STATE OF OHIO v. NICHOLAS STARLING
Appellate Case No. 2018-CA-34
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
April 19, 2019
2019-Ohio-1478
WELBAUM, P.J.
Trial Court Case No. 2017-CR-336 (Criminal Appeal from Common Pleas Court)
OPINION
Rendered on the 19th day of April, 2019.
ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark County Prosecutor‘s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee
TIMOTHY B. HACKETT, Assistant Ohio Public Defender, Atty. Reg. No. 0093480, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215 Attorney for Defendant-Appellant
Facts and Course of Proceedings
{¶ 2} In 2016, a then sixteen-year-old Starling was charged in the Juvenile Division of the Clark County Court of Common Pleas with acts that if committed by an adult would constitute murder in violation of
{¶ 3} After Starling was charged in the juvenile court, the State moved for Starling‘s case to be transferred to adult court. The matter was then scheduled for a probable cause hearing. Following that hearing, the juvenile court determined there was sufficient evidence to find probable cause to believe that Starling committed the criminal acts as charged. Given Starling‘s age and the juvenile court‘s probable cause finding, the juvenile court transferred Starling‘s case to adult court pursuant to
{¶ 4} Following Starling‘s transfer to adult court, the Supreme Court of Ohio issued
{¶ 5} Once Starling‘s case was transferred back to juvenile court, the juvenile court reaffirmed its probable cause finding and scheduled the matter for an amenability hearing. The amenability hearing was continued several times so that psychological experts could evaluate Starling. Meanwhile, the Supreme Court of Ohio accepted Aalim I for reconsideration and stayed the execution of judgment. Due to the uncertainty surrounding the holding in Aalim I, the parties agreed to an additional 60-day continuance in hopes that the Supreme Court would have by then clarified its position on the constitutionality of the mandatory-transfer statutes.
{¶ 6} Shortly after the parties entered the agreed continuance, the Supreme Court issued its opinion in State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883 (”Aalim II“). The Supreme Court‘s decision in Aalim II vacated Aalim I and upheld the constitutionality of the mandatory-transfer statutes. In light of the Supreme Court‘s decision in Aalim II, the State moved for the juvenile court to transfer Starling‘s case back to adult court pursuant to the mandatory transfer provision in
{¶ 8} After entering his pleas, Starling requested the trial court to order an evaluation to determine his competency to stand trial. Starling also filed a motion to suppress certain evidence and inculpatory statements that Starling made to detectives. During the investigation of H.‘s death, Starling was twice interviewed by detectives without any guardian or attorney present. Both interviews occurred on the day H. was found dead.
{¶ 9} At the first interview, Starling was not given Miranda warnings; however, it is undisputed that Starling made no inculpatory statements during the initial interview. Starling did, however, consent to detectives searching his bedroom and cell phone. Starling was permitted to go home after the first interview, but was called back four hours later for a second interview.
{¶ 10} At the second interview, detectives Mirandized Starling after asking him a few preliminary questions. Upon being Mirandized, Starling stated that he understood his Miranda rights. Starling also signed a written waiver of those rights. After his Miranda waiver, Starling told detectives that he and H. had an argument over candy two days earlier. Although Starling initially denied knowledge of how H. was killed, upon further questioning, Starling confessed to entering H.‘s bedroom, grabbing a baseball bat,
{¶ 11} As part of his motion to suppress, Starling claimed that his confession was elicited in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Specifically, Starling argued that his youth, inexperience, and learning disabilities prevented his confession from being voluntarily entered. However, before the trial court ruled on the motion to suppress, Starling entered into a plea agreement with the State and pled guilty to murder in violation of
{¶ 12} After accepting Starling‘s guilty plea, the trial court proceeded immediately to sentencing. During sentencing, the parties agreed that a prison sentence of 15 years to life was mandatory for Starling‘s offense. Due to the mandatory nature of Starling‘s sentence, the trial court ordered Starling to serve 15 years to life in prison.
{¶ 13} Starling now appeals from his conviction, raising four assignments of error for review.
