STATE OF OHIO, Appellee, - vs - MICHAEL RODARIOUS SMITH aka MICHAEL SMITH, Appellant.
CASE NO. CA2020-09-101
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
8/30/2021
[Cite as State v. Smith, 2021-Ohio-2982.]
Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant Prosecuting Attorney, for appellee.
Repper-Pagan Law, Ltd., and Christopher J. Pagan, for appellant.
M. POWELL, P.J.
{¶ 1} Appellant, Michael Rodarious Smith aka Michael Smith, appeals his conviction and sentence in the Butler County Court of Common Pleas for murder.
{¶ 2} On July 11, 2019, appellant was charged by complaint in the Butler County Court of Common Pleas, Juvenile Division (“juvenile court“), with two counts of murder for the fatal shooting of Shon Walker on June 27, 2019, and one count of tampering with
{¶ 3} Appellant‘s counsel advised the juvenile court that she had discussed the purpose of a probable cause hearing with appellant and his mother and that appellant had decided to waive his right to the probable cause hearing. Upon being asked to provide a factual statement of the offenses, the prosecutor stated that appellant had shot Shon Walker multiple times with a firearm, ultimately resulting in Walker‘s death, and that he had subsequently disposed of the firearm and his clothing. The prosecutor further advised the court that the incident was on video and that a witness had identified appellant as the shooter. Following a colloquy with appellant, the juvenile court accepted his waiver and found there was probable cause to believe appellant had committed the offenses charged. The juvenile court then set bond at $1,000,000 for the murder charge, $10,000 for each firearm specification, and $10,000 for the tampering with evidence charge. The case was transferred to the Butler County Court of Common Pleas, General Division (“trial court“).
{¶ 4} Appellant was indicted in September 2019 on two counts of murder, each with a firearm specification, and one count of tampering with evidence. On August 17, 2020, pursuant to plea negotiations, appellant pled guilty to one count of murder in violation of
{¶ 5} Appellant now appeals, raising three assignments of error.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE JUVENILE COURT ERRED BY DISREGARDING SMITH‘S PROCEDURAL PROTECTIONS AT THE BINDOVER.
{¶ 8} Appellant argues the juvenile court erred in transferring the case to the general division of the common pleas court for criminal prosecution, presenting three issues for review.
{¶ 9} In his first issue for review, appellant argues that the juvenile court violated
{¶ 10} Given his murder charge and age at the time of the offenses, appellant was
{¶ 11} “[A] juvenile court at a bindover hearing need not find as a fact that the accused minor is guilty of the offense charged.” State v. Iacona, 93 Ohio St.3d 83, 93, 2001-Ohio-1292. Rather, the juvenile court need only determine whether there is probable cause to believe the juvenile committed the offenses charged. Id. The state “must provide credible evidence of every element of an offense to support a finding that probable cause exists to believe that the juvenile committed the offense before ordering mandatory waiver of juvenile court jurisdiction[.]” Id. “In meeting this standard the state must produce evidence that raises more than a mere suspicion of guilt, but need not provide evidence proving guilt beyond a reasonable doubt.” Id.
{¶ 12} We first address appellant‘s claim that the state was required to address self-defense at the probable cause hearing.
{¶ 13} “Self-defense is an affirmative defense.” State v. Jacinto, 8th Dist. Cuyahoga No. 108944, 2020-Ohio-3722, ¶ 43. Prior to March 28, 2019, a defendant had the burden of proving self-defense by a preponderance of the evidence. Id. at ¶ 44. However, on March 28, 2019, the self-defense statute was amended to shift the burden of proof to the state as follows: “If, at the trial of a person who is accused of an offense that involved the person‘s use of force against another, there is evidence presented that tends to support that the accused person used the force in self-defense, * * * the prosecution must prove beyond a reasonable doubt that the accused person did not use the force in self-defense[.]”
