Bindover/Transfer

Constitutionality

Key cases

• Kent v. US, 383 U.S. 541 (1966)
  • Holding: The U.S. Supreme Court determined that there was not a sufficient investigation prior to the juvenile court’s waiver of jurisdiction. The 16-year-old boy didn’t receive a hearing, access to counsel, or access to his juvenile court records prior to the waiver of jurisdiction. 
  • Outcome: Due process requires a proper investigation before waiver of juvenile court jurisdiction.  
• State v. Aalim I, 2016-Ohio-8278 (2016) 
  • On December 22, 2016, the Supreme Court of Ohio held that mandatory transfer was unconstitutional because it violates a child’s right to due process. The discretionary scheme is constitutional because it requires a hearing and an investigation into amenability. 
  • On January 1, 2017, two justices retired (including the author of Aalim I) and were replaced by two new justices. 
  • On January 3, 2017, the State of Ohio asked the Supreme Court to reconsider its decision. 
  • On May 25, 2017, the Supreme Court granted reconsideration, vacated its December 22, 2016 decision, and issued its new decision holding that the mandatory transfer law was constitutional. 
• State v. Aalim II, 2017-Ohio-2956 (2017)
  • Holding: The General Assembly has exclusive authority to determine the jurisdiction of the juvenile court and for exceptions to that jurisdiction, including to create separate schemes for older and younger teenagers. The mandatory transfer scheme doesn’t violate due process or equal protection. 
  • Outcome: The mandatory transfer scheme is constitutional.

Eligibility & considerations charts

Eligibility

Considerations

Mandatory transfer

Probable cause determination

• R.C. 2152.12(A) sets forth the process and criteria for mandatory transfer. 
• Juv.R. 30(B)
  • “In any proceeding in which transfer of a case for criminal prosecution is required by statute upon a finding of probable cause, the order of transfer shall be entered upon a finding of probable cause.” 
• Key cases:
  • State v. Hanning, 89 Ohio St. 3d 86 (2000)
    • Holding: Mandatory transfer provisions do not apply “unless the child, himself or herself, had a firearm on or about the child’s person 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.”
    • Outcome: Complicity doesn’t apply to mandatory bindover.
  • State v. Iacona, 93 Ohio St.3d 83 (2001)
    • Holdings:
      • Brady v. Maryland protections apply in juvenile court bindover proceedings.
      • “[T]he state must provide credible evidence of every element of an offense to support a finding that probable cause exits to believe that the juvenile committed the offense before ordering mandatory waiver of juvenile court jurisdiction * * *.”
    • Outcome: To meet the probable cause standard, “the state must produce evidence that raises more than a mere suspicion of guilt, but need not provide evidence proving guilt beyond a reasonable doubt.”
  • In re A.J.S., 2008-Ohio-5307 (2008)
    • Holding: A juvenile court order denying a motion for mandatory transfer is the function equivalent of a dismissal.
    • Outcome: A finding of no probable cause and dismissal of the mandatory transfer motion is “a final order from which the state may appeal as a matter of right.”
  • In re D.M., 2014-Ohio-3628 (2014)
    • Holding: Juv.R. 24’s requirements regarding full discovery applies in bindover proceedings.
    • Outcome: Reaffirmed the outcome in State v. Iacona.

Discretionary transfer

Probable cause determination

Same as Mandatory Transfer Probable cause determination.

Amenability determination

• R.C. 2152.12(B) sets forth the process and criteria for discretionary transfer. 
• Juv.R. 30(C)
  • “In any proceeding in which transfer of a case for criminal prosecution is permitted, but not required, by statute, and in which probable cause is found at the preliminary hearing, the court shall continue the proceeding for full investigation. The investigation shall include a mental examination of the child by a public of private agency or by a person qualified to make the examination. When the investigation is completed, an amenability hearing shall be held to determine whether to transfer jurisdiction.” 
• Key cases: 
  • In re M.P., 2010-Ohio-599 (2010)
    • Holding: A juvenile court order denying a motion for discretionary transfer isn’t the functional equivalent of a dismissal. 
    • Order: A finding that the child is amenable to juvenile court rehabilitation isn’t a final order and the state can’t appeal the order as a matter of right. 
  • State v. D.W., 2012-Ohio-4544 (2012) 
    • Holding: A child may waive the right to an amenability hearing. 
    • Outcome: The waiver of the amenability hearing must be on the record and only accepted after a colloquy to demonstrate that the waiver is knowing, intelligent, and voluntary. 
  • In re D.H., 2018-Ohio-17 (2018)
    • Holding: A child must wait until after the end of the adult court proceedings to appeal errors in the juvenile court bindover proceedings.
    • Outcome: The bindover decision isn’t a final, appealable order and is not permitted to be appealed under R.C. 2505.02(B)(4).

Transfer practice guide

Coming soon.

Click the link above to download the Transfer Practice Guide.

