State v. L.A.B. , 2021 Ohio 4323 ( 2021 )

[Cite as State v. L.A.B., 2021-Ohio-4323.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 20AP-120
(C.P.C. No. 19CR-1904)
v. :
(REGULAR CALENDAR)
[L.A.B.], :
Defendant-Appellant. :
D E C I S I O N
Rendered on December 9, 2021
On brief: G. Gary Tyack, Prosecuting Attorney, and
Kimberly M. Bond, for appellee. Argued: Kimberly M. Bond.
On brief: Timothy Young, Ohio Public Defender, and
Timothy B. Hackett, for appellant. Argued: Timothy B.
Hackett.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} This is an appeal by defendant-appellant, L.A.B., from a judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas following
his entry of a guilty plea to two counts of aggravated robbery.
{¶ 2} On August 25, 2017, a complaint of delinquency was filed in the Franklin
County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch (hereafter
"juvenile court"), alleging that appellant, then age 17, had committed the acts of kidnapping
(2 counts), robbery (2 counts), aggravated menacing (1 count), and aggravated robbery (2
counts). The incident giving rise to the complaint was alleged to have occurred August 24,
2017.
No. 20AP-120 2
{¶ 3} On the date the complaint was filed, plaintiff-appellee, State of Ohio, also
filed a motion requesting the juvenile court relinquish jurisdiction and transfer the case to
the Franklin County Court of Common Pleas (hereafter "trial court") for prosecution of
appellant as an adult. The state sought bindover, pursuant to R.C. 2152.12(A) and (B),
alleging there was probable cause to believe appellant committed the above acts and that
he had a firearm on or about his person or under his control while committing the acts, and
did display, brandish, or indicate possession of the firearm. As part of an investigation
associated with the incident, an inoperable Uzi-style BB gun was recovered on
September 10, 2017.
{¶ 4} On October 2, 2017, counsel for appellant filed a motion for a competency
examination. The juvenile court subsequently filed an entry ordering appellant to submit
to an evaluation. On March 5, 2018, appellant filed a motion to dismiss gun specifications.
On March 14, 2018, the state filed a memorandum contra appellant's motion to dismiss.
{¶ 5} Beginning September 6, 2018, the trial court conducted a hearing on the
state's motion to relinquish jurisdiction, which included the testimony of Columbus Police
Officer Paul Fetter. On August 24, 2017, Officer Fetter and his partner received a report
that an individual had attempted to open the door of a residence and was then observed
walking away and heading westbound near Karl Road, Columbus. Upon arriving in the
area, the officers noted suspicious activity outside a residence in which interior lights of two
vehicles were illuminated. Officer Fetter remained in the rear of the residence, while his
partner went to the front. Officer Fetter heard a female scream; the officer ran toward the
front but then heard a crashing sound "at the rear of the house." (Sept. 6, 2018 Tr. at 23.)
Both officers ran toward the back, and Officer Fetter observed "a male black running
through the yard." The suspect "jumped the fence," running "west bound," and the officers
were unsuccessful in pursuing him. (Sept. 6, 2018 Tr. at 24.)
{¶ 6} Officer Fetter spoke with the victims, a husband and wife, who reported they
had been watching television when an individual "came in the front door and had a gun."
(Sept. 6, 2018 Tr. at 25.) During the incident, the intruder pointed the gun "to the pregnant
woman's stomach," and "put the male victim on his knees on the ground, held the gun to
the back of his head." (Sept. 6, 2018 Tr. at 27.) The couple had a daughter asleep upstairs
at the time. The victims "were in shock," and the officers called the emergency squad "[f]or
No. 20AP-120 3
the female victim who was pregnant." The female "was very upset and needed assistance."
(Sept. 6, 2018 Tr. at 28.)
{¶ 7} Both of the alleged victims testified during the hearing. In August 2017, S.R.
and his wife, J.R., resided on Driftwood Road, Columbus. On August 24, 2017, at
approximately 9:00 p.m., S.R. and his wife were at home watching television when they
heard a door creak. S.R. got up and observed "a guy" enter their house wearing a ball cap
"with a gun in his hand." (Sept. 6, 2018 Tr. at 49.) During the hearing, both S.R. and J.R.
identified appellant as the individual who entered their home that evening.
{¶ 8} S.R. testified the weapon had "a magazine at the bottom of it." (Sept. 6, 2018
Tr. at 50.) S.R.'s wife screamed, and the intruder "[t]old us to 'shut the fuck up.' " (Sept. 6,
2018 Tr. at 51.) The intruder asked for money and forced them "to empty our pockets * * *,
and then he ended up taking our cell phones from us." (Sept. 6, 2018 Tr. at 53.) At one
point, J.R., who was crying, told the intruder she was pregnant, and he went over to shut
the door and he had the weapon "aimed * * * probably within 10 or 12 inches from her
stomach." (Sept. 6, 2018 Tr. at 54.)
{¶ 9} He was also "threatening to shoot the dog if the dog did not stop barking."
(Sept. 6, 2018 Tr. at 54.) The intruder then indicated he wanted the "X-box," so J.R. got
down to remove it and the "gun was pressed pretty good into the back of my head and never
left the whole time I was down there." (Sept. 6, 2018 Tr. at 55.) The intruder started to
count backwards from five, and when he got to two "the lights" from a police officer's
flashlight shined "through the front window and he just vanished out the back door and put
his body through our screened in porch and took off." (Sept. 6, 2018 Tr. at 57.)
{¶ 10} Following the incident, J.R. was "worked up so bad that the officer demanded
that she get checked out and he called the squad and the squad came and took her to make
sure everything was okay with her." (Sept. 6, 2018 Tr. at 61.) S.R. then spoke to the officers
about the incident. When describing the weapon, he noted a "bar" at the top of the gun and
a "magazine." (Sept. 6, 2018 Tr. at 63.)
{¶ 11} S.R. was asked if he could identify a hearing exhibit (an inoperable BB gun)
as the weapon he observed on the night of the incident. He responded: "It could be
possible." (Sept. 6, 2018 Tr. at 73.) He further stated that "the shape of that gun pretty
much looks like the one that I saw." (Sept. 6, 2018 Tr. at 77.) The most distinguishing
No. 20AP-120 4
feature of the weapon was the holding stock. S.R stated that "to me * * * it was a very real
gun." (Sept. 6, 2018 Tr. at 80.)
{¶ 12} J.R. testified that she had a high-risk pregnancy at the time of the events and
received counseling following the incident. She "was terrified" at the time, and stated she
is "terrified every day now that something else is going to happen." (Sept. 6, 2018 Tr. at
101-02.)
