State v. ErwinState v. Erwin
Rendered on February 28, 2012
Ron O‘Brien, Prosecuting Attorney, and Kimberly Bond, for appellee.
Adam R. Todd, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
DORRIAN, J.
{¶1} Defendant-appellant, Charles Erwin (“appellant“), was previously convicted of aggravated murder with specification, murder with specification, aggravated robbery with specification, tampering with evidence, theft, and having a weapon while under disability. This court affirmed those convictions on direct appeal. State v. Erwin, 10th Dist. No. 09AP-918, 2010-Ohio-3022. On February 8, 2011, this court granted appellant‘s application for reopening that decision for the limited purpose of allowing review of the bindover decision by which appellant was transferred from the juvenile court to the court of common pleas. State v. Erwin, 10th Dist. No. 09AP-918, ¶13 (Feb. 8, 2011) (memorandum decision). The matter is now before us on reopening.
{¶2} On February 29, 2008, appellant and four other young men stole a Jeep Cherokee. Later that evening, they were traveling on Stockbridge Road when the driver
{¶3} Appellant and the other young men exited the Jeep and confronted Thomas and James. Appellant took the handgun from one of the other young men, pointed it at James and demanded money. James refused and appellant shot him in the chest. Appellant and the other young mеn then fled in the Jeep. James died as a result of the gunshot wound.
{¶4} At the time of the incident, appellant was 15 years old. He was arrested and charged with aggravated murder, aggravated robbery, and receiving stolen property in the Juvenile Branch of the Franklin County Court of Common Pleas, Division of Domestic Relations (“juvenile court“). The state filed a motion for the juvenile court to relinquish jurisdiction and transfer appellant to the general division of the court of common pleas for prosecution. The juvenile court conducted a probable cause hearing on August 28 and September 2, 2008. The state presented testimony from Thomas and from one of the young men who had been in the Jeep, Michael New. The state also presented testimony from a forensic pathologist in the coroner‘s office. Appellant called as witnesses the lead police investigator, Detective Raymond Clouse (“Detective Clouse“), and another of the young men who had been in the stolen Jeep, Justin Lee Wickham. At the close of that hearing, the juvenile court found that there was probable cause that appellant committed the charged offenses.
{¶5} On March 5, 2009, the juvenile court conducted a hearing to determine whether appellant was amenable to rehabilitation in the juvenile system or should be bound over to the court of common pleas. At the bindover hearing, the juvenile court admitted as evidence a bindover evaluation report and a psychological report prepared by Steve Sparks, Ph.D. (“Dr. Sparks“). The court also heard testimony from Daniel Davis, Ph.D. (“Dr. Davis“), a psychologist retained by appellant, and admitted a copy of Dr.
{¶6} Appellant appeals the juvenile court‘s judgment, assigning two errors for this court‘s review:
Defendant-Appellant‘s First Assignment of Error: The juvenile court‘s bindover decision was contrary to law as the court failed to consider specific factors set forth in the Ohio Revised Code and based its decision only upon the seriousness of the charge.
Defendant-Appellant‘s Second Assignment of Error: Mr. Erwin was denied the effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution, and Article I, Section 10 of the Ohio Constitution during the bindover proceedings.
{¶7} In appellant‘s first assignment of error, he claims that the juvenile court‘s decision to bind him over to the adult system was improper because the court failed to consider the factors set forth in the transfer statute. The transfer of cases from juvenile court is governed by
{¶8}
{¶9}
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 оr 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, or indicated that the child possessed a firearm.
(6) At the time of thе 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 nоt sufficient time to rehabilitate the child within the juvenile system.
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 is a mentally retarded person.
(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.
{¶11} Contrary to appellant‘s claim, the hearing transcript indicates that the juvenile court expressly considered and weighed both the factors in favor of transferring appellant to the adult system and those against transfer. With respect to the statutory factors in favor of a transfer, the court noted that James suffered physical harm resulting in his death.
