[Cite as State v. Hennings, 2019-Ohio-4675.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                       :

                Plaintiff-Appellee,                  :
                                                              Nos. 108043, 108044,
                                                     :        and 108045
                v.
                                                     :
KAREEM HENNINGS,
                                                     :
                Defendant-Appellant.
                                                     :


                               JOURNAL ENTRY AND OPINION

                JUDGMENT: AFFIRMED
                RELEASED AND JOURNALIZED: November 14, 2019


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
         Case Nos. CR-17-623399-A, CR-17-623410-A, and CR-18-627094-A


                                               Appearances:

                Michael C. O’Malley, Cuyahoga County Prosecuting
                Attorney, and John F. Hirschauer, Assistant Prosecuting
                Attorney, for appellee.

                Timothy Young, Ohio Public Defender, and Timothy B.
                Hackett, Assistant Public Defender, for appellant.
RAYMOND C. HEADEN, J.:

               Defendant-appellant Kareem Hennings (“Hennings”) appeals the

juvenile court’s discretionary transfer of his cases to the Cuyahoga County Court of

Common Pleas. For the reasons that follow, we affirm.

   I.       Factual and Procedural History

               On July 20, 2017, Hennings was charged with delinquency in juvenile

court in Cuyahoga J.C. No. DL-17110787 (“DL-17110787”).1               The five-count

complaint alleged Hennings committed the following offenses: (1) drug possession

with a forfeiture of a scale in a drug case, a forfeiture of money in a drug case, and a

major drug offender specification; (2) trafficking with the same specifications; (3)

tampering with evidence; (4) possessing criminal tools with a forfeiture of money

and a forfeiture of a scale; and (5) obstructing official business.

               A 12-count delinquency complaint was also filed against Hennings on

the same date in Cuyahoga J.C. No. DL-17110927 (“DL-17110927”) with charges

including tampering with evidence; 6 counts of trafficking with forfeiture of a scale,

money, and 5 cell phones; 3 counts of drug possession with forfeiture of a scale,

money, and 5 cell phones; possession of criminal tools with forfeiture of a scale,

money, and 5 cell phones; and obstructing official business.




        1DL-17110787 was dismissed without prejudice when the state refiled the matter
in juvenile court as Cuyahoga J.C. No. DL-17112782 (“DL-17112782”).
                  The state filed a motion requesting the juvenile court, pursuant to

R.C. 2152.10(B), to relinquish jurisdiction to the General Division of the Court of

Common Pleas.

                  After a hearing on October 5, 2017, the juvenile court found there was

probable cause on all counts contained in both DL-17110787 and DL-17110927. On

that same date, and at the request of the state, the juvenile court dismissed

DL-17110787, and replaced it with DL-17112782.2 On October 16, 2017, the juvenile

court held a hearing and found probable cause on all counts, specifications, and

forfeitures — excluding the schoolyard specification — presented in DL-17112782.

                  The juvenile court then held an amenability hearing on

November 15, 2017, for the two pending cases — DL-17110927 and DL-17112782.

The court’s decision, presented on November 16, 2017, found Hennings was not

amenable to the juvenile justice system and, as a result, his cases were bound over

to adult court.

                  In adult court, Hennings entered guilty pleas, pursuant to a plea

agreement with the state, and was sentenced on August 16, 2018, to a total of nine


       2  On August 23, 2017, the state filed a 16-count delinquency complaint in
DL-17112782 against Hennings, charging him with the following: 1 count each of
trafficking and drug possession with a major drug offender, firearm, and schoolyard
specifications, as well as forfeiture of 9 cell phones, a gun, 3 scales, $72,400, and property
(ammunition); 5 counts of trafficking with a firearm specification and schoolyard
specification, as well as forfeiture of 9 cell phones, a gun, 3 scales, $72,400, and property
(ammunition); 5 counts of drug possession with a firearm specification, as well as
forfeiture of 9 cell phones, a gun, 3 scales, $72,400, and property (ammunition);
tampering with evidence; obstructing official business; possessing criminal tools with
forfeiture of 9 cell phones, a gun, 3 scales, $72,400, and property (ammunition); and
failure to comply. This case replaced former DL-17110787.
years.3 Hennings subsequently appealed and this court consolidated Hennings’s

cases for briefing, argument, and disposition. Hennings presents the following

assignments of error in his appeal:

         Assignment of Error I: The juvenile court abused its discretion when
         it transferred Kareem Hennings’[s] cases for criminal prosecution, in
         violation of R.C. 2152.12(B); Fifth and Fourteenth Amendments to the
         U.S. Constitution, and Article I, Sections 10 and 16, Ohio Constitution.

