In re D.M. , 2017 Ohio 2710 ( 2017 )

[Cite as In re D.M., 2017-Ohio-2710.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN THE MATTER OF D.M. )
)
)
) CASE NO. 16 MA 0166
)
) OPINION
) AND
) JUDGMENT ENTRY
)
CHARACTER OF PROCEEDINGS: Motion to Dismiss
JUDGMENT: Dismissed
APPEARANCES:
For Appellant Charlyn Bohland
Assistant State Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215
For Appellee Paul Gains
Prosecutor
Ralph M. Rivera
Assistant Prosecutor
21 W. Boardman St., 6th Floor
Youngstown, Ohio 44503-1426
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Carol Ann Robb
Dated: May 2, 2017
[Cite as In re D.M., 2017-Ohio-2710.]
PER CURIAM.
{¶1} Appellant D.M. appeals a judgment entry of the Mahoning County
Common Pleas Court, Juvenile Division, transferring the case back to the General
Division pursuant to R.C. 2151.121(B)(3)(b). Following a reverse bindover, the
juvenile court conducted an amenability hearing and, upon determining that Appellant
was not amenable to juvenile rehabilitation, sent the case back to the General
Division for imposition of the adult sentence. The state has filed a motion to dismiss
arguing that the entry appealed from is not a final appealable order. Appellant has
filed a response in opposition. We conclude that the entry does not constitute a final
appealable order.
{¶2} In 2013, a three-count delinquency complaint was filed against 16-year-
old Appellant in juvenile court. Two counts were for offenses that if he were an adult
would have constituted aggravated robbery in violation of R.C. 2911.01(A)(1), first-
degree felonies. One count was for an offense that if he were an adult would have
constituted aggravated burglary in violation of R.C. 2911.11, a first-degree felony. All
three counts contained firearm specifications.
{¶3} The juvenile court appointed counsel and Appellant entered pleas of
denial to the complaint. Subsequently, Appellant waived the right to a probable
cause hearing and stipulated to probable cause. Pursuant to the mandatory transfer
statute, the juvenile court transferred Appellant’s case to the adult court.
{¶4} Once in adult court, Appellant reached a plea agreement with the state.
Appellant agreed to plead guilty to one count each of aggravated robbery and
aggravated burglary. In exchange, the state agreed to dismiss all other charges
since they would have merged with the aggravated robbery and aggravated burglary
offenses to which Appellant was pleading guilty. The state also agreed to
recommend consecutive terms of four years in prison for each of the offenses for an
aggregate term of eight years, and that it would not oppose an application for judicial
release when Appellant becomes eligible in four and half years. Also, the state
dismissed the firearm specifications because the instrument Appellant used in the
commission of the offenses turned out to be a starter pistol which was incapable of
shooting a projectile.
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{¶5} In 2014, the adult court sentenced Appellant in accordance with the
state’s recommendation and he appealed. Because the offenses to which Appellant
pleaded guilty would not have required a mandatory transfer of the case from the
juvenile division to the general division, this court found that the reverse bindover
procedure set forth in R.C. 2152.121(B)(3) was activated requiring transfer of the
case back to the juvenile court.
{¶6} Upon remand to the juvenile court, the state objected to the imposition
of a Serious Youthful Offender dispositional sentence pursuant to R.C.
2152.121(B)(3)(b) and the court conducted an amenability hearing. Following the
hearing, the juvenile court determined that Appellant was not amenable to
rehabilitation within the juvenile justice system. Subsequently, in a judgment entry
filed September 29, 2016 which is the subject of this appeal, the juvenile court
ordered the case returned to the general division for imposition of the adult sentence.
{¶7} The general division conducted a resentencing hearing on November 3,
2016, pursuant to R.C. 2929.19 and R.C. 2152.121(B)(3) and imposed the previously
agreed upon 8-year prison term. The judgment entry of sentence was filed
November 21, 2016, and no appeal was filed from that entry.
{¶8} Turning to a review of the juvenile court’s order appealed in this case,
Ohio Supreme Court precedent is clear: “[a]n order by a Juvenile Court, pursuant
R.C. 2151.26 [now R.C. 2152.12], transferring a child to the Court of Common Pleas
for criminal prosecution, is not a final appealable order.” In re Becker, 39 Ohio St.2d
84, 314 N.E.2d 158 (1974), syllabus. Ohio appellate courts have adhered to Becker.
See, e.g., In re J.L., 11th Dist. No. 2015-T-0137, 2016-Ohio-644, 2016 WL 697800,
¶ 6-7; In re D.H., 2d Dist. No. 27074, 2016-Ohio-5265; State v. McKinney, 2015-
Ohio-4398, 46 N.E.3d 179, ¶ 8 (1st Dist.).
{¶9} Appellant argues this case is distinguishable from Becker and other
appellate court decisions applying Becker simply because a conviction has already
occurred in this case. However, Appellant does not explain how the procedural
posture of this case (i.e., discretionary transfer after a reverse bindover) takes it
outside the purview of the Ohio Supreme Court’s decision in Becker. Nor does
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Appellant cite any caselaw that would support even an inference to that effect.
{¶10} Moreover, Appellant’s argument overlooks the interlocutory nature of
this appeal. Although Appellant was convicted in adult court, the sentence was
automatically stayed by operation of law pursuant to R.C. 2152.121(B)(3). A
judgment of conviction is not a final appealable order until a sentence is imposed.
State v. Chamberlain, 177 Ohio St. 104, 106-107, 202 N.E.2d 695 (1964); State v.
Pasqualone, 140 Ohio App.3d 650, 655, 748 N.E.2d 1153 (11th Dist.2000); State v.
George, 98 Ohio App.3d 371, 374, 648 N.E.2d 597 (12th Dist.1994). The adult
sentence cannot be imposed by the adult court until the juvenile court transfers
jurisdiction of the case back to adult court. In this instance, Appellant’s conviction
and sentence became a final appealable order when the adult court, pursuant to R.C.
2919.121(B)(3), reinvoked the previously stayed sentence on November 21, 2016,
from which no appeal was taken.
{¶11} Accordingly, Appellant’s appeal of the juvenile court’s order transferring
the case back to the adult court is dismissed. Appellant’s pending motion to strike
the use of Appellant’s full name rather than his initials in Appellee’s motion to dismiss
is overruled as moot. Costs taxed against Appellant.
{¶12} Final order. Clerk to serve notice as provided by Civil Rules.
______________________________
Judge Gene Donofrio
______________________________
Judge Cheryl L. Waite
______________________________
Judge Carol Ann Robb