State v. Burns

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Burns, Slip Opinion No. 2022-Ohio-4606.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2022-OHIO-4606THE STATE OF OHIO, APPELLEE, v. BURNS, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Burns, Slip Opinion No. 2022-Ohio-4606.]
Criminal law—Juvenile law—R.C. 2152.12—R.C. 2151.23—Juvenile court
determined that act alleged in juvenile-court complaint was not supported
by probable cause, and defendant was then indicted and convicted in adult
court for same act—Conviction vacated on the authority of State v. Smith—
Counts in indictment pertaining to offenses that were not charged in the
juvenile-court complaint but were based on conduct included in the
juvenile-court complaint were properly brought in adult court—Court of
appeals’ judgment affirmed in part and reversed in part and cause
remanded.
(No. 2020-1126—Submitted April 12, 2022—Decided December 23, 2022.)
APPEAL from the Court of Appeals for Cuyahoga County,
No. 108468, 2020-Ohio-3966.
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SUPREME COURT OF OHIO
STEWART, J.
{¶ 1} In this discretionary appeal, we are asked to decide whether the state
must prove in juvenile court that there is probable cause to believe that a juvenile
committed every act charged before the juvenile may be indicted for those acts in
adult court. In accordance with our decision in State v. Smith, 167 Ohio St.3d 423,
2022-Ohio-274, 194 N.E.3d 297, ¶ 44, in which we held that “[a] finding of
probable cause is a jurisdictional prerequisite under R.C. 2152.12 to transferring a
child to adult court for prosecution of an act charged,” we reverse the portion of the
judgment of the Eighth District Court of Appeals affirming appellant Eddie Burns’s
conviction on Count 29 of the indictment and vacate that conviction, and we affirm
the portion of its judgment affirming Burns’s convictions on Counts 11, 20, 45, 46,
and 55 of the indictment. See 2020-Ohio-3966, ¶ 67, 70, 125.
Facts and Procedural History
{¶ 2} On March 7, 2018, Burns, then 16 years old, was charged in a 58-
count complaint in the juvenile division of the Cuyahoga County Court of Common
Pleas. The charges stemmed from a series of violent, theft-related offenses
committed over a period of six months, each involving different places, victims,
and witnesses.
{¶ 3} The state sought to transfer Burns’s case from juvenile court to the
general division of the common pleas court (“adult court”). It filed motions asking
that Burns be bound over to adult court on either a mandatory or a discretionary
basis under R.C. 2152.12. The juvenile court held a hearing on the state’s motion
to transfer jurisdiction, and it thereafter found that the state had established probable
cause to believe that Burns had committed the acts related to 42 of the 58 counts.
The juvenile court also found that Burns was not subject to mandatory bindover. It
then ordered an investigation into Burns’s background and a psychological
evaluation of him to determine whether he was amenable to rehabilitation in the
juvenile justice system. See R.C. 2152.12(C).
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{¶ 4} The juvenile court held an amenability hearing, after which it found
that there were reasonable grounds to believe that Burns was not amenable to care
or rehabilitation in the juvenile justice system and that the safety of the community
required that Burns be subject to adult sanctions. The court therefore granted the
state’s motion for discretionary bindover and transferred the case to adult court.
{¶ 5} A Cuyahoga County grand jury returned a 56-count indictment
against Burns that was similar to the 58-count complaint that was filed in juvenile
court. Burns initially pleaded not guilty to all the charges in the indictment. But
approximately four months later, Burns and the state reached a plea agreement and
Burns pleaded guilty to ten of the charges in the indictment, as amended. The trial
court accepted Burns’s guilty plea, found him guilty, and sentenced him to a total
of 27 years in prison.
{¶ 6} Burns appealed his convictions and sentence to the Eighth District,
asserting, among other assignments of error, that “[t]he state violated [his] statutory
and constitutional rights when it criminally indicted him on counts that were never
transferred to adult court, due to the state’s failure to establish probable cause.”
After finding that Counts 29 and 55 of the indictment were the only counts that
Burns pleaded guilty to that corresponded to counts charged in the juvenile-court
complaint, the court of appeals found no merit to Burns’s argument. 2020-Ohio-
3966 at ¶ 45, 72. Relying on its decision in State v. Frazier, 8th Dist. Cuyahoga
Nos. 106772 and 106773, 2019-Ohio-1433, abrogated by Smith, 167 Ohio St.3d
423, 2022-Ohio-274, 194 N.E.3d 297, in which the court of appeals held that an
adult court has jurisdiction over all the counts transferred to it by a juvenile court
under R.C. 2152.12(I), even counts for which the juvenile court found no probable
cause, when all the acts underlying the counts were committed during the same
course of conduct, Frazier at ¶ 45-47, the court of appeals overruled Burns’s
assignment of error, 2020-Ohio-3966 at ¶ 56-67, 72. Burns also argued that some
of the juvenile court’s probable-cause findings were not supported by sufficient
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evidence, but the court of appeals rejected that argument as well, holding that there
was sufficient credible evidence to support the juvenile court’s probable-cause
findings as to each charge. Id. at ¶ 91-119.
{¶ 7} Burns filed a discretionary appeal to this court, and we accepted the
following proposition of law for review:
Because prosecutors must present credible evidence of every
element of every offense charged, prosecutors may not criminally
indict children on counts for which they failed to establish probable
cause in juvenile court. For the same reason, a court errs when it
decides that probable cause on lesser included offenses equals
probable cause for greater predicate ones.
See 160 Ohio St.3d 1494, 2020-Ohio-5634, 159 N.E.3d 278. Following oral
argument, we sua sponte ordered the parties to file supplemental briefs as to the
impact of our holding in Smith on the proposition of law. 165 Ohio St.3d 1538,
2022-Ohio-392, 180 N.E.3d 1164.