{¶12} By contrast, the court found that few оf the factors weighing against a transfer were present. At the hearing, the court stated “two of the eight [factors weighing against a transfer] maybe were relevant.” (Mar. 5, 2009 Tr. 89.) However, in reviewing the court‘s analysis, it appears that the juvenile court found only one of the factors against a transfer to be present. James did not induce the attack and did not engage in any provocation that would justify appellant in shooting him.
{¶13} It appears that the court concluded that the only factor weighing against transfer was the fact that there may have been sufficient time to rehabilitate appellant within the juvenile system.
{¶14} The statute requires the court to cоnsider whether the factors in favor of a transfer outweigh the factors against a transfer and states that the record must indicate the specific factors the court found to be applicable and that it weighed. However, there is no requirement that the court enter written findings regarding these factors. See State v. Douglas, 20 Ohio St.3d 34, 36 (1985) (holding that no written findings were required under prior version of transfer statute and juvenile rule regarding transfer); State v. Moorer, 11th Dist. No. 2001-G-2353, 2003-Ohio-5698 {¶15} Accordingly, appellant‘s first аssignment of error is without merit and is overruled. {¶16} In his second assignment of error, appellant asserts that he received ineffective assistance of counsel during the bindover proceedings. The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to the effective assistance of counsel. State v. Banks, 10th Dist. No. 10AP-1065, 2011-Ohio-2749, ¶12, citing McMann v. Richardson, 397 U.S. 759, 771 (1970). Courts use a two-part test to evaluate claims of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-42 (1989). “First, the defendant must show thаt counsel‘s performance was deficient.” Strickland, 466 U.S. at 687. “Second, the defendant must show that the deficient performance prejudiced the defense.” Id. “To show that a defendant has been prejudiced by counsel‘s deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel‘s errors, the result of the trial would have been different.” Bradley at paragraph three of the syllabus. {¶17} In determining whether counsel was deficiеnt, “[t]he defendant has the burden of proof and must overcome the strong presumption that counsel‘s performance was adequate or that counsel‘s action might be sound trial strategy.” Banks at ¶13, citing State v. Smith, 17 Ohio St.3d 98, 100 (1985). “Debatable trial tactics and strategies do not constitute a denial of effective assistance of counsel.” State v. Hester, 10th Dist. No. 02AP-401, 2002-Ohio-6966, ¶10 (internal citations omitted). {¶18} Appellant first argues that he received ineffective assistance of counsel because his attorney failed to rеquest a complete mental examination or a competency evaluation. R.C. 2152.12(C) provides that, before considering a discretionary transfer, “the juvenile court shall order an investigation, including a mental examination of the child by a public or private agency or a person qualified to make the examination.” In this case, the juvenile court ordered a psychological evaluation, which was performed by Dr. Sрarks. Appellant‘s counsel also arranged for a second psychological evaluation, conducted by Dr. Davis. In addition to meeting with appellant and conducting an independent evaluation of his psychological status, Dr. Davis reviewed Dr. Sparks‘s report. Dr. Davis concluded that appellant‘s reading level was insufficient to allow him to conduct certain diagnostic tests. However, he testified that he was able to use оther diagnostic measures to evaluate appellant‘s mental status. On cross-examination, Dr. Davis admitted that he had not performed a formal competency evaluation on appellant. Appellant argues that his trial counsel was ineffective for failing to request a full psychological examination or a competency evaluation. {¶19} We note that, despite the limitations caused by appellant‘s reading proficiency, both Dr. Sparks and Dr. Davis were able to conclude that appellant fell on the “borderline” between low average mental function and mental retardation. However, even assuming for the purpose of analysis that appellant‘s counsel was deficient in failing to request a complete psychological examination, appellant has failed to establish that this deficiency resulted in prejudice. It is unclear whether a more thorough psychological evaluation would have produced a different result; appellant might still have been deemed to fall in the range between low average function and mental retardation. Moreover, even if appellant had been found to suffer from a mental disability, that finding would only be one factor weighing against a transfer. The other factors weighing in favor of a transfer and the serious nature of the crime charged would remain unchanged. Appellant has failed to establish a reasonable