State v. Sims

• Decision Date: 08 December 1977
• Citation: 380 N.E.2d 1350,55 Ohio App.2d 285
• Parties: , 9 O.O.3d 417 The STATE of Ohio, Appellee, v. SIMS, Appellant. *
• Court: Ohio Court of Appeals

Page 285

55 Ohio App.2d 285

380 N.E.2d 1350, 9 O.O.3d 417

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

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Dec. 8, 1977.

Syllabus by the Court

1. A juvenile defendant is not placed twice in jeopardy where a Juvenile Court has not adjudicated the defendant to be either delinquent or incapable of rehabilitation, but has merely found such defendant to have "committed acts which, if committed by an adult, would be felonies."

2. Informal proceedings conducted in a Juvenile Court in 1962 for the purpose of determining whether or not to bind over a juvenile defendant to be tried as an adult do not constitute an "adjudicatory hearing" as described in Breed v. Jones (1975), 421 U.S. 519, 95 S.Ct. 1799, 44 L.Ed.2d 346.

3. The standard which guided the courts in deciding whether or not to accept a defendant's guilty plea prior to the passage of Crim. R. 11, does not require that a defendant personally respond to each of the court's inquiries where the defendant is represented by able counsel present at the time the plea is offered and accepted.

John T. Corrigan, Pros. Atty., for appellee.

Michael C. Hennenberg, Cleveland, for appellant.

STILLMAN, Judge.

This case originates from proceedings which took place in the Juvenile Court of Cuyahoga County, Case No. 199-928, on February 27, 1962. A citation and warrant were issued on that date against the appellant, James Sims. On March 27, 1962, following a proceeding in the Juvenile Court, it was determined that the appellant be bound over to the Court of Common Pleas in accordance with the then current provisions of R. C. 2151.26. On April 11, 1962, the Grand Jury of Cuyahoga County indicted the appellant on two counts of first degree murder. On June 7, 1962, after waiving a jury trial, the appellant and a codefendant appeared before a three judge court in Common Pleas Case No. 76263. Both the appellant and his codefendant entered pleas of guilty and were tried by the judicial panel in accordance with the provisions of R. C. 2945.06.

The trial concluded with the conviction of both defendants on both counts of first degree murder. The court, recommending mercy, sentenced each defendant to life terms on each count to be served consecutively, with the defendants also being ordered to serve in solitary confinement for each year of their sentences from February 12 through February 23. On July 24, 1962, motions for reconsideration of the sentence were filed by both defendants and were rejected by the court. On June 29, 1970, a motion by the appellant to vacate and set aside the judgment was similarly denied. On May 17, 1976, the appellant filed a Pro se motion for leave to appeal together with his affidavit of indigency and a notice of appeal to this court. These motions were duly granted and the case is before this court accordingly.

The appellant, James Sims, was 17 years of age at the time of his arrest in 1962. He was charged with the murder of William C. Beasley on February 18, 1962, and was also accused of two armed robberies on February 16 and February 23, 1962. At the proceedings which took place on March 28, 1962, the Juvenile Court bound the appellant over to the Court of Common Pleas. No transcript of the proceedings is available, and it does not appear that any stenographic record was ever made. Following the bind-over and the Grand Jury indictment, the appellant was tried before the Common Pleas Court of Cuyahoga County with appointed counsel defending. The three judge panel consisted of Judges J. J. P. Corrigan, Charles White and Earl Hoover. Mr. Norman Minor, the appellant's counsel, withdrew an earlier "not guilty" plea and entered a plea of "guilty" to homicide generally. The court accepted the "guilty" plea and tried the case on the issue of degree of culpability. The uncontradicted evidence indicated that the appellant had not fired the three fatal shots into the body of William Beasley, but that his codefendant had done so. The appellant's testimony on his own behalf constituted admissions of participation in the crime charged as well as in various offenses introduced under the "Similar Acts Statute," R. C. 2945.59.

The court found both defendants guilty, and it is from this finding that the appellant has appealed, assigning two errors:

"First Assignment of Error:

"The appellant was denied due process of law as the result of having been twice put in jeopardy, in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Art. I, § 10 of the Ohio Constitution, and therefore, his conviction in his second trial must be reversed as a matter of law.

"Second Assignment of Error:

"The trial court erred in accepting the appellant's guilty plea without making any determination as to whether such plea was knowingly, intelligently and voluntarily made, in violation of the appellant's rights to a trial by jury and to face his accusers, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Art. 1, § 10 of the Ohio Constitution."

