[Cite as In re R.J., 193 Ohio App.3d 555, 2011-Ohio-2706.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY




IN RE JOHNSON.                                               CASE NO. 1-10-90

                                                             OPINION




                  Appeal from Allen County Common Pleas Court
                                 Juvenile Division
                          Trial Court No. 2010 JG 27756

                                     Judgment Affirmed

                              Date of Decision: June 6, 2011




APPEARANCES:

        Kenneth J. Rexford, for appellant.

        Christina L. Steffan, for appellee.
Case No. 1-10-90




PRESTON, Judge.

       {¶ 1} Delinquent-child-appellant, Ritchie Johnson (hereinafter “R.J.”),

appeals the judgment of the Allen County Court of Common Pleas, Juvenile

Division, ordering that he be committed to the Ohio Department of Youth Services

(“DYS”). We affirm.

       {¶ 2} On March 31, 2010, a complaint was filed in the Stark County Court

of Common Pleas, Family Division, alleging that R.J. appeared to be delinquent

by reason of the offense of harassment by an inmate in violation of R.C.

2921.38(A), a fifth-degree felony if committed by an adult. The complaint was

assigned Stark County case No. 2010JCR00664. The complaint stemmed from

R.J.’s alleged act of throwing urine upon Emily Harding, a corrections officer at

the Indian River Detention Facility, as she walked past his detention cell on

January 19, 2010.

       {¶ 3} On May 25, 2010, an adjudicatory hearing was held before Magistrate

Priscilla Cunningham in Stark County, and R.J. was found to be delinquent. After

R.J. indicated that he was a resident of Allen County, Magistrate Cunningham

indicated upon the record that the case would be transferred to Allen County for

disposition.




                                       -2-
Case No. 1-10-90



       {¶ 4} On June 29, 2010, Magistrate Cunningham issued a decision finding

R.J. a juvenile delinquent offender. Under a bullet point entitled “Other Orders,”

the decision reads: “Disposition is certified to Allen County. Stark County Court

costs are waived.      Clerk: please prepare all necessary documentation to

transfer/certify the case to Allen County for disposition.” Under a section entitled

“Dispositional Summary,” the decision reads:

           [R.J.], you are hereby ordered by the court to comply with the
       following orders:

           1. Appear in and comply with the orders of the Allen County
       Juvenile Court.
           2. Other Orders on case 2010JCR00694: DISPOSITION is
       CERTIFIED TO ALLEN COUNTY. Stark County court costs are
       waived. CLERK: Please prepare all necessary documentation to
       transfer/certify the case to Allen County for Disposition.


       {¶ 5} On June 30, 2010, Judge David E. Stucki approved and adopted the

magistrate’s decision, noting that “[t]he parties having no objection timely filed

herein; this Decision is to have immediate effect.”

       {¶ 6} On July 12, 2010, the Allen County Court of Common Pleas, Juvenile

Division, sent an assignment notice to R.J., R.J.’s mother, and the prosecutor,

indicating that the matter was assigned Allen County case No. 2010 JG 27756 and

was scheduled for a dispositional hearing on August 30, 2010.




                                        -3-
Case No. 1-10-90



       {¶ 7} On July 14, 2010, R.J. filed an objection to the magistrate’s decision

in Stark County alleging that the magistrate’s decision was erroneous since his

delinquency was not proven beyond a reasonable doubt.           A hearing on the

objection was scheduled for August 3, 2010, but on July 29, 2010, R.J. filed a

motion for a continuance of the hearing.

       {¶ 8} On August 27, 2010, R.J. filed a memorandum in support of his

objection to the magistrate’s decision. On August 30, 2010, a hearing was held in

Stark County on the objection, with the parties present, and the objection was

withdrawn at that time. The trial court then ordered the clerk “to certify this

matter to the Allen County Juvenile Court.”

       {¶ 9} The record indicates that R.J. and his mother also appeared before the

Allen County Juvenile Court for a dispositional hearing on August 30, 2010, and

the trial court ordered that disposition be deferred for six months to allow R.J. an

opportunity to demonstrate compliance with the law and terms of parole.

       {¶ 10} The dispositional hearing was then scheduled for September 22,

2010, in Allen County. On that day, R.J. appeared with counsel, and the trial court

ordered that disposition be further deferred and the matter be set for pretrial

conference on October 19, 2010.

