State v. Sims, 55 Ohio App. 2d 285 (Ohio 1977)

Stillman, J.

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 N. 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 N. 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 uncontradieted 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:

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 viola

tion of the Fifth and Fourteenth Amendments to the Constitution of the United States. Benton v. Maryland (1969), 395 U. S. 784, 794.

The appellant relies primarily on Breed v. Jones (1975), 421 U. S. 519. 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 ease. The court declared at page 529:

In a significant footnote, the court stated:

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. Bather, it was an adjudication that re-, spondent had violated a criminal statute.” Id., at 538 n.18.

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.

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, David Warren, cash in the approximate amount of $104.50, 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. It appearing to the Court that said child has committed acts which, if committed by an adult, would be felonies a mental and physical examination having been made by duly qualified persons, as provided by statute, it is hereby ordered that pursuant to Section 2151.26 Ohio Revised Code the said James Samuel Sims be bound over to the Court of Common Pleas of Cuyahoga County, for further proceedings according to law. It is ordered that said James Samuel Sims be, and he hereby is, committed to the Jail of Cuyahoga County.”

This docket demonstrates that the appellant came before the Juvenile Court upon a petition alleging that the appellant was delinquent, and further alleging the particulars of the charges filed against him. The court determined that there was an appearance of acts which would have been felonies if committed by an adult, and in accordance with the provisions of R. C. 2151.26, bound the appellant over to the Court of Common Pleas for further proceedings, committing the appellant to jail.

There is nowhere any indication that an “adjudicatory hearing or a jurisdictional hearing” was conducted on this occasion. There is no finding of delinquency, and there is no recitation of any evidence upon which such an adjudication could be premised. All that appears to have occurred is that the Juvenile Court arrived at a determination that there was an appearance of possible criminal action which properly and appropriately should be considered by the Court of Common Pleas of Cuyahoga County.

Counsel for the appellant has argued that R. C. 2151.26 required a “finding of delinquency” to substantiate a bind-over to the Common Pleas Court. (Emphasis added.) There is no such specific finding in the transcript of this docket. Although our contemporary terminology of “probable cause” is not recited in the transcript of this proceed

ing, it is clear from the context that the court determined this probability, and only this probability, at the proceedings of March 27, 1962.

The appellant cites In Re Jackson (1970), 21 Ohio St. 2d 215, to fortify his contention of double jeopardy. This case dealt with the propriety of binding a 16 year old child over to the Court of Common Pleas in 1968. The court determined that the failure of the Juvenile Court to find delinquency or capacity for rehabilitation prevented a bind-over to the Court of Common Pleas. The syllabus of this case recites:

It is significant in the Jackson, supra, case that the Juvenile Court record demonstrates an adjudicatory hearing with testimony presented to the court like that proscribed in Breed v. Jones, supra. There is no indication that such a hearing occurred in the instant case.

In the absence of any indication to the contrary, the proceedings of a court are presumed to be valid and regular. State v. Ray (1956), 102 Ohio App. 395. The Juvenile Court did nothing to place the appellant in any measure of jeopardy by reason of its conduct in this case. For this reason, we reject the first assignment of error.

The second assignment of error maintains that the trial court failed to determine whether the defendant’s guilty

plea was knowingly, intelligently and voluntarily made.

It must be borne in mind that the proceedings in this ease antedate current criminal rules relating to the acceptance of a guilty plea. The Ohio rule as stated in State v. Piacella (1971), 27 Ohio St. 2d 92, 96, indicates that a guilty plea has been voluntarily and intelligently made when the record clearly discloses that:

Here the appellant was represented by experienced counsel and was being tried by a three judge court. There can be no doubt that his plea of guilty was entered with full knowledge of the consequences and was voluntarily made. The court addressed the appellant directly and at length and his counsel offered responses indicating that he had held conferences with the appellant and that the appellant, had a clear understanding of the proceedings.

There is nothing in the record which substantiates an argument that the appellant was unaware of his rights. Although he did not himself respond in any audible fashion to the questions and statements directed to him by the court, he was specifically addressed in the following colloquy:

“Judge Corrigan: Yes, that is a plea of guilty to the indictment specifically.

In State v. Stone (1975), 43 Ohio. St. 2d 163, the Supreme Court of Ohio declared:

made where the record affirmatively 'discloses that defendant was advised of the rights he was waiving by competent, privately retained counsel and, in part, by the trial court; that he understood the rights he was waiving, which fact was ascertained by the trial court in a personal inquiry of the defendant; and that he was motivated to do so by a desire to avoid a more severe penalty.”

