THE STATE OF OHIO, APPELLANT, v. GOLPHIN, APPELLEE.
No. 96-2865
Supreme Court of Ohio
April 29, 1998
81 Ohio St.3d 543 | 1998-Ohio-336
Submitted January 14, 1998. APPEAL from the Court of Appeals for Cuyahoga County, No. 69266.
{¶ 1} In October 1994, appellant, Tommie Golphin, aged seventeen, was charged with juvenile delinquency in connection with the shooting of Clinton Butler. The complaint charged Golphin with committing acts which constituted felonious assault, having a weapon while under disability, and discharging a weapon into a habitation. After Butler‘s death, the complaint was amended to include a charge that Golphin‘s acts also constituted the crime of murder. The juvenile court subsequently found probable cause to believe that Golphin committed the acts charged in the complaint, as amended, and continued the matter for a full investigation in accordance with
{¶ 2} On January 18, 1995, the juvenile court held an amenability hearing pursuant to
{¶ 3} Golphin was thereafter indicted for the crimes of aggravated murder, accompanied by a firearm specification, and having a weapon while under disability. He was tried as an adult and convicted in common pleas court of the crime of murder and of the firearm specification. He was sentenced to serve an aggregate sentence of eighteen years to life in the adult prison system.
{¶ 4} On appeal, Golphin argued, inter alia, that the juvenile court had failed to properly relinquish its jurisdiction over Golphin in that no physical examination had been performed, and that the common pleas court thereby lacked jurisdiction to conduct criminal proceedings against him. The court of appeals agreed, and reversed and remanded the cause.
{¶ 5} The cause is now before this court pursuant to the allowance of a discretionary appeal.
Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, and Edward M. Walsh, Assistant Prosecuting Attorney, for appellant.
James A. Draper, Cuyahoga County Public Defender, and Scott Roger Hurley, Assistant Public Defender, for appellee.
MOYER, C.J.
{¶ 6} Juvenile courts have exclusive initial subject-matter jurisdiction over any case involving a person alleged to be delinquent for having committed, when younger than eighteen years of age, an act which would constitute a felony if committed by an adult.
{¶ 7} On August 30, 1994, when Golphin allegedly shot Clinton Butler,
“(A)(1) * * * [A]fter a complaint has been filed alleging that a child is a delinquent child for committing an act that would constitute a felony if committed by an adult, the court at a hearing may transfer the case for criminal prosecution to the appropriate court having jurisdiction of the offense, after making the following determinations:
* * *
“(c) After an investigation, including a mental and physical examination of the child made by a public or private agency or a person qualified to make the examination, and after consideration of all relevant information and factors, * * * that there are reasonable grounds to believe that:
“(i) He is not amenable to care or rehabilitation * * * in any facility designed for * * * delinquent children;
“(ii) The safety of the community may require that he be placed under legal restraint * * *.” (Emphasis added.) 144 Ohio Laws, Part II, 2745-2746.
{¶ 8} This statute, in effect both at the time of the shooting and at the time of Golphin‘s amenability hearing, thus clearly mandated that a juvenile be given a physical examination by a qualified person prior to relinquishment of juvenile court jurisdiction.
{¶ 9} Similarly,
“If the court finds probable cause, it shall continue the proceedings for full investigation. The investigation shall include a mental and physical examination of the child by a public or private agency or by a person qualified to make the examination.” (Emphasis added.)
{¶ 10} The procedure used by the trial court here violated an express act required by a statute adopted by the General Assembly and a rule adopted by the Supreme Court.
{¶ 11} Moreover,
{¶ 12} We have repeatedly recognized that use of the term “shall” in a statute or rule connotes the imposition of a mandatory obligation unless other language is included that evidences a clear and unequivocal intent to the contrary. See, e.g., Dorrian v. Scioto Conservancy Dist. (1971), 27 Ohio St.2d 102, 56 O.O.2d 58, 271 N.E.2d 834, paragraph one of the syllabus; State v. Pless (1996), 74 Ohio St.3d 333, 658 N.E.2d 766 (criminal statute); Lakewood v. Papadelis (1987), 32 Ohio St.3d 1, 4, 511 N.E.2d 1138, 1140-1141 (criminal rule). We have previously held that a statute or rule which uses the word “shall” in describing an act which is to be performed is not generally susceptible of a “substantial compliance” standard of interpretation. See State v. Pless at 340, 658 N.E.2d at 770.
{¶ 13} The state emphasizes the considerable discretion vested in a juvenile court when determining whether to relinquish its jurisdiction over a juvenile to the court of common pleas, and cites State v. Watson (1989), 47 Ohio St.3d 93, 547 N.E.2d 1181, in support. However, Watson does not stand for the proposition that a juvenile court has discretion to omit from the record that which is expressly required by statute to be included.
{¶ 14}
{¶ 15} Moreover, this court held unanimously in Gaskins v. Shiplevy (1995), 74 Ohio St.3d 149, 656 N.E.2d 1282, that a juvenile who alleged that he had been given no mental and physical examination prior to relinquishment of jurisdiction by a juvenile court stated a claim which, if true, demonstrated that the common pleas court that convicted him of a crime lacked jurisdiction over him. We discern no convincing reason to depart from this existing precedent in resolving the cause before us.