Law and Analysis
{¶ 8} In Smith, this court addressed the question of “what specifically
transfers when a juvenile court exercises its discretion and binds over a juvenile
* * * to an adult court pursuant to R.C. 2152.12.” Id. at ¶ 24. After considering
the statutory language and framework of R.C. 2152.12, which governs the transfer
of cases from juvenile court to adult court, and the history of the juvenile-bindover
procedure and the practical and constitutional constraints on that process, we held
that a juvenile court must first find that there is probable cause to believe that the
child committed the act charged before that act can be transferred to adult court.
Smith at ¶ 26. We also concluded that an adult court lacks subject-matter
jurisdiction to convict a juvenile offender for any act charged for which no probable
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cause was found by the juvenile court. Id. at ¶ 44.
{¶ 9} Two of the charges in the indictment, Counts 29 and 55, were the
same as two of the charges in the juvenile complaint. Burns argues that the adult
court lacked subject-matter jurisdiction over Counts 29 and 55 of the indictment
because the juvenile court did not find probable cause to believe that Burns had
committed the acts alleged in those counts. Specifically, Count 29 charged Burns
with aggravated robbery for acts committed on or about January 21, 2018 (with
one-year and three-year firearm specifications), and Count 55 charged him with
receiving stolen property for acts committed on or about February 7, 2018.
{¶ 10} We agree with Burns that the juvenile court determined that the act
alleged in Count 29 was not supported by probable cause. Count 55 of the
indictment, however, mirrored Count 57 of the juvenile complaint, and the juvenile
court had determined that probable cause supported that count. So on the authority
of Smith, 167 Ohio St.3d 423, 2022-Ohio-274, 194 N.E.3d 297, we reverse the
portion of the judgment of the court of appeals affirming Burns’s conviction on
Count 29 and vacate his conviction on that count. As to Count 55, however, we
affirm the court of appeals’ judgment.
{¶ 11} Burns also asserts that our holding in Smith is dispositive as to
Counts 45 and 46 of the indictment (charging Burns with the attempted murders of
Willie and Della Watts, respectively, on or about February 7, 2018) because those
charges were not brought in juvenile court. Burns argues that since the juvenile
court never found probable cause regarding those counts, the adult court lacked
jurisdiction over the counts and his convictions on them should be vacated.
{¶ 12} The state, however, argues that an adult court is not limited to
considering the specific acts charged in juvenile court and that imposing such a
constraint would be inconsistent with the text of R.C. 2151.23(H), which governs
the jurisdiction of a juvenile court. We agree that an adult court is not necessarily
limited to considering only the specific acts bound over from the juvenile court.
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After a case has been transferred from a juvenile court to an adult court, the adult
court “has jurisdiction subsequent to the transfer to hear and determine the case in
the same manner as if the case originally had been commenced in that court * * *.”
R.C. 2151.23(H). In Smith, we explained that the “the case” before the adult court
is composed of the acts that were transferred to that court. Id. at ¶ 28.
{¶ 13} We acknowledge that generally, a grand jury is empowered to return
an indictment on any charges supported by the facts submitted to it. See State v.
Adams, 69 Ohio St.2d 120, 431 N.E.2d 326 (1982), paragraph two of the syllabus,
superseded by statute on other grounds as stated in State v. D.W., 133 Ohio St.3d
434, 2012-Ohio-4544, 978 N.E.2d 894. But a grand jury may not consider
additional charges arising from a different course of conduct or events that have not
been properly bound over by the juvenile court. State v. Weaver, 6th Dist. Lucas
No. L-18-1078, 2019-Ohio-2477, ¶ 14 (citing cases from several Ohio appellate
districts). This means that a case transferred from a juvenile court may result in
new indicted charges in the adult court when the new charges are rooted in the acts
that were the subject of the juvenile complaint but were not specifically named in
the individual acts transferred. Id.; Smith, 167 Ohio St.3d 423, 2022-Ohio-274, 194
N.E.3d 297, at ¶ 35. Here, Counts 45 and 46 pertained to attempted-murder
offenses that were not charged in the juvenile-court complaint; they were charged
in the grand-jury indictment and were based on conduct that occurred on or about
February 7, 2018—conduct that was in the juvenile complaint against Burns. See
Smith at ¶ 35; see also R.C. 2151.23(H). Accordingly, we affirm the portion of the
court of appeals’ judgment affirming Burns’s convictions on Counts 45 and 46.
{¶ 14} Finally, Burns argues that “a court errs when it decides that probable
cause on lesser offenses equals probable cause for greater predicate ones” and that
this court should therefore vacate his convictions on Count 11 (aggravated robbery
for acts committed on or about December 28, 2017, with a one-year firearm
specification) and Count 20 (aggravated robbery for acts committed on or about
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January 8, 2018, with one-year and three-year firearm specifications) of the
indictment. Burns argues that “this Court should make clear that probable cause
for lesser non-included offenses like receiving stolen property do not ipso facto
prove a child was complicit in the underlying theft or robbery of that property” and
that “because this Court has held that prosecutors must present credible evidence
of every element of an offense per R.C. 2152.12, they must support every element
of a principal offense that a child has allegedly aided or abetted.” Neither Burns
nor the state, however, asserts that our decision in Smith is dispositive of this
argument, and Burns does not frame his challenge regarding the sufficiency of the
evidence supporting the juvenile court’s probable-cause findings as affecting the
adult court’s jurisdiction. Accordingly, because the juvenile court found probable
cause regarding those charges before they were transferred, we hold that the adult
court had jurisdiction over the charges. We therefore affirm the portion of the
judgment of the court of appeals affirming Burns’s convictions on Counts 11 and
20 of the indictment.
Conclusion
{¶ 15} For the foregoing reasons, we affirm the portion of the judgment of
the Eighth District Court of Appeals affirming Burns’s convictions on Counts 11,
20, 45, 46, and 55 of the indictment. Based on our holding in Smith, we reverse the
portion of its judgment affirming Burns’s conviction on Count 29 of the indictment,
vacate that conviction, and remand the cause to the trial court for further
proceedings consistent with this opinion.
