State v. Hoskins

[Cite as State v. Hoskins, 2018-Ohio-4529.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case Nos. 27486 and 27487
:
v. : Trial Court Case Nos. 2015-CR-
: 2937/2 and 2015-CR-3068/2
DIAQUAN J. HOSKINS :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:
...........
OPINION
Rendered on the 9th day of November, 2018.
...........
MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
WILLIAM O. CASS, JR., Atty. Reg. No. 0034517, 135 West Dorothy Lane, Suite 117,
Kettering, Ohio 45429
Attorney for Defendant-Appellant
.............
TUCKER, J.
-2-
{¶ 1} Defendant-appellant, Diaquan J. Hoskins, appeals from his conviction on one
count of aggravated robbery in Case No. 2015 CR 02937/2, and from his conviction on
one count of aggravated robbery in Case No. 2015 CR 03068/2. Hoskins, who was
originally charged as a minor in the Montgomery County Court of Common Pleas,
Juvenile Division (“the juvenile court”), pleaded guilty after reaching an agreement with
the State. Raising two assignments of error, Hoskins argues that the juvenile court
abused its discretion by transferring the cases to the Montgomery County Court of
Common Pleas, General Division (“the common pleas court”) and that his defense
counsel failed to provide effective assistance at his subsequent amenability hearing. We
find that the juvenile court did not abuse its discretion by transferring the cases, and
further, that counsel did not fail to provide Hoskins with effective assistance. Therefore,
Hoskins’s convictions are affirmed.
I. Facts and Procedural History
{¶ 2} On September 18, 2015, the State filed a complaint against Hoskins in the
juvenile court, alleging that on or about September 17, 2015, Hoskins committed
aggravated robbery in violation of R.C. 2911.01(A)(1). Hoskins was approximately 17
years and 50 weeks of age at the time.1 On October 1, 2015, the State filed two more
complaints against Hoskins in the juvenile court. In the first of these, the State charged
Hoskins with the commission of aggravated robbery in violation of R.C. 2911.01(A)(1) on
or about September 4, 2015, and in the second, the State charged Hoskins with the
1In his brief, Hoskins states that he “turned 18 years old” on “November 10, 2015.”
Appellant’s Br. 4. The record, however, clearly indicates that Hoskins was born on
September 30, 1997.
-3-
commission of aggravated robbery in violation of R.C. 2911.01(A)(1) on or about
September 10, 2015. Each of the three complaints included a firearm specification under
R.C. 2941.145.
{¶ 3} On October 2, 2015, the State moved to transfer the cases to the common
pleas court pursuant to R.C. 2152.10(A)(2)(b) and 2152.12(A)(1)(b)(ii). The juvenile
court sustained the State’s motion in its order of November 3, 2015, finding probable
cause to believe that Hoskins was guilty, and on November 30, 2015, a Montgomery
County grand jury issued two indictments against him. In Case No. 2015 CR 02937/2,
the indictment alleged, in a single count, that on or about September 17, 2015, Hoskins
committed aggravated robbery in violation of R.C. 2911.01(A)(1). A firearm specification
was attached. In Case No. 2015 CR 03068/2, the indictment alleged, in two counts, that:
(1) on or about September 10, 2015, Hoskins committed aggravated robbery in violation
of R.C. 2911.01(A)(1); and (2) on or about September 4, 2015, Hoskins committed
aggravated robbery in violation of R.C. 2911.01(A)(1). Firearm specifications were
attached to both counts.
{¶ 4} On April 16, 2016, Hoskins pleaded guilty to two counts of aggravated
robbery—one count in Case No. 2015 CR 02937/2, and one count in Case No. 2015 CR
03068/2. In exchange, the State dismissed the firearm specifications in both of the
cases, as well as the remaining count of aggravated robbery in the latter case. Following
a presentence investigation, Hoskins appeared before the common pleas court on May
17, 2016, and the court sentenced him to four years of imprisonment for each offense,
with the sentences to be served concurrently.2 The court then stayed the sentences and,
2 The parties had “agreed [on a] four-year sentence.” Transcript of Plea Hearing 5:10-
-4-
as a consequence of the State’s dismissal of the firearm specifications, remanded the
cases to the juvenile court pursuant to R.C. 2152.121(B).
