[Cite as State v. Lewis, 2017-Ohio-167.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                       C.A. No.      27887

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
RAMOUS DAMON LEWIS                                  COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 2013 09 2503(D)

                                  DECISION AND JOURNAL ENTRY

Dated: January 18, 2017



        MOORE, Judge.

        {¶1}     Defendant, Ramous Lewis, appeals from the judgment of the Summit County

Court of Common Pleas. This Court affirms.

                                               I.

        {¶2}     In 2013, Branson Price and Paris Wicks were shot while at a drive-thru

convenience mart in Akron, Ohio. Mr. Wicks died from his injuries. Complaints were filed in

the Summit County Juvenile Court alleging Mr. Lewis to be a delinquent child based upon his

alleged involvement in this purportedly gang-related assault, robbery, and murder. Mr. Lewis

waived his right to a probable cause hearing in the juvenile court, and the case proceeded to an

amenability hearing on the State’s motion for the juvenile court to relinquish jurisdiction. The

juvenile court found that Mr. Lewis was not amenable to rehabilitation in the juvenile justice

system, and the court transferred the case to the general division of the Summit County Court of
                                                2


Common Pleas (“the trial court”). Mr. Lewis was indicted on several charges in the trial court,

to which he initially pleaded not guilty.

       {¶3}    The case proceeded to trial. During the course of the trial, Mr. Lewis changed his

plea to guilty on one charge of aggravated murder together with attendant gun and gang

specifications, one charge of felonious assault, and one charge of having a weapon under

disability. The trial court then dismissed the remaining charges and specifications upon the

request of the prosecutor. In a journal entry dated April 15, 2015, the trial court imposed an

aggregate sentence of thirty years to life imprisonment.

       {¶4}    Mr. Lewis requested a delayed appeal from the sentencing entry, which this Court

granted. He now presents one assignment of error for our review.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT TRANSFERRED
       15-YEAR-OLD RAMOUS LEWIS’[] CASE FOR CRIMINAL PROSECUTION
       IN VIOLATION OF R.C[.] 2152.12(B)[.]

       {¶5}     In his sole assignment of error, Mr. Lewis contends that the juvenile court abused

its discretion in transferring his case to the trial court because he was amenable to treatment in

the juvenile justice system. We disagree.

       {¶6}    We first note that Mr. Lewis pleaded guilty after his transfer to the trial court.

The Ohio Supreme Court has held that “a defendant who * * * 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.’” State v. Smith, 9th Dist. Summit No. 26804, 2015-Ohio-579, ¶ 25,

quoting State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, ¶ 78, quoting Tollett v.
                                                  3


Henderson, 411 U.S. 258, 267 (1973). “This Court has explained that ‘[a] defendant who enters

a plea of guilty waives the right to appeal all nonjurisdictional issues arising at prior stages of the

proceedings, although [he] may contest the constitutionality of the plea itself.’” Smith at ¶ 25,

quoting State v. Quarterman, 9th Dist. Summit No. 26400, 2013-Ohio-3606, ¶ 4, quoting State v.

Atkinson, 9th Dist. Medina No. 05CA0079-M, 2006-Ohio-5806, ¶ 21.

       {¶7}    However, the general division of the common pleas court lacks jurisdiction over a

juvenile defendant absent a “proper” bindover proceeding. See State v. Wilson, 73 Ohio St.3d

40, 44 (1995) (“[A]bsent a proper bindover procedure pursuant to [former] R.C. 2151.26, the

juvenile court has the exclusive subject matter jurisdiction over any case concerning a child who

is alleged to be a delinquent.”). Because a bindover proceeding pertains to the jurisdiction of the

common pleas court, some courts have held that challenges to juvenile court’s decision with

respect to the R.C. 2152.12 factors pertaining to bindover are not waived through a guilty plea.

State v. Amos, 1st Dist. Hamilton No. C-150265, 2016-Ohio-1319, ¶ 28-29; see also State v.

Legg, 4th Dist. Pickaway No. 14CA23, 2016-Ohio-801, ¶ 31, fn. 3, and State v. D.W., 133 Ohio

St.3d 434, 2012-Ohio-4544, ¶ 40, fn. 2, citing State v. Douglas, 20 Ohio St.3d 34, 35 (1985)

(juvenile who was transferred to adult court, pled guilty to charges, and was subsequently

convicted, appealed convictions alleging that the bindover proceeding was not proper). Further,

this Court has recently addressed the challenges to the juvenile court’s ruling with respect to a

bindover where a juvenile defendant ultimately pleaded guilty to the charges in adult court, and

we will likewise proceed to review the propriety of the bindover in this case. See State v.

