[Cite as State v. Martin, 2016-Ohio-7764.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.       27789

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
ALEXIS MARTIN                                        COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 2013 11 3167

                                 DECISION AND JOURNAL ENTRY

Dated: November 16, 2016



        MOORE, Judge.

        {¶1}     Defendant, Alexis Martin, appeals from the judgment of the Summit County

Court of Common Pleas. This Court affirms.

                                                I.

        {¶2}     In 2013, complaints were filed in the Summit County Juvenile Court alleging Ms.

Martin to be a delinquent child based upon her alleged involvement in a planned burglary, where

two victims were shot, and one of the victims suffered fatal injuries. Ms. Martin waived her

right to a probable cause hearing in the juvenile court, and the case proceeded to an amenability

hearing on the State’s motion for the juvenile court to relinquish jurisdiction. The juvenile court

found that Ms. Martin was not amenable to rehabilitation in the juvenile justice system, and the

court transferred the case to the general division of the Summit County Court of Common Pleas

(“the trial court”). Ms. Martin was indicted on several charges in the trial court, to which she

initially pleaded not guilty.
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       {¶3}     Ms. Martin filed a motion to stay proceedings in the trial court and she filed a

motion to vacate the bindover as void, citing R.C. 2152.021(F), as support for both motions. Ms.

Martin claimed that the Juvenile Court’s purported failure to consider R.C. 2152.021(F) deprived

the trial court of jurisdiction. The trial court denied these motions. Thereafter, Ms. Martin

changed her pleas to guilty on the charges of murder, with a firearm specification, and felonious

assault. At the change of plea hearing, the defense renewed its “jurisdiction[al]” argument, with

the understanding that the argument would be raised on appeal. The trial court then dismissed

the remaining charges and specifications upon the request of the prosecutor. In a journal entry

dated March 30, 2015, the trial court imposed an aggregate sentence of twenty-one years to life

imprisonment.

       {¶4}     Ms. Martin timely appealed from the sentencing entry, and she now presents two

assignments of error for our review. We have consolidated the assignments of error to facilitate

our discussion.

                                                II.

                                 ASSIGNMENT OF ERROR I

       THE JUVENILE COURT COMMITTED PLAIN ERROR AS A MATTER OF
       LAW AND/OR ABUSED ITS DISCRETION IN ORDERING A BINDOVER
       OF [MS.] MARTIN TO THE COMMON PLEAS COURT FOR DISPOSITION
       AS AN ADULT IN DISREGARD OF THE PROVISIONS OF R.C.[
       ]2152.021(F).

                                 ASSIGNMENT OF ERROR II

       [MS.] MARTIN’S CONVICTIONS WERE VOID AB[ ]INITIO FOR LACK OF
       SUBJECT MATTER JURISDICTION.

       {¶5}     In her first assignment of error, Ms. Martin argues that the juvenile court abused

its discretion or committed plain error in failing to consider the provisions of R.C. 2152.021(F).
                                                 3


In her second assignment of error, Ms. Martin contends that the trial court lacked jurisdiction

because the juvenile court failed to abide by R.C. 2152.021(F).

       {¶6}    R.C. 2152.021(F), on which both assignments of error are based, provides:

       (1) At any time after the filing of a complaint alleging that a child is a delinquent
       child and before adjudication, the court may hold a hearing to determine whether
       to hold the complaint in abeyance pending the child’s successful completion of
       actions that constitute a method to divert the child from the juvenile court system
       if the child agrees to the hearing and either of the following applies:

       (a) The act charged would be a violation of section 2907.24, 2907.241, or 2907.25
       of the Revised Code if the child were an adult.

       (b) The court has reason to believe that the child is a victim of a violation of
       section 2905.32 of the Revised Code, regardless of whether any person has been
       convicted of a violation of that section or of any other section for victimizing the
       child, and the act charged is related to the child’s victimization.

       (2) The prosecuting attorney has the right to participate in any hearing held under
       division (F)(1) of this section, to object to holding the complaint that is the subject
       of the hearing in abeyance, and to make recommendations related to diversion
       actions. No statement made by a child at a hearing held under division (F)(1) of
       this section is admissible in any subsequent proceeding against the child.

