[Cite as State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544.]




              THE STATE OF OHIO, APPELLEE, v. D.W., APPELLANT.
          [Cite as State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544.]
Juvenile law—R.C. 2152.12(B)(3) amenability hearing can be waived under
        proper procedures—Judgment reversed, and cause remanded.
      (No. 2011-1677—Submitted June 5, 2012—Decided October 4, 2012.)
              APPEAL from the Court of Appeals for Cuyahoga County,
                              No. 95750, 2011-Ohio-4096.
                                  __________________
                               SYLLABUS OF THE COURT
An amenability hearing under R.C. 2152.12(B)(3) may be waived provided (1)
        the juvenile, through counsel, expressly states on the record a waiver of
        the amenability hearing and (2) the juvenile court engages in a colloquy on
        the record with the juvenile to determine that the waiver was made
        knowingly, voluntarily, and intelligently.
                                  __________________
        O’CONNOR, C.J.
        {¶ 1} In this appeal, we decide whether a hearing to determine a
juvenile’s amenability to care or rehabilitation in the juvenile system may be
waived, and we set forth the standard for valid waiver. For the reasons that
follow, we hold that the record does not support a finding that D.W. waived his
right to an amenability hearing. Accordingly, we reverse the judgment of the
court of appeals and remand this case to the juvenile court for an amenability
hearing or proper waiver of it.
                                       Background
        {¶ 2} Appellant, D.W., was charged with burglary, a felony, and other
crimes in the Cuyahoga County Court of Common Pleas, Juvenile Division, case
No. DL 09-121602. At the time of the offenses, D.W. was 17 years old.
                            SUPREME COURT OF OHIO




       {¶ 3} The juvenile court conducted a probable-cause hearing.        After
stipulating to D.W.’s birth date, the juvenile court heard testimony from Shanay
Ball, a victim of the crimes. The juvenile court stated, “Based on the testimony,
the Court finds that there is probable cause here.” The juvenile court then noted
that transfer of jurisdiction to adult court was discretionary and that D.W. had
been bound over in a prior case. The following exchange occurred:


                [DEFENSE COUNSEL]: So the Court’s aware he has been
       bound. He does have a prior bindover that the Court has just to
       refresh the Court’s recollection.
                THE COURT: Yes. He has a bindover pending, right?
                [DEFENSE COUNSEL]: He actually was bound over.
                [ASSISTANT PROSECUTOR]: And been indicted in adult
       court.
                THE COURT: Right. Right. I mean, so he has a case
       pending that was transferred, but that hasn’t been—
                [DEFENSE COUNSEL]: Resolved in any way, no.
                THE COURT: —resolved yet. Okay. All right. So we’ll
       have to refer him to our Clinic here at the Court for a full
       psychological.
                [ASSISTANT PROSECUTOR]: Your Honor, I believe
       we’ve had some preliminary discussions about waiving the
       amenability. It has already been found. I don’t even know that we
       need to waive amenability.
                [DEFENSE COUNSEL]: If we could approach, your
       Honor.
                THE COURT: Yes. Okay.
                ***



                                           2
                               January Term, 2012




               (Discussion held off of the record.)
               ***
               THE COURT: Okay. All right. Because this Court has
       already found this alleged delinquent to be not amenable to the
       juvenile justice system on a prior case in which the Court
       transferred jurisdiction to the adult court, the Court in this case
       then will, based on this probable cause finding will then—we will
       transfer this case over to the adult court, as well, without having
       another amenability hearing. And so we will not refer him to the
       Court Clinic at this time.


       {¶ 4} D.W. was subsequently bound over to the common pleas court and
indicted by the Cuyahoga County Grand Jury on one count each of burglary, theft,
vandalism, and criminal damaging and two counts of bribery. A jury acquitted
him of bribery, but found him guilty of the other charges. He was sentenced to
six years in prison and mandatory postrelease control.
       {¶ 5} The Eighth District Court of Appeals affirmed the decision. State
v. D.W., 8th Dist. No. 95750, 2011-Ohio-4096. In doing so, it concluded that “the
juvenile court first held a probable cause hearing but then never held an
amenability hearing.” Id. at ¶ 30. Without elaboration, the appellate court then
held that although the juvenile court did not conduct the amenability hearing,
D.W., “through his counsel, waived the amenability hearing.” Id. It concluded
that the juvenile court did not abuse its discretion in transferring the case to the
common pleas court. Id.
       {¶ 6} D.W. appealed, and we accepted the cause as a discretionary
appeal. State v. D.W., 130 Ohio St.3d 1493, 2011-Ohio-6556, 958 N.E.2d 956.
Two propositions of law are before us:




                                         3
                                SUPREME COURT OF OHIO




                 (1) The R.C. 2152.12(B)(3) amenability hearing cannot be
        waived.
                 (2) Waiver of the R.C. 2152.12(B)(3) amenability hearing
        before the juvenile court is not valid unless it is expressly stated on
        the record by the juvenile through his or her counsel, and the trial
        court must determine through a colloquy with the juvenile that the
        waiver is voluntarily, knowingly, and intelligently made.


                                        ANALYSIS
        A. A juvenile has a right to an amenability hearing to determine if
            the juvenile can remain within the juvenile justice system or
              be bound over to adult court, and pursuant to Juv.R. 3,1
            the juvenile may waive the right to the amenability hearing
                               1. The Juvenile Court Milieu
        {¶ 7} More than 40 years ago, the court recognized that juvenile courts
are “rooted in social welfare philosophy rather than in the corpus juris.” Kent v.
United States, 383 U.S. 541, 554, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). “The
juvenile courts were premised on profoundly different assumptions and goals than
a criminal court, United States v. Johnson (C.A.D.C.1994), 28 F.3d 151, 157
(Wald, J., dissenting), and eschewed traditional, objective criminal standards and
retributive notions of justice.” In re C.S., 115 Ohio St.3d 267, 274, 2007-Ohio-
4919, 874 N.E.2d 1177, ¶ 66. The objectives of the juvenile court “are to provide
measures of guidance and rehabilitation for the child and protection for society,
not to fix criminal responsibility, guilt and punishment.” Kent at 554.



         1. Juv.R. 3 was amended on July 1, 2012, 132 Ohio St.3d lxx. Because D.W.’s probable-
cause hearing took place in 2010, our references to this rule are to the former version, 69 Ohio
St.3d CXLVII, unless otherwise noted. As it pertains to D.W.’s issue before us, Juv.R. 3 has not
changed.




                                               4
                                January Term, 2012




       {¶ 8} The United States Supreme Court recently reiterated that juveniles
have “diminished culpability” and are therefore “ ‘less deserving of the most
severe punishments.’ ” Miller v. Alabama, __ U.S.__, 132 S.Ct. 2455, 2464, 183
L.Ed.2d 407 (2012), quoting Graham v. Florida, __ U.S.__, 130 S.Ct. 2011,
2026, 176 L.Ed.2d 825 (2010). Because of juveniles’ “ ‘lack of maturity and an
underdeveloped sense of responsibility,’ ” they “are more * * * susceptible to
negative influences and outside pressures, including peer pressure,” and their
characters are “not as well formed.” Roper v. Simmons, 543 U.S. 551, 569-570,
125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), quoting Johnson v. Texas, 509 U.S. 350,
367, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993).            Accordingly, the actions of
juveniles are less likely to be evidence of “irretrievably depraved character” than
are the actions of adults. Id. at 570. “From a moral standpoint it would be
misguided to equate the failings of a minor with those of an adult, for a greater
possibility exists that a minor’s character deficiencies will be reformed.” Id. See
also Miller, __ U.S.__, 132 S.Ct. 2455, 2464-2465, 183 L.Ed.2d 407, and fn. 5.
       {¶ 9} But in response to a rise in rates and severity of juvenile crime and
the belief that not all juveniles can be rehabilitated, in 1969, the General
Assembly enacted a statutory scheme that provides for some juveniles to be
removed from the juvenile courts’ authority. One such provision, R.C. 2152.12,
formerly R.C. 2151.26, Am.Sub.H.B. No. 320, 133 Ohio Laws, Part III, 2040,
2049-2050, is at issue in this appeal. That statute allows juvenile courts to
transfer certain juveniles to adult court to face criminal sanctions.
       {¶ 10} “Two types of transfer exist under Ohio’s juvenile justice system:
discretionary and mandatory.” State v. Hanning, 89 Ohio St.3d 86, 728 N.E.2d
1059 (2000). “Mandatory transfer removes discretion from judges in the transfer
decision in certain situations.” Id., see R.C. 2152.12(A). “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



                                          5
                             SUPREME COURT OF OHIO




within the juvenile system or appear to be a threat to public safety.” Id.; see R.C.
2152.12(B).
       {¶ 11} 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} An amenability hearing helps determine whether a juvenile who is
eligible for discretionary bindover will be transferred to adult court. A critical
stage of the juvenile proceedings, the hearing affects whether the juvenile faces a
delinquency adjudication, or adult criminal sanctions and the label “felon.” Kent,
383 U.S. at 560, 86 S.Ct. 1045, 16 L.Ed.2d 84.              Given the nature and
consequences of the amenability hearing, juvenile court judges are entrusted with
significant authority when conducting the hearings.
       {¶ 13} The role of parens patriae is not the juvenile court’s sole focus
during an amenability hearing. Procedural protections are vital.



                                          6
                                  January Term, 2012




       {¶ 14} “The State is parens patriae * * * [b]ut the admonition to function
in a ‘parental’ relationship is not an invitation to procedural arbitrariness.” Id. at
554-555. In Kent, the Supreme Court decided whether a juvenile court properly
waived jurisdiction over a juvenile before transferring him to criminal court. Id.
at 552. Before the transfer, the juvenile court judge did not hold a hearing and did
not confer with the juvenile, his counsel, or his parents. Id. at 546. The United
States Supreme Court held that “as a condition to a valid waiver order, [the
juvenile] was entitled to a hearing, including access by his counsel to the social
records and probation or similar reports which presumably are considered by the
court, and to a statement of reasons for the Juvenile Court’s decision” before
being transferred to the adult court for criminal prosecution. Id. at 557. It insisted
that the hearing “must measure up to the essentials of due process and fair
treatment,” id. at 562, including “constitutional principles relating to due process
and the assistance of counsel,” id. at 557.
       {¶ 15} Ten years later, in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18
L.Ed.2d 527 (1967), the United States Supreme Court again confirmed that a
juvenile court must recognize a juvenile’s due process rights. Gault held that
“neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.” Id.
at 13. That decision led the states, including Ohio, to look at the process they
used to adjudicate juveniles.


               In the wake of Gault and its progeny, we also found that
       “numerous constitutional safeguards normally reserved for
       criminal    prosecutions     are   equally   applicable   to   juvenile
       delinquency proceedings,” State v. Walls, 96 Ohio St.3d 437,
       2002-Ohio-5059, 775 N.E.2d 829, ¶ 26, and overruled prior
       decisions that held to the contrary, see In re Agler, 19 Ohio St.2d
       [70,] at 76, 48 O.O.2d 85, 249 N.E.2d 808 [(1969)].



                                           7
                             SUPREME COURT OF OHIO




In re C.S., 115 Ohio St.3d, 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 73.
       {¶ 16} One such constitutional safeguard that has been extensively
developed through our jurisprudence has been a juvenile’s right to counsel. See
id., paragraph two of the syllabus (a juvenile may waive the right to counsel); In
re Williams, 101 Ohio St.3d 398, 2004-Ohio-1500, 805 N.E.2d 1110, syllabus (a
juvenile who is the subject of a parental-rights termination has a statutory right to
counsel.
       {¶ 17} Today, we analyze another vital safeguard: the juvenile’s right to
an amenability hearing before being transferred from juvenile court to adult court.
                         2. The Relevant Statutory Scheme
       {¶ 18} The General Assembly codified the right to an amenability hearing
in discretionary bindovers in R.C. 2152.12(B). That statute provides,


               Except as provided in division (A) of this section, after a
       complaint has been filed alleging that a child is a delinquent child
       for committing an act that would be a felony if committed by an
       adult, the juvenile court at a hearing may transfer the case if the
       court finds all of the following:
               (1) The child was fourteen years of age or older at the time
       of the act charged.
               (2) There is probable cause to believe that the child
       committed the act charged.
               (3) The child is not amenable to care or rehabilitation
       within the juvenile system, and the safety of the community may
       require that the child be subject to adult sanctions. In making its
       decision under this division, the court shall consider whether the
       applicable factors under division (D) of this section indicating that



                                           8
                                January Term, 2012




       the case should be transferred outweigh the applicable factors
       under division (E) of this section indicating that the case should
       not be transferred. The record shall indicate the specific factors
       that were applicable and that the court weighed.


(Emphasis added.)
       {¶ 19} The right to a hearing is also set forth in our rules of procedure for
the juvenile courts. Pursuant to Juv.R. 30,


               (A) Preliminary hearing.
               In any proceeding where the court considers the transfer of
       a case for criminal prosecution, the court shall hold a preliminary
       hearing to determine if there is probable cause to believe that the
       child committed the act alleged and that the act would be an
       offense if committed by an adult. The hearing may be upon motion
       of the court, the prosecuting attorney, or the child.
               ***
               (C) Discretionary transfer.
               In any proceeding in which transfer of a case for criminal
       prosecution is permitted, but not required, by statute, and in which
       probable cause is found at the preliminary hearing, the court shall
       continue the proceeding for full investigation. The investigation
       shall include a mental examination of the child by a public or
       private agency or by a person qualified to make the examination.
       When the investigation is completed, an amenability hearing shall
       be held to determine whether to transfer jurisdiction. The criteria
       for transfer shall be as provided by statute.




                                          9
                             SUPREME COURT OF OHIO




(Emphasis added.)
       {¶ 20} The safeguard of a hearing is contained in the Revised Code and
Rules of Juvenile Procedure, and it is grounded in due process and other
constitutional protections. As the United States Supreme Court makes clear,
“there is no place in our system of law for reaching a result [the transfer of a
juvenile to adult court] of such tremendous consequences, without ceremony—
without hearing, without effective assistance of counsel, without a statement of
reasons.” Kent, 383 U.S. at 554, 86 S.Ct. 1045, 16 L.Ed.2d 84.
       {¶ 21} D.W. argues that by using “shall,” R.C. 2152.12(B)(3) and Juv.R.
30 require the juvenile court to perform an amenability hearing before
determining whether to transfer a juvenile from the juvenile court system to the
adult criminal system. We agree. We have no doubt that a juvenile’s right to an
amenability hearing, like a juvenile’s right to counsel, is compelled by federal due
process protections, Kent at 557, our statutory framework, R.C. 2152.12(B), and
our rules, Juv.R. 30. But in so holding, we also make clear that contrary to
D.W.’s assertions, the amenability hearing can be waived under Juv.R. 3.
       {¶ 22} D.W. contends that because Juv.R. 3 deals with the rights of the
child, but R.C. 2152.12 and Juv.R. 30 deal with the juvenile court’s duty to act as
parens patriae, the statute and the rule impose a duty upon the juvenile court that
cannot be waived by the juvenile.
       {¶ 23} Juv.R. 3 states that although a juvenile may not waive his right to
be represented by counsel at a Juv.R. 30 hearing, “[o]ther rights of a child may be
waived with permission of the court.” But the rule does not identify those “other
rights.” We must therefore determine whether “other rights” include the right to
an amenability hearing.
       {¶ 24} Even though “[t]here is a presumption against the waiver of
constitutional rights,” an individual can still waive his constitutional rights as long
as the waiver is made knowingly and intelligently and is an intentional



                                          10
                                January Term, 2012




relinquishment of a known right. Brookhart v. Janis, 384 U.S. 1, 4, 86 S.Ct.
1245, 16 L.Ed.2d 314 (1966). We hold similarly. See, e.g., In re C.S., 115 Ohio
St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 95, citing In re Gault, 387 U.S.
at 41-42, 87 S.Ct. 1428, 18 L.Ed.2d 527 (a “juvenile may waive his rights”).
       {¶ 25} It is important to note that pursuant to Juv.R. 3, juveniles may
waive their “other rights,” but only “with the permission of the court.” The
quoted language reflects the notion that the juvenile court must not abandon its
roles as parens patriae and protector of the due process rights of the juvenile.
Thus, the court must ensure that the juvenile’s waiver of the right to an
amenability hearing is made knowingly, intelligently, and intentionally and that it
is a voluntary relinquishment of a known right. By constructing the rule in this
manner, we reconcile, as we must, the parens patriae duty of the juvenile court
with the due process rights and autonomy of the juvenile.
       {¶ 26} We therefore hold that one of the “other rights” that may be
waived under Juv.R. 3 is the right to an amenability hearing.
       {¶ 27} We now turn to the manner in which any waiver of the amenability
hearing must take place and the standards that juvenile judges should follow in
determining whether the waiver is proper.
  B. For a juvenile to properly waive the right to an amenability hearing, the
waiver must be expressly stated on the record by the juvenile, through counsel,
   and the juvenile court must determine, through colloquy with the juvenile,
        that the waiver is made voluntarily, knowingly, and intelligently
       {¶ 28} Waiver is often presented in the context of right to counsel. In In
re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, we set forth the
requirements for a valid waiver of right to counsel, which have been incorporated
into the new Juv.R. 3. We conclude that the same reasoning applies here and
adopt a standard similar to that for waiver of the right to counsel for the waiver of
the right to an amenability hearing.



                                         11
                             SUPREME COURT OF OHIO




       {¶ 29} In In re C.S., we held:


               An effective waiver of the right to counsel by a juvenile
       must be voluntary, knowing, and intelligent.         State v. Gibson
       (1976), 45 Ohio St.2d 366, 74 O.O.2d 525, 345 N.E.2d 399,
       paragraph one of the syllabus. In a juvenile court proceeding in
       which the judge acts as parens patriae, the judge must scrupulously
       ensure that the juvenile fully understands, and intentionally and
       intelligently relinquishes, the right to counsel. Id. at paragraph two
       of the syllabus; * * * In re Manuel R., 207 Conn. [725,] 737-738,
       543 A.2d 719 [(1988)] (“It is now commonly recognized that
       courts should take ‘special care’ in scrutinizing a purported
       confession or waiver by a child”), citing Haley [v. Ohio], 332 U.S.
       [596,] 599, 68 S.Ct. 302, 92 L.Ed. 224 [(1948)].
               In the discharge of that duty, the judge is to engage in a
       meaningful dialogue with the juvenile. Instead of relying solely on
       a prescribed formula or script for engaging a juvenile during the
       consideration of the waiver, see Iowa v. Tovar (2004), 541 U.S. 77,
       88, 124 S.Ct. 1379, 158 L.Ed.2d 209, the inquisitional approach is
       more consistent with the juvenile courts’ goals, and is best suited
       to address the myriad factual scenarios that a juvenile judge may
       face in addressing the question of waiver.


Id. at ¶ 106-107.
       {¶ 30} The holding in In re C.S. was incorporated into the new Juv.R. 3,
which also addresses a juvenile’s right to waive counsel.
       {¶ 31} Juv.R. 3(D) now sets forth specific criteria that must be followed
in order for the waiver to be valid:



                                        12
                               January Term, 2012




               Any waiver of the right to counsel shall be made in open
       court, recorded, and in writing. In determining whether a child has
       knowingly, intelligently, and voluntarily waived the right to
       counsel, the court shall look to the totality of the circumstances
       including, but not limited to: the child’s age; intelligence;
       education; background and experience generally and in the court
       system specifically; the child’s emotional stability; and the
       complexity of the proceedings. The Court shall ensure that a child
       consults with a parent, custodian, guardian, or guardian ad litem,
       before any waiver of counsel. However, no parent, guardian,
       custodian, or other person may waive the child’s right to counsel.


       {¶ 32} Because the same underlying principles that we addressed
regarding the nature of juvenile courts in the context of a juvenile’s waiver of his
right to counsel are present in our analysis of a juvenile’s waiver of an
amenability hearing, we conclude that the holding in In re C.S. and the language
of Juv.R. 3 are persuasive and applicable to the standard that we adopt today.
       {¶ 33} Cognizant of the parens patriae duty of the juvenile court, the due
process rights of the juvenile, the General Assembly’s expression of public policy
in R.C. 2152.12, Juv.R. 3 and 30, and precedent, see, e.g., Kent and In re C.S., we
hold that in situations in which a juvenile is subject to discretionary transfer and
the juvenile wishes to waive the right to an amenability hearing, the juvenile court
must engage in a two-step process to determine the validity of the waiver.
       {¶ 34} First, before being transferred, the juvenile may waive the right to
an amenability hearing only if the waiver is expressly stated on the record and
through counsel.




                                        13
                             SUPREME COURT OF OHIO




       {¶ 35} The requirement that the juvenile expressly state on the record that
he or she is waiving the right to an amenability hearing demonstrates that the
waiver is an “ ‘ “intentional relinquishment or abandonment of a known right.” ’ ”
State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 31, quoting
United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508
(1993), quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed.
1461 (1938). The requirement that the juvenile requests the waiver on the record
also allows the juvenile court to fulfill its duty to protect the due process rights of
the juvenile.
       {¶ 36} Moreover, the child’s right to counsel is required by Juv.R. 3,
which provides that a child may not waive the right to be represented by counsel
at a transfer hearing conducted pursuant to Juv.R. 30. By requiring counsel to
enter the request, there can be no question that the child was represented as
required and no question that the juvenile has received “the assistance of counsel
to cope with problems of law.” Gault, 387 U.S. at 36, 87 S.Ct. 1428, 18 L.Ed.2d
527.
       {¶ 37} Second, the juvenile court must determine that the waiver is
offered knowingly, voluntarily, and intelligently.       Proper determination must
include a colloquy with the juvenile and must occur on the record. The colloquy
allows the juvenile court to fulfill its parens patriae duty by ensuring that the
juvenile fully understands and intentionally and intelligently relinquishes the right
to an amenability hearing. And it allows the judge “to engage in a meaningful
dialogue with the juvenile,” In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874
N.E.2d 1177, ¶ 107, to guarantee that the juvenile’s due process rights are
protected.
       {¶ 38} Additionally, by requiring the court to determine that the waiver is
made knowingly, voluntarily, and intelligently, we comport with the plain




                                          14
                                       January Term, 2012




language of Juv.R. 3, which states that rights of a child may be waived “with the
permission of the court.”
         {¶ 39} Finally, requiring that a meaningful colloquy between the juvenile
court and the juvenile occur on the record provides an additional due process
safeguard to protect the juvenile. It also is consistent with the language of R.C.
2152.12(B)(3), which states, “The record shall indicate the specific factors that
were applicable and that the court weighed” when deciding whether a child is
amenable to rehabilitation.
         {¶ 40} In fact, this case illustrates the problems that arise when waivers
are not clearly set forth on the record. There is no evidence in the record to
support a finding that D.W., either himself or through his counsel, waived his
right to an amenability hearing. The record lacks any meaningful discussion
about the amenability hearing. Absent an express statement on the record by
either D.W. or his counsel requesting waiver of his right to an amenability
hearing, we will not hold that D.W. waived this right.2
         {¶ 41} We recognize that the state argues that the amenability hearing was
properly waived and that the court of appeals agreed. However, based upon the
record before us, there is no indication of a proper waiver.



          2. We recognize the state’s argument that D.W.’s failure to object to the juvenile court’s
decision not to conduct an amenability hearing acts as a forfeiture and that he waives all but plain
error. We are not persuaded.
          Initially, we observe that the state did not raise the issue of waiver to the court of appeals
in response to D.W.’s appeal. It cannot present that claim here in the first instance. See, e.g.,
State v. Chinn, 85 Ohio St.3d 548, 565, 709 N.E.2d 1166 (1999) (party who failed to raise an issue
to the court of appeals waived his arguments); see also State v. Scudder, 71 Ohio St.3d 263, 268,
643 N.E.2d 524 (1994).
          Second, although the record in this case does not contain any objection by the defense to
the failure of the juvenile court to conduct an amenability hearing, and we will not presume that
any objection was made, we hold that D.W. timely raised this issue on appeal. See State v.
Douglas, 20 Ohio St.3d 34, 35, 485 N.E.2d 711 (1985) (juvenile who was transferred to adult
court, pled guilty to charges, and was subsequently convicted appealed convictions alleging that
the bindover proceeding was not proper).




                                                  15
                            SUPREME COURT OF OHIO




                                    C. Application
       {¶ 42} The two-step process we set forth today effectively balances the
parens patriae duty of the juvenile court with the juvenile’s due process rights
while comporting with the plain language of R.C. 2152.12, Juv.R. 3 and 30, and
our jurisprudence. We turn now to its application here.
       {¶ 43} At the outset, we address the state’s argument on implied waiver.
An implied waiver runs counter to the very idea of our definition of waiver: an
“intentional relinquishment or abandonment of a known right.” State v. Foster,
109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 31, quoting Johnson, 304
U.S. at 464, 58 S.Ct. 1019, 82 L.Ed. 1461. The record is devoid of any evidence
that D.W. or his counsel intentionally relinquished or abandoned his right to an
amenability hearing. There is no evidence that the juvenile knew he had a right to
an amenability hearing. The judge failed to recognize a need for further inquiry of
the juvenile as to whether he knowingly, intelligently, and voluntarily dispensed
with an amenability hearing.
       {¶ 44} Based on the language in the record, the juvenile court found that
an amenability hearing was not required, because he had found probable cause,
and D.W. had been bound over in a prior case. The state argues that it is
impractical to prevent a juvenile from waiving an amenability hearing after he has
already been found not to be amenable to the juvenile justice system. Again, we
must disagree.
       {¶ 45} Each case presented to the juvenile court must be assessed upon its
own merits. In State v. Adams, 69 Ohio St.2d 120, 431 N.E.2d 326 (1982), this
court held that once a juvenile is bound over, the juvenile is bound over for all
future felonies.   Id., syllabus.     However, the General Assembly expressly
overruled this holding as acknowledged in the legislative notes to R.C. 2151.011:




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                               January Term, 2012




                The General Assembly hereby declares that its purpose in
       enacting the language in division (B) of section 2151.011 and
       divisions (B) and (C) of section 2151.26 of the Revised Code that
       exists on and after the effective date of this act is to overrule the
       holding in State v. Adams (1982), 69 Ohio St.2d 120 [431 N.E.2d
       326], regarding the effect of binding a child over for trial as an
       adult.


(Emphasis added.) Am.Sub.H.B. No. 1, Section 3(B), 146 Ohio Laws, Part I, 1,
96.
       {¶ 46} In other words, in the wake of Adams, the General Assembly
prohibited juvenile courts from holding that once a juvenile has been bound over
to adult court, the juvenile will be bound over in all future felonies. We must
respect the right of the General Assembly to limit our holdings as long as the
constitution permits it do so. Here, the legislature acted within its role, and we
must give effect to legislative intent and ensure that our juvenile courts do so as
well. State v. Elam, 68 Ohio St.3d 585, 587, 629 N.E.2d 442 (1994). According
to statute then, a juvenile court cannot bind over a juvenile on the sole basis that
the juvenile has been previously bound over.
                                 CONCLUSION
       {¶ 47} We hold that an amenability hearing under R.C. 2152.12(B)(3)
may be waived provided (1) the juvenile, through counsel, expressly states on the
record a waiver of the amenability hearing and (2) the juvenile court engages in a
colloquy on the record with the juvenile to determine that the waiver was made
knowingly, voluntarily, and intelligently.
       {¶ 48} Here, the juvenile court failed to conduct an amenability hearing
before transferring D.W. to adult court, based upon the mistaken belief that a prior
bindover of the juvenile negated the need for an amenability hearing. The court



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thus never asked the juvenile whether he was waiving the hearing. Accordingly,
we reverse the judgment of the court of appeals and remand the cause to the
juvenile court for an amenability hearing, or proper waiver of it, consistent with
this opinion.
                                                               Judgment reversed
                                                             and cause remanded.
       PFEIFER, LUNDBERG STRATTON, LANZINGER, CUPP, and MCGEE BROWN,
JJ., concur.
       O’DONNELL, J., concurs in judgment only.
                             __________________
       Timothy McGinty, Acting Cuyahoga County Prosecuting Attorney, and
Daniel T. Van and Katherine Mullin, Assistant Prosecuting Attorneys, for
appellee.
       Robert L. Tobik, Cuyahoga County Public Defender, and Nathaniel J.
McDonald, Assistant Public Defender, for appellant.
       Timothy Young, Ohio Public Defender, and Jill Beeler, Assistant Public
Defender, urging reversal for amicus curiae, Ohio Public Defender.
                           ______________________




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