COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59218 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION CLARENCE MALONE, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 24, 1991 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-232,497 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: John F. Corrigan Assistant County Prosecutor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Jonathan N. Garver 1404 East Ninth Street Suite 300 Cleveland, Ohio 44113 -2- NAHRA, P.J.: On July 17, 1988, Daniel Robert Gilmore and his two friends, Derek Walker and Marshall Finch, drove from their hometown of Warren, Ohio to Cleveland. They attended the national rib burn- off and later went to the Flats area and left about 10:00 p.m. to drive back to Warren. Thinking that they would reach Interstate 422, Gilmore drove his pickup truck eastbound on Superior Avenue. Between East 68th Street and Russell Road, Gilmore's pickup truck was involved in an accident with a motor scooter operated by Arthur Cook. An argument unfolded between Cook and Gilmore. Other people collected and began pouring beer on the truck. Gilmore was struck over the head by a 40 ounce beer bottle. Gilmore was struck on the head again by the fists of several people. Gilmore laid on his face while a variety of other people stomped and kicked him repeatedly. Gilmore's truck keys were taken and Clarence Malone, defendant-appellant, as well as Anthony Hill jumped in the truck. Thereafter, Malone got behind the steering wheel and drove the truck over Gilmore's body. On July 18, 1988, Dr. Robert Challener, the Deputy Coroner of Cuyahoga County, performed an autopsy of Gilmore. External injuries to the head, trunk, and extremities were found. The decedent's left forehead displayed a large area of bruising and lacerations. While decedent's brain was bruised, his skull was not fractured. Internally both of decedent's lungs were scraped and bruised; the diaphragm was bloodied and bruised; ribs were -3- fractured and a kidney was stripped of its capsule; in addition, Gilmore's heart was torn and bruised. The cause of death was determined to be a crushing impact to the trunk with multiple fractures and visceral injuries. Such findings were interpreted to be consistent with decedent's trunk having been run over by the wheels of a truck. On July 22, 1988, three complaints were filed in Juvenile Court of Cuyahoga County alleging Malone to be a delinquent child insofar as he had committed the offenses of aggravated murder pursuant to R.C. 2903.01(A), aggravated riot pursuant to R.C. 2917.02, and grand theft pursuant to R.C. 2913.02. On August 22, 1988, the juvenile court held a hearing, pursuant to Juv. R. 30(A), and found that Malone was sixteen years of age at the time of the conduct charged and that there was probable cause to believe that Malone had committed the acts alleged in the complaints. Pursuant to Juv. R. 30(B), the juvenile court ordered a full investigation, including mental and physical examinations, to determine whether there were reasonable grounds to believe Malone was not amenable to care or rehabilitation in any facility designed for the care, supervision, and rehabilitation of delinquent children. On October 3, 1988, the juvenile court conducted a "bindover hearing" to determine if it should relinquish jurisdiction and allow Malone to be tried as an adult. At the hearing, Kim Donaldson, a juvenile court probation officer, testified that Malone had no prior juvenile record and that her -4- investigation did not disclose any evidence of substance or alcohol abuse. William Schweller, Malone's ninth grade social studies teacher at East High, testified that Malone failed his second semester and received the lowest mark possible for attitude. Schweller testified that Malone was truant during the second semester for a substantial amount of time. He also stated that Malone was not a discipline problem. Dr. Kathleen Quinn, a psychiatrist on the staff of the juvenile court, testified that she performed a clinical evaluation of Malone and found him to be of borderline intelligence and to be quite immature. She testified that Malone possessed reading skills below the third grade level. Leonard Jenkins, the supervisor of recreational activity at the Juvenile Court Detention Center, testified that Malone was cooperative and had complied with all of the rules of the department for which Malone was awarded a certificate of good behavior. Malone's mother and grandmother also testified to his good character. At the close of the bindover hearing, the juvenile judge found that Malone was not amenable to care and rehabilitation at any facility designed for the care, supervision, and rehabilitation of delinquent children and that the safety of the community may require that he be placed under legal restraint for a period beyond the age of majority. After the hearing, the juvenile court relinquished jurisdiction. On November 23, 