[Cite as State v. Jackson, 2020-Ohio-80.]

                           IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                    :       APPEAL NOS. C-180159
                                                                       C-180209
      Plaintiff-Appellee,                         :       TRIAL NO. B-1704100

   vs.                                            :          O P I N I O N.

JASERE JACKSON,                                   :

      Defendant-Appellant.                        :




Criminal Appeals From: Hamilton County Court of Common Pleas

Judgment Appealed From Is:                  Affirmed in Part, Reversed in Part, and Cause
                                            Remanded

Date of Judgment Entry on Appeal: January 15, 2020



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Roger W. Kirk, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS




MYERS, Judge.

       {¶1}    Defendant-appellant Jasere Jackson appeals his convictions for five

counts of aggravated robbery. In four assignments of error, Jackson argues that it

was error to transfer jurisdiction of his case from the Hamilton County Juvenile

Court to the court of common pleas, that the trial court erred in the imposition of

sentence, that he was denied the effective assistance of counsel, and that the trial

court erred by failing to award him the correct amount of jail-time credit.

       {¶2}   The state concedes that the trial court did not correctly determine the

amount of jail-time credit to which Jackson is entitled. We accordingly remand the

case for the trial court to calculate and award Jackson the appropriate amount of jail-

time credit, but otherwise affirm the trial court’s judgment.


                        Factual and Procedural Background


       {¶3}   Between March 8, 2016, and January 31, 2017, various complaints

were filed in the Hamilton County Juvenile Court alleging that Jackson had

committed acts which, if committed by an adult, would have constituted the offense

of trafficking in marijuana, a felony of the fifth degree, and five separate offenses of

aggravated robbery, all felonies of the first degree. Each complaint for aggravated

robbery contained two firearm specifications. The aggravated-robbery offenses were

subject to a mandatory bindover, while the trafficking-in-marijuana offense was

subject to a discretionary bindover.

       {¶4}    The state filed a motion for relinquishment of jurisdiction for all

offenses. On April 26, 2017, the juvenile court issued an entry finding probable

cause that Jackson had committed the aggravated-robbery offenses.             The entry




                                               2
                     OHIO FIRST DISTRICT COURT OF APPEALS



acknowledged that Jackson had waived a hearing on probable cause, and that both

the state and Jackson had stipulated to probable cause.

       {¶5}   The juvenile court issued another entry pertaining to all offenses on

July 12, 2017, finding probable cause that Jackson had committed the charged

offenses of trafficking in marijuana and aggravated robbery. The entry stated that

Jackson had waived both a hearing on probable cause and an amenability hearing,

and that the waiver was made knowingly, voluntarily and intelligently. And although

it was not necessary for the aggravated-robbery offenses (because they involved a

mandatory bindover), the juvenile court weighed the statutory factors for and against

a transfer of jurisdiction and found that Jackson was not amendable to rehabilitation

within the juvenile system. The juvenile court ordered transfer of Jackson’s case to

adult court for criminal prosecution.

       {¶6}   Jackson was indicted in the Hamilton County Court of Common Pleas

on five counts of aggravated robbery, each with two accompanying firearm

specifications, five counts of robbery, and one count of trafficking in marijuana. He

pled guilty to five counts of aggravated robbery, each with an accompanying firearm

specification. All remaining counts and specifications were dismissed.

       {¶7}   The state and Jackson asked the trial court to impose an agreed

sentence of eight years in prison. The trial court accepted the agreed recommended

sentence. It sentenced Jackson to six years in prison for each count of aggravated

robbery, to be served concurrently. It further imposed a one year prison term for two

of the firearm specifications. These specifications were to be served consecutively to

each other and to the six years for the underlying offenses. All other specifications

were merged for sentencing purposes, resulting in an aggregate sentence of eight

years in prison. The trial court awarded Jackson 223 days of jail-time credit.




