ORSV3r^AL

IN THE SUPREME COURT OF OHIO

11® 1934STATE OF OHIO

Appellee,

V.

DORIAN SIMPSON,

Appellant.

S.Ct. No.

On Appeal from CuyahogaCounty Court of AppealsEighth Appellate DistrictC.A. Case No.10-096154

MEMORANDUM IN SUPPORT OF JURISDICTIONOF APPELLANT DORIAN SIMPSON

DONALD R. MURPHY, Esq.(0024068)12800 Shaker Blvd.Cleveland, OH 44120Facsimile: 216 991-2610Ph: 216-991-4883

COUNSEL FOR APPELLANT

WILLIAM D. MASONJustice Center1200 Ontario StreetCleveland, OH 44113

COUNSEL FOR APPELLEE

-w-1-e1-9it9_

CLERK OF COURTSUPREME COURT OF ONIO

TABLE OF CONTENTS

page

TABLE OF AUTHORITIES .............................................................................. 3

BECAUSE THE ADULT COURT LACKED JURISDICTIONIT EXPLAINS WHY THIS CASE INVOLVES A SUBSTANTIALCONSTITUTIONAL QUESTION .. . . .... . ... . ... ..... .. .... ...... . ........ ...... .. ... . . ........... .... 4

STATEMENT OF THE CASE AND FACTS ......................................................... 7

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW ........ ............................... 10

Proposition of Law No. I: A single trial court judge lacked jurisdictionand erred by accepting appellant's waiver of the three-judge paneland as a result lacked jurisdiction to hear the trial and rendera verdict and sentence to aggravated murder .............................................................10

Proposition of Law No. II: The state violated appellant's right to a speedytrial, and trial counsel's failure to assert that right by filing amotion to dismiss denied appellant effective assistance of counsel,as guaranteed under the Sixth Amendment to United State Constitution ............................ 11

Proposition of Law No. III: The court failed to hold a hearing and decidea motion to suppress the confession of a juvenile who was denied hisrights to an attorney, to be present during interrogation in violationof his Fifth Amendment rights....................................................................... ........ 11

Prpoosition of Law No. IV: The conviction against Dorian Simpson is againstthe manifest weight of the evidence when there was no substantial evidenceupon which a trier of fact could reasonably conclude that the elementshad been proven beyond a reasonable doubt ............................................................. 12

Proliosition of Law No. V: The Court of Common Pleas was withoutjurisdiction to proceed to prosecute a child where there was animproper bind over by the Juvenile Court. The circumvention

of the statutory requirements is in violaflon of the FourteenthAmendment as guaranteed under the United States Constitution .......................................12

CONCLUSION ... ..... . ... ...... ... . . .... . ........ .. ..... . .... ...... . .. .. . .... .. ... ..... . . ..... ..... .... ......13

CERTIFICATION .............................................................................................14

2

TABLE OF AUTHORITIES

CASES:.............................................6

State v. Hanning (2000), 89 Ohio St.3d 86 ...................

........11...................................State v. Madrigai, 87 Ohio St3d 378 ..........................

......................4State v. Wilson, 73 Ohio St.3d 40 ......................................................

...................................12State ex rel. Jones v. Suster, 84. Ohio St.3d 70 .........................

.....................11Strickland v. Washington (1984), 466 U.S. 668 .....................................

RULES....................7................

7uvenile Rule 30 ....................................... ..................

OHIO REVISED CODES, OR STATUTES

R.C. 2152.12 (D) ................... .................................................. 5,7

........................................................... 5R.C. 2152.12 (E) ....................................

................7R.C. 2923.03 .. ..... . . ...... ... ... . . .... .... .. ......... ...... ...... ..... . ............ ..... .......

10. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . .. . . . . . .. . . . . . . . . . . . . . .. . . . . . . . .R.C. 2945.06 ..............................................

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BECAUSE THE ADULT COURT LACKED JURISDICTION TT EXPLAINS WHY THIS CASEINVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION

In State v. Wilson, 73 Ohio St.3d 40, this court acknowledged that the juvenile court's subject

matter jurisdiction over a child is "exclusive." Thus, it "cannot be waived" and the prosecution of a

minor in adult court is a "nullity" unless a proper bind-over has occurred. Id. at 44.