       {¶ 11} On September 29, 2010, R.J. filed a motion in the Allen County

Juvenile Court for a hearing and ruling on the objection that was filed in the Stark

                                        -4-
Case No. 1-10-90



County Juvenile Court. On November 15, 2010, the Allen County Juvenile Court

overruled the motion.       On November 22, 2010, R.J. filed a motion for

reconsideration, which the trial court denied.

       {¶ 12} On December 16, 2010, a dispositional hearing was held before the

Allen County Juvenile Court and the trial court ordered that R.J. be committed to

DYS for an indefinite term for a minimum of six months and a maximum period

not to exceed his attaining the age of 21 years.

       {¶ 13} On December 23, 2010, R.J. filed a notice of appeal. That same

day, R.J. filed a motion for a stay pending appeal, which the trial court denied.

       {¶ 14} R.J. now appeals, raising four assignments of error for our review.

We elect to address R.J.’s third assignment of error out of the order that it was

presented in his brief.

                          ASSIGNMENT OF ERROR NO. I

           The Allen County Juvenile Court violated [R.J.’s] right under the
       United States Constitution to freedom from being twice in jeopardy
       and twice punished for the same offense, an act done without
       jurisdiction to do so.

       {¶ 15} In his first assignment of error, R.J. argues that the Allen County

Juvenile Court improperly exercised jurisdiction over the case. Because Stark

County had already made a disposition in the case, R.J. argues, nothing remained

for Stark County to transfer to Allen County, and Allen County’s exercise of


                                         -5-
Case No. 1-10-90



jurisdiction and its disposition violated double jeopardy, because he was twice

punished for the same offense.

       {¶ 16} Although juvenile proceedings are considered civil in nature,

juvenile-delinquency proceedings have inherently criminal aspects; therefore,

“certain basic constitutional protections afforded adults, for example the right to

counsel, the privilege against self-incrimination, and freedom from double

jeopardy, are applicable to juvenile proceedings.” In re Gillespie, 150 Ohio

App.3d 502, 2002-Ohio-7025, 782 N.E.2d 140, ¶ 20, citing Schall v. Martin

(1984), 467 U.S. 253, 263, 104 S.Ct. 2403, 81 L.Ed.2d 207. See also In re Cross,

96 Ohio St.3d 328, 2002-Ohio-4183, 774 N.E.2d 258, ¶ 23-24, citing Breed v.

Jones (1975), 421 U.S. 519, 528-529, 95 S.Ct. 1779, 44 L.Ed.2d 346.

       {¶ 17} The Double Jeopardy Clause of the Fifth Amendment to the United

States Constitution provides: “No person shall * * * be subject for the same

offence to be twice put in jeopardy of life or limb.” The bar against double

jeopardy is applicable to the states through the Fourteenth Amendment to the

United States Constitution. See, e.g., Benton v. Maryland (1969), 395 U.S. 784, 89

S.Ct. 2056, 23 L.Ed.2d 707. Article I, Section 10 of the Ohio Constitution also

affords protection against double jeopardy for criminal defendants.

       {¶ 18} “The primary purpose for the prohibition against double jeopardy ‘is

to preserve the finality or integrity of judgments.’” In re C.B., 2d Dist. No. 23615,

                                         -6-
Case No. 1-10-90



2010-Ohio-2129, ¶ 33, quoting In re Kelly (Nov. 7, 1995), 10th Dist. No. 95-

APF05-613, citing United States v. DiFrancesco (1980), 449 U.S. 117, 128, 101

S.Ct. 426, 66 L.Ed.2d 328. Therefore, any “[a]pplication of the Double Jeopardy

Clause depends upon the legitimacy of a defendant’s expectation of finality in the

judgment.” Id., quoting In re Burt, 5th Dist. No. 2006-CA-00328, 2007-Ohio-

4034, ¶ 61, citing Kelly and DiFrancesco.

