[Cite as State v. Simmonds, 2015-Ohio-4460.]


                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT

State of Ohio,                                   :

                 Plaintiff-Appellee,             :
                                                                    No. 14AP-1065
v.                                               :                (C.P.C. No. 14CR-232)

Devonere Simmonds,                               :           (REGULAR CALENDAR)

                 Defendant-Appellant.            :


                                           D E C I S I O N

                                   Rendered on October 27, 2015


                 Ron O'Brien, Prosecuting Attorney, Seth L. Gilbert and
                 Steven L. Taylor, for appellee.

                 Dustin M. Blake Co., LLC, and Dustin M. Blake, for appellant.

                  APPEAL from the Franklin County Court of Common Pleas

TYACK, J.
        {¶ 1} Devonere Simmonds is appealing from his numerous felony convictions,
including aggravated murder with a firearm specification. Because Simmonds was not yet
18 when he killed a store clerk during an armed robbery and attempted to kill the owner
of a car he wanted to steal, several of his assignments of error deal with issues particular
to juveniles who engage in serious criminal conduct. His appellate counsel assigns five
errors for our consideration:
                 1. The juvenile court committed plain error when it failed to
                 appoint a guardian ad litem for Devonere at his transfer
                 proceedings, in violation of R.C. 2151.281(A) and Juv.R. 4(B).

                 2. The juvenile court committed plain error when it
                 transferred Devonere's case to criminal court because the
                 mandatory transfer provisions in R.C. 2152.10(A)(1)(a) and
                 2152.12(A)(1)(a)(i) are unconstitutional in violation of a
No. 14AP-1065                                                                              2


                child's right to due process as guaranteed by the Fourteenth
                Amendment to the U.S. Constitution and Article I, Section 16,
                Ohio Constitution.

                3. The juvenile court committed plain error when it
                transferred Devonere's case to criminal court because the
                mandatory transfer provisions in R.C. 2152.10(A)(1)(a) and
                2152.12(A)(1)(a)(i) violate a child's right to equal protection as
                guaranteed by the Fourteenth Amendment to the U.S.
                Constitution and Article I, Section 2, Ohio Constitution.

                4. Devonere's transfer to adult court, convictions, and
                sentence of life without parole were in violation of his right to
                be free from cruel and unusual punishments, as guaranteed by
                the Eighth and Fourteenth Amendments to the U.S.
                Constitution and Article I, Section 9, Ohio Constitution.

                5. Devonere was denied the effective assistance of counsel, as
                guaranteed by the Fifth, Sixth, Eighth, and Fourteenth
                Amendments to the U.S. Constitution, and Article I, Sections
                9 and 10, Ohio Constitution.

        {¶ 2} Counsel who represented Simmonds did a good job of representing him but
had very little to submit by way of a defense. Simmonds basically executed the store clerk
by shooting him in the eye once and then returning to shoot the clerk in the head a second
time after the clerk briefly survived the first shot. A few days later, while fleeing central
Ohio, Simmonds found himself in need of a motor vehicle. He shot the owner of a vehicle
in the head while stealing the car. The owner miraculously survived the shooting and was
able to testify at the trial.
        {¶ 3} In Ohio, persons who commit serious crimes before their 18th birthday are
not eligible for the death penalty. Ohio's law is consistent with rulings of the United
States Supreme Court as to the scope of the Eighth Amendment to the U.S. Constitution.
See Roper v. Simmons, 543 U.S. 551 (2005); see State v. Long, 138 Ohio St.3d 478, 2014-
Ohio-849.
        {¶ 4} Ohio law does allow a sentence of life in prison for a juvenile who has
committed an aggravated murder. The Eighth Amendment to the U.S. Constitution has
not been interpreted to bar such a discretionary sentence as of yet, only a mandatory
No. 14AP-1065                                                                              3


