State v. Jordan

2023 Ohio 311

• Court: Ohio Court of Appeals
• Decided: February 2, 2023
• Docket: 111547
• Status: Published

Opinion

[Cite as State v. Jordan, 2023-Ohio-311.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 111547 v. :

TONY JORDAN, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: February 2, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-20-653241-B

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and John D. Kirkland, Assistant Prosecuting Attorney, for appellee.

Timothy Young, Ohio Public Defender, and Victoria Ferry, Assistant State Public Defender, for appellant.

SEAN C. GALLAGHER, J.:

Tony Jordan appeals his robbery, grand theft, and aggravated

robbery convictions, which included attendant firearm specifications, claiming the juvenile court abused its discretion in transferring Jordan’s case to the general

division. For the following reasons, the convictions are affirmed.

Jordan, when he was 15 years old and under the supervision of the

juvenile court for other offenses, robbed a 42-year-old female victim outside of her

apartment at gunpoint. Jordan and his accomplice, Marquise Gholston, grabbed

the victim by her hair and demanded her phone, money, and car keys. The victim’s

car was parked nearby, so the attackers fled in the stolen vehicle. The next morning,

Jordan and Gholston, along with two other, unnamed individuals, forced their way

into another victim’s apartment; the victim was 69 years old at the time of the home

invasion. A gun was placed against the victim’s head while the attackers searched

the home for valuables, ultimately stealing cash, a large flat screen television, and a

Honda SUV. Shortly after the burglary and robbery, the stolen SUV was discovered

by police officers who attempted a traffic stop. A lengthy chase ensued but ended

when the assailants crashed the vehicle near a local salvage yard. Gholston was

apprehended in the passenger seat of the car, but Jordan fled. A K-9 unit tracked

and located Jordan, who was then arrested.

The matter proceeded in juvenile court with separate case numbers

pertaining to each victim. Jordan waived the probable cause determination, but

following the amenability hearing, the juvenile court relinquished jurisdiction to the

general division court after considering the factors set forth in R.C. 2152.12.

Upon having the matter transferred to the general division court,

Jordan pleaded guilty to the following: robbery, in violation of R.C. 2911.02(A)(1), a second-degree qualifying felony offense; two grand theft offenses each in violation

of R.C. 2913.02(A)(1), fourth-degree felony offenses; and aggravated robbery in

violation of R.C. 2911.01(A)(1), a first-degree qualifying felony offense that included

an attendant one-year firearm specification. The trial court imposed the following

sentence:

The court imposes a prison sentence at the Lorain Correctional Institution of 4 year(s). Defendant is sentenced in count 2 [(robbery)] to 3 years; in count 3 [(grand theft)] to 9 months, in count 11 [(grand theft)] to 9 months, and in count 6 [(aggravated robbery)] to 1 year on the gun specification, to run prior to and consecutive to the underlying offense, to which he is sentenced to 4 years. The minimum term on count 2 is 3 years, the maximum term is 4.5 years. The minimum term on count 6 is 4 years on the underlying offense, and the maximum term is 6, with the total maximum term being 5 years (with the gun specification) with the maximum term being 7 years.

According to the parties, the above sentencing entry establishes an aggregate stated

minimum term of five years, up to a maximum term of seven years under the Reagan

Tokes Law.1

In this appeal, Jordan advances two assignments of error, which will

be considered in reverse order for the sake of simplicity. In the second assignment

of error, Jordan preserves his continuing objection to the non-life indefinite

sentencing structure codified under the Reagan Tokes Law, advancing the same

arguments regarding the separation of powers, right to due process, and right to trial

by jury rejected by the en banc court in State v. Delvallie, 2022-Ohio-470, 185

1 According to the “notice of calculation of sentence” filed before this appeal, the aggregate term of indefinite imprisonment includes the one-year sentence on the firearm specification, to be followed by a minimum of four years on the aggravated robbery, with the maximum term being six years on that count. N.E.3d 536, ¶ 17-51, 103, 123 (8th Dist.). Inasmuch as Jordan has limited his

constitutional challenge to the issues resolved in Delvallie, those arguments are

summarily overruled.

