State v. Brown

[Cite as State v. Brown, 2014-Ohio-314.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :

No. 13AP-349

v. : (C.P.C. No.12CR-07-3506)

Ta'Sean Brown, : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on January 30, 2014

Ron O'Brien, Prosecuting Attorney, and Michael P. Walton,

for appellee.

Timothy Young, Ohio Public Defender, and Brooke M. Burns,

for appellant.

APPEAL from the Franklin County Court of Common Pleas

DORRIAN, J.

{¶ 1} Defendant-appellant, Ta'Sean Brown ("appellant"), appeals from his

conviction of burglary, a felony of the second degree, entered by the Franklin County

Court of Common Pleas, General Division. Appellant contends that the general division

of the common pleas court ("adult court") did not possess subject-matter jurisdiction of

his case in that he was a juvenile at the time the alleged burglary was committed, burglary

is not a mandatory bindover offense, and the Franklin County Court of Common Pleas,

Division of Domestic Relations, Juvenile Branch ("juvenile court") did not conduct an

amenability hearing before transferring the case to the general division.

{¶ 2} We agree. We therefore remand the case to the trial court with instructions

to transfer the burglary case to the juvenile court for further proceedings.

No. 13AP-349 2

I. Facts and Case History

{¶ 3} On April 9, 2012, police filed a complaint in the juvenile court, alleging that

appellant had, on that same date, committed aggravated robbery in that he had

committed a theft offense while indicating to the victim that he had a firearm in his

possession. The offense, if committed by an adult, would have been a felony of the first

degree. The alleged victim was another minor who subsequently testified that, on that

same day, appellant and two other individuals had stolen his bicycle and an iPad from

him and that, during the incident, appellant had indicated that he had a gun concealed in

the pocket of his hoodie. The victim, however, never saw a gun.

{¶ 4} The aggravated robbery case proceeded in the juvenile court as case No.

12JU-5040. As will be discussed in more detail below, the juvenile court ultimately

transferred this case to adult court pursuant to the mandatory juvenile bindover statute,

R.C. 2152.10(A)(2), and the state ultimately dismissed the charge.

{¶ 5} On April 9, 2012, the state filed a second complaint against appellant,

which proceeded in the juvenile court as case No. 12JU-5662. The second complaint

alleged that appellant had, on April 5, 2012, committed burglary in violation of R.C.

2911.12(A)(1), a charge which, if committed by an adult, would constitute a felony of the

second degree. The complaint alleged that appellant had opened an unlocked rear window

of a residence and entered the residence with the intent to commit theft.

{¶ 6} The burglary offense did not fall within the scope of the mandatory juvenile

bindover statute. However, pursuant to the discretionary bindover statute, R.C.

2152.10(B), the state moved the juvenile court to relinquish its jurisdiction and transfer

appellant to the adult court for prosecution of the burglary charge as an adult.

{¶ 7} On July 12, 2012, the juvenile court conducted sequential probable cause

hearings in the two cases. The parties stipulated that appellant was a minor. At the close

of the hearing in case No. 12JU-5040, the juvenile court found probable cause that

appellant committed the aggravated robbery of which he was charged, set bond at

$100,000, observed that the aggravated robbery charge was subject to the mandatory

bindover statute, and ordered that the case be transferred to adult court.

{¶ 8} The court then immediately proceeded to determine the existence of

probable cause in the burglary case, case No. 12JU-5662. At the conclusion of that

No. 13AP-349 3

hearing, the juvenile court found probable cause that appellant had committed the home

burglary. The court then stated:

Ordinarily an F-2 burglary would be a discretionary

bindover, but as the Court has previously tried an aggravated

robbery case, found probable cause in a mandatory bindover

and [has] bound [appellant] over, the Court is going to

dispense with a pre-sentence investigation and amenability

hearing and bind [appellant] over to be tried as an adult on

this charge of burglary under subsection (F) of [R.C.

2152.12].

(July 12, 2012 Tr., 36.)

{¶ 9} On July 16, 2012, and consistent with its statement at the conclusion of the

probable cause hearing, the juvenile court entered judgment in case No. 12JU-5662,

stating:

Pursuant to Section 2152.12(F) after having mandatorily

bound over [appellant] in [case No.] 12JU-04-5040, the

court is not required to consider or weigh [any] factors and

may transfer jurisdiction.

