State v. D.F. , 90 N.E.3d 389 ( 2017 )

[Cite as State v. D.F., 2017-Ohio-2882.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 27032
:
v. : T.C. NO. 14CR2059/3
:
D.F. : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the ___19th ___ day of _____May_____, 2017.
...........
LYNNE R. NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
FRANCISCO E. LUTTECKE, Atty. Reg. No. 0082866 and CHARLYN BOHLAND, Atty.
Reg. No. 0088080, Assistant State Public Defenders, 250 East Broad Street, Suite 1400,
Columbus, Ohio 43215
Attorneys for Defendant-Appellant
.............
FROELICH, J.
{¶ 1} D.F., a minor, was found guilty after a bench trial in the Montgomery County
Court of Common Pleas, General Division, of aggravated assault, an inferior offense of
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felonious assault, and voluntary manslaughter, an inferior offense of murder. The trial
court merged the two charges and sentenced D.F. to a mandatory term of eleven years
in prison for voluntary manslaughter. D.F. was 16 years old at the time of the offenses.
{¶ 2} D.F. raises five assignments on appeal. He claims that (1) the trial court
erred in using a prior juvenile adjudication to impose a mandatory prison term, (2) the trial
court erred in failing to suppress statements that he made to the police; (3) the trial court
erred in imposing a maximum sentence, (4) the trial court erred in failing to sentence him
in accordance with R.C. 2152.121, and (5) the juvenile court abused its discretion in
finding that he was not amenable to treatment in the juvenile system.
{¶ 3} As discussed below, we need not address D.F.’s specific assignments of
error in light of the Ohio Supreme Court’s ruling in State v. Aalim, Ohio Sup. Ct. Slip
Opinion No. 2016-Ohio-8278 and our case law interpreting R.C. 2152.12(I). The trial
court’s judgment will be reversed, and the matter will be remanded to the juvenile court
for further proceedings.
I. Background and Procedural History
{¶ 4} In its verdict following the bench trial, the trial court found the following facts.
{¶ 5} In the early morning hours of June 8, 2014, 35-year-old Ryan Adams
approached D.F.’s mother and D.F.’s fifteen-year-old sister as they stood outside their
home in Dayton. Adams stated to them that “everybody needs a playmate, do you want
to play with me?” or similar sexually-suggestive words. D.F.’s mother and sister
indicated they did not, and Adams walked some distance away, but stopped, turned
around with his arms folded, and stared at them. D.F.’s mother and sister became
“worried and anxious,” and the sister proceeded to call D.F. (her sixteen-year-old brother),
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Harley Farrell (the boyfriend of her maternal aunt),1 or both, requesting that D.F. and
Farrell return to the area. (D.F., Farrell, and the aunt had walked down the street to see
some “commotion” that was occurring there.)
{¶ 6} D.F. and Farrell arrived separately but at approximately the same time, and
D.F. began questioning his mother and sister regarding the nature of their concern.
Upon learning that Adams had made his suggestive remarks and had yet to leave the
neighborhood, D.F. became “angry and furious,” and he and Farrell attempted to locate
Adams. D.F. and Farrell found Adams nearby, and Adams returned voluntarily with D.F.
and Farrell to D.F.’s home. When D.F.’s sister confirmed that “he was the guy” who had
made the sexually-suggestive remarks, D.F. became even more enraged and furious,
and he demanded that Adams leave the neighborhood and never disrespect his family
again.
{¶ 7} Adams “did not take kindly” to D.F.’s demands. Rather, Adams pulled off
his shirt and challenged D.F., a “much younger and smaller” individual, to a fight; Adams
called D.F. a “punk” and spewed a stream of profanity and epithets. D.F. and Adams,
“in mutual combat, squared off in the street.” Ultimately, D.F. struck Adams several
times in the face, dropping Adams to his buttocks on the grass next to the street. Adams
was down only momentarily and regained his feet. Then, after the two combatants
“exchanged further epithets and other unpleasantries,” Adams did not re-engage D.F.,
but instead turned and walked away from D.F., ending the “mutual combat.” (The trial
court expressly rejected, as not credible, testimony that Adams did not walk away and
1
The aunt is the sister of D.F.’s mother. On June 8, 2014, the aunt and Harley Farrell
lived with D.F.’s family, which consisted of D.F., his parents, and his two younger sisters.
