State v. Jenkins , 2017 Ohio 7755 ( 2017 )

[Cite as State v. Jenkins, 2017-Ohio-7755.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 15 MA 0202
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION AND
) JUDGMENT ENTRY
DAVID R. JENKINS )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Appellant’s Application to Reopen
Appeal Under App.R. 26(B).
JUDGMENT: Application Denied.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Timothy Young
Ohio Public Defender
Atty. Victoria Bader
Assistant State Public Defender
The Midland Building
250 East Broad Street, Suite 1400
Columbus, Ohio 43215
JUDGES:
Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Hon. Carol Ann Robb
Dated: September 21, 2017
[Cite as State v. Jenkins, 2017-Ohio-7755.]
PER CURIAM.
{¶1} Appellant David Jenkins has filed an application to reopen his appeal.
He raises two related assignments of error arguing that his counsel was ineffective
for failing to object to the mandatory juvenile transfer provisions. Appellant’s
arguments are predicated on State v. Aalim, __ Ohio St.3d __, 2016-Ohio-8278, __
N.E.3d __ (“Aalim I”). However, that case is no longer controlling law. This decision
was vacated in State v. Aalim, __ Ohio St.3d __, 2017-Ohio-2956, __ N.E.3d __
(“Aalim II”). Accordingly, Appellant's application for reopening is denied.
Factual and Procedural History
{¶2} Appellant, a juvenile at the time of the offense, was indicted on one
count of aggravated riot, a felony of the fourth degree in violation of R.C.
2917.02(A)(2), (C); one count of involuntary manslaughter, a felony of the first degree
in violation of R.C. 2903.04(A), (C); one count of felonious assault, a felony of the
second degree in violation of R.C. 2903.11; one count of aggravated assault with a
firearm specification attached, a felony of the fourth degree in violation of R.C.
2903.12 and R.C. 2903.12(A)(2), (B); and two counts of felony life murder. The
charges stemmed from an incident where Appellant shot and killed another juvenile
during a bar fight.
{¶3} On September 17, 2014, the state filed a motion to relinquish
jurisdiction of the case pursuant to Juv.R. 29 and Juv.R. 30. On February 26, 2015,
the juvenile court ruled that counts 1, 2, 3, and 5 required mandatory transfer to the
common pleas court. While count 4 did not mandate transfer, Appellant waived an
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amenability hearing and agreed to be bound over on that count as well. Appellant
was 18 years old at the time.
{¶4} Appellant filed a timely appeal. His appellate counsel raised a sole
assignment of error arguing that the trial court failed to adequately inform him of his
right to compulsory process. We affirmed Appellant's conviction and sentence in
State v. Jenkins, 7th Dist. No. 15 MA 202, 2016-Ohio-8563. On March 23, 2017,
Appellant filed a timely application to reopen his appeal pursuant to App.R. 26(B).
Reopening
{¶5} Pursuant to App.R. 26(B)(1), a criminal defendant “may apply for
reopening of the appeal from the judgment of conviction and sentence, based on a
claim of ineffective assistance of appellate counsel.” An applicant must demonstrate
that “there is a genuine issue as to whether the applicant was deprived of the
effective assistance of counsel on appeal.” App.R. 26(B)(5). If the application is
granted, the appellate court must appoint counsel to represent the applicant if the
applicant is indigent and unrepresented. App.R. 26(B)(6)(a).
{¶6} In order to show ineffective assistance of appellate counsel, the
applicant must meet the two-prong test outlined in Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Pursuant to Strickland, the applicant
must demonstrate deficient performance of counsel and resulting prejudice. Id. at
687. See also App.R. 26(B)(9).
{¶7} An application for reopening must contain “[o]ne or more assignments
of error or arguments in support of assignments of error that previously were not
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considered on the merits in the case by any appellate court or that were considered
on an incomplete record because of appellate counsel's deficient representation.”
App.R. 26(B)(2)(c). See also State v. Clark, 7th Dist. No. 08 MA 15, 2015-Ohio-
2584, ¶ 19. Here, Appellant presents two assignments of error, both of which argue
that the mandatory juvenile transfer provisions are unconstitutional and counsel was
ineffective for failing to preserve the issue.
First and Second Assignments of Error
{¶8} Appellant argues that the mandatory transfer provisions create an
irrebuttable presumption that a juvenile is equally morally capable as an adult who
committed the same act. Appellant’s arguments are based on Aalim I, supra, which
held that the mandatory transfer of juveniles to the general division of common pleas
court violate a juvenile's right to due process. Id. at ¶ 31.
{¶9} In response, the state argues that the Ohio Supreme Court stayed its
decision in Aalim I pending reconsideration, so its holding was not currently in effect.
Regardless, the state argues that Appellant pleaded guilty. Consequently, he waived
his right to challenge the constitutionality of the mandatory transfer provisions.
{¶10} As noted by Appellant, the Aalim I Court held that “mandatory transfer
of juveniles to the general division of common pleas court violates juveniles' right to
due process as guaranteed by Article I, Section 16 of the Ohio Constitution.” Id. at
¶ 31. However, the Ohio Supreme Court granted the state’s motion to reconsider
and stay Aalim I. In Aalim II, the Ohio Supreme Court vacated Aalim I and held that
the mandatory transfer of certain juvenile offenders does not violate due process or
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equal protection. Id. at ¶ 38. As such, Aalim I, on which Appellant solely relies in this
reopening, is not the controlling law. Accordingly, Appellant's application for
reopening is denied.
Waite, J., concurs.
DeGenaro, J., concurs.
Robb, P.J., concurs.