[Cite as State v. Hope, 2022-Ohio-1753.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellant, :

Nos. 110611, 110612, and 

v. : 110613

MARSHALL HOPE, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: May 26, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case Nos. CR-20-652893-A, CR-20-652895-A, CR-20-653065-A, 

DL-20-105982, DL-20-106786, and DL-20-107066

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Eric Collins, Assistant Prosecuting 

Attorney, for appellee. 

Timothy Young, Ohio Public Defender, and Timothy B. 

Hackett, Assistant State Public Defender, for appellant. 

SEAN C. GALLAGHER, A.J.:

Marshall Hope appeals his convictions in three separate cases, 

involving felony assault, robbery, and various weapons violations. In this appeal, 
Hope claims that the juvenile court failed to render a valid probable-cause 

determination before transferring the case to the general division of the common 

pleas court (“general division”) under R.C. 2152.12(A)(2), and in the alternative, 

Hope argues that his sentences that include non-life indefinite sentences under R.C. 

2929.144 and 2929.14(A)(1)(a) and (A)(2)(a) are unconstitutional. For the following 

reasons, we affirm.

Before the commencement of the underlying actions, Hope was 

bound over from juvenile court and convicted of various felony offenses in the 

general division, the facts of which are not relevant to our review. Cuyahoga C.P. 

Nos. CR-19-644391, CR-19-644392, and CR-19-643005 (“2019 cases”). Following 

those earlier convictions, three new cases were filed against Hope, with the 

proceedings being initiated in juvenile court. According to the state, in three 

separate incidents Hope stole a phone from a Regional Transit Authority passenger, 

punching the victim in the face before fleeing; assaulted his ex-girlfriend and 

threatened her with a firearm; and brandished a firearm after a victim declined to 

provide Hope a cigarette in the parking lot of a fast-food establishment. Hope was 

apprehended by police officers who pursued him after the third incident.

At an initial hearing before the magistrate on two of the three cases,

Hope expressed his understanding that he was not supposed to be in juvenile court 

because of his prior felony convictions, repeatedly interrupting the proceedings to 

ask about being returned to “the county.” At a subsequent hearing before the 

juvenile court, the third case had just been initiated and Hope was being arraigned 
on that case along with continuing the proceedings on the two earlier cases. The 

prosecutor introduced the certified entries of the convictions for the 2019 cases in 

support of the motion to transfer the cases. Hope conceded that he was “the 

individual who was found guilty [in the 2019 cases] in the court of common pleas” 

and that he “receive[d] a sentence to * * * Lorain Correctional Institute [sic]” as a 

result. Hope then expressly consented to the state’s motion to transfer the three 

cases. 

The juvenile court “noted that based on [Hope’s] guilty finding on the 

cases that were transferred from this Court pursuant to 2151.12 and then he was 

subsequently, again, found guilty of those offenses, he is no longer a child under the 

definition of the statute and therefore not subject to the Juvenile Court jurisdiction.” 

This conclusion is in line with R.C. 2152.02(C)(5), which provides that any minor 

previously convicted of a felony offense in criminal court is not considered a “child”

for the purposes of the juvenile court’s jurisdiction established in R.C. 2151.23(A). 

Recognition of the jurisdictional limitation terminated the juvenile court’s 

proceedings. 

Instead of memorializing the lack of jurisdiction as the basis for the 

transfer, the juvenile court issued a journal entry in each of Hope’s three cases,

transferring them to the general division and erroneously stating that Hope 

“stipulates to a finding of probable cause to all counts in this matter.” Each journal 

entry also states that “[u]pon the conclusion of all evidence presented * * * the Court 

finds probable cause to believe that [Hope] committed” the acts alleged in the 
juvenile complaints. The juvenile court thus purported to exercise judicial authority

it already claimed to lack, but that was an error in drafting, not substance. The 

hearing transcript reflected the trial court’s decision to transfer the case for the want 

of jurisdiction and that it never considered a probable-cause determination or asked 

for any stipulations to that effect. 

This was purely an error in journalizing what had occurred. As Hope 

recognized after the fact, at his change-of-plea hearing in the general division after 

the cases were transferred and upon the trial court inquiring as to the transfer,

“[t]here was no probable cause hearing or amenability. Just a hearing to state that 

he was previously convicted as an adult.” Thus, the parties and the trial court in the 

general division acknowledged that the cases were transferred to the general 

division for disposition as required under R.C. 2152.12(A)(2), rendering any error in 

the juvenile court’s journal entries, at best, harmless.

In Cuyahoga C.P. No. CR-20-653065, Hope pleaded guilty to having 

weapons while under disability, a third-degree felony, in violation of R.C. 

2923.13(A)(2), and assault, a first-degree misdemeanor, in violation of R.C. 

2903.13(A). Hope was sentenced to three years in prison for the weapons violation

and 180 days for the assault, to be served concurrently. In Cuyahoga C.P. No. CR20-6532893, Hope pleaded guilty to robbery, a second-degree felony, in violation of 

R.C. 2911.02(A)(2). The court sentenced Hope to an indefinite prison term of seven 

to ten and a half years, in accordance with R.C. 2929.144 and 2929.14(A)(2)(a). And 

in Cuyahoga C.P. No. CR-20-652895, Hope pleaded guilty to attempted robbery, a 
fourth-degree felony, in violation of R.C. 2923.02 and 2911.02(A)(3), with a oneyear firearm specification in violation of R.C. 2941.141, and having weapons while 

under disability, a third-degree felony, in violation of R.C. 2903.12(A)(2). He was 

sentenced to 18 months in prison for the attempted robbery, one year for the firearm 

specification, and three years for the weapons violation. The sentences for the 

attempted robbery and weapons charge were imposed concurrently to each other, 

but consecutive to the firearm specification, leaving a four-year aggregate term of 

imprisonment for that case. In addition, the trial court ordered that the terms of 

imprisonment as between the three cases be served consecutively. 

It is from these convictions that Hope appeals and advances four 

assignments of error: (1) the trial court erred by failing to conduct a valid probablecause hearing and transferring the case to the general division regardless of the fact 

that R.C. 2152.12(A)(2) does not contain such a requirement; (2) that a mandatory 

transfer from juvenile court to the criminal court without an amenability hearing 

violated Hope’s constitutional rights, claiming that State v. Aalim, 150 Ohio St.3d 

489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 38 (“Aalim II”), was wrongly decided; (3) 

that Hope was deprived of effective assistance of counsel because his counsel failed 

to request a probable-cause hearing; and (4) that the non-life indefinite sentence 

imposed in one of the cases was unconstitutional. 

Hope’s argument with respect to the validity of the mandatory 

transfer without an amenability hearing, as advanced in the second assignment of 

error, is based on State v. Aalim, 150 Ohio St.3d 463, 2016-Ohio-8278, 83 N.E.3d 
862, which was vacated and supplanted by Aalim II. We have no authority to 

overrule Aalim II, in which the Ohio Supreme Court declared that mandatory 

transfers of juvenile cases to a criminal court are not unconstitutional based on the 

lack of an amenability hearing. Id. at ¶ 38. As Hope acknowledges, the Ohio 

Supreme Court has accepted State v. Bunch, 7th Dist. Mahoning No. 18 MA 0022, 

2021-Ohio-1244, ¶ 27-32, for review, including a proposition of law seeking to once 

again revisit the issues presented in the Aalim cases regarding whether amenability 

hearings are required before any case is transferred from the juvenile court to a

criminal court. State v. Bunch, 163 Ohio St.3d 1501, 2021-Ohio-2307, 170 N.E.3d 

889. Unless or until the Ohio Supreme Court addresses Aalim II, we are duty bound 

to follow it. With no other arguments presented for our review, we must overrule 

the second assignment of error. App.R. 16(A)(7).

Hope’s argument on the indefinite-sentencing issue, as advanced in 

the fourth assignment of error, singularly rests on the analysis provided in the 

panel decision in State v. Sealey, 2021-Ohio-1949, 173 N.E.3d 894 (8th Dist.), 

which affirmed a trial court’s conclusion that the Reagan Tokes Law was

unconstitutional. Id. at ¶ 45. Sealey was overruled and vacated through this 

court’s en banc process. State v. Sealey, 8th Dist. Cuyahoga No. 109670, 2022-

Ohio-1166. In State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470, 

the general constitutional challenges advanced against the validity of the Reagan 

Tokes Law and the non-life indefinite sentencing structure therein have been 
overruled. See also State v. Daniel, 8th Dist. Cuyahoga No. 109583, 2022-Ohio1165, ¶ 5. The fourth assignment of error is, therefore, without merit.

Turning to the more substantive arguments, in the first and third 

assignments of error, Hope claims that a probable-cause determination was 

required under R.C. 2152.12(A)(2) to effectuate the mandatory transfer to the 

general division. That subdivision provides in pertinent part:

The juvenile court also shall transfer a case in the circumstances 

described in division (C)(5) of section 2152.02 of the Revised Code or if 

* * * [a] complaint is filed against a child who is eligible for a 

discretionary transfer under section 2152.10 of the Revised Code and 

who previously was convicted of or pleaded guilty to a felony in a case 

that was transferred to a criminal court. 

Under R.C. 2152.02(C)(5), any person whose case was transferred for criminal 

prosecution and who pleads guilty to a felony, subject to an inapplicable exception,

“shall” thereafter be deemed not a child “in any case in which a complaint is filed 

against the individual.” (Emphasis added.) State v. Jones, 8th Dist. Cuyahoga 

Nos. 110453 and 110454, 2022-Ohio-1169, ¶ 54. After being convicted of a felony 

offense, the offender is no longer considered a “child” and the legislature shifts its 

discussion to calling the individual a “person” for the purposes of future cases. R.C. 

2151.23(A)(1) provides that a juvenile court has “exclusive original jurisdiction” 

with respect to “any child” who is alleged to be a “delinquent, unruly, abused, 

neglected, or dependent child.” State ex rel. Jean-Baptiste v. Kirsch, 134 Ohio 

St.3d 421, 2012-Ohio-5697, 983 N.E.2d 302, ¶ 18 (“[T]he juvenile court has 

exclusive original jurisdiction ‘[c]oncerning any child who on or about the date 
specified in the complaint, indictment, or information is alleged * * * to be * * * a 

delinquent * * * child.’”). 

Although the legislature has generally defined the term “child” to 

include all persons under the age of eighteen, see R.C. 2151.011(B)(6) and 

2152.02(C)(1), the more specific statutory section, R.C. 2152.02(C)(5), creates an 

exception to the general rule. Indeed, under R.C. 2152.02(C)(1), the legislature 

reaffirmed that “‘child’ means a person who is under eighteen years of age, except as 

otherwise provided in divisions (C)(2) to (8) of this section.” (Emphasis added.) 

R.C. 2152.02(C)(5) impacts the juvenile court’s jurisdiction under R.C. 2151.23(A) 

by redefining who is considered a “child.” The definitional provisions under R.C. 

2152.02(C) impact the juvenile court’s subject-matter jurisdiction. See generally 

State v. Hudson, Slip Opinion No. 2022-Ohio-1435.1 “Subject-matter jurisdiction is 

a condition precedent to a court’s power to adjudicate and render judgment in a case 

and, ‘in the absence of subject-matter jurisdiction, a court lacks the authority to do 

anything but announce its lack of jurisdiction and dismiss,’” id. at ¶ 22, quoting 

Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 21.

We must give meaning to statutory language as written and cannot 

interpret the statutes in such a way as to render a provision inoperable. State ex rel. 

1 Hudson concludes that the state did not properly invoke the general division’s 

jurisdiction over a criminal matter when a juvenile was apprehended before his 21st 

birthday because the juvenile court maintained exclusive jurisdiction for the initiation of 

all proceedings under R.C. 2152.02. Because the current matter was initiated in juvenile 

court and transferred under R.C. 2152.02(C)(5) and 2152.12(A)(2), Hudson does not alter 

the outcome. It simply reinforces the jurisdictional analysis provided herein.
Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶ 21; 

Gerrity v. Chervenak, 162 Ohio St.3d 694, 2020-Ohio-6705, 166 N.E.3d 1230, ¶ 14, 

citing Commerce & Industry Ins. Co. v. Toledo, 45 Ohio St.3d 96, 102, 543 N.E.2d 

1188 (1989), and R.C. 1.47(B). If the statutory language is unambiguous, judicial 

review begins and ends with the statutory language. Johnson v. Montgomery, 151 

Ohio St.3d 75, 2017-Ohio-7445, 86 N.E.3d 279, ¶ 15. Elevating the general definition 

contained in other sections of the Ohio Revised Code, such as R.C. 2151.011(B)(6), 

over the more specific clarification would render R.C. 2152.02(C)(5) a nullity. We 

cannot accept any invitation to do so.

Thus, under R.C. 2152.12(A)(2), the juvenile court must transfer the 

case to a criminal court if R.C. 2152.02(C)(5) applies or if the complaint is filed 

against a “child” who is eligible for a discretionary transfer and that “child” was 

previously convicted of or pleaded guilty to a felony in a case transferred to a 

criminal court. If R.C. 2152.02(C)(5) applies, the juvenile court lacks jurisdiction 

over the case since the juvenile offender is no longer deemed a “child.” On the other 

hand, if R.C. 2152.12(A)(2)(a) applies, meaning the juvenile offender is still 

considered a “child” under the law, the legislature has created another exception to 

the general requirement of a probable-cause determination to effectuate the 

mandatory transfer of the case from juvenile court to a criminal court. See, e.g., R.C. 

2152.12(A)(1) and (B). In simplistic terms, once a juvenile offender has been

convicted of an offense as an adult, any future cases alleging felony conduct must be 

resolved in the general division instead of the juvenile court. 
Our focus must be on the jurisdictional issue in this case, especially 

since that was the focus of the juvenile court. State ex rel. McGinty v. Eighth Dist. 

Court of Appeals, 142 Ohio St.3d 100, 2015-Ohio-937, 28 N.E.3d 88, ¶ 13. “A court 

possessed of general subject-matter jurisdiction can determine its own jurisdiction, 

and a party contesting that jurisdiction has an adequate remedy by appeal or other 

postjudgment action. State ex rel. Bell v. Pfeiffer, 131 Ohio St.3d 114, 2012-Ohio-54, 

961 N.E.2d 181, ¶ 19, citing State ex rel. Pruitt v. Donnelly, 129 Ohio St.3d 498, 2011-

Ohio-4203, 954 N.E.2d 117, ¶ 2; Salloum v. Falkowski, 151 Ohio St.3d 531, 2017-

Ohio-8722, 90 N.E.3d 918, ¶ 10. Although the juvenile court initially possessed 

jurisdiction to determine whether its jurisdiction was properly invoked, it was 

confined to that review. Salloum at ¶ 11. 

Although the underlying proceedings began in juvenile court, the 

mandatory transfer under R.C. 2152.12(A)(2) is perfunctory once it was determined 

that Hope was convicted of felony offenses in previous cases in the general division. 

Because Hope was not a “child” as statutorily defined under R.C. 2152.02(C)(5) at 

the time of the commencement of the juvenile proceedings, the juvenile court no

longer possessed subject-matter jurisdiction under R.C. 2151.23(A) to resolve the 

criminal charges against Hope, much less to exercise any judicial discretion in 

determining whether there is probable cause to believe that Hope committed the 

criminal acts. Hudson, Slip Opinion No. 2022-Ohio-1435 at ¶ 22.

We, therefore, need not consider the merits of Hope’s assigned errors, 

which completely ignore the jurisdictional limitation and focus on the mechanics of 
the probable-cause determination the juvenile court lacked jurisdiction to resolve. 

App.R. 16(A)(7). Hope has not challenged the juvenile court’s conclusion that it 

lacked jurisdiction over the three cases — the only issue presented and resolved in 

juvenile court. The transfer to the general division was effectively a ministerial task 

limited to transferring the cases to the only court with jurisdiction over the criminal 

charges. 

Although Hope has not discussed, much less challenged, the 

jurisdictional question, we have a duty to independently review the juvenile court’s 

jurisdiction over the matter. In re A.W., 160 Ohio St.3d 183, 2020-Ohio-1457, 155 

N.E.3d 819, ¶ 7 (sua sponte vacating the adult portion of the juvenile disposition 

after concluding that the juvenile court lacked jurisdiction).2 In A.W., the parties 

focused on the invocation of a serious-youthful-offender disposition following a 

juvenile-delinquency proceeding. Id. at ¶ 1. The appellate court affirmed the 

invocation under the juvenile court’s broad powers. Id. at ¶ 6. The Ohio Supreme 

Court accepted a single proposition of law for review: “the adult portion of an SYO 

2 In In re M.J., 2019-Ohio-1651, 135 N.E.3d 1087, ¶ 20 (8th Dist.), a panel 

concluded that a trial court’s failure to consider the statutory requirements of R.C. 

Chapter 2152, including 2152.12(A)(2), is voidable error, not subject to correction in a 

collateral proceeding. In order to exercise its jurisdiction over a “child,” the juvenile court 

must consider R.C. 2152.02(C)(5) because that impacts whether the court possesses 

subject-matter jurisdiction — an issue that can never be waived. State ex rel. Cruzado v. 

Zaleski, 111 Ohio St.3d 353, 2006-Ohio-5795, 856 N.E.2d 263, ¶ 19; State v. Harper, 160 

Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248; State v. Henderson, 161 Ohio St.3d 

285, 2020-Ohio-4784, 162 N.E.3d 776. Nevertheless, M.J. is distinguishable because 

Hope conceded in his appellate briefing that the juvenile court concluded that it lacked 

jurisdiction over Hope’s cases, preserving this argument for our review in this direct 

appeal, unlike the “collateral attack” advanced in M.J.
sentence cannot be invoked for failure to complete [DYS] programming unless the 

offender was given notice that the failure to comply could trigger invocation of the 

adult sentence and it was possible for the offender to have completed it.” The court, 

however, sua sponte determined that the juvenile court lacked jurisdiction over the 

offender, and the disposition was vacated despite the issue having never been 

identified until after the Ohio Supreme Court accepted the proposition of law for 

review. Id. at ¶ 7-8. Under A.W., we must review the juvenile court’s jurisdiction as 

a preliminary matter. 

Because Hope has not addressed the correct procedural posture of 

this case, we must overrule the first and third assignments of error. 

Notwithstanding, an argument has been presented based on a recent 

decision from the Ohio Supreme Court potentially impacting resolution of this 

appeal. In State v. Smith, Slip Opinion No. 2022-Ohio-274, the Ohio Supreme Court 

broadly opined that all mandatory transfers must be based on a probable-cause 

determination before defining the scope of a transfer after a juvenile court renders 

a probable-cause determination. Id. at ¶ 27, 44. Hope has not asked for leave to 

assert Smith as supplemental authority in support of his arguments, and it is not

this court’s obligation to require Hope to do so. State v. Quarterman, 140 Ohio 

St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 19, quoting State v. Bodyke, 126 Ohio 

St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 78 (O’Donnell, J., concurring in part 

and dissenting in part) (“‘[A]ppellate courts do not sit as self-directed boards of legal 

inquiry and research, but [preside] essentially as arbiters of legal questions 
presented and argued by the parties before them.’”); State v. Tate, 140 Ohio St.3d 

442, 2014-Ohio-3667, 19 N.E.3d 888, ¶ 21, quoting State v. 1981 Dodge Ram Van, 

36 Ohio St.3d 168, 170, 522 N.E.2d 524 (1988) (“[A]ppellate courts should not 

decide cases on the basis of a new, unbriefed issue without ‘giv[ing] the parties 

notice of its intention and an opportunity to brief the issue.’”).

Further, Smith’s overly broad statement regarding the necessity of a 

probable-cause determination for all mandatory transfers is not novel, although it 

is an over-simplification of complicated statutory law. Hope had the opportunity to 

present an argument based on similar pronouncements and failed to do so in his 

appellate briefing. See, e.g., Steele v. Harris, 161 Ohio St.3d 407, 2020-Ohio-5480, 

163 N.E.3d 565, ¶ 11 (“If a child appears to be eligible for mandatory transfer, the 

juvenile court must conduct a hearing to determine whether the child meets the 

eligibility criteria and whether there is probable cause to believe that the child 

committed the act charged. R.C. 2152.12(A)(1); Juv.R. 30(A).”); Smith v. May, 159 

Ohio St.3d 106, 2020-Ohio-61, 148 N.E.3d 542, ¶ 4 (same). 

Notwithstanding, and in light of the repeated use of the broad 

language from Smith, Slip Opinion No. 2022-Ohio-274, it bears noting that Smith

does not impact the outcome herein. There are two types of transfers from juvenile 

court to the general division. One is mandatory, and the other is discretionary. State 

v. Beauregard, 8th Dist. Cuyahoga No. 101418, 2015-Ohio-1021, ¶ 12. In some 

situations, a mandatory transfer may hinge on the probable-cause determination. 

R.C. 2152.12(A)(1). There is an exception, as already discussed. A juvenile court is 
required to transfer “a case,” without rendering a probable-cause determination, if 

the juvenile is not a “child” under R.C. 2152.02(C)(5) or a “complaint is filed against 

a child who is eligible for a discretionary transfer under section 2152.10 of the 

Revised Code and who previously was convicted of or pleaded guilty to a felony in a 

case that was transferred to a criminal court.” R.C. 2152.12(A)(2); R.C. 

2152.10(A)(3) (“A child * * * is eligible for mandatory transfer and shall be 

transferred * * * in any of the following circumstances: * * * [R.C. 2152.12(A)(2)] 

applies.”). There is no statutory requirement for the trial court to consider the

probable-cause issue before initiating the transfer under R.C. 2152.12(A)(2).

On this point, Hope seeks to insert such a requirement into the 

otherwise unambiguous language of R.C. 2152.12(A)(2), claiming that because R.C. 

2152.12(A)(1) includes a probable-cause-determination requirement for a 

mandatory transfer of cases alleging that a child committed an act that would be 

some form of murder or having committed a category two offense, then, too, should 

R.C. 2152.12(A)(2). Hope has not cited any authority in support of this proposition. 

App.R. 16(A)(7).

For good reason, Hope’s claim is contrary to basic principles of 

statutory interpretation. The inclusion of a probable-cause determination under 

subdivision (A)(1)(a) and (b) of R.C. 2152.12 demonstrates the legislature’s 

awareness of the need to create the requirement such that its absence from 

subdivision (A)(2) speaks volumes. “The ‘General Assembly’s use of particular 

language to modify one part of a statute but not another part demonstrates that the 
General Assembly knows how to make that modification and has chosen not to make 

that modification in the latter part of the statute.’” Wilson v. Durrani, 164 Ohio 

St.3d 419, 2020-Ohio-6827, 173 N.E.3d 448, ¶ 30, quoting Hulsmeyer v. Hospice of 

S.W. Ohio, Inc., 142 Ohio St.3d 236, 2014-Ohio-5511, 29 N.E.3d 903, ¶ 26. Smith

purports to stand for a different proposition.

In Smith, the Ohio Supreme Court opined that probable cause is part 

of the procedure in some mandatory transfer cases, seemingly giving credence to 

Hope’s unsupported claim that R.C. 2152.12(A)(2) requires a probable-cause

determination irrespective of the legislative omission. Smith, Slip Opinion No. 

2022-Ohio-274 at ¶ 27, citing R.C. 2152.12(A) and (B)(2). The Smith majority stated 

that “[o]ne of the first and most critical determinations a juvenile court must make 

in evaluating whether to relinquish jurisdiction to an adult court—in both 

mandatory- and discretionary-bindover cases—is whether probable cause exists to 

believe that the child committed the act charged.” Id. The majority then concluded

that “[a] finding of probable cause is a jurisdictional prerequisite under R.C. 2152.12 

to transferring a child to adult court for prosecution of an act charged.” Id. at ¶ 44. 

Thus, according to the Ohio Supreme Court, the “critical 

determination” is whether the juvenile court “relinquishes” its jurisdiction over a 

“child.” If the juvenile court does not possess jurisdiction over the case under the 

combined application of R.C. 2152.12(A)(2), 2152.02(C)(5), and 2151.23(A),

however, there is nothing to relinquish. Thus, it cannot be concluded that a 

probable-cause hearing is required for all mandatory transfers under R.C. 2152.12
as the Smith Court opined, much less would it be required under the circumstances 

of this case. 

Smith also failed to address R.C. 2152.12(A)(2)(a) or (b) altogether, 

which also does not include a probable-cause-determination requirement before 

triggering the mandatory transfer. Instead, the Smith majority limited itself to the 

other transfer provisions from R.C. 2152.12 that include a probable-causedetermination requirement in reaching its conclusion that a probable-cause 

determination is required in all transfers to the general division. Id., citing R.C. 

2152.12(A)(1)(a), (A)(1)(b), and (B)(2). This conclusion is not supported by the plain 

and unambiguous language of R.C. 2152.12(A)(2), which is conspicuously absent 

from the Smith majority’s discussion. Under that provision, there is no requirement 

for the juvenile court to undertake a probable-cause determination before 

transferring the case to the general division for felony prosecution unlike 

R.C. 2152.12(A)(1). 

In fact, the legislature acknowledged the two differing requirements 

for a mandatory transfer under R.C. 2152.12(A). After describing the requirements 

for the mandatory transfer under R.C. 2152.12(A)(1), the legislature provided that 

the juvenile court “also shall transfer” a case if the conditions under R.C. 

2152.12(A)(2) are satisfied, without establishing the need to render a probable-cause 

determination as had been required for the other mandatory transfers as provided 

in subdivision (A)(1) of the statute. “In construing a statute, we may not add or 

delete words.” State v. Hughes, 86 Ohio St.3d 424, 427, 715 N.E.2d 540 (1999), 
citing State ex rel. Sears, Roebuck & Co. v. Indus. Comm., 52 Ohio St.3d 144, 148, 

556 N.E.2d 467 (1990). 

We have been down this path with overly broad statements from the 

Ohio Supreme Court. In State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 

N.E.3d 1231, ¶ 23, the Ohio Supreme Court broadly concluded that “it is fully 

consistent for appellate courts to review those sentences that are imposed solely 

after consideration of the factors in R.C. 2929.11 and 2929.12 under a standard that 

is equally deferential to the sentencing court.” In State v. Jones, 163 Ohio St.3d 242, 

2020-Ohio-6729, 169 N.E.3d 649, ¶ 27-29, however, the court concluded that the 

Eighth District Court of Appeals erred as a matter of law in applying the statements 

from Marcum at ¶ 23 because the statements were “made only in passing and were 

not essential to [the court’s] legal holding” and did not comport with the plain 

language of R.C. 2953.08(G)(2). We have been warned to avoid relying on the Ohio 

Supreme Court’s language uttered in passing.

Smith involved a discretionary transfer proceeding, Smith, Slip 

Opinion No. 2022-Ohio-274 at ¶ 11 and 23, and as a result the decision has no 

bearing on mandatory transfer proceedings, especially those involving a minor who 

has previously been convicted of criminal offenses in the general division under R.C. 

2152.12(A)(2). Moreover, anything related to the probable-cause determination, as 

discussed in Smith, is dicta since the issue accepted for review, and thus what is 

essential to the court’s legal holding, was limited to determining “what specifically 

transfers when a juvenile court exercises its discretion and binds over a juvenile, 
such as Smith, to an adult court pursuant to R.C. 2152.12” after the juvenile court 

renders a probable-cause determination. Id. at ¶ 24. Smith did not resolve whether 

a probable-cause determination is required in all juvenile cases because that was not 

the issue before the court. 

Under Jones’s unambiguous pronouncement, if the Ohio Supreme 

Court makes statements in passing that are not related to the issue accepted for 

review and contravene unambiguous statutory language, we are required to 

disregard them. Jones at ¶ 27-29. The conclusion in Smith with respect to what 

aspect of the case is transferred following a probable-cause determination is not 

applicable to the issues in this appeal involving whether a probable-cause 

determination is required under R.C. 2152.12(A)(2). Reading Smith broadly enough 

to stand for the proposition that a probable-cause determination is required for all 

transfers under R.C. 2152.12(A)(2) would contravene unambiguous statutory 

language, language that was not discussed, or even mentioned, by the Smith Court.

And finally, the only remaining, arguable support for requiring a 

probable-cause determination for situations involving R.C. 2152.12(A)(2) is Juv.R. 

30(A), which provides, “[i]n 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 * * *.” (Emphasis added.) To what ends? Juv.R. 30 is a rule of procedure, 

not one of substantive law.
If the juvenile offender is not considered a “child,” the juvenile court 

lacks jurisdiction, and if the offender is considered a “child” under R.C. 

2152.12(A)(2)(a) and (b), there is no probable-cause determination required to 

effectuate the mandatory transfer. Conducting a probable-cause hearing during an 

initial hearing in every juvenile case could be superfluous since the outcome of the 

hearing may not impact a mandatory transfer initiated under R.C. 2152.12(A)(2) —

as was recognized by the juvenile court and the parties in this case. 

Even if the juvenile court concluded that there was no probable cause 

to believe the juvenile committed the acts, under the plain language of R.C. 

2152.12(A)(2) the court is statutorily required to transfer the case to the general 

division for disposition because the transfer does not hinge on the probable-cause 

determination. The juvenile court has no statutory authority to retain the case even 

in the absence of a probable-cause determination. This also obviates any need to 

discuss what must occur in such a proceeding since the legislature has not required 

a hearing to take place before the mandatory transfer. See, e.g., In re A.J.S., 120 

Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 51; State v. Iacona, 93 Ohio 

St.3d 83, 93, 752 N.E.2d 937 (2001); State v. D.W., 133 Ohio St.3d 434, 2012-Ohio4544, 978 N.E2d 894. Smith does not override the legislative enactment.

It is not this court’s function to rewrite statutory language, nor can 

the dicta from Smith support a conclusion in support of Hope’s cursory analysis. 

And even if we offered the parties the opportunity to brief the issue, Smith would be 

inapplicable and the result the same. Whether the transfer in this case occurred 
under R.C. 2152.12(A)(2) or 2152.12(A)(2)(a), there is no statutory requirement for 

the juvenile court to render a probable-cause determination to trigger the 

mandatory transfer. 

We cannot provide Hope his requested relief of remanding this 

matter to the juvenile court for substantive proceedings. The juvenile court 

determined that it lacked jurisdiction over the cases, and therefore, the mandatory 

transfer under R.C. 2152.12(A)(2) is a perfunctory obligation, a ministerial task to 

transfer the case to the only court with jurisdiction to review the criminal charges. 

The juvenile court did not err in concluding that it lacked jurisdiction in light of 

Hope’s felony record. 

Having overruled the assigned errors, and because Hope does not 

otherwise challenge his felony convictions in the underlying cases, we affirm the 

convictions.

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 the Rules of Appellate Procedure.

____________________________________

SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE

JAMES A. BROGAN, J.,* CONCURS;

LISA B. FORBES, J., CONCURS IN JUDGMENT ONLY

*(Sitting by assignment: James A. Brogan, J., retired, of the Second District Court 

of Appeals.)

N.B. Judge Lisa B. Forbes is constrained to apply Delvallie. For a full explanation, 

see State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470 (Forbes, J., 

dissenting).