In re A.G., No. 101010.

• Court: United States Court of Appeals (Ohio)
• Writing for the Court: MELODY J. STEWART, J.
• Citation: 21 N.E.3d 355
• Parties: In re A.G., A Minor Child.
• Decision Date: 06 November 2014
• Docket Number: No. 101010.

21 N.E.3d 355

In re A.G., A Minor Child.

No. 101010.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Nov. 6, 2014.

21 N.E.3d 357

Timothy Young, State Public Defender By: Charlyn Bohland, Assistant State Public Defender, Columbus, OH, for appellant.

Timothy J. McGinty, Cuyahoga County Prosecutor By: Eben McNair, Anne Kovoor, Assistant County Prosecutors, Cleveland, OH, for appellee.

Before: E.A. GALLAGHER, J., and STEWART, J., ROCCO, P.J.

Opinion

MELODY J. STEWART, J.

{¶ 1} This is a case of first impression in our court whereby we are asked to extend the substance and effect of R.C. 2941.25,

21 N.E.3d 358

the allied offenses statute, beyond its statutory boundaries and hold that a juvenile's multiple term of commitment for allied offenses of similar import violates constitutional double jeopardy protections. At this juncture, we decline to do so.

{¶ 2} On June 29, 2012, at 1:00 a.m., the victim in this case drove to his neighborhood beverage store. While at the store, he withdrew money from an ATM located within the store and proceeded to walk back to his car. As he approached his car, the victim was stopped by a man with a gun. The victim described the incident as: “And I'm thinking he's [fixing] to go to the store, but instead he pulls a small revolver out of his pocket and tells me to get in the car. I stood there and looked at him. Then he said, get in the car, n* * * *r, or I will shoot you. And I looked and I turned and I ran * * *.” Police investigated the robbery and found a fingerprint on the car that did not belong to the victim. The police traced the fingerprint to A.G., then 15 year's old.

{¶ 3} A two-count complaint was filed in the Cuyahoga County Court of Common Pleas, Juvenile Division against A.G. on October 24, 2012. Count 1 of the complaint alleged that A.G. was a delinquent child for committing aggravated robbery in violation of R.C. 2911.01(A)(1), a first-degree felony if committed by an adult, enhanced with a firearm specification. Count 2 of the complaint alleged that A.G. was delinquent for committing kidnapping, in violation of R.C. 2905.01(A)(2), a first-degree felony if committed by an adult, also enhanced with a firearm specification. A.G. was subsequently arraigned and a probable cause hearing was scheduled.

{¶ 4} The state requested that the juvenile court relinquish jurisdiction and bind over A.G. to the general division—(criminal court) for prosecution as an adult. The juvenile court declined to do so after determining that A.G. would be amenable to rehabilitation in the juvenile system.

{¶ 5} A.G. admitted to the aggravated robbery and kidnapping counts in the complaint, and the court adjudicated him delinquent on both counts. At the disposition hearing on December 20, 2013, the court imposed a commitment to the Ohio Department of Youth Services (DYS) for a minimum of three years with a maximum to A.G.'s 21st birthday. In imposing this commitment, the court found that the firearm specifications merged because both specifications arose out of a single incident, but the court entered separate commitments for the aggravated robbery and kidnapping counts. Altogether, a one-year commitment was imposed for the firearm specification; 12–months for the aggravated robbery count; and 12–months for the kidnapping count. The court ordered that the commitments be served consecutively for a total minimum commitment of three years in DYS.

{¶ 6} A.G. now appeals the disposition of his case raising two assignments of error for our review. First A.G. argues that the juvenile court erred when it failed to merge his adjudications for aggravated robbery and kidnapping. He contends that aggravated robbery and kidnapping are allied offenses of similar import that should have merged and argues that the failure to merge the two offenses constitutes a violation of the double jeopardy protections of the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 10 and 16, of the Ohio Constitution. In his second assignment of error, A.G. argues that his trial counsel was ineffective for failing to object to A.G.'s adjudication for allied offenses of similar import, in violation of the Sixth and Fourteenth Amendments to the United States Constitution, and

21 N.E.3d 359

Article I, Sections 10 and 16, of the Ohio Constitution.

{¶ 7} In its appellate brief, the state conceded error on the grounds that juveniles are entitled to the same double jeopardy protections as adults, and that since adult defendants have a constitutional right to be free of double jeopardy that is codified in R.C. 2941.25, then juveniles also have a right to be free from multiple terms of incarceration for offenses that should merge as allied offenses of similar import. During oral argument, however, the state retracted its concession.

{¶ 8} The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution states that no person “shall * * * be subject for the same offense to be twice put in jeopardy of life or limb.” It has been long understood that the Double Jeopardy Clause “protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” (Footnotes omitted.) North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Accordingly, the Clause serves the function of preventing both successive prosecutions and successive punishments for the same offense. United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), citing Pearce. The Ohio Constitution also provides the same double jeopardy protections as the United States Constitution—proscribing both successive prosecutions and successive punishments for the same offense. Article I, Section 10 ; State v. Moss, 69 Ohio St.2d 515, 518, 433 N.E.2d 181 (1982).

{¶ 9} The question that courts are often called upon to resolve in double jeopardy cases is what exactly constitutes the “same offense” for double jeopardy purposes. This question is analyzed differently depending on whether the defendant is being reprosecuted for the same offense or the state is attempting to impose multiple punishments for the same offense. In this case, A.G. objects to the separate commitments imposed on the aggravated robbery and kidnapping counts—two offenses that he claims constitute the same offense for double jeopardy purposes.

{¶ 10} The Fifth Amendment double jeopardy guarantee against successive punishments serves principally as a restraint on court and prosecutorial discretion in sentencing and charging. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). As the Ohio Supreme Court instructs, the hazard, from a constitutional standpoint in double jeopardy cases of this nature, is that a court might impose a greater sentence than prescribed by the legislature. State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 25. Accordingly, it is not a violation of double jeopardy for a person to be punished for multiple offenses arising from a single criminal act, as long as the General Assembly intended cumulative punishment for those offenses. Id., citing State v. Rance, 85 Ohio St.3d 632, 635, 710 N.E.2d 699 (1999). Thus, the guiding principle for courts when determining what constitutes the “same offense” for double jeopardy purposes is whether the legislature signals its intent to either prohibit or permit cumulative punishments for a criminal act that may qualify as two crimes. Johnson at ¶ 25.

{¶ 11} While prosecutorial conduct and judicial action are constrained by the double jeopardy protections, the legislature remains free to define crimes and fix punishments. See Moss at...