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State v. Howard

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 12, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
KRILLIAN HOWARD, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-17-618513-A, CR-17-622059-A and CR-17-623374-A

         JUDGMENT: AFFIRMED

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar, Assistant Prosecuting Attorney, for appellee.

          Joseph V. Pagano, for appellant.

          JOURNAL ENTRY AND OPINION

          EILEEN A. GALLAGHER, JUDGE.

         {¶ 1} Defendant-appellant Krillian Howard appeals his bindover from the Juvenile Division of the Cuyahoga County Court of Common Pleas and the sentence imposed in the General Division. He asserts two assignments of error:

1. The juvenile division of common pleas court improperly relinquished jurisdiction over the charges against the juvenile appellant where probable cause was not established and therefore the general division of common pleas court lacked jurisdiction over the juvenile appellant.
2. Appellant's sentence is contrary to law because the record does not support the imposition of maximum sentences.

         {¶ 2} Howard was indicted in three criminal cases[1] with a total of eight counts of aggravated robbery, seven counts of kidnapping, two counts of felonious assault, two counts of robbery, two counts of having weapons while under disability, one count of attempted murder, one count of theft and one count of obstructing official business. Although Howard was 18 at sentencing, he was actually 16 at the time of the commission of the offenses charged, thus his three cases originated in the Cuyahoga County Court of Common Pleas, Juvenile Division, where they began as four delinquency complaints.[2] In each of the four cases, the juvenile court found probable cause to believe that Howard committed the acts charged and it transferred each from the juvenile division to the general division. Howard pleaded guilty to crimes in all cases.

         {¶ 3} Howard was sentenced to 20 years as an aggregate term for the three criminal cases, the high end of the agreed sentencing range of 18-20 years.

         {¶ 4} In CR-17-618513-A, Howard was sentenced to concurrent terms of 11 years on each of two counts of aggravated robbery with a three-year sentence for the firearm specification to run prior, and consecutive, to the underlying sentence.

         {¶ 5} In CR-17-622059-A, Howard was sentenced to serve 11 years on the charge of aggravated robbery with a three-year sentence for the firearm specification to run prior, and consecutive, to the underlying sentence.

         {¶ 6} In CR-17-623374-A, Howard was sentenced on two counts of aggravated robbery to concurrent terms of 11 years with a three-year firearm specification to run prior, and consecutive, to the underlying sentence.

         I. Relevant Procedural and Factual Background

         {¶ 7} These cases began as four complaints filed in the Cuyahoga County Court of Common Pleas, Juvenile Division. The juvenile court found probable cause to believe that Howard committed the acts charged in all four cases. In two cases, the court determined probable cause via hearing.[3] In the other two cases, Howard stipulated to probable cause and waived his right to a hearing.

         {¶ 8} In both cases where the court determined probable cause via hearing, as well as in one case in which Howard stipulated, the court further found Howard was:

[C]harged with a category two offense and is alleged to have had a firearm on his person or under his control during the commission of the offense, and displayed, brandished, indicated possession of, or used the firearm to facilitate the commission of the offense.

         In the fourth case, the court ordered an investigation into whether Howard was amenable to juvenile rehabilitation. After a hearing on that issue, the court determined that he was not.

         {¶ 9} The juvenile court relinquished jurisdiction over all four cases and transferred them to the general division. The two cases subject to a probable cause hearing were consolidated into one indictment.

         II. Law and Analysis

         A. Probable Cause Determination

         {¶ 10} In Howard's first assignment of error, he argues that the juvenile court erred by transferring his cases to the general division because there was not probable cause to believe that he committed the acts charged.[4] We disagree. For the reasons that follow, we find the state presented evidence by which the juvenile court could conclude there was probable cause to believe that Howard committed the acts charged.

