[Cite as State v. Starling, 2019-Ohio-1478.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       CLARK COUNTY

 STATE OF OHIO                                       :
                                                     :
          Plaintiff-Appellee                         :   Appellate Case No. 2018-CA-34
                                                     :
 v.                                                  :   Trial Court Case No. 2017-CR-336
                                                     :
 NICHOLAS STARLING                                   :   (Criminal Appeal from
                                                     :   Common Pleas Court)
          Defendant-Appellant                        :
                                                     :

                                                ...........

                                               OPINION

                              Rendered on the 19th day of April, 2019.

                                                ...........

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

TIMOTHY B. HACKETT, Assistant Ohio Public Defender, Atty. Reg. No. 0093480, 250
East Broad Street, Suite 1400, Columbus, Ohio 43215
      Attorney for Defendant-Appellant

                                               .............




WELBAUM, P.J.
                                                                                            -2-




       {¶ 1} Defendant-appellant, Nicholas Starling, appeals from his conviction in the

Clark County Court of Common Pleas following his guilty plea to one count of murder.

For the reasons outlined below, Starling’s conviction will be affirmed.



                           Facts and Course of Proceedings

       {¶ 2} In 2016, a then sixteen-year-old Starling was charged in the Juvenile Division

of the Clark County Court of Common Pleas with acts that if committed by an adult would

constitute murder in violation of R.C. 2903.02(A) and tampering with evidence in violation

of R.C. 2921.12(A)(1). The charges arose from allegations that Starling killed his 15-

year-old brother, H., while at their residence in Springfield, Clark County, Ohio.

Specifically, it was alleged that Starling hit H. on the head multiple times with a baseball

bat and stabbed H. multiple times in the neck with a kitchen knife. It was further alleged

that after killing H., Starling discarded the baseball bat behind a fence in his backyard and

then hid the kitchen knife in his computer bag.

       {¶ 3} After Starling was charged in the juvenile court, the State moved for Starling’s

case to be transferred to adult court. The matter was then scheduled for a probable

cause hearing. Following that hearing, the juvenile court determined there was sufficient

evidence to find probable cause to believe that Starling committed the criminal acts as

charged.    Given Starling’s age and the juvenile court’s probable cause finding, the

juvenile   court   transferred   Starling’s   case   to   adult   court   pursuant   to   R.C.

2152.12(A)(1)(a)(i).

       {¶ 4} Following Starling’s transfer to adult court, the Supreme Court of Ohio issued
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its opinion in State v. Aalim, 150 Ohio St.3d 463, 2016-Ohio-8278, 83 N.E.3d 862

(“Aalim I”). In Aalim I, the Supreme Court held that the mandatory-transfer statutes, R.C.

2152.10(A) and R.C. 2152.12(A), were unconstitutional.        Due to the holding in Aalim I,

the adult court transferred Starling’s case back to juvenile court.

       {¶ 5} Once Starling’s case was transferred back to juvenile court, the juvenile court

reaffirmed its probable cause finding and scheduled the matter for an amenability hearing.

The amenability hearing was continued several times so that psychological experts could

evaluate Starling.    Meanwhile, the Supreme Court of Ohio accepted Aalim I for

reconsideration and stayed the execution of judgment.             Due to the uncertainty

surrounding the holding in Aalim I, the parties agreed to an additional 60-day continuance

in hopes that the Supreme Court would have by then clarified its position on the

constitutionality of the mandatory-transfer statutes.

       {¶ 6} Shortly after the parties entered the agreed continuance, the Supreme Court

issued its opinion in State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883

(“Aalim II”). The Supreme Court’s decision in Aalim II vacated Aalim I and upheld the

constitutionality of the mandatory-transfer statutes.     In light of the Supreme Court’s

decision in Aalim II, the State moved for the juvenile court to transfer Starling’s case back

to adult court pursuant to the mandatory transfer provision in R.C. 2152.12(A)(1)(a)(i).

Because the Supreme Court affirmed the constitutionality of R.C. 2152.12(A), and

because the juvenile court previously found probable cause to believe that Starling had

committed the criminal activity charged, the juvenile court granted the State’s motion and

ordered the transfer of Starling’s case back to adult court without holding an amenability

hearing.
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        {¶ 7} Once Starling’s case was transferred back to adult court, the Clark County

Grand Jury returned an indictment charging Starling with one count of aggravated murder

in violation of R.C. 2903.01(A), one count of murder in violation of R.C. 2903.02(A), three

counts of felony murder in violation of R.C. 2903.02(B), and two counts of tampering with

evidence in violation of R.C. 2921.12(A)(1). Starling thereafter entered pleas of not guilty

and not guilty by reason of insanity.

        {¶ 8} After entering his pleas, Starling requested the trial court to order an

evaluation to determine his competency to stand trial. Starling also filed a motion to

suppress certain evidence and inculpatory statements that Starling made to detectives.

During the investigation of H.’s death, Starling was twice interviewed by detectives without

any guardian or attorney present. Both interviews occurred on the day H. was found

dead.

        {¶ 9} At the first interview, Starling was not given Miranda warnings; however, it is

undisputed that Starling made no inculpatory statements during the initial interview.

Starling did, however, consent to detectives searching his bedroom and cell phone.

Starling was permitted to go home after the first interview, but was called back four hours

later for a second interview.

