State v. Golphin

[This opinion has been published in Ohio Official Reports at 81 Ohio St.3d 543.]

THE STATE OF OHIO, APPELLANT, v. GOLPHIN, APPELLEE.

[Cite as State v. Golphin, 1998-Ohio-336.]

Criminal law—Murder—Juvenile law—Bindover of juvenile as adult—Juvenile

court fails to accomplish a legal transfer of its jurisdiction when there is no

evidence in the record that a physical examination of the juvenile was

performed as required by former R.C. 2151.26 and former Juv.R. 30.

(No. 96-2865—Submitted January 14, 1998—Decided April 29, 1998.)

APPEAL from the Court of Appeals for Cuyahoga County, No. 69266.

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{¶ 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 R.C. 2151.26 and Juv.R. 30(B).

{¶ 2} On January 18, 1995, the juvenile court held an amenability hearing

pursuant to R.C. 2151.26 and Juv.R. 30. At the hearing, the state introduced evidence

of Golphin’s mental condition through the testimony of a psychiatrist. The state

conceded in its brief and at oral argument,1 however, that no physical examination of

1. The following interchange took place in this court between the bench and counsel for the state at the

oral argument of this cause:

“Q: It’s not disputed, is it, that no physical exam was done?

“A: That’s correct, your honor.”

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Golphin was performed prior to the amenability hearing, nor was any other evidence

of Golphin’s physical condition introduced.2 Moreover, the record reflects that

Golphin’s counsel specifically objected at the conclusion of the amenability hearing

to the state’s failure to produce evidence of a physical examination.3 Nevertheless,

the juvenile court ultimately entered an order on January 25, 1995 purporting to

transfer jurisdiction of the matter to the general division of the court of common pleas.

{¶ 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.

2. Included in the papers transmitted to us by the court of appeals is a “Motion to Supplement Record

and for Reconsideration” filed by the state thirty-two days after the announcement of the court of

appeals’ decision. That filing was well after the deadline by which motions for reconsideration may be

filed pursuant to App.R. 26(A). The state attached as exhibits to its motion two copies of what are

represented to be reports of physical exams conducted of Golphin at the juvenile detention center. In a

memorandum in support of its motion, the prosecutor stated that “[a] recent search of the records of the

Cuyahoga County Juvenile Court Detention Center revealed” the two documents. The documents were

not supported by sworn affidavits, are largely illegible, and, as a legal matter, constitute pure hearsay.

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.

3. Counsel for Golphin argued in his closing statement at the amenability hearing, “[T]he prosecutors

just have not fulfilled their obligations under Juvenile Rule 30. And without them having fulfilled the

requirements of sub-section B, this Court, I believe, is required to overrule their motion because that

rule requires a physical examination of the child by a public or private agency or by a person qualified

to make an examination and they have presented no evidence at all of a physical exam. And for that

technical reason, we also urge, since it does say shall with the rule, says shall, it doesn’t say may, it says

shall. We believe that they failed to meet their burden because of that omission and for those reasons

we would ask that the motion be overruled.”

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{¶ 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.

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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.

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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. R.C. 2151.23; 2151.26; State v. Wilson (1995), 73 Ohio St.3d

40, 43, 652 N.E.2d 196, 199. Before such an individual may be tried as an adult in

common pleas court, the juvenile court must comply with the provisions of R.C.

2151.26 pursuant to procedures established by Juv.R. 30.

{¶ 7} On August 30, 1994, when Golphin allegedly shot Clinton Butler, R.C.

2151.26 provided:

“(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:

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“* * *

“(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, Juv. R. 30(B) provided at the relevant times:

“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, Juv.R. 30(F) provided, “In determining whether the child is

amenable to the treatment or rehabilitative processes available to the juvenile court,

the court shall consider the following relevant circumstances: * * * (1) The child’s

age and mental and physical condition * * *.” (Emphasis added.)

{¶ 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.,

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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} R.C. 2151.26 requires that an investigation be conducted before

bindover, and, in 1994 and 1995, the statute expressly required that the background

investigation include both a mental and physical examination. It follows that the

court’s bindover order in the case at bar was, at best, premature. The record fails to

show the completion of the full investigation required to be conducted by statute

before the court was authorized to make the critical determinations of whether

Golphin was amenable to rehabilitation within the juvenile system and whether the

safety of the community required that he be placed under legal restraint. See, also,

State v. Douglas (1985), 20 Ohio St.3d 34, 36, 20 OBR 282, 284, 485 N.E.2d 711,

712 (“[A]s long as sufficient, credible evidence pertaining to each factor [enumerated

in Juv.R. 30 (E)] exists in the record before the court, the bind-over order should not

be reversed in the absence of an abuse of discretion.” [Emphasis added.])

