Agee v. Russell - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as Agee v. Russell, 92 Ohio St.3d 540, 2001-Ohio-1279]

AGEE, APPELLANT, v. RUSSELL, WARDEN, APPELLEE.
[Cite as Agee v. Russell (2001), 92 Ohio St.3d 540.]
Juvenile court -- Transfer of case for criminal prosecution -- Claim of
improper bindover -- Habeas corpus sought to compel relator's release
from prison -- Court of appeals' denial of writ affirmed albeit for
different reasons than those expressed by court of appeals -- State v.
Hanning limited to mandatory bindover cases under R.C.
2151.26(B)(4)(b) and does not apply to mandatory bindover cases under
R.C. 2151.26(B)(3).
(No. 00-2211 -- Submitted May 15, 2001 -- Decided August 15, 2001.)
APPEAL from the Court of Appeals for Warren County, No. CA2000-07-062.
__________________

Per Curiam. In late March 1997, appellant, Jacob Agee, then sixteen
years old, obtained a gun. After trying unsuccessfully to sell the gun, Agee got
bullets and test-fired the gun twice.

At approximately 11:30 p.m. on April 2, 1997, Agee and Bryan Singleton,
eighteen years old at the time, were riding in a car driven by a man named Ashley.
They stopped and picked up a friend of theirs, Bradley Fannin, who was walking
along a road in Miami Township, Montgomery County, Ohio. After Fannin
entered the vehicle, Agee showed him the gun, which was loaded. Agee told
Fannin that in the three days since he had gotten the gun, he had been thinking
about "pulling a 187,"1 i.e., committing a murder.

Agee and Singleton told Fannin that they were going to rob a Sunoco
gasoline station and convenience store. Agee said that he had been watching the
store for months and that he knew that a surveillance camera had not been

SUPREME COURT OF OHIO
installed. Singleton had worked at the store, and he knew where the safe was
located and how it opened.

In the early morning of April 3, Agee and Singleton entered the Sunoco
store and robbed it. During the robbery, a clerk was shot twice in the head and
killed. Agee and Singleton did not wear masks during the robbery. Later that
same morning, Agee told a friend that he and Singleton had stolen between $200
and $300 from the store safe and that Agee had hidden the gun in a bag that he
had placed under some rocks in a creek. Agee stated that he would go back and
get the gun "after things had cooled off." According to Agee, Singleton shot the
clerk, who had previously fired Singleton.

Singleton was subsequently convicted of aggravated murder, aggravated
robbery, aggravated burglary, and having a weapon while under a disability, and
was sentenced to life in prison. See State v. Singleton (Mar. 31, 1999),
Montgomery App. Nos. 17003 and 17004, unreported, 1999 WL 173357. In his
criminal trial, Singleton was viewed as the principal offender, i.e., the actual
killer, in the murder of the Sunoco clerk.

On April 7, 1997, a complaint was filed in the Montgomery County Court
of Common Pleas, Juvenile Division, charging Agee with being a delinquent child
due to the acts committed on April 3. Agee was charged with committing one
count of aggravated murder in violation of R.C. 2903.01(B), one count of
aggravated robbery in violation of R.C. 2911.01(A)(1), and firearm specifications
for both counts. The state filed a motion to transfer the case to the general
division of the common pleas court so that Agee could be tried as an adult. The
state claimed that bindover of Agee was required by R.C. 2151.26(B)(3) and
(B)(4). Agee moved for a hearing under R.C. 2151.26(C) to determine whether
he was amenable to care and rehabilitation through the juvenile system, claiming
that the mandatory bindover provisions were inapplicable.

1.
According to Fannin, 187 is a police code for murder or homicide.
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January Term, 2001

After conducting hearings on the motions, the juvenile court found
probable cause to believe that Agee had committed the offenses alleged in the
complaint and transferred him to the criminal division of the common pleas court
for trial as an adult. The juvenile court determined that the General Assembly had
"passed legislation which makes it mandatory for juveniles who are charged with
a certain category one offense to be transferred upon the Court finding probable
cause to stand trial as an adult. And that is the situation we have * * * ." The
grand jury subsequently returned an indictment charging Agee with aggravated
murder, aggravated robbery, and aggravated burglary, with accompanying firearm
specifications. In May 1998, after Agee had been convicted of murder,
aggravated robbery, aggravated burglary, and the firearm specifications, the
common pleas court sentenced him to an aggregate prison term of twenty-three
years to life.

