State v. Marshall

[Cite as State v. Marshall, 2016-Ohio-3184.]

IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-150383
TRIAL NO. B-1500170
Plaintiff-Appellee, :

vs. :
O P I N I O N.
DEMILO MARSHALL, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 27, 2016

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachael Lipman
Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Julie Kahrs Nessler,
Assistant Public Defender, for Defendant-Appellant.

Please note: this case has been removed from the accelerated calendar.
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FISCHER, Presiding Judge.

{¶1} Defendant-appellant DeMilo Marshall appeals from a judgment of the

Hamilton County Court of Common Pleas sentencing him to 12 years in prison for

one count of attempted murder and three counts of aggravated robbery, all of which

were accompanied by firearm specifications, following Marshall’s guilty pleas. In his

appeal, Marshall challenges the decision of the juvenile court transferring

jurisdiction of his cases to the common pleas court for adult prosecution. Because

we determine that the juvenile court did not abuse its discretion in relinquishing

jurisdiction, we affirm the judgment of the trial court.

{¶2} In October 2014, the state filed four delinquency complaints against

Marshall, then 15 years old. Three of the complaints alleged that Marshall and his

codefendants had been involved in the aggravated robbery of three Hispanic

individuals on September 13, 2014, which had left one of the victims paralyzed from

a gunshot wound to the back. The fourth complaint involved the aggravated robbery

of a University of Cincinnati (“UC”) student on September 22, 2014.

{¶3} The state requested that the juvenile court relinquish jurisdiction over

Marshall’s cases and transfer his cases to adult court for criminal prosecution. The

juvenile court held joint probable-cause hearings for Marshall and three other

individuals regarding the September 13 and September 22 robberies, as well as other

aggravated robberies that did not involve Marshall. As to the September 13 shooting

and robberies, the juvenile court heard testimony from police officers that, in the

course of investigating a shooting in Westwood, they had stopped a vehicle in which

Marshall was an occupant. Marshall denied involvement in the shooting, but

admitted he had been on the scene visiting his uncle and had taken money from the

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victims. The juvenile court also heard testimony from the three Hispanic victims,

who detailed how three men had approached them and demanded money, and that

one of the victims had been shot while trying to flee. The juvenile court then heard

testimony from a female who had been in the getaway vehicle. She testified that

Marshall and two codefendants had robbed the three Hispanic men, and that one of

the codefendants had admitted to shooting one of the victims.

{¶4} As to the September 22 robbery, the UC student testified that a man

wearing yellow pants had put a gun to his chest and had demanded his belongings.

Police officers testified that when, on that same day, they had stopped the vehicle

wanted in connection with the September 13 shooting, Marshall had been wearing

yellow pants, and the UC student’s identification card was in the car.

{¶5} The juvenile court found probable cause existed in the four complaints

against Marshall. Because Marshall was not yet 16 at the time of the acts charged,

the trial court had discretion to transfer Marshall’s cases to adult court. See R.C.

2152.12; State v. McKinney, 2015-Ohio-4398, 46 N.E.3d 179, ¶ 6 (1st Dist.) (a

juvenile court is required to transfer a case to the court of common pleas if the

juvenile is 16 or 17 and probable cause exists that the juvenile committed aggravated

robbery with a firearm). As a result, the trial court held a discretionary-transfer

proceeding and ordered a full evaluation of Marshall’s amenability to rehabilitation

within the juvenile-justice system.

{¶6} As part of the juvenile court’s evaluation, Marshall was examined by

Dr. Kathleen Hart, a clinical child and adolescent psychologist, and Dr. Drew

Barzman, a forensic psychiatrist. Both doctors completed written evaluations, which

were submitted to the juvenile court, stating their opinions that Marshall would be

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amenable to rehabilitation within the juvenile-justice system. The juvenile court

held an amenability hearing in which it heard oral argument from the state and

Marshall’s counsel. Despite the medical opinions in the evaluations, the juvenile

court determined that Marshall’s cases should be transferred to adult court.

{¶7} The state indicted Marshall on one count of attempted murder, two

counts of felonious assault, and four counts of aggravated robbery, all of which were

accompanied by firearm specifications. Marshall and the state entered into a plea

agreement whereby Marshall agreed to plead guilty to three of the aggravated-

robbery charges and the attempted-murder charge in exchange for the dismissal of

the remaining charges. The parties jointly recommended that the trial court impose

a 12-year prison sentence on Marshall’s offenses. After a plea colloquy, the trial

court accepted the parties’ plea agreement and imposed the jointly-recommended

sentence.

{¶8} In a single assignment of error, Marshall challenges the juvenile

court’s decision to transfer his cases to the court of common pleas for adult

prosecution. Marshall specifically challenges the juvenile court’s finding that

Marshall would not be amenable to treatment in the juvenile system.

{¶9} Waiver. The state argues that this court cannot reach the merits of

Marshall’s assignment of error because Marshall waived his right to contest the

bindover procedure by failing to object in the juvenile court and by entering into an

agreed plea. The state relies on R.C. 2953.08(D) and State v. Underwood, 124 Ohio

St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, as well as State v. Quarterman, 140 Ohio

St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900. But, this court recently decided that

defects in the bindover proceedings relate to the subject-matter jurisdiction of the

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common pleas court to try the juvenile as an adult, and such defects cannot be

waived by a subsequent guilty plea in adult court. See State v. Amos, 1st Dist.

