[Cite as State v. McCutchen, 2016-Ohio-488.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                              Nos. 102381, 102382, and 102383



                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                             TYSHAWN MCCUTCHEN
                                                     DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                Criminal Appeals from the
                         Cuyahoga County Court of Common Pleas
             Case Nos. CR-14-586377-A, CR-14-586378-A, and CR-14-586379-A

        BEFORE: Boyle, J., Stewart, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: February 11, 2016
ATTORNEYS FOR APPELLANT

Timothy Young
Ohio Public Defender
BY: Charlyn Bohland
Assistant Public Defender
250 East Broad Street
Suite 1400
Columbus, Ohio 43215


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: John E. Jackson
        Daniel T. Van
Assistant County Prosecutors
Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, J.:

       {¶1} Defendant-appellant, Tyshawn McCutchen, appeals his convictions.              He

raises one assignment of error for our review:

       The trial court abused its discretion when it transferred Tyshawn
       McCutchen’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, Section 10, Ohio Constitution.

       {¶2} After review, we find no merit to McCutchen’s assignment of error and

affirm the judgment of the trial court.

I. Procedural History and Factual Background

       {¶3} In late fall of 2013, McCutchen committed a series of acts that led to the

state filing three complaints against him in juvenile court for three separate acts.   At the

time of the acts, McCutchen was 15 years old.      The three cases alleged that McCutchen

was a delinquent child because he committed various acts of robbery, aggravated robbery,

theft, and kidnapping, with two of the cases involving McCutchen brandishing a firearm

during the theft.

       {¶4} The state requested that McCutchen’s cases be transferred to adult court.

The juvenile court held probable cause and amenability hearings on the state’s request.

The following facts were presented in the probable cause hearing.

       {¶5} In November 2014, McCutchen approached a male victim while he was

walking home from school with a friend. McCutchen asked the victim to give him

“anything” that he had in his pockets.    The victim refused.   McCutchen again asked the
victim for whatever he had in his pockets, including his cell phone.     The victim gave

McCutchen his phone. Before he walked away, McCutchen told the victim that if he told

police, McCutchen would kill him.

       {¶6} In December 2013, in two separate incidents, McCutchen robbed victims at

gunpoint. During the first incident, McCutchen and another man approached two female

victims as they were leaving a diner sometime after midnight.       The two men told the

women that they were not going to hurt them, but they just wanted the women’s phones.

The women said no, after which the men separated the women.         The women struggled

with the men, until one of the women yelled, “he’s got a gun,” meaning McCutchen. One

of the female victims testified that the man (identified as McCutchen by the other female

victim) attacking her “racked the chamber” of his gun, which she explained meant that he

put a bullet into the chamber of what looked like a semiautomatic handgun.    The women

gave the men their purses after seeing the gun, and the men left.

       {¶7} In the last case, a male victim testified that he knew McCutchen because

they had gone to middle school together. The victim said that as he was walking home

from high school, McCutchen came up to him and began talking to him. McCutchen

then asked the victim for his cell phone.   The victim asked McCutchen why he needed it.

 The victim refused to give McCutchen his cell phone, but instead, gave McCutchen $50

from his wallet. McCutchen took the victim’s money and then went through the victim’s

pockets, looking for the victim’s cell phone. The victim tried to fight him, but then he

said that McCutchen “pulled out a gun and cocked it.”           The victim explained that
McCutchen pulled the gun out of his pants, and pointed it at the ground. The victim said

the gun was a “black semiautomatic pistol.”

       {¶8} After the hearing, the juvenile court found that probable cause existed for the

charges in each case, and that McCutchen was not amenable to rehabilitation in the

juvenile justice system (the pertinent amenability facts will be set forth infra).       The

juvenile court then transferred McCutchen’s cases to the adult court, where he was

subsequently indicted.

       {¶9} In adult court, McCutchen pleaded guilty to an amended indictment in each

case. In Cuyahoga C.P. No. CR-14-586377-A, McCutchen pleaded guilty to one count of

aggravated robbery in violation of R.C. 2911.01(A)(1), a first-degree felony, with a

three-year firearm specification, and one count of theft, in violation of R.C. 2913.02(A)(1),

a first-degree misdemeanor.      In Cuyahoga C.P. No. CR-14-586378-A, McCutchen

pleaded guilty to attempted robbery, in violation of R.C. 2923.02 and 2911.02(A)(3), a

fourth-degree felony.    In Cuyahoga C.P. No. CR-14-586379-A, McCutchen pleaded

guilty to robbery, in violation of R.C. 2911.02(A)(1), a second-degree felony, with a

three-year firearm specification, and carrying a concealed weapon, in violation of R.C.

2923.12(A)(2), a fourth-degree felony.      As part of his plea, McCutchen agreed to a

sentence of ten years in prison, as well as restitution to the victims. As agreed, the trial

court sentenced McCutchen to an aggregate ten years in prison, five years of mandatory

postrelease control, and restitution to the victims.       It is from this judgment that

McCutchen appeals, arguing that the juvenile court abused its discretion and violated his
due process rights when it found that he was not amenable to rehabilitation within the

juvenile system.

II. Discretionary Transfer of Jurisdiction

       {¶10} Under Ohio’s juvenile justice system, there are two types of transfer:

mandatory and discretionary.          State v. Mays, 8th Dist. Cuyahoga No. 100265,

2014-Ohio-3815, ¶ 17, citing State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544, 978

N.E.2d 894.

       “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.”

Mays at ¶ 17, quoting D.W. at ¶ 10; R.C. 2152.12(A) and (B).

       {¶11} In this case, McCutchen was bound over to the adult court pursuant to a

discretionary transfer that is governed by Juv.R. 30 and R.C. 2152.12. In instances of

discretionary transfer, as in this case,

       the juvenile court is also to determine the age of the child and whether
       probable cause exists to believe that the juvenile committed the act charged.
       R.C. 2152.10(B) and 2152.12(B)(1) and (2). However, if probable cause
       exists and the child is eligible by age, the juvenile court must then continue
       the proceeding for a full investigation. R.C. 2152.12(C) and Juv.R. 30(C).
       This investigation includes a mental examination of the child, a hearing to
       determine whether the child is “amenable to care or rehabilitation within the
       juvenile system” or whether “the safety of the community may require that
       the child be subject to adult sanctions,” and the consideration of 17 other
       statutory criteria to determine whether a transfer is appropriate. Juv.R.
       30(C); R.C. 2152.12(B), (C), (D), and (E).

In re M.P., 124 Ohio St.3d 445, 2010-Ohio-599, 923 N.E.2d 584, ¶ 12.
       {¶12} McCutchen does not challenge the trial court’s probable cause determination;

his assignment of error focuses solely upon the trial court’s finding that he is not amenable

to rehabilitation within the juvenile justice system.

       {¶13} In making the amenability determination, the juvenile court must consider

whether the applicable factors under R.C. 2152.12(D) indicating that the case should be

transferred outweigh the applicable factors under R.C. 2152.12(E) indicating that the case

should not be transferred. R.C. 2152.12(B)(3); State v. Jones, 8th Dist. Cuyahoga No.

99044, 2013-Ohio-3725,       ¶ 8.     Additionally, aside from the specifically enumerated

factors, the juvenile court is instructed to consider “any other relevant factors.” Id., citing

R.C. 2152.12(D) and (E).       “The record shall indicate the specific factors that were

applicable and that the court weighed.”       R.C. 2152.12(B)(3).     Further, when the trial

court determines a transfer is proper, the juvenile court “shall state the reasons for the

transfer on the record.”   R.C. 2152.12(I); see also Juv.R. 30(G).

       {¶14} We review a juvenile court’s amenability determination under R.C. 2152.12

pursuant to an abuse of discretion.     Jones at ¶ 9, citing In re A.J.S., 120 Ohio St.3d 185,

2008-Ohio-5307, 897 N.E.2d 629, ¶ 39. Indeed, a “juvenile court enjoys wide latitude to

retain or relinquish jurisdiction.” State v. Watson, 47 Ohio St.3d 93, 95, 547 N.E.2d 1181

(1989).   And given the discretion afforded the juvenile court by the legislature in

determining a juvenile’s amenability to the juvenile justice system, “[i]f there is some

rational and factual basis to support the trial court’s decision, we are duty bound to affirm

it regardless of our personal views of the evidence.” State v. West, 167 Ohio App.3d 598,
2006-Ohio-3518, 856 N.E.2d 285, ¶ 10 (4th Dist.). To find that a trial court abused its

discretion, “the result must be so palpably and grossly violative of fact or logic that it

evidences not the exercise of will but the perversity of will, not the exercise of judgment

but the defiance of judgment, not the exercise of reason but instead passion or bias.”

