STATE OF OHIO, Plaintiff-Appellee, vs. THOMAS CARBERRY, Defendant-Appellant.
APPEAL NO. C-170095
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
March 23, 2018
2018-Ohio-1060
TRIAL NO. B-1604243
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appelleе,
The Office of the Ohio Public Defender and Timothy B. Hackett, Assistant State Public Defender, for Defendant-Appellant.
O P I N I O N.
{¶1} On May 9, 2016, in the Clermont County Juvenile Court, defendant-appellant Thomas Carberry was adjudicated delinquent for committing аn act which, had it been committed by an adult, would have constituted the crime of rape, in violation of
{¶2} While the disposition was pending, three complаints were filed in the Hamilton County Juvenile Court, each alleging that Carberry had committed an act which, had it been committed by an adult, would have constituted gross sexual imposition. The state requested that the juvenile court transfer Cаrberry‘s gross-sexual-imposition charges to the common pleas court for trial as an adult. Carberry waived probable cause, and the case was continued for a mental evaluation as required by
{¶3} After being bound over, Carberry was indicted for three counts of gross sexual imposition, in violation of
{¶5} “We review a juvenile court‘s determination regarding a child‘s amenability to rehabilitation in the juvenile system under an abuse-of-discretion standard.” State v. Amos, 1st Dist. Hamilton No. C-150265, 2016-Ohio-1319, ¶ 38, citing In re M.P., 124 Ohio St.3d 445, 2010-Ohio-599, 923 N.E.2d 584, ¶ 14. In determining whether the juvenile is amenable to rehabilitation in the juvenile system, the juvenile court is required to consider statutory fаctors that weigh in favor of, and against transfer of, the juvenile‘s case to the common pleas court. Amos at ¶ 38; see
{¶6} The juvenile court ordered a mental evaluation, held a hearing, discussed on the record the factors weighing in favor of transferring jurisdiction, and recorded the factors on a worksheet attached to the entry transferring jurisdiction. Pursuant to
{¶7} The court considered the report of Dr. Kathleen Hart, a board-certified clinical child-and-adolescent psychologist. Dr. Hart concluded that Carberry was amenable to treatment in the juvenile system. But Dr. Hart also acknowledged that the court had factors to consider that fell outside the scope of her report, including the severity of the offenses, the availability of resources to address Carberry‘s rehabilitation needs, and the impact of Carberry‘s behavior on his victims.
{¶8} Carberry‘s victims were his five- and 12-year-old cousins, one of whom had cancer and was on medication that made her drowsy. The record shows that the juvenilе court was very concerned that there was not sufficient time to rehabilitate Carberry in the juvenile system because he was 19-and-a-half years old at the time of the hearing. The court stated that Carberry was “mentally mature еnough and physically mature enough and chronologically mature enough to go to the adult court.” The court also considered that Carberry had no juvenile record other than the adjudication for rape in Clermont County.
{¶9} The record shows that the juvenile court complied with all the requirements for discretionary transfer. The court‘s amenability determination is supported by the record and evinces a sound reasoning process. We hold thаt the juvenile court did not abuse its discretion in transferring Carberry‘s gross-sexual-imposition cases to the common pleas court. See Washington, 1st Dist. Hamilton No. C-130213, 2014-Ohio-4178, at ¶ 26. The first assignment of error is overruled.
{¶10} Carberry‘s second assignment of error alleges that the common pleas court violаted Carberry‘s constitutional rights to due process and to be free from
{¶11} Carberry failed to object to his Tier II classification or to raisе his constitutional challenges to the common pleas court. Therefore, he forfeited the constitutional challenges to the application of adult sex-offender classification and registration requiremеnts. See State v. Golson, 8th Dist. Cuyahoga No. 104776, 2017-Ohio-4438, ¶ 11. But we have discretion to consider the forfeited constitutional challenges under a plain-error analysis. Id. at ¶ 12. To establish plain error, Carberry must show that but for the error, the outcome of the proceedings clearly would have been different, and reversal is necessary to correct a manifest injustice. Id. at ¶ 13, citing State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.2d 900, and State v. Davis, 127 Ohio St.3d 268, 2010-Ohio-5706, 939 N.E.2d 147.
{¶12}
{¶13} Carberry‘s right to due process was protected by the discretionary bindover procedure, which the juvenile сourt followed. See Golson at ¶ 21; Reidenbach at ¶ 33. Once his cases were properly transferred to the adult criminal court, Carberry was no longer a “child” under
{¶14} Carberry hаs failed to demonstrate plain error in his classification as a Tier II sex offender. The second assignment of error is overruled.
{¶15} Carberry‘s third assignment of error alleges that he was denied the effective assistance of сounsel. To establish that counsel was ineffective, Carberry must show that his counsel‘s performance was deficient and that the deficient performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To establish prejudice, Carberry must show that thеre is a “reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland at 694.
{¶17} Carberry‘s fourth assignment of error alleges that the trial court erred in crediting Carberry with “only 175 days of jail time сredit.” In the trial court, the parties agreed that Carberry was entitled to 175 days of credit, and the trial court credited Carberry with 175 days. Carberry now argues that he is entitled to 354 days of jail-time credit. The state disagrees that Carberry is entitlеd to 354 days of credit, but concedes that the 175-day credit is incorrect and argues that he is entitled to only 12 additional days of credit.
{¶18} In State v. Washington, 1st Dist. Hamilton No. C-140315, 2015-Ohio-1815, ¶ 9, we stated,
Jail-time credit is prescribed by
R.C. 2967.191 , which authorizes a trial court to give a defendant credit for the total number of days that he was “confined for any reason arising out of the offense for which he was convicted and sentenced.” The trial court is required to include the amount of jail-time credit in the sentencing entry. SeeR.C. 2929.19(B)(1)(g)(i) ;Ohio Adm.Code 5120-2-04(6) . An offender may challenge the amount of jail-time credit on direct appeal. See State v. Morgan, 1st Dist. Hamilton No. C-140416, 2014-Ohio-5325, at ¶
5. A trial court commits plain error when it fails to include the appropriate amount of jail-time credit in the sentencing entry. State v. Hargrove, 1st Dist. Hamilton No. C-120321, 2013-Ohio-1860, ¶ 9.
{¶19} The parties agree on aрpeal that Carberry was not given the proper amount of jail-time credit, although they disagree on the amount Carberry was entitled to receive. The trial court had the duty to determine and include in the sentencing entry the proper amount of jail-time credit.
{¶20} The judgment of the juvenile court transferring Carberry‘s cases to the common pleas court is affirmed. The portion of the common pleas court‘s judgment awarding Carberry 175 days оf jail-time credit is reversed, and this cause is remanded for the court to determine the proper amount of jail-time credit to which Carberry is entitled. The common pleas court‘s judgment is affirmed in all other respects.
Judgment affirmed in part, reversed in part, and cause remanded.
MOCK, P.J., and ZAYAS, J., concur.
Please note:
The court has recorded its own entry this date.