Judgment affirmed in part
and reversed in part
and cause remanded.
O’CONNOR, C.J., and DONNELLY and BRUNNER, JJ., concur.
KENNEDY, J., concurs in part and dissents in part, with an opinion joined by
FISCHER and DEWINE, JJ.
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_________________
KENNEDY J., concurring in part and dissenting in part.
{¶ 16} I concur in the majority’s affirmance of the judgment of the Eighth
District Court of Appeals as to Count 55 of the indictment because the juvenile
court found probable cause to believe that appellant, Eddie Burns, had committed
the offense alleged in that count. I also concur in the majority’s affirmance of the
court of appeals’ judgment as to Counts 45 and 46 of the indictment based on the
application of R.C. 2151.23(H). However, I part ways with the majority in its
decisions to reverse the court of appeals’ judgment affirming Burns’s conviction
on Count 29 of the indictment on the authority of State v. Smith, 167 Ohio St.3d
423, 2022-Ohio-274, 194 N.E.3d 297, and to vacate that conviction.
{¶ 17} The majority in Smith misconstrued R.C. 2152.12, playing word
games with the unambiguous language of the statute to achieve a particular result:
that only each “act charged” for which the juvenile court has found probable cause
transfers to the adult court. Smith at ¶ 2. The majority in Smith held that if the
juvenile court specifically finds no probable cause regarding a particular “act
charged” in the juvenile complaint, that same offense cannot be charged in the
indictment in adult court. Id. at ¶ 44.
{¶ 18} In my view, however, based on the plain and unambiguous language
of R.C. 2152.12, when the juvenile court granted the state’s discretionary motion
to transfer the case to the adult court, the adult court had jurisdiction over the case,
including the acts charged in the juvenile complaint, regardless of whether the
juvenile court had found probable cause for those counts. R.C. 2151.23(H)
provides that on transfer, the adult court had jurisdiction to “hear and determine”
the case as if the case had originated in the adult court.
{¶ 19} Therefore, I concur in part and dissent in part.
{¶ 20} Before I explain why the majority is wrong to reverse the court of
appeals’ judgment affirming Burns’s conviction on Count 29 of the indictment and
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to vacate that conviction on the authority of Smith, the facts of this case should be
fully developed. The majority summarizes the 56-count indictment as “charges
[that] stemmed from a series of violent, theft-related offenses committed over a
period of six months.” Majority opinion, ¶ 2. But because of its lack of detail, the
majority’s summation of what Burns did is disingenuous. His charges originate
from the savage beatings and robberies of vulnerable, elderly victims and the
robberies of other people at gunpoint. The 56-count indictment stems from a reign
of violent lawlessness that forever changed the lives of his Cleveland and Solon
victims.
I. FACTS AND PROCEDURAL POSTURE
A. August 10, 2017: The punching and robbery of James Peavy
{¶ 21} James Peavy was 77 years old on August 10, 2017, when he went to
AJ’s Drive Thru on St. Clair Avenue in Cleveland to withdraw money from an
ATM. When the money he withdrew was dispensed, Burns punched him in his
head and stole the money. After the robbery, Peavy left the store and an employee
came outside to ask him what had happened.
{¶ 22} Nael Abedrabbo testified that he was working at AJ’s Drive Thru on
the day Peavy was robbed. He saw Peavy go to the ATM. Just as Peavy pulled the
money away from the ATM, Burns, whom Abedrabbo recognized because Burns
was a frequent visitor of the store, hit Peavy in the head and stole the money.
B. November 13, 2017: The beating and robbery of J.C. Green
{¶ 23} On November 13, 2017, J.C. Green was 87 years old and was living
at 690 East 99th Street in Cleveland. On that day, two men broke into his residence
by picking a door lock and began beating him. They struck him on his head, his
eyes, and all over his body. As they beat Green, the two men went through his
pockets and asked for his credit cards. J.C. laid his credit cards and driver’s license
on a table. After the intruders left, J.C. went to a neighbor’s house and called for
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help. J.C. was then taken to University Hospital, where he stayed for about two
weeks.
{¶ 24} J.C.’s son, Dwight Green, testified that J.C. went to Hanna House
for rehabilitation after he was released from the hospital. J.C. had sustained blunt-
force trauma to his head and eyes. One eye was so badly injured that it was “almost
pushed out of its socket.” The other eye was bloody. J.C.’s jaw was severely
bruised, and his chin was “cracked.” Prior to being beaten, J.C. had good cognitive
ability, mental alertness, and communication skills. Dwight testified that since
J.C.’s assault by Burns and his accomplice, all J.C. does is stay in bed and “[h]e’s
not the same person.”
C. December 28, 2017: The armed robberies of Lacey Mathy and Eric Walls
{¶ 25} Lacey Mathy worked for Cleveland Channel 19 News, and her on-
air last name is “Crisp.” Walls was a photographer at the same news station. Mathy
testified that on December 28, 2017, she and Walls were at 663 99th Street in
Cleveland for a live shot about a house fire at that location the night before. Just
after 5:00 p.m., they were in a news van when they were robbed at gunpoint.
{¶ 26} Walls was in the driver’s seat, and Mathy was in the passenger’s
seat. Mathy was on her phone trying to determine the location of an active fire
scene when she saw three male kids running across the street in front of her from a
vacant lot. At the time, she did not think much of it and went back to texting on
her phone.
{¶ 27} A couple of minutes later, someone opened the driver-side door and
Walls held up his phone and said, “[T]ake it, just take it.” At that time, Mathy did
not understand what was going on, because people often came up to the news van.
It was not until Walls said, “Lacey give him your phones, he has a gun in my ribs,”
that Mathy realized that they were being robbed at gunpoint by the three males,
though she only saw two of them. All three were wearing very dark clothing and
ski masks or neoprene vests over their faces. Two of the robbers brandished
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handguns. Even though he was wearing a mask, Mathy could see that the robber
on her side of the van was a “very young African American boy” with a “squarish
face” and was approximately 5’6” or 5’7.”