In the sole substantive argument presented for review, Jordan claims

that the juvenile court abused its discretion by transferring Jordan’s case to the

felony division for prosecution, claiming that it was an “unreasonable” decision

when “the safety of the community could be adequately protected” by, and there

were adequate resources within, the juvenile system such that Jordan was amenable

to the care or rehabilitation within the juvenile justice system.

A juvenile court’s amenability determination is reviewed for abuse of

discretion. State v. Crosby, 8th Dist. Cuyahoga Nos. 107392 and 107551, 2019-

Ohio-2217, ¶ 28, citing State v. Jones, 8th Dist. Cuyahoga No. 99044, 2013-Ohio-

3725, ¶ 9, and In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629.

An abuse of discretion, as that term has been defined, implies “not merely error of

judgment, but perversity of will, passion, prejudice, partiality, or moral delinquency.

The exercise of an honest judgment, however erroneous it may appear to be, is not

an abuse of discretion.” Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304,

187 N.E.3d 463, ¶ 35, quoting Black’s Law Dictionary 11 (2d Ed.1910). Thus, a trial

court abuses its discretion only when it “‘exercis[es] its judgment, in an unwarranted

way, in regard to a matter over which it has discretionary authority.’” State v.

Austin, 1st Dist. Hamilton Nos. C-210140 and C-210141, 2021-Ohio-3608, ¶ 5,

quoting Johnson at ¶ 35. In a discretionary transfer proceeding under R.C. 2152.12, the

controlling statutory provision relevant to this appeal, the juvenile court may not

transfer jurisdiction without first finding that (1) the child was 14 or older at the time

of the offenses, (2) there is probable cause to believe that the child committed the

offenses, and (3) “[t]he child is not amenable to care or rehabilitation within the

juvenile system, and the safety of the community may require that the child be

subject to adult sanctions.” (Emphasis added.) R.C. 2152.12(B)(1)-(3). In making

the amenability determination under subdivision (B)(3), the juvenile court is

required to “consider whether the applicable[, but not exhaustive,] factors under

[R.C. 2152.12(D)] indicating that the case should be transferred outweigh the

applicable[, but not exhaustive,] factors under [R.C. 2152.12(E)] indicating that the

case should not be transferred.” R.C. 2152.12(B)(3). The specific factors under

consideration must be indicated within the record. Id. In light of “‘the discretion

afforded the juvenile court by the legislature in determining a juvenile’s amenability

to the juvenile justice system,’” the juvenile court’s amenability determination

cannot be reversed if “‘there is some rational and factual basis to support the trial

court’s decision * * *.’” State v. Nicholson, 8th Dist. Cuyahoga No. 110595, 2022-

Ohio-2037, ¶ 206, quoting Crosby at ¶ 28, and State v. West, 167 Ohio App.3d 598,

2006-Ohio-3518, 856 N.E.2d 285, ¶ 10 (4th Dist.). No one factor controls over any

other.

In this appeal, Jordan’s argument is twofold but limited to the third

finding under R.C. 2152.12(B)(3): (1) that the juvenile court abused its discretion by relinquishing jurisdiction to the general division court because an expert “believed”

that Jordan would be responsive to treatment in the juvenile system and that the

Department of Youth Services would be “better suited” to Jordan’s individual needs;

and based upon that, (2) the juvenile court erred by concluding that there was not a

reasonable time for rehabilitation because the juvenile system could keep Jordan for

approximately five years at the time of the decision under R.C. 2152.12(E)(8). In

other words, despite the undisputed fact that the juvenile court considered the

applicable factors under R.C. 2152.12(D) to outweigh those contained under

subdivision (E), the expert’s belief that Jordan would be responsive to the available

programs within the juvenile justice system should have been given more weight

than consideration of the totality of all other factors.

