[Cite as State v. Mays, 2014-Ohio-3815.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100265




                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                           ARRAN MAYS
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CR-13-571433


        BEFORE: Celebrezze, J., Boyle, A.J., and Stewart, J.

        RELEASED AND JOURNALIZED: September 4, 2014
ATTORNEYS FOR APPELLANT

Timothy Young
Ohio Public Defender
By: Sheryl Trzaska
Assistant State Public Defender
Office of the Ohio Public Defender
250 East Broad Street
Suite 1400
Columbus, Ohio 43215


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel T. Van
       Norman Schroth
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

       {¶1} Defendant-appellant, Arran Mays, appeals from his convictions and sentence

for aggravated robbery, robbery, felonious assault, and receiving stolen property. After a

careful review of the record and relevant case law, we affirm appellant’s convictions and

sentence.

                                I. Statement of the Facts

       {¶2} Appellant’s convictions stem from the November 4, 2012 robberies of

victims Rita Stasienko, Kieonna Speights, and Navetta Clark.

       {¶3} Testimony at trial revealed that at approximately 6:00 a.m. on November 4,

2012, Rita Stasienko walked from her home in Cleveland to a nearby bus stop. When

she arrived at the bus stop, she was robbed at gunpoint by “two guys.” After her purse

was taken, one of the individuals hit her in the head with his gun and fired it into the air

several times. Stasienko testified that she was unable to identify the individuals because

they were wearing masks. The individuals fled the scene in a small “beige” vehicle.

       {¶4} Approximately 15 to 20 minutes after Stasienko was robbed, Kieonna

Speights was walking to her bus stop when a silver or gray Toyota Corolla pulled up next

to her. Speights testified that a man brandishing a gun jumped out of the backseat of the

vehicle and demanded her purse.

       {¶5} The third victim, Navetta Clark, did not testify in this matter.
       {¶6} Officer Sedlack of the Cleveland Police Department testified that on

November 4, 2012, he responded to a dispatch for shots fired in the area of East 75th and

Canton Avenue. When he arrived at the scene, Officer Sedlack conducted an initial

interview with Stasienko. According to Officer Sedlack, Stasienko provided him with a

brief description of the culprits and the vehicle in which they fled. While completing his

investigation into the robbery of Stasienko, Officer Sedlack received a dispatch regarding

the suspects’ vehicle possibly being involved in a second and third robbery.

       {¶7} Sergeant Leonard Patrick Lentz of the Cleveland Police Department testified

that he received a dispatch indicating that three males in a silver or gray Toyota had

committed three robberies in the area. While patrolling, Sgt. Lentz observed a vehicle

matching the description driving north on East 124th Street. When Sgt. Lentz attempted

to get closer to the subject vehicle, it “took off” at a high rate of speed. Sgt. Lentz

testified that he pursued the vehicle for approximately one to five minutes before the

vehicle stopped near East 129th Street and the three individuals inside the vehicle

“bailed” and attempted to flee the scene. Sgt. Lentz stated that the driver, later identified

as codefendant Marcus Beauregard, jumped out of the vehicle holding a firearm in his

hand as he ran. Sgt. Lentz further identified appellant as the individual who was sitting

in the back seat of the vehicle prior to his attempt to flee the scene.          Ultimately,

Beauregard and appellant were apprehended and arrested by responding officers.

       {¶8} Finally, Sgt. Lentz testified that further investigation into the matter revealed

that the vehicle used to facilitate the robberies was stolen.
       {¶9} Once appellant and Beauregard were detained, Speights was brought to the

scene and asked if she could identify either of the individuals inside the officers’ patrol

vehicle. Speights recognized one of the individuals, who was wearing a black hoodie, as

the person who robbed her at gunpoint. She recognized the second individual as the

driver of the vehicle.

                                II. Statement of the Case

       {¶10} The 16-year-old appellant was named in a five-count complaint in Cuyahoga

J.C. No. DL-12-120394, charging him with three counts of aggravated robbery, with

one-and-three year firearm specifications; one count of receiving stolen property, with

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

near a prohibited premises.

