State v. Frazier

[Cite as State v. Frazier, 2019-Ohio-1433.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
Nos. 106772 and 106773

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

NATHANIEL FRAZIER

DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-17-617822-A and CR-17-617824-A

BEFORE: Celebrezze, P.J., Sheehan, J., and Headen, J.

RELEASED AND JOURNALIZED: April 18, 2019
ATTORNEYS FOR APPELLANT

Timothy Young
Ohio Public Defender
BY: Timothy Hackett
Assistant Ohio Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215

ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Gregory J. Ochocki
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113

FRANK D. CELEBREZZE, JR., P.J.:

{¶1} Defendant-appellant, Nathaniel Frazier (“appellant”), appeals his conviction and

sentence. Specifically, appellant argues that the juvenile court committed plain error when it

consolidated appellant’s probable cause hearing with other juvenile codefendants, the juvenile

court’s finding of probable cause was against the manifest weight and sufficiency of the

evidence, the adult court lacked jurisdiction on charges that were not transferred from juvenile

court, and appellant was deprived the effective assistance of counsel. After a thorough review

of the record and law, this court affirms.

I. Factual and Procedural History
 {¶2} Appellant was charged in a 28-count complaint in Cuyahoga J.C. No. DL16114405

for his involvement in seven separate robberies committed by appellant and appellant’s

codefendants, fellow “OTZ” gang members. These seven robberies were committed from

February 2016 through March 2016. Appellant was charged with eight counts of aggravated

robbery, eight counts of robbery, eight counts of kidnapping, three counts of grand theft, and one

count of felonious assault. The vast majority of these 28 counts additionally had one- and

three-year firearm specifications, and criminal gang activity specifications.

{¶3} The state filed a bindover motion pursuant to R.C. 2152.10(A) seeking to transfer

appellant’s case to the General Divison of the Cuyahoga County Court of Common Pleas (“adult

court”). A probable cause hearing was held and the juvenile court found probable cause on 21

of the 28 counts. However, the juvenile court found that the state had failed to produce

sufficient evidence to transfer appellant’s case pursuant to a mandatory bindover under R.C.

2152.10(A), and converted the state’s bindover motion to a discretionary bindover under R.C.

2152.10(B). Thereafter, an amenability hearing was held to determine if appellant was

amenable to treatment within the juvenile court system. The juvenile court found that appellant

was not amenable, granted the state’s bindover motion, and transferred the matter to the adult

court.

{¶4} Appellant was indicted in Cuyahoga C.P. No. CR-17-617824-A on all 28 counts as

originally charged in the juvenile complaint. Appellant pled not guilty to the indictment.

{¶5} After plea negotiations, appellant pled guilty to an amended indictment, which

included four counts of aggravated robbery, one count of aggravated robbery with a three-year

firearm specification, one count of aggravated robbery with a one-year firearm specification, and

one count of robbery. The remaining counts were nolled. The adult court sentenced appellant
to a prison term of six years on each count, to be served concurrently. In addition, the adult

court sentenced appellant to a three-year prison term and a one-year prison term on the firearm

specifications to be served prior to and consecutive to the six-year prison sentence. As such,

appellant was sentenced to an aggregate prison term of ten years.

{¶6} Appellant was also charged in a juvenile complaint for additional robberies in

Cuyahoga J.C. No. DL1616920. The state also filed a bindover motion in this case; however,

appellant stipulated to probable cause and that matter was bound over to the adult court.

Appellant was indicted on these additional charges in Cuyahoga C.P. No. CR-17-617822-A.

After plea negotiations in this case, appellant pled guilty to an amended indictment that consisted

of two counts of aggravated robbery and one count of robbery. Appellant was sentenced to a

six-year prison term on each count, to be served concurrently. The adult court ran this sentence

concurrent to appellant’s sentence in CR-17-617824-A.