First and foremost, the review being sought is outside the scope of the

appellate standard of review. Even if it were presumed for the sake of discussion

that the juvenile court placed little weight on the expert’s belief regarding Jordan’s

rehabilitative potential, there is no dispute that the juvenile court considered the

expert’s opinion as to Jordan’s potential responsiveness to the treatment afforded

in the juvenile justice system. The sole question for the juvenile court is the weight

to be given that consideration in accordance with the statutory scheme requiring the

court to weigh the totality of the analysis under R.C. 2152.12(B)(3) (amenability and

safety to the public) and in rendering that decision, the court’s mandatory

consideration of the factors under R.C. 2152.12(D) and (E). Under the prevailing

authority, “[t]he juvenile court’s wide latitude to determine whether to retain or relinquish jurisdiction over a child’s case means that the court also has the discretion

to decide how much weight to give to each factor in R.C. 2152.12(D) and (E).” State

v. Cunningham, 6th Dist. Lucas No. L-21-1136, 2022-Ohio-3497, ¶ 100, citing In re

M.A., 12th Dist. Brown No. CA2018-07-005, 2019-Ohio-829, ¶ 33; State v.

Everhardt, 3d Dist. Hancock No. 5-17-25, 2018-Ohio-1252, ¶ 22; and State v.

Marshall, 1st Dist. Hamilton No. C-150383, 2016-Ohio-3184, ¶ 15.

No one factor under R.C. 2152.12(D) or (E) is outcome determinative.

If, by a preponderance of the evidence, the trial court concludes that the factors in

favor of the transfer outweigh those against, the statutory analysis is satisfied. State

v. Nicholas, Slip Opinion No. 2022-Ohio-4276, ¶ 35. Thus, if “‘there is some

competent, credible evidence to support the trial court’s decision, there is no abuse

of discretion.’” Nicholas at ¶ 73, (Kennedy, J., dissenting) quoting Middendorf v.

Middendorf, 82 Ohio St.3d 397, 401, 696 N.E.2d 575 (1998). Because the trial court

concluded that the R.C. 2152.12(D) factors outweighed the factors considered under

R.C. 2152.12(E), appellate review must include analysis and discussion of the totality

of that consideration.

Inasmuch as Jordan claims that the trial court erroneously concluded

that there was not sufficient time to rehabilitate Jordan, an offender’s “disagreement

with the way the juvenile court weighed the factors is not a reason to reverse the

court’s decision.” Cunningham at ¶ 100, citing State v. Ramsden, 12th Dist. Clinton

No. CA2020-11-016, 2021-Ohio-3071, ¶ 23 (“‘[G]iven that it is the juvenile court,

and not [the appellate] court, that has the discretion to determine how much weight should be afforded to the factors set forth in R.C. 2152.12(D) and (E), [appellant’s]

challenge to the weight that the juvenile court ultimately decided to attribute to each

[of] those factors lacks merit.’”), aff’d, State v. Ramsden, Slip Opinion No. 2022-

Ohio-4483, ¶ 1; Nicholas at ¶ 73. The appellate focus is on the totality of the

consideration required under R.C. 2152.12(B)-(E).

With respect to the statutory factors under R.C. 2152.12(D) and (E),

Jordan claims that the trial court failed to consider that there was reasonable time

for rehabilitation because the juvenile system could keep Jordan for approximately

five years at the time of the decision — the approximate length of Jordan’s aggregate

felony sentences. This argument incorporates the expert’s conclusion that the

juvenile justice system had adequate programs to aid Jordan’s rehabilitation.

Jordan’s focus on one of eight factors that must be considered under R.C. 2152.12(E)

is misplaced.

