State v. Jenkins

2017 Ohio 7755

Opinion

[Cite as State v. Jenkins, 2017-Ohio-7755.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 15 MA 0202 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION AND ) JUDGMENT ENTRY DAVID R. JENKINS ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Appellant’s Application to Reopen Appeal Under App.R. 26(B).

JUDGMENT: Application Denied.

APPEARANCES:

For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503

For Defendant-Appellant: Atty. Timothy Young Ohio Public Defender Atty. Victoria Bader Assistant State Public Defender The Midland Building 250 East Broad Street, Suite 1400 Columbus, Ohio 43215

JUDGES:

Hon. Cheryl L. Waite Hon. Mary DeGenaro Hon. Carol Ann Robb Dated: September 21, 2017 [Cite as State v. Jenkins, 2017-Ohio-7755.] PER CURIAM.

{¶1} Appellant David Jenkins has filed an application to reopen his appeal.

He raises two related assignments of error arguing that his counsel was ineffective

for failing to object to the mandatory juvenile transfer provisions. Appellant’s

arguments are predicated on State v. Aalim, __ Ohio St.3d __, 2016-Ohio-8278, __

N.E.3d __ (“Aalim I”). However, that case is no longer controlling law. This decision

was vacated in State v. Aalim, __ Ohio St.3d __, 2017-Ohio-2956, __ N.E.3d __

(“Aalim II”). Accordingly, Appellant's application for reopening is denied.

Factual and Procedural History

{¶2} Appellant, a juvenile at the time of the offense, was indicted on one

count of aggravated riot, a felony of the fourth degree in violation of R.C.

2917.02(A)(2), (C); one count of involuntary manslaughter, a felony of the first degree

in violation of R.C. 2903.04(A), (C); one count of felonious assault, a felony of the

second degree in violation of R.C. 2903.11; one count of aggravated assault with a

firearm specification attached, a felony of the fourth degree in violation of R.C.

2903.12 and R.C. 2903.12(A)(2), (B); and two counts of felony life murder. The

charges stemmed from an incident where Appellant shot and killed another juvenile

during a bar fight.

{¶3} On September 17, 2014, the state filed a motion to relinquish

jurisdiction of the case pursuant to Juv.R. 29 and Juv.R. 30. On February 26, 2015,

the juvenile court ruled that counts 1, 2, 3, and 5 required mandatory transfer to the

common pleas court. While count 4 did not mandate transfer, Appellant waived an -2-

amenability hearing and agreed to be bound over on that count as well. Appellant

was 18 years old at the time.

{¶4} Appellant filed a timely appeal. His appellate counsel raised a sole

assignment of error arguing that the trial court failed to adequately inform him of his

right to compulsory process. We affirmed Appellant's conviction and sentence in

State v. Jenkins, 7th Dist. No. 15 MA 202, 2016-Ohio-8563. On March 23, 2017,

Appellant filed a timely application to reopen his appeal pursuant to App.R. 26(B).

Reopening

{¶5} Pursuant to App.R. 26(B)(1), a criminal defendant “may apply for

reopening of the appeal from the judgment of conviction and sentence, based on a

claim of ineffective assistance of appellate counsel.” An applicant must demonstrate

that “there is a genuine issue as to whether the applicant was deprived of the

effective assistance of counsel on appeal.” App.R. 26(B)(5). If the application is

granted, the appellate court must appoint counsel to represent the applicant if the

applicant is indigent and unrepresented. App.R. 26(B)(6)(a).

{¶6} In order to show ineffective assistance of appellate counsel, the

applicant must meet the two-prong test outlined in Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Pursuant to Strickland, the applicant

must demonstrate deficient performance of counsel and resulting prejudice. Id. at

687. See also App.R. 26(B)(9).

{¶7} An application for reopening must contain “[o]ne or more assignments

of error or arguments in support of assignments of error that previously were not -3-

considered on the merits in the case by any appellate court or that were considered

on an incomplete record because of appellate counsel's deficient representation.”

App.R. 26(B)(2)(c). See also State v. Clark, 7th Dist. No. 08 MA 15, 2015-Ohio-

2584, ¶ 19. Here, Appellant presents two assignments of error, both of which argue

that the mandatory juvenile transfer provisions are unconstitutional and counsel was

ineffective for failing to preserve the issue.

First and Second Assignments of Error

{¶8} Appellant argues that the mandatory transfer provisions create an

irrebuttable presumption that a juvenile is equally morally capable as an adult who

committed the same act. Appellant’s arguments are based on Aalim I, supra, which

held that the mandatory transfer of juveniles to the general division of common pleas

court violate a juvenile's right to due process. Id. at ¶ 31.

{¶9} In response, the state argues that the Ohio Supreme Court stayed its

decision in Aalim I pending reconsideration, so its holding was not currently in effect.

Regardless, the state argues that Appellant pleaded guilty. Consequently, he waived

his right to challenge the constitutionality of the mandatory transfer provisions.

{¶10} As noted by Appellant, the Aalim I Court held that “mandatory transfer

of juveniles to the general division of common pleas court violates juveniles' right to

due process as guaranteed by Article I, Section 16 of the Ohio Constitution.” Id. at

¶ 31. However, the Ohio Supreme Court granted the state’s motion to reconsider

and stay Aalim I. In Aalim II, the Ohio Supreme Court vacated Aalim I and held that

the mandatory transfer of certain juvenile offenders does not violate due process or -4-

equal protection. Id. at ¶ 38. As such, Aalim I, on which Appellant solely relies in this

reopening, is not the controlling law. Accordingly, Appellant's application for

reopening is denied.

Waite, J., concurs.

DeGenaro, J., concurs.

Robb, P.J., concurs.