sentence of life without parole for juveniles who commit crimes before their 18th
birthday.
       {¶ 5} Ohio has statutes which provide for a juvenile who is close to his or her 18th
birthday to be bound over for trial to the same felony courts that try adult offenders. "A
child who is alleged to be a delinquent child is eligible for mandatory transfer and shall be
transferred as provided in section 2152.12 of the Revised Code" if the child is charged with
a category one offense, and the child was at least 16 years old at the time of the offense.
R.C. 2152.10(A). "[The juvenile] court has a duty to transfer a case when it determines
that the elements of the transfer statute are met, to wit: (1) the charged act would be
aggravated murder, murder, attempted aggravated murder, or attempted murder if
committed by an adult, (2) the child was 16 or 17 at the time of the act, (3) there is
probable cause to believe that the child committed the act charged." In re A.J.S., 120
Ohio St.3d 185, 2008-Ohio-5307, ¶ 22; see R.C. 2152.12 (A)(1)(a).
       {¶ 6} Such a bindover occurred in Simmonds' case on January 13, 2014. The
juvenile court conducted a hearing on the mandatory bindover. Simmonds, through the
counsel who represented him at all times in juvenile court, stipulated to his age and
probable cause.     The juvenile court, having found probable cause on a mandatory
bindover, transferred the matter to the general division of the Franklin County Court of
Common Pleas for criminal prosecution as an adult, pursuant to R.C. 2152.12. The
transfer is mandatory for acts that would be aggravated murder, murder, attempted
aggravated murder, or attempted murder if they were committed by an adult. R.C.
2152.12(A)(1)(a).
       {¶ 7} The counselors were aware of the massive amount of evidence against their
client, including a surveillance tape showing the clerk being executed. Nothing was to be
gained by engaging in trench warfare in the juvenile court. Counsel did a difficult and
professional job but could not undo the clear facts of the case.
                      Failure to Appoint a Guardian Ad Litem
       {¶ 8} The first assignment of error alleges the juvenile court committed plain
error when it failed to appoint a guardian ad litem for Simmonds at his transfer
proceedings. Simmonds argues that the juvenile court was required to appoint a guardian
as there was a conflict between Simmonds and his mother and grandmother.
No. 14AP-1065                                                                                4


         {¶ 9} A juvenile court shall appoint a guardian ad litem to protect the interest of a
child when the court finds that there is a conflict of interest between the child and the
child's parent, guardian, or legal custodian. R.C. 2151.281(A)(2). "The court shall appoint
a guardian ad litem to protect the interests of a child or incompetent adult in a juvenile
court proceeding when: * * * (2) [t]he interests of the child and the interests of the parent
may conflict". Juv.R. 4(B).
         {¶ 10} Juv.R. 4(B) does not require an actual conflict of interest to trigger the need
for a guardian ad litem. In re Sappington, 123 Ohio App.3d 448, 453 (2d Dist.1997).
"[T]he juvenile court is in the best position to weigh the relevant facts in determining
whether a potential conflict of interest exists between the parent and the child." Id. at
453-54. We review such decisions under an abuse-of-discretion standard. Id. "[A]n
appellate court should find reversible error under Juv.R. 4(B)(2) when the record from
below reveals a strong enough possibility of conflict of interest between parent and child
to show that juvenile court abused its discretion." Id. at 454.
         {¶ 11} The presence of counsel is a factor to consider in appointing a guardian ad
litem.    Juv.R.(C)(1) states: "When the guardian ad litem is an attorney admitted to
practice in this state, the guardian may also serve as counsel to the ward providing no
conflict between the roles exist." "In evaluating the need for a guardian ad litem, courts
have also considered whether the minor was represented by counsel. A juvenile court
should be more sensitive to potential conflicts of interest under Juv.R. 4(B)(2) when there
is no other person present to protect the rights and interests of the minor." (Internal
citations omitted.) In re Sappington at 455.
         {¶ 12} Simmonds' appellate counsel argues that the record shows there was a
strong enough possibility of a conflict between the custodians and Simmonds based on
the less than favorable upbringing and family life, as well as their inability to control
Simmonds' actions. The record, however, does not demonstrate a potential conflict, nor
does Simmonds articulate specifically how the juvenile court's failure to appoint a
guardian ad litem prejudiced him. See State v. Morgan, 10th Dist. No. 13AP-620, 2014-
Ohio-5661, ¶ 25.
         {¶ 13} The judge in the juvenile court was under no duty to provide a guardian ad
litem for Simmonds under the circumstances. Simmonds' mother participated in the
No. 14AP-1065                                                                             5