{¶ 13} On cross-examination, J.R. described the weapon as "black" in color, with a
"handle on the back of it." (Sept. 6, 2018 Tr. at 106.) Also during cross-examination, J.R.
was shown an exhibit and the following exchange occurred between defense counsel and
the witness:
Q. [J.R.], does this look like the gun on the night in question?
A. In my recollection it was a little bit larger than that.
Q. The gun is black, correct?
A. Yes.
Q. And is this the lever that you saw? If I pull it out does it look
more like that?
A. I do not believe so. That is not how I remember it.
Q. You said * * * it had a distinct sound - - it –
A. No, it was definitely louder than that.
Q. Tell me how this gun is either similar or different to what
you saw that night, please?
A. It's black and that's similar. It's small at the front like the
gun that I remember seeing.
Q. And when you say "small in the front" are you talking up
here where the barrel is?
A. Yes. Yes, sir.
Q. So, the weapon on the night in question had a small barrel?
A. Yes, sir.
No. 20AP-120 5
Q. Just like this gun here?
A. I don't know if it was just like that gun. I know it was small
like that gun, yes.
Q. And on the night in question, it - - it had a lever like this?
A. It did have a lever but it looked different than that, from my
recollection.
(Sept. 6, 2018 Tr. at 107-08.)
{¶ 14} Columbus Police Detective Mark Paul responded to the report of a home
invasion on August 24, 2017. Detective Paul and Detective James Bolt conducted a search
of the area for a weapon, but no firearm was discovered. On cross-examination, Detective
Paul testified that at some point during the investigation he received "a call saying that an
Uzi style BB gun was located." (Sept. 6, 2018 Tr. at 124.)
{¶ 15} Appellant testified at the hearing. On direct examination, appellant stated he
recognized an item introduced during the hearing as the weapon he had in August 2017.
According to appellant, he informed police he had an Uzi-style BB gun at the time of his
arrest.
{¶ 16} On cross-examination, appellant admitted to initially lying to police about his
involvement. He later told police he took the weapon apart. Appellant testified that he
wanted the victims "to think [the gun] was real but it wasn't real." (Sept. 7, 2018 Tr. at 29.)
He acknowledged pointing the gun at S.R.'s head during the incident inside the residence.
{¶ 17} On October 1, 2018, the juvenile court filed a judgment entry finding probable
cause to believe appellant committed the offenses of kidnapping, robbery, aggravated
menacing, and aggravated robbery. The juvenile court did not find probable cause as to the
gun specifications.
{¶ 18} The juvenile court subsequently held an amenability hearing spanning
several dates (March 7, 13, and 14, April 1, 8, and 11, 2019). On April 11, 2019, the court
announced from the bench a finding that appellant was not amenable to treatment in the
juvenile system.
{¶ 19} On April 12, 2019, the juvenile court issued findings of facts and conclusions
of law regarding the factors for discretionary bindover under R.C. 2152.12(D) and (E). On
No. 20AP-120 6
April 17, 2019, the juvenile court filed a judgment entry granting the state's motion to
relinquish jurisdiction and transfer the case for prosecution to the general division of the
court of common pleas based on the juvenile court's determination appellant was not
amenable to rehabilitation as a juvenile and that the safety of the community required that
he be incarcerated beyond his majority.
{¶ 20} On April 24, 2019, the state filed an indictment with the trial court charging
appellant with three counts of aggravated robbery, in violation of R.C. 2911.01, and two
counts of kidnapping, in violation of R.C. 2905.01. Each of the five counts also carried a
three-year firearm specification.
{¶ 21} On July 8, 2019, appellant filed a motion to dismiss the firearm
specifications. On July 23, 2019, the state filed a memorandum contra. On September 19,
2019, the trial court conducted a hearing on the motion to dismiss the firearm
specifications. On November 13, 2019, the trial court conducted a further hearing to allow
the parties to present additional evidence regarding the trial court's concern there was an
internal conflict in the juvenile court's entry of April 10, 2019. By decision and entry filed
November 15, 2019, the trial court denied appellant's motion to dismiss the firearm
specifications.
{¶ 22} On January 21, 2020, appellant entered a guilty plea to two counts of
aggravated robbery without a firearm specification. The trial court entered a nolle prosequi
as to the remaining three counts of the indictment. By judgment entry filed January 21,
2020, the trial court sentenced appellant to a term of seven years of incarceration as to each
count, with the sentences to be served concurrently, for a total sentence of seven years.
{¶ 23} On appeal, appellant sets forth the following three assignments of error for
this court's review:
[I.] The Franklin County Prosecutor's Office abused its
charging discretion and violated due process when it pursued
mandatory bindover then criminal firearm specifications, even
though its own investigation proved the item was a BB gun.
[II.] After [appellant] was deemed amenable by one evaluator,
the prosecutor's office failed to present sufficient credible
evidence of non-amenability, in violation of R.C. 2152.12(B),
the Fifth and Fourteenth Amendments to the U.S.
Constitution, and Article I, Section 10 of the Ohio Constitution.
No. 20AP-120 7
[III.] A blended SYO sentence was a viable option. The juvenile
court abused its discretion and erred as a matter of law when it
decided otherwise.
{¶ 24} Under the first assignment of error, appellant contends the prosecutor's
office violated due process and the rules of professional conduct when it pursued firearm
specifications and initially sought mandatory bindover in the juvenile court despite its own
conclusive forensic evidence that the alleged firearm was a BB gun. Appellant contends the
prosecutor's office violated the Ohio Rules of Professional Conduct, relying specifically on
the provisions of Prof.Cond.R. 3.8(a).1
{¶ 25} Appellant further argues that prosecutors, in bringing an indictment in the
trial court that included three-year firearm specifications, ignored the juvenile court's no
probable cause finding. According to appellant, as a result of the prosecutor's actions, both
the indictment and resulting plea were invalid and the conviction must be vacated.
{¶ 26} As noted by the state, appellant's argument under the first assignment of
error does not challenge the bindover proceedings but, rather, the indictment itself.
Specifically, appellant contends that indicting him "on charges for which a juvenile court
found no probable cause constituted official misconduct, or, in the very least, an abuse of
charging discretion," and that the indictment in this case is "invalid." (Appellant's Brief at
28.)
{¶ 27} As also noted by the state, appellant raised the argument that firearm
specifications should not have been presented to the grand jury in his pre-trial motion to
dismiss the firearm specifications. As set forth under the facts, the trial court conducted a
hearing on that motion on September 19, 2019. During the hearing, defense counsel cited
the juvenile court's finding during the probable cause hearing that the weapon used in the
incident was a BB gun, and that the operability report "said that it was not a firearm as
defined under Ohio law because it was a broken BB gun." (Sept. 19, 2019 Tr. at 6.) Defense
counsel argued that collateral estoppel precluded the state from charging appellant with
firearm specifications.