1988, Malone was indicted for one count of murder pursuant to R.C. 2903.03, two counts of felonious assault -5- pursuant to R.C 2903.11, one count of aggravated riot pursuant to R.C. 2917.02, and one count of inciting to violence under R.C. 2917.01. On July 12, 1989, Malone appeared in the General Division of the Court of Common Pleas with counsel for the purpose of changing his not guilty plea to a plea of guilty to the charge of murder with the other charges being dropped. The record indicates that Malone's counsel recommended that Malone reject the proposed plea and proceed to trial. After discussing the matter with the trial court, Malone changed his mind and told the trial court that he did not want to enter the guilty plea. The case then proceeded to trial. After two days of trial, on July 14, 1989, defense counsel informed the trial court that his client wanted to enter a plea. The trial court conducted a dialogue with Malone pursuant to Crim. R. 11(C). At the conclusion of the dialogue, Malone entered a plea of guilty to one count of murder. The trial court accepted Malone's plea and the other counts of the indictment were nolle prossed. On August 28, 1989, Malone was sentenced to an indefinite term of imprisonment of a minimum fifteen years to life. This appeal follows. I. Appellant's first and second assignments of error are interrelated and shall be examined together. They state: -6- I. THE JUVENILE COURT ABUSED ITS DISCRETION AND DENIED APPELLANT DUE PROCESS OF LAW BY RELINQUISHING JURISDICTION FOR PURPOSES OF CRIMINAL PROSECUTION IN THE ABSENCE OF SUFFICIENT PROOF THAT APPELLANT WAS NOT AMENABLE TO CARE OR REHABILITATION IN ANY FACILITY DESIGNED FOR THE CARE, SUPERVISION, AND REHABILITATION OF DELINQUENT CHILDREN. JUR. R. 30; ORC 2151.26(A)(1). FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES. II. THE JUVENILE COURT COMMITTED PREJUDICIAL ERROR BY FAILING TO PROVIDE A MEANINGFUL STATEMENT OF REASONS FOR THE TRANSFER OF JURISDICTION AS REQUIRED BY ORC 2151.21(F). Malone argues initially that the juvenile court abused its discretion in finding him not amenable to treatment within the juvenile system. R.C. 2151.26, which concerns the relinquishment of jurisdiction for the purpose of criminal prosecution, provides in pertinent part: (A)(1) Except as provided in division (A)(2) of this section, after a complaint has been filed alleging that a child is delinquent by reason of having committed an act that would constitute a felony if committed by an adult, the court at a hearing may transfer the case for criminal prosecution to the appropriate court having jurisdiction of the offense, after making the following determinations: (a) The child was fifteen or more years of age at the time of the conduct charged; (b) There is probable cause to believe that the child committed the act alleged; (c) After an investigation, including a mental and physical examination of the child made by a public or private agency, or a person qualified to make the examination, that there are reasonable grounds to believe that: -7- (i) He is not amenable to care or rehabilitation or further care or rehabilitation in any facility designed for the care, supervision, and rehabilitation of delinquent children; (ii) The safety of the community may require that he be placed under legal restraint, including, if necessary, for the period extending beyond his majority. (Emphasis added.) In determining amenability to treatment or rehabilitation processes, the juvenile court must consider the five factors enumerated in Juv. R. 30(E), which states: (1) The child's age and his mental and physical health; (2) The child's prior juvenile record; (3) Efforts previously made to treat or rehabilitate the child; (4) The child's family environment; and (5) School record. The juvenile court is given considerable latitude within which to determine whether to retain jurisdiction. State v. Carmichael (1973), 35 Ohio St. 2d 1, 298 N.E.2d 568, cert. denied (1974), 414 U.S. 1161. Where there is sufficient credible evidence to support the juvenile court's order to relinquish jurisdiction, such decision shall not be reversed in the absence of an abuse of discretion. State v. Watson (1989), 47 Ohio St. 3d 93, 547 N.E.2d 1181; State v. Douglas (1985), 20 Ohio St. 3d 34, 485 N.E.2d 711. Our review of the record indicates that there was credible evidence supporting the juvenile court's finding that Malone was -8- not amenable to rehabilitation. William Schweller, Malone's social studies teacher, testified regarding Malone's poor academic record. During his most recent school semester, Malone failed all of his classes and received the lowest mark for attitude in Mr. Schweller's class. Malone was absent from class a significant portion of the semester. Further, in addition to reviewing the lengthy reports of Malone's physical and mental capabilities, the juvenile court heard testimony regarding Malone's family environment. We believe that