State v. HopeState v. Hope
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 26, 2022
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Eric Collins, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Timothy B. Hackett, Assistant State Public Defender, for appellant.
{¶ 1} Marshall Hope appeals his convictions in three separate cases, involving felony assault, robbery, and various weapons violations. In this appeal, Hope claims that the juvenile court failed to render a valid probable-cause determination bеfore transferring the case to the general division of the common pleas court (“general division“) under
{¶ 3} At an initial hearing before the magistrate on two of the three cases, Hope expressed his understanding that he was not supposed to be in juvenile court because of his prior felony convictions, repeatedly interrupting the proceedings to ask about being returned to “the county.” At a subsequent hearing before the juvenile court, the third case had just been initiated and Hope was being arraigned on that case along with continuing the proceedings on the two earlier cases. The prosecutor introduced the certified entries of the convictions for the 2019 cases in suppоrt of the motion to transfer the cases. Hope conceded that he was “the individual who was found guilty [in the 2019 cases] in the court of common pleas” and that he “receive[d] a sentence to * * * Lorain Correctional Institute [sic]” as a result. Hope then expressly consented to the state‘s motion to transfer the three cases.
{¶ 4} The juvenile court “noted that based on [Hope‘s] guilty finding on the cases that were transferred from this Court pursuant to 2151.12 and then he was subsequently, again, found guilty of those offenses, he is no longer a child under the definition of the statute and therefore not subject to the Juvenile Court jurisdiction.” This conclusion is in line with
{¶ 5} Instead of memorializing the lack of jurisdiction as the basis for the transfer, the juvenile court issued a journal entry in each of Hope‘s three cases, transferring them to the general division and erroneously stating that Hope “stipulates to a finding of probable cause to all counts in this matter.” Each journal entry also states that “[u]pon the conclusion of all evidence presented * * * the Court finds probable cause to believe that [Hope] committed” the acts alleged in the juvenile complaints. The juvenile court thus purported to exercise judicial authority it already claimed to lack, but that was an error in drafting, not substance. The hearing transcript reflected the trial court‘s decision to transfer the case for the want of jurisdiction and that it never considered a probable-cause determination or asked for any stipulations to that effect.
{¶ 6} This was purely an error in journalizing what had occurred. As Hope recognized after the fact, at his change-of-plea hearing in the general division after the cases were transferred and upon the trial court inquiring as to the transfer, “[t]here was no probable cause hearing or amenability. Just a hearing to state that he was previously convicted as an adult.” Thus, the parties and the trial court in the
{¶ 7} In Cuyahoga C.P. No. CR-20-653065, Hope pleaded guilty to having weapons while under disability, a third-degree felony, in violation of
{¶ 8} It is from these convictions that Hope appeals and advances four assignments of error: (1) the trial court erred by failing to conduct a valid probable-cause hearing and transferring the case to the general division regardless of the fact that
{¶ 9} Hope‘s argument with respect to the validity of the mandatory transfer without an amenability hearing, as advanced in the second assignment of error, is based on State v. Aalim, 150 Ohio St.3d 463, 2016-Ohio-8278, 83 N.E.3d 862, which was vacated and supplanted by Aalim II. We have no authority to overrule Aalim II, in which the Ohio Supreme Court declared that mandatory transfers of juvenile cases to a criminal court are not unconstitutional based on the lack of an amenability hearing. Id. at ¶ 38. As Hope acknowledges, the Ohio Supreme Court has accepted State v. Bunch, 7th Dist. Mahoning No. 18 MA 0022, 2021-Ohio-1244, ¶ 27-32, for review, including a proposition of law seeking to once again revisit the issues presented in the Aalim cases regarding whether amenability hearings are required before any case is transferred from the juvenile court to a criminal court. State v. Bunch, 163 Ohio St.3d 1501, 2021-Ohio-2307, 170 N.E.3d 889. Unless or until the Ohio Supreme Court addresses Aalim II, we are duty bound to follow it. With no other arguments presented for our review, we must overrule the second assignment of error. App.R. 16(A)(7).