proceedings. His grandmother, who was his legal custodian, also participated. There is
nothing in the record indicating that the mother or the grandmother's interests were no
longer consistent with a role that properly protects the child. See In re Sappington at 454.
Having some person in a guardian or quasi-guardian role could not have possibly changed
the proceedings. The juvenile court did not abuse its discretion in failing to appoint a
guardian ad litem.
       {¶ 14} The first assignment of error is overruled.
        Constitutional Challenges to Ohio's Mandatory Transfer Statute
       {¶ 15} Simmonds argues in his second, third, and fourth assignments of error that
the mandatory transfer laws of Ohio violate due process, equal protection, and cruel and
unusual punishment provisions of both the U.S. Constitution and the Ohio Constitution.
We note that these same arguments have been recently rejected by this court in State v.
J.T.S., 10th Dist. No. 14AP-516, 2015-Ohio-1103. Also, several other appellate districts
have rejected these constitutional challenges to Ohio's mandatory transfer statute. See,
e.g., State v. Anderson, 2d Dist. No. 25689, 2014-Ohio-4245; State v. Kelly, 3d Dist. No.
14-98-26 (Nov. 18, 1998); State v. Lane, 11th Dist. No. 2013-G-3144, 2014-Ohio-2010;
State v. Quarterman, 9th Dist. No. 26400, 2013-Ohio-3606 (Carr, J., concurring);
State v. Mays, 8th Dist. No. 100265, 2014-Ohio-3815.
       {¶ 16} Simmonds' counsel failed to preserve any of these constitutional issues at
the January 13, 2014 bindover proceeding. Normally " ' "an appellate court will not
consider any error which counsel for a party complaining of the trial court's judgment
could have called but did not call to the trial court's attention at a time when such error
could have been avoided or corrected by the trial court." ' " State v. Quaterman, 140 Ohio
St.3d 464, 468 (2014), quoting State v. Awan, 22 Ohio St.3d 120, 122 (1986), quoting
State v. Childs, 14 Ohio St.2d 56 (1968), paragraph three of the syllabus. As the Supreme
Court of Ohio explained in Awan, "the question of the constitutionality of a statute must
generally be raised at the first opportunity and, in a criminal prosecution, this means in
the trial court." Awan at 122.
       {¶ 17} "Plain error does not exist unless it can be said that but for the error, the
outcome of the trial would clearly have been otherwise." State v. Moreland, 50 Ohio St.3d
58, 62 (1990).    "Plain errors or defects affecting substantial rights may be noticed
No. 14AP-1065                                                                            6


although they were not brought to the attention of the court." Crim.R. 52(B).
"[R]eviewing court 'may' notice plain forfeited errors; a court is not obliged to correct
them." State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68.
                                   Due Process of Law
       {¶ 18} The second assignment of error argues that the juvenile court committed
plain error in transferring Simmonds' case under the mandatory transfer provisions in
violation of a child's right to due process as guaranteed by the Fourteenth Amendment to
the U.S. Constitution and Article I, Section 16, of the Ohio Constitution. Simmonds
argues that the juvenile court should hold an amenability hearing before transferring a
child to criminal court.
       {¶ 19} We have already addressed these arguments previously in State v. J.T.S.,
which relied on the Third District case of State v. Anderson, which held that "the juvenile
offender claimed that the failure to provide for an amenability hearing violated the
holding of the United States Supreme Court in Kent v. United States, 383 U.S. 541
(1966)." State v. J.T.S. at ¶ 40, citing Anderson at ¶ 67.
              Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d
              84 (1966), * * * outlined eight factors to be considered in
              transfer proceedings before a juvenile court orders bindover.
              However, other appellate districts have rejected this
              argument, based on the fact that Kent involved
              discretionary, rather than mandatory transfer. See State v.
              Lane, 11th Dist. No. 2013-G-3144, 2014-Ohio-2010, ¶ 57,
              citing State v. Kelly, 3rd Dist. Union No. 24-98-26 (Nov. 18,
              1998). Thus, "because the Kent factors were intended to
              address the problem of arbitrary decision-making and
              disparate treatment in discretionary bindover determinations,
              due process does not require use of these factors when the
              legislature has statutorily eliminated discretionary bindover
              determinations." Id.

              In addition, we have previously held that mandatory bindover
              does not violate due process. State v. Agee, 133 Ohio App.3d
              441, 448-449 (2d Dist. 1999), citing State v. Ramey, 2d Dist.
              No. 16442 (May 22, 1998). In this regard, we reasoned in
              Ramey that "[b]ecause amenability to treatment as a juvenile
              is not an issue determinative of transfer when the juvenile
              court finds that the underlying offense is one that [the statute]
              defines as an offense of violence, the juvenile is not thereafter
              entitled to a hearing to determine his amenability to
No. 14AP-1065                                                                               7


               treatment. Thus, no due process violation is demonstrated by
               the lack of an 'amenability' hearing * * *."