{¶ 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

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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 R.C. 2151.26,

effective January 1, 1996, to eliminate the requirement that a juvenile be given a

physical examination prior to relinquishment of juvenile court jurisdiction. See R.C.

2151.26(C)(1)(c) (146 Ohio Laws, Part I, 19-20). Similarly, in July 1997, Juv.R. 30

was amended to accord with the new statute by deleting all references to physical

examination of juveniles. Nevertheless, the amendments to the controlling statute and

rule were made subsequent to the proceedings at issue, and may not be applied

retroactively.

{¶ 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 R.C.

2151.26 and Juv.R. 30. The court correctly recognized that the prosecution of Golphin

in common pleas court was void ab initio. See State v. Wilson. It correctly reversed

and remanded the cause to the common pleas court with instructions that the judgment

of conviction against defendant be vacated. Upon implementation of that mandate,

the cause must then be further remanded to the juvenile court for adjudication of the

matters raised in the delinquency complaint, including possible resumption of

bindover procedures.

{¶ 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.

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ALICE ROBIE RESNICK, J., concurring in part and dissenting in part.

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{¶ 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 R.C.

2151.26(A)(1)(c), particularly in light of the fact that former Juv.R. 30(B) provided

that an investigation “shall include” a physical examination. However, based on

the circumstances of this case, I disagree with the majority’s application of the law

to the situation before us. I would reverse the judgment of the court of appeals, and

therefore dissent in part.

{¶ 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 App.R. 26.

However, we can and should take notice of the physical examinations. Contrary to

the majority’s assertion in footnote two of its opinion, State v. Phillips (1995), 74

Ohio St.3d 72, 80, 656 N.E.2d 643, 655, does not preclude consideration of the

physical examination reports. Phillips is distinguishable from the situation in the

case sub judice. The existence of the reports belies the ultimate conclusion of the

majority that no physical examination was ever done in this case.

{¶ 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

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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 Juv.R. 30 required him to consider in determining amenability

to rehabilitation: “(1) The child’s age; (2) The child’s mental and physical health;

(3) The child’s prior juvenile record; (4) Efforts previously made to treat or

rehabilitate the child; (5) The child’s family environment; (6) School record; and

(7) The specific facts relating to the offense for which probable cause was found,

to the extent relevant to the child’s physical or mental condition.” Although there

is no explicit indication in the record or opinion that the judge had the physical

examination results before him, or that he relied on them in any way in his

determination to transfer jurisdiction to the general division, in my view the mere

fact that physical examinations were done is sufficient to fulfill the requirements of

former R.C. 2151.26 and of former Juv.R. 30. Nothing else was specifically

required by that statute or rule.

{¶ 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, R.C.

2945.05, required that a jury trial waiver must be filed and made a part of the record

in the criminal case. 74 Ohio St.3d at 337, 658 N.E.2d at 769. In contrast, the

statute and rule at issue in the case sub judice simply required that a physical

examination be conducted. There was no requirement that the examination report

be made a part of the record. While the physical examination reports here may not

have been actually filed with the juvenile court, we now know that Golphin did in

fact receive two physical examinations.

{¶ 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

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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

R.C. 2151.26, effective January 1, 1996, to eliminate the physical examination

requirement at issue in this case. Moreover, in July 1997, Juv.R. 30 was amended

to delete all references to a physical examination. While I agree with the majority

that those amendments may not be applied retroactively, the amendments do clearly

demonstrate that the physical examination often is not an important consideration

in a juvenile judge’s decision on whether to transfer jurisdiction to the general

division.

{¶ 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

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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 R.C. 2151.26 to eliminate the physical

examination requirement.

{¶ 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 R.C. 2151.26 and Juv.R. 30. The record here

reveals compliance with each aspect of the statute and rule, including the physical

examination aspect. A total lack of compliance with the requirement would not

constitute substantial compliance. See State v. Wilson (1995), 73 Ohio St.3d 40,

652 N.E.2d 196. However, there is not a total lack of compliance in this case, as

shown by the two physical examination reports. To vacate this conviction and

remand this cause to the juvenile court for a new bindover determination,

presumably to include consideration of another physical examination of Golphin,

is to elevate the importance of a technicality to new heights. More important, it is

a total waste of judicial time and resources, since two physical examinations have

already been conducted, as shown by the state’s motion.

{¶ 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.

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DOUGLAS and LUNDBERG STRATTON, JJ., concur in the foregoing opinion.

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