State v. Carter

[Cite as State v. Carter, 2023-Ohio-4310.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 112429
v. :

ARSHAUN CARTER, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: VACATED AND REMANDED
RELEASED AND JOURNALIZED: November 30, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-668032-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kenan Mack, Assistant Prosecuting
Attorneys, for appellee.

Timothy Young, Ohio Public Defender, and Timothy B.
Hackett, Assistant Public Defender, for appellant.

KATHLEEN ANN KEOUGH, J.:

Defendant-appellant, Arshaun Carter, appeals from his convictions

and sentence after pleading guilty to robbery, theft, and having a weapon while

under disability, asserting that the juvenile court abused its discretion in
transferring his case from juvenile court to the general division. For the reasons that

follow, we vacate Arshaun’s convictions and remand this matter to the juvenile court

for proceedings consistent with this opinion.

I. Discretionary Transfer under R.C. 2152.12(B)

Ohio’s juvenile justice system provides for two types of transfer:

discretionary and mandatory. State v. Hanning, 89 Ohio St.3d 86, 90, 728 N.E.2d

1059 (2000). “Discretionary transfer affords juvenile court judges the discretion to

transfer to adult court certain juveniles who do not appear to be amenable to care or

rehabilitation within the juvenile system or who appear to be a threat to public

safety.” State v. Nicholas, Slip Opinion No. 2022-Ohio-4276, ¶ 3, citing R.C.

2152.12(B). On the other hand, mandatory transfer removes discretion from judges

and requires the transfer of a juvenile to adult court in certain situations. Id., citing

R.C. 2152.12(A). This case involves discretionary transfer.

In a discretionary transfer proceeding, the juvenile court may transfer

the child to adult court for prosecution if it finds (1) that the child was at least 14

years old at the time of the charged act, (2) there is probable cause to believe that

the child committed the charged act, and (3) “[t]he child is not amenable to care or

rehabilitation within the juvenile system, and the safety of the community may

require that the child be subject to adult sanctions.” R.C. 2152.12(B)(1), (2), and (3).

Before making a discretionary-transfer decision, the juvenile court must order an

“investigation into the child’s social history, education, family situation, and any

other factor bearing on whether child is amenable to juvenile rehabilitation,
including a mental health examination of the child by a public or private agency or

a person qualified to make the examination.” R.C. 2152.12(C).

In determining whether to exercise its discretion to transfer a juvenile

to adult court under R.C. 2152.12(B), the juvenile court must weigh the statutory

factors in R.C. 2152.12(D) in favor of transfer against the statutory factors in R.C.

2152.12(E) against transfer, and the court must indicate on the record the specific

factors it weighed in making its determination. R.C. 2152.12(B)(3). A juvenile

court’s decision to exercise its discretion to transfer a juvenile to adult court must be

supported by a preponderance of the evidence. Nicholas, 2022-Ohio-4276, at ¶ 35.

Further, the state bears the burden of persuasion when it asks the juvenile court to

transfer a juvenile’s case to adult court. Id. at ¶ 27. “Thus, the facts presented to the

juvenile court with respect to a discretionary transfer must persuade the court that

the juvenile is not amenable to care or rehabilitation in the juvenile system.” Id.

II. Juvenile Court Proceedings

In October 2021, Arshaun was charged in juvenile court with

aggravated robbery, three counts of robbery, and two counts of grand theft auto, all

enhanced with one- and three-year firearm specifications. He was also charged with

having a weapon while under disability, improper handling of firearms in a motor

vehicle, and misdemeanor theft.

The charges stemmed from an incident in which Arshaun, who was

15 years old at the time, and two accomplices encountered a man walking into a gas

station. The man had a gun in his front pocket and, as the man stood at the counter,
Arshaun grabbed the man’s gun from his pocket. They fell to the ground and

Arshaun and one accomplice wrestled over the gun until Arshaun gained possession

of the gun, the man’s phone, and his car keys. The man ran out of the gas station.

Arshaun handed the man’s car keys to the second accomplice, who drove away in

the man’s car. Arshaun and the other accomplice got into the accomplice’s car and

drove away. The police obtained the license plate number of the accomplice’s car

from video surveillance at the gas station and apprehended Arshaun shortly

thereafter.

The state moved to transfer the case to adult court for prosecution.

After a hearing, the juvenile court determined there was probable cause to believe

that Arshaun had committed the charged acts that if committed by an adult would

have corresponding felony and misdemeanor classifications, referred him to the

juvenile court diagnostic clinic for a psychological evaluation, and set the matter for

an amenability hearing.