Vaughn, 9th Dist. Summit No. 27902, 2016-Ohio-7384, ¶ 5-17.

       {¶8}    “[A] juvenile court’s determination regarding a child’s amenability to

rehabilitation in the juvenile system is reviewed by an appellate court under an abuse-of-
                                                  4


discretion standard.” In re M.P., 124 Ohio St.3d 445, 2010-Ohio-599, ¶ 14. An abuse of

discretion connotes that the court was unreasonable, arbitrary, or unconscionable in its decision.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶9}    Two types of transfer exist under R.C. 2152.10 and 2152.12. D.W. at ¶ 10,

quoting State v. Hanning, 89 Ohio St.3d 86, 90 (2000). “Mandatory transfer removes discretion

from judges in the transfer decision in certain situations[,]” which do not apply here. See D.W. at

¶ 10, quoting Hanning at 90; R.C. 2152.12(A). The Ohio Supreme Court has recently decided

that the mandatory transfer of juveniles is unconstitutional. State v. Aalim, Slip Opinion No.

2016-Ohio-8278, ¶ 28. “Discretionary transfer, as its name implies, allows judges the discretion

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

or rehabilitation within the juvenile system or appear to be a threat to public safety.” D.W. at ¶

10, quoting Hanning at 90; R.C. 2152.12(B). See Aalim at ¶ 29 (holding that the unconstitutional

provisions mandating transfer in R.C. 2152.10 and 2152.12 are severable from the constitutional

provisions related to discretionary transfer).

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

D.W. at ¶ 11, quoting In re M.P. at ¶ 12.
                                                  5


       {¶10} When determining whether to transfer a child to the trial court for adult

prosecution, R.C. 2152.12(D) requires that a juvenile court consider any relevant factors,

including the following factors, in favor of transfer:

       (1) The victim of the act charged suffered physical or psychological harm, or
       serious economic harm, as a result of the alleged act.

       (2) The physical or psychological harm suffered by the victim due to the alleged
       act of the child was exacerbated because of the physical or psychological
       vulnerability or the age of the victim.

       (3) The child’s relationship with the victim facilitated the act charged.

       (4) The child allegedly committed the act charged for hire or as a part of a gang or
       other organized criminal activity.

       (5) The child had a firearm on or about the child’s person or under the child’s
       control at the time of the act charged, the act charged is not a violation of section
       2923.12 of the Revised Code, and the child, during the commission of the act
       charged, allegedly used or displayed the firearm, brandished the firearm, or
       indicated that the child possessed a firearm.

       (6) At the time of the act charged, the child was awaiting adjudication or
       disposition as a delinquent child, was under a community control sanction, or was
       on parole for a prior delinquent child adjudication or conviction.

       (7) The results of any previous juvenile sanctions and programs indicate that
       rehabilitation of the child will not occur in the juvenile system.

       (8) The child is emotionally, physically, or psychologically mature enough for the
       transfer.

       (9) There is not sufficient time to rehabilitate the child within the juvenile system.

       {¶11} Former R.C. 2152.12(E) required that the juvenile court consider any relevant

factor against a transfer, including the following:

       (1) The victim induced or facilitated the act charged.

       (2) The child acted under provocation in allegedly committing the act charged.

       (3) The child was not the principal actor in the act charged, or, at the time of the
       act charged, the child was under the negative influence or coercion of another
       person.
                                                6


       (4) The child did not cause physical harm to any person or property, or have
       reasonable cause to believe that harm of that nature would occur, in allegedly
       committing the act charged.

       (5) The child previously has not been adjudicated a delinquent child.

       (6) The child is not emotionally, physically, or psychologically mature enough for
       the transfer.

       (7) The child has a mental illness or is a mentally retarded person.

       (8) There is sufficient time to rehabilitate the child within the juvenile system and
       the level of security available in the juvenile system provides a reasonable
       assurance of public safety.

       {¶12} Here, at the amenability hearing, Dr. Thomas Webb testified as a court witness.