         1. Jurisdiction to Transfer

         {¶ 11} In general, R.C. 2151.23(A) provides juvenile courts exclusive jurisdiction over children alleged to have committed acts that would constitute crimes if committed by an adult. In re M.P., 124 Ohio St.3d 445, 2010-Ohio-599, 923 N.E.2d 584, ¶ 11. Nevertheless, a juvenile court has the duty to "transfer a case, or bind a juvenile over, to the adult criminal system" in two instances. Id. citing R.C. 2152.10 and 2152.12; State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544, 978 N.E.2d 894, ¶ 10 (discussing "[m]andatory transfer" and "[d]iscretionary transfer"). R.C. 2152.10 and 2152.12 in conjunction with Juv.R. 30 provide the statutory and procedural framework by which a juvenile court relinquishes its jurisdiction over an allegedly delinquent child and transfers the case to the court that would otherwise have had jurisdiction if the offense was committed by an adult. See In re C.G., 8th Dist. Cuyahoga No. 97950, 2012-Ohio-5286, ¶ 30; see State v. Washington, 1st Dist. Hamilton No. C-130213, 2014-Ohio-4178, ¶ 10.

         {¶ 12} Before transferring a case, the juvenile court is first required to make a determination that there is probable cause to believe that the child committed the act charged. See M.P. at ¶ 11. In order to establish probable cause to believe that a juvenile committed an offense "'[t]he state must provide credible evidence of every element of an offense * * * that raises more than a mere suspicion of guilt, but need not provide evidence proving guilt beyond a reasonable doubt.'" (Emphasis deleted.) In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 42, quoting State v. Iacona, 93 Ohio St.3d 83, 93, 752 N.E.2d 937 (2001).

         {¶ 13} Although the juvenile court is required to evaluate the quality of the state's evidence in support of probable cause in conjunction with any evidence offered on behalf of the juvenile that challenges probable cause, the scope of its analysis, nevertheless, may not exceed this determination. Id. at ¶ 43-44; In re DM., 140 Ohio St.3d 309, 2014-Ohio-3628, 18 N.E.3d 404, ¶ 10 ("[The juvenile court] is not permitted to exceed the limited scope of the bindover hearing or to assume the role of the fact-finder at trial.").

         2. Evidence Establishing Probable Cause

         {¶ 14} Here, the two juvenile cases subject to a probable cause hearing both involved armed robberies.

         {¶ 15} The first case involved the armed robbery of a man standing at a bank ATM. In it, Howard was charged with two counts of aggravated robbery, one count of felonious assault, one count of kidnapping, one count of having weapons under disability and one count of grand theft. All counts aside from the having weapons while under disability charge had both one- and three-year firearm specifications.

         {¶ 16} The second case involved the armed robbery of a Subway restaurant. In it, Howard was charged with one count of attempted murder, one count of aggravated robbery, three counts of kidnapping and two counts of felonious assault. All of these offenses aside from the having weapons while under disability charge had both one- and three-year firearm specifications attached.

         {¶ 17} As discussed below, the evidence established relevant commonality between Howard and both robberies. The state presented evidence that an assailant in both robberies wore a gray hooded sweatshirt and white tennis shoes. When Howard was arrested, he was wearing a gray hooded sweatshirt and search of his house revealed white tennis shoes. The evidence showed that in both robberies, the assailant in gray conducted the crimes using only his left hand, keeping his right arm tucked into the pocket of his sweatshirt. The state also presented evidence that Howard's right arm was amputated "up to his elbow." The evidence also established that during the ATM robbery, the assailant in gray wore a "distinctive" gold watch. When Howard was arrested, he was wearing a gold watch.

         i. The ATM Robbery

         {¶ 18} At the bindover hearing, the state presented eyewitness testimony and surveillance video evidence to establish that, on March 21, 2017, the victim went to his bank to withdraw cash from the walk-up ATM of the Ohio Savings Bank on Warren Road in Cleveland, Ohio. The victim testified that, as he stood at the ATM, he was approached by a "young guy" wearing a gray hooded sweatshirt, brandishing a firearm. He described the young man as being of a medium build "maybe 150, 160 pounds," about 5'9" and African American. The victim explained that he could not get a good ...


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