For these reasons, we reject the second assignment of error. The conviction of the appellant is therefore affirmed.

Krttpansky, J., concurs.

Day, C. J., dissents.

Day, C. J.,

dissenting. A petition was lodged against Defendant-Appellant James Sims (defendant) on February 27, 1962, in Juvenile Court. The defendant was seventeen. The petition alleged two instances of armed robbery and one instance of murder while in the perpetration of a robbery. A citation and warrant issued. On March 27, 1962, the defendant appeared before Juvenile Court for hearing on the petition. Defendant was bound over to the Court of Common Pleas for trial as an adult.

Defendant was subsequently indicted on two counts of first degree murder. Both counts named the same victim. One count charged murder with “premeditated malice”; the other charged murder while in the perpetration of a robbery.

On June 7, 1962, defendant plead guilty to both counts of first degree murder, and opted for further proceedings under former R. C. 2945.06, which provided in relevant part:

guilty the court may extend mercy and reduce the punishment for such offense to life imprisonment in like manner as upon recommendation of mercy by a jury .”

The panel of judges found defendant guilty of murder in the first degree on both counts and recommended mercy as to both. The sentences, to be served consecutively, were for life with twelve days of each year ordered spent in solitary confinment.

Defendant filed a late appeal by leave of court. He assigned two errors. My view of the correct disposition of Assignment No. 1 makes it unnecessary to consider the second assignment. I would find No. 1 well taken and would reverse the judgment and discharge defendant.

Assignment of Error No. 1:

The prohibition against double jeopardy in the Fifth Amendment to the United States Constitution was held applicable to state prosecutions in 1969, Benton v. Maryland (1969), 395 U. S. 784, 794.

More recently, the United States Supreme Court has held that jeopardy attaches at juvenile court adjudicatory hearings, Breed v. Jones (1975), 421 U. S. 519, 531. As a result the Fifth Amendment prohibition against double jeopardy bars the trial of a juvenile as an adult when the juvenile has been exposed to a juvenile adjudicatory hearing prior to trial as an adult.

Furthermore, jeopardy attaches not with the rendering of judgment by the juvenile judge, but “when the Juvenile Court, as the trier of the facts, [begins] to hear the evidence,” id., 421 U. S. at 531. For that reason, the fact that no adjudication ultimately issues from such a hearing, is immaterial. Assuming an adjudicatory hearing is involved, jeopardy begins when the hearing does.2

The hearing in the instant case was held pursuant to R. C. 2151.26 (now repealed). Speaking through its journal the Judge said:

At the time of decision in 1962, R. C. 2151.26 read:

The Supreme Court of Ohio has held that R. C. 2151.26 (prior to amendment in 1969) made a finding of delinquency a condition precedent to bindover, In Re Jackson (1970), 21 Ohio St. 2d 215, 218.

The trial judge in the instant case must be presumed to have known this statutory requirement. When the instant bindover is considered in this light the court’s meaning in its journal is plain. The words “It appearing to the Court that said child has committed acts which, if committed by an adult, would be felonies *” followed by a bindover must mean the court has made a finding of delinquency though it is described somewhat ambiguously. Because the court made a finding, it must have taken evidence. Otherwise, what is the source of the “appearing” that persuaded the judge to bindover? I am unwilling to guess that the court acted on mere allegations. This conclusion is buttressed by the presumption of legality which accompanies judicial rulings unless rebutted. To assume without supporting evidence that the presumption is dissipated is not to rebut the presumption, but to invert it.

Thus, the bindover hearing must be considered more than a probable cause hearing unless the bindover is in violation of the statute. So far, no one has even suggested that.

If these conclusions are correct, the hearing on March 27, 1962, put the defendant in jeopardy. The felony proceeding was the second jeopardy and the instant case fits squarely within Breed v. Jones. The only remaining consideration is whether the latter case is retroactive. One might rely on the implications of Linkeletter v. Walker (1965), 381 U. S. 618, analysis (whether the basic fairness of the trial was affected) or the more positive implication in Robinson v. Neil (1973), 409 U. S. 505 (the guarantee against double jeopardy is not directed at a mere procedural defect aimed at some collateral purpose, but rather reaching basic fairness) to find retroactivity. However, the Circuit Court of Appeals for the Sixth Circuit has specifically ruled that Breed is retroactive, Holt v. Black (1977), 550 F. 2d 1061, 1062, 1065. Because single jeopardy is a basic constitutional right, retroactivity for the Breed doctrine is not only appropriate, but required.