                                              3
                      OHIO FIRST DISTRICT COURT OF APPEALS



                                 Transfer of Jurisdiction


       {¶8}   In his first assignment of error, Jackson argues that the juvenile court

erred by transferring jurisdiction of his case to the court of common pleas.

       {¶9}   While the juvenile court has exclusive jurisdiction over complaints

alleging that a juvenile is delinquent for committing offenses that would be crimes if

committed by an adult, R.C. 2152.10 provides for the mandatory transfer of certain

cases to adult court for criminal prosecution. State v. Cockrell, 2016-Ohio-5797, 70

N.E.3d 1168, ¶ 7 (1st Dist.). One circumstance in which the juvenile court must

transfer jurisdiction of a case to adult court is where the juvenile has committed a

category two offense, was 16 years of age or older at the time of the offense, and

either of the following apply:

       (a) The child previously was adjudicated a delinquent child for

       committing an act that is a category one or a category two offense and

       was committed to the legal custody of the department of youth services

       on the basis of that adjudication[; or]

       (b) The child is alleged to have had a firearm on or about the child’s

       person or under the child’s control while committing the act charged

       and to have displayed the firearm, brandished the firearm, indicated

       possession of the firearm, or used the firearm to facilitate the

       commission of the act charged.

R.C. 2152.10(A)(2).

       {¶10} The aggravated-robbery offenses that Jackson was convicted of were
subject to mandatory transfer under this statute. Jackson was 17 years old at the

time that the offenses were committed. The offense of aggravated robbery is a

category two offense. Cockrell at ¶ 7; R.C. 2152.02(BB)(1). And the complaints filed

in juvenile court alleged that Jackson had a firearm on or about his person or under



                                                 4
                       OHIO FIRST DISTRICT COURT OF APPEALS



his control while committing the offenses, and that he displayed the firearm,

brandished the firearm, indicated that he possessed the firearm, or used the firearm

to facilitate the offense.

       {¶11} To transfer a case to adult court pursuant to this mandatory-transfer
provision, the juvenile court must find probable cause that the juvenile has

committed a qualifying offense. Cockrell at ¶ 8. In reviewing a juvenile court’s

probable-cause determination, we employ a mixed standard of review. We must

defer to the juvenile court’s findings regarding witness credibility, but we review de

novo the court’s legal conclusion that the state presented sufficient evidence to

demonstrate probable cause that the juvenile committed the charged offenses. Id. at

¶ 9; In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 51.

       {¶12} Here, Jackson twice waived a probable-cause hearing and stipulated to
the existence of probable cause that he had committed the charged offenses. With

respect to the waiver and stipulation that occurred on July 12, 2017, the juvenile

court specifically found that the waiver was made knowingly, voluntarily, and

intelligently. Jackson does not argue otherwise. Under these circumstances, the

juvenile court did not err in relinquishing jurisdiction and transferring the

aggravated-robbery offenses to adult court for criminal prosecution. See State v.

J.T.S., 10th Dist. Franklin No. 14AP-516, 2015-Ohio-1103, ¶ 33 (where the juvenile’s

waiver of a probable-cause hearing and stipulation of probable cause was knowing,

intelligent, and voluntary, the juvenile court did not err in accepting the stipulation

and transferring the case to adult court); State v. Talbott, 7th Dist. Mahoning No. 07

MA 225, 2008-Ohio-6300, ¶ 27 (transfer from juvenile court to adult court was

proper where the juvenile knowingly and voluntarily agreed to waive the probable-

cause hearing and stipulated to probable cause); State v. Pruitt, 11th Dist. Trumbull

No. 2001-T-0121, 2002-Ohio-7164, ¶ 49 (the juvenile’s waiver of the preliminary

bindover hearing was essentially a stipulation that there was probable cause).


                                              5
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶13} Jackson further argues under this assignment of error that Ohio’s
mandatory-transfer scheme set forth in R.C. 2152.10 and 2152.12 violates his rights

to procedural and substantive due process and that an amenability hearing should be

required in every case before a transfer of jurisdiction to adult court. But as Jackson

concedes, the Ohio Supreme Court recently considered and rejected these same

arguments in State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883.

       {¶14} We hold that the juvenile court did not err in transferring jurisdiction
of Jackson’s case to adult court, and we overrule the first assignment of error.


                                      Sentencing


       {¶15} In his second assignment of error, Jackson argues that the trial court
erred as a matter of law by imposing an improper sentence.

       {¶16} As set forth above, the trial court imposed an agreed sentence of eight
years in prison that had been jointly recommended by Jackson and the state.

Pursuant to R.C. 2953.08(D)(1), “[a] sentence imposed upon a defendant is not

subject to review under this section if the sentence is authorized by law, has been

recommended jointly by the defendant and the prosecution in the case, and is

imposed by a sentencing judge.” We thus have no jurisdiction to review the sentence

unless it was “not authorized by law.”

       {¶17} While acknowledging that the trial court imposed a jointly-
recommended sentence, Jackson argues that the trial court imposed consecutive

sentences without making the necessary findings, and consequently that the

aggregate sentence imposed was not authorized by law and is subject to appellate

review under R.C. 2953.08. Jackson’s argument is without merit.

       {¶18} R.C. 2953.08(D)(1) bars appeal of agreed sentences that include non-
mandatory consecutive sentences, even if the trial court does not make findings



                                               6
                     OHIO FIRST DISTRICT COURT OF APPEALS



under R.C. 2929.14(C)(4). State v. Sergent, 148 Ohio St.3d 94, 2016-Ohio-2696, 69

N.E.3d 627, ¶ 29. Such a sentence is “authorized by law.” Id.

       {¶19} The nonreviewable nature of the sentence is even stronger here where
the agreed sentence included mandatory consecutive sentences for the firearm

specifications. The consecutive portion of the agreed sentence is not only authorized

by law, it is mandated.

       {¶20} Even if the agreed sentence is reviewable, the trial court was not
required to make consecutive-sentencing findings pursuant to R.C. 2929.14(C) in

this case. The trial court was required to impose a sentence for at least two of the

firearm   specifications   that   Jackson   was    convicted   of   pursuant   to   R.C.

2929.14(B)(1)(g), and it was required to make those sentences consecutive to each

other and to the sentences imposed for aggravated robbery pursuant to R.C.

2929.14(C)(1)(a). See State v. Pompey, 1st Dist. Hamilton No. C-150479, 2016-Ohio-

4610, ¶ 7. Where the imposition of consecutive sentences is mandatory, the trial

court is not required to make consecutive-sentencing findings. See State v. James,

2015-Ohio-4987, 53 N.E.3d 770, ¶ 46 (8th Dist.).

       {¶21} Jackson further argues that the trial court failed to inform him of the
following at sentencing: that he would be required to submit to DNA testing as a

result of his felony convictions; that he had the right to earn jail-time credit; and

that, pursuant to R.C. 2929.19(B)(2)(f), he would be required to submit to random

drug testing while incarcerated and should not ingest or be injected with a drug of

abuse. But as Jackson concedes, we have previously considered and rejected these

arguments. See State v. Taylor, 1st Dist. Hamilton No. C-150488, 2016-Ohio-4548.

       {¶22} The jointly-recommended agreed sentence imposed by the trial court
was authorized by law and is not subject to appellate review.          We accordingly

overrule Jackson’s second assignment of error.




                                              7
                     OHIO FIRST DISTRICT COURT OF APPEALS



                                Ineffective Assistance


       {¶23} In his third assignment of error, Jackson argues that he received
ineffective assistance from his trial counsel. He specifically argues that counsel was

ineffective for stipulating to probable cause and waiving the probable-cause and

amenability hearings during the bindover process.          He argues that counsel’s

deficiencies prevented a proper record from being made for this court to determine

whether a transfer of jurisdiction to adult court was proper.

       {¶24} We only consider Jackson’s arguments concerning                 counsel’s

stipulation to probable cause and waiver of the probable-cause hearing, as Jackson

was convicted of offenses that were subject to a mandatory transfer of jurisdiction

and the juvenile court was not required to conduct an amenability hearing.

       {¶25} Counsel will not be considered ineffective unless her or his
performance was deficient and caused actual prejudice to the defendant. Strickland

v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Counsel’s performance

will only be deemed deficient if it fell below an objective standard of reasonableness.

Strickland at 688; Bradley at 142.     A defendant is only prejudiced by counsel’s

performance if there is a reasonable probability that the outcome of the proceeding

would have been different but for the deficient performance.             Strickland at

694; Bradley at 142. A reviewing court must indulge a presumption that counsel’s

behavior fell within the acceptable range of reasonable professional assistance.

Strickland at 689; Bradley at 142.

       {¶26} Even if counsel could be considered deficient for stipulating to
probable cause and waiving the probable-cause hearing, Jackson suffered no

resulting prejudice because the record contains no indication that the state lacked

sufficient evidence to prove his guilt or that the juvenile court would not have found



                                              8
                      OHIO FIRST DISTRICT COURT OF APPEALS



probable cause that Jackson had committed the charged offenses. After his case was

transferred to adult court, Jackson was indicted on five counts of aggravated robbery

with accompanying weapon specifications, to which he ultimately pled guilty. In

J.T.S, 10th Dist. Franklin No. 14AP-516, 2015-Ohio-1103, at ¶ 52, the Tenth District

considered a similar argument and found that counsel was not ineffective for

allowing the defendant to stipulate to probable cause in a bindover proceeding. The

court held that “given the operative facts of the case as recited by the prosecutor,

there is nothing in the record to suggest that a hearing would have yielded a different

result.” Id.; see Pruitt, 11th Dist. Trumbull No. 2001-T-0121, 2002-Ohio-7164, at ¶

60 (“Even if defense counsel had not waived the preliminary bindover hearing and

the state was required to produce evidence of probable cause, there is no indication

that the state’s evidence would fall short concerning appellant’s alleged role in the

crime.”).

       {¶27} Jackson suffered no prejudice from counsel’s stipulation to probable
cause and waiver of the probable-cause hearing. We hold that counsel did not render

ineffective assistance, and overrule the third assignment of error.


                                    Jail-Time Credit


       {¶28} In his fourth assignment of error, Jackson argues that the trial court
erred in failing to award him the correct amount of jail-time credit. He contends that

the trial court failed to give him credit for time spent in a juvenile detention facility

awaiting transfer to adult court.

       {¶29} Relying on R.C. 2967.191(A), which provides, as relevant to this
appeal, that the prison term of an offender shall be reduced by the total number of

days the offender was confined in a juvenile facility, the state concedes the error.




                                               9
                           OHIO FIRST DISTRICT COURT OF APPEALS



           {¶30} The trial court was required to calculate and include in the sentencing
entry the appropriate amount of jail-time credit. State v. Bowden, 1st Dist. Hamilton

No. C-140462, 2015-Ohio-3740, ¶ 17; former R.C. 2929.19(B)(2)(g).1 It committed

plain error by failing to award Jackson credit for time spent in a juvenile facility prior

to his criminal indictment. See Bowden at ¶ 18.                The fourth assignment of error is

sustained.


                                             Conclusion


           {¶31} We reverse the trial court’s award of jail-time credit and remand this
case for the trial court to calculate and award Jackson the appropriate amount of jail-

time credit. The judgment of the trial court is otherwise affirmed.

                         Judgment affirmed in part, reversed in part, and cause remanded.



MOCK, P.J., and WINKLER, J., concur.




Please note:

           The court has recorded its own entry on the date of the release of this opinion.




1   We apply the version of the statute in effect at the time that Jackson committed his offenses.


                                                       10
