State v. Oviedo

• Citation: 5 OBR 351,5 Ohio App.3d 168,450 N.E.2d 700
• Parties: , 5 O.B.R. 351 The STATE of Ohio, Appellee, v. OVIEDO, Appellant. *
• Decision Date: 12 March 1982
• Court: Ohio Court of Appeals

Page 168

5 Ohio App.3d 168

450 N.E.2d 700, 5 O.B.R. 351

The STATE of Ohio, Appellee, v. OVIEDO, Appellant. ^*

Court of Appeals of Ohio, Sixth District, Wood County.

March 12, 1982.

Syllabus by the Court

1. When the juvenile court makes a determination as to a juvenile offender's amenability to rehabilitation it must consider the five factors set forth in Juv.R. 30(E); however, the juvenile court need not resolve all of these factors against the juvenile to warrant the court in relinquishing its jurisdiction and transferring him for prosecution as an adult.

2. Pursuant to Juv.R. 30(G), an order of transfer is sufficient if it demonstrates that the statutory requirement of "full investigation" has been met and that the issue has received the full attention of the juvenile court.

Betty Montgomery, Bowling Green, for appellee.

Julia Casey, Toledo, for appellant.

WILEY, Judge.

The appeal herein is from a judgment of the Court of Common Pleas of Wood County entered May 26, 1981, wherein the defendant was sentenced for the offense of murder, a violation of R.C. 2903.02, to be imprisoned in the Columbus Correctional Facility for an indefinite term of a minimum of fifteen years and a maximum term of life.

The alleged offense occurred on November 16, 1980, at which time the defendant-appellant, Arthur James Oviedo (hereinafter referred to as the "appellant"), was a little over seventeen years of age, having been born on the 27th day of July, 1963. ¹ About 12:15 to 12:30 a.m., on November 16, 1980, the appellant and five other male persons, one of whom was an adult, attempted to enter premises known as the Uptown-Downtown Bar located in Bowling Green, Ohio. Four of the six were refused entrance by an employee of the bar, one Steven Bowers, the victim herein. The reason for the refusal was that they did not have proper identification. These four later entered the premises by the back door without permission and thereafter confronted Steven Bowers inside the premises. An altercation took place during which several bottles of beer were thrown at Bowers and Rich Kohler, the manager of the bar. Thereupon, Bowers, having previously asked the youths to leave, pushed them through the rear door, at which time Bowers and the youths became entangled and physical violence took place. The end result was that Steven Bowers was beaten with certain brass knuckles and stabbed several times, as a result of which stab wounds he died. The appellant was apprehended later the same morning.

Pursuant to R.C. 2151.26, Juv.R. 29 and 30, proceedings were had in the Juvenile Court of Wood County.

The first of ten assignments of error is stated:

"1. The trial court lacked jurisdiction to hear the case at bar because the transfer of jurisdiction was contrary to law and denied appellant fundamental fairness and due process of law in violation of Article I, Section 16 of the Ohio Constitution and the Fourteenth Amendment to the Constitution of the United States."

The record indicates that the court conducted an adjudicatory hearing required by Juv.R. 29 and proceedings for the transfer of jurisdiction as required by Juv.R. 30. At the preliminary hearing required by Juv.R. 30, the court determined that there was probable cause to believe that the appellant committed the act alleged; that such act would be a felony if committed by an adult; and by stipulation that the juvenile was over fifteen years of age. The court continued the proceedings for a full investigation. The investigation included a mental and physical examination of the appellant by the Ohio Youth Commission. Thereafter, a further hearing was held to determine whether to transfer jurisdiction. Specifically, the appellant contends that the record does not disclose any basis for the finding required by Juv.R. 30(C) that the appellant was not amenable to rehabilitation in any juvenile facility. We disagree. Juv.R. 30 provides, in pertinent part:

"(C) Prerequisites to transfer. The proceedings may be transferred if the court finds there are reasonable grounds to believe:

"(1) The child is not amenable to care or rehabilitation in any facility designed for the care, supervision and rehabilitation of delinquent children; and

"(2) The safety of the community may require that the child be placed under legal restraint for a period extending beyond the child's majority.