Nakoff v. Fairview Gen. Hosp., 75 Ohio St.3d 254, 256, 662 N.E.2d 1 (1996).

III. Statutory Factors for Determining Amenability

       {¶15} When determining whether to transfer a child to the trial court for adult

prosecution, R.C. 2152.12(D) requires that a juvenile court consider the following relevant

factors in favor of transfer:

       (1) The victim of the act charged suffered physical or psychological harm, or
       serious economic harm, as a result of the alleged act.

       (2) The physical or psychological harm suffered by the victim due to the
       alleged act of the child was exacerbated because of the physical or
       psychological vulnerability or the age of the victim.

       (3) The child’s relationship with the victim facilitated the act charged.

       (4) The child allegedly committed the act charged for hire or as a part of a
       gang or other organized criminal activity.

       (5) The child had a firearm on or about the child’s person or under the
       child’s control at the time of the act charged, the act charged is not a
       violation of section 2923.12 of the Revised Code, and the child, during the
       commission of the act charged, allegedly used or displayed the firearm,
       brandished the firearm, or indicated that the child possessed a firearm.

       (6) At the time of the act charged, the child was awaiting adjudication or
       disposition as a delinquent child, was under a community control sanction,
       or was on parole for a prior delinquent child adjudication or conviction.

       (7) The results of any previous juvenile sanctions and programs indicate that
       rehabilitation of the child will not occur in the juvenile system.
       (8) The child is emotionally, physically, or psychologically mature enough
       for the transfer.

       (9) There is not sufficient time to rehabilitate the child within the juvenile
       system.

       {¶16} Additionally, R.C. 2152.12(E) requires that the juvenile court consider the

following relevant factors against a transfer:

       (1) The victim induced or facilitated the act charged.

       (2) The child acted under provocation in allegedly committing the act
       charged.

       (3) The child was not the principal actor in the act charged, or, at the time of
       the act charged, the child was under the negative influence or coercion of
       another person.

       (4) The child did not cause physical harm to any person or property, or have
       reasonable cause to believe that harm of that nature would occur, in
       allegedly committing the act charged.

       (5) The child previously has not been adjudicated a delinquent child.

       (6) The child is not emotionally, physically, or psychologically mature
       enough for the transfer.

       (7) The child has a mental illness or is a mentally retarded person.

       (8) There is sufficient time to rehabilitate the child within the juvenile
       system and the level of security available in the juvenile system provides a
       reasonable assurance of public safety.

IV. Psychological Evaluation

       {¶17} Dr. Joseph Konieczny evaluated McCutchen prior to the amenability hearing.

 The following facts come from his psychological report to the court. McCutchen had a

“fairly tumultuous and chaotic upbringing.”        When McCutchen was born, he tested
positive for drugs.   He was placed in the care of his maternal grandmother until he was

six years old.    He was then placed with his maternal aunt, where he was physically

abused by his uncle. When he was 14 years old, he was placed in the custody of his older

sister. In 2013, prior to committing the offenses in these cases, he alternated living with

his sister, his brother, and a godmother.

         {¶18} McCutchen stated that throughout his “difficult” childhood, he felt that no

one loved him or wanted him. McCutchen said that he had feelings of depression “ever

since [he] was little.”   He reported “frequent periods of depression with regard to his

family history and lack of involvement in his life by his parents.”        He experiences

“episodes of crying” and “past thoughts of suicide.” Although he denied any recent

thoughts of suicide, he reported that he had been on “suicide watch” while in detention in

the past.

         {¶19} McCutchen reported that he joined a gang at age eight, began smoking

marijuana daily at age 12, and began drinking alcohol daily at age 13.         Despite his

substance abuse issues, McCutchen “had never been referred for any treatment or

assessment services with regard to his use of alcohol or other drugs.”