In the present case, the prosecution of Dorian Simpson in the adult court is a nulli and his

conviction is vo„ id. At the oral arguments in this case evidence surfaced by the State that Simpson's

bind-over hearing was improper. Appellant states that during oral arguments the State of Ohio opened

up a can of worms went it by its Assistant Prosecuting Attorney could not and did not confirm that the

Juvenile Court had performed the requisite psychological evaluation on the child DS, prior to the

statutory bind over hearing. Moreover, the State submitted the acts of Dominic Kilgore as if his acts

were those of Dorian Simpson, an accomplice.

This case is a case of public or great general interest and involves a substantial constitutional.

Question, because the Ohio Legislature has amended Ohio Revised Code section 2152.12 as a step

toward reforming the juvenile system and to appease the public's outrage with juvenile crime. This

amendment imposes restraints on the juvenile judge's current transfer power in an important was as it

mandates juvenile transfer under more specific circumstances than the former statute.

The current mandatory transfer statute provides that a judge must transfer the juvenile to adult

court after it fands probable cause exists to believe the child committed the act charged, and only when

the child has a previous adjudication of an act constituting murder or aggravated murder if done by an

adult. The statute restricts and limits the judge's discretion regarding the offenses for which the judge

may decide transfer upon the actions of an accomplice.

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The statute acts as a restraint on the juvenile judge's power to transfer an accomplice based on

the acts of a principal offender. The amendment requires a juvenile judge to continue to consider those

factors enumerated under the statute. The enumerated criteria is not subjectively-based factors, such as

those in Juvenile Rule 30, but are factors that are determined as objective facts. Thus, a juvenile court

cannot hide its own subjectivity behind these criteria when a transfer decision is made.

If such subjective decisions are allowed to stand likened to the case in Ohio v. Simpson, it

renders the Ohio Revised Code 2152.12 (D) and 2152.12 (E) govetning the transfer of cases of no effect,

and turns back over a half a century of progress made in protecting juvenile rights. These statutes hold

mandatory language specifically stating:

(D) In considering whether to transfer a child under division(B) of this section, the juvenile court shall consider thefollowing relevant factors, and any other relevant factors, infavor of a transfer under that division:

(1) The victim of the act charged suffered physical orpsychological harm, or serious economic harm, as a result ofthe alleged act.(2) The physical or psychological harm suffered by the victimdue to the alleged act of the child was exacerbated because ofthe physical or psychological vulnerability or the age of thevictim.(3) The child's relationship with the victim facilitated the actcharged.(4) The child allegedly committed the act charged for hire oras a part of a gang or other organized criminal activity.(5) The child had a firearm on or about the child's person orunder the child's control at the time of the act charged, the actcharged is not a violation of section 2923.12 of the RevisedCode, and the child, during the commission of the act charged,allegedly used or displayed the firearm, brandished thefirearm, or indicated that the child possessed a firearm.(6) At the time of the act charged, the child was awaitingadjudication or disposition as a delinquent cbild, was under acommunity control sanction, or was on parole for a priordelinquent child adjudication or conviction.

and12Lne__restdts^f a^v previous iuvenile sanctionsprograms indicate that rehabilitation of the child will not occurin the juvenile system.(8) The child is emotionally, physically, or psychologicallymature enough for the transfer.

5

(9) There is not sufficient time to rehabilitate the child withinthe juvenilc system.

(E) In considering whether to transfer a child under dtvision

(B) of this section, the juvenile court shall coneider thefollowing relevant factors, and any other relevant factors,against a transfer under that division:

(1) The victim induced or facilitated the act charged.(2) The child acted under provocation in allegedly committingthe act charged.(3) The child was not the principal actor in the act charged,or, at the time of the act charged, the child was under thenegative influence or coercion of another person.(4) The child did not cause physical harm to any person orproperty , or have reasonable cause to believe that harm of thatnature would occur, in allegedly connnitting the act charged.(5) The child previously has not been adjudicated a delinquentchild.(6) The child is not emotionally, physically, orpsychologically mature enough for the transfer.(7) The child has a mental illness or is a mentally retarded

person.(8) There is sufficient time to rehabilitate the child within thejuvenile system and the level of security available in thejuvenile system provides a reasonable assurance of publicsafety. (Emphasis Added)

Amended by 129th General Assembly File No. 29, HB 86, § 1,eff. 9/30/2011. Effective Date: 01-01-2002

It is well held by this Court that adults are presumed to be responsible for their actions and are

presumed to have the ability to think for themselves and make their own decisions independently of any

accomplices, so it is reasonable to hold adult co-defendants accountable for an accomplice's actions. But

children are easily influenced and persuaded by adults. To require bind over for a child based on an

adult accomplice's decision to use a firearm through application of the complicity statute runs contrary

not only to the doctrine ofparens patriae, upon which the General Assembly built the juvenile criminal

justice system, but to connnon sense.

