DocketNumber: No. 07 MA 180.
Citation Numbers: 2008 Ohio 6367
Judges: WAITE, J.
Filed Date: 12/3/2008
Status: Precedential
Modified Date: 7/6/2016
{¶ 2} Appellant asks this Court to reverse the juvenile court's order transferring jurisdiction to the common pleas court, to vacate his conviction on the two counts of aggravated robbery, or to modify his sentence on the ten-year concurrent prison terms imposed on the aggravated robbery charges to minimum, concurrent prison terms, all in the alternative.
{¶ 3} As probable cause existed to believe that Appellant committed the crimes alleged in the juvenile complaint, and as the crimes alleged in the superceding indictment were based upon the same delinquent acts under review by the juvenile court, the general division of the common pleas court had jurisdiction over the crimes alleged in the superceding indictment. Further, because former R.C.
{¶ 5} The following facts are taken from the probable cause hearing conducted by the juvenile court. According to Robert Floyd ("Floyd"), who was sixteen years old when he testified at the hearing, Appellant, Devron Pinkard (Floyd's cousin), Helms, and Barlow were at Floyd's mother's house on May 20, 2006, the same day that Helms and Barlow were killed. (9/5/06 Tr., pp. 32-33.) Floyd testified that he overheard Helms talking about selling marijuana, (9/5/06 Tr., pp. 39-40), and Pinkard discussing a plan with Appellant to steal marijuana from Helms, Barlow, and "Jesse." (9/5/06 Tr., pp. 27, 34.) Floyd was upset by the idea that a robbery might occur at his mother's house, and, as a consequence, he insisted that Appellant and Pinkard leave her residence. (9/5/06 Tr., pp. 27, 41.)
{¶ 6} However, the same group of boys met up some time later at the house of Mary Floyd (Pinkard's mother and Floyd's aunt). Floyd decided to go to his aunt's house to fix a scooter. Appellant and Pinkard arrived at the house about five minutes later. (9/5/06 Tr., p. 35.) While Floyd was fixing the scooter in the front yard, Helms *Page 4 and Barlow went to the backyard of the vacant house next door with Appellant and Pinkard. (9/5/06 Tr., pp. 28, 36.)
{¶ 7} Floyd testified that Appellant, Pinkard, Helms, and Barlow were in the backyard for "approximately ten seconds," when Pinkard returned to the front yard. (9/5/06 Tr., p. 29.) On cross-examination, Floyd said the boys were in the backyard for "two or three minutes." (9/5/06 Tr., p. 41.)
{¶ 8} Floyd testified that, two minutes after Pinkard returned to the front yard, he and Pinkard heard gunshots coming from the backyard. (9/5/06 Tr., pp. 29, 42.) Shortly thereafter, Appellant emerged from the backyard. (9/5/06 Tr., pp. 42, 49.) Floyd testified that he and Pinkard then told Mary Floyd to call an ambulance. (9/5/06 Tr., p. 43.) Helms and Barlow both suffered fatal gunshot wounds.
{¶ 9} In addition to Floyd's testimony, the juvenile court heard the testimony of Detective Sergeant Rick Spotleson. According to Spotleson, immediately following the shooting, Mary Floyd told him that she heard the gunshots and then saw people run away, but she could not identify the gunman. (9/5/06 Tr., p. 11.) On cross-examination, Spotleson testified that the following day, during an in-depth interview, Mary Floyd told him that she saw Appellant walking down the driveway with a gun after she heard the gunshots. (9/5/06 Tr., p. 22.) Spotleson acknowledged the inconsistency of Mary Floyd's statements to the police. (9/5/06 Tr., p. 23.) Finally, Spotleson testified that Carl Wright (Barlow's uncle) identified Barlow at the scene, and then confronted Floyd's mother exclaiming, "your son killed my nephew." (9/5/06 Tr., p. 11.) *Page 5
{¶ 10} The final witness at the hearing was Carl Hammonds (Pinkard's cousin), who was arrested at the scene. Hammonds initially implicated Pinkard, because he believed that Pinkard intended to steal the car that Helms and Barlow were driving. (9/5/06 Tr., pp. 11, 59.) In order to vindicate himself of the crimes, Hammonds arranged to meet with Appellant and Pinkard to determine what actually happened. (9/5/06 Tr., p. 56.) At the meeting, Appellant told Hammonds that he pulled a gun on Helms and Barlow, and one of the boys rushed him. Hammonds further testified that Appellant, "went to get another boy * * * brought him back there, and he shot him too," but Hammonds conceded that Appellant did not provide an explanation regarding the shooting of the second boy. (9/5/06 Tr., p. 57.)
