COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78361 STATE OF OHIO : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : RAHIM STUBBLEFIELD : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: MAY 31, 2001 CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common Pleas Case No. CR-375516 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: WILLIAM D. MASON, ESQ. CUYAHOGA COUNTY PROSECUTOR BY: THERESE TIBURZIO, ESQ. and JOHN CLOUGH, ESQ. ASSISTANT COUNTY PROSECUTOR 1200 Ontario Street Cleveland, Ohio 44113 (continued) (continued) For Defendant-Appellant: GREGORY SCOTT ROBEY, ESQ. ROBEY & ROBEY 14402 Granger Road Maple Heights, Ohio 44137 -2- MARGARET E. AMER, ESQ. 29550 Pike Drive Chagrin Falls, Ohio 44022 -3- ANN DYKE, J.: Rahim Stubblefield appeals from his conviction for felonious assault. For the reasons set forth below, we affirm. On March 5, 1998, Thomas Luvinson of the Cleveland Board of Education filed a complaint in the juvenile court alleging that Stubblefield was a delinquent child. Luvinson averred that on February 6, 1997, Stubblefield, a student at East Technical High School, knowingly caused serious physical harm to Christopher Walker, another East Technical High student. On January 22, 1999, the state filed a motion for the juvenile court to relinquish jurisdiction over the matter pursuant to R.C. 2151.26 and Juv.R. 30. The record further reveals that Stubblefield was bound over in connection with an unrelated matter on March 23, 1999 (juvenile case no. 9900657 and common pleas case no. 375517), which was treated as a mandatory bindover. On March 23, 1999, Stubblefield appeared with counsel on the instant matter and waived the probable cause hearing. Thereafter, the juvenile court transferred this case to the general division and on April 30, 1999, Stubblefield was indicted for one count of felonious assault. The matter proceeded to trial on May 10, 2000. The state's evidence demonstrated that on February 6, 1997, Christopher Walker was at his locker between classes and was talking to Preston Pennyman and Porsche Stewart. Stubblefield approached Walker and unprovokedly punched him in the mouth. Walker ran to the office of the assistant principal then went to St. Alexis Hospital. He was -4- subsequently treated by an oral surgeon who repositioned two of his teeth and stabilized them with a metal bar. In addition, Walker received approximately eleven sutures for lacerations to his mouth. Former East Technical principal Terry Butler testified that Stubblefield left the building following the incident but later told Butler that Walker had been bothering his younger brother who attended Central Middle School. According to Stubblefield's written statement, Stubblefield admitted that he swung first and hit [Walker]. Stubblefield testified in his own behalf and stated that as he approached Walker in the hall, he heard Walker tell his friends that he was going to hit Stubblefield. Defendant stated that Walker swung first and he blocked the attack, then hit Walker and left because he thought Walker's friends were going to jump him. With regard to the fact that his testimony conflicted with his written statement, Stubblefield testified that he initially wrote an account which was in accord with his trial testimony but one of the assistant principals rejected this statement, insisting that it was untrue, and Stubblefield prepared a second, inculpatory statement only to appease this assistant principal. Stubblefield was subsequently convicted of felonious assault and was sentenced to two years incarceration.1 Stubblefield now appeals and assigns three errors for our review. 1He was sentenced to one year incarceration, concurrent with the instant term, in case no. 375517. -5- Defendant's first assignment of error states: THE JUVENILE COURT ERRED BY IMPROPERLY TREATING THE ROBBERY CASE AS A MANDATORY BINDOVER, AND THEREFORE FAILING TO HOLD AN AMENABILITY HEARING ON THE ASSAULT CASE. Within this assignment of error, defendant asserts that the juvenile court erred in determining that mandatory bindovers were required in connection with the robbery charges (juvenile case no. 9900657 and common pleas case no. 375517), and in failing to hold an amenability hearing in connection with the felonious assault charge at issue herein (juvenile case no. 98002972 and common pleas case no. 375516). This claim is without merit. As to defendant's claims regarding the mandatory bindover conducted in case no. 375517, we note that in Gaskins v. Shiplevy (1995), 74 Ohio St.3d 149, a claim of error in a bindover proceeding was held to survive a guilty plea in adult court. However, no appeal has been taken from case no. 375517; the appeal filed herein was taken only in connection with the felonious assault case, case no. 375516. We are therefore without jurisdiction to evaluate of the merits of the proceedings of common pleas case no. 375517. With regard to the bindover of this matter, we note that R.C. 2151.26(C) provides in relevant part as follows: (4) If one or more complaints are filed alleging that a child is a delinquent child for committing two or more acts that would be offenses if committed by an adult, if a motion is filed or made alleging