[Cite as State v. Rickard, 2017-Ohio-8614.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                        ERIE COUNTY


State of Ohio                                     Court of Appeals Nos. E-16-056
                                                                        E-16-057
        Appellee
                                                  Trial Court Nos. 2016-CR-134
v.                                                                 2016-CR-360

Charles Rickard                                   DECISION AND JUDGMENT

        Appellant                                 Decided: November 17, 2017

                                              *****

        Timothy Young, Ohio Public Defender, and Victoria Bader,
        Assistant State Public Defender, for appellant.

                                              *****

        SINGER, J.

        {¶ 1} This is a consolidated appeal in which appellant, Charles Rickard, appeals

the August 29, 2016 judgments of the Erie County Court of Common Pleas. Finding

error in the judgments, we reverse, in part, and affirm, in part.
                                 Assignments of Error

      {¶ 2} Appellant sets forth the following assignments of error:

              I. The juvenile court erred when it transferred Charles Rickard’s

      case to criminal court because the mandatory transfer provisions in R.C.

      2152.10(A)(2)(b) and 2152.12(A)(1)(b) violate a child’s right to due

      process as guaranteed by the Fourteenth Amendment to the U.S.

      Constitution and Article I, Section 16, Ohio Constitution. State v. Aalim,

      Slip Opinion No. 2016-Ohio-8278. (3/30/16 Entry).

              II. The Erie County Common Pleas Court lacked jurisdiction to

      enter a conviction in case number 2016-Ohio-360 because the case was

      required to be initiated in Erie County Juvenile Court, in violation of R.C.

      2152.12(A)(2)(a); Article I, Section 16, Ohio Constitution. (A-5; 8/26/16

      T.pp.3-24).

              III. Charles Rickard received ineffective assistance of counsel, as

      guaranteed by the Sixth and Fourteenth Amendments to the U.S.

      Constitution; and, Article I, Section 10, Ohio Constitution. (A-1; A-5).

                                      Background

      {¶ 3} At age 16, appellant was arrested for robbing and shooting Jonsay Hayes

during an incident that occurred in January 2016. Appellant did not turn age 18 until

March 2017.




2.
       {¶ 4} On February 1, 2016, appellant was charged with attempted murder in

violation of R.C. 2903.02 and 2923.02(A), a felony of the first degree if charged as an

adult. This charge was brought under juvenile case No. 2016-JF-009.

       {¶ 5} On February 3, 2016, and for the same incident, appellant was further

charged with: aggravated robbery with a gun specification in violation of R.C.

2911.01(A)(1) and 2941.145, a felony of the first degree if charged as an adult;

complicity to aggravated burglary in violation of R.C. 2911.11(A) and 2923.03(A)(2), a

felony of the first degree if charged as an adult; and, felonious assault in violation of R.C.

2903.11(A)(2), a felony of the second degree if charged as an adult. These charges were

brought under juvenile case No. 2016-JF-0016.

       {¶ 6} On February 10, 2016, the state moved the juvenile court to transfer the

cases to the common pleas court. Because appellant was charged with attempted murder,

a “category one offense,” and was age 16 at the time of commission, the state requested a

mandatory transfer pursuant to R.C. 2151.10(A)(2).

       {¶ 7} A probable cause hearing was scheduled for March 15, 2016, but was

continued to and held on March 29, 2016. At the hearing, appellant stipulated probable

cause existed as to the attempted murder charge brought under juvenile case No. 2016-

JF-009. This charge met the criteria for a mandatory bindover, and the court also

transferred the charges brought under case No. 2016-JF-0016, in accordance with R.C.

2152.12(F). Appellant and his mother consented to the transfer, and the court transferred

both cases.




3.
       {¶ 8} On April 14, 2016, an indictment was filed in the common pleas court,

charging appellant with: complicity to aggravated robbery in violation of R.C.