On appeal, the court of appeals affirmed the convictions and sentence.
State v. Agee (1999), 133 Ohio App.3d 441, 728 N.E.2d 442. In its opinion, the
court of appeals determined that the complicity statute, R.C. 2923.03, applied to
the mandatory bindover criteria of R.C. 2151.26(B)(3) and (4). Id. We denied
Agee's discretionary appeal to this court. State v. Agee (1999), 86 Ohio St.3d
1489, 716 N.E.2d 721. In arguing in support of jurisdiction, Agee specifically
claimed that complicity did not apply to the mandatory bindover provisions of
R.C. 2151.26(B)(3) and (4).

Over eight months following our denial of Agee's discretionary appeal,
we held in State v. Hanning (2000), 89 Ohio St.3d 86, 728 N.E.2d 1059, at
paragraph one of the syllabus, "The mandatory bindover provision of R.C.
2151.26(B)(4)(b) does not apply unless the child, himself or herself, had a firearm
on or about the child's person or under the child's control while committing the
act charged and the child displayed the firearm, brandished the firearm, indicated
possession of the firearm, or used the firearm to facilitate the commission of the
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act charged." We further held at paragraph two of the syllabus, "The complicity
statute, R.C. 2923.03, does not apply to the juvenile bindover criteria set forth in
R.C. 2151.26."

Shortly following our decision in Hanning, Agee filed a petition in the
Court of Appeals for Warren County for a writ of habeas corpus to compel
appellee, his prison warden, to release him from prison. Agee claimed that under
Hanning, his trial court lacked jurisdiction to try, convict, and sentence him
because the juvenile court bindover was invalid. The warden moved for summary
judgment, contending that Hanning did not apply to Agee's case, that bindover
was proper under R.C. 2151.26(B)(3)(a), and that Agee had adequate legal
remedies to raise his claims.

In October 2000, the court of appeals granted the warden's motion and
denied the writ. The court of appeals reasoned that Hanning could not be applied
retroactively to Agee. This cause is now before the court upon Agee's appeal as
of right. The Ohio Public Defender filed an amicus curiae brief on behalf of
Agee.

Agee asserts that the court of appeals erred in denying the writ. We hold
that although the court of appeals may have erred in its rationale, its judgment is
correct and is affirmed.

Agee initially claims that the court of appeals erred in holding that,
pursuant to Teague v. Lane (1989), 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d
334, and Pinch v. Maxwell (1965), 3 Ohio St.2d 212, 32 O.O.2d 504, 210 N.E.2d
883, the court's decision in Hanning cannot be retroactively applied to him. For
the reasons that follow, Agee's claim has merit.

Teague is not applicable here. In Teague, the United States Supreme
Court held, "Unless they fall within an exception to the general rule, new
constitutional rules of criminal procedure will not be applicable to those cases
which have become final before the rules are announced." Teague, 489 U.S. at
4

January Term, 2001
310, 109 S.Ct. at 1075, 103 L.Ed.2d at 356. For purposes of retroactivity
analysis, a case becomes final when a judgment of conviction is entered, the
availability of appeal is exhausted, and the time for a petition for certiorari has
elapsed before the declaration of the new ruling. Id. at 295, 109 S.Ct. at 1067,
103 L.Ed.2d at 346.
Unlike
Teague, this case does not involve the application of a new
constitutional rule of criminal procedure. Instead, it involves our interpretation of
R.C. 2151.26 in Hanning. Teague is inapplicable to cases in which a court
determines the meaning of a statute enacted by the legislature. Bousley v. United
States (1998), 523 U.S. 614, 620, 118 S.Ct. 1604, 1610, 140 L.Ed.2d 828, 838,
holding that Teague does not apply to cases in which the United States Supreme
Court decides the meaning of a criminal statute enacted by Congress.

Pinch is similarly inapposite. In Pinch, we applied factors set forth by the
United States Supreme Court in Linkletter v. Walker (1965), 381 U.S. 618, 85
S.Ct. 1731, 14 L.Ed.2d 601, to deny retrospective operation of a new
constitutional rule to a habeas corpus case. But as noted previously, this case
does not involve a new constitutional rule. And Linkletter was subsequently
overruled. See, e.g., Teague; Griffith v. Kentucky (1987), 479 U.S. 314, 107 S.Ct.
708, 93 L.Ed.2d 649.

In fact, there is no retroactivity issue here because we did not announce a
new rule of law in Hanning. Instead, we merely determined what R.C. 2151.26
has meant since its enactment. Bousley, 523 U.S. at 620, 118 S.Ct. at 1610, 140
L.Ed.2d at 838; Fiore v. White (2001), 531 U.S. 225, 227-229, 121 S.Ct. 712, 714,
148 L.Ed.2d 629, 633 (state supreme court's interpretation of state statute
clarified the meaning of the statute and was thus not new law so that case
presented no issue of retroactivity); cf., also, State v. Webb (1994), 70 Ohio St.3d
325, 331, 638 N.E.2d 1023, 1030, quoting Peerless Elec. Co. v. Bowers (1955),
164 Ohio St. 209, 210, 57 O.O. 411, 411, 129 N.E.2d 467, 468 ("A decision of
5

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this court overruling a former decision `is retrospective in its operation, and the
effect is not that the former [decision] was bad law, but that it never was the law.'
").

Therefore, the court of appeals erred in holding that under Teague and
Pinch, our decision in Hanning could not be applied to Agee's collateral
challenge of his conviction and sentence in habeas corpus. This conclusion is
consistent with our holding that " `[i]n the absence of a specific provision in a
decision declaring its application to be prospective only, * * * the decision shall
be applied retrospectively as well.' " Lakeside Ave. Ltd. Partnership v. Cuyahoga
Cty. Bd. of Revision (1999), 85 Ohio St.3d 125, 127, 707 N.E.2d 472, 475,
quoting State ex rel. Bosch v. Indus. Comm. (1982), 1 Ohio St.3d 94, 98, 1 OBR
130, 133, 438 N.E.2d 415, 418; State v. Bolin (1998), 128 Ohio App.3d 58, 62-63,
713 N.E.2d 1092, 1095. We did not specifically provide in Hanning that its
application would be prospective only, so it may be applied retrospectively.

Nevertheless, we will not reverse a correct judgment merely because a
court of appeals erred in its specified rationale. State ex rel. Gilmore v. Mitchell
(1999), 86 Ohio St.3d 302, 303, 714 N.E.2d 925, 926. Therefore, we must
determine whether denial of the writ was otherwise justified.

"[H]abeas corpus, like other extraordinary writ actions, is not available
where there is an adequate remedy at law." Gaskins v. Shiplevy (1996), 76 Ohio
St.3d 380, 383, 667 N.E.2d 1194, 1197. "In the absence of a patent and
unambiguous lack of jurisdiction, a court having general subject-matter
jurisdiction can determine its own jurisdiction, and a party challenging that
jurisdiction has an adequate remedy at law by appeal." Brooks v. Gaul (2000), 89
Ohio St.3d 202, 203, 729 N.E.2d 752, 753. We have applied this principle in
habeas corpus cases. See Howard v. Catholic Social Serv. of Cuyahoga Cty., Inc.
(1994), 70 Ohio St.3d 141, 145, 637 N.E.2d 890, 894.
6

January Term, 2001

Agee claims that under Hanning, his trial court lacked jurisdiction to try,
convict, and sentence him because of an improper mandatory bindover. Although
a claim of improper bindover alleges a potentially viable habeas corpus claim, it
must be emphasized that this is a limited exception to the general rule that habeas
corpus relief is unavailable when there is an adequate remedy in the ordinary
course of law. State ex rel. Fryerson v. Tate (1999), 84 Ohio St.3d 481, 485, 705
N.E.2d 353, 356. For the reasons that follow, the common pleas court's general
division did not patently and unambiguously lack jurisdiction under Hanning to
try, convict, and sentence Agee, and he thus had an adequate remedy by appeal to
raise his claims.

Agee claims that under Hanning, he is not subject to the mandatory
bindover provisions of R.C. 2151.26(B) based on his complicity in the charged
offenses. R.C. 2151.26 provides for discretionary and mandatory bindover of
certain delinquent juveniles for trial of criminal charges as an adult. Whereas
discretionary transfer under R.C. 2151.26(C) "allows judges the discretion to
transfer or bind over to adult court certain juveniles who do not appear to be
amenable to care or rehabilitation within the juvenile system or appear to be a
threat to public safety[,] * * * [m]andatory transfer [under R.C. 2151.26(B)]
removes discretion from judges in the transfer decision in certain situations."
Hanning, 89 Ohio St.3d at 90, 728 N.E.2d at 1062.

