State v. Harden

2022 Ohio 1436

• Court: Ohio Court of Appeals
• Decided: April 27, 2022
• Docket: 21CA2
• Status: Published

Opinion

[Cite as State v. Harden, 2022-Ohio-1436.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT PICKAWAY COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : Case No. 21CA2

v. :

JEREMY HARDEN, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

________________________________________________________________

APPEARANCES:

Abigail Christopher, Assistant State Public Defender, Columbus, Ohio, for appellant. 1

Judy C. Wolford, Pickaway County Prosecuting Attorney, and Justin B. Benedict, Pickaway County Assistant Prosecuting Attorney, for appellee. ________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:4-27-22 ABELE, J.

{¶1} This is an appeal from a Pickaway County Common Pleas

Court judgment of conviction and sentence imposed upon Jeremy

Harden, defendant below and appellant herein, after the Pickaway

County Common Pleas Court, Juvenile Division, determined that

appellant is not amenable to treatment within the juvenile

1 Different counsel represented appellant during the trial court proceedings. PICKAWAY, 21CA2

system.

{¶2} Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

“THE JUVENILE COURT COMMITTED PLAIN ERROR WHEN IT IMPROPERLY DECIDED THAT JEREMY WAS NOT AMENABLE TO TREATMENT IN THE JUVENILE SYSTEM BASED ON FACTORS OUTSIDE OF JEREMY’S CONTROL.”

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FOUND THAT JEREMY WAS NOT AMENABLE TO TREATMENT WHEN THE GOVERNMENT DID NOT PRESENT CLEAR AND CONVINCING EVIDENCE TO SUPPORT THIS CLAIM.”

THIRD ASSIGNMENT OF ERROR:

“THE JUVENILE COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO WEIGH ALL DISPOSITIONAL OPTIONS PROVIDED BY STATUTE, INCLUDING A SERIOUS YOUTHFUL OFFENDER DISPOSITION.”

FOURTH ASSIGNMENT OF ERROR:

“JEREMY WAS DEPRIVED OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS TRIAL COUNSEL. [SIC]”

{¶3} In 2019, the Pickaway County Prosecutor’s Office filed

a complaint in juvenile court that alleged appellant, nearly 18

years of age at the time, to be delinquent for having committed

the offense of attempted aggravated murder in violation of R.C.

2923.02(A)/2903.01(A). The complaint also contained a firearm

specification. 3 PICKAWAY, 21CA2

{¶4} The juvenile court later found probable cause to

believe that appellant, age 17 years old at the time, did commit

the offense. Because the court also found that R.C. 2152.12

mandated a transfer of the case to the general division of the

common pleas court, the juvenile court transferred the case to

the court’s general division. Subsequently, a Pickaway County

Jury returned an indictment that charged appellant with one

count of attempted aggravated murder, in violation of R.C.

2923.02(A)/2903.01(A), with a firearm specification.

{¶5} The state eventually filed a bill of information that

charged appellant with felonious assault, in violation of R.C.

2903.11(A)(1), along with a firearm specification. In exchange

for appellant’s agreement to plead guilty to the bill of

information, the state dismissed the attempted aggravated murder

charge along with the specification. The trial court found

appellant guilty of felonious assault and sentenced him (1) to

serve six to nine years in prison for the felonious assault

charge, and (2) to serve three years in prison for the firearm

specification. The court also ordered the prison terms to be

served consecutively to one another.

{¶6} Pursuant to R.C. 2152.121(B)(1), the common pleas

court also found that the offense involved, felonious assault,

would have subjected appellant to a discretionary transfer, 4 PICKAWAY, 21CA2

rather than a mandatory transfer, if the state initially had

alleged appellant delinquent for committing the offense of

felonious assault rather than the offense of attempted

aggravated murder. Consequently, the court stayed the sentence

and remanded the matter to the juvenile court.

{¶7} On remand, the state (1) filed a R.C. 152.121(B)(3)(b)

motion to object to the imposition of an R.C. 2152.13(D)(1)

serious youthful offender (SYO) dispositional sentence, and (2)

asked the court to hold a hearing to determine whether appellant

is amenable to treatment within the juvenile system.

{¶8} On November 25, 2020, the juvenile court held a

hearing to consider whether appellant is amenable to treatment

in the juvenile system, or whether the juvenile court should

return the case to the common pleas court. At the hearing the

state indicated that it intended to rely upon the evidence the

parties presented during the September 2019 probable cause

hearing and it did not intend to call additional witnesses. The

court asked appellant whether he had any objection to the court

taking judicial notice of the evidence presented at the probable

cause hearing, and he stated he did not.

{¶9} The state also asked the trial court to admit into

evidence a 13-minute phone call between appellant and another

individual. The state suggested that, during the conversation, 5 PICKAWAY, 21CA2

appellant “makes several statements” that “have value in this

matter,” including (1) threats against “his co-conspirators” and

the prosecutor, and (2) “some statements” about failing to abide

by the court’s no-contact order. The prosecutor asserted that

appellant’s statements would be relevant to determine “whether

he’s willing to actually participate in any counseling or

treatment that would be available in the Juvenile system,” and

would help the court to determine whether appellant poses a risk

to “the public safety at large.”