Hamilton No. C-150265, 2016-Ohio-1319. We see no reason to depart from the

reasoning of Amos in the context of an agreed plea and jointly-recommended

sentence imposed by the trial court, because, if the trial court lacked subject-matter

jurisdiction over a criminal case, then its sentence was not “authorized by law”

within the context of R.C. 2953.08(D)(1).

{¶10} The state further argues that if this court reviews Marshall’s assigned

error, this court should review only for plain error under Quarterman. In

Quarterman, the defendant failed to raise a constitutional challenge to the bindover

procedure in either the juvenile court or the court of common pleas. See McKinney,

2015-Ohio-4398, 46 N.E.3d 179, at ¶ 8. By contrast, Marshall filed a motion

requesting that the juvenile court retain jurisdiction over his cases for the reasons set

forth in Dr. Barzman’s report, and Marshall stated at the sentencing hearing in the

court of common pleas that he disagreed with the juvenile court’s bindover decision,

and that he would be appealing the juvenile court’s decision in that regard. Thus,

Quarterman does not apply.

{¶11} We thus determine Marshall did not waive his challenge to the juvenile

court’s amenability determination, and we will address the merits of Marshall’s

assignment of error.

{¶12} Discretionary-Bindover Procedure. R.C. 2152.12(B) governs

discretionary bindover of delinquency cases from juvenile court to the court of

common pleas. Once a complaint has been filed charging a child with an offense that

would be a felony if committed by an adult, a juvenile court may transfer jurisdiction

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of the case to the court of common pleas if it finds at a hearing that (1) the child was

14 years of age or older at the time of the act in the complaint, (2) probable cause

exists that the child committed the act in the complaint, and (3) the child is not

amenable to care or rehabilitation within the juvenile system and should be subject

to adult sanctions to ensure the safety of the community. See R.C. 2152.12(B)(1)-(3).

{¶13} Once the juvenile court finds that the age and probable-cause elements

have been satisfied, the juvenile court must conduct a “full investigation” before

making an amenability determination. See Juv.R. 30(C); R.C. 2152.12(C). This

investigation includes an inquiry into the child’s social history, education, and

familial situation, as well as a mental examination of the child by a qualified agency

or individual. Id.

{¶14} When determining whether a child is amenable to treatment within

the juvenile system, the juvenile court must consider the factors weighing in favor of

and against transfer, as outlined in R.C. 2152.12(D) and 2152.12(E), as well as any

other relevant factor. See R.C. 2152.12(B)(3); Amos, 1st Dist. Hamilton No. C-

150265, 2016-Ohio-1319, at ¶ 22. The record in the juvenile court must “indicate the

specific factors that were applicable and that the court weighed.” R.C. 2152.12(B)(3).

To this end, the juvenile court must state the reasons for transfer on the record and

in the order of transfer. See R.C. 2152.12(I); Juv.R. 30(G).

{¶15} A juvenile court’s amenability determination under R.C. 2152.12 will

not be reversed unless the juvenile court has abused its discretion. State v.

Washington, 1st Dist. Hamilton No. C-130213, 2014-Ohio-4178, ¶ 19, citing In re

A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 39. R.C. 2152.12 is

silent with regard to how a juvenile court should weigh the factors in R.C. 2152.12(D)

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and (E). Thus, the juvenile court has the discretion to determine how much weight

should be accorded to any given factor. See State v. Morgan, 10th Dist. Franklin No.

13AP-620, 2014-Ohio-5661, ¶ 37. “As long as the court considers the appropriate

statutory factors and there is some rational basis in the record to support the court’s

findings when applying those factors, [this court] cannot conclude that the trial court

abused its discretion in deciding whether to transfer jurisdiction.” State v. West, 167

Ohio App.3d 598, 2006-Ohio-3518, 856 N.E.2d 285, ¶ 10 (4th Dist.).

{¶16} Factors Weighing Against Transfer. Marshall argues that the

juvenile court failed to consider any of the factors weighing against transfer, and that

several of the factors in R.C. 2152.12(E) were applicable in this case. As for the

factors weighing against transfer, Marshall contends that he was not the principal

offender in the more serious incident, which had resulted in one of the victims being

paralyzed, and that he had minimal to no previous involvement with the juvenile-

justice system. See R.C. 2152.12(E)(3) and (5). Marshall also points to the findings

in the expert reports of Dr. Barzman and Dr. Hart, which indicated that Marshall was

susceptible to peer influence, that he would be vulnerable to mistreatment in the

adult system, and that Marshall would likely be successfully rehabilitated in the

juvenile system. See R.C. 2152.12(E)(6) and (8).

{¶17} This court has held that a juvenile court need only identify those

specific factors that were applicable and that it weighed in making its determination.