there were reasonable grounds for the trial court to relinquish jurisdiction and nothing to indicate that it abused its discretion. Malone also contends that the juvenile court erred by failing to state the reasons for the transfer pursuant to R.C. 2151.21(F). Such statute states in pertinent part: Upon such transfer, the juvenile court shall state the reasons for the transfer... While a juvenile court is required to consider the five factors listed in Juv. R. 30(E), it is not required to make written findings as to the factors under R.C. 2151.26 or Juv. R. 30. State v. Douglas (1985), 20 Ohio St. 3d 34, 485 N.E.2d 711. Our review of the record indicates that the juvenile court considered the relevant statutory criteria before it relinquished jurisdiction. The juvenile court also stated that it considered all of the evidence carefully before it determined that Malone was not amenable for rehabilitation. Therefore, Malone's -9- assertion that the juvenile court did not make a meaningful statement of the reasons for the transfer lacks merit. II. Appellant's third and fourth assignments of error shall be examined together. They state: III. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR AND DENIED APPELLANT DUE PROCESS OF LAW BY ACCEPTING APPELLANT'S GUILTY PLEA WHEN HIS PLEA WAS NOT MADE VOLUNTARILY OR INTELLIGENTLY. CRIM. R. 11(C)(2); FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES. IV. THE TRIAL COURT VIOLATED APPELLANT'S PRIVILEGE AGAINST SELF-INCRIMINATION BY TELLING APPELLANT THAT IF HE WANTED TO BE FOUND GUILTY OF INVOLUNTARY MANSLAUGHTER INSTEAD OF MURDER, HE WOULD HAVE TO TAKE THE WITNESS STAND AND TELL HIS SIDE OF THE STORY TO THE JURY. ARTICLE I SECTION 10 OF THE CONSTITUTION OF THE STATE OF OHIO AND THE FIFTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES. Malone contends that his guilty plea was not entered into voluntarily and intelligently, and that the trial court erred by accepting such plea. Malone asserts that he lacked full understanding of the charges against him. He also alleges that his free will was overcome as a result of pressure from his mother and the trial court. Crim. R. 11(C) prescribes the requisite inquiry which must be made by a trial court prior to accepting a guilty plea to a felony charge. Crim. R. 11(C)(2) provides: In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept -10- such plea without addressing the defendant personally and: (a) Determining that he is making the plea voluntarily, with understanding the nature of the charge and the maximum penalty involved, and, if applicable, that he is not eligible for probation. (b) Informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed with judgment and sentence. (c) Informing him and determining that he is waiving his rights to jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself. See State v. Stone (1975), 43 Ohio St. 2d 163, 331 N.E.2d 411; see also State v. Younger (1975), 46 Ohio App. 2d 269, 349 N.E.2d 322. Substantial compliance with Crim. R. 11(C) is required when accepting a guilty plea. State v. Stewart (1979), 51 Ohio St. 2d 86, 364 N.E.2d 1163, syllabus; see State v. Flint (1986), 36 Ohio App. 3d 4, 520 N.E.2d 580, paragraph two of the syllabus. An examination of the record fails to support Malone's claim that his plea of guilty was not voluntarily and intelligently entered. The record indicates that the trial court complied with Crim. R. 11(C). The trial court informed Malone of his following rights: The right to a jury trial, to confront witnesses, to have the state prove its case against him beyond a reasonable doubt, to have compulsory process, the right not to testify against himself, and that he would be waiving such rights by entering his guilty plea. Our review of the record -11- indicates that Malone understood the nature of the charges against him. There is nothing to indicate that he was coerced or that his free will was overcome before entering the guilty plea. Malone further argues that the trial court violated his right against self-incrimination by telling him that he would have to testify in order to be found guilty of involuntary manslaughter instead of murder. However, a review of the record indicates that the trial court was merely explaining to Malone the nature of the charge, the practical realities involved in getting a manslaughter verdict rather than a murder verdict, and spelling out the severity of sentences involved. Crim. R. 11(C)(2)(a). Moreover, before taking the plea, the court specifically pointed out that he could testify if he wanted to "... or decline to testify and no one could hold it against you in this trial...". Accordingly, the judgment of the trial court is affirmed. -12- It is ordered that appellee recover of appellant its 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 the Rules of Appellate Procedure. ANN McMANAMON, J., and BLACKMON, J., CONCUR. JOSEPH J. NAHRA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .