Stаte of Ohio, Plaintiff-Appellee, v. DaeQuan M. Brown, Defendant-Appellant.
No. 17AP-695 (C.P.C. No. 17CR-1122)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
October 16, 2018
[Cite as State v. Brown, 2018-Ohio-4185.]
BROWN, P.J. TYACK and BRUNNER, JJ., concur.
(REGULAR CALENDAR)
Rendered on October 16, 2018
On brief: Ron O‘Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee. Argued: Seth L. Gilbert.
On brief: Timothy Young, Ohio Public Defender, and Victoria Bader, for appellant. Argued: Victoria Bader.
APPEAL from the Franklin County Court of Common Pleas
BROWN, P.J.
{¶ 1} Defendant-appellant, DaeQuan M. Brown, appeals from a judgment of the Franklin County Court of Common Pleas accepting his guilty plea and finding him guilty of one count of felonious assault, one count of felonious assault with a firearm specification, and one count of harassment with a bodily substance. For the reasons that follow, we affirm.
{¶ 2} On October 15, 2016, in case No. 16JU-12291, a complaint was filed in the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, alleging Brown was delinquent for committing two offenses of felonious assault, in violation of
{¶ 3} The facts recited by the prosecutor at a February 15, 2017 hearing indicated the events giving rise to the complaint occurred at Linden McKinley High School in
{¶ 4} On January 13, 2017, in case No. 17JU-557, a complaint was filed in the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, alleging Brown was delinquent for committing the offense of harassment with a bodily substance, in violation of
{¶ 5} A juvenile court judge conducted a hearing on January 24, 2017, at which Brown was represented by counsel and Brown‘s mother was present. Brown‘s counsel informed the court that, although the parties had reached a plea bargain which included a jointly recommended sentence of eight years in adult court, Brown‘s mother was opposed to the plea bargain. Brown‘s mother stated that “8 years for him is just too long for a child to go to prisоn,” and informed the court that she was considering retaining an attorney to represent Brown. (Jan. 24, 2017 Tr. at 3.) The court informed Brown‘s mother of the maximum amount of prison time Brown was facing on the charges, and noted that “[t]he other thing * * * that could be added to the indictment would be participation in a criminal gang.” (Jan. 24, 2017 Tr. at 4-5.) The court continued the case.
{¶ 6} On February 8, 2017, the juvenile court held another hearing at which Brown was represented by counsel, and Brown‘s mother and father were present. Brown‘s father expressed to the court his dissatisfaсtion with Brown‘s appointed counsel, asserting that Broderick had “walked away from” him when he attempted to discuss the case with her. (Feb. 8, 2017 Tr. at 3.) The court explained that “Ms. Broderick [was] [Brown]‘s attorney,” and that, in order to discuss the case with either parent, Broderick would need a signed
{¶ 7} The juvenile court held the final hearing on the cases on February 15, 2017. Brown was represented by counsel and Brown‘s mother was present at the hearing. Initially, Attorney Eric Henry addressed the court, explaining that Brown‘s family attempted to hire him to represent Brown, but Brown had “indicated that he wishe[d] to remain with Ms. Broderick as his attorney.” (Feb. 15, 2017 Tr. at 2.) Brown affirmed he wanted to continue with Broderick as his attorney.
{¶ 8} The prosecutor informed the court the parties had reached a resolution on the cases through which Brown would stipulate to probable cause, stipulate he was not amenable to the juvenile justice system, and plead guilty to the charges once the case was transferred to adult court. The parties would then make a “joint recommendаtion for an 8-year prison sentence.” (Feb. 15, 2017 Tr. at 5.) The prosecutor additionally noted that although there was “reference to a possible other offense in the felony packet,” the state agreed “not to pursue any charges out of that incident as part of this plea.” (Feb. 15, 2017 Tr. at 5.) Broderick confirmed the prosecutor had adequately set forth the parties’ plea agreement.
{¶ 9} Following a colloquy with Brown, the juvenile court accepted Brown‘s stipulation to probable cause and found Brown had “waive[d] his right to an amenability hearing.” (Feb. 21, 2017 Jgmt. Entry.) The court granted the state‘s motions to relinquish jurisdiction in case Nos. 16JU-12291 and 17JU-557, and ordered the cases be transferred to the general division of the common pleas court for prosecution of Brown as an adult.