that division (B)(2), (3), or (4) of this section applies and requires that the case or cases involving one or more of the acts charged be transferred for criminal prosecution to the appropriate court having jurisdiction over the offense, and if a motion also is filed or made requesting that the -6- case or cases involving one or more of the acts charged be transferred for criminal prosecution to the appropriate court having jurisdiction of the offense pursuant to division (C)(1) of this section, the court, in deciding the motions, shall proceed in the following manner: (a) Initially, the court shall decide the motion alleging that division (B)(2), (3), or (4) of this section applies and requires that the case or cases involving one or more of the acts charged be transferred for criminal prosecution to the appropriate court having jurisdiction over the offense. (b) If, pursuant to division (C)(4)(a) of this section, the court determines that division (B)(2), (3), or (4) of this section applies and requires that the case or cases involving one or more of the acts charged be transferred for criminal prosecution to the appropriate court having jurisdiction over the offense, the court shall transfer the case or cases in accordance with the applicable division. After the transfer pursuant to division (B)(2), (3), or (4) of this section, the court shall decide, in accordance with division (C)(4)(b) of this section, whether to grant the motion requesting that the case or cases involving one or more of the acts charged be transferred for criminal prosecution to the appropriate court having jurisdiction of the offense pursuant to division (C)(1) of this section. In making its decision regarding the motion requesting a transfer pursuant to division (C)(1) of this section, the court at a hearing may transfer the subject case to the appropriate court having jurisdiction of the offense if the act charged in the case would be a felony if committed by an adult, if the child was fourteen years of age or older at the time of the act charged, and if there is probable cause to believe that the child committed the act charged. Notwithstanding divisions (C)(1) to (3) of this section, prior to transferring a case pursuant to division (C)(4)(b) of this section, the court is not required to consider any factor specified in division (C)(2) of this section or to conduct an investigation or make a determination of the type described in division (C)(1)(c) of this section. Thus, pursuant to this statute, following the mandatory bindover in case no. 375517, the juvenile court was not required to undertake all of the statutory procedures before transferring the jurisdiction of this matter to the general division. -7- Further, in State v. Soke (July 15, 1993), Cuyahoga App. No. 62908, unreported, this court stated: Defendant also maintains that there is no authority contained within R.C. Chapter 2151, or Juv. R. 30 which permits a defendant to waive bindover proceedings. We agree that there is no specific authority for waiver of a bindover hearing, but we note that there is likewise no prohibition for waiver of the hearing. It is also clear that a minor may waive the mental and physical examination which is part of the proceedings where the offense would constitute a felony other than murder or aggravated murder if committed by an adult. R.C. 2151.26(C); State, ex rel. Doe v. Tracy (1988), 51 Ohio App.3d 198, 555 N.E.2d 674. Defendant also maintains that pursuant to the pronouncements of the United States Supreme Court in Kent v. United States (1966), 383 U.S. 541, a hearing on the issue of the bindover is a critical phase and is mandatory. Critical phases, however, may be knowingly, competently and intelligently waived. See, e.g., Crim. R. 11. Finally, in State v. Adams (1969), 69 Ohio St.2d 120, 127 the Ohio Supreme Court relied upon, inter alia, res judicata in determining that once a juvenile is bound over in any county, he is bound over for felonies committed in other counties as well as for future felonies. In accordance with the foregoing, we note that nothing in the record indicates that defendant did not knowingly, competently and intelligently waive the hearing in the instant matter. Further, because defendant had already been bound over in connection with the robbery charges, we are unable to conclude that the trial court erred in failing to hold an amenability hearing herein. This assignment of error is without merit. Defendant's second assignment of error states: -8- THE DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN THE JUVENILE COURT DEFENSE ATTORNEY RECOMMENDED A WAIVER OF THE PRELIMINARY HEARING AND FAILED TO OBJECT TO THE IMPROPER MANDATORY BINDOVER OF THE ROBBERY CASE AND THE COURT'S FAILURE TO HOLD AN AMENABILITY HEARING ON THE ASSAULT CASE. Within this assignment of error, defendant asserts that the attorney who represented him in connection with the felonious assault charge before the juvenile court was ineffective because he waived the bindover proceedings and requested that the matter be tried in common pleas court. In establishing a claim of ineffective assistance of trial counsel, it is clear that a defendant must make a two-part showing: First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amend- ment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction *** resulted from a breakdown in the adversary process that renders the result unreliable. Strickland v. Washington (1986), 466 U.S. 668, 687. Accord State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the sylla- bus. Because we have rejected the underlying claim of error, we must likewise reject the assertion of ineffective assistance of counsel which is premised upon that error. State v. Henderson (1988), 39 Ohio St.3d 24, 33. Defendant's third assignment of error states: -9- THE DEFENDANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS CRIMINAL TRIAL ATTORNEY FAILED TO REQUEST A JURY CHARGE ON EITHER SELF-DEFENSE OR PROVOCATION. Within this assignment of error, Stubblefield asserts that his trial attorney committed a prejudicial error in failing to request an instruction on self-defense and in failing to request an instruction on aggravated assault, in light of defendant's testimony regarding provocation. As to whether defendant's trial counsel erred in failing to request an instruction on self-defense, we note that the elements of self-defense are: 1. the accused was not at fault in starting the affray; 2. that he had a bona fide belief that she faced imminent danger of death or great bodily harm; 3. that his only means of escape was the use of such force; and 4. that he violated no duty to retreat or avoid the danger. State v. Williford (1990), 49 Ohio St. 3d 247, 249. In this instance, Stubblefield testified that he blocked Walker's punch then hit Walker and left because he thought that Walker's friends were going to jump him. From this testimony, Stubblefield violated his duty to retreat, thereby negating the claim of self-defense and his trial attorney did not err in failing to request this instruction. With regard to defendant's claim that his trial attorney erred in failing to request an instruction on aggravated assault, we note that State v. Mack (1998), 82 Ohio St.3d 198, 201, the Supreme -10- Court stated as follows: In State v. Deem (1988), 40 Ohio St.3d 205, 533 N.E.2d 294, we held that "aggravated assault" was an offense of an inferior degree of felonious assault because its elements were identical to felonious assault except for the additional mitigating element of provocation. Thus, we stated, "in a trial for felonious assault, where the defendant presents sufficient evidence of serious provocation, an instruction on aggravated assault must be given to the jury." Id.,paragraph four of the syllabus. Furthermore, "provocation, to be serious, must be reason- ably sufficient to bring on extreme stress and the provocation must be reasonably sufficient to incite or to arouse the defendant into using deadly force. In determining whether the provocation was reasonably sufficient to incite the defendant into using deadly force, the court must consider the emotional and mental state of the defendant and the conditions and cir- cumstances that surrounded him at the time." Deem, at paragraph five of the syllabus. In that case, we found that a historically stormy relationship and the bumping of the offender's car by the victim's car were insuffi- cient, as a matter of law, to incite the offender into using deadly force. Deem, 40 Ohio St.3d at 211, 533 N.E.2d at 300. Since there was insufficient evidence of provocation, we held that "even though aggravated assault is an offense of an inferior degree to the indicted crime [of felonious assault], an instruction thereon was not supported by the evidence presented in this case, and was properly refused." Id. As to what constitutes "reasonably sufficient" provocation in the context of voluntary manslaughter, an objective standard must be applied to determine whether the alleged provocation is reasonably sufficient to bring on a sudden passion or fit of rage. State v. Shane (1992), 63 Ohio St.3d 630. The provocation must be "sufficient to arouse the passions of an ordinary person beyond the power of his or her control." Id. If this objective standard is met, the inquiry shifts to a subjective standard, to determine whether the defendant in the particular case "actually was under the influence of sudden passion or in a sudden fit of rage." Id. -11- In this instance, the record contains no evidence that Stubblefield's actions were influenced by a sudden passion or fit of rage at the time of the incident. He testified that he blocked Walker's punch, then struck Walker and ran because he thought that Walker's friends were going to jump him. The evidence was therefore insufficient, as a matter of law, to establish provocation and an instruction on the offense of aggravated assault as an inferior degree of the offense of felonious assault was not warranted. Defendant's trial counsel did not err in failing to request this instruction. The third assignment of error is without merit. -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. JAMES D. SWEENEY, P.J. AND MICHAEL J. CORRIGAN, J., CONCUR. ANN DYKE JUDGE N.B. This entry is an announcement of the court's decision. See App.R.22(B), 22(D) and 26(A); Loc.App.R.22. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). .