" * * *

"(E) Determination of amenability to rehabilitation. In determining whether the child is amenable to the treatment or rehabilitative processes available to the juvenile court, the court shall consider:

"(1) The child's age and his mental and physical health;

"(2) The child's prior juvenile record;

"(3) Efforts previously made to treat or rehabilitate the child;

"(4) The child's family environment; and

"(5) School record.

" * * *

"(G) Order of transfer. The order of transfer shall state the reasons therefor."

The judgment entry transferring the appellant from the juvenile court division to the court of common pleas fully complied with the Juvenile Rules and also fully complied with the requirements set forth in Kent v. United States (1966), 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 , and in In re Gault (1967), 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 . The pertinent parts of the judgment entry of the juvenile court state:

"It is the finding that Arthur James Oviedo, born the 23rd day of July, 1963, and being 17 years of age, that he probably committed the act alleged in the complaint filed in this matter, and that such act if committed by an adult would be a felony; and, it is further found that pursuant to an order of this Court, Arthur James Oviedo has had a mental and physical exam as required by Rule 30 of the Juvenile Rules of procedure [sic ], and the Court has given full consideration to the child's age, his mental and physical ability, his prior juvenile record, efforts previously made to treat and rehabilitate him, family [sic ], environment, school record, and other matters of evidence.

"It is further found that Arthur James Oviedo is not amenable to the care or rehabilitation in any facility designed for the care, supervision, and rehabilitation of delinquent children; and, the safety of the community requires that he be placed under legal restraint for a period extending beyond the child's majority."

The record further reveals that at the hearing on December 31, 1980, after the completion of the investigation pursuant to Juv.R. 30(D), the report of the Ohio Youth Commission relative to the mental and physical examination of the appellant was before the court; the school records were before the court; counsel for the defense made reference to the previous contacts that the appellant had had with the court.

The school records contain, in part, references to the poor, but passing, grades of the appellant and repeated suspensions for tardiness; on February 5, 1979, the appellant was expelled from the Perrysburg Public Schools for a period beginning February 6, 1979, to and including June 6, 1979, for excessive tardiness. The school record also indicates a three-day suspension for a first offense for fighting, the suspension being from January 22, 1979, to January 24, 1979, inclusive.

The psychological report from the Scioto Village Diagnostic Unit of Powell, Ohio, a diagnostic center of the Ohio Youth Commission, indicates, among other facts, that the appellant had a history of delinquency dating back to January 1979, and included such charges as petty theft, breaking and entering, receiving stolen property, theft, criminal mischief and criminal damaging. For some of these offenses appellant had been placed on probation, but other unspecified charges were eventually dismissed. This report further reveals that the appellant had been at the Scioto Village Diagnostic Unit in September 1979, and was given a full study at that time, including a psychological examination. This report also indicates that the appellant continued to live with his parents in Perrysburg, Ohio. This court takes judicial notice of the fact that Perrysburg, Ohio, is a small city approximately ten to fifteen miles from Bowling Green, the place where the alleged offense involved herein was committed. The diagnostic unit report further reveals that the appellant had finished the eighth grade "and historical material indicates that he is in the ninth grade for 'the third time' * * *. He claimed one of the reasons he did not do better in school was that he was 'always fighting with the teachers.' " The report further reveals that the appellant indicated that "he had smoked pot for about two years, at least, and admitted to some consumption of alcohol, although he denied that he was addicted to either of these substances. He denied ever using pills or hard drugs in any form.

"Asked about prior contacts with the court, Arthur said he had been in contact with the police 'about 20 times.' "

The report further indicated that intellectually the appellant was functioning within the bright normal limits with a full-scale IQ score of 110. The psychologist who had examined the appellant recommended that the appellant be handled as a juvenile rather than as an adult in that he had never previously been given the opportunity for rehabilitation in a Youth Commission facility. He further stated, in part:

"The boy does need a period of rehabilitation that includes reasonable structure, guidance, and supervision by adequate male figures, as well as individual and group counselling. He also needs to be involved in a vocational program of some sort which will help him attain and sustain economic independence once he returns to the community. * * * Hopefully, if possible, a therapist with a personal cultural background in Mexican-American systems and values (e.g., one who has been through what Arthur is currently going through) could be obtained to help Arthur in an on-going way, whatever placement might be decided for him by ...