{¶ 14} Self-defense is a matter independent of the elements of the crime. State v. Poole, 33 Ohio St.2d 18, 19 (1973). “Self-defense seeks to relieve the defendant from culpability rather than to negate an element of the offense charged.” Id. The Ohio Supreme Court has held that “the state has no burden to disprove alternate theories of the case at a bindover proceeding.” In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, ¶ 61, citing Iacona, 93 Ohio St.3d at 96. “Determination of the merits of the competing prosecution and defense theories, both of which [are] credible, ultimately [is] a matter for the factfinder at trial.” (Emphasis deleted.) Iacona at 96. “[R]esolution of the conflicting theories of the evidence * * * is a matter for the trier of fact at a trial on the merits of the case, not a matter for exercise of judicial discretion at a bindover hearing in the juvenile court.” In re A.J.S. at 64.
{¶ 15} Thus, the state was not required to address or disprove self-defense at the probable cause hearing for purposes of establishing probable cause to believe appellant had committed murder.
{¶ 16} We now turn to appellant‘s waiver of his right to a probable cause hearing. In support of his argument that his waiver was not knowing, intelligent, and voluntary, appellant cites D.W., 2012-Ohio-4544. In that case, the Ohio Supreme Court addressed whether a juvenile may waive the amenability hearing required in discretionary bindover cases and set forth the standard for a valid waiver. The supreme court found that the waiver of an amenability hearing is among those “other rights” that may be waived with permission of the juvenile court pursuant to
{¶ 17} Regarding the standard to be applied in determining whether the waiver of an amenability hearing is valid, the supreme court held that the juvenile court must “engage in a meaningful dialogue with the juvenile” to “ensure that the juvenile fully understands, and
the juvenile court must determine that the waiver is offered knowingly, voluntarily, and intelligently. Proper determination must include a colloquy with the juvenile and must occur on the record. The colloquy allows the juvenile court to fulfill its parens patriae duty by ensuring that the juvenile fully understands and intentionally and intelligently relinquishes the right to an amenability hearing. And it allows the judge “to engage in a meaningful dialogue with the juvenile,” to guarantee that the juvenile‘s due process rights are protected.
Id. at ¶ 37, quoting In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, ¶ 107. We note that the supreme court‘s two-step process does not require that the waiver be in writing.
{¶ 18} Upon reviewing the juvenile court‘s colloquy with appellant, we find that appellant‘s waiver of his right to a probable cause hearing was made knowingly, intelligently, and voluntarily. The first step of the waiver test was plainly met as appellant, through counsel, expressly stated on the record a waiver of the probable cause hearing. D.W., 2012-Ohio-4544 at ¶ 47. Moreover, the juvenile court‘s dialogue with appellant confirmed that appellant wanted to waive the probable cause hearing and did so in consultation with counsel and his mother.
{¶ 19} The second step of the waiver test was likewise met as the juvenile court engaged in a colloquy on the record with appellant to determine that the waiver was made knowingly, intelligently, and voluntarily. Id. Specifically, the juvenile court addressed appellant and asked whether appellant had discussed the waiver of probable cause with his attorney. Appellant responded affirmatively. The juvenile court asked whether appellant understood that were the court to find probable cause, it would send the charges of murder
{¶ 20} The Tenth District Court of Appeals has held that a juvenile‘s waiver of the right to a probable cause hearing was knowing, intelligent, and voluntary following mandatory bindover hearing colloquies similar to the colloquy at bar. See State v. Johnson, 10th Dist. Franklin No. 12AP-898, 2013-Ohio-2008; State v. J.T.S., 10th Dist. Franklin No. 14AP-516, 2015-Ohio-1103. In Johnson, the juvenile court advised the juvenile that the purpose of the probable cause hearing was to determine whether trial would take place in juvenile or adult court, and that the court‘s acceptance of the juvenile‘s waiver meant the case would automatically go to adult court. The juvenile court confirmed that the juvenile had discussed the matter with counsel and that he wanted the juvenile court to accept his waiver to a probable cause hearing.