       {¶11} On December 13, 2012, the state moved for appellant’s case to be

transferred from the juvenile division to the general division of the common pleas court

for criminal prosecution. After a joint hearing for appellant and Beauregard on January

8, 2013, the juvenile court relinquished jurisdiction and transferred the case to the general

division pursuant to R.C. 2152.12.

       {¶12} On February 19, 2013, appellant was indicted and charged in Cuyahoga C.P.

No. CR-13-571433 with two counts of kidnapping in violation of R.C. 2905.01(B)(2);

three counts of aggravated robbery in violation of R.C. 2911.01(A)(1); felonious assault

in violation of R.C. 2903.11(A)(2); theft of an elderly person in violation of R.C.

2913.02(A)(1); discharge of a firearm on or near a prohibited premises in violation of
R.C. 2923.162(A)(3); receiving stolen property in violation of R.C. 2913.51(A); and two

counts of failure to comply in violation R.C. 2921.331(B). All counts also included

one-and-three year firearm specifications.

       {¶13} On July 10, 2013, appellant entered a guilty plea to Count 2, aggravated

robbery, with firearm and forfeiture specifications; amended Count 6, robbery, with

forfeiture specifications; amended Count 7, felonious assault, with forfeiture

specifications; and amended Count 10, receiving stolen property, with firearm and

forfeiture specifications. By recommendation of the state, the firearm specifications

attached to Counts 6 and 7 were deleted. The remaining counts were dismissed.

       {¶14} On July 15, 2013, the trial court sentenced appellant to three years in

prison on Count 2, aggravated robbery, to run consecutively to the attached three-year

firearm specification. Further, the trial court sentenced appellant to two years each on

Counts 6 and 7, robbery and felonious assault, and six months on Count 10, receiving

stolen property, to run concurrently to each other and to Count 2, for a total prison term of

six years.

       {¶15} Appellant now brings this timely appeal, raising seven assignments of error

for review.1

                                 III. Law and Analysis

                                A. Mandatory Bindover


       1   Appellant’s assignments of error are included in the appendix to this
opinion.
       {¶16} In his first assignment of error, appellant argues that the juvenile court erred

when it found probable cause that he committed aggravated robbery with a firearm.

       {¶17} “Juvenile courts possess exclusive jurisdiction over children alleged to be

delinquent for committing acts that would constitute a crime if committed by an adult.”

In re M.P., 124 Ohio St.3d 445, 2010-Ohio-599, 923 N.E.2d 584, ¶ 11, citing R.C.

2151.23(A)(1). However, under certain circumstances, “the juvenile court has the duty

to transfer a case, or bind a juvenile over, to the adult criminal system.” Id., citing R.C.

2152.10 and 2152.12. There are two types of transfers under Ohio’s juvenile justice

system — mandatory and discretionary. State v. D.W., 133 Ohio St.3d 434,

2012-Ohio-4544, 978 N.E.2d 894, ¶ 10.

        “Mandatory transfer removes discretion from judges in the transfer
       decision in certain situations.” * * * “Discretionary transfer, as its name
       implies, allows judges the discretion to transfer or bind over to adult court
       certain juveniles who do not appear to be amenable to care or rehabilitation
       within the juvenile system or appear to be a threat to public safety.”

Id., quoting State v. Hanning, 89 Ohio St.3d 86, 90, 728 N.E.2d 1059 (2000); R.C.

2152.12(A) and (B). When a juvenile court improperly transfers jurisdiction over a

minor to adult court, any subsequent conviction in the adult court is void for lack of

jurisdiction. State v. Washington, 2d Dist. Montgomery No. 20226, 2005-Ohio-6546, ¶

14, citing State v. Wilson, 73 Ohio St.3d 40, 44, 652 N.E.2d 196 (1995).