Put simply, the legislature did not intend to automatically attribute responsibility to the juvenile

for the actions of his or her accomplice. State v. Hanning (2000), 89 Ohio St.3d 86. As in Hanning, the

6

juvenile court must look at Simpson's unique characteristics and actions, including whether he has a

history indicating a failure to be rehabilitated. R.C. 2152.12 (D)(7).

Because the plain language of the statute does not provide for imposing an accomplice's liability

onto the juvenile, the mandatory bind over provision of the statute does not apply because Simpson did

not have a firearm on or about his person or under his control while committing the act of robbery and

murder. However, his co-defendant the older and previously convicted Dominic Kilgore was the actual

shooter during the commission of the robbery. As such, the complicity statute, R.C. 2923.03, does not

apply to the juvenile bind-over criteria set forth in R.C. 2152.12.

Accordingly, this Court must accept jurisdiction to hear and overturn this case where the

prosecution of a minor in adult court is a "nullity" because no proper bind-over has occurred.

STATEMENT OF THE CASE AND FACTS

On or about November 11, 2008 Appellant, Dorian Simpson, and three other young

men Jerry Brown, Dennis Hutcherson, Dominic Kilgore were joy riding in a van stolen by co-

defendants Jerry Brown, Dennis Hutcherson. While the four were driving ( throughout the

entire sequence of events Simpson was the driver) they went to the address of 5111 Hector in

search of another car to steal. At the Hector address was an early 1980's model Oldsmobile

Cutlass with large 26 inch rims.

it-was taier deteriiri^tlza^ th^ c-a^.a=as driv^n b; }ol^^n'e B1'ydrJx nom ci^ceased. Mr,

Boyd was working as a security guard at the Hector address known as a senior citizeri s

7

complex. According to the State's presentation of the facts, at some point in time, Brown and

or Kilgore believed that they needed more than a screwdriver to steal the car. Consequently,

Kilgore got on the phone and called a fifth individual named Maurice Taylor the four

individuals drove to see Taylor, whereby Taylor provided Kilgore with a gun.

The four young males drove back to the Hector address, and parked the van next to the

main entrance of the apartment. Subsequently, the victim came out of the apartment building

and knocked on the van window and asked the individuals what they were doing, whereby

Appellant stated that the group was waiting on somebody to come out of the building. The

deceased (Johnnie Boyd, Jr.) then proceeded to walk back towards the building where he was

in communication with another person while standing in the entrance. Moments later the

deceased returned walked to his car, then Dominic Kilgore opened the door to the van and

shot three times. The last gun shot hit Boyd in the temple, and he fell to the ground. Kilgore

and Brown got out of the van, and took Boyd's keys and cell phone.

Next, Appellant and Hutcherson pulled off leaving Kilgore and Brown. However,

Brown and Kilgore would drive off in the stolen vehicle. It was later determined that Maurice

Taylor profited ill gain in the amount of $1,000.00 from the commission of these tragic

offenses. Also, all five individuals involved were either arrested or turned themselves in to

authorities.

