[Cite as State v. Brandeberry, 2017-Ohio-5676.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                         Court of Appeals No. L-16-1137

        Appellee                                      Trial Court No. CR0201502044

v.

Kassi Brandeberry                                     DECISION AND JUDGMENT

        Appellant                                     Decided: June 30, 2017

                                                  *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Timothy Young, Ohio Public Defender, and Charlyn Bohland,
        Assistant State Public Defender, for appellant.

                                                  *****

        SINGER, J.

        {¶ 1} Appellant, Kassi Brandeberry, appeals the May 25, 2016 judgment of the

Lucas County Court of Common Pleas. For the reasons that follow, we affirm.

        {¶ 2} Appellant sets forth four assignments of error:
            Assignment of Error I: The juvenile court erred when it transferred

     Kassi Brandeberry’s case to criminal court because the mandatory transfer

     provisions in R.C. 2152.10(A)(1)(a) and 2152.12(A)(1)(a) violate a child’s

     right to due process as guaranteed by the Fourteenth Amendment to the

     U.S. Constitution and Article I, Section 16, Ohio Constitution. (6/15/2015

     Judgment Entry, p.1).

            Assignment of Error II: The juvenile court erred when it transferred

     Kassi Brandeberry’s case to criminal court because the mandatory transfer

     provisions in R.C. 2152.10(A)(1)(a) and 2152.12(A)(1)(a) violate a child’s

     right to equal protection as guaranteed by the Fourteenth Amendment to the

     U.S. Constitution and Article I, Section 2, Ohio Constitution. (6/15/2015

     Judgment Entry, p.1).

            Assignment of Error III: The mandatory sentencing statutes in R.C.

     2929 are unconstitutional as applied to children because they do not permit

     the trial court to make an individualized determination about a child’s

     sentence or the attributes of youth, in violation of Eighth and Fourteenth

     Amendments to the U.S. Constitution; and Article I, Sections 9 and 16,

     Ohio Constitution. (A-1; 5/25/2016 Judgment Entry, pp.2-3).

            Assignment of Error IV: Kassi Brandeberry was denied the

     effective assistance of counsel, in violation of the Sixth and Fourteenth




2.
         Amendments to the U.S. Constitution; and Article, [sic] I, Section 10, Ohio

         Constitution. (6/11/2015 T.pp.35-36; 5/10/2016 T.pp.5-22).

                                     Background Facts

         {¶ 3} In the early morning hours of May 2, 2015, appellant set a fire, using

gasoline, at the house located at 253 Willard, Toledo, Lucas County, Ohio. As a result of

the fire, a 14-year-old young man died and a 13-year-old young man was severely

injured. A firefighter was also hurt while fighting the blaze. In addition, the family pets

were killed in the fire and the family lost their house and most of the contents of the

house.

         {¶ 4} Appellant, who was 17 years old at the time of the fire, admitted to setting

the fire at the house.

                                     Procedural History

         {¶ 5} On May 28, 2015, two complaints were filed in Lucas County Juvenile

Court charging appellant with aggravated murder and burglary. The burglary charge

stems from an incident which occurred in September 2014, when appellant was 16 years

old, and which was unrelated to the May 2, 2015 fire.

         {¶ 6} The state moved the juvenile court to transfer appellant to the general

division of the Lucas County Court of Common Pleas for prosecution as an adult. A

hearing was held, after which the juvenile court found probable cause that appellant had

committed the offenses charged. Appellant’s case was transferred to the general division

of the common pleas court.




3.
       {¶ 7} On June 30, 2015, the grand jury indicted appellant on the following

charges: Count 1, aggravated murder; Count 2, murder; Counts 3, 5, 6, 7 aggravated

arson; Count 4, attempt to commit aggravated murder; and Count 8, burglary.

       {¶ 8} In April 2016, appellant pled guilty to Counts 2, 5 and 6 of the indictment,

as well as to an amended Count 8, attempted burglary. In May 2016, the trial court

sentenced appellant to a total prison term of 21 years to life, which included consecutive

sentences. The trial court also found appellant was an arson offender, pursuant to R.C.

2909.01. The remaining counts of the indictment were dismissed. Appellant timely

appealed.

                                 Argument and Analysis

                                First Assignment of Error

       {¶ 9} Appellant asserts that although her trial counsel failed to raise a constitutional

challenge to the mandatory transfer statutes, this court can review her claims under the

plain error standard to find her constitutional rights were violated. Appellant argues R.C.

2152.10(A)(1)(a) and 2152.12(A)(1)(a) create an improper, irrebutable presumption that

she is as culpable as an adult for the acts she committed and not amenable to treatment in

the juvenile system. Appellant contends because of this irrebutable presumption, the

juvenile court is prohibited from making an individualized determination of whether she is

amenable to rehabilitation in the juvenile system. Appellant submits due process requires

an amenability hearing before transferring a child to criminal court.




