What’s on Their Minds: Can an Amenability Hearing in A Juvenile Case be Waived? State v. Warner.

On October 4, 2012 the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

On June 5, 2012, the Supreme Court of Ohio heard oral argument in the case of State v. Warner, 2011-1677.  The issue in the case is whether an amenability hearing in a juvenile case may be waived, and if so, whether a waiver of such a hearing is invalid unless the waiver is expressly stated on the record and made voluntarily, knowingly and intelligently.

Seventeen year old Derek Warner was charged with one count each of burglary and theft. On May 10, 2010, a bindover hearing was held in Cuyahoga County Juvenile Court.  Six weeks earlier, the same judge, with the same prosecutor and defense counsel as in this case, had determined Warner was not amenable to rehabilitation in the juvenile justice system, and had bound him over to adult court.  So, after an off-the-record sidebar conference with both counsel in this case, the judge, based on his earlier determination, dispensed with the amenability hearing, and again bound Warner over to common pleas court to be tried as an adult. Warner was found guilty and sentenced to six years in prison.  The Eighth District Court of Appeals found that Warner had waived the amenability hearing through his counsel. Read the oral argument preview of this case here.

Oral Argument

Defense counsel took a two tiered position.  First, according to the plain language of R.C. 2152.12 the discretionary bind-over statute, and Juv. R. 30, the amenability hearing cannot be waived.  Allowing a child to waive such a hearing is fundamentally inconsistent with what juvenile courts are about.  Because the bar for transfer eligibility is so low, the amenability hearing is a critical phase of the process. Holding an amenability hearing is a duty of the court. If the transfer procedure is improper, adult court lacks jurisdiction to hear the matter, and the case must be sent back to juvenile court. At any amenability hearing, the Court must consider the factors set forth in 2152.12(D) and (E) nine of which relate to the specific facts of the particular case. In this case, there simply was no amenability determination made.  An individualized hearing is consistent with the philosophy that juveniles are different when it comes to punishment.

If the Court finds that an amenability hearing is waivable, then defense counsel urged the Court to adopt Warner’s second proposition of law, which is that a waiver is not valid unless expressly stated on the record by the juvenile or his lawyer, and is voluntarily, knowingly, and intelligently made.  At a minimum, the waiver in this case was invalid.

The prosecutor conceded that “this isn’t a perfect record,” but argued that an amenability hearing is waivable. If there is a waiver, which there was in this case, there need not be a full-blown amenability hearing.  The amenability hearing is a right of the child, and is not a jurisdictional matter.

On Their Minds

The justices were fairly merciless to the prosecuting attorney because of the state of the record in this case, which is pretty much all off the record. The  prosecutor and defense counsel fundamentally disagree about whether the amenability hearing can be waived—the state says absolutely yes, defense counsel says absolutely no.  They also disagree about whether this is jurisdictional—the state says no, defense counsel says yes.  But based on the oral argument, there may be a third way….

An Important Precedent

In 1982, in State v. Adams, 69 Ohio St.2d 120, 431 N.E.2d 326 (1982), the Court held that once a juvenile is bound over in any Ohio county, that juvenile is to be bound over for all other felonies he may commit. But when the legislature amended the discretionary bind-over statute in 1995, it expressed its intent to overrule Adams. So once bound over, always bound over is not the rule. Still, judicial economy and practicality were on the justices’ minds.

 Ahh. C’mon.  Wasn’t the Same Kid Just Bound Over a Few Weeks Ago? What about Judicial Economy?

The judge found  Warner not amenable just a few weeks ago–so how could the Judge now find him amenable, asked Justice Cupp.

And shouldn’t the Court be allowed to rely on all of the information gathered in the earlier case—psychologicals, family history, school record—how likely is it the juvenile is going to change in six weeks, asked Justice McGee Brown. Aren’t judges familiar with a lot of the kids who come before them?  Isn’t this a common practice?

Justice Stratton asked if a judge could find that under one set of facts a juvenile was amenable, but under another set of facts the child was not?  Could certain factors from one case be stipulated to in the other? Or incorporated by reference from one case into the other?

What on Earth Actually Happened at the Amenability Hearing in this Case?

Justice O’Donnell was bothered by the fact that there were no objections to anything that happened in this case—to the off-the-record side bar conference, to the lack of a hearing, to the transfer determination, to adult court hearing the case, and there was no motion to quash the indictment.  Didn’t defense counsel have the duty to bring error to the court’s attention.  Was the Supreme Court limited to plain error review in this case?

What exactly was before the court in making the bindover determination, Chief Justice O’Connor asked.  No psychologicals, no other criteria, no open court colloquy with the child, no representations by defense counsel, no statement from the child—just an off the record sidebar to waive the hearing. The kid may as well not have been there at all, she commented.  The only determination was the crime was committed and this kid did it.

Didn’t the juvenile judge in this case follow Adams,  which the legislature overruled, asked Justice Lanzinger.  

Justice McGee Brown was very concerned that the journal entry in the case did not accurately reflect what actually happened, and was factually incorrect.

How Widespread is this Practice?

Justice O’Donnell asked (professor’s observation for those arguing at the high court—he asks this a lot!!).  Is it a policy of the Cuyahoga County Prosecutor’s Office to waive amenability hearings in juvenile court? What is the practice in other jurisdictions?

What is the Effect of the Common Pleas Case Disposition?

Asked Justice O’Donnell (defense counsel—it must be vacated for lack of jurisdiction).

Is this Jurisdictional?

Asked Justices McGee Brown and Lanzinger.

What’s the Lawyer’s Job Here?

Chief Justice O’Connor remarked that the decisions weren’t only up to the juvenile-Warner was represented by counsel in any determination about waiving (if that were allowed). Is defense counsel criticizing the lawyer for agreeing to a waiver?  (answer: no—what the juvenile wants and what is in the juvenile’s best interest are two different things)

Isn’t There a Third Way?

Asked Justice Pfeifer in the key exchange of the day, noting that defense counsel says there can’t be a waiver, the prosecutor says there can be, and that this one was properly done, but is a possible third position that there can be a waiver, properly done, but in this case it wasn’t?   He noted that at a minimum, the judge would need to explain this is a different (and if applicable, more serious) charge, explore any changes in the child’s life that may have a bearing, review the necessary statutory factors, determine if there have been any changes, and determine whether the child, after consultation  with counsel, wishes to waive.

Are these the three choices, he asked.  (state’s answer:yes)

How it Looks from the Bleachers

It looks like the third way is it. (see above).  The Court is likely to find the amenability hearing can be waived, but only with all the precautions and safeguards Justice Pfeifer was bringing up—a careful review of the statutory factors, which must be individualized to the case at hand,  a determination of changes that may have occurred, and being certain any waiver by the child is proper under the jurisprudence on that subject.  If the Court takes this route it is highly likely it will find the waiver invalid in this case, and comment on the sloppy record and inappropriate shortcuts taken.  Of course, in order to go this route, the Court will have to find the duty to hold an amenability hearing is not jurisdictional.

Student contributor Greg Kendall thought Justice O’Donnell just sees this as error correction and is clearly not on the defendant’s side when the defendant was found not amenable in a different case and did not object to the court’s finding of waiver in this one. Justice McGee Brown was also skeptical that the juvenile court should have to conduct another amenability hearing six weeks after the defendant was found not amenable. Chief Justice O’Connor and Justice Stratton seem quite concerned that the juvenile court never did an amenability analysis or had a colloquy, and didn’t have much information in front of it before it transferred the case.

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