Therefore, it is ordered that this court relinquish jurisdiction

over this matter and that this matter be transferred to the

General Division of the Common Pleas Court of Franklin

County for criminal prosecution of [appellant] as an adult.

(July 16, 2012 Judgment Entry.)

{¶ 10} Accordingly, both case No. 12JU-5040 (aggravated robbery) and case No.

12-JU-5662 (burglary) were transferred to adult court, where the Grand Jury issued two

indictments, and the cases proceeded under separate adult court case numbers. In the

first indictment in case No. 12CR-3505, appellant was charged with two counts of

aggravated robbery1 and five other lesser offenses. In the second indictment in case No.

12CR-3506, appellant was charged with one count of burglary and one count of theft.

{¶ 11} On March 4, 2013, appellant entered a guilty plea to burglary, a felony of the

second degree, in the home burglary case. That charge had been the subject of the

discretionary bindover that the juvenile court had ordered in the absence of an

amenability hearing or a waiver of the right to an amenability hearing. After receiving a

1 The indictment alleged that the April 9, 2013 aggravated robbery involved two victims.

No. 13AP-349 4

presentence investigation, the trial court ordered appellant to serve two years in adult

prison and an additional three-year period of post-release control. (Mar. 25, 2013

Judgment Entry.)

{¶ 12} On March 6, 2013, the trial court also entered a judgment accepting the

state's nolle prosequi of case No. 12CR-3505, the aggravated robbery case (the mandatory

bindover offense). The entry represented that the state had sought the nolle because it

had been unable to obtain the cooperation of the victims or their parents, who had

indicated that they had "moved on" and did not have time to come to court. The court

noted in the entry dismissing the aggravated robbery case that appellant had previously

pled guilty to burglary, a second-degree felony, in the separate burglary case, case No.

12CR-3506.

{¶ 13} Appellant appeals the juvenile court's judgment, assigning two errors for

this court's review:

[1.] The Franklin County Court of Common Pleas committed

plain error when it convicted and sentenced Ta'Sean Brown

for burglary, because it did not have subject matter

jurisdiction of his burglary case. [Citations omitted.]

[2.] Ta'Sean Brown was denied the effective assistance of

counsel because counsel failed to object to the trial court's lack

of subject matter jurisdiction. [Citations omitted.]

II. Analysis

{¶ 14} The juvenile court has exclusive original jurisdiction to hear complaints

alleging that a juvenile is a delinquent child by reason of having committed an offense that

would be a crime if committed by an adult. State v. Lucas, 10th Dist. No. 10AP-923, 2011-

Ohio-3450, ¶ 19, citing In re M.P., 124 Ohio St.3d 445, 2010-Ohio-599, ¶ 11, and R.C.

2151.23(A). However, R.C. 2152.10(A) provides that, under certain circumstances, a

juvenile court must transfer the case to adult court for criminal prosecution "as provided

in section 2152.12 of the Revised Code." See also R.C. 2152.02(R) (defining mandatory

transfer as "a case [that] is required to be transferred for criminal prosecution under

division (A) of section 2152.12 of the Revised Code"). Moreover, R.C. 2152.10(B) provides

that, "[u]nless the child is subject to mandatory transfer, if a child is fourteen years of age

or older at the time of the act charged and if the child is charged with an act that would be

No. 13AP-349 5

a felony if committed by an adult, the child is eligible for discretionary transfer to the

appropriate court for criminal prosecution." See also R.C. 2152.02(I) (defining

discretionary transfer as meaning "that the juvenile court has discretion to transfer a case

for criminal prosecution under division (B) of section 2152.12 of the Revised Code"). That

is, the juvenile court must follow the procedures set forth in R.C. 2152.12 in determining

whether to order a discretionary transfer of a child for criminal prosecution. R.C.

2152.10(B). Accordingly, R.C. 2152.12 establishes procedures for both mandatory and

discretionary transfers of juvenile cases that allege conduct that would be criminal if

engaged in by an adult.

{¶ 15} Division (A) of R.C. 2152.12 establishes the procedure a juvenile court must

follow where bindover is mandatory, including the circumstances present in case No.

12JU-5040, i.e., where a juvenile has been accused of conduct that would constitute

aggravated robbery if committed by an adult.

{¶ 16} Division (B) of R.C. 2152.12 governs discretionary bindover and vests a

juvenile court with the discretion to bind over a juvenile in compliance with procedures

set forth in the statute. R.C. 2152.12(B) provides that a juvenile court may transfer a case

if a court makes certain findings, including a finding that the child is not amenable to

rehabilitation in the juvenile system. In making the determination whether to bind over a

juvenile, the court is required to consider whether the factors indicating that the case

should be transferred outweigh the factors indicating that the case should not be

transferred. R.C. 2152.12(B)(3).