1Prof.Cond.R. 3.8(a) states in part that a prosecutor in a criminal case shall not "pursue or prosecute a charge
that the prosecutor knows is not supported by probable cause." (Emphasis sic.)
No. 20AP-120 8
{¶ 28} In response, the state argued that the "stipulated firearm operability report
stipulated to the veracity of the report itself," and that "there was no evidence as to where
this firearm was located." (Sept. 19, 2019 Tr. at 15-16.) The state further argued that "this
black BB gun that was recovered has no bearing on the case before the Court now, and that
there's nothing linking this BB gun to the crime outside of the Defendant's own statements."
The prosecutor noted "[t]he testimony heard at the probable cause and amenability
hearings was that the female victim said this was not the firearm. The firearm presented
for this report was not the firearm that was pointed at her that day." The prosecutor argued
"the theory of the State is that the firearm used in the incident was never recovered."
(Sept. 19, 2019 Tr. at 17.) According to the prosecutor, the state's position was that
appellant "entered into this home, presented as if he had a firearm, and then fled and
ditched that firearm somewhere, and it was never recovered" and that "[u]nrelated to, a BB
gun was found in a window well * * * in the same development * * * two, three weeks later."
(Sept. 19, 2019 Tr. at 19.)
{¶ 29} On November 15, 2019, the trial court filed a decision and entry denying
appellant's motion to dismiss the firearm specifications. In addressing the motion, the trial
court determined it must "manage the inherent inconsistency and decisional tension
created by the juvenile court's October 2018 and April 2019 Judgment Entries," noting that
"although the juvenile court stated that it did not find probable cause for a gun specification
on counts 1 through 7 at page 8 of its April 2019 findings, it also noted at page 9 that 'The
Court finds that [defendant] did indicate that he possessed a firearm.' " (Nov. 15, 2019
Decision at 4.)
{¶ 30} Citing the provisions of R.C. 2941.145(A), the trial court held in part: "The
statutory language is clear that a firearm specification is appropriate if an offender indicates
that he possessed a firearm. In the present case, the April 2019 Judgment Entry, to which
the defendant asked this Court to defer in the September 2019 evidentiary hearing, states
the juvenile court found that the defendant 'did indicate' he possessed a firearm."
(Emphasis sic.) The trial court therefore found "an indictment by the grand jury for a
firearm specification is wholly consistent with the findings made by the juvenile court on
more than one occasion in its April Judgment Entry." (Nov. 15, 2019 Decision at 5.)
No. 20AP-120 9
{¶ 31} In denying the motion to dismiss the firearm specifications, the trial court
also relied on the second paragraph of the syllabus of the Supreme Court of Ohio's decision
in State v. Adams, 69 Ohio St.2d 120 (1982).2 Based on the holding in Adams, the trial
court determined that "[e]ven if the juvenile court's findings had not included a conclusion
that the defendant indicated he possessed a firearm, which is one of the statutory bases for
firearm specifications, relevant case and statutory law support the plaintiff's ability to
present evidence to the grand jury consistent with the facts of the case and to allow the
grand jury to make a determination regarding what charges should be indicted based on
that evidence." (Emphasis sic.) (Nov. 15, 2019 Decision at 7.)
{¶ 32} As indicated, appellant contends the prosecutor engaged in professional
misconduct by including firearm specifications in the indictment following the juvenile
court's decision on discretionary bindover. We note appellant's motion to dismiss the
firearm specifications before the trial court did not assert a violation of the Rules of
Professional Conduct by the state in bringing those specifications as part of the indictment.
Further, appellant cites no authority in support of reversal of a criminal conviction based
on a claimed violation under Prof.Cond.R. 3.8(a).
{¶ 33} Ohio appellate courts, however, have rejected similar arguments. See, e.g.,
State v. Frazier, 8th Dist. No. 62557 (Feb. 17, 1994) (in order to challenge prosecutor's
purported violation of Disciplinary Rule under Code of Professional Responsibility,
"appellant is entitled to file a complaint * * * with the Board of Commissioners on
Grievances and Discipline of the Supreme Court," but he "may not rely upon a rule meant
as a guide for attorneys to follow to maintain the professionalism of the practice of law to
support his assertion of error in the trial proceedings"); State v. Montgomery, 8th Dist. No.
99452, 2013-Ohio-4193, ¶ 36 ("[w]e have no authority to address claimed violations of the
Rules of Professional Conduct – that authority rests solely with the Ohio Supreme Court");
State v. Brock, 2d Dist. No. 2018-CA-112, 2019-Ohio-3195, ¶ 35 ("When an attorney's
alleged violation of the rules of professional conduct is asserted as a basis for appeal, we
lack jurisdiction to address that issue."). Here, to the extent appellant seeks reversal of his
2In Adams at paragraph two of the syllabus, the Supreme Court held: "When a minor is transferred from the
Juvenile Court to the Court of Common Pleas on a charge which would constitute a felony if committed by an
adult, the grand jury is empowered to return any indictment under the facts submitted to it and is not confined
to returning indictments only on charges originally filed in the Juvenile Court."
No. 20AP-120 10
conviction on appeal based on a purported violation of the Rules of Professional Conduct,
we find such claim to be without merit.
{¶ 34} As indicated, appellant also presents a challenge to the indictment itself. In
general, however, "a guilty plea waives the right to claim error arising from a defective
indictment." State v. Boyle, 2d Dist. No. 2018-CA-12, 2018-Ohio-3284, ¶ 8, citing State v.
Barton, 108 Ohio St.3d 402, 2006-Ohio-1324. This principle similarly applies to due
process claims based on alleged "overcharging." State v. Buhrman, 2d Dist. No. 16789
(June 26, 1998) (appellant, by entering guilty plea, waived his challenge that the trial court
violated his right to due process "by allowing the state to 'overcharge' in its indictment");
State v. Black, 8th Dist. No. 102586, 2017-Ohio-953, ¶ 9 ("A guilty plea * * * waives the
right to a direct appeal of any alleged defects in the indictment, such as 'overcharging.' ").
In the present case, appellant entered a guilty plea to two counts of aggravated robbery, and
we agree with the state's contention that he has waived the right to appeal any alleged
defects in the indictment, "including that the charges in the indictment were excessive."
State v. Green, 2d Dist. No. 2020-CA-6, 2021-Ohio-15, ¶ 37.