       {¶ 19} The facts in this case are similar to those presented to this court in In

re C.E., 190 Ohio App.3d 85, 2010-Ohio-4072, 940 N.E.2d 990. In that case, C.E.

was charged on December 31, 2008, and March 3, 2009, in the Stark County Court

of Common Pleas, Family Court, Juvenile Division, with a total of four counts of

delinquency for assaulting DYS employees, fifth-degree felonies if committed by

an adult (case Nos. 2008 JCR 03660 and 2009 JCR 00532). Id. at ¶ 2. On March

5, 2009, C.E. admitted each count of delinquency, and the Stark County Family

Court waived costs, ordered that C.E. be released to the custody of DYS, and

certified the disposition of both cases to the Paulding County Juvenile Court,

C.E.’s county of residence. Id. at ¶ 3. In addition to the foregoing, the magistrate’s

decisions included the following language under a portion of the decision entitled,

“Dispositional Summary”:

           You are hereby ordered by the court to comply with the
       following orders:
           ***

                                         -7-
Case No. 1-10-90



         2. You are now subject to Community Control by the Family
       Court subject to the following conditions:

         * Cooperate with the process necessary to provide a genetic
       DNA sample.

Id. The magistrate’s decisions were approved and adopted by the judge on March

9, 2009. Id.

       {¶ 20} The cases were then certified to the Paulding County Juvenile Court,

where they were consolidated into one case (case No. 20092020) and scheduled

for a June 29, 2009 dispositional hearing. Id. at ¶ 4. The court ordered that C.E. be

committed to DYS on each count for a minimum period of six months to a

maximum period not to exceed his attaining age 21 and further ordered that these

periods of commitment run consecutively to one another for an aggregate

minimum of two years to a maximum period not to exceed his attaining age 21.

The court also ordered that C.E. be held in detention for 90 days. However, the

court suspended both the commitments to DYS and the 90-day detention and

placed C.E. on community control. Id.

       {¶ 21} On September 8, 2009, a motion to revoke C.E.’s community

control was filed, alleging that C.E. had violated the terms of his community

control because he slashed the tires of a vehicle belonging to another person,

which constituted a violation of the law. Id. at ¶ 5. A hearing was held on this

motion on September 15, 2009, wherein C.E. admitted violating the terms of his

                                         -8-
Case No. 1-10-90



community control. Id. The court then revoked C.E.’s community control and

ordered that he be committed to DYS on two of his counts of delinquency for a

minimum period of six months to a maximum until age 21 on each count and that

these periods of commitment run consecutively to one another for an aggregate

minimum of one year to a maximum period not to exceed his attaining age 21. Id.

Thereafter C.E. filed a notice of appeal with this court.

       {¶ 22} On appeal, C.E. argued that the trial court had erred by imposing a

second disposition in the case, because the Stark County Family Court had already

imposed a disposition of community control. Id. at ¶ 7. C.E. further argued that

nothing remained for the Stark County Family Court to certify to Paulding

County, because it had already entered its disposition. Id. This court agreed with

C.E. that the Stark County Family Court had entered a final disposition of

community control, which is one of the dispositional orders that a court may make

under R.C. 2152.19, and therefore Paulding County Court of Common Pleas,

Juvenile Division, was without authority to issue a second disposition in the case.

Id. at ¶ 11-12.

       {¶ 23} The magistrate in this case, however, did not make a dispositional

order under R.C. 2152.19, as the magistrate in In re C.E. had done.            The

magistrate sub judice simply ordered that R.J. “[a]ppear in and comply with the

orders of the Allen County Juvenile Court.” R.J. argues that this was an order that

                                         -9-
Case No. 1-10-90



he abide by the terms set in Allen County that were previously imposed in his old

case, the cause of his detention in Stark County. We do not read the magistrate’s

order that way; rather, we interpret this order to be an interim order to effectuate

the transfer of disposition. Notably, unlike the community control imposed in In

re C.E., R.C. 2152.19 does not provide for the type of order made by the

magistrate herein as a dispositional order. Therefore, we find the facts of this case

distinguishable from In re C.E., because the trial court did not make an order of

disposition pursuant to R.C. 2152.19.

       {¶ 24} R.J. further argues that the Stark County trial court judge intended to

make an order of disposition, because the trial court’s entry indicated that the

judgment was a final, appealable order, and a final, appealable order in a

delinquency case requires a disposition. The trial court’s subjective “intention” or

mere designation of “final, appealable order” is irrelevant, though, in determining

whether, in fact, an order is final. Summit Petroleum, Inc. v. K.S.T. Oil & Gas

Co., Inc. (1990), 69 Ohio App.3d 468, 470, 590 N.E.2d 1337 (“A trial court

cannot transform that which is not, by its nature, a final appealable order, into the

same by mere appellation”). This argument is, therefore, without merit.

