[Cite as State v. Starling, 2019-Ohio-1478.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 CLARK COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

NICHOLAS STARLING 

Defendant-Appellant 

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Appellate Case No. 2018-CA-34 

Trial Court Case No. 2017-CR-336 

(Criminal Appeal from 

Common Pleas Court) 

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O P I N I O N 

Rendered on the 19th day of April, 2019. 

. . . . . . . . . . . 

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark 

County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502

 Attorney for Plaintiff-Appellee 

 

TIMOTHY B. HACKETT, Assistant Ohio Public Defender, Atty. Reg. No. 0093480, 250 

East Broad Street, Suite 1400, Columbus, Ohio 43215 

 Attorney for Defendant-Appellant 

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WELBAUM, P.J. 
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{¶ 1} Defendant-appellant, Nicholas Starling, appeals from his conviction in the 

Clark County Court of Common Pleas following his guilty plea to one count of murder. 

For the reasons outlined below, Starling’s conviction will be affirmed. 

Facts and Course of Proceedings 

{¶ 2} In 2016, a then sixteen-year-old Starling was charged in the Juvenile Division 

of the Clark County Court of Common Pleas with acts that if committed by an adult would 

constitute murder in violation of R.C. 2903.02(A) and tampering with evidence in violation 

of R.C. 2921.12(A)(1). The charges arose from allegations that Starling killed his 15-

year-old brother, H., while at their residence in Springfield, Clark County, Ohio. 

Specifically, it was alleged that Starling hit H. on the head multiple times with a baseball 

bat and stabbed H. multiple times in the neck with a kitchen knife. It was further alleged 

that after killing H., Starling discarded the baseball bat behind a fence in his backyard and 

then hid the kitchen knife in his computer bag. 

{¶ 3} After Starling was charged in the juvenile court, the State moved for Starling’s 

case to be transferred to adult court. The matter was then scheduled for a probable 

cause hearing. Following that hearing, the juvenile court determined there was sufficient 

evidence to find probable cause to believe that Starling committed the criminal acts as 

charged. Given Starling’s age and the juvenile court’s probable cause finding, the 

juvenile court transferred Starling’s case to adult court pursuant to R.C. 

2152.12(A)(1)(a)(i). 

{¶ 4} Following Starling’s transfer to adult court, the Supreme Court of Ohio issued 
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its opinion in State v. Aalim, 150 Ohio St.3d 463, 2016-Ohio-8278, 83 N.E.3d 862 

(“Aalim I”). In Aalim I, the Supreme Court held that the mandatory-transfer statutes, R.C. 

2152.10(A) and R.C. 2152.12(A), were unconstitutional. Due to the holding in Aalim I, 

the adult court transferred Starling’s case back to juvenile court. 

{¶ 5} Once Starling’s case was transferred back to juvenile court, the juvenile court 

reaffirmed its probable cause finding and scheduled the matter for an amenability hearing. 

The amenability hearing was continued several times so that psychological experts could 

evaluate Starling. Meanwhile, the Supreme Court of Ohio accepted Aalim I for 

reconsideration and stayed the execution of judgment. Due to the uncertainty 

surrounding the holding in Aalim I, the parties agreed to an additional 60-day continuance 

in hopes that the Supreme Court would have by then clarified its position on the 

constitutionality of the mandatory-transfer statutes. 

{¶ 6} Shortly after the parties entered the agreed continuance, the Supreme Court 

issued its opinion in State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883 

(“Aalim II”). The Supreme Court’s decision in Aalim II vacated Aalim I and upheld the 

constitutionality of the mandatory-transfer statutes. In light of the Supreme Court’s 

decision in Aalim II, the State moved for the juvenile court to transfer Starling’s case back 

to adult court pursuant to the mandatory transfer provision in R.C. 2152.12(A)(1)(a)(i). 

Because the Supreme Court affirmed the constitutionality of R.C. 2152.12(A), and 

because the juvenile court previously found probable cause to believe that Starling had 

committed the criminal activity charged, the juvenile court granted the State’s motion and 

ordered the transfer of Starling’s case back to adult court without holding an amenability 

hearing. 
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{¶ 7} Once Starling’s case was transferred back to adult court, the Clark County 

Grand Jury returned an indictment charging Starling with one count of aggravated murder 

in violation of R.C. 2903.01(A), one count of murder in violation of R.C. 2903.02(A), three 

counts of felony murder in violation of R.C. 2903.02(B), and two counts of tampering with 

evidence in violation of R.C. 2921.12(A)(1). Starling thereafter entered pleas of not guilty 

and not guilty by reason of insanity. 

{¶ 8} After entering his pleas, Starling requested the trial court to order an 

evaluation to determine his competency to stand trial. Starling also filed a motion to 

suppress certain evidence and inculpatory statements that Starling made to detectives. 

During the investigation of H.’s death, Starling was twice interviewed by detectives without 

any guardian or attorney present. Both interviews occurred on the day H. was found 

dead. 

{¶ 9} At the first interview, Starling was not given Miranda warnings; however, it is 

undisputed that Starling made no inculpatory statements during the initial interview. 

Starling did, however, consent to detectives searching his bedroom and cell phone. 

Starling was permitted to go home after the first interview, but was called back four hours 

later for a second interview. 