{¶ 17} R.C. 2152.12(C) provides that, before considering a discretionary transfer,

"the juvenile court shall order an investigation * * * including a mental examination of the

child by a public or private agency or a person qualified to make the examination."

Divisions (D) and (E) set forth factors relative to a juvenile's amenability to rehabilitation

within the juvenile system. An amenability hearing is a "critical stage of the juvenile

proceedings * * * affect[ing] whether the juvenile faces a delinquency adjudication, or

adult criminal sanctions and the label 'felon.' " State v. D.W., 133 Ohio St.3d 434, 2012-

Ohio-4544, ¶ 12.

No. 13AP-349 6

{¶ 18} Subsection (F) of R.C. 2152.12 establishes the procedure a juvenile court

must follow where a juvenile has been charged with multiple offenses and one, but not all,

of the alleged charges is a mandatory bindover offense:

If one or more complaints are filed alleging that a child is a

delinquent child for committing two or more acts that would

be offenses if committed by an adult, if a motion is made

alleging that division (A) of this section applies and requires

that the case or cases involving one or more of the acts

charged be transferred for, and if a motion also is made

requesting that the case or cases involving one or more of the

acts charged be transferred pursuant to division (B) of this

section, the juvenile court, in deciding the motions, shall

proceed in the following manner:

(1) Initially, the court shall decide the motion alleging that

division (A) of this section applies and requires that the case

or cases involving one or more of the acts charged be

transferred.

(2) If the court determines that division (A) of this section

applies and requires that the case or cases involving one or

more of the acts charged be transferred, the court shall

transfer the case or cases in accordance with that division.

After the transfer pursuant to division (A) of this section, the

court shall decide, in accordance with division (B) of this

section, whether to grant the motion requesting that the case

or cases involving one or more of the acts charged be

transferred pursuant to that division. Notwithstanding

division (B) of this section, prior to transferring a case

pursuant to division (A) of this section, the court is not

required to consider any factor specified in division (D) or

(E) of this section or to conduct an investigation under

division (C) of this section.

(3) If the court determines that division (A) of this section

does not require that the case or cases involving one or more

of the acts charged be transferred, the court shall decide in

accordance with division (B) of this section whether to grant

the motion requesting that the case or cases involving one or

more of the acts charged be transferred pursuant to that

division.

No. 13AP-349 7

(4) No report on an investigation conducted pursuant to

division (C) of this section shall include details of the alleged

offense as reported by the child.

{¶ 19} The parties are in agreement that R.C. 2152.12(F)(2) establishes the

procedure the trial court was required to follow in this case. The parties disagree,

however, as to the correct interpretation of the last sentence of R.C. 2152.12(F)(2), which

provides: "Notwithstanding division (B) of this section, prior to transferring a case

pursuant to division (A) of this section, the court is not required to consider any factor

specified in division (D) or (E) of this section or to conduct an investigation under division

(C) of this section."

{¶ 20} Appellant argues that, once the court finds the existence of probable cause

as to an alleged mandatory bindover offense and transfers that charge to adult court, the

clear language of R.C. 2151.12(F)(2) and (3) requires that the juvenile court "decide, in

accordance with division (B) of this section, whether to grant the motion requesting that

the case or cases involving one or more of the acts charged be transferred pursuant to that

division." (Emphasis added.) Division (B) of R.C. 2151.12 requires a background

investigation and an amenability hearing. Accordingly, under appellant's reasoning, a

juvenile court must conduct a division (B) amenability hearing and background check

concerning the discretionary bindover charges even though it has already ordered transfer

of a separate mandatory bindover offense.

{¶ 21} The state, on the other hand, emphasizes the last sentence of (F)(2), which

provides that "[n]otwithstanding division (B) of [R.C. 2152.12], prior to transferring a case

pursuant to division (A) of this section [the mandatory bindover division] the court is not

required to consider any factor specified in division (D) or (E) of this section [specifying

factors to be considered in an amenability hearing] or to conduct an investigation under

division (C) of this section." (Emphasis added.) The state acknowledges that, despite the

fact that "the language in the last sentence of (F)(2) is clear" (Appellee's Brief, 11), the

language "is senseless in the context of the statute as a whole." (Appellee's Brief, 11.) It

urges us to recognize that "an error exists" in division (F)(2) and to judicially correct the

error by replacing the words "division (A)" in the last sentence of R.C. 2152.12(F)(2) with

the words "division (F)(2)." (Appellee's Brief, 11.) In support, the state argues that the

No. 13AP-349 8

statutes establish that, where bindover is mandatory, "[t]here is no situation in which a

juvenile court would weigh factors for and against transfer or conduct an investigation."

