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State v. Moore

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 9, 2017


         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-10-543092-A

          ATTORNEY FOR APPELLANT R. Brian Moriarty

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Brian Radigan Anthony Thomas Miranda Assistant County Prosecutors

          BEFORE: Boyle, J., Kilbane, P.J., and Celebrezze, J.


          MARY J. BOYLE, J.

         {¶1} Defendant-appellant, Deandre Moore, appeals his conviction, raising two assignments of error for our review:

I. The mandatory transfer/bindover of defendant-appellant violated his right to due process and equal protection.
II.The trial court failed to comply with the mandates of Criminal Rule 11.

         {¶2} Finding no merit to his appeal, we affirm.

         I. Procedural History and Factual Background

         {¶3} On August 11, 2010, Hong Zheng and Bingrong Zheng, husband and wife, were delivering food to a private residence in Cleveland, Ohio. As the Zhengs parked their car, Moore and his cousin approached and fired multiple gunshots into the vehicle. The shots hit both Mr. and Mrs. Zheng, killing Mr. Zheng and breaking Mrs. Zheng's arm.

         {¶4} On October 29, 2010, Moore, a juvenile, was subject to mandatory bindover to the Cuyahoga County Grand Jury for several counts, including two counts of aggravated murder, four counts of aggravated robbery, one count of attempted murder, and two counts of felonious assault. After initially pleading not guilty to those counts, Moore agreed to enter a guilty plea to murder with a firearm specification, and the state agreed to nolle the remaining counts.[1]

         {¶5} At the plea hearing, the state recited the amended charge and the potential penalty for the charge and its accompanying firearm specification. Moore and his counsel confirmed that they agreed with and understood the state's explanation. Subsequently, the court engaged in a Crim.R. 11 colloquy with Moore, explaining the constitutional rights that he was waiving by pleading guilty. Moore then pleaded guilty to the murder charge with the firearm specification, the trial court found that Moore knowingly, intelligently, and voluntarily made the plea, and Moore's counsel stated that she was satisfied that the trial court complied with Crim.R. 11.

         {¶6} At the sentencing hearing, the trial court imposed an indefinite prison term of 15 years to life for Moore's murder charge and a consecutive and prior to mandatory three-year prison term for the firearm specification.

         {¶7} Moore subsequently appealed, contesting the validity of both the mandatory transfer of his case to the General Division of the Cuyahoga County Common Pleas Court and his plea.

         II. Mandatory Bindover

         {¶8} In his first assignment of error, Moore argues that he was entitled to an amenability hearing before the juvenile court judge prior to his case's transfer to the Cuyahoga County Common Pleas Court under the Ohio Supreme Court's 2016 decision in State v. Aalim, 150 Ohio St.3d 463, 2016-Ohio-8278 ("Aalim I "). At the time it filed its brief, the state argued that Aalim I was stayed pending reconsideration, and Moore could not rely on that case for a reversal and remand.[2]

         {¶9} In Aalim I, written by Justice Lanzinger, the Ohio Supreme Court held that the mandatory transfer of juveniles to adult court without a discretionary determination by the juvenile court at an amenability hearing violated juveniles' due process rights. Aalim I at ¶ 28. In reaching that conclusion, the court explained that "juvenile courts 'occupy a unique place in our legal system'" and were created to "promot[e] social welfare and eschew[] traditional, objective criminal standards and retributive notions of justice." Id. at ¶ 16, quoting In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177. Noting that "[s]ince its origin, the juvenile justice system has emphasized individual assessment, the best interest of the child, treatment, and rehabilitation, with a goal of reintegrating juveniles back into society[, ]" the court agreed with Aalim that "juvenile court judges are in the best position to evaluate each juvenile's suitability for juvenile or adult court, " and they "must be allowed the discretion that the General Assembly permits[, ]" including the ability "to distinguish between those children who should be treated as adults and those who should not." Id. at ¶ 20, 25. Considering the juvenile justice system's unique purposes and juveniles' special status within the criminal justice system, the court held that "[a]ll children are entitled to fundamental fairness in the procedures by which they may be transferred out of juvenile court for criminal prosecution, and an amenability hearing * * * is required to satisfy that fundamental fairness." Id. at ¶ 26.

         {¶10} Nevertheless, as noted by the state's notice of supplemental authority, the Ohio Supreme Court reconsidered Aalim I in Aalim II. The reconsidered majority opinion, written by Justice Kennedy, rejected Aalim I 's holding and found that the mandatory-bindover procedures for juveniles, which do not require a juvenile judge's discretionary review at an amenability hearing, comply with due process and equal protection standards. Id. at ¶ 27, 37. In its reconsidered opinion rejecting Aalim's due process argument, the court stated, "The General Assembly determines the jurisdiction of the juvenile court[, ]" and "has determined that [under] R.C. 2152.10(A)(2)(b) and 2152.12(A)(1)(b), juvenile offenders of a certain age charged with aggravated murder, murder, certain serious felonies committed after a prior delinquency adjudication [or] * * * with a firearm shall be bound over to adult court." Id. at ¶ 26. Noting that "Aalim had a hearing before a juvenile-division judge to determine Aalim's age at the time of the alleged offense and whether there was probable cause to believe that he had committed the conduct alleged[, ]" the court concluded that the mandatory bindover procedures "satisfied the requirements of 'fundamental fairness[.]'" Id. at ¶ 27.[3]

         {¶11} Moore argues that his due process and equal protection rights were violated because he was not afforded an amenability hearing at the juvenile court level. Based on the Ohio Supreme Court's reconsideration of Aalim I and holding in Aalim II, however, Moore's first assignment of error lacks a legal foundation on which to stand, and we therefore find that his argument lacks merit.

         {¶12} Moore's first assignment ...

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