[Cite as In re R.W., 2014-Ohio-1950.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100158
IN RE: R.W.
A Minor Child
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL-12120828
BEFORE: Rocco, J., Boyle, A.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: May 8, 2014
-i-
ATTORNEYS FOR APPELLANT
Brooke M. Burns
Sheryl Trzaska
Office of the Ohio Public Defender
250 East Broad Street
Suite 1400
Columbus, OH 43215
ATTORNEYS FOR APPELLEE
For State of Ohio
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Carl Mazzone
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street - 9th Floor
Cleveland, OH 44113
KENNETH A. ROCCO, J.:
{¶1} In this appeal we are asked whether R.C. 2929.14(B)(1)(g), a firearm
specification sentencing provision, is applicable to juvenile offenders who are charged
with firearm specifications. For the reasons that follow, the answer is no. Because the
juvenile court in this case entered its disposition on the mistaken belief that R.C.
2929.14(B)(1)(g) applied, we reverse and remand the juvenile court’s order.
{¶2} Following a trial, seventeen-year-old appellant, R.W. was adjudicated
delinquent on two counts of felonious assault (R.C. 2903.11(A)(2)) with one- and
three-year firearm specifications attaching to each count (R.C. 2941.141; R.C. 2941.145).
{¶3} On June 19, 2013, the juvenile court committed R.W. to the Ohio Department
of Youth Services (“ODYS”) for a minimum period of one year on each felonious assault
offense, to be served concurrently. The juvenile court also committed R.W. to one year
on each of the three-year firearm specifications. The juvenile court ordered that the two
firearm specifications merged, and that the time would run consecutively with and prior
to the felonious assault commitment. There was no additional time imposed for the
one-year firearm specification. In total, R.W. would be committed for two years.
{¶4} But on June 26, 2013, the juvenile court “reopened” R.W.’s disposition and
held a second hearing. At that hearing, the juvenile court informed the parties that it
“was brought to his attention” that our decision in State v. Vanderhorst, 8th Dist.
Cuyahoga No. 97242, 2013-Ohio-1785, necessitated a change to R.W.’s disposition.
Specifically, the juvenile court told the parties that because R.W. was adjudicated
delinquent on two counts of felonious assault, that R.C. 2929.14(B)(1)(g) required the
court to impose multiple and consecutive commitments for the most serious firearm
specifications, and that the statute permitted the court to impose additional commitments
on the lower specifications as well.
{¶5} The juvenile court then vacated its earlier disposition and entered a new
disposition. As in the previous disposition, R.W. was committed to the ODYS for a
minimum period of one year on each felonious assault offense, to be served concurrently.
The juvenile court removed the language from the previous entry regarding merger and
instead noted that R.C. 2929.14(B)(1)(g) required the imposition of two consecutive
commitments for the three-year firearm specifications under R.C. 2941.145. R.W. was
committed to one year on the first three-year firearm specification and to one year on the
second three-year firearm specification. These periods of commitment would run
consecutive to one another and consecutive to the one year for the underlying offenses.
Once again, there was no additional time imposed for the one-year firearm specifications.
Under the new disposition, R.W. was committed for a total of three years.
{¶6} R.W. filed a notice of appeal, setting forth a single assignment of error for
our review:
The juvenile court erred when it found that State v. Vanderhorst, 8th Dist.
Cuyahoga No. 97242, 2013-Ohio-1785 and R.C. 2929.14(B)(1)(g) required
it to commit R.W. to ODYS for multiple, consecutive terms for firearm
specifications under R.C. 2941.145.
For the reasons that follow, we sustain the assignment of error.
{¶7} Under R.C. 2152.19(A)(4), a juvenile court has broad discretion in crafting
a disposition for a child adjudicated delinquent. In re D.S., 111 Ohio St.3d 361,
2006-Ohio-5851, 856 N.E.2d 921, ¶ 6. We review a juvenile court’s disposition for an
abuse of discretion. Id.
{¶8} R.C. 2929.14(B) is Ohio’s adult felony sentencing statute. See State v.
D.H., 169 Ohio App.3d 798, 2006-Ohio-6953, 865 N.E.2d 90, ¶ 70 (10th Dist.). When a
trial court sentences an adult felony offender, the court must impose an additional
three-year prison term if the offender “had a firearm on or about [his] person or under
[his] control while committing the offense and displayed the firearm, brandished the
firearm, indicated that [he] possessed the firearm, or used it to facilitate the offense.”
R.C. 2941.145(A); R.C. 2929.14(B)(1)(a).
{¶9} Generally, when a defendant is indicted on multiple firearm specifications,
those specifications must be merged at sentencing if the offenses were committed as part
of the same transaction. R.C. 2929.14(B)(1)(b). But in Vanderhorst, we
acknowledged that the legislature carved out an exception as set forth in R.C.
2929.14(B)(1)(g). The statute provides as follows:
If an offender is convicted of or pleads guilty to two or more felonies, if one
or more of those felonies are aggravated murder, murder, attempted
aggravated murder, attempted murder, aggravated robbery, felonious
assault, or rape, and if the offender is convicted of or pleads guilty to a
[firearm] specification * * * in connection with two or more of the felonies,
the sentencing court shall impose on the offender the prison term specified
under division (B)(1)(a) of this section for each of the two most serious
specifications of which the offender is convicted or to which the offender
pleads guilty and, in its discretion, also may impose on the offender the
prison term specified under that division for any or all of the remaining
specifications.
{¶10} In Vanderhorst, the defendant was convicted on multiple counts of
kidnapping, aggravated robbery, attempted murder, and felonious assault, as well as
firearm specifications. Vanderhorst, 2013-Ohio-1785, at ¶ 1. We concluded that under
R.C. 2929.14(B)(1)(g), the trial court was required to impose consecutive prison terms for
the two most serious firearm specifications, and that the merger rule did not apply. Id. at
¶ 11.
{¶11} In the instant case, if R.W. were an adult, there would be no question that
Vanderhorst and R.C. 2929.14(B)(1)(g) would apply. But R.W. is not an adult, and
there is no authority for applying R.C. 2929.14(B)(1)(g) to his case. That provision is
part of the adult felony sentencing statute, and nowhere does it state that it applies to
juveniles.
{¶12} In contrast, R.C. 2941.145(C) provides that the firearm specification
provision “may be used in a delinquent child proceeding in the manner and for the
purpose described in section 2152.17 of the Revised Code.” (Emphasis added.) R.C.
2941.145(C). Accordingly, R.C. 2152.17, not R.C. 2929.14(B)(1)(g), governs
commitments for firearm specifications in juvenile cases.
{¶13} In the instant case, the juvenile court’s only stated reason for vacating its
original disposition and entering the new one was its belief that it was required to comply
with R.C. 2929.14(B)(1)(g) as set forth in Vanderhorst. The trial court abused its
discretion in basing the disposition on this body of law, because it is inapplicable to a
juvenile disposition. Accordingly, we sustain the sole assignment of error.
{¶14} But we also conclude that application of R.C. 2152.17 could lead to the
same result that was reached by the juvenile court in this case. Under R.C.
2152.17(A)(2), if the juvenile court finds that a R.C. 2941.145 firearm specification
applies, then “the court shall commit the child to the department of youth services for the
specification for a definite period of not less than one and not more than three years,” in
addition to the commitment for the underlying offense. Under R.C. 2152.17(E):
The court shall not commit a child to the legal custody of the department of
youth services for a specification pursuant to this section for a period that
exceeds five years for any one delinquent act. Any commitment imposed
pursuant to division (A), (B), (C), or (D)(1) of this section shall be in
addition to, and shall be served consecutively with and prior to, a period of
commitment ordered under this chapter for the underlying delinquent act,
and each commitment imposed pursuant to division (A), (B), (C), or (D)(1)
of this section shall be in addition to, and shall be served consecutively
with, any other period of commitment imposed under those divisions. If a
commitment is imposed under division (A) or (B) of this section and a
commitment also is imposed under division (C) of this section, the period
imposed under division (A) or (B) of this section shall be served prior to the
period imposed under division (C) of this section.
(Emphasis added.) According to R.C. 2152.17(E), if a juvenile offender is adjudicated
delinquent for multiple firearm specifications, the terms of commitment for those firearm
specifications must run consecutively to each other, as well as consecutively to the
underlying delinquent act.1
1
Furthermore, under R.C. 2152.17(F), the juvenile court has discretion in this case to order
that each of the underlying felonious assault commitments run consecutive to each other as well.
{¶15} In the instant case, R.W. was adjudicated delinquent on two counts of
felonious assault with one- and three-year firearm specifications attaching to each count.
On remand, the trial court is instructed to enter a new disposition in accordance with R.C.
2152.17(E) and (F).
{¶16} This cause is reversed and remanded to the lower court for further
proceedings consistent with this opinion.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
________________________________________
KENNETH A. ROCCO, JUDGE
MARY J. BOYLE, A.J., and
SEAN C. GALLAGHER, J., CONCUR