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disengage.)
{¶ 8} As Adams walked away, a still-enraged D.F. came up behind Adams, striking
Adams with a right-handed “haymaker” which landed against Adams’s right temple area.
Adams was immediately rendered unconscious, and D.F. then grabbed Adams around
the waist and flipped him backward, driving him head first into the pavement. With
Adams “unconscious and defenseless on the pavement,” D.F. struck Adams in the face
and head several more times. Farrell, who had not been involved in the altercation up
to this point, kicked Adams’s head as Adams lay unconscious on the ground.
{¶ 9} At approximately 4:30 a.m., the police were dispatched to the scene on a
“medical assistance” call. Officer Harry Dilley found Adams unconscious on the
sidewalk, and he initially did not know if Adams’s condition was the result of an assault or
a seizure. Adams was transported to Miami Valley Hospital, where he had surgery to
remove pressure on his brain. Adams remained in a coma and had respiratory failure,
both due to damage to his brain stem. The right side of Adams’s skull, Adams’s nose,
and the left side of Adams’s jaw and eye socket were also broken, and he had various
scrapes and bruises. Adams never regained consciousness.
{¶ 10} After his stay at Miami Valley Hospital, Adams was treated at Drake Hospital
in Cincinnati, then transported to Liberty Nursing Facility. He ultimately was transferred
to Hospice. Adams died on August 27, 2014 as a result of the blunt force trauma to the
right side of his head. The trial court rejected, as “utterly incredible,” D.F.’s argument
that Farrell’s kick to Adams’s head as Adams lay unconscious was, alone, the fatal blow.
{¶ 11} Dayton Police Detective Rod Roberts, a member of the homicide squad,
began an investigation into the assault on Adams at approximately 7:30 p.m. on June 8,
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the day of the assault. Within a couple days, Roberts identified Farrell and D.F. as
suspects. On the morning of June 10, 2014, Roberts asked Officer Mitch Olmsted, who
had worked for approximately 20 years in the neighborhood where the assault occurred,
to locate D.F. and Farrell. Olmsted did so, and he (Olmsted) and Officer Edmond Trick
brought D.F. and Farrell to the police department for interviews.
{¶ 12} During D.F.’s interview (at approximately 9:30 a.m.), D.F. initially stated that
Farrell was the primary aggressor and that Farrell had assaulted Adams due to
statements Adams had made about Farrell’s mother. Detective Roberts stopped the
interview with D.F. and went back to D.F.’s neighborhood to interview people about the
events. Roberts concluded that D.F.’s statements were inaccurate.
{¶ 13} Detective Roberts returned to the police department and interviewed
Farrell. The interview led Roberts to believe that D.F. was the primary suspect. Roberts
re-interviewed D.F. at approximately 3:00 p.m., at which time D.F. admitted to hitting
Adams, picking Adams up and “dunking” him while Adams was unconscious, and hitting
Adams a few more times after Adams hit the ground. D.F. wrote a written statement and
gave written responses to Roberts’s written follow-up questions. Roberts took
photographs of injuries to D.F.’s hands (cuts, scrapes, and swollen fingers and knuckles)
and left elbow (a scrape that D.F. said occurred when he slammed Adams to the
sidewalk). D.F. was placed under arrest.
{¶ 14} The following day (June 11), D.F. was charged by complaint with felonious
assault in juvenile court. On June 27, 2014, the State filed a motion, pursuant to R.C.
2152.10(B) and 2152.12(B), to transfer the matter to the General Division so that D.F.
could be tried as an adult. On July 30, the juvenile court held a probable cause hearing,
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at which time D.F. waived his right to present testimony on probable cause. In an August
4, 2014 decision, the juvenile court concluded that D.F. was more than 14 years old at
the time of the offense, that the act alleged would be a felony if committed by an adult,
that sufficient evidence exists within the statement of facts as detailed by the State to find
probable cause, and that there was probable cause to believe that D.F. committed
felonious assault. The trial court ordered a mental examination of D.F. and that the
probation department prepare a social history. An amenability hearing was scheduled
for September 17, 2014.
