[Cite as State v. Poole, 2012-Ohio-5739.]



          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                                JOURNAL ENTRY AND OPINION
                                         No. 98153



                                            STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                            ELIJAH POOLE

                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                        Case No. CR-556448
       BEFORE: Stewart, P.J., E. Gallagher, J., and Kilbane, J.

    RELEASED AND JOURNALIZED: December 6, 2012
ATTORNEY FOR APPELLANT

Edward M. Graham
13363 Madison Avenue
Lakewood, OH 44107


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Brian R. Radigan
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113




MELODY J. STEWART, P.J.:

       {¶1}     Following        his   bindover     from     the   juvenile    division,

defendant-appellant Elijah Poole pleaded guilty to a single count of

aggravated robbery with a one-year firearm specification.                     The court

accepted the plea and sentenced him to six years served consecutive to a

one-year term for the firearm specification. In this appeal, Poole complains

that the juvenile division should not have ordered his transfer to the general

division because (1) the court failed to state its specific reasons in support of
bindover on the record and (2) the court abused its discretion by finding the

amenability factors set forth in R.C. 2152.12(D) justified his transfer.1

                                                  I

       {¶2} R.C. 2152.12(B)(3) states that if the juvenile court transfers a

delinquency case, “[t]he record shall indicate the specific factors that were

applicable and that the court weighed.” Poole argues that the court’s journal

entry authorizing the transfer did not indicate the specific factors upon which

the court relied.

       {¶3} Contrary to Poole’s assertions, R.C. 2152.12(B)(3) only requires

that the specific factors the court relied on to authorize the transfer appear in

the “record.” This does not mean that the specific factors must appear in the

journal entry authorizing the transfer. See State v. Douglas, 20 Ohio St.3d

34, 36, 485 N.E.2d 711 (1985) (holding that no written findings were required

under prior version of transfer statute and juvenile rule regarding transfer);

State v. Erwin, 10th Dist. No. 09AP-918, 2012-Ohio-776, ¶ 14; State v.

Moorer, supra, at ¶ 34; State v. Luna, 6th Dist. No. L-05-1245,

2006-Ohio-5907, ¶ 21. The transcript of the bindover hearing shows that the

court placed on the record the specific factors upon which it relied to justify

the transfer. It thus fulfilled its obligation under R.C. 2152.12(B)(3).



       1
         A guilty plea made following a bindover or transfer from the juvenile division does not waive
the right to appeal the bindover or transfer. See, e.g., State v. Pruitt, 11th Dist. No. 2001-T-0121,
                                              II

       {¶4} The primary issue in this appeal is whether the court abused its

discretion by transferring the case to the general division of the court of

common pleas. Poole argues that the state failed to offer sufficient evidence

to establish probable cause to believe that he committed the charged acts and

that questions regarding his emotional and intellectual maturity indicated

that he was more amenable to care and rehabilitation within the juvenile

justice system.

                                              A

       {¶5} R.C. 2152.12(B) states that a juvenile court may transfer a

complaint alleging that a child is a delinquent child for committing an act

that would be a felony if committed by an adult if (1) the child was 14 years of

age or older at the time of the act charged; (2) there is probable cause to

believe that the child committed the act charged; and (3) 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.

In re M.P., 124 Ohio St.3d 445, 2010-Ohio-99, 923 N.E.2d 584, ¶ 12.

       {¶6} Juvenile courts are given wide discretion to transfer a case, State

v. Watson, 47 Ohio St.3d 93, 95, 547 N.E.2d 1181 (1989), so we will not



2002-Ohio-7164, ¶ 28; State v. Moorer, 11th Dist. No 2001-G-2353, 2003-Ohio-5698.
reverse a decision to transfer absent an abuse of discretion. State v. Golphin,

81 Ohio St.3d 543, 546, 1998-Ohio-336, 692 N.E.2d 608.

                                      B

      {¶7} Prior to the hearing on whether he should be transferred to the

general division for trial as an adult, Poole stipulated both that he was over

16 years of age at the time he allegedly committed the charged acts and that

there was probable cause to believe that he committed acts which, if

committed by an adult, would constitute the crimes of aggravated robbery,

kidnapping, and felonious assault as charged in the complaint.           Those

stipulations not only satisfied the first and second elements of R.C.

2152.12(B)(1), but foreclosed Poole’s right to raise the absence of probable

cause as an issue on appeal. See State v. Talbott, 7th Dist. No. 07 MA 225,

2008-Ohio-6300, ¶ 27 (knowing and voluntary stipulation to waive probable

cause hearing meant there were no “appealable issues with regards [sic] to

the bindover proceeding.”)