{¶ 35} We further note that all of the firearm specifications were dismissed in this
case as a result of the plea agreement, and we therefore also agree with the state's argument
that appellant cannot demonstrate prejudice. See State v. Frazier, 8th Dist. No. 106772,
2019-Ohio-1433, ¶ 30 (where "six of the seven counts to which appellant takes issue were
nolled by the prosecutor as part of a plea agreement," reviewing court could not "fathom
how appellant could therefore establish that he was in any way prejudiced because he was
not convicted of Counts 8 through 13" of indictment); State v. Sherouse, 2d Dist. No. 10046
(Mar. 18, 1987) (even if shotgun was not a firearm, "we fail to see how the State's inability
to prove the dismissed [firearm] specification prejudiced the defendant" as "[h]is no contest
plea was an admission of the truth of the facts alleged in the indictment without the
specification"); Preston v. Schweitzer, S.D.Ohio No. 3:15-cv-459 (Nov. 8, 2016) (rejecting
constitutional claim that firearm specifications dismissed in juvenile court precluded
indictment on firearm specifications in adult court and noting that "[i]n any event, [the
defendant] never pleaded guilty to or was sentenced on the firearm specifications").
{¶ 36} Based on the foregoing, appellant's first assignment of error is not well-taken
and is overruled.
No. 20AP-120 11
{¶ 37} Under his second assignment of error, appellant presents three separate
challenges to the amenability determination by the juvenile court. Specifically, appellant
raises issues with respect to: (1) who bears the burden of proof on the issue of non-
amenability, (2) what is the proper standard of proof for non-amenability, and (3) whether
the juvenile court's non-amenability finding was supported by sufficient, credible evidence.
{¶ 38} In the present case, the juvenile court conducted an amenability hearing in a
discretionary bindover proceeding and determined appellant was not amenable to care or
rehabilitation within the juvenile system. In general, the provisions of R.C. 2152.12(B)
govern "discretionary bindover of delinquency cases from juvenile court to the court of
common pleas." State v. Marshall, 1st Dist. No. C-150383, 2016-Ohio-3184, ¶ 12. After the
filing of a complaint charging a child with an offense that would be a felony if committed
by an adult, the juvenile court may transfer jurisdiction 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."
Id., citing R.C. 2152.12(B)(1) through (3).
{¶ 39} If 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." Id. at ¶ 13, citing Juv.R. 30(C) and R.C. 2152.12(C). The
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.
{¶ 40} In 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."
Id. at ¶ 14, citing R.C. 2152.12(B)(3) and State v. Amos, 1st Dist. No. C-150265, 2016-Ohio-
1319, ¶ 22. The record before the juvenile court "must 'indicate the specific factors that were
applicable and that the court weighed.' " Id., quoting R.C. 2152.12(B)(3). Further, "the
juvenile court must state the reasons for transfer on the record and in the order of transfer."
Id., citing R.C. 2152.12(I) and Juv.R. 30(G).
No. 20AP-120 12
{¶ 41} A juvenile court's amenability determination pursuant to R.C. 2152.12 "will
not be reversed unless the juvenile court has abused its discretion." Id. at ¶ 15, citing State
v. Washington, 1st Dist. No. C-130213, 2014-Ohio-4178, ¶ 19, citing In re A.J.S., 120 Ohio
St.3d 185, 2008-Ohio-5307, ¶ 39. Because R.C. 2152.12 is "silent with regard to how a
juvenile court should weigh the factors in R.C. 2152.12(D) and (E) * * * the juvenile court
has the discretion to determine how much weight should be accorded to any given factor."
Id., citing State v. Morgan, 10th Dist. No. 13AP-620, 2014-Ohio-5661, ¶ 37. Furthermore,
" '[a]s 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.' " Id., quoting State v. West, 167 Ohio App.3d 598, 2006-Ohio-3518,
¶ 10 (4th Dist.).
{¶ 42} Appellant initially argues that Ohio's amenability statute is silent as to who
must prove non-amenability and by what level of proof. Appellant acknowledges these
issues were not raised before the juvenile court, but contends this court "should resolve"
these questions on appeal. (Appellant's Brief at 30.) More specifically, appellant argues
this court should conclude the prosecution bears the burden of proof by clear and
convincing evidence.
{¶ 43} In response, the state notes (as acknowledged by appellant) that these issues
were not raised before the juvenile court. The state further notes the Supreme Court has
recently accepted jurisdiction in a case from the Second District Court of Appeals to address
the appellant's propositions of law in that case which include determinations as to: (1) the
standard of review in amenability hearings as well as (2) the prosecutor's burden. See State
v. Nicholas, 2d Dist. No. 2018-CA-25, 2020-Ohio-3478, discretionary appeal allowed by
State v. Nicholas, 161 Ohio St.3d 1439, 2021-Ohio-375. The state maintains, however,
current precedent from the Supreme Court provides that the applicable standard of review
governing a juvenile court's amenability decision is whether the court abused its discretion
in rendering that decision.
{¶ 44} The record reflects appellant did not raise either of these issues before the
juvenile court, i.e., whether the state bore the burden of proof, and whether such proof was
by clear and convincing evidence. Under Ohio law, "it is well settled that '[a] party who fails
No. 20AP-120 13
to raise an argument in the court below waives his or her right to raise it here.' " Niskanen
v. Giant Eagle, Inc., 122 Ohio St.3d 486, 2009-Ohio-3626, ¶ 34, citing State ex rel. Zollner
v. Indus. Comm., 66 Ohio St.3d 276, 278 (1993). See also State v. Casalicchio, 8th Dist.
No. 55655 (Aug. 31, 1989) (the appellant's failure to object at hearing to the burden of proof
constitutes "a waiver of any claim of error").
{¶ 45} We further agree with the state that, based on Supreme Court precedent as
well as precedent from this court, a juvenile court's amenability determination is reviewed
under an abuse of discretion standard. See In re M.P., 124 Ohio St.3d 445, 2010-Ohio-599,
¶ 14 ("a juvenile court's determination regarding a child's amenability to rehabilitation in
the juvenile system is reviewed by an appellate court under an abuse-of-discretion
standard"); State v. Reeder, 10th Dist. No. 15AP-203, 2016-Ohio-212, ¶ 17 ("[w]e review
for abuse of discretion the merits of the decision by the juvenile court to relinquish
jurisdiction in favor of the general division"); State v. Easley, 10th Dist. No. 16AP-9, 2016-
Ohio-7271, ¶ 6 (noting "[t]he Supreme Court of Ohio has consistently applied the abuse-of-
discretion standard in the review of discretionary-transfer proceedings from juvenile court
to the general division of common pleas court"). Further, the Supreme Court has recognized
that a juvenile court "enjoys wide latitude to retain or relinquish jurisdiction." State v.
Watson, 47 Ohio St.3d 93, 95 (1989).