         Assignment of Error II: The mandatory portion of Kareem
         Hennings’[s] sentence is unauthorized by law, in violation of R.C.
         2929.20; the Fifth and Fourteenth Amendments to the U.S.
         Constitution; and, Article I, Sections 10 and 16 of the Ohio
         Constitution.

   II.       Law and Analysis

                 The Juvenile Division of the Court of Common Pleas has exclusive

original jurisdiction to hear complaints that allege a juvenile is delinquent because

he committed an offense that would be a crime if committed by an adult. State v.

Fryerson, 8th Dist. Cuyahoga No. 71683, 2000 Ohio App. LEXIS 456, 9

(Feb. 10, 2000).     However, certain juvenile court cases can be transferred for

criminal prosecution to the General Division of the Common Pleas Court. This

transfer is also referred to as a bindover transfer to the adult court.

R.C. 2152.12(A)(1). There are two types of bindover transfers: mandatory and

discretionary. R.C. 2152.10. The case sub judice involves a discretionary bindover

transfer.



         3
         In adult court, Hennings was sentenced in Cuyahoga C.P. Nos. CR-17-623399-A,
CR-17-623410-A, and CR-18-627094-A that are referred to on appeal, respectively, as
State v. Hennings, 8th Dist. Cuyahoga Nos. 108043, 108044, and 108045.
                 Following a hearing where the state introduces evidence showing

probable cause that the child committed the alleged crimes, the child is eligible for

a discretionary bindover pursuant to R.C. 2152.10(B). See Juv.R. 30. All children

eligible for a discretionary bindover are not transferred for prosecution in the adult

court. A juvenile court must first follow the procedures outlined in R.C. 2152.12 to

determine if transfer is appropriate. Johnson v. Sloan, 154 Ohio St.3d 476, 2018-

Ohio-2120, 116 N.E.3d 91, ¶ 6.

                 In addition to the completion of a court ordered investigation

pursuant to R.C. 2152.12(C), the juvenile court must hold an amenability hearing

and make the following determinations before transferring jurisdiction to the adult

court:

         (1) The child was fourteen 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.

         (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.

R.C. 2152.12(B); Juv.R. 30(C).

                 To satisfy the third prong of R.C. 2152.12(B) and establish a child’s

amenability to the juvenile system, the juvenile court considers the applicable

factors listed in R.C. 2152.12(D) — those factors that indicate a child’s case should

be transferred — with the appropriate factors identified in R.C. 2152.12(E) that
weigh against the transfer of the juvenile case. The record must reflect the applicable

factors considered by the juvenile court. Id.

               Juvenile courts have wide discretion to transfer their cases to adult

courts. State v. Poole, 8th Dist. Cuyahoga No. 98153, 2012-Ohio-5739, ¶ 6. On

appeal, a juvenile court’s decision to bind over a case is reviewed under an abuse of

discretion standard. Id. Where the juvenile court weighed the statutory factors and

the record shows a rational basis for the court’s findings regarding those statutory

factors, an appellate court cannot conclude the trial court abused its discretion when

it transferred jurisdiction. Id. “‘[I]f there is some rational and factual basis to

support the trial court’s decision, [an appellate court is] duty bound to affirm it

regardless of [its] personal views of the evidence.’” State v. Johnson, 2015-Ohio-96,

27 N.E.3d 9, ¶ 36 (8th Dist.), quoting State v. West, 167 Ohio App.3d 598, 2006-

Ohio-3518, 856 N.E.2d 285, ¶ 10 (4th Dist.).

   A. Amenability Hearing
               In his first assignment of error, Hennings contends that the juvenile

court abused its discretion when it transferred his cases to adult court. Specifically,

Hennings argues the juvenile court (1) lost sight of the statutory presumption to

retain jurisdiction and failed to properly balance the factors listed in R.C. 2152.12,

(2) improperly established a new rule allowing transfer of drug-related offenses

based solely on the charges, and (3) failed to consider all juvenile dispositional

options. We do not agree.
               Upon the state’s request for a discretionary bindover, the juvenile

court ordered, pursuant to R.C. 2152.12(C), “an investigation [of Hennings’s] social

history, education, family situation, and any other factor bearing on whether the

child is amenable to juvenile rehabilitation, including mental examination * * * .”

Hennings underwent a psychological evaluation by Dr. Joseph Konieczny.

               Further, an amenability hearing was held on November 15, 2018,

where the state presented the testimony of Detective Robert Sauterer. Detective

Sauterer, a seven-year veteran with the Cleveland Police’s Fifth District Vice Unit,

testified regarding his unit’s investigation of Hennings.

               Detective Sauterer began his investigation of Hennings in January

2017 when Hennings was observed making a hand-to-hand transaction with the

passenger of another vehicle. (Nov. 15, 2017 hearing, tr. 20-21.) Hennings eluded

the police on that date, but the police continued to watch him and his home.

(Nov. 15, 2017 hearing, tr. 21-22.) With the assistance of a confidential informant,

the Fifth District Vice Unit made several controlled drug purchases from Hennings.

(Nov. 15, 2017 hearing, tr. 21-22.) Detective Sauterer also completed trash pulls

from Hennings’s home and discovered residue that tested positive as heroin or

fentanyl.   (Nov. 15, 2017 hearing, tr. 22-25.)       A search warrant executed at

Hennings’s home in July 2017 led to the discovery of approximately 400 grams of

fentanyl. (Nov. 15, 2017 hearing, tr. 26.) This is only the third time during his seven-

year career that Detective Sauterer discovered such a large quantity of heroin or

fentanyl. (Nov. 15, 2017 hearing, tr. 30.)      In addition to the drugs, the police
recovered monies in excess of $70,000, cell phones, and a firearm. (Nov. 15, 2017

hearing, tr. 31-33.) The evidence indicated that this was “definitely not a typical drug

operation.” (Nov. 15, 2017 hearing, tr. 35.)

               In addition to Detective Sauterer’s testimony, the psychological

examination completed by Dr. Joseph Konieczny was stipulated to and introduced

as evidence at the amenability hearing. (Nov. 15, 2017 hearing, tr. 60.) The report

states that Hennings was diagnosed with Borderline Intellectual Functioning and

was found to have extremely low intellectual capabilities.            Yet, Hennings’s

performance on the Wide Range Achievement Test-4 (“WRAT-4”) was significantly

higher than would be expected based upon his overall level of intellectual

functioning. Hennings did not suffer from a major mental or psychiatric disorder

that affected his ability to perceive reality. At the time of examination, Hennings

was 17 years old, weighed 150 pounds, and stood six-feet tall. Dr. Konieczny offered

no opinion as to whether Hennings was physically, emotionally, or psychologically

mature enough for a transfer to adult court.

               Further, Dr. Konieczny did not recommend a specific outcome

regarding Hennings’s transfer to adult court. Dr. Konieczny did identify three

factors indicating Hennings’s responsiveness to rehabilitation within the juvenile

system: (1) no history of involvement with the juvenile justice system, including

probation or commitment to a facility in the Ohio Department of Youth Services, (2)

no history of significant bad behavior at school, and (3) no known history of

predatory, aggressive, or violent behaviors. Dr. Konieczny’s report states the current
matter is Hennings’s first involvement with the juvenile justice system and

Hennings had no prior adjudications.         While Hennings was not previously

adjudicated in the juvenile system, he was twice engaged in the juvenile court’s

diversion program.

               The psychological exam also noted Hennings’s age — 18 years old —

was an indicator that Hennings would not be responsive to the juvenile system:

“Although still within the jurisdiction of the Juvenile Justice System, at the age of

18, [Hennings] is beyond the age of majority.”

               On November 16, 2017, the juvenile court found Hennings was not

amenable to the juvenile court system and granted the state’s request for a

discretionary transfer.   The seriousness of the drug charges and, as a result,

insufficient time to rehabilitate Hennings, were the overriding factors in favor of

transfer:

      THE COURT: Okay. All right. So based on all the available
      information that the Court took into consideration on this case,
      including weighing in all the possible factors that are required by law
      under 2152.12(D) and 12(E), and including the psych[ologica]
      eval[uation] that was submitted and any other information that the
      Court felt was relevant, the Court finds that Kareem is not amenable to
      our Juvenile Justice system, and this finding is on both cases.

      And the weight that the Court gave to the factors, the biggest amount
      of weight that the Court gave was to the fact that these were serious
      drug charges as opposed to typical drug charges that we get in here, and
      based on that, the Court believes there’s not sufficient time to
      rehabilitate the child within the Juvenile System, just mostly based on
      the charges themselves in these two cases.

(Nov. 16, 2017 hearing, tr. 3-4.)
              The juvenile court’s November 16, 2017 journal entry, which orders

Hennings’s cases to be transferred to the General Division of the Cuyahoga County

Court of Common Pleas, reads in pertinent part:

      * * * The court finds after a full investigation, including a mental
      examination of said child, made by a duly qualified person, and after
      full consideration of the child’s prior juvenile record, family
      environment, school record, efforts previously made to treat and
      rehabilitate the child, including prior commitments to the Department
      of Youth Services, the nature and severity of the offense herein, the age,
      physical, and mental condition of the victim as effected by the matter
      herein, and other matters of evidence, that there are reasonable
      grounds to believe that the child herein is not amenable to care or
      rehabilitation within the juvenile system.

