State v. Bond

[Cite as State v. Bond, 2022-Ohio-373.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 110520
v. :

SAMIYAH BOND, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: VACATED AND REMANDED
RELEASED AND JOURNALIZED: February 10, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-652417-C

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney,
and Samantha Sohl and Jeffrey Schnatter, Assistant Prosecuting
Attorneys, for appellee.

Tim Young, Ohio State Public Defender, and Lauren
Hammersmith and Timothy B. Hackett, Assistant State Public
Defenders, for appellant.

MICHELLE J. SHEEHAN, P.J.:

Appellant Samiyah Bond appeals her convictions resulting from a plea

agreement with the state of Ohio in her case that was transferred from juvenile court.
We find no error in the proceedings at the juvenile court but find that the trial court

erred in accepting Bond’s plea, and we vacate Bond’s convictions and remand this

matter.

I. PROCEDURAL HISTORY AND FACTS

On February 27, 2020, Bond, then 17 years of age, was charged in

juvenile court with seven offenses, to include aggravated murder, aggravated

robbery, aggravated burglary, felonious assault, and attempted murder, all charges

having both one- and three-year firearm specifications in violation of R.C. 2941.141

and 2941.145 attached thereto.

On March 4, 2020, the state of Ohio filed a notice of mandatory

bindover and a motion for an order to relinquish jurisdiction of the case based upon

Bond’s age and the charges brought. On March 5, 2020, the juvenile court arraigned

Bond on the charges and remanded her to the juvenile detention center. The

juvenile court set a further pretrial to be held April 2, 2020. Thereafter, the state of

Ohio provided discovery and supplemented that discovery. The trial court later set

a date for hearing on the motion to relinquish jurisdiction for July 23, 2020, which

date was later cancelled.

On July 13, 2020, a pretrial hearing was held with both Bond and a

codefendant. At that hearing, the codefendant waived her right to a probable cause

hearing. Bond’s counsel indicated to the juvenile court that Bond also intended to

waive the probable cause hearing at a later date.
 On July 22, 2020, Bond filed a motion for a competency evaluation,

which motion referenced a Cleveland Metropolitan School District Evaluation Team

Report from March 2017, that created an Individualized Education Plan for Bond

and a psychological evaluation done at MetroHealth that was at least one year old.

The juvenile court held a pretrial hearing on July 23, 202o. At that

time, Bond’s counsel moved to withdraw from the case. The juvenile court inquired

about the psychological exam from MetroHealth and learned that Bond had not

been seen at or evaluated by MetroHealth for over two years. The juvenile court

further noted that in March, there was nothing that occurred that would cause the

court to be concerned about Bond’s competency. The juvenile court granted the

motion to withdraw, indicated that it would appoint Bond new counsel, and set a

further pretrial conference.

On August 26, 2020 Bond, with and through new counsel, appeared

before the juvenile court and withdrew her motion for a competency evaluation. She

indicated to the juvenile court that she wished to waive her right to a probable cause

hearing. Prior to accepting her waiver, the trial court conducted the following

colloquy with Bond:

THE COURT: Okay. All right. So [Miss Bond], you are currently 17
years old?

BOND: Yes.

THE COURT: Okay. And you have had a chance to discuss all of these
charges with your attorney, with Mr. Smith?

BOND: (Inaudible).
THE COURT: Yes?

BOND: Yes, your Honor.

THE COURT: I couldn’t hear you.

BOND: Oh. Yes, your Honor.

THE COURT: Okay. And I would assume that you’ve also had a
chance to discuss all of these charges with your mother who is in the
Courtroom with you today?

BOND: Yes, your Honor.

THE COURT: Okay. All right then. This decision to come in here
today and waive your probable cause hearing, is this your free choice
to do so?

BOND: Yes, your Honor.

THE COURT: I couldn’t hear you.

BOND: Yes, your Honor.

THE COURT: Okay. In other words, no one has forced you to come
in here today to waive your probable cause hearing?
BOND: Yes, your Honor.

THE COURT: And no one has promised you anything in order to get
you to waive this probable cause hearing?

BOND: No, your Honor.

THE COURT: Okay. And do you understand the fact that what this
means is by waiving your probable cause hearing today you are also
agreeing or admitting that the State of Ohio if we went forward, the
State of Ohio would have been able to show sufficient evidence to
prove that there is probable cause here?

BOND: Yes, your Honor.

THE COURT: So you know that you are agreeing with that?
 BOND: Yes.

THE COURT: Okay. And by doing so you are not admitting to any
facts of the case. Okay. Do you understand that?