{¶ 11} Turning to the more substantive arguments, in the first and third assignments of error, Hope claims that a probable-cause determination was required under
The juvenile court also shall transfer a case in the circumstances described in division (C)(5) of section 2152.02 of the Revised Code or if * * * [a] complaint is filed against a child who is eligible for a discretionary transfer under section 2152.10 of the Revised Code and who previously was convicted of or pleaded guilty to a felony in a case that was transferred to a criminal court.
Under
{¶ 12} Although the legislature has generally defined the term “child” to include all persons under the age of eighteen, see
{¶ 13} We must give meaning to statutory language as written and cannot interpret the statutes in such a way as to render a provision inоperable. State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶ 21; Gerrity v. Chervenak, 162 Ohio St.3d 694, 2020-Ohio-6705, 166 N.E.3d 1230, ¶ 14, citing Commerce & Industry Ins. Co. v. Toledo, 45 Ohio St.3d 96, 102, 543 N.E.2d 1188 (1989), and
{¶ 14} Thus, under
{¶ 15} Our focus must be on the jurisdictional issue in this case, especially since that was the focus of the juvenile court. State ex rel. McGinty v. Eighth Dist. Court of Appeals, 142 Ohio St.3d 100, 2015-Ohio-937, 28 N.E.3d 88, ¶ 13. “A court possessed of general subject-matter jurisdiction can determine its own jurisdiction, and a party contesting that jurisdiction has an adequate remedy by appeal or other postjudgment action. State ex rel. Bell v. Pfeiffer, 131 Ohio St.3d 114, 2012-Ohio-54, 961 N.E.2d 181, ¶ 19, citing State ex rel. Pruitt v. Donnelly, 129 Ohio St.3d 498, 2011-Ohio-4203, 954 N.E.2d 117, ¶ 2; Salloum v. Falkowski, 151 Ohio St.3d 531, 2017-Ohio-8722, 90 N.E.3d 918, ¶ 10. Although the juvenile court initially possessed jurisdiction to determine whether its jurisdiction was properly invoked, it was confined to that review. Salloum at ¶ 11.
{¶ 16} Although the underlying proceedings began in juvenile court, the mandatory transfer under
{¶ 17} We, therefore, need not consider the merits of Hope‘s assigned errors, which completely ignore the jurisdictional limitation and focus on the mechanics of the probable-cause determination the juvenile court lacked jurisdiction to resolve. App.R. 16(A)(7). Hope has not challenged the juvenile court‘s conclusion that it lacked jurisdiction over the three cases - the only issue presented and resolved in juvenile court. The transfer to the general division was effectively a ministerial task limited to transferring the cases to the only court with jurisdiction over the criminal charges.
{¶ 18} Although Hope has not discussed, much less challenged, the jurisdictional question, we have a duty to independently review the juvenile court‘s jurisdiction over the matter. In re A.W., 160 Ohio St.3d 183, 2020-Ohio-1457, 155 N.E.3d 819, ¶ 7 (sua sponte vacating the adult portion of the juvenile disposition after concluding that the juvenile court lacked jurisdiction).2 In A.W., the parties focused on the invocation of a serious-youthful-offender disposition following a juvenile-delinquency proceeding. Id. at ¶ 1. The appellate court affirmed the invocation under the juvenile court‘s broad рowers. Id. at ¶ 6. The Ohio Supreme Court accepted a single proposition of law for review: “the adult portion of an SYO sentence cannot be invoked for failure to complete [DYS] programming unless the offender was given notice that the failure to comply could trigger invocation of the adult sentence and it was possible for the offender to have completed it.” The court, however, sua sponte determined that the juvenile court lacked jurisdiction over the offender, and the disposition was vacated despite the issuе having never been identified until after the Ohio Supreme Court accepted the proposition of law for review. Id. at ¶ 7-8. Under A.W., we must review the juvenile court‘s jurisdiction as a preliminary matter.
{¶ 19} Because Hope has not addressed the correct procedural posture of this case, we must overrule the first and third assignments of error.
