What’s on their Minds: Does A Juvenile Court’s Failure to Follow Procedures under Ohio’s Safe Harbor Law for Victims of Human Trafficking Invalidate the Juvenile’s Transfer to Adult Court? State of Ohio v. Alexis Martin

“What does the Guardian Ad Litem do in the context like this, different from what we have?”

Justice O’Donnell, to defense counsel

“Do you not think that the judge could have explained why she was not using the safe harbor human trafficking statute?”

Chief Justice O’Connor, to the Assistant Prosecutor

On January 23, 2018, the Supreme Court of Ohio heard oral argument in the case of State of Ohio v. Alexis Martin, 2016-1891. At issue in this case is whether a juvenile court’s failure to apply Ohio’s Safe Harbor law when it became aware of the juvenile’s status as a human trafficking victim voided an otherwise proper bindover procedure, or if the juvenile’s subsequent guilty plea waived her ability to challenge this issue. Judge Michael T. Hall of the Second District Court of Appeals sat for then-Justice O’Neill.

Case Background

On November 7, 2013, two men broke into an Akron home where they proceeded to shoot two individuals, killing one and injuring the other. Alexis Martin, only 15 years old at the time, was present during the incident. According to Martin, the adult man who died had been her trafficker, and the other adult man who survived his injuries was raping Martin when he was attacked. According to the state, no such findings were made about the two victims. At age 15, Martin could not consent to having sex with an adult male.

Law enforcement believed that Martin was involved in organizing this robbery gone awry. The two male shooters, and another female participant in the crime have since pleaded guilty to their involvement and received life sentences.

As a juvenile, Martin was charged as a delinquent child for aggravated murder, attempted murder, aggravated robbery, aggravated burglary, felonious assault, and tampering with evidence. The State sought a discretionary transfer to the Summit County Court of Common Pleas. During the amenability hearing, the juvenile court judge discussed Martin’s status as a trafficking victim, which was substantiated. The judge found that beyond a history of sexual abuse, the decedent had kidnapped and trafficked Martin. However, neither the judge nor Martin’s lawyer raised Ohio’s Safe Harbor Law, R.C. 2152.021(F). Nor was a guardian ad litem appointed for Martin. Instead, Martin’s argument against transfer focused on traditional amenability factors. The juvenile court found in favor of transfer, and relinquished its jurisdiction. In its order, the judge cited, among other things, the severity of the offenses and the low likelihood of rehabilitation in the juvenile court system.

Following transfer, Martin moved the Common Pleas Court judge to vacate the bindover order on the ground of lack of jurisdiction, because of the failure of the juvenile court to consider and adhere to the procedures set forth in the Safe Harbor Law. However, the trial judge dismissed this motion, finding he lacked jurisdiction to consider it.  Martin ultimately pleaded guilty to murder with a firearm specification and to felonious assault. She received a sentence of 21 years to life.

The Appeal

In a unanimous opinion, the Ninth District Court of Appeals  upheld the decision of the trial court. The appeals court held that the only proper basis for a challenge to the discretionary bindover statute is a challenge to the violation of the statute itself, and failure to follow the safe harbor provision is not a proper basis for such a challenge. Further, the appeals court found that Martin’s guilty plea waived all non-jurisdictional errors.

Read the oral argument preview of the case here.

Key Precedent

R.C. 2905.32 (Ohio’s human trafficking statute) (Defining human trafficking victim as an individual who is either compelled to engage in sex for hire or is under the age of 16 and participates in sex for hire.  Defining human trafficking as the recruitment of a person to engage in a performance that is obscene, sexually oriented, or nudity oriented.)

R.C. 2152.021(F) (Requires appointment of a guardian ad litem for any juvenile believed to be the victim of human trafficking. Safe harbor provision permits juvenile court judge to hold delinquency complaint against juveniles believed to be human trafficking victims in abeyance and allow them to have criminal charges expunged if they complete a diversion program.)