{¶10} Appellant, however, asserted that the statements he

made during the call depict one particularly frustrating moment

in time and, if the court admits the recording into evidence,

the court should also consider the circumstances under which

appellant made those statements.

{¶11} The trial court stated that it would listen to the

recording and decide whether to admit the recording into

evidence. The state repeated that it did not have any testimony

to present and informed the court that it did not object to the

court considering two reports: one from the probation

department, and one from Clinical Psychologist Dr. James Hagen.2

2 The amenability hearing transcript indicates that Dr. Hagen’s first name is “Michael.” Dr. Hagen signed his report with the first name “James.” This opinion uses the name that appears in Dr. Hagen’s report. 6 PICKAWAY, 21CA2

Appellant stipulated that the court may consider the two

reports.

{¶12} At the hearing, Dr. Hagen described appellant’s

forensic psychological evaluation. Part of the evaluation

involved administering an adverse childhood experiences (ACE)

questionnaire. Hagen explained that the ACE questionnaire lists

ten factors that evaluate whether an individual experienced any

(1) physical, sexual, or emotional abuse, (2) neglect, (3)

violence in the home, (4) mental illness in the home, and (5)

substance abuse in the home. Hagen testified that the more

adverse experiences a child has endured, the more likely the

child develops “psychiatric problems or substance use disorders

in their adult years.” Hagen testified that appellant

“experienced seven of the ten” events listed in the ACE

questionnaire.

{¶13} Dr. Hagen further opined that appellant is amenable to

treatment within the juvenile system and sufficient time remains

to treat appellant within the juvenile system. Hagen indicated

that appellant has “intellectual capabilities to benefit from

intensive treatment” and that he believes appellant “has a

motivation to change.” Hagen related that he based his position

that adequate time remained to treat appellant within the

juvenile systems on the understanding that appellant would have 7 PICKAWAY, 21CA2

three years available for rehabilitation within the juvenile

system and, if appellant receives trauma informed therapy, he

could be rehabilitated.

{¶14} On cross-examination, the prosecutor asked Dr. Hagen

whether he holds the same opinion that sufficient time remains

to rehabilitate appellant within the juvenile system with

appellant over age 19, and with one year and nine months within

the juvenile system. Hagen stated that he believes appellant

has adequate time to be rehabilitated within the juvenile

system. The prosecutor also asked Hagen about the success-

failure rate of trauma informed therapy for individuals with

appellant’s background, and Hagen stated he “would just pick a

number arbitrarily” and “would say three out of four * * *

individuals who have available the appropriate therapy would

benefit from it.” He believes that “the probability is very

high that [appellant] would indeed benefit from that form of

treatment.”

{¶15} After Dr. Hagen’s testimony, the trial court allowed

each party to present a closing argument. The prosecutor argued

that insufficient time remained to rehabilitate appellant within

the juvenile system (one year and nine months). The prosecutor

further argued that the R.C. 2152.12(D) factors favor a transfer

to the common pleas court’s general division. The prosecutor 8 PICKAWAY, 21CA2

did, however, recognize Hagen’s opinion that appellant is

amenable to treatment in the juvenile system, but also asked the

court to listen to the recording of appellant’s phone call. The

prosecutor suggested that the recording would help to refute

Hagen’s opinion that appellant is willing and able to

participate in rehabilitative treatment. During this call,

appellant admitted that he violated the court’s no-contact

orders and also threatened the prosecutor’s and appellant’s co-

conspirators’ lives. The prosecutor thus argued that

appellant’s statements indicate that he is unwilling or unable

to change.

{¶16} Appellant, however, asserted that adequate time

remained for his rehabilitation within the juvenile system and

that he is indeed willing and able to change his behavior.

{¶17} On December 8, 2020, the trial court determined that

system. In explaining its rationale, the court summarized the

evidence offered at the probable cause hearing:

[Appellant] joined some of his friends to confront another young adult about selling bogus drugs to the other friend. [Appellant] took a firearm with him. At the confrontation, [appellant] pointed the gun at the forehead of the victim, who then engaged in a struggle with [appellant]. Upon swiping the gun away from his forehead, the weapon discharged and the victim suffered a laceration on his forehead. [Appellant] and his 9 PICKAWAY, 21CA2

friends fled from the scene. The victim did not suffer permanent injuries.

{¶18} The trial court indicated that it also considered

appellant’s phone call, the amenability report, and Dr. Hagen’s

report. The court noted that the amenability report states that

appellant (1) “does not appear to have any mental illness,” and

(2) previously received sex offender counseling, as well as

“counseling involving frustration tolerance, substance use and

anger management,” (3) received “some post release counseling

through Scioto Paint Valley Mental Health,” (4) “is a frequent

marijuana user and has progressed to other illicit substances.”

