In Re B.H. ( 2018 )

[Cite as In Re B.H., 2018-Ohio-3350.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: B.H. : APPEAL NOS. C-180108
C-180109
: TRIAL NOS. 17-5723Z
17-5724Z
:
: O P I N I O N.
Appeals From: Hamilton County Juvenile Court
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: August 22, 2018
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney, for Appellee State of Ohio,
The Office of the Ohio Public Defender and Lauren Hammersmith, Assistant Public
Defender, for Appellant B.H.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Judge.
{¶1} Sixteen-year-old B.H. and two other juveniles forced their way into a
man’s vehicle at gunpoint and ordered him to drive to multiple ATM machines to
withdraw money. During the victim’s hour-long ordeal, the juveniles joked about
shooting and killing him.
{¶2} In the ensuing proceedings before the juvenile court, B.H. admitted to
conduct that, if committed by an adult, would have constituted aggravated robbery,
kidnapping, and two firearm specifications of the type set forth in R.C. 2941.145. As
part of the plea bargain with the state, B.H. agreed to a seven-year period of
commitment to the Department of Youth Services (“DYS”), consisting of concurrent
one-year terms for the underlying offenses and two consecutive three-year terms for
each of the firearm specifications. In exchange for B.H.’s admissions and agreement
on sentencing, the state withdrew its motions for relinquishment of jurisdiction to
the general division of the common pleas court and dismissed a theft charge with
accompanying firearm specifications. B.H. now appeals.
Firearm Specifications
{¶3} In his first assignment of error, B.H. argues that the juvenile court
erred by committing him to DYS for three years on each firearm specification
because he claims R.C. 2152.17(B)(1) prohibited the court from imposing more than a
one-year commitment for each specification. He contends that he could not be
sentenced to a three-year firearm specification as a complicitor in the offenses where
the record contained no evidence that he furnished, used, or disposed of the firearm
involved in the offenses.
{¶4} R.C. 2152.17 sets forth two ways that a child may be sentenced to a
three-year period of commitment for a firearm specification: “(1) as the principal
offender, if he had ‘displayed, brandished, indicated possession of, or used a firearm
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OHIO FIRST DISTRICT COURT OF APPEALS
to facilitate the offense’ or (2) as a complicitor, if he had ‘furnished, used or disposed
of’ the gun used by the principal.” In re E.B., 1st Dist. Hamilton No. C-150351, 2016-
Ohio-1507, ¶ 16.
{¶5} If the juvenile court determines that a child would be guilty of a
specification of the type set forth in R.C. 2941.145 because the child “displayed,
brandished, indicated possession of, or used a firearm to facilitate the offense,” the
court must commit the child to DYS for the specification “for a definite period of not
less than one and not more than three years.” R.C. 2152.17(A)(2). However, a
juvenile who is determined to be merely “complicit in another person’s conduct that
is of such a nature that the other person would be guilty of a specification of the type
set forth in” R.C. 2941.145, may receive no more than one year on the specification if
the juvenile “did not furnish, use or dispose of any firearm that was involved with the
underlying delinquent act.” R.C. 2152.17(B)(1); see E.B. at ¶ 15.
{¶6} B.H. argues that the court erred by sentencing him to three years on
each firearm specification because he was only an accomplice. He contends that,
without evidence that he furnished, used, or disposed of the firearm involved in the
offenses, the court was limited by R.C. 2152.17(B)(1) to committing him to only one
year in DYS for each of the specifications. He points to the prosecutor’s statement at
the adjudication hearing that two other individuals had been the principal actors:
The main actor in this case, codefendant [E.S.], being in the
front seat with the firearm while defendant was in the back passenger’s
seat, and there was an unidentified subject behind the victim [driver]
holding a gun to him.
{¶7} However, as part of his plea agreement, B.H. admitted to the following
facts from the complaints as read by the prosecutor:
As far as the facts on the kidnapping with gun specifications,
[B.H.] * * * did by force, threat, or deception knowingly restrain our
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OHIO FIRST DISTRICT COURT OF APPEALS
victim, [C.P.] of his liberty under circumstances which created a
substantial risk of physical harm to [C.P.], while at the same time
having on his possession a firearm and brandishing that firearm.
In addition, your Honor, the aggravated robbery charges, same
child * * *, while committing a theft offense did have a deadly weapon
under his control and displayed such weapon.
Same with the gun specifications, at some point in the
interaction he did have a firearm on him and did have that firearm
brandished.
{¶8} A juvenile’s admission in a delinquency case is an admission of the
facts contained in the complaint and is a waiver of the juvenile’s right to challenge
those factual allegations. State v. Penrod, 62 Ohio App. 3d 720, 723, 577 N.E.2d 424
(9th Dist.1989); In re J.R.P., 175 Ohio App. 3d 481, 2008-Ohio-989, 887 N.E.2d
1222, ¶ 32 (2d Dist.). Therefore, since B.H. admitted to the allegations that he had,
in committing the underlying offenses, displayed and brandished a firearm, B.H.
waived his right to challenge those allegations on appeal. See In re Flynn, 101 Ohio
App.3d 778, 781, 656 N.E.2d 737 (8th Dist.1995); In re Pope, 1st Dist. Hamilton No.
C-010306, 2002 WL 91525, *2 (Jan. 25, 2002).
{¶9} By accepting B.H.’s admissions, the court necessarily “determine[d]
that the child would be guilty of a specification of the type set forth in” R.C. 2941.145,
and was required by R.C. 2152.17(A)(2) to commit B.H. for each firearm specification
for a definite period of at least one year and not more than three years. Moreover, as
part of the plea deal, B.H. agreed to the seven-year commitment, specifically to three
years for each of the firearm specifications. For the reasons above, we hold that the
juvenile court did not err by committing B.H. to DYS for three years on each firearm
specification. We overrule the first assignment of error.
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OHIO FIRST DISTRICT COURT OF APPEALS
Double Jeopardy and Equal Protection
{¶10} In his second and third assignments of error, B.H. argues that the
juvenile court erred by imposing commitments for multiple firearm specifications
because R.C. 2152.17(E) violates a child’s rights to equal protection and to be free
from double jeopardy. We overrule these assignments of error on the authority of
our recent decision in In re D.L., 1st Dist. Hamilton Nos. C-170152, C-170153 and C-
170154, 2018-Ohio-2161.
Effective Assistance of Counsel
{¶11} In his fourth assignment of error, B.H. argues that he was denied the
effective assistance of counsel where counsel failed to argue that B.H. should not
have been committed for three years on each of the firearm specifications where he
was not the primary actor in the offenses. To establish ineffective assistance of
counsel, the defendant must demonstrate that counsel’s performance was deficient,
and that she or he was prejudiced by counsel's deficient performance. See Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v.
Bradley, 42 Ohio St. 3d 136, 143, 538 N.E.2d 373 (1989). Our review of counsel’s
performance must be highly deferential. Strickland at 689.
{¶12} Because B.H. admitted to the complaints’ allegations that he had
displayed and brandished a firearm, B.H. cannot now complain that counsel should
have argued that he was merely an accomplice for purposes of sentencing on the
firearm specifications. And while B.H. does not challenge counsel’s performance
with respect to the plea bargain itself, we are convinced that it was a reasonable
strategy for defense counsel to recommend that B.H. enter the plea in exchange for
the state’s agreement to keep the case in the juvenile court and to dismiss the
remaining charges.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} In addition, B.H. argues that counsel was ineffective for failing to raise
the constitutional issues set forth in his second and third assignments of error.
However, where no constitutional violations occurred, we cannot say that counsel
was ineffective for failing to object on those grounds. See D.L. at ¶ 23. We overrule
the fourth assignment of error.
{¶14} Having overruled B.H.’s assignments of error, we affirm the judgments
of the juvenile court.
Judgments affirmed.
MOCK, P.J., and ZAYAS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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