The juvenile court transferred Agee to the general division of the common
pleas court for trial as an adult in response to the state's motion requesting
mandatory bindover pursuant to R.C. 2151.26(B)(3)(a) and (4)(b), which provide:

"(B) After a complaint has been filed alleging that a child is a delinquent
child for committing an act that would be an offense if committed by an adult, the
court at a hearing shall transfer the case for criminal prosecution to the
appropriate court having jurisdiction of the offense if the child was fourteen years
of age or older at the time of the act charged, if there is probable cause to believe
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that the child committed the act charged, and if one or more of the following
applies to the child or the act charged:

" * * *

"(3) The act charged is a category one offense, and either or both of the
following apply to the child:

"(a) The child was sixteen years of age or older at the time of the act
charged.

" * * *

"(4) The act charged is a category two offense, other than a violation of
section 2905.01 of the Revised Code, the child was sixteen years of age or older
at the time of the commission of the act charged, and either or both of the
following apply to the child:

" * * *

"(b) The child is alleged to have had a firearm on or about the child's
person or under the child's control while committing the act charged and to have
displayed the firearm, brandished the firearm, indicated possession of the firearm,
or used the firearm to facilitate the commission of the act charged."
In
Hanning, Derrick Hanning, a juvenile charged with a delinquency count
alleging that he had committed aggravated robbery, was bound over by a juvenile
court under R.C. 2151.26(B)(4)(b) even though during the robbery he possessed
only a plastic BB gun, which the parties agreed did not constitute a firearm as
defined by R.C. 2923.11(B). In its bindover decision, the juvenile court expressly
applied the complicity statute, R.C. 2923.03, to find that Hanning had a firearm
during the robbery. (See State v. Hanning [Feb. 9, 1999], Franklin App. No.
98AP-380, unreported, 1999 WL 64221.) After the common pleas court
convicted Hanning of robbery and sentenced him to a seven-year prison term, the
court of appeals reversed the conviction and sentence on appeal. State v. Hanning
(Feb. 9, 1999), Franklin App. No. 98AP-380, unreported, 1999 WL 64221.
8

January Term, 2001

The court of appeals determined that the juvenile court erred in binding
Hanning over for adult criminal prosecution upon a finding that Hanning's actions
in aiding and abetting a codefendant who actually possessed a firearm during the
commission of an aggravated robbery were sufficient to invoke the mandatory
bindover provision of R.C. 2151.26(B)(4)(b). On further appeal to this court, the
state claimed that a juvenile who aids and abets another is subject to the
mandatory transfer provision of R.C. 2151.26(B)(4)(b) as long as the other person
has a firearm on or about his person or under his control and displays, brandishes,
indicates possession of, or uses the firearm to facilitate commission of the offense.
We rejected the state's claim and affirmed the judgment of the court of appeals.
Hanning, 89 Ohio St.3d 86, 728 N.E.2d 1059.

Despite Agee's attempts to portray Hanning as controlling in this case,
Hanning differs in several significant respects.
First,
Hanning did not involve a mandatory bindover under R.C.
2151.26(B)(3). Instead, we emphasized in Hanning that the plain language of
R.C. 2151.26(B)(4)(b) requires bindover of a child alleged to have personally had
a firearm on or about his person or under his or her control while committing the
act charged and to have displayed, brandished, indicated possession of, or used
the firearm to facilitate the commission of the act charged. 89 Ohio St.3d at 91-
92, 728 N.E.2d at 1063-1064. Although the second paragraph of the Hanning
syllabus broadly states that "[t]he complicity statute, R.C. 2923.03, does not apply
to the juvenile bindover criteria set forth in R.C. 2151.26," we have recognized
that " `[t]he syllabus of a Supreme Court opinion states the controlling point or
points of law decided in and necessarily arising from the facts of the specific case
before the Court for adjudication.' (Emphasis added.)" State ex rel. Leonard v.
White (1996), 75 Ohio St.3d 516, 518, 664 N.E.2d 527, 529, quoting
S.Ct.R.Rep.Op. 1(B). The juvenile offender in Hanning was, unlike Agee, not
subject to a mandatory bindover under R.C. 2151.26(B)(3).
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SUPREME COURT OF OHIO

Second, despite the breadth of the second paragraph of the Hanning
syllabus, which would include discretionary as well as mandatory bindovers, we
expressed in our opinion that the syllabus was more limited by specifying that
"[j]uveniles in Hanning's situation are still subject to transfer to adult court under
R.C. 2151.26(C)," i.e., discretionary transfer. Hanning, 89 Ohio St.3d at 93, 728
N.E.2d at 1065.

Third, if we were to determine that Hanning applies to all mandatory
bindovers, including those under R.C. 2151.26(B)(3), part of the rationale to
support the inapplicability of Hanning to discretionary bindovers would be
rendered inapplicable. In Hanning, 89 Ohio St.3d at 93, 728 N.E.2d at 1065, we
emphasized:

"Our holding does not allow Hanning or other juveniles to escape
responsibility for their own actions. We merely find that the legislature did not
intend to automatically attribute responsibility to the juvenile for the actions of his
or her accomplice. Contrary to the judge's remarks at the probable cause hearing,
and contrary to the state's argument, Hanning and other youths who find
themselves in the same situation are not `saved' by the fact that someone other
than themselves personally possessed the firearm. Juveniles in Hanning's
situation are still subject to transfer to adult court under R.C. 2151.26(C), which
provides that a child who commits a felony can be bound over if he is fourteen
years of age or older and the results of an investigation and hearing indicate
reasonable grounds to believe that the child is not amenable to care or
rehabilitation in the juvenile system and the safety of the community requires that
the child be placed under legal restraint, including, if necessary, for a period
extending beyond the child's majority." (Emphasis added.)

But like the mandatory bindover requirement at issue here--the R.C.
2151.26(B) mandatory bindover requirement that there be "probable cause to
believe that the child committed the act charged"--R.C. 2151.26(C)(1)(b)
10

January Term, 2001
similarly requires "probable cause to believe that the child committed the act
charged" before a discretionary transfer can occur. Therefore, if complicity is
inapplicable to all mandatory bindovers so that it cannot be used to support a
probable cause finding to believe that the child committed the act charged, it
could also not be used to support the identically worded probable cause
requirement for discretionary transfers, and juveniles like Agee would not be
subject to any bindover, i.e., they would be saved from the possibility of
prosecution as an adult under either mandatory or discretionary bindover.

Fourth, unlike the juvenile court's bindover decision in Hanning, the
underlying bindover entry as well as the comments by the juvenile court judge in
Agee's case do not establish that the judge relied on the complicity statute to
transfer Agee to be tried as an adult. In fact, although the court of appeals did not
reach this issue in denying the writ, it expressly observed that "[t]he record
submitted to this court does not reflect that the juvenile court found petitioner to
be an accomplice to the acts committed."

Fifth, R.C. 2151.26(B)(3)(a) requires the following for a mandatory
bindover: (1) the act charged is a category one offense; (2) the child was sixteen
years of age or older at the time of the act charged; and (3) there is probable cause
to believe that the child committed the act charged. Here, one of the acts charged
was a category one offense, i.e., aggravated murder. R.C. 2151.26(A)(1)(a). In
addition, Agee was sixteen years old at the time of the aggravated murder. R.C.
2151.26(B)(3)(a). Finally, there was evidence that Agee obtained a gun, loaded
and test-fired it, talked prior to April 3, 1997, about wanting to commit a murder
and a robbery, participated in the robbery of the Sunoco store, during which a
clerk was shot and killed with the gun, and hid the gun after the murder.

Therefore, our holding in Hanning does not warrant a finding that the
juvenile court lacked jurisdiction, much less that it patently and unambiguously
lacked jurisdiction to transfer Agee under R.C. 2151.26(B)(3)(a) for prosecution
11

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as an adult. We hold that Hanning is limited to mandatory bindover cases under
R.C. 2151.26(B)(4)(b) and does not apply to mandatory bindover cases under
R.C. 2151.26(B)(3).

In the absence of a patent and unambiguous lack of jurisdiction, Agee had
an adequate remedy at law by appeal to raise his claim concerning the allegedly
improper bindover. "Where a plain and adequate remedy at law has been
unsuccessfully invoked, extraordinary relief is not available to relitigate the same
issue." Childers v. Wingard (1998), 83 Ohio St.3d 427, 428, 700 N.E.2d 588,
589. In other words, Agee may not use his extraordinary writ in order to gain
successive appellate reviews of the same issue. See State ex rel. LTV Steel Co. v.
Gwin (1992), 64 Ohio St.3d 245, 249, 594 N.E.2d 616, 620.

Based on the foregoing, we affirm the judgment denying the writ, albeit
for different reasons than those expressed by the court of appeals.
Judgment affirmed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and
LUNDBERG STRATTON, JJ., concur.
__________________

Anthony R. Cicero and Carl G. Goraleski, Montgomery County Assistant
Public Defenders, for appellant.

Betty D. Montgomery, Attorney General, David M. Gormley, State
Solicitor, and Stephanie L. Watson, Assistant Attorney General, for appellee.
__________________
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