Reverse waiver

R.C. 2152.121

• R.C. 2152.121 sets forth the process and criteria for reverse waiver.
  • In some cases, the juvenile court has no discretion to determine which children can benefit from its rehabilitative services. R.C. 2152.10(A); 2152.12(A). After transfer and through the adversarial process, the child may be convicted of a lesser offense that would have permitted the juvenile court to retain the child and benefit from rehabilitative services, but for the initial mandatory transfer. Compare R.C. 2152.12(A) with 2152.12(B).
  • Recognizing the problem with that scenario, the legislature enacted “reverse waiver” in 2011. R.C. 2152.121.
  • If a child is ultimately convicted of or pleads guilty to an offense that would not have required mandatory transfer, but would have been eligible for discretionary transfer, R.C. 2152.121(B)(3) requires the criminal court to issue an adult sentence, stay that sentence, and return the child’s case to juvenile court. Then, the juvenile court must impose a Serious Youthful Offender (SYO) disposition—a blended sentence with a juvenile disposition and a stayed adult sentence. R.C. 2152.121(B)(3)(a) (“In imposing the adult portion of that sentence, the juvenile court shall consider and give preference to the sentence imposed upon the child by the court in which the child was convicted of or pleaded guilty to the offense.”). This type of disposition provides a child with the opportunity to receive services in the juvenile justice system and if successful, avoid the stigma of having a criminal conviction. R.C. 2152.13; 2152.14.
  • But, if the State objects to the SYO, the juvenile court must hold an amenability hearing to determine whether the child’s case should remain in the juvenile justice system or be transferred back to criminal court for the child to serve the criminal sentence that was previously stayed. R.C. 2152.121(B)(3)(b). 

Key case

• State v. D.B., 2017-Ohio-6962 (2017)
  • Holding: The adult court is “not empowered to split [a] case in two, with some portions going back to the juvenile court and others remaining with [the] general division, but was required to sentence [the] juvenile for all offenses.” 
  • Outcomes: 
    • When the adult court determines, under the reverse waiver statute, that a youth “has been convicted of at least one offense that is subject to mandatory transfer, the court shall sentence the juvenile under R.C. Chapter 2929 for all the convictions in the case.”
    • Reverse waiver impacts a case and not individual offenses.

Serious Youthful Offender (SYO)

SYO information

• The SYO scheme was enacted in 2002. “A juvenile charged as a potential [SYO] does not face bindover to an adult court; the case remains in the juvenile court[; and,] includes what is known as a blended sentence—a traditional juvenile disposition coupled with the imposition of a stayed adult sentence.” State v. D.H., 120 Ohio St.3d 540, 2009-Ohio-9, 901 N.E.2d 209, ¶ 18. 
• The Ohio Criminal Sentencing Commission Report noted that the blended sentence offered the juvenile court more dispositional options; and, detailed the benefit of the “carrot and stick approach” as follows: “If [juveniles] quit harming and threatening others, the case ends with the juvenile disposition. If [juveniles] commit more serious crimes or seriously threaten the juvenile system, the juvenile court judge could invoke the adult sentence.” Ohio Criminal Sentencing Comm’n, A Plan for Juvenile Sentencing in Ohio 31 (Fall 1999).
• R.C. 2152.11 sets forth the eligibility for SYO dispositional sentences.
  • Eligibility Chart
• R.C. 2152.13 sets forth the process for imposing an SYO dispositional sentence.
• R.C. 2152.14 sets forth the standard for invoking a suspended SYO dispositional sentence.
  • To invoke, the Court must find by clear and convincing evidence either:
    • (1) The child committed an act that violated the rules of the institution or the conditions of supervision that could be charged as a felony or M1 offense of violence; or
    • (2) The child “engaged in conduct that creates a substantial risk” to the safety or security of the institution, the community, or the victim.
  • and: The child’s conduct demonstrates that he or she is unlikely to be rehabilitated during the remaining period of juvenile jurisdiction. 

Key cases

• State v. D.H., 2009-Ohio-9 (2009)
  • Holding: “[D]ue process does not require a jury determination on the imposition of a serious-youthful-offender dispositional sentence under R.C. 2152.13, including the determination of the stayed, adult portion of the sentence.” 
  • Outcome: Fundamental fairness is met because the jury can decide the adjudicative portion of the case; and, then after imposition, the juvenile court judge, with the expertise to assess the merits of the rehabilitative process, determines whether to invoke the stayed sentence.
• In re J.V., 2012-Ohio-2961 (2012)
  • Holdings:
    • A judge’s fact-finding in invoking the stayed adult sentence doesn’t violate the juvenile ‘s right to trial by jury. 
    • The “use of clear and convincing evidentiary standard at hearing to invoke stayed adult sentence did not violate juvenile’s right to due process.” 
    • A juvenile court lacks jurisdiction to invoke the stayed adult sentence after the juvenile has reached the age of 21.