{¶ 16} We acknowledge that the General Assembly amended
{¶ 17} The court of appeals did not err in concluding that the juvenile court failed to accomplish a legal transfer of its jurisdiction in that there is no evidence in the record that a physical examination of Golphin was performed as required by
{¶ 18} Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
F.E. SWEENEY, PFEIFER and COOK, JJ., concur.
DOUGLAS, RESNICK and LUNDBERG STRATTON, JJ., concur in part and dissent in part.
THE STATE OF OHIO, APPELLANT, v. GOLPHIN, APPELLEE.
No. 96-2865
Supreme Court of Ohio
April 29, 1998
81 Ohio St.3d 543
ALICE ROBIE RESNICK, J., concurring in part and dissenting in part.
{¶ 19} I concur in the statement of law announced in the majority‘s opinion today, which is that a physical examination was mandatory under former
{¶ 20} The state‘s Motion to Supplement Record and for Reconsideration filed in the court of appeals clearly demonstrates that Tommie Golphin underwent two physical examinations on two different dates after he was taken into custody as a suspect in the shooting of Clinton Butler. The prosecutor‘s office did not raise the existence of the reports pertaining to the physical examinations until after the time for filing a motion for reconsideration had passed in the court of appeals. Therefore, the court of appeals was unable to consider the existence of the physical examinations, and dismissed the state‘s motion as untimely under
{¶ 21} In reaching that conclusion, the majority recounts in footnote one of its opinion a concession made by the state at oral argument before this court. In that concession, the state agreed that “it‘s not disputed” that a physical examination was not done. However, simply because the state made the tactical decision to argue before this court that substantial compliance would fulfill the terms of the physical examination statute and rule, rather than to pursue arguments based on the examinations revealed in its motion, does not change the fact that Golphin did undergo two examinations.
{¶ 22} The juvenile court judge noted in his bindover opinion the following factors that former
{¶ 23} This case presents a different scenario from that in State v. Pless (1996), 74 Ohio St.3d 333, 658 N.E.2d 766. In Pless, the statute at issue,
{¶ 24} As the dissenter at the court of appeals recognized, the juvenile court judge in this case did an extremely thorough and competent consideration of all relevant factors in reaching his decision to transfer jurisdiction. The opinion written by the juvenile court judge was a model of thoughtfulness, with the singular exception that the physical examination requirement was not specifically addressed.
{¶ 25} Because I believe that the physical examination requirement, even though mandatory under the statute and rule in effect at the time, was a hypertechnical requirement that has since been eliminated from the relevant statute and rule, I would find that the physical examinations performed in this case fulfilled the requirement. The majority acknowledges that the General Assembly amended
{¶ 26} Gaskins v. Shiplevy (1995), 74 Ohio St.3d 149, 656 N.E.2d 1282, cited by the majority, is easily distinguishable from the situation in this case. In Gaskins, 74 Ohio St.3d at 150, 656 N.E.2d at 1283, the petitioner alleged that neither a mental nor a physical examination had been done prior to the bindover. It was the possible lack of a mental examination, more than the lack of a physical examination, that imperiled the common pleas court‘s jurisdiction in Gaskins. A mental examination is an indispensable component underlying a bindover decision and clearly serves an important purpose—it aids in evaluating a juvenile‘s amenability to treatment within the juvenile justice system. See, generally, State v. Watson (1989), 47 Ohio St.3d 93, 547 N.E.2d 1181.
{¶ 27} A physical examination, on the other hand, is not always an important consideration in determining amenability. In the usual case where, as here, the physical condition of the juvenile is not raised as an issue, there is no reason for a juvenile court judge to focus on the physical examination results in reaching a bindover decision. As mentioned previously, the General Assembly has recognized that a physical examination is not indispensable to the juvenile court judge‘s bindover consideration by amending
{¶ 28} Moreover, even if we accept the majority‘s determination that no physical examination was performed based on ignoring the motion the state attempted to file in the court of appeals, there is another reason to find compliance with the requirement in this case. Golphin was examined by a psychiatrist, who is a medical doctor. Any physical impediments material to a bindover would certainly have been noted by the psychiatrist, who, with a medical degree, was capable of fulfilling the physical examination requirement.
{¶ 29} Our conclusion in this case should be the same conclusion as that reached in State v. Douglas (1985), 20 Ohio St.3d 34, 36-37, 20 OBR 282, 284-285, 485 N.E.2d 711, 713, in which this court found a bindover properly accomplished in compliance with
{¶ 30} For all the foregoing reasons, I would reverse the judgment of the court of appeals, and would remand this cause to the court of appeals for that court to consider the assignments of error found moot and not addressed in its opinion.
DOUGLAS and LUNDBERG STRATTON, JJ., concur in the foregoing opinion.
Notes
“Q: It‘s not disputed, is it, that no physical exam was done?
“A: That‘s correct, your honor.”
Subsequently the court of appeals denied the state‘s motion. As a result, the purported reports of physical examinations, although transmitted to us by the court of appeals, never became part of the record of this cause. The reports were never proffered as evidence, never accepted into evidence, and do not constitute legal proof of any fact.
We are precluded by well-established principles of appellate review from considering these documents in resolving the legal issues before us. See, e.g., State v. Phillips (1995), 74 Ohio St.3d 72, 80, 656 N.E.2d 643, 655, citing State v. Ishmail (1978), 54 Ohio St.2d 402, 8 O.O.3d 405, 377 N.E.2d 500, paragraph one of the syllabus.