[Cite as State v. Jones, 2013-Ohio-3725.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99044




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                      SANTANA JONES
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-562241

        BEFORE: Keough, J., Stewart, A.J., and McCormack, J.

        RELEASED AND JOURNALIZED:                    August 29, 2013
ATTORNEY FOR APPELLANT

Sheryl A. Trzaska
Assistant State Public Defender
250 East Broad Street
Suite 1400
Columbus, Ohio 43215

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} Defendant-appellant, Santana Jones, appeals from the trial court’s judgment

finding him guilty of one count of discharge of a firearm on or near prohibited premises,

with corresponding firearm specifications, and sentencing him to an aggregate prison

term of four years. Jones was originally charged in the juvenile division of the Cuyahoga

County common pleas court. After bindover proceedings, the juvenile court transferred

jurisdiction to the general division of the common pleas court for prosecution as an adult.

 Jones contends on appeal that the juvenile court abused its discretion in transferring his

case to the common pleas court. Finding no abuse of discretion, we affirm.

                                     I. Background

       {¶2} In 2012, Jones, who was 16 years old at the time, was charged in juvenile

court with three counts of felonious assault in violation of R.C. 2903.11(A)(2) and one

count of discharge of a firearm in violation of R.C. 2923.162(A)(3).           All counts

contained one- and three-year firearm specifications. The state subsequently moved for

discretionary transfer under R.C. 2152.12(B) for prosecution as an adult.

       {¶3} The juvenile court held a hearing to determine whether there was probable

cause to believe that Jones had committed the charged offenses. Upon questioning by

the court before the hearing began, Jones stated that he wished to proceed with the

hearing, and confirmed that he had rejected the state’s plea offer that would have required

that he be committed to an Ohio Department of Youth Services (“DYS”) facility until he

was 21 years of age.
       {¶4} At the hearing, the state’s witnesses testified that on the night of February 2,

2012, Jones cocked and pointed a gun at three individuals who were standing with a

group of juveniles on a street. There was a history of prior fights and incidents between

Jones and the individuals. A girl standing next to Jones tried to restrain him and pulled

his arm up in the air, at which point the gun went off and everyone ran away.

       {¶5} The juvenile court found that the state had established probable cause. After

a hearing to determine whether Jones was amenable to rehabilitation in the juvenile

justice system, the juvenile court relinquished jurisdiction and transferred the case to the

common pleas court.

       {¶6} Jones was then indicted on three counts of felonious assault with one- and

three-year firearm specifications; one count of discharge of a firearm on or near

prohibited premises with one- and three-year firearm specifications; and one count of

carrying a concealed weapon. Pursuant to a plea deal, he pled guilty to discharge of a

firearm on or near prohibited premises with a three-year firearm specification. The trial

court sentenced him to a one-year prison term, consecutive to the three-year firearm

specification, for an aggregate term of four years. Jones now appeals, challenging the

juvenile court’s decision to grant discretionary bindover.

                                       II. Analysis

       {¶7} Under R.C. 2152.12(B), after a complaint has been filed charging a child

with offenses that would be a felony if committed by an adult, a juvenile court may

transfer jurisdiction to the general division of the common pleas court if it finds that (1)
the child was 14 years of age or older at the time of the act; (2) there is probable cause

that the child committed the act; and (3) the child is not amenable to rehabilitation within

the juvenile justice system and, to ensure the safety of the community, the child should

be subject to adult sanctions.

       {¶8} In making the amenability determination, the juvenile court is instructed to

consider statutory factors for and against transferring jurisdiction. R.C. 2152.12(D) lists

the factors in favor of transferring jurisdiction, while R.C. 2152.12(E) lists the factors

against transfer. In addition to the factors specifically listed in the statute, the juvenile

court is instructed to consider “any other relevant factors.” R.C. 2152.12(D) and (E).

The specific factors the court relied upon to authorize the transfer must appear in the

record.    R.C. 2152.12(B)(3); State v. Poole, 8th Dist. Cuyahoga No. 98153,

2012-Ohio-5739, ¶ 3.