The first assignment of error is based upon the view that the proceedings before the Juvenile Court had placed the appellant in jeopardy and that his subsequent conviction by the Court of Common Pleas was therefore a violation of the Fifth and Fourteenth Amendments to the Constitution of the United States. Benton v. Maryland (1969), 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707.

The appellant relies primarily on Breed v. Jones (1975), 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346. In Breed, supra, the Supreme Court of the United States found that the Juvenile Court of Los Angeles County had conducted a "jurisdictional or adjudicatory hearing" prior to binding the defendant over to be tried as an adult. Testimony was taken from the prosecution's witnesses and the respondent by the Juvenile Court. A "dispositional hearing" was also ordered, and the juvenile was ordered detained for a two week period pending such a subsequent hearing. At the latter hearing, the Juvenile Court indicated its intention to find the juvenile "not amenable to the care, treatment and training program available through the facilities of the Juvenile Courts". The juvenile's counsel requested a continuance which was granted for one week. Upon the expiration of that period, after considering the report of a probation officer, the court declared the juvenile unfit for treatment as such and ordered that he be prosecuted as an adult. The juvenile was subsequently tried and found guilty of the charges against him.

The language of the United States Supreme Court in finding double jeopardy is illuminating in this case. The court declared at page 529, 95 S.Ct. at page 1786:

"(T)here is little to distinguish an adjudicatory hearing such as was held in this case from a traditional criminal prosecution * * *."

"Jeopardy attached when respondent was 'put to trial before the trier of the facts,' (U. S. v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543) 400 U.S., at 479, 91 S.Ct., at 554, that is, when the Juvenile Court, as the trier of the facts, began to hear evidence. See Serfass v. United States, 420 U.S. (377), at 388, 95 S.Ct. (1055), at 1062, 43 L.Ed.2d 265," Id., at 531, 95 S.Ct. at 1787.

In a significant footnote, the court stated:

"We note that nothing decided today forecloses States from requiring, as a prerequisite to the transfer of a juvenile, substantial evidence that he committed the offense charged, so long as the showing required is not made in an adjudicatory proceeding. See Collins v. Loisel, 262 U.S. 426, 429, 43 S.Ct. 618, 625, 67 L.Ed. 1062 (1923); Serfass v. United States, 420 U.S. 377, 391-392, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975). The instant case is not one in which the judicial determination was simply a finding of, E. g., probable cause. Rather, it was an adjudication that respondent had violated a criminal statute." Id., at 538 n. 18, 95 S.Ct. at 1790.

Applying the principles enunciated in Breed, supra, to the facts of the instant case, we must note that the court docket is our only datum for describing the proceedings which occurred before the Juvenile Court of Cuyahoga County. Because of its significance in this case, we reproduce it in full.

"2-27-62 Petition filed. Citation and warrant issued.

"2-27-62 To Court: This matter came on for hearing this twenty-seventh day of February, 1962, before the Honorable Albert A. Woldman upon the application of Cleveland Police Department, the Court being fully advised of the circumstances, permission is granted to the Cleveland Police Department to finger print and photograph the minor herein in accordance with the provision of Section 2151.31 Ohio Revised Code within the next ten (10) days.

"2-28-62 Warrant returned and filed.

"3-19-62 Citation returned and filed.

"3-27-62 To Court: This twenty-seventh day of March, 1962, James Samuel Sims, a minor of about the age of seventeen years, came before the Honorable Albert A. Woldman upon the petition of Charles R. Reynolds alleging that James Samuel Sims is a delinquent child in this: that on or about February 16, 1962, at 4502 St. Clair Avenue, Cleveland, Ohio, he did unlawfully, and by putting in fear while armed with a dangerous weapon, to wit, a pistol, rob from the person of one, Dorothy Kulas, cash in the approximate amount of $1069.00, contrary to the statute in such case made and provided for and against the peace and dignity of the State of Ohio. That on or about February 18, 1962, at 3005 Woodhill Road, Cleveland, Ohio, he did unlawfully, purposely and while in the perpetration of a robbery, kill one, William C. Beasley, contrary to the form of the statute in such case made and provided for and against the peace and dignity of the State of Ohio. That on or about February 23, 1962, at 6938 Kinsman Road Cleveland, Ohio, he did unlawfully, and by putting in fear while armed with a dangerous weapon, to...