State v. Moore

[Cite as State v. Moore, 2022-Ohio-460.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY

STATE OF OHIO, :
: Case No. 20CA10
Plaintiff-Appellee, :
:
v. : DECISION AND JUDGMENT
: ENTRY
BRENDAN T. MOORE, :
: RELEASED: 02/09/2022
Defendant-Appellant. :

APPEARANCES:

Lauren Hammersmith and Timothy B. Hackett, Assistant State Public Defenders,
Office of the Ohio Public Defender, Columbus, Ohio, for Appellant.

Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Jenna J.
Waldo, Assistant Lawrence County Prosecutor, Ironton, Ohio, for Appellee.

Wilkin, J.

{¶1} Appellant, Brendan T. Moore, appeals the Lawrence County Court of

Common Pleas judgment of conviction entry. Moore pleaded guilty to felonious

assault and endangering children, both second-degree felonies. The offenses

were merged and the state elected to proceed on the felonious assault

conviction. The trial court imposed a prison term of six to nine years.

{¶2} Moore was initially charged in juvenile court. The matter was

transferred to adult court after the juvenile court made the determination that

Moore was 17 years of age at the time of the offenses, there was probable cause

to believe Moore committed the acts charged, and he is not amenable to

rehabilitation within the juvenile justice system. Moore presents four

assignments of error challenging the discretionary-bindover proceedings.
Lawrence App. No. 20CA10 2

{¶3} In the first assignment of error, Moore claims his attorney was

ineffective for failing to challenge the admission of his uncounseled statements to

the police at the probable cause hearing. In the second assignment of error,

Moore maintains the juvenile court’s finding of probable cause was not supported

by the sufficiency and manifest weight of the evidence. Moore thirdly asserts the

state failed to present sufficient credible evidence to rebut the expert’s testimony

that deemed him amenable to rehabilitation within the juvenile system. Finally, in

the fourth assignment of error, Moore argues the juvenile court committed plain

error when it failed to consider the blended serious youthful offender (“SYO”)

sentence before the court relinquished jurisdiction.

{¶4} We overrule Moore’s four assignments of error because none of his

arguments challenge the subject-matter jurisdiction of the common pleas court.

Thus, by pleading guilty to felonious assault, Moore waived all nonjurisdictional

errors that purportedly occurred in his bindover proceedings. Accordingly, we

affirm Moore’s conviction and sentence.

FACTS AND PROCEDURAL BACKGROUND

{¶5} In June 2019, a delinquency complaint was filed in juvenile court

alleging Moore committed two second-degree felonies: felonious assault and

endangering children. The charges stemmed from Moore’s conduct, when he

was 17 years old, of shaking his five-month old son, D.C., causing permanent

brain damage. On the same day as the filing of the complaint, the state filed a

motion to transfer the case to the common pleas court, general division, for

criminal prosecution. The state acknowledged that the transfer is discretionary.
Lawrence App. No. 20CA10 3

A probable cause hearing was held on July 10, 2019. At the hearing, Detective

Sergeant Jamie Pruitt and Dr. Christina Howard testified, respectively, regarding

Moore’s admission to shaking D.C., and the severe permanent injuries the infant

endures. The juvenile court found that Moore “was 17 years of age at the time of

the conduct charged and that there is probable cause to believe the youth

committed the alleged acts that would be crimes if committed by an adult.” The

trial court then required a full investigation to be completed to determine whether

Moore was amenable to juvenile rehabilitation.

{¶6} A few days later, the trial court ordered Dr. Daniel Davis to perform

an amenability assessment on Moore. Dr. Davis’ report was considered by the

trial court at the amenability hearing that was held on January 10, 2020. Dr.

Davis determined that Moore “has at least a moderate to high probability, from a

psychological standpoint, of positively responding to treatment within the juvenile

justice system.” This, however, was recommended with the clarification that

Moore “has intensive treatment needs. * * * [H]e will require continued intensive,

multi-modal treatment.” Furthermore, Dr. Davis stated that Moore

will require considerable intervention with an emphasis upon strict
accountability for his behavior wherever the court places him.

6. He will require considerable mental health, substance abuse
treatment, and cognitive behavioral interventions for his depression,
anger, as well as his poor decision-making, poor social skills and
emphasis upon strict accountability for his behavior.

