State v. Watkins , 2018 Ohio 46 ( 2018 )

[Cite as State v. Watkins, 2018-Ohio-46.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2017-03-013
: OPINION
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:
MICHAEL G. WATKINS, JR., :
Defendant-Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2016CR0442
D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee
John Woliver, 204 North Street, Batavia, Ohio 45103, for defendant-appellant
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, Michael G. Watkins Jr., appeals the bindover decision of
the Clermont County Court of Common Pleas, Juvenile Division, and his conviction and
sentence in the Clermont County Court of Common Pleas, General Division.
{¶ 2} On May 9, 2016, 16-year-old Watkins executed a plan to rob two victims by
having two minor codefendants lure them to a Clermont County apartment. Upon arriving at
the apartment, Watkins and his codefendants threatened the victims with a firearm, then
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assaulted and robbed them. Following the completion of the robbery plan, the victims left the
apartment and contacted the police who responded to the apartment and arrested Watkins.
On May 10, 2016, the state filed a delinquency complaint alleging charges for felony
aggravated robbery and misdemeanor assault. On May 30, 2016, while at a juvenile
detention facility for the delinquency charges, Watkins assaulted a corrections officer. In
turn, the state charged Watkins with felonious assault on a correctional facility employee.
{¶ 3} The state moved for a mandatory bindover for criminal prosecution of the
aggravated robbery charges and for a discretionary bindover for criminal prosecution of the
assault charges. On June 8, 2016, the juvenile court held a probable cause hearing on the
felony aggravated robbery and misdemeanor assault charges and heard arguments
regarding the state's motion for mandatory transfer. As detailed below, the juvenile court
found probable cause for the charges. Following the hearing, the juvenile court scheduled a
probable cause hearing for the felonious assault charge for June 22, 2016, ordered a mental
examination of Watkins, and scheduled an amenability hearing for July 18, 2016. The
juvenile court also took Watkins' motion to dismiss the state's motion for mandatory bindover
under advisement. At the June 22, 2016 hearing, the juvenile court found probable cause for
the felonious assault charge. Additionally, the juvenile court once again ordered a mental
examination of Watkins and scheduled an amenability hearing on the felonious assault
charge for July 18, 2016. Pursuant to R.C. 2152.12(G), the juvenile court issued written
notice of the hearing to the parties.
{¶ 4} On June 30, 2016, Dr. Paul Deardorff conducted the court-ordered mental
examination of Watkins. On July 13, 2016, the juvenile court journalized its earlier findings
as follows: (1) it determined that Watkins was 16 years old at the time of the commission of
the offenses, (2) the offenses would be felonies if committed by an adult, and (3) there was
probable cause supporting the charges. However, the juvenile court denied the state's
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motion for mandatory bindover because it found Watkins did not have a firearm on or about
his person or under his control while committing the offense, and did not display, brandish,
indicate possession of or use a firearm to facilitate commission of the aggravated robberies.
Rather, the juvenile court found probable cause for complicity to aggravated robbery. The
juvenile court ordered a mental examination of Watkins and included notice of the hearing in
its entry finding probable cause.
{¶ 5} On July 18, 2016, the juvenile court conducted the amenability hearing. The
juvenile court heard testimony from Watkins and Adam Burke, Watkins' probation officer.
Burke testified regarding the contact he has had with Watkins, Watkins' history of
delinquency, prior dispositions ordered on such delinquency, and Watkins' response to the
prior rehabilitative efforts of the juvenile court. During the amenability hearing, the juvenile
court acknowledged that a separate mental examination had not been completed in the
aggravated robbery case. Upon inquiry by the juvenile court, counsel for both parties agreed
to the use of the June 30, 2016 mental examination previously completed by Dr. Deardorff for
the felonious assault case.
{¶ 6} On July 25, 2016, the juvenile court issued an entry granting the state's motion
for discretionary bindover of the aggravated robbery and assault charges for criminal
prosecution. In so doing, the juvenile court noted Watkins was 16 years old at the time of the
commission of the offenses, it previously found probable cause for the offenses, and had
Watkins committed the offenses as an adult, the offenses would be felonies and a
misdemeanor, respectively. In granting the state's motion, the juvenile court considered the
factors favoring transfer pursuant to R.C. 2152.12(D) and the factors against transfer
pursuant to R.C. 2152.12(E).