        {¶ 10} At the second interview, detectives Mirandized Starling after asking him a

few preliminary questions. Upon being Mirandized, Starling stated that he understood

his Miranda rights.    Starling also signed a written waiver of those rights.      After his

Miranda waiver, Starling told detectives that he and H. had an argument over candy two

days earlier. Although Starling initially denied knowledge of how H. was killed, upon

further questioning, Starling confessed to entering H.’s bedroom, grabbing a baseball bat,
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and hitting H. over the head 14 to 15 times while H. was asleep. Starling also confessed

to stabbing H. in the neck two or three times with a kitchen knife. Starling told detectives

that he then discarded the baseball bat over a fence in his back yard and hid the kitchen

knife in his computer bag after cleaning it in the bathroom.

       {¶ 11} As part of his motion to suppress, Starling claimed that his confession was

elicited in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966).       Specifically, Starling argued that his youth, inexperience, and learning

disabilities prevented his confession from being voluntarily entered. However, before the

trial court ruled on the motion to suppress, Starling entered into a plea agreement with

the State and pled guilty to murder in violation of R.C. 2903.02(A). In exchange for his

guilty plea, the State agreed to dismiss the remaining charges against him.

       {¶ 12} After accepting Starling’s guilty plea, the trial court proceeded immediately

to sentencing. During sentencing, the parties agreed that a prison sentence of 15 years

to life was mandatory for Starling’s offense. Due to the mandatory nature of Starling’s

sentence, the trial court ordered Starling to serve 15 years to life in prison.

       {¶ 13} Starling now appeals from his conviction, raising four assignments of error

for review.



                                First Assignment of Error

       {¶ 14} Under his First Assignment of Error, Starling contends that his trial counsel

provided ineffective assistance by failing to file a motion to suppress at the probable cause

hearing in juvenile court. Starling claims that his trial counsel should have moved to

suppress his confession based on the same argument he raised in the motion to suppress
                                                                                         -6-


filed in adult court, i.e., that his confession was involuntary and obtained in violation of

Miranda.   Starling maintains that trial counsel’s failure to seek suppression of his

confession at the probable cause hearing prejudiced him because that failure resulted in

a flawed probable cause determination that invalidated his transfer to adult court. On

that basis, Starling contends he was deprived of his right to effective assistance of

counsel. We disagree.

       {¶ 15} Alleged instances of ineffective assistance of trial counsel are reviewed

under the two-pronged analysis set forth in Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in

State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To prevail on an ineffective

assistance claim, a defendant must establish: (1) that his or her trial counsel’s

performance was deficient and (2) that the deficient performance resulted in prejudice.

Strickland at paragraph two of the syllabus; Bradley at paragraph two of the syllabus.

The failure to make a showing of either deficient performance or prejudice defeats a claim

of ineffective assistance of counsel. Strickland at 697.

       {¶ 16} To establish deficient performance, it must be shown that trial counsel’s

performance fell below an objective standard of reasonable representation. Id. at 688.

In evaluating counsel’s performance, “a court must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance; that

is, the defendant must overcome the presumption that, under the circumstances, the

challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, quoting Michel

v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).

       {¶ 17} To establish prejudice, the defendant must demonstrate that there is “a
                                                                                           -7-


reasonable probability that, but for counsel’s errors, the proceeding’s result would have

been different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864,

¶ 204, citing Strickland at 687-688 and Bradley at paragraph two of the syllabus. “ ‘A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.’ ” Bradley at 142, quoting Strickland at 694.

       {¶ 18} “The failure to file a suppression motion is not per se ineffective assistance

of counsel.” State v. Wilson, 2d Dist. Clark No. 08CA0045, 2009-Ohio-2744, ¶ 11, citing

State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000). Accord State v.

Thomas, 2d Dist. Clark No. 2010 CA 48, 2011-Ohio-1987, ¶ 15. “Rather, trial counsel’s

failure to file a motion to suppress constitutes ineffective assistance of counsel only if the

failure to file the motion caused Defendant prejudice; that is, when there is a reasonable

probability that, had the motion to suppress been filed, it would have been granted.”

(Citations omitted.) Wilson at ¶ 11; State v. Nields, 93 Ohio St.3d 6, 34, 752 N.E.2d 859

(2001).

       {¶ 19} The State claims that Starling waived his ineffective assistance claim by

pleading guilty to murder in adult court. In support of that argument, the State relies on

the well-established principle that “[a] guilty plea waives the right to allege ineffective

assistance of counsel, except to the extent the errors caused the plea to be less than

knowing and voluntary.” State v. King, 2d Dist. Montgomery No. 23325, 2010-Ohio-

2839, ¶ 11, citing State v. Spates, 64 Ohio St.3d 269, 595 N.E.2d 351 (1992). The State

maintains that Starling’s ineffective assistance claim is waived because he does not

contend that trial counsel’s failure to file a motion to suppress at the probable cause

hearing caused his guilty plea to be less than knowing and voluntary.
                                                                                          -8-


       {¶ 20} We are, however, mindful of the fact that a guilty plea does not preclude

claims that attack the trial court’s jurisdiction. State v. Vance, 2d Dist. Clark Nos. 09-CA-

115, 09-CA-116, 2010-Ohio-5757, ¶ 15-16, citing State v. Fitzpatrick, 102 Ohio St.3d 321,

2004-Ohio-3167, 810 N.E.2d 927, ¶ 78-79; State v. Moore, 2d Dist. Montgomery No.