2911.01(A)(1) and 2923.03(A)(2), a felony of the first degree; complicity to aggravated

burglary in violation of R.C. 2911.11(A)(2) and 2923.03(A)(2), a felony of the first

degree; complicity to felonious assault in violation of R.C. 2903.11(A)(1) and

2923.03(A)(2), a felony of the second degree; complicity to felonious assault in violation

of R.C. 2903.11(A)(2) and 2923.03(A)(2), a felony of the second degree; complicity to

attempted murder in violation of R.C. 2923.02(A) and 2903.02(B), a felony of the first

degree; complicity to aggravated robbery in violation of R.C. 2911.01(A)(3) and

2923.03(A)(2), a felony of the first degree; complicity to aggravated burglary in violation

of R.C. 2911.11(A)(1) and 2923.03(A)(2), a felony of the first degree; and lastly, having

a weapon while under disability in violation of R.C. 2923.13(A)(2), a felony of the third

degree. All eight counts carried gun specifications under R.C. 2941.145, and seven of the

counts carried physical harm specifications. These charges were brought under case No.

2016-CR-134.

       {¶ 9} On August 12, 2016, a plea hearing was held in which appellant pled guilty

to complicity to commit aggravated robbery in violation of R.C. 2923.03(A)(2) and

2911.01(A)(1), and to the accompanying gun specification. The state requested that all

other counts and specifications be dismissed. After an extensive colloquy as required

under Crim.R. 11, the court accepted appellant’s plea of guilty. Sentencing was

scheduled for August 26, 2016.




4.
       {¶ 10} At the sentencing hearing the state notified appellant that a bill of

information was filed charging him with: attempted felonious assault in violation of R.C.

2903.11(A)(1) and 2923.02(A), a felony of the third degree; disorderly conduct in

violation of R.C. 2917.11(A)(2) and (E)(3)(a), a misdemeanor of the fourth degree; and,

criminal damaging in violation of R.C. 2909.06(A)(1), a misdemeanor of the second

degree. These charges were brought under case No. 2016-CR-360, and they were for

incidents that occurred in June and July 2016.

       {¶ 11} Appellant pled guilty to the attempted felonious assault in violation of R.C.

2903.11(A)(1) and 2923.02(A), a felony of the third degree. The other counts were

dismissed by the state. Appellant also waived his presentence investigation and agreed to

be sentenced in conjunction with the prison term in case No. 2016-CR-134.

       {¶ 12} Both cases were consolidated for purposes of sentencing. In case No.

2016-CR-134, the trial court sentenced appellant to five years incarceration for the

complicity to commit aggravated robbery, and three years for the gun specification. The

sentences were to run consecutively, and the court also imposed five years mandatory

postrelease control.

       {¶ 13} In case No. 2016-CR-360, the court sentenced appellant to 24 months

incarceration for the attempted felonious assault. This sentence was to run concurrent to

the sentences imposed in case No. 2016-CR-134, for a total, aggregate sentence of eight

years incarceration. The court also notified appellant of an additional three years

postrelease control.




5.
       {¶ 14} The judgments in both cases were journalized August 29, 2016, and

appellant now timely appeals.

                                Assignment of Error No. I

       {¶ 15} In the first assigned error, appellant argues his mandatory bindover violated

his right to due process. Appellee failed to submit a timely brief and effectively waives

argument.

       {¶ 16} Based on the authority of State v. Aalim II, we hold “the mandatory

bindover of certain juvenile offenders under R.C. 2152.10(A)(2)(b) and 2152.12(A)(1)(b)

complies with due process and equal protection as guaranteed by the Ohio and United

States Constitutions.” See Aalim II, Slip Opinion No. 2017-Ohio-2956, ¶ 38; State v.

D.B., Slip Opinion No. 2017-Ohio-6952, ¶ 1. Consequently, the first assigned error is not

well-taken.

                                Assignment of Error No. II

       {¶ 17} In the second assigned error, appellant argues case No. 2016-CR-360

should have been initiated in the juvenile court and, therefore, the corresponding

judgment and sentence imposed must be vacated because the common pleas court lacked

subject-matter jurisdiction to convict appellant.