{¶ 15} On September 8, 2014, after Adams’s death, the State filed an amended
complaint, charging D.F. with felonious assault and murder. Contemporaneously, the
State filed another motion to transfer the matter to adult court. The amenability hearing
on the felonious assault charge was continued to October 31, 2014.
{¶ 16} On October 31, 2014 the juvenile court held a probable cause hearing
regarding the murder charge and an amenability hearing regarding the felonious assault
charge. The juvenile court concluded that there was probable cause to believe that D.F.
had committed murder, an unclassified felony, and the court transferred that charge to
adult court pursuant to R.C. 2152.10(A)(1)(a) and R.C. 2152.12(A)(1)(a), the mandatory
transfer provisions. The same day, the juvenile court filed a written entry, finding
probable cause and granting the State’s motion to relinquish jurisdiction and transfer the
murder charge to adult court under the mandatory transfer provisions.
{¶ 17} With respect to the amenability hearing for the felonious assault charge, the
parties stipulated to the psychological report; no testimony was presented. Upon
considering the factors listed in R.C. 2152.12(D) and (E), the juvenile court concluded
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that D.F. was not amenable to care or rehabilitation within the juvenile system and that
the safety of the community required that he be subject to adult sanctions. By separate
entry, the juvenile court certified D.F. to the adult court for prosecution for the felonious
assault under the discretionary transfer provisions.
{¶ 18} For both the murder and felonious assault charges, the juvenile court
ordered that D.F. be detained by the juvenile court until the proceeding in adult court was
concluded.
{¶ 19} On December 23, 2014, D.F. was indicted for felonious assault and murder.
D.F. entered a plea of not guilty by reason of insanity.
{¶ 20} In April 2015, D.F. moved to suppress the statements he had made to the
police, arguing that he did not knowingly, voluntarily, and intelligently waive his Miranda
rights and that his statements were not voluntarily made. The disputed statements
consisted of those given on June 10 during his interviews with Detective Roberts, as well
as statements heard by other officers in connection with court proceedings in the juvenile
court on December 23, 2014, and January 15, 2015. In response to certain testimony
provided at the first hearing on the motion to suppress, D.F. filed a supplemental motion
to suppress, arguing that his statements on June 10, 2014 were the result of an unlawful
arrest, in violation of his Fourth Amendment rights.
{¶ 21} Testimony on the motions to suppress was taken on three dates: June 12,
2015, July 10, 2015, and August 7, 2015. On November 3, 2015, the trial court granted
in part and overruled in part the motions to suppress. Of relevance here, the trial court
denied the portion of D.F.’s motions to suppress related to the statements he had made
on June 10, 2014.
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{¶ 22} D.F. waived his right to a jury trial, and the matter was tried to the court on
February 1 and 2, 2016. The trial court found that, throughout the altercation, D.F. “[w]as
under the influence of sudden passion or in sudden fit of rage owing to serious
provocation by Mr. Adams that was reasonably sufficient to incite Defendant into using
deadly force in the heat of blood without time to reflect or for passions to cool and 2) Mr.
Adams’[s] provocation was sufficient to arouse the passions of an ordinary person beyond
the power of his or her control, particularly given Defendant’s emotional and mental state
and the conditions and circumstances that surrounded Defendant at the time of his acts.”
The trial court found D.F. guilty of aggravated assault and voluntary manslaughter, inferior
offenses of felonious assault and murder, respectively.
{¶ 23} The trial court merged the voluntary manslaughter and the aggravated
assault at sentencing, and sentenced D.F. to the maximum prison term of eleven years
for the voluntary manslaughter, a first-degree felony; pursuant to R.C. 2929.13(F), the
court imposed a mandatory prison term. The court ordered D.F. to pay restitution of
$2,884.75 and court costs.
{¶ 24} D.F. appeals from his conviction, challenging his bindover from the juvenile
court, the trial court’s ruling on his motions to suppress, and his sentence. For the
reasons that follow, we only need to address his bindover from juvenile court to adult
court.
II. Transfers from Juvenile Court
{¶ 25} In his fifth assignment of error, D.F. claims that the trial court abused its
discretion when it determined that he was not amenable to treatment in the juvenile
system.
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{¶ 26} R.C. 2152.12 governs the transfer from juvenile court to the appropriate
adult court for criminal prosecution. Historically, two types of transfer existed under
Ohio’s juvenile justice system: discretionary and mandatory. State v. Hanning, 89 Ohio
St.3d 86, 728 N.E.2d 1059 (2000); R.C. 2152.10(A) and (B); R.C. 2152.12(A) and (B).