The court rejected Hagen’s opinion that sufficient time remained

to rehabilitate appellant within juvenile court. In so doing,

the court pointed out that case law provides that a trial court

need not always accept an expert witness’s opinion.

Furthermore, court observed that, at the time of the offense,

appellant “was just three months shy of turning eighteen” and

nineteen years and three months of age at the time of the

court’s amenability decision. The court also quoted language

from a Third District case:

the premeditation by the child, the callousness displayed by the child in the commission of this offense, and the severity of the crime charged provides the Court with NO reasonable assurance of public safety for the community if this child were to remain in the juvenile system. 10 PICKAWAY, 21CA2

State v. Everhardt, 3rd Dist. Hancock No. 5-17-25, 2018-Ohio-

1252, ¶ 14.

{¶19} After review, the trial court found that several R.C.

2152.12(D) factors weighed in favor of transfer to the common

pleas court, and only one R.C. 2152.12(E) factor weighed against

transfer. Specifically, R.C. 2152.12(D)(1), (3), (5), (8), and

(9) weighed in favor of transfer and only R.C. 2152.12(E)(5)

weighed against transfer. The court thus found “that the State

has proven that the juvenile is not amenable to rehabilitation

and that the jurisdiction of this court should be relinquished

and transferred to the General Division for further

prosecution.” On December 29, 2020, the common pleas court

ordered appellant’s sentence to be executed. This appeal

followed.

I

{¶20} In his first assignment of error, appellant asserts

that the trial court plainly erred by determining that he is not

amenable to treatment within the juvenile system. Appellant

alleges, in essence, that the trial court violated his due

process right to a fundamentally fair amenability hearing by

considering his age at the time of the amenability hearing, 11 PICKAWAY, 21CA2

rather than considering his age at the time of the probable

cause hearing.

{¶21} Appellant also observes that his initial charge

involved the offense of attempted aggravated murder, which

requires a mandatory bindover to the common pleas court’s

general division, and, approximately one year later, he entered

a guilty plea to the offense of felonious assault that does not

require a mandatory bindover. Appellant asserts that, because

the court held an amenability hearing one and one-half years

after his initial charge, the state’s initial decision to charge

him with an offense that requires a mandatory bindover caused

appellant to lose that time within the juvenile system. He thus

claims that because the loss of time “is one of the main

reasons” the trial court concluded that appellant is not

amenable to treatment within the juvenile system, the trial

court should not have considered the time that elapsed between

the date of the initial charge and the date of the amenability

hearing. In other words, this passage of time was due to

factors beyond appellant’s control, i.e., the mandatory bindover

and the subsequent court proceedings. Appellant thus argues

that this passage of time violated his due process right to a

fundamentally fair amenability hearing. 12 PICKAWAY, 21CA2

{¶22} We initially observe that, during the amenability

hearing, appellant did not argue that the trial court should not

consider the amount of time that passed while the case proceeded

through the common pleas court. It is well-settled that a party

may not raise any new issues or legal theories for the first

time on appeal. Stores Realty Co. v. Cleveland, 41 Ohio St.2d

41, 43, 322 N.E.2d 629 (1975). In general, a litigant who fails

to raise an argument in a trial court forfeits the right to

raise that issue on appeal. E.g., Independence v. Office of the

Cuyahoga Cty. Executive, 142 Ohio St.3d 125, 2014-Ohio-4650, 28

N.E.3d 1182, ¶ 30, (appellant may not raise argument on appeal

not raised in the lower court); State v. Quarterman, 140 Ohio

St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 21 (defendant

forfeits constitutional challenge by failure to raise it during

trial court proceedings); State ex rel. Jeffers v. Athens Cty.

Commrs., 4th Dist. Athens No. 15CA27, 2016-Ohio-8119, fn.3.

Therefore, in the case sub judice appellant has forfeited the

right to raise this issue on appeal.

{¶23} Appellate courts may, however, consider a forfeited

argument using a plain-error analysis. See Risner v. Ohio Dept.

of Nat. Resources, Ohio Div. of Wildlife, 144 Ohio St.3d 278,

2015-Ohio-3731, 42 N.E.3d 718, ¶ 27 (reviewing court has

discretion to consider forfeited constitutional challenges); see 13 PICKAWAY, 21CA2

also Hill v. Urbana, 79 Ohio St.3d 130, 133–34, 679 N.E.2d 1109

(1997), citing In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286

(1988), syllabus (“[e]ven where [forfeiture] is clear,

[appellate] court[s] reserve[] the right to consider

constitutional challenges to the application of statutes in

specific cases of plain error or where the rights and interests

involved may warrant it’”); State v. Pyles, 7th Dist. Mahoning

No. 13-MA-22, 2015-Ohio-5594, ¶ 82, quoting State v. Jones, 7th

Dist. No. 06-MA-109, 2008-Ohio-1541, ¶ 65 (plain error doctrine

“‘is a wholly discretionary doctrine’”); DeVan v. Cuyahoga Cty.