       {¶9} A juvenile court’s amenability determination under R.C. 2152.12 will not be

reversed unless the court has abused its discretion. In re A.J.S., 120 Ohio St.3d 185,

2008-Ohio-5307, 897 N.E.2d 629, ¶ 39; In re J.S., 8th Dist. Cuyahoga No. 92504,

2009-Ohio-3470, ¶ 31.      Thus, we must determine whether the court’s decision was

unreasonable, arbitrary, or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157-158,

404 N.E.2d 144 (1980).

       {¶10} Under R.C. 2152.12(D), the court must consider 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 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 the 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} Under R.C. 2152.12(E), the court must also consider the following factors

against transfer:

       (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.
       (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} In considering these factors, the juvenile court found that three factors

weighed against transfer: (1) Jones had no substance abuse issues; (2) he had not

previously been sentenced to a DYS facility; and (3) he behaved appropriately when he

was confined for six months in a community control residential facility.

       {¶13} Nevertheless, the juvenile court found that the factors in favor of transfer

outweighed the factors against transfer. Specifically, the court found that although he

was only 16½ years of age at the time of the amenability hearing, Jones had already had

22 cases in the juvenile court, including charges for robbery, attempted robbery, receiving

stolen property, rioting, theft, criminal trespass, and aggravated menacing. The court

further found that as a result of these charges, Jones had received numerous services

through the juvenile court system, including probation services, home detention, and

detention in a community control residential facility from February 2011 to August 2011.

The court found that although Jones was cooperative and behaved appropriately while in

detention, he returned to his bad behavior after he was released.
       {¶14} The court also found that Jones was on probation at the time of the act for

which he was charged, and, in fact, that he had appeared before the same judge less than

two weeks before the date of this offense, at which time the court had placed him on

probation for another offense. The court further found that Jones appeared, and the

report by the juvenile court psychologist confirmed, that he was emotionally, physically,

and psychologically mature enough for a transfer. The court also found that Jones had a

firearm on his person at the time of the offense and had committed the offense as part of

gang activity. Finally, the court found that the victims of the offense had suffered

psychological harm because they were in close proximity to the gun when it was

discharged. Accordingly, the trial court concluded that Jones was not amenable to

rehabilitation in the juvenile justice system and the safety of the community required that

he be subject to adult sanctions.

       {¶15} In his single assignment of error, Jones contends that the trial court abused

its discretion in transferring his case to common pleas court because the safety of the

community could have been adequately protected if he had remained in the juvenile

justice system, there were appropriate resources and enough time for him to be

rehabilitated in the juvenile system, and there was evidence that he was amenable to

treatment there. Specifically, Jones argues that the juvenile justice system resources had

not yet been exhausted because he had not previously been committed to a DYS facility,

and the evidence demonstrated that when he received juvenile system services, such as at

the community control facility, he was amenable to treatment.
       {¶16} This argument is not persuasive. The juvenile court was aware that Jones

had not previously been committed to a DYS facility but had been in a community control

facility for six months. A community control facility is a locked facility similar to a DYS

facility that, unlike a DYS facility, allows home visits on weekends. The court found

that Jones was well-behaved when he was at the facility but that he could not control his

behavior when he was released, a conclusion that was supported by the evidence at the

amenability hearing. Rondell Lewis, a placement aftercare coordinator with the juvenile

court probation department who worked with Jones during the six months he was at the

community control facility, testified at the hearing that Jones “was good in treatment” but

always went back to his “bad behavior” when he went back into the community.

       {¶17} Jones also argues that the juvenile court abused its discretion in transferring

jurisdiction because a number of R.C. 2152.12(D) factors in favor of transfer did not

apply to this offense. Specifically, Jones contends that the victims of the offense did not

suffer physical or psychological harm; any harm to the victims was not exacerbated by

their physical or psychological vulnerability or age; there was no evidence that his

relationship with the victims facilitated the offense; and, although there was hearsay

evidence that he was involved in a gang, there was no evidence that this offense was

committed for hire or as part of gang activity.

       {¶18} We agree that, contrary to the court’s finding, there was no evidence the

victims suffered psychological harm. Indeed, the court conceded there was no such

evidence but stated that “I can only assume that psychological harm came to all three
victims” because they were in close proximity to a weapon that was discharged. Further,

we agree that although there was evidence that Jones was in a gang, there was no

evidence adduced at the amenability hearing that this offense was related to gang activity.



       {¶19} Nevertheless, even discounting those two factors, we do not find that the

juvenile court abused its discretion in transferring jurisdiction to the common pleas court.

 The evidence at the amenability hearing demonstrated that by the time of this offense,

Jones had already been charged with numerous juvenile offenses of a very serious nature.

