In re J.R. , 2020 Ohio 761 ( 2020 )

[Cite as In re J.R., 2020-Ohio-761.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
COLUMBIANA COUNTY
IN THE MATTER OF:
J.R., DELINQUENT CHILD
OPINION AND JUDGMENT ENTRY
Case No. 19 CO 0017Civil Appeal from the
Court of Common Pleas, Juvenile Division, of Columbiana County, Ohio
Case No. J2002-0216-20
BEFORE:
David A. D’Apolito, Gene Donofrio, Carol Ann Robb, Judges.
JUDGMENT:
Affirmed.
Atty. Robert Herron, Columbiana County Prosecutor, and K. Bret Apple, Assistant
Prosecuting Attorney, 105 South Market Street, Lisbon, Ohio 44432, for Plaintiff-
Appellee and
Atty. Abigail Christopher, Assistant State Public Defender, 250 East Broad Street, Suite
1400, Columbus, Ohio 43215, for Defendant- Appellant.
–2–
Dated: February 26, 2020
D’APOLITO, J.
{¶1} Appellant, J.R., Delinquent Child, appeals from the April 10, 2019 judgment
of the Columbiana County Court of Common Pleas, Juvenile Division, adopting a
magistrate’s decision and ordering him to serve a three-year mandatory commitment to
the Department of Youth Services (“DYS”) for R.C. 2941.145 accompanying firearm
specifications involving two counts of complicity to commit aggravated robbery. On
appeal, Appellant asserts the three-year sentence is contrary to law. Finding no plain
error, we affirm.
FACTS AND PROCEDURAL HISTORY
{¶2} On January 16, 2019, two juvenile delinquent offender complaints were filed
against Appellant in Stark County, Ohio.1 The complaints alleged that Appellant was
involved in two counts of complicity to commit aggravated robbery in Stark County
between December 2 and 4, 2018. Both counts constituted felonies of the first degree,
in violation of R.C. 2911.01(A)(1), with accompanying firearm specifications in violation
of R.C. 2941.145. Appellant initially entered a not true plea at his arraignment.2
{¶3} On March 29, 2019, Appellant withdrew his plea and entered an oral and
written plea of true to both counts as charged in the complaints. The Stark County
magistrate issued a decision that same date, recommending that removal was in
Appellant’s best interest and that the matter should be transferred to Columbiana County
for disposition. No objections were filed. The Stark County Juvenile Court adopted the
magistrate’s decision, accepted Appellant’s plea, and transferred the case to Columbiana
County.
{¶4} A disposition hearing was held on April 9, 2019. The Columbiana County
magistrate issued a decision the next day, indicating that Appellant was adjudicated a
delinquent child for committing two acts which, if committed by an adult, would constitute
1 Appellant, d.o.b. 11/7/2001, is a resident of Columbiana County, Ohio.
2Appellant was in the custody of Columbiana County and was being held on unrelated charges. He was
appointed counsel.
Case No. 19 CO 0017–3–
complicity to commit aggravated robbery, felonies of the first degree, with accompanying
R.C. 2941.145 firearm specifications. No objections were filed. The Columbiana County
Juvenile Court adopted the magistrate’s decision and ordered that Appellant serve a
three-year mandatory commitment to DYS for the firearm specifications.
{¶5} Appellant filed a timely appeal and raises one assignment of error.
ASSIGNMENT OF ERROR
THE COLUMBIANA COUNTY JUVENILE COURT VIOLATED J.R.’S
RIGHT TO DUE PROCESS WHEN IT IMPOSED A CONTRARY TO LAW
AND VOID DISPOSITION BY ORDERING A COMMITMENT TO DYS FOR
A GUN SPECIFICATION WHEN J.R. HAD NOT BEEN ADJUDICATED
DELINQUENT OF A GUN SPECIFICATION IN VIOLATION OF FIFTH
AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION;
ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION; R.C.
2952.17(A)(2).
{¶6} In his sole assignment of error, Appellant argues that the Columbiana
County Juvenile Court erred in adopting the magistrate’s April 10, 2019 decision and
imposing a mandatory three-year sentence on the firearm specifications as charged in
the January 16, 2019 Stark County complaints. As stated, Appellant did not file objections
to either the Stark County magistrate’s March 29, 2019 decision or to the Columbiana
County magistrate’s April 10, 2019 decision.