                                      C

      {¶8} The so-called “amenability” factors the juvenile court must

consider both for and against a transfer from the juvenile court are set forth

in R.C. 2152.12(D) and (E).

      {¶9} The factors that the court found favoring transfer were:        the

victim suffered physical and economic harm as a result of the robbery; a
firearm was used in the commission of the robbery; Poole was under

disposition as a delinquent child at the time of the robbery; previous juvenile

sanctions were ineffective, indicating that Poole would not be rehabilitated in

the juvenile system; and there would not be enough time to rehabilitate Poole.

 See R.C. 2152.12(D)(1), (5)-(9).

      {¶10} The factors that the court found militating against transfer were:

 Poole was under the negative influence or coercion of another person; he may

have not been emotionally, physically, or psychologically mature enough for

the transfer; and that he had a mental illness or is a mentally retarded

person. See R.C. 2152.12(E)(3), (6) and (7).

                                       1

      {¶11} Poole does not challenge any of the evidence supporting the

court’s findings in favor of transfer. Instead, he argues that the court abused

its discretion by rejecting the testimony of a psychologist from the court’s

diagnostic clinic that Poole lacked the emotional and physical maturity to be

placed in the adult criminal justice system.

      {¶12} Poole was diagnosed with attention deficit hyperactive disorder

(“ADHD”) and oppositional defiant disorder (“ODD”).      The psychologist who

prepared a report for the court testified that neither disorder was considered

a psychotic disorder. Poole did report having an “imaginary” friend, but the

psychologist did not believe that this imaginary friend was a delusion, but
rather a “coping strategy or mechanism for a kid who in some ways is sort of

schizoid or not really connected to other people and that doesn’t cope in a

mature fashion.” The psychologist stressed, however, that he did not view

Poole as having retreated into a fantasy world. He gave this opinion because

he saw nothing to suggest that Poole had become so socially withdrawn or

self-absorbed that Poole needed to create an “autistic world for himself that

he hides within.”

      {¶13} The psychologist testified that Poole “voiced some thoughts about

hurting himself” while in custody. Poole was placed on suicide watch and at

one point informed staff that he actually tried to hurt himself. But there was

no evidence to support Poole’s claim of self-harming activity and the

psychologist noted that the staff concluded that Poole was trying to be

manipulative with his threats of self-harm.

      {¶14} Poole scored poorly on the intellectual assessment administered

to him. The psychologist said that Poole’s low test scores on the intellectual

assessment may have been purposeful given that he “answered some more

difficult items well and easier items not so well.” The psychologist said that

answering harder questions correctly and easier questions incorrectly could

be the result of a lack of effort, a low mood or depression, fatigue, or over

medication. The psychologist also raised the specter of malingering, noting

that Poole’s low test scores might have been his attempt “to present in a more
sympathetic fashion.”      Poole’s results on the Minnesota Multiphasic

Personality Inventory (“MMPI”) were marked “uninterpretable” because

Poole was “over endorsing psychiatric symptoms and difficulties.” In other

words, Poole was “reporting problems that were a lot more serious than he

truly has.”    The psychologist did not believe that Poole’s answers to the

MMPI were malingering because that would involve a different psychological

profile — he believed that Poole “was perhaps naively exaggerating some of

his difficulties.”

      {¶15} The psychologist testified that Poole scored on the low end for

intellectual ability. Despite being nearly 17 years of age at the time of the

hearing, Poole was “[p]robably in the 14-year old range in terms of his overall

performance” in his test scores. These intelligence scores were differentiated

from emotional maturity — the psychologist conceded that “[t]here’s no

science to this but he’s probably more like a 14 or a 15-year-old emotionally.”

      {¶16} When asked to give his opinion about whether Poole was

“physically mature,” the psychologist said that Poole “falls within the range of

adolescent” and that “[h]e’s a large adolescent” but “doesn’t appear to be buff,

he doesn’t have overpowering physical characteristics on an observation.”

      {¶17} The psychiatrist refused to give his opinion as to whether he

believed that Poole was amenable to the juvenile court system. But noting

Poole’s lack of experience in a “serious jail setting for extended periods of
time,” he allowed that “there would certainly be reasons to be concerned

about how [Poole] would do in a more structured and punitive system.” Put

differently, the psychologist said:

      Because of this young mans [sic] combined intellectual,
      psychiatric, and chemical difficulties and because of his reported
      positive responses to services at PEP [the positive education
      program] there still may be an opportunity to question whether
      he could still benefit from services within the Juvenile Justice
      System.