{¶ 11} Based upon the foregoing testimony, the juvenile court transferred jurisdiction over Appellant to the general division of the common pleas court pursuant to R.C.
{¶ 13} Juvenile courts have exclusive initial subject matter jurisdiction over any case involving a person alleged to be delinquent for having committed, when younger *Page 6
than eighteen years of age, an act which would constitute a felony if committed by an adult. State v. Golphin (1998),
{¶ 14} However, where a complaint has been filed charging a child with murder, and the child was sixteen or seventeen years of age at the time of the act charged, the juvenile court must transfer jurisdiction if there is probable cause to believe that the child committed the charged act. R.C.
{¶ 15} Appellant contends that the juvenile court relied on inadmissible hearsay testimony in order to support its finding of probable cause. Appellant argues that without the hearsay testimony provided by Spotleson, the remaining witnesses were all either biased or implicated in the crime. Appellant claims that the state did not provide any evidence to establish the requisite mental state to commit murder.
{¶ 16} At a hearing conducted pursuant to R.C.
{¶ 17} The juvenile court's probable cause determination in a mandatory bindover proceeding involves questions of both fact and law.In re A.J.S., Slip Opinion No.
{¶ 18} Disregarding the alleged hearsay testimony provided by Spotleson, independent evidence exists to establish probable cause to believe that Appellant committed the crimes charged in the juvenile complaint. The testimony of Floyd and Hammonds is consistent. Both testified that Appellant shot Helms and Barlow, and that Appellant and Pinkard planned to rob Helms and Barlow, albeit of different property. With respect to intent, Hammonds testified that one of the boys "rushed" Appellant, and that Appellant "went to get another boy * * * brought him back there, and he shot him too." (9/5/06 Tr., p. 57.)
{¶ 19} Admittedly, Floyd and Hammonds are Pinkard's cousins, and both were initially implicated in the crime. However, their willingness to incriminate Pinkard in the robbery cuts against Appellant's argument that they sought to shield their cousin from liability for the criminal acts he committed.
{¶ 20} The record reflects that the state "provide[d] credible evidence of every element of [the] offense to support a finding that probable cause exists to believe that *Page 8 the juvenile committed the offense[s]" charged in the complaint. SeeState v. lacona, supra, at 93. Therefore, Appellant's first assignment of error is overruled.
{¶ 22} Appellant was bound over on two murder charges, however, he was indicted in the general division of the common pleas court on two counts of aggravated murder in violation of R.C.
{¶ 23} In State v. Fryerson (Feb. 10, 2000), 8th Dist. No. 71683, the defendant was charged with unrelated offenses against two separate victims, Jones and Robinson. At the close of the probable cause hearing, the juvenile court ordered the mandatory bindover on the charges of kidnapping and aggravated robbery, but only as to Robinson. In the general division of the common pleas court, the defendant was indicted for crimes against both victims in one case and crimes against Jones in a second case, but the first case was voluntarily dismissed by the prosecution. *Page 9 Ultimately, the defendant was found guilty of aggravated robbery and grand theft auto based upon crimes committed against Jones.
