In re A.G.

Decision Date01 September 2016
Docket NumberNo. 101010,101010
Citation2016 Ohio 5616
PartiesIN RE: A.G. A Minor Child
CourtOhio Court of Appeals

JOURNAL ENTRY AND OPINION

JUDGMENT: REVERSED AND REMANDED

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division

Case No. DL 12117864

BEFORE: Stewart, J., E.A. Gallagher, P.J., and Laster Mays, J.

ATTORNEYS FOR APPELLANT

Timothy Young

State Public Defender

Charlyn Bohland

Assistant State Public Defender

250 East Broad Street, Suite 1400

Columbus, OH 43215

ATTORNEYS FOR APPELLEE

Timothy J. McGinty

Cuyahoga County Prosecutor

Eben McNair

Anne Kiran Mikhaiel

Assistant County Prosecutors

Justice Center, 9th Floor

1200 Ontario Street

Cleveland, OH 44113

MELODY J. STEWART, J.:

{¶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 June 2012, a person approached a man as the man was opening his car door after obtaining money from an ATM inside a store. The person pulled a gun out of his pocket and told the man that he would shoot him unless the man got into the car. The man did not comply but ran to his home nearby and lost track of the assailant. Police later took fingerprint samples from the car and found a fingerprint identifying A.G., who was 15 years old at the time of the event, as the assailant.
A complaint was filed in juvenile court alleging that A.G. was delinquent for engaging in conduct that if committed by an adult would have constituted aggravated robbery in violation of R.C. 2911.01(A)(1) and kidnapping in violation of R.C. 2905.01(A)(2), with firearms specifications as to each. A.G. entered an admission to the allegations in the complaint. After finding the allegations proved beyond a reasonable doubt, the juvenile court ordered that A.G. be committed to the Department of Youth Services for minimum terms of one year each for the aggravated robbery and kidnapping adjudications. The court merged the firearm specifications into a single specification and imposed a one-year-commitment term for that specification. The court ordered all the terms to be served consecutively, for a total minimum commitment of three years, with the maximum commitment lasting until A.G. turned 21 years old.
A.G. appealed and raised two assignments of error. First, he argued that the juvenile court erred in failing to merge his adjudications for aggravated robbery and kidnapping as "allied offenses of similar import" and that thefailure to merge the adjudications violated the double-jeopardy protections contained in the United States and Ohio Constitutions. 2014-Ohio-4927, 21 N.E.3d 355, ¶ 6 (8th Dist.). Second, he argued that his trial counsel was ineffective for failing to raise the allied-offenses issue.
The Eighth District Court of Appeals concluded that the aggravated robbery and kidnapping admitted to by A.G. would constitute allied offenses of similar import under R.C. 2941.25 if committed by an adult. Nevertheless, it reasoned that criminal statutes, including R.C. 2941.25, do not apply in juvenile delinquency proceedings. The court of appeals accordingly concluded that this court's decisions illustrating how R.C. 2941.25 should be applied are inapplicable to juvenile delinquency proceedings. The court instead turned to the test from Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which requires comparing the elements of the offenses at issue "without regard to the evidence to be introduced at trial." 2014-Ohio-4927, 21 N.E.3d 355, at ¶ 25. Relying on this decision, the Eighth District held that the juvenile court did not err in refusing to merge the adjudications for aggravated robbery and kidnapping, and it accordingly overruled A.G.'s first assignment of error and concluded that his second assignment of error regarding ineffective assistance of counsel was moot.
A.G. appealed to this court, and we accepted jurisdiction over his proposition of law: "The merger analysis set forth in State v. Johnson applies to juvenile delinquency proceedings to protect a child's right against double jeopardy." 142 Ohio St.3d 1464, 2015-Ohio-1896, 30 N.E.3d 973.

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:

(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

{¶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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