In re A.G.
Decision Date | 01 September 2016 |
Docket Number | No. 101010,101010 |
Citation | 2016 Ohio 5616 |
Parties | IN RE: A.G. A Minor Child |
Court | Ohio Court of Appeals |
ATTORNEYS FOR APPELLANT
State Public Defender
Charlyn Bohland
Assistant State Public Defender
250 East Broad Street, Suite 1400
Columbus, OH 43215
Timothy J. McGinty
Cuyahoga County Prosecutor
Eben McNair
Anne Kiran Mikhaiel
Assistant County Prosecutors
1200 Ontario Street
Cleveland, OH 44113
{¶1} On June 9, 2016, the Supreme Court of Ohio reversed our decision in In re A.G., 2014-Ohio-4927, 21 N.E.3d 355 (8th Dist.), and remanded the case to this court to once again consider A.G.'s assignments of error. In re A.G., Slip Opinion No. 2016-Ohio-3306. In light of the Supreme Court's holding, we reverse the decision of the juvenile court.
{¶2} The Supreme Court set out the relevant facts and procedural history of this case as follows:
In re A.G., Slip Opinion No. 2016-Ohio-3306, ¶ 2-6.
{¶3} On appeal, the Supreme Court determined that the allied offense statute, R.C. 2941.25, codifies the constitutional double jeopardy protections for both adults and juveniles, and thus the R.C. 2941.25 merger analysis set forth in State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, applies equally to juvenile delinquency proceedings. Id. at syllabus. With the Supreme Court's clarification on this point of law, we now reconsider A.G.'s arguments.
{¶4} In his first assigned error, A.G. argued that the trial court erred by failing tomerge his adjudications for aggravated robbery and kidnapping, as allied offenses of similar import under R.C. 2941.25. A.G.'s defense counsel failed to object to the nonmerger and, therefore, forfeited all but plain error review. See State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21. Pursuant to Crim.R. 52(B), appellate courts have discretion to correct plain errors. Plain errors are defined as obvious defects in the trial court proceedings that affected the outcome of trial. Id. at ¶ 22.
{¶5} R.C. 2941.25 provides:
{¶6} Courts must look to the offender's conduct when considering whether multiple offenses are allied and of similar import. Ruff at ¶ 25. This involves an examination of "how the offenses were committed." Id. The offenses will not merge if any of the following are true:
(1) the offenses are dissimilar in import, (2) the offenses were committed separately, and (3) the offenses were committed with separate animus or motivation.
Id. at ¶ 20. As to the first factor, offenses committed with the same conduct are dissimilar in import when they result in separate and identifiable harms. Id. at ¶ 26.
{¶7} In this particular case, there was no recitation of the facts at the dispositional hearing from which we can conduct an allied offenses analysis. Nevertheless, two other areas of the record — the juvenile complaint to which A.G. admitted and the transcript of the discretionary bindover probable cause hearing — establish that the aggravated robbery and kidnapping offenses were subject to merger.
{¶8} The first count of the juvenile complaint charged A.G. with the offense of aggravated robbery, if committed by an adult. The second count of the complaint charged A.G. with the offense of kidnapping under R.C. 2905.01,1 if committed by an adult. The second count stated:
[A.G.] on or about June 29, 2012, did, by force, threat, or deception, purposely remove [the victim] from the place where he was found or restrain the liberty of him for the purpose of facilitating the commission of a felony to wit: Aggravated Robbery in violation of ORC 2911.01(A)...
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