       {¶ 25} Finally, R.J. argues that the Stark County magistrate’s decision to

waive court costs is a further indication that the magistrate entered a disposition.

This argument lacks merit as well. The fact that the magistrate waived court costs

                                        -10-
Case No. 1-10-90



indicates just the opposite—that the magistrate was not rendering disposition and

was transferring disposition to Allen County—because the Stark County

magistrate could have required R.J. to pay costs as a disposition “in addition to

any other disposition authorized or required by [R.C. Chapter 2152].” R.C.

2152.20(A)(2). In fact, the Allen County Juvenile Court did impose costs as part

of its disposition in this case.

       {¶ 26} Because the Stark County Juvenile Court did not issue a

dispositional order in this case, R.J. was not twice placed in jeopardy for the same

offense. and the Allen County Juvenile Court had the authority to impose

disposition. We further note that the application of double-jeopardy protection

would be inappropriate in this case, because R.J. did not have a legitimate

expectation of finality in the Stark County Juvenile Court’s judgment. In re C.B.,

2010-Ohio-2129, at ¶ 33, quoting In re Burt, 2007-Ohio-4034, at ¶ 61, citing Kelly

and DiFrancesco, 449 U.S. 117. R.J. was told at the adjudicatory hearing and in

the magistrate’s decision that the case was being transferred to Allen County, and

this was not R.J.’s first encounter with the juvenile court system.

       {¶ 27} For all these reasons, R.J.’s first assignment of error is overruled.

                        ASSIGNMENT OF ERROR NO. III

          [R.J.] was denied due process of law, a right assured to him by
       both the Ohio Constitution and the United States Constitution, when
       he was denied an opportunity to be heard on his objections to

                                         -11-
Case No. 1-10-90



       magistrate’s decision and when two courts exercised simultaneous
       jurisdiction over the same controversy on the same date.

       {¶ 28} In his third assignment of error, R.J. argues that he was denied due

process of law when the Stark County Family Court did not provide a hearing on

his objections. R.J. argues that the Stark County Family Court improperly and

incorrectly ruled that R.J. and his parents were present for the scheduled hearing

(which R.J. claims is not true, since they were in Allen County for a scheduled

hearing) and that the objections were withdrawn (which he also claims is not true).

R.J. further argues that the Allen County Juvenile Court violated his due process

rights by failing to rule upon the objections that were properly filed in the case.

       {¶ 29} The procedural history in this case is important. As noted above, the

magistrate issued her decision on June 29, 2010, and the trial court adopted and

approved this decision just one day later, noting that “[t]he parties having no

objection timely filed herein; this Decision is to have immediate effect.” “The

court may enter a judgment * * * during the fourteen days permitted by Juv.R.

40(D)(3)(b)(i) for the filing of objections to a magistrate’s decision * * *”;

however, “the timely filing of objections to the magistrate’s decision * * *

operate[s] as an automatic stay of execution of the judgment until the court

disposes of those objections and vacates, modifies, or adheres to the judgment

previously entered.” Juv.R. 40(D)(4)(e)(i). Accordingly, R.J.’s objections, filed


                                         -12-
Case No. 1-10-90



July 14, 2010, in Stark County, stayed the trial court’s June 30, 2010 judgment,

ordering that disposition be transferred to Allen County, until the trial court ruled

upon the objections. Id. On August 30, 2010, the objections were withdrawn,

rendering the trial court’s June 30, 2010 judgment final; therefore, jurisdiction of

the case was immediately vested in the Allen County Juvenile Court on August 30,

2010. In re Talbert, 5th Dist. No. CT2008-0031, 2009-Ohio-4237, ¶ 20 (trial

court’s order was stayed under Juv.R. 40(D)(4)(e)(i) as a result of timely

objections to the magistrate’s decision being filed; and therefore, trial court’s order

could not become a final, appealable order until the trial court explicitly disposed

of the objections); In re N.C., 2d Dist. No. 09CA0023, 2009-Ohio-4603, ¶ 16

(same); In re M.H., 9th Dist. No. 08CA0040, 2009-Ohio-669, ¶ 8-10 (same).

