Case No Plaintiff-Appellee. And. And IN THF, SUPREME COURT OF OHIO. STATE OF OlIIO CLAYVON JOHNSON. Court of Appeals Case No.

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1 IN THF, SUPREME COURT OF OHIO STATE OF OlIIO Plaintiff-Appellee vs. CLAYVON JOHNSON Defendant-Appellant Case No On Appeal from the Franklin County Court of Appeals, Tenth Appellate DiStTICt Court of Appeals Case No. 12AP-898 NOTICE OF THE FILING OF A MOTION FOR RECONSIDERATION BY APPELLANT CLAYVON JOHNSON YEURA R. VENTERS ( ) Franklin County Public Defender And TIMOTHY E. PIERCE ( ) (Counsel of Record) Counsel for Defendant-Appellant 373 South High Street / 12th Floor Columbus, Ohio RONALI) J. O'BRIEN ( ) Franklin County Prosecuting Attorney And MICHAEL P. WALTON ( ) (Counsel of Record) Counsel for Plaintiff-Appellee 373 South High Street / 13th Floor Columbus, Ohio i.^ :4: 01, 3fs=':

2 MOTION FOR RECONSIDERATION Pursuant to S. Ct. Prac. R , Appellant Clayvon Johnson respectfully moves this Court to reconsider its decision of November 6, 2013, in which the Court declined to accept jurisdiction of the appeal. Grounds for this Motion are set forth with particularity in the accompanying Memorandum in Support. Respectfully submitted, Yeura Venters Franklin County I' olic Def er By Timothy E. Pie e Counsel for' ppellant 373 South High Street!12"' Floor Columbus, OH Phone: (614) Fax: (614) tepierce(a7franklincoiuityohio,gov MEMORANDUM IN SUPPORT Clayvon Johnson's due process rights were violated when the juvenile court judge failed to take the steps necessary to ensure that his waiver of the mandatory bindover hearing was being done knowingly, intelligently, and voluntarily. The court's failure to explain the rights he would liave enjoyed at such a hearing culminated in the record not reflecting that he understood them. This violated R.C (B), R.C (A)(1)(b), R.C (I), Juv. R. 3(D) and 34(B), the Fifth and Fourteenth Amendments of the United States Constitution and Article I, Section 16 of the Ohio Constitution. This appeal presents the Court with the opportunity to review the application of R,C.

3 (B) (in addition to other pertinent provislons of the Revised Code and the state and federal constitutions) to the mandatory bindover milieu delineated in R.C (A)(1)(b). R.C (.I3) expresses the General Assembly's desire that Code provisions touching on all juvenile court proceedings "shall be liberally interpreted and construed so as to effectuate the following purposes...[t)o provide judicial procedures through which Chapters 2151 and of Revised Code are executed and enforced, and in which the parties are asstxred of a fair hearing, and their constitutional and other legal rights are recognized and enf'vrced" (emphasis added). It is therefore obvious that the juvenile offender is entitled to certain statutory and constitutional rights at the probable cause hearing referenced in R.C (.A)(1)(b). These rights parallel those available at delinquency hearings and proceedings involving adults. "[T]he juvenile should be afforded the traditional due process protections in juvenile waiver proceedings enjoyed by adults accused of crime." State v. Payne, 118 Ohio App.3d 699, 703, 693 N.E.2d 1159 (1997) quoting In re Snitsky, 73 Ohio Misc.2d 52, 57, 657 N.E.2d 1379 (1995); see also State v. West, 167 Ohio App:3d. 598, 616 at^, 64, 856 N.E.2d 985 (2006). Embedded within the child's right to present evidence that challenges the State's evidence at the probable cause hearing is the opportunity for him to have the assistance of counsel, to confront and crossexamine witnesses, to testify or not to testify in his own cause, and to subpoena and call witnesses to testify on his behalf. In re Hunter, 99 Ohio Misc.2d 107, 110, 716 N.E.2d 802 (1997); 47A Ohio Jur.3d Family Law 1559, "Preliminary probable cause hearing---rights of juvenile" (2012). Since these rights are part and parcel of the mandatory bindover hearing that hearing can only be waived knowinglv, intelligently, and voluntarily when the offender is specifically informed of these xiglits and understands he can invoke them at his option. Prior to the child's factual stipulation resulting in the waiver of these rights the PcrYens patriae 2

4 obligations borne by the juvenile court judge demand that she also explain the consequences attendant to their waiver. "[W]aiver is the `intentional relinquishment or abandonment of a known right or privilege."' State v. McClain, 6th Dist. No. L , 2012-Ohio-5264 at 16, quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed.2d 1461 (1938) (emphasis added). Just last year this Court held that in order for the waiver of the discretionary bindover hearing to meet the due process standards of Kent v. United Stcates, 383 U.S. 541, 554, 86 S. Ct. 1045, 16 L. Ed.2d 84 (1966) the juvenile judge must determine that the waiver is offered knowingly, voluntarily, and intelligently. Proper deterznination must include a colloquy with the juvenile and must occur on the record. The colloquy allows the juvenile court to fulfill itsparenspcttriae duty by insuring that the juvenile fully understands and intentionally and intelligently relinquishes the right to an amenability hearing. And it allows the judge to `engage in a meaningful dialog with the juvenile,' In re C.S., 115 Ohio St.3d 267, 2007-Ohio- 4919, 874 N.E.2d 1177, T; 107, to guarantee the juvenile's due process rights are protected. Additionally, by requiring the court to determine that the waiver is made knowingly, voluntarily, and intelligently, we comport with the plain language of Juv. R. 3, which states that rights of a child may be waived `with permission of the court.' State v. D. W., 133 Ohio St.3d 434, 2012-Ohio-4544, 978 N.E.2d 894, TT, In concluding that D.W.'s waiver of the amenability hearing did not comport with due process this Court found especially troubling the record's lack of "any meaningful discussion about" the hearing. State v. D. W., supra, at 140. "Any meaningful discussion" of the bindover hearing should include the court apprising the child of the rights available to him at such a hearing and to not simply rely on the youth's statement that he has discussed the "pros and cons" of his waiver decision with his counsel. In addressing similar concerns the Supreme Court of Washington held recently [a] waiver of any right in juvenile court must be an `express waiver intelligently made by the juvenile after the juvenile has been fully informed of the right being

5 waived.' RCW (9). Here, we have no way of knowing whether [appellant's] waiver ofjuvenile court jurisdiction and his decline hearing was knowingly and intelligently made. There is simply nothing in the record that shows [appellant] understood the serious implications of having his case transferred to adult court. Although [appellant's] attorney stated that she had at least `two conversations' with [appellant] about the waiver, the record does not indicate what was discussed in those extra-judicial conversations, whether [appellant] was `intelligently' waiving his rights or whether he had been `fully infornled of the right being waived' as required by RCW (9). [Appellant] had never been in adult court and nothing in the record sllows he understood the important protections he was waiving... Washington v. Saenz, 175 Wash.2d 167, 283 P.3d 1094, 1099 at Tj^, (2012) (en bane). It is noteworthy that R.C (B) read in para materia with Juv. R. 3(D) embodies the essence of RCW (9), supra. The same principles of due process that affected this Court's decision in D. W. demand that these protections be extended to children facing the possibility of mandatory transfer. Their employment is more urgent during the mandatory bindover process because the child has but one opportunity at a single hearing to avoid the harsher penalties and consequences of the adult system. In the case sub judice the jurisprudential underpinnings of D. W. were flouted when the court did not engage Clayvon Jolanson in "a meaningful discussion" regarding the mandatory bindover hearing. The Tenth District Court of Appeals rejected this analysis in State v. Johnson, 1 Qth Dist. No. 12AP-898, 2013-Ohio-2008 (2013) and must be reversed. Additionally, the availability of a hearing at which probable cause must be proven comprises one of the substantial. benefits bestowed upon juvenile offenders facing mandatory transfer. See R.C (A)(1)(b). Before such a procedural asset is forfeited due process requires that the child fully comprehend the State's obligations at a such a hearing as well as the import of the prosecution not fulfilling its burden. It is critical that the court explain this to the child when he proposes to waive the hearing. A benefit of such significance must be thoroughly 4

6 explained to the child before his waiver can be construed as a knowing and voluntary act. See 10-etis, Jersey 1^ JM, 866 A.2d 178, 186 (2005) (" `[g]iven its potential procedural consequences, a probable cause hearing in a juvenile transfer waiver proceeding is a more critical step in the process than a typical probable cause proceeding available to an adult offender"' [citation omitted]) (brackets in original); Hutnphrey v. Kentucky, 153 S.W.3d 854, (2004) (`[t]he consensus among those jurisdictions is that the court must inform the child of the right to the preliminary hearing and ensure that the waiver of this right is voluntarily, knowingly, and intelligently made. Considering the facts that children require special considerations due to their intelligence and experience, and the United States Supreme Court has stated that whether a child should be deprived of the special protections of the juvenile justice system is a critically important question, we believe these assurances are necessary to ensure due process and fair treatment of child"). Here the lower court never explained that had the State failed to demonstrate by the standard of probable cause that he had conlmitted the crimes charged his case never would have been transferred to the general division of the court of common pleas. Lastly, when juvenile courts are not required to specify on the record the rights the child gives up by stipulating to probable cause a serious question arises whether these rights are actually being "recognized and enforced" at such hearings. Apprising juveniles of these rights has the collateral effect of insuring that such rights are in fact being protected when hearings are conducted. As well, because of the lack of uniformity among this State's juvenile courts regarding the sufficiency of bindover waivers this appeal would allow this Court pursuant to Article IV, Section 5(B) of the Ohio Constitution to formulate a standard framework for courts to follow when confronted with the youthful offender's indication that he wishes to waive the R.C. 2152> 12(A)(1)(b) hearing.

7 Accordingly, Appellant Clayvon Johnson respectfully urges the Court to grant his motion for reconsideration and permit the parties to brief and argue the merits of the issues the case presents. CONCLUSION For the foregoing reasons, Appellant respectfully urges this Court to accept jurisdiction and reverse the judgnient of the Franklin County Court of Appeals. Respectfully submitted, CERTIFICATE OF SERVICE Yeura Venters Franklin County Public De fenul-et l3y Timothy E.IPi rce Counsel. for Appellant 373 South High Street/12't' Floor Columbus, OH Phone: (614) Fax: (614) I hereby certify that a true copy of the foregoing motion for reconsideration was delivered to the Office of the Franklin County Prosecuting Attorney, Attn: Mr. Michael Walton, 373 South High Street/13h Floor, Columbus, OH this 18th day of November, Timothy ^^^,^ierce Couns f.^r Appellant 6