Dr. Webb testified that he was the juvenile court psychologist, and he completed a psychological

consult and amenability evaluation with regard to Mr. Lewis. The report was marked as a court

exhibit and entered into evidence. With respect to Mr. Lewis’ background, Dr. Webb indicated

that Mr. Lewis had experienced instability with respect to his parenting and housing. He had

little relationship with his father, and his mother moved frequently between Akron and

Cleveland, experiencing incidents of homelessness. Mr. Lewis’ mother had become involved

with a person who had been violent toward her. Dr. Webb explained that witnessing this

violence could have caused Mr. Lewis to have less strictures in thinking about the impact of

violence, and it could raise the probability of him thinking about violence as an option in dealing

with situations.

       {¶13} In addition, Dr. Webb indicated that Mr. Lewis was close to his grandfather, who

had passed away, at which point Mr. Lewis became very depressed, began having hallucinations,

and became suicidal. His mother took him to a hospital, where he was prescribed medication for

psychosis. During the course of his detention on the current charges, Dr. Webb stated that Mr.

Lewis had begun to have a better understanding of his need to take his medicines.
                                               7


       {¶14} Dr. Webb opined that Mr. Lewis also has a mild intellectual disability. The

doctor concluded that Mr. Lewis’ lower cognitive processing capabilities contributed to an

emotional immaturity for his age and a decreased ability to anticipate events and make

appropriate judgments. Dr. Webb acknowledged that Mr. Lewis had behavioral issues previous

to the present incident which had brought him into the juvenile court system. Although there had

been several attempts to assist Mr. Lewis through therapeutic measures, Dr. Webb acknowledged

that the severity of Mr. Lewis’ criminal behavior had increased over time. Dr. Webb stated that

Mr. Lewis could not read, but he was very sensitive to the opinions of others with respect to his

intelligence, and even slight criticism directed toward him affected him. Dr. Webb indicated that

he believed Mr. Lewis could be swayed by his peers because he wanted to fit in and be

respected, this being a major issue for him. Dr. Webb indicated that, sometimes for children

with limited comprehension, it takes a very concrete experience to jerk them into reality, which

Dr. Webb believed to have happened here.

       {¶15} Dr. Webb concluded that he believed there had been a change in Mr. Lewis while

in detention related to this incident, as he had benefitted from the structure that had been

imposed, the supervision of his psychotropic medication, and the day-to-day access to emotional

support from a drug counselor and a social worker.

       {¶16} The State then presented its witnesses, including Branson Price, Christopher

Smith, Sergeant Anthony Starvaggi, and Detective Rodd Criss. Mr. Price testified that he was 23

years old. On August 29, 2013, Mr. Price and his close friend, Mr. Wicks, decided to go to the

mall. Mr. Price picked up Mr. Wicks, and Mr. Wicks handed a gun to Mr. Price because Mr.

Price had a permit to carry concealed weapons. Mr. Wicks wanted to stop to get a t-shirt at the

drive-thru on Lovers Lane and Arlington Road in Akron, Ohio. Mr. Price pulled into the parking
                                                8


lot, and Mr. Wicks went inside. While Mr. Wicks was inside, a couple of men started talking to

Mr. Price through the passenger window. Mr. Price had Mr. Wicks’ gun on his lap at that time,

because he believed the area to be unsafe. When Mr. Price turned his head, he saw Mr. Lewis at

his driver’s side window with a gun. Mr. Lewis reached through the window, took Mr. Price’s

gun off of his lap, and pointed both guns toward him. He told Mr. Price to give him everything

he had or he would kill him. Mr. Price opened his car door, put his hands up, and tried to calm

Mr. Lewis down by telling him that he did not have to do this. When Mr. Wicks came out of the

drive-thru, Mr. Lewis turned his attention on him for a moment, and Mr. Price tried to grab Mr.

Lewis’ gun. Mr. Price missed the gun, and Mr. Lewis fired a shot at him that missed him. Mr.

Price then was able to grab the barrel of Mr. Lewis’ gun, and Mr. Lewis shot Mr. Price in the leg.

Mr. Price ran to the back of the drive-thru and could see people in a scuffle with Mr. Wicks. Mr.

Price then ran to a mechanic’s shop, where he recalled speaking to police while he was in and

out of consciousness. After he was taken to the hospital, Mr. Price learned that Mr. Wicks had

died.

        {¶17} Mr. Price testified that the shooting had changed his life. Although he had

physically recovered, his state of mind had prevented him from finishing college and maintaining

his previous full time employment. He had nightmares and thought about the incident every day.

