[Cite as State v. Sampson, 2016-Ohio-4560.]



                 Court of Appeals of Ohio
                                  EIGHTH APPELLATE DISTRICT
                                     COUNTY OF CUYAHOGA



                                 JOURNAL ENTRY AND OPINION
                                         No. 103311



                                              STATE OF OHIO

                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                          BRIAN SAMPSON

                                                         DEFENDANT-APPELLANT




                                       JUDGMENT:
                                   AFFIRMED IN PART,
                             REVERSED IN PART AND REMANDED



                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-14-590035-A

              BEFORE:         Blackmon, J., Kilbane, P.J., and McCormack, J.

             RELEASED AND JOURNALIZED:                    June 23, 2016
                              -i-



ATTORNEY FOR APPELLANT

Timothy Young
Ohio Public Defender

By: Brooke M. Burns
Assistant Public Defender
250 East Broad Street
Suite 1400
Columbus, Ohio 43215


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Daniel T. Van
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} Brian Sampson (“Sampson”) appeals his mandatory transfer from juvenile court to

the general division of common pleas court (“adult court”), stemming from his involvement in a

bank robbery. Sampson assigns six errors for our review.1 Having reviewed the record and

pertinent law, we affirm in part, reverse in part and remand the case to the trial court to calculate

credit for time served in the juvenile detention facility. The apposite facts follow.

       {¶2} On August 30, 2014, 16-year-old Sampson was involved in a bank robbery that was

captured on multiple video surveillance tapes.       A complaint was filed against Sampson in

juvenile court alleging, inter alia, aggravated robbery and kidnapping, which are “category two

offenses” subject to mandatory transfer to adult court under certain conditions.                R.C.

2152.10(A)(2); 2152.02(CC)(1).      On October 2 and 3, 2014, the juvenile court held a hearing to

determine whether there was probable cause to order a mandatory transfer. The following

evidence was presented at this hearing.

       {¶3} At approximately 8:30 a.m. on August 30, 2014, two Ohio Savings Bank employees

were opening a branch in Garfield Heights, when a man named Landon McFarland approached

and prevented them from closing and locking the front door. McFarland pointed a small gray

gun at one of the employees and said, “This is a robbery.”            McFarland ushered the two

employees inside the bank and a second male followed them. The bank’s assistant manager,

Jennifer Bonnette, identified the second male as Sampson. Bonnette stated that she does not

recall Sampson having a gun nor does she recall him speaking. McFarland pointed his weapon

at both employees and instructed them to open the vault; however, after three attempts, they were
unsuccessful.

       {¶4} According to Bonnette, Sampson was pacing and “was closer to me mainly on the

side of me and behind me. The individual with the gun was more or less next to [the other

employee].” A third employee appeared at the branch, and McFarland told Sampson to let her

in.   Either Sampson or McFarland took this third employee’s purse off of her arm. The men

ordered everyone outside and “sped off in a vehicle.”

       {¶5} Christopher Moore, a security manager at Ohio Savings Bank, testified that there are

approximately 16 video cameras in the bank that record “security footage” of “pretty much * * *

any area in the bank.” According to Moore, “there were two cameras specifically that captured

the appropriate footage * * * [including] the entire robbery as it unfolds * * *.” These two

videos were played at the probable cause hearing. Moore testified that the videos showed that

“[b]oth suspects in the robbery had firearms in their hands at different times and pointed them at

our tellers.”   Moore testified that Sampson “didn’t initially brandish the weapon,” but he

eventually pulled it out from his waistband.

       {¶6} When describing the video footage of Sampson brandishing a firearm, Moore

testified that “[i]t’s quick and it’s, you know, not the best — you can’t zoom in on the cameras,

but you can definitely tell that there’s a weapon in his hand.” Moore testified that both videos

show Sampson brandishing a “two-toned, silver-barrel firearm” and pointing it at one of the

employee’s back.

       {¶7} James Mendolera, who is a sergeant with the Garfield Heights police department,

testified that the vehicle in which Sampson and McFarland drove away from the scene was

recovered nearby in Maple Heights. The police found the bank employee’s purse and cell phone


       1
        See appendix
in the car, along with two firearms in the glove compartment.

       {¶8} Sgt. Mendolera testified that Sampson gave him a statement regarding the incident.

Sampson told him that McFarland recruited him to help rob a bank.              McFarland handed

Sampson a silver and black 9 millimeter Ruger and told Sampson “to follow him and just to

watch his back and just do what he does.” Sgt. Mendolera testified that Sampson told him “that

when he held the gun, he knew it was real. It was heavy, it was real.” Sampson said “he knew

guns.” According to Sgt. Mendolera, Sampson admitted to bringing the gun into the bank and,

at one point, “he pulled the gun out and he had the gun out while covering the bank.” Sgt.

Mendolera testified that Sampson identified the “9 millimeter Ruger, silver and black” gun taken

from the recovered vehicle as the weapon he had in the bank.