{¶ 10} At the second interview, detectives Mirandized Starling after asking him a 

few preliminary questions. Upon being Mirandized, Starling stated that he understood 

his Miranda rights. Starling also signed a written waiver of those rights. After his 

Miranda waiver, Starling told detectives that he and H. had an argument over candy two 

days earlier. Although Starling initially denied knowledge of how H. was killed, upon 

further questioning, Starling confessed to entering H.’s bedroom, grabbing a baseball bat, 
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and hitting H. over the head 14 to 15 times while H. was asleep. Starling also confessed 

to stabbing H. in the neck two or three times with a kitchen knife. Starling told detectives 

that he then discarded the baseball bat over a fence in his back yard and hid the kitchen 

knife in his computer bag after cleaning it in the bathroom. 

{¶ 11} As part of his motion to suppress, Starling claimed that his confession was 

elicited in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 

(1966). Specifically, Starling argued that his youth, inexperience, and learning 

disabilities prevented his confession from being voluntarily entered. However, before the 

trial court ruled on the motion to suppress, Starling entered into a plea agreement with 

the State and pled guilty to murder in violation of R.C. 2903.02(A). In exchange for his 

guilty plea, the State agreed to dismiss the remaining charges against him. 

{¶ 12} After accepting Starling’s guilty plea, the trial court proceeded immediately 

to sentencing. During sentencing, the parties agreed that a prison sentence of 15 years 

to life was mandatory for Starling’s offense. Due to the mandatory nature of Starling’s 

sentence, the trial court ordered Starling to serve 15 years to life in prison. 

{¶ 13} Starling now appeals from his conviction, raising four assignments of error 

for review. 

First Assignment of Error 

{¶ 14} Under his First Assignment of Error, Starling contends that his trial counsel 

provided ineffective assistance by failing to file a motion to suppress at the probable cause 

hearing in juvenile court. Starling claims that his trial counsel should have moved to 

suppress his confession based on the same argument he raised in the motion to suppress 
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filed in adult court, i.e., that his confession was involuntary and obtained in violation of 

Miranda. Starling maintains that trial counsel’s failure to seek suppression of his 

confession at the probable cause hearing prejudiced him because that failure resulted in 

a flawed probable cause determination that invalidated his transfer to adult court. On 

that basis, Starling contends he was deprived of his right to effective assistance of 

counsel. We disagree. 

{¶ 15} Alleged instances of ineffective assistance of trial counsel are reviewed 

under the two-pronged analysis set forth in Strickland v. Washington, 466 U.S. 668, 687, 

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in 

State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To prevail on an ineffective 

assistance claim, a defendant must establish: (1) that his or her trial counsel’s 

performance was deficient and (2) that the deficient performance resulted in prejudice. 

Strickland at paragraph two of the syllabus; Bradley at paragraph two of the syllabus. 

The failure to make a showing of either deficient performance or prejudice defeats a claim 

of ineffective assistance of counsel. Strickland at 697. 

{¶ 16} To establish deficient performance, it must be shown that trial counsel’s 

performance fell below an objective standard of reasonable representation. Id. at 688. 

In evaluating counsel’s performance, “a court must indulge a strong presumption that 

counsel’s conduct falls within the wide range of reasonable professional assistance; that 

is, the defendant must overcome the presumption that, under the circumstances, the 

challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, quoting Michel 

v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955). 

{¶ 17} To establish prejudice, the defendant must demonstrate that there is “a 
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reasonable probability that, but for counsel’s errors, the proceeding’s result would have 

been different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, 

¶ 204, citing Strickland at 687-688 and Bradley at paragraph two of the syllabus. “ ‘A 

reasonable probability is a probability sufficient to undermine confidence in the 

outcome.’ ” Bradley at 142, quoting Strickland at 694. 

{¶ 18} “The failure to file a suppression motion is not per se ineffective assistance 

of counsel.” State v. Wilson, 2d Dist. Clark No. 08CA0045, 2009-Ohio-2744, ¶ 11, citing 

State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000). Accord State v. 

Thomas, 2d Dist. Clark No. 2010 CA 48, 2011-Ohio-1987, ¶ 15. “Rather, trial counsel’s 

failure to file a motion to suppress constitutes ineffective assistance of counsel only if the 

failure to file the motion caused Defendant prejudice; that is, when there is a reasonable 

probability that, had the motion to suppress been filed, it would have been granted.” 

(Citations omitted.) Wilson at ¶ 11; State v. Nields, 93 Ohio St.3d 6, 34, 752 N.E.2d 859 

(2001). 

{¶ 19} The State claims that Starling waived his ineffective assistance claim by 

pleading guilty to murder in adult court. In support of that argument, the State relies on 

the well-established principle that “[a] guilty plea waives the right to allege ineffective 

assistance of counsel, except to the extent the errors caused the plea to be less than 

knowing and voluntary.” State v. King, 2d Dist. Montgomery No. 23325, 2010-Ohio2839, ¶ 11, citing State v. Spates, 64 Ohio St.3d 269, 595 N.E.2d 351 (1992). The State 

maintains that Starling’s ineffective assistance claim is waived because he does not 

contend that trial counsel’s failure to file a motion to suppress at the probable cause 

hearing caused his guilty plea to be less than knowing and voluntary. 
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{¶ 20} We are, however, mindful of the fact that a guilty plea does not preclude 

claims that attack the trial court’s jurisdiction. State v. Vance, 2d Dist. Clark Nos. 09-CA115, 09-CA-116, 2010-Ohio-5757, ¶ 15-16, citing State v. Fitzpatrick, 102 Ohio St.3d 321, 

2004-Ohio-3167, 810 N.E.2d 927, ¶ 78-79; State v. Moore, 2d Dist. Montgomery No. 

22365, 2008-Ohio-4322, ¶ 12. Rather, “guilty pleas waive all non-jurisdictional defects 

in prior stages of the proceedings.” State v. Randle, 2d Dist. Montgomery No. 21931, 

2007-Ohio-2967, ¶ 3, citing Ross v. Common Pleas Court of Auglaize Cty., 30 Ohio St.2d 

323, 285 N.E.2d 25 (1972). 

