[Cite as State v. Brookshire,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO

Plaintiff-Appellee

v.

LV LAVELL BROOKSHIRE

Defendant-Appellant

Appellate Case No. 25853

Trial Court Case No. 2013-CR-00635/02

(Criminal Appeal from (Common Pleas Court) ...........

OPINION

Rendered on the 9th day of May, 2014.

...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

BROOKE M. BURNS, Atty. Reg. No. 0080256, Assistant State Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215 Attorney for Defendant-Appellant

.............

WELBAUM, J. 2

{¶ 1} Defendant-appellant, LV Lavell Brookshire, a juvenile, appeals from his

conviction in the Montgomery County Court of Common Pleas for aggravated robbery and

kidnapping after the matter was transferred from juvenile court pursuant to R.C. 2152.10 and

R.C. 2152.12. For the reasons outlined below, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} On January 28, 2013, a delinquency complaint was filed against Brookshire in

juvenile court alleging that he had committed offenses that if he were an adult would have

constituted four counts of aggravated robbery in violation of R.C. 2911.01(A)(2) and three counts

of kidnapping in violation of R.C. 2905.01. Each count also included a firearm specification

under R.C. 2941.145. The charges arose from the January 20, 2013 robbery of a fast-food

restaurant in Huber Heights, Ohio. During the robbery, two males in masks held three

individuals at gunpoint and forced them into the restaurant’s bathroom. Shortly after the

robbery, the police found Brookshire in a van that was identified by witnesses as the robbers’

get-away vehicle. Brookshire was also identified as one of the robbers by two witnesses who

saw him take off his mask.

{¶ 3} After the delinquency complaint was filed, the State filed a motion to transfer

jurisdiction of the case to the general division of the common pleas court (“adult court”), so that

Brookshire could be tried as an adult. The juvenile court then held a probable cause hearing in

order to determine whether transfer to adult court was appropriate under R.C. 2152.10 and R.C.

2152.12. Following the probable cause hearing, the juvenile court found that: (1) Brookshire

was 16 years old at the time of the charged offenses; (2) there was probable cause to believe that 3

Brookshire had committed the offenses; and (3) Brookshire had brandished a firearm during the

commission of the offenses. Based on these findings, the juvenile court determined that

Brookshire’s aggravated robbery charges must be transferred to adult court. The court also

ordered Brookshire’s kidnapping charges, which were subject to discretionary transfer, to be

transferred on grounds that they attached to the aggravated burglary charges. In reaching this

decision, the juvenile court did not conduct any further investigation or hold an amenability

hearing.

{¶ 4} On March 22, 2013, following the transfer of Brookshire’s case to adult court,

Brookshire was indicted on all charges and specifications brought in juvenile court. Thereafter,

on June 19, 2013, Brookshire pled guilty to two counts of aggravated robbery, one count of

kidnapping, and one firearm specification. The remaining counts and firearm specifications

were dismissed by the State pursuant to a plea agreement. The trial court then sentenced

Brookshire to a concurrent three-year prison term for each of his three offenses, as well as a

consecutive three-year prison term for the firearm specification, for a total of six years in prison.

{¶ 5} Brookshire now appeals from his conviction in adult court, raising five

assignments of error.

Assignment of Error No. 1

{¶ 6} Brookshire’s First Assignment of Error is as follows:

THE MONTGOMERY COUNTY COURT OF COMMON PLEAS ERRED

WHEN IT CONVICTED AND SENTENCED LV BROOKSHIRE FOR

KIDNAPPING, BECAUSE IT DID NOT HAVE SUBJECT MATTER 4

JURISDICTION OF HIS KIDNAPPING CHARGE.

{¶ 7} Under this assignment of error, Brookshire contends that the juvenile court

improperly transferred his kidnapping charges to adult court, because the juvenile court failed to

hold an amenability hearing as required by R.C. 2152.12(B) and (F). As a result of the alleged

improper transfer, Brookshire argues that the adult court never had jurisdiction to convict him of

kidnapping. Given the lack of jurisdiction, Brookshire maintains that his conviction for

kidnapping is void and must be vacated so the matter can be returned to the juvenile court for an

amenability hearing.

Jurisdiction

{¶ 8} “Juvenile courts possess exclusive jurisdiction over children alleged to be

delinquent for committing acts that would constitute a crime if committed by an adult.” In re

M.P.,

,

,

, citing R.C. 2151.23(A)(1).

However, under certain circumstances, “the juvenile court has the duty to transfer a case, or bind

a juvenile over, to the adult criminal system.”

citing R.C. 2152.10 and 2152.12. There are

two types of transfer under Ohio’s juvenile justice system: mandatory and discretionary. State v.

D.W.,

,

,

. “ ‘Mandatory transfer

removes discretion from judges in the transfer decision in certain situations.’ * * * ‘Discretionary

transfer, as its name implies, allows judges the discretion to transfer or bind over to adult court

certain juveniles who do not appear to be amenable to care or rehabilitation within the juvenile

system or appear to be a threat to public safety.’ ”

quoting State v. Hanning,

,

(2000); R.C. 2152.12(A) and (B). When a juvenile court improperly 5

transfers jurisdiction over a minor to adult court, any subsequent conviction in the adult court is

void for lack of jurisdiction. State v. Washington, 2d Dist. Montgomery No. 20226,

, citing State v. Wilson,

,

(1995).

Mandatory Transfer

{¶ 9} R.C. 2152.10(A) provides that, under certain circumstances, a juvenile court

must transfer cases to adult court for criminal prosecution “as provided in section 2152.12 of the

Revised Code.” Specifically, section (A)(2)(b) of the statute states that an alleged juvenile

delinquent is eligible for mandatory transfer when:

(2) The child is charged with a category two offense, other than a violation of

section 2905.01 of the Revised Code, the child was sixteen years of age or older at

the time of the commission of the act charged, and either or both of the following

apply:

***

(b) The child is alleged to have had a firearm on or about the child’s person or

under the child’s control while committing the act charged and to have displayed

the firearm, brandished the firearm, indicated possession of the firearm, or used

the firearm to facilitate the commission of the act charged. R.C.

2152.10(A)(2)(b).

{¶ 10} R.C. 2152.12(A) establishes the procedure a juvenile court must follow for

mandatory transfers. Section (A)(1)(b)(ii) of the statute states that:

(b) After a complaint has been filed alleging that a child is a delinquent child by 6

reason of committing a category two offense, the juvenile court at a hearing shall

transfer the case if the child was sixteen or seventeen years of age at the time of

the act charged and either of the following applies:

***

(ii) Division (A)(2)(b) of section 2152.10 of the Revised Code requires the

mandatory transfer of the case, and there is probable cause to believe that the child

committed the act charged. R.C. 2152.12(A)(1)(b)(ii).

Discretionary Transfer

{¶ 11} R.C. 2152.10(B) provides that an alleged juvenile delinquent is eligible for

discretionary transfer under the following circumstances:

Unless the child is subject to mandatory transfer, if a child is fourteen years of

age or older at the time of the act charged and if the child is charged with an act

that would be a felony if committed by an adult, the child is eligible for

discretionary transfer to the appropriate court for criminal prosecution. In

determining whether to transfer the child for criminal prosecution, the juvenile

court shall follow the procedures in section 2152.12 of the Revised Code.

{¶ 12} Section (B) of R.C. 2152.12 governs the procedure for discretionary transfers and

provides that a juvenile court may transfer a case if, after a hearing, the court makes certain

findings, including that the juvenile is not amenable to rehabilitation in the juvenile system. The

statute specifically states that:

Except as provided in division (A) of this section, after a complaint has been filed 7

alleging that a child is a delinquent child for committing an act that would be a

felony if committed by an adult, the juvenile court at a hearing may transfer the

case if the court finds all of the following:

(1) The child was fourteen years of age or older at the time of the act charged.

(2) There is probable cause to believe that the child committed the act

charged.

(3) The 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. In making its decision under this division, the

court shall consider whether the applicable factors under division (D) of

this section indicating that the case should be transferred outweigh the

applicable factors under division (E) of this section indicating that the case

should not be transferred. The record shall indicate the specific factors

that were applicable and that the court weighed. R.C. 2152.12(B).

Transfer When Juvenile Is Charged With Both Mandatory

and Discretionary Transfer Offenses

{¶ 13} R.C. 2152.12(F) establishes the procedure a juvenile court must follow when a

juvenile has been charged with multiple offenses and one, but not all of the alleged charges are an

offense that requires mandatory transfer. The statute states that:

If one or more complaints are filed alleging that a child is a delinquent child for

committing two or more acts that would be offenses if committed by an adult, if a 8

motion is made alleging that division (A) of this section applies and requires that

the case or cases involving one or more of the acts charged be transferred for, and

if a motion also is made requesting that the case or cases involving one or more of

the acts charged be transferred pursuant to division (B) of this section, the juvenile

court, in deciding the motions, shall proceed in the following manner:

(1) Initially, the court shall decide the motion alleging that division (A) of

this section applies and requires that the case or cases involving one or

more of the acts charged be transferred.

(2) If the court determines that division (A) of this section applies and

requires that the case or cases involving one or more of the acts charged be

transferred, the court shall transfer the case or cases in accordance with

that division. After the transfer pursuant to division (A) of this section,

the court shall decide, in accordance with division (B) of this section,

whether to grant the motion requesting that the case or cases involving one

or more of the acts charged be transferred pursuant to that division.

Notwithstanding division (B) of this section, prior to transferring a case

pursuant to division (A) of this section, the court is not required to

consider any factor specified in division (D) or (E) of this section or to

conduct an investigation under division (C) of this section.

(3) If the court determines that division (A) of this section does not require

that the case or cases involving one or more of the acts charged be

transferred, the court shall decide in accordance with division (B) of this 9

section whether to grant the motion requesting that the case or cases

involving one or more of the acts charged be transferred pursuant to that

division.

(4) No report on an investigation conducted pursuant to division (C) of this

section shall include details of the alleged offense as reported by the child.

{¶ 14} In applying the statutory scheme in R.C. 2152.12(F), this court, in Washington,

2d Dist. Montgomery No. 20226,

, held that when a mandatory transfer offense

and a “non-category” (discretionary transfer) offense arise from the same course of conduct and

the juvenile court properly transfers the mandatory transfer offense to the adult court, all further

proceedings on the discretionary transfer offense are discontinued in the juvenile court pursuant

to R.C. 2152.12(I), and the juvenile court is relieved of the requirements under R.C. 2152.12(F).

Id. at ¶ 26. R.C. 2152.12(I) states, in pertinent part, that:

The transfer abates the jurisdiction of the juvenile court with respect to the

delinquent acts alleged in the complaint, and, upon the transfer, all further

proceedings pertaining to the act charged shall be discontinued in the juvenile

court, and the case then shall be within the jurisdiction of the court to which it is

transferred as described in division (H) of section 2151.23 of the Revised Code.

{¶ 15} In State v. Henderson, 2d Dist. Montgomery No. 21866,

, this

court interpreted and applied R.C. 2152.12(I) in the same manner as in Washington. In

Henderson, the defendant was charged in juvenile court with aggravated robbery, aggravated

burglary, and kidnapping. Id. at ¶ 1. Unlike the aggravated robbery and aggravated burglary

charges, the kidnapping charge was not eligible for mandatory transfer per R.C. 2152.10(A)(2). 10

Id. at ¶ 14. In following Washington, we noted that R.C. 2152.12(I) “ ‘mandates transfer of a

“non-category offense” charge when it is founded on the same course of conduct as another

offense which must be transferred * * *.’ ” Id., quoting Washington at ¶ 25. Because transfer

of the aggravated robbery and aggravated burglary charges to adult court was mandatory under

R.C. 2152.10 and R.C. 2152.12, and the kidnapping charge arose from the same course of

conduct, we concluded that the juvenile court’s jurisdiction over the kidnapping charge

transferred to adult court along with the other charges and that the juvenile court was, therefore,

not required to make the discretionary transfer findings in R.C. 2152.12(B). Id.

{¶ 16} Brookshire suggests that we revisit our interpretation and application of R.C.