First Assignment of Error
{¶ 14} Under his First Assignment of Error, Starling contends that his trial counsel provided ineffective assistance by failing to file a motion to suppress at the probable cause hearing in juvenile court. Starling claims that his trial counsel should have moved to suppress his confession based on the same argument he raised in the motion to suppress
{¶ 15} Alleged instances of ineffective assistance of trial counsel are reviewed under the two-pronged analysis set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To prevail on an ineffective assistance claim, a defendant must establish: (1) that his or her trial counsel‘s performance was deficient and (2) that the deficient performance resulted in prejudice. Strickland at paragraph two of the syllabus; Bradley at paragraph two of the syllabus. The failure to make a showing of either deficient performance or prejudice defeats a claim of ineffective assistance of counsel. Strickland at 697.
{¶ 16} To establish deficient performance, it must be shown that trial counsel‘s performance fell below an objective standard of reasonable representation. Id. at 688. In evaluating counsel‘s performance, “a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.‘” Id. at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).
{¶ 17} To establish prejudice, the defendant must demonstrate that there is “a
{¶ 18} “The failure to file a suppression motion is not per se ineffective assistance of counsel.” State v. Wilson, 2d Dist. Clark No. 08CA0045, 2009-Ohio-2744, ¶ 11, citing State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000). Accord State v. Thomas, 2d Dist. Clark No. 2010 CA 48, 2011-Ohio-1987, ¶ 15. “Rather, trial counsel‘s failure to file a motion to suppress constitutes ineffective assistance of counsel only if the failure to file the motion caused Defendant prejudice; that is, when there is a reasonable probability that, had the motion to suppress been filed, it would have been granted.” (Citations omitted.) Wilson at ¶ 11; State v. Nields, 93 Ohio St.3d 6, 34, 752 N.E.2d 859 (2001).
{¶ 19} The State claims that Starling waived his ineffective assistance claim by pleading guilty to murder in adult court. In support of that argument, the State relies on the well-established principle that “[a] guilty plea waives the right to allege ineffective assistance of counsel, except to the extent the errors caused the plea to be less than knowing and voluntary.” State v. King, 2d Dist. Montgomery No. 23325, 2010-Ohio-2839, ¶ 11, citing State v. Spates, 64 Ohio St.3d 269, 595 N.E.2d 351 (1992). The State maintains that Starling‘s ineffective assistance claim is waived because he does not contend that trial counsel‘s failure to file a motion to suppress at the probable cause hearing caused his guilty plea to be less than knowing and voluntary.
{¶ 21} When a juvenile court improperly transfers jurisdiction over a juvenile to adult court, any subsequent conviction in adult court is void for lack of jurisdiction. State v. Washington, 2d Dist. Montgomery No. 20226, 2005-Ohio-6546, ¶ 14, citing State v. Wilson, 73 Ohio St.3d 40, 44, 652 N.E.2d 196 (1995). “Because a [transfer] proceeding pertains to the jurisdiction of the common pleas court, some courts have held that challenges to [a] juvenile court‘s decision with respect to the
{¶ 22} But other courts, including this one, have held that constitutional challenges to juvenile transfer proceedings are waived when the defendant pleads guilty and does not contest validity of his plea. See, e.g., State v. Brookshire, 2d Dist. Montgomery No. 25853, 2014-Ohio-1971, ¶ 29; State v. Bradford, 5th Dist. Stark No. 2013 CA 00124, 2014-Ohio-904, ¶ 76-79; State v. Quarterman, 9th Dist. Summit No. 26400, 2013-Ohio-3606, ¶ 3-6 (finding defendants were prevented from arguing on appeal that
{¶ 23} In this case, Starling‘s ineffective assistance claim indirectly attacks the jurisdiction of the adult court. Specifically, Starling argues that if his trial counsel had, at the probable cause hearing, filed a motion to suppress his confession, his confession would have been suppressed and there would have been no basis for the juvenile court to find probable cause to believe he committed the criminal acts in question. Without a probable cause finding, Starling maintains that there would have been no basis for his mandatory transfer to adult court under