{¶7} Appellant filed the instant appeal from CR-17-617824-A and CR-17-617822-A,

however, appellant’s four assignments of error relate to CR-17-617824-A only. Appellant

assigns the following four assignments of error for our review:

I. The [juvenile court] committed plain error and violated [appellant’s] right to
due process and a fair trial when it consolidated several juvenile cases, and
co-defendants for a joint probable cause hearing, even though the evidence was
complicated and indirect.

II. The juvenile court’s probable cause determinations on [C]ounts [1, 2, 3, 4,
14, and 15] were the product of unsound and arbitrary reasoning and were against
the sufficiency and manifest weight of the evidence.

III. [Appellant’s] statutory and constitutional rights were violated when he was
indicted and convicted on previously-dismissed charges that were never
transferred to the [adult court].
 IV. [Appellant] was deprived of his right to the effective assistance of counsel,
in violation of the Fifth and Fourteenth Amendments to the U.S. Constitution;
and, Article I, Section 16 of the Ohio Constitution.

II. Law and Analysis

A. Severance

{¶8} In his first assignment of error, appellant argues that the juvenile court committed

plain error and violated his rights to due process and a fair trial when it consolidated his probable

cause hearing with the hearings involving his three codefendants.

{¶9} As an initial matter, we note that appellant’s counsel did not object to the joinder at

the probable cause hearing. Although the instant matter pertained to a probable cause hearing

on the state’s motion to transfer the matter to the adult court, we find that Crim.R. 13, governing

joinder of indictments, to be analogous to this case. As such, we will analyze appellant’s first

assignment of error pursuant to Crim.R. 13.

{¶10} Crim.R. 13 provides that a trial court may order two or more indictments to be tried

together “if the offenses or the defendants could have been joined in a single indictment or

information.” In conjunction with Crim.R. 13, pursuant to Crim.R. 8(A), two or more offenses

may be charged in a single indictment if the offenses “are of the same or similar character, or are

based on the same act or transaction, or are based on two or more acts or transactions connected

together or constituting parts of a common scheme or plan, or are part of a course of criminal

conduct.” Crim.R. 8(A).

{¶11} In order to properly preserve the issue of a trial court’s joinder of indictments for

appeal, the defendant must object to the joinder of indictments at the time of trial, and at the

close of the state’s case or at the close of evidence. State v. Owens, 51 Ohio App.2d 132, 366

N.E.2d 1367 (9th Dist.1975), paragraph two of the syllabus. Furthermore, “[a] party waives any
claim of error concerning the joinder by failing to raise an objection to the joinder.” State v.

Harris-Powers, 8th Dist. Cuyahoga No. 87921, 2007-Ohio-389, ¶ 17.

{¶12} In the instant matter, we note that appellant’s counsel did not object to the joinder

at any stage of the juvenile proceedings. As such, appellant has waived any argument on appeal

related to the joinder. Id. at ¶ 18.

{¶13} Furthermore, we note that the probable cause determination is made by the juvenile

court, not a jury. Therefore, to the extent that appellant argues that the juvenile court was

confused with the various dates of the offenses and the codefendants’ involvement, we do not

agree.

The Ohio Supreme Court has repeatedly recognized that when a judge hears
evidence in a bench trial, the trial court must be presumed to have “‘considered
only the relevant, material, and competent evidence in arriving at its judgment
unless it affirmatively appears to the contrary.’” State v. Post, 32 Ohio St.3d 380,
384, 513 N.E.2d 754 (1987), quoting State v. White, 15 Ohio St.2d 146, 239
N.E.2d 65 (1968), paragraph two of the syllabus.

State v. Thomas, 8th Dist. Cuyahoga No. 90623, 2008-Ohio-6148, ¶ 34.

{¶14} Accordingly, appellant’s first assignment of error is overruled.

B. Probable Cause

{¶15} In appellant’s second assignment of error, he argues that the juvenile court’s

probable cause determination was against the sufficiency and manifest weight of the evidence.

Specifically, appellant takes issue with the juvenile court’s finding of probable cause as to

Counts 1 through 4, 14 and 15.

