Agee v. Russell, 00-2211.

CourtUnited States State Supreme Court of Ohio
Citation751 NE 2d 1043,92 Ohio St.3d 540
Docket NumberNo. 00-2211.,00-2211.
Decision Date15 August 2001

92 Ohio St.3d 540
751 NE 2d 1043


No. 00-2211.

Supreme Court of Ohio.

Submitted May 15, 2001.

Decided August 15, 2001.

Anthony R. Cicero and Carl G. Goraleski, Montgomery County Assistant Public Defenders, for appellant.

Betty D. Montgomery, Attorney General, David M. Gormley, State Solicitor, and Stephanie L. Watson, Assistant Attorney General, for appellee.

Per Curiam.

In late March 1997, appellant, Jacob Agee, then sixteen years old, obtained a gun. After trying unsuccessfully to sell the gun, Agee got bullets and test-fired the gun twice.

At approximately 11:30 p.m. on April 2, 1997, Agee and Bryan Singleton, eighteen years old at the time, were riding in a car driven by a man named

92 Ohio St.3d 541
Ashley. They stopped and picked up a friend of theirs, Bradley Fannin, who was walking along a road in Miami Township, Montgomery County, Ohio. After Fannin entered the vehicle, Agee showed him the gun, which was loaded. Agee told Fannin that in the three days since he had gotten the gun, he had been thinking about "pulling a 187,"1 i.e., committing a murder

Agee and Singleton told Fannin that they were going to rob a Sunoco gasoline station and convenience store. Agee said that he had been watching the store for months and that he knew that a surveillance camera had not been installed. Singleton had worked at the store, and he knew where the safe was located and how it opened.

In the early morning of April 3, Agee and Singleton entered the Sunoco store and robbed it. During the robbery, a clerk was shot twice in the head and killed. Agee and Singleton did not wear masks during the robbery. Later that same morning, Agee told a friend that he and Singleton had stolen between $200 and $300 from the store safe and that Agee had hidden the gun in a bag that he had placed under some rocks in a creek. Agee stated that he would go back and get the gun "after things had cooled off." According to Agee, Singleton shot the clerk, who had previously fired Singleton.

Singleton was subsequently convicted of aggravated murder, aggravated robbery, aggravated burglary, and having a weapon while under a disability, and was sentenced to life in prison. See State v. Singleton (Mar. 31, 1999), Montgomery App. Nos. 17003 and 17004, unreported, 1999 WL 173357. In his criminal trial, Singleton was viewed as the principal offender, i.e., the actual killer, in the murder of the Sunoco clerk.

On April 7, 1997, a complaint was filed in the Montgomery County Court of Common Pleas, Juvenile Division, charging Agee with being a delinquent child due to the acts committed on April 3. Agee was charged with committing one count of aggravated murder in violation of R.C. 2903.01(B), one count of aggravated robbery in violation of R.C. 2911.01(A)(1), and firearm specifications for both counts. The state filed a motion to transfer the case to the general division of the common pleas court so that Agee could be tried as an adult. The state claimed that bindover of Agee was required by R.C. 2151.26(B)(3) and (B)(4). Agee moved for a hearing under R.C. 2151.26(C) to determine whether he was amenable to care and rehabilitation through the juvenile system, claiming that the mandatory bindover provisions were inapplicable.

After conducting hearings on the motions, the juvenile court found probable cause to believe that Agee had committed the offenses alleged in the complaint and transferred him to the criminal division of the common pleas court for trial as

92 Ohio St.3d 542
an adult. The juvenile court determined that the General Assembly had "passed legislation which makes it mandatory for juveniles who are charged with a certain category one offense to be transferred upon the Court finding probable cause to stand trial as an adult. And that is the situation we have * * * ." The grand jury subsequently returned an indictment charging Agee with aggravated murder, aggravated robbery, and aggravated burglary, with accompanying firearm specifications. In May 1998, after Agee had been convicted of murder, aggravated robbery, aggravated burglary, and the firearm specifications, the common pleas court sentenced him to an aggregate prison term of twenty-three years to life