{¶ 20} Notwithstanding, an argument has been presented based on a recent decision from the Ohio Supreme Court potentially impacting resolution of this appeal. In State v. Smith, Slip Opinion No. 2022-Ohio-274, the Ohio Supreme Court broadly opined that all mandatory trаnsfers must be based on a probable-cause determination before defining
{¶ 21} Further, Smith‘s overly broad statement regarding the necessity of a probable-cause determination for all mandatory transfers is not novel, although it is an over-simplification of complicated statutory law. Hope had the opportunity to present an argument based on similar pronouncements and failed to do so in his appellate briefing. See, e.g., Steele v. Harris, 161 Ohio St.3d 407, 2020-Ohio-5480, 163 N.E.3d 565, ¶ 11 (“If a child appears to be eligible for mandatоry transfer, the juvenile court must conduct a hearing to determine whether the child meets the eligibility criteria and whether there is probable cause to believe that the child committed the act charged.
{¶ 22} Notwithstanding, and in light of the repeated use of the broad language from Smith, Slip Opinion No. 2022-Ohio-274, it bears noting that Smith does not impact the outcome herein. There are two types of transfers from juvenile court to the general division. One is mandatory, and the other is discretionary. State v. Beauregard, 8th Dist. Cuyahoga No. 101418, 2015-Ohio-1021, ¶ 12. In some situations, a mandatory transfer may hinge on the probable-cause determination.
{¶ 23} On this point, Hope seeks to insert such a requirement into the otherwise unambiguous language of
{¶ 25} In Smith, the Ohio Supreme Court оpined that probable cause is part of the procedure in some mandatory transfer cases, seemingly giving credence to Hope‘s unsupported claim that
{¶ 26} Thus, according to the Ohio Supreme Court, the “critical determination” is whether the juvenile court “relinquishes” its jurisdiction over a “child.” If the juvenile court does not possess jurisdiction over the case under the combined application of
{¶ 27} Smith also failed to address
{¶ 28} In fact, the legislature acknowledged the two differing requirements for a mandatory transfer under
{¶ 29} We have been down this path with overly broad statements from the Ohio Supreme Court. In State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23, the Ohio Supreme Court broadly concluded that “it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors in
{¶ 30} Smith involved a discretionary transfer proceeding, Smith, Slip Opinion No. 2022-Ohio-274 at ¶ 11 and 23, and as a result the decision has no bearing on mandatory transfer proceedings, especially those involving a minor who has previously been convicted of criminal offenses in the general division under
{¶ 31} Under Jones‘s unambiguous pronouncement, if the Ohio Supreme Court makes statements in passing that are not related to the issue accepted for review and contravene unambiguous statutory language, we are required to disregard them. Jones at ¶ 27-29. The conclusion in Smith with respect to what aspect of the case is transferred following a probable-cause determination is not applicable to the issues in this appeal involving whether a probable-cause determination is required under
{¶ 32} And finally, the only remaining, arguable support for requiring a probable-cause determination for situations involving
{¶ 33} If the juvenile offender is not considered a “сhild,” the juvenile court lacks jurisdiction, and if the offender is considered a “child” under
{¶ 34} Even if the juvenile court concluded that there was no probable cause to believe the juvenile committed the acts, under the plain language of
{¶ 35} It is not this court‘s function to rewrite statutory language, nor can the dicta from Smith support a conclusion in support of Hope‘s cursory analysis. And even if we offered the parties the opportunity to brief the issue, Smith would be inapplicable and the result the same. Whether the transfer in this case occurred under
{¶ 36} We cannot provide Hope his requested relief of remanding this matter to the juvenile court fоr substantive proceedings. The juvenile court determined that it lacked jurisdiction over the cases, and therefore, the mandatory transfer under
{¶ 37} Having overruled the assigned errors, and because Hope does not otherwise challenge his felony convictions in the underlying cases, we affirm the convictions.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Proсedure.
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE
JAMES A. BROGAN, J.,* CONCURS;
LISA B. FORBES, J., CONCURS IN JUDGMENT ONLY
*(Sitting by assignment: James A. Brogan, J., retired, of the Second District Court of Appeals.)
N.B. Judge Lisa B. Forbes is constrained to apply Delvallie. For a full explanation, see State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470 (Forbes, J., dissenting).