(Appellee's Brief, 12.) It suggests that the last sentence of (F)(2) is therefore senseless.

{¶ 22} We disagree. Arguably, the last sentence of (F)(2) is superfluous because it

adds nothing to the procedure imposed elsewhere in R.C. 2152.10 through 12—that is,

other statutory divisions establish that a juvenile court need not hold an amenability

hearing where the charged offense is a mandatory bindover offense and probable cause

exists that the juvenile committed that mandatory bindover offense. But the fact that the

last sentence of (F)(2) arguably was unnecessary does not mean that the last sentence is

senseless or that the General Assembly intended to enact something other than what is

reflected in the clear language it chose. To the contrary, inclusion of the last sentence of

(F)(2), if anything, reinforces the conclusion logically drawn from the statutory bindover

scheme as a whole. That conclusion is that, in the case of a mandatory bindover offense, a

juvenile court need not conduct an amenability hearing or background investigation when

it finds the existence of probable cause. But the fact that the General Assembly, in effect,

said the same thing twice does not render the second iteration senseless or meaningless,

nor does it justify an inference that the legislature meant something else and simply made

a drafting mistake.

{¶ 23} In further support of its position, the state observes that the current

language of R.C. 2152.12(F)(2) became law on January 1, 2002, as a result of the

enactment in 2001 of Am.Sub.S.B. 179 ("S.B. 179"). The state contends that, prior to

2002, the juvenile statutes did not require a trial court to conduct an amenability hearing

in connection with a discretionary bindover offense if the court had previously ordered a

mandatory bindover. See Goins v. Wellington, 7th Dist. No. 01 CA 208, 2001-Ohio-3503

(interpreting former R.C. 2151.26(C)(4)). The state further notes that the Final Analysis of

S.B. 179 prepared by the Legislative Services Commission ("LSC"), did not expressly

reference a change of the prior procedure relative to the situation where a juvenile is

charged with both mandatory and discretionary bindover offenses. It argues that the

absence of a specific reference in the LSC analysis to this particular procedural change,

which it characterizes as "substantial," justifies the inference that the General Assembly

No. 13AP-349 9

did not intend to change the prior law. Accordingly, it urges this court to "substitute

'division (F)(2)' for 'division (A)' in the last sentence of R.C. 2152.12(F)(2)."

{¶ 24} We note initially that we are not bound by bill analyses prepared by the LSC,

although we may refer to them when we find them helpful and objective. Meeks v.

Papadopulos, 62 Ohio St.2d 187, 191 (1980). Regardless, the LSC analysis does state,

after first describing the pre-2002 procedure, that S.B. 179 "replaces the prior * * *

bindover provisions described above with the following transfer provisions in new R.C.

2152.12." (Emphasis added and original emphasis deleted.) Ohio Legislative Service

Commission Final Bill Analysis of 2000 Am. Sub.S.B. No. 179, at 34, found at

http://lsc.state.oh.us/analyses/fnla123.nsf/All%20Bills%20and%20Resolutions/8851B9

052AEF8166852569CB005E02BD (accessed Dec. 24 , 2013). Moreover, in describing the

last sentence of R.C. 2152.12(F)(2), the LSC analysis states:

Notwithstanding the discretionary transfer provisions, prior

to transferring a case pursuant to the mandatory transfer

provisions, the court is not required to consider any factor

described above in "Factors favoring transfer" or "Factors

against transfer" or to conduct an investigation as described

above in "Investigation."

(Italicized emphasis added, original emphasis deleted.) LSC Final Bill Analysis, S.B. 179,

at 38.

{¶ 25} That is, the LSC, in describing the change in procedure implemented by

S.B. 179, clearly understood that use of "division (A)" in the last sentence of (F)(2) meant

that a juvenile court, when binding over a mandatory transfer, need not consider factors

that would otherwise be considered in a discretionary transfer case. The LSC did not

suggest that the General Assembly meant that a juvenile court would be relieved of its

obligation to conduct an amenability hearing as to an alleged discretionary transfer

charge allegedly committed by a juvenile based on the finding of probable cause that the

same juvenile committed a mandatory transfer offense.