       {¶9} After the hearing, the court found probable cause that Sampson committed the

offenses alleged in the complaint, including that he “had a firearm on or about his person or

under his control, [and] displayed, brandished, indicated possession, or used the firearm.” The

court ordered the case transferred to adult court pursuant to R.C. 2152.12.

       {¶10} On May 13, 2015, Sampson pled guilty to aggravated robbery and kidnapping with

firearm specifications. On July 17, 2015, the court sentenced Sampson to four years in prison on

the underlying offenses, to run consecutive to three years in prison for the firearm specification.

Sampson filed this timely appeal.

                           Probable Cause for Mandatory Transfer

       {¶11} “[A] juvenile court’s probable-cause determination in a mandatory-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.           Upon review, “we defer to the trial court’s

determinations regarding witness credibility, but we 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.

       {¶12} Certain juvenile cases are subject to mandatory transfer to adult court pursuant to

R.C. 2152.12. For example, mandatory transfer applies when

       [t]he child is charged with a category two offense, * * * the child was sixteen

       years of age or older at the time of the commission of the act charged, and * * *

       [t]he child is alleged to have had a firearm on or about the child’s person or under

       the child’s control while committing the act charged and to have displayed the

       firearm, brandished the firearm, indicated possession of the firearm, or used the

       firearm to facilitate the commission of the act charged.

R.C. 2152.12(A)(2)(b).

       {¶13} Additionally, R.C. 2152.12(A)(1)(b)(ii) requires the juvenile court to hold a

hearing prior to the mandatory transfer to determine if “there is probable cause to believe that the

child committed the act charged.”

       {¶14} In the instant case, there is no dispute that Sampson was 16 at the time of the act,

and the offenses he is alleged to have committed are statutory “category two offenses.” Sampson

argues, however, that “the evidence presented at the probable cause hearing was insufficient to

establish that [he] displayed, brandished, indicated possession, or used the firearm to facilitate

the robbery.” Sampson further argues that, as a result, he should not have been subject to

mandatory transfer to adult court.

       {¶15} In support of this argument, Sampson cites State v. Hanning, 89 Ohio St.3d 86, 728

N.E.2d 1059 (2000), which holds that the mandatory transfer statute “does not provide that a

child can be [transferred to adult court] based on the fact that a firearm was used by an
accomplice.” Id. at 91. The Hanning court concluded that the mandatory transfer statute

“requires the child personally to have a firearm on or about his or her person or under his or her

control while committing the act charged and to have displayed, brandished, indicated possession

of, or used the firearm to facilitate the commission of the act charged.”

       {¶16} Sampson argues that there was insufficient evidence to show that he displayed or

brandished a firearm, because the “victims did not see [him] with a firearm, did not know that he

had a firearm, and he did not use the firearm to affect the robbery in any way. For all but a split

second, the firearm was concealed in his pants.”

       {¶17} The only victim to testify at Sampson’s probable cause hearing stated that she did

not see Sampson with a gun. However, the two video tapes show Sampson take a gun out of the

waistband of his pants, albeit briefly, and point it at one of the bank employee’s back. The

bank’s security manager testified that he saw Sampson with a weapon in his hand on the videos.

Furthermore, the police officer who took Sampson’s statement testified that Sampson admitted

that “he pulled the gun out * * * while covering the bank.”

       {¶18} Given the evidence presented at the hearing and the deferential standard of review

we must apply to the juvenile court’s determinations regarding witness credibility, we cannot say

the court erred in finding probable cause that Sampson committed the acts charged, including

displaying, brandishing, or indicating possession of a firearm. Accordingly, Sampson’s first

assigned error is overruled.



                       Constitutionality of Mandatory Transfer Statutes

       {¶19} In his second, third, and fourth assigned errors, Sampson argues that the mandatory

bindover provisions of R.C. 2152.10(A)(1)(a), 2152.10(A)(2)(b), 2152.12(A)(1)(a), and
2152.12(A)(1)(b) violate his constitutional rights to due process and equal protection. The

posture of this case is substantially similar to State v. Mays, 2014-Ohio-3815, 18 N.E.3d 850 (8th

Dist.) and State v. Beauregard, 8th Dist. Cuyahoga No. 101418, 2015-Ohio-1021, in which the

juvenile offenders challenged the constitutionality of the mandatory transfer statutes.