       {¶18} Mandatory transfer is guided by R.C. 2152.10(A), which provides that,

under certain circumstances, a juvenile court must transfer cases to adult court for

criminal prosecution “as provided in section 2152.12 of the Revised Code.” Relevant to
the case at hand, R.C. 2152.10(A)(2)(b) states that an alleged juvenile delinquent is

eligible for mandatory transfer when:

       (2) The child is charged with a category two offense, other than a violation
       of section 2905.01 of the Revised Code, the child was sixteen years of age
       or older at the time of the commission of the act charged, and either or both
       of the following apply:

       ***

       (b) The child is alleged to have had a firearm on or about the child’s person
       or under the child’s control while committing the act charged and to have
       displayed the firearm, brandished the firearm, indicated possession of the
       firearm, or used the firearm to facilitate the commission of the act charged.
       R.C. 2152.10(A)(2)(b).

       {¶19} R.C. 2152.12(A) establishes the procedure a juvenile court must follow for

mandatory transfers. Section (A)(1)(b)(ii) of the statute states that:

       (b) After a complaint has been filed alleging that a child is a delinquent
       child by reason of committing a category two offense, the juvenile court at a
       hearing shall transfer the case if the child was sixteen or seventeen years of
       age at the time of the act charged and either of the following applies:

       ***

       (ii) Division (A)(2)(b) of section 2152.10 of the Revised Code requires the
       mandatory transfer of the case, and there is probable cause to believe that
       the child committed the act charged. R.C. 2152.12(A)(1)(b)(ii).

       {¶20} In the case at hand, there is no dispute that aggravated robbery is a category

two offense under R.C. 2152.02(CC)(1). Further, it was stipulated that appellant was 16

years old at the time of the offenses. Thus, the only issue before this court is whether the

state established the requisite probable cause necessary for a mandatory bindover of

appellant’s aggravated robbery offenses to the adult court.
       {¶21} The probable cause standard for mandatory bindover requires the state to

provide credible evidence of every element of an offense to support a finding of probable

cause to believe that the juvenile committed the offense before ordering mandatory

waiver of the juvenile court’s jurisdiction pursuant to R.C. 2152.12(A). State v. Iacona,

93 Ohio St.3d 83, 93, 752 N.E.2d 937 (2001). Probable cause in this context is not guilt

beyond a reasonable doubt; it is evidence that raises more than a suspicion of guilt. In re

A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 16. This standard

requires the juvenile court to “evaluate the quality of the evidence presented by the state

in support of probable cause as well as any evidence presented by the respondent that

attacks probable cause.” Iacona at 93.

       {¶22} In challenging the juvenile court’s judgment, appellant argues that the state

failed to provide credible evidence of every element of the offense of aggravated robbery

to support a finding of probable cause to believe that he committed the offenses in Counts

1 through 3 of his juvenile complaint, namely that he personally used a firearm in the

commission of these robberies.

       {¶23} Our review of the juvenile court’s decision is mixed — we defer to the

court’s credibility determinations by reviewing for an abuse of discretion, but we conduct

a de novo review of the legal conclusion of whether there was probable cause to believe

that the juvenile committed the charged act. In re A.J.S. at ¶ 1.
      {¶24} Pursuant to Iacona, the juvenile court is required to evaluate the quality of

the evidence presented by the state in support of probable cause as well as any evidence

presented by appellant that attacks probable cause. Iacona at 93.

      {¶25} In cases involving the use of a firearm during the commission of an

aggravated robbery, the Supreme Court of Ohio has held that

      the mandatory bindover provision of R.C.[2152.10(A)(2)(b)] does not apply
      unless the child, himself or herself, had a firearm on or about the child’s
      person or under the child’s control while committing the act charged and
      the child displayed the firearm, brandished the firearm, indicated possession
      of the firearm, or used the firearm to facilitate the commission of the act
      charged.

Hanning, 89 Ohio St.3d 86, 728 N.E.2d 1059 (2000), at paragraph one of the syllabus.

      {¶26} In the instant case, Count 2 of appellant’s juvenile complaint referred to the

alleged aggravated robbery of Kieonna Speights.        At the probable cause hearing,

Speights testified that she was robbed at gunpoint by a man who jumped out of the back

seat of a small gray or silver Toyota. According to Speights, the gunman was wearing a

“black hoodie,” “khaki colored pants,” and had an “afro” or “dreads.” Approximately 45

minutes to an hour after her robbery, officers drove Speights to the location where

appellant was being detained to make a cold stand identification. When Speights arrived

at the scene, she positively identified the two males being detained by officers as the

perpetrators of her robbery — one as the driver of the vehicle and one as the gunman.

