State v. Marshall

[Cite as State v. Marshall, 2016-Ohio-3184.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-150383
TRIAL NO. B-1500170
Plaintiff-Appellee, :
vs. :
O P I N I O N.
DEMILO MARSHALL, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: May 27, 2016
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachael Lipman
Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Julie Kahrs Nessler,
Assistant Public Defender, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
FISCHER, Presiding Judge.
{¶1} Defendant-appellant DeMilo Marshall appeals from a judgment of the
Hamilton County Court of Common Pleas sentencing him to 12 years in prison for
one count of attempted murder and three counts of aggravated robbery, all of which
were accompanied by firearm specifications, following Marshall’s guilty pleas. In his
appeal, Marshall challenges the decision of the juvenile court transferring
jurisdiction of his cases to the common pleas court for adult prosecution. Because
we determine that the juvenile court did not abuse its discretion in relinquishing
jurisdiction, we affirm the judgment of the trial court.
{¶2} In October 2014, the state filed four delinquency complaints against
Marshall, then 15 years old. Three of the complaints alleged that Marshall and his
codefendants had been involved in the aggravated robbery of three Hispanic
individuals on September 13, 2014, which had left one of the victims paralyzed from
a gunshot wound to the back. The fourth complaint involved the aggravated robbery
of a University of Cincinnati (“UC”) student on September 22, 2014.
{¶3} The state requested that the juvenile court relinquish jurisdiction over
Marshall’s cases and transfer his cases to adult court for criminal prosecution. The
juvenile court held joint probable-cause hearings for Marshall and three other
individuals regarding the September 13 and September 22 robberies, as well as other
aggravated robberies that did not involve Marshall. As to the September 13 shooting
and robberies, the juvenile court heard testimony from police officers that, in the
course of investigating a shooting in Westwood, they had stopped a vehicle in which
Marshall was an occupant. Marshall denied involvement in the shooting, but
admitted he had been on the scene visiting his uncle and had taken money from the
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OHIO FIRST DISTRICT COURT OF APPEALS
victims. The juvenile court also heard testimony from the three Hispanic victims,
who detailed how three men had approached them and demanded money, and that
one of the victims had been shot while trying to flee. The juvenile court then heard
testimony from a female who had been in the getaway vehicle. She testified that
Marshall and two codefendants had robbed the three Hispanic men, and that one of
the codefendants had admitted to shooting one of the victims.
{¶4} As to the September 22 robbery, the UC student testified that a man
wearing yellow pants had put a gun to his chest and had demanded his belongings.
Police officers testified that when, on that same day, they had stopped the vehicle
wanted in connection with the September 13 shooting, Marshall had been wearing
yellow pants, and the UC student’s identification card was in the car.
{¶5} The juvenile court found probable cause existed in the four complaints
against Marshall. Because Marshall was not yet 16 at the time of the acts charged,
the trial court had discretion to transfer Marshall’s cases to adult court. See R.C.
2152.12; State v. McKinney, 2015-Ohio-4398, 46 N.E.3d 179, ¶ 6 (1st Dist.) (a
juvenile court is required to transfer a case to the court of common pleas if the
juvenile is 16 or 17 and probable cause exists that the juvenile committed aggravated
robbery with a firearm). As a result, the trial court held a discretionary-transfer
proceeding and ordered a full evaluation of Marshall’s amenability to rehabilitation
within the juvenile-justice system.
{¶6} As part of the juvenile court’s evaluation, Marshall was examined by
Dr. Kathleen Hart, a clinical child and adolescent psychologist, and Dr. Drew
Barzman, a forensic psychiatrist. Both doctors completed written evaluations, which
were submitted to the juvenile court, stating their opinions that Marshall would be
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OHIO FIRST DISTRICT COURT OF APPEALS
amenable to rehabilitation within the juvenile-justice system. The juvenile court
held an amenability hearing in which it heard oral argument from the state and
Marshall’s counsel. Despite the medical opinions in the evaluations, the juvenile
court determined that Marshall’s cases should be transferred to adult court.