{¶ 46} Finally, we note appellant cites no Ohio case law in which a reviewing court
has delineated a clear and convincing standard with respect to an amenability
determination. As we are bound by precedent of the Supreme Court, we will review the
juvenile court's amenability determination in this case under the abuse of discretion
standard.
{¶ 47} We therefore turn to appellant's contention the juvenile court erred in finding
he was not amenable to treatment in the juvenile system. As noted above, appellant was
bound over to the adult court pursuant to a discretionary transfer governed by R.C.
2152.12(B). In this respect, Ohio's juvenile justice system provides for both "mandatory
and discretionary" transfer. State v. Crosby, 8th Dist. No. 107392, 2019-Ohio-2217, ¶ 24,
citing State v. Mays, 8th Dist. No. 100265, 2014-Ohio-3815, ¶ 17, citing State v. D.W., 133
Ohio St.3d 434, 2012-Ohio-4544. In contrast to mandatory transfer, which " ' "removes
discretion from judges in the transfer decision in certain situations," ' " discretionary
No. 20AP-120 14
transfer " ' "allows judges the discretion to transfer or bind over to adult court certain
juveniles who do not appear to be amenable to care or rehabilitation within the juvenile
system or appear to be a threat to public safety." ' " Id., quoting Mays at ¶ 17, quoting D.W.;
R.C. 2152.12(A) and (B).
{¶ 48} R.C. 2152.12(B) states as follows:
Except as provided in division (A) of this section, after a
complaint has been filed alleging that a child is a delinquent
child for committing an act that would be a felony if committed
by an adult, the juvenile court at a hearing may transfer the case
if the court finds all of the following:
(1) The child was fourteen years of age or older at the time of
the act charged.
(2) There is probable cause to believe that the child committed
the act charged.
(3) The child is not amenable to care or rehabilitation within
the juvenile system, and the safety of the community may
require that the child be subject to adult sanctions. In making
its decision under this division, the court shall consider
whether the applicable factors under division (D) of this section
indicating that the case should be transferred outweigh the
applicable factors under division (E) of this section indicating
that the case should not be transferred. The record shall
indicate the specific factors that were applicable and that the
court weighed.
{¶ 49} Accordingly, in making its amenability determination, "the juvenile court
must consider whether the applicable factors under R.C. 2152.12(D), indicating that the
case should be transferred, outweigh the applicable factors under R.C. 2152.12(E),
indicating that the case should not be transferred." Crosby at ¶ 27, citing R.C.
2152.12(B)(3); State v. Jones, 8th Dist. No. 99044, 2013-Ohio-3725, ¶ 8. Further, "aside
from the specifically enumerated factors, the juvenile court is instructed to consider 'any
other relevant factors.' " Id., citing R.C. 2152.12(D) and (E).
{¶ 50} R.C. 2152.12(D), which sets forth the relevant factors in favor of transfer,
states as follows:
In considering whether to transfer a child under division (B) of
this section, the juvenile court shall consider the following
No. 20AP-120 15
relevant factors, and any other relevant factors, in favor of a
transfer under that division:
(1) The victim of the act charged suffered physical or
psychological harm, or serious economic harm, as a result of
the alleged act.
(2) The physical or psychological harm suffered by the victim
due to the alleged act of the child was exacerbated because of
the physical or psychological vulnerability or the age of the
victim.
(3) The child's relationship with the victim facilitated the act
charged.
(4) The child allegedly committed the act charged for hire or as
a part of a gang or other organized criminal activity.
(5) The child had a firearm on or about the child's person or
under the child's control at the time of the act charged, the act
charged is not a violation of section 2923.12 of the Revised
Code, and the child, during the commission of the act charged,
allegedly used or displayed the firearm, brandished the
firearm, or indicated that the child possessed a firearm.
(6) At the time of the act charged, the child was awaiting
adjudication or disposition as a delinquent child, was under a
community control sanction, or was on parole for a prior
delinquent child adjudication or conviction.
(7) The results of any previous juvenile sanctions and programs
indicate that rehabilitation of the child will not occur in the
juvenile system.
(8) The child is emotionally, physically, or psychologically
mature enough for the transfer.
(9) There is not sufficient time to rehabilitate the child within
the juvenile system.
{¶ 51} R.C. 2152.12(E), which sets forth relevant factors against transfer, states as
follows:
In considering whether to transfer a child under division (B) of
this section, the juvenile court shall consider the following
relevant factors, and any other relevant factors, against a
transfer under that division:
No. 20AP-120 16
(1) The victim induced or facilitated the act charged.
(2) The child acted under provocation in allegedly committing
the act charged.
(3) The child was not the principal actor in the act charged, or,
at the time of the act charged, the child was under the negative
influence or coercion of another person.
(4) The child did not cause physical harm to any person or
property, or have reasonable cause to believe that harm of that
nature would occur, in allegedly committing the act charged.
(5) The child previously has not been adjudicated a delinquent
child.
(6) The child is not emotionally, physically, or psychologically
mature enough for the transfer.
(7) The child has a mental illness or intellectual disability.
(8) There is sufficient time to rehabilitate the child within the
juvenile system and the level of security available in the
juvenile system provides a reasonable assurance of public
safety.
{¶ 52} In the present case, it was undisputed appellant was over the age of 14 at the
time of the alleged activity, and the juvenile court found probable cause that he committed
the acts of kidnapping, aggravated robbery, robbery, and aggravated menacing. The
juvenile court also conducted an amenability hearing.
{¶ 53} During the amenability hearing, the juvenile court heard testimony from a
number of witnesses,3 including Shelley Hughes, a juvenile probation officer, Dr. Daniel
Davis, a forensic psychologist, and Curtis Richardson, a juvenile court guardian ad litem.
Hughes testified that appellant was placed at Buckeye Ranch in Grove City in February
2017, and he was removed in April 2017 "for on-going behaviors; he was intimidating staff,"
3The witnesses at the amenability hearing included the alleged victims (S.R. and J.R.), Christina Heller, and
Jocelyn Cannon, both caseworkers with Franklin County Children Services, Dr. Daniel Davis, a forensic
psychologist, D.B., appellant's maternal grandmother, Curtis Richardson, a juvenile court guardian ad litem,
Miguel Tucker, director of the Juvenile Justice Coalition, Mercedes Anderson, a crisis counselor, and
appellant.
No. 20AP-120 17
and there were "a lot of issues with female staff." According to Hughes, appellant was
"verbally aggressive towards staff, especially the female staff members." (Mar. 7, 2019 Tr.
at 58.) Hughes testified "we've exhausted everything and Probation doesn't have anything
else to offer him." (Mar. 7, 2019 Tr. at 60.)