{¶ 10} On February 28, 2017, Brown was indicted in the general division of the Franklin County Court of Common Pleas on two counts of felonious assault, both with firearm specifications, and one count of harassment with a bodily substance. The court ordered a nolle prosequi be entered to the firearm specification related to the felonious assault charge in Count 2 of the indictment. On August 30, 2017, Brown pled guilty to the
{¶ 11} Brown appeals, assigning the following errors for our review:
[I.] The Franklin County Juvenile Court erred when it transferrеd DaeQuan Brown‘s case to criminal court because it did so without obtaining a knowing, intelligent, and voluntary waiver of DaeQuan‘s right to an amenability determination. State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544, 978 N.E.2d 894; Fourteenth Amendment to the U.S. Constitution; Article I, Section 16 of the Ohio Constitution.
[II.] The juvenile court abused its discretion when it failed to appoint a guardian ad litem for DaeQuan Brown, in violation of
Juv.R. 4(B)(2) andR.C. 2152.281(A)(2) .[III.] DaeQuan Brown was denied the effective assistance of counsel, in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution; and, Article I, Section 10, Ohio Constitution.
{¶ 12} Brown‘s first assignment of error аsserts the juvenile court erred when it transferred Brown‘s case to the general division of the common pleas court because it did so without obtaining a knowing, intelligent, and voluntary waiver of Brown‘s right to an amenability determination.
{¶ 13} Brown‘s counsel in juvenile court did not object to the juvenile court‘s acceptance of Brown‘s amenability waiver. As such, we review for plain error. State v. Morgan, 153 Ohio St.3d 196, 2017-Ohio-7565, ¶ 54 (holding that “criminal plain-error review applies to unpreserved errors that occur in a juvenile-delinquency proceeding“).
{¶ 14} “Notice of plain error * * * is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus. “For a court to notice plain error, the error must be an obvious defect in a trial‘s proceedings, it must have affected substantial rights, and it must have affected the outcome of the trial.” State v. Steele, 138 Ohio St.3d 1, 2013-Ohio-2470, ¶ 30, citing State v. Eafford, 132 Ohio St.3d 159, 2012-Ohio-2224, ¶ 11. Even if an error satisfies these three requirements, “Crim.R. 52(B) states only
{¶ 15} “The juvenile court has exclusive original jurisdiction to hear complaints alleging that a juvenile is a delinquent child by reason of having committed an offense that would be a crime if committed by an adult.” State v. Brown, 10th Dist. No. 13AP-349, 2014-Ohio-314, ¶ 14. “A juvenile offender may not be tried as an adult unless the juvenile court transfers jurisdiction of the matter to an adult court.” State v. Hicks, 10th Dist. No. 13AP-429, 2014-Ohio-1444, ¶ 8, citing State v. Golphin, 81 Ohio St.3d 543, 545 (1998). Absent a proper “bind-over proceeding in the juvenile court, the common pleas court lacks subject-matter jurisdiction over the case and any conviction obtained there is void ab initio.” Id., citing State v. Wilson, 73 Ohio St.3d 40, 44 (1995).
{¶ 16} Two typеs of transfer exist under Ohio‘s juvenile justice system: discretionary and mandatory. State v. Hanning, 89 Ohio St.3d 86, 90 (2000). In instances of discretionary bindover, as in the present case, the juvenile court may transfer the case if the court finds that: (1) the child was 14 years of age or older at the time of the act charged, (2) there is probable cause to believe the child committed the act charged, and (3) the child is not amenable to care or rehabilitation within the juvenile system and the safety of the community may require the child be subject to adult sanctions.
{¶ 17} In making its determinаtion, the juvenile court is required to consider whether the factors in favor of transferring jurisdiction, contained in
{¶ 18} The amenability hearing is a “critical stage of the juvenile proceedings,” as it determines whether “the juvenile faces a delinquency adjudication, or adult criminal
{¶ 19} However, a juvenile may waive the amenability hearing, рrovided: “(1) the juvenile, through counsel, expressly states on the record a waiver of the amenability hearing and (2) the juvenile court engages in a colloquy on the record with the juvenile to determine that the waiver was made knowingly, voluntarily, and intelligently.” Id. at syllabus. See also
{¶ 20} The juvenile court in D.W. concluded that no amenability hearing was necessary, as the court had previously bound the same juvenile over to adult court in a prior case. Id. at ¶ 3. The Supreme Court of Ohio 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.
{¶ 21} The court likened a juvenile‘s waiver of their right to an amenability hearing to the waiver of counsel. Id. at ¶ 28. In In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, the court held that an effective “waiver of the right to counsel by a juvenile must be voluntary, knowing, and intelligent,” and the juvenile court judge should “engage in a meaningful dialogue with the juvenile” instead of “relying solely on а prescribed formula or script for engaging a juvenile during the consideration of the waiver” of counsel. Id. at ¶ 106-07. See also
JUDGE JAMISON: You understand that you are not having a trial today?
DAEQUAN BROWN: Yes.
JUDGE JAMISON: You understand that if you admit to these charges and the stipulations that your case will be transferred to the adult system -- the General Division for prosecution?
