DocketNumber: No. 06AP-915.
Citation Numbers: 2007 Ohio 4178
Judges: BROWN, J.
Filed Date: 8/16/2007
Status: Precedential
Modified Date: 7/6/2016
{¶ 2} On October 20, 2005, appellant and a co-defendant robbed a carryout store using a firearm. Appellant was 16 years old at the time of the crime. A complaint was filed in the juvenile court, alleging that appellant had committed, if by an adult, aggravated *Page 2
robbery, in violation of R.C.
{¶ 3} On January 20, 2006, appellant was indicted on two counts of aggravated robbery with specification and two counts of robbery with specification. On June 12, 2006, appellant entered a plea of guilty to aggravated robbery with specification, and the state requested nolle prosequi be entered with respect to one count of aggravated robbery with specification and two counts of robbery with specification. A sentencing hearing was held, and the trial court sentenced appellant to a seven-year term of imprisonment, to be served consecutive to a prison term of one year for the specification. The trial court entered judgment on August 15, 2006. Appellant appeals the judgment of the trial court, asserting the following assignments of error:
ASSIGNMENT OF ERROR NO. 1:
*Page 3THE JUVENILE COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT IN RULING THAT DEFENDANT-APPELLANT WAS NOT AMENABLE TO TREATMENT WITHIN THE JUVENILE SYSTEM, AND IN TRANSFERRING THIS MATTER TO ADULT COURT.
ASSIGNMENT OF ERROR NO. 2:
THE JUVENILE COURT ERRED AND ABUSED ITS DISCRETION BY DETERMINING THAT APPELLANT WAS NOT AMENABLE TO CARE OR REHABILITATION, BASED IN PART ON AN INCOMPLETE PSYCHOLOGICAL REPORT.
ASSIGNMENT OF ERROR NO. 3:
THE TRIAL COURT ABUSED ITS DISCRETION BY DELEGATING ITS RESPONSIBILITIES UNDER O.R.C.
2152.12 (D) AND (E) TO THE PSYCHOLOGIST.
ASSIGNMENT OF ERROR NO. 4:
THE JUVENILE COURT ABUSED ITS DISCRETION WHEN IT FAILED TO GIVE MANDATORY NOTICE TO THE FATHER OF THE JUVENILE OF THE PRELIMINARY HEARING, THE AMENABILITY HEARING, AND THE BINDOVER HEARING, PURSUANT TO OHIO REVISED CODE SECTION
2151.12 (G).
ASSIGNMENT OF ERROR NO. 5:
A JUVENILE COURT ERRS WHEN IT FAILS TO ADDRESS WHETHER OR NOT AN ACT COMMITTED BY A JUVENILE BINDOVER DEFENDANT WOULD BE A FELONY IF COMMITTED BY AN ADULT.
ASSIGNMENT OF ERROR NO. 6:
A COMMON PLEAS COURT, GENERAL DIVISION, LACKS JURISDICTION OVER A JUVENILE BINDOVER DEFENDANT, WHERE THE JUVENILE COURT NEGLESTS [sic] TO FOLLOW THE PROCEDURE OF O.R.C. SECTION 2125.12 [sic] WHEN RELINQUISHING JURISDICTION.
ASSIGNMENT OF ERROR NO. 7:
*Page 4A JUVENILE BINDOVER DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAWS IS VIOLATED WHEN THE JUVENILE COURT RELINQUISHES JURISDICTION WITHOUT FOLLOWING THE PROPER PROCEDURE AS LISTED IN O.R.C. 2125.12 [sic].
{¶ 4} We will address appellant's first, second, third, fifth, sixth, and seventh assignments of error together, as they are related. In his first assignment of error, appellant asserts that the juvenile court did not weigh the necessary factors in R.C.
{¶ 5} All of appellant's arguments in these assignments of error contend the trial court did not follow the proper discretionary bindover procedures in R.C.
After a complaint has been filed alleging that a child is a delinquent child by reason of committing a category two offense, the juvenile court at a hearing shall transfer the case if section
2152.10 of the Revised Code requires the mandatory transfer of the case and there is probable cause to believe that the child committed the act charged.
A "category two offense" includes a violation of R.C.
{¶ 6} R.C.
(A) A child who is alleged to be a delinquent child is eligible for mandatory transfer and shall be transferred as provided in section2152.12 of the Revised Code in any of the following circumstances:* * *
(2) The child is charged with a category two offense, other than a violation of section
2905.01 of the Revised Code, the child was sixteen years of age or older at the time of the commission of the act charged, and either or both of the following apply:(a) The child previously was adjudicated a delinquent child for committing an act that is a category one or a category two offense and was committed to the legal custody of the department of youth services on the basis of that adjudication.
(b) The child is alleged to have had a firearm on or about the child's person or under the child's control while committing the act charged and to have displayed the firearm, brandished the firearm, indicated possession of the firearm, or used the firearm to facilitate the commission of the act charged.