{¶ 7} On August 23, 2016, the Clermont County Grand Jury returned a three-count
indictment charging Watkins with two felony counts of aggravated robbery with gun
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specifications and one count of felonious assault. Watkins entered pleas of no contest to the
two counts of aggravated robbery without the gun specifications and the count of felonious
assault. Prior to sentencing, Watkins informed the trial court he wished to withdraw his pleas
of no contest. The trial court held a hearing on the matter and determined Watkins wished to
withdraw his pleas so that he could file a motion to dismiss the charges thereby preserving
for appeal his constitutional challenges to the bindover procedure. The trial court determined
it was without jurisdiction to review the juvenile court's bindover decision and denied Watkins'
motion to withdraw his pleas. The trial court sentenced Watkins to an aggregate eight-year
prison term, four-year prison terms on each aggravated robbery count running consecutive to
each other and a concurrent twelve-month prison term for the felonious assault count.
Watkins timely appealed.
{¶ 8} Assignment of Error No.1:
{¶ 9} THE JUVENILE COURT ERRED TO THE PREJUDICE OF APPELLANT BY
GRANTING THE STATE'S MOTION TO RELINQUISH JURISDICTION.
{¶ 10} Assignment of Error No. 3:
{¶ 11} THE OPERATION OF R.C. 2152.12 AND 5139.41(C)(2) VIOLATES
DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS PROTECTED BY THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE OHIO
CONSTITUTION.
{¶ 12} Watkins contends the juvenile court erred by making findings unsupported by
the record in its consideration of the factors favoring and against transfer pursuant to R.C.
2152.52(D) and (E). In turn, Watkins argues this failure resulted in the juvenile court abusing
its discretion by granting the state's motion for a discretionary bindover. Watkins further
asserts the juvenile court's decision to relinquish jurisdiction violated his due process rights
pursuant to the United States and Ohio Constitutions because the juvenile court's decision-
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making process was "tainted by the court's own funding considerations."
{¶ 13} Juvenile courts have exclusive original jurisdiction over proceedings involving a
child alleged to have committed a delinquent act. R.C. 2151.23(A)(1). Therefore,
proceedings regarding juveniles must originate in juvenile court and continue in such court
unless it relinquishes jurisdiction in accordance with the bindover procedures set forth in R.C.
2152.10 and 2152.12. State v. J.T.S., 10th Dist. Franklin No. 14AP-516, 2015-Ohio-1103, ¶
10. The Ohio Revised Code provides two types of bindover procedures, mandatory and
discretionary. State v. D.W., 133 Ohio St. 3d 434, 2012-Ohio-4544, ¶ 10. The present
appeal involves the juvenile court's decision with respect to the latter.
{¶ 14} Pursuant to R.C. 2152.12(B)(3), when deciding whether to transfer a juvenile to
the adult court system, the juvenile court must consider and weigh certain statutory factors.
The juvenile court has wide latitude in making its determination and we will not reverse its
decision absent an abuse of discretion. State v. Ramirez, 12th Dist. Butler No. CA2010-11-
305, 2011-Ohio-6531, ¶ 12. An abuse of discretion is more than an error of law or judgment.
Rather, it suggests the "trial court's decision was unreasonable, arbitrary or unconscionable."
State v. Perkins, 12th Dist. Clinton No. CA2005-01-002, 2005-Ohio-6557, ¶ 8. "A review
under the abuse-of-discretion standard is a deferential review." State v. Morris, 132 Ohio
St.3d 337, 2012-Ohio-2407, ¶ 14. "As long as the [juvenile] 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, we cannot conclude that the [juvenile] court abused its
discretion in deciding whether to transfer jurisdiction." State v. Phillips, 12th Dist. Clinton No.
CA2009-03-001, 2010-Ohio-2711, ¶ 39.
{¶ 15} According to R.C. 2152.12(B),
* * * 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
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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.
{¶ 16} Watkins does not contest the juvenile court's findings with respect to R.C.