Speights further identified Beauregard and appellant in court as the men involved in her

robbery. While the state could have asked Speights to clarify on the record which of the

two defendants she was specifically identifying as the gunman, Sgt. Lentz confirmed that
appellant was the individual who was sitting in the back seat of the vehicle prior to

fleeing from the police.

       {¶27} Considering the totality of the testimony presented, we find that probable

cause existed to believe appellant personally possessed a firearm during the aggravated

robbery of Speights. Accordingly, mandatory bindover on Count 2, aggravated robbery,

was appropriate.

       {¶28} Moreover, without determining whether there was probable cause to believe

appellant personally possessed a firearm during the offenses committed against Stasienko

and Clark, we find that the trial court did not err in transferring Counts 1 and 3 of

appellant’s juvenile complaint to the adult court. As explained further in appellant’s

second assignment of error, because the offenses in this matter were committed during the

same course of conduct, 2 the trial court had the authority to transfer the entire case

pursuant to R.C. 2152.12(I) once it found sufficient probable cause to warrant a

mandatory transfer of Count 2 to the adult court. See State v. Brookshire, 2d Dist.

Montgomery No. 25853, 2014-Ohio-1971, ¶ 14 (holding that when multiple offenses

arise from the same “course of conduct” and the juvenile court properly transfers the

mandatory transfer offense to the adult court, all further proceedings on the remaining

offenses are discontinued in the juvenile court pursuant to R.C. 2152.12(I)). To hold


       2 Offenses committed during the “same course of conduct” have been defined
as “offenses that through their similarity, regularity and time between them are
concluded to be part of a single episode, spree, or ongoing series of offenses.”
United States v. Sheehan, D.Montana No. CR 09-13-M-DWM, 2009 U.S. Dist.
LEXIS 99800 (Oct. 27, 2009).
otherwise would jeopardize judicial economy and would require dual proceedings in two

separate courts on the same set of facts and circumstances. See Washington, 2d Dist.

Montgomery No. 20226, 2005-Ohio-6546, ¶ 26.

       {¶29} Appellant’s first assignment of error is overruled.

                         B. Transfer of “Non-Category” Offense

       {¶30} In his second assignment of error, appellant argues that the juvenile court

committed plain error when it transferred Count 4 of his juvenile complaint, receiving

stolen property, to the adult court.

       {¶31} Within this assignment of error, appellant argues that, pursuant to R.C.

2152.12(F)(2), once the juvenile court determined that appellant was subject to mandatory

bindover based on his aggravated robbery charges, it was then required to comply with

the amenability procedures outlined in R.C. 2152.12(B) for the discretionary bindover

offense of receiving stolen property before transferring the charge to the adult court.

       {¶32} In applying the statutory scheme in R.C. 2152.12(F), the Second District has

held that when a mandatory transfer offense and a “non-category” offense arise from the

same course of conduct and the juvenile court properly transfers the mandatory transfer

offense to the adult court, all further proceedings on the discretionary transfer offense are

discontinued in the juvenile court pursuant to R.C. 2152.12(I), and the juvenile court is

relieved of the requirements under R.C. 2152.12(F). Washington at ¶ 26; see also State

v. Henderson, 2d Dist. Montgomery No. 21866, 2007-Ohio-5368.

       {¶33} In pertinent part, R.C. 2152.12(I) provides:
       The transfer [of a case under division (A) of this section] abates the
       jurisdiction of the juvenile court with respect to the delinquent acts alleged
       in the complaint, and, upon the transfer, all further proceedings pertaining
       to the act charged shall be discontinued in the juvenile court, and the case
       then shall be within the jurisdiction of the court to which it is transferred as
       described in division (H) of section 2151.23 of the Revised Code.

