
transfer: those listed in R.C. 2152.12(D)(1), (4), (5), and (8). By contrast, the juvenile
court found no factors that weighed against transfer. Although appellant argues the
juvenile court did not place enough emphasis on Dr. Bergman's report, the transcript
indicates the juvenile court acknowledged Dr. Bergman's report but specifically found
other factors outweighed her report, including "the nature of the acts," the fact that the
"guns were acquired as a result of an [a]ggravated [b]urglary," and that the subsequent
acts were "almost immediate and were totally random in nature resulting in * * * three
gunshot[] victims." (Oct. 24, 2012 Tr. 16.) Ultimately, the juvenile court determined
these acts showed a "blatant disregard for life, health and the safety of others in the
community," and found "the need to secure and protect the safety of the community."
(Oct. 24, 2012 Tr. 16-17.) In light of those other factors, the juvenile court "significantly
discount[ed] the conclusions" of Dr. Bergman. (Oct. 24, 2012 Tr. 17.)
{¶ 37} While appellant disagrees with the juvenile court's decision to largely
discount the findings of Dr. Bergman, the juvenile court "is not bound by expert opinion,
and may assign any weight to expert opinion that it deems appropriate." State v. West,
167 Ohio App.3d 598, 2006-Ohio-3518, ¶ 30 (4th Dist.) The statutory scheme does not
dictate how much weight must be afforded to any specific factor and, instead, rests the
ultimate decision in the discretion of the juvenile court. Appellant's disagreement with
the weight afforded the various statutory factors does not amount to an abuse of
discretion.
{¶ 38} Appellant further argues the trial court abused its discretion in determining
appellant acted as part of organized criminal activity under R.C. 2152.12(D)(4). Appellant
argues that just because the complaints alleged appellant admitted to participating with
co-defendants, that admission does not automatically suggest organized criminal activity.
However, this court has previously concluded that a defendant's participation in an
aggravated robbery along with one or more co-defendants is sufficient to find the incident
No. 13AP-620 15
occurred as part of organized criminal activity. See State v. Allen, 10th Dist. No. 10AP-
487, 2011-Ohio-1757, ¶ 30 (concluding defendant's participation in propping open the
door at a restaurant where he worked to allow his armed co-defendants to enter the
restaurant, take money from the cash registers and safe, and hold restaurant employees
against their will was sufficient to conclude the incident occurred as part of organized
criminal activity under R.C. 2929.12(B)(6) and (7)); State v. Lucas, 10th Dist. No. 10AP-
923, 2011-Ohio-3450, ¶ 25 (concluding defendant's participation in an aggravated
robbery of waiting in the car with another juvenile while two adults entered a home to rob
the occupants was sufficient to determine the robbery occurred as part of organized
criminal activity under R.C. 2152.12(D)(4)). Thus, we are not persuaded by appellant's
argument that the juvenile court abused its discretion in determining R.C. 2152.12(D)(4)
weighed in favor of appellant's transfer to the general division of the common pleas court.
{¶ 39} Additionally, appellant argues the juvenile court should not have found R.C.
2152.12(D)(5) weighed in favor of transfer because there was not sufficient evidence
before the juvenile court that it was appellant who actually possessed a firearm. We note
that it is unclear from the record whether appellant was the principal offender or whether
he was complicit in the offenses, but the transcript indicates the state did not foreclose
either possibility. It is undisputed, however, that three victims suffered gunshot wounds
as a result of these crimes. Even if appellant was not the one to brandish or discharge the
weapon, he was nonetheless complicit in the commission of the crimes. R.C. 2923.03(F)
(Ohio's complicity statute, stating that "[w]hoever violates this section is guilty of
complicity in the commission of an offense, and shall be prosecuted and punished as if he
were a principal offender"). Thus, we do not agree with appellant that the trial court acted
unreasonably in finding R.C. 2152.12(D)(5) weighed in favor of transfer.