{¶ 5} On August 31, 2016, the juvenile court held an amenability hearing. In its
orders of the same date, the juvenile court determined that Hoskins was not amenable to
care or rehabilitation within the juvenile system, and as a result, it returned the cases to
the common pleas court for further proceedings.3
{¶ 6} On February 12, 2017, the common pleas court filed its third amended
termination entry in Case No. 2015 CR 02937/2, and its fourth amended termination entry
in Case No. 2015 CR 03068/2.4 Hoskins timely filed notices of appeal on March 2, 2017,
and we appointed appellate counsel to represent him. Counsel filed Anders briefs on
behalf of Hoskins, who did not file briefs on his own behalf, but because we found that
the record did not permit meaningful appellate review, at the time, of the amenability
hearing held by the juvenile court on August 31, 2016, we set aside the Anders briefs and
appointed substitute appellate counsel. The record has since been supplemented, and
the parties have submitted their briefs on the merits.
II. Analysis
{¶ 7} For his first assignment of error, Hoskins argues that:
THE JUVENILE COURT’S DECISION TO TRANSFER THE
5:15, Apr. 19, 2016; see also Appellant’s Br. 4; Appellee’s Br. 2.
3 Each of the three complaints originally filed in the juvenile court was assigned an
individual case number. Two of these were essentially consolidated into Case No. 2015
CR 03068/2.
4In Case Nos. 27285, 27286, 27366 and 27367, the previous termination entries were
deemed not to be final, appealable orders.
-5-
APPELLANT TO THE ADULT SYSTEM WAS AN ABUSE OF
DISCRETION OR BASED UPON AN INSUFFICIENT FINDINGS [SIC] OF
FACT.
{¶ 8} Hoskins contends that, in its orders of August 31, 2016, the juvenile court
abused its discretion by transferring his cases to the common pleas court pursuant to
R.C. 2152.121(B)(3)(b). Appellant’s Br. 8-9. Specifically, Hoskins challenges the
court’s findings that he used a firearm while committing the offenses to which he pleaded
guilty; that previous attempts at his rehabilitation through the juvenile system suggested
that further attempts would be unavailing; and that he would not remain eligible for
services long enough to be rehabilitated within the juvenile system. As well, Hoskins
contends that the juvenile court failed to consider, or develop, aspects of the record that
warranted its retention of jurisdiction over his cases. Id. at 10.
{¶ 9} The offenses to which Hoskins pleaded guilty in Case Nos. 2015 CR 02937/2
and 2015 CR 03068/2 would not initially have been subject to mandatory transfer from
the juvenile court, because the State dismissed the firearm specifications originally
attached to the charges.5 Consequently, the juvenile court’s orders of August 31, 2016,
effected discretionary transfers to the common pleas court, which we review for abuse of
discretion. State v. Howard, 2d Dist. Montgomery No. 27198, 2018-Ohio-1863, ¶ 14,
citing In re M.P., 124 Ohio St. 3d 445, 2010-Ohio-599, 923 N.E.2d 584, ¶ 14, and State v.
5 Under R.C. 2152.10(A)(2)(b), the charges of aggravated burglary would have been
subject to mandatory transfer only if Hoskins had pleaded guilty to committing the offense
with a firearm on or about his person and had admitted that he “displayed the firearm,
brandished the firearm, indicated [his] possession of the firearm, or used the firearm to
facilitate” the offense. Hoskins pleaded guilty to two counts of aggravated robbery with
an unspecified deadly weapon.
-6-
Watson, 47 Ohio St. 3d 93, 95, 547 N.E.2d 1181 (1989). A court abuses its discretion by
issuing an order or decision that is “ ‘unreasonable, arbitrary or unconscionable.’ ” State
v. Taylor, 2d Dist. Montgomery No. 27542, 2017-Ohio-8913, ¶ 23, quoting State v.
Adams, 62 Ohio St. 2d 151, 157, 404 N.E.2d 144 (1980). Under this standard, a “juvenile
court enjoys wide latitude to retain or [to] relinquish jurisdiction,” although it “is required
to consider whether [any] relevant factors under R.C. 2152.12(D), which indicate that [a]
case should be transferred, outweigh [any] relevant factors under R.C. 2152.12(E), which
indicate that [a] case should not be transferred.” Watson at 95; Howard at ¶ 15 and 19.