{¶7} In addition to the admission of Dr. Davis’ report at the amenability

hearing, six witnesses testified, including Dr. Howard who attested to D.C.’s

severe permanent injuries. Detective Captain Joe Ross was one of the officers
Lawrence App. No. 20CA10 4

who responded to the hospital and saw D.C. “lifeless.” Moore admitted to

Detective Ross that he shook D.C. for 10 to 15 seconds. Moore’s probation

officer Randy Franz was the third witness. Moore was on probation at the time of

the offense after being adjudicated delinquent for possession of drugs. During

probation, Moore was cooperative with probation and counseling, and also tested

negative on all administered drug screens. In his opinion, Moore is mature and

competent.

{¶8} Investigator Shana Aliff and caseworker Whitney Reynolds with

Children Services also testified. Aliff was familiar with Moore and D.C. prior to

the felonious assault incident and testified that D.C. was normal and healthy. But

when she saw D.C. at the hospital, he had tubes and was just laying there. Both

Aliff and Reynolds saw D.C. a week prior to their testimony and indicated that the

infant does not interact and has mobility issues. D.C. resides with his maternal

great-grandmother Carolyn Malone and requires care around the clock. Malone

testified that D.C. is showing improvement with the assistance of his

occupational, physical and speech therapists, but he still cannot be fed with a

bottle and is not mobile on his own.

{¶9} The juvenile court held that Moore was not amenable to rehabilitation

within the juvenile system. The trial court reached that decision after

full consideration of [Moore’s] prior juvenile record, family
environment, school record, efforts previously made to treat and
rehabilitate the child, the nature and severity of the offense herein,
the age, physical, and mental condition of the victim as affected by
the matter herein, and other matters of evidence[.]
Lawrence App. No. 20CA10 5

The juvenile court also applied the factors in R.C. 2152.12(D), in which the court

gave “great weight” in favor of transfer to Moore’s relationship with D.C., the

infant’s severe permanent injuries, and that D.C. was defenseless when Moore

shook him. The juvenile court further found that “Given the gravity of the act

charged and the rehabilitation needed,” there is insufficient time to rehabilitate

Moore since “there would be slightly more than two years remaining in the

juvenile system[.]” When considering the factors in R.C. 2152.12(E), the court

found none of the factors weighed against transfer, in which Moore was

previously adjudicated a delinquent child and was on probation at the time of the

offense, he has no disability, and he is mature enough for transfer.

Subsequently, the court transferred the case to the general division of the

common pleas court.

{¶10} Approximately two weeks later, an indictment was filed in the

common pleas court, general division, charging Moore with two second-degree

felonies: felonious assault and endangering children. Moore initially pleaded not

guilty to the offenses but on August 25, 2020, he reached a plea agreement with

the state. A change of plea hearing was held in which the trial court inquired of

Moore’s desire to plead guilty and his signature on the form. Moore stated he

voluntarily signed the jury waiver and plea forms. The trial court then advised

Moore of the constitutional rights he waives by pleading guilty, the maximum

penalty he faces, and that by pleading guilty “you will make a complete

admission that you committed all the acts alleged in both Count 1 and Count 2 of

the indictment[.]” Moore maintained he understood and wished to proceed with
Lawrence App. No. 20CA10 6

the plea. Moore then pleaded guilty to both offenses as charged in the

indictment.

{¶11} Disposition was held on September 1, 2020. At sentencing, the trial

court merged the felonious assault and endangering children convictions, and

imposed the jointly recommended prison term of six to nine years. In December

2020, Moore requested leave to appeal out of time which we granted.

ASSIGNMENTS OF ERROR

I. BRENDAN MOORE WAS DEPRIVED OF HIS RIGHT TO THE
EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS
ATTORNEY FAILED TO CHALLENGE THE USE OF
BRENDAN’S UNCOUNSELED, UNWARNED, AND FORCED
STATEMENTS TO POLICE, IN VIOLATION OF THE FIFTH,
SIXTH, AND FOURTEENTH AMENDMENTS TO THE U.S.
CONSTITUTION; ARTICLE I, SECTIONS 10 AND 16 OF THE
OHIO CONSTITUTION.