R.C. 2152.12(B) (Discretionary bindover statute for juveniles) (Subsections D and E provide factors for and against transfer of cases from juvenile to adult court.)

State v. Wilson, 73 Ohio St.3d 40 (1995) (syllabus) ( Absent a proper bindover procedure, the juvenile court has exclusive, non-waivable subject matter jurisdiction over any case concerning a child who is alleged to be delinquent.)

Johnson v. Timmerman–Cooper, 2001-Ohio-1803 (“Absent a proper bindover procedure…, the jurisdiction of a juvenile court is exclusive and cannot be waived.”)

State v. D.W., 2012-Ohio-4544 (Due process applies to bindover proceedings because a successful transfer is a critical stage of a juvenile case.)

State v. Morgan, Slip Opinion No. 2017-Ohio-7565 (Applying the criminal plain error doctrine to juvenile proceedings, specifically for issues a juvenile failed to raise during an amenability hearing.)

In re D.H., Slip Opinion No. 2018-Ohio-17 (Juvenile court orders transferring jurisdiction to adult court are not final orders under R.C. 2505.02(B)(4).)

Juvenile Human Trafficking, Ohio Laws & Safe Harbor Response, Sup. Ct. Ohio (Offering guidance to juvenile courts and the implementation of Ohio’s newly adopted laws on human trafficking. “Ohio juvenile courts may use Safe Harbor protections broadly, regardless of the instant charge against the juvenile or juvenile’s history of adjudication or criminal history.”)

At Oral Argument

Arguing Counsel

Jennifer M. Kinsley, Kinsley Law Office, Cincinnati, for Appellant Alexis Martin

Richley Raley, Jr., Assistant Prosecuting Attorney, Summit County, for Appellee State of Ohio

Martin’s Argument

The facts in this case are truly shocking. Alexis Martin was the victim of horrifying and prolonged human trafficking. She was being raped and sold for sex. The delinquency charges against Martin were related to her victimization. That is substantiated in the psychologist’s report for the amenability hearing. There were other warning signs about her victimization.  And the man killed here was Martin’s trafficker. That was clear from the record.

The juvenile court committed reversible error when it failed to appoint a guardian ad litem to represent Martin’s interest, which is mandatory under the safe harbor law.  Had a GAL been appointed, it would have made a difference in this case. As the juvenile court seemed wholly unaware of the existence of the safe harbor law, a guardian ad litem could have directed the court to the third option beyond retaining jurisdiction or binding over. Of course rehabilitation will not be effective when a juvenile is under active victimization.

The juvenile court judge actually asked the lawyers in the case, and specifically the prosecutor, what to do with the clear evidence of human trafficking, how it should be factored into the court’s decision-making.  But no one, not the court, the state, or defense counsel referenced the statute at all. A GAL could have instructed the court about the safe harbor provisions and other options such as treatment options and residential programs, which would have specifically addressed the trauma unique to human trafficking cases. That is what the legislature has mandated in cases like this. Failure to appoint a guardian ad litem was plain error in this case, and that error has been properly preserved for appeal.

The juvenile court’s failure to follow the appropriate safe harbor procedures resulted in the Common Pleas court lacking jurisdiction over this case. Precedent from this court, specifically D.H. and Morgan, establishes that a juvenile may plead guilty in adult court and still challenge errors that occurred in the juvenile court bind-over process.  Otherwise, there would be no way for a juvenile to challenge an improper bindover.

State’s Argument

As a threshold matter, Martin has forfeited review of the safe harbor provision argued today—that issue was never raised in the juvenile court, and a plain error argument was not properly made either in the Ninth District or before this court. But if the court does go beyond the procedural thicket plaguing this case, the court of appeals should be affirmed. Martin is clearly not eligible for diversionary placement for the violent offenses she committed, including murder, attempted murder, robbery, and felonious assault. The state believes the safe harbor law only applies in cases involving solicitation-related or prostitution-related offenses. The offenses Martin committed are unrelated to her victimization.

The court cannot determine if a guardian ad litem should have been appointed. The court can only determine whether the criminal plain error standard has been satisfied.  In the state’s view, it has not been. There is no indication in the record that not having a guardian ad litem had an effect on the proceedings.

There was some evidence presented to the juvenile court about Martin as a human trafficking victim.  The juvenile court recognized that issue, and considered it in determining amenability.  And although the court stated that it was a factor supporting the retention of jurisdiction, there were significant other factors supporting transfer to adult court. Critically, and correctly, the juvenile court found that Martin could not be rehabilitated in the juvenile justice system.

The state also disagrees that there is a jurisdictional issue here.  Nothing in the safe harbor law indicates that it affects jurisdiction after a bindover.  And there is no indication that a failure to follow the safe harbor provisions somehow divests the adult court of jurisdiction.  The safe harbor law does not apply to the amenability decision. They are different and unrelated statutes.

What Was On Their Minds

Procedural Hurdles in the Case

Was failure to appoint a GAL argued in the appeals court, asked Justice DeWine? Was plain error raised there? (the state and defense counsel strongly disagreed on this point.) DeWine went on to say that as he understood the statute, it is mandatory that a GAL be appointed if the judge has reason to believe that the act charged is related to the child’s victimization.  In a situation like this, where the defendant doesn’t raise the issue of whether or not a GAL should be appointed or whether or not the defendant is a victim, how can the court review whether there is reason to believe a guardian should be appointed?

Why is the failure to appoint a GAL in this case jurisdictional, asked Justice French?

Interpreting the Safe Harbor Provisions

On the question of whether the crime was related to victimization, where in the record is the evidence of that relationship, asked Justice French?

Is this at all akin to a battered wife syndrome, asked Justice O’Donnell?  Do the safe harbor provisions apply in this case, or not? If the juvenile court were to hold a hearing on this, what happens then?

How can the safe harbor diversion apply to a murder, asked Judge Hall? The designated offenses are soliciting, loitering, and prostitution, but also, “in relation” is the issue we need to decide, right?

There have to be offenses beyond the ones enumerated that the safe harbor provision applies to, right, asked Justice DeWine?

Is it the state’s position that the court must focus on the actual act that Martin was having sex with one of these men at the time the robbery/ murder actually took place, and that was separate and distinct from her activity of being a forced sex slave, asked Chief Justice O’Connor? (answer: yes.)

Juvenile Judge and the Safe Harbor Provisions

Does the juvenile court’s failure to mention the safe harbor statute demonstrate that the court was unaware of it, asked Chief Justice O’Connor? But a hearing on the applicability of the human trafficking provisions and whether to hold the complaint in abeyance is discretionary with the court, not mandatory, isn’t it? Isn’t it up to the attorney to ask for the protections of the safe harbor statute? Shouldn’t the judge have explained why she was not using the safe harbor human trafficking statute?

What was the juvenile court’s reaction to the safe harbor issues, asked Justice O’Donnell? The court made a finding there was trafficking, but then it seemed the court was somewhat confused about what it was to have done—the court seemed to ask counsel,  where do we go from here?

Guardian Ad Litem

What would the appointment of the GAL in the juvenile proceeding have done, asked Justice O’Donnell? What prejudice inured to Martin by not having one? Appointment of the GAL is the only directory in the statute? Would a GAL appointed in the juvenile proceeding have shed light on the trafficking issue that for the benefit of the court? Could that have been done?

Martin’s Eligibility For Diversion

What resolution of this case is favorable to Martin, asked Justice O’Donnell? How long had she been under the control of the trafficker?

Did Martin’s lawyer in juvenile court fall short of appropriate representation, asked Chief Justice O’Connor? (not at all, said the prosecutor; I’m not sure defense counsel would agree, but she wasn’t asked.)

The Guilty Plea in Common Pleas Court

Why is it that the guilty plea in this case doesn’t waive any and all error, particularly with respect to the juvenile court’s failure to follow the statute and appoint a GAL for Martin during the bindover process, asked Justice O’Donnell? What permits Martin to challenge the error in the bindover in this case? Does Martin contend that State v. Morgan allows this court to vacate the guilty plea to the murder conviction in the Common Pleas Court? On what basis? Did counsel at the common pleas court hearing indicate that Martin would have a right to appeal this issue after the plea was entered? (answer: yes) What significance should be given to that fact? Was there not an advisement pursuant to Criminal Rule 11 by the trial court at the time of the plea? Was there some indication that the defendant wanted to challenge the jurisdiction of the common pleas court and was told that could be done after the plea? Is there some issue about that, or not?

How It Looks From The Bleachers

To Professor Emerita Bettman

Despite considerable sympathy for Martin’s status as a trafficking victim, even from the usually unsympathetic-to-juvenile- offenders Justice O’Donnell (who was the most active questioner in this case), the many procedural hurdles in the case will likely derail Martin’s attempt to invalidate her bindover.

As the Chief pointed out, while the appointment of a guardian ad litem may be mandatory, the decision to hold a hearing under the safe harbor provisions on whether to hold the complaint in abeyance is discretionary.

Also, most of the justices who spoke seemed inclined to take a broad view of the crimes related to victimization and eligibility for diversion—not just prostitution, solicitation and loitering to engage in solicitation. But I think in the end a majority are going to agree that the failure to appoint a GAL is not jurisdictional here, and won’t undue the bindover. (Professor’s note—the prosecutor got a little hand slap when he stated that on the issue of jurisdiction, he agreed “with Justice French that there is no indication in the safe harbor law that this affects the jurisdiction of adult court after the bindover.” She immediately said, sharply for her, that she was asking a question, not stating her position.)

There also seemed to be agreement that the juvenile court judge didn’t quite understand the application of the safe harbor provisions pursuant to R.C. 2152.021(F)(1).

All in all, although I think Martin is likely to get some language encouraging an expansive reading of the safe harbor provisions, an expansive view of the relationship between the crime committed and victimization of the child, and encouragement to juvenile judges to familiarize themselves with these human trafficking issues, I don’t think Martin is going to defeat her bindover in this case.  She’s probably got a better chance with her petition for post-conviction relief that the prosecutor stated was pending in this case, which was stayed pending the outcome of the appeal. One of the chief claims in that petition is ineffective assistance of counsel at the juvenile court bindover stage.

To Student Contributor Jefferson Kisor

Counsel for Alexis Martin, Jennifer M. Kinsley, was absolutely correct when she described the facts in this case as “shocking.” However, as horrible as the story of Martin’s victimization was, I do not believe that she can overcome the Supreme Court of Ohio’s ruling in State v. Morgan. Despite Ms. Kinsley’s attempts to characterize Morgan as opening the door for another amenability hearing due to a flaw in the bindover proceedings, Justice O’Donnell aptly noted, “that’s almost directly contrary to Morgan, is it not?” Even if plain error was properly preserved, based on this precedent it is a very high standard to meet in the context of an amenability hearing.

Furthermore, although Martin’s counsel attempted to frame the issues around the mandatory appointment of a guardian ad litem, several  justices, including the Chief Justice, were quick to point out that R.C. 2152.021(F)(1) does not mandate a hearing to determine whether to hold the complaint in abeyance. The prosecutor also articulated other issues present in this case, in addition to the “procedural thicket” he alluded to at the beginning of his argument, such as the heinous nature of the crime at issue and the fact that the crime would likely be considered outside of the scope established by Ohio’s Safe Harbor law.

There is no denying that Martin was forced into an unimaginable situation as her abusers trafficked her around Ohio. However, I believe this court will likely affirm the Ninth District.

 

 

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