The Appellant tutned himself in to authorities and was accompanied by his father on

- -:( ^ ,^ut t ^c ^January 11, 2lAlg pel"la^ wasbouna overfromz^uve^u'^^ ^ourt^o e ^ su=t^r3n ^"+an-

charged with receiving stolen property, robbery, murder and aggravated murder. Appellant

8

waived his rights to speedy trial and his right to a trial by jury. A trial was held in the

Cuyahoga Court of Common Pleas, where Appellant was found guilty for aggravated robbery,

murder, and aggravated murder with firearm specifications. Appellant was sentenced to

confinement in the Lorain Correction Institution under the jurisdiction of the Ohio department

of Rehabilitation as follows:

On a former day of court the court found the defendantguilty of murder 2903.02 - F1 with firearm specification - 1year (2941.141), firearm specification - 3 years (2941.145) thelesser included offense under count(s) 1 of the indictment.On a former day of court the court found the defendantguilty of aggravated murder 2903.01 b f1 with firearmspecification - 1 year (2941.141), firearm specification - 3years (2941.145) as charged in count(s) 2 of the indictment.on a former day of court the court found the defendantguilty of aggravated robbery 2911.01 a(1) fi with firearmspecification - 1 year (2941.141), firearm specification - 3years (2941.145) as charged in count(s) 3 of the indictment.on a former day of court the court found the defendantguilty of rsp (mv) 2913.51 a f4 with firearm specification - 1year (2941.141), firearm specification - 3 years (2941.145) ascharged in count(s) 4 of the indictment. Defendant addressesthe court, prosecutor addresses the court, and victim/rep

addresses the court.

The court considered all required factors of the law. Thecourt finds that prison is consistent with the purpose of R. C.2929.11. the court imposes a prison sentence on count 2, aggmurder. counts 1 and 3 to merge into count 2 for sentencing.life with possibility of parole after 25 years and 1 and 3 yearfirearm specs merging into one 3 year spec to be served priorto and consecutive with base charge for total of 28 years. 18months on count 4, to run concurrent. total sentence - lifewithout parole for 28 years. Defendant is to receivepsychiatrir:-testing artu ser vices while-sricarsprated< i ostrelease control is part of this prison sentence for 5 yearsmandatory for the above felony(s) under R.C.2967.28.Defendant advised that if post release control supervision is

9

imposed following his/her release from prison and if he/sheviolates that supervision or condition of post release controlunder RC 2967.131(b), parole board may impose a prisonterm as part of the sentence of up to one-half of the statedprison term originally imposed upon the offender.Defendant to receive jail time credit for 571 day(s), to date.jail credit days to date to be calculated by the sheriff. (up to 3years post release control on count 4) defendant advised ofappeal rights.

Appellant filed a Notice of Appeal in this matter on December 13, 2010. This appeal

now follows. The Eighth Appellate District affirmed the trial court's decision in its Opinion

and Journal Entry. However, during the oral arguments on this case one of the Justices asked

the State about various issues in relation to the juvenile court's bind over process, and a

question of statutory dictates and jurisdiction arose. From the denial of his appeal after oral

arguments, Appellant raises the following Propositions of Law.

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW:

Proposition of Law No. I

A single trial court judge lacked jurisdiction and erred by accepting Appellant'swaiver of the three-judge panel and as a result lacked jurisdiction to hear the trialand render a verdict and sentence to aggravated murder.

If this Court grants jurisdiction, Appellant will brief the merits on the trial court's lack

of jurisdiction to accept the defendani's plea to aggravated murder because R.C. 2945.06

requires that a three-judge panel accept such a plea. requires that a three-judge panel accept

suc^^ a-plea.

10

However, because the adult trial court was without jurisdiction Appellant's Fifth

Proposition of Law must be sustained, and the conviction made void and a nullity.

Provosition of Law No. II

The state violated appellant's right to a speedy trial, and trial counsel'sfailure to assert that right by filing a motion to dismiss denied appellanteffective assistance of counsel, as guaranteed under the Sixth Amendmentto United State Constitution.

If this Court grants jurisdiction, Appellant will brief the merits that he was denied

effective assistance of counsel pursuant to the test in State v. Madrigal, 87 Ohio St.3d 378, 388-

389, and Strickland v. Washington (1984), 466 U.S. 668, 687-688, 104 S.Ct. 2052. Specifically,

Simpson will brief that the State violated his statutory right to a speedy trial, and trial

counsel's failure to assert that right by filing a motion to dismiss upon the expiration of the

speedy-trial clock denied him effective assistance of counsel.

However, because the adult trial court was without jurisdiction Appellant's Fifth

Proposition of Law must be sustained, and the conviction made void and a nullity.

Proposition of Law No. III

The court failed to hold a hearing and decide a motion to suppress theconfession of a juvenile who was denied his rights to an attorney, to bepresent during interrogation in violation of his Fifth Amendment rights.