DAEQUAN BROWN: Yes, ma‘am.
JUDGE JAMISON: Have you had ample time to discuss this case with Ms. Broderick?
DAEQUAN BROWN: Yes.
JUDGE JAMISON: Do you believe that the legal advice that she has given you is in your best interest to follow?
DAEQUAN BROWN: Yes, ma‘am.
JUDGE JAMISON: Okay. You understand that the State has offered, in exchange of this admission, to a sentence of 8 years in a Ohio Department of Rehabilitation and Correction Institution?
DAEQUAN BROWN: Yes, ma‘am.
JUDGE JAMISON: That you will not be held in the juvenile system?
DAEQUAN BROWN: Yes, ma‘am.
JUDGE JAMISON: Okay. You understand that by stipulating to probable cause that you are waiving your right to have this
Court have a hearing on that matter and make a decision that your case should be transferred?
DAEQUAN BROWN: Yes.
JUDGE JAMISON: And you‘rе also stipulating that the victims did suffer bodily harm and you were already on probation for another felony offense and that you are not what we call amenable or should not be kept in the juvenile system; you understand that you are stipulating or admitting to those things?
DAEQUAN BROWN: Yes, ma‘am.
(Feb. 15 2017 Tr. at 6-8.)
{¶ 23} The court asked Brown if anyone had “attempted in any way to force [him] to change [his] mind in this matter.” (Feb. 15, 2017 Tr. at 8.) Brown stated his mother and father had both advised him not to take the plea deal, but he wanted to take the plea deal. The court assured that Brown understood the maximum possible penalties he was facing on the charges. Brown affirmed he was making these decisions “voluntarily * * * and of [his] own freewill.” (Feb. 15, 2017 Tr. at 9.) The court again asked Brown if he was “satisfied with [his] attorney,” and Brown responded “Yes, ma‘am.” (Feb. 15, 2017 Tr. at 10.)
{¶ 24} Brown acknowledges that he “expressed his intent to waive his right to an amenability hearing on the record and through counsel,” but argues his waiver was deficient because the juvenile court “failed to fully apprise [him] of the nature of the hearing, rights he had, and the consequences of waiving those rights before accepting his stipulation.” (Appellant‘s Brief at 12.) Specifically, Brown argues that because the juvenile court failed to explain “what amenability meant,” failed to explain the
{¶ 25} The juvenile court was not obligated to define amenability or to explain the components of
{¶ 27} The juvenile court herein was entitled to rely on Brown‘s statement that he had ample time to discuss the case with his attorney and he was satisfied with the advice she had provided him. The court personally addressed Brown, and Brown unequivocally stipulated that he was not amenable to rehabilitation in the juvenile justice system. Brown understood that, as a result of his stipulations, his case would be removed from juvenile court and transferred to adult court for prosecution. The juvenile court‘s colloquy demonstrates compliance with the
{¶ 28} Accordingly, the record demonstrates the juvenile court engaged in a colloquy on the record with Brown to determine that Brown made a knowing, intelligent, and voluntary waiver of his right to an amenability hearing. As Brown also expressed his intent to waive the amenability hearing on the record and through counsel, both of the D.W. requirements are satisfied in the present case.
{¶ 29} Furthermore, Brown fails to establish any prejudice resulting from the juvenile court‘s acceptance of his waiver. Brown states that “[h]ad the court held a full amenability hearing, it is possible that he would have been found to be amenable and the court could have retained jurisdiction.” (Appellant‘s Brief at 15.) However, in Morgan the court “decline[d] to recognize a ‘presumed prejudicial’ plain-error standard.” Id. at ¶ 50. To
{¶ 30} Several of the
{¶ 31} Based on the foregoing, appellant‘s first assignment of error is overruled.
{¶ 32} Brown‘s second assignment of error asserts the juvenile court abused its discretion by failing to appoint a guardian ad litem (“GAL“), in violation of
{¶ 33} A GAL is a “person appointed to protect the interests of a party in a juvenile court proceeding.”
{¶ 34}
{¶ 35} As ” ‘the juvenile court is in the best position to weigh the relevant facts in determining whether a potential conflict of interest exists between the parent and child,’ ” we review such decisions for an abuse of discretion. State v. Simmonds, 10th Dist. No. 14AP-1065, 2015-Ohio-4460, ¶ 10, quoting Sappington at 453-54. Specifically, reversible error exists if the record “reveals a strong enough possibility of conflict of interest between parent and child to show that the juvenile court abused its discretion by not so finding.” Sappington at 454. See also Howard at 206 (noting that a conflict exists when the parent “clearly ha[s] her own agenda, or [is] advocating her own best interest“); Simmonds at ¶ 13 (finding no conflict of interest as there was “nothing in the record indicating that the mother or the grandmother‘s interests were no longer consistent with a role that properly protects the child“). As Brown did not object to the failure of the juvenile court to appoint a GAL, the alleged error is subject to the plain error standard of review. Morgan at ¶ 55.