2152.12(I) in Washington and Henderson due to recent developments and clarifications in Ohio

law. Specifically, Brookshire cites a recent decision from the Tenth District Court of Appeals,

State v. Brown, 10th Dist. Franklin No. 13AP-349,

. In Brown, the State filed

two complaints against the defendant in juvenile court, one alleging that the defendant committed

aggravated robbery–a mandatory transfer offense–and the other alleging that the defendant

committed burglary–a discretionary transfer offense. Id. at ¶ 3-5. The aggravated robbery and

burglary were committed via separate acts and on separate days. Id. After the juvenile court

found probable cause that the defendant committed both offenses, it decided to forego holding an

amenability hearing for the burglary charge and transfer both cases to adult court since it had

already determined that transfer was mandatory for the aggravated robbery charge. Id. at ¶ 7-10.

{¶ 17} The defendant in Brown appealed the transfer of his burglary charge to adult

court arguing that R.C. 2152.12(F)(2) and (3) require the juvenile court to conduct hearings and

investigations for discretionary transfer offenses as set forth in R.C. 2152.12(B) even after the 11

juvenile court has already ordered the mandatory transfer of a separate offense. Id. at ¶ 20. The

State, however, maintained that because the juvenile court properly ordered the mandatory

transfer of the aggravated robbery charge, the juvenile court was not required to hold an

amenability hearing or comply with any of the other discretionary transfer requirements under

R.C. 2152.12(B) for the burglary charge. Id. at ¶ 21. The Tenth District agreed with the

defendant and reversed the juvenile court’s decision transferring the burglary charge without

having an amenability hearing, holding that in doing so, the court failed to comply with R.C.

21252.12. Id. at ¶ 29.

{¶ 18} In support of its decision, the Tenth District cited the Supreme Court of Ohio’s

decision in State v. D.W.,

,

,

. In D.W., the

juvenile defendant was charged with only discretionary transfer offenses. “[T]he juvenile court

failed to conduct an amenability hearing before transferring the juvenile defendant to adult court

based upon the mistaken belief that a prior bindover of the juvenile negated the need for an

amenability hearing.” Id. at ¶ 48. The Supreme Court held that “a juvenile court cannot bind

over a juvenile on the sole basis that the juvenile has been previously bound over.” Id. at ¶ 46.

The Supreme Court further held that the plain language of R.C. 2152.12(B)(3) “requires the

juvenile court to perform an amenability hearing before determining whether to transfer a

juvenile from the juvenile court system to the adult criminal system.” Id. at ¶ 21.

{¶ 19} The decisions in Brown and D.W. do not affect our interpretation and application

of R.C. 2152.12(I) in Washington and Henderson. D.W. only involved discretionary transfer

offenses and does not address the procedure to be used in cases where a juvenile is charged with

both mandatory and discretionary transfer offenses. Moreover, while Brown involved both 12

mandatory and discretionary transfer offenses, unlike Washington and Henderson, the offenses in

that case did not arise from the same course of conduct, as the offenses involved two separate

acts committed on two separate dates. Furthermore, in Brown, the Tenth District confined its

analysis to the language in R.C. 2152.12(F), without addressing section (I). Therefore, we find

both Brown and D.W. distinguishable from Washington and Henderson.

{¶ 20} Brookshire also contends that our interpretation of R.C. 2152.12(I) conflicts with

R.C. 2152.121, which became effective on September 30, 2011. See Am.Sub.HB. 86, 2011

Ohio Laws File 29. R.C. 2152.121 establishes the circumstances in which jurisdiction should be

transferred back to juvenile court after a juvenile has been convicted or pleads guilty in adult

court for sentencing purposes. Upon review of this statute, we do not find that R.C. 2152.121

has any bearing on our interpretation of R.C. 2152.12(I). Accordingly, we do not find

Brookshire’s argument concerning R.C. 2152.121 to be persuasive.

{¶ 21} We also note that, except for the addition of section (F)(4) in September 2012,

the language in R.C. 2152.12(F) and (I) has not changed since our holdings in Washington and

Henderson. See Am.S.B. No. 179, 2000 Ohio Laws File 309; Am.Sub.S.B. No. 337, 2012 Ohio

Laws File 131. Accordingly, we will continue to interpret R.C. 2152.12(I) to mandate the

transfer of a discretionary transfer offense when it is founded on the same course of conduct as

another offense which must be transferred. See Henderson, 2d Dist. Montgomery No. 21866,

, quoting Washington, 2d Dist. Montgomery No. 20226,

.

