State v. BrookshireState v. Brookshire
WELBAUM, J.
{¶ 1} Defendant-appellant,
Facts and Course of Proceedings
{¶ 2} On January 28, 2013, a delinquency complaint was filed against Brookshire in juvenile court alleging that he had committed offenses that if he were an adult would have constituted four counts of aggravated robbery in violation of
{¶ 3} After the delinquency complaint was filed, the State filed a motion to transfer jurisdiction of the case to the general division of the common pleas court (“adult court“), so that Brookshire could be tried as an adult. The juvenile court then held a probable cause hearing in order to determine whether transfer to adult court was appropriate under
{¶ 4} On March 22, 2013, following thе transfer of Brookshire‘s case to adult court, Brookshire was indicted on all charges and specifications brought in juvenile court. Thereafter, on June 19, 2013, Brookshire pled guilty to two counts of aggravated robbery, one count of kidnapping, and one firearm specification. The remaining counts and firearm specifications were dismissed by the State pursuant to a plea agreement. The trial court then sentenced Brookshire to a concurrent three-year prison term for each of his three offenses, as well as a consecutive three-year prison term for the firearm specification, for a total of six years in prison.
{¶ 5} Brookshire now appeals from his conviction in adult court, raising five assignments of error.
Assignment of Error No. 1
{¶ 6} Brookshire‘s First Assignment of Error is as follows:
THE MONTGOMERY COUNTY COURT OF COMMON PLEAS ERRED WHEN IT CONVICTED AND SENTENCED LV BROOKSHIRE FOR KIDNAPPING, BECAUSE IT DID NOT HAVE SUBJECT MATTER
JURISDICTION OF HIS KIDNAPPING CHARGE.
{¶ 7} Under this assignment of error, Brookshire contends that the juvenile court improperly transferred his kidnapping charges to adult court, because the juvenile court failed to hold an amenability hearing as required by
Jurisdiction
{¶ 8} “Juvenile courts possess exclusive jurisdiction over children alleged to be delinquent for committing acts that would constitute a crime if committed by an adult.” In re M.P., 124 Ohio St.3d 445, 2010-Ohio-599, 923 N.E.2d 584, ¶ 11, citing
Mandatory Transfer
{¶ 9}
(2) The child is charged with a category two offense, other than a violation of
section 2905.01 of the Revised Code , the child was sixteen years of age or older at the time of the commission of the act charged, and either or both of the following apply:* * *
(b) The child is alleged to have had a firearm on or about the child‘s person or under the child‘s control while committing the act charged and to have displayed the firearm, brandished the firearm, indicated possession of the firearm, or used the firearm to facilitate the commission of the act charged.
R.C. 2152.10(A)(2)(b) .
{¶ 10}
(b) After a complaint has been filed alleging that a child is a delinquent child by
reason of committing a category two offense, the juvenile court at a hearing shall transfer the case if the child was sixteen or seventeen years of age at the time of the act charged and either of the following applies: * * *
(ii) Division (A)(2)(b) of section 2152.10 of the Revised Codе requires the mandatory transfer of the case, and there is probable cause to believe that the child committed the act charged.
R.C. 2152.12(A)(1)(b)(ii) .
Discretionary Transfer
{¶ 11}
Unless the child is subject to mandatory transfer, if a child is fourteen years of age or older at the time of the act charged and if the child is charged with an act that would be a felony if committed by an adult, the child is eligible for discretionary transfer to the appropriate court for criminal prosecution. In determining whether to transfer the child for criminal prosecution, the juvenile court shall follow the procedures in
section 2152.12 of the Revised Code .
{¶ 12} Section (B) of
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 appliсable and that the court weighed.
R.C. 2152.12(B) .
Transfer When Juvenile Is Charged With Both Mandatory and Discretionary Transfer Offenses
{¶ 13}
If one or more complaints are filed alleging that a child is a delinquent child for committing two or more acts that would be offenses if committed by an adult, if a
motion is made alleging that division (A) of this section applies and requires that the case or cases involving one or more of the acts charged be transferred for, and if a motion also is made requesting that the case or cases involving one or more of the acts charged be transferred pursuant to division (B) of this section, the juvenile court, in deciding the motions, shall proceed in the following manner: (1) Initially, the court shall decide the motion alleging thаt division (A) of this section applies and requires that the case or cases involving one or more of the acts charged be transferred.