{¶ 24} Assuming, arguendo, that Starling‘s guilty plea did not waive his ineffective assistance of counsel claim, we nevertheless find no merit to his claim. See Legg, 2016-
{¶ 25} As previously noted, Starling‘s probable cause hearing was held pursuant to
{¶ 26} “[A] probable cause hearing held before a juvenile court‘s transfer to adult court is a preliminary, non-adjudicatory proceeding[.]” Matter of B.W., 2017-Ohio-9220, 103 N.E.3d 266, ¶ 18 (7th Dist.), citing Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), fn. 18, and State v. Carmichael, 35 Ohio St.2d 1, 7-8, 298 N.E.2d 568 (1973). Accord State v. Gilbert, 6th Dist. Lucas No. L-03-1273, 2005-Ohio-2350, ¶ 11; In re A.M., 139 Ohio App.3d 303, 308, 743 N.E.2d 937 (8th Dist. 2000); State v. Whisenant, 127 Ohio App.3d 75, 85, 711 N.E.2d 1016 (11th Dist. 1998). This proceeding is non-adjudicatory because “the juvenile court‘s function is not to determine whether the juvenile is guilty of the charge[,] but is to determine whether there is probable cause to believe the juvenile is guilty.” (Emphasis omitted.) B.W. at ¶ 18, citing State v. Iacona, 93 Ohio St.3d 83, 93, 752 N.E.2d 937 (2001).
{¶ 27} Because a probable cause hearing is non-adjudicatory, the evidence presented at a probable hearing need not meet the same rigorous standards for admissibility at trial. See Whisenant at 85, quoting In re Ralph M., 211 Conn. 289, 559 A.2d 179 (1989) (“‘[statutory and] constitutional questions concerning the admissibility of [a juvenile‘s] statements raised by the [state], while relevant at a later adjudicatory proceeding, are not appropriate for resolution at a transfer [i.e., bindover] hearing‘“). See also B.W. at ¶ 41, 48 (holding that the confrontation clause standards for the admissibility of evidence and the Ohio Rules of Evidence do not apply to probable cause hearings that are held prior to transferring a juvenile to adult court); State v. Grays, 1st Dist. Hamilton No. C-790914, 1981 WL 9566, *1 (Jan. 14, 1981) (“it cannot seriously be argued that testimony inadmissible at trial under the rules of evidence cannot be considered in a preliminary proceeding such as [a probable cause hearing in juvenile court]“). See generally Brinegar v. United States, 338 U.S. 160, 174, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (discussing the different standards and latitude allowed in determining probable cause versus guilt and indicating a lesser standard is required for probable cause).
{¶ 28} In Whisenant, the Eleventh District Court of Appeals specifically noted that because juvenile probable cause hearings are not adjudicatory in nature, “statutory and constitutional questions concerning the admissibility of evidence are premature and need not be addressed.” Whisenant at 85. Based on that reasoning, the court in Whisenant concluded that “[f]undamental fairness and due process are not violated by the juvenile court‘s failure to rule on or to suppress evidence obtained in alleged violation of Miranda in [a probable cause/bindover proceeding].” Id. Therefore, Whisenant stands for the proposition that evidence that might otherwise be suppressed at trial on the basis of a Miranda violation is nevertheless admissible during a probable cause hearing held in juvenile court.
{¶ 30} Although the Supreme Court of Ohio has made it clear that “the juvenile court must evaluate the quality of the evidence presented by the state in support of probable cause as well as any evidence presented by the respondent that attacks probable cause[,]” Iacona, 93 Ohio St.3d at 93, citing Kent v. United States, 383 U.S. 541, 563, 86 S.Ct. 1045, 16 L.Ed.2d 84, such an evaluation does not include entertaining motions to suppress. Mitchell at 450-451. In Mitchell, the Supreme Court noted that only evidence that is “clearly excludable under the rules of evidence prevailing in criminal trials” should, upon appropriate objection, be excluded by a magistrate when determining whether there is probable cause to believe a crime has been committed, but that such evidence may never be suppressed. Id. at 451.