If this Court grants jurisdiction, Appellant will brief the merits that, the court's failure to

b Kn+.a-hear±nb on-his ,no±;on-tn-auppiess-eoQrcQSI statements wasa violationof due process of

law.

11

However, because the adult trial court was without jurisdiction Appellant's Fifth

Proposition of Law must be sustained, and the conviction made void and a nullity.

Protsosition of Law No, IV

The conviction against Dorian Simpson is against the manifest weight ofthe evidence when there was no substantial evidence upon which a trierof fact could reasonably conclude that the elements had been provenbeyond a reasonable doubt.

If this Court grants jurisdiction, Appellant will brief the merits that Article IV, Section

3(B)(3) of the Ohio Constitution authorizes this appellate courts to assess the weight of the

evidence independently of the fact finder. As such, the findings of the trier of fact were against

the manifest weight of the evidence.

However, because the adult trial court was without jurisdiction Appellant's Fifth

Proposition of Law must be sustained, and the conviction made void and a nullity.

Proposition of Law No. V:

The Court of Common Pleas Adult Felony Court was without jurisdiction toproceed to prosecute a child where there was an improper bind over by theJuvenile Court. The circumvention of the statutory requirements is in violation ofthe Fourteenth Amendment as guaranteed under the United States Constitution.

The juvenile court failed to establish probable cause for a mandatory bind-over. The juvenile

court erred when it relinquished its jurisdiction to the adult felony court without a proper bind over.

Because, the bind over was improper the felony court lacked subject-matter jurisdiction, which can be

rai^edat-any-time: vtut-- m rPi. donesv. ' S,uster, _94-S2hio St 3st70, 75.

12

WHEREFORE, Appellant Dorian Simpson's conviction in the adult court is a nullity and the

conviction is void.

CONCLUSION

Based upon the accumulation of errors and violations of Appellant's fundamental rights

as guaranteed under the First, Fourth, Fifth, Sixth and Fourteenth Amendments as guaranteed

under the United States Constitution, this Court must exercise its jurisdiction to hear this claim

where Simpson's conviction in the adult court is a nullity and the conviction is void.

Respectfully submitted,

Donald R. Murplhy(#0024Attorney At Law12800 Shaker Blvd.Cleveland, OH 44120216-991-4883

Counsel for Appellant

13

CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of this Appeal Brief has been forwarded to

opposing counsel for the State of Ohio via reg. U.S. mail on this 1e day of November, 2011 and served

on the following:

William MasonChief Prosecuting OfficerCuyahoga CountyJustice CenterCleveland, Ohio 44113

Donald R. Murphy(#O024068)

14

EXHIBIT A

[Cite as State v. Stmpson, 2011-Ohio-4955.1

Court of Appeals of OhioEIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINIONNo. 96154

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

DORIAN SIMPSON

DEFENDANT-APPELLANT

JUDGMENT:AFFIRMED

Criminal Appeal from theCuyahoga County Court of Common Pleas

Case No. CR-523690

BEFORE: S. Gallagher, P.J., Keough, J., and E. Gallagher, J.

RELEASED AND JOURNALIZED: September 29, 2011

ATTORNEY FOR APPELLANT

Donald R Murphy12800 Shaker Blvd.Shaker Heights, Ohio 44120

ATTORNEYS FOR APPELLEE

William D. MasonCuyahoga County Prosecutor

BY: Ma'rion D. HorhnSteven E. Gall

Assistant Prosecuting AttorneysThe Justice Center, 8th Floor1200 Ontario StreetCleveland, Ohio 44113

SEAN C. GALLAGHER, P.J.:

{¶ 1} Appellant, Dorian Simpson, appeals his conviction in the Cuyahoga County

Court of Common Pleas for aggravated murder, murder, aggravated robbery, and

receiving stolen property, all with one- and three-year firearm specifications. For the

reasons stated herein, we affirm.

112) The charges in this case arose from incidents that occurred on

November 29, 2008, which included the murder of Johnnie Boyd. Appellant, who was

16 years old at the time of the offenses, was charged as a juvenile and was bound over to

the court of common pleas to be tried as an adult. He pled not guilty to the indicted

charges and waived a jury trial.

