      [Cite as In re D.L., 2018-Ohio-2161.]
              IN THE COURT OF APPEALS
          FIRST APPELLATE DISTRICT OF OHIO
               HAMILTON COUNTY, OHIO



IN RE: D.L.                                   :    APPEAL NOS. C-170152
                                                                C-170153
                                              :                 C-170154
                                                    TRIAL NOS. 16-5843Z
                                              :                16-7533Z
                                                               16-7534Z
                                              :

                                              :         O P I N I O N.




Appeals From: Hamilton County Juvenile Court

Judgments Appealed From Are: Affirmed in C-170152 and C-170153;
                             Appeal Dismissed in C-170154

Date of Judgment Entry on Appeal: June 6, 2018


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney, for Appellee, State of Ohio

Timothy Young, Ohio Public Defender, and Victoria Bader, Assistant State Public
Defender, for Appellant D.L.
                     OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Judge.

       {¶1}   D.L. appeals his dispositions following his admission to conduct that,

if committed by an adult, would have constituted two felonious assaults, each with

two firearm specifications, one for having a firearm on his person in violation of R.C.

2941.141 and one for using a firearm to facilitate the offense under R.C. 2941.145.

The juvenile court imposed a one-year commitment to The Ohio Department of

Youth Services (“DYS”) and an additional one-year commitment for using a firearm

to facilitate the offense for each felonious-assault offense. D.L. alleges that the

commitments on multiple firearm specifications violate his double-jeopardy and

equal-protection rights, and that his trial counsel was ineffective for failing to object

on the basis that the dispositions were unconstitutional. We affirm the judgments of

the juvenile court in the cases numbered C-170152 and C-170153.

       {¶2}   In the appeal numbered C-170154, D.L. appealed his receiving-stolen-

property adjudication, but did not raise any assignments of error regarding that

adjudication or disposition. Therefore, we dismiss that appeal as abandoned.

                         Facts and Procedural History

       {¶3}   On August 23, 2016, a complaint was filed alleging D.L. was

delinquent for receiving stolen property, a felony of the fourth degree if committed

by an adult. On November 7, 2016, two additional complaints were filed, charging

him with two counts of felonious assault, felonies of the second degree if committed

by an adult, each with two gun specifications.

       {¶4}   D.L. admitted to all of the charges.       Both of the felonious-assault

offenses occurred on November 6, 2016. D.L. fired multiple shots at Keyala White’s

vehicle while she was driving. One of the bullets struck her car, and one of the

bullets struck Jonathan Blazar, an innocent bystander.



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                     OHIO FIRST DISTRICT COURT OF APPEALS


       {¶5}   At the disposition, the trial court committed D.L. to DYS for one year

on the felonious-assault offense against White and one year for the gun specification

under R.C. 2941.145, one year for the felonious-assault offense against Blazar and

one year for the gun specification under R.C. 2941.145, and six months on the

receiving-stolen-property offense.    The commitments were ordered to be served

consecutively, resulting in an aggregate minimum commitment of four and one-half

years in DYS, with the maximum commitment lasting until D.L. turned 21 years old.

       {¶6}   D.L.’s counsel objected to the imposition of two commitments for the

firearm specifications. He argued that the court could only impose one commitment

because the shots were fired as part of the same act or transaction.

       {¶7}   D.L. now appeals, arguing that multiple commitments on the firearm

specifications violated his double-jeopardy and equal-protection rights, and that his

counsel was ineffective for failing to object on constitutional grounds.

                                Relevant Statutes

       {¶8}   R.C. 2929.14(B) is the adult felony-sentencing statute that governs

sentences for gun specifications. A trial court is required to impose a prison term of

three years when the offender used a firearm to facilitate the offense.           R.C.

2929.14(B)(1)(a). Generally, “a court shall not impose more than one prison term on

an offender under division (B)(1)(a) of this section for felonies committed as part of

the same act or transaction.” R.C. 2929.14(B)(1)(b).

       {¶9}   Dispositions for juvenile specifications are governed by R.C. 2152.17.

Under R.C. 2152.17(A)(2), if the juvenile court finds that the child used a weapon to

facilitate the offense, 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. A

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                      OHIO FIRST DISTRICT COURT OF APPEALS


commitment for a specification “cannot exceed[ ] five years for any one delinquent

act.” R.C. 2152.17(E). Unlike the adult statute, R.C. 2152.17(E) allows the juvenile

court to impose multiple dispositions even if the offenses were part of the same act or

transaction.

                                Double Jeopardy

       {¶10} In his first assignment of error, D.L. argues that R.C. 2152.17(E)

violates the Double Jeopardy Clause because it allows the juvenile court to impose

multiple, cumulative commitments for firearm specifications when the underlying

offenses are committed as part of the same incident. D.L. further contends that R.C.

2929.14(B)(1)(b), which prohibits cumulative punishment for adults convicted of

multiple firearm specifications when the underlying felonies are “committed as part

of the same act or transaction,” must be applied to juveniles to protect their double-

jeopardy rights.

       {¶11} D.L. did not raise this issue below, and the failure to raise a

constitutional issue at the trial level acts as “a waiver of such issue and a deviation

from this state's orderly procedure, and therefore need not be heard for the first time

on appeal.” State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277 (1989), syllabus. “We

may, in our discretion, review the issue of the statute’s constitutionality for plain

error.” State v. Flannery, 1st Dist. Hamilton No. C-140426, 2015-Ohio-1360, ¶ 7,

citing In re M.D., 38 Ohio St.3d 149, 527 N.E.2d 286 (1988), syllabus.

       {¶12} Because D.L. did not raise the issue below, we review for plain error.

See In re J.T. at ¶ 15.

       {¶13} It is well established that firearm specifications are penalty

enhancements, not offenses. See State v. Adams, 1st Dist. Hamilton No. C-120059,

2013-Ohio-926, ¶ 34, citing State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945

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                      OHIO FIRST DISTRICT COURT OF APPEALS


N.E.2d 498, paragraph one of the syllabus.        “Like other enhancement statutes,

firearm specifications do not implicate the Double Jeopardy Clause because they

enhance the punishment for the underlying offense and do not place the juvenile in

jeopardy twice.” (Citations omitted.) In re J.T. at ¶ 20.

       {¶14} Because we find that R.C. 2152.17(E) does not violate the Double

Jeopardy Clause, we overrule the first assignment of error.

                                 Equal Protection

       {¶15} Next, D.L. contends that R.C. 2152.17(E) violates his equal-protection

right because the adult statute prohibits multiple sentences for gun specifications if

the felonies are committed as part of the same act or transaction. A “transaction” has

been defined as “a series of continuous acts bound together by time, space, and

purposes, and directed toward a single objective.” State v. Wills, 69 Ohio St.3d 690,

691, 635 N.E.2d 370 (1994). When multiple gunshots are fired in rapid succession

resulting in multiple victims, the offenses are part of the same transaction. State v.

Young, 2d Dist. Montgomery No. 23642, 2011-Ohio-747, ¶ 55.             Because D.L.’s

offenses were part of a single transaction, he argues that juveniles receive less

protection from cumulative sentences in violation of his right to equal protection.

       {¶16} D.L. did not object to the dispositions on equal-protection grounds

during the juvenile court proceedings. Therefore, this court reviews the trial court’s