{¶ 31} After reviewing the video evidence of Starling‘s confession, we do not find that the confession was clearly excludable. The confession was made while Starling
{¶ 32} Based on the foregoing, we find that filing a motion to suppress for purposes of Starling‘s probable cause hearing would have been premature and improper. Therefore, trial counsel‘s decision not to file a motion to suppress at the probable cause hearing was warranted and a matter of sound trial strategy that cannot serve as the basis for an ineffective assistance claim. Accordingly, based on the facts and circumstances here, Starling has failed to establish deficient performance on the part of his trial counsel.
{¶ 33} Starling has also failed to establish that he was prejudiced by trial counsel‘s failure to file a motion to suppress. Regardless of any potential Miranda violation, it would have been inappropriate for the juvenile court to suppress Starling‘s confession when making its probable cause determination. This is because, as noted above, the admissibility of Starling‘s confession was not yet ripe for review at the non-adjudicatory probable cause hearing. Therefore, given the facts and circumstances of this case, there is not a reasonable probability that the juvenile court would have granted a motion to suppress at that stage of the proceedings.
{¶ 34} Starling‘s First Assignment of Error is overruled.
{¶ 35} Under his Second Assignment of Error, Starling challenges the juvenile court‘s probable cause determination that was made pursuant to
{¶ 36} “[A] juvenile court‘s probable-cause determination in a mandatory-bindover proceeding involves questions of both fact and law, and thus, we defer to the trial court‘s determinations regarding witness credibility, but we review de novo the legal conclusion whether the state presented sufficient evidence to demonstrate probable cause to believe that the juvenile committed the acts charged.” A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, at ¶ 51.
{¶ 37} “‘[T]he 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 pursuant to [
{¶ 38} As previously noted, Starling was charged in the juvenile court with
{¶ 39} In an effort to establish probable cause for the charges against Starling, the State presented the testimony of Detective Ronald Jordan and Sergeant Jeffrey Flores of the Springfield Police Department. The State also presented the testimony of Dr. Mary Elizabeth Goolsby of the Coroner‘s Office. In addition, the State presented a video recording of the second interview Starling had with detectives and the written Miranda waiver signed by Starling. The State also presented photographs of Starling‘s residence, H.‘s deceased body, the murder weapons, and H.‘s autopsy.
{¶ 40} At the probable cause hearing, Detective Jordan testified that he conducted Starling‘s second interview and that Starling confessed to killing H. Both the video recording of the second interview and Jordan‘s testimony establish that Starling told Jordan he entered H.‘s bedroom, grabbed a baseball bat, and struck H. in the head 14 to 15 times while H. was lying in bed asleep. After Starling admitted to hitting H. with the baseball bat, Starling told Jordan that H. began making a weird sound. In order to stop the sound, Starling told Jordan that he went into the kitchen, grabbed a knife from the butcher block, and stabbed H. in the neck two or three times.
{¶ 42} To corroborate Starling‘s confession, the State presented Sergeant Flores, who testified to discovering a baseball bat covered in blood on the other side of a fence located in the backyard of Starling‘s residence. In addition to Sergeant Flores‘s testimony, Detective Jordan testified to discovering a knife that appeared to have some blood on it inside Starling‘s computer bag.1 Jordan testified that both the baseball bat and the knife were sent to the Bureau of Criminal Investigation for DNA testing and that the test results were pending.