{¶ 28} Mathy was terrified, and she witnessed Walls hand over his work
phone and other property. She then saw another male coming to the passenger-side
door, so she tried to lock that door with her elbow. The robber who was pointing
the gun at Walls could see what Mathy was doing, so he unlocked the passenger-
side door. The robber on Walls’s side of the van began demanding Mathy and
Walls’s phones, wallets, and anything else they had. Mathy gave him her work
phone and then tried to call 9-1-1 on her personal phone, but he saw what she was
doing, so the robbers took that phone as well. The robber on Walls’s side of the
van then reached across Walls to grab his laptop bag. Walls told him that he did
not have much cash. Mathy had a big red bag with her that contained things she
needed throughout the day, like a change of clothes, makeup, and extra cables and
cords. One of the robbers opened the passenger-side door and tried to pull the bag
from underneath Mathy’s feet, but her feet were tangled in the bag’s handles, so
she almost fell out of the van. The robber on Walls’s side of the van was trying to
unlock Mathy’s phone, and he demanded that she enter the phone’s passcode. After
Mathy complied, the robber then demanded that she turn off the passcode. Mathy
tried to explain that she did not know how to do that, and the robber became very
angry. She then “started freaking out because [she] thought they were gonna shoot
[them] because [she] didn’t know how to take the password off the phone.” Her
personal phone was a pink iPhone 7 Plus. The robber and Mathy passed that phone
back and forth until the robber was able to clear the passcode.
{¶ 29} The property that the robbers took from Mathy included her work
phone, which was a black iPhone 5 in a white OtterBox case, her personal cell
phone, and her wallet, which held her driver’s license, debit card, credit cards, a
handful of gift cards, and a small amount of cash.
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{¶ 30} After the robbers left, Walls tried to call for help on a phone installed
in the van. Mathy then saw a car pull into a driveway. Mathy jumped out of the
van, ran to the woman who had been driving the car, and said, “[W]e were just
robbed at gunpoint, I need to borrow your phone so I can call 9-1-1.” The woman
allowed Mathy to call 9-1-1 and Mathy’s husband. Mathy’s husband canceled the
credit cards and began tracking Mathy’s personal cell phone. Later that night when
she was speaking with police, Mathy received an alert indicating that her personal
cell phone had been located at the Tones Wireless shop at 79th Street and Superior
Avenue in Cleveland.
{¶ 31} Detective Bruce Kirchner of the Cleveland Division of Police
investigated the robbery. Detective Kirchner went to Tones Wireless and watched
the shop’s security video, looking for a man trying to sell a pink iPhone. He saw
on the video a man attempting to sell the iPhone. Detective Kevin Warnock of the
Cleveland Division of Police also investigated the robbery. When he saw the
security video from Tones Wireless, he was “100 percent positive” that the person
attempting to sell the iPhone was Burns. Burns was told by the shopkeeper that an
alert had gone off on the phone; it was a loud alarm, and Burns left with the phone.
Detective Warnock then referred to social-media platforms to aid in the
investigation. Using Burns’s Instagram account, Warnock was able to find pictures
showing Burns wearing the same clothes that he was wearing in the video from
Tones Wireless.
D. January 8, 2018: The armed robbery of Max Rivera
{¶ 32} Max Rivera was employed by Spectrum. On January 8, 2018, he
arrived at 651 East 93rd Street in Cleveland for a service call. After greeting his
customer, he went back to his truck and was assaulted and robbed by two people,
one of whom had a revolver. The two robbers came from the area near the back of
the truck, pushed Rivera against the truck, and demanded “phones, wallets, * * *
tablets, and * * * the password for those, and [his] credit card.” After the robbery,
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the two robbers told Rivera to leave. After leaving, Rivera followed his employer’s
policy and got to a safe place, called police, called his supervisor, and called his
wife to have her cancel the credit and debit cards.
{¶ 33} Ameen Marzouk worked at One Stop Shop at 10109 St. Clair
Avenue in Cleveland. On January 9, 2018, a detective came into the store and asked
Marzouk whether he had seen anyone use the store’s ATM the previous day.
Marzouk reported that he had seen Burns use the ATM, leave, and then come back
into the store and use the ATM a second time. Marzouk testified that Burns’s use
of the ATM was out of the ordinary because he had never seen Burns use a bank
card at the store. He remembered that the card was green.
E. January 21, 2018: The armed robbery of Victor Ford
{¶ 34} Victor Ford worked for Regional Express delivering packages for
Amazon.com. On January 21, 2018, he was on Longview Drive in Solon. He had
oversized packages to deliver, so he pulled into the driveway at a delivery address
and took one package to the door. When he was going back to his van to get another
package, Ford observed a car and a minivan parked on the apron near the house.
The minivan was a “grayish-blue” Dodge Journey. A slender man standing
approximately 5’6” to 5’8” tall hopped out of the car holding a gun. The man was
wearing a ski mask with lime-green stitching. The gun was black and looked like
a 9 mm. When he saw the gun, Ford ran away to the rear of a nearby house and
then watched the man jump into the work van and drive it away. The minivan and
the car also then left. The robber made off with approximately 100 Amazon
packages and Ford’s wallet and credit cards, driver’s license, car keys, and bag.
The work van was recovered in Richmond Heights. Ford’s credit cards were
thereafter used at a Walmart, a GameStop, a Rally’s, a Sunoco, and on a payment
app.
{¶ 35} Andrew Hoffman testified that he owned a gray Dodge Journey that
was stolen from his place of employment on January 15, 2018. It was recovered
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later that month, and Hoffman went to the police department and retrieved the
vehicle from the impound lot. When he picked up the vehicle, there was damage
to the exterior and the inside was filthy. Hoffman testified there was a lot of mud
and dirt on the inside of the vehicle, as well as a stack of debit cards, a pry bar, bolt
cutters, wallets, and a bag (that matched the description of the bag taken from Ford).