On appeal, the court of appeals affirmed the convictions and sentence. State v. Agee (1999), 133 Ohio App.3d 441, 728 N.E.2d 442. In its opinion, the court of appeals determined that the complicity statute, R.C. 2923.03, applied to the mandatory bindover criteria of R.C. 2151.26(B)(3) and (4). Id. We denied Agee's discretionary appeal to this court. State v. Agee (1999), 86 Ohio St.3d 1489, 716 N.E.2d 721. In arguing in support of jurisdiction, Agee specifically claimed that complicity did not apply to the mandatory bindover provisions of R.C. 2151.26(B)(3) and (4).

Over eight months following our denial of Agee's discretionary appeal, we held in State v. Hanning (2000), 89 Ohio St.3d 86, 728 N.E.2d 1059, at paragraph one of the syllabus, "The mandatory bindover provision of R.C. 2151.26(B)(4)(b) does not apply unless the child, himself or herself, had a firearm on or about the child's person or under the child's control while committing the act charged and the child displayed the firearm, brandished the firearm, indicated possession of the firearm, or used the firearm to facilitate the commission of the act charged." We further held at paragraph two of the syllabus, "The complicity statute, R.C. 2923.03, does not apply to the juvenile bindover criteria set forth in R.C. 2151.26."

Shortly following our decision in Hanning, Agee filed a petition in the Court of Appeals for Warren County for a writ of habeas corpus to compel appellee, his prison warden, to release him from prison. Agee claimed that under Hanning, his trial court lacked jurisdiction to try, convict, and sentence him because the juvenile court bindover was invalid. The warden moved for summary judgment, contending that Hanning did not apply to Agee's case, that bindover was proper under R.C. 2151.26(B)(3)(a), and that Agee had adequate legal remedies to raise his claims.

In October 2000, the court of appeals granted the warden's motion and denied the writ. The court of appeals reasoned that Hanning could not be applied retroactively to Agee. This cause is now before the court upon Agee's appeal as of right. The Ohio Public Defender filed an amicus curiae brief on behalf of Agee.

92 Ohio St.3d 543
Agee asserts that the court of appeals erred in denying the writ. We hold that although the court of appeals may have erred in its rationale, its judgment is correct and is affirmed

Agee initially claims that the court of appeals erred in holding that, pursuant to Teague v. Lane (1989), 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334, and Pinch v. Maxwell (1965), 3 Ohio St.2d 212, 32 O.O.2d 504, 210 N.E.2d 883, the court's decision in Hanning cannot be retroactively applied to him. For the reasons that follow, Agee's claim has merit.

Teague is not applicable here. In Teague, the United States Supreme Court held, "Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the rules are announced." Teague, 489 U.S. at 310, 109 S.Ct. at 1075, 103 L.Ed.2d at 356. For purposes of retroactivity analysis, a case becomes final when a judgment of conviction is entered, the availability of appeal is exhausted, and the time for a petition for certiorari has elapsed before the declaration of the new ruling. Id. at 295, 109 S.Ct. at 1067, 103 L.Ed.2d at 346.

Unlike Teague, this case does not involve the application of a new constitutional rule of criminal procedure. Instead, it involves our interpretation of R.C. 2151.26 in Hanning. Teague is inapplicable to cases in which a court determines the meaning of a statute enacted by the legislature. Bousley v. United States (1998), 523 U.S. 614, 620, 118 S.Ct. 1604, 1610, 140 L.Ed.2d 828, 838, holding that Teague does not apply to cases in which the United States Supreme Court decides the meaning of a criminal statute enacted by Congress.

Pinch is similarly inapposite. In Pinch, we applied factors set forth by the United States Supreme Court in Linkletter v. Walker (1965), 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, to deny retrospective operation of a new constitutional rule to a habeas corpus case. But as noted previously, this case does not involve a new constitutional rule. And Linkletter was subsequently overruled. See, e.g., Teague; Griffith v. Kentucky (...

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