22365, 2008-Ohio-4322, ¶ 12. Rather, “guilty pleas waive all non-jurisdictional defects

in prior stages of the proceedings.” State v. Randle, 2d Dist. Montgomery No. 21931,

2007-Ohio-2967, ¶ 3, citing Ross v. Common Pleas Court of Auglaize Cty., 30 Ohio St.2d

323, 285 N.E.2d 25 (1972).

       {¶ 21} When a juvenile court improperly transfers jurisdiction over a juvenile to

adult court, any subsequent conviction in adult court is void for lack of jurisdiction. State

v. Washington, 2d Dist. Montgomery No. 20226, 2005-Ohio-6546, ¶ 14, citing State v.

Wilson, 73 Ohio St.3d 40, 44, 652 N.E.2d 196 (1995). “Because a [transfer] proceeding

pertains to the jurisdiction of the common pleas court, some courts have held that

challenges to [a] juvenile court’s decision with respect to the R.C. 2152.12 factors

pertaining to [transfer] are not waived through a guilty plea.” State v. Lewis, 9th Dist.

Summit No. 27887, 2017-Ohio-167, ¶ 7, citing State v. Amos, 1st Dist. Hamilton No. C-

150265, 2016-Ohio-1319, ¶ 28 and State v. Legg, 2016-Ohio-801, 63 N.E.3d 424, ¶ 31,

fn. 3 (4th Dist.). (Other citations omitted.) Accord State v. Brandeberry, 6th Dist. Lucas

No. L-16-1137, 2017-Ohio-5676, ¶ 17 (“appellant, by entering a guilty plea, did not waive

her right to raise a jurisdictional constitutional challenge with respect to the mandatory

transfer provisions in R.C. 2152.10(A)(1)(a) and 2152.12(A)(1)(a)”); State v. Poole, 8th

Dist. Cuyahoga No. 98153, 2012-Ohio-5739, ¶ 1, fn. 1 (“[a] guilty plea made following a

bindover or transfer from the juvenile division does not waive the right to appeal the
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bindover or transfer”).

         {¶ 22} But other courts, including this one, have held that constitutional challenges

to juvenile transfer proceedings are waived when the defendant pleads guilty and does

not contest validity of his plea. See, e.g., State v. Brookshire, 2d Dist. Montgomery No.

25853, 2014-Ohio-1971, ¶ 29; State v. Bradford, 5th Dist. Stark No. 2013 CA 00124,

2014-Ohio-904, ¶ 76-79; State v. Quarterman, 9th Dist. Summit No. 26400, 2013-Ohio-

3606, ¶ 3-6 (finding defendants were prevented from arguing on appeal that R.C.

2152.10(A)(2)(b) and 2152.12(A)(1)(b) violated their constitutional rights to due process,

equal protection, and to be free from cruel and unusual punishment, because the

defendants pled guilty to the charges against them and did not contest the validity of their

plea).    However, none of those cases involved claims of ineffective assistance of

counsel.

         {¶ 23} In this case, Starling’s ineffective assistance claim indirectly attacks the

jurisdiction of the adult court. Specifically, Starling argues that if his trial counsel had, at

the probable cause hearing, filed a motion to suppress his confession, his confession

would have been suppressed and there would have been no basis for the juvenile court

to find probable cause to believe he committed the criminal acts in question. Without a

probable cause finding, Starling maintains that there would have been no basis for his

mandatory transfer to adult court under R.C. 2152.12(A)(1)(a)(i).           Starling therefore

claims his transfer to adult court would have been improper and thus a jurisdictional error

that was not waived by his guilty plea.

         {¶ 24} Assuming, arguendo, that Starling’s guilty plea did not waive his ineffective

assistance of counsel claim, we nevertheless find no merit to his claim. See Legg, 2016-
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Ohio-801, 63 N.E.3d 424 at ¶ 60-61 (appellate court assumes, arguendo, that an

ineffective assistance claim similar to Starling’s was not waived by a guilty plea). This is

because trial counsel’s failure to file a motion to suppress at the probable cause hearing

did not amount to deficient performance or result in any prejudice to Starling.

       {¶ 25} As previously noted, Starling’s probable cause hearing was held pursuant

to R.C. 2152.12(A)(1)(a)(i). Pursuant to that statute, and as relevant here, a child 16 or

17 years of age who is charged with an act that would constitute murder if committed by

an adult shall be transferred to adult court if at a hearing the juvenile court finds there is

probable cause to believe the juvenile committed the act charged.

       {¶ 26} “[A] probable cause hearing held before a juvenile court’s transfer to adult

court is a preliminary, non-adjudicatory proceeding[.]” Matter of B.W., 2017-Ohio-9220,

103 N.E.3d 266, ¶ 18 (7th Dist.), citing Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44

L.Ed.2d 346 (1975), fn. 18, and State v. Carmichael, 35 Ohio St.2d 1, 7-8, 298 N.E.2d

568 (1973). Accord State v. Gilbert, 6th Dist. Lucas No. L-03-1273, 2005-Ohio-2350, ¶

11; In re A.M., 139 Ohio App.3d 303, 308, 743 N.E.2d 937 (8th Dist.2000); State v.