       (3) If either division (F)(1)(a) or (b) of this section applies, the court shall
       promptly appoint a guardian ad litem for the child. The court shall not appoint the
       child's attorney as guardian ad litem. If the court decides to hold the complaint in
       abeyance, the guardian ad litem shall make recommendations that are in the best
       interest of the child to the court.

       (4) If after a hearing the court decides to hold the complaint in abeyance, the court
       may make any orders regarding placement, services, supervision, diversion
       actions, and conditions of abeyance, including, but not limited to, engagement in
       trauma-based behavioral health services or education activities, that the court
       considers appropriate and in the best interest of the child. The court may hold the
       complaint in abeyance for up to ninety days while the child engages in diversion
       actions. If the child violates the conditions of abeyance or does not complete the
       diversion actions to the court's satisfaction within ninety days, the court may
       extend the period of abeyance for not more than two additional ninety-day
       periods.

       (5) If the court holds the complaint in abeyance and the child complies with the
       conditions of abeyance and completes the diversion actions to the court’s
       satisfaction, the court shall dismiss the complaint and order that the records
       pertaining to the case be expunged immediately. If the child fails to complete the
                                                  4


        diversion actions to the court’s satisfaction, the court shall proceed upon the
        complaint.

R.C. 2152.021(F).

        {¶7}    Here, at the amenability hearing, the juvenile court stated that Ms. Martin had

been a victim of human trafficking, and the juvenile court inquired from the parties as to what

effect this should have on the proceedings. Neither the trial court, nor the parties, explicitly

referenced R.C. 2152.021(F) during this discussion, and the juvenile court did not reference R.C.

2152.021(F) in its order finding Ms. Martin not amenable to rehabilitation in the juvenile system.

Based upon these facts, Ms. Martin premises her assignments of error on the argument that the

trial court did not consider R.C. 2152.021(F). She argues in her first assignment of error that the

juvenile court erred in failing to consider R.C. 2152.021(F), and in her second assignment of

error that this failure on the part of the juvenile court deprived the trial court of jurisdiction. We

will first address the issue of jurisdiction.

        {¶8}    “The juvenile court has the exclusive original jurisdiction over a person under

eighteen years of age [who] allegedly commits an act that would be a felony if committed by an

adult.” (Internal quotations and citation omitted.) State v. Smith, 9th Dist. Summit No. 26804,

2015-Ohio-579, ¶ 14. “[I]n 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.” Id. at ¶ 14, quoting State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544, ¶ 9. The

Ohio Supreme Court has held that, without a proper bindover procedure, a juvenile court’s

jurisdiction is exclusive and cannot be waived. State v. Wilson, 73 Ohio St.3d 40, (1995),

paragraphs one and two of the syllabus; Gaskins v. Shiplevy, 74 Ohio St.3d 149, 151, 1995-Ohio-

262; see also Wells Fargo Bank, N.A. v. Horn, 142 Ohio St.3d 416, 2015-Ohio-1484, ¶ 8, fn. 1
                                                5


(noting as an example of a lack of subject matter jurisdiction that a common pleas court lacks

jurisdiction over a juvenile matter when there is no proper bindover proceeding for a juvenile

offender in juvenile court, and noting that, in such a case, any conviction obtained in the

common pleas court is void ab initio).

       {¶9}    “There are two types of transfers from juvenile court to the court of common

pleas: discretionary and mandatory.”      Smith at ¶ 15, citing D.W. at ¶ 10; R.C. 2152.10.

“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.” Smith at ¶ 15, quoting D.W. at ¶

10. “Before the court may exercise its discretion in transferring a case to common pleas, it must

conduct a hearing and consider certain factors for and against the transfer[]” as contained in R.C.

2152.12(B). Smith at ¶ 15.

       {¶10} After a bindover from juvenile court pursuant to R.C. 2152.12(A) or (B), R.C.

2152.12(I) provides that “[t]he transfer abates the jurisdiction of the juvenile court with respect

to the delinquent acts alleged in the complaint, and, upon the transfer, all further proceedings

pertaining to the act charged shall be discontinued in the juvenile court, and the case then shall

be within the jurisdiction of the court to which it is transferred as described in division (H) of

section 2151.23 of the Revised Code.” R.C. 2151.23(H) provides that, “[i]f a child who is

charged with an act that would be an offense if committed by an adult was fourteen years of age

or older and under eighteen years of age at the time of the alleged act and if the case is

transferred for criminal prosecution pursuant to section 2152.12 of the Revised Code, except as

provided in section 2152.121 of the Revised Code, the juvenile court does not have jurisdiction
                                                 6


to hear or determine the case subsequent to the transfer.        The court to which the case is

transferred for criminal prosecution pursuant to that section has jurisdiction subsequent to the

transfer to hear and determine the case in the same manner as if the case originally had been

commenced in that court, subject to section 2152.121 of the Revised Code, including, but not

limited to, jurisdiction to accept a plea of guilty or another plea authorized by Criminal Rule 11 *

* *.”