{¶ 10} At the amenability hearing on August 31, 2016, the parties jointly waived
their rights to offer testimony and stipulated to the contents of a report prepared by the
juvenile court’s psychologist, Dr. Fujimura. After the parties offered oral arguments, the
juvenile court announced its decision from the bench. The following “key points,” among
other things, persuaded the court that it should relinquish jurisdiction: (1) the juvenile
system had only a “two-year window” remaining in which to “work with” Hoskins, who was
18 years and 11 months old at the time; (2) Hoskins’s juvenile record began before his
tenth birthday, and in the previous eight and a half years, he had been “detained 12
times”; (3) on numerous occasions, Hoskins had been subjected to electronic home
monitoring and probation supervision, though he violated the terms; (4) Hoskins had been
placed at the Nicholas Residential Treatment Center but left without permission; (5)
Hoskins had already “been supplied [with] a substantial amount of services through the
juvenile justice system” but “continued to find a way to get in trouble”; (6) Hoskins did not
“follow through on treatment” for mental health concerns; and (7) Dr. Fujimura’s report
indicated that Hoskins demonstrated an unwillingness to reform. In its orders
-7-
transferring Hoskins’s cases, the court summarized the rationale for its decision by
reference to the factors listed in R.C. 2152.12(D)(5), (7) and (9).
{¶ 11} Hoskins maintains that because the “firearm specifications were dismissed
[by the State] as part of [his] plea agreement,” the juvenile court had “no factual basis” for
finding, pursuant to R.C. 2152.12(D)(5), that he possessed and “allegedly used or
displayed [a] firearm” when he committed the offenses to which he pleaded guilty.
Appellant’s Br. 9. Further, claiming that “he responded” to mental health counseling and
the administration of “appropriate medication” in the past, Hoskins faults the court for
finding, pursuant to R.C. 2152.12(D)(7), that the “results of [his] previous juvenile
sanctions and [participation in related] programs” indicated that he would “not [be
rehabilitated] in the juvenile system.” Id. In addition, Hoskins disputes the court’s
finding, pursuant to R.C. 2152.12(D)(9), that two years was not “sufficient time” for the
juvenile system to rehabilitate him. Id.
{¶ 12} Although the State dismissed the firearm specifications pursuant to its plea
agreement with Hoskins, the juvenile court’s finding under R.C. 2152.12(D)(5) was
supported by the record before it. Each of the complaints originally filed by the State on
September 18, 2015, and October 1, 2015, alleged that Hoskins committed aggravated
robbery with a “handgun,” and the disposition investigation report likewise referred to a
“handgun” or “firearm.”6
{¶ 13} The juvenile court’s findings under R.C. 2152.12(D)(7) and (9) were also
supported by the record. Throughout Hoskins’s roughly eight-year history with the
6 The presentence investigation report ordered by the common pleas court included
these allegations, as well.
-8-
juvenile system, repeated attempts at rehabilitation had failed, and after eight years of
unsuccessful attempts, the court had little reason to conclude that two more years would
be sufficient time for his rehabilitation to occur within the juvenile system.
{¶ 14} Hoskins also contends that the juvenile court “was incorrect” when it found
that none of the factors in R.C. 2152.12(E) was applicable in his case. Appellant’s Br.
10. Citing Dr. Fujimura’s psychological report, Hoskins argues that the court should have
found, under R.C. 2152.12(E)(6), that he was not “mature enough” for his cases to be
transferred, and that the court should have found, under R.C. 2152.12(E)(7), that his
cases should not be transferred because he had a “mental illness or intellectual disability.”
Id. He faults the court further for “not even look[ing] into” the other factors set forth in
R.C. 2152.12(E)—specifically, R.C. 2152.12(E)(1)-(4). See id.
{¶ 15} Regarding the psychological report, Hoskins essentially disputes the
juvenile court’s interpretation of Dr. Fujimura’s analysis. The court, nevertheless,
indicated that it considered the factors listed in R.C. 2152.12(E), and even if the court
should have determined that the report called Hoskins’s maturity and mental health into
question, the court was nonetheless entitled, as an exercise of discretion, to find that the
factors listed in R.C. 2152.12(D), which support transfer, outweighed the contrary factors
in R.C. 2152.12(E). Furthermore, the report does not unequivocally establish either that
Hoskins was not mature enough for transfer to be appropriate, or that he had a mental
illness sufficient, of itself, to justify the court’s retention of jurisdiction.
{¶ 16} Regarding R.C. 2152.12(E)(1)-(4), which relate to the circumstances of the
“act [or acts] charged,” Hoskins claims that “no evidence [was] introduced as to the facts
surrounding the * * * charges in his case.” Appellant’s Br. 10. Yet, Hoskins waived his
-9-
right to introduce such evidence at the hearing, and as the State notes in its brief, the
disposition investigation report, which was part of the record before the juvenile court,
provided detailed descriptions of the acts of aggravated robbery with which Hoskins was
charged. See Appellee’s Br. 9.
{¶ 17} Where a juvenile “court considers the appropriate statutory factors,” and if
“there is some rational basis in the record to support the court’s findings” with respect to
those factors, an appellate court should not “conclude that the [juvenile] court abused its
discretion in deciding whether to transfer jurisdiction.” (Citations omitted.) State v.