2152.12(B)(1) and (2), and only challenges the juvenile court's weighing of the factors for
consideration as set forth in R.C. 2152.12:
(D) 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, 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,
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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.
(E) 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:
(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.
{¶ 17} "Generally[,] the greater the culpability of the offense, the less amenable will the
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juvenile be to rehabilitation." State v. Watson, 47 Ohio St. 3d 93, 96 (1989). There is no
requirement that each statutory factor must be "resolved against the juvenile so long as the
totality of the evidence supports a finding that the juvenile is not amenable to treatment."
State v. Haynie, 12th Dist. Clinton No. CA93-12-039, 1995 Ohio App. LEXIS 517, *13 (Feb.
13, 1995); see also State v. Rice, 12th Dist. Butler No. CA2016-01-005, 2016-Ohio-5372, ¶ 9
(stating a juvenile court has wide latitude in determining whether a juvenile is amenable to
rehabilitation in the juvenile system).
{¶ 18} After a thorough review of the record, we find that the juvenile court did not err
in finding that Watkins was not amenable to treatment as a juvenile. The juvenile court found
that seven factors weighed in favor of transfer while two weighed against transfer. The
juvenile court found the victims suffered physical harm as a result of the offenses because
evidence was presented that Watkins and his codefendants physically beat the victims. The
juvenile court further found that this physical harm was exacerbated by the victims'
vulnerability because Watkins was much larger in stature than the two victims. The juvenile
court noted the offenses were committed as part of an organized activity as Watkins and his
codefendants planned how the offenses would occur and how to distribute the fruits of the
robbery amongst themselves. The juvenile court found Watkins partook in this planning
process, received a share of the stolen items, and assisted in hiding the firearm.
{¶ 19} The juvenile court further noted Watkins' extensive juvenile record in the two
years preceding the commission of the offenses, including assault, criminal damaging,
felonious assault, felonious assault on a police officer, felony theft of a motor vehicle,
robbery, and five community control violations. Additionally, Watkins has broken house
arrest and removed a Global Positioning System ("GPS") monitoring device. The juvenile
court detailed its prior dispositions, including extensive detention time, eleven orders of
community control, intensive probation, school-based probation visits, house arrest, GPS
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monitoring, various assessments, drug and alcohol monitoring, and suspended Department
of Youth Services ("DYS") commitments. Additionally, Watkins failed to engage in court-
ordered treatment at the Clermont Recovery Center in addition to other failed treatment
opportunities.
{¶ 20} Based on the foregoing, the juvenile court found factors (1) thru (3) and (6) thru
(9) favored transfer. The juvenile court found two factors weighed against transfer: (1)
Watkins was not the principal offender, and (2) he suffered from bipolar and related disorder
and unspecified disruptive, impulse control and conduct disorder. Watkins challenges the
juvenile court's findings with respect to factors (8) and (9). Watkins contends the juvenile
court's findings that there was not sufficient time to rehabilitate him within the juvenile
system, and that Watkins is emotionally, physically, or psychologically mature enough for
transfer, are either not supported by the record or are contradicted by the record.
{¶ 21} First, we examine the juvenile court's finding that Watkins is emotionally,
physically, or psychologically mature enough for transfer. Watkins correctly asserts that Dr.
Deardorff's professional conclusion following his mental examination was that Watkins was
"not emotionally, physically, or psychologically mature enough for the transfer." However,
Watkins also correctly asserts that the juvenile court is not bound by the findings of an
expert. State v. Rice, 12th Dist. Butler No. CA2016-01-005, 2016-Ohio-5372, ¶ 16. Rather,
as the juvenile court did in this case, it must consider and weigh Dr. Deardorff's report
amongst the other evidence presented, and make conclusions pursuant to each relevant
factor.
{¶ 22} In support of its finding Watkins was mature enough for transfer, the juvenile
court noted Watkins' stature as a tall young man who has inflicted physical harm on both
juveniles and adults. Watkins is an "emotionally and behaviorally troubled [juvenile]," yet
"was polite and cooperative" and demonstrated "no eccentricities of manner." His "thought
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processes were clear and logical and displayed no abnormalities of mental content," and was
"alert, responsive and lacked no awareness as to his past and present situation." Watkins'
memory, attention, concentration skills, and reasoning abilities appeared intact, and he is of
"bright-average intelligence." In regard to his emotional state, Watkins was generally in good
spirits, but often anxious.