Prior to the amenability hearing, Dr. Lynn Williams, a forensic

psychologist at the juvenile court diagnostic clinic, submitted a report regarding her

psychological evaluation of Arshaun. She reported that Arshaun’s mother and

father had never married and his father was presently in prison. She said that for

most of his life, Arshaun lived with his grandmother and other relatives because his

mother had ongoing substance abuse and mental health issues, as well as a history

of legal issues.
 Dr. Williams reported that Arshaun has an extensive history of

mental health diagnoses and intervention in the community, beginning at age five

for behavioral issues. She also reported that probation records reflected that

Arshaun’s grandmother had reached out “multiple times” for assistance with

Arshaun’s severe anger outbursts but despite two referrals for multisystemic therapy

(“MST”), the referrals were denied “through no fault of the family.” She further

reported that although a referral was made to Phoenix Court, a specialized docket to

divert youth with mental health issues, Arshaun’s mother said she would be unable

to fulfill the commitment and expectations of the program.

Dr. Williams reported at least one psychiatric hospitalization for

Arshaun on October 6, 2021, nine days before the incident at issue, “due to extreme

aggressive behaviors.” The hospital record indicated that Arshaun had stopped

taking his prescribed psychiatric medication prior to this hospitalization. Dr.

Williams reported that Arshaun was diagnosed during this hospitalization with

intermittent explosive disorder and prescribed several psychiatric medications, but

his grandmother reported that he was sent home without any medications and the

prescriptions were delayed in getting filled.

Dr. Williams said that Arshaun’s grandmother recalled other

psychiatric hospitalizations and that Arshaun had been admitted to University

Hospitals when he was 14 years old for aggression and his mother had taken him to

the hospital on a few occasions between 2019 and 2020 because of his temper

tantrums. Dr. Williams reported that Arshaun had school-based and outpatient
services with multiple community agencies, including Murtis Taylor, Ohio

Guidestone, Beech Brook, Applewood Centers, and Bellefaire JCB, and that his past

mental health diagnoses included disruptive mood dysregulation disorder, bipolar

disorder, attention deficit hyperactivity disorder, and oppositional defiant disorder.

In addition to these diagnoses, a mental health counselor at the juvenile detention

facility reported that Arshaun had unspecified anxiety, although she said that his

anxiety symptoms had decreased while at the detention center due to medication

management. Dr. Williams reported that Arshaun had been in the juvenile

detention facility since his apprehension in October 2021 and that he had been

respectful to both peers and staff and had not had any negative interactions or been

involved in any physical altercations.

Based on her psychological testing, Dr. Williams diagnosed Arshaun

with unspecified bipolar disorder; unspecified disruptive, impulse control and

conduct disorder; and cannabis use disorder severe, albeit in remission due to a

controlled environment in the juvenile detention facility. She concluded that

Arshaun’s risk for dangerousness was in the high offender range. With regard to his

emotional and psychological maturity, Dr. Williams noted that Arshaun’s overall

score when he was taking psychiatric medication was high, demonstrating an ability

to make decisions with reasonable, sound judgment. She noted, however, that

according to multiple sources, when Arshaun does not take his psychiatric

medication, he can be a “completely different person,” showing “poor self-regulation

of emotions and deceased ability to practice self-control.”
 With respect to treatment amenability, Dr. Williams reported that

Arshaun’s score placed him in the middle range, indicating that he has some

characteristics that can indicate a capacity for change while other characteristics are

more difficult to treat. She reported that to reduce recidivism, Arshaun needed

mental health services that included psychiatric medication management, and that

his prior problematic behaviors and inability to practice behavioral control

consistently were sometimes linked to poor medication compliance. She stated that

Arshaun has significant anger management issues that have resulted in patterns of

defiant behavior, excessive physical aggression, and property destruction, and that

he needs cognitive behavioral individual intervention to develop skills related to

emotion regulation to improve the choices he makes in life. She reported that

“medication management of his affective disorder will be a critical part of any

intervention.” Dr. Williams did not testify at the amenability hearing although both

parties stipulated to her report.

Kelli Toppin, Arshaun’s probation officer, testified at the amenability

hearing that Arshaun was on probation for a robbery where he and another youth

robbed a young male of his bookbag on an RTA platform. On direct examination,

Toppin testified that while on probation, there were two MST referrals for Arshaun’s

family but both referrals were closed through no fault of Arshaun. The first referral

was closed because Arshaun’s mother was not participating; the referral to

Applewood MST was closed because the family was involved at the time with the
Cuyahoga Division of Child and Family Services and Applewood did not want to

duplicate services.