The Juvenile Court Properly Transferred 13

Brookshire’s Kidnapping Charges

{¶ 22} In this case, Brookshire was charged with multiple counts of aggravated robbery

and kidnapping in the juvenile court. Brookshire does not contest the fact that the aggravated

robbery charges were subject to mandatory transfer pursuant to R.C. 2152.10 and R.C. 2152.12.

However, kidnapping in violation of R.C. 2905.01 is expressly excluded from mandatory transfer

per R.C. 2152.10(A)(2). Henderson at ¶ 14. Therefore, Brookshire’s charges were a mix of

mandatory and discretionary transfer offenses.

{¶ 23} Because he was charged with both mandatory and discretionary transfer offenses,

Brookshire contends that the juvenile court was required to follow the transfer procedure outlined

in R.C. 2152.12(F), which instructs the juvenile court to follow the procedure in R.C. 2152.12(B)

for the discretionary transfer offenses. However, pursuant to our holdings in Washington and

Henderson, we conclude that R.C. 2152.12(I) relieved the juvenile court of its obligations under

section (F), because Brookshire’s aggravated robbery and kidnapping charges all arose from the

same course of conduct, i.e., the January 20, 2013 robbery. During the robbery, Brookshire

ordered three individuals to go into the bathroom at gunpoint, which accounts for the three

kidnapping charges. Therefore, it is clear that the kidnapping charges pertain to the robbery.

Since it is not disputed that the juvenile court was required to transfer Brookshire’s aggravated

robbery charges to the adult court, and R.C. 2152.12(I) requires all proceedings pertaining to

Brookshire’s delinquent act to be discontinued in the juvenile court, the related kidnapping

charges were properly transferred with the aggravated robbery charges just as they were in

Henderson.

{¶ 24} Given that the juvenile court properly transferred the kidnapping charges to the 14

adult court, the juvenile court effectively relinquished its jurisdiction over the charges. As a

result, the adult court had jurisdiction to accept Brookshire’s guilty plea to one count of

kidnapping and to enter a conviction for that offense. Accordingly, Brookshire’s conviction for

kidnapping is not void.

{¶ 25} Brookshire’s First Assignment of Error is overruled.

Assignment of Error Nos. 2, 3, and 4

{¶ 26} For purposes of convenience, we will address Brookshire’s Second, Third, and

Fourth Assignments of Error together. They are as follows:

II. THE MONTGOMERY COUNTY JUVENILE COURT ERRED WHEN

IT TRANSFERRED LV BROOKSHIRE’S CASE TO ADULT COURT

BECAUSE THE MANDATORY TRANSFER PROVISIONS IN R.C.

2152.12(A)(2)(b) AND R.C. 2152.12(A)(1)(b) ARE

UNCONSTITUTIONAL IN VIOLATION OF A CHILD’S RIGHT TO

DUE PROCESS AS GUARANTEED BY THE FOURTEENTH

AMENDMENT TO THE UNTIED STATES CONSTITUTION AND

ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION.

III. THE MONTGOMERY COUNTY JUVENILE COURT ERRED WHEN

IT TRANSFERRED LV BROOKSHIRE’S CASE TO ADULT COURT

BECAUSE THE MANDATORY TRANSFER PROVISIONS IN R.C.

2152.10(A)(2)(b) AND R.C. 2152.12(A)(1)(b) VIOLATE A CHILD’S

RIGHT TO EQUAL PROTECTION AS GUARANTEED BY THE 15

FOURTEENTH AMENDMENT TO THE UNTIED STATES

CONSTITUTION AND ARTICLE I, SECTION 2 OF THE OHIO

CONSTITUTION.

IV. THE MONTGOMERY COUNTY JUVENILE COURT ERRED WHEN

IT TRANSFERRED LV BROOKSHIRE’S CASE TO ADULT COURT

BECAUSE THE MANDATORY TRANSFER PROVISIONS IN R.C.