{¶ 23} Next, we turn to the juvenile court's finding there is not sufficient time to
rehabilitate Watkins within the juvenile system. The juvenile court found Watkins exhausted
the sanctions available to him within the system. Despite comprehensive efforts by the
juvenile court to provide myriad avenues for rehabilitation, Watkins continued to exercise
poor judgment coupled with impulse, resulting in "seriously problematic behavior." The
juvenile court supported this finding with Watkins prior history with the juvenile court, as
detailed above. Specifically, the juvenile court noted the escalation in violence regarding
Watkins' criminal behavior over 22 months, including "fights with law enforcement,
corrections officers and both children and adults." Therefore, the juvenile court found it could
"only conclude that [Watkins] does not want to change, and [it was] unable to offer any
sanctions in the time remaining to rehabilitate him within the juvenile system." In making
such determination, the juvenile court noted it had considered the opinion of Dr. Deardorff.
{¶ 24} Contrary to Watkins' claims, there is some rational basis in the record to
support each individual finding in its analysis of the two disputed factors as well as its
consideration of the factors in totality. As discussed above, the juvenile court thoroughly
conducted the required statutory analysis, considering each factor in favor of, and against,
transfer. While the outcome of the juvenile court's analysis differed from the opinion of Dr.
Deardorff, this alone does not constitute an abuse of discretion. Rice at ¶ 16 (stating a
juvenile court has discretion to assign weight to an expert's report and is not otherwise bound
by the expert's opinion). Rather, the record clearly reflects the juvenile court conjunctively
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considered the opinion of Dr. Deardorff with the remainder of the evidence in the record to
find factors in favor of, and against, transfer. Therefore, the juvenile court did not abuse its
discretion in conducting the requisite statutory analysis.
{¶ 25} Watkins contends the juvenile court further erred by failing to consider a DYS
commitment. Certainly, in determining whether a juvenile is amenable to rehabilitation in the
juvenile system might involve consideration of whether a DYS commitment is a viable
dispositional alternative. However, the General Assembly did not enumerate this
consideration as a prerequisite to discretionary bindover. Rather, it formulated the factors in
R.C. 2152.12(D) and (E) for a juvenile court to weigh when determining whether bindover is
appropriate. As we found above, the juvenile court considered the statutory factors and
made findings pursuant thereto, which were supported by the record.
{¶ 26} Watkins further contends the juvenile court improperly considered financial
considerations to suggest that it ordered a discretionary bindover as opposed to a DYS
commitment to avoid any negative financial impact. In support of this argument, Watkins
proffered into the record information disclosing that the Clermont County Juvenile Court had
not committed a juvenile to DYS in the last five years. However, even accepting Watkins
argument as true, Watkins fails to introduce any evidence to indicate financial considerations
played any role in the juvenile court's disposition in this case, or over the last five years.
Further, Watkins' argument fails to consider that other dispositions have budgetary impacts
that may bear less, equal, or more cost than a DYS commitment. Rather, all dispositions
have a budgetary impact, and as such, this argument could be made anytime a more
restrictive, yet less costly disposition is ordered. Thus, Watkins' argument does not
demonstrate the juvenile court's disposition violated his due process rights without evidence
that financial considerations were a significant factor in the juvenile court's decision. The
mere fact the juvenile court has not made a DYS commitment in five years does not raise the
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inference asserted by Watkins that the juvenile court's decision must be financially motivated.
Therefore, Watkins' argument is without merit.
{¶ 27} Accordingly, Watkins' first and third assignments of error are overruled.
{¶ 28} Assignment of Error No. 2:
{¶ 29} THE JUVENILE COURT ERRED TO THE PREJUDICE OF DEFENDANT BY
VIOLATING THE SPECIFIC REQUIREMENTS SET FORTH IN R.C. 2152.12(C) AND (G).
{¶ 30} Watkins asserts the juvenile court erred by not strictly adhering to the
parameters of R.C. 2152.12(C) and (G). Specifically, Watkins contends the juvenile court
failed to obtain a competent and intelligent waiver from him regarding the mental examination
required by R.C. 2152.12(C). Watkins further argues the juvenile court did not adhere to the
notice provisions enumerated in R.C. 2152.12(G).