(iv) Waiver of Right to Assign Adoption by Court as Error on Appeal. Except
for a claim of plain error, a party shall not assign as error on appeal the
court’s adoption of any factual finding or legal conclusion, whether or not
specifically designated as a finding of fact or conclusion of law under Juv.R.
40(D)(3)(a)(ii), unless the party has objected to that finding or conclusion as
required by Juv.R. 40(D)(3)(b).
Juv.R. 40(D)(3)(b)(iv).
Case No. 19 CO 0017–4–
{¶7} Even if Appellant had preserved his alleged error for review, his argument
is not persuasive and neither juvenile court plainly erred.
Ohio law provides for a mandatory three-year sentence on a gun
specification that is charged in the indictment if the individual committing the
felony possesses a firearm and “display(s) the firearm, brandishe(s) the
firearm, indicate(s) (* * *) possess(ion of) the firearm, or use(s) it to facilitate
the offense.” R.C. 2941.145(A). The three-year specification applies to a
juvenile who commits an act that would be a felony if committed by an
adult. R.C. 2941.145(C). For an adult, the same three-year specification
applies whether one is guilty as a principal offender or as an
accomplice. See State v. Chapman, 21 Ohio St.3d 41, 487 N.E.2d 566(1986), syllabus. But for juveniles, the legislature has limited the situations
in which one guilty as a complicitor may receive the three-year specification.
A juvenile accomplice may receive no more than one year on the
specification provided that 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).
Thus, there are two ways that [Appellant] could have been sentenced to a
three year gun-specification sentence: (1) as the principal offender, if he
had “displayed, brandished, indicated possession of, or used a firearm to
facilitate the offense” or (2) as a complicitor, if he had “furnished, used or
disposed of” the gun used by the principal. R.C. 2152.17.
In re E.B., 1st Dist. Hamilton No. C-150351, 2016-Ohio-1507, ¶ 15-16.
{¶8} Appellant incorrectly posits that no firearm specifications were specifically
alleged. In fact, both January 16, 2019 Stark County complaints cited to R.C.
2911.01(A)(1), listed the factual backgrounds involving each charge, and included
accompanying firearm specifications, specifically stating:
The affiant further finds and specifies that the offender had a firearm on or
about the offender’s person or under the offender’s control while committing
Case No. 19 CO 0017–5–
the offense and displayed the firearm, brandished the firearm, indicated that
the offender possessed the firearm, or used it to facilitate the offense.
(2941.145)
(1/16/2019 Stark County Complaints, p.1).
{¶9} Appellant also incorrectly posits that the Stark County Juvenile Court did
not comply with Juv.R. 29. Appellant stresses that the court failed to personally address
him and failed to determine that his true plea was made in an understanding and voluntary
manner. The record before us does not support Appellant’s assertions.
{¶10} Juv.R. 29, “Adjudicatory hearing,” states in part:
(C) Entry of Admission or Denial. The court shall request each party against
whom allegations are being made in the complaint to admit or deny the
allegations. * * *
(D) Initial Procedure Upon Entry of an Admission. The court may refuse to
accept an admission and shall not accept an admission without addressing
the party personally and determining both of the following:
(1) The party is making the admission voluntarily with understanding of the
nature of the allegations and the consequences of the admission;
(2) The party understands that by entering an admission the party is waiving
the right to challenge the witnesses and evidence against the party, to
remain silent, and to introduce evidence at the adjudicatory hearing.
The court may hear testimony, review documents, or make further inquiry,
as it considers appropriate, or it may proceed directly to the action required
by division (F) of this rule.
***
(F) Procedure Upon Determination of the Issues. Upon the determination of
the issues, the court shall do one of the following:
Case No. 19 CO 0017–6–
***
(2) If the allegations of the complaint, indictment, or information are admitted
or proven, do any one of the following, unless precluded by statute:
(a) Enter an adjudication and proceed forthwith to disposition[.]
Juv.R. 29(C), (D), and (F).
{¶11} In the March 29, 2019 written “Plea of True Juv. Rule 29(D)” in Stark County,
Appellant acknowledged the following: his attorney and the court advised him of the two
crimes as charged in the complaints and the penalties provided by law; he was advised
that a true plea would result in a delinquency finding; he was advised of his Constitutional
rights and indicated that he understood the consequences of his waiver; and a few lines
before his signature, Appellant acknowledged that “I have complete confidence in my
lawyer and acknowledge that he/she has effectively and diligently represented me. It is
solely my own choice to enter a Plea of True with full knowledge of the other alternatives
available to me.” (3/29/2019 Stark County Written Plea, p. 3).