Toppin said that Arshaun was referred to the Fatherhood Initiative

after his son was born in July 2021, but did not participate in those services. She

testified that Arshaun was referred to Catholic Charities for a dual diagnosis and

chemical assessment in late September 2021, but because he was hospitalized at the

Fairview Hospital Psychiatric Clinic shortly after the referral, the assessment was

not completed until after he was detained in the juvenile detention facility. Toppin

testified that Arshaun was also referred in early October 2021 to Signature Health

for individual counseling but the counseling never started because he was arrested

on this case shortly after the referral. When the prosecutor asked Toppin on

redirect, “So what services did Arshaun actually participate [in],” she acknowledged

that other than the initial Signature Health appointment, “there was [sic] no

additional services except for being in the psychiatric placement.”1

The prosecutor then asked Toppin, “Do you feel that any further

probation would help Arshaun be rehabilitated in the Juvenile System?” She

responded that she was not sure what other community-based services would be

available for him because numerous agencies worked with him since he was young.

1 Dr. Williams’s report indicated that the appointment at Signature Health never

took place because Arshaun became extremely agitated when he was not seen right away
for his appointment. He left the building, picked up a rock, and began damaging his
grandmother’s car. Because he was “out of control,” the police were called and he was
arrested and transported to the Fairview Hospital Psychiatric Clinic, where he remained
for two days.
 The trial judge then addressed the statutory factors set forth in R.C.

2152.12 and made the following findings:

So the factors against transfer, you’ve not previously been committed
to the Ohio Department of Youth Services [“ODYS”].

You have an extensive mental health diagnosis which includes
unspecified bipolar disorder; however, you’re not intellectually
disabled, so even though you have this diagnosis, you’re able to
function.

You’re only 16 for two months. Your birthday was in December, and as
your attorney pointed out, your behavior in the Detention Center for
the past 124 days other than some things recently has been appropriate.

So those are the reasons why I would keep you here.

So the reasons in favor of transfer, you know, it’s been discussed
whether victim suffered any physical, psychological or economic harm.
I’m gonna say yes.

If someone grabbed, whether I was allowed to have the gun or not, if
somebody grabbed my car keys and my phone and took my car, I’d
suffer some psychological and economic harm for sure. And when you
did that, you had the firearm on or about your person. You grabbed the
gun, then took his phone and keys.

At the time of the act charged you were awaiting adjudication or
disposition as a delinquent child and were on community control, I
mean, you can check all those boxes.

The other one is, you know, the question is the results of previous
juvenile sanctions and program, will rehabilitation occur in the
Juvenile System?

You’ve been offered MST, Applewood MST, Signature Health,
Fatherhood Initiative, Catholic Charities, Beech Brook, Murtis Taylor,
Guidestone, PEP, and Bellefaire. I don’t think we have anything left,
so you can check that box. (Emphasis added.)

And based on the psychological evaluation Rule 30 by Dr. Williams, it’s
clear that you’re emotionally, physically, and psychologically mature
enough for transfer.
 And based on the offenses that you have, I do not believe that there’s
sufficient time to rehabilitate you within the Juvenile System;
therefore, I’m going to find that the factors in favor of transfer outweigh
those against transfer and I’m going to transfer your case to the Adult
Division of the Court of Common Pleas or General Division for further
proceedings and indictment.

III. Adult Court Proceedings

A ten-count indictment was filed in common pleas court charging

Arshaun with aggravated robbery, three counts of robbery, two counts of grand

theft, theft, improperly handling firearms in a motor vehicle, obstructing justice, and

having weapons while under disability. Under a plea agreement, Arshaun pleaded

guilty to robbery in violation of R.C. 2911.01(A)(1), a second-degree felony, with a

one-year firearm specification; grand theft of a motor vehicle in violation of R.C.

2913.02(A)(1), a fourth-degree felony; and having weapons while under disability in

violation of R.C. 2923.13(A)(2), a felony of the third degree. The trial court

sentenced him to an aggregate term of six years in prison and a fine of $4,000. This

appeal followed.

IV. Law and Analysis

In his first assignment of error, Arshaun contends that the trial court

abused its discretion by transferring his case to adult court.