{¶ 31} R.C. 2151.12(C) provides:
Before considering a transfer under division (B) of this section,
the juvenile court shall order an investigation into the child's
social history, education, family situation, and any other factor
bearing on whether the child is amenable to juvenile
rehabilitation, including a mental examination of the child by a
public or private agency or a person qualified to make the
examination. The investigation shall be completed and a report
on the investigation shall be submitted to the court as soon as
possible but not more than forty-five calendar days after the court
orders the investigation. The court may grant one or more
extensions for a reasonable length of time. The child may waive
the examination required by this division if the court finds that the
waiver is competently and intelligently made. Refusal to submit
to a mental examination by the child constitutes a waiver of the
examination.
(Emphasis added.) Likewise, Juv.R. 30(C) states, in pertinent part:
In any proceeding in which transfer of a case for criminal
prosecution is permitted * * * and in which probable cause is
found at the preliminary hearing, the court shall continue the
proceeding for full investigation. The investigation shall include a
mental examination of the child by a public or private agency or
by a person qualified to make the examination.
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{¶ 32} The juvenile court ordered the mental examination for the assault on a
corrections officer case on June 22, 2016 and the mental examination for the aggravated
robbery case on July 13, 2016. The former was completed, but not the latter. At the July 18,
2016 amenability hearing for all charges, the juvenile court realized the second mental
examination had not been completed. Therefore, the juvenile court inquired of counsel for
both parties if they would agree to the juvenile court's consideration of the mental
examination completed on June 30, 2016 and a psychological evaluation completed on
February 24, 2016. Counsel for both parties agreed. The juvenile court did not directly
address the issue with Watkins or inquire of Watkins' counsel as to whether he had consulted
with Watkins regarding a waiver of the second mental examination.
{¶ 33} Watkins contends the juvenile court committed prejudicial error by permitting
the discretionary bindover proceedings to continue without a second completed mental
examination and without a sufficient waiver of such requirement made directly by him.
However, Watkins fails to explain how the juvenile court's consideration of the first mental
examination and a prior psychological evaluation prejudiced him. This is not a case where
no investigation occurred, but rather, a mental examination was prepared three weeks prior
to the amenability hearing, which considered the pendency of all relevant charges. See, e.g.,
State v. Cooperwood, 8th Dist. Cuyahoga Nos. 99309, 99310, and 99311, 2013-Ohio-3432,
¶ 26 (finding juvenile court met its statutory bindover requirements, in pertinent part, by
ordering one full psychological evaluation of a juvenile for three pending cases and holding a
combined amenability hearing). Moreover, neither the record indicates nor does Watkins
argue, how a separate mental examination would have rendered anything new or of
significance for the juvenile court to consider in light of the timing of the first examination.
Therefore, the juvenile court did not err in its consideration of the first examination.
{¶ 34} Watkins further contends the juvenile court failed to adhere to the notice
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requirements in R.C. 2152.12(G) for the amenability hearing. R.C. 2152.12(G) provides
"[t]he court shall give notice in writing of the time, place, and purpose of any hearing held
pursuant to division (A) or (B) of this section to the child's parents, guardian, or other
custodian and to the child's counsel at least three days prior to the hearing."
{¶ 35} With respect to R.C. 2152.12(G), the juvenile court issued the required notice of
the amenability hearing in the assault on a corrections officer case. However, the juvenile
court did not issue notice of the amenability hearing in the same manner for the aggravated
robbery case. Rather, the juvenile court provided in its July 13, 2016 entry finding probable
cause for the charges in the aggravated robbery case that it would conduct the aggravated
robbery amenability hearing on July 18, 2016, in conjunction with the assault on a corrections
officer amenability hearing. This entry set forth the time, place, and purpose of the
amenability hearing and was served upon Watkins' father. Watkins' mother was not served,
but she was imprisoned and unlikely able to attend the hearing. While Watkins' father did not
attend the hearing, the record does reflect that he was aware of the hearing and could not
attend due to his employment. Watkins' attorney, guardian ad litem, and stepmother all
attended the hearing.