       {¶34} In this case, appellant’s receiving stolen property charge resulted from his

act of “receiving or retaining” the stolen 2006 Toyota Corolla used to complete the

aggravated robberies against Speights, Stasienko, and Clark. Because we find that the

offenses underlying appellant’s delinquency charges arose from the same course of

conduct and that the juvenile court properly ordered proceedings on Count 2 transferred

to the adult court pursuant to R.C. 2152.12(A)(1)(b)(ii), all further proceedings in the

juvenile division on the receiving stolen property charge were thereafter discontinued per

R.C. 2152.12(I), and the juvenile court’s jurisdiction was terminated. Accordingly, the

juvenile court was relieved of any requirement that R.C. 2152.12(F) otherwise imposes to

conduct further hearings or to make findings with respect to appellant’s eligibility to be

tried as a juvenile on the discretionary offense before transferring proceedings on that

charge to the adult court.

       {¶35} Appellant’s second assignment of error is overruled.

                             C. “Reverse Bindover” Procedure

       {¶36} In his third assignment of error, appellant argues the trial court erred when it

failed to sentence him in accordance with R.C. 2152.121 for Counts 6, 7, and 10, and

further failed to remand the matter to the juvenile court after imposing a stayed sentence.
         {¶37} Initially, we note that appellant failed to raise this issue before the trial

court.    Accordingly, we are limited to plain-error review.        To establish plain error,

appellant must point to an obvious error that affected the outcome of the proceedings

below. State v. Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, ¶ 6.

Reversal is warranted only if the outcome “clearly would have been different absent the

error.” State v. Hill, 92 Ohio St.3d 191, 203, 749 N.E.2d 274 (2001). Therefore, any

error must have affected the outcome of the trial in this matter.

         {¶38} R.C. 2152.121 provides, in pertinent part:

          (A) If a complaint is filed against a child alleging that the child is a
         delinquent child and the case is transferred pursuant to division (A)(1)(a)(i)
         or (A)(1)(b)(ii) of section 2152.12 of the Revised Code, the juvenile court
         that transferred the case shall retain jurisdiction for purposes of making
         disposition of the child when required under division (B) of this section.

         (B) If a complaint is filed against a child alleging that the child is a
         delinquent child, if the case is transferred pursuant to division (A)(1)(a)(i)
         or (A)(1)(b)(ii) of section 2152.12 of the Revised Code, and if the child
         subsequently is convicted of or pleads guilty to an offense in that case, the
         sentence to be imposed or disposition to be made of the child shall be
         determined as follows:
         (1) The court in which the child is convicted of or pleads guilty to the
         offense shall determine whether, had a complaint been filed in juvenile
         court alleging that the child was a delinquent child for committing an act
         that would be that offense if committed by an adult, division (A) of section
         2152.12 of the Revised Code would have required mandatory transfer of the
         case or division (B) of that section would have allowed discretionary
         transfer of the case. The court shall not consider the factor specified in
         division (B)(3) of section 2152.12 of the Revised Code in making its
         determination under this division.

         (2) If the court in which the child is convicted of or pleads guilty to the
         offense determines under division (B)(1) of this section that, had a
         complaint been filed in juvenile court alleging that the child was a
         delinquent child for committing an act that would be that offense if
committed by an adult, division (A) of section 2152.12 of the Revised Code
would not have required mandatory transfer of the case, and division (B) of
that section would not have allowed discretionary transfer of the case, the
court shall transfer jurisdiction of the case back to the juvenile court that
initially transferred the case, the court and all other agencies that have any
record of the conviction of the child or the child’s guilty plea shall expunge
the conviction or guilty plea and all records of it, the conviction or guilty
plea shall be considered and treated for all purposes other than as provided
in this section to have never occurred, the conviction or guilty plea shall be
considered and treated for all purposes other than as provided in this section
to have been a delinquent child adjudication of the child, and the juvenile
court shall impose one or more traditional juvenile dispositions upon the
child under sections 2152.19 and 2152.20 of the Revised Code.