{¶ 21} In J.T.S., the juvenile court advised the juvenile that a stipulation to a finding of probable cause meant that the juvenile was “giving up” the right to have a probable cause hearing during which the state would be required to establish probable cause, and that the
{¶ 22} As was the case in J.T.S. and Johnson, the juvenile court, through its colloquy with appellant, sufficiently ensured that appellant‘s waiver of the right to a probable cause hearing was made knowingly and intelligently and was a voluntary relinquishment of a known right. The juvenile court utilized the proper inquisitional approach. There was no indication during the hearing that appellant had any intellectual or learning deficits that would have prevented his understanding of the court‘s statements. Upon the court‘s inquiry, appellant responded unequivocally that he had discussed the waiver of the probable cause hearing with his attorney, that he was satisfied with her advice, and that he had no other questions. The juvenile court was entitled to rely upon appellant‘s statements he had discussed the matter with counsel and that he was satisfied with the advice she had provided him. In re J.T.S., 2015-Ohio-1103 at ¶ 31; see also State v. Brown, 10th Dist. Franklin No. 17AP-695, 2018-Ohio-4185, ¶ 27. Thus, the record clearly indicates that appellant understood he had a right to a probable cause hearing and that he intended to waive that right. We therefore find that both D.W. requirements were met.
{¶ 23} Furthermore, appellant fails to establish any prejudice resulting from the juvenile court‘s acceptance of his waiver to a probable cause hearing. Appellant does not identify any strategic advantage he might have gained by exposing the state‘s evidence during the probable cause hearing. More significantly, appellant does not claim that probable cause was lacking or that he would not have waived the probable cause hearing had the juvenile court engaged in a more fulsome colloquy. Appellant‘s waiver of the
{¶ 24} Appellant further contends the juvenile court was obligated to provide him with a legal definition of probable cause before accepting his waiver. There is no indication in the record that appellant had an inadequate opportunity to consult with his attorney or that counsel failed to adequately explain the proceedings to appellant. Appellant was present in the courtroom as the prosecutor recited the relevant facts for the court. Once again, it was reasonable for the juvenile court to rely upon appellant‘s representation in open court that he had the opportunity to discuss the proceedings with his attorney and that he understood the right he was waiving by choosing to waive his right to a probable cause hearing. In re J.T.S., 2015-Ohio-1103 at ¶ 31.
{¶ 25} The same reasoning applies to appellant‘s contention that the juvenile court was required to fully apprise him of the structure of the probable cause hearing, the rights he had, and the consequences of the matter remaining in the juvenile court should the court find there was no probable cause. The juvenile court was entitled to rely upon appellant‘s representation that he had an opportunity to discuss the proceedings with his attorney and his negative response to the court‘s query: “Do you have any questions?” Id. at ¶ 32. See also Brown, 2018-Ohio-4185.
{¶ 26} In his second issue for review, appellant argues that the written notice of the scheduled probable cause hearing did not comply with
{¶ 27}
{¶ 28}
{¶ 29} As stated above, appellant‘s mother attended the probable cause hearing on August 21, 2019. At the beginning of the hearing, appellant‘s mother confirmed she had received a copy of the state‘s bindover motion; appellant‘s counsel advised the juvenile court she had discussed the bindover process with appellant‘s mother.
{¶ 30} In Rodriguez, this court addressed a juvenile court‘s failure to provide written notice of a probable cause hearing. We held that “while the record is devoid of any evidence indicating written notice was provided, it is obvious, nonetheless, that her legal custodians, as well as a number of her other family members, had actual notice of the bindover proceedings as they personally appeared in court in order to offer appellant their assistance, guidance, and support.” Rodriguez, 2009-Ohio-4460 at ¶ 30. “As a result, even though the juvenile court failed to provide her legal custodians with written notice as required by
{¶ 31} In light of Rodriguez and given the fact appellant‘s mother actually attended the August 21, 2019 probable cause hearing, we find no prejudicial impact resulting from the fact the notice referenced an incorrect date for the hearing and only listed appellant‘s counsel, and the fact the record does not reflect when service was perfected on appellant‘s mother. We therefore find no prejudicial error.