(2) If the court determines that division (A) of this section applies and requires that the case or cases involving one or more of the acts charged be transferred, the court shall transfer the case or cases in accordance with that division. After the transfer pursuant to division (A) of this section, the court shall decide, in accordance with division (B) of this section, whether to grant the motion requesting that the case or cases involving one or more of the acts charged be transferred pursuant to that division. Notwithstanding division (B) of this section, prior to transferring a case pursuant to division (A) of this section, the court is not required to consider any factor specified in division (D) or (E) of this section or to conduct an investigation under division (C) of this section.
(3) If the court determines that division (A) of this section does not require that the case or cases involving one or more of the acts charged be transferred, the court shall decide in accordance with division (B) of this
section whether to grant the motion requesting that the case or cases involving one or more of the acts charged be transferred pursuant to that division. (4) No report on an investigation conducted pursuant to division (C) of this section shall include details of the alleged offense as reported by the child.
{¶ 14} In applying the statutory scheme in
The transfer abates the jurisdiction of the juvenile court with respect to the delinquent acts alleged in the complaint, and, upon the transfer, all further proceedings pertaining to the act charged shall be discontinued in the juvenile court, and the case then shall be within the jurisdiction of the court to which it is transferred as described in
division (H) of section 2151.23 of the Revised Code .
{¶ 15} In State v. Henderson, 2d Dist. Montgomery No. 21866, 2007-Ohio-5368, this court interpreted and applied
{¶ 16} Brookshire suggests that we revisit our interpretation and application of
{¶ 17} The defendant in Brown appealed the transfer of his burglary charge to adult court arguing that
{¶ 18} In support of its decision, the Tenth District cited the Supreme Court of Ohio‘s decision in State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544, 978 N.E.2d 894. In D.W., the juvenile defendant was charged with only disсretionary transfer offenses. “[T]he juvenile court failed to conduct an amenability hearing before transferring the juvenile defendant to adult court based upon the mistaken belief that a prior bindover of the juvenile negated the need for an amenability hearing.” Id. at ¶ 48. The Supreme Court held that “a juvenile court cannot bind over a juvenile on the sole basis that the juvenile has been previously bound over.” Id. at ¶ 46. The Supreme Court further held that the plain language of
{¶ 19} The decisions in Brown and D.W. do not affect our interpretation and application of
{¶ 20} Brookshire also contends that our interpretation of
{¶ 21} We also note that, except for the addition of section (F)(4) in September 2012, the language in
The Juvenile Court Properly Transferred
{¶ 22} In this case, Brookshire was charged with multiple counts of aggravated robbery and kidnapping in the juvenile court. Brookshire does not contest the fact that the aggravated robbery charges were subject to mandatory transfer pursuant to
{¶ 23} Because he was charged with both mandatory and discretionary transfer offenses, Brookshire contends that the juvenile court was required to follow the transfer procedure outlined in
{¶ 24} Given that the juvenile court properly transferred the kidnapping charges to the
{¶ 25} Brookshire‘s First Assignment of Error is overruled.
Assignment of Error Nos. 2, 3, and 4
{¶ 26} For purposes of convenience, we will address Brookshire‘s Second, Third, and Fourth Assignments of Error together. They are as follows:
II. THE MONTGOMERY COUNTY JUVENILE COURT ERRED WHEN IT TRANSFERRED LV BROOKSHIRE‘S CASE TO ADULT COURT BECAUSE THE MANDATORY TRANSFER PROVISIONS IN
R.C. 2152.12(A)(2)(b) ANDR.C. 2152.12(A)(1)(b) ARE UNCONSTITUTIONAL IN VIOLATION OF A CHILD‘S RIGHT TO DUE PROCESS AS GUARANTEED BY THEFOURTEENTH AMENDMENT TO THE UNTIED STATES CONSTITUTION ANDARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION .III. THE MONTGOMERY COUNTY JUVENILE COURT ERRED WHEN IT TRANSFERRED LV BROOKSHIRE‘S CASE TO ADULT COURT BECAUSE THE MANDATORY TRANSFER PROVISIONS IN
R.C. 2152.10(A)(2)(b) ANDR.C. 2152.12(A)(1)(b) VIOLATE A CHILD‘S RIGHT TO EQUAL PROTECTION AS GUARANTEED BY THEFOURTEENTH AMENDMENT TO THE UNTIED STATES CONSTITUTION ANDARTICLE I, SECTION 2 OF THE OHIO CONSTITUTION .IV. THE MONTGOMERY COUNTY JUVENILE COURT ERRED WHEN IT TRANSFERRED LV BROOKSHIRE‘S CASE TO ADULT COURT BECAUSE THE MANDATORY TRANSFER PROVISIONS IN
R.C. 2152.10(A)(2)(b) ANDR.C. 2152.12(A)(1)(b) VIOLATE THE PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENTS AS GUARANTEED BY THEEIGHTH ANDFOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION ANDARTICLE I, SECTION 9 OF THE OHIO CONSTITUTION .