{¶ 54} Dr. Davis, who conducted a psychological evaluation of appellant, testified
that appellant has "done well in some placements; he's done very poorly in others." He
noted appellant's behavior at Buckeye Ranch "was characterized by aggression," including
possession of a razorblade as contraband. (Mar. 7, 2019 Tr. at 76.) In his last group home,
appellant "was reported to have gone AWOL and was described as not progressing in his
treatment." In another placement at a group home, "he committed an auto theft offense"
involving "a hit/skip." (Mar. 7, 2019 Tr. at 78.)
{¶ 55} Dr. Davis performed a personality assessment (MMPI-A-RF) of appellant.
Overall, appellant's testing "protocol identified very significant, psychological and
behavioral problems" as well as "significant thought dysfunction." (Mar. 7, 2019 Tr. at 80-
81.) Dr. Davis stated appellant "may be at risk for non-compliance as well as acting out,"
and he described appellant as being seriously mentally ill. (Mar. 7, 2019 Tr. at 82.)
{¶ 56} Dr. Davis concluded appellant "remained * * * a moderate to high risk of
future aggressive behavior." According to Dr. Davis, "what we see is that his mental illness
and psychopathology is not only severe but it has been obviously difficult to treat." (Mar. 7,
2019 Tr. at 86.) He described this as "a very difficult case" with "no easy answers." (Mar. 7,
2019 Tr. at 87.) In looking at the fact appellant was 19 years of age, with "two years left in
the juvenile system," Dr. Davis came to the opinion that it would be "very difficult for him
to receive adequate treatment through the supervision of juvenile court based on the fact
that he has not yet responded in very excellent programs, and now he is 19 years old and
still hasn't responded. So, I was very concerned that two years of treatment would not be
an adequate length of time." (Mar. 7, 2019 Tr. at 87.) Dr. Davis opined that, while appellant
"is seriously mentally ill," he "is neither intellectually disabled nor does he have a
developmental disability." The principal concerns noted by Dr. Davis involved "the
seriousness of [appellant's] problems and the length of treatment available in the juvenile
justice system." (Mar. 7, 2019 Tr. at 94.) With respect to the issue of amenability to
No. 20AP-120 18
treatment, Dr. Davis opined that appellant "falls in the * * * low to moderate end of
amenability for all of the reasons that I have outlined." (Mar. 7, 2019 Tr. at 97.)
{¶ 57} In response to an inquiry whether appellant could be rehabilitated in the
juvenile system, Dr. Davis stated: "I think he has a low probability - - low to moderate
probability and I also voice the concern that his needs may exhaust the capacities of the
juvenile justice system. He has been in treatment for a very long time, he has not
responded, at least in terms of his delinquent behavior." Dr. Davis further stated: "The time
now is very limited and if we look at the lack of responsiveness and the length of time that
he has been in the system and the length of time that remains, it is my opinion that the
juvenile justice system's capacities may be exhausted." (Mar. 13, 2019 Tr. at 37.) Dr. Davis
opined he would be concerned for the safety of individuals in appellant's vicinity, should he
be released in the community, "on the basis of his lack of response to date having
experienced very good treatment." (Mar. 13, 2019 Tr. at 55.)
{¶ 58} Curtis Richardson, appellant's prior guardian ad litem, testified he believed
the Department of Youth Services ("DYS") would be better for appellant than the Ohio
Department of Correction based on concerns appellant would not be able "to adapt to an
environment" where he has "not completed some of the things that would help him to be
successful * * *, including education and some of the socialization programs." (Mar. 13,
2019 Tr. at 149.) He believed DYS would be a better environment "in terms of his safety"
and "his opportunity to develop." (Mar. 13, 2019 Tr. at 154.)
{¶ 59} On April 11, 2019, following the close of the hearing testimony, the juvenile
court made findings on the record, including the court's finding that appellant "is not
amenable to treatment in the juvenile justice system." (Apr. 11, 2019 Tr. at 10.) The juvenile
court therefore granted the state's motion to relinquish jurisdiction.
{¶ 60} On April 17, 2019, the trial court issued a written decision on its amenability
determination. In that decision, the juvenile court discussed each of the factors under R.C.
2152.12(D) and (E).
{¶ 61} In considering the factors under R.C. 2152.12(D), the trial court found in part:
* * * (D)(1), the victims under these charges of the acts did in
fact suffer physical, emotional, psychological and economic
harm. The Court finds that one of the victims in the case
suffered physical harm. [J.R.] was transported to the hospital
No. 20AP-120 19
because of the trauma. She was pregnant at the time of the
alleged offenses. She is still visibly shaken and continues to go
through counseling for post-traumatic stress disorder. [S.R.]
suffered psychological harm and the family also suffered
economic harm as they moved from the residence where the
alleged offenses occurred to provide a safe environment for
their family and they incurred financial expenses in moving to
another residence.
Subsection (D)(2)[:] The Court finds that [J.R.'s] pregnancy
exasperated the physical and psychological harm to the victim.
Subsection (D)(3)[:] The Court finds that [appellant] had no
relationship with the victims that facilitated the acts charged.
Therefore, this factor is not applicable.
Subsection (D)(4)[:] The Court finds there is no indication that
[appellant] is a member of a strategic threat group or had any
instructions to perform the alleged acts for hire[]. Therefore,
this factor is not applicable.
Subsection (D)(5)[:] The Court did not find probable cause that
a weapon was used however, the weapon admitted into
evidence was a BB gun or pellet gun that would have been hard
for the alleged victims to distinguish from a real weapon. The
Court finds that [appellant] did not use, display or brandish a
firearm but he did indicate that he possessed a firearm.
Subsection (D)(6)[:] [Appellant] was on probation in case
number 16JU-10990 for Burglary, (F-2).
Subsection (D)(7)[:] On February 10, 2017, [appellant] was
placed in Pomegranate when he was placed on probation.
While in Pomegranate he had numerous violations of policies
for aggression, contraband in his room, lighters, a razor blade,
smoking on the unit, and testing positive for chemicals found
in cough syrup. A motion for probation violation was filed on
April 14, 2017, for violating rules. He was physically aggressive
towards staff at the Buckeye Ranch. He was discharged in July
of 2017 and went to New Life Group Home. He was having
some problems with getting his medication. Once he reported
this to probation the problem was quickly rectified however,
probation was notified on August 24, 2018, that he went AWOL
from the group home. He was arrested on the charges related
to this case.
No. 20AP-120 20
Subsection (D)(8)[:] [Appellant] is emotionally mature enough
for the transfer. He has had the benefit of mentoring, the love
and support of his grandmother, he has the ability to
understand the charges and assist his attorney in his defense.