West, 167 Ohio App. 3d 598, 2006-Ohio-3518, 856 N.E.2d 285, ¶ 10 (4th Dist.); see also
Howard, 2d Dist. Montgomery No. 27198, 2018-Ohio-1863, at ¶ 15. Here, the juvenile
court indicated that it considered the provisions of R.C. 2152.12(D)-(E), and the record
provided a rational basis for the court’s decision to transfer Hoskins’s cases. We find
accordingly that the juvenile court did not abuse its discretion by ordering the transfer.
The first assignment of error is overruled.
{¶ 18} For his second assignment of error, Hoskins argues that:
APPELLANT’S COUNSEL [SIC] WAIVER OF APPELLANT’S
RIGHT TO HAVE AN EVIDENTIARY HEARING WAS INEFFECTIVE
ASSISTANCE OF COUNSEL.
{¶ 19} Hoskins suggests that in “light of [Dr.] Fujimura’s report, it is evident that
much could have been presented to convince the [juvenile] [c]ourt that * * * transfer [of
his cases to the common pleas court] was not warranted.” Appellant’s Br. 12-13.
Because the amenability hearing on August 31, 2016, was his “last opportunity to [avoid]
adult prison,” Hoskins contends that by waiving his right to introduce evidence at the
-10-
hearing, his counsel failed to render effective assistance.
{¶ 20} To prevail on a claim of “ineffective assistance of counsel, a defendant must
satisfy the two-pronged test in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984).” State v. Cardenas, 2016-Ohio-5537, 61 N.E.3d 20, ¶ 38
(2d Dist.). The Strickland test requires a showing that: “(1) defense counsel’s
performance was so deficient that [it did not fulfill the right to assistance of counsel]
guaranteed under the Sixth Amendment to the United States Constitution; and (2) * * *
defense counsel’s errors prejudiced the defendant.” Id., citing Strickland at 687.
Judicial “scrutiny of counsel’s performance must be highly deferential,” so “a [reviewing]
court must indulge a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance * * *.” Strickland at 689, citing Michel v. Louisiana,
350 U.S. 91, 101, 76 S. Ct. 158, 100 L. Ed. 83 (1955). To show prejudice, a defendant
must demonstrate “a reasonable probability that, but for counsel’s unprofessional errors,
the result of [a given] proceeding would have been different.” Id. at 694. A failure “to
make either showing defeats” the claim. Cardenas at ¶ 38.
{¶ 21} Hoskins acknowledges that “it is impossible to determine” whether evidence
“that was never submitted” to the juvenile court would have “changed the outcome” of his
amenability hearing, yet he insists that “it is obvious that more evidence on the relevant
factors [under R.C. 2152.12(E)] could * * * easily [have] been submitted.” Appellant’s Br.
13. Nevertheless, he offers no description of the additional evidence that he believes his
counsel should have introduced at the amenability hearing, apart from a reference to Dr.
Fujimura’s report. See id. at 12-13.
{¶ 22} Evaluating counsel’s performance deferentially, as we must, we find that
-11-
Hoskins has not satisfied his burden pursuant to the first part of the Strickland test.
Counsel presumably had one or more reasons for advising Hoskins to waive his right to
present evidence at the hearing—for example, counsel might have sought to prevent
additional, unfavorable evidence from entering the record. For that matter, the record,
as Hoskins has argued, contained at least some evidence favorable to his opposition to
the transfer of jurisdiction, and counsel’s decision to rely on that evidence, rather than
allow the State a further opportunity to present adverse evidence, is not on its face
unreasonable.
{¶ 23} Moreover, Hoskins has not satisfied his burden under the second part of the
Strickland test. Irrespective of whether counsel could easily have submitted additional
evidence, we cannot find “a reasonable probability that,” but for the waiver of Hoskins’s
right to present such evidence at the hearing, the outcome of the hearing “would have
been different.” Strickland at 694. The second assignment of error is overruled.
III. Conclusion
{¶ 24} We find that the juvenile court fulfilled its statutory obligations and did not
abuse its discretion by ordering Hoskins’s cases to be transferred to the common pleas
court, and further, we find that Hoskins’s counsel did not fail to provide him with effective
representation at his amenability hearing. Therefore, Hoskins’s convictions are affirmed.
.............
WELBAUM, P.J. and FROELICH, J., concur.
-12-
Copies sent to:
Mathias H. Heck, Jr.
Heather N. Jans
William O. Cass, Jr.
Diaquan J. Hoskins
Hon. Anthony Capizzi
Hon. Gregory F. Singer