{¶ 27} Under these assignments of error, Brookshire argues that
{¶ 28} As an initiаl matter, we note that “[f]ailure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver of such issue.” In re I.A., 2d Dist. Montgomery No. 25078, 2012-Ohio-4973, ¶ 4, quoting State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1986), syllabus. In this case, Brookshire failed to raise his constitutional challenges to the mandatory transfer in the juvenile court or the trial court and, therefore, waived his arguments on appeal.
{¶ 29} In addition, “a defendant who * * * voluntarily, knowingly, and intelligently
{¶ 30} However, we note that even if there is a clear waiver, as there is here, an appellate court may still ” ‘consider constitutional challenges to the application of statutes in specific cases of plain error or where the rights and interests involved may warrant it.’ ” In re A.I. at ¶ 4, quoting In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus. (Other citation omitted.) Yet, even if we were to consider Brookshire‘s constitutional arguments, they do not have merit, because this court along with other appellate districts have already determined that the statutory provisions requiring mandatory transfer do not violate due process and equal protection rights under the
{¶ 31} Additionally, Brookshire‘s argument that the mandatory transfer statute violates his
{¶ 32} The statutory provisions at issue in this case, however, do not govern the sanctioning of juveniles, but instead govern whether a juvenile case must be transferred to adult court for adjudication. As stated in the concurrence in Quarterman, 9th Dist. Summit No. 26400, 2013-Ohio-3606, “[m]andatory bindover does not equate to punishment any more than the mere prosecution of an adult in the common pleas court constitutes punishment.” Id. at ¶ 16. Furthermore, Brookshire provides no support for applying
{¶ 33} Notwithstanding the fact that Brookshire waived his constitutional challenges to
Assignment of Error No. 5
{¶ 34} Brookshire‘s Fifth Assignment of Error is as follows:
LV BROOKSHIRE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL FAILED TO OBJECT TO HIS CASE BEING TRANSFERRED TO ADULT COURT.
{¶ 35} Under this assignment of error, Brookshire contends that his trial counsel was
{¶ 36} We review allegations of ineffective assistance of trial counsel under the two prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and adopted by the Supreme Court of Ohio in State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To prevail on an ineffective-assistance claim, Brookshire must establish that his trial counsel‘s performance was deficient and that the deficient performance prejudiced him. Strickland at paragraph two of the syllabus. A trial counsel‘s performance is deficient if the conduct complained of fell below an objective standard of reasonablenеss. Id. Trial counsel is entitled to a strong presumption that his or her conduct falls within the wide range of reasonable assistance. Id. As for prejudice, a trial counsel‘s deficient performance is prejudicial when counsel‘s errors are serious enough to create a reasonable probability that, but for the errors, the result of trial would have been different. Id.
{¶ 37} In this case, we have already concluded that the juvenile court properly transferred Brookshire‘s kidnaрping charges to the adult court pursuant to
{¶ 38} Brookshire‘s Fifth Assignment of Error is overruled.
Conclusion
{¶ 39} Having overruled all of Brookshire‘s assignments of error, the judgment of the trial court is affirmed.
FROELICH, P.J., and FAIN, J., concur.
Copies mailed to:
Mathias H. Heck
Andrew T. French
Brooke M. Burns
Hon. Michael Tucker