BOND: Yes.

THE COURT: You’re just agreeing that the State of Ohio can show
probable cause if they went forward?

BOND: Yes, your Honor.

THE COURT: Okay. You also understand the fact that by waiving the
probable cause hearing and agreeing that the State would have been
able to show that, the Court will be finding that there is probable
cause. You understand that?

BOND: Yes, your Honor.

THE COURT: Okay. And once the Court finds that there is probable
cause, you understand the fact that the Court will then automatically
bind your case over to the Adult Court?

BOND: Yes, your Honor.

THE COURT: Where you would be tried as if you were an adult?

BOND: Yes, your Honor.

THE COURT: You understand that?

BOND: Yes.

THE COURT: Okay. And you understand that once that happens that
you would be facing some of the same penalties that other adults
would including possible prison time?

BOND: Yes, your Honor.

The juvenile court asked Bond’s counsel if “as her attorney you feel your

client does understand all of the possible consequences of this hearing and the
nature of these proceeding?” Counsel responded affirmatively. The trial court

continued addressing Bond:

THE COURT: Okay. By the way, for today’s hearing are you under the
influence of any alcohol or drugs or mind altering substances at this
time?

BOND: No, your Honor.

THE COURT: Okay. All right then. At this time is it true that you do
wish to waive your probable cause hearing?

BOND: Yes, your Honor.

THE COURT: Okay. And is it true at this time that you are in
agreement and you admit that the State of Ohio would be able to show
that there is probable cause in this case?

BOND: Yes, your Honor

The juvenile court accepted Bond’s waiver, found that probable cause

existed for the charges, and transferred the charges to the general division of the

common pleas court.

After the transfer of her case, Bond, along with two codefendants, was

indicted by a grand jury on 11 felony counts, to include charges of aggravated

murder, murder, attempted murder, aggravated robbery, aggravated burglary, and

felonious assault.1 These counts all contained one- and three-year firearm

specifications in violation of R.C. 2941.141 and 2941.145.

1 We recognize the Ohio Supreme Court held in State v Smith, Slip Opinion No. 2022-
Ohio-274, ¶ 44, that “[i]n the absence of a juvenile court’s finding probable cause * * *, no
adult court has jurisdiction over acts that were charged in but not bound over by the
juvenile court.” Smith is inapposite to our decision in this case because all charges
 On March 8, 2021, after discovery was exchanged and a series of

pretrial conferences were held, Bond entered into a plea agreement with the state of

Ohio to plead guilty to involuntary manslaughter, aggravated robbery, aggravated

burglary, and attempted murder. The plea agreement included a recommended

sentencing range of 8 to 18 years in prison. On April 21, 2021, the trial court

sentenced Bond to an aggregate 13 to 18 year prison term.

Bond appeals her convictions and alleges error in the proceedings

within both the juvenile and general divisions of the court of common pleas.

II. LAW AND ARGUMENT

Bond raises seven assignments of error in this appeal. We address

the assignments of error out of order, first addressing those assignments of error

that relate to the proceedings that occurred at the juvenile court.

A. The juvenile court did not err in transferring the case to the
general division of the common pleas court

1. Ohio’s juvenile mandatory transfer procedures have been
determined to be constitutional

a. Ohio’s mandatory transfer procedures are constitutional

Bond has raised a challenge to the constitutionality of Ohio’s transfer

procedures. Her third assignment of error reads:

brought in juvenile court were found to have probable cause and were
transferred. Further, the indictment and conviction in this case are not affected by the
holding in Smith because Bond’s convictions were based on the charges for which
probable cause was found and were “for the same or lesser degree of the offense charged,
for the commission of a lesser-included offense, or for the commission of another offense
that is different from the offense charged.” R.C. 2151.23(H).
 Assignment of Error III: [Bond] was deprived of her constitutional
rights to fundamental fairness and due process because Ohio’s
mandatory transfer statutes violate state and federal due process as
guaranteed by the Fifth and Fourteenth Amendments to the U.S.
Constitution, and by Article I, Section 16 of the Ohio Constitution.
(8/26/2020 T. pp. 1-11; 8/26/2020 Entry; A-1).

Ohio law requires the mandatory transfer of certain juvenile cases to

the general division of the common pleas court where the juvenile offenders are tried

and punished as adults. See R.C. 2152.10 and 2152.12. Bond argues that these

mandatory transfer statutes are unconstitutional, adopting as her arguments the

reasons stated by the Ohio Supreme Court in State v. Aalim, 150 Ohio St.3d 463,

2016-Ohio-8278, 83 N.E.3d 862. She also alleges that the bindover process is

unconstitutional because it is based upon the definition of probable cause as “proof

beyond a mere suspicion,” which she argues is a vague and inadequate definition of

probable cause.