{¶12} In addition, at the March 29, 2019 change of plea/adjudication hearing in
Stark County, the magistrate discussed both complaints with Appellant. The magistrate
indicated that then 17-year-old Appellant did aid and abet two co-defendants, knowingly
committed theft offenses in which “two firearms were brandished,” and demanded money
from two victims at “gun point.” (3/29/2019 Stark County Change of Plea/Adjudication
Hearing, p. 4-6). The magistrate asked Appellant if that was true and Appellant
responded, “Yes Sir.” (Id. at 6). The magistrate further asked Appellant if he understood
that the commitment to DYS in each of these cases could last until he is 21 years old.
Appellant replied, “Yes Sir.” (Id. at 7).
{¶13} The Stark County magistrate issued a decision on March 29, 2019. The
magistrate referenced both complaint charges, indicated that Appellant was represented
by counsel, and that “removal is in the best interest of the child [because] [t]he child is a
threat to himself.” (3/29/2019 Stark County Magistrate’s Decision). The magistrate
recommended transferring the matter to Columbiana County for disposition. (Id.)
{¶14} Appellant did not file an objection to the magistrate’s decision.
Case No. 19 CO 0017–7–
{¶15} The Stark County Juvenile Court adjudicated Appellant delinquent on both
counts as alleged in the January 16, 2019 complaints (i.e., the complaints charged
Appellant with two counts of complicity to commit aggravated robbery, felonies of the first
degree, in violation of R.C. 2911.01(A)(1), with accompanying firearm specifications in
violation of R.C. 2941.145). (3/29/2019 Stark County Judgment Entry). The court noted
that the “parties hereto were served with a copy of the Decision of the Magistrate [and]
[t]he parties were further advised of their right to object to the same pursuant to Juvenile
Rule 40[D](3).” (Id.) The court further noted that “[t]he parties having no objection timely
filed herein; this Decision is to have immediate effect.” (Id.) Thus, the court approved
and adopted the magistrate’s decision and transferred the case to Columbiana County
for disposition. (Id.)
{¶16} The record before us does not reveal that the Stark County Juvenile Court
committed plain error. At the change of plea/adjudication hearing in Stark County, the
magistrate informed Appellant of the substance of the complaints in compliance with
Juv.R. 29. See Juv.R. 29(B)(2) (“At the beginning of the hearing, the court shall * * *
[i]nform the parties of the substance of the complaint[.]”) Appellant’s acknowledgment,
as evidenced from the written plea, and his admission, as evidenced from the foregoing
colloquy at the change of plea/adjudication hearing, appear to have been made in an
understanding and voluntary manner. See Juv.R. 29(D)(1) and (2). The Stark County
Juvenile Court adjudicated Appellant delinquent on both charges as alleged in the
complaints and transferred the case to Columbiana County for disposition. See Juv.R.
29(F)(2)(a).
{¶17} At the April 9, 2019 disposition hearing in Columbiana County, the
magistrate stated the following:
THE COURT: * * * I also have to disagree with [Appellant’s counsel] * * *
that [Appellant] did not possess nor point a gun. He in fact did possess and
did in fact point what he indicated to be at least a firearm. * * * I know that
there is a firearm specification * * * and he has been adjudicated of that
Complaint that contains the firearm specification. The reports and the to-
wit clauses specifically states that he held each of these deliver[y] drivers
Case No. 19 CO 0017–8–
at gun point. That [Appellant] specifically did that as to each one of those
counts of complicity to aggravated robbery * * *. * * *
***
[Appellant] was charged * * * with two separate complaints each alleging
that he committed two aggravated robberies * * * in violation of O.R.C.
2911.01(A)(1) each being a felony of the first degree if committed by an
adult. Included in each of those complaints was a gun specification of the
type set forth in Ohio Revised Code section 2941.145.
The first of those complaints specifically stated, in pertinent part, that on
December 2nd, 2018 [Appellant] and his accomplice * * * approached * * *
Papa Johns delivery drive[r] name[d] Brady Gibson, each brandished a
firearm or what they purported to be a firearm and demanded money from
Gibson at gun point. The second of those complaints specifically states, in
pertinent part that on December 4th, 2018 [Appellant] and his accomplice
approached a Panda Garden deliver[y] driver name[d] Fred Korosy at gun
point and order[ed] Korosy to drop the food. * * * [Appellant] pulled a gun
during both of these aggravated robbery offenses or at least what he
purported to be a gun. * * * [T]his Court determines that [Appellant] was
adjudicated a delinquent child for committing an act or acts other th[a]n a
violation of Ohio Revised Code 2923.12 that would be felonies if committed
by an adult. The Court determines further that if [Appellant] was an adult
he would be guilty of a specification of the type set forth in O.R.C. 2941.145.
Therefore, * * * the Court is required to and hereby does commit [Appellant]
to the legal custody of [DYS] for the purposes of institutionalization for a
definite period of three years for the specification * * * of the type set forth
in O.R.C. 2941.145. Additionally, [Appellant] having been adjudicated of
two counts of complicity to aggravated robbery * * * in violation of O.R.C.
2911.01(A)(1) and 2923.03, the Court hereby places [Appellant] in the legal
custody of [DYS] for the purposes [of] institutionalization for * * * an
Case No. 19 CO 0017–9–
indefinite minimum term of one to three years but a maximum term that is
not to exceed [Appellant’s] attainment of the age of 21 and that is pursuant
to O.R.C. 2152.16(A)(1)(c). The Court finds * * * [this] placement in the
legal custody of [DYS] to be in the best interest of [Appellant]. Again the
Court finds that reasonable efforts were made to prevent or eliminate the
need for placement and/or to make it possible for [Appellant] to remain or
return to his home but to allow him to do so would be contrary to his best
interest and welfare. * * *
(4/9/2019 Columbiana County Disposition Hearing, p. 9-15).
{¶18} The Columbiana County magistrate issued a decision the next day. The
magistrate stated the following:
[T]he minor was adjudicated in the Stark County Ohio Family Court a
delinquent child as defined in ORC 2152.02(E)(1), in two counts, for having
committed acts, as to each count, which if committed by an adult would
constitute the offenses of Complicity to Commit Aggravated Robbery, in
violation of ORC 2911.01(A)(1) and ORC 2923.03, felonies of the first
degree. Included in each of those counts was a specification of the type
found in ORC 2941.145.
***
Based upon this Court’s review of the file transferred from the Stark County
Ohio Family Court, including but not limited to the complaints and police
reports, the Court determines that the minor was adjudicated a delinquent
child * * * [and] further determines that, if the child was an adult, the child
would be guilty of a specification of the type set forth in section 2941.145 of
the Ohio Revised Code.
Therefore, * * * the Court shall and hereby does commit the minor * * * to
the legal custody of [DYS] for the purposes of institutionalization for a
Case No. 19 CO 0017– 10 –
definite period of three (3) years on the firearm specification of the type
found in ORC 2941.145.
(4/10/2019 Columbiana County Magistrate’s Decision, p. 1, 4-5).
{¶19} Appellant did not file an objection to the magistrate’s decision.
{¶20} The Columbiana County Juvenile Court adopted the magistrate’s decision
and ordered that Appellant serve a three-year mandatory commitment to DYS for the
firearm specifications as alleged in the January 16, 2019 complaints. (4/10/2019
Columbiana County Judgment Entry).
{¶21} Based on the facts presented, the record supports the Columbiana County
magistrate’s determination that Appellant was adjudicated a delinquent child for
committing two acts which, if committed by an adult, would constitute complicity to commit
aggravated robbery, felonies of the first degree, with accompanying R.C. 2941.145
firearm specifications, as set forth in the January 16, 2019 complaints. Appellant even
acknowledged and admitted, as evidenced from his true plea in Stark County, that
firearms were used in the commission of the theft offenses. Accordingly, the Columbiana
County Juvenile Court did not commit plain error in adopting the magistrate’s April 10,
2019 decision and ordering that Appellant serve a three-year mandatory commitment to
DYS for the firearm specifications as alleged in the complaints.
CONCLUSION
{¶22} For the foregoing reasons, Appellant’s sole assignment of error is not well-
taken. The judgment of the Columbiana County Court of Common Pleas, Juvenile
Division, is affirmed.
Donofrio, J., concurs.
Robb, J., concurs.
Case No. 19 CO 0017[Cite as In re J.R., 2020-Ohio-761.]
For the reasons stated in the Opinion rendered herein, the assignment of error
is overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas, Juvenile Division, of Columbiana County, Ohio, is affirmed.
Costs to be waived.
A certified copy of this opinion and judgment entry shall constitute the mandate
in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
a certified copy be sent by the clerk to the trial court to carry this judgment into
execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.