State v. Andre I. Payne

• Decision Date: 13 March 1997
• Docket Number: 13-96-40,97-LW-0372
• Court: Ohio Court of Appeals
• Parties: STATE OF OHIO, PLAINTIFF-APPELLEE v. ANDRE I. PAYNE, DEFENDANT-APPELLANT CASE NUMBER 13-96-40

STATE OF OHIO, PLAINTIFF-APPELLEE v. ANDRE I. PAYNE, DEFENDANT-APPELLANT

No. 13-96-40

97-LW-0372 (3rd)

Court of Appeals of Ohio, Third District Seneca

March 13, 1997

Criminal Appeal from Common Pleas Court.

GENE P MURRAY, Attorney at Law, Reg. #0006962, 227 W. Center Street Fostoria, OH 44830, For Appellant.

PAUL F KUTSCHER, JR., Prosecuting Attorney, Reg. #0023673, Elaine J. Knutson, Reg. #0020771, 8l Jefferson Street, Tiffin, OH 44883, For Appellee.

OPINION

HADLEY J.

Defendant-appellant, Andre I. Payne ("appellant"), appeals the judgment of the Seneca County Common Pleas Court following a jury trial finding appellant guilty of two counts of felonious assault in violation of R.C. 2903.11(A)(2). Appellant sets forth two grounds for his appeal. First, he alleges the judgment against him is void ab initio on the basis that the Seneca County Common Pleas Court did not have subject matter jurisdiction over the case. Secondly, appellant contends that the judgment against him is void ab initio on the basis that the Seneca County Common Pleas Court subjected appellant to double jeopardy in violation of the United States and Ohio Constitutions. For the reasons that follow we overrule appellant's assignments of error and affirm the judgment of the trial court.

Appellant's convictions arise from an incident which occurred on November 30, 1995, in Fostoria, Ohio. While attending an unsupervised party of juveniles, sixteen year old Andrew Grine suffered a slashing type of knife wound to his face. The cut extended from the victim's left ear to the corner of the left side of his mouth. After interviewing the victim and other juveniles who witnessed the attack, Sergeant Charles Gerritsen of the Fostoria Police Department signed a complaint on December 26, 1995, alleging that appellant, a seventeen year old, was a delinquent child pursuant to the terms of R.C. 2151.02 for violating R.C. 2903.11(A), the statute prohibiting felonious assault.

On March 8, 1996, the State of Ohio filed a motion pursuant to R.C. 2151.26 to transfer appellant's case to the Seneca County Common Pleas Court, Criminal Division, for prosecution as an adult. On April 29, 1996, the Seneca County Juvenile Court held the preliminary hearing regarding appellant's bind over to common pleas court. Having found probable cause, and subsequently finding that the appellant was not amenable to rehabilitation as a juvenile, the juvenile court relinquished exclusive jurisdiction to the Seneca County Common Pleas Court for prosecution.

Appellant was indicted on two counts of felonious assault on June 6, 1996, in violation of R.C. 2903.11(A)(2) and R.C. 2903.11(A)(1). On July 16, 1996, after a two day trial appellant was convicted of both counts of felonious assault. Appellant is currently serving a sentence of three to fifteen years in a state correctional facility.

This appeal follows with appellant asserting two assignments of error. In his first assignment of error^[1] appellant alleges that his judgment of conviction and sentence is void ab initio because the common pleas court lacked subject matter jurisdiction to hear the case. Appellant's belief that the common pleas court lacked jurisdiction is based on the assertion that the juvenile court had no authority to bind the appellant over to common pleas court. In appellant's Juv.R. 30 preliminary hearing the juvenile court judge stated:

"* * * the court is of the opinion that there, * * * has been probable cause shown as required by the State.

* * * [T]here is no question in this Court's mind it [the offense] did occur and that Andre Payne was the one that did it. * * * [C]ertainly has been proved beyond a reasonable doubt. All right. Its been proven as required by law in a preliminary hearing in this matter that there is probable cause."

