In re M.H.

2024 Ohio 1062

• Court: Ohio Court of Appeals
• Decided: March 21, 2024
• Docket: 112727
• Status: Published

Opinion

[Cite as In re M.H., 2024-Ohio-1062.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

IN RE M.H, : : No. 112727 A Minor Child :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 21, 2024

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL-21-109879

Appearances:

Elizabeth Miller, Ohio Public Defender, and Timothy B. Hackett, Assistant State Public Defender, for appellant.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Kevin E. Bringman, Assistant Prosecuting Attorney, for appellee.

KATHLEEN ANN KEOUGH, A.J.:

In this delayed appeal, M.H. contends that he was deprived of his

right to the effective assistance of counsel in juvenile court when his attorneys

entered an open plea to a discretionary serious youth offender (“SYO”) sentence.

For the reasons that follow, this court finds that M.H. was not deprived of his right

to the effective assistance of counsel. I. Procedural History

In November 2021, the state filed a 14-count complaint in Cuyahoga

County Juvenile Court charging then 13-year-old M.H. with aggravated murder,

murder, attempted murder, felonious assault, and discharge of a firearm on or near

prohibited premises. All counts contained one- and three-year firearm

specifications and a discretionary serious youth offender (“SYO”) specification. The

charges arose from an incident where two groups of young males engaged in a verbal

altercation on a public street that escalated into M.H. fatally shooting the 13-year-

old victim in the back. Video surveillance recorded the murder.

A. Arraignments — Juvenile Complaint and True Bill Indictment

On November 21, 2021, M.H. appeared in juvenile court with counsel

and his parents for arraignment on the juvenile complaint. The magistrate

explained that the SYO specification attached to each charge subjected M.H. to a

“blended sentence.” The magistrate thoroughly explained the legislative intent

behind the SYO specification and then explained that under this “blended sentence”

M.H., if found delinquent of the offenses, would receive a juvenile commitment, but

would also be subject to an adult sentence if invoked by the court following his

juvenile commitment. The magistrate then explained each of the 14 charges and the

penalties associated with each charge, including the maximum juvenile

commitment and adult sentence. M.H. was further advised of his rights under both

Crim.R. 5 and Juv.R. 29. Counsel entered a denial to the juvenile complaint on

behalf of M.H. The magistrate noted that although M.H. did not have any prior

adjudications, he had two other pending cases. The magistrate set a $1 million bond.

Subsequently on November 12, 2021, and in accordance with R.C.

2152.13(A)(3), the state obtained a true bill indictment charging M.H. with the same

14 counts and specifications as charged in the juvenile complaint — aggravated

murder, murder, attempted murder, felonious assault, and discharge of a firearm

on or near prohibited premises. Each count also contained one- and three-year

firearm specifications and a discretionary SYO specification.

On May 31, 2022, M.H. appeared with new counsel and his parents

for arraignment on the true bill indictment. After the magistrate explained the

nature of the offenses, M.H.’s rights, and the potential juvenile commitment and

adult sentences, M.H. entered a denial of all charges. M.H. remained detained at

the juvenile detention facility.

B. Adjudication Hearing

On August 25, 2022, M.H. appeared in juvenile court with counsel

and his parents. The parties notified the court that they had reached a plea

agreement. In open court, M.H. acknowledged that by entering into the plea

agreement, he waived certain rights afforded to him because of the SYO

specification, including the right to a speedy trial, jury trial, and preliminary hearing.

He also executed written waivers of those rights.

The prosecutor set forth the plea agreement that M.H. would admit

to (1) Count 2, murder, including the discretionary SYO specification and the three- year firearm specification; (2) Count 4, discharge of a firearm on or near prohibited

premises, including the discretionary SYO specification and the three-year firearm

specification; and (3) Count 7, attempted murder, including the discretionary SYO

specification and the three-year firearm specification. In exchange, the state agreed

to dismiss the one-year firearm specification in Counts 2, 4, and 7, and further

dismiss the remaining counts, including the aggravated murder charge. The

prosecutor advised the court that the plea agreement was reduced to writing and set

forth all potential penalties, including the possibility of a blended sentence. Counsel

for M.H. agreed with the state’s recitation of the agreement. M.H. and his attorney

signed the plea agreement.

The trial court advised M.H. of his Juv.R. 29 and Crim.R. 11 rights “as

this could be a blended sentence. Meaning one in the Juvenile System, one in the

Adult System.” (Tr. 10.) M.H. acknowledged that he understood that by entering

the admissions outlined in the plea agreement he waived certain constitutional

rights, which the court outlined for him. The court advised M.H. of the potential

penalties associated with the plea agreement — a maximum juvenile term until the

age of 21, and “because this is a discretionary SYO, meaning that I have the ability

to impose what they call juvie life up to 21. * * * I also have the ability to impose adult

penalties and sanctions, meaning I can sentence you to the Lorain Correctional

[Institution “LCI”] as an adult * * * the adult sentence for murder is 15 to life.” (Tr.