In Aalim, the Ohio Supreme Court initially determined that

“mandatory transfer of juveniles without providing for the protection of a

discretionary determination by the juvenile-court judge violates juveniles’ right to

due process.” Id. at ¶ 1. However, upon reconsideration of the case, the Ohio

Supreme Court vacated its decision and upheld the constitutionality of Ohio’s

mandatory bindover procedures. State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-

2956, 83 N.E.3d 883. This court has rejected similar arguments that contravene the

Ohio Supreme Court’s determination that the mandatory transfer statutes are
constitutional. See State v. Franklin, 8th Dist. Cuyahoga No. 107482, 2019-Ohio-

3760, ¶ 17.

Additionally, within this assignment of error, Bond provides no

citation or specific argument that her definition of probable cause, “proof beyond a

mere suspicion,”2 is unconstitutional. Bond provides no citation to the record or law

that would lead to an inference that her decision to waive probable cause in this

matter was based upon the specific standard of proof she has alleged. As such, we

will not address this specific argument. App.R. 12(A)(2); In re J.F., 8th Dist.

Cuyahoga No. 96875, 2012-Ohio-2191, ¶ 21.

Bond’s third assignment of error is overruled.

b. Ohio’s mandatory transfer procedure does not violate a
juvenile’s due process rights by transferring cases in which
juveniles are charged with complicity

In her second assignment of error, Bond argues that because she was

charged with being complicit in crimes requiring mandatory transfer to the general

division of the court of common pleas, the trial court erred by not considering this

fact before transferring her case. Her second assignment of error reads:

Assignment of Error II: The juvenile court committed plain error,
erred as a matter of law, and violated due process when it granted the
state’s motion for mandatory transfer, based not on proof that [Bond]
had committed a category one offense, but only on allegations that she
was complicit in the commission of one. R.C. 2152.12(A) Fifth and

2We note that the Ohio Supreme Court stated that for the state to meet its burden of
showing probable cause during a mandatory transfer proceeding for each charge, it “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. Iacona, 93 Ohio St.3d 83,
93, 2001-Ohio-1292, 752 N.E.2d 937.
 Fourteenth Amendments to the U.S. Constitution; Article I, Section
16 of the Ohio Constitution; and State v. Hanning, 89 Ohio St.3d 86,
91, 728 N.E.2d 1059 (2000). (8/26/2020 Entry; A- 1).

Bond argues the juvenile court erred by not considering whether or

not she was an accomplice and not the principal offender in the crimes for which she

was charged. She asks this court to find error based upon State v. Hanning, 89 Ohio

St.3d 86, 2000-Ohio-436, 728 N.E.2d 1059. The state does not dispute that Bond

was not the principal offender, but argues that Bond was charged with crimes that

subjected her case to a mandatory transfer proceeding pursuant to R.C. 2152.10 and

2152.12 and that the holding in Hanning does not apply.

In Hanning, the Ohio Supreme Court held that a juvenile offender

was not subject to transfer to the general division if the juvenile was complicit in an

offense being bound over due to a firearm specification. However, in Agee v.

Russell, 92 Ohio St.3d 540, 2001-Ohio-1279, 751 N.E.2d 1043, the Ohio Supreme

Court limited Hanning’s application to discretionary, not mandatory, transfer

proceedings. We recognized that limitation in State v. Bishop, 8th Dist. Cuyahoga

No. 89184, 2007-Ohio-6197, ¶ 27, and rejected the argument Bond now makes.

Bond’s second assignment of error is overruled.

2. The juvenile court properly accepted Bond’s waiver of her right
to a probable cause hearing

Bond’s first assignment of error reads:

Assignment of Error I: [Bond] did not knowingly and intelligently
waive her probable cause hearing because she was not informed of the
consequences of her case being transferred to the common pleas court
or the actual facts that she was stipulating to. Fifth and Fourteenth
 Amendments to the U.S. Constitution; Article I, Section 16 of the Ohio
Constitution; State v. D. W., 133 Ohio St.3d 434, 2012-Ohio-4544, 978
N.E.2d 434, ¶ 35-40. (8/6/2020 T. pp. 1-11; A-1).