Therefore, the Allen County Juvenile Court properly exercised jurisdiction over

the case on August 30, 2010, for purposes of its dispositional hearing. Because

R.J. had withdrawn his objections, no objections remained for the Allen County

Juvenile Court to rule upon. The only remaining issue for the Allen County

Juvenile Court was disposition.1

        {¶ 30} Notwithstanding the record, R.J. argues that the Stark County

Juvenile Court did not provide him with a hearing on his objections. R.J. also


1
  We note that the procedural complications that arose in this case could have been avoided had the Stark
County Juvenile Court simply waited 14 days before approving and adopting the magistrate’s decision to
allow for timely objections pursuant to Juv.R. 40(D)(3)(b)(i).

                                                 -13-
Case No. 1-10-90



argues that the Stark County Juvenile Court’s judgment entry inaccurately reflects

that his parents and he were present at the hearing, when they were not, and the

judgment entry inaccurately reflects that the objections were withdrawn, when

they actually were overruled. For purposes of a direct appeal, however, this court

is limited to reviewing the record provided under App.R. 9. App.R. 12(A)(1)(b).

The record in this case demonstrates that a hearing was held on R.J.’s objections,

and the objections were withdrawn. Furthermore, we must presume regularity of

the proceedings and that the trial court’s judgment entries accurately reflect what

occurred at the hearing since no transcript of the hearing was filed. In re S.L., 3d

Dist. Nos. 4-10-09 and 4-10-10, 2010-Ohio-6380, ¶ 64.

       {¶ 31} Because the record fails to demonstrate error, we overrule R.J.’s

third assignment of error.



                       ASSIGNMENT OF ERROR NO. II

           Stark County erred in adjudicating [R.J.] a delinquent child, as
       the state did not meet its burden of proof beyond a reasonable doubt.

       {¶ 32} In his second assignment of error, R.J. argues that the trial court’s

adjudication of delinquency was not supported by sufficient evidence.

       {¶ 33} As an initial matter, we note that R.J. failed to object to the

magistrate’s decision, because he withdrew his objections; therefore, he has


                                       -14-
Case No. 1-10-90



waived all but plain error with respect to his sufficiency argument. Juv.R.

40(D)(3)(b)(iv). That being said, a conviction based upon insufficient evidence

almost always results in plain error since it constitutes a denial of due process of

law. State v. Cooper, 170 Ohio App.3d 418, 2007-Ohio-1186, 867 N.E.2d 493, ¶

13, citing State v. Coe, 153 Ohio App.3d 44, 2003-Ohio-2732, 790 N.E.2d 1222, ¶

19, quoting State v. Thompkins (1997), 78 Ohio St.3d 380, 386-387, 678 N.E.2d

541.

       {¶ 34} “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at

trial to determine whether such evidence, if believed, would convince the average

mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks (1991),

61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, superseded by

state constitutional amendment on other grounds in State v. Smith (1997), 80 Ohio

St.3d 89, 684 N.E.2d 668. Accordingly, “[t]he relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.” Id.

       {¶ 35} R.J. was adjudicated a delinquent child for harassment by an inmate

in violation of R.C. 2921.38(A), which provides:



                                        -15-
Case No. 1-10-90



           No person who is confined in a detention facility, with intent to
       harass, annoy, threaten, or alarm another person, shall cause or
       attempt to cause the other person to come into contact with blood,
       semen, urine, feces, or another bodily substance by throwing the
       bodily substance at the other person, by expelling the bodily
       substance upon the other person, or in any other manner.

Emily Harding testified that on January 19, 2010, she was employed as a juvenile

correctional officer at the Indian River facility in Massillon, Stark County, Ohio.

Harding testified as follows:

           I was walking down the hall to do a hall check and got urine
       thrown on me out through the crack of the door, and when I looked
       in and [asked] which one had done it * * * he said [“]I did bitch[”]
       and then laughed and him and his roommate were laughing about it
       [and] I went and reported it and did my necessary paperwork.

Harding testified that she knew R.J. was the one who threw the urine “[c]ause he’s

the one who said he had done it.” Harding testified that she knew the liquid was

urine by its smell. Harding further testified that she felt “harassed and taken

advantage of” by R.J.’s actions. Upon cross-examination, Harding testified that

she was not facing R.J. when she was hit with the liquid and that the liquid had hit

her on her right side. She further testified that another juvenile was in the cell

with R.J. at the time, but she did not remember the identity of that juvenile.