(3) If the court in which the child is convicted of or pleads guilty to the
offense determines under division (B)(1) of this section that, had a
complaint been filed in juvenile court alleging that the child was a
delinquent child for committing an act that would be that offense if
committed by an adult, division (A) of section 2152.12 of the Revised Code
would not have required mandatory transfer of the case but division (B) of
that section would have allowed discretionary transfer of the case, the court
shall determine the sentence it believes should be imposed upon the child
under Chapter 2929. of the Revised Code, shall impose that sentence upon
the child, and shall stay that sentence pending completion of the procedures
specified in this division. Upon imposition and staying of the sentence, the
court shall transfer jurisdiction of the case back to the juvenile court that
initially transferred the case and the juvenile court shall proceed in
accordance with this division. In no case may the child waive a right to a
hearing of the type described in division (B)(3)(b) of this section, regarding
a motion filed as described in that division by the prosecuting attorney in
the case.

***

(4) If the court in which the child is convicted of or pleads guilty to the
offense determines under division (B)(1) of this section that, had a
complaint been filed in juvenile court alleging that the child was a
delinquent child for committing an act that would be that offense if
committed by an adult, division (A) of section 2152.12 of the Revised Code
would have required mandatory transfer of the case, the court shall impose
sentence upon the child under Chapter 2929. of the Revised Code.
       {¶39} Here, appellant entered pleas of guilty in the common pleas court to one

count of aggravated robbery with a firearm specification, as charged in Count 2; one

count of robbery as amended in Count 6; one count of felonious assault as amended in

Count 7; and one count of receiving stolen property as charged in Count 10. Within this

assignment of error, appellant is not challenging his sentence on Count 2, which relates to

his conduct against Speights and resulted in a sentence of 6 years (3-year firearm

specification to run prior and consecutive to the 3 years imposed on the base charge).

Instead, appellant’s argument focuses on his robbery, felonious assault, and receiving

stolen property convictions, which he maintains would not have been eligible for

mandatory bindover “had he been charged with those offenses in the juvenile court prior

to transfer.” R.C. 2152.121(B). However, in sentencing appellant on Counts 6, 7, and

10, the court ordered those terms to run concurrently to the six years imposed on Count 2,

which required a mandatory transfer, for an aggregate sentence of six years. Thus, even

if this court were to find error in the trial court’s application of R.C. 2152.121(B) with

respect to Counts 6, 7, and 10, appellant’s sentence would not change. We therefore find

that any alleged error would be harmless and would not have affected the outcome in this

matter. See State v. Bradford, 5th Dist. Stark No. 2013 CA 00124, 2014-Ohio-904.

       {¶40} Moreover, we do not interpret R.C. 2152.121(B) as requiring the common

pleas court to complete a separate analysis for each charge appellant ultimately pled guilty

to once it determined under R.C. 2152.121(B)(4) that Count 2, aggravated robbery,

required mandatory transfer of the entire case. In our view, once the trial court made this
determination, it was permitted to sentence appellant on each count he pled guilty to in

CR-13-571433 under Chapter 2929 of the Ohio Revised Code.

       {¶41} Appellant’s third assignment of error is overruled.

                               D. Constitutional Challenges

       {¶42} For purposes of convenience, we will address appellant’s fourth, fifth, and

sixth assignments of error together. Under these assignments of error, appellant argues

that R.C. 2152.10(A)(2)(b) and 2152.12(A)(1)(b), which govern the mandatory transfer of

juvenile cases to adult court, violate his constitutional rights to due process, equal

protection, and to be free from cruel and unusual punishment.

       {¶43} As an initial matter, we note that “[f]ailure to raise at the trial court level the

issue of the constitutionality of a statute or its application, which issue is apparent at the

time of trial, constitutes a waiver of such issue.” In re I.A., 2d Dist. Montgomery No.

25078, 2012-Ohio-4973, ¶ 4, quoting State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277

(1986), syllabus. In this case, appellant failed to raise his constitutional challenges to the

mandatory transfer in the juvenile court or the trial court, and therefore waived his

arguments on appeal.         See State v. Jones, 8th Dist. Cuyahoga No. 88493,

2007-Ohio-3265.