{¶ 43} Detective Jordan also testified that he reviewed video footage taken from a surveillance system inside Starling‘s residence between approximately 9 p.m. and 6 a.m. on the night of H.‘s murder. Jordan testified that the video footage showed Starling leaving his bedroom and going toward the area of H.‘s bedroom. Jordan also testified that the video footage later showed Starling leaving the area of H.‘s bedroom and then entering the bathroom for a significant period of time. Although Jordan testified that he could not see whether Starling was carrying a knife due to the angle of the camera, Jordan nevertheless testified that the video footage was consistent with Starling‘s confession. Jordan also testified that no other person was seen on the video entering the residence
{¶ 44} The testimony of Dr. Goolsby, the coroner who performed the autopsy on H.‘s body, also corroborated Starling‘s confession. Goolsby testified that the cause of H.‘s death was blunt force injuries to the head and multiple sharp force injuries to the neck. Goolsby testified that the injuries to H.‘s head were possibly consistent with being inflicted by a baseball bat and that H. was struck in the head more than twice. Goolsby also testified that the injuries to H.‘s neck were possibly consistent with being stabbed with a knife.
{¶ 45} Based on the foregoing evidence, we find that the State presented sufficient evidence of probable cause to believe that Starling murdered H. and tampered with the murder weapon evidence. That is, the evidence presented by the State raised more than a mere suspicion of Starling‘s guilt. Starling‘s recorded confession combined with the testimony concerning the bloody baseball bat, knife, surveillance video, and the nature of H.‘s injuries indicated that there was a fair probability that Starling committed the criminal acts in question.
{¶ 46} Starling‘s claim that the probable cause determination was otherwise against the manifest weight of the evidence also lacks merit. “[O]nce the State has established probable cause as to each element of the offense charged, the State has satisfied its burden, and the juvenile court must bindover the case.” State v. Hairston, 10th Dist. Franklin No. 08AP-735, 2009-Ohio-2346, ¶ 19, citing A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, at ¶ 46, citing Iacona, 93 Ohio St.3d at 93, 95. “[T]he state has no burden to disprove alternate theories of the case at a bindover proceeding.” A.J.S. at ¶ 61, citing Iacona at 96. Accord In re R.N., 6th Dist. Lucas No. L-17-1301, 2018-Ohio-5006, ¶ 16. Rather, “[t]hat question would be reserved for ultimate adjudication by the trier-of-fact at trial in the general division of the common pleas court.” Hairston at ¶ 19, citing A.J.S.. Therefore, based on these principles, a manifest weight analysis has no place in reviewing a juvenile court‘s probable cause determination.
{¶ 47} Starling‘s Second Assignment of Error is overruled.
Third Assignment of Error
{¶ 48} Under his Third Assignment of Error, Starling contends that when his case was transferred back to juvenile court pursuant to Aalim I, 150 Ohio St.3d 463, 2016-Ohio-8278, 83 N.E.3d 862, the juvenile court violated his right to due process by delaying his amenability hearing until the Supreme Court of Ohio issued its opinion vacating Aalim I in Aalim II, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883. Starling also contends that his trial counsel was ineffective in failing to object to the delay. We disagree.
{¶ 49} In Aalim I, the Supreme Court of Ohio declared that due process requires an amenability hearing to be held before any juvenile is transferred to adult court. Id. at ¶ 20, 24-25. Because the mandatory-transfer statutes,
{¶ 50} Aalim I was issued approximately one month after the juvenile court initially ordered the mandatory transfer of Starling‘s case to adult court pursuant to
{¶ 51} On remand, the juvenile court issued an entry that reiterated its finding of probable cause and scheduled the matter for an amenability hearing on February 2, 2017. Although Starling had previously undergone a psychological evaluation on the issue of amenability, the State filed a motion to continue the amenability hearing so that Starling could undergo a second psychological evaluation by a different expert. Starling opposed the motion, but the juvenile court ultimately granted the State‘s request and rescheduled the amenability hearing for March 7, 2017.