         {¶20} McCutchen reported that he has always had a fewer than average number of

friends, and has never been involved in organized groups or community activities.

McCutchen admitted that most of his friends have spent time in juvenile and adult jails or

prisons. McCutchen reported that although he tried to quit the gang, he was not able to

do so.
       {¶21} McCutchen also struggled in school.      While he maintained average grades

throughout middle school, he had many behavioral issues and was suspended often. In

September 2013, just before the events occurred that led to the current charges,

McCutchen began his tenth grade year in high school.      He was expelled, however, soon

after school started because he was accused of inappropriately touching a female student.



       {¶22} Since October 2012, McCutchen had been adjudicated delinquent four times

—    for burglary, assault, and twice for criminal trespass.   Each time, he was placed on

probation, where he performed poorly.      He was on probation at the time of the current

charges.

       {¶23} McCutchen was placed in the juvenile detention center prior to being

transferred to adult court.   While there, he did well.   He did not have any behavioral

issues and participated in the school program.

       {¶24} Dr. Konieczny diagnosed McCutchen with “Other Specified Depressive

Disorder, depressive disorder with insufficient symptoms.”            Dr. Konieczny also

diagnosed McCutchen with “Conduct Disorder, Adolescent Onset Type, Moderate.”           Dr.

Konieczny further opined that McCutchen had a moderate alcohol and marijuana problem.



       {¶25} Dr. Konieczny concluded that two factors demonstrated that McCutchen

would be responsive to the care and rehabilitative services in the juvenile system.   First,

he noted that McCutchen had only been placed on probation, but had never “been
committed to a facility at Ohio Department of Youth Services.”         He further noted that

McCutchen was only 16 years, 4 months old, well below the age of majority.

       {¶26} Dr. Konieczny concluded that seven factors indicated that McCutchen would

not be responsive to the care and rehabilitative services of the juvenile justice system,

including (1) his history in the juvenile justice system dating back to age 12, (2) he showed

“a very poor adjustment” to probation, (3) he had a lengthy history of poor performance,

academically and behaviorally, in school, (4) he had a lengthy history and heavy use of

alcohol and marijuana, (5) he had been in a gang since age eight, (6) he was on probation

at the time of the current charges, and (7) the current charges involved the use of a firearm,

increasing the potential for serious injury or death to any alleged victims.

V. Juvenile Court’s Decisions

       {¶27} In all three cases, the juvenile court found that probable cause existed for the

charges.   It then indicated in all three cases that in making its amenability determination,

it considered a “mental exam” by a fully qualified professional, the child’s prior juvenile

record and prior efforts made to treat and rehabilitate the child, the child’s family

environment, the child’s school record, and the age, and physical and mental condition of

the victims in each case.     The court also found in each case that the safety of the

community may require that the child be subject to adult sanctions. Finally, in all three

cases, the juvenile court indicated that it did not make any findings against transfer when

considering the relevant factors under R.C. 2152.12(E).
      {¶28} Regarding the relevant factors under R.C. 2152.12(D) in favor of transfer to

adult court in Cuyahoga C.P. No. CR-14-586377-A (DL13118636), the court made the

following findings:

      The victim suffered physical or psychological harm, or serious economic
      harm.

      The child had a firearm on or about the child’s person or under the child’s
      control at the time of the act charged, the act charged is not a violation of
      R.C. 2923.12, and the child, during the commission of the act charged,
      allegedly used or displayed the firearm, brandished the firearm, or indicated
      that the child possessed a firearm.

      At the time of the act charged, the child was awaiting a community control
      sanction, or was on parole for a prior delinquent child adjudication or
      conviction.

      The results of any previous juvenile sanctions and programs indicate that
      rehabilitation of the child will not occur in the juvenile system.

      The child is emotionally, physically, or psychologically mature enough for
      the transfer.

      There is not sufficient time to rehabilitate the child within the juvenile
      system.

      {¶29} Regarding the relevant factors under R.C. 2152.12(D) in favor of transfer to

adult court in Cuyahoga C.P. No. CR-14-586378-A (DL14104978), the court made the

following findings:

      At the time of the act charged, the child was awaiting a community control
      sanction, or was on parole for a prior delinquent child adjudication or
      conviction.