He tried to imagine different ways that he could have handled the situation, and it “haunt[ed]”

him. He witnessed Mr. Wick’s mother’s pain, and he had not seen his own mother in six months

because she lived down the street from the drive-thru, and he was concerned about returning to

the area.

        {¶18} Mr. Smith testified that he is an intensive probation officer at the Summit County

Juvenile Court. Mr. Lewis was originally placed on traditional probation with him in January
                                                9


2011 as a result of a misdemeanor assault case. Mr. Smith stated that Mr. Lewis was likable, but

he had some behavioral issues, especially in school because he became easily frustrated. Mr.

Lewis would do well going to school for periods of time and then have long periods of

absenteeism. Mr. Smith believed that Mr. Lewis received ineffective supervision at home, and

he had issues with curfew and rule compliance while on probation. In July 2011, Mr. Lewis

received felony firearm and receiving stolen property charges. In July 2012, Mr. Lewis received

a second degree burglary charge and was placed on intensive probation at that time. Mr. Lewis

previously attended a program at the Youth Outreach Center, and he participated in counseling at

the Village Network Program. Mr. Lewis would start out compliant with counseling, but his

compliance would then taper off, and he would become noncompliant. He did not participate as

required at Sylvan Learning because he was not at the place he was supposed to be for pickup.

Mr. Lewis had some history of marijuana use, but he was able to get clean and stay clean for

extended periods of time. Mr. Lewis came very close on two occasions to completing his

probation, but each time he had picked up a new charge at the very end of the probation period.

Mr. Lewis was not on probation or any type of supervision at the time of the instant offense.

       {¶19} Sergeant Starvaggi of the Akron Police Department testified that he was one of

the officers that responded to the scene of the shootings. The sergeant confirmed that four

individuals were charged as a result of the shootings, and Mr. Lewis was the only one of those

four individuals who was a juvenile. The other suspects were in their late teens or early twenties.

Detective Criss, of the Akron Police Department’s Gang Unit, testified that he recognized the

monikers of the other individuals purportedly involved in the shootings, because those individual

belonged to the KaiKa Klan Outlaw Gang, which had a known criminal presence in the area of

the shootings. The investigation of the shootings had also revealed that an individual known by
                                                 10


the moniker of Doobie might have been involved in the incident. In order to try to identify

Doobie, the detective reviewed rap videos that the KaiKa Klan Outlaw Gang had posted on

YouTube. The detective located some new videos, which involved the three suspects with whom

he was familiar, and then the detective came across a video that included Mr. Lewis with the

three suspects. The State introduced a still shot photograph from one of these videos and a

photograph from Mr. Lewis’ Facebook page that displayed Mr. Lewis wearing a gun on a

lanyard around his neck. The detective maintained that wearing guns from lanyards in this

fashion is distinctive of the KaiKa Klan Outlaw Gang. In another photograph, the detective

indicated that Mr. Lewis was “throwing up” the KaiKa Klan Outlaw Gang hand sign.

        {¶20} The defense did not put on witnesses, but in closing argument the defense

maintained that there existed several factors in favor of retaining jurisdiction in the juvenile

court. The defense argued that, as Mr. Lewis was only 16 ½ years old, there was ample time to

rehabilitate him in the juvenile system. The defense pointed to Mr. Lewis’ cognitive delays, lack

of structure in his life until his detention on the current charges, and the fact that he was prone to

suggestibility. The defense also referenced Dr. Webb’s testimony that Mr. Lewis was doing well

in detention.       The defense further pointed out that Mr. Lewis was not on court ordered

supervision at the time of the offense. The defense additionally maintained that the evidence

demonstrated that Mr. Lewis was not emotionally, physically, or psychologically mature enough

for the transfer.

        {¶21} In the juvenile court’s transfer order, the court concluded that the factors

weighing in favor of transfer outweighed those against transfer. On appeal, Mr. Lewis maintains
                                                11


that the trial court abused its discretion in weighing the factors.1 At several points in his

argument, Mr. Lewis cites to Dr. Webb’s evaluation regarding Mr. Lewis’ intellectual delay,

young age, mental health issues and susceptibility to influence.       In Dr. Webb’s report, he

discussed these issues, and, he opined that the factors did not align with the psychological and

developmental factors favoring bindover. However, from the juvenile court’s order, it appears

that the juvenile court considered the issues raised in the doctor’s report, noting that Mr. Lewis’

low IQ and his physical, emotional, and psychological immaturity were factors that weighed

toward retaining jurisdiction.