{¶7} The state indicted Marshall on one count of attempted murder, two
counts of felonious assault, and four counts of aggravated robbery, all of which were
accompanied by firearm specifications. Marshall and the state entered into a plea
agreement whereby Marshall agreed to plead guilty to three of the aggravated-
robbery charges and the attempted-murder charge in exchange for the dismissal of
the remaining charges. The parties jointly recommended that the trial court impose
a 12-year prison sentence on Marshall’s offenses. After a plea colloquy, the trial
court accepted the parties’ plea agreement and imposed the jointly-recommended
sentence.
{¶8} In a single assignment of error, Marshall challenges the juvenile
court’s decision to transfer his cases to the court of common pleas for adult
prosecution. Marshall specifically challenges the juvenile court’s finding that
Marshall would not be amenable to treatment in the juvenile system.
{¶9} Waiver. The state argues that this court cannot reach the merits of
Marshall’s assignment of error because Marshall waived his right to contest the
bindover procedure by failing to object in the juvenile court and by entering into an
agreed plea. The state relies on R.C. 2953.08(D) and State v. Underwood, 124 Ohio
St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, as well as State v. Quarterman, 140 Ohio
St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900. But, this court recently decided that
defects in the bindover proceedings relate to the subject-matter jurisdiction of the
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OHIO FIRST DISTRICT COURT OF APPEALS
common pleas court to try the juvenile as an adult, and such defects cannot be
waived by a subsequent guilty plea in adult court. See State v. Amos, 1st Dist.
Hamilton No. C-150265, 2016-Ohio-1319. We see no reason to depart from the
reasoning of Amos in the context of an agreed plea and jointly-recommended
sentence imposed by the trial court, because, if the trial court lacked subject-matter
jurisdiction over a criminal case, then its sentence was not “authorized by law”
within the context of R.C. 2953.08(D)(1).
{¶10} The state further argues that if this court reviews Marshall’s assigned
error, this court should review only for plain error under Quarterman. In
Quarterman, the defendant failed to raise a constitutional challenge to the bindover
procedure in either the juvenile court or the court of common pleas. See McKinney,
2015-Ohio-4398, 46 N.E.3d 179, at ¶ 8. By contrast, Marshall filed a motion
requesting that the juvenile court retain jurisdiction over his cases for the reasons set
forth in Dr. Barzman’s report, and Marshall stated at the sentencing hearing in the
court of common pleas that he disagreed with the juvenile court’s bindover decision,
and that he would be appealing the juvenile court’s decision in that regard. Thus,
Quarterman does not apply.
{¶11} We thus determine Marshall did not waive his challenge to the juvenile
court’s amenability determination, and we will address the merits of Marshall’s
assignment of error.
{¶12} Discretionary-Bindover Procedure. R.C. 2152.12(B) governs
discretionary bindover of delinquency cases from juvenile court to the court of
common pleas. Once a complaint has been filed charging a child with an offense that
would be a felony if committed by an adult, a juvenile court may transfer jurisdiction
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OHIO FIRST DISTRICT COURT OF APPEALS
of the case to the court of common pleas if it finds at a hearing that (1) the child was
14 years of age or older at the time of the act in the complaint, (2) probable cause
exists that the child committed the act in the complaint, and (3) the child is not
amenable to care or rehabilitation within the juvenile system and should be subject
to adult sanctions to ensure the safety of the community. See R.C. 2152.12(B)(1)-(3).
{¶13} Once the juvenile court finds that the age and probable-cause elements
have been satisfied, the juvenile court must conduct a “full investigation” before
making an amenability determination. See Juv.R. 30(C); R.C. 2152.12(C). This
investigation includes an inquiry into the child’s social history, education, and
familial situation, as well as a mental examination of the child by a qualified agency
or individual. Id.