{¶ 36} Detective Kristi Harvey of the Solon Police Department testified that
she connected the unauthorized credit-card charges to the points of purchase and
then sought security video from those establishments. She was successful in
retrieving video from Walmart. Burns appeared in the video, along with Charles
Burns, Quantae Lucas, and Cordell Walcott, purchasing a 55-inch television with
Ford’s credit card approximately two hours after Ford’s work van was stolen. They
emerged from the Walmart and got into a Dodge Journey. Detective Harvey also
reviewed video of the four from two GameStop stores; at one store they purchased
an Xbox. The detective identified the same four in a surveillance still shot from the
GameStop in Steelyard Commons. Walcott was wearing a black hat with lime-
green stitching. Ford’s work van was recovered at the address that Burns gave as
his home address when he was arrested.
F. February 7, 2018: The savage beatings and robberies of
Willie and Della Watts
{¶ 37} On February 7, 2018, Della Watts, who was then 76 years old,
arrived home at 689 East 99th Street in Cleveland at 9:00 p.m. She called her
husband, Willie Watts, when she reached the driveway so he could come to the
home’s side door to let her in. Della always called Willie when she reached the
driveway, because he had been very sick and was weak and calling him gave him
time to get to the door to let her in. Willie had been in the hospital most of the
previous November and all of December. He had returned home on January 6,
2018.
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{¶ 38} After backing her car into the garage, Della picked up a grocery bag
that was holding her husband’s medication, her wallet, and her purse. As she
walked down the driveway, a young man approached her and said, “[D]o you know
who I am?” She responded, “[N]o.” The young man replied, “I help you, that big
guy, shovel your driveway.” Ms. Watts responded, “[N]o, you don’t, * * * my son
shovels my driveway and my grandson.”
{¶ 39} Della testified that she was wearing a brace on her leg and walked
with a cane. Burns took her cane and hit her with it on her head while asking,
“[W]here’s the money?” He beat her with the cane until it broke. She dropped the
grocery bag and told Burns that the money was in the bag. At the time of the attack,
Della was in the middle of the driveway, and after the cane broke, Burns stomped
and kicked her. While Burns was kicking her, Della’s leg brace became loose. She
could not get up from the driveway without her cane.
{¶ 40} Willie witnessed the savage attack of Della from the house’s side
door. Burns saw Willie trying to get down the steps. Della testified that Willie
“was trying to hold on because didn’t have much strength.” When Burns saw Willie
trying to get down the steps, he immediately attacked him and knocked him back
into the closed-in porch. Unable to get up, Della rolled down the driveway to get
to her husband. Della testified that she had had her keys in her coat pocket and that
Burns hit her with such force that her car alarm sounded. But the car alarm did not
cause Burns to flee. Willie was too weak to fend off Burns. During the savage
beating of Willie, Burns never asked him for his wallet or anything else. Della
testified, “[H]e just wanted to beat us, and that’s what he did. He beat us.”
{¶ 41} Burns eventually took Della’s wallet and began running down the
driveway, but he turned around and came back when Della reached the steps. When
Della reached the steps, Willie tried to help her get up, but he was too weak. Burns
began kicking Della again. Burns asked Willie, “What is your bank code?” Willie
told Burns that he did not know the bank code, which prompted Burns to stomp on
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Della again. Willie then begged Burns to stop, saying “please don’t hit her, please
don’t hit her no more.” Willie then tried to shield his wife from the beating by
laying on top of her. Della testified, “[M]y husband took the brunt of the beating.”
Willie shielded Della’s face from additional blows, but Burns still kicked her in the
head and on the side of her body. She then told Burns a fake bank code, and Burns
then ran down the driveway and across the street.
{¶ 42} As Della and Willie were trying to get into the house, Della saw a
police car coming down the street, so she started yelling and screaming. Once they
were inside the house, Willie locked the door and Della dialed 9-1-1. By that time,
Willie was going in and out of consciousness and bleeding profusely. Police
responded to the couple’s home within five minutes. On arrival, police
immediately called for an ambulance because Willie was bleeding so badly. The
ambulance took the couple to University Hospital.
{¶ 43} Willie suffered five broken facial bones, a broken nose, and a
concussion. Emergency-room personnel stopped him from blowing his nose
because if he did so, the broken bones in his face would have caused him to go
blind. A couple of weeks after the incident, Willie died. He was 81 years old.
{¶ 44} Della suffered a gash on her forehead, two black eyes, bruising on
the leg on which she wore her brace, and her stomach and back were “black and
blue all over.” The beating resulted in a scar on Della’s head that runs from the top
down to the side.
{¶ 45} During the initial conversation between Burns and Della, Burns was
two feet or less away from her. The area was well lit due to lights on the inside of
the Watts’s garage and the side of their home. Della made an in-court identification
of Burns as the attacker.
G. February 7, 2018: Stolen Mazda CX-5
{¶ 46} Officer Daniel McCandless of the Cleveland Division of Police was
investigating the theft of a car on February 7, 2018. He first observed the vehicle
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on East 103rd Street and St. Clair Avenue in Cleveland, when the vehicle fled from
him. The license plate on the vehicle was registered to an address on East 99th
Street.
{¶ 47} Officer McCandless responded to 684 East 99th Street, the address
to which the license plate was registered, and the owner of the license plate did not
realize that her license plate had been stolen. The vehicle that the license plate was
registered to was inoperable and in the owner’s driveway. Officer McCandless then
asked the owner of the license plate whether she had noticed anything suspicious
in her driveway, like a blue Mazda, which was the type of vehicle that fled from
Officer McCandless earlier that day. She told Officer McCandless that she had not
noticed anything suspicious, but about an hour later she called police dispatch and
said that there was a blue Mazda in her driveway. In response, Officer McCandless
and two other officers went back to 684 East 99th Street.