II. THE JUVENILE COURT’S PROBABLE CAUSE FINDINGS FOR
CHILD ENDANGERING AND FELONIOUS ASSAULT WERE
AGAINST THE SUFFICIENCY AND MANIFEST WEIGHT OF
THE EVIDENCE BECAUSE THE STATE FAILED TO RAISE
MORE THAN A MERE SUSPICION OF THE REQUISITE MENS
REA FOR EACH OFFENSE.

III. AFTER BRENDAN WAS DEEMED AMENABLE BY THE ONLY
EXPERT EVALUATOR, THE PROSECUTOR’S OFFICE FAILED
TO PROVIDE SUFFICIENT CREDIBLE EVIDENCE OF NON-
AMENABILITY, IN VIOLATION OF R.C. 2152.12(B); THE FIFTH
AND FOURTEENTH AMENDMENTS TO THE U.S.
CONSTITUTION; AND ARTICLE I, SECTION 10 OF THE OHIO
CONSTITUTION.

IV. THE JUVENILE COURT COMMITTED PLAIN ERROR WHEN IT
FAILED TO CONSIDER A BLENDED SYO SENTENCE BEFORE
DECIDING BRENDAN COULD NOT BE TREATED WITHIN THE
JUVENILE COURT’S JURISDICTION.

{¶12} Moore argues in the first assignment of error that his counsel was

ineffective for failing to contest the use of his statement to the police at the
Lawrence App. No. 20CA10 7

bindover probable cause hearing because the statement was taken without the

presence of a parent or guardian, and he was not advised of his Miranda rights.

In the second assignment of error, Moore asserts the juvenile court’s probable

cause finding was not based on sufficient evidence and was against the manifest

weight of the evidence. According to Moore, no evidence was presented to

demonstrate the requisite mens rea or that he caused the injuries to D.C.

Therefore, Moore maintains that the juvenile court’s transfer order should be

reversed.

{¶13} In the final two assignments of error, Moore challenges the juvenile

court’s conclusion that he was not amenable to rehabilitation within the juvenile

justice system. First, Moore claims the state failed to meet its burden

establishing he was not amenable and rebut the only expert evidence that he

“has a moderate to high probability of positively responding to treatment within

the juvenile justice system.” Second, Moore requests reversal of the juvenile

court’s transfer decision because the court committed plain error by failing to

consider a blended SYO sentence.

{¶14} The state urges us to apply our previous opinion in State v. Powell,

4th Dist. Gallia No. 20CA3, 2021-Ohio-200, and similarly conclude that Moore’s

guilty plea waives the nonjurisdictional arguments in the first three assignments

of error. As for the fourth assignment of error, the state maintains the juvenile

court did not commit plain error since there “is no legal rule in existence that

requires a court to consider a blended sentence.”
Lawrence App. No. 20CA10 8

{¶15} In response, Moore contends his assignments of error challenge the

transfer order, and in essence, he is challenging the subject-matter jurisdiction of

the common pleas court. In addition, Moore requests that we abandon our

decision in Powell, which according to him, stands as “an outlier decision” and

misreads the Supreme Court’s decision in Smith v. May, 159 Ohio St.3d 106,

2020-Ohio-61, 148 N.E.3d 542. In support of his argument that we should

deviate from Powell, Moore cites to several cases from other appellate district

courts.

{¶16} Before we expand on our rejection of Moore’s contention that we

deviate from Powell, we want to emphasize that because “the bindover

proceeding is not adjudicative (the juvenile’s guilt or innocence is not at issue),

statutory and constitutional questions concerning the admissibility of evidence

are premature and need not be addressed.” State v. Whisenant, 127 Ohio App.

3d 75, 85, 711 N.E.2d 1016 (11th Dist.1998). Thus, a motion to suppress is not

properly before a juvenile court in a probable cause hearing. See State v.

Starling, 2d Dist. Clark No. 2018-CA-34, 2019-Ohio-1478, ¶ 32.

{¶17} In addition, the standard of proof in a probable cause hearing is not

the heightened standard Moore asserts, rather, “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. Iacona, 93 Ohio St.3d 83, 93,

2001-Ohio-1292, 752 N.E.2d 937. Here, the evidence includes Moore’s

statement admitting to shaking D.C. for approximately 15 seconds, which is

sufficient evidence to raise more than a mere suspicion of guilt.
Lawrence App. No. 20CA10 9

{¶18} “Juveniles facing bindover to an adult court maintain the right to

object to a juvenile court’s noncompliance with bindover procedures and the right

to appeal from any error in the ordinary course of law.” (Emphasis sic.) Smith v.