      While the combination of his difficulties maybe [sic] challenging I
      would not rule out that there may be sufficient time and
      resources to still assist Elijah until he platos [sic] and reaches
      adulthood.

      {¶18} Poole’s case manager at the positive education program testified

that Poole functioned “below academic level” but was nonetheless able to

function in the program with a normal range of support. The case manager

gave his opinion that Poole was not very mature, functioned “a little under

grade level,” and needed “a lot of social and emotional support.” He said that

since Poole had entered the positive education program, he had twice been

involved with the juvenile justice system.

      {¶19} The case worker testified that he saw no evidence of Poole’s

association with gang activity and that juveniles committed into custody often

fake being in a gang. This testimony was contradicted by a police officer who

investigated the underlying robbery. The police officer testified that when he

arrested Poole, Poole was wearing a boot that bore gang symbols and a
homage to a former member of the gang who had been shot and killed during

a robbery attempt.    The officer gave his opinion that Poole was still a

member of the gang because he knew Poole from past experience and had

seen him associating with other known members of the gang shortly before

the robbery.

                                      2

      {¶20} Taking this evidence into consideration, the court found that it

had a “long history” with Poole, going back to 2007. This history included a

felony robbery charge and a probation violation on that charge. In addition

to the felony robbery count, the court noted that Poole had been charged with

theft, another felony robbery, and burglary. The court noted that it presided

over Poole’s burglary charge and recalled that he did not take responsibility

for it. The court found the court file showed issues about Poole lying while in

home detention and being manipulative.         It found that “the results of

previous juvenile sanctions show that this is not working.”

      {¶21} The court also took into consideration the harm caused by Poole’s

robbery.   The victim of the robbery, the owner of a convenience store,

testified that two people entered the store and one of them hopped over the

counter to approach him.     The store owner was pistol whipped, causing

bleeding and severe physical injury that required medical attention.          In

addition, a gun was fired three times during the commission of the robbery.
      {¶22} As for the psychologist’s opinions as to whether Poole was

emotionally mature enough for transfer from the juvenile court, the court

stated that it would “respectfully disagree” with the psychologist. It found

that Poole “fits the same profile of many, many, many mandatory transfers

that we have presided over.” Noting that Poole was nearly 17 years old, the

court acknowledged that Poole could only be committed for four years in the

juvenile system.    It found that the state proved that the safety of the

community required that Poole be held beyond his 21st birthday, thus

requiring his transfer from the juvenile system.

                                       D

      {¶23} Given the evidence detailed by the court, we cannot conclude that

it abused its discretion by ordering Poole’s transfer from the juvenile system.

      {¶24} Although there was evidence showing that Poole was both

intellectually and emotionally immature for his age, other evidence showed

that Poole’s past history of serious crime gave him an extensive history of

delinquency in the juvenile system that tended to belie his claims of physical

and emotional immaturity. He had a known gang association and had not

shown himself to be amenable to rehabilitation within the juvenile system.

Despite his seeming immaturity, Poole was shown to have lied or attempted

to manipulate staff while under detention; for example, by exaggerating

claims of suicide or self-harm.
      {¶25} Poole places great weight on the psychologist’s conclusion that

Poole would be better served in the juvenile system. The court pointedly

disagreed with the psychologist’s conclusion, noting that it had dealt with

Poole on a different case within the same calendar year. As the trier of fact,

it   was   within      the    court’s     discretion     to    reject    the     psychologist’s

recommendation. Given Poole’s prior history of felony delinquent acts and

his lack of amenability to rehabilitation within the juvenile system, the

court’s conclusions were justified.

      {¶26}      The circumstances of the robbery involved in this case

supported the court’s finding that the safety of the community required that

Poole be held beyond his 21st birthday. The victim of the robbery testified

that he was injured when pistol whipped during the robbery. He also heard

three gunshots. These violent acts, considered in conjunction with Poole’s

history of delinquency and gang affiliation, were sufficient to allow the court

to find that the presence of a firearm during the robbery showed an escalation

of Poole’s violent tendencies. Taken together, the court’s findings justifying

Poole’s transfer does not show an abuse of discretion.

      {¶27} Judgment affirmed.

      It is ordered that appellee recover of appellant its costs herein taxed.

      The court finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Court of Common Pleas to carry this judgment into execution.         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.




MELODY J. STEWART, PRESIDING JUDGE

EILEEN A. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR
