[Cite as State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544.]

T HE S TATE OF O HIO , A PPELLEE , v. D.W., A PPELLANT . [Cite as State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544.] Juvenile law—R.C. 2152.12(B)(3) amenability hearing can be waived under proper procedures

— Judgment reversed, and cause remanded

. (No. 2011-1677—Submitted June 5, 2012—Decided October 4, 2012.)
A PPEAL from the Court of Appeals for Cuyahoga County, No. 95750, 2011-Ohio-4096.

__________________ S YLLABUS OF THE C OURT An amenability hearing under R.C. 2152.12(B)(3) may be waived provided (1) the juvenile, through counsel, expressly states on the record a waiver of the amenability hearing and (2) the juvenile court engages in a colloquy on the record with the juvenile to determine that the waiver was made knowingly, voluntarily, and intelligently.

__________________ O’C ONNOR , C.J. {¶ 1} In this appeal, we decide whether a hearing to determine a juvenile’s amenability to care or rehabilitation in the juvenile system may be waived, and we set forth the standard for valid waiver. For the reasons that follow, we hold that the record does not support a finding that D.W. waived his right to an amenability hearing. Accordingly, we reverse the judgment of the court of appeals and remand this case to the juvenile court for an amenability hearing or proper waiver of it. Background {¶ 2} Appellant, D.W., was charged with burglary, a felony, and other crimes in the Cuyahoga County Court of Common Pleas, Juvenile Division, case No. DL 09-121602. At the time of the offenses, D.W. was 17 years old.S UPREME C OURT OF O HIO

2 {¶ 3} The juvenile court c onducted a probable-cause hearing. After stipulating to D.W.’s birth date, the juvenile court heard testimony from Shanay Ball, a victim of the crimes. The juvenile court stated, “Based on the testimony, the Court finds that there is probable cause here.” The juvenile court then noted that transfer of jurisdiction to adult court was discretionary and that D.W. had been bound over in a prior case. The following exchange occurred:

[DEFENSE COUNSEL]: So the Court’s aware he has been bound. He does have a prior bindover that the Court has just to
refresh the Court’s recollection. THE COURT: Yes. He has a bindover pending, right? [DEFENSE COUNSEL]: He actually was bound over. [ASSISTANT PROSECUTOR]: And been indicted in adult

court. THE COURT: Right. Right. I mean, so he has a case pending that was transferred, but that hasn’t been— [DEFENSE COUNSEL]: Resolved in any way, no. THE COURT: —resolved yet. Okay. All right. So we’ll
have to refer him to our Clinic here at the Court for a full psychological. [ASSISTANT PROSECUTOR]: Your Honor, I believe we’ve had some preliminary discussions about waiving the amenability. It has already been found. I don’t even know that we need to waive amenability. [DEFENSE COUNSEL]: If we could approach, your
Honor. THE COURT: Yes. Okay.
* * *January Term, 2012

3 (Discussion held off of the record.)
* * * THE COURT: Okay. All right. Because this Court has already found this alleged delinquent to be not amenable to the juvenile justice system on a prior case in which the Court transferred jurisdiction to the adult court, the Court in this case then will, based on this probable cause finding will then—we will
transfer this case over to the a dult court, as well, without having another amenability hearing. And so we will not refer him to the
Court Clinic at this time.

{¶ 4} D.W. was subsequently bound over to the common pleas court and indicted by the Cuyahoga County Grand Jury on one count each of burglary, theft, vandalism, and criminal damaging and two counts of bribery. A jury acquitted him of bribery, but found him guilty of the other charges. He was sentenced to six years in prison and manda tory postrelease control. {¶ 5} The Eighth District Court of Appeals affirmed the decision. State
v. D.W. , 8th Dist. No. 95750, 2011-Ohio-4096. In doing so, it concluded that “the juvenile court first held a probable cause hearing but then never held an amenability hearing.” Id. at ¶ 30. Without elaboration, the appellate court then held that although the juvenile cour t did not conduct the amenability hearing, D.W., “through his counsel, waived the amenability hearing.” Id . It concluded that the juvenile court did not abuse its discretion in transferring the case to the common pleas court. Id

. {¶ 6} D.W. appealed, and we accepted the cause as a discretionary appeal. State v. D.W. , 130 Ohio St.3d 1493, 2011-Ohio-6556, 958 N.E.2d 956. Two propositions of law are before us:S UPREME C OURT OF O HIO

4 (1) The R.C. 2152.12(B)(3) amenability hearing cannot be
waived. (2) Waiver of the R.C. 2152.12(B)(3) amenability hearing before the juvenile court is not valid unless it is expressly stated on the record by the juvenile through his or her counsel, and the trial court must determine through a colloquy with the juvenile that the waiver is voluntarily, knowingly, and intelligently made.

ANALYSIS
A. A juvenile has a right to an amenability hearing to determine if the juvenile can remain within the juvenile justice system or be bound over to adult court, and pursuant to Juv.R. 3, 1 the juvenile may waive the right to the amenability hearing
1. The Juvenile Court Milieu {¶ 7} More than 40 years ago, the court recognized that juvenile courts are “rooted in social welfare philosophy rather than in the corpus juris.” Kent v.
United States , 383 U.S. 541, 554, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). “The juvenile courts were pre mised on profoundly different assumptions and goals than a criminal court, United States v. Johnson (C.A.D.C.1994), 28 F.3d 151, 157 (Wald, J., dissenting), and eschewed traditional, objective criminal standards and retributive notions of justice.” In re C.S. , 115 Ohio St.3d 267, 274, 2007-Ohio4919, 874 N.E.2d 1177, ¶ 66. The objectives of th e juvenile court “are to provide measures of guidance and rehabilitation for the child and protection for society, not to fix criminal responsib ility, guilt and punishment.” Kent at 554.

1. Juv.R. 3 was amended on July 1, 2012, 1 32 Ohio St.3d lxx. Because D.W.’s probablecause hearing took place in 2010, our references to this rule are to the former version, 69 Ohio St.3d CXLVII, unless otherwise noted. As it pertains to D.W.’s issue before us, Juv.R. 3 has not changed.January Term, 2012

5 {¶ 8} The United States Supreme Court recently reiterated that juveniles have “diminished culpability” and are therefore “ ‘less deserving of the most severe punishments.’ ” Miller v. Alabama , __ U.S.__, 132 S.Ct. 2455, 2464, 183 L.Ed.2d 407 (2012), quoting Graham v. Florida , __ U.S.__, 130 S.Ct. 2011, 2026, 176 L.Ed.2d 825 (2010). Because of juveniles’ “ ‘lack of maturity and an underdeveloped sense of responsibility,’ ” they “are more * * * susceptible to negative influences and outsi de pressures, including pe er pressure,” and their
characters are “not as well formed.” Roper v. Simmons , 543 U.S. 551, 569-570, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005), quoting Johnson v. Texas , 509 U.S. 350, 367, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993). Accordingly, the actions of juveniles are less likely to be evidence of “irretrievably depraved character” than
are the actions of adults. Id . at 570. “From a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.” Id

. See
also Miller , __ U.S.__, 132 S.Ct. 2455, 2464-2465, 183 L.Ed.2d 407, and fn. 5. {¶ 9} But in response to a rise in rates and severity of juvenile crime and the belief that not all juveniles ca n be rehabilitated, in 1969, the General Assembly enacted a statutory scheme that provides for some juveniles to be removed from the juvenile courts’ aut hority. One such provision, R.C. 2152.12, formerly R.C. 2151.26, Am.Sub.H.B. No. 320, 133 Ohio Laws, Part III, 2040, 2049-2050, is at issue in this appeal. That statute allows juvenile courts to transfer certain juveniles to adult court to face criminal sanctions. {¶ 10} “Two types of transfer exist under Ohio’s juvenile justice system: discretionary and mandatory.” State v. Hanning , 89 Ohio St.3d 86, 728 N.E.2d 1059 (2000). “Mandatory transfer removes discretion from judges in the transfer
decision in certain situations.” Id
., see R.C. 2152.12(A). “Discretionary transfer, as its name implies, allows judges the discretion to transfer or bind over to adult court certain juveniles who do not appear to be amenable to care or rehabilitationS UPREME C OURT OF O HIO

6 within the juvenile system or appear to be a threat to public safety.” Id .; see R.C. 2152.12(B). {¶ 11} In instances of discretionary transfer, as in this case,

the juvenile court is also to determine the age of the child and whether probable cause exists to believe that the juvenile committed the act charged. R.C. 2152.10(B) and 2152.12(B)(1) and (2). However, if probable cause exists and the child is eligible by age, the juvenile court must then continue the proceeding for a full investigation. R.C. 2152.12( C) and Juv.R. 30(C). This investigation includes a mental ex amination of the child, a hearing
to determine whether the child is “amenable to care or rehabilitation within the juvenile system” or whether “the safety of the community may require that the child be subject to adult sanctions,” and the consideration of 17 other statutory criteria to
determine whether a transfer is appropriate. J uv.R. 30(C); R.C. 2152.12(B), (C), (D), and (E).

In re M.P. , 124 Ohio St.3d 445, 2010-Ohio-599, 923 N.E.2d 584, ¶ 12. {¶ 12} An amenability hearing helps determine whether a juvenile who is eligible for discretionary bindover will be transferred to adult court. A critical stage of the juvenile proceedings, the hearing affects whether the juvenile faces a delinquency adjudication, or adult criminal sanctions and the label “felon.” Kent , 383 U.S. at 560, 86 S.Ct. 1045, 16 L.Ed.2d 84. Given the nature and consequences of the amenability hearing, j uvenile court judges are entrusted with significant authority when conducting the hearings. {¶ 13} The role of parens patriae is not the juvenile court’s sole focus during an amenability hearing. Procedural protections are vital.January Term, 2012

7 {¶ 14} “The State is parens patriae * * * [b]ut the admonition to function in a ‘parental’ relationship is not an invitation to procedural arbitrariness.” Id. at 554-555. In Kent , the Supreme Court decided whet her a juvenile court properly waived jurisdiction over a juvenile before transferring him to criminal court. Id

. at 552. Before the transfer, the juvenile court judge did not hold a hearing and did not confer with the juvenile, his counsel, or his parents. Id . at 546. The United States Supreme Court held that “as a c ondition to a valid waiver order, [the juvenile] was entitled to a hearing, includi ng access by his counsel to the social records and probation or similar reports which presumably are considered by the court, and to a statement of reasons fo r the Juvenile Court’s decision” before being transferred to the adult court for criminal prosecution. Id . at 557. It insisted that the hearing “must measure up to th e essentials of due process and fair treatment,” id . at 562, including “constitutional principles relating to due process and the assistance of counsel,” id . at 557. {¶ 15} Ten years later, in In re Gault , 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), the United States S upreme Court again confirmed that a juvenile court must recognize a juvenile’s due process rights. Gault held that “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.” Id

. at 13. That decision led the states, incl uding Ohio, to look at the process they used to adjudicate juveniles.

In the wake of Gault and its progeny, we also found that “numerous constitutional safeguards normally reserved for criminal prosecutions are equally applicable to juvenile delinquency proceedings,” State v. Walls , 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 26, and overruled prior decisions that held to the contrary, see In re Agler , 19 Ohio St.2d [70,] at 76, 48 O.O.2d 85, 249 N.E.2d 808 [(1969)].S UPREME C OURT OF O HIO

8 In re C.S. , 115 Ohio St.3d, 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 73. {¶ 16} One such constitutional safeguard that has been extensively developed through our jurisp rudence has been a juvenile’s right to counsel. See
id ., paragraph two of the syllabus (a juvenile may waive the right to counsel); In
re Williams , 101 Ohio St.3d 398, 2004-Ohio-1500, 805 N.E.2d 1110, syllabus (a juvenile who is the subject of a parental-ri ghts termination has a statutory right to
counsel. {¶ 17} Today, we analyze another vital sa feguard: the juvenile’s right to an amenability hearing before being transferred from juvenile court to adult court.
2. The Relevant Statutory Scheme {¶ 18} The General Assembly codified the right to an amenability hearing in discretionary bindovers in R.C. 2152.12(B). That statute provides,

Except as provided in division (A) of this section, after a complaint has been filed alleging that a child is a delinquent child for committing an act that would be a felony if committed by an adult, the juvenile court at a hearing may transfer the case if the court finds all of the following: (1) The child was fourteen years of age or older at the time of the act charged. (2) There is probable cause to believe that the child committed the act charged. (3) The child is not amenable to care or rehabilitation within the juvenile system , and the safety of the community may require that the child be subject to adult sanctions. In making its decision under this division, the c ourt shall consider whether the applicable factors under division (D) of this section indicating thatJanuary Term, 2012

9 the case should be transferred outweigh the applicable factors under division (E) of this secti on indicating that the case should not be transferred. The record shall indicate the specific factors that were applicable and that the court weighed.

(Emphasis added.) {¶ 19} The right to a hearing is also set forth in our rules of procedure for the juvenile courts. Pursuant to Juv.R. 30,

(A) Preliminary hearing. In any proceeding where the court considers the transfer of a case for criminal prosecution, the court shall hold a preliminary hearing to determine if there is probable cause to believe that the child committed the act alleged and that the act would be an offense if committed by an adult. The hearing may be upon motion of the court, the prosecuting attorney, or the child.
* * * (C) Discretionary transfer. In any proceeding in which transfer of a case for criminal prosecution is permitted, but not required, by statute, and in which probable cause is found at the pre liminary hearing, the court shall continue the proceeding for full investigation. The investigation shall include a mental examination of the child by a public or private agency or by a person qua lified to make the examination. When the investigation is completed, an amenability hearing shall be held to determine whether to transfer jurisdiction . The criteria for transfer shall be as provided by statute.S UPREME C OURT OF O HIO

10 (Emphasis added.) {¶ 20} The safeguard of a hearing is c ontained in the Revised Code and
Rules of Juvenile Proce dure, and it is grounded in due process and other constitutional protections. As the United States Supreme Court makes clear, “there is no place in our system of law for reaching a result [the transfer of a juvenile to adult court] of such tremendous consequences, without ceremony— without hearing, without effective assist ance of counsel, without a statement of
reasons.” Kent , 383 U.S. at 554, 86 S.Ct. 1045, 16 L.Ed.2d 84. {¶ 21} D.W. argues that by using “shall,” R.C. 2152.12(B)(3) and Juv.R. 30 require the juvenile court to perform an amenability hearing before determining whether to transfer a juvenile from the juvenile court system to the adult criminal system. We agree. We ha ve no doubt that a juvenile’s right to an amenability hearing, like a juvenile’s right to counsel, is compelled by federal due process protections, Kent at 557, our statutory framework, R.C. 2152.12(B), and our rules, Juv.R. 30. But in so holding, we also make clear that contrary to D.W.’s assertions, the amenability hearing can be waived under Juv.R. 3. {¶ 22} D.W. contends that because Juv.R. 3 deals with the rights of the child, but R.C. 2152.12 and Juv.R. 30 deal w ith the juvenile court’s duty to act as parens patriae, the statute and the rule impose a duty upon the juvenile court that cannot be waived by the juvenile. {¶ 23} Juv.R. 3 states that although a juvenile may not waive his right to be represented by counsel at a Juv.R. 30 hearing, “[o]ther rights of a child may be waived with permission of the court.” But the rule does not identify those “other rights.” We must therefore determine whether “other rights” include the right to an amenability hearing. {¶ 24} Even though “[t]here is a presumption against the waiver of constitutional rights,” an individual can still waive his constitutional rights as long as the waiver is made knowingly and intelligently and is an intentionalJanuary Term, 2012

11 relinquishment of a known right. Brookhart v. Janis , 384 U.S. 1, 4, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966). We hold similarly. See, e.g., In re C.S. , 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 95, citing In re Gault , 387 U.S. at 41-42, 87 S.Ct. 1428, 18 L.Ed.2d 527 (a “juvenile may waive his rights”). {¶ 25} It is important to note that pursuant to Juv.R. 3, juveniles may waive their “other rights,” but only “w ith the permission of the court.” The quoted language reflects the notion that the juvenile court must not abandon its roles as parens patriae and protector of the due process rights of the juvenile. Thus, the court must ensure that the juvenile’s waiver of the right to an amenability hearing is made knowingly, inte lligently, and intentionally and that it is a voluntary relinquishment of a known right. By constructing the rule in this manner, we reconcile, as we must, the pa rens patriae duty of the juvenile court with the due process rights and autonomy of the juvenile. {¶ 26} We therefore hold that one of the “other rights” that may be waived under Juv.R. 3 is the right to an amenability hearing. {¶ 27} We now turn to the manner in which any waiver of the amenability hearing must take place and the standard s that juvenile judges should follow in determining whether the waiver is proper.
B. For a juvenile to properly waive the right to an amenability hearing, the waiver must be expressly stated on the record by the juvenile, through counsel, and the juvenile court must determine, through colloquy with the juvenile, that the waiver is made voluntarily, knowingly, and intelligently {¶ 28} Waiver is often presented in the context of right to counsel. In In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, we set forth the requirements for a valid waiver of right to counsel, which have been incorporated
into the new Juv.R. 3. We conclude that the same reasoning applies here and adopt a standard similar to that for waiver of the right to counsel for the waiver of the right to an amenability hearing.S UPREME C OURT OF O HIO

12 {¶ 29} In In re C.S. , we held:

An effective waiver of the right to counsel by a juvenile must be voluntary, knowing, and intelligent. State v. Gibson (1976), 45 Ohio St.2d 366, 74 O.O.2d 525, 345 N.E.2d 399, paragraph one of the syllabus. In a juvenile court proceeding in which the judge acts as parens patr iae, the judge must scrupulously ensure that the juvenile fully understands, and in tentionally and intelligently relinquishes, the right to counsel. Id. at paragraph two of the syllabus; * * * In re Manuel R ., 207 Conn. [725,] 737-738, 543 A.2d 719 [(1988)] (“It is now commonly recognized that courts should take ‘special ca re’ in scrutinizing a purported confession or waiver by a child”), citing Haley [ v. Ohio ], 332 U.S. [596,] 599, 68 S.Ct. 302, 92 L.Ed. 224 [(1948)]. In the discharge of that duty, the judge is to engage in a meaningful dialogue with the juvenile. Instead of relying solely on a prescribed formula or script for engaging a juvenile during the consideration of the waiver, see Iowa v. Tovar (2004), 541 U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d 209, the inquisitional approach is more consistent with the juvenile courts’ goals, and is best suited to address the myriad factual scen arios that a juvenile judge may face in addressing the question of waiver.

Id . at ¶ 106-107. {¶ 30} The holding in In re C.S. was incorporated into the new Juv.R. 3, which also addresses a juven ile’s right to waive counsel. {¶ 31} Juv.R. 3(D) now sets forth specifi c criteria that must be followed
in order for the waiver to be valid:January Term, 2012

13 Any waiver of the right to counsel shall be made in open court, recorded, and in writing. In determining whether a child has knowingly, intelligently, and voluntarily waived the right to counsel, the court shall look to th e totality of the circumstances including, but not limited to: the child’s age; intelligence; education; background and experience generally and in the court system specifically; the child’s emotional stability; and the complexity of the proceedings. The Court shall ensure that a child consults with a parent, custodian, guardian, or guardian ad litem, before any waiver of counsel. However, no parent, guardian, custodian, or other person may waive the child’s right to counsel.

{¶ 32} Because the same underlying pr inciples that we addressed regarding the nature of juvenile courts in the context of a juvenile’s waiver of his right to counsel are present in our analysis of a juvenile’s waiver of an amenability hearing, we conclude that the holding in In re C.S. and the language of Juv.R. 3 are persuasive a nd applicable to the standard that we adopt today. {¶ 33} Cognizant of the parens patriae dut y of the juvenile court, the due process rights of the juvenile, the Gene ral Assembly’s expre ssion of public policy in R.C. 2152.12, Juv.R. 3 and 30, and precedent, see, e.g ., Kent and In re C.S., we hold that in situations in which a juvenile is subject to discretionary transfer and the juvenile wishes to waive the right to an amenability hearing, the juvenile court must engage in a two-step process to determine the validity of the waiver. {¶ 34} First, before being transferred, the juvenile may waive the right to an amenability hearing only if the waiver is expressly stated on the record and through counsel.S UPREME C OURT OF O HIO

14 {¶ 35} The requirement that the juvenile expressly state on the record that he or she is waiving the right to an amenability hearing demonstrates that the waiver is an “ ‘ “intentional relinquishme nt or abandonment of a known right.” ’ ”
State v. Foster , 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 31, quoting
United States v. Olano , 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The requirement that the juve nile requests the waiver on the record also allows the juvenile court to fulfill its duty to protect the due process rights of the juvenile. {¶ 36} Moreover, the child’s right to counsel is required by Juv.R. 3, which provides that a child may not waive the right to be represented by counsel at a transfer hearing conducted pursuant to Juv.R. 30. By requiring counsel to enter the request, there can be no question that the child was represented as required and no question that the juvenile ha s received “the assistance of counsel to cope with problems of law.” Gault , 387 U.S. at 36, 87 S.Ct. 1428, 18 L.Ed.2d
527. {¶ 37} Second, the juvenile court must determine that the waiver is offered knowingly, voluntarily, and inte lligently. Proper determination must include a colloquy with the juvenile and must occur on the record. The colloquy allows the juvenile court to fulfill its parens patriae duty by ensuring that the juvenile fully understands and intentiona lly and intelligently relinquishes the right to an amenability hearing. And it allows the judge “to engage in a meaningful dialogue with the juvenile,” In re C.S. , 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 107, to guarantee that the juvenile’s due process rights are protected. {¶ 38} Additionally, by requiring the court to determine that the waiver is made knowingly, voluntarily , and intelligently, we comport with the plainJanuary Term, 2012

15 language of Juv.R. 3, which states that rights of a child may be waived “with the permission of the court.” {¶ 39} Finally, requiring that a meaningf ul colloquy between the juvenile court and the juvenile occur on the reco rd provides an additional due process safeguard to protect the juvenile. It also is consistent with th e language of R.C. 2152.12(B)(3), which states, “The record sh all indicate the specific factors that were applicable and that the court weighed” when deciding whether a child is
amenable to rehabilitation. {¶ 40} In fact, this case illustrates the problems that arise when waivers are not clearly set forth on the record. There is no evidence in the record to support a finding that D.W., either hims elf or through his counsel, waived his right to an amenability hearing. The record lacks any meaningful discussion about the amenability hearing. Absent an express statement on the record by either D.W. or his counsel requesting waiver of his right to an amenability hearing, we will not hold that D.W. waived this right. 2 {¶ 41} We recognize that the state argues that the amenability hearing was properly waived and that the court of a ppeals agreed. However, based upon the record before us, there is no indication of a proper waiver.

2. We recognize the state’s argument that D.W.’s failure to object to the juvenile court’s decision not to conduct an amenability hearing acts as a forfeiture and that he waives all but plain error. We are not persuaded. Initially, we observe that the state did not raise the issue of waiver to the court of appeals in response to D.W.’s appeal. It cannot present that claim here in the first instance. See, e.g ., State v. Chinn , 85 Ohio St.3d 548, 565, 709 N.E.2d 1166 (1999) (party who failed to raise an issue to the court of appeals waived his arguments); see also State v. Scudder , 71 Ohio St.3d 263, 268, 643 N.E.2d 524 (1994). Second, although the record in this case does not contain any objection by the defense to the failure of the juvenile court to conduct an am enability hearing, and we will not presume that any objection was made, we hold that D.W. timely raised this issue on appeal. See State v. Douglas , 20 Ohio St.3d 34, 35, 485 N.E.2d 711 (1985) (juvenile who was transferred to adult court, pled guilty to charges, and was subsequent ly convicted appealed convictions alleging that the bindover proceeding was not proper).S UPREME C OURT OF O HIO

16 C. Application {¶ 42} The two-step process we set forth today effectively balances the parens patriae duty of the j uvenile court with the juve nile’s due process rights while comporting with the plain lang uage of R.C. 2152.12, Juv.R. 3 and 30, and our jurisprudence. We turn now to its application here. {¶ 43} At the outset, we address the state’s argument on implied waiver. An implied waiver runs counter to the ve ry idea of our definition of waiver: an “intentional relinquishment or abandonment of a known right.” State v. Foster , 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 31, quoting Johnson , 304 U.S. at 464, 58 S.Ct. 1019, 82 L.Ed. 1461. The record is devoid of any evidence that D.W. or his counsel intentionally re linquished or abandoned his right to an amenability hearing. There is no evidence that the juvenile knew he had a right to an amenability hearing. The judge failed to recognize a need for further inquiry of the juvenile as to whether he knowingly, intelligently, and voluntarily dispensed with an amenability hearing. {¶ 44} Based on the language in the reco rd, the juvenile court found that an amenability hearing was not require d, because he had found probable cause, and D.W. had been bound over in a prior case. The state argues that it is impractical to prevent a juvenile from waiving an amenability hearing after he has already been found not to be amenable to the juvenile justice system. Again, we must disagree. {¶ 45} Each case presented to the juven ile court must be assessed upon its
own merits. In State v. Adams , 69 Ohio St.2d 120, 431 N.E.2d 326 (1982), this court held that once a juvenile is bound over, the juvenile is bound over for all
future felonies. Id ., syllabus. However, the General Assembly expressly overruled this holding as acknowledged in the legislative notes to R.C. 2151.011:January Term, 2012

17 The General Assembly hereby declares that its purpose in enacting the language in division (B) of section 2151.011 and divisions (B) and (C) of secti on 2151.26 of the Revised Code that
exists on and after the effective date of this act is to overrule the holding in State v. Adams (1982), 69 Ohio St.2d 120 [431 N.E.2d 326], regarding the effect of binding a child over for trial as an
adult

.

(Emphasis added.) Am.Sub.H.B. No. 1, S ection 3(B), 146 Ohio Laws, Part I, 1,
96. {¶ 46} In other words, in the wake of Adams , the General Assembly prohibited juvenile courts from holding that once a juvenile has been bound over to adult court, the juven ile will be bound over in all future felonies. We must respect the right of the General Assembly to limit our holdings as long as the constitution permits it do so. Here, the legislature acted within its role, and we must give effect to legislative intent and ensure that our juvenile courts do so as
well. State v. Elam , 68 Ohio St.3d 585, 587, 629 N.E.2d 442 (1994). According to statute then, a juvenile court cannot bi nd over a juvenile on the sole basis that the juvenile has been previously bound over.
CONCLUSION {¶ 47} We hold that an amenability hearing under R.C. 2152.12(B)(3) may be waived provided (1) the juvenile, through counsel, expressly states on the record a waiver of the amenability hearing and (2) the juvenile court engages in a colloquy on the record with the juvenile to determine that the waiver was made knowingly, voluntarily, and intelligently. {¶ 48} Here, the juvenile court failed to conduct an amenability hearing before transferring D.W. to adult court, based upon the mistake n belief that a prior bindover of the juvenile nega ted the need for an amenability hearing. The courtS UPREME C OURT OF O HIO

18 thus never asked the juvenile whether he was waiving the hearing. Accordingly, we reverse the judgment of the court of appeals and remand the cause to the juvenile court for an amenability hearing, or proper waiver of it, consistent with this opinion. Judgment reversed
and cause remanded.
P FEIFER , L UNDBERG S TRATTON , L ANZINGER , C UPP , and M C G EE B ROWN , JJ., concur.
O’D ONNELL , J., concurs in judgment only.

__________________ Timothy McGinty, Acting Cuyahoga County Prosecuting Attorney, and Daniel T. Van and Katherine Mullin, Assistant Prosecuting Attorneys, for appellee. Robert L. Tobik, Cuyahoga County P ublic Defender, and Nathaniel J. McDonald, Assistant Public Defender, for appellant. Timothy Young, Ohio Public Defender, and Jill Beeler, Assistant Public Defender, urging reversal for amic us curiae, Ohio Public Defender.

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