{¶ 48} While on East 99th Street, Officer McCandless observed a Black
male running up the driveway of 684 East 99th Street. The person running was
small in stature and was wearing khaki pants, tan Timberland boots, and a dark-
colored jacket. As Officer McCandless pulled into the driveway of 684 East 99th
Street, the person ran to his left and then to his right. As he exited his cruiser,
Officer McCandless heard a house door slam shut. As he walked to the back of the
house, he saw a blue Mazda bearing the same license plate as the vehicle that fled
from him earlier that day. Officer McCandless then contacted the two officers
assisting him, Officers O’Malley and Lanigan.
{¶ 49} Officer McCandless then knocked at the back door of 684 East 99th
Street and spoke with the owner of the stolen license plate. He asked her if anyone
had just run into her house. She indicated to the officer that someone had just run
into her home and to the basement.
{¶ 50} Officers McCandless and Lanigan then went into the basement to
conduct a search. While downstairs, Officer Lanigan noticed a male hiding in a
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shower stall who matched the description of the male that Officer McCandless saw
running minutes before. It was Burns. Across from where Burns was found, there
was a woman’s snap-close pocketbook and some credit cards and identification
cards on the floor. After securing Burns, Officers McCandless and Lanigan
checked the identifications and credit cards; they belonged to a Della Watts.
Officer McCandless requested a check as to whether the items were stolen and was
immediately advised that Della had just been robbed at the address almost directly
across the street.
{¶ 51} After receiving that information, Officer McCandless went across
the street and found Della and Willie “severely beaten and bloody” and “blood on
the driveway and blood inside their residence in the kitchen.” He immediately
called for emergency medical services and began talking with Della and Willie to
determine what had happened. After learning what had happened to them, Officer
McCandless showed the purse he had retrieved from the basement of 684 East 99th
Street to Della and asked her if it was hers. Della said that it was her purse. Officer
McCandless made an in-court identification of the male he saw running on East
99th Street—Burns.
{¶ 52} The next day, Detective Robbie Durbin of the Cleveland Division of
Police executed a “consent to search warrant” for the house at which Burns had
been found. The owner of the house and their tenant had agreed to the search. In
the basement, Durbin found a loaded .45-caliber Springfield Armory
semiautomatic handgun on a sill plate.
H. Juvenile proceedings
{¶ 53} The state filed a 58-count complaint against Burns in the juvenile
court. The juvenile court found probable cause to believe that Burns had committed
the acts alleged in Counts 1, 2, 4, 6 through 23, 25 through 29, 36 through 43, 46,
47, 49 through 52, 54, and 55. The juvenile court did not find probable cause as to
Counts 3, 5, 24, 30 through 35, 44, 45, 48, 53, and 56 through 58. After holding an
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amenability hearing and considering the amenability factors in R.C. 2152.12(D)
and (E), the juvenile court determined that Burns “[was] not amenable to care or
rehabilitation within the juvenile system” and that “the safety of the community
may require that the child be subject to adult sanctions.” The juvenile court then
transferred Burns’s case to the adult court.
I. Adult-court proceedings
{¶ 54} Burns was charged in a 56-count indictment in adult court. The adult
court held a plea hearing on March 14, 2019. After the parties negotiated a plea
agreement, Burns entered a plea of guilty to the following counts: Count 1, the
robbery of James Peavy; Count 6, the aggravated burglary of the home of J.C.
Green; Count 11, the aggravated robbery of Lacey Mathy, with a one-year firearm
specification, as amended to dismiss a three-year firearm specification; Count 20,
the aggravated robbery of Max Rivera, with one- and three-year firearm
specifications; Count 29, the aggravated robbery of Victor Ford, with a one-year
firearm specification, as amended to dismiss a three-year firearm specification;
Count 35, receiving stolen property, as amended to dismiss a one-year firearm
specification; Count 45, the attempted murder of Willie Watts; Count 46, the
attempted murder of Della Watts; Count 47, the aggravated robbery of Della Watts;
and Count 55, receiving stolen property regarding the stolen Mazda CX-5. In turn,
the state dismissed Counts 2 through 5, 7 through 10, 12 through 19, 21 through
28, 30 through 34, 36 through 44, 48 through 54, and 56. The state agreed to
recommend a prison sentence in the range of 12 to 30 years. The trial court imposed
an aggregate prison sentence of 27 years.
{¶ 55} Because I concur in the majority opinion as to its affirmance of the
court of appeals’ judgment affirming Burns’s convictions on Counts 45, 46, and 55
of the indictment, this opinion addresses why Smith, 167 Ohio St.3d 423, 2022-
Ohio-274, 194 N.E.3d 297, was wrongly decided and should be overturned and
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why the majority is wrong to reverse the court of appeals’ judgment affirming
Burns’s conviction on Count 29.
II. LAW AND ANALYSIS
A. Standard of review
{¶ 56} This court is asked to apply Ohio’s statutes governing the
discretionary transfer of a juvenile case to adult court. Because of this court’s
decision in Smith, the dispute here centers on the correct interpretation of those
statutes. “The interpretation of a statute is a question of law that [this court] reviews
de novo.” Stewart v. Vivian, 151 Ohio St.3d 574, 2017-Ohio-7526, 91 N.E.3d 716,
¶ 23.
B. Smith was wrongly decided and should be overturned
{¶ 57} The majority in Smith interpreted R.C. 2152.12 as affecting the
subject-matter jurisdiction of an adult court. See Smith at ¶ 41-43. It held that
under R.C. 2152.12, following transfer from a juvenile court, the adult court has
subject-matter jurisdiction over only those “acts charged” for which the juvenile
court had found probable cause to believe that the juvenile committed the acts.
Smith at ¶ 26, 29, 42. That is, only an individual “act charged” for which the
juvenile court found probable cause transfers to the adult court. Id. at ¶ 2.
{¶ 58} Smith must be completely overturned.