{¶ 52} Shortly after the continuance was granted, on February 22, 2017, the Supreme Court accepted a motion filed by the State to reconsider and stay the court‘s judgment in Aalim I. Despite the stay of judgment in Aalim I, the parties in Starling‘s case agreed to proceed with the March 7, 2017 amenability hearing. Starling thereafter moved the juvenile court for another continuance of the amenability hearing so that a third psychological evaluation could be conducted. The motion was sustained and the juvenile court continued the amenability hearing to April 6, 2017. Starling then requested a third continuance because his expert could not complete the evaluation by the scheduled hearing date. That request was also sustained, and the amenability hearing
{¶ 53} The May 11, 2017 amenability hearing was vacated after both parties agreed to continue the hearing for an additional 60 days. The parties agreed to the 60-day continuance in hopes that the Supreme Court would have by then clarified its position on the mandatory-transfer statutes. Shortly after the parties’ agreement, the Supreme Court issued Aalim II, which vacated Aalim I. The Supreme Court concluded in Aalim II that the mandatory-transfer statutes,
{¶ 54} Following the decision in Aalim II, the State moved for the juvenile court to transfer Starling‘s case back to adult court pursuant to the mandatory transfer provision in
{¶ 55} As previously noted, Starling claims that the juvenile court‘s decision to delay the amenability hearing violated his right to due process. “The touchstone of due process is fundamental fairness.” State v. Salmons, 2d Dist. Champaign No. 2003CA21, 2004-Ohio-3773, ¶ 11, quoting State v. Mynhier, 146 Ohio App.3d 217, 221, 765 N.E.2d 917 (1st Dist. 2001), overruled on other grounds, State v. Jackson, 1st Dist. Hamilton No. C-140384, 2015-Ohio-2171, ¶ 14. “Whether appellant was afforded due process, or fundamental fairness, is highly dependent upon the particular circumstances of the situation.” State v. Crist, 2d Dist. Montgomery No. CA 9624, 1987 WL 14272, *2 (July 10, 1987).
{¶ 56} Here, the delay in holding Starling‘s amenability hearing was due to the juvenile court‘s granting four continuances, two of which were requested by Starling, and one of which was agreed to by the parties. “The grant or denial of a continuance is a matter that is entrusted to the broad, sound discretion of the trial judge” State v. Harmon, 2d Dist. Clark No. 09CA0035, 2010-Ohio-836, ¶ 7, quoting State v. Unger, 67 Ohio St.2d 65, 423 N.E.2d 1078 (1981), syllabus.
{¶ 57} In exercising its discretion, the juvenile court granted the first three continuances so that the parties could obtain psychological evaluations for the amenability hearing. The fourth continuance was granted so that the parties could await the outcome of Aalim II. Under these circumstances, we do not find that the continuances were an abuse of discretion or that they were fundamentally unfair so as to violate Starling‘s right to due process.
{¶ 58} Starling also claims that his trial counsel was ineffective in agreeing to a 60-day continuance of the amenability hearing for purposes of awaiting the Supreme Court‘s decision in Aalim II. According to Starling, his trial counsel should have objected to any further delay and pushed for the amenability hearing to take place under the authority of Aalim I, regardless of the stay that was placed on that judgment. But, as we previously discussed, to prevail on an ineffective assistance claim, a defendant must establish: (1) that his or her trial counsel‘s performance was deficient and (2) that the deficient performance resulted in prejudice. Strickland, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, at paragraph two of the syllabus; Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, at paragraph two of the syllabus. Starling has established neither, thus his
{¶ 59} With regard to deficient performance, the fact that trial counsel agreed to a 60-day continuance of the amenability hearing in hopes that the Supreme Court would have by then clarified its position on the mandatory-transfer statutes was a matter of trial strategy that cannot form the basis of an ineffective assistance claim. State v. Wynn, 2d Dist. Montgomery No. 25097, 2014-Ohio-420, ¶ 90, quoting State v. Warner, 8th Dist. Cuyahoga No. 95750, 2012-Ohio-256, ¶ 11, citing State v. Pasqualone, 121 Ohio St.3d 186, 2009-Ohio-315, 903 N.E.2d 270 and State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263 (“the decision whether to request a trial continuance is debatable, and involves a strategic choice of counsel that falls ‘within the realm of trial strategy and tactics that will not ordinarily be disturbed on appeal’ “). “‘Debatable trial tactics generally do not constitute a deprivation of effective counsel.’ ” State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995), citing State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980). “[T]he fact that there was another and better strategy available does not amount to a breach of an essential duty to [one‘s] client.” Clayton at 49.