Harding testified that she had asked both juveniles who had done it and that R.J.

had said, “I did it bitch.” Harding could not recall whether or not she had been

spit upon that same night.


                                       -16-
Case No. 1-10-90



          {¶ 36} Trooper Thomas W. Lemmon testified that he is assigned to

investigate incidents that occur inside the Indian River facility and that he had

discussed the incident with R.J. Trooper Lemmon testified that R.J. had told him

that the liquid was water and that his roommate had thrown the water. Trooper

Lemmon testified that he had not believed R.J., had not had any further

discussions with R.J., and thereafter had submitted his report to the prosecutor’s

office.

          {¶ 37} R.J. testified that his roommate at the facility that night was

Deangelo Smith. R.J. testified as follows:

          [The night of the incident] was [Smith’s] last night and me and him
          were both clowning[.] * * * [T]he whole unit was clowning like
          every night doing other stuff. [Mrs. Harding] was * * * doing her
          door log for seclusion and we was having fun. [Smith] was in the
          room splashing with me like with * * * we’re from the same City * *
          * he is from Lima and I am from Lima. He was splashing me * * *
          I’m gonna miss you man and all that stuff. I guess it went through
          the crack cause I was kind of curled up * * * I guess some got
          through the crack of the door.

R.J. testified that Smith had been splashing him with water from the water bottle

they had in their room. R.J. testified that Smith and he had played around all the

time. R.J. testified that after Harding was splashed, she “said oh my God you

nasty mother fucker two nasty mother fuckers she was talking about both of us and

she walked away. And then later on that night I then got a [write] up saying that I



                                         -17-
Case No. 1-10-90



threw piss on a staff.” R.J. testified that he had not been removed from his room

and that he had stayed with Smith until the next morning, when Smith went home.

       {¶ 38} Thereafter, the trial court found R.J. delinquent based upon his

violation of R.C. 2921.38(A). Viewing the evidence in a light most favorable to

the state, we conclude that a rational trier of fact could have found that the

essential elements of the crime had been proved beyond a reasonable doubt. The

evidence presented demonstrated that R.J. threw urine upon Harding while he was

confined in a detention facility with the purpose to harass, annoy, threaten, or

alarm Harding. Harding testified that she knew the liquid R.J. threw on her was

urine from its smell. R.J.’s intent to act with the aforementioned purposes may be

inferred from the circumstances surrounding the event, particularly R.J.’s response

to Harding’s accusation: “I did it bitch.” It can further be inferred that Harding

was in fact alarmed by R.J.’s act in light of her initial vulgar response, as

previously mentioned.      Harding testified that she felt “harassed and taken

advantage of” by R.J.’s actions. Based upon the foregoing, we conclude that the

state presented sufficient evidence to sustain the trial court’s delinquency finding.

       {¶ 39} R.J.’s second assignment of error is, therefore, overruled.

                      ASSIGNMENT OF ERROR NO. IV

       [R.J.] was denied the effective assistance of counsel when Stark
       County appointed counsel did not object to a custodial interrogation
       of her client and filed objections to the magistrate’s decision in the

                                         -18-
Case No. 1-10-90



       Stark County Family Court after certification of the case to Allen
       County and/or withdrew the objections; alternatively, the
       certification of the case by the Stark County Juvenile Court was
       improper.

       {¶ 40} In his fourth assignment of error, R.J. argues that trial counsel was

ineffective for failing to file a motion to suppress statements he made to Harding

without first being Mirandized. Next, R.J. argues that trial counsel was ineffective

for filing objections in Stark County if those objections should have been filed in

Allen County. Alternatively, R.J. argues that his trial counsel was ineffective for

withdrawing the objections in Stark County if properly filed therein. Finally, R.J.

argues that Stark County’s certification to Allen County was improper.

       {¶ 41} A defendant asserting a claim of ineffective assistance of counsel

must establish that (1) the counsel’s performance was deficient or unreasonable

under the circumstances and (2) the deficient performance prejudiced the

defendant. State v. Kole (2001), 92 Ohio St.3d 303, 306, 750 N.E.2d 148, citing

Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d

674.   Prejudice results when “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” State v. Bradley (1989), 42 Ohio St.3d 136, 142, citing Strickland, 466

U.S. at 691. “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Bradley at 142; Strickland at 694.