{¶ 7} In the present case, because appellant was charged with aggravated robbery, a violation of R.C.
{¶ 8} Appellant argues in his fourth assignment of error that the juvenile court erred when it failed to give mandatory notice to appellant's father of the preliminary hearing, the amenability hearing, and the bindover hearing pursuant to R.C.
R.C.
The court shall give notice in writing of the time, place, and purpose of any hearing held pursuant to division (A) or (B) of this section to the child's parents, guardian, or other custodian and to the child's counsel at least three days prior to the hearing.
{¶ 9} Juv.R. 30(D) similarly provides:
Notice 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 *Page 7 child's counsel at least three days prior to the hearing, unless written notice has been waived on the record.
{¶ 10} Here, appellant claims that his father was never given notice of any of the juvenile hearings. The record before this court does not indicate that appellant's father was given notice of the hearings, although appellant's mother was given notice and appeared at the hearings. The record also fails to indicate any waivers of notice. The first issue, therefore, is whether it was required that appellant's father receive notice, or whether it was sufficient that his mother received notice and attended the hearings. The state asserts that there is no authority interpreting R.C.
{¶ 11} R.C.
{¶ 12} We find this interpretation consistent with legislative intent. Principles of statutory construction require that courts interpret statutes to reflect a consistent legislative intent. Akron v.Meissner (1993),
{¶ 13} The present case is unlike Taylor, supra, the only case cited by appellant in support of his argument, in which the court found notice was insufficient to effect a proper bindover from the juvenile court to the court of common pleas. In Taylor, only an adult sister of the juvenile was present at the proceedings, and there was no evidence that she was a "guardian" or "custodian." The court noted, "[h]ere, it appears from the record that no such notice was given to anyone, let alone the parents, guardian or custodian." Id., at *Page 9
71. However, in the present case, proper notice was given to appellant's mother, and she attended the proceedings. Therefore, unlike inTaylor, at least one party listed under R.C.
{¶ 14} Notwithstanding the foregoing, we also find that, even if appellant's father was entitled to notice, pursuant to R.C.
{¶ 15} We also find State v. Wallace (May 20, 1992), Lorain App. No. 91CA005075 helpful. In Wallace, the juvenile appealed after being bound over and tried as an adult. The juvenile argued on appeal that the trial court erred when it took jurisdiction of him. The juvenile contended he was transferred to the court of common pleas without his parent, guardian or custodian receiving proper notice of the hearings because the court failed to determine who was his parent, guardian or custodian. In finding the bindover was proper, the appellate court seemed to view significant that there was a caregiver of some type notified and present to safeguard the juvenile's rights, consistent with the statutory purpose of protecting the juvenile, rather than whether notice was technically proper to one of the parties listed in the statute. The appellate court concluded that, despite a lack of finding that the juvenile's grandmother was actually either his legal guardian or custodian, notice was proper because the record indicated that the juvenile's grandmother was "acting as" a guardian based upon her signing numerous forms as "guardian"; the juvenile court explained to the juvenile and some family members the nature and purpose of the amenability hearing; and the juvenile's grandmother and aunt were present and testified at the amenability hearing. In the present case, not only was appellant's mother actually one of the types of persons listed in R.C.
{¶ 16} Although we have been unable to find any controlling authority directly on point with the present issue, this precise issue was addressed by the dissenting opinion in *Page 11 West, supra, which we feel compelled to discuss. In West, a juvenile was convicted of murdering his maternal aunt after the juvenile court transferred jurisdiction over him to the general division of the common pleas court for criminal prosecution. Although the majority failed to address the merits of the issue, the dissenting opinion, sua sponte, thoroughly addressed whether the transfer of jurisdiction was proper when notice of the bindover proceedings was given only to the juvenile's mother and not his father, who was separated from the mother at the time of the proceedings. The dissent stated that the Ohio legislature had ample opportunity to amend the language in R.C.
{¶ 17} However, we do not follow the rationale put forth by the dissent in West not only because West was rendered by a court in another appellate jurisdiction, but, also, because it was not the reasoning of the majority. Also, as previously noted, the present case, unlikeWest, did not indicate the juvenile's mother had any basis for prejudice that would suggest that she alone could not fully protect the best interest of the juvenile. *Page 12
Further, as in the present case, the juvenile in West failed to raise the failure of notice to the father at the trial court level, and the majority in West, in response to the dissenting opinion, concluded that, as a result, the juvenile waived the argument for purposes of appeal. See West, at 609. Significantly, although the dissent claimed that the notice requirement could not be waived, the Ohio Supreme Court did not accept an appeal of West for review. See State v. West,
{¶ 18} Therefore, we are satisfied that, under the circumstances of this case, appellant's procedural due process rights were adequately protected, and the juvenile court did not err when it failed to give notice to appellant's father of the various bindover hearings pursuant to R.C.
{¶ 19} Accordingly, appellant's first, second, third, fourth, fifth, sixth, and seventh assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
SADLER, P.J., and TYACK, J., concur.*Page 1