Bd. of Revision, 8th Dist. Cuyahoga, 2015-Ohio-4279, 45 N.E.3d

661, ¶ 9 (appellate court retains discretion to consider

forfeited argument); see Rosales-Mireles v. United States, ___

U.S. ___, 138 S.Ct. 1897, 1904, 201 L.Ed.2d 376 (2018) (court

has discretion whether to recognize plain error).

{¶24} For the plain error doctrine to apply, the party

claiming error must establish (1) that “‘an error, i.e., a

deviation from a legal rule’” occurred, (2) that the error was

“‘an “obvious” defect in the trial proceedings,’” and (3) that

this obvious error affected substantial rights, i.e., the error

“‘must have affected the outcome of the [proceedings].’” State

v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶

22, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 14 PICKAWAY, 21CA2

1240 (2002); Schade v. Carnegie Body Co., 70 Ohio St.2d 207,

209, 436 N.E.2d 1001, 1003 (1982) (“A ‘plain error’ is obvious

and prejudicial although neither objected to nor affirmatively

waived which, if permitted, would have a material adverse affect

on the character and public confidence in judicial

proceedings.”). For an error to be “plain” or “obvious,” the

error must be plain “under current law” “at the time of

appellate consideration.” Johnson v. United States, 520 U.S.

461, 467, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); accord

Barnes, 94 Ohio St.3d at 27, 759 N.E.2d 1240; State v. G.C.,

10th Dist. Franklin No. 15AP-536, 2016-Ohio-717, ¶ 14.

{¶25} In the case sub judice, after our review we do not

believe that the trial court committed an obvious error that

affected appellant’s substantial rights. We first point out

that, although appellant couches his argument in terms of “the

passage of time,” the essence of appellant’s argument is that

the trial court should have considered his age at the time of

the probable cause hearing, not his age at the time of the

amenability hearing when the court had to decide whether

sufficient time remained to rehabilitate him within the juvenile

{¶26} To support his argument, appellant asserts that State

v. D.B., 150 Ohio St.3d 452, 2017-Ohio-6952, 82 N.E.3d 1162, ¶ 15 PICKAWAY, 21CA2

12, stands for the proposition that a court that conducts an

amenability hearing “must determine what the juvenile court

would have been required to do with the case if the juvenile had

been charged with only those offenses for which convictions were

obtained.” He thus contends that “[f]undamental fairness

requires the juvenile court to make its decision in the same way

it would have had the amenability hearing happened immediately

after the probable cause hearing.”

{¶27} We point out, however, that the portion of the D.B.

opinion appellant quotes did not discuss the provision of the

statute at issue in the case sub judice, R.C. 2151.121(B)(3)(b),

but rather discussed the overall R.C. 2152.121(B) framework. As

the court noted, R.C. 2152.121(B) provides that, if a delinquent

child’s case is mandatorily transferred to the common pleas

court, and if the child later is convicted of or pleads guilty

to an offense in that case, the court shall determine the

sentence to be imposed or the disposition to be made as stated

in the sections that follow. The first section, R.C.

2152.121(B)(1), requires a court to initially determine whether

the offense that the child pleaded guilty to, or was convicted

of, would require mandatory transfer, or would permit a

discretionary transfer. The D.B. court stated that R.C.

2152.121(B)(1): 16 PICKAWAY, 21CA2

requires the trial court in which a juvenile has been convicted to determine whether ‘division (A) of section 2152.12 of the Revised Code would have required mandatory transfer of the case or division (B) of that section would have allowed discretionary transfer of the case’ if only those charges that resulted in convictions had been presented to the juvenile court in the delinquency complaint.

D.B. at ¶ 12, quoting R.C. 2152.121(B)(1). The court explained:

“In other words, the trial court must determine what the

juvenile court would have been required to do with the case if

the juvenile had been charged with only those offenses for which

convictions were obtained.” Id. Thus, D.B. stands for the

proposition that a court that is determining, under R.C.

2152.121(B)(1), whether the case would have been subject to

mandatory or discretionary transfer must consider the offenses

that the child ultimately was convicted of, not the offenses

originally charged. The D.B. court did not, however, make the

sweeping statement that appellant claims that, when conducting

an amenability hearing under R.C. 2152.121(B)(3)(b), “the trial

court must determine what the juvenile court would have been

required to do with the case if the juvenile had been charged

with only those offenses for which convictions were obtained.”

Id. Rather, the court stated that when the court initially

determines, under R.C. 2152.121(B)(1), the sentence to be

imposed or the disposition to be made, the court must consider 17 PICKAWAY, 21CA2

the “offenses for which convictions were obtained” and ask “what

the juvenile court would have been required to do if the

juvenile had been charged with only those offenses.” Id. We

therefore find appellant’s reliance on D.B. unavailing.

