In re C.J.

2017 Ohio 4198

• Court: Ohio Court of Appeals
• Decided: June 9, 2017
• Docket: 27398
• Status: Published

Opinion

[Cite as In re C.J., 2017-Ohio-4198.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

IN RE: : : C.J. : Appellate Case No. 27398 : : Trial Court Case No. 2016-4836 : : (Juvenile Appeal from : Common Pleas Court) : :

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OPINION

Rendered on the 9th day of June, 2017.

MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5TH Floor, Dayton, Ohio 45402 Attorney for Appellee

CHARLYN BOHLAND, Atty. Reg. No. 0088080, 250 East Broad Street, Suite 1400, Columbus, Ohio, 43215 Attorney for Appellant

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HALL, P.J. -2-

{¶ 1} C.J. was adjudicated as delinquent for committing the offenses, if committed

by an adult, of aggravated robbery and aggravated burglary, each with a firearm

specification. C.J. admitted the allegations and was adjudicated delinquent. The juvenile

court committed C.J. to DYS for a minimum of one year and a maximum not to exceed

age 21 for the aggravated robbery, to be served consecutively to a three-year firearm

specification, and a minimum of one year not to exceed age 21 for the aggravated

burglary, to be served consecutively to the first offense. The Court’s November 1, 2016

Final Appealable Order did not address the aggravated burglary firearm specification

although the court noted at the disposition hearing that the firearm specifications merge

and the court could not impose an additional specification commitment. (Doc. # 9)

{¶ 2} The offenses stem from an incident which occurred on July 25, 2016 where

three young men, including C.J., entered the home of an acquaintance of one of them by

asking for a drink and, once inside, they robbed the occupant at gunpoint. In the

September 27, 2016 Judge’s Order finding probable cause, the trial court found “[t]he

offenses as alleged in the complaint includes a firearm specification; however the youth

[C.J.] did not actually have possession of the gun.” (Doc. # 10) At the dispositional hearing

the juvenile court found C.J. was not the leader or principal offender and that he was not

in possession of the weapon. (Transcript of Proceedings, November 1, 2016, at 87-89)

{¶ 3} Appellant’s first assignment of error challenges the three-year firearm

specification sentence as being contrary to the one-year limit on a juvenile firearm

specification found in R.C. 2152.17(B). The second assignment of error asserts that C.J’s

trial counsel was ineffective for failing to object to the imposition of the three-year firearm -3-

specification. The State concedes error with respect to the first assignment of error. We

agree.

{¶ 4} R.C. 2152.17(B) provides:

[I]f the court determines that the child is complicit in another person's

conduct that is of such a nature that the other person would be guilty of a

[firearm] specification * * * and if the child did not furnish, use, or dispose of

any firearm that was involved with the underlying delinquent act or with the

other person's specification-related conduct,* * * the court may commit the

child to the department of youth services for the specification for a definite

period of not more than one year* * * *.

On this record there is no evidence that C.J. furnished, used or disposed of any firearm.

The findings of the trial court are actually to the contrary. Accordingly, it was error for the

court to impose a DYS commitment for three years for the firearm specification and that

part of the sentence is reversed.

{¶ 5} Because our resolution of the first assignment of error is dispositive of this

appeal, the second assignment of error is moot.

{¶ 6} The first assignment of error is sustained. The firearm specification portion

of the sentence is reversed and this case is remanded for resentencing on that

specification consistent with this opinion.

DONOVAN, J. and FROELICH, J., concur. -4-

Copies mailed to:

Mathias H. Heck Michael J. Scarpelli Charlyn Bohland Hon. Anthony Capizzi