{¶16} Appellant was charged with the following counts for his involvement in a robbery

that occurred on March 16, 2016: Count 1, aggravated robbery, with a criminal gang

specification, and one- and three-year firearm specifications; Count 2, robbery, with a criminal
gang specification, and one- and three-year firearm specifications; Count 3, kidnapping, with a

criminal gang specification, and one- and three-year firearm specifications; and Count 4, grand

theft, with one- and three-year firearm specifications. Appellant was charged with the following

counts for his involvement in a robbery that occurred on February 11, 2016: Count 14,

aggravated robbery, with a criminal gang specification, and one- and three-year firearm

specifications; and Count 15, robbery, with a criminal gang specification, and one- and three-year

firearm specifications.

{¶17} The Ohio Supreme Court has stated that a juvenile court’s probable cause

determination in a bindover proceeding involves questions of both fact and law. In re A.J.S.,

120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 51. An appellate court will defer to

the juvenile court’s “determinations regarding witness credibility, but [will] 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.” Id. “The ‘probable’ component of the

probable cause determination means that the state must produce evidence that ‘raises more than a

mere suspicion of guilt, but need not provide evidence proving guilt beyond a reasonable

doubt.’” State v. Taylor, 8th Dist. Cuyahoga No. 106502, 2018-Ohio-3998, ¶ 4, quoting In re

A.J.S. at ¶ 42.

{¶18} Pursuant to its bindover motion under R.C. 2152.12(A), the state was required to

prove that appellant was 16 or 17 years old at the time of the offense, and that there existed

probable cause to believe that appellant committed the acts charged. We note that the parties

stipulated that appellant was 17 years old at the time of the offenses. Thus, the only issue before

this court is whether the state provided sufficient evidence to establish probable cause that

appellant committed the acts charged.
 {¶19} Appellant’s argument that the juvenile court erred in finding probable cause is

primarily based on its determinations regarding witness credibility. The state presented several

witnesses at the probable cause hearing: the victims of the robberies, investigating officers, and a

juvenile codefendant, S.H., who was also charged for his involvement in the robberies.

Appellant argues that S.H. was not credible. However, we reject any argument related to S.H.’s

credibility because we defer to the trial court’s credibility finding. In re A.J.S. at ¶ 51. As

such, appellant’s arguments in this regard are without merit.

{¶20} Regarding the March 16, 2016 robbery, S.H. testified that appellant assisted in the

robbery. S.H. stated that he, appellant, and another codefendant, J.B., were driving around in a

previously stolen vehicle, looking for someone to rob. S.H. testified that they spotted an

individual to rob, he and J.B. exited the vehicle, and they robbed the victim at gunpoint. S.H.

stated that appellant stayed in the vehicle, presumably as the getaway driver and/or lookout. S.H.

also stated that he had his own handgun and J.B. had appellant’s handgun during the commission

of the robbery. S.H. further testified

Me, [appellant], and [J.B.], we was in a black 2011 I think Cadillac. * * * As we
pulling down the street, we see this man coming out of his house. He got a
bookbag on, some car keys.

I hopped out [of the stolen vehicle]. I was gonna hop out to rob him for his car
and whatever he had in his pockets. As I hopped out, though, as I approached
the man, [J.B.] was right behind me.

[J.B.] took [the victim’s] phone and his money. I took his bookbag and the car.

(Tr. 231.) S.H. then drove off in the stolen vehicle, and appellant and J.B. drove off in the

Cadillac. This testimony was further corroborated by the victim’s testimony. We find these

facts sufficient to establish that there existed probable cause to believe that appellant committed
aggravated robbery, robbery, kidnapping, and grand theft as charged in Counts 1 through 4 of the

complaint.

{¶21} With regards to the February 11, 2016 robbery, appellant and other juvenile

codefendants robbed an owner of a vehicle in Garfield Heights, Ohio, and thereafter drove off in

the stolen vehicle. Responding officers located the stolen vehicle as appellant and his

codefendants were fleeing the scene of the robbery. Appellant and his codefendants eventually

crashed the vehicle and fled the scene of the crash, however, one codefendant, R.C., was

apprehended near the stolen vehicle.