{¶ 36} Watkins cites a Fourth District opinion to support his assertion that the juvenile
court's notice via entry failed to meet the requirements of R.C. 2152.12(G), and thus, the
juvenile court committed reversible error in moving forward with the bindover proceedings.
See generally Turner v. Hooks, 4th Dist. Ross No. 15CA3477, 2016-Ohio-3083. However,
Turner is distinguishable from the situation in the present case. In Turner, the juvenile court
did not provide notice of the amenability hearing to the juvenile's legal custodian, his
grandmother, and she did not attend the hearing. Turner at ¶ 51. Rather, the juvenile court
provided notice to the juvenile's mother who had been previously determined unfit for custody
of the juvenile, which the Fourth District determined to be reversible error. Id. Unlike Turner,
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evidence exists in the record that Watkins' attorney, guardian ad litem, stepmother, and
father all had notice of the amenability hearing on the pending charges, and all were in
attendance for the hearing except his father. Therefore, we find no reversible error in the
juvenile court's entry providing notice of the hearing. State v. Rodriguez, 12th Dist. Butler No.
CA2008-07-162, 2009-Ohio-4460, ¶ 30 (finding no reversible error despite juvenile court's
failure to provide written notice pursuant to R.C. 2152.12[G] because the juvenile's legal
custodians attended the hearing); State v. Reynolds, 10th Dist. Franklin No. 06AP-915, 2007-
Ohio-4178, ¶ 14 (finding both parents need not be provided notice pursuant to the statute).
{¶ 37} Accordingly, Watkins' second of assignment of error is overruled.
{¶ 38} Assignment of Error No. 5:
{¶ 39} THE TRIAL COURT COMMITTED ERROR BY DENYING DEFENDANT'S
MOTION TO WITHDRAW HIS NO CONTEST PLEA AND BY FAILING TO CONSIDER
DEFENDANT'S CHALLENGE TO THE BINDOVER ORDER.
{¶ 40} Watkins argues the trial court possessed the inherent right to determine the
constitutional challenges Watkins posed before it. Thus, the trial court erred by refusing to
permit Watkins to withdraw his pleas of no contest prior to sentencing in order to consider the
constitutional issues.
{¶ 41} As discussed above, the juvenile court considered Watkins' various
constitutional challenges to the bindover procedures before granting the state's motion for
discretionary bindover. In turn, the juvenile court transferred Watkins' case to the general
division of the Clermont County Court of Common Pleas. After the trial court accepted
Watkins' pleas of no contest, but before sentencing, Watkins requested to withdraw his pleas
to provide the trial court an opportunity to review the constitutional arguments he posed
before the juvenile court. The trial court denied Watkins' request and proceeded to the
sentencing phase of the case.
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{¶ 42} Despite Watkins' argument, we find the trial court did not err in denying his
motion to withdraw his pleas of no contest. "The Ohio Supreme Court has held that a
defendant may not immediately appeal a juvenile court's order transferring jurisdiction of his
case to the common pleas court, but must wait to appeal any error stemming from the order
following a final judgment in the common pleas court." State v. Amos, 1st Dist. Hamilton No.
C-150265, 2016-Ohio-1319, ¶ 26, citing In re Becker, 39 Ohio St. 2d 84, 87 (1974). Thus, a
defendant cannot challenge "in the common pleas court the juvenile court's bindover order
because [a] common pleas court ha[s] no jurisdiction to review the juvenile court's bindover
order for error." Amos at ¶ 27, citing State v. Washington, 2d Dist. Montgomery No. 20226,
2005-Ohio-6546, ¶ 8; State v. Whiteside, 6 Ohio App. 3d 30, 37 (3d Dist.1982).
{¶ 43} Therefore, because the trial court did not have jurisdiction to review the juvenile
court's bindover order for error – constitutional or otherwise – it did not err in denying
Watkins' motion to withdraw his pleas of no contest to provide time for such review.
{¶ 44} Accordingly, Watkins' fifth assignment of error is overruled.