{¶14} When determining whether a child is amenable to treatment within
the juvenile system, the juvenile court must consider the factors weighing in favor of
and against transfer, as outlined in R.C. 2152.12(D) and 2152.12(E), as well as any
other relevant factor. See R.C. 2152.12(B)(3); Amos, 1st Dist. Hamilton No. C-
150265, 2016-Ohio-1319, at ¶ 22. The record in the juvenile court must “indicate the
specific factors that were applicable and that the court weighed.” R.C. 2152.12(B)(3).
To this end, the juvenile court must state the reasons for transfer on the record and
in the order of transfer. See R.C. 2152.12(I); Juv.R. 30(G).
{¶15} A juvenile court’s amenability determination under R.C. 2152.12 will
not be reversed unless the juvenile court has abused its discretion. State v.
Washington, 1st Dist. Hamilton No. C-130213, 2014-Ohio-4178, ¶ 19, citing In re
A.J.S., 120 Ohio St. 3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 39. R.C. 2152.12 is
silent with regard to how a juvenile court should weigh the factors in R.C. 2152.12(D)
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OHIO FIRST DISTRICT COURT OF APPEALS
and (E). Thus, the juvenile court has the discretion to determine how much weight
should be accorded to any given factor. See State v. Morgan, 10th Dist. Franklin No.
13AP-620, 2014-Ohio-5661, ¶ 37. “As long as the court considers the appropriate
statutory factors and there is some rational basis in the record to support the court’s
findings when applying those factors, [this court] cannot conclude that the trial court
abused its discretion in deciding whether to transfer jurisdiction.” State v. West, 167
Ohio App. 3d 598, 2006-Ohio-3518, 856 N.E.2d 285, ¶ 10 (4th Dist.).
{¶16} Factors Weighing Against Transfer. Marshall argues that the
juvenile court failed to consider any of the factors weighing against transfer, and that
several of the factors in R.C. 2152.12(E) were applicable in this case. As for the
factors weighing against transfer, Marshall contends that he was not the principal
offender in the more serious incident, which had resulted in one of the victims being
paralyzed, and that he had minimal to no previous involvement with the juvenile-
justice system. See R.C. 2152.12(E)(3) and (5). Marshall also points to the findings
in the expert reports of Dr. Barzman and Dr. Hart, which indicated that Marshall was
susceptible to peer influence, that he would be vulnerable to mistreatment in the
adult system, and that Marshall would likely be successfully rehabilitated in the
juvenile system. See R.C. 2152.12(E)(6) and (8).
{¶17} This court has held that a juvenile court need only identify those
specific factors that were applicable and that it weighed in making its determination.
See Amos at ¶ 38; Washington at ¶ 23 (“Where there is no statutory requirement that
the juvenile court separately identify factors that are not applicable, it does not err if
it fails to do so, as long as it has indicated, in the record, the factors that it weighed in
favor of or against transfer.”). Although the juvenile court did not directly address
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OHIO FIRST DISTRICT COURT OF APPEALS
any of the factors in R.C. 2152.12(E) weighing against transfer, the juvenile court did
acknowledge on the record at the amenability hearing that it had reviewed Dr.
Barzman’s and Dr. Hart’s reports. Thus, the trial court did not ignore the factors
under R.C. 2152.12(E)(6) and (8) in making its amenability determination.
{¶18} As to the factors under R.C. 2152.12(E)(3) and (5), the record indicates
that Marshall was the principal offender in the robbery of the UC student, and Dr.
Hart’s report indicates that Marshall had been involved in a previous burglary in
Kentucky. Therefore, the juvenile court did not err by failing to discuss those factors
as weighing against transfer when making its amenability determination.