An appellate court reviews a juvenile court’s determination regarding

a juvenile’s amenability to rehabilitation or treatment in the juvenile system under

an abuse-of-discretion standard. In re M.P., 124 Ohio St.3d 445, 2010-Ohio-599,

923 N.E.2d 584, ¶ 14. An abuse of discretion occurs when a court exercises “its

judgment[] in an unwarranted way[] in regard to a matter over which it has
discretionary authority.” Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-

3304, 187 N.E.3d 463, ¶ 35. An abuse of discretion is evident where the trial court’s

decision lacks a “‘sound reasoning process.’” State v. Morris, 132 Ohio St.3d 337,

2012-Ohio-2407, 972 N.E.2d 528, ¶ 14, quoting AAAA Ents., Inc. v. River Place

Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597

(1990). Because our review under the abuse-of-discretion standard is deferential,

as long as the juvenile court considered the appropriate factors under R.C.

2152.12(D) and (E), and there is some competent, credible evidence to support the

juvenile’s court’s findings, there is no abuse of discretion in deciding whether to

transfer the case to the common pleas court. State v. Jordan, 8th Dist. Cuyahoga

No. 111547, 2023-Ohio-311, ¶ 11, citing Nicholas, Slip Opinion No. 2022-Ohio-4276

at ¶ 73.

Under R.C. 2152.02(A), the overriding purposes for juvenile

dispositions are “to provide for the care, protection, and mental and physical

development of children * * *, protect the public interest and safety, hold the

offender accountable for the offender’s actions, restore the victim, and rehabilitate

the offender.” These purposes are to be achieved “by a system of graduated

sanctions and services.” Id. Arshaun contends that the juvenile court acted

unreasonably because it wrongly concluded that no further juvenile court services

were available to him, even though the court specifically found that he had never

been committed to ODYS, which has care and treatment services for juveniles. Thus,

he contends that the juvenile court’s nonamenability finding was based on a
demonstrably false premise that there were no remaining juvenile court options to

hold him accountable and restore and rehabilitate him.

We agree and find that the juvenile court’s conclusion that there was

nothing left to offer Arshaun in the juvenile court system was not supported by the

evidence presented at the amenability hearing. Toppin’s testimony at the hearing

and Dr. Williams’s report established that Arshaun had been provided school-based

services and community services with multiple agencies while he was attending

school. However, Toppin’s testimony and Dr. Williams’s report demonstrated that

although community-based services had been offered to Arshaun while he was in

the juvenile system, each of those services (other than the two-day psychiatric

hospitalization) failed, through no fault of Arshaun. In fact, the evidence

demonstrated that either the requested services were declined by the providers (i.e.,

the MST providers) or the services never even started. Thus, the trial court’s

conclusion that there was “nothing left” for Arshaun in the juvenile system was not

supported by the record. Instead, the evidence demonstrated that because the

offered services had never even begun, much less been completed, Arshaun could

have participated in the services while in the juvenile system if offered the

opportunity.

As stated by Ohio Supreme Court, “[t]he question of a juvenile’s

amenability to care and rehabilitation in the juvenile system is one of the juvenile’s

rehabilitative potential, and it is separate from the question of the services the state

has to offer or the services a juvenile court judge perceives the state has to offer.”
(Emphasis sic.) Nicholas, Slip Opinion No. 2022-Ohio-4276 at ¶ 54. Here, the

juvenile court concluded that Arshaun was not amenable to rehabilitation because

the court believed there were no services available for him other than those already

offered to him. This conclusion, however, is directly refuted by the evidence at the

amenability hearing that Arshaun had never been committed to ODYS — which has

services to treat his mental health problems to restore and rehabilitate him — and

by the evidence that the offered services never began. Accordingly, the juvenile

court erroneously based its conclusion on what it perceived to be the state’s lack of

further resources for Arshaun instead of Arshaun’s rehabilitative potential.

Moreover, the trial court’s conclusion that there were no services

available to Arshaun other than those already offered to him is refuted by R.C.

2152.19(A)(2), which provides that in addition to any other disposition authorized

or required by R.C. Chapter 2152, the juvenile court may commit a delinquent child

[t]o the temporary custody of any school, camp, institution, or other
facility operated for the care of delinquent children by the county, by a
district organized under section 2152.41 or 2151.65 of the Revised Code,
or by a private agency or organization, within or without the state, that
is authorized and qualified to provide the care, treatment, or placement
required.

Thus, a juvenile court “may not base a decision to transfer a child to adult court on

a perceived lack of * * * resources when the General Assembly has made available

other options should the need for those additional resources arise.” Nicholas at ¶ 55.