Bond argues that the juvenile court did not properly determine

whether she was waiving her right to a probable cause hearing knowingly and

intelligently because the juvenile court did not conduct an adequate colloquy, did

not fully inform her of the consequences of the waiver, and ignored portions of the

record that indicated she was not competent to waive the probable cause hearing.

In State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544, 978 N.E.2d

894, ¶ 26, the Ohio Supreme Court found that a juvenile offender subject to transfer

proceedings may waive the right to an amenability hearing prior to a transfer. In

accepting such waiver, the court held that “the court must ensure that the juvenile’s

waiver of the right to an amenability hearing is made knowingly, intelligently, and

intentionally and that it is a voluntary relinquishment of a known right.” Id. at ¶ 25.

Additionally, the court found that prior to accepting a waiver, the juvenile court

must engage in a colloquy with the juvenile upon the record. Id. at ¶37. Courts of

appeals have found that the procedure for waiver of an amenability hearing outlined

in D.W., supra, applies to the waiver of a probable cause hearing. See State v. Smith,

12th Dist. Butler No. CA2020-09-101, 2021-Ohio-2982, ¶ 18; State v. J.T.S., 10th

Dist. Franklin No. 14AP-516, 2015-Ohio-1103, ¶ 20.

In this case, the juvenile court personally addressed Bond on the

record before accepting her waiver of the probable cause hearing. The juvenile court

determined that Bond discussed the charges with her attorney and her mother. It
informed Bond that the waiver would mean that the state would not have to present

evidence to prove that there was probable cause she committed the crimes charged,

that by waiving the hearing she was not admitting to any facts in the case, and that

by waiving the right to a hearing, the juvenile court would find probable cause and

transfer her case to “adult court” where she would be tried as an adult. The juvenile

court explained to Bond that she would be facing the same penalties as an adult

would, including possible prison time. Bond indicated she understood the

implications of her waiver of the probable cause hearing and indicated she wished

to waive the hearing. Further, the juvenile court asked Bond’s counsel whether Bond

understood the possible consequences and nature of the proceeding.

Our review of the colloquy between the trial court and Bond indicates

that the trial court ascertained that Bond was aware of the purpose and

requirements of the probable cause hearing and the effect of her waiver of the

hearing, e.g., that her case would be transferred from the juvenile court to the adult

court. We note that the colloquy was similar in both form and substance to

colloquies that have been found sufficient to allow a court to determine a waiver of

a probable cause hearing was done knowingly, intelligently, and voluntarily. See

State v. Brown, 10th Dist. Franklin No. 17AP-695, 2018-Ohio-4185, ¶ 22; J.T.S. at

¶ 21; State v. Johnson, 10th Dist. Franklin No. 12AP-898, 2013-Ohio-2008, ¶ 8.

Bond argues that the colloquy was insufficient because the juvenile

court did not specifically define probable cause and did not explain the gamut of

penalties Bond faced after transfer of her case. Appellate courts have not required
the juvenile court to define probable cause or provide specific details on potential

penalties.

We did not require the juvenile court in Johnson to provide the
juvenile with a legal definition of probable cause and we feel no need
to impose such an obligation upon the juvenile court in this case.
There is no indication in the record that appellant had an inadequate
opportunity to consult with legal counsel or that counsel failed to
adequately explain the proceedings to his client.

State v. JTS, 10th Dist. Franklin No. 14AP-516, 2015-Ohio-1103, ¶ 31; see also

Brown at ¶ 26. Further, any discussion of particular punishments that could be

imposed would be meaningless because the transfer of the case allows the grand jury

to bring different charges. See State v. Beauregard, 8th Dist. Cuyahoga No. 101418,

2015-Ohio-1021, ¶ 28.

Bond also raises as argument that the juvenile court erred by

accepting her waiver without questioning her competency after the motion for an

evaluation was withdrawn. In this case, Bond was represented by counsel and gave

no indication to the juvenile court that she did not understand the proceedings or

the consequences of her waiver. Bond has pointed to no current evidence or any

occurrence to indicate that the juvenile court could infer Bond was incompetent at

the time it accepted her waiver. The basis of concern for Bond’s competency was

based on information that was over two years old and, as such, Bond speculates that

there was an issue of present competency at the time of the juvenile court hearing.

Accordingly, she has not shown the juvenile court erred by accepting the waiver.

We overrule appellant’s first assignment of error.
 B. Bond’s plea did not strictly comply with Crim.R. 11(C)(2)

Bond raises several assignments of error regarding the proceedings

after her case was transferred to the general division of the common pleas court.