Whisenant, 127 Ohio App.3d 75, 85, 711 N.E.2d 1016 (11th Dist.1998). This proceeding

is non-adjudicatory because “the juvenile court’s function is not to determine whether the

juvenile is guilty of the charge[,] but is to determine whether there is probable cause to

believe the juvenile is guilty.” (Emphasis omitted.) B.W. at ¶ 18, citing State v. Iacona,

93 Ohio St.3d 83, 93, 752 N.E.2d 937 (2001).

       {¶ 27} Because a probable cause hearing is non-adjudicatory, the evidence

presented at a probable hearing need not meet the same rigorous standards for

admissibility at trial. See Whisenant at 85, quoting In re Ralph M., 211 Conn. 289, 559
                                                                                         -11-


A.2d 179 (1989) (“ ‘[statutory and] constitutional questions concerning the admissibility of

[a juvenile’s] statements raised by the [state], while relevant at a later adjudicatory

proceeding, are not appropriate for resolution at a transfer [i.e., bindover] hearing’ ”).

See also B.W. at ¶ 41, 48 (holding that the confrontation clause standards for the

admissibility of evidence and the Ohio Rules of Evidence do not apply to probable cause

hearings that are held prior to transferring a juvenile to adult court); State v. Grays, 1st

Dist. Hamilton No. C-790914, 1981 WL 9566, *1 (Jan. 14, 1981) (“it cannot seriously be

argued that testimony inadmissible at trial under the rules of evidence cannot be

considered in a preliminary proceeding such as [a probable cause hearing in juvenile

court]”). See generally Brinegar v. United States, 338 U.S. 160, 174, 69 S.C.t. 1302, 93

L.Ed. 1879 (1949) (discussing the different standards and latitude allowed in determining

probable cause versus guilt and indicating a lesser standard is required for probable

cause).

       {¶ 28} In Whisenant, the Eleventh District Court of Appeals specifically noted that

because juvenile probable cause hearings are not adjudicatory in nature, “statutory and

constitutional questions concerning the admissibility of evidence are premature and need

not be addressed.” Whisenant at 85. Based on that reasoning, the court in Whisenant

concluded that “[f]undamental fairness and due process are not violated by the juvenile

court’s failure to rule on or to suppress evidence obtained in alleged violation of Miranda

in [a probable cause/bindover proceeding].” Id. Therefore, Whisenant stands for the

proposition that evidence that might otherwise be suppressed at trial on the basis of a

Miranda violation is nevertheless admissible during a probable cause hearing held in

juvenile court.
                                                                                          -12-


       {¶ 29} The Supreme Court of Ohio has also held that motions to suppress

evidence do not lie at preliminary hearings, but rather become ripe for determination only

after arraignment and prior to trial. State v. Mitchell, 42 Ohio St.2d 447, 329 N.E.2d 682

(1975), syllabus; accord In re C.G., 8th Dist. Cuyahoga No. 97950, 2012-Ohio-5286, ¶ 39,

fn. 2 (“motions to suppress are not to be addressed at a probable cause hearing”).

Although Mitchell did not specifically address a probable cause hearing held in juvenile

court, it did concern a preliminary hearing in adult court where, under Crim.R. 5, the trial

court had to determine whether probable cause existed to believe the defendant

committed a criminal act. Mitchell at 450-451. Given the substantially similar nature of

the two hearings, we find that Mitchell supports the conclusion that it is improper to file a

motion to suppress during a preliminary probable cause hearing in juvenile court.

       {¶ 30} Although the Supreme Court of Ohio has made it clear that “the juvenile

court must evaluate the quality of the evidence presented by the state in support of

probable cause as well as any evidence presented by the respondent that attacks

probable cause[,]” Iacona, 93 Ohio St.3d at 93, 752 N.E.2d 937, citing Kent v. United

States, 383 U.S. 541, 563, 86 S.Ct. 1045, 16 L.Ed.2d 84, such an evaluation does not

include entertaining motions to suppress. Mitchell at 450-451. In Mitchell, the Supreme

Court noted that only evidence that is “clearly excludable under the rules of evidence

prevailing in criminal trials” should, upon appropriate objection, be excluded by a

magistrate when determining whether there is probable cause to believe a crime has been

committed, but that such evidence may never be suppressed. Id. at 451.

       {¶ 31} After reviewing the video evidence of Starling’s confession, we do not find

that the confession was clearly excludable. The confession was made while Starling
                                                                                          -13-

appeared coherent and after detectives read Starling his Miranda rights and obtained a

signed, written waiver of those rights. The fact that Starling contends his confession was

involuntary and obtained in violation of Miranda is a question that was not ripe for review

at the non-adjudicatory probable cause hearing. We note that “the evidence presented

at the probable cause hearing ‘does not have to be unassailable’ to qualify as credible.”

B.W., 2017-Ohio-9220, 103 N.E.3d 266, at ¶ 21, quoting In re A.J.S., 120 Ohio St.3d 185,

2008-Ohio-5307, 897 N.E.2d 629, ¶ 46, citing Iacona at 93.

       {¶ 32} Based on the foregoing, we find that filing a motion to suppress for purposes

of Starling’s probable cause hearing would have been premature and improper.

Therefore, trial counsel’s decision not to file a motion to suppress at the probable cause

hearing was warranted and a matter of sound trial strategy that cannot serve as the basis

for an ineffective assistance claim. Accordingly, based on the facts and circumstances

here, Starling has failed to establish deficient performance on the part of his trial counsel.

       {¶ 33} Starling has also failed to establish that he was prejudiced by trial counsel’s

failure to file a motion to suppress. Regardless of any potential Miranda violation, it

would have been inappropriate for the juvenile court to suppress Starling’s confession

when making its probable cause determination. This is because, as noted above, the

admissibility of Starling’s confession was not yet ripe for review at the non-adjudicatory

probable cause hearing. Therefore, given the facts and circumstances of this case, there

is not a reasonable probability that the juvenile court would have granted a motion to

suppress at that stage of the proceedings.

       {¶ 34} Starling’s First Assignment of Error is overruled.
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                              Second Assignment of Error

       {¶ 35} Under his Second Assignment of Error, Starling challenges the juvenile

court’s probable cause determination that was made pursuant to R.C. 2152.12(A)(1)(a)(i).

Specifically, Starling argues that the juvenile court’s decision finding probable cause to

believe that he murdered H. and tampered with evidence should be reversed because

said finding was not supported by sufficient evidence and was against the manifest weight

of the evidence. We disagree.

       {¶ 36} “[A] juvenile court’s probable-cause determination in a mandatory-bindover

proceeding involves questions of both fact and law, and thus, 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.” A.J.S., 120 Ohio St.3d 185, 2008-Ohio-

5307, 897 N.E.2d 629, at ¶ 51.

       {¶ 37} “ ‘[T]he state must provide credible evidence of every element of an offense

to support a finding that probable cause exists to believe that the juvenile committed the

offense before ordering mandatory waiver of juvenile court jurisdiction pursuant to [R.C.

2152.12(A)(1)(a) ].’ ” Id. at ¶ 42, quoting Iacona, 93 Ohio St.3d at 93, 752 N.E.2d 937.

“ ‘In meeting this standard 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.’ ” Id., quoting Iacona at 93. In other words, “the standard of probable cause is a

fair probability, not a prima facie showing, of criminal activity.” (Citations omitted.) State

v. Grimes, 2d Dist. Greene No. 2009-CA-30, 2010-Ohio-5385, ¶ 16.

       {¶ 38} As previously noted, Starling was charged in the juvenile court with
                                                                                         -15-


committing acts that, if committed by an adult, would constitute murder in violation of R.C.

2903.02(A) and tampering with evidence in violation of R.C. 2921.12(A)(1). A person

commits the crime of murder when he purposefully causes the death of another. R.C.

2903.02(A). A person commits the crime of tampering with evidence when the person

“know[s] that an official proceeding or investigation is in progress, or is about to be or

likely to be instituted” and “conceal[s], or remove[s] any record, document, or thing, with

purpose to impair its value or availability as evidence in such proceeding or

investigation[.]” R.C. 2921.12(A)(1).

       {¶ 39} In an effort to establish probable cause for the charges against Starling, the

State presented the testimony of Detective Ronald Jordan and Sergeant Jeffrey Flores of

the Springfield Police Department. The State also presented the testimony of Dr. Mary

Elizabeth Goolsby of the Coroner’s Office. In addition, the State presented a video

recording of the second interview Starling had with detectives and the written Miranda

waiver signed by Starling. The State also presented photographs of Starling’s residence,

H.’s deceased body, the murder weapons, and H.’s autopsy.

       {¶ 40} At the probable cause hearing, Detective Jordan testified that he conducted

Starling’s second interview and that Starling confessed to killing H.       Both the video

recording of the second interview and Jordan’s testimony establish that Starling told

Jordan he entered H.’s bedroom, grabbed a baseball bat, and struck H. in the head 14 to

15 times while H. was lying in bed asleep. After Starling admitted to hitting H. with the

baseball bat, Starling told Jordan that H. began making a weird sound. In order to stop

the sound, Starling told Jordan that he went into the kitchen, grabbed a knife from the

butcher block, and stabbed H. in the neck two or three times.
                                                                                       -16-


      {¶ 41} Following the stabbing, Starling told Jordan that he climbed out of H.’s

bedroom window and placed the baseball bat over a fence in the backyard. From there,

Starling informed Jordan that he climbed back through H.’s bedroom window and went

into the bathroom to clean the knife. Thereafter, Starling also told Jordan that he placed

the knife in his computer bag.

      {¶ 42} To corroborate Starling’s confession, the State presented Sergeant Flores,

who testified to discovering a baseball bat covered in blood on the other side of a fence

located in the backyard of Starling’s residence.       In addition to Sergeant Flores’s

testimony, Detective Jordan testified to discovering a knife that appeared to have some

blood on it inside Starling’s computer bag.1 Jordan testified that both the baseball bat

and the knife were sent to the Bureau of Criminal Investigation for DNA testing and that

the test results were pending.

      {¶ 43} Detective Jordan also testified that he reviewed video footage taken from a

surveillance system inside Starling’s residence between approximately 9 p.m. and 6 a.m.

on the night of H.’s murder. Jordan testified that the video footage showed Starling

leaving his bedroom and going toward the area of H.’s bedroom. Jordan also testified

that the video footage later showed Starling leaving the area of H.’s bedroom and then

entering the bathroom for a significant period of time. Although Jordan testified that he

could not see whether Starling was carrying a knife due to the angle of the camera, Jordan

nevertheless testified that the video footage was consistent with Starling’s confession.

Jordan also testified that no other person was seen on the video entering the residence


1
 The video evidence indicates that Jordan received Starling’s consent to search the
computer bag during the interview. Jordan presented a written consent form to Starling,
which Starling signed during the interview.
                                                                                          -17-


with a baseball bat or other weapon.

       {¶ 44} The testimony of Dr. Goolsby, the coroner who performed the autopsy on

H.’s body, also corroborated Starling’s confession. Goolsby testified that the cause of

H.’s death was blunt force injuries to the head and multiple sharp force injuries to the

neck. Goolsby testified that the injuries to H.’s head were possibly consistent with being

inflicted by a baseball bat and that H. was struck in the head more than twice. Goolsby

also testified that the injuries to H.’s neck were possibly consistent with being stabbed

with a knife.