{¶ 36} “A ‘colоrable claim of conflict’ frequently arises in a delinquency proceeding when a parent speaks against a child‘s penal interests.” State v. Legg, 4th Dist. No. 14CA23, 2016-Ohio-801, ¶ 18, quoting In re Bostwick, 4th Dist. No. 05CA2820, 2005-Ohio-5123, ¶ 8. See In re J.C., 5th Dist. No. 14CA23, 2015-Ohio-4664, ¶ 33-34; In re Slider, 160 Ohio App.3d 159, 2005-Ohio-1457, ¶ 12 (4th Dist.) However, courts have been “unwilling to adopt a bright-line rule that would require the appointment of a guardian ad litem in every case in which a child‘s parents or legal guardians speak against the child‘s interests.” Legg at ¶ 18, citing Howard at 207. Instead, “courts have examined the record to determine whether the parent or legal guardian expressed any interest inconsistent with the child‘s interests.” Id. See In re D.A.G., 4th Dist. No. 13CA3366, 2013-Ohio-3414, ¶ 54; Howard at 207.
{¶ 37} The presencе of counsel is a factor the court should consider in appointing a GAL. Simmonds at ¶ 11. A juvenile court “should be more sensitive to potential conflicts of interest under
{¶ 39} Brown and his parents simply disagreed regarding how Brown‘s interest in serving the least amount of prison time should be accomplished. Brown‘s parents did not want him to take the plea bargain, and attempted to retain private counsel for him in the hopes that the case would either remain in juvenile court or that Brown would be acquitted on the charges if the case were transferred to adult court. Brown, after consulting with his appointed counsel, believed that accepting the plea deal with the eight-year sentencing recommendation was in his best interest. Thus, while Brown and his parents may have disagreed as to the method, their overall interests were aligned. Neither the “statute [n]or the rule requires that every time a parent and child disagree, a guardian ad litem must be appointed.” Howard at 206.
{¶ 40} Moreover, Brown fails to articulate how the juvenile court‘s failure to appoint a GAL prejudiced him. Although Brown notes that a GAL “would have provided the court with an unbiased, third party recommendаtion regarding [Brown‘s] best interest,” there is nothing in the record indicating that a GAL would not have found the plea deal to be in Brown‘s best interest. (Appellant‘s Brief at 25.) Compare In re C.N., 3d Dist. No. 6-17-16, 2018-Ohio-2442, ¶ 10. Brown fails to establish that the outcome of the proceeding would have been different if the court had appointed a GAL. Accordingly, Brown fails to demonstrate plain error.
{¶ 41} Based on the foregoing, Brown‘s second assignment of error is overruled.
{¶ 42} Brown‘s third assignment of error asserts he was deprived of the effective assistance of counsel in the juvenile court. Brown asserts his counsel was constitutionally ineffective “for failing to object to the juvenile court‘s failure to engage in a meaningful dialogue with [Brown] prior to accepting his amenability waiver and fail[ing] to appoint a guardian ad litem.” (Appellant‘s Brief at 28.)
{¶ 44} In Ohio, a properly licensed attorney is presumed competent. State v. Monford, 190 Ohio App.3d 35, 2010-Ohio-4732, ¶ 78 (10th Dist.), citing Vaughn v. Maxwell, 2 Ohio St.2d 299, 301 (1965). Matters of trial strategy and even debatable trial tactics do not establish ineffective assistance of counsel. Id. at ¶ 79, citing State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 101.
{¶ 45} As demonstrated above, the court‘s colloquy with Brown regarding his amenability waiver was sufficient and there was no conflict of interest between Brown and his parents which necessitated appointment of a GAL. See State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, ¶ 120 (holding that, where “counsel had no basis for objecting,” counsel could not “be deficient for failing to object“). Moreover, considering the maximum amount of prison time Brown was facing and the likelihood of transfer, Brown‘s counsel successfully negotiated a highly favorable plea deal for her client. Compare J.T.S. at ¶ 52. Brown fails to establish a reasonable probability that he would not have been bound over to adult court if his counsel had objected to either the colloquy or the lack of a GAL. Accordingly, Brown fails to demonstrate he was deprived of the effective assistance of counsel.
{¶ 46} Based on the foregoing, Brown‘s third assignment of error is overruled.
{¶ 47} Having overruled Brown‘s three assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK and BRUNNER, JJ., concur.