(Emphasis added.) Anderson at ¶67-68. The Third District determined that an
amenability hearing using the Kent factors is not a fundamental right. "[S]ubstantive due
process did not prevent the General Assembly from removing the Kent factors from
consideration where the juvenile is charged with certain serious offenses, 'provided that
removal is rationally related to a legitimate governmental purpose.' The court went on to
hold that the mandatory bindover statute is rationally related to the legitimate
governmental objective of deterring violent juvenile crime." State v. J.T.S. at ¶ 41, quoting
Kelly at 20.
       {¶ 20} Simmonds received more than adequate due process of law in the juvenile
court. He had the opportunity, with the assistance of counsel, to contest the evidence
which clearly showed him executing the clerk. Under facts as horrific as presented here,
the fact that a bindover to adult court was mandated by statute is rationally related to the
legitimate governmental object of deterring violent juvenile crime. This case presents no
colorable question of lack of due process, given the horrific facts. For the reasons set forth
in State v. J.T.S. and the case cited therein, we reject the contention that R.C. 2152.10 and
2151.12(A)(1)(a) violate a juvenile offender's right to due process of law.
       {¶ 21} The second assignment of error is overruled.
                           Equal Protection Under the Law
       {¶ 22} In the third assignment of error, Simmonds argues that juvenile court
committed plain error in transferring Simmonds' case under the mandatory bindover
provisions in violation of a child's right to equal protection as guaranteed by the
Fourteenth Amendment to the U.S. Constitution and Article I, Section 2, of the Ohio
Constitution. Simmonds argues that Ohio law creates classes of similarly situated
children who are treated differently based solely upon their age and not rationally related
to the purpose of juvenile delinquency proceedings.
       {¶ 23} The juvenile offender in Anderson and in State v. J.T.S. made the same
argument. The Third District in Anderson stated:
               Although Anderson contends that there is little difference
               between children who are younger than 16 and those who are
               older than 16, he does not support this contention with any
No. 14AP-1065                                                                             8


                type of empirical evidence. In the absence of such evidence,
                we cannot find that the distinction the legislature made is
                unconnected to its aims. As the court in Lane observed, "the
                purpose of this legislation is to protect society and reduce
                violent crime by juveniles. * * * Contrary to appellant's
                argument, juveniles who are 14 or 15 are markedly different
                from those who are 16 or 17 in many ways, e.g., in terms of
                physical development and maturity. * * * Thus, the
                legislature's decision to single out older juvenile homicide
                offenders, who are potentially more street-wise, hardened,
                dangerous, and violent, is rationally related to this legitimate
                governmental purpose."

Id. at ¶ 75, quoting Lane at ¶ 67. "[W]e agree with the reasoning of the other appellate
districts on this issue: that the General Assembly's decision to single out older juvenile
homicide offenders, who are potentially more streetwise, hardened, dangerous, and
violent, is rationally related to this legitimate governmental purpose of protecting society
and reducing violent crime by juveniles." State v. J.T.S. at ¶ 45, citing Anderson and
Lane.
         {¶ 24} The facts of this case also do not present a question of equal protection of
the law based upon Simmonds being a juvenile or that the juvenile court committed plain
error. If anything, his juvenile status spared him the threat of execution for his criminal
spree.
         {¶ 25} The third assignment of error is overruled.
    Cruel and Unusual Punishment of Bindover, Conviction and Sentence
         {¶ 26} Simmonds argues that his transfer from juvenile court, convictions, and
sentence to life without parole were violations of his right to be free from cruel and
unusual punishment as guaranteed by the Eighth and Fourteenth Amendments to the
U.S. Constitution and Article I, Section 9, of the Ohio Constitution.
         {¶ 27} The Eighth Amendment to the U.S. Constitution states that "[e]xcessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted." Ohio's mandatory bindover statutes do not violate the Eighth Amendment
because they do not govern the sentencing of juveniles but, rather, whether a juvenile case
must be transferred to adult court for adjudication. Mays, 2014-Ohio-3815, at ¶ 47. R.C.
2152.12 does not mandate punishment, and, therefore, the statute does not violate the
No. 14AP-1065                                                                              9