      The results of any previous juvenile sanctions and programs indicate that
      rehabilitation of the child will not occur in the juvenile system.
       The child is emotionally, physically, or psychologically mature enough for
       the transfer.

       There is not sufficient time to rehabilitate the child within the juvenile
       system.

       {¶30} Regarding the relevant factors under R.C. 2152.12(D) in favor of transfer to

adult court in Cuyahoga C.P. No. CR-14-586379-A (DL13118182), the court made the

following findings:

       The child had a firearm on or about the child’s person or under the child’s
       control at the time of the act charged, the act charged is not a violation of
       R.C. 2923.12, and the child, during the commission of the act charged,
       allegedly used or displayed the firearm, brandished the firearm, or indicated
       that the child possessed a firearm.

       At the time of the act charged, the child was awaiting a community control
       sanction, or was on parole for a prior delinquent child adjudication or
       conviction.

       The results of any previous juvenile sanctions and programs indicate that
       rehabilitation of the child will not occur in the juvenile system.

       The child is emotionally, physically, or psychologically mature enough for
       the transfer.

       There is not sufficient time to rehabilitate the child within the juvenile
       system.

VI. Analysis

       {¶31} McCutchen contends that the evidence shows that he had an extremely

chaotic life, and “acted out to deal with the chaos.”   McCutchen argues that the juvenile

court’s decision was unreasonable because Dr. Konieczny evaluated him and believed that

two factors demonstrated that he would be responsive to treatment in the juvenile justice

system, i.e., that McCutchen had never received intensive intervention from the juvenile
system in his previous cases, and that he had time to be rehabilitated in the juvenile system

before he turned 21 years old.      He maintains that because he did well while in juvenile

detention during the pendency of this case, that it proves that he would do well if he could

receive treatment programs while being held in a secure juvenile facility.               He further

maintains that by the time he is 21 years old, he would benefit from many services that he

will not receive in an adult prison.

       {¶32} After review, we find no merit to McCutchen’s arguments. Although the

juvenile court disagreed with the psychologist’s two findings against transfer, the law is

clear that it is free to do so. See, e.g., State v. Poole, 8th Dist. Cuyahoga No. 98153,

2012-Ohio-5739, ¶ 25 (“As the trier of fact, it was within the court’s discretion to reject

the psychologist’s recommendation.”); State v. Davis, 189 Ohio App.3d 374,

2010-Ohio-3782, 938 N.E.2d 1043, ¶ 21 (4th Dist.) (“the juvenile court was free to assign

any weight to the psychologist’s opinion that the court deemed appropriate”).

       {¶33} Moreover, out of eight statutory factors a court must weigh against transfer,

only one of the eight is arguably at issue here.      The one factor that is possibly relevant in

this case against transfer is the eighth statutory factor, i.e., “[t]here is sufficient time to

rehabilitate the child within the juvenile system and the level of security available in the

juvenile system provides a reasonable assurance of public safety.”1 But the trial court

obviously found, after considering the psychological report, the child’s prior juvenile



         Although the psychologist made two separate findings against transfer, both of those findings
        1


actually only support the eighth statutory factor against transfer.
record and prior efforts made to treat and rehabilitate the child, the child’s family

environment, the child’s school record, and the age, and physical and mental condition of

the victims in each case, that even though McCutchen was only 16 years old, there was not

sufficient time to rehabilitate him in the juvenile system.

       {¶34} Here, the trial court applied the factors under both R.C. 2152.12(D) and (E)

and ultimately determined that the factors in favor of transfer outweighed the factors in

favor of the juvenile court retaining jurisdiction. Indeed, the psychologist found seven

factors in favor of transferring McCutchen to adult court. Based on the record before us,

we cannot say that the juvenile court’s decision constitutes an abuse of discretion.

       {¶35} Accordingly, McCutchen’s sole assignment of error is overruled.

       {¶36} Judgment affirmed.

       It is ordered that appellee recover from appellant the 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.




MARY J. BOYLE, JUDGE
MELODY J. STEWART, P.J., and
SEAN C. GALLAGHER, J., CONCUR