{¶22} Detective Grendzynski of the Garfield Heights Police Department testified that a

pair of shoes were recovered from the stolen vehicle. Detective Grendzynski testified that

through his investigation, he discovered several photographs posted to Facebook of appellant and

his fellow OTZ gang members. Detective Grendzynski matched the shoes that were recovered

from the stolen vehicle with the shoes appellant was wearing in the photographs. Thereafter, the

shoes were sent to the Bureau of Criminal Investigation (“BCI”) to determine if DNA could be

recovered. As a result of the DNA testing, appellant’s DNA was recovered on the shoes.

{¶23} We find these facts sufficient to establish that probable cause exists to believe that

appellant committed the acts of aggravated robbery and robbery, as charged in Counts 14 and 15.

Further, the parties stipulated that appellant was 17 years old at the time of the offenses. Thus,

the only issue before this court is whether the state provided sufficient evidence to establish that

appellant committed the acts charged. To this end, we find that the state produced sufficient

evidence to establish probable cause to believe that appellant committed the acts charged.

{¶24} Lastly, appellant appears to argue that the juvenile court erred when it found

probable cause that appellant committed Counts 1 through 4 and 14 and 15 under a complicity
theory. In particular, the juvenile court found probable cause that appellant committed these

counts based on appellant’s conduct, notably either assisting in the robberies or acting as a

getaway driver for his cohorts who themselves committed the robberies.

{¶25} The First District was faced with a similar argument in In re Moore, 1st Dist.

Hamilton Nos. C-090576, C-090577, and C-090578, 2010-Ohio-3991. In Moore, the court

found that the juvenile court “exceeded the scope of a bindover hearing when it went beyond

determining whether the state had presented evidence of probable cause for an attempted-murder

charge and sua sponte amended that charge to attempted manslaughter.” Id. at ¶ 26. The First

District determined

Juv.R. 30(A) expressly provides that when the court is considering relinquishment
of jurisdiction, it “shall hold a preliminary hearing to determine if there is
probable cause to believe that the child committed the act alleged and that the act
would be an offense if committed by an adult.”

Id., citing Juv.R. 30(A). Thus, the juvenile court’s finding “should have been limited solely to

whether there was probable cause to believe that Moore had committed attempted murder.” Id.

{¶26} We do not find Moore analogous to the instant matter. The juvenile court did not

exceed the scope of the bindover hearing by finding that the state presented sufficient evidence

that appellant committed the offenses under a complicity theory. The juvenile court simply

assessed the evidence as it was presented. In this regard, the juvenile court did not violate its

duties pursuant to Juv.R. 30(A).

{¶27} Accordingly, appellant’s second assignment of error is overruled.

C. Subject-Matter Jurisdiction
 {¶28} In appellant’s third assignment of error, he argues that the adult court erred in

convicting him of Counts 7 through 13 because these charges were not transferred from the

juvenile court.

{¶29} More specifically, appellant argues that the adult court “lacked subject-matter

jurisdiction to indict, try, and convict [appellant] on [C]ounts 7 through 13 because those charges

had already been dismissed for lack of probable cause.” Appellant’s brief at 20. Although the

juvenile court granted the state’s bindover motion, the juvenile court ruled that “[p]robable

[c]ause was not found on [C]ounts 7 through 16.”1

{¶30} Initially, we note that six of the seven counts to which appellant takes issue were

nolled by the prosecutor as part of a plea agreement. We cannot fathom how appellant could

therefore establish that he was in any way prejudiced because he was not convicted of Counts 8

through 13. Appellant benefitted from these dismissals because he has fewer convictions.

State v. Lenard, 8th Dist. Cuyahoga No. 99149, 2013-Ohio-1995, ¶ 19. Appellant conceded as

much at oral arguments and, as a result, asks us to vacate his conviction as to Count 7 only.

{¶31} With regards to Count 7, aggravated robbery, the juvenile court found that the state

did not present sufficient evidence to find probable cause that appellant committed the offense

charged. However, the juvenile court granted the state’s bindover motion, and thereafter,

appellant was indicted in the adult court in a 28-count indictment that included Count 7.

{¶32} The Ohio Supreme Court has ruled that absent a proper bindover proceeding in the

juvenile court, the trial court lacks subject-matter jurisdiction and any conviction thereafter is

void ab initio. State v. Wilson, 73 Ohio St.3d 40, 44, 652 N.E.2d 196 (1995). R.C. 2152.12

1
In our review of the record, we note that appellant takes issue with Counts 7 through 13 only, and makes
no mention of Counts 14, 15, and 16 in this assignment of error.
governs a juvenile court’s authority to transfer a child to the general division of the common

pleas court. R.C. 2152.12(A) governs mandatory bindovers and 2152.12(B) governs

discretionary bindovers. Because appellant was charged with aggravated robbery, with a

criminal gang activity specification and with one- and three-year firearm specifications, this

charge was a category-two offense as defined under R.C. 2152.02(BB). This offense was

subject to a mandatory bindover because it is a category-two offense as defined under R.C.

2152.02(BB).

{¶33} However, the juvenile court found that the state did not present sufficient evidence

that appellant possessed a firearm in connection to the robberies, and as such, the bindover

motion was to be considered under the discretionary bindover standards.

{¶34} Under Ohio’s juvenile justice system, a juvenile may be transferred to the adult

court by way of a mandatory transfer or discretionary transfer.

“Mandatory transfer removes discretion from judges in the transfer decision in
certain situations. * * * Discretionary transfer, as its name implies, allows judges
the discretion to transfer or bind over to adult court certain juveniles who do not
appear to be amenable to care or rehabilitation within the juvenile system or
appear to be a threat to public safety.”

State v. Mays, 2014-Ohio-3815,18 N.E.3d 850, ¶ 17 (8th Dist.), quoting State v. D.W., 133 Ohio

St.3d 434, 2012-Ohio-4544, 978 N.E.2d 894, ¶ 10.

{¶35} In instances of discretionary transfers, the juvenile court has additional obligations

prior to transferring the matter to adult court.

[T]he juvenile court is also to determine the age of the child and whether probable
cause exists to believe that the juvenile committed the act charged. R.C.
2152.10(B) and 2152.12(B)(1) and (2). However, if probable cause exists and
the child is eligible by age, the juvenile court must then continue the proceeding
for a full investigation. R.C. 2152.12(C) and Juv.R. 30(C). This investigation
includes a mental examination of the child, a hearing to determine whether the
child is “amenable to care or rehabilitation within the juvenile system” or whether
 “the safety of the community may require that the child be subject to adult
sanctions,” and the consideration of 17 other statutory criteria to determine
whether a transfer is appropriate. Juv.R. 30(C); R.C. 2152.12(B), (C), (D), and
(E).

In re M.P., 124 Ohio St.3d 445, 2010-Ohio-599, 923 N.E.2d 584, ¶ 12.

{¶36} In support of his argument that the adult court lacked subject-matter jurisdiction,

appellant directs this court’s attention to State v. Rosser, 8th Dist. Cuyahoga No. 104624,

2017-Ohio-5572. In Rosser, this court found that the adult court lacked subject-matter

jurisdiction because the juvenile court failed to hold an amenability hearing. Rosser argued on

appeal that his counsel was ineffective for failing to move to dismiss counts in the indictment

that were subject to a discretionary bindover. Rosser argued that because the adult court failed

to hold an amenability hearing relative to these counts, his convictions in the adult court were

void. This court agreed noting that

[T]he juvenile court, prior to transferring Rosser pursuant to R.C. 2152.12(B),
concluded that Rosser was over the age of 14 at the time of the offense, and there
was probable cause to believe he committed the act charged. However, it failed
to conduct an amenability hearing as required. While the amenability hearing
may have been a futile act, the failure to conduct such hearing was a jurisdictional
impediment that deprived the [adult court] of jurisdiction over the case. Absent
a proper bindover proceeding in the juvenile court, the [adult court] lacks
subject-matter jurisdiction over the case and any conviction obtained there is void
ab initio. Wilson, 73 Ohio St.3d [at] 44, 652 N.E.2d 196.