2152.10(A)(2)(b) AND R.C. 2152.12(A)(1)(b) VIOLATE THE

PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENTS

AS GUARANTEED BY THE EIGHTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

ARTICLE I, SECTION 9 OF THE OHIO CONSTITUTION.

{¶ 27} Under these assignments of error, Brookshire argues that R.C. 2152.10(A)(2)(b)

and R.C. 2152.12(A)(1)(b), which govern the mandatory transfer of juvenile cases to adult court,

violate his constitutional rights to due process, equal protection, and to be free from cruel and

unusual punishment.

{¶ 28} As an initial matter, we note that “[f]ailure to raise at the trial court level the

issue of the constitutionality of a statute or its application, which issue is apparent at the time of

trial, constitutes a waiver of such issue.” In re I.A., 2d Dist. Montgomery No. 25078,

, quoting State v. Awan,

,

(1986),

syllabus. In this case, Brookshire failed to raise his constitutional challenges to the mandatory

transfer in the juvenile court or the trial court and, therefore, waived his arguments on appeal.

{¶ 29} In addition, “a defendant who * * * voluntarily, knowingly, and intelligently 16

enters a guilty plea with the assistance of counsel ‘may not thereafter raise independent claims

relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty

plea.’ ” State v. Fitzpatrick,

,

,

, ¶ 78,

quoting Tollett v. Henderson,

,

,

(1973). Since

Brookshire does not challenge the validity of his plea, Brookshire also waived his right to

challenge the constitutionality of R.C. 2152.12 by pleading guilty. See, e.g., State v. Bradford,

5th Dist. Stark No. 2013 CA 00124,

; State v. Quarterman, 9th Dist.

Summit No. 26400,

(both cases finding that the defendant was prevented

from arguing on appeal that R.C. 2152.10(A)(2)(b) and 2152.12(A)(1)(b) violated his

constitutional rights to due process, equal protection, and to be free from cruel and unusual

punishment, because the defendant pled guilty to the charges against him and did not contest the

validity of his plea).

{¶ 30} However, we note that even if there is a clear waiver, as there is here, an

appellate court may still “ ‘consider constitutional challenges to the application of statutes in

specific cases of plain error or where the rights and interests involved may warrant it.’ ” In re

A.I. at ¶ 4, quoting In re M.D.,

,

(1988), syllabus. (Other

citation omitted.) Yet, even if we were to consider Brookshire’s constitutional arguments, they

do not have merit, because this court along with other appellate districts have already determined

that the statutory provisions requiring mandatory transfer do not violate due process and equal

protection rights under the Fourteenth Amendment. See, e.g., State v. Ramey, 2d Dist.

Montgomery No. 16442,

(May 22, 1998); State v. Agee,

,

(2d Dist. 1999); State v. Kelly, 3d Dist. Union No. 14-98-26,

17

(Nov. 18, 1998); State v. Lee, 11th Dist. Lake No. 97-L-091,

(Sept. 11, 1998);

State v. Collins, 9th Dist. Lorain No. 97 CA 0006845,

(June 3, 1998) (all

finding that the mandatory transfer provisions in former R.C. 2151.26(B), which is now codified

as R.C. 2152.12, do not violate a juvenile’s constitutional rights to due process and equal

protection under the law). We will continue to follow the precedent on this issue unless

otherwise advised by the Supreme Court of Ohio.1

{¶ 31} Additionally, Brookshire’s argument that the mandatory transfer statute violates

his Eighth Amendment right to be free from cruel and unusual punishment is unpersuasive.

“The Eighth Amendment to the United States Constitution states that, ‘Excessive bail shall not be

required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ ” State v.

Long, Slip Opinion No.

. “ ‘[C]ases in which cruel and unusual punishments

have been found are limited to those involving sanctions which under the circumstances would

be considered shocking to any reasonable person.’ ” State v. Weitbrecht,

,

(1999), quoting McDougle v. Maxwell,

,

(1964). The penalty must be “ ‘so greatly disproportionate to the offense as to shock the sense of

justice of the community.’ ” State v. Hairston,

,

, ¶ 14,

quoting

. “As applied to juveniles, the United States Supreme Court has held

that the Eighth Amendment prohibits the imposition of the death penalty and the imposition of

life without the possibility of parole for nonhomicide offenses.” Long at ¶ 8, citing Roper v.

