[Cite as State v. Mascus,
2025-Ohio-240.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-240089
TRIAL NO. B-2304123
Plaintiff-Appellee, :
vs. :
JESSE MASCUS, : OPINION
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: January 29, 2025
Connie M. Pillich, Hamilton County Prosecuting Attorney, and John D. Hill, Jr.,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Elizabeth R. Miller, Ohio Public Defender, and Victoria Ferry, Assistant Public
Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
WINKLER, Judge.
{¶1} Defendant-appellant Jesse Mascus appeals from the judgment of the
Hamilton County Court of Common Pleas convicting him, after a guilty plea, of murder
in violation of R.C. 2903.01(A). Mascus pushed his way into his girlfriend’s apartment,
walked into a darkened bedroom, and fired his gun 12 times. T.S., a 17-year-old asleep
in the room, was hit multiple times and later died from his injuries but not before
having both of his legs amputated in an effort to save his life. Mascus was 15 years old
when he committed this offense. Raising two assignments of error related to the
transfer of his case from juvenile court to adult court, Mascus contends that his trial
counsel was ineffective and the juvenile court abused its discretion in determining that
he was not amenable to rehabilitation in the juvenile court system. We are
unpersuaded, and affirm the trial court’s judgment.
I. Factual and Procedural History
{¶2} In the early morning hours of February 18, 2023, Mascus and his friend
took an Uber to his on-again/off-again girlfriend’s apartment. His friend later told
police that Mascus had asked him if he wanted to hang out and “chill with some
females,” and his friend agreed, but then, during the car ride to the apartment, Mascus
started acting “hot shit crazy.” Once they arrived, Mascus, knowing the code to the
apartment building, entered the building and knocked on the apartment door. When
his girlfriend started to open the door, Mascus, brandishing a gun, shoved open the
door, pushed his girlfriend out of the way, walked back to one of the darkened
bedrooms, and, without turning on the lights, fired 12 shots into the room, and then
fled. T.S., a 17-year-old friend of the family had been sleeping in that room and was
shot nine times: twice in the groin, once in each thigh, once in the chest, twice in the
back, once in his right arm, and once in the face, near his mouth. Despite these
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numerous wounds, T.S. lived for two more weeks. During that time, in an attempt to
save him, doctors amputated T.S.’s left leg at the hip and his right leg at the knee. An
infant boy was also sleeping in the bedroom and a bullet grazed his upper thigh and
injured his testicle.
{¶3} Mascus’s girlfriend identified him as the shooter. His girlfriend told
police that Mascus had believed that she had “another guy” over at her apartment that
night. She said he had threatened to come over earlier in the evening and “shoot the
place up” but she did not take his comment seriously because he had threatened her
in the past but had not followed through.
{¶4} At the time of these offenses, Mascus had been “AWOL” from Hillcrest
Academy, a residential treatment facility for delinquent juveniles, after he had cut off
his electronic monitoring unit and escaped in October 2022. He had been staying at
various friends’ homes since then.
{¶5} A few days after the shooting, police apprehended Mascus in the parking
lot of a casino and discovered that he had a gun on him; however, it was not the gun
used to shoot T.S. and the baby.
{¶6} A delinquency complaint was filed in juvenile court with various charges
including aggravated murder, murder, felonious assault, aggravated burglary,
carrying a concealed weapon, and escape. The State moved for a discretionary transfer
of the case to adult court. Following the first hearing on the State’s motion, the
juvenile court found that there was probable cause that Mascus was the person who
had committed these offenses. The court then ordered Mascus to undergo an
evaluation by a court-appointed psychologist, Dr. Nicole Leisgang, to determine if he
was amenable to rehabilitation in the juvenile court system.
{¶7} At the amenability hearing, Dr. Leisgang’s report was admitted into
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OHIO FIRST DISTRICT COURT OF APPEALS
evidence. The report indicates that Mascus has had significant contact with the
juvenile court system for the past three years including prior delinquencies and
associated struggles with consistently following court-ordered sanctions as well as a
long history of disruptive behavior in the school setting despite intervention efforts.
Ultimately, Dr. Leisgang opined that Mascus was not amenable to rehabilitation in the
juvenile court system, noting the presence of high risk factors associated with future
delinquent and violent behavior including, “[a] history of [exposure to] violence,
history of nonviolent offending, early initiation of violence, past
intervention/supervision failures, caregiver criminality, poor school achievement . . .
peer delinquency . . . anger management problems [and] low interest/commitment to
school.”
{¶8} At the hearing, Mascus’s trial counsel noted that defense counsel often
seek a second evaluation and opinion of their juvenile client’s amenability, but
explained why he chose not to do so here: he believed that a second evaluation
requested by the defense was not confidential (unlike the court-ordered evaluation)
and in his personal experience, when representing former clients, the prosecution
would use statements made by a juvenile defendant during the second evaluation
against the juvenile defendant in adult court. He then argued that Mascus was only 16
years old, which left five years to rehabilitate him within the juvenile court system, and
that the court should take the opportunity to do so because this was Mascus’s first
violent offense. He also explained that Mascus had escaped from Hillcrest Academy
because he did not feel safe there after being attacked several times.
{¶9} After considering Dr. Leisgang’s report and the arguments of counsel,
the juvenile court found that Mascus was not amenable to rehabilitation and
transferred jurisdiction of the case to the common pleas court. There, Mascus entered
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OHIO FIRST DISTRICT COURT OF APPEALS
a guilty plea to one count of murder in exchange for dismissing the other charges and
was sentenced to 15 years to life in prison. He now appeals.
II. Assignments of Error
{¶10} In his first assignment of error, Mascus argues that he was deprived of
his right to the effective assistance of counsel. In order to demonstrate ineffective
assistance of counsel, Mascus must prove (1) that his counsel’s performance fell below
an objective standard of reasonableness, and (2) that his counsel’s deficient
performance prejudiced him resulting in an unreliable or fundamentally unfair
outcome of the proceeding. Strickland v. Washington, 466 U.S. 668, 687-688 (1984).
A defendant’s failure to satisfy one prong of the Strickland test negates a court’s need
to consider the other, and is fatal to an ineffective-assistance claim.
Strickland at 697;
State v. Madrigal,
2000-Ohio-448, ¶ 10.
{¶11} Mascus argues that his trial counsel was ineffective for failing to make a
reasonable investigation into mitigation evidence by failing to ask the court to have
defense’s own expert appointed to evaluate Mascus for amenability and failing to have
a witness testify about the available programs that would benefit Mascus. After
reviewing the record, we hold that regardless of whether trial counsel’s performance
was deficient (and we are not saying that it was), Mascus cannot demonstrate resulting
prejudice. There is no evidence in the record that a second evaluation would have
resulted in a recommendation different from Dr. Leisgang’s or revealed some factor
that would weigh more heavily in support of amenability. There is also no evidence in
the record to demonstrate whether the programs available through the juvenile court
system would have most likely benefitted Mascus and resulted in his rehabilitation.
While we can appreciate appellate counsel’s argument that trial counsel failed to
present any substantial evidence of Mascus’s amenability, we have to keep in mind
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that there is nothing in this record to demonstrate the extent or content of trial
counsel’s investigation. There is no way to tell if trial counsel undertook a reasonable
investigation and simply did not find anything to use to support Mascus’s amenability
or whether trial counsel failed to undertake a reasonable investigation and would have
found evidence to support Mascus’s amenability. Accordingly, because Mascus cannot
demonstrate prejudice on this record, his ineffective-assistance-of-counsel claim fails.
The first assignment of error is overruled.
{¶12} In his second assignment of error, Mascus contends that the juvenile
court violated R.C. 2152.12(B) and abused its discretion by transferring jurisdiction of
Mascus’s case to the adult court. We are unpersuaded.
{¶13} Ohio law permits juvenile courts to transfer certain juveniles to adult
court to face criminal sanctions. There are two types of transfers under Ohio’s juvenile
scheme: mandatory and discretionary. State v. Nicholas, 2022-Ohio-4276, ¶ 3. This
case involves a discretionary transfer. A juvenile court has discretion to transfer, or
bind over, to an adult court a juvenile offender alleged to have committed an act that
would be a felony if committed by an adult if it finds that (1) the juvenile was at least
14 years of age at the time of the charged act; (2) probable cause exists to believe that
the juvenile committed the charged act; and (3) the juvenile does not appear to be
amenable to care or rehabilitation within the juvenile system, and who appears to be
a threat to public safety. Id. at ¶ 4; see R.C. 2152.12(B)(1)-(3). If the court finds
probable cause exists, as it did here, it must continue the proceeding, order an
investigation into the child’s history, “including a mental examination of the child by
a public or private agency or a person qualified to make the examination.” Id., citing
R.C. 2152.12(C).
{¶14} Under this assignment, Mascus only challenges the juvenile court’s
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OHIO FIRST DISTRICT COURT OF APPEALS
amenability determination, which we review for an abuse of discretion. Id. at ¶ 22;
State v. Bates, 2024-Ohio-5831, ¶ 8 (1st Dist.).
{¶15} In reaching its amenability determination, the juvenile court is required
to consider certain statutory factors and decide whether the factors in favor of transfer
outweigh the factors indicating that the case should remain in juvenile court. See R.C.
2152.12(B)(3). R.C. 2152.12(D) lists the factors in favor of transferring jurisdiction,
while R.C. 2152.12(E) lists the factors in favor of retaining jurisdiction. In addition to
the enumerated factors listed in those statutes, the juvenile court is instructed to
consider “any other relevant factors.” R.C. 2152.12(D) and (E). The juvenile court
must ensure that the record of its determination “indicate[s] the specific factors that
were applicable and that the court weighed.” R.C. 2952.12(B)(3).
{¶16} Here, the juvenile court found that six out of the nine statutory factors
in favor of transferring jurisdiction to the adult court applied, including the fact that
the two victims suffered physical harm, Mascus used a firearm to commit the acts, and
that at the time of the charged acts he was under a court sanction but that that sanction
had been unsuccessful as he had engaged in fighting at the residential facility and cut
off his electronic monitoring unit and escaped. See R.C. 2952.12(D)(1) and (5)-(7).
Additionally, the court, relying on Dr. Leisgang’s evaluation and recommendation,
found that Mascus was sufficiently mature to understand the consequences of his
decisions and that there was insufficient time to rehabilitate, given Mascus’s
significant contact with the juvenile court system and the pattern of his delinquent
behavior escalating, despite school and court interventions, from carrying a gun,
stealing, and receiving stolen property to using the gun to murder. See R.C.
2952.12(D)(8) and (9).
{¶17} The court also determined that none of the factors against transfer were
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OHIO FIRST DISTRICT COURT OF APPEALS
applicable where neither victim provoked Mascus, Mascus was the principal actor, he
had previous adjudications, he had caused serious physical harm to the victims, and
he did not suffer from a mental illness. See R.C. 2952.12(E)(1)-(5) and (7). Further,
the court again noted that Dr. Leisgang’s evaluation of Mascus indicated that he was
sufficiently mature for the transfer and there was insufficient time to rehabilitate
Mascus. See R.C. 2952.12(E)(6) and (8).
{¶18} Mascus first argues that the juvenile court failed to appropriately assess
his age and attendant adolescent characteristics when determining that he was not
amenable to rehabilitation in the juvenile system. But a review of the court’s analysis
belies that assertion. The juvenile court relied on Dr. Leisgang’s report to determine
Mascus’s amenability. And Dr. Leisgang noted in her report that the tests she used to
help evaluate Mascus’s amenability to rehabilitation take into account a juvenile’s
unique characteristics and consider that the juvenile’s risk of future violent behavior
may vary throughout the adolescent period.
{¶19} Next, Mascus challenges the court’s finding in support of transferring
jurisdiction that he was sufficiently mature. Specifically, he contends that the court
erred in its analysis when it failed to consider the role racist stereotypes play in
perceptions of maturity and cites to several scholarly articles to support his argument.
But this issue and the evidence pertaining to it was not presented to the juvenile court
or introduced as evidence during the amenability hearing. Because this issue was not
argued below and the evidence to support Mascus’s argument is not included in the
record before us, we may not consider it on appeal. State v. Paegler, 1996-Ohio-73.
{¶20} Finally, Mascus argues that the court failed to appropriately assess his
history and why a term of commitment in the Department of Youth Services would not
have been successful. Under this argument, Mascus seems to focus on the fact he had
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OHIO FIRST DISTRICT COURT OF APPEALS
five years left in the juvenile system and there were programs for him to participate in
that would serve to rehabilitate him. While there are differing options at the juvenile
court’s disposal after a juvenile is adjudicated delinquent, that was not the issue before
the juvenile court. Here, the court was tasked with considering and balancing the
statutory factors for and against transferring jurisdiction to the adult court. To make
that determination, the juvenile court followed the statutory procedure and ordered
an evaluation into Mascus’s complete history. The court then relied on that evaluation
by Dr. Leisgang, which took into account the time remaining to rehabilitate Mascus,
as to whether he would be amenable to rehabilitation within that time. Dr. Leisgang
indicated in the report that as of April 2022, Mascus had spent more than 250 days
detained in the “Youth Center.” During that detainment, there were “multiple
behavioral incidents including threatening, [provoking] major disruptions, and
fighting.” Despite this time at the Youth Center and other prior juvenile-court-
referred services, Mascus was unsuccessful at rehabilitation. Dr. Leisgang’s evaluation
noted that this pattern comports with Mascus’s pattern of continued difficult behavior
at school despite intervention.
{¶21} On this record, we cannot say that the juvenile court exercised its
discretion in an unwarranted way when considering and balancing the statutory
factors it was required to consider in determining whether Mascus was amenable to
rehabilitation in the juvenile court system. The court considered Mascus’s complete
history, and the factors found to be applicable in the court’s decision are supported in
the record before us. Accordingly, the second assignment of error is overruled.
III. Conclusion
{¶22} Having overruled both assignments of error, the judgment of the trial
court is affirmed.
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OHIO FIRST DISTRICT COURT OF APPEALS
Judgment affirmed.
ZAYAS, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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