{¶ 21} When a juvenile court improperly transfers jurisdiction over a juvenile to 

adult court, any subsequent conviction in adult court is void for lack of jurisdiction. State 

v. Washington, 2d Dist. Montgomery No. 20226, 2005-Ohio-6546, ¶ 14, citing State v. 

Wilson, 73 Ohio St.3d 40, 44, 652 N.E.2d 196 (1995). “Because a [transfer] proceeding 

pertains to the jurisdiction of the common pleas court, some courts have held that 

challenges to [a] juvenile court’s decision with respect to the R.C. 2152.12 factors 

pertaining to [transfer] are not waived through a guilty plea.” State v. Lewis, 9th Dist. 

Summit No. 27887, 2017-Ohio-167, ¶ 7, citing State v. Amos, 1st Dist. Hamilton No. C150265, 2016-Ohio-1319, ¶ 28 and State v. Legg, 2016-Ohio-801, 63 N.E.3d 424, ¶ 31, 

fn. 3 (4th Dist.). (Other citations omitted.) Accord State v. Brandeberry, 6th Dist. Lucas 

No. L-16-1137, 2017-Ohio-5676, ¶ 17 (“appellant, by entering a guilty plea, did not waive 

her right to raise a jurisdictional constitutional challenge with respect to the mandatory 

transfer provisions in R.C. 2152.10(A)(1)(a) and 2152.12(A)(1)(a)”); State v. Poole, 8th 

Dist. Cuyahoga No. 98153, 2012-Ohio-5739, ¶ 1, fn. 1 (“[a] guilty plea made following a 

bindover or transfer from the juvenile division does not waive the right to appeal the 
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bindover or transfer”). 

{¶ 22} But other courts, including this one, have held that constitutional challenges 

to juvenile transfer proceedings are waived when the defendant pleads guilty and does 

not contest validity of his plea. See, e.g., State v. Brookshire, 2d Dist. Montgomery No. 

25853, 2014-Ohio-1971, ¶ 29; State v. Bradford, 5th Dist. Stark No. 2013 CA 00124, 

2014-Ohio-904, ¶ 76-79; State v. Quarterman, 9th Dist. Summit No. 26400, 2013-Ohio3606, ¶ 3-6 (finding defendants were prevented from arguing on appeal that R.C. 

2152.10(A)(2)(b) and 2152.12(A)(1)(b) violated their constitutional rights to due process, 

equal protection, and to be free from cruel and unusual punishment, because the 

defendants pled guilty to the charges against them and did not contest the validity of their 

plea). However, none of those cases involved claims of ineffective assistance of 

counsel. 

{¶ 23} In this case, Starling’s ineffective assistance claim indirectly attacks the 

jurisdiction of the adult court. Specifically, Starling argues that if his trial counsel had, at 

the probable cause hearing, filed a motion to suppress his confession, his confession 

would have been suppressed and there would have been no basis for the juvenile court 

to find probable cause to believe he committed the criminal acts in question. Without a 

probable cause finding, Starling maintains that there would have been no basis for his 

mandatory transfer to adult court under R.C. 2152.12(A)(1)(a)(i). Starling therefore 

claims his transfer to adult court would have been improper and thus a jurisdictional error 

that was not waived by his guilty plea. 

{¶ 24} Assuming, arguendo, that Starling’s guilty plea did not waive his ineffective 

assistance of counsel claim, we nevertheless find no merit to his claim. See Legg, 2016-
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Ohio-801, 63 N.E.3d 424 at ¶ 60-61 (appellate court assumes, arguendo, that an 

ineffective assistance claim similar to Starling’s was not waived by a guilty plea). This is

because trial counsel’s failure to file a motion to suppress at the probable cause hearing 

did not amount to deficient performance or result in any prejudice to Starling. 

{¶ 25} As previously noted, Starling’s probable cause hearing was held pursuant 

to R.C. 2152.12(A)(1)(a)(i). Pursuant to that statute, and as relevant here, a child 16 or 

17 years of age who is charged with an act that would constitute murder if committed by 

an adult shall be transferred to adult court if at a hearing the juvenile court finds there is 

probable cause to believe the juvenile committed the act charged. 

{¶ 26} “[A] probable cause hearing held before a juvenile court’s transfer to adult 

court is a preliminary, non-adjudicatory proceeding[.]” Matter of B.W., 2017-Ohio-9220, 

103 N.E.3d 266, ¶ 18 (7th Dist.), citing Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 

L.Ed.2d 346 (1975), fn. 18, and State v. Carmichael, 35 Ohio St.2d 1, 7-8, 298 N.E.2d 

568 (1973). Accord State v. Gilbert, 6th Dist. Lucas No. L-03-1273, 2005-Ohio-2350, ¶ 

11; In re A.M., 139 Ohio App.3d 303, 308, 743 N.E.2d 937 (8th Dist.2000); State v. 

Whisenant, 127 Ohio App.3d 75, 85, 711 N.E.2d 1016 (11th Dist.1998). This proceeding 

is non-adjudicatory because “the juvenile court’s function is not to determine whether the 

juvenile is guilty of the charge[,] but is to determine whether there is probable cause to 

believe the juvenile is guilty.” (Emphasis omitted.) B.W. at ¶ 18, citing State v. Iacona, 

93 Ohio St.3d 83, 93, 752 N.E.2d 937 (2001). 

{¶ 27} Because a probable cause hearing is non-adjudicatory, the evidence 

presented at a probable hearing need not meet the same rigorous standards for 

admissibility at trial. See Whisenant at 85, quoting In re Ralph M., 211 Conn. 289, 559 
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A.2d 179 (1989) (“ ‘[statutory and] constitutional questions concerning the admissibility of 

[a juvenile’s] statements raised by the [state], while relevant at a later adjudicatory 

proceeding, are not appropriate for resolution at a transfer [i.e., bindover] hearing’ ”). 

See also B.W. at ¶ 41, 48 (holding that the confrontation clause standards for the 

admissibility of evidence and the Ohio Rules of Evidence do not apply to probable cause 

hearings that are held prior to transferring a juvenile to adult court); State v. Grays, 1st 

Dist. Hamilton No. C-790914, 1981 WL 9566, *1 (Jan. 14, 1981) (“it cannot seriously be 

argued that testimony inadmissible at trial under the rules of evidence cannot be 

considered in a preliminary proceeding such as [a probable cause hearing in juvenile 

court]”). See generally Brinegar v. United States, 338 U.S. 160, 174, 69 S.C.t. 1302, 93 

L.Ed. 1879 (1949) (discussing the different standards and latitude allowed in determining 

probable cause versus guilt and indicating a lesser standard is required for probable 

cause). 

{¶ 28} In Whisenant, the Eleventh District Court of Appeals specifically noted that 

because juvenile probable cause hearings are not adjudicatory in nature, “statutory and 

constitutional questions concerning the admissibility of evidence are premature and need 

not be addressed.” Whisenant at 85. Based on that reasoning, the court in Whisenant

concluded that “[f]undamental fairness and due process are not violated by the juvenile 

court’s failure to rule on or to suppress evidence obtained in alleged violation of Miranda 

in [a probable cause/bindover proceeding].” Id. Therefore, Whisenant stands for the 

proposition that evidence that might otherwise be suppressed at trial on the basis of a 

Miranda violation is nevertheless admissible during a probable cause hearing held in 

juvenile court. 
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{¶ 29} The Supreme Court of Ohio has also held that motions to suppress 

evidence do not lie at preliminary hearings, but rather become ripe for determination only 

after arraignment and prior to trial. State v. Mitchell, 42 Ohio St.2d 447, 329 N.E.2d 682 

(1975), syllabus; accord In re C.G., 8th Dist. Cuyahoga No. 97950, 2012-Ohio-5286, ¶ 39, 

fn. 2 (“motions to suppress are not to be addressed at a probable cause hearing”). 

Although Mitchell did not specifically address a probable cause hearing held in juvenile 

court, it did concern a preliminary hearing in adult court where, under Crim.R. 5, the trial 

court had to determine whether probable cause existed to believe the defendant 

committed a criminal act. Mitchell at 450-451. Given the substantially similar nature of 

the two hearings, we find that Mitchell supports the conclusion that it is improper to file a 

motion to suppress during a preliminary probable cause hearing in juvenile court. 

{¶ 30} Although the Supreme Court of Ohio has made it clear that “the juvenile 

court must evaluate the quality of the evidence presented by the state in support of 

probable cause as well as any evidence presented by the respondent that attacks 

probable cause[,]” Iacona, 93 Ohio St.3d at 93, 752 N.E.2d 937, citing Kent v. United 

States, 383 U.S. 541, 563, 86 S.Ct. 1045, 16 L.Ed.2d 84, such an evaluation does not 

include entertaining motions to suppress. Mitchell at 450-451. In Mitchell, the Supreme 

Court noted that only evidence that is “clearly excludable under the rules of evidence 

prevailing in criminal trials” should, upon appropriate objection, be excluded by a 

magistrate when determining whether there is probable cause to believe a crime has been 

committed, but that such evidence may never be suppressed. Id. at 451. 

{¶ 31} After reviewing the video evidence of Starling’s confession, we do not find 

that the confession was clearly excludable. The confession was made while Starling 
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appeared coherent and after detectives read Starling his Miranda rights and obtained a 

signed, written waiver of those rights. The fact that Starling contends his confession was 

involuntary and obtained in violation of Miranda is a question that was not ripe for review 

at the non-adjudicatory probable cause hearing. We note that “the evidence presented 

at the probable cause hearing ‘does not have to be unassailable’ to qualify as credible.” 

B.W., 2017-Ohio-9220, 103 N.E.3d 266, at ¶ 21, quoting In re A.J.S., 120 Ohio St.3d 185, 

2008-Ohio-5307, 897 N.E.2d 629, ¶ 46, citing Iacona at 93. 

{¶ 32} Based on the foregoing, we find that filing a motion to suppress for purposes 

of Starling’s probable cause hearing would have been premature and improper. 

Therefore, trial counsel’s decision not to file a motion to suppress at the probable cause 

hearing was warranted and a matter of sound trial strategy that cannot serve as the basis 

for an ineffective assistance claim. Accordingly, based on the facts and circumstances 

here, Starling has failed to establish deficient performance on the part of his trial counsel. 

{¶ 33} Starling has also failed to establish that he was prejudiced by trial counsel’s 

failure to file a motion to suppress. Regardless of any potential Miranda violation, it 

would have been inappropriate for the juvenile court to suppress Starling’s confession 

when making its probable cause determination. This is because, as noted above, the 

admissibility of Starling’s confession was not yet ripe for review at the non-adjudicatory 

probable cause hearing. Therefore, given the facts and circumstances of this case, there 

is not a reasonable probability that the juvenile court would have granted a motion to 

suppress at that stage of the proceedings. 