The Ohio Supreme Court recently held that the mandatory-transfer statutes violate the
right to due process as guaranteed by Article I, Section 16 of the Ohio Constitution. State
v. Aalim, Ohio Sup. Ct. Slip Opinion No. 2016-Ohio-8278. The Supreme Court severed
R.C. 2152.10(A) and 2152.12(A) and stated that the transfer of juveniles previously
subject to mandatory transfer may still occur pursuant to the discretionary bindover
provisions, R.C. 2152.10(B) and R.C. 2152.12(B). The Ohio Supreme Court expressly
held that the discretionary transfer process satisfies fundamental fairness under the Ohio
Constitution.
{¶ 27} In Aalim, the Ohio Supreme Court reversed the court of appeals’ judgment
and remanded the case to the juvenile court for an amenability hearing on Aalim’s
aggravated robbery charge. Aalim at ¶ 32. On February 22, 2017, the Ohio Supreme
Court stayed the execution of its judgment in Aalim, pending a decision on the State’s
motion for reconsideration. See 02/22/2017 Case Announcements, 2017-Ohio-573.
The stay of that remand does not affect the Supreme Court’s underlying holding regarding
the constitutionality of the mandatory bindover provisions.
{¶ 28} D.F.’s initial brief was filed prior to Aalim, and it did not challenge the
mandatory bindover on the murder charge. D.F. has filed a notice of supplemental
authority, citing Aalim and State v. D.B., Ohio Sup. Ct. Slip Opinion No. 2016-Ohio-8334,
but he has not expressly argued that the case must be remanded to the juvenile court for
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an amenability hearing on the murder charge.
{¶ 29} In this case, the only difference between the murder and felonious assault
charges before the juvenile court was that the victim, Adams, ultimately died from his
injuries. The conduct and circumstances underlying the two charges and the reports
submitted to the trial court for purposes of an amenability hearing (the disposition
investigation report and psychological report) would have been identical for both charges.
{¶ 30} Nevertheless, the juvenile court addressed the felonious assault and
murder charges separately, and it transferred the murder charge to adult court pursuant
to the mandatory bindover provisions in a separate entry. In accordance with Aalim, that
procedure was unconstitutional. We recognize that the juvenile court held an
amenability hearing on the felonious assault charge on the same day as the probable
cause hearing on the murder charge, and that the juvenile court likely would have reached
the same amenability decision on the murder charge as the felonious assault charge.
Nevertheless, the juvenile court was required to hold an amenability hearing for purposes
of both charges. We therefore conclude that D.F.’s conviction for voluntary
manslaughter, as an inferior offense of murder, must be vacated, and the matter must be
remanded to the juvenile court for an amenability hearing on the murder charge.
{¶ 31} In a separate entry, the juvenile court transferred the felonious assault
charge to adult court pursuant to the discretionary bindover provisions. R.C. 2152.12(B)
grants the juvenile court discretion to transfer a case to the common pleas court for
prosecution if the child is delinquent for committing an act that would be a felony if
committed by an adult and the court finds (1) the child was age 14 or older at the time of
the act charged, (2) there is probable cause to believe that the child committed the act
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charged, and (3) the child is not amenable to care or rehabilitation within the juvenile
system, and the safety of the community may require that the child be subject to adult
sanctions. R.C. 2152.12(B); see also Juv.R. 30(C).
{¶ 32} Before transferring, the juvenile court must “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.” R.C. 2152.12(C). R.C. 2152.12(B) further provides:
In making its decision under this division, the court shall consider whether
the applicable factors under division (D) of this section indicating that the
case should be transferred outweigh the applicable factors under division
(E) of this section indicating that the case should not be transferred. The
record shall indicate the specific factors that were applicable and that the
court weighed.
{¶ 33} R.C. 2152.12(D) and (E) “enumerate nonexhaustive factors in favor of and
against transfer, respectively, for the juvenile court to consider.” Aalim at ¶ 27. These
factors include, among others, the harm suffered by the victim, the child’s relationship
with the victim, whether a firearm was involved, the child’s previous experiences in the
juvenile system, whether there was sufficient time to rehabilitate the child within the
juvenile system, whether the child acted under provocation, whether the child was the
principal actor, whether the child had previously been adjudicated a delinquent child, and
the emotional, physical, and psychological maturity of the child. See R.C. 2152.12(D)
and (E).