Eighth Amendment prohibition against cruel and unusual punishment. State v. J.T.S. at
¶ 49.    Simmonds' bindover does not violate the prohibition of cruel and unusual
punishment.
        {¶ 28} Nothing in the record before us supports an argument that a life sentence
for Simmonds constitutes cruel and unusual punishment. The Supreme Court of Ohio
has made clear the constitutionality of a sentence of life without parole: "As applied to a
juvenile found guilty of aggravated murder under R.C. 2929.03(A), then, Ohio's
sentencing scheme does not fall afoul of [Miller v. Alabama, __ U.S. _, 132 S.Ct. 2455
(2012)], because the sentence of life without parole is discretionary. Nor is our criminal
procedure flawed under [Graham v. Florida, 560 U.S. 48 (2010)] and Miller by failing to
take into account that a defendant is a youthful offender." State v. Long, 2014-Ohio-849,
¶ 19. A defendant's youth is a mitigating factor for a court to consider when sentencing.
Long at ¶ 19. The trial court was made well aware of Simmonds' youth and even noted his
youth and emotional immaturity at sentencing. (R. 187, Tr. 828.)
        {¶ 29} Not many years ago, many states were still executing juveniles who
committed homicides before they turned 18. The case which barred such executions,
Roper v. Simmons, 543 U.S. 551 (2005), changed that, but gave no indication that a life
sentence for a juvenile who committed such crimes constituted cruel and unusual
punishment.
        {¶ 30} The fourth assignment of error is overruled.
                  Allegations of Ineffective Assistance of Counsel
        {¶ 31} Simmonds' fifth assignment of error asserts he was deprived of effective
assistance of counsel under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the
U.S. Constitution, and Article I, Sections 9 and 10, of the Ohio Constitution. Simmonds
argues that his counsel failed to challenge the unconstitutional transfer, convictions, and
sentence. He also argues that he was denied effective assistance of counsel during plea-
bargaining.
        {¶ 32} A two-step process is employed when considering allegations of ineffective
assistance of counsel. "First, there must be a determination as to whether there has been
a substantial violation of any of defense counsel's essential duties to his client. Next, and
analytically separate from the question of whether the defendant's Sixth Amendment
No. 14AP-1065                                                                             10


rights were violated, there must be a determination as to whether the defense was
prejudiced by counsel's ineffectiveness." State v. Lytle, 48 Ohio St.2d 391, 396-97 (1976),
vacated in part on other grounds, 438 U.S. 910 (1978).
       {¶ 33} A counsel's performance "will not be deemed ineffective unless and until
counsel's performance is proved to have fallen below an objective standard of reasonable
representation and, in addition, prejudice arises from counsel's performance." State v.
Bradley, 42 Ohio St.3d 136 (1989), second paragraph of the syllabus. An error by counsel,
even if professionally unreasonable, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the judgment. Id. To warrant reversal,
"[t]he defendant must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different." Strickland
v. Washington, 466 U.S. 668, 694 (1984).
       {¶ 34} The question is whether counsel acted outside the "wide range of
professionally competent assistance." Id. at 689.        Appellate courts must be highly
deferential in scrutinizing counsel's performance.        "A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of
hindsight. * * * There are countless ways to provide effective assistance in any given case."
Id.
       {¶ 35} We do not find that Simmonds has shown there is a reasonable probability
that the results of the proceeding would have been different. The two attorneys who
represented Simmonds did a good job under adverse circumstances. The guilt of
Simmonds could not be seriously contested. A sentence of life in prison without the
possibility of parole was readily foreseeable.
       {¶ 36} Just prior to trial, counsel obtained an offer from the prosecutor of an
agreed sentence of 50 years to life. The fact that Simmonds, as a teenager, refused the
plea agreement is not surprising, especially since acceptance of it would have required
him to testify against a co-defendant who was a friend. Simmonds claims that his counsel
should have moved for a continuance or more appropriately advised him about the plea
offer. The questions of whether to move for a continuance or of how trial counsel advised
Simmonds as to the plea deal are both clearly within the wide range of professionally
competent assistance. Counsel could not, under the facts, especially the facts recorded in
No. 14AP-1065                                                                        11


electronic surveillance records, expect to change the likely outcome. The trial was, in
some ways, a long slow guilty plea. Counsel could not prevent that outcome.
      {¶ 37} The fifth assignment of error is overruled.
      {¶ 38} All five assignments of error having been overruled, the judgment of the
Franklin County Court of Common Pleas is affirmed.
                                                                     Judgment affirmed
                       BROWN, P.J., and DORRIAN, J., concur.
                                 ________________
