State concedes sentencing error. A three-year firearm specification was imposed on a juvenile offender who the court found did "not actually have possession of the gun." Sentence for a juvenile offender firearm specification is statutorily limited to one year when the specification is based on complicity with another's conduct, but the juvenile did not personally "furnish, use or dispose" of any firearm. R.C. 2152.17(B)(1). Judgment reversed and remanded.
Decided 2017-06-09
[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)
:
:
...........
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
.............
HALL, P.J.
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{¶ 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
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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.
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Copies mailed to:
Mathias H. Heck
Michael J. Scarpelli
Charlyn Bohland
Hon. Anthony Capizzi