May, 159 Ohio St.3d 106, 2020-Ohio-61, 148 N.E.3d 542, ¶ 29. In the ordinary

course of law,

“[A] guilty plea * * * renders irrelevant those constitutional
violations not logically inconsistent with the valid establishment of
factual guilt and which do not stand in the way of conviction if
factual guilt is validly established.” Menna v. New York (1975), 423
U.S. 61, 62, 96 S.Ct. 241, 46 L.Ed.2d 195, fn. 2. Therefore, a
defendant who, like Fitzpatrick, voluntarily, knowingly, and
intelligently enters a guilty plea with the assistance of counsel “may
not thereafter raise independent claims relating to the deprivation of
constitutional rights that occurred prior to the entry of the guilty
plea.” Tollett v. Henderson (1973), 411 U.S. 258, 267, 93 S.Ct.
1602, 36 L.Ed.2d 235. See, also, Ross v. Auglaize Cty. Common
Pleas Court (1972), 30 Ohio St.2d 323, 59 O.O.2d 385, 285 N.E.2d
25 (valid guilty plea by counseled defendant waives all
nonjurisdictional defects in prior stages of proceedings); State v.
Spates (1992), 64 Ohio St.3d 269, 271–273, 595 N.E.2d 351.

State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶ 78.

{¶19} A guilty plea, however, does not waive a defendant’s right to

challenge the subject-matter jurisdiction of the court. See State v. Keslar, 4th

Dist. Hocking No. 98CA20, 1999 WL 1073961, *3 (Nov. 17, 1999). The focus in

a court’s subject-matter jurisdiction is “on whether the forum itself is competent to

hear the controversy.” Smith at ¶ 37 (Kennedy, J. concurring in judgment only).

Therefore, it is “within the subject-matter jurisdiction of a juvenile court to transfer

a case and within the subject-matter jurisdiction of the general division of the

common pleas court to receive it.” Id. at ¶ 39. More importantly, “when a specific

action is within a court’s subject-matter jurisdiction, any error in the exercise of
Lawrence App. No. 20CA10 10

that jurisdiction renders the court’s judgment voidable, not void.” Id. at ¶ 40.

This includes an “error in following the statutory procedures prescribed for

conducting a bindover hearing[.]” Id. at ¶ 46. In summary:

The juvenile court therefore retained its exclusive jurisdiction
over Smith’s case until it journalized the bindover order, which
“abate[d] the jurisdiction of the juvenile court with respect to the
delinquent acts alleged in the complaint,” R.C. 2152.12(I). The
general division of the common pleas court then had subject-matter
jurisdiction over Smith’s case and therefore had the authority to
proceed to judgment.

Id. at ¶ 48.

{¶20} Contrary to Moore’s claims, the Supreme Court in Smith overruled

in part Gaskins v. Shiplevy, 74 Ohio St.3d 149, 656 N.E.2d 1282 (1995), and

“made clear in Smith that only a jurisdictional defect would be potentially

cognizable in habeas corpus.” State v. Harris, 161 Ohio St. 3d 407, 2020-Ohio-

5480, 163 N.E.3d 565, ¶ 15.

{¶21} We applied the clarifying Smith decision in State v. Powell and held

“If an error in a bindover proceeding is nonjurisdictional, it can be waived by a

voluntary guilty plea or forfeited by the failure to preserve it in the juvenile court

proceedings.” 4th Dist. Gallia No. 20CA3, 2021-Ohio-200, ¶ 34. We then

overruled Powell’s assignments of error concluding they were waived as they

were nonjurisdictional, including the failure to appoint a criminal investigator at

the probable cause hearing, the juvenile court’s denial of his motion to suppress,

the claim that his counsel was ineffective at the probable cause hearing for not

obtaining an investigator, and the argument that the state failed to present

sufficient evidence at the probable cause hearing. Id. at ¶ 38, 40, 51, 55.
Lawrence App. No. 20CA10 11

{¶22} We decline to abandon Powell, and note that the cases cited by

Moore, with the exception of State v. Lamb, 6th Dist. Lucas No. L-19-1177, 2021-

Ohio-87, were decided prior to Smith. And in Lamb, the Sixth District Court of

Appeals did not cite to Smith. The Seventh District Court of Appeals, on the

other hand, applied Smith and consistent with our Powell decision held that “a

defendant who pleads guilty in the general division of the common pleas court

waives the ability to contest the sufficiency and weight of the evidence presented

at the probable cause hearing in the juvenile court.” State v. Zarlengo, 7th Dist.