He has had the benefit of inpatient counseling on two
occasions. He scores a moderate risk of recidivism. He has
become adept at working the system. He has been AWOL from
a group home on a prior occasion when he stole a car, picked
his girlfriend up and went to a hotel where they stayed the
night. He has an understanding of his criminal behavior but
due to his lack of parenting at a young age he uses whatever
means necessary to meet his needs. He witnessed and
experienced domestic violence routinely throughout his young
life, which has affected him but does not rise to a level that the
Court finds that he does not have an emotional, physical or
psychological maturity.
There is not sufficient time to rehabilitate the child within the
juvenile system. This factor gave the Court the most pause
because [appellant] is currently nineteen years of age. The
juvenile system would have two years or a little less to
rehabilitate him. [Appellant] has escalated in his alleged
criminal behavior. He has several cases that were adjudicated
in 2016 that arose in a brief period of time. He was on
alternative to commitment probation at the time of these
offenses. He has had two inpatient placements at Pomegranate
and has also been placed at Buckeye Ranch. He has been on
his medication and still did not comply with the rules of
placement. He was AWOL from a group home when he was
arrested in 2016 and 2017. The Court considered the average
age of youth in the Department of Youth Services and that is
currently seventeen and a half years of age. [Appellant] is
much older than the youth currently in the Department of
Youth Services. He has had the benefit of inpatient treatment
that has not deterred his behavior. The Court finds that the
juvenile system does not have sufficient time to rehabilitate
him.
(Apr. 17, 2019 Decision at 9-11.)
{¶ 62} In considering the factors weighing against transfer, the trial court held in
part:
[R.C. 2152.12(E)(1):] This factor is not applicable.
[R.C. 2152.12(E)(2):] This factor is not applicable.
No. 20AP-120 21
[R.C. 2152.12(E)(3):] [Appellant] is the principal actor and only
individual in the act charged.
[R.C. 2152.12(E)(4):] The Court has more than reasonable
cause to believe that physical harm occurred to [J.R.]. She told
[appellant] that she was pregnant and she testified that he
pointed the weapon at her stomach. Although the Court found
that the weapon was not real, [appellant] threatened her to
make her believe that harm would occur. She had to be
transported to the hospital with the threat of a miscarriage.
[S.R.] testified that the weapon was pointed at his head. He
had no knowledge at the time that he would not be injured.
[Appellant] had reason to believe that harm would have
occurred would he threatened the alleged victims and their
small child. [sic.]
[R.C. 2152.12(E)(5):] [Appellant] has previously been
adjudicated a delinquent child for committing burglary.
[R.C. 2152.12(E)(6):] The Court finds that he is emotionally,
physically and psychologically mature enough for transfer.
[R.C. 2152.12(E)(7):] [Appellant] has a mental illness diagnosis
based upon the psychological reports prepared for this hearing
however, the record is clear that he was on his medication at
the group home when the alleged incident occurred.
[R.C. 2152.12(E)(8):] Dr. Davis concluded that there are more
factors that [appellant] is not amenable to treatment in the
juvenile justice system. Dr. Speicher-Bojica opined that a
serious youthful offender specification should be applied
however, this specification is not part of the complaint and a
specification can only be added at the time of an adjudication
not at a probable cause hearing. The Court finds that none of
the mental health disorders in [appellant's] diagnosis rise to a
level of incompetence to understand the actions that he has
committed to assist with his own defense or understand the
nature of these proceedings.
(Apr. 17, 2019 Decision at 11-12.)
{¶ 63} A review of the record indicates the juvenile court complied with the
requirements for discretionary transfer by addressing, as set forth above, all the statutory
factors. Here, the juvenile court found "[a]ll the factors in favor of transfer apply except
Factor three as [appellant] did not have a relationship with the victim that facilitated the
No. 20AP-120 22
act." The juvenile court also found appellant "is emotionally, physically and psychologically
mature enough for transfer." (Apr. 17, 2019, Decision at 3.)
{¶ 64} In looking at the factors "against transfer," the juvenile court found "none of
them apply." The juvenile court noted the victim "did not facilitate or induce this,"
appellant "did not act under provocation," appellant "was the sole actor in this," he "did
cause physical and psychological harm" as well as physical harm to property, and he
"caused extreme psychological distress to both [J.R.] and [S.R.]" (Apr. 17, 2019 Decision at
4.)
{¶ 65} The juvenile court further noted Dr. Davis "was very strong about [appellant]
having a very serious mental illness and there is not sufficient time to rehabilitate him." In
addressing whether there was sufficient time for rehabilitation, the juvenile court noted
there was "less than two years," and cited testimony by Dr. Davis that appellant "does better
when he is in a structured setting but when he is released he is dangerous." The juvenile
court also cited evidence that appellant's "delinquent behavior has escalated," starting with
"minor offenses" and moving on to "a burglary," and then committing the home invasion
at issue "all while this Court was trying to provide state of the art treatment." The court
found appellant "has had the best treatment yet his behavior has worsened." (Apr. 17, 2019
Decision at 4.)
{¶ 66} The record indicates the juvenile court complied with all the statutory
requirements for discretionary transfer, and the court's finding that the factors in favor of
transfer outweighed the factors against transfer is amply supported by the record. Based
on this court's review, we find no abuse of discretion by the juvenile court in concluding
that appellant was not amenable to care or rehabilitation within the juvenile system and
that the safety of the community required that he be subject to adult sanctions.
{¶ 67} Based on the foregoing, appellant's second assignment of error is not well-
taken and is overruled.
{¶ 68} Under the third assignment of error, appellant asserts the juvenile court
should have considered a blended or serious youthful offender ("SYO") sentence.
According to appellant, a SYO sentence falls under the "any other relevant factors" against
a transfer provision under R.C. 2152.12(E).
No. 20AP-120 23
{¶ 69} In response, the state argues appellant did not raise the issue of a SYO
sentence in the juvenile proceedings and, therefore, did not preserve that issue for appeal.
The state further argues that, even if it had been raised, the issue is moot because the
juvenile court relinquished jurisdiction. Finally, the state argues a juvenile court may only
impose a SYO sentence when the state initiates the process through a charging instrument
or by filing notice, in accordance with R.C. 2152.13(A)(4).
{¶ 70} In general, as characterized by the Supreme Court, "[a] serious-youthful-
offender disposition consists of a 'blended' sentence: a traditional juvenile disposition and
a stayed adult sentence." State v. D.H., 120 Ohio St.3d 540, 2009-Ohio-9, ¶ 2, citing R.C.
2152.13(D)(2). With respect to this type of disposition "[t]he court may enforce the adult
portion of the sentence at a later time if the juvenile commits certain acts that indicate that
the juvenile disposition has been unsuccessful in rehabilitating him." Id., citing R.C.