Accordingly, Rosser’s counsel was deficient for failing to request dismissal of the
indictment because the juvenile court improperly transferred the case to the [adult
court]. Because the [adult court] did not have jurisdiction over the matter,
Rosser’s convictions are reversed and the case is remanded to the juvenile court to
conduct an amenability hearing pursuant to R.C. 2152.12(B).

Id. at ¶ 28-29.
 {¶37} In the instant matter, notwithstanding the juvenile court’s finding as to probable

cause on Count 7, the adult court had jurisdiction over Count 7, and all 28 counts, pursuant to

R.C. 2152.12(I).

Upon the transfer of a case under division (A) or (B) of this section, the juvenile
court shall state the reasons for the transfer on the record, * * *. The transfer
abates the jurisdiction of the juvenile court with respect to the delinquent acts
alleged in the complaint, and, upon the transfer, all further proceedings pertaining
to the act charged shall be discontinued in the juvenile court, and the case then
shall be within the jurisdiction of the court to which it is transferred as described
in division (H) of section 2151.23 of the Revised Code.

R.C. 2152.12(I).

{¶38} Therefore, to the extent that appellant argues that Count 7 was dismissed by the

juvenile court, this is not an accurate procedural characterization. Pursuant to R.C. 2152.12(I),

the juvenile court was required to hold a hearing on the state’s bindover motion. At this

hearing, the juvenile court was tasked with determining whether or not there was probable cause

that appellant committed the acts charged. If the juvenile court found probable cause, the

juvenile court abates jurisdiction and transfers the matter to the adult court pursuant to R.C.

2152.12(I).

{¶39} To this extent, R.C. 2152.12(I) does not afford a juvenile court with the authority to

dismiss counts on the basis of whether or not the state has established probable cause. Indeed,

the state’s bindover motion, pursuant to R.C. 2152.10, does not allow or explicitly empower the

juvenile court with this authority. The issue before the juvenile court is whether or not “there is

probable cause to believe that the child committed the act charged.” R.C. 2152.12(B)(2). If the

juvenile court finds probable cause, the bindover motion is granted, and the matter is transferred

to the adult court. See State v. Whisenant, 127 Ohio App.3d 75, 81, 711 N.E.2d 1016 (11th
Dist.1998) (noting that the bindover proceedings are not adjudicative in that the juvenile’s guilt

or innocence is not at issue).

{¶40} However, in our review of the record, it appears that the juvenile court, at the close

of the state’s presentation of evidence at the probable cause hearing, did dismiss the counts in

which it found the state did not establish probable cause. At the probable cause hearing, the

juvenile court stated that appellant would return for an “amenability hearing on the charges that I

indicated with the [other] charges being dismissed.” (Tr. 360.)

{¶41} The juvenile court’s dismissal of these counts is outside the scope of the probable

cause hearing. We note that in limited circumstances, a juvenile court may dismiss a complaint

pursuant to Juv.R. 9(A) outside of a formal court hearing. See In re D.S., 152 Ohio St.3d 109,

2017-Ohio-8289, 93 N.E.3d 937. However, a juvenile court’s ability to dismiss a complaint, or

dismiss particular counts within the complaint, does not appear to extend to a probable cause

hearing. See id. at ¶ 11.

{¶42} Moreover, we note that a grand jury may consider and even return an indictment on

charges that were not originally filed in the juvenile complaint. Whisenant, 127 Ohio App.3d

75, 81, 711 N.E.2d 1016, at fn. 4.