4.
       {¶ 10} Appellant notes the Supreme Court of Ohio recently ruled, in December

2016, in State v. Aalim, Slip Opinion No. 2016-Ohio-8278 (“Aalim I”), that the

mandatory transfer provisions in R.C. 2152.10(A) and 2152.12(A) were unconstitutional

as they violate a child’s right to due process.

       {¶ 11} The state counters regardless of the Aalim I ruling, the issue here is whether

a guilty plea forfeits a claim that Ohio’s mandatory transfer provisions are

unconstitutional. The state maintains a guilty plea bars all appealable errors except for

claims that the plea was not entered voluntarily and knowingly. Even assuming arguendo

appellant’s claim survives a guilty plea, the state submits she cannot demonstrate the trial

court committed plain error in applying the mandatory bindover statutes when those

statutes have not been declared unconstitutional by appellate courts despite numerous

challenges.

                                           Aalim I

       {¶ 12} In Aalim I, a complaint was filed in juvenile court alleging the 16-year-old

juvenile engaged in conduct which would be considered aggravated robbery if committed

by an adult. Id. at ¶ 2. The complaint also contained a firearm specification. The state

of Ohio moved to transfer the juvenile to the general division of the common pleas court

to be tried as an adult, pursuant to R.C. 2152.10(A)(2)(b) and 2152.12(A)(1)(b). Id. The

juvenile court held a hearing and found there was probable cause to believe the juvenile

committed the act alleged in the complaint, including the firearm specification. Id. at ¶ 3.

The juvenile court transferred the case to the general division. Id.




5.
       {¶ 13} After being indicted, the juvenile filed a motion to dismiss claiming the

mandatory transfer provisions under R.C. 2152.10(A)(2)(b) and 2152.12(A)(1)(b)

violated his due process and equal protection rights and the prohibition against cruel and

unusual punishment under the United States and Ohio Constitutions. Id. at ¶ 4. The trial

court denied the motion and the appellate court affirmed. Id. at ¶ 4-5. The Supreme

Court of Ohio accepted jurisdiction as to whether the mandatory transfer provisions of

the statutes violate juveniles’ due process and equal protection rights. Id. at ¶ 6.

       {¶ 14} The Supreme Court of Ohio ruled the mandatory transfer provisions under

R.C. 2152.10(A)(2)(b) and 2152.12(A)(1)(b) were unconstitutional in violation of

juveniles’ right to due process, but found the discretionary transfer process, set forth in

R.C. 2152.10(B) and 2152.12(B) through (E), “satisfies fundamental fairness under the

Ohio Constitution” and therefore severed the mandatory transfer provisions of R.C.

2152.10(A) and 2152.12(A). Id. at paragraph one of the syllabus, ¶ 28-29. The court

declined to address the equal-protection issue because it concluded the mandatory

transfer statutes violated juveniles’ right to due process. Id. at ¶ 32.

                                           Aalim II

       {¶ 15} After appellant filed her appeal and the parties submitted their briefs, the

Supreme Court of Ohio reconsidered Aalim I, and found the mandatory transfer of

juveniles to the general division of the common pleas court did not violate either the Ohio

Constitution or the United States Constitution. State v. Aalim, Slip Opinion No. 2017-

Ohio-2956 (“Aalim II”). Specifically, the Supreme Court held:




6.
               Because this court failed in Aalim I,   Ohio St.3d   , 2016-Ohio-

       8278,    N.E.3d    , to consider the General Assembly’s exclusive

       constitutional authority to define the jurisdiction of the courts of common

       pleas under Article IV, Section 4(B) of the Ohio Constitution, we grant the

       state’s motion for reconsideration pursuant to S.Ct.Prac.R. 18.02. Upon

       reconsideration, we hold that the mandatory bindover of certain juvenile

       offenders under R.C. 2152.10(A)(2)(b) and 2152.12(A)(1)(b) complies with

       due process and equal protection as guaranteed by the Ohio and United

       States Constitutions. We therefore vacate our decision in Aalim I, and we

       affirm the judgment of the court of appeals upholding the trial court’s

       denial of Aalim’s motion to dismiss his indictment. Id. at ¶ 38.

                                     Guilty Plea

       {¶ 16} With respect to a guilty plea, it is a complete admission of factual guilt, and

a valid guilty plea waives all nonjurisdictional defects in prior stages of the proceedings.

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

11(B)(1). Thus, a guilty plea does not preclude claims which attack the court’s subject-

matter jurisdiction. Fitzpatrick at ¶ 78, 79.

       {¶ 17} Here, we find 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). We therefore find, based on

the holding in Aalim II, the juvenile court did not err when it transferred appellant’s case




7.
to the general division of the common pleas court since the mandatory transfer provisions

in R.C. 2152.10(A)(1)(a) and 2152.12(A)(1)(a) are constitutional and do not violate a

juvenile’s right to due process. We further find the general division of the common pleas

court had subject-matter jurisdiction over appellant’s case. Accordingly, appellant’s first

assignment of error is not well-taken.