{¶28} Appellant cites no other authority to support the

argument that courts cannot consider an offender’s age at the

time of the amenability hearing, but instead must consider the

offender’s age at the time of the probable cause hearing or that

fundamental fairness requires courts that conduct amenability

hearings after a reverse transfer to consider an offender’s age

at the time of the probable cause hearing, rather than age at

the time of the amenability hearing. We therefore do not agree

with appellant that the trial court obviously erred by

considering appellant’s age at the time of the amenability

hearing, rather than his age at the time of the probable cause

hearing.

{¶29} Furthermore, assuming, arguendo, that the trial court

erred by considering appellant’s age at the time of the

amenability hearing, we do not believe that appellant can

establish that any such error affected his substantial rights.

The amenability hearing procedure requires courts to consider a

host of factors to determine whether an offender is amenable to

treatment within the juvenile system. R.C. 2152.121(B)(3)(b) 18 PICKAWAY, 21CA2

requires courts to consider the factors listed in R.C.

2152.12(D) and (E), and then determine whether the factors in

division (D) “outweigh the applicable factors listed in division

(E).”

{¶30} R.C. 2152.12(D) lists nine factors that weigh in favor

of transfer. One factor is “[t]here is not sufficient time to

rehabilitate the child within the juvenile system.” R.C.

2152.12(D)(9). The remaining factors include:

(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. (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. 19 PICKAWAY, 21CA2

{¶31} R.C. 2152.12(E) lists eight factors that weigh against

transfer. One factor is “[t]here 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.” R.C. 2152.12(E)(8).

The remaining factors include:

(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. (7) The child has a mental illness or intellectual disability.

{¶32} In the case before us, our review of the record

reveals that the trial court engaged in the weighing process

that the amenability statute contemplates. The trial court

found that the factors that favor transfer are (1) the victim

suffered physical or psychological harm as a result of the

alleged act; (2) appellant’s relationship with the victim

facilitated the act; (3) appellant used a firearm; (4) appellant [Cite as State v. Harden, 2022-Ohio-1436.]

is emotionally, physically, or psychologically mature enough for

the transfer; and (5) insufficient time remains to rehabilitate

the child within the juvenile system.

{¶33} Even had the trial court not considered appellant’s

age at the time of the amenability hearing when it evaluated

whether sufficient time remained to rehabilitate appellant

within the juvenile system, but instead considered appellant’s

age at the time of the probable cause hearing, the trial court

nevertheless could have concluded that sufficient time did not

remain to rehabilitate appellant within the juvenile system. At

the time of the probable cause hearing, appellant was 18 years

old. At the amenability hearing, Dr. Hagen testified that three

years would allow sufficient time to rehabilitate appellant

within the juvenile system. The prosecutor asked Hagen whether

sufficient time remained to rehabilitate appellant within the

juvenile system, considering that appellant was 19 years and a

few months of age at the time of the hearing, as Hagen believed

that the time that remained (approximately one year and nine

months) would be “an adequate amount of time.” The trial court,

however, rejected Hagen’s opinion in its entirety. The court’s

decision included language to suggest that it found that, even

if sufficient time remained to rehabilitate appellant within the

juvenile system, the level of security available in the juvenile [Cite as State v. Harden, 2022-Ohio-1436.]

system does not provide a reasonable assurance of public safety.

R.C. 2152.12(E)(8). The court quoted State v. Everhardt, supra,

and stated that the circumstances of the offense provided the

court with “NO reasonable assurance of public safety for the

community if this child were to remain in the juvenile system.”

Id. at ¶ 14. By including the above quote, the court indicates

that, even if sufficient time remained to arguably rehabilitate

appellant, the circumstances of appellant’s offense and phone

call statements did not provide the court any reasonable

assurance of public safety if appellant were to remain in the

juvenile system. Thus, we do not believe that the court would

have determined that appellant is amenable to treatment within

the juvenile system if the court had considered appellant’s age

at the time of the probable cause hearing, rather than his age

at the time of the amenability hearing. Consequently, we do not

believe that the court’s consideration of appellant’s age at the

time of the amenability hearing constitutes plain error.3

{¶34} Accordingly, based upon the foregoing reasons, we

overrule appellant’s first assignment of error.

II

3 Appellant does not argue in his first assignment of error that the trial court incorrectly weighed the factors. Thus, we need not consider the court’s evaluation of the factors. [Cite as State v. Harden, 2022-Ohio-1436.]

{¶35} In his second assignment of error, appellant asserts

that the trial court plainly erred by not applying the clear and

convincing evidence standard when it determined whether

appellant is amenable to treatment within the juvenile system.

{¶36} Initially, we again note that, because appellant did

not raise this argument during the trial court proceedings, he

forfeited the right to raise the issue on appeal. Moreover,

appellant cannot establish that any error that the court made by

failing to apply the clear and convincing evidence standard is

an obvious error. As appellant points out in his brief, “[t]he

standard of proof on this issue of non-amenability is not

settled.” If the standard is unsettled, then an error in

applying, or failing to apply, a particular standard could not,

by definition, be an obvious error. Johnson v. United States,

supra (that for error to be “plain” or “obvious,” error must be

plain “under current law” at time of appellate consideration).