“It is well established in Ohio jurisprudence that upon transfer from juvenile
court, a grand jury is authorized to return a proper indictment on the facts
submitted to it, and is not confined to the charges originally filed in the juvenile
court. State v. Adams, 69 Ohio St.2d 120, 431 N.E.2d 326 (1982), paragraph
two of the syllabus. To confine an indictment solely to the charges presented
from juvenile court would improperly restrict the power of the grand jury to
review the facts and indict on the charge or charges it feels is appropriate in any
given case.”

State v. Beauregard, 8th Dist. Cuyahoga No. 101418, 2015-Ohio-1021, ¶ 28, quoting State v.

Foust, 3d Dist. Crawford No. 3-07-11, 2007-Ohio-5767, ¶ 17.
 {¶43} We find our decision in Mays, 2014-Ohio-3815, 18 N.E.3d 850, particularly

instructive on the instant matter. Mays was charged in a juvenile complaint with offenses

which subjected him to a mandatory bindover. The juvenile court granted the state’s bindover

motion and thereafter transferred the entirety of the complaint to the adult court, which included

charges that subjected Mays to a discretionary bindover.

{¶44} On appeal, Mays argued that the juvenile court erred when it transferred

nonmandatory offenses along with the mandatory offenses. Mays argued that once the juvenile

court determined that he was subject to a mandatory bindover based on the juvenile court’s

findings of probable cause on the mandatory offenses, the juvenile court was then required to

comply with the amenability procedures outlined in R.C. 2152.12(B) with regard to the

discretionary bindover offenses prior to transferring the matter to the adult court. Id. at ¶ 31.

{¶45} This court disagreed with Mays and ruled that

because the offenses in this matter were committed during the same course of
conduct, the [juvenile] court had the authority to transfer the entire case pursuant
to R.C. 2152.12(I) once it found sufficient probable cause to warrant a mandatory
transfer of Count 2 to the adult court. See State v. Brookshire, 2d Dist.
Montgomery No. 25853, 2014-Ohio-1971, ¶ 14 (holding that when multiple
offenses arise from the same “course of conduct” and the juvenile court properly
transfers the mandatory transfer offense to the adult court, all further proceedings
on the remaining offenses are discontinued in the juvenile court pursuant to R.C.
2152.12(I)).

Id. at ¶ 28. If the matter was not transferred in its entirety, judicial economy would be

jeopardized and the matter would be split into two proceedings in two separate courts on the

same set of facts and circumstances. Id., citing State v. Washington, 2d Dist. Montgomery No.

20226, 2005-Ohio-6546, ¶ 26.

{¶46} We must therefore determine if Count 7 was part of a “course of conduct.” In

Mays, 2014-Ohio-3815, 18 N.E.3d 850, this court noted that the “‘same course of conduct’ [has]
been defined as ‘offenses that through their similarity, regularity and time between them are

concluded to be part of a single episode, spree, or ongoing series of offenses.’” Mays at fn. 2,

quoting United States v. Sheehan, D.Mont. No. CR 09-13-M-DWM, 2009 U.S. Dist. LEXIS

99800 (Oct. 27, 2009).

{¶47} In the instant matter, appellant was indicted in a 28-count indictment for several

robberies occurring over a span of several weeks. These robberies had identical facts and

circumstances, to wit; appellant and his gang members drove around in previously stolen

vehicles prowling for vulnerable individuals to rob, at gunpoint, with the aim of stealing the

individual’s vehicle and personal belongings. Count 7 was committed on March 18, 2016.

The other counts in the indictment were committed on February 11, March 1, March 9, March

11, March 13, and March 16, 2016. Based on these facts, we find that all of the charges in the

juvenile complaint were part of “the same course of conduct” because the similarity of the

offenses can be considered as part of a single crime spree. Id. See also State v. Smith, 9th

Dist. Summit No. 26804, 2015-Ohio-579, ¶ 22. As such, the juvenile court had authority

pursuant to R.C. 2152.12(I) to transfer the entire case, including Count 7.

{¶48} Accordingly, appellant’s third assignment of error is overruled.