{¶ 3} At the bench trial, testimony was presented concerning the events that

transpired. On the evening of the murder, Jerry Brown, Dennis Hutcherson, and

appellant were riding around on bikes and were looking for a car to steal. They came

across a red Dodge Caravan. Appellant "peeled the window," Brown "peeled the

column," and they started the vehicle. The trio picked up Dominick Kilgore, and the

four men drove around looking for another car to steal. With appellant driving the van,

the group went to an apartment complex located at 5111 Hector Avenue in Cleveland.

The victim was working as a security guard at the apartment complex.

{¶ 4} The four men spotted the victim's 1985 Cutlass with prominent rims in the

parking lot. After discovering they could not peel the column, the group went to obtain a

gun. The plan was to rob the victim and to take his keys for the vehicle. When they

returned to the apartment complex, the victim approached the van to inquire about their

presence on the property. The group indicated they were waiting for somebody, The

victim returned to the building and began talking with Peter Bush, an armed security

officer, who was visiting a friend at the apartment complex.

{¶ 5} The victim returned to the parking lot, and appellant pulled the van up to

the victim. As the victim started to run, Kilgore opened the side door and fired three

______ _shntc at t,e v;ctim. _The^hird^h9t^ck the victim in the head, killing him.

{¶ 6} Kilgore and Brown exited the van, obtained the victim's keys, and drove off

in the victim's car. Appellant and Hutcherson left the scene in the van. After

discovering they could not take the rims off the car without a special tool, they parked the

car in an abandoned garage. It was then stolen from the garage by other individuals.

(171 Police detectives were able to discover the identity of the four individuals

involved in the murder. Appellant turned himself in to the police and was accompanied

by his father. He gave a verbal and a written statement, with his father present.

Appellant admitted the following: helping to open the window to the stolen van; joyriding

and looking for another car to steal; driving to pick up the gun and to the crime scene;

knowing Kilgore was going to rob the victim for his keys; pulling out in front of the

victim; knowing the victim was shot in the head and his keys were obtained; and driving

away in the van after the victim was shot.

{¶ 8) The trial court found appellant guilty of murder (RC. 2903.02), aggravated

murder (R.C. 2903.01(B)), aggravated robbery (R.C. 2911.01(A)(1)), and receiving stolen

property (R.C. 2913.51(A)), all with one- and three-year fireann specifications. The

court sentenced appellant to life in prison with the possibility of parole after 25 years,

plus three mandatory years for the firearm specification.

{¶ 91 Appellant filed this appeal, raising four assignments of error for our review.

His first assignment of error provides as follows: "A single trial court judge lacked

-jurisdicr,io,i-atid--P^rrerlhy-acc_eptin"ppellant's waiverof the three-'ud e paneland as a

result lacked jurisdiction to hear the trial and render a verdict and sentence to aggravated

murder."

{¶ 10} Appellant argues that his case should have been heard and decided by a

three-judge panel and that this requirement could not be waived. We fmd no merit to

this argument.

1111) R.C. 2945.06, the statute providing for trial by a three-judge panel, is

limited to trials where "the accused is charged with an offense punishable with death."

Where the accused is charged with an offense that contains no circumstances or

specifications that would subject him to the death penalty, the three-judge panel

requirements of R.C. 2945.06 are inapplicable. State ex rel. Henry v. McMonagle, 87

Ohio St.3d 543, 544, 2000-Ohio-477, 721 N.E.2d 1051; State v. Porterfield, Trumbull

App. No. 2008-T-0002, 2008-Ohio-5948, ¶ 20; State v. West, Lorain App. No.

04CA008554, 2005-Ohio-990, 136-38.

11[121 Appellant's reliance on State v. Koger, 151 Ohio App.3d 534,

2003-Ohio-576, 784 N.E.2d 780, is inapposite. In Koger, the juvenile defendant was

charged with aggravated murder and aggravated robbery with accompanying

specifications that would have made him eligible for the death penalty had he been an

adult. Under those circumstances, the court found that even though the death penalty

was not available as a sentencing option, the case was required to be heard by a

--tI„pe. j„dgP,na-nei,as-a,-jurisdictianal. matter that could not be waived. Id.

