[Cite as State v. D.F., 2014-Ohio-1820.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :   JUDGES:
                                               :
                                               :   Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellee                      :   Hon. John W. Wise, J.
                                               :   Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :   Case Nos. 13-CA-31 & 13-CA-32
                                               :             Consolidated
D.F.                                           :
                                               :
                                               :
       Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Fairfield County Court
                                                   of Common Pleas, Juvenile Division,
                                                   Case Nos. 2012-DL-0326 & 2012-CR-
                                                   0484


JUDGMENT:                                          AFFIRMED



DATE OF JUDGMENT ENTRY:                            April 22, 2014




APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

GREGG MARX                                         WILLIAM J. HOLT
FAIRFIELD COUNTY PROSECUTOR                        P.O. Box 2252
                                                   2140 Granville Pike
ZOE A. LAMBERSON                                   Lancaster, OH 43130
239 W. Main St., Suite 101
Lancaster, OH 43130
Fairfield County, Case Nos. 13-CA-31 & 13-CA-32                                         2

Delaney, J.

       {¶1} Defendant-Appellant D.F. appeals the October 23, 2012 Transfer of

Jurisdiction and the March 5, 2013 Judgment Entry of Sentence.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} On September 9, 2012, Defendant-Appellant D.F. was being held at the

Multi-County Juvenile Detention Center in Fairfield County, Ohio. D.F. tampered with a

sprinkler head in his cell that caused the full activation of the sprinkler system. The

activation of the sprinkler system required the Lancaster Fire Department to respond to

the Multi-County Juvenile Detention Center and caused a three-hour evacuation of the

juveniles housed in the area.

       {¶3} D.F.’s date of birth is May 5, 1995.

       {¶4} On September 24, 2012, Plaintiff-Appellee State of Ohio filed a complaint

in the Fairfield County Court of Common Pleas, Juvenile Division, alleging that D.F. was

a delinquent child by virtue of committing acts that would be the offense of one count of

vandalism, a felony of the fifth degree in violation of R.C. 2909.05(B)(1)(a), if the acts

were committed by an adult. The State also filed a Motion to Transfer Jurisdiction to the

General Division of the Fairfield County Court of Common Pleas for criminal

prosecution.

       {¶5} On October 19, 2012, the juvenile court held a probable cause hearing. At

the time of the hearing, D.F. was 17 ½ years old. D.F. was represented by counsel at

the hearing. A guardian ad litem had also been appointed for D.F. Counsel for D.F.

stated at the hearing that D.F. received a copy of the complaint. Counsel met with D.F.

and discussed the State’s request that he be bound over to the General Division of the
Fairfield County, Case Nos. 13-CA-31 & 13-CA-32                                         3


Common Pleas Court. (T. 3). Counsel also discussed the matter with D.F. in the

presence of his GAL. (T. 3). Counsel stated that D.F. indicated his desire to waive the

probable cause hearing and stipulate there was probable cause on the vandalism

charge. (T. 3). D.F. also wanted to waive the mental health evaluation and consented to

a finding that he was not amenable to the juvenile system. (T. 3). The GAL stated she

believed D.F.’s waiver was knowing and voluntary. (T. 4). The juvenile court also

questioned D.F. about his decisions to waive the probable cause hearing, the mental

health evaluation, and any further investigation into his background and juvenile record

for purposes of the amenability hearing. (T. 5, 6).

       {¶6} The State recited the facts for the basis of the complaint. The juvenile

court again inquired whether D.F. was stipulating there was probable cause to believe

that D.F. committed the offense. D.F. responded that he was so stipulating. (T. 11). The

juvenile court found D.F. knowingly and voluntarily stipulated to the probable cause of

vandalism and that he was 17 years of age. (T. 12).

       {¶7} The juvenile court moved directly to the amenability hearing. The State

argued the juvenile court has used many different resources to try to rehabilitate D.F.

D.F. has been on probation with the juvenile court since July 12, 2007. He has been in

foster care, spent days in detention, attended counseling services, placed in the Perry

County CRC program, completed the LABOR program, attended alternative school, and

spent six months in the Department of Youth Services. (T. 13). The State argued D.F.

did not utilize the services to any reasonable degree. (T. 14). D.F.’s parole officer also

recommended that D.F. be transferred to the General Division. (T. 14).
Fairfield County, Case Nos. 13-CA-31 & 13-CA-32                                        4


      {¶8} The juvenile court found D.F. was not amenable to the care or

rehabilitation in any facility for the care, supervision and rehabilitation of delinquent

children and that the safety of the community might require that D.F. be placed under

legal constraint beyond the age of majority. (T. 20). The trial court transferred D.F. to

the General Division for further proceedings.

      {¶9} On October 23, 2012, the juvenile court journalized its findings. It found

D.F. was older than 14 years old at the time of the acts charged and there was probable

cause to believe D.F. committed the acts charged. It next determined, pursuant to the

factors found in R.C. 2152.12, the applicable factors outweighed the factors against

transfer. The juvenile court ordered D.F. be transferred to the General Division for

prosecution for one count of vandalism.

      {¶10} D.F. was indicted on one count of vandalism in violation of R.C.

2909.05(B)(1)(b), a felony of the fifth degree. On February 22, 2013, the common pleas

court held the sentencing hearing. D.F. pleaded no contest to the charge. By judgment

entry filed March 5, 2013, the common pleas court found D.F. guilty. It sentenced D.F.

to a prison term of nine months. The court suspended the prison term for a 24-month

period of community control.

      {¶11} It is from these judgments D.F. now appeals.

                               ASSIGNMENTS OF ERROR

      {¶12} D.F. raises two Assignments of Error:

      {¶13} “I. THE JUVENILE WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL.
Fairfield County, Case Nos. 13-CA-31 & 13-CA-32                                         5


       {¶14} “II. THE TRIAL COURT FAILED [TO] COMPLY WITH OHIO REVISED

CODE §§ 2152.12(B)(3), AND SUCH FAILURE WAS A DENIAL OF DUE PROCESS

AND PREJUDICIAL.”

       {¶15} D.F. also filed a notice of appeal for the March 5, 2013 judgment entry of

the Fairfield County Court of Common Pleas, General Division, sentencing D.F. to nine

months in prison, suspended. D.F. has not raised any Assignments of Error as to that

judgment. We therefore will not address the March 5, 2013 judgment entry pursuant to

App.R. 16 and App.R. 12.

                                       ANALYSIS

                     I. INEFFECTIVE ASSISTANCE OF COUNSEL

       {¶16} D. F. argues in his first Assignment of Error that he was denied effective

assistance of trial counsel. We disagree.

       {¶17} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-

prong test. Initially, a defendant must show that trial counsel acted incompetently. See,

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such

claims, “a court must indulge a strong presumption that counsel's conduct falls within

the wide range of reasonable professional assistance; that is, the defendant must

overcome the presumption that, under the circumstances, the challenged action ‘might

be considered sound trial strategy.’“ Id. at 689, citing Michel v. Louisiana, 350 U.S. 91,

101, 76 S.Ct. 158 (1955). “There are countless ways to provide effective assistance in

any given case. Even the best criminal defense attorneys would not defend a particular

client in the same way.” Strickland, 466 U.S. at 689. The question is whether counsel

acted “outside the wide range of professionally competent assistance.” Id. at 690. The
Fairfield County, Case Nos. 13-CA-31 & 13-CA-32                                        6


defendant may prove counsel’s conduct was deficient by identifying acts or omissions

that were not the result of reasonable professional judgment. The court must then

determine whether, in light of all the circumstances, the identified acts or omissions

were outside the wide range of professionally competent assistance. Strickland, 466

U.S. at 690.

      {¶18} Even if a defendant shows that counsel was incompetent, the defendant

must then satisfy the second prong of the Strickland test. Under this “actual prejudice”

prong, the 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, 466 U.S. at 694.

      {¶19} D.F. argues his trial counsel was ineffective because his counsel failed to

advocate on his behalf. He states that his counsel abdicated to his desires to waive the

probable cause hearing and to consent to the finding that he was not amenable to

rehabilitation in the juvenile system. He further contends his GAL failed to inquire

whether waiver was in D.F.’s best interest.

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

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

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

2151.23(A). Under certain circumstances, however, the juvenile court has the duty to

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

2152.10 and 2152.12. When the state requests a mandatory bindover, the juvenile court

determines whether the child is eligible for mandatory bindover according to the child's

age, the nature of the act, and other circumstances, and whether probable cause exists
Fairfield County, Case Nos. 13-CA-31 & 13-CA-32                                            7


to believe that the juvenile committed the act charged. R.C. 2152.10(A) and

2152.12(A)(1); Juv.R. 30(A). If the child is eligible for mandatory bindover and if

probable cause exists to believe that the juvenile did commit the acts charged, the only

procedural step remaining is for the court to enter the order of transfer. Juv.R. 30(B).

       {¶21} In the present case, the State requested a discretionary bindover. When

the state requests a discretionary bindover, the juvenile court must also determine the

age of the child and whether probable cause exists to believe that the juvenile

committed the act charged. In re M.P., 2010-Ohio-599, ¶ 12 citing R.C. 2152.10(B) and

2152.12(B)(1) and (2). If probable cause exists and the child is eligible by age, the

juvenile court must then continue the proceeding for a full investigation. Id. citing 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. Id. citing Juv.R. 30(C); R.C. 2152.12(B),

(C), (D), and (E).

       {¶22} The Ohio Supreme Court has applied the abuse of discretion standard of

review for discretionary bindover proceedings. In re A.J.S., 120 Ohio St.3d 185, 2008-

Ohio-5307, 897 N.E.2d 639, ¶ 39.

       {¶23} D.F. argues his trial counsel’s performance was deficient because she

failed to engage in the adversarial process. A review of the record shows that the

performance of D.F.’s trial counsel was not deficient considering the circumstances of

D.F.’s expressed desire to waive the proceedings.
Fairfield County, Case Nos. 13-CA-31 & 13-CA-32                                        8


       {¶24} Present at the transfer proceedings on October 19, 2012 were D.F., the

State’s trial counsel, D.F.’s trial counsel, D.F.’s GAL, D.F.’s mother, D.F.’s probation

officer, and a representative of the Department of Youth Services. D.F.’s trial counsel

stated on the record that she discussed the State’s motion to transfer with D.F. D.F.’s

GAL was present for the discussion. The GAL stated on the record that she believed

D.F.’s desire to waive the proceedings was knowingly and voluntary. The juvenile court

explained to D.F. the hearing process and repeatedly questioned D.F. whether it was

his desire to waive the proceedings. At every stage of the proceeding, D.F. stated he

wished to waive the proceedings and be transferred to adult court.

       {¶25} The record in this case does not support a finding that the performance of

D.F.’s trial counsel was deficient. Further, there was no prejudice to D.F. to the extent

that the resolution of the proceeding would have been different but for trial counsel’s

performance.

       {¶26} D.F.’s first Assignment of Error is overruled.

                        II. R.C. 2152.12 – The Transfer Factors

       {¶27} D.F. argues in his second Assignment of Error that the trial court failed to

comply with the requirements of R.C. 2152.12(B)(3). He states the juvenile court did

not specifically state the factors it considered to determine whether to transfer D.F. to

adult court.

       {¶28} R.C. 2152.12(B)(3) reads:

       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
Fairfield County, Case Nos. 13-CA-31 & 13-CA-32                                         9


       court shall consider whether the applicable factors under division (D) of

       this section indicating that 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.

       {¶29} 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.
Fairfield County, Case Nos. 13-CA-31 & 13-CA-32                                         10


       (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.

       {¶30} 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.
Fairfield County, Case Nos. 13-CA-31 & 13-CA-32                                        11


      (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.

      {¶31} In its October 23, 2012 judgment entry, the juvenile court stated:

      Based upon the criteria in §2152.12 of the Ohio Revised Code the Court

      finds there are reasonable grounds to believe the following:

            (1) [D.F.] is not amenable to care or rehabilitation within the juvenile

            system.

            (2) The safety of the community may require that [D.F.] be

            subjected to adult sanctions.

            (3) Pursuant to Ohio Revised Code §2152.12(D), the Court

            specifically finds the following facts in favor of a transfer:

                   (a) At the time of the act charged, the Juvenile was under a

                   community control sanction for a prior delinquent child

                   adjudication for Disorderly Conduct,

                   (b) The results of any previous juvenile sanctions and

                   programs indicate that rehabilitation of the child will not

                   occur in the juvenile system,

                   (c) There is not sufficient time to rehabilitate the child within

                   the juvenile system.

            (4) Pursuant to Ohio Revised Code §2152.12(E), the Court fails to

            find one factor which would argue against the transfer.
Fairfield County, Case Nos. 13-CA-31 & 13-CA-32                                           12


       {¶32} Our review of the juvenile court’s October 23, 2012 judgment entry finds

the juvenile court did consider the factors under R.C. 2152.12(D) and 2152.12(E). The

juvenile court specifically stated the factors that it found weighed in favor of transferring

D.F. to adult court. The juvenile court could find no factors to weigh against transferring

D.F. to adult court. Based on our review of the record, we find no abuse of discretion for

the trial court to determine the relevant factors under R.C. 2152.12 weighed in favor of

transferring D.F. to adult court.

       {¶33} D.F.’s second Assignment of Error is overruled.

                                      CONCLUSION

       {¶34} The judgments of the Fairfield County Court of Common Pleas are

affirmed.

By: Delaney, J.,

Gwin, P.J. and

Wise, J., concur.