{¶ 34} Upon consideration of the statutory factors, the juvenile court found that
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D.F. was not amenable to care or rehabilitation within the juvenile system and that the
safety of the community required that he be subject to adult sanctions on the felonious
assault charge.
{¶ 35} We conclude, however, that the juvenile court’s amenability determination
was of no effect, in light of R.C. 2152.12(I). R.C. 2152.12(I) provides:
Upon the transfer of a case under division (A) or (B) of this section, the
juvenile court shall state the reasons for the transfer on the record, and shall
order the child to enter into a recognizance with good and sufficient surety
for the child’s appearance before the appropriate court for any disposition
that the court is authorized to make for a similar act committed by an adult.
The transfer abates the jurisdiction of the juvenile court with respect to the
delinquent acts alleged in the complaint, and, upon the transfer, all further
proceedings pertaining to the act charged shall be discontinued in the
juvenile court, and the case then shall be within the jurisdiction of the court
to which it is transferred as described in division (H) of section 2151.23 of
the Revised Code.
{¶ 36} We have repeatedly interpreted R.C. 2152.12(I) to mandate the transfer of
a discretionary-transfer offense when it is founded on the same course of conduct as
another offense which must be transferred. See State v. Brookshire, 2d Dist.
Montgomery No. 25853, 2014-Ohio-1971; State v. Henderson, 2d Dist. Montgomery No.
21866, 2007-Ohio-5368; State v. Washington, 2d Dist. Montgomery No. 20226, 2005-
Ohio-6546, ¶ 25.
{¶ 37} In Washington, the juvenile-defendant was charged in juvenile court with
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carrying a concealed weapon and aggravated robbery involving use of a deadly weapon.
The juvenile court determined that the aggravated robbery was a mandatory-bindover
offense, and it transferred the case to adult court. Washington moved in the adult court
to dismiss the CCW charge, arguing that the juvenile court acted improperly when it
ordered him bound over on that charge. We rejected Washington’s argument,
reasoning:
None of the [mandatory bindover] provisions cited above apply to the
CCW charge, which is a non-category offense. However, R.C. 2152.12(I)
provides that when a “case” is transferred pursuant to division (A) of that
section “[t]he transfer abates the jurisdiction of the juvenile court with
respect to the delinquent acts alleged in the complaint, and, upon the
transfer, all further proceedings pertaining to the act charged shall be
discontinued in the juvenile court, and the case then shall be within the
jurisdiction of the court to which it is transferred as described in division (H)
of section 2151.23 of the Revised Code.” R.C. 2151.23(H) likewise
terminates the jurisdiction of the juvenile division after a transfer is ordered.
There is no constitutional right to be tried as a juvenile. Rather,
recognizing the value of treating juveniles differently, the General
Assembly, acting pursuant to the authority conferred on it by Article IV,
Section 4(B) of the Ohio Constitution to determine the jurisdiction of the
court of common pleas and its divisions, has conferred exclusive jurisdiction
over alleged juvenile offenders on the juvenile division of the court of
common pleas. R.C. 2151.26. [sic] Statutory provisions creating
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exceptions to that jurisdiction through transfer to the general division,
whether discretionary or mandatory, likewise represent an exercise of the
General Assembly’s power. R.C. 2[1]52.12(I), which mandates transfer of
a “non-category” offense charge when it is founded on the same course of
conduct as another offense which must be transferred, is such a
jurisdictional provision. Its object is judicial economy; to prevent dual
proceedings in the two divisions. Presumably, the General Assembly has
found that the value of judicial economy in that regard outweighs any benefit
that would otherwise accrue by treating the alleged offender as a juvenile.