{¶19} Factors Weighing in Favor of Transfer. With regard to the
factors weighing in favor of transfer in R.C. 2152.12(D), Marshall argues that the
juvenile court improperly found the existence of some factors and placed too much
weight on the severity of the underlying offenses and the safety of the community, as
well as evidence of Marshall’s gang activity. In its entry transferring jurisdiction, the
juvenile court incorporated a findings worksheet, in which it found that the factors in
R.C. 2152.12(D)(1), (4), (5), (6), (8), and (9) weighed in favor of transfer. The
juvenile court also expressed these findings on the record at the amenability hearing.
{¶20} With regard to the sufficiency of the evidence to support the juvenile
court’s findings, Marshall argues that the record does not support the juvenile court’s
finding that, at the time of the act charged, Marshall had been awaiting adjudication
or disposition as a delinquent child, was under a community-control sanction, or was
on parole for a prior delinquency adjudication or conviction. See R.C. 2152.12(D)(6).
We agree that the record does not support this finding. Although the record
indicated that Marshall may have had a previous delinquency adjudication in
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Kentucky, no evidence in the record indicated that, at the time of the act charged,
Marshall had been awaiting adjudication or disposition as a delinquent child, was
under a community-control sanction, or was on parole for a prior delinquency
adjudication or conviction.
{¶21} Marshall also argues that the record does not support the juvenile
court’s findings that he was physically, emotionally, or psychologically mature
enough for transfer, or that he could not be timely rehabilitated within the juvenile-
justice system. See R.C. 2152.12(D)(8) and (9). Marshall relies on the reports from
Dr. Hart and Dr. Barzman who opined otherwise. However, a juvenile court in
making an amenability determination is entitled to disagree with the opinion of a
medical expert and may take into account the severity of the offenses when
considering whether a juvenile is mature enough for transfer and whether enough
time exists to rehabilitate in the juvenile-justice system. See State v. Johnson, 2015-
Ohio-96, 27 N.E.3d 9, ¶ 40 (8th Dist.); Morgan, 10th Dist. Franklin No. 13AP-620,
2014-Ohio-5661, at ¶ 37 (holding that a juvenile court is not bound by an expert
opinion).
{¶22} Finally, Marshall argues that the juvenile court placed too much
emphasis on the severity of the underlying offenses, the safety of the community, and
his commission of the offenses as part of a gang or organized criminal activity.
Sufficient evidence existed that Marshall had committed the crimes as part of
organized criminal activity. See R.C. 2152.12(D)(4); Morgan at ¶ 38 (“[A]
defendant’s participation in an aggravated robbery along with one or more
codefendants is sufficient to find the incident occurred as part of organized criminal
activity [under R.C. 2152.12(D)(4)].”). Although not explicitly listed in R.C.
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2152.12(D), the seriousness of the underlying offenses and the safety of the
community are relevant factors in the amenability determination. See R.C.
2152.12(B)(3); Amos, 1st Dist. Hamilton No. C-150256, 2016-Ohio-1319, at ¶ 43,
citing West, 167 Ohio App. 3d 598, 2006-Ohio-3518, 856 N.E.2d 285, at ¶ 30, and
State v. Watson, 47 Ohio St. 3d 93, 547 N.E.2d 1181 (1988).
{¶23} The juvenile court heard evidence that Marshall and his codefendants
had been involved in two aggravated-robbery events in less than two weeks—one that
involved a random UC student being robbed at gunpoint, and one that left a victim
paralyzed from a gunshot wound. These events, the juvenile court found, “created a
tremendous fear in this community and a lot of innocent lives were permanently
changed as a result of this.” The power to weigh the factors in favor of or against
transfer rests with the juvenile court, and we cannot say that the juvenile court
abused its discretion in weighing certain factors more heavily than others.
{¶24} Based upon the totality of the evidence before the juvenile court, we
determine that the juvenile court did not abuse its discretion in concluding that
Marshall was not amenable to care or rehabilitation within the juvenile system, and
that the safety of the community required that Marshall be subject to adult sanctions.
Therefore, we overrule Marshall’s sole assignment of error, and the judgment of the
trial court is affirmed.
Judgment affirmed.
HENDON and STAUTBERG, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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