probability that, if his counsel had sought a more complete psychological examination or competency evaluation, the result of the bindover hearing would have been different. {¶20} Appellant also argues that his counsel was ineffective for failing to subpoena or otherwise ensure the aрpearance of a certain witness at the probable cause hearing. “Generally, counsel‘s decision whether to call a witness falls within the rubric of trial strategy and will not be second-guessed by a reviewing court.” State v. Treesh, 90 Ohio St.3d 460, 490 (2001). Moreover, this court has previously noted that the presentation of a defense in a probable cause hearing differs from the presentation of a defense at trial. State v. Suggs, 10th Dist. No. 89AP-957, 1990 WL 61121, *6 (May 10, 1990). “Therefore, in most instances, defense counsel makes no effort to present evidence of its own, but confines his efforts to cross-examination of the prosecution‘s witnesses to determine the strength of the prosecution‘s case.” Id. at *7. {¶21} In this case, appellant alleges that his trial counsel failed to ensure that a subpoena was properly served on a witness who was a confidential police informant in unrelated matters, who “at one point, possessed the gun used in the alleged shooting.” (Appellant‘s brief at 11.) According to testimony provided by the lead investigator, Detective Clouse, the informant received the gun used in the shooting from one of the young men involved in the incident and placed it in a driveway. The informant‘s son allegedly then picked up the gun and took it to a friend‘s house. The police searched that house but did not recover a weapon. The informant did not appеar at the probable cause hearing, and appellant‘s counsel did not request a continuance to attempt to secure her attendance. {¶22} It appears that appellant‘s counsel attempted to subpoena the confidential informant but failed to ensure that the subpoena was personally served on her. Assuming for the sake of analysis that counsel was deficient in failing to ensure that this informant appeared at the probable cause hearing, appellant has failed to demonstrate that he was prejudiced by this deficiency. A party seeking to establish ineffective assistance of counsel based on failure to call a witness must establish that the witness‘s testimony “would have significantly assisted the defense and affected the outcome of the case.” State v. Dennis, 10th Dist. No. 04AP-595, 2005-Ohio-1530, ¶22. Based on the testimony of Detective Clouse, it appears thаt the confidential informant was not present at the time of the shooting. Therefore, she would not be able contradict the eyewitness testimony from Michael New that appellant shot James. Testimony from the confidential informant regarding what happened to the gun after the shooting would not affect the outcome of a hearing convened to determine whether there was probable cause that appellant committed the shooting. Therefore, appellant has failed to establish that his counsel provided ineffective assistance in failing to ensure that a subpoena was served on the confidential informant. {¶23} Appellant also claims that his counsel provided ineffective assistance by failing to ensure that the state provided full copies of all lab reports, failing to object to the lack of complete lab repоrts, or by failing to request a continuance of the hearing to obtain full copies of the lab reports. During the testimony of Detective Clouse, it became clear that appellant‘s counsel may not have been provided complete copies of all lab reports associated with the investigation. At the close of the first day of the probable cause hearing, appellant‘s counsel requested full copies of all lab reports. However, it appears that, when the probable cause hearing was reconvened, there may have been at least one lab report that was not provided to appellant‘s counsel. The hearing transcript indicates that there was a lab report regarding fingerprints taken from the stolen Jeep that was not provided to appellant‘s counsel. Once again, assuming for the sakе of analysis that appellant‘s counsel was deficient in not objecting to this evidence or delaying the hearing until he obtained copies of any additional reports, appellant has failed to demonstrate prejudice. Detective Clouse testified that the missing lab report indicated that Wickham‘s fingerprints were found on the rearview mirror of the stolen Jeep. Whether or not appellant had copies of this report, the evidence would not contradict the eyewitness testimony provided at the probable cause hearing and would not affect the outcome of the probable cause hearing. {¶24} Accordingly, appellant‘s second assignment of error is without merit and is overruled. {¶25} For the foregoing reasons, both of appellant‘s assignments of error are overruled, and the judgment of the Franklin County Court of Common Pleas is affirmed. Judgment affirmed. BROWN, P.J., and TYACK, J., concur. _______________