      The court further finds that the safety of the community may require
      that the child be subject to adult sanctions.

              The journal entry also states the court weighed the R.C. 2152.12(D)

and 2152.12(E) factors to determine whether to grant the state’s motion to transfer.

The juvenile court found these R.C. 2152.12(D) factors support the transfer of

Hennings’s cases to adult court: the victim suffered physical or psychological harm,

or serious economic harm; Hennings allegedly committed the charged acts for hire

or as a part of a gang or other organized criminal activity; Hennings was emotionally,

physically, or psychologically mature enough for a transfer; and there would not be

sufficient time to rehabilitate Hennings within the juvenile system. The court found

no R.C. 2512.12(E) factors — factors that weighed against transfer — applied.

              Hennings argues the court’s decision to transfer was based primarily

on the nature of the offense and did not truly consider the remaining factors.

Specifically, Hennings references (1) the psychological examination completed by
Dr. Joseph Konieczny to identify factors the court could have and should have relied

upon to find Hennings was amenable to the juvenile system, and (2) the fact that

Hennings had three additional years to rehabilitate within the juvenile system.

                  The record supports the juvenile court’s reliance on the specified

R.C. 2152.12(D) factors. Hennings’s victims included Detective Kopchak, who was

exposed to drugs while collecting evidence and required medical treatment, as well

as the individuals who purchased drugs from Hennings. (Nov. 15, 2017 hearing,

tr. 45, 53-54.)     The quantity of drugs and amount of money seized indicated

Hennings’s acts were part of an organized criminal activity. While the psychologist’s

test initially indicated Hennings had a low IQ, the WRAT-4 presented significantly

higher test results and Hennings’s grades were passing.

                  The record reflects evidence that Hennings was conducting a major

drug operation. The severity of a crime can be a strong indicator that there remains

insufficient time to rehabilitate a child offender in the juvenile justice system.

Johnson, 2015-Ohio-96, 27 N.E.3d 9, at ¶ 43; see also State v. Amos, 1st Dist.

Hamilton No. C-150265, 2016-Ohio-1319, ¶ 43 (a juvenile court can consider the

number and nature of the committed offenses when determining if the child is

amenable to the juvenile justice system). The Ohio Supreme Court has found

juveniles who committed a major felony may require additional time for

rehabilitation in comparison to juveniles who commit less serious offenses, and

therefore, are less amenable to the juvenile system. Johnson at ¶ 43.
               Additionally, consideration of the R.C. 2152.12(D) and (E) factors

reflects the court’s consideration of how a juvenile will manage within the adult

system. State v. Crosby, 8th Dist. Cuyahoga Nos. 107392 and 107551, 2019-Ohio-

2217, ¶ 51.

               Despite the fact that Dr. Konieczny’s psychological report lists factors

indicating Hennings’s responsiveness to rehabilitation in the juvenile justice system,

“the trial court is still the ultimate trier of fact and free to disagree with the

psychologist’s recommendation.” Johnson at ¶ 42; see also State v. McCutchen, 8th

Dist. Cuyahoga Nos. 102381, 102382, and 102383, 2016-Ohio-488, ¶ 32.

               In accordance with R.C. 2152.12, the juvenile court applied the

statutory considerations and determined that the factors in R.C. 2152.12(D) — in

support of retaining jurisdiction in the juvenile system — were outweighed by

R.C. 2152.12(E)’s factors that endorse transfer to the adult court. We do not find the

juvenile court’s decision to grant a discretionary transfer was an abuse of discretion.

Thus, Hennings’s first assignment of error is overruled.

   B. Mandatory Prison Term
               In Hennings’s second assignment of error, he argues that the

mandatory portion of his sentence is unauthorized by law and violates R.C. 2929.20,

the Fifth and Fourteenth Amendments to the U.S. Constitution, and Article I,

Sections 10 and 16 of the Ohio Constitution. However, Hennings states in his reply

brief that his second assignment of error lacks merit pursuant to R.C. 2929.13(F)
and, as a result, withdraws this argument.        Accordingly, Hennings’s second

assignment of error is moot for purposes of this appeal and will not be addressed.

              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.



RAYMOND C. HEADEN, JUDGE

EILEEN T. GALLAGHER, P.J., and
SEAN C. GALLAGHER, J., CONCUR