{¶ 45} Assignment of Error No. 4:
{¶ 46} THE TRIAL COURT'S SENTENCE ORDERING DEFENDANT TO SERVE
TWO CONSECUTIVE TERMS OF FOUR YEARS VIOLATES DEFENDANT'S RIGHTS
UNDER THE UNITED STATES AND OHIO CONSTITUTIONS AND STATE LAW.
{¶ 47} Watkins contends the trial court erred in sentencing him in the same manner as
an adult for the crimes he committed at 16 years of age. Specifically, Watkins claims the trial
court "[did n]ot consider * * * youth as a factor in its sentence * * *, constitut[ing] cruel and
unusual punishment in violation of [Watkins'] rights established under the Eighth Amendment
to the United States Constitution and violat[ing] Ohio's sentencing statutes to wit: R.C.
2929.11 [thru 2929].14."
{¶ 48} R.C. 2953.08(G)(2) sets forth the standard of review for all felony sentences.
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State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, ¶ 1; accord State v. Crawford, 12th
Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶ 6. Pursuant to R.C. 2953.08(G)(2),
when hearing an appeal of a trial court's felony sentencing decision, "[t]he appellate court
may increase, reduce, or otherwise modify a sentence that is appealed under this section or
may vacate the sentence and remand the matter to the sentencing court for resentencing."
{¶ 49} As explained in Marcum, "[t]he appellate court's standard for review is not
whether the sentencing court abused its discretion." Marcum at ¶ 9. Rather, pursuant to
R.C. 2953.08(G)(2), an appellate court may only "increase, reduce, or otherwise modify a
sentence * * * or may vacate the sentence and remand the matter to the sentencing court for
resentencing" if the court finds by clear and convincing evidence "(a) [t]hat the record does
not support the sentencing court’s findings[,]" or "(b) [t]hat the sentence is otherwise contrary
to law." R.C. 2953.08(G)(2)(a)-(b). A sentence is not "clearly and convincingly contrary to
law where the trial court considers the principles and purposes of R.C. 2929.11, as well as
the factors listed in R.C. 2929.12, properly imposes postrelease control, and sentences the
defendant within the permissible statutory range." State v. Ahlers, 12th Dist. Butler No.
CA2015-06-100, 2016-Ohio-2890, ¶ 8, citing State v. Moore, 12th Dist. Clermont No.
CA2014-02-016, 2014-Ohio-5191, ¶ 6.
{¶ 50} After thoroughly reviewing the record, we find no error in the sentence imposed
by the trial court. Watkins does not specifically challenge the trial court's consideration of the
principles and purposes of R.C. 2929.11, the factors listed in R.C. 2929.12, the imposition of
postrelease control, or that the sentence was within the permissible statutory range. Rather,
Watkins claims the trial court fashioned a sentence without considering his age at the time of
commission of the offenses. Therefore, we consider Watkins argument as claiming the trial
court failed to consider a relevant factor pursuant to R.C. 2929.12(B).
{¶ 51} Contrary to Watkins' assertion, the trial court specifically stated it considered
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Clermont CA2017-03-013
Watkins' age in imposing his sentence. In pertinent part, the trial court stated:
Here's the last thing I want to say to you, just so your dad knows.
I took your age in consideration, because with your record if – if I
had had all of you, it might have been different. I gave you what
I gave you partly because of your age, and partly because they
got what they got. * * * So you may walk out of here, and Mr.
Hunt may think I didn’t think about your age. I'm telling you, I
thought about your age, because I could have given you more,
Mr. Watkins, and felt fine about it, and I didn't.
Therefore, not only did the trial court specifically inform Watkins it considered his age in
formulating Watkins' sentence, the trial court sentenced him more leniently than it would
have had Watkins been an adult at the time of commission of the offenses. Thus, Watkins'
argument is clearly unsupported by the record and without merit. Furthermore, Watkins'
sentence was not clearly and convincingly contrary to law because the trial court sentenced
him within the statutory range, considered the principles and purposes of felony sentencing in
R.C. 2929.11 and the factors in R.C. 2929.12, and made the requisite findings for the
imposition of consecutive sentences in R.C. 2929.14.
{¶ 52} Accordingly, Watkins' fourth assignment of error is overruled.
{¶ 53} Judgment affirmed.
S. POWELL and M. POWELL, JJ., concur.
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