D. Ineffective Assistance of Counsel

{¶49} In appellant’s fourth assignment of error, he argues that he was denied the effective

assistance of counsel in the juvenile court proceedings because his counsel failed to object to the

state’s motion for joinder at the probable cause hearing. Appellant also argues that he was

denied the effective assistance of counsel in the adult court proceedings because his counsel

failed to request a dismissal as to the counts in the indictment in which the adult court lacked

subject-matter jurisdiction.
 {¶50} Our review of appellant’s arguments in this regard is limited because appellant pled

guilty. As the Ohio Supreme Court explained in State v. Spates, 64 Ohio St.3d 269, 595 N.E.2d

351 (1992):

“[A] guilty plea represents a break in the chain of events which has preceded it in
the criminal process. When a criminal defendant has solemnly admitted in open
court that he is in fact guilty of the offense with which he is charged, he may not
thereafter raise independent claims relating to the deprivation of constitutional
rights that occurred prior to the entry of the guilty plea. He may only attack the
voluntary and intelligent character of the guilty plea * * *.”

Id. at 271-272, quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235

(1973).

{¶51} By pleading guilty, appellant has waived the right to claim ineffective assistance of

counsel, except to the extent that the defect or ineffective assistance caused his guilty plea to be

less than knowing, intelligent, and voluntary. State v. Vihtelic, 8th Dist. Cuyahoga No. 105381,

2017-Ohio-5818, ¶ 14. See also State v. Barton, 108 Ohio St.3d 402, 2006-Ohio-1324, 844

N.E.2d 307, ¶ 73; State v. Martin, 8th Dist. Cuyahoga No. 95281, 2011-Ohio-222, ¶ 20; State v.

Vinson, 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 30 (8th Dist.); State v. Williams, 8th Dist. Cuyahoga

No. 100459, 2014-Ohio-3415, ¶ 11.

{¶52} “When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of

the plea unconstitutional under both the United States Constitution and the Ohio Constitution.”

State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996)

{¶53} Crim.R. 11(C)(2) provides:

(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no
contest, and shall not accept a plea of guilty or no contest without first addressing
the defendant personally and doing all of the following:
 (a) Determining that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum penalty involved,
and, if applicable, that the defendant is not eligible for probation or for the
imposition of community control sanctions at the sentencing hearing.

(b) Informing the defendant of and determining that the defendant understands the
effect of the plea of guilty or no contest, and that the court, upon acceptance of the
plea, may proceed with judgment and sentence.

(c) Informing the defendant and determining that the defendant understands that
by the plea the defendant is waiving the rights to jury trial, to confront witnesses
against him or her, to have compulsory process for obtaining witnesses in the
defendant’s favor, and to require the state to prove the defendant’s guilt beyond a
reasonable doubt at a trial at which the defendant cannot be compelled to testify
against himself or herself.

Thus, in considering whether a plea was entered knowingly, intelligently, and voluntarily, “an

appellate court examines the totality of the circumstances through a de novo review of the

record.” State v. Spock, 8th Dist. Cuyahoga No. 99950, 2014-Ohio-606, ¶ 7.

{¶54} In our review of the plea hearing transcript, the adult court did comply with the

above Crim.R. 11(C)(2) requirements, and therefore, appellant’s plea was knowingly,

intelligently, and voluntarily entered in this regard.

{¶55} Accordingly, appellant’s fourth assignment of error is overruled.

III. Conclusion

{¶56} Appellant failed to object to the joinder at the probable cause hearing and

therefore, has waived any claim of error concerning the joinder. The state produced sufficient

evidence to establish probable cause on Counts 1, 2, 3, 4, 14, and 15. The adult court had

jurisdiction over Count 7. Appellant was not denied the effective assistance of counsel in the

juvenile court proceedings or the adult court proceedings.

{¶57} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.
 The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution. The defendant’s convictions having been affirmed,

any bail pending appeal is terminated. Case remanded to the trial court for execution of

sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

MICHELLE J. SHEEHAN, J., and
RAYMOND C. HEADEN, J., CONCUR