       {¶44} In addition, “a defendant who * * * voluntarily, knowingly, and intelligently

enters a guilty plea with the assistance of counsel ‘may not thereafter raise independent

claims relating to the deprivation of constitutional rights that occurred prior to the entry of

the guilty plea.’” State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d
927, ¶ 78, quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d

235 (1973). Because appellant does not challenge the validity of his plea, he waived his

right to challenge the constitutionality of R.C. 2152.10 and 2152.12 by pleading guilty.

See, e.g., Bradford, 5th Dist. Stark No. 2013 CA 00124, 2014-Ohio-904, ¶ 76-79; State

v. Quarterman, 9th Dist. Summit No. 26400, 2013-Ohio-3606, ¶ 3-6 (both cases finding

that the defendant was prevented from arguing on appeal that R.C. 2152.10(A)(2)(b) and

2152.12(A)(1)(b) violated his constitutional rights to due process, equal protection, and to

be free from cruel and unusual punishment because the defendant pled guilty to the

charges against him and did not contest the validity of his plea).

       {¶45} Moreover, even if this court were to consider appellant’s constitutional

arguments, several appellate districts have already determined that the statutory

provisions requiring mandatory transfer do not violate due process and equal protection

rights under the Fourteenth Amendment. See, e.g., State v. Ramey, 2d Dist. Montgomery

No. 16442, 1998 Ohio App. LEXIS 2617 (May 22, 1998); State v. Agee, 133 Ohio

App.3d 441, 728 N.E.2d 442 (2d Dist.1999); State v. Kelly, 3d Dist. Union No. 14-98-26,

1998 Ohio App. LEXIS 5630 (Nov. 18, 1998);             State v. Lee, 11th Dist. Lake No.

97-L-091, 1998 Ohio App. LEXIS 4250 (Sept. 11, 1998); State v. Collins, 9th Dist.

Lorain No. 97CA006845, 1998 Ohio App. LEXIS 2474 (June 3, 1998) (all finding that

the mandatory transfer provisions in former R.C. 2151.26(B), which is now codified as

R.C. 2152.12, do not violate a juvenile’s constitutional rights to due process and equal
protection under the law). We will continue to follow the precedent on this issue unless

otherwise advised by the Supreme Court of Ohio.

      {¶46} Additionally, appellant’s argument that the mandatory transfer statute

violates his Eighth Amendment right to be free from cruel and unusual punishment is

unpersuasive. “The Eighth Amendment to the United States Constitution states that

‘[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.’” State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.2d

890, ¶ 8. “‘[C]ases in which cruel and unusual punishments have been found are limited

to those involving sanctions which under the circumstances would be considered

shocking to any reasonable person.’” State v. Weitbrecht, 86 Ohio St.3d 368, 371, 715

N.E.2d 167 (1999), quoting McDougle v. Maxwell, 1 Ohio St.2d 68, 70, 203 N.E.2d 334

(1964). The penalty must be “‘so greatly disproportionate to the offense as to shock the

sense of justice of the community.’”         State v. Hairston, 118 Ohio St.3d 289,

2008-Ohio-2338, 888 N.E.2d 1073, ¶ 14, quoting Weitbrecht at 371. “As applied to

juveniles, the United States Supreme Court has held that the Eighth Amendment prohibits

the imposition of the death penalty and the imposition of life without the possibility of

parole for nonhomicide offenses.” Long at ¶ 8, citing Roper v. Simmons, 543 U.S. 551,

125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011,

176 L.Ed.2d 825 (2010).      “Most recently, the Eighth Amendment was held to ban

mandatory life-without-parole sentences on juveniles in Miller [v. Alabama, [567] U.S.

   , 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)].” Id.
       {¶47} The statutory provisions at issue in this case, however, do not govern the

sentencing of juveniles, but instead govern whether a juvenile case must be transferred to

adult court for adjudication. As stated in the concurrence in Quarterman, 9th Dist.

Summit No. 26400, 2013-Ohio-3606, “[m]andatory bindover does not equate to

punishment any more than the mere prosecution of an adult in the common pleas court

constitutes punishment.” Id. at ¶ 16. Furthermore, appellant provides no support for

applying Eighth Amendment protections to matters that do not constitute punishment.

Accordingly, his Eighth Amendment argument is not well taken.