{¶ 60} With regard to prejudice, Starling cannot establish a reasonable probability that the outcome of his case would have been different had his counsel objected to the 60-day continuance. Despite any such objection, the juvenile court still could have ordered a continuance for the purpose of awaiting the decision in Aalim II. Even if such an objection was sustained and an amenability hearing was held, there is nothing in the record to indicate that the juvenile court would have found Starling amenable to the juvenile justice system following such a hearing. Although two out of the three
{¶ 61} Starling‘s Third Assignment of Error is overruled.
Fourth Assignment of Error
{¶ 62} Under his Fourth Assignment of Error, Starling contends that
{¶ 63} As a preliminary matter, we note that Starling forfeited any arguments about the constitutionality of
{¶ 64} Upon review, we find that Starling failed to establish that the trial court committed a plain or obvious error for which a reversal is required to correct a manifest miscarriage of justice.
{¶ 65} In arguing that
{¶ 66} In State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, the Supreme Court of Ohio followed Miller and held that “[a] court, in exercising its discretion under
{¶ 67} Unlike the sentences at issue in Miller and Long, Starling was not sentenced to life in prison without the possibility of parole. Rather, Starling will be considered for parole after having served 15 years in prison. This court has consistently refused to extend the rationale in Miller and Long to sentences like Starling‘s where parole is afforded. See, e.g., State v. Zimmerman, 2d Dist. Clark Nos. 2015-CA-62 and 2015-CA-63, 2016-Ohio-1475, ¶ 16-24; State v. Hawkins, 2015-Ohio-5383, 55 N.E.3d 505, ¶ 11-16 (2d Dist.); State v. Jones, 2d Dist. Montgomery No. 26333, 2015-Ohio-3506, ¶ 1-2. See also, State v. Terrell, 8th Dist. Cuyahoga No. 103428, 2016-Ohio-4563, ¶ 12-18.
{¶ 68} This court has also rejected the argument that mandatory sentences imposed on juveniles in adult court are invalid as a violation of the Eighth Amendment. State v. Anderson, 2d Dist. Montgomery No. 26525, 2016-Ohio-135, ¶ 34 (noting that Long did not suggest that “the Eighth Amendment or Article I, Section 9 prohibit any and all mandatory sentences on juveniles tried in adult court“). Accord Zimmerman at ¶ 25-26.
{¶ 69} Our review of cases decided by both the Supreme Court of Ohio and the United States Supreme Court after Miller shows no indication that the holding in Miller has been extended to situations like in the present case. Simply put, since Starling is eligible for parole, the holdings in Miller and Long do not apply. Therefore, because the holdings in Miller and Long do not apply to the case at bar, Starling has failed to establish plain error for which a reversal is required to correct a manifest miscarriage of justice.
{¶ 70} Starling‘s Fourth Assignment of Error is overruled.
{¶ 71} Having overruled all assignments of error raised by Starling, the judgment of the trial court is affirmed.
FROELICH, J., concurs:
{¶ 72} I disagree with the suggestion that the filing of a motion to suppress at the juvenile court‘s probable cause stage is always inappropriate or that the juvenile court never has the jurisdiction to rule on such a motion.
{¶ 73} The probable cause hearing preceding a bindover determination in juvenile court is fundamentally different from probable cause determinations for arrest, pre-trial detention, bindover from adult misdemeanor court, grand jury proceedings, etc. The juvenile court has exclusive jurisdiction over children alleged to be delinquent for committing acts that would constitute a crime if committed by an adult and the removal of such allegations to adult court is entitled to a higher level of due process.
{¶ 74} Regardless, I agree on the facts before us that Starling has not shown that his counsel was deficient in not filing a motion to suppress in juvenile court or that such failure, even if deficient, prejudiced him.
DONOVAN, J., concurs:
{¶ 75} I concur in Judge Welbaum‘s opinion and in Judge Froelich‘s concurring opinion.
Andrew P. Pickering
Timothy B. Hackett
Hon. Douglas M. Rastatter