16.) M.H. stated that he understood the potential penalties. The record demonstrates that the trial court thoroughly explained to

M.H. the penalties associated with violating the adult portion of the sentence if that

part of the sentence was invoked after serving his juvenile commitment. At no time

did M.H. or his attorney stipulate that the court would in fact impose the

discretionary SYO specification, i.e., a blended sentence. Thereafter, M.H. admitted

to Counts 2, 4, and 7 as set forth in the written plea agreement,1 and the trial court

adjudicated M.H. delinquent. M.H. was referred to the probation department, and

the matter was scheduled for a disposition hearing.

C. Disposition Hearing

On September 21, 2022, M.H. appeared in court with both of his

attorneys and his parents for disposition.2 Jack Treadway, an investigative

probation officer, provided the court with his presentence-investigation report,

including a finding that M.H. scored in “the upper range of the moderate range for

possible recidivism.” (Tr. 10.) Treadway reported about M.H.’s family background,

his educational history, and traumatic events that occurred in his childhood. He

also provided information about M.H.’s medications and diagnoses. Treadway

stated that M.H. expressed remorse for his involvement and wished to apologize to

both the victim’s family and his own family.

1 Following M.H.’s admissions to those counts, the state dismissed two pending

cases against M.H., Cuyahoga J.C. Nos. DL-21-101938 (grand theft, breaking and entering, and criminal damaging) and DL-22-103513 (attempted murder and felonious assault). (Tr. 24.)

2 M.H. entered a denial on another case, Cuyahoga J.C. No. DL-22-108594 (assault), prior to disposition in the current case. The prosecutor presented the trial court with the facts of the case,

including that the shooting was recorded by surveillance video. He said that M.H.

discharged a firearm on a busy street, shooting at a group of 13-, 14-, and 15-year-

olds. He said that the first shot did not strike anyone, but the second shot struck the

13-year-old victim in the back as he attempted to walk away. The prosecutor

characterized the shooting as a “purposeful murder.” (Tr. 12.) According to the

prosecutor, during the pendency of this case, his office discovered that M.H. was

involved in another shooting in May 2021, at a local recreation center. Accordingly,

the state requested that the trial court impose a disposition of a blended sentence —

“the maximum sentence of the juvenile portion of this sentence up to his 21st

birthday, and then also an [adult] sentence on the SYO of 18 years to life.” (Tr. 13.)

The victim’s father spoke at the disposition hearing, explaining the

impact of his son’s death on him and his family. He expressed to the court and M.H.

that he “hope[d] you get the 18 years to life because you got a murder under your

belt now.” (Tr. 16.)

M.H.’s attorneys provided the court with mitigation information,

including that M.H. suffers from PTSD and depression due to the traumatic event

of his brother’s murder. Counsel stated that M.H. never received counseling to cope

with this loss, but rather, the loss consumed him to the point that he lost all sense of

focus and belonging. (Tr. 21.) Counsel further advised the court that M.H. was

currently in counseling, with the hope of being a productive member of society.

Counsel stated that M.H. is remorseful and understands that he cannot change places with the victim nor can he change that his actions caused the death of the

victim. M.H. then apologized to the victim’s family, stating that he “did the wrong

thing [and that he] was scared too.” (Tr. 23.)

The trial court imposed a juvenile disposition commitment to the

Ohio Department of Youth Services (“ODYS”) until his 21st birthday. With respect

to the discretionary SYO specification, the trial court, after making a finding

pursuant to R.C. 2152.13(D)(2)(a)(i), chose to impose the discretionary SYO

sentence. The court ordered an aggregate adult sentence of 15 years to life, plus

three years on the firearm specification, for a total adult sentence of 18 years to life.

The court advised M.H. that the adult portion of the sentence would be stayed

pending the completion of his juvenile commitment. The trial court thoroughly

explained to M.H. that if he violated the terms of his juvenile commitment or

engaged in inappropriate conduct, then the adult sentence could be invoked and he

would serve 18 years to life in LCI. The court stated:

[M.H.], what you have to understand right now, and get this through your head, is that your behavioral [sic] is your key.

I’m a little concerned. You have two new cases that we’ll deal with, but if your behavior in the Detention Center, and [your attorney] has got up and said, you know, you gotta follow the rules, well, you’re not following them.

So take a look at your dad, your mom and your family and take a look at these folks over here. You’ve gotta follow the rules.

If you don’t follow the rules, you will be back in front of me and trust me, folks, the [victim’s] family, I will send him to 18 years to [LCI] without batting an eye, without losing any sleep. What you did and what I saw is unforgivable. It’s unfathomable. It’s disturbing. * * * [b]ut for you in the middle of the day on Broadway Avenue with cars driving by, how * * * nobody else got hit by that first bullet is a miracle.

And you’re lucky that you were only [13] at the time of this. Otherwise, you’d be downtown being bound over as an adult.

But again, I can sit here all day and tell you why I imposed this sentence. What I’m gonna tell you is that you have to follow the rules.

(Tr. 29-30.)