{¶ 59} As I stated in my dissent in Smith, 167 Ohio St.3d 423, 2022-Ohio-
274, 194 N.E.3d 297, Ohio’s discretionary-bindover provision, R.C. 2152.12(B),
establishes five things. Smith at ¶ 55 (Kennedy, J., dissenting). In R.C. 2152.12(B),
the General Assembly (1) grants the juvenile court discretionary authority to
transfer a juvenile case to adult court, (2) limits the exercise of that discretionary
authority based on certain conditions, (3) requires the juvenile court to hold a
hearing before it may transfer a case to adult court, (4) states that the authority to
grant a discretionary transfer of a case to adult court is triggered by the filing of a
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juvenile complaint, and (5) establishes that what the juvenile court transfers is “the
case.” Smith at ¶ 55-59 (Kennedy, J., dissenting).
{¶ 60} Contrary to the majority’s holding in Smith, “all ‘the delinquent acts
alleged in the complaint’ ” transfer to the adult court, not just the charges for which
the juvenile found probable cause. (Emphasis sic.) Id. at ¶ 67 (Kennedy, J.,
dissenting), quoting R.C. 2152.12(I). This plain reading of the statute—that “the
case” transfers to adult court—is supported by other provisions in the statutory
scheme. And when the case is transferred to the adult court, the adult court has
complete jurisdiction over the case as if it had originated in that court. There is no
ambiguity in the language chosen by the General Assembly.
{¶ 61} On transfer to the adult court, the juvenile court loses jurisdiction
over the juvenile’s case as to the operative facts in the juvenile complaint. R.C.
2152.12(I) provides: “The transfer abates the jurisdiction of the juvenile court with
respect to the delinquent acts alleged in the complaint, and, upon 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 transferred as described in [R.C. 2151.23(H)].” (Emphasis added.) The force of
this provision—that the juvenile court no longer has any jurisdiction over the acts
charged in the complaint following transfer and that it is the case that is
transferred—is reinforced by the text of R.C. 2151.23: “[I]f the case is transferred
for criminal prosecution pursuant to [R.C. 2152.12], * * * the juvenile court does
not have jurisdiction to hear or determine the case subsequent to the transfer,” R.C.
2151.23(H).
{¶ 62} The Smith majority not only contorted the language of R.C. 2151.12
to limit what is transferred to the adult court to only the “acts charged,” but it also
improperly limited the jurisdiction of the adult court to only those “acts charged”
for which the juvenile court found probable cause. See 167 Ohio St.3d 423, 2022-
Ohio-274, 194 N.E.3d 297, at ¶ 28. But those words of limitation do not appear in
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the statute. To the contrary, the General Assembly chose language that makes plain
that following transfer, the adult court has full, unfettered authority over the case.
There is no jurisdictional bar that prohibits the adult court from considering all the
delinquent acts alleged in the juvenile complaint. And because the same majority
as in Smith holds in this case that the subject-matter jurisdiction of the adult court
is implicated, it once again muddies the water as to what subject-matter jurisdiction
means.
C. Subject-matter jurisdiction
{¶ 63} “Subject-matter jurisdiction refers to the constitutional or statutory
power of a court to adjudicate a particular class or type of case.” State v. Harper,
160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 23. “ ‘It is a “condition
precedent to the court’s ability to hear the case. If a court acts without jurisdiction,
then any proclamation by that court is void.” ’ ” Id., quoting Pratts v. Hurley, 102
Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 11, quoting State ex rel. Tubbs
Jones v. Suster, 84 Ohio St.3d 70, 75, 701 N.E.2d 1002 (1998). “ ‘A court’s
subject-matter jurisdiction is determined without regard to the rights of the
individual parties involved in a particular case.’ ” Id., quoting Bank of Am., N.A. v.
Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 19. “Rather, the
focus is on whether the forum itself is competent to hear the controversy.” Id.; see
also 18A Wright, Miller & Cooper, Federal Practice and Procedure, Section 4428,
at 6 (3d Ed.2017) (“Jurisdictional analysis should be confined to the rules that
actually allocate judicial authority among different courts”).
{¶ 64} “ ‘Once a tribunal has jurisdiction over both the subject matter of an
action and the parties to it, “* * * the right to hear and determine is perfect; and the
decision of every question thereafter arising is but the exercise of the jurisdiction
thus conferred.” ’ ” (Ellipsis added in Pizza.) Pratts at ¶ 12, quoting State ex rel.
Pizza v. Rayford, 62 Ohio St.3d 382, 384, 582 N.E.2d 992 (1992), quoting
Sheldon’s Lessee v. Newton, 3 Ohio St. 494, 499 (1854).
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{¶ 65} Article IV, Section 4(A) of the Ohio Constitution provides that
“[t]here shall be a court of common pleas and such divisions thereof as may be
established by law serving each county of the state,” and Article IV, Section 4(B)
provides that “[t]he courts of common pleas and divisions thereof shall have such
original jurisdiction over all justiciable matters * * * as may be provided by law.”
As we explained in State v. Aalim, “Article IV, Section 4(B) of the Ohio
Constitution grants exclusive authority to the General Assembly to allocate certain
subject matters to the exclusive original jurisdiction of specified divisions of the
courts of common pleas.” 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883,
¶ 2.
{¶ 66} The General Assembly exercised that power in enacting R.C.
2151.23(A)(1), which grants juvenile courts exclusive subject-matter jurisdiction
over children alleged to be delinquent for committing acts that would constitute
crimes if committed by an adult. See also R.C. 2931.03 (“The court of common
pleas has original jurisdiction of all crimes and offenses, except in cases of minor
offenses the exclusive jurisdiction of which is vested in courts inferior to the court
of common pleas”). R.C. 2152.12 establishes an exception to that rule, authorizing
a juvenile court to relinquish its exclusive jurisdiction in certain cases involving a
delinquent child and to transfer the case to the adult court. And once a juvenile
court relinquishes jurisdiction, as set forth above, “[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,” R.C. 2152.12(I).