1 On December 24, 2013, the Supreme Court of Ohio accepted review of whether R.C. 2152.10(A)(2)(b) and R.C. 2152.12(A)(1)(b) violate a juvenile’s constitutional rights to due process, equal protection, and to be free from cruel and unusual punishment. The review is pending in Supreme Court Case No. 2013-1591, which is an appeal from State v. Quarterman, 9th Dist. Summit No. 26400,

. 18

Simmons,

,

,

(2005); Graham v. Florida,

,

,

(2010). “Most recently, the Eighth Amendment was held to

ban mandatory life-without-parole sentences on juveniles in [Miller v. Alabama, ___U.S.___,

,

(2012)].”

{¶ 32} The statutory provisions at issue in this case, however, do not govern the

sanctioning of juveniles, but instead govern whether a juvenile case must be transferred to adult

court for adjudication. As stated in the concurrence in Quarterman, 9th Dist. Summit No.

26400,

, “[m]andatory bindover does not equate to punishment any more than

the mere prosecution of an adult in the common pleas court constitutes punishment.” Id. at ¶ 16.

Furthermore, Brookshire provides no support for applying Eighth Amendment protections to

matters that do not constitute punishment. Accordingly, his Eighth Amendment argument is not

well taken.

{¶ 33} Notwithstanding the fact that Brookshire waived his constitutional challenges to

R.C. 2152.12, we find no merit to his challenges and, therefore, overrule his Second, Third, and

Fourth Assignments of Error.

Assignment of Error No. 5

{¶ 34} Brookshire’s Fifth Assignment of Error is as follows:

LV BROOKSHIRE WAS DENIED THE EFFECTIVE ASSISTANCE OF

COUNSEL WHEN TRIAL COUNSEL FAILED TO OBJECT TO HIS CASE

BEING TRANSFERRED TO ADULT COURT.

{¶ 35} Under this assignment of error, Brookshire contends that his trial counsel was 19

ineffective in failing to object to the juvenile court’s transfer of his kidnapping charges to the

adult court without holding an amenability hearing. Brookshire also argues that his trial counsel

was ineffective in failing to object to the constitutionality of the mandatory transfer of his case to

adult court.

{¶ 36} We review allegations of ineffective assistance of trial counsel under the two

prong analysis set forth in Strickland v. Washington,

,

,

(1984) and adopted by the Supreme Court of Ohio in State v. Bradley,

,

(1989). To prevail on an ineffective-assistance claim, Brookshire must establish

that his trial counsel’s performance was deficient and that the deficient performance prejudiced

him. Strickland at paragraph two of the syllabus. A trial counsel’s performance is deficient if

the conduct complained of fell below an objective standard of reasonableness.

Trial

counsel is entitled to a strong presumption that his or her conduct falls within the wide range of

reasonable assistance.

As for prejudice, a trial counsel’s deficient performance is prejudicial

when counsel’s errors are serious enough to create a reasonable probability that, but for the

errors, the result of trial would have been different.

{¶ 37} In this case, we have already concluded that the juvenile court properly

transferred Brookshire’s kidnapping charges to the adult court pursuant to R.C. 2152.10 and R.C.

2152.12. Therefore, trial counsel’s failure to object to the transfer did not fall below an

objective standard of reasonableness. Likewise, having concluded that Brookshire’s

constitutional challenges have no merit, it was not unreasonable for Brookshire’s trial counsel to

abstain from objecting to the constitutionality of the mandatory bindover provisions in R.C.

2152.12. For the foregoing reasons, Brookshire has failed to establish that his trial counsel’s 20

performance was deficient. Accordingly, Brookshire’s ineffective assistance claim must fail

because he cannot satisfy the first prong of Strickland.

{¶ 38} Brookshire’s Fifth Assignment of Error is overruled.

Conclusion

{¶ 39} Having overruled all of Brookshire’s assignments of error, the judgment of the

trial court is affirmed.

.............

FROELICH, P.J., and FAIN, J., concur.

Copies mailed to:

Mathias H. Heck Andrew T. French Brooke M. Burns Hon. Michael Tucker