II. The Appeal

This court granted M.H. a delayed appeal, and he raises the following

assignment of error:

Then 13-year-old M.H. was deprived of his right to the effective assistance of counsel in juvenile court when counsel, without risk of bindover and in exchange only for a future hypothetical benefit, entered an open plea to a discretionary SYO sentence, entailing a mandatory sentence of life in adult prison, and a “juvenile life” sentence in DYS. Fifth and Fourteenth Amendments to the U.S. Constitution; Article I, Section 16 of the Ohio Constitution.

The Sixth Amendment to the United States Constitution guarantees

an accused juvenile the same rights to effective assistance of counsel as an adult

criminal defendant. In re A.A.W., 8th Dist. Cuyahoga No. 101580, 2015-Ohio-1297,

¶ 33, citing In re Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). To

establish ineffective assistance of counsel, a defendant must show that counsel’s

representation was deficient because it “fell below an objective standard of

reasonableness” and “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

State v. Sanders, 94 Ohio St.3d 150, 151, 2002-Ohio-350, 761 N.E.2d 18, citing Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). The failure to prove either prong of this two-part test makes it unnecessary

for a court to consider the other prong. State v. Madrigal, 87 Ohio St.3d 378, 389,

721 N.E.2d 52 (2000), citing Strickland at 697. In evaluating a claim of effective

assistance of counsel, a reviewing court must be mindful that there are countless

ways for an attorney to provide effective assistance in a case, and it must give great

deference to counsel’s performance. Strickland at 689.

M.H. contends that his attorneys were ineffective because (1) they

agreed to the SYO specification in the plea agreement, and (2) did not present any

mitigating evidence or advocate against the imposition of the discretionary SYO

specification. We disagree and find no deficiency in counsel’s performance nor any

prejudice to M.H.

M.H. first contends that he was not subject to any adult sentence until

his attorneys advised him to enter into a plea agreement that involved an “agreed

SYO.” He states that because the SYO specification was discretionary, the “SYO

imposition was subject to worthwhile challenge.” (Appellants Reply Brief, p. 1.) This

argument is confusing and misinterprets the plea agreement.

The state charged M.H. in a 14-count true bill indictment with each

count containing a discretionary SYO specification. M.H. was only subject to a

discretionary SYO specification because of his age at the time of the offense. See

R.C. 2152.11 (13-year-old juveniles at the time of the offense only subject to

discretionary SYO). Whether he went to trial or entered into a plea agreement, M.H. was always subject to a potential adult sentence based on the indictment. The only

scenario in which M.H. would not have been subject to a potential adult sentence is

if a trier of fact acquitted him on the underlying indictment or if the state decided to

dismiss the specification.

M.H.’s attorneys negotiated a plea agreement with the state in which

M.H. would admit to three counts of the 14-count indictment, including the

discretionary SYO specification attendant to each count. In exchange, the state

would dismiss the remaining nine counts, including the most serious offense of

aggravated murder, which carried a possible adult sentence of up to 30 years to life

in prison. Accordingly, M.H.’s attorneys minimized his potential exposure in adult

prison by 15 years.

Contrary to M.H.’s suggestion, the plea agreement did not include any

stipulation or agreement by M.H. that the trial court would impose the SYO

specification; it remained discretionary. Compare In re J. R. R., 9th Dist. Summit

No. 23784, 2008-Ohio-1380 (juvenile stipulated to trial court’s imposition of SYO

specification, thus waiving any challenge to the trial court’s lack of statutory

findings). Accordingly, M.H.’s counsel were not deficient in advising him to accept

the plea agreement because it did not eliminate the trial court’s obligation to

determine whether to impose the discretionary SYO specification.

M.H. also contends that his counsel’s representation fell below an

objective standard of reasonableness because they did not present any mitigating evidence during disposition or advocate against the imposition of the discretionary

SYO. The record does not support his argument.

The record before this court reveals that the trial court considered

statements by the state, the victim’s family, both defense attorneys, and M.H. The

court also considered the presentence-investigation report prepared by Treadway

and his assessment that M.H. fell into the moderate range of recidivism. The court

heard the aggravating circumstances surrounding the murder, including M.H.

shooting on a busy city street and fatally striking the 13-year-old victim in the back.

The court’s statements alluded that it viewed the surveillance video that recorded

the murder. Additionally, the court noted that M.H. had additional cases pending

and was already not following the rules in the juvenile detention facility during the

pendency of this case. As a result, the court found, as required prior to imposing a

discretionary SYO,

given the nature and circumstances of the violation and the history of the child, the length of time, level of security, and types of programming and resources available in the juvenile system alone are not adequate to provide the juvenile court with a reasonable expectation that the purposes set forth in section 2152.01 of the Revised Code will be met.

(Tr. 25.) See R.C. 2152.13(D)(2)(a)(i).

Accordingly, we find that M.H. has failed to demonstrate that the

outcome of the proceedings would have been different had his attorneys provided

additional mitigation evidence or advocated more strongly against the imposition of

the discretionary SYO specification for this court to find that he received ineffective

assistance of counsel. The assignment of error is overruled. Judgment affirmed.

It is ordered that appellee recover from appellant 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, juvenile division, to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

MICHELLE J. SHEEHAN, J., and LISA B. FORBES, J., CONCUR