Additionally, appellant did not cite any mandatory authority to

require the trial court to apply a clear and convincing evidence

standard. Therefore, we cannot conclude that the trial court

plainly erred as appellant suggests.

{¶37} We further observe that this court, along with other

Ohio appellate courts and the Ohio Supreme Court, has reviewed [Cite as State v. Harden, 2022-Ohio-1436.]

trial court amenability decisions using the abuse of discretion

standard of review. State v. West, 167 Ohio App.3d 598, 2006-

Ohio-3518, 856 N.E.2d 285, ¶ 10 (4th Dist.); e.g., In re M.P.,

124 Ohio St.3d 445, 2010-Ohio-599, 923 N.E.2d 584, ¶ 14; State

v. Gregory, 2nd Dist. Montgomery No. 28695, 2020-Ohio-5207, ¶

27. Under the abuse of discretion standard, “the juvenile court

enjoys wide latitude to retain or relinquish jurisdiction, and

the ultimate decision lies within its sound discretion.” State

v. Watson, 47 Ohio St.3d 93, 95, 547 N.E.2d 1181 (1989).

{¶38} Here, appellant did not argue that the trial court

abused its discretion by determining that he is not amenable to

treatment within the juvenile system, but, instead contends that

the trial court obviously erred by finding appellant is not

amenable to treatment within the juvenile system without

requiring the state to present clear and convincing evidence

that appellant is not amenable to treatment within the juvenile

{¶39} When trial courts apply a clear and convincing

evidence standard, reviewing courts typically apply a manifest

weight of the evidence standard of review. In considering

whether a court’s judgment is against the manifest weight of the

evidence, a reviewing court [Cite as State v. Harden, 2022-Ohio-1436.]

“‘“weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment] must be reversed and a new trial ordered.”’”

Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972

N.E.2d 517, ¶ 20, quoting Tewarson v. Simon, 141 Ohio App.3d

103, 115, 750 N.E.2d 176 (9th Dist. 2001), quoting State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997),

quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717

(1st Dist. 1983).

{¶40} Thus, a clear and convincing evidence standard may

appear to be incompatible with the appellate abuse of discretion

standard of review. As we stated above, it is well-established

that appellate courts review trial court amenability decisions

using the abuse of discretion standard of review. E.g., West at

¶ 10. We recognize, however, that the Ohio Supreme Court has,

at times, applied a puzzling, hybrid manifest weight and abuse

of discretion standard of review. E.g., In re Lu.B., 4th Dist.

Hocking No. 21CA1, 2021-Ohio-4479, ¶ 18. We also note that this

standard of proof issue is currently under review before the

Ohio Supreme Court (the court held oral arguments on December 7,

2021.) See State v. Nicholas, 161 Ohio St.3d 1439, 2021-Ohio-

375, 162 N.E.3d 822. Thus, the Ohio Supreme Court ultimately [Cite as State v. Harden, 2022-Ohio-1436.]

will decide whether the clear and convincing evidence standard

of proof, or some other standard, applies to amenability

hearings under R.C. Chapter 2152.4

{¶41} Under the current state of the law, trial courts need

not find, by clear and convincing evidence, that a child is not

amenable to treatment within the juvenile system before the

court may transfer the case to the common pleas court general

division. Instead, “the juvenile court enjoys wide latitude to

retain or relinquish jurisdiction, and the ultimate decision

lies within its sound discretion.” Watson, 47 Ohio St.3d at 95.

Once again, because appellant did not raise any argument that

the trial court abused its discretion, we do not address the

issue in any detail, but we simply note that the record reflects

that the trial court appropriately exercised its discretion when

it concluded that appellant is not amenable to treatment within

the juvenile system.

{¶42} We further note that even if we agreed that the clear

and convincing evidence standard applies to R.C.

4 Nicholas involves the initial decision to transfer under R.C. 2152.12, not a reverse transfer under R.C. 2152.121(B)(3)(b). Nevertheless, both statutes require juvenile courts to consider the same factors in R.C. 2152.12(D) and (E). Thus, it makes sense for the same standard to apply under the initial-transfer statute, R.C. 2152.12, and the reverse-transfer statute, R.C. 2152.121(B)(3)(b). [Cite as State v. Harden, 2022-Ohio-1436.]

2152.121(B)(3)(b) amenability hearings, this court should not,

in the first instance, determine whether the record contains

clear and convincing evidence. Instead, the state should have

the opportunity to present evidence to satisfy any newly-

imposed, heightened standard of proof. For this reason, we

decline appellant’s invitation to engage in the fact-based,

clear and convincing evidence analysis that appellant sets forth

in his brief.