       {¶22} Further, Mr. Lewis argues that Detective Criss’ testimony did not suggest that Mr.

Lewis was “entrenched” in a gang. However, the juvenile court did not find that Mr. Lewis was

“entrenched” in a gang, and instead referenced in its order that the crimes were alleged to have

been part of gang activity. See R.C. 2152.12(D)(4).

       {¶23} Mr. Lewis also suggests that this case is similar to that in State v. Thrasher, 9th

Dist. Summit No. 27547, 2015-Ohio-2504, where this Court held that a trial court abused its

discretion in failing to adequately consider a defendant’s traumatic history in mitigation at

sentencing. 2 Id. at ¶ 21. In Thrasher, the issue pertained to the weight that the trial court gave

the seriousness and recidivism sentencing factors contained in R.C. 2929.12. Id. at ¶ 7. There,




       1
          In Mr. Lewis’ brief on appeal, he relies on articles available online, although these
articles were not before the trial court in making its decision. We cannot discern how the trial
court’s failure to consider the information or views expressed in publications that were not
before it could amount to an abuse of discretion, and, accordingly, we will proceed to review the
assignment of error without reference to these articles.
        2
          Thrasher was decided prior to the Ohio Supreme Court’s decision in State v. Marcum,
146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 23, which clarified the standard of review applicable to
sentencing.
                                                 12


defense counsel, in arguing against a prison sentence, emphasized Mr. Thrasher’s tragic

childhood history, which included physical and sexual abuse, abandonment, and drug use. Id. at

¶ 16. During sentencing, the trial court characterized Mr. Thrasher’s history in such ways that

were discordant with the facts before it, and imposed a prison sentence which was two-and-a-

half times longer than the prison sentence requested by the State. Id. at ¶ 20-21.

       {¶24} Here, aside from the fact that the juvenile court was weighing factors relative to

amenability as opposed to sentencing, this case is distinguishable from Thrasher in that we see

no indication that the court below failed to give due weight to the statutory factors. The juvenile

court’s decision cites to factors both in favor of, and against, transfer, and it concludes that the

factors in favor of transfer outweighed those against it.

       {¶25} Mr. Lewis further cites the Second District’s decision in State v. D.H., 2d Dist.

Montgomery No. 26383, 2015-Ohio-3259, where the Second District held the juvenile court’s

order finding the juvenile to not be amenable to rehabilitation in the juvenile justice system must

include sufficient findings so that the reviewing court can “identify how the court reached its

conclusion that [the juvenile] could not be rehabilitated in the juvenile system.” Id. at ¶ 17-18.

Mr. Lewis maintains that the trial court did not adequately explain why Mr. Lewis could not be

rehabilitated in the juvenile court system, and he maintains that the trial court did not give due

consideration and place greater weight on certain factors in favor of retaining jurisdiction.

However, here, in the juvenile court’s order transferring jurisdiction to the trial court, the

juvenile court specified factors for and against transfer, and determined that the factors weighed

in favor of transfer. Pursuant to former R.C. 2152.12(E), the juvenile court considered the

following factors against transfer: that Mr. Lewis was fifteen years old at the time of the offense,

that he had a full scale IQ of 48 and was low functioning, that he had diagnoses of conduct
                                                13


disorder, intellectual disability, depressive disorder with anxiety, and posttraumatic stress

disorder, and that he was not physically, emotionally or psychologically mature enough for

transfer. Pursuant to R.C. 2152.12(D), the juvenile court considered the following factors in

favor of transfer: two victims were shot with one of the victims dying from a gunshot wound, the

acts were alleged to be part of gang activity, Mr. Lewis used a gun in the commission of the

offenses and fired it at least three times, Mr. Lewis had prior court involvement, including two

prior assault charges, and Mr. Lewis had previously been referred for counseling services

through different agencies, had attended a ninety-day behavioral therapy program at the juvenile

court, and had been referred for substance abuse counseling. The trial court concluded that

rehabilitation could not be achieved in the juvenile system, and that, because of the gravity of the

offenses, community safety required Mr. Lewis to be subject to adult sanctions.