See Amos at ¶ 38; Washington at ¶ 23 (“Where there is no statutory requirement that

the juvenile court separately identify factors that are not applicable, it does not err if

it fails to do so, as long as it has indicated, in the record, the factors that it weighed in

favor of or against transfer.”). Although the juvenile court did not directly address

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any of the factors in R.C. 2152.12(E) weighing against transfer, the juvenile court did

acknowledge on the record at the amenability hearing that it had reviewed Dr.

Barzman’s and Dr. Hart’s reports. Thus, the trial court did not ignore the factors

under R.C. 2152.12(E)(6) and (8) in making its amenability determination.

{¶18} As to the factors under R.C. 2152.12(E)(3) and (5), the record indicates

that Marshall was the principal offender in the robbery of the UC student, and Dr.

Hart’s report indicates that Marshall had been involved in a previous burglary in

Kentucky. Therefore, the juvenile court did not err by failing to discuss those factors

as weighing against transfer when making its amenability determination.

{¶19} Factors Weighing in Favor of Transfer. With regard to the

factors weighing in favor of transfer in R.C. 2152.12(D), Marshall argues that the

juvenile court improperly found the existence of some factors and placed too much

weight on the severity of the underlying offenses and the safety of the community, as

well as evidence of Marshall’s gang activity. In its entry transferring jurisdiction, the

juvenile court incorporated a findings worksheet, in which it found that the factors in

R.C. 2152.12(D)(1), (4), (5), (6), (8), and (9) weighed in favor of transfer. The

juvenile court also expressed these findings on the record at the amenability hearing.

{¶20} With regard to the sufficiency of the evidence to support the juvenile

court’s findings, Marshall argues that the record does not support the juvenile court’s

finding that, at the time of the act charged, Marshall had been awaiting adjudication

or disposition as a delinquent child, was under a community-control sanction, or was

on parole for a prior delinquency adjudication or conviction. See R.C. 2152.12(D)(6).

We agree that the record does not support this finding. Although the record

indicated that Marshall may have had a previous delinquency adjudication in

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Kentucky, no evidence in the record indicated that, at the time of the act charged,

Marshall had been awaiting adjudication or disposition as a delinquent child, was

under a community-control sanction, or was on parole for a prior delinquency

adjudication or conviction.

{¶21} Marshall also argues that the record does not support the juvenile

court’s findings that he was physically, emotionally, or psychologically mature

enough for transfer, or that he could not be timely rehabilitated within the juvenile-

justice system. See R.C. 2152.12(D)(8) and (9). Marshall relies on the reports from

Dr. Hart and Dr. Barzman who opined otherwise. However, a juvenile court in

making an amenability determination is entitled to disagree with the opinion of a

medical expert and may take into account the severity of the offenses when

considering whether a juvenile is mature enough for transfer and whether enough

time exists to rehabilitate in the juvenile-justice system. See State v. Johnson, 2015-

Ohio-96, 27 N.E.3d 9, ¶ 40 (8th Dist.); Morgan, 10th Dist. Franklin No. 13AP-620,

2014-Ohio-5661, at ¶ 37 (holding that a juvenile court is not bound by an expert

opinion).

{¶22} Finally, Marshall argues that the juvenile court placed too much

emphasis on the severity of the underlying offenses, the safety of the community, and

his commission of the offenses as part of a gang or organized criminal activity.

Sufficient evidence existed that Marshall had committed the crimes as part of

organized criminal activity. See R.C. 2152.12(D)(4); Morgan at ¶ 38 (“[A]

defendant’s participation in an aggravated robbery along with one or more

codefendants is sufficient to find the incident occurred as part of organized criminal

activity [under R.C. 2152.12(D)(4)].”). Although not explicitly listed in R.C.

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2152.12(D), the seriousness of the underlying offenses and the safety of the

community are relevant factors in the amenability determination. See R.C.

2152.12(B)(3); Amos, 1st Dist. Hamilton No. C-150256, 2016-Ohio-1319, at ¶ 43,

citing West, 167 Ohio App.3d 598, 2006-Ohio-3518, 856 N.E.2d 285, at ¶ 30, and

State v. Watson, 47 Ohio St.3d 93, 547 N.E.2d 1181 (1988).

{¶23} The juvenile court heard evidence that Marshall and his codefendants

had been involved in two aggravated-robbery events in less than two weeks—one that

involved a random UC student being robbed at gunpoint, and one that left a victim

paralyzed from a gunshot wound. These events, the juvenile court found, “created a

tremendous fear in this community and a lot of innocent lives were permanently

changed as a result of this.” The power to weigh the factors in favor of or against

transfer rests with the juvenile court, and we cannot say that the juvenile court

abused its discretion in weighing certain factors more heavily than others.

{¶24} Based upon the totality of the evidence before the juvenile court, we

determine that the juvenile court did not abuse its discretion in concluding that

Marshall was not amenable to care or rehabilitation within the juvenile system, and

that the safety of the community required that Marshall be subject to adult sanctions.

Therefore, we overrule Marshall’s sole assignment of error, and the judgment of the

trial court is affirmed.

Judgment affirmed.
HENDON and STAUTBERG, JJ., concur.

Please note:
The court has recorded its own entry on the date of the release of this opinion.

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