State v. Oviedo , 5 Ohio App. 3d 168 ( 1982 )

I respectfully dissent from the majority opinion as it relates to the first assignment of error. I find the order of transfer of the Wood County Juvenile Court under Juv. R. 30 identical to that issued by the same court which was reviewed by this court inState v. Reuss (Aug. 7, 1981), Wood App. No. WD-81-26, unreported. The majority opinion in State v. Reuss, supra, found the Juv. R. 30 transfer proceedings defective for failure to comply with the mandate of Juv. R. 30(G) and, therefore, the Wood County Court of Common Pleas lacked jurisdiction over this matter.

Kent v. United States (1966), 383 U.S. 541 [40 O.O.2d 270], and its reaffirmation in In re Gault (1967), 387 U.S. 1 [40 O.O.2d 378], clearly sets forth that the principles of fundamental fairness and due process of law are mandated in juvenile proceedings. Kent specifically recognized that the transfer of jurisdiction from the juvenile court for prosecution as an adult is a "critically important" stage which determines vitally important statutory rights of the juvenile. The court in Kent held:

"* * * as a condition to a valid waiver order, petitioner was entitled to * * * a statement of reasons for the Juvenile Court's decision." Id. at 557.

This requirement for a statement of reasons accompanying or embodied in the transfer order is based upon a need for information upon which a higher court can conduct a meaningful review and will, therefore, serve as a protection against an arbitrary or capricious order of transfer.

"Meaningful review requires that the reviewing court should review. It should not be remitted to assumptions. It must have before it a statement of reasons motivating the waiver, including, of course, a statement of the relevant facts." Id. at 561.

The constitutional principle set forth in Kent and Gault, has been incorporated into Ohio's juvenile proceedings through Juv. R. 30. Paragraph G of Rule 30 unequivocally provides, "The order of transfer shall state the reasons therefor." This in effect mandates the court to make findings of fact.

In the case sub judice, a careful reading of the juvenile court's order of transfer is devoid of specifying any reasons for the transfer other than the ultimate conclusory reason of nonamenability to treatment and community safety. True, the court sets forth that consideration was given to the criteria of Juv. R. 30(E)(1) through (5) which are to guide the court in determining the juvenile's amenability to treatment and community safety. The order of transfer should not merely repeat language of the statute, but should specify what the court found, good or bad, about the juvenile's mental and physical health; his juvenile record; past efforts to rehabilitate; his family environment; and his school record. The court should then correlate these findings into reasons for the transfer order. Only then can there be a meaningful review and determination made whether there are substantial reasons sufficient to support the order of transfer of jurisdiction. Otherwise, it becomes merely apro forma order and the reviewing court can merely guess or assume what basis the juvenile court used to order the transfer. This, in effect, requires, the reviewing court to review the entire record in search for reasons and then substitute its judgment for that of the lower court.

I would, therefore, find the transfer was not in substantial compliance with Juv. R. 30, and further find appellant's first assignment of error well-taken.