{¶43} Within his second assignment of error, appellant

further asserts that the state “must bear the burden of proving

that a child is not amenable to treatment in the juvenile

system.” We again point out, however, that appellant did not

raise this issue during the trial court proceedings. Thus,

absent plain error, appellant has forfeited the issue for

purposes of appeal.

{¶44} Consequently, we do not believe that the trial court

plainly erred by improperly allocating the burden of proof.

Appellant did not cite anything in the record to show that the

trial court required him to prove he is amenable to treatment in

the juvenile system. In fact, at the amenability hearing the

court stated that “the burden rests with the State of Ohio.” [Cite as State v. Harden, 2022-Ohio-1436.]

{¶45} We recognize, however, as does appellant, that the

reverse-transfer statute is silent as to burden of proof.

Instead, the statute states:

the prosecuting attorney in the case may file a motion in the juvenile court that objects to the imposition of a serious youthful offender dispositional sentence upon the child and requests that the sentence imposed upon the child by the court in which the child was convicted of or pleaded guilty to the offense be invoked.

R.C. 2152.121(B)(3)(b).

{¶46} Once a prosecutor files a motion to object to the

imposition of an SYO dispositional sentence, the statute

requires a juvenile court to “hold a hearing to determine

whether the child is not amenable to care or rehabilitation

within the juvenile system and whether the safety of the

community may require that the child be subject solely to adult

sanctions.” Id. The statute continues: “If the juvenile court

at the hearing finds that the child is not amenable to care or

rehabilitation within the juvenile system or that the safety of

the community may require that the child be subject solely to

adult sanctions, the court shall grant the motion.” Id.

{¶47} Nothing in the foregoing provisions clearly allocates

a burden of proof. We further observe that one issue the

Nicholas court accepted for review concerns the burden of proof

under the transfer statute, R.C. 2152.12(B). Thus, we are [Cite as State v. Harden, 2022-Ohio-1436.]

unable to conclude that the trial court plainly erred by

applying an incorrect burden of proof.

{¶48} Accordingly, based upon the foregoing reasons, we

overrule appellant’s second assignment of error.

III

{¶49} In his third assignment of error, appellant asserts

that the trial court erred by failing to consider “all

dispositional options provided by the statute, including a

serious youthful offender disposition.”5

{¶50} The state, however, asserts that appellant’s argument

misconstrues the statute that governs a court’s options in a

reverse-transfer situation under R.C. 2152.121(B)(3). We agree

with the state.

{¶51} R.C. 2152.121(B)(3) applies when the offense for which

a child was convicted did not require mandatory transfer but,

instead, allowed discretionary transfer. In this situation, the

common pleas court “shall determine the sentence it believes

should be imposed upon the child under Chapter 2929. of the

Revised Code, shall impose that sentence upon the child, and

5 Appellant contends that the issue raised in his third assignment of error also is at issue in Nicholas. We again note, however, that Nicholas involves juvenile a court’s initial decision to transfer a case to common pleas court, not the reverse-transfer procedure at issue in the case sub judice. [Cite as State v. Harden, 2022-Ohio-1436.]

shall stay that sentence pending completion of the procedures

specified in [R.C. 2152.121(B)(3)].” The statute then requires

the court to “transfer jurisdiction of the case back to the

juvenile court that initially transferred the case and the

juvenile court shall proceed in accordance with this division.”

R.C. 2152.121(B)(3). Once the case returns to the juvenile

court’s jurisdiction, R.C. 2152.121(B)(3)(a) states that “the

juvenile court shall impose a serious youthful offender

dispositional sentence upon the child under [R.C.

2152.13(D)(1)],” unless the prosecuting attorney timely files an

R.C. 2152.121(B)(3)(b) motion that objects to the imposition of

the SYO dispositional sentence.6

6 R.C. 2152.13(D)(1) states:

If a child is adjudicated a delinquent child for committing an act under circumstances that require the juvenile court to impose upon the child a serious youthful offender dispositional sentence under section 2152.11 of the Revised Code, all of the following apply: (a) The juvenile court shall impose upon the child a sentence available for the violation, as if the child were an adult, under Chapter 2929. of the Revised Code, except that the juvenile court shall not impose on the child a sentence of death or life imprisonment without parole. (b) The juvenile court also shall impose upon the child one or more traditional juvenile dispositions under sections 2152.16, 2152.19, and 2152.20, and, if applicable, section 2152.17 of the Revised Code. (c) The juvenile court shall stay the adult portion of the serious youthful offender dispositional sentence [Cite as State v. Harden, 2022-Ohio-1436.]

{¶52} If the court grants the prosecutor’s motion, the court

must “transfer jurisdiction of the case back to the court in

which the child was convicted of or pleaded guilty to the

offense, and the sentence imposed by that court shall be

invoked.” 2152.121(B)(3)(b). If, however, the court denies the

prosecutor’s motion, then the court must “impose a [SYO]

dispositional sentence upon the child in accordance with [R.C.

2152.121(B)(3)(a)].”

{¶53} Consequently, contrary to appellant’s argument, R.C.