        {¶11} Here, this case involved a discretionary transfer, and Ms. Martin makes no

argument that the trial court failed to comply with the relevant bindover provisions contained in

R.C. 2152.12. See State v. Legg, 4th Dist. Pickaway No. 14CA23, 2016-Ohio-801, ¶ 31, fn. 3

(where appellant’s dispute pertained to whether the juvenile’s probable cause finding was

correct, because probable cause is a necessary predicate for transfer, reviewing court construed

the jurisdictional requirement of a “proper bindover procedure” to include the probable cause

determination); see also Wilson, 73 Ohio St.3d at 44 (where juvenile was never brought before a

juvenile court, and, accordingly, no transfer proceeding was conducted, common pleas court

lacked jurisdiction). Because Ms. Martin’s assignments of error do not allege a failure of the

trial court to follow the transfer provisions contained in R.C. 2152.12, we are not persuaded that

the alleged error of the juvenile court in failing to consider R.C. 2152.021(F), deprived the trial

court of jurisdiction. See Legg at ¶ 31, fn. 3; see also R.C. 2151.23(H), (I) (transfer order issued

under R.C. 2152.12 transfers exclusive jurisdiction to the court in which the case was

transferred). Accordingly, Ms. Martin’s second assignment of error is overruled.

        {¶12} With respect to whether the trial court’s purported failure to consider R.C.

2152.021(F) constituted error, as argued in Ms. Martin’s first assignment of error, as we noted in

our recitation of the facts above, Ms. Martin pleaded guilty pursuant to a plea agreement. “This
                                                 7


Court has explained that ‘[a] defendant who enters a plea of guilty waives the right to appeal all

nonjurisdictional issues arising at prior stages of the proceedings, although [s]he may contest the

constitutionality of the plea itself.’”     Smith, 2015-Ohio-579, at ¶ 25, quoting State v.

Quarterman, 9th Dist. Summit No. 26400, 2013-Ohio-3606, ¶ 4, quoting State v. Atkinson, 9th

Dist. Medina No. 05CA0079-M, 2006-Ohio-5806, ¶ 21. Compare with Wilson, 73 Ohio St.3d at

46 (“The issue of a court’s subject matter jurisdiction cannot be waived. A party’s failure to

challenge a court’s subject matter jurisdiction cannot be used, in effect, to bestow jurisdiction on

a court where there is none.”).

       {¶13} Prior to entering her plea, Ms. Martin indicated that she was renewing her motion

to dismiss or vacate, based on “subject matter jurisdiction grounds[,]” and she then indicated that

there was an “understanding that that matter [would] be taken up on appeal.” There is no

indication that we can discern that Ms. Martin was induced to plead guilty on the understanding

that she could appeal aspects of the juvenile court’s actions except insofar as they relate to the

jurisdiction of the trial court, and Ms. Martin makes no argument in her merit brief that she was

so induced. See Smith at ¶ 25-26, and Legg at ¶ 12-13 (Appellant, who pleaded guilty following

transfer from juvenile court to common pleas court, waived right to challenge the juvenile

court’s failure to appoint a guardian ad litem where such error was not argued to be jurisdictional

or to have rendered his plea unknowing, unintelligent, or involuntary.).          Accordingly, we

conclude that Ms. Martin’s argument as contained in her first assignment of error, which pertains

to error on the part of the Juvenile Court, independent from her argument pertaining to the

jurisdiction of the trial court, was waived through her guilty plea. Her first assignment of error is

overruled on that basis.
                                                 8


                                                III.

       {¶14} Ms. Martin’s assignments of error are overruled. The judgment of the trial court

is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.



                                                       CARLA MOORE
                                                       FOR THE COURT

CARR, P. J.
HENSAL, J.
CONCUR.

APPEARANCES:

JEFFREY N. JAMES, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