The trial court, in consideration of the statutory factors weighing

against transfer under R.C. 2152.12(E), concluded that (1) there were no facts to

support the claim that the victims induced or facilitated the criminal conduct; (2)

Jordan was not acting under provocation; (3) the factor dealing with the

determination that Jordan was not the principal actor or under negative influence

or coercion did not apply; (4) Jordan could not demonstrate the applicability of the

factor considering the lack of physical harm caused to person or property given the

nature of the criminal conduct in both cases; (5) Jordan had been previously

adjudicated a delinquent child for the purposes of one of the cases under consideration, but not the other; (6) there was no evidence demonstrating that

Jordan was not emotionally, physically, or psychologically mature enough for the

transfer; (7) Jordan, although he was diagnosed with Bipolar Disorder II and “an

additional ‘rule out’ diagnosis of ADHD,” had a full scale IQ of 100 placing him in

the “solid range” of intellectual abilities; and (8) that there was not sufficient time to

rehabilitate Jordan within the juvenile system, especially in light of the fact that the

conduct at issue occurred while Jordan was already under the juvenile court’s

supervision.2 The juvenile court also considered Jordan’s background and

upbringing and noted the support offered by his mother throughout the

proceedings. After considering the above factors, the juvenile court noted the

statutory inquiry did not involve simply finding more factors in favor of the transfer;

it involved the court’s discretionary power to give weight to each factor, for and

against.

In this appeal, of the eight factors considered weighing against the

transfer, Jordan only disputes the juvenile court’s consideration of one isolated

factor, whether there was sufficient time to rehabilitate Jordan. Only one other

statutory factor arguably weighed against the transfer: that Jordan was diagnosed

with bipolar disorder; however that was mitigated by Jordan’s IQ (both of which fall

2 Jordan had been within the juvenile justice system for over a year before the misconduct underlying this case, leading to an escape charge stemming from his going absent from the Cleveland Christian Home. After escaping the temporary confinement, Jordan bounced back and forth between the juvenile detention center and home detention. The day before the first criminal act in this case, Jordan had been placed in the Phoenix Court program. under R.C. 2152.12(E)(7)). Jordan, however, has not challenged the juvenile court’s

conclusions with respect to the factors weighing in favor of the transfer under

R.C. 2152.12(D).

Thus it is undisputed in this appeal that there is competent, credible

evidence demonstrating that (1) under R.C. 2152.12(D)(1), both victims were

traumatized by Jordan’s criminal conduct, requiring the 42-year-old victim to move

and seek counseling and traumatizing the elder victim to the point that he fears

leaving his home; (2) under subdivision (D)(2), the elderly victim’s age exacerbated

the harm caused by Jordan’s conduct; (3) under subdivision (D)(5),3 the crimes were

committed with a firearm, and although no evidence demonstrated that Jordan

brandished the firearm, the juvenile court considered this fact under the catchall

considerations; (4) under subdivision (D)(6), Jordan committed the violent acts

while already under the supervision of the juvenile court having previously been

adjudicated delinquent; (5) under subdivision (D)(7), the results of Jordan’s failed

rehabilitation through his previous interaction with the juvenile court system

indicated that further rehabilitation would not occur; (6) under subdivision (D)(8),

Jordan was emotionally, physically, and psychologically mature enough for the

transfer; and finally (7) under subdivision (D)(9), any further rehabilitative attempts

could not be achieved with the time that Jordan would remain a juvenile.

3 The factors enumerated under R.C. 2152.12(D)(3) and (4) were deemed to be inapplicable. The weight to be given to any one factor is not solely dispositive under

the abuse of discretion standard of review. Jordan’s argument that the expert’s

belief in rehabilitation within the time Jordan could serve in the juvenile justice

system should have superseded all other enumerated factors is without merit.

Without a discussion of all factors considered, this court cannot conclude that the

trial court abused its discretion in declining to give greater weight to the

rehabilitative potential within the juvenile justice system as contrasted against the

weight of the evidence favoring the transfer to the general division court as the

juvenile court is required to consider under R.C. 2152.12(D). Under the totality of

the statutory factors considered, it cannot be concluded that the trial court abused

its discretion in concluding that the factors in favor of the transfer outweighed those

Jordan’s assignment of error to the contrary is overruled. The

convictions are 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 to carry this judgment into execution. The defendant’s

conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

______________________ SEAN C. GALLAGHER, JUDGE

ANITA LASTER MAYS, A.J., CONCURS; KATHLEEN ANN KEOUGH, J., CONCURS IN JUDGMENT ONLY