Her fourth assignment of error reads:

Assignment of Error IV: The trial court erred as a matter of law when
it accepted an unknowing, unintelligent, and involuntary guilty plea,
in violation of Crim.R. 11(C); the Fifth and Fourteenth Amendments
to the U.S. Constitution; Article I, Section 16 of the Ohio Constitution.
(3/8/2021 Entry; 3/8/2021 T. pp. 4-11; A-2).

Bond argues that when accepting her plea, the trial court did not

inform her of her right to a trial by jury. The state concedes that the trial court did

not. When accepting a plea to a felony, the trial court is required to strictly comply

with Crim.R. 11(C)(2) in notifying and ascertaining a criminal defendant

understands certain constitutional rights that are being waived. State v. Brinkman,

Slip Opinion No. 2021-Ohio-2473, ¶ 12. A trial court’s failure to notify a defendant

of a constitutional right being waived by a plea is reversible error. Id.; see also State

v. Washington, 8th Dist. Cuyahoga No. 110298, 2021-Ohio-2935, ¶ 13 (“The trial

court’s failure to strictly comply with the requirements of Crim.R. 11 renders the plea

invalid.”).

After review of the record of the plea proceedings, we find that the

trial court did not strictly comply with Crim.R. 11(C)(2)(c) when it failed to inform

appellant of her constitutional right to a jury trial. Bond’s fourth assignment of error

is sustained, and we vacate the plea and remand this case to the trial court.
 Due to our disposition of Bond’s fourth assignment of error, we will

not address her fifth and seventh assignments of error3 that challenge her sentence.

App.R. 12(A)(1)(c); State v. Robinson, 8th Dist. Cuyahoga No. 85149, 2005-Ohio-

2834, ¶ 49.

C. Appellant did not suffer ineffective assistance of counsel

Bond argues in her sixth assignment of error that she suffered

ineffective assistance of counsel. The assignment of error reads:

Assignment of Error VI: [Bond] was denied the effective assistance of
counsel when trial counsel failed to object to both the juvenile court
and the adult court’s errors. Sixth and Fourteenth Amendments to the
U.S. Constitution; Ohio Constitution, Article I, Section 10. (8/6/2020
T. pp. 1-11; 8/6/2020 Entry; A-1; 3/8/2021 Entry; 3/8/2021 T. pp. 4-
11; A-2).

Bond argues that the errors identified in her other assignments of

error occurred and states her counsel was ineffective by failing to object to or prevent

3 Appellant’s fifth and seventh assignments of error both allege error in sentencing. They
read:

Assignment of Error V: The sentence in this case is clearly and convincingly
contrary to law because it was imposed without any consideration of youth
and its attendant characteristics as mitigating, which is now mandated by
R.C. 2929.19(B)(1)(b). (4 /21/ 21 T. pp. 1-27; A-3).

Assignment of Error VII: Because the Reagan Tokes Act violates the Ohio
and United States Constitutions, [Bond’s] sentence is contrary to law. R.C.
2953.08(G)(2); Sixth and Fourteenth Amendments of the United States
Constitution; Articles I, II, and III of the United States Constitution; Article
I, Sections 5, 10 and 16 of the Ohio Constitution; State v. Sealey, 8th Dist.
Cuyahoga No. 109670, 2021-Ohio-1949, ¶ 45.
those alleged errors from occurring. As we overruled the assignments of error

alleging error in the juvenile proceedings and reversed Bond’s convictions on the

basis of a deficiency in the plea hearing, appellant’s arguments that she suffered

ineffective assistance of counsel are overruled. See State v. Ellis, 8th Dist. Cuyahoga

No. 109408, 2021-Ohio-1297, ¶ 24 (Resolution of assignments of error preclude

finding of ineffective assistance of counsel.).

III. CONCLUSION

Bond was subject to a mandatory transfer of her case from juvenile

court to the general division of the common pleas court. Ohio’s mandatory transfer

procedures are constitutional. Further, Bond knowingly and intelligently waived

her right to a probable cause hearing in juvenile court and did not receive ineffective

assistance of counsel. However, Bond’s plea was invalid where the trial court failed

to strictly comply with Crim.R. 11(C) and we vacate Bond’s convictions.

The convictions are vacated, and this cause is remanded to the lower

court for further proceedings upon the indicted charges consistent with this opinion.

It is ordered that appellant recover of appellee 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.
 A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.

___________________________________
MICHELLE J. SHEEHAN, PRESIDING JUDGE

EMANUELLA D. GROVES, J., and
MARY J. BOYLE, J., CONCUR