 He was on probation at the time of this offense and, in fact, had been in court regarding

another offense only ten days prior to the date of this offense. This offense involved the

use of a firearm and, although no one was hurt, the evidence demonstrated that the gun

fired in the air after a girl who was with Jones pushed his arm up. If she had not done so,

it is possible that Jones could have faced far more serious charges. The evidence also

demonstrated that Jones had been provided with many rehabilitative services in the

juvenile court system prior to this offense but had not changed his behavior. In light of

this evidence, the juvenile court’s finding that Jones was not amenable to rehabilitation in

the juvenile justice system was not unreasonable, arbitrary, or unconscionable.

       {¶20} Finally, Jones argues that the trial court erred in transferring his case to

common pleas court because it would have been better for him to have been retained in

the juvenile justice system until he was 21 years of age. Jones contends that he could

have had the benefit of education and other programs in the juvenile justice system that he
will not have access to in the adult prison system. He argues further that the juvenile

justice system would have been better for him because research has shown that juveniles

are at a greater risk of physical and sexual assault and an increased risk of suicide in the

adult prison system.

       {¶21} These arguments are compelling. However, the record reflects that before

the probable cause hearing, Jones specifically rejected the state’s plea offer that would

have allowed him to remain in DYS custody until he turned age 21. Furthermore, Jones

never raised these arguments at the amenability hearing and, accordingly, has waived

them. State ex rel. Quarto Mining Co. v. Foreman, 79 Ohio St.3d 78, 81, 1997-Ohio-71,

679 N.E.2d 706 (arguments raised for the first time on appeal will not be considered by

an appellate court).

       {¶22} Appellant’s assignment of error is therefore overruled.

       {¶23} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, JUDGE


MELODY J. STEWART, A.J., CONCURS WITH SEPARATE CONCURRING
OPINION;
TIM McCORMACK, J., CONCURS WITH MAJORITY AND SEPARATE
CONCURRING OPINION



MELODY J. STEWART, A.J., CONCURRING:

       {¶24} The goal of the juvenile justice system is rehabilitation, not punishment.

State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544, 978 N.E.2d 894, ¶ 7, citing Kent v.

United States, 383 U.S. 541, 554, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). Ordering that a

juvenile be tried as an adult and subject to the adult prison system thus carries with it the

explicit finding that the juvenile is not amenable to rehabilitation or poses a threat to

public safety. State v. Hanning, 89 Ohio St.3d 86, 90, 2000-Ohio-436, 728 N.E.2d 1059.

 This is a difficult decision for a juvenile court judge and at bottom, the court in

discretionary bindover cases must take into account the mission of the juvenile justice

system and consider not whether the juvenile has been rehabilitated, but whether the

juvenile system has done enough to rehabilitate the juvenile.

       {¶25} Santana Jones is by all accounts a “young” 16 year old — he is described

as physically small for his age and his I.Q. in the mid-70s indicates a learning disability.

He has a lengthy history with the juvenile court, but his most serious disposition was a

six-month detention in a community control facility in which he exhibited good behavior.
 One of the people who testified at the amenability hearing said that Jones did well in

rehabilitative settings and that his problems arose upon his release back into his

neighborhood.

       {¶26} All of this suggests that Jones was not beyond the redemption of the

juvenile system. The court appeared to believe this because it indicated its willingness to

accept Jones’s admission to the complaint and confine him to a DYS facility until his 21st

birthday. It is difficult to reconcile on the one hand that the court would agree to a

disposition in a DYS facility — with the implicit finding that Jones could be rehabilitated,

yet on the other hand order a bindover that found Jones could not be rehabilitated in the

juvenile system.

       {¶27} The seemingly arbitrary nature of the court’s actions might amount to an

abuse of discretion were it not for the circumstances of Jones’s acts in this case. There is

no question that Jones fired a gun with the intent to kill or seriously injure his victims,

saved by the quick thinking of a bystander who pushed the gun away. Up until that

point, his lengthy history of delinquent conduct did not appear to include a component of

physical harm to his victims. This case, however, was a disturbing escalation of his

criminal conduct and I am compelled to concede that the court did not act irrationally or

arbitrarily in deciding that Jones was no longer amenable to rehabilitation in the juvenile

justice system.

       {¶28}      But sending Jones to the adult prison system means that he is to be

punished, not rehabilitated. And to the extent that there is any rehabilitation done in
prison, there should be no mistake that it is secondary to punishment. The placement of

an immature child into the adult prison population will forever change Jones, and

experience tells us that he will most likely not be changed for the better. This leads to

one fundamental question: will the Santana Jones who surfaces from adult prison be

better for society than the Santana Jones who would have gone to a DYS facility?