       {¶ 18} R.C. 2152.03 provides:

              When a child is arrested under any charge, complaint, affidavit, or

       indictment for a felony or a misdemeanor, proceedings regarding the child

       initially shall be in the juvenile court in accordance with this chapter. If the




6.
       child is taken before * * * a judge of a court of common pleas other than a

       juvenile court, the * * * judge of the court of common pleas shall transfer

       the case to the juvenile court, and, upon the transfer, the proceedings shall

       be in accordance with this chapter. Upon the transfer, all further

       proceedings under the charge, complaint, information, or indictment shall

       be discontinued in the court of * * * judge of the court of common pleas

       other than a juvenile court subject to section 2152.12 of the Revised Code.

       The case relating to the child then shall be within the exclusive jurisdiction

       of the juvenile court, subject to section 2152.12 of the Revised Code.

See State v. Wilson, 73 Ohio St.3d 40, 43, 652 N.E.2d 196 (1995) (citing rule, which was

previously codified under R.C. 2151.25).

       {¶ 19} R.C. 2152.12(H) states:

              No person, either before or after reaching eighteen years of age, shall

       be prosecuted as an adult for an offense committed prior to becoming

       eighteen years of age, unless the person has been transferred as provided in

       division (A) or (B) of this section or unless division (J) of this section

       applies.

See Wilson at 44 (citing rule previously codified under R.C. 2151.26(E)).

       {¶ 20} Further, “absent a proper bindover procedure pursuant to [R.C. 2152.12],

the juvenile court has the exclusive subject matter jurisdiction over any case concerning a




7.
child who is alleged to be a delinquent.” Wilson. “The exclusive subject matter

jurisdiction of the juvenile court cannot be waived.” Id.

         {¶ 21} In this case, the charges brought under case No. 2016-CR-360 were

initiated in the common pleas court through a bill of information. The charges were

never brought before the juvenile court, and no bindover procedure occurred in

compliance with R.C. 2152.12. This is all despite appellant being a “child,” for purposes

of R.C. 2152.03, at the time he was charged. We find reversible error, as the common

pleas court lacked subject-matter jurisdiction to convict appellant. Therefore, we vacate

the conviction in case No. 2016-CR-360, and the second assigned error is found well-

taken.

                                Assignment of Error No. III

         {¶ 22} In the third assigned error, appellant argues he received ineffective

assistance of trial counsel where counsel failed to object to appellant’s bindover as

unconstitutional, and failed to object to the lack of subject-matter jurisdiction in the

common pleas court.

         {¶ 23} In evaluating ineffective assistance of counsel claims, the test is “whether

the accused, under all the circumstances, * * * had a fair trial and substantial justice was

done.” State v. Hester, 45 Ohio St.2d 71, 341 N.E.2d 304 (1976), paragraph four of the

syllabus; see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984). A court must determine whether there has been a substantial violation of any

of defense counsel’s essential duties to her client and whether the defense was prejudiced




8.
by counsel’s ineffectiveness. See State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d

905 (1999).

       {¶ 24} First, and as noted above, the mandatory bindover procedure complies with

due process and equal protection. See Aalim II, Slip Opinion No. 2017-Ohio-2956, at

¶ 38. Thus, we find no substantial violation of defense counsel’s essential duties in that

regard.

       {¶ 25} Furthermore, because we find merit in appellant’s second assigned error,

we decline to address whether it was ineffective assistance of trial counsel in failing to

object to subject-matter jurisdiction in case No. 2016-CR-360. Finding merit in the

second assigned error renders this argument moot. See App.R. 12(A)(1)(c). The third

assigned error is found not well-taken.

                                          Conclusion

       {¶ 26} For the foregoing reasons, the August 29, 2016 judgment in case No. 2016-

CR-360 of the Erie County Court of Common Pleas is reversed and vacated. The trial

court is further ordered to modify the August 29, 2016 judgment in case No. 2016-CR-

134, to remove reference to the imposed, concurrent sentence in case No. 2016-CR-360.

We otherwise affirm the judgment in No. 2016-CR-134. Appellee is ordered to pay the

costs pursuant to App.R. 24.


                                                                Judgments reversed, in part,
                                                                     and affirmed, in part.




9.
                                                                      State v. Rickard
                                                                      C.A. Nos. E-16-056
                                                                                 E-16-057




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, J.                                     JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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