       {¶20} In Mays and Beauregard, this court held that the constitutional challenges were not

raised in the juvenile or adult courts and, therefore, were waived. Mays at ¶ 43; Beauregard at ¶

17.   Additionally, this court found that Mays and Beauregard waived their constitutional

challenges by pleading guilty.     Id.   Nonetheless, this court held the following: “our sister

districts have consistently upheld the constitutionality of the mandatory bindover provisions * * *

[and] we will continue to follow the precedent on this issue unless the Supreme Court of Ohio

rules otherwise.” Beauregard at ¶ 18-19. We note that the Supreme Court of Ohio has agreed

to consider the constitutionality of the mandatory transfer statutes in State v. Aalim, 143 Ohio

St.3d 1498, 2015-Ohio-4468, 39 N.E.3d 1270; however, an opinion has not been released in

Aalim as of the date the opinion in the case at hand was journalized. In the instant case,

Sampson did not raise constitutional challenges to his mandatory transfer in either the juvenile or

adult court prior to entering a guilty plea. In following the precedent of Mays, Beauregard, and

other Ohio appellate courts, we reject Sampson’s constitutional challenges and overruled his

second, third, and fourth assigned errors.

                    Credit for Confinement in Juvenile Detention Facility

       {¶21} Pursuant to R.C. 2967.191, an offender’s prison sentence shall be reduced “by the

total number of days that the [offender] was confined for any reason arising out of the offense for

which the [offender] was convicted and sentenced, including confinement in * * * a juvenile

facility.” It is the sentencing court’s responsibility to determine and “include in the sentencing
entry the number of days * * * by which the department of rehabilitation and correction must

reduce the stated prison term * * *.” R.C. 2929.19(B)(2)(g)(i).

          {¶22} In the case at hand, the state concedes that the trial court did not address this issue.

Sampson has been confined since the date of the offense, August 30, 2014, and received no credit

for time served. Accordingly, Sampson’s fifth assigned error is sustained and this case is

remanded to the trial court to journalize the appropriate calculation of confinement in juvenile

facility, which shall be credited to Sampson’s prison sentence. See State v. Ponyard, 8th Dist.

Cuyahoga No. 101266, 2015-Ohio-311, ¶ 11.

                                  Ineffective Assistance of Counsel

          {¶23} To succeed on a claim of ineffective assistance of counsel, a defendant must

establish that his or her attorney’s performance was deficient and that the defendant was

prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984).           However, “a court need not determine whether counsel’s

performance was deficient before examining the prejudice suffered by the defendant as a result of

the alleged deficiencies.      The object of an ineffectiveness claim is not to grade counsel’s

performance.” Id. at 697. See also State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 3743

(1989).

          {¶24} In Sampson’s sixth and final assigned error, he argues that his trial counsel was

ineffective for “failing to object to an improper and unconstitutional transfer, as well as the trial

court’s failure to order credit for time served.” Our disposition of assigned errors one through

four, concerning the mandatory transfer from juvenile court to adult court, addresses the first part

of Sampson’s argument. We found that the transfer was proper and Sampson’s constitutional

rights were not violated.        Therefore, Sampson has failed to establish that his counsel’s
performance regarding this issue was deficient.

        {¶25} Turning to the failure to object to credit for time served issue, we find Ponyard

instructive.   In Ponyard, this court rejected an ineffective assistance of counsel argument based

on a finding that the defendant suffered no prejudice, because “any error in the calculation of

jail-time credit will be remedied on remand.” Id. at ¶ 16. The same reasoning applies to the

case at hand; thus, Sampson’s sixth and final assigned error is overruled.

        {¶26} Judgment affirmed in part, reversed in part and case remanded to the sentencing

court to calculate and journalize Sampson’s credit for time served in the juvenile detention

facility.

        It is ordered that appellee and appellant share the 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      Cuyahoga

County Court of Common Pleas 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.




PATRICIA ANN BLACKMON, JUDGE

MARY EILEEN KILBANE, P.J., and
TIM McCORMACK, J., CONCUR
                                        APPENDIX

Assignments of Error

      I. The juvenile court erred when it found that Brian Sampson was eligible for
      mandatory transfer, because the State did not establish probable cause that
      [Sampson] displayed, brandished, indicated possession, or used the firearm to
      facilitate the commission of a category two offense.

      II. The juvenile court committed plain error when it transferred Brian Sampson’s
      case for criminal prosecution because the mandatory-transfer provisions in R.C.
      2152.10(A)(2)(b) and R.C. 2152.12(A)(1)(b) create an irrebuttable presumption
      that a child be subject to treatment as an adult.

      III. The juvenile court committed plain error when it transferred Brian
      Sampson’s case for criminal prosecution because the mandatory-transfer
      provisions in R.C. 2152.10(A)(2)(b) and R.C. 2152.12(A)(1)(b) violate a child’s
      right to due process of law.

      IV. The juvenile court committed plain error when it transferred Brian
      Sampson’s case to adult court because the mandatory-transfer provisions in R.C.
      2152.10(A)(2)(b) and R.C. 2152.12(A)(1)(b) violate a child’s right to equal
      protection of law.

      V. The trial court erred when it failed to grant Brian Sampson jail time credit to
      reflect the total number of days he was confined in connection with this case.

      VI. Brian Sampson was denied the effective assistance of trial counsel.