       {¶ 45} Based on the foregoing evidence, we find that the State presented sufficient

evidence of probable cause to believe that Starling murdered H. and tampered with the

murder weapon evidence. That is, the evidence presented by the State raised more than

a mere suspicion of Starling’s guilt. Starling’s recorded confession combined with the

testimony concerning the bloody baseball bat, knife, surveillance video, and the nature of

H.’s injuries indicated that there was a fair probability that Starling committed the criminal

acts in question.

       {¶ 46} Starling’s claim that the probable cause determination was otherwise

against the manifest weight of the evidence also lacks merit. “[O]nce the State has

established probable cause as to each element of the offense charged, the State has

satisfied its burden, and the juvenile court must bindover the case.” State v. Hairston,

10th Dist. Franklin No. 08AP-735, 2009-Ohio-2346, ¶ 19, citing A.J.S., 120 Ohio St.3d

185, 2008-Ohio-5307, 897 N.E.2d 629, at ¶ 46, citing Iacona, 93 Ohio St.3d at 93, 95,

752 N.E.2d 937. “[T]he state has no burden to disprove alternate theories of the case at

a bindover proceeding.” A.J.S. at ¶ 61, citing Iacona at 96. Accord, In re R.N., 6th Dist.
                                                                                          -18-


Lucas No. L-17-1301, 2018-Ohio-5006, ¶ 16. Rather, “[t]hat question would be reserved

for ultimate adjudication by the trier-of-fact at trial in the general division of the common

pleas court.” Hairston at ¶ 19, citing A.J.S. Therefore, based on these principles, a

manifest weight analysis has no place in reviewing a juvenile court’s probable cause

determination.

       {¶ 47} Starling’s Second Assignment of Error is overruled.



                               Third Assignment of Error

       {¶ 48} Under his Third Assignment of Error, Starling contends that when his case

was transferred back to juvenile court pursuant to Aalim I, 150 Ohio St.3d 463, 2016-

Ohio-8278, 83 N.E.3d 862, the juvenile court violated his right to due process by delaying

his amenability hearing until the Supreme Court of Ohio issued its opinion vacating Aalim I

in Aalim II, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883. Starling also contends

that his trial counsel was ineffective in failing to object to the delay. We disagree.

       {¶ 49} In Aalim I, the Supreme Court of Ohio declared that due process requires

an amenability hearing to be held before any juvenile is transferred to adult court. Id. at

¶ 20, 24-25.     Because the mandatory-transfer statutes, R.C. 2152.10(A) and R.C.

2152.12(A), provide for the automatic transfer of a juvenile to adult court without an

amenability hearing, the court in Aalim I held that the mandatory-transfer statutes were

unconstitutional and severed them. Id. at ¶ 29. Given the severance of the mandatory-

transfer statutes, the Supreme Court indicated that transfers of juveniles previously

subject to mandatory transfer may occur pursuant to the discretionary-transfer provisions

in R.C. 2152.10(B) and R.C. 2152.12(B) because those provisions require an amenability
                                                                                         -19-

hearing. Id. at ¶ 27-29.

       {¶ 50} Aalim I was issued approximately one month after the juvenile court initially

ordered the mandatory transfer of Starling’s case to adult court pursuant to R.C.

2152.12(A). As a result of the Supreme Court’s decision in Aalim I, the State and Starling

filed concurring motions in the adult court that requested Starling’s case be remanded

back to juvenile court for discretionary transfer proceedings, i.e., an amenability hearing.

The adult court granted the motions and remanded Starling’s case back to juvenile court.

       {¶ 51} On remand, the juvenile court issued an entry that reiterated its finding of

probable cause and scheduled the matter for an amenability hearing on February 2, 2017.

Although Starling had previously undergone a psychological evaluation on the issue of

amenability, the State filed a motion to continue the amenability hearing so that Starling

could undergo a second psychological evaluation by a different expert. Starling opposed

the motion, but the juvenile court ultimately granted the State’s request and rescheduled

the amenability hearing for March 7, 2017.

       {¶ 52} Shortly after the continuance was granted, on February 22, 2017, the

Supreme Court accepted a motion filed by the State to reconsider and stay the court’s

judgment in Aalim I. Despite the stay of judgment in Aalim I, the parties in Starling’s case

agreed to proceed with the March 7, 2017 amenability hearing.           Starling thereafter

moved the juvenile court for another continuance of the amenability hearing so that a third

psychological evaluation could be conducted.        The motion was sustained and the

juvenile court continued the amenability hearing to April 6, 2017. Starling then requested

a third continuance because his expert could not complete the evaluation by the

scheduled hearing date. That request was also sustained, and the amenability hearing
                                                                                       -20-


was again rescheduled for May 11, 2017.

      {¶ 53} The May 11, 2017 amenability hearing was vacated after both parties

agreed to continue the hearing for an additional 60 days. The parties agreed to the 60-

day continuance in hopes that the Supreme Court would have by then clarified its position

on the mandatory-transfer statutes. Shortly after the parties’ agreement, the Supreme

Court issued Aalim II, which vacated Aalim I. The Supreme Court concluded in Aalim II

that the mandatory-transfer statutes, R.C. 2152.10(A) and R.C. 2152.12(A), were

constitutional. Aalim II, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883 at ¶ 38.