2152.14. Under the statutory scheme "[a] juvenile charged as a potential serious youthful
offender does not face bindover to an adult court." D.H. at ¶ 18. Rather, "the case remains
in the juvenile court." Id.{¶ 71} R.C. 2152.02(W) defines the term "[s]erious youth offender," and states as
follows:
"Serious youthful offender" means a person who is eligible for
a mandatory SYO or discretionary SYO but who is not
transferred to adult court under a mandatory or discretionary
transfer and also includes, for purposes of imposition of a
mandatory serious youthful dispositional sentence under
section 2152.13 of the Revised Code, a person upon whom a
juvenile court is required to impose such a sentence under
division (B)(3) of section 2152.121 of the Revised Code.
{¶ 72} R.C. 2152.13 governs SYO dispositional sentencing, and R.C. 2152.13(A)
states as follows:
A juvenile court shall impose a serious youthful dispositional
sentence on a child when required under division (B)(3) of
section 2152.121 of the Revised Code. In such a case, the
remaining provisions of this division and divisions (B) and (C)
do not apply to the child, and the court shall impose the
mandatory serious youthful dispositional sentence under
division (D)(1) of this section.
No. 20AP-120 24
In all other cases, a juvenile court may impose a serious
youthful offender dispositional sentence on a child only if the
prosecuting attorney of the county in which the delinquent act
allegedly occurred initiates the process against the child in
accordance with this division, and the child is an alleged
delinquent child who is eligible for the dispositional sentence.
The prosecuting attorney may initiate the process in any of the
following ways:
(1) Obtaining an indictment of the child as a serious youthful
offender;
(2) The child waives the right to indictment, charging the child
in a bill of information as a serious youthful offender;
(3) Until an indictment or information is obtained, requesting
a serious youthful offender dispositional sentence in the
original complaint alleging that the child is a delinquent child;
(4) Until an indictment or information is obtained, if the
original complaint does not request a serious youthful offender
dispositional sentence, filing with the juvenile court a written
notice of intent to seek a serious youthful offender dispositional
sentence within twenty days after the later of the following,
unless the time is extended by the juvenile court for good cause
shown:
(a) The date of the child's first juvenile court hearing regarding
the complaint;
(b) The date the juvenile court determines not to transfer the
case under section 2152.12 of the Revised Code.
After a written notice is filed under division (A)(4) of this
section, the juvenile court shall serve a copy of the notice on the
child and advise the child of the prosecuting attorney's intent
to seek a serious youthful offender dispositional sentence in the
case.
{¶ 73} As indicated by the state in its appellate brief, in Nicholas, the Second District
Court of Appeals recently addressed an argument similar to the one raised by appellant in
the instant appeal.4 Under the facts of Nicholas, the defendant was charged with
4 As also observed by the state, in accepting review of the Second District Court of Appeal's decision in
Nicholas, one of the propositions of law to be decided by the Supreme Court is the issue of a juvenile court's
consideration of a SYO sentence.
No. 20AP-120 25
delinquency and the state sought a transfer to adult court. Following an amenability
hearing, the juvenile court granted transfer under the discretionary transfer provisions of
R.C. 2152.10(B). In challenging the court's amenability determination, the defendant
asserted the juvenile court "misperceived the scope of its authority and the flexibility
inherent in the juvenile system by failing to consider other options, like a serious youth
offender * * * designation," arguing that "a traditional minimum commitment was not
appropriate and that a blended sentence would have been the most obvious solution." Id.
at ¶ 74.
{¶ 74} The reviewing court in Nicholas rejected this argument, holding in part:
R.C. 2152.02(W) defines a serious youthful offender as "a
person who is eligible for a mandatory SYO or discretionary
SYO but who is not transferred to adult court under a
mandatory or discretionary transfer and also includes, for
purposes of imposition of a mandatory serious youthful
dispositional sentence under section 2152.13 of the Revised
Code, a person upon whom a juvenile court is required to
impose such a sentence under division (B)(3) of section
2152.121 of the Revised Code."
As a preliminary matter, Nicholas does not fit within this
definition, as his case was, in fact, transferred to adult court.
Under R.C. 2152.10(B), if the court chooses not to transfer a
child to adult court and adjudicates the child delinquent, the
court is required to issue a dispositional order in accordance
with R.C. 2152.11. If the case had not been transferred,
Nicholas would have been eligible for mandatory SYO under
R.C. 2152.11(B)(1); he would not have been eligible for
"[t]raditional juvenile" disposition. R.C. 2152.11(B)(3). In this
situation, the court would have imposed the available adult
court sentence, as well as a traditional juvenile disposition, but
would have stayed the adult sentence pending successful
completion of the juvenile disposition. See R.C.
2152.13(D)(1)(a)-(c).
The fact that Nicholas would have been eligible for SYO
disposition does not mean that the court was required to take
this into consideration before deciding amenability. To the
contrary, this disposition is not available unless the court has
elected not to transfer the child. The juvenile court would have
been aware of this fact. And finally, as the State notes in its
brief, in situations like the present, "a juvenile court may
impose a serious youthful offender dispositional sentence on a
No. 20AP-120 26
child only if the prosecuting attorney of the county in which the
delinquent act allegedly occurred initiates the process against
the child in accordance with" R.C. 2152.13. See R.C. 2152.13(A).
Id. at ¶ 75-77.
{¶ 75} As noted, R.C. 2152.02(W) defines a serious youth offender as "a person who
is eligible for a mandatory SYO or discretionary SYO but who is not transferred to adult
court under a mandatory or discretionary transfer." Similar to the facts and reasoning of
the court in Nicholas, we conclude appellant does "not fit within this definition" where the
juvenile court transferred the case to the adult court. We further agree with the Nicholas
court's interpretation of R.C. 2152.13(A), i.e., "in situations like the present, 'a juvenile court
may impose a serious youthful offender dispositional sentence on a child only if the
prosecuting attorney of the county in which the delinquent act allegedly occurred initiates
the process against the child in accordance with' R.C. 2152.13." Nicholas at ¶ 77, quoting
R.C. 2152.13(A). Under the fact of this case, as in Nicholas, the prosecuting attorney did
not employ one of the several methods for seeking a SYO disposition. Here, as the juvenile
court determined appellant was not amenable to care or rehabilitation within the juvenile
system and granted the request for transfer to adult court, and where the state did not
initiate the process for a SYO disposition, appellant has failed to show the juvenile court
erred in failing to consider a blended sentence as part of its amenability determination.
{¶ 76} Appellant's third assignment of error is not well-taken and is overruled.
{¶ 77} Based on the foregoing, appellant's three assignments are overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BEATTY BLUNT and MENTEL, JJ., concur.
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