{¶ 34} Starling’s First Assignment of Error is overruled. 
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Second Assignment of Error 

{¶ 35} Under his Second Assignment of Error, Starling challenges the juvenile 

court’s probable cause determination that was made pursuant to R.C. 2152.12(A)(1)(a)(i). 

Specifically, Starling argues that the juvenile court’s decision finding probable cause to 

believe that he murdered H. and tampered with evidence should be reversed because 

said finding was not supported by sufficient evidence and was against the manifest weight 

of the evidence. We disagree. 

{¶ 36} “[A] juvenile court’s probable-cause determination in a mandatory-bindover 

proceeding involves questions of both fact and law, and thus, we defer to the trial court’s 

determinations regarding witness credibility, but we review de novo the legal conclusion 

whether the state presented sufficient evidence to demonstrate probable cause to believe 

that the juvenile committed the acts charged.” A.J.S., 120 Ohio St.3d 185, 2008-Ohio5307, 897 N.E.2d 629, at ¶ 51. 

{¶ 37} “ ‘[T]he state must provide credible evidence of every element of an offense 

to support a finding that probable cause exists to believe that the juvenile committed the 

offense before ordering mandatory waiver of juvenile court jurisdiction pursuant to [R.C. 

2152.12(A)(1)(a) ].’ ” Id. at ¶ 42, quoting Iacona, 93 Ohio St.3d at 93, 752 N.E.2d 937. 

“ ‘In meeting this standard the state must produce evidence that raises more than a mere 

suspicion of guilt, but need not provide evidence proving guilt beyond a reasonable 

doubt.’ ” Id., quoting Iacona at 93. In other words, “the standard of probable cause is a 

fair probability, not a prima facie showing, of criminal activity.” (Citations omitted.) State 

v. Grimes, 2d Dist. Greene No. 2009-CA-30, 2010-Ohio-5385, ¶ 16. 

{¶ 38} As previously noted, Starling was charged in the juvenile court with 
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committing acts that, if committed by an adult, would constitute murder in violation of R.C. 

2903.02(A) and tampering with evidence in violation of R.C. 2921.12(A)(1). A person 

commits the crime of murder when he purposefully causes the death of another. R.C. 

2903.02(A). A person commits the crime of tampering with evidence when the person 

“know[s] that an official proceeding or investigation is in progress, or is about to be or 

likely to be instituted” and “conceal[s], or remove[s] any record, document, or thing, with 

purpose to impair its value or availability as evidence in such proceeding or 

investigation[.]” R.C. 2921.12(A)(1). 

{¶ 39} In an effort to establish probable cause for the charges against Starling, the 

State presented the testimony of Detective Ronald Jordan and Sergeant Jeffrey Flores of 

the Springfield Police Department. The State also presented the testimony of Dr. Mary 

Elizabeth Goolsby of the Coroner’s Office. In addition, the State presented a video 

recording of the second interview Starling had with detectives and the written Miranda

waiver signed by Starling. The State also presented photographs of Starling’s residence, 

H.’s deceased body, the murder weapons, and H.’s autopsy. 

{¶ 40} At the probable cause hearing, Detective Jordan testified that he conducted 

Starling’s second interview and that Starling confessed to killing H. Both the video 

recording of the second interview and Jordan’s testimony establish that Starling told 

Jordan he entered H.’s bedroom, grabbed a baseball bat, and struck H. in the head 14 to 

15 times while H. was lying in bed asleep. After Starling admitted to hitting H. with the 

baseball bat, Starling told Jordan that H. began making a weird sound. In order to stop 

the sound, Starling told Jordan that he went into the kitchen, grabbed a knife from the 

butcher block, and stabbed H. in the neck two or three times. 
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{¶ 41} Following the stabbing, Starling told Jordan that he climbed out of H.’s 

bedroom window and placed the baseball bat over a fence in the backyard. From there, 

Starling informed Jordan that he climbed back through H.’s bedroom window and went 

into the bathroom to clean the knife. Thereafter, Starling also told Jordan that he placed 

the knife in his computer bag. 

{¶ 42} To corroborate Starling’s confession, the State presented Sergeant Flores, 

who testified to discovering a baseball bat covered in blood on the other side of a fence 

located in the backyard of Starling’s residence. In addition to Sergeant Flores’s 

testimony, Detective Jordan testified to discovering a knife that appeared to have some 

blood on it inside Starling’s computer bag.1 Jordan testified that both the baseball bat 

and the knife were sent to the Bureau of Criminal Investigation for DNA testing and that 

the test results were pending. 

{¶ 43} Detective Jordan also testified that he reviewed video footage taken from a 

surveillance system inside Starling’s residence between approximately 9 p.m. and 6 a.m. 

on the night of H.’s murder. Jordan testified that the video footage showed Starling 

leaving his bedroom and going toward the area of H.’s bedroom. Jordan also testified 

that the video footage later showed Starling leaving the area of H.’s bedroom and then 

entering the bathroom for a significant period of time. Although Jordan testified that he 

could not see whether Starling was carrying a knife due to the angle of the camera, Jordan 

nevertheless testified that the video footage was consistent with Starling’s confession. 

Jordan also testified that no other person was seen on the video entering the residence 

 

1 The video evidence indicates that Jordan received Starling’s consent to search the 

computer bag during the interview. Jordan presented a written consent form to Starling, 

which Starling signed during the interview.
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with a baseball bat or other weapon. 

{¶ 44} The testimony of Dr. Goolsby, the coroner who performed the autopsy on 

H.’s body, also corroborated Starling’s confession. Goolsby testified that the cause of 

H.’s death was blunt force injuries to the head and multiple sharp force injuries to the 

neck. Goolsby testified that the injuries to H.’s head were possibly consistent with being 

inflicted by a baseball bat and that H. was struck in the head more than twice. Goolsby 

also testified that the injuries to H.’s neck were possibly consistent with being stabbed 

with a knife. 

{¶ 45} Based on the foregoing evidence, we find that the State presented sufficient 

evidence of probable cause to believe that Starling murdered H. and tampered with the 

murder weapon evidence. That is, the evidence presented by the State raised more than 

a mere suspicion of Starling’s guilt. Starling’s recorded confession combined with the 

testimony concerning the bloody baseball bat, knife, surveillance video, and the nature of 

H.’s injuries indicated that there was a fair probability that Starling committed the criminal 

acts in question. 

{¶ 46} Starling’s claim that the probable cause determination was otherwise 

against the manifest weight of the evidence also lacks merit. “[O]nce the State has 

established probable cause as to each element of the offense charged, the State has 

satisfied its burden, and the juvenile court must bindover the case.” State v. Hairston, 

10th Dist. Franklin No. 08AP-735, 2009-Ohio-2346, ¶ 19, citing A.J.S., 120 Ohio St.3d 

185, 2008-Ohio-5307, 897 N.E.2d 629, at ¶ 46, citing Iacona, 93 Ohio St.3d at 93, 95, 

752 N.E.2d 937. “[T]he state has no burden to disprove alternate theories of the case at 

a bindover proceeding.” A.J.S. at ¶ 61, citing Iacona at 96. Accord, In re R.N., 6th Dist. 
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Lucas No. L-17-1301, 2018-Ohio-5006, ¶ 16. Rather, “[t]hat question would be reserved 

for ultimate adjudication by the trier-of-fact at trial in the general division of the common 

pleas court.” Hairston at ¶ 19, citing A.J.S. Therefore, based on these principles, a 

manifest weight analysis has no place in reviewing a juvenile court’s probable cause 

determination. 

{¶ 47} Starling’s Second Assignment of Error is overruled. 

Third Assignment of Error 

{¶ 48} Under his Third Assignment of Error, Starling contends that when his case 

was transferred back to juvenile court pursuant to Aalim I, 150 Ohio St.3d 463, 2016-

Ohio-8278, 83 N.E.3d 862, the juvenile court violated his right to due process by delaying 

his amenability hearing until the Supreme Court of Ohio issued its opinion vacating Aalim I

in Aalim II, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883. Starling also contends 

that his trial counsel was ineffective in failing to object to the delay. We disagree. 

{¶ 49} In Aalim I, the Supreme Court of Ohio declared that due process requires 

an amenability hearing to be held before any juvenile is transferred to adult court. Id. at 

¶ 20, 24-25. Because the mandatory-transfer statutes, R.C. 2152.10(A) and R.C. 

2152.12(A), provide for the automatic transfer of a juvenile to adult court without an 

amenability hearing, the court in Aalim I held that the mandatory-transfer statutes were 

unconstitutional and severed them. Id. at ¶ 29. Given the severance of the mandatorytransfer statutes, the Supreme Court indicated that transfers of juveniles previously 

subject to mandatory transfer may occur pursuant to the discretionary-transfer provisions 

in R.C. 2152.10(B) and R.C. 2152.12(B) because those provisions require an amenability 
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hearing. Id. at ¶ 27-29.

{¶ 50} Aalim I was issued approximately one month after the juvenile court initially 

ordered the mandatory transfer of Starling’s case to adult court pursuant to R.C. 

2152.12(A). As a result of the Supreme Court’s decision in Aalim I, the State and Starling 

filed concurring motions in the adult court that requested Starling’s case be remanded 

back to juvenile court for discretionary transfer proceedings, i.e., an amenability hearing. 

The adult court granted the motions and remanded Starling’s case back to juvenile court. 

{¶ 51} On remand, the juvenile court issued an entry that reiterated its finding of 

probable cause and scheduled the matter for an amenability hearing on February 2, 2017. 

Although Starling had previously undergone a psychological evaluation on the issue of 

amenability, the State filed a motion to continue the amenability hearing so that Starling 

could undergo a second psychological evaluation by a different expert. Starling opposed 

the motion, but the juvenile court ultimately granted the State’s request and rescheduled 

the amenability hearing for March 7, 2017. 

{¶ 52} Shortly after the continuance was granted, on February 22, 2017, the 

Supreme Court accepted a motion filed by the State to reconsider and stay the court’s 

judgment in Aalim I. Despite the stay of judgment in Aalim I, the parties in Starling’s case 

agreed to proceed with the March 7, 2017 amenability hearing. Starling thereafter 

moved the juvenile court for another continuance of the amenability hearing so that a third 

psychological evaluation could be conducted. The motion was sustained and the 

juvenile court continued the amenability hearing to April 6, 2017. Starling then requested 

a third continuance because his expert could not complete the evaluation by the 

scheduled hearing date. That request was also sustained, and the amenability hearing 
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was again rescheduled for May 11, 2017. 

{¶ 53} The May 11, 2017 amenability hearing was vacated after both parties 

agreed to continue the hearing for an additional 60 days. The parties agreed to the 60-

day continuance in hopes that the Supreme Court would have by then clarified its position 

on the mandatory-transfer statutes. Shortly after the parties’ agreement, the Supreme 

Court issued Aalim II, which vacated Aalim I. The Supreme Court concluded in Aalim II

that the mandatory-transfer statutes, R.C. 2152.10(A) and R.C. 2152.12(A), were 

constitutional. Aalim II, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883 at ¶ 38. 

{¶ 54} Following the decision in Aalim II, the State moved for the juvenile court to 

transfer Starling’s case back to adult court pursuant to the mandatory transfer provision 

in R.C. 2152.12(A)(1)(a)(i). Because the Supreme Court affirmed the constitutionality of 

R.C. 2152.12(A), and because the juvenile court previously found probable cause to 

believe that Starling had committed the criminal activity charged, the juvenile court 

granted the State’s motion and ordered the transfer of Starling’s case back to adult court 

without holding an amenability hearing. 

{¶ 55} As previously noted, Starling claims that the juvenile court’s decision to 

delay the amenability hearing violated his right to due process. “ ‘The touchstone of due 

process is fundamental fairness.’ ” State v. Salmons, 2d Dist. Champaign No. 

2003CA21, 2004-Ohio-3773, ¶ 11, quoting State v. Mynhier, 146 Ohio App.3d 217, 221, 

765 N.E.2d 917 (1st Dist.2001), overruled on other grounds, State v. Jackson, 1st Dist. 

Hamilton No. C-140384, 2015-Ohio-2171, ¶ 14. “Whether appellant was afforded due 

process, or fundamental fairness, is highly dependent upon the particular circumstances 

of the situation.” State v. Crist, 2d Dist. Montgomery No. CA 9624, 1987 WL 14272, *2 
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(July 10, 1987). 

{¶ 56} Here, the delay in holding Starling’s amenability hearing was due to the 

juvenile court’s granting four continuances, two of which were requested by Starling, and 

one of which was agreed to by the parties. “ ‘The grant or denial of a continuance is a 

matter that is entrusted to the broad, sound discretion of the trial judge’ ” State v. 

Harmon, 2d Dist. Clark No. 09CA0035, 2010-Ohio-836, ¶ 7, quoting State v. Unger, 67 

Ohio St.2d 65, 423 N.E.2d 1078 (1981), syllabus. 

{¶ 57} In exercising its discretion, the juvenile court granted the first three 

continuances so that the parties could obtain psychological evaluations for the 

amenability hearing. The fourth continuance was granted so that the parties could await 

the outcome of Aalim II. Under these circumstances, we do not find that the 

continuances were an abuse of discretion or that they were fundamentally unfair so as to 

violate Starling’s right to due process. 

{¶ 58} Starling also claims that his trial counsel was ineffective in agreeing to a 60-

day continuance of the amenability hearing for purposes of awaiting the Supreme Court’s 

decision in Aalim II. According to Starling, his trial counsel should have objected to any 

further delay and pushed for the amenability hearing to take place under the authority of 

Aalim I, regardless of the stay that was placed on that judgment. But, as we previously 

discussed, to prevail on an ineffective assistance claim, a defendant must establish: (1) 

that his or her trial counsel’s performance was deficient and (2) that the deficient 

performance resulted in prejudice. Strickland, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 

L.Ed.2d 674, at paragraph two of the syllabus; Bradley, 42 Ohio St.3d 136, 538 N.E.2d 

373, at paragraph two of the syllabus. Starling has established neither, thus his 
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ineffective assistance claim necessarily fails. 

{¶ 59} With regard to deficient performance, the fact that trial counsel agreed to a 

60-day continuance of the amenability hearing in hopes that the Supreme Court would 

have by then clarified its position on the mandatory-transfer statutes was a matter of trial 

strategy that cannot form the basis of an ineffective assistance claim. State v. Wynn, 2d 

Dist. Montgomery No. 25097, 2014-Ohio-420, ¶ 90, quoting State v. Warner, 8th Dist. 

Cuyahoga No. 95750, 2012-Ohio-256, ¶ 11, citing State v. Pasqualone, 121 Ohio St.3d 

186, 2009-Ohio-315, 903 N.E.2d 270 and State v. Frazier, 115 Ohio St.3d 139, 2007-

Ohio-5048, 873 N.E.2d 1263 (“the decision whether to request a trial continuance is 

debatable, and involves a strategic choice of counsel that falls ‘within the realm of trial 

strategy and tactics that will not ordinarily be disturbed on appeal’ ”). “ ‘Debatable trial 

tactics generally do not constitute a deprivation of effective counsel.’ ” State v. Phillips, 

74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995), citing State v. Clayton, 62 Ohio St.2d 45, 

49, 402 N.E.2d 1189 (1980). “[T]he fact that there was another and better strategy 

available does not amount to a breach of an essential duty to [one’s] client.” Clayton at 

49. 

{¶ 60} With regard to prejudice, Starling cannot establish a reasonable probability 

that the outcome of his case would have been different had his counsel objected to the 

60-day continuance. Despite any such objection, the juvenile court still could have 

ordered a continuance for the purpose of awaiting the decision in Aalim II. Even if such 

an objection was suatained and an amenability hearing was held, there is nothing in the 

record to indicate that the juvenile court would have found Starling amenable to the 

juvenile justice system following such a hearing. Although two out of the three 
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psychological experts that evaluated Starling opined that Starling was amenable to 

rehabilitation in the juvenile justice system, that decision was ultimately left to the juvenile 

court. There was no guarantee that the juvenile court would have reached the same 

conclusion following an amenability hearing. Therefore, Starling’s claim of prejudice 

rests on mere speculation. It is well established that “[s]uch speculation is insufficient to 

establish ineffective assistance.” State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 

952 N.E.2d 1121, ¶ 119, quoting State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 

920 N.E.2d 104, ¶ 217. (Other citations omitted.) 

{¶ 61} Starling’s Third Assignment of Error is overruled. 

Fourth Assignment of Error 

{¶ 62} Under his Fourth Assignment of Error, Starling contends that R.C. 