      {¶ 54} Following the decision in Aalim II, the State moved for the juvenile court to

transfer Starling’s case back to adult court pursuant to the mandatory transfer provision

in R.C. 2152.12(A)(1)(a)(i). Because the Supreme Court affirmed the constitutionality of

R.C. 2152.12(A), and because the juvenile court previously found probable cause to

believe that Starling had committed the criminal activity charged, the juvenile court

granted the State’s motion and ordered the transfer of Starling’s case back to adult court

without holding an amenability hearing.

      {¶ 55} As previously noted, Starling claims that the juvenile court’s decision to

delay the amenability hearing violated his right to due process. “ ‘The touchstone of due

process is fundamental fairness.’ ”       State v. Salmons, 2d Dist. Champaign No.

2003CA21, 2004-Ohio-3773, ¶ 11, quoting State v. Mynhier, 146 Ohio App.3d 217, 221,

765 N.E.2d 917 (1st Dist.2001), overruled on other grounds, State v. Jackson, 1st Dist.

Hamilton No. C-140384, 2015-Ohio-2171, ¶ 14. “Whether appellant was afforded due

process, or fundamental fairness, is highly dependent upon the particular circumstances

of the situation.” State v. Crist, 2d Dist. Montgomery No. CA 9624, 1987 WL 14272, *2
                                                                                          -21-


(July 10, 1987).

       {¶ 56} Here, the delay in holding Starling’s amenability hearing was due to the

juvenile court’s granting four continuances, two of which were requested by Starling, and

one of which was agreed to by the parties. “ ‘The grant or denial of a continuance is a

matter that is entrusted to the broad, sound discretion of the trial judge’ ”        State v.

Harmon, 2d Dist. Clark No. 09CA0035, 2010-Ohio-836, ¶ 7, quoting State v. Unger, 67

Ohio St.2d 65, 423 N.E.2d 1078 (1981), syllabus.

       {¶ 57} In exercising its discretion, the juvenile court granted the first three

continuances so that the parties could obtain psychological evaluations for the

amenability hearing. The fourth continuance was granted so that the parties could await

the outcome of Aalim II.        Under these circumstances, we do not find that the

continuances were an abuse of discretion or that they were fundamentally unfair so as to

violate Starling’s right to due process.

       {¶ 58} Starling also claims that his trial counsel was ineffective in agreeing to a 60-

day continuance of the amenability hearing for purposes of awaiting the Supreme Court’s

decision in Aalim II. According to Starling, his trial counsel should have objected to any

further delay and pushed for the amenability hearing to take place under the authority of

Aalim I, regardless of the stay that was placed on that judgment. But, as we previously

discussed, to prevail on an ineffective assistance claim, a defendant must establish: (1)

that his or her trial counsel’s performance was deficient and (2) that the deficient

performance resulted in prejudice. Strickland, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674, at paragraph two of the syllabus; Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373, at paragraph two of the syllabus.         Starling has established neither, thus his
                                                                                          -22-


ineffective assistance claim necessarily fails.

       {¶ 59} With regard to deficient performance, the fact that trial counsel agreed to a

60-day continuance of the amenability hearing in hopes that the Supreme Court would

have by then clarified its position on the mandatory-transfer statutes was a matter of trial

strategy that cannot form the basis of an ineffective assistance claim. State v. Wynn, 2d

Dist. Montgomery No. 25097, 2014-Ohio-420, ¶ 90, quoting State v. Warner, 8th Dist.

Cuyahoga No. 95750, 2012-Ohio-256, ¶ 11, citing State v. Pasqualone, 121 Ohio St.3d

186, 2009-Ohio-315, 903 N.E.2d 270 and State v. Frazier, 115 Ohio St.3d 139, 2007-

Ohio-5048, 873 N.E.2d 1263 (“the decision whether to request a trial continuance is

debatable, and involves a strategic choice of counsel that falls ‘within the realm of trial

strategy and tactics that will not ordinarily be disturbed on appeal’ ”). “ ‘Debatable trial

tactics generally do not constitute a deprivation of effective counsel.’ ” State v. Phillips,

74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995), citing State v. Clayton, 62 Ohio St.2d 45,

49, 402 N.E.2d 1189 (1980). “[T]he fact that there was another and better strategy

available does not amount to a breach of an essential duty to [one’s] client.” Clayton at

49.

       {¶ 60} With regard to prejudice, Starling cannot establish a reasonable probability

that the outcome of his case would have been different had his counsel objected to the

60-day continuance.     Despite any such objection, the juvenile court still could have

ordered a continuance for the purpose of awaiting the decision in Aalim II. Even if such

an objection was suatained and an amenability hearing was held, there is nothing in the

record to indicate that the juvenile court would have found Starling amenable to the

juvenile justice system following such a hearing.         Although two out of the three
                                                                                            -23-


psychological experts that evaluated Starling opined that Starling was amenable to

rehabilitation in the juvenile justice system, that decision was ultimately left to the juvenile

court. There was no guarantee that the juvenile court would have reached the same

conclusion following an amenability hearing. Therefore, Starling’s claim of prejudice

rests on mere speculation. It is well established that “[s]uch speculation is insufficient to

establish ineffective assistance.” State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641,

952 N.E.2d 1121, ¶ 119, quoting State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179,

920 N.E.2d 104, ¶ 217. (Other citations omitted.)

       {¶ 61} Starling’s Third Assignment of Error is overruled.



                               Fourth Assignment of Error

       {¶ 62} Under his Fourth Assignment of Error, Starling contends that R.C.