{¶ 26} In short, the LSC analysis does not support the state's premise that the

General Assembly simply made a drafting error when formulating the last sentence of

(F)(2). To the contrary, in reviewing the text of S.B. 179, the LSC interpreted the last

No. 13AP-349 10

sentence of (F)(2) in accord with the actual language included in the bill. We do so as

well.

{¶ 27} Moreover, it is axiomatic that this court may not itself rewrite a statute to

change the clear meaning of statutory text. "If the meaning of a statute is unambiguous

and definite, it must be applied as written and no further interpretation is necessary. * * *

Unambiguous statutes are to be applied according to the plain meaning of the words used.

* * * Courts are not free to delete or insert other words." State ex rel. Kleja v. State

Teachers Retirement Bd., 10th Dist. No. 08AP-326, 2009-Ohio-2047, ¶ 69, citing State ex

rel. Burrows v. Indus. Comm., 78 Ohio St.3d 78, 81 (1997).

{¶ 28} Moreover, the Supreme Court of Ohio has recognized that the General

Assembly, in the wake of judicial interpretation of the prior bindover statute, thereafter

amended the statute to "prohibit[] juvenile courts from holding that once a juvenile has

been bound over to adult court, the juvenile will be bound over in all future felonies."

State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544, ¶ 46.

{¶ 29} We therefore conclude that the juvenile court failed to comply with R.C.

2152.12 in transferring the discretionary bindover offense of burglary to the adult court

without having first conducted an amenability hearing or obtaining a valid waiver of the

right to an amenability hearing. Where a juvenile court has purported to transfer a

juvenile case to adult court without having complied with mandatory bindover procedure,

the adult court proceeds in the absence of subject-matter jurisdiction and any judgment

entered by the adult court is a nullity and void ab initio. State v. Wilson, 73 Ohio St.3d

40, 44 (1995); State v. King, 6th Dist. No. L-12-1013, 2013-Ohio-1265, ¶ 10; State v.

Hanning, 10th Dist. No. 98AP-380 (Feb. 9, 1999).

{¶ 30} Because the juvenile court committed statutory error, we need not reach

appellant's argument that appellant's constitutional rights have been violated because the

trial court bound him over to be tried as an adult on the burglary charge without first

conducting an amenability hearing. See State v. Perry, 10th Dist. No. 06AP-333, 2006-

Ohio-6735, ¶ 6, citing In re Boggs, 50 Ohio St.3d 217, 221 (1990) ("Because we find that

the case can be decided solely on statutory grounds, we do not reach the constitutional

arguments."). Similarly, because the judgment of conviction is null and void, we need not

examine the question as to whether the failure of appellant's counsel to object to the adult

No. 13AP-349 11

court's lack of subject-matter jurisdiction constituted plain error. See State v. Hayes , 7th

Dist. No. 07-MA-134, 2008-Ohio-4813, ¶ 29 (suggesting that plain-error analysis is

unnecessary where the trial court lacked subject-matter jurisdiction as that deficiency

may be raised at any time during the proceedings).

{¶ 31} Accordingly, we sustain appellant's first assignment of error.

{¶ 32} In his second assignment of error, appellant asserts that he received

ineffective assistance of counsel during the bindover proceedings in violation of his

constitutional right to counsel. Again, we need not discuss the merits of this argument

because we need not address constitutional issues where the case may be resolved on the

basis of statutory interpretation alone. Id.

{¶ 33} Accordingly, we overrule appellant's second assignment of error.

III. Conclusion

{¶ 34} For the foregoing reasons, appellant's first assignment of error is sustained

and his second assignment of error is overruled. We find that the judgment of the

Franklin County Court of Common Pleas convicting appellant of burglary was void

because it was made in the absence of subject-matter jurisdiction. We therefore find the

judgment to be a nullity and remand the case to that court with instructions that it

transfer the case to its juvenile branch for an amenability hearing or proper waiver of an

amenability hearing, consistent with the procedure established by the Supreme Court of

Ohio in In re D.W.

Judgment reversed and cause remanded with instructions.

SADLER, P.J., and McCORMAC, J., concur.

McCORMAC, J., retired, of the Tenth Appellate District,

assigned to active duty under the authority of the Ohio

Constitution, Article IV, Section 6(C).

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