       {¶26} Although the separate opinion takes issue with the trial court’s consideration of

the gravity of the offenses in its finding pertaining to community safety, Mr. Lewis raised no

challenge to the trial court considering the gravity of the offense in this manner. Nonetheless, we

do not read State v. Watson, 47 Ohio St.3d 93 (1989) as precluding the trial court from

considering the gravity of the offense in addressing the safety of the community. To the

contrary, inherent in Watson is a presumption that the seriousness of the offense is part of an

analysis of the safety of the community, and that both community safety and the seriousness of

the offense could be considered in determining a juvenile’s amenability to treatment under

former Juv.R. 30. See id. at 94, 96 (where the appellant challenged the juvenile court’s finding

that appellant “would not be amenable to the juvenile justice system for the reason that the safety

of the community may require his retention beyond the age of majority, and that the statute in

Ohio requires that the Department of Youth Services relinquish[] its jurisdiction upon the age of
                                                14


twenty-one * * *[,]” Supreme Court addressed the issue by discussing the relevance of the

“seriousness of the alleged act” to the amenability determination) (Emphasis added.). Moreover,

under the current statutory scheme, as discussed above, a nonexhaustive list of factors in favor

of, and militating against transfer, some of which speak to the seriousness of the offense, apply

to determine whether a juvenile is amenable to rehabilitation within the juvenile system, and to

whether the safety of the community may require that the child be subject to adult sanctions.

R.C. 2152.12(B)(3), (D); former R.C. 2152.12(E).

       {¶27} Based upon our review of the record, we cannot say that the juvenile court was

unreasonable in ordering Mr. Lewis to be bound over to the trial court. Accordingly, Mr. Lewis’

sole assignment of error is overruled.

                                                III.

       {¶28} Mr. Lewis’ assignment of error is overruled. The judgment of the trial court is

affirmed.

                                                                             Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
                                                 15


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                      CARLA MOORE
                                                      FOR THE COURT


CARR, P. J.
CONCURS IN JUDGMENT ONLY.

HENSAL, J.
CONCURRING IN JUDGMENT ONLY.

       {¶29} While I agree that the trial court’s judgment must be affirmed, I write separately

to emphasize the fact that a juvenile’s amenability to rehabilitation and the need for community

safety are two separate issues under the statute.         In this regard, Revised Code Section

2152.12(B)(3) provides that the juvenile court “may transfer the case if the court finds [that] * *

* [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.” (Emphasis added.)

While the statute reads in the conjunctive, prior case law interpreting the statute often read in the

disjunctive. See State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544, ¶ 11, quoting In re M.P.,

124 Ohio St.3d 445, 2010-Ohio-599, ¶ 12 (stating that a hearing is necessary to “determine

whether the child is ‘amenable to care or rehabilitation within the juvenile system’ or whether

‘the safety of the community may require that the child be subject to adult sanctions,’ and the

consideration of 17 other statutory criteria to determine whether a transfer is appropriate.”)

(Emphasis added.) More recent precedent, however, reads in the conjunctive. See State v.

Aalim, ___ Ohio St.3d ___, 2016-Ohio-8278, ¶ 27 (“The General Assembly has provided for
                                                 16


discretionary transfer of children aged 14 or older when there is probable cause to believe the

child committed the charged act, the 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.”) (Emphasis added.) Regardless, it is clear that these are two separate issues.

       {¶30} Here, the juvenile court found that “[g]iven the gravity of the offense, community

safety requires that the child be subject to adult sanctions.” The majority cites this finding,

noting that “[t]he trial court concluded that rehabilitation could not be achieved in the juvenile

system, and that, because of the gravity of the offenses, community safety required Mr. Lewis to

be subject to adult sanctions.” The Ohio Supreme Court, however, has held that the gravity of

the alleged offense may be considered when determining whether the juvenile is amenable to

rehabilitation. State v. Watson, 47 Ohio St.3d 93 (1989), paragraph one of the syllabus. Any

reliance upon the gravity of the offense (an issue relevant to the juvenile’s amenability) in

support of its finding regarding the need for community safety raises a concern as to whether the

court relied upon one issue as a basis for finding the other. More specifically, it raises a concern

as to whether the court considers the need for community safety as a factor in determining

whether the juvenile was amenable to rehabilitation, or vice versa. To the extent that the juvenile

court’s decision or this court’s decision can be construed as doing so, I would hold that such a

finding is erroneous. Nevertheless, I concur with the majority’s holding that the juvenile court

gave due weight to the statutory factors and that its decision in favor of bindover did not result in

an abuse of discretion.

APPEARANCES:

CHARLYN BOHLAND, Assistant State Public Defender, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