2929.02(B)(1), which imposes an indefinite prison sentence of 15 years to life for murder,

is unconstitutional as applied to juveniles.        Specifically, Starling argues that R.C.

2929.02(B)(1) violates the Eighth Amendment protection against cruel and unusual

punishment because it imposes a specific sentence without regard to the defendant’s

status and precludes the sentencing court from considering mitigating factors such as the

defendant’s youth and capacity for change. We disagree.

       {¶ 63} As a preliminary matter, we note that Starling forfeited any arguments about

the constitutionality of R.C. 2929.02(B)(1) by failing to raise them before the trial court.

Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15. Nevertheless,

this court has discretion to consider a forfeited constitutional challenge to a statute under

a plain error standard of review. Id. at ¶ 16. In such a situation, a defendant must show
                                                                                          -24-


“that but for a plain or obvious error, the outcome of the proceeding would have been

otherwise, and reversal must be necessary to correct a manifest miscarriage of justice.”

Id., citing State v. Davis, 127 Ohio St.3d 268, 2010-Ohio-5706, 939 N.E.2d 147, ¶ 29.

       {¶ 64} Upon review, we find that Starling failed to establish that the trial court

committed a plain or obvious error for which a reversal is required to correct a manifest

miscarriage of justice.

       {¶ 65} In arguing that R.C. 2929.02(B)(1) is unconstitutional, Starling relies on

Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Miller involved

two cases wherein two 14-year-old defendants were convicted of murder and sentenced

to life in prison without the possibility of parole. Id. at 465. Because state law mandated

those sentences, the sentencing court did not have any discretion to impose a different

punishment. Id. The United States Supreme Court found that “such a scheme prevents

those meting out punishment from considering a juvenile’s ‘lessened culpability’ and

greater ‘capacity for change,’ and runs afoul of our cases’ requirement of individualized

sentencing for defendant’s facing the most serious penalties.” Id., quoting Graham v.

Florida, 560 U.S. 48, 68, 74, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). As a result, the

court in Miller held “that mandatory life without parole for those under the age of 18 at the

time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual

punishments.’ ” (Emphasis added.) Id.

       {¶ 66} In State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, the

Supreme Court of Ohio followed Miller and held that “[a] court, in exercising its discretion

under R.C. 2929.03(A), must separately consider the youth of a juvenile offender as a

mitigating factor before imposing a sentence of life without parole.” (Emphasis added.)
                                                                                             -25-

Long at paragraph one of the syllabus.

       {¶ 67} Unlike the sentences at issue in Miller and Long, Starling was not sentenced

to life in prison without the possibility of parole. Rather, Starling will be considered for

parole after having served 15 years in prison. This court has consistently refused to

extend the rationale in Miller and Long to sentences like Starling’s where parole is

afforded. See, e.g., State v. Zimmerman, 2d Dist. Clark Nos. 2015-CA-62 and 2015-CA-

63, 2016-Ohio-1475, ¶ 16-24; State v. Hawkins, 2015-Ohio-5383, 55 N.E.3d 505, ¶ 11-

16 (2d Dist.); State v. Jones, 2d Dist. Montgomery No. 26333, 2015-Ohio-3506, ¶ 1-2.

See also, State v. Terrell, 8th Dist. Cuyahoga No. 103428, 2016-Ohio-4563, ¶ 12-18.

       {¶ 68} This court has also rejected the argument that mandatory sentences

imposed on juveniles in adult court are invalid as a violation of the Eighth Amendment.

State v. Anderson, 2d Dist. Montgomery No. 26525, 2016-Ohio-135, ¶ 34 (noting that

Long did not suggest that “the Eighth Amendment or Article I, Section 9 prohibit any and

all mandatory sentences on juveniles tried in adult court”). Accord Zimmerman at ¶ 25-

26.

       {¶ 69} Our review of cases decided by both the Supreme Court of Ohio and the

United States Supreme Court after Miller shows no indication that the holding in Miller

has been extended to situations like in the present case. Simply put, since Starling is

eligible for parole, the holdings in Miller and Long do not apply. Therefore, because the

holdings in Miller and Long do not apply to the case at bar, Starling has failed to establish

plain error for which a reversal is required to correct a manifest miscarriage of justice.

       {¶ 70} Starling’s Fourth Assignment of Error is overruled.
                                                                                        -26-


                                         Conclusion

       {¶ 71} Having overruled all assignments of error raised by Starling, the judgment

of the trial court is affirmed.



                                       .............


FROELICH, J., concurs:

       {¶ 72} I disagree with the suggestion that the filing of a motion to suppress at the

juvenile court’s probable cause stage is always inappropriate or that the juvenile court

never has the jurisdiction to rule on such a motion.

       {¶ 73} The probable cause hearing preceding a bindover determination in juvenile

court is fundamentally different from probable cause determinations for arrest, pre-trial

detention, bindover from adult misdemeanor court, grand jury proceedings, etc. The

juvenile court has exclusive jurisdiction over children alleged to be delinquent for

committing acts that would constitute a crime if committed by an adult and the removal of

such allegations to adult court is entitled to a higher level of due process.

       {¶ 74} Regardless, I agree on the facts before us that Starling has not shown that

his counsel was deficient in not filing a motion to suppress in juvenile court or that such

failure, even if deficient, prejudiced him.



DONOVAN, J., concurs:

       {¶ 75} I concur in Judge Welbaum’s opinion and in Judge Froelich’s concurring

opinion.
                                            -27-


                            .............


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Andrew P. Pickering
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