Because the alleged aggravated robbery and CCW offenses
underlying Defendant’s two delinquency charges arose from a common
nucleus of operative facts, and the juvenile division having properly ordered
proceedings on the aggravated robbery charge transferred to the general
division pursuant to R.C. 2152.12(A)(1(b) [sic], all further proceedings in the
juvenile division on the CCW charge in the “case” were thereafter
discontinued per R.C. 2152.12(I) and the juvenile division’s jurisdiction was
terminated. The juvenile division court was then relieved of any
requirement that R.C. 2152.12(F) otherwise imposes to conduct further
hearings or to make findings with respect to Defendant’s eligibility to be tried
as a juvenile on the CCW offense before transferring proceedings on that
charge to the general division. The juvenile division’s bind-over order
operated to confer exclusive jurisdiction to adjudicate those charges on the
general division court.
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Washington at ¶ 24-26.
{¶ 38} We applied Washington in Henderson, in which the juvenile-defendant was
charged with kidnapping, aggravated robbery, aggravated burglary and two counts of
abduction, each of which included a firearm specification. The juvenile court determined
that the aggravated robbery and aggravated burglary offenses required transfer to adult
court. Although abduction and kidnapping were not mandatory-transfer offenses, we
held that the juvenile court properly transferred the entire proceedings to adult court,
pursuant to R.C. 2152.12(I). Citing Washington, we concluded the juvenile court’s
jurisdiction over the abduction and kidnapping charges was terminated upon properly
ordering that proceedings on the mandatory-bindover offenses be transferred to the
general division of the common pleas court pursuant to R.C. 2152.12(A)(1)(b). We
further stated that, “because the juvenile court had appropriately transferred all further
proceedings pertaining to the act charged, it was not required to make findings pursuant
to [R.C.] 2152.12(B) as to whether Henderson was amenable to care or rehabilitation
within the juvenile system, or whether the safety of the community required that he be
subject to adult sanctions.” Henderson at ¶ 14.
{¶ 39} More recently, in Brookshire, the defendant asked us to “revisit our
interpretation and application of R.C. 2152.12(I) in Washington and Henderson.”
Brookshire at ¶ 16. We declined to do so, concluding that “we will continue to interpret
R.C. 2152.12(I) to mandate the transfer of a discretionary transfer offense when it is
founded on the same course of conduct as another offense which must be transferred.”
Brookshire at ¶ 21.
{¶ 40} Here, once the trial court determined that it was required to transfer the
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murder charge to adult court pursuant to the mandatory bindover statutes, the juvenile
court was required to transfer the felonious assault charge, which was founded on the
same course of conduct as the murder charge. The juvenile court’s jurisdiction over both
charges terminated, and the juvenile court was not required to conduct an amenability
hearing with respect to the felonious assault charge. Although the juvenile court, in fact,
held an amenability hearing on the felonious assault charge, that hearing and the juvenile
court’s subsequent discretionary transfer order has no import. Consequently, because
the trial court failed to hold an amenability hearing on the murder charge and the felonious
assault charge was bound over due to the mandatory bindover on the murder charge, the
adult court’s actions with respect to the felonious assault charge must also be vacated.
{¶ 41} For us to conclude otherwise would leave this matter straddled between two
courts. Specifically, if we were to vacate only the judgment related to the murder charge
(i.e., the voluntary manslaughter conviction), the guilty verdict for aggravated assault (an
inferior offense of felonious assault) would remain in adult court while the murder charge
would be remanded to the juvenile court. Although it is possible that the murder charge
would again be transferred to adult court, it is also possible that the murder charge could
stay in juvenile court, resulting in proceedings in both adult court (aggravated assault)
and juvenile court (murder) on charges arising out of the same course of conduct. This
would circumvent the object of R.C. 2152.12(I), i.e., to prevent dual proceedings in the
two divisions. See Washington at ¶ 25.
{¶ 42} Given the Ohio Supreme Court’s ruling in Aalim, D.F.’s conviction for
voluntary manslaughter is vacated. Pursuant to R.C. 2152.12(I) and Washington, D.F.’s
guilty verdict for aggravated assault must also be vacated.
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III. Conclusion
{¶ 43} The trial court’s judgment will be reversed. The trial court shall enter an
order causing D.F. to be transferred forthwith back to the Montgomery County Juvenile
Detention Facility on the delinquency complaint. The matter will be remanded to the
juvenile court for further proceedings consistent with the court’s opinion.
.............
DONOVAN, J., concurs.