{¶ 67} It is therefore within the subject-matter jurisdiction of a juvenile
court to transfer a case, and it is within the subject-matter jurisdiction of the adult
court to hear the case.
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{¶ 68} The majority concludes that that the adult court lacked subject-
matter jurisdiction to adjudicate Count 29 of the indictment. However, as explained
above, the focus of a subject-matter-jurisdiction inquiry is whether the court is the
proper forum to hear a specific type of case, and we do not look to the rights of the
individual parties to make that determination. So we do not ask whether the adult
court had subject-matter jurisdiction under the circumstances specific to Burns’s
case. Instead, we must determine whether the adult court has the constitutional and
statutory power to hear a criminal case involving a juvenile that has been transferred
from the juvenile court. Pursuant to Article IV, Section 4(B) of the Ohio
Constitution and R.C. 2152.12(I), the adult court is the court in which such a case
must be heard. The adult court in this case therefore had subject-matter jurisdiction
to adjudicate all the counts charged in the indictment.
{¶ 69} And as stated above, R.C. 2151.23(H) establishes that there is no
limitation on the jurisdiction of the adult court following transfer: “The court to
which the case is transferred for criminal prosecution * * * has jurisdiction
subsequent to the transfer to hear and determine the case in the same manner as if
the case originally had been commenced in that court.” (Emphasis added). That
jurisdiction “includ[es], but [is] not limited to, jurisdiction to * * * enter a judgment
of conviction, * * * whether the conviction is for the same degree or a lesser degree
of the offense charged, for the commission of a lesser-included offense, or for the
commission of another offense that is different from the offense charged.”
(Emphasis added.) Id. Because the plain and unambiguous language of R.C.
2152.12(B) provides that the “case” transfers to the adult court and because under
R.C. 2151.23(H), “the case” is to be considered as if it had originally commenced
in that court, Smith, 167 Ohio St.3d 423, 2022-Ohio-274, 194 N.E.3d 297, was
wrongly decided and should be overturned. Once Smith is overturned, the judgment
of the appellate court in this case should be affirmed, in full.
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January Term, 2022
{¶ 70} Because a majority of this court applies Smith to reverse the
judgment of the appellate court affirming Burns’s conviction on Count 29 of the
indictment, I will address that count now.
D. Count 29 of the indictment: The aggravated robbery of Victor Ford
{¶ 71} Count 29 of the indictment concerns the aggravated robbery of
Victor Ford on or about January 21, 2018. That charge correlates with Count 30 of
the juvenile complaint.
{¶ 72} As noted above, the juvenile court did not make a finding of probable
cause as to Count 30 of the juvenile complaint. Relying on Smith, 167 Ohio St.3d
423, 2022-Ohio-274, 194 N.E.3d 297, the majority holds that the adult court lacks
subject-matter jurisdiction as to Count 29 because the juvenile court’s failure to
find probable cause as to the acts underlying that count serves as a jurisdictional
bar to the adult court’s ability to hear the charge. But as discussed above, and as I
stated in my dissent in Smith, the majority’s decision in Smith was “unmoored from
the plain and unambiguous language of Ohio’s discretionary-bindover statute and
from the actual legal consequences of a finding of no probable cause,” id. at ¶ 45
(Kennedy, J., dissenting). Under R.C. 2151.23(H), the adult court had authority to
hear and determine the case “in the same manner as if the case originally had been
commenced in that court.” (Emphasis added.) Therefore, the grand jury was free
to consider the case that transferred from the juvenile court; that is, it could consider
any of the delinquent acts allegedly committed by Burns that were included in the
juvenile complaint. And the adult court was free to proceed on any charges the
grand jury returned in an indictment that arose from the acts alleged to have been
committed in the juvenile complaint, because under the relevant statutes, “the case”
transfers to the adult court. “The case” includes the aggravated robbery of Victor
Ford.
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III. CONCLUSION
{¶ 73} Burns’s months-long campaign of violent and firearm-aided
robberies was methodically set forth in the juvenile-court complaint. The juvenile
court properly transferred his case—consisting of all the delinquent acts alleged in
the complaint—to adult court.
{¶ 74} This case exposes what was wrong with this court’s majority
decision in Smith, 167 Ohio St.3d 423, 2022-Ohio-274, 194 N.E.3d 297. If a
juvenile court has not found probable cause for a charge that is later contained in
an adult-court indictment, then according to the Smith majority, the adult court
lacks subject-matter jurisdiction over that charge. Without a probable-cause
finding by the juvenile court as to each particular count, the adult court is powerless
to move forward—the juvenile court defines the adult court’s jurisdiction. And that
is ridiculous.
{¶ 75} As R.C. 2151.23(H) says, the case starts anew in the adult court. The
provision in that statute stating that the adult court has “jurisdiction to accept a plea
of guilty or * * * accept a verdict and to enter a judgment of conviction * * * for
the commission of another offense that is different from the offense charged”
establishes that a charge in an indictment can originate in the adult court following
transfer. The grand jury’s mandate is wide-ranging—it shall “proceed to inquire of
and present all offenses committed within the county,” R.C. 2939.08.
{¶ 76} The grand jury was authorized to indict Burns on any charge for
which it found probable cause to believe he committed. This is just one case that
proves the folly of Smith. How long before Smith is overturned in its entirety?
{¶ 77} I would affirm the judgment of the Eighth District Court of Appeals
in full. Because the majority does not do so, I concur in part and dissent in part.
FISCHER and DEWINE, JJ., concur in the foregoing opinion.
_________________
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and
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January Term, 2022
Gregory Ochocki, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Timothy B. Hackett and
Abigail J. Christopher, Assistant Public Defenders, for appellant.
Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and
Samuel C. Peterson, Deputy Solicitor General, urging affirmance for amicus curiae,
Ohio Attorney General Dave Yost.
_________________
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