2152.121 does not give the juvenile court discretion to consider

all dispositional options available in the juvenile system.

Instead, following each step of the statutory analysis that

applies in a reverse-transfer situation indicates that a court

has two options: (1) impose an SYO dispositional sentence; or

(2) transfer jurisdiction to the common pleas court, “and the

sentence imposed by that court shall be invoked.” R.C.

2152.121(B)(3)(b). It appears that nothing in the reverse-

transfer statute that governs the analysis in the case sub

judice gave the juvenile court any other dispositional

alternatives to consider.

pending the successful completion of the traditional juvenile dispositions imposed. [Cite as State v. Harden, 2022-Ohio-1436.]

{¶54} Accordingly, based upon the foregoing reasons, we

overrule appellant’s third assignment of error.

IV

{¶55} In his fourth assignment of error, appellant asserts

that his trial counsel failed to provide the effective

assistance of counsel as guaranteed under the Ohio and United

States Constitutions. Specifically, appellant contends that

counsel performed ineffectively by failing to (1) advocate for a

clear and convincing standard of proof to determine whether

appellant is amenable to treatment within the juvenile system,

and (2) ask the court to impose an SYO dispositional sentence.

{¶56} The Sixth Amendment to the United States Constitution

and Article I, Section 10 of the Ohio Constitution provide that

defendants in all criminal proceedings shall have the assistance

of counsel for their defense. The United States Supreme Court

has generally interpreted this provision to mean a criminal

defendant is entitled to the “reasonably effective assistance”

of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984); accord Hinton v. Alabama, 571 U.S.

263, 272, 134 S.Ct. 1081, 188 L.Ed.2d 1 (2014) (Sixth Amendment

right to counsel means “that defendants are entitled to be [Cite as State v. Harden, 2022-Ohio-1436.]

represented by an attorney who meets at least a minimal standard

of competence”).

{¶57} To establish constitutionally ineffective assistance

of counsel, a defendant must show (1) his counsel’s performance

was deficient and (2) the deficient performance prejudiced the

defense and deprived the defendant of a fair trial. E.g.,

Strickland, 466 U.S. at 687; State v. Myers, 154 Ohio St.3d 405,

2018-Ohio-1903, 114 N.E.3d 1138, ¶ 183; State v. Powell, 132

Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 85. “Failure

to establish either element is fatal to the claim.” State v.

Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, ¶ 14.

Therefore, if one element is dispositive, a court need not

analyze both. State v. Madrigal, 87 Ohio St.3d 378, 389, 721

N.E.2d 52 (2000) (defendant’s failure to satisfy one of the

ineffective assistance of counsel elements “negates a court’s

need to consider the other”).

{¶58} In the case at bar, we do not believe that appellant

can establish that his trial counsel failed to provide effective

assistance of counsel. Appellant first asserts that trial

counsel failed to ask the trial court to use a clear and

convincing evidence standard when determining appellant’s

amenability to treatment within the juvenile system. However,

as we concluded in appellant’s second assignment of error, the [Cite as State v. Harden, 2022-Ohio-1436.]

current state of the law does not require juvenile courts to

apply a clear and convincing evidence standard of proof when

considering, under R.C. 2152.121(B)(3)(b), whether an offender

is amenable to treatment within the juvenile system. Thus,

trial counsel did not act deficiently by failing to ask the

court to apply a new standard.

{¶59} We recognize appellant’s argument that counsel could

have advocated for a new standard or a change in the law, but

appellant does not cite any authority to support the position

that counsel performs deficiently if counsel fails to advocate

for a new standard or a change in the law. Appellant’s failure

to establish the deficient performance part of the ineffective-

assistance-of-counsel analysis is dispositive of this claim.

{¶60} Appellant further contends that trial counsel

performed ineffectively by failing to ask the court to impose an

SYO dispositional sentence. We noted in appellant’s third

assignment of error that R.C. 2152.121(B)(3)(b) outlines the

trial court’s options in a reverse-transfer case. If the state

did not object to the imposition of an SYO dispositional

sentence, the trial court would have been required to impose

that sentence. The state, however, objected to the imposition

of an SYO dispositional sentence. In light of the statutory

scheme, we do not believe appellant can establish that trial [Cite as State v. Harden, 2022-Ohio-1436.]

counsel failed to provide effective assistance of counsel by not

specifically asking the court to impose an SYO dispositional

sentence.

{¶61} Accordingly, based upon the foregoing reasons, we

overrule appellant’s fourth assignment of error and affirm the

trial court’s judgment.

JUDGMENT AFFIRMED. [Cite as State v. Harden, 2022-Ohio-1436.]

JUDGMENT ENTRY

It is ordered that the judgment be affirmed. Appellee shall recover of appellant the 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 Pickaway County Common Pleas Court to carry this judgment into execution. If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of 60 days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the 60-day period. The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the 45-day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said 60 days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Wilkin, J.: Concur in Judgment & Opinion

For the Court

BY:__________________________ Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.