       {¶48} Notwithstanding the fact that appellant waived his constitutional challenges

to R.C. 2152.12, we find no merit to his challenges, and therefore overrule his fourth,

fifth, and sixth assignments of error.

                           E. Ineffective Assistance of Counsel

       {¶49} In his seventh assignment of error, appellant argues that he was denied

effective assistance of counsel when trial counsel failed to object to his case being

transferred to the adult court.

       {¶50} Under this assignment of error, appellant contends that his trial counsel was

ineffective in failing to object to the juvenile court’s transfer of his aggravated robbery

charges to the adult court. Appellant also argues that his trial counsel was ineffective in

failing to object to the constitutionality of the mandatory transfer of his case.

       {¶51} We review allegations of ineffective assistance of trial counsel under the

two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley, 42

Ohio St.3d 136, 538 N.E.2d 373 (1989). To prevail on an ineffective-assistance claim,

appellant must establish that his trial counsel’s performance was deficient and that the

deficient performance prejudiced him. Strickland at paragraph two of the syllabus. A

trial counsel’s performance is deficient if the conduct complained of fell below an

objective standard of reasonableness. Id.

       {¶52} Trial counsel is entitled to a strong presumption that his or her conduct falls

within the wide range of reasonable assistance. Id. As for prejudice, a trial counsel’s

deficient performance is prejudicial when counsel’s errors are serious enough to create a

reasonable probability that, but for the errors, the result of trial would have been different.

 Id.

       {¶53} In this case, we have already concluded that the juvenile court properly

transferred appellant’s aggravated robbery charges to the adult court pursuant to R.C.

2152.10 and 2152.12. Therefore, trial counsel’s failure to object to the transfer did not

fall below an objective standard of reasonableness. Likewise, having concluded that

appellant’s constitutional challenges have no merit, it was not unreasonable for his trial

counsel to abstain from objecting to the constitutionality of the mandatory bindover

provisions in R.C. 2152.12.

       {¶54} For the foregoing reasons, appellant has failed to establish that his trial

counsel’s performance was deficient.       Accordingly, appellant’s ineffective assistance

claim must fail because he cannot satisfy the first prong of Strickland.
      {¶55} Appellant’s seventh assignment of error is overruled.

      {¶56} 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 convictions 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.



FRANK D. CELEBREZZE, JR., JUDGE

MARY J. BOYLE, A.J., and
MELODY J. STEWART, J., CONCUR
                            APPENDIX

Appellant’s assignments of error:

      I. The juvenile court erred when it found probable cause that Arran Mays
      committed aggravated robbery with a firearm.

      II. The juvenile court committed plain error when it transferred Count 4,
      receiving stolen property, as a mandatory transfer offense.

      III. The trial court erred when it failed to sentence Arran Mays in
      accordance with R.C. 2152.121 for Counts 6, 7, and 10, and failed to
      remand the matter to the juvenile court after imposing a stayed sentence.

      IV. The juvenile court erred when it transferred Arran Mays’s case for
      criminal prosecution because the mandatory transfer provisions in R.C.
2152.10(A)(2)(b) and R.C. 2152.12(A)(1)(b) violate a child’s right to due
process as guaranteed by the Fourteenth Amendment to the United States
Constitution and Article I, Section 16, Ohio Constitution.

V. The juvenile court erred when it transferred Arran Mays’s case to adult
court because the mandatory-transfer provisions in R.C. 2152.10(A)(2)(b)
and R.C. 2152.12(A)(1)(b) violate a child’s right to equal protection as
guaranteed by the Fourteenth Amendment to the United States Constitution
and Ohio Constitution, Article I, Section 2.

VI. The juvenile court erred when it transferred Arran Mays’s case to adult
court because the mandatory-transfer provisions in R.C. 2152.10(A)(2)(b)
and R.C. 2152.12(A)(1)(b) violate the prohibition against cruel and unusual
punishment a guaranteed by the Eighth and Fourteenth Amendments to the
United States Constitution and Ohio Constitution, Article I, Section 9.

VII. Defense counsel rendered ineffective assistance by failing to object to
an unconstitutional transfer and illegal sentence.