{¶ 13} In this case, the charges included only firearm specifications and the

indictment did not specify any aggravating circumstances that could subject appellant to

capital punishYnent. See R.C. 2929.04(A). Because appellant was not "charged with an

offense punishable by death," R.C. 2945.06 was inapplicable to the plea proceedings and

appellant did not have to be tried to a three-judge panel. Appellant's fnst assignment of

error is overruled.

{¶ 14} Appellant's second assignment of error provides as follows: "The state

violated appellant's right to a speedy trial, and trial counsel's failure to assert that right by

filing a motion to dismiss denied appellant effective assistance of counsel ***."

{¶ 15} Appellant claims that his speedy trial rights were violated and that his

counsel was ineffective for failing to seek a dismissal of the action on speedy-trial

grounds.

1116) "Speedy-trial provisions are mandatory, and, pursuant to R.C. 2945.73(B), a

person not brought to trial within the relevant time constraints `shall be discharged,' and

further criminal proceedings based on the same conduct are barred. R.C. 2945.72(D)"

State v. Sanchez, 110 Ohio St.3d 274, 2006-Ohio-4478, 853 N.E.2d 283, ¶ 7. Pursuant to

R.C. 2945.7 1 (C)(2), a person against whom a charge of felony is pending shall be brought

to trial within 270 days after his arrest. However, under R.C. 2945.71(E), each day the

defendant spends in jail in lieu of bail on the pending charges is counted as three days.

-There--^_,re_aT u+r+her nf event"sted- anderR.C. 2945.72 that may toll the time within

which the defendant must be brought to trial. Further, in the juvenile bindover context,

the Ohio Supreme Court has held that the time for speedy trial commences to ran the day

after a juvenile court relinquishes jurisdiction. State v. Bickerstaff (1984), 10 Ohio St.3d

62, 67, 461 N.E.2d 892, citing State ex rel. Williams v. Court of Common Pleas (1975),

42 Ohio St.2d 433, 435, 329 N.E.2d 680.

{¶ 1'7} In this case, the juvenile court relinquished jurisdiction on April 20, 2009.

Thus, time began to run on Apri121, 2009. Because appellant was incarcerated since the

time of his arrest, he was required to be brought to trial within 90 days pursuant to the

triple-count provision. The record reflects a number of tolling events occurred, including

the following, among others.

11181 On May 8, 2009, and May 13, 2009, appellant filed demands for discovery

and a motion for bill of particulars. Motions filed by the defendant tolls the speedy trial

time under R.C. 2945.72(E) for a "reasonable period" to allow the state an opportunity to

respond and the court an opportunity to rule. Sanchez, 110 Ohio St.3d 274. This court

has found 30 days to be a reasonable time to respond to such requests. State v. Shabazz,

Cuyahoga App. No. 95021, 2011-Ohio-2260, ¶ 26.

{¶ 19} The record reflects that a pretrial scheduled for June 11, 2009, was

continued to June 25, 2009, and a pretrial scheduled for August 5, 2009, was continued to

August 19, 2009, both at the request of the appellant. The August 19, 2009 pretrial then

was continued by the court to September 10, 2009, because of the filing of motions. The

speedy 'trial peried-i&-tolled-i,y "[r,Jl_,e periodl nf an,vcontinuance ¢ranted on the accused's

own motion, and the period of any reasonable continuance granted other than upon the

accused's own motion[.]" R.C. 2945.72(H); State v. Baker (1993), 92 Ohio App.3d 516,

530, 636 N.E.2d 363.

{¶ 20} Furthermore, appellant executed written speedy trial waivers on September

17, 2009, March 3, 2010, and June 7, 2010, effectively waiving time until October 1,

2010. The waivers were made in writing and in open court. In light of the tolling

events that had occurred, the initial waiver was made befo're the speedy trial time had run.

An accused may waive his rights to a speedy trial, provided the waiver is expressed in

writing or made in open court on the record. State v. King, 70 Ohio St.3d 158,

1994-Ohio-412, 637 N.E.2d 903, syllabus.

{¶ 21} Upon our review, we fmd appellant's right to a speedy trial was not

violated. Accordingly, appellant's second assignment of error is overruled.

{¶ 221 Appellant's third assignment of error provides as follows: "The court

failed to hold a heaiing and decide a motion to suppress the confession of a juvenile who

was denied his rights to an attorney, to be present during interrogation in violation of his

fifth amendment rights."

{¶ 231 On May 8, 2009, appellant filed a motion to suppress illegally obtained

evidence. The motion sets forth boilerplate language seeking to suppress evidence

illegally and unconstitutionally obtained by the state. The motion fails to set forth any

factual basis for the suppression of evidence. Insofar as no ruling was entered on the

,;,otior;, ^ho-:lure±o-nale-l1nar »retnaLmotion constitutes _ harmless error unless it

adversely affects the substantial rights of the defendant. State v. Clark (Feb. 1, 1996),

Cuyahoga App. No. 67305; State v. Tolbert (1990), 70 Ohio App.3d 372, 388, 591 N.E.2d

325.

{¶ 24} On appeal, appellant challenges the circumstances surrounding his

confession, which was made without the presence of an attorney.' No such basis was

asserted in his motion to suppress. Appellant argues that the trial court should have held

a hearing to determine if his statements were unlawfully obtained.

{¶ 25} The Ohio Supreme Court has stated that "in order to require a hearing on a

motion to suppress evidence, the defendant must state the motion's legal and factual bases

with sufficient parGicularity to place the prosecutor and court on notice of the issues to be

decided." State v. Shindler, 70 Ohio St.3d 54, 58, 1994-Ohio-452, 636 N.E.2d 319.

Further, this court has consistently recognized that "[a] motion to suppress may be

overruled without a hearing when the motion consists of nothing but a boilerplate

recitation of all the possible objections to the admission of evidence." State v. Djuric,

Cuyahoga App. No. 87745, 2007-Ohio-413, ¶ 33, citing State v. Clark (Feb. 1, 1996),

Cuyahoga App. No. 67305, citing Bryan v. Fox (1991), 76 Ohio App.3d 607, 602 N.E.2d

753.

11261 Because the motion that was filed in this case was devoid of any factual

basis to support the suppression of evidence, the court was permitted to overrule the

1 The record shows that appellant was accompanied by his father. The

statement also reflects Miranda warnings were given.

motion without a hearing and did not prejudice appellant's rights. See Clark, supra.

Appellant's third assignment of error is overruled.

{1[2'7} Appellant's fourth assignment of error provides as follows: "The

conviction against [the defendant] is against the manifest weight of the evidence when

there was no substantial evidence upon which a trier of fact could reasonably conclude

that the elements had been proven beyond a reasonable doubt."

{¶ 28} In reviewing a claim challenging the manifest weight of the evidence, the

question to be answered is whether "there is substantial evidence upon which a jury could

reasonably conclude that all the elements have been proved beyond a reasonable doubt.

In conducting this review, we must examine the entire record, weigh the evidence and all

reasonable inferences, consider the credibility of the witnesses, and determine whether

the jury clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered." (Internal citations and quotations

omitted.) State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 81.

{¶ 29} Appellant challenges the credibility of Brown's testimony. He further

asserts that although he was in the driver's seat of the van, he never exited the van and

did not obtain anything of monetary value. He claims the evidence did not show that he

purposely intended to cause the death of the victim.

1130) Our review of the testimony and evidence in this case reflects that there was

z,hs±antlat-evirt^nc-e .ch ,wing-that annellant assisted in stealing the van ^"peeling the

window"; he and the three other men were looking for another vehicle to steal; he drove

the van and took the group to get the gun; he was aware of the intent to rob the victim and

steal his vehicle; he drove the group back to the crime scene; he drove up to the victim,

upon which the van door was opened and the victim was shot in the head; and he was

aware the victim was shot and his keys were obtained. Insofar as witness credibility has

been questioned, our review reflects the testimony and evidence presented at trial was

largely consistent and corroborative. Additionally, appellant provided a statement to the

police consistent with the testimony provided at trial. Upon this record, we fmd that the

court could reasonably conclude that all the elements of the crimes, including the

requisite intent, had been proved beyond a reasonable doubt.

1131) We conclude that the convictions were not against the manifest weight of

the evidence. Appellant's fourth assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant's conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

- *ke^Bz^lPsaf^ppellatP^r1_tcedttte. _

SEAN C. GALLAGHER, PRESIDING JUDGE

KATHLEEN ANN KEOUGI-I, J., andEILEEN A. GALLAGHER, J., CONCUR