The juvenile court judge, appellant contends, cannot hold a Juv.R. 30 amenability hearing after stating in the preliminary hearing portion of the bind over proceedings that the court found appellant committed the offense beyond a reasonable doubt. Appellant asserts that to allow the juvenile court judge to hold an amenability hearing after finding the appellant guilty beyond a reasonable doubt in an evidentiary hearing would unfairly prejudice appellant, denying appellant a fair and impartial amenability hearing. The failure to have a fair and impartial amenability hearing, appellant contends, prevents the court from properly binding appellant's case over to the common pleas court. Thus, a verdict reached by the common pleas court would be without subject matter jurisdiction and is void ab initio.

Ohio statutory law permits a juvenile court to waive exclusive jurisdiction over a juvenile fifteen years old or older and transfer the juvenile to criminal court for prosecution. R.C. 2151.26; Juv.R. 30. Before a transfer to criminal court takes place the juvenile court conducts a preliminary hearing where the court determines whether probable cause exists that the juvenile committed the alleged offense and that the offense would constitute a felony if committed by an adult. If probable cause exists the juvenile court will continue the case for a full investigation. Before the case is transferred to criminal court the juvenile court must also hold a hearing to determine whether reasonable grounds exist demonstrating that the juvenile is not amenable to rehabilitative treatment as a juvenile. If the juvenile court binds the juvenile over to criminal court for prosecution as an adult, the order should not be reversed absent an abuse of discretion. State v. Douglas (1985), 20 Ohio St.3d 34, 37; State v. Watson (1989), 47 Ohio St.3d 93, 95.

The issue of determining whether a juvenile court judge denied a juvenile a fair and impartial amenability hearing appears to be a case of first impression in this state. A juvenile has due process rights and a right to fair treatment in the bind over process from juvenile court to criminal court. Kent v. U.S. (1966), 383 U.S. 541, 562. "[T]he juvenile should be afforded the traditional due process protections in judicial waiver proceedings enjoyed by adults accused of crime." In re Snitzky (1995), 73 Ohio Misc.2d 52, 57, quoting People v. Hana (Mich. 1993), 504 N.W.2d 166, 179 (Cavanaugh, C.J., dissenting). "[T]he [bind over] hearing must measure up to the essentials of due process and fair treatment." Kent v. U.S., 383 U.S. at 562; In re Gault (1966), 387 U.S. 1, 30.

"Due process demands that in any fair hearing accused persons are judged by an impartial body. Without the presence of an impartial decisionmaker, fair procedures are meaningless and an accused's due process rights are violated." Manos v. Harter (1995), 104 Ohio App.3d 430, 432; Moore v. Ohio (1928), 118 Ohio St. 487, paragraph one of the syllabus.

As a prerequisite to transferring a juvenile to criminal court a juvenile court needs to find in an amenability hearing that "there are reasonable grounds to believe * * * [t]he child is not amenable to care or rehabilitation in any facility designed for the care, supervision and rehabilitation of delinquent children[,] and * * * [t]he safety of the community may require that the child be placed under legal restraint for a period extending beyond the child's majority." Juv.R. 30(C)(1), (2).

In the present case, appellant asserts that the a statement in the preliminary hearing proceedings in juvenile court by the judge stating that appellant committed the offense beyond a reasonable doubt removed any fairness or impartiality for that same judge to later determine appellant's amenability. We find, however, that the judge's personal opinion as to whether a juvenile committed the offenses alleged is not related to whether the juvenile is amenable to rehabilitation. If, for instance, a juvenile in his preliminary hearing proceeding admits to committing an alleged felony, he is not automatically bound over to the criminal court. The juvenile may admit to committing the offense as a plea bargain-type of arrangement to keep the proceeding in the juvenile court system. The juvenile court judge must still evaluate the juvenile to determine his amenability to rehabilitation. The juvenile court judge may believe that the juvenile committed the offense, but that the juvenile is completely amenable to rehabilitation. The belief that a particular juvenile committed the alleged offense simply does not bear on whether that individual is amenable to rehabilitation.

Thus a juvenile who is found to have committed the offense beyond a reasonable doubt or admits to have committed the alleged offenses in the Juv.R. 30 preliminary hearing, without more, receives a fair and impartial amenability hearing by the same juvenile court judge. Therefore, we find that appellant...