                                       -19-
Case No. 1-10-90



      {¶ 42} The “failure to file a suppression motion does not constitute per se

ineffective assistance of counsel.” Kimmelman v. Morrison (1986), 477 U.S. 365,

384, 106 S.Ct. 2574, 91 L.Ed.2d 305, cited in State v. Madrigal (2000), 87 Ohio

St.3d 378, 389, 721 N.E.2d 52. To constitute ineffective assistance, there must

also be a reasonable probability that the motion would have been successful. State

v. Pierce, 3d Dist. No. 11-09-05, 2010-Ohio-478, ¶ 34, citing State v. Robinson

(1996), 108 Ohio App.3d 428, 433, 670 N.E.2d 1077, and State v. Ligon (June 18,

2001), 3d Dist. No. 4-2000-25.

      {¶ 43} R.J. first argues that trial counsel was ineffective for failing to file a

motion to suppress statements he had made to Harding while in custody when he

had not been Mirandized. This argument lacks merit. Miranda warnings were not

necessary here because Harding was conducting an on-the-scene investigation of a

crime that R.J. was suspected of committing while in the detention facility, and

“the circumstances of the interrogation [did not] create a change in [R.J.’s]

surroundings * * * that result[ed] in an added imposition on [R.J.’s] freedom of

movement.” See, e.g., State v. Porter, 178 Ohio App.3d 304, 2008-Ohio-4627,

897 N.E.2d 1149, ¶ 16. The record demonstrates that in response to getting

splashed with urine, Harding stated, “Who did it?” and R.J. stated “I did it bitch.”

At the time of Harding’s question, she did not know whether R.J. or his roommate

had thrown the urine. Furthermore, R.J. and his roommate were both still inside

                                        -20-
Case No. 1-10-90



their same room, with no further restraint upon their freedom. Because Miranda

warnings were unnecessary prior to Harding’s on-the-scene questioning of the

juveniles, trial counsel was not ineffective for not filing a motion to suppress

R.J.’s statement to Harding based upon the lack of Miranda warnings, as R.J.

argues.

       {¶ 44} Next, R.J. argues that trial counsel was ineffective for filing

objections in Stark County if the objections should have been filed in Allen

County. We find no error in trial counsel’s filing objections to the magistrate’s

decision in Stark County. As we noted above, trial counsel’s filing of timely

objections in Stark County stayed the Stark County Juvenile Court’s judgment

transferring the case to Allen County until the trial court ruled upon the objections.

Juv.R. 40(D)(4)(e)(i). Furthermore, Stark County was the proper forum for filing

the objections because the magistrate served in that county under the authority of

the Stark County Juvenile Court. Furthermore, R.J. raised a sufficiency-of-the-

evidence objection, and therefore, nothing would have remained to transfer to

Allen County had the trial court agreed with R.J. and sustained the objection.

Under these circumstances, we do not find that trial counsel was ineffective for

filing the objections in Stark County.

       {¶ 45} Alternatively, R.J. argues that his trial counsel was ineffective for

withdrawing the objections in Stark County if they had been properly filed therein.

                                         -21-
Case No. 1-10-90



We disagree. Even assuming that trial counsel was deficient for withdrawing the

objections — which we cannot definitely conclude, since no transcript of the

proceedings was filed for appeal purposes—we cannot conclude that R.J. was

prejudiced by this decision. Because we have already concluded that the state

presented sufficient evidence to establish R.J.’s delinquency, we are not persuaded

that the trial court would have sustained the objections had they not been

withdrawn, or, in other words, that the result of the proceeding would have been

different. Therefore, we cannot find that R.J. was denied effective assistance of

counsel on this basis.

       {¶ 46} In the final sentence of his brief, R.J. argues that Stark County’s

certification to Allen County was improper.        As we already mentioned, the

juvenile court’s adoption of the magistrate’s decision without waiting for Juv.R.

40(D)(3)(b)(i)’s 14-day objection period may have been ill-advised; nevertheless,

the trial court was within its authority under R.C. 2151.271 and Juv.R. 11 to

transfer the case to Allen County following adjudication. Therefore, this argument

lacks merit.

       {¶ 47} For all the aforementioned reasons, R.J.’s fourth assignment of error

is overruled.

       {¶ 48} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                        -22-
Case No. 1-10-90



                                           Judgment affirmed.

      SHAW and WILLAMOWSKI, JJ., concur.




                                  -23-