HALL, P.J., dissenting:
{¶ 44} I would not reverse and remand this case to juvenile court for two reasons:
(1) D.F. did not assign any error to the mandatory nature of the transfer of the murder
case from juvenile court to the general division and, therefore, given the facts of this case,
we should not take notice of plain error; and (2) because the trial court conducted an
amenability hearing and determined that D.F. was not amenable to treatment in the
juvenile system on the felonious-assault charge, the predicate offense for the felony-
murder charge, any error in transferring the murder charge, under the unique facts of this
case, is harmless.
{¶ 45} None of D.F.’s five assignments of error challenge the transfer of the murder
charge to adult court, the general division of the common pleas court. The only
assignment dealing with transfer at all is the fifth, which challenges the outcome of the
amenability hearing. But that only dealt with transfer of the felonious-assault charge, not
the murder count. The appellant’s framing of the issue for that assignment of error
indicates the narrow focus: “Was it unreasonable for the juvenile court to transfer [D.F.’s]
felonious assault charge to criminal court when the juvenile court failed to consider the
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full range of dispositional options available to rehabilitate [D.F.] while also protecting the
safety of the community?” (Appellant’s Brief, Issue presented for review, Pg. ii). I
recognize that State v. Aalim, Ohio Sup. Ct. Slip Opinion No. 2016-Ohio-8278 (currently
stayed pending reconsideration),2 holding that mandatory transfer of juvenile cases for
those statutorily listed charges is unconstitutional, was decided after briefing was
completed. However, D.F. filed a notice of supplemental authority, citing Aalim and a
related case, but did not request that we consider an additional or supplemental
assignment of error challenging transfer of the murder charge. Whether he failed to do
so because he had been found guilty of a lesser included offense of voluntary
manslaughter, resulting in a sentence of 11 years in prison rather than exposure to a
statutory murder sentence of 15 years to life, is unknown. Under these circumstances, I
would not notice and decide the case on an unassigned error.
{¶ 46} The unique facts and procedure in this case also render any error about
transfer of the murder charge harmless. D.F. was charged with delinquency by virtue of
felonious assault related to the June 8, 2014 beating of Ryan Adams on June 11, 2014.
The trial court found probable cause to proceed on August 4, 2014 and scheduled the
felonious-assault charge for an amenability hearing on September 17, 2014. In the
interim, on August 27, 2014, Adams died and a murder charge was added on September
2
The Aalim case involved mandatory transfer of an aggravated robbery case involving a
firearm specification, an R.C. 2152.02 “category two” offense, which was mandatorily
transferred under R.C. 2152.10(A)(2). One might distinguish the case here because it
involves transfer of an R.C. 2152.02 “category one” murder charge. Category one
includes only aggravated murder and murder or attempts at either. A fair reading of the
Aalim majority opinion would mean that any mandatory transfer is a violation of Article I,
Section16 of the Ohio Constitution, regardless of the severity of the charge. Needless to
say, until a decision on reconsideration of Aalim is issued, the efficacy or extent of the
holding is uncertain.
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8, 2014. The amenability hearing on felonious assault was continued and was conducted
on October 31, 2014. In an entry separate from the mandatory transfer of the murder
case, the trial court ordered transfer of the felonious assault charge to adult court under
the discretionary-transfer provisions of R.C. 2152.12.
{¶ 47} The murder count in the September 8, 2014 amended complaint refers to
causing death of Ryan Adams as a proximate result of committing felonious assault on
June 8, 2014, “an act contrary to Section 2903.02(B) of the Ohio Revised code,” which is
Ohio’s felony-murder statute. That means the only difference between the felonious-
assault charge, for which there was an amenability hearing, and the felony-murder
charge, which mandatorily was transferred, is that the serious physical harm imposed
upon the victim eventually resulted in death. It is inconceivable and impossible to imagine
that D.F., found not amenable to treatment in juvenile court for felonious assault, ever
could be found amenable to treatment for murder as a proximate result of the felonious
assault based on the same incident. That makes the lack of an amenability hearing on
the murder charge a harmless, inconsequential error.
{¶ 48} Accordingly, I dissent from the reversal and remand. In light of the majority
decision, it is unnecessary to address the remaining four assignments of error.
Copies mailed to:
Lynne R. Nothstine
Francisco E. Luttecke
Charlyn Bohland
Hon. Steven K. Dankof
Hon. Anthony Capizzi