                               Second Assignment of Error

       {¶ 18} In light of the findings above, it is not necessary for us to address the

second assignment of error raised by appellant. Accordingly, we find appellant’s second

assignment of error is moot and not well-taken.

                               Third Assignment of Error

       {¶ 19} Appellant contends the mandatory sentencing statutes include irrebutable

presumptions which do not allow the juvenile court to make an individualized

determination regarding a juvenile’s sentence. Appellant argues a juvenile’s due process

rights are violated when the juvenile court is prohibited from making an individualized

determination about a juvenile’s sentence. Appellant asserts the sentencing statutes will

be constitutional if individualized sentencing is permitted.

       {¶ 20} The state counters due process is not violated by mandatory minimum

terms of imprisonment for juveniles. The state observes the Ohio Supreme Court rejected

a similar challenge to the application of a mandatory term of life in prison for an offense

committed by a juvenile in State v. Warren, 118 Ohio St.3d 200, 2008-Ohio-2011, 887

N.E.2d 1145.




8.
       {¶ 21} A party may challenge the constitutionality of a statute on its face or as

applied to a certain set of facts. Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio-5334,

836 N.E.2d 1165, ¶ 37. Under a facial challenge, the party must establish there are no

circumstances under which the statute would be valid. Id. When a statute is challenged

as applied to a certain set of facts, the party must prove, by clear and convincing

evidence, the statute is unconstitutional and void when applied to the existing set of facts.

Id. at ¶ 38.

       {¶ 22} Here, appellant has asserted a challenge to the constitutionality of the

mandatory sentencing statutes “as applied to children,” which is a facial challenge to the

statutes. Since appellant raised this challenge for the first time on appeal, we review

appellant’s constitutional challenge for plain error. State v. Quarterman, 140 Ohio St.3d

464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15.

       {¶ 23} To succeed on a facial challenge to statutes under plain error review,

appellant must prove: (1) the statutes are unconstitutional on their face, and their

enforcement against appellant was error; (2) the constitutional infirmities of the statutes

are plain and obvious; (3) the enforcement of the statutes affected appellant’s substantial

rights; and (4) the fairness, integrity and public reputation of the judicial proceedings

were affected by the error. In re T.M., 155 A.3d 400, 405 (D.C.2017); State v. Barnes, 94

Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). An error is not plain if the Ohio Supreme

Court has not rendered a definitive pronouncement on the issue at the time the trial court

committed the error. Barnes at 28.




9.
       {¶ 24} A review of the case law shows the issue of the constitutionality of the

mandatory sentencing statutes in R.C. 2929, as applied to children since the statutes do

not permit the trial court to make an individualized determination about a child’s

sentence or the attributes of youth, has not been decided by the Ohio Supreme Court. For

that reason, appellant’s facial plain error challenge of this issue fails because the error

was not plain, as required by Barnes. Accordingly, appellant’s third assignment of error

is not well-taken.

                               Fourth Assignment of Error

       {¶ 25} Appellant contends her trial counsel was ineffective for failing to object to

the constitutionality of both the transfer of appellant’s case to adult court and the

application of adult mandatory sentencing statutes to appellant. Had trial counsel

objected, appellant maintains her right to appeal would have been preserved. Appellant

argues she was prejudiced by her trial counsel’s deficiencies.

       {¶ 26} The state counters an objective standard of reasonableness does not require

appellant’s counsel to raise a constitutional challenge to a bindover procedure which has

been in place for almost two decades and upheld after numerous constitutional

challenges. In addition, the state asserts the result of the proceeding would not have

changed if an amenability hearing were held because many factors weigh in favor of

transferring appellant’s case to the general division, and few factors weigh against the

transfer.




10.
       {¶ 27} In order to prevail on a claim of ineffective assistance of counsel, the party

must show both deficient performance and resulting prejudice. Strickland v. Washington,

466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Trial counsel is entitled to a

strong presumption that his or her conduct falls within the wide range of effective

assistance, and to show deficiency, the party claiming such deficiency must demonstrate

that counsel’s representation fell below an objective standard of reasonableness. Id. at

689; State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). To establish that

a party has been prejudiced by trial counsel’s deficient performance, the party must prove

there exists a reasonable probability that, but for counsel’s errors, the result of the trial

would have been different. Id. at paragraph three of the syllabus.

       {¶ 28} Here, appellant presented no evidence that her trial counsel’s performance

was objectively unreasonable or that she was prejudiced by her trial counsel’s failure to

object to the constitutionality of the transfer of her case or the application of adult

mandatory sentencing statutes to her. Absent a showing of both deficient performance

and resulting prejudice, ineffective assistance is not shown. Accordingly, appellant’s

fourth assignment of error is not well-taken.

       {¶ 29} The judgment of the Lucas County Court of Common Pleas is affirmed.

Pursuant to App.R. 24, appellant is ordered to pay the costs of this appeal.


                                                                           Judgment affirmed.




11.
                                                                      State v. Brandeberry
                                                                      C.A. No. L-16-1137




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, J.                                     JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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