{¶ 32} As to the juvenile court‘s alleged failure to serve the notice upon appellant‘s father, the Ohio Supreme Court recently held that service of the
{¶ 33} The issue in Reynolds was whether both parents were required to receive notice under
R.C. 2152.12(G) does not define “parents,” and does not indicate whether both parents are required to constitute sufficient notice and satisfy due process. Although a literal reading of “parents” would seem to require notice to both parents, we find that such a reading would render the use of the term illogical under some circumstances such as where only one parent is living or the identity of one parent is unknown. Under such hypothetical circumstances, clearly notice to a single parent would be sufficient. * * * Further, that the statute states that notice “shall” be given to the “parents,” yet fails to indicate the proper procedure when notice to one parent is animpossibility, demonstrates that “parents” should not be strictly interpreted to mean both parents.
Reynolds at ¶ 11. Continuing, the court of appeals held that although “it is better to give notice to both parents when possible, notice to one parent when the other parent‘s identity or whereabouts are unknown still serves to protect the juvenile and furthers the legislative goals of
{¶ 34} Furthermore, appellant does not indicate how he was prejudiced by the lack of notice to his father. The absence of appellant‘s father from the proceedings had no effect on the outcome of the proceedings and appellant claims none. Appellant‘s mother received a copy of the bindover motion and attended the probable cause hearing. “There is no evidence that appellant‘s mother might have harbored any prejudice or ill feelings against her son that could have affected her alignment with him and compromised her duty to protect the best interests of her child.” Reynolds, 2007-Ohio-4178 at ¶ 14.
{¶ 35} In light of the foregoing, we find no prejudicial impact resulting from the juvenile court‘s failure to provide appellant‘s father with written notice of the August 21, 2019 probable cause hearing, and therefore find no prejudicial error.
{¶ 36} In his third issue for review, appellant argues that the cumulative effect of the errors described above violated his due process rights and deprived him of a fair probable cause hearing.
{¶ 37} Under the doctrine of cumulative errors, a reviewing court “will reverse a conviction when the cumulative effect of errors deprives a defendant of a fair trial even though each of the instances of trial-court error does not individually constitute cause for reversal.” State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, ¶ 140. Appellant cites no authority for the proposition that the cumulative error doctrine applies to juvenile bindover
{¶ 38} Appellant‘s first assignment of error is overruled.
{¶ 39} Assignment of Error No. 2:
{¶ 40} THE TRIAL COURT ERRED BY SENTENCING SMITH TO LIFE IMPRISONMENT WITH THE POSSIBILITY OF PAROLE UNDER THE CHILD-RAPE STATUTE, AND BY IMPOSING LIFETIME PAROLE SUPERVISION.
{¶ 41} Appellant argues, and the state concedes, that in sentencing him to 15 years to life in prison for murder, the trial court wrongly referred to
{¶ 42} A trial court speaks through its journal entry. State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, ¶ 39. The sentencing entry provides that appellant was sentenced to 15 years to life in prison “pursuant to
{¶ 43} We find that the two errors made by the trial court in its sentencing entry are
{¶ 44} Appellant‘s second assignment of error is sustained.
{¶ 45} Assignment of Error No. 3:
{¶ 46} THE JUVENILE COURT SET AN UNCONSTITUTIONAL BOND.
{¶ 47} As stated above, the juvenile court set bond at $1,000,000 for the murder charge, $10,000 for each firearm specification, and $10,000 for the tampering with evidence charge. Appellant argues the juvenile court erred by setting bond for the firearm specifications as they are not criminal offenses but sentence enhancements, and by imposing a cash-only bond which is unconstitutional under the Ohio Constitution.
{¶ 48} Appellant is correct that a firearm specification is a sentence enhancement that attaches to a predicate offense, not a separate criminal offense. State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, ¶ 16-17. Appellant is also correct that cash-only bail is unconstitutional under
{¶ 49} Judgment reversed in part, and remanded with instructions to the trial court to correct the misstated statutory provision regarding appellant‘s sentence for murder and the improper imposition of lifetime parole supervision by the Adult Parole Authority. In all other respects, the judgment of the trial court is affirmed.
S. POWELL and HENDRICKSON, JJ., concur.