{¶ 40} Lastly under this assignment of error, appellant argues the trial court acted
unreasonably in failing to conclude that R.C. 2152.12(E)(3) applied to weigh against
transfer because appellant was not the principal actor. However, the state explicitly stated
its theory for probable cause was that the state did not know which of the co-defendants
was the shooter, but that the state was proceeding against appellant as though "he was
complicit and/or the shooter." (Aug. 9, 2012 Tr. 9.) Thus, the record did not preclude the
possibility that appellant was the principal offender, and we do not conclude the juvenile
No. 13AP-620 16
court abused its discretion in failing to conclude R.C. 2152.12(E)(3) applied to weigh
against transfer.
{¶ 41} Based on the foregoing reasons, we conclude the juvenile court did not
abuse its discretion in determining appellant was not amenable to treatment within the
juvenile system and in transferring appellant to the general division of the common pleas
court for criminal prosecution. Accordingly, appellant's second assignment of error is
overruled.
V. Third Assignment of Error – Failure to Investigate Alleged Ineffective
Assistance of Counsel
{¶ 42} In his third assignment of error, appellant argues the juvenile court erred
when it failed to investigate appellant's claim of ineffective assistance of counsel.
{¶ 43} " 'Where, during the course of his trial for a serious crime, an indigent
accused questions the effectiveness and adequacy of assigned counsel * * *, it is the duty
of the trial judge to inquire into the complaint and make such inquiry a part of the
record.' " State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, ¶ 68, quoting State v.
Deal, 17 Ohio St.2d 17 (1969), syllabus. This " 'limited judicial duty arises only if the
allegations are sufficiently specific; vague or general objections do not trigger the duty to
investigate further.' " Id., quoting State v. Carter, 128 Ohio App.3d 419, 423 (4th
Dist.1998). The inquiry may be brief and minimal. State v. Erwin, 10th Dist. No. 09AP-
918, 2010-Ohio-3022, ¶ 8.
{¶ 44} "To discharge a court-appointed attorney, the defendant must show a
breakdown in the attorney-client relationship of such magnitude as to jeopardize the
defendant's right to effective assistance of counsel." State v. Coleman, 37 Ohio St.3d 286,
292 (1988), paragraph four of the syllabus. " '[M]ere hostility, tension and personal
conflicts between attorney and client do not constitute a total breakdown in
communication if those problems do not interfere with the preparation and presentation
of a defense.' " Erwin, 2010-Ohio-3022, at ¶ 7, quoting State v. Furlow, 2d Dist. No.
03CA0058, 2004-Ohio-5279, ¶ 12.
{¶ 45} At a hearing on June 14, 2012, appellant's appointed counsel informed the
juvenile court that during his meeting with appellant, appellant told the attorney that he
intended to ask the court to have his counsel removed and for new counsel to be
No. 13AP-620 17
appointed. Appellant's counsel asked the juvenile court to address appellant's concerns
on the record. When the juvenile court gave appellant the opportunity to explain his
concerns with his attorney, appellant stated his counsel was "not trying to help me go
home" and that "it's everybody['s] story against mine[ ]." (June 14, 2012 Tr. 6.) The
juvenile court then asked appellant if he had anything else he wished to add, and
appellant gave a non-verbal response. After giving appellant the opportunity to explain
his concerns with his counsel, the juvenile court indicated its own favorable impression of
appellant's counsel, and stated:
[Y]ou may be frustrated that you think this case is taking as
long as it's taking but this is a prosecution not a persecution.
You have the right to be represented by counsel. I think you're
being adequately and appropriately represented. We're going
through a lot of process here that is inures to your benefit. If
we short circuit the process that could be very detrimental to
you. I don't want that for you. You shouldn't want that for
yourself. And I'm sure [appellant's counsel] doesn't want that
to you.
So on the basis of [appellant's counsel's] not trying to let me
go home, I'm going to ignore your request and I'm going to
direct that [appellant's counsel] continue to be your appointed
counsel.
(Sic passim.) (June 14, 2012 Tr. 7.)
{¶ 46} First, we agree with the state that appellant's statement that his counsel was
not trying to help him go home did not articulate sufficiently specific facts to trigger the
juvenile court's duty to inquire. Erwin, 2010-Ohio-3022, at ¶ 11 (finding defendant's
complaint that he "did not think [appointed counsel] was looking out for his best interest"
was too general to require the inquiry contemplated in Deal, and noting the defendant did
not "allege any specific instances where his court-appointed attorney inadequately
represented him"). Additionally, even though appellant's remarks were not specific
enough to require an inquiry, the juvenile court nonetheless gave appellant the
opportunity to specifically explain his dissatisfaction with his counsel, which appellant
declined to do. Erwin, 2010-Ohio-3022, at ¶ 10, citing State v. Hibbler, 2d Dist. No.
2001-CA-43, 2002-Ohio-4464, ¶ 15, citing State v. Harris, 6th Dist. No. L-92-039
(Nov. 27, 1992) (stating "[t]he accused bears the duty of announcing the grounds of the
No. 13AP-620 18
motion" to have his counsel removed). Therefore, we conclude the juvenile court did not
err in not conducting a more specific inquiry into appellant's dissatisfaction with his
appointed attorney. Accordingly, we overrule appellant's third assignment of error.
VI. Fourth Assignment of Error – Consecutive Sentences
{¶ 47} In his fourth assignment of error, appellant argues the trial court erred
when it sentenced him to consecutive sentences without making the necessary findings
required by R.C. 2929.14(C)(4).
{¶ 48} Initially, we note that appellant did not object to the imposition of
consecutive sentences at the sentencing hearing, so our review is limited to plain error.
Crim.R. 52(B); State v. Wilson, 10th Dist. No. 12AP-551, 2013-Ohio-1520, ¶ 8.
{¶ 49} Under R.C. 2929.14(C)(4), when a trial court sentences a defendant to
consecutive sentences for multiple offenses, it must make specific findings of fact. In
relevant part, the statute reads:
If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the
offender to serve the prison terms consecutively if the court
finds that the consecutive service is necessary to protect the
public from future crime or to punish the offender and that
consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the
offender poses to the public, and if the court also finds any of
the following:
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing,
was under a sanction * * *, or was under post-release control
for a prior offense.
(b) At least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm caused
by two or more of the multiple offenses so committed was so
great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct
adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the public
from future crime by the offender.
No. 13AP-620 19
{¶ 50} Before imposing consecutive sentences, the trial court is required, under
R.C. 2929.14(C)(4), to make three findings: " '(1) that consecutive sentences are necessary
to protect the public from the future crime or to punish the offender; (2) that consecutive
sentences are not disproportionate to the seriousness of the offender's conduct and to the
danger the offender poses to the public; and (3) that one of the subsections (a), (b), or (c)
apply.' " State v. Ayers, 10th Dist. No. 13AP-371, 2014-Ohio-276, ¶ 12, quoting State v.
Roush at ¶ 76. While the trial court "need not use talismanic words to comply with R.C.
2929.14(C)(4) before imposing consecutive sentences, the trial court must make clear on
the record that it made the required findings." State v. Jones, 10th Dist. No. 14AP-80,
2014-Ohio-3740, ¶ 13, citing State v. Revels, 10th Dist. No. 12AP-831, 2014-Ohio-795,
¶ 10, citing State v. Boynton, 10th Dist. No. 12AP-975, 2013-Ohio-3794, ¶ 9.
{¶ 51} Here, the state concedes the trial court did not make the necessary findings
under R.C. 2929.14(C)(4). The state argues there is no plain error here because appellant
cannot show his sentence would have been different but for the trial court's failure to
make the statutory findings. This court, however, has consistently determined a trial
court's failure to make the findings required by R.C. 2929.14(C)(4) renders the
" 'appellant's sentence * * * contrary to law and constitutes plain error.' " Jones at ¶ 16,
quoting Ayers at ¶ 15, quoting Wilson at ¶ 18. See also State v. Smith, 10th Dist. No.
14AP-123, 2014-Ohio-3700, ¶ 7; State v. Bailey, 10th Dist. No. 12AP-699, 2013-Ohio-
3596, ¶ 46; State v. Fair, 10th Dist. No. 13AP-901, 2014-Ohio-2788, ¶ 22; State v. Adams,
10th Dist. No. 13AP-783, 2014-Ohio-1809, ¶ 7; State v. F.R., 10th Dist. No. 13AP-525,
2014-Ohio-799, ¶ 25. The record here demonstrates the trial court did not make the
requisite statutory findings before imposing consecutive sentences.
{¶ 52} The state acknowledges this court's precedent but disagrees with this court's
approach of finding plain error as a matter of law for a trial court's failure to make the
findings required by R.C. 2929.14(C)(4). Additionally, the state argues R.C. 2953.08(C)(1)
precludes appellate review of appellant's sentence because the trial court could have
imposed the same 18-year sentence solely for the aggravated robbery conviction plus the 9
years imposed for the firearm specifications. The state relies on State v. Chavez, 8th Dist.
No. 99436, 2013-Ohio-4700, ¶ 47, which held that "R.C. 2953.08(C)(1) limits review of
consecutive sentences to situations where the combined consecutive sentence is greater
No. 13AP-620 20
than the maximum sentence for any one conviction." In pertinent part, R.C.
2953.08(C)(1) states:
In addition to the right to appeal a sentence granted under
division (A) or (B) of this section, a defendant who is
convicted of or pleads guilty to a felony may seek leave to
appeal a sentence imposed upon the defendant on the basis
that the sentencing judge has imposed consecutive sentences
under division (C)(3) of section 2929.14 of the Revised Code
and that the consecutive sentences exceed the maximum
prison term allowed by division (A) of that section for the
most serious offense of which the defendant was convicted.
Upon the filing of a motion under this division, the court of
appeals may grant leave to appeal the sentence if the court
determines that the allegation included as the basis of the
motion is true.
{¶ 53} The state asserts, based on the Eighth District's decision in Chavez, that the
reference to subsection (C)(3) in the above-quoted language is a clerical error and the
General Assembly must have intended to refer to R.C. 2929.14(C)(4). Id. Even assuming
we agree with the state that the reference to subsection (C)(3) is a clerical error, we do not
agree with the state's position that R.C. 2953.08(C)(1) precludes appellate review in this
case. Based on the plain language of the statute, the right to appeal a sentence conferred
by R.C. 2953.08(C)(1) is a right "[i]n addition to the right to appeal a sentence under
division (A) or (B) of this section." (Emphasis added.) Thus, R.C. 2953.08(C)(3) does not
limit the right to appeal under R.C. 2953.08(A) and (B), but, rather, provides additional
grounds for relief.
{¶ 54} As relevant here, R.C. 2953.08(A)(4) specifically allows a defendant to
appeal a sentence as a matter of right when "[t]he sentence is contrary to law." This
court's precedent, outlined above, has made it clear that when a trial court imposes
consecutive sentences without making the requisite findings in R.C. 2929.14(C)(4), that
sentence is contrary to law. Accordingly, consistent with this court's precedent, we agree
with appellant that the trial court committed plain error when it imposed consecutive
sentences without first making the necessary findings in R.C. 2929.14(C)(4). Accordingly,
we sustain appellant's fourth assignment of error.
No. 13AP-620 21
VII. Fifth Assignment of Error – Ineffective Assistance of Counsel
{¶ 55} In his fifth and final assignment of error, appellant argues he was denied the
effective assistance of counsel. Specifically, appellant argues his counsel was ineffective at
the amenability hearing in the juvenile court proceedings. Appellant does not argue he
received ineffective assistance of counsel during the bindover proceedings in the general
division of the common pleas court.
{¶ 56} In order to prevail on a claim of ineffective assistance of counsel, appellant
must satisfy a two-prong test. First, he must demonstrate that his counsel's performance
was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). This first prong
requires appellant to show that his counsel committed errors which were "so serious that
counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth
Amendment." Id. If appellant can so demonstrate, he must then establish that he was
prejudiced by the deficient performance. Id. To show prejudice, appellant must establish
there is a reasonable probability that, but for his counsel's errors, the result of the trial
would have been different. A "reasonable probability" is one sufficient to undermine
confidence in the outcome of the trial. Id. at 694.
{¶ 57} In considering claims of ineffective assistance of counsel, courts indulge in a
strong presumption that counsel's conduct falls within the wide range of reasonable
professional assistance. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 101.
Appellant contends his trial counsel was ineffective in failing to call any witnesses to
testify on his behalf at the amenability hearing. More specifically, appellant asserts his
counsel should have (1) requested an expert witness to testify about the effects of the
traumatic events in appellant's life, and (2) called character witnesses to demonstrate
appellant's good character and explain why he should be retained in the juvenile system.
{¶ 58} First, we do not agree that appellant's counsel's failure to call an expert
witness at the amenability hearing amounts to ineffective assistance of counsel. The
juvenile court had before it Dr. Bergman's very thorough report that included the very
information that appellant argues an expert witness would have provided. Additionally,
the juvenile court had the presentence investigation report that contained additional
information regarding appellant's background and the traumatic events of his life.
Appellant does not articulate what additional information a supplementary expert would
No. 13AP-620 22
have provided. In re H.D.D., 10th Dist. No. 12AP-134, 2012-Ohio-6160, ¶ 59 (finding no
ineffective assistance of counsel from trial counsel's failure to call an expert toxicologist
where the appellant provided no information either in the trial court or on appeal as to
what the expert's testimony might have been), citing In re Graves, 11th Dist. No. 99-G-
2219 (June 23, 2000) (stating "[a]ppellant fails to demonstrate either by suggestion or
through the record what favorable evidence existed which was not presented by counsel").
{¶ 59} To the extent appellant argues his counsel was ineffective in failing to call
Dr. Bergman to testify in person, this decision may have been a strategic one on the part
of counsel to introduce only the favorable information in the report and avoid any
unfavorable information or surprises at the hearing. "Tactical or strategic trial decisions,
even if ultimately unsuccessful, will not substantiate a claim of ineffective assistance of
counsel." State v. Ryan, 10th Dist. No. 08AP-481, 2009-Ohio-3235, ¶ 77, citing In re
M.E.V., 10th Dist. No. 08AP-1097, 2009-Ohio-2408, ¶ 34.
{¶ 60} Second, appellant's argument that his counsel was ineffective in failing to
call a character witness at the amenability hearing similarly fails. Again, "counsel's
decision whether to call a witness falls within the rubric of trial strategy and will not be
second-guessed by a reviewing court." State v. Rippy, 10th Dist. No. 08AP-248, 2008-
Ohio-6680, ¶ 14, citing State v. Treesh, 90 Ohio St.3d 460, 490 (2001). Further,
appellant merely speculates as to what a hypothetical character witness may have said
during his or her testimony, but mere speculation as to what a witness might have
testified to and how such testimony would have affected the hearing's outcome is
insufficient to establish a claim of ineffective assistance of counsel. Id., citing State v.
Wiley, 10th Dist. No. 03AP-340, 2004-Ohio-1008, ¶ 30, citing State v. Bradley, 42 Ohio
St.3d 136 (1989).
{¶ 61} Accordingly, appellant is unable to demonstrate his counsel was ineffective,
nor does appellant demonstrate any prejudice from his counsel's alleged inadequacies.
Because appellant has failed to satisfy the Strickland test, we overrule appellant's fifth and
final assignment of error.
VIII. Disposition
{¶ 62} Based on the foregoing reasons, we conclude the juvenile court did not
commit plain error in not appointing a guardian ad litem, the juvenile court did not abuse
No. 13AP-620 23
its discretion in transferring appellant to the general division of the common pleas court
for criminal prosecution, the juvenile court did not err in failing to investigate appellant's
claim of alleged ineffective assistance of counsel, and appellant did not receive ineffective
assistance of counsel during his amenability hearing. However, we also conclude the trial
court committed plain error when it imposed consecutive sentences without first making
the statutory findings required by R.C. 2929.14(C)(4). Having overruled appellant's first,
second, third, and fifth assignments of error, and having sustained appellant's fourth
assignment of error, we affirm in part and reverse in part the judgment of the Franklin
County Court of Common Pleas and remand the matter to that court for resentencing.
Judgment affirmed in part, reversed in part,
and cause remanded with instructions.
SADLER, P.J., and BROWN, J., concur.