2929.02(B)(1), which imposes an indefinite prison sentence of 15 years to life for murder, 

is unconstitutional as applied to juveniles. Specifically, Starling argues that R.C. 

2929.02(B)(1) violates the Eighth Amendment protection against cruel and unusual 

punishment because it imposes a specific sentence without regard to the defendant’s 

status and precludes the sentencing court from considering mitigating factors such as the 

defendant’s youth and capacity for change. We disagree. 

{¶ 63} As a preliminary matter, we note that Starling forfeited any arguments about 

the constitutionality of R.C. 2929.02(B)(1) by failing to raise them before the trial court. 

Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 15. Nevertheless, 

this court has discretion to consider a forfeited constitutional challenge to a statute under 

a plain error standard of review. Id. at ¶ 16. In such a situation, a defendant must show 
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“that but for a plain or obvious error, the outcome of the proceeding would have been 

otherwise, and reversal must be necessary to correct a manifest miscarriage of justice.” 

Id., citing State v. Davis, 127 Ohio St.3d 268, 2010-Ohio-5706, 939 N.E.2d 147, ¶ 29. 

{¶ 64} Upon review, we find that Starling failed to establish that the trial court 

committed a plain or obvious error for which a reversal is required to correct a manifest 

miscarriage of justice. 

{¶ 65} In arguing that R.C. 2929.02(B)(1) is unconstitutional, Starling relies on 

Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Miller involved 

two cases wherein two 14-year-old defendants were convicted of murder and sentenced 

to life in prison without the possibility of parole. Id. at 465. Because state law mandated 

those sentences, the sentencing court did not have any discretion to impose a different 

punishment. Id. The United States Supreme Court found that “such a scheme prevents 

those meting out punishment from considering a juvenile’s ‘lessened culpability’ and 

greater ‘capacity for change,’ and runs afoul of our cases’ requirement of individualized 

sentencing for defendant’s facing the most serious penalties.” Id., quoting Graham v. 

Florida, 560 U.S. 48, 68, 74, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). As a result, the 

court in Miller held “that mandatory life without parole for those under the age of 18 at the 

time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual 

punishments.’ ” (Emphasis added.) Id. 

{¶ 66} In State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, the 

Supreme Court of Ohio followed Miller and held that “[a] court, in exercising its discretion 

under R.C. 2929.03(A), must separately consider the youth of a juvenile offender as a 

mitigating factor before imposing a sentence of life without parole.” (Emphasis added.) 
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Long at paragraph one of the syllabus. 

{¶ 67} Unlike the sentences at issue in Miller and Long, Starling was not sentenced 

to life in prison without the possibility of parole. Rather, Starling will be considered for 

parole after having served 15 years in prison. This court has consistently refused to 

extend the rationale in Miller and Long to sentences like Starling’s where parole is 

afforded. See, e.g., State v. Zimmerman, 2d Dist. Clark Nos. 2015-CA-62 and 2015-CA63, 2016-Ohio-1475, ¶ 16-24; State v. Hawkins, 2015-Ohio-5383, 55 N.E.3d 505, ¶ 11-

16 (2d Dist.); State v. Jones, 2d Dist. Montgomery No. 26333, 2015-Ohio-3506, ¶ 1-2. 

See also, State v. Terrell, 8th Dist. Cuyahoga No. 103428, 2016-Ohio-4563, ¶ 12-18. 

{¶ 68} This court has also rejected the argument that mandatory sentences 

imposed on juveniles in adult court are invalid as a violation of the Eighth Amendment. 

State v. Anderson, 2d Dist. Montgomery No. 26525, 2016-Ohio-135, ¶ 34 (noting that 

Long did not suggest that “the Eighth Amendment or Article I, Section 9 prohibit any and 

all mandatory sentences on juveniles tried in adult court”). Accord Zimmerman at ¶ 25-

26. 

{¶ 69} Our review of cases decided by both the Supreme Court of Ohio and the 

United States Supreme Court after Miller shows no indication that the holding in Miller 

has been extended to situations like in the present case. Simply put, since Starling is 

eligible for parole, the holdings in Miller and Long do not apply. Therefore, because the 

holdings in Miller and Long do not apply to the case at bar, Starling has failed to establish 

plain error for which a reversal is required to correct a manifest miscarriage of justice. 

{¶ 70} Starling’s Fourth Assignment of Error is overruled. 
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Conclusion 

{¶ 71} Having overruled all assignments of error raised by Starling, the judgment 

of the trial court is affirmed. 

. . . . . . . . . . . . . 

FROELICH, J., concurs: 

{¶ 72} I disagree with the suggestion that the filing of a motion to suppress at the 

juvenile court’s probable cause stage is always inappropriate or that the juvenile court 

never has the jurisdiction to rule on such a motion. 

{¶ 73} The probable cause hearing preceding a bindover determination in juvenile 

court is fundamentally different from probable cause determinations for arrest, pre-trial 

detention, bindover from adult misdemeanor court, grand jury proceedings, etc. The 

juvenile court has exclusive jurisdiction over children alleged to be delinquent for 

committing acts that would constitute a crime if committed by an adult and the removal of 

such allegations to adult court is entitled to a higher level of due process. 

{¶ 74} Regardless, I agree on the facts before us that Starling has not shown that 

his counsel was deficient in not filing a motion to suppress in juvenile court or that such 

failure, even if deficient, prejudiced him. 

DONOVAN, J., concurs: 

{¶ 75} I concur in Judge Welbaum’s opinion and in Judge Froelich’s concurring 

opinion. 

 
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. . . . . . . . . . . . . 

Copies sent to: 

Andrew P. Pickering 

Timothy B. Hackett 

Hon. Douglas M. Rastatter