As set forth in R.C. 2152.19(A)(2), there were indeed services available to Arshaun

in the juvenile system other than those that had already been offered to him.
 Finally, the juvenile court’s conclusion that the victim in this case

suffered economic and psychological harm is not supported by any evidence in the

record. Because neither party produced any evidence whatsoever at the amenability

hearing regarding the harm suffered by the victim, the juvenile court’s speculation

that the victim suffered economic and psychological harm, and that this factor

therefore weighed in favor of transfer, is contrary to the record.

We recognize that a juvenile court has discretion to decide how much

weight to give to each factor in R.C. 2152.12(D) and (E) and that disagreement with

the way the juvenile court weighed the factors is not a reason to reverse the court’s

discretionary decision regarding transfer to adult court. See Jordan, 2023-Ohio-311

at ¶ 10, 12. In light of the preceding discussion, however, we do not consider this

case as one involving the juvenile court’s alleged improper weighing of the factors.

Rather, the juvenile court’s finding that there were no other mental health or

rehabilitative services in the juvenile system to offer Arshaun, as well as its finding

that the victim suffered economic and psychological harm, were unsupported by and

indeed contrary to the evidence established by the record. Absent these findings,

the juvenile court’s amenability determination was not supported by the

preponderance of the evidence and, accordingly, the court abused its discretion in

relinquishing jurisdiction. See Nicholas, Slip Opinion No. 2022-Ohio-4276 at ¶ 43,

56 (where the juvenile court’s decision that the juvenile was not amenable to

treatment and rehabilitation in the juvenile system was based on its perception that

that ODYS lacked the necessary resources to treat the juvenile’s mental illness, but
the perception was contrary to the evidence in the record, the court’s amenability

determination was not supported by the preponderance of the evidence and thus

was an abuse of discretion).

The first assignment of error is sustained. Arshaun’s convictions are

vacated and the matter is remanded to the juvenile court for further proceedings

consistent with this opinion.

It is ordered that appellant recover from 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.

KATHLEEN ANN KEOUGH, PRESIDING JUDGE

LISA B. FORBES, J., CONCURS;
EILEEN T. GALLAGHER, J., DISSENTS (WITH SEPARATE OPINION)

EILEEN T. GALLAGHER, J., DISSENTING:

I respectfully dissent and would affirm the trial court judgment

because the evidence shows that Arshaun is not amenable to care or rehabilitation

within the juvenile system and is a threat to public safety. Arshaun had three prior

adjudications prior to this case, including prior felonies. (Amenability tr. at 11.) His

prior adjudications included offenses such as failure to comply, receiving stolen
property, and obstructing official business. At the time of the amenability hearing,

he had three active cases pending, including this case. His other cases included

offenses such as assault, domestic violence, and resisting arrest. And he was charged

with aggravated robbery, grand theft of a motor vehicle, having weapons while

under disability and other offenses in the instant case. And he was on community

control when he committed the acts giving rise to this case.

As stated by the majority, Arshaun failed to complete some services

through no fault of his own. However, he has been receiving services since he was

eight years old. He received school-based services through Beech Brook when he

was eight, he received a psychiatric evaluation through Murtis Taylor when he was

ten, he received services though Guidestone when he was 11, and he was referred to

PEP Connections when he was 11 years old, which lasted for one year. (Amenability

tr. 15.) He was also referred to Bellefaire for school-based services while he was a

student at Miles Park Elementary. (Amenability tr. 15.) Arshaun’s probation officer

testified: “So since approximately age 8 through his school years he’s been involved

with counseling in the community.” (Amenability tr. 15.) Although Arshaun’s

grandmother was recently trying to engage him in counseling, he was arrested

before the counseling could start. Therefore, the failure to receive those services

were Arshaun’s fault.

Arshaun’s past and current offenses of violence demonstrate an

escalation in criminal behavior from misdemeanors to aggravated robbery involving

a firearm. Indeed, Dr. Williams concluded that Arshaun’s risk for dangerousness
was in the high offender range. Although Arshaun behaves better when he takes his

medication, he has not demonstrated medication compliance in the community.

Arshaun has not benefitted from the services he has received and has not

demonstrated a willingness to be rehabilitated. Therefore, I would find no abuse of

discretion in the court’s determination that Arshaun is not amenable to

rehabilitation through the juvenile system, and I would affirm the trial court’s

judgment.