{¶ 24} The Eighth District held that as long as the indicted offense arose out of the charge that formed the basis of the transfer, the juvenile could be indicted on a different offense. However, where the juvenile was indicted on crimes that did not arise out of the bound over offenses, the trial court lacked jurisdiction. Id. at *5. As a consequence, the Eighth District concluded that, because there was no valid transfer of the charged act relating to Jones from the juvenile court, the general division of the common pleas court lacked jurisdiction to adjudicate those criminal charges, and, therefore, the prosecution was void ab initio. Id. at *6.
{¶ 25} In State v. Bruno (Feb. 8, 2001), 8th Dist. No. CR-375467A, the Eighth District, citing R.C.
{¶ 26} Here, as in Bruno, Appellant was charged with murder in the juvenile complaint, then indicted on aggravated murder in the general division of the common pleas court. Appellant does not contend that the aggravated murder charges are not "derived from [the] charged act" of murder. Fryerson, supra, at *5. Instead, Appellant maintains that there was no valid transfer of the aggravated robbery charges from the juvenile court, and, therefore, those charges were void ab initio. *Page 10
{¶ 27} We addressed a similar challenge in State v. Barnette, 7th Dist. No. 02CA65,
{¶ 28} The defendant argued that kidnapping was outside the subject matter jurisdiction of the general division of the common pleas court because it was expressly deleted by the juvenile court in its transfer order. We rejected the argument based upon the plain language of R.C.
{¶ 29} "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
{¶ 30} We concluded that R.C.
{¶ 31} In the instant case, the aggravated murder charges and the aggravated robbery charges were clearly derived from the same delinquent acts subject to review in the juvenile court and which formed the basis of the transfer. Therefore, the general division of the common pleas court did not exceed its jurisdiction when it convicted and sentenced Appellant on the aggravated robbery charges. Accordingly, Appellant's second assignment of error is overruled.
{¶ 33} Because Appellant was sentenced pursuant to State v.Foster,
{¶ 34} Former 2929.14 reads, in pertinent part: *Page 12
{¶ 35} "(B) Except as provided in division (C), (D)(1), (D)(2), (D)(3), (D)(5), (D)(6), (G), or (L) of this section, in section
{¶ 36} "(1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term.
{¶ 37} "(2) The court finds on the record that the shortest prison term will demean the seriousness of the offender's conduct or will not adequately protect the public from future crime by the offender or others."
{¶ 38} Appellant cites Hicks v. Oklahoma (1980),
{¶ 39} In Hicks, the defendant was sentenced to 40 years of imprisonment by a jury in accordance with Oklahoma's habitual offender statute. Following the imposition of his sentence, Oklahoma's habitual offender statute was declared unconstitutional. However, the court of appeals affirmed Hicks' sentence, reasoning *Page 13 that he was not prejudiced by the application of the unconstitutional statute because his sentence was within the range of punishment for his crime.
{¶ 40} The United States Supreme Court vacated Hicks' sentence based upon an Oklahoma law that entitles a defendant to have his sentence imposed by a jury:
{¶ 41} "Where, however, a State has provided for the imposition of criminal punishment in the discretion of the trial jury, it is not correct to say that the defendant's interest in the exercise of that discretion is merely a matter of state procedural law. The defendant in such a case has a substantial and legitimate expectation that he will be deprived of his liberty only to the extent determined by the jury in the exercise of its statutory discretion, and that liberty interest is one that the
{¶ 42} The above-captioned case is clearly distinguishable fromHicks. The statutory right in Hicks was an absolute right, not subject to the exercise of any discretion on the part of the sentencing entity. Former R.C.
{¶ 43} In summary, the juvenile court's judgment entry transferring this case to the general division of the common pleas court was supported by probable cause to believe that Appellant committed the acts charge in the complaint. Moreover, the aggravated robbery charges in the superceding indictment were, "based on the same delinquent acts under review in the juvenile court," Bamette, supra, at ¶ 38, and, as a consequence, the general division of the common pleas court had jurisdiction over those charges. Finally, former R.C.
Donofrio, J., concurs.
*Page 1DeGenaro, P.J., concurs.