Mahoning No. 20 MA 0036, 2021-Ohio-4631, ¶ 46.

{¶23} In the matter at bar, Moore does not dispute that the juvenile court,

after finding him not amenable to rehabilitation within the juvenile system,

ordered the case to be a transferred to the general division. The transfer order

relinquished the juvenile court of jurisdiction with respect to Moore’s act of

shaking D.C. and granted the general division of the common pleas court

subject-matter jurisdiction of the case. An indictment was filed charging Moore

with felonious assault and endangering children, which he does not challenge as

being invalid nor does he challenge the validity of his guilty plea to the offenses.

Therefore, the common pleas court had the authority to proceed with judgment.

{¶24} Moore’s four assignments of error are nonjurisdictional as they all

challenge the juvenile court’s exercise of its discretion finding probable cause

Moore committed the offenses and concluding that Moore was not amenable to

rehabilitation within the juvenile justice system. By pleading guilty to the offenses
Lawrence App. No. 20CA10 12

in common pleas court, Moore waived the alleged errors in the bindover

proceedings. Wherefore, Moore’s assignments of error are overruled.

SENTENCING

{¶25} Although not raised as an issue by either party, we sua sponte

remand the case for the proper inclusion of postrelease control in the judgment

entry of conviction. Moore was convicted of felonious assault, a second-degree

felony. Pursuant to R.C. 2967.28(B)(2)’s version when Moore’s disposition

hearing was held, his sentence included mandatory postrelease control of three

years.1 The trial court advised Moore at the sentencing hearing of the mandatory

three-year postrelease control. However, in the judgment entry, the trial court

indicated that postrelease control was mandatory for a period of five years: “The

Court has notified the defendant that post-release control is mandatory in this

case for five (5) years; that after the defendant serves his prison sentence,

Defendant will be placed on this mandatory five (5) year period of post-release

control[.]”

{¶26} This is a clerical error that may be corrected by the trial court

through a nunc pro tunc judgment entry of sentence. Trial courts retain

jurisdiction to correct judgment entries to reflect what the court actually decided.

State ex rel. Cruzado v. Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856

N.E.2d 296, ¶ 19; see also Crim.R. 36 (“Clerical mistakes in judgments, orders,

or other parts of the record, and errors in the record arising from oversight or

omission, may be corrected by the court at any time.”)

1 On September 30, 2021, a new version of R.C. 2967.28 took effect. Under the new version,
postrelease control is mandatory up to 3 years but not less than 18 months for second-degree
felonies. R.C. 2967.28(B)(3).
Lawrence App. No. 20CA10 13

{¶27} In the matter at bar, Moore’s sentence includes a mandatory three-

year postrelease control which he was properly advised of at the sentencing

hearing. The error in the judgment entry of sentence should be corrected to

reflect the postrelease control applicable to Moore. Therefore, we sua sponte

remand the matter to the trial court to issue a nunc pro tunc entry that properly

imposes a mandatory postrelease control of three years.

CONCLUSION

{¶28} Having overruled Moore’s four assignments of error, we affirm the

trial court’s judgment entry of conviction but remand the matter for the court to

issue a nunc pro tunc entry that correctly reflects Moore’s mandatory postrelease

control.

JUDGMENT AFFIRMED AND CAUSE REMANDED
FOR NUNC PRO TUNC ENTRY.
Lawrence App. No. 20CA10 14

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED AND CAUSE
REMANDED FOR NUNC PRO TUNC ENTRY and that appellant shall pay the
costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the
Lawrence County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS
COURT, it is temporarily continued for a period not to exceed 60 days upon the
bail previously posted. The purpose of a continued stay is to allow Appellant to
file with the Supreme Court of Ohio an application for a stay during the pendency
of proceedings in that court. If a stay is continued by this entry, it will terminate at
the earlier of the expiration of the 60-day period, or the failure of the Appellant to
file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to
expiration of 60 days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.

Abele, J. and Hess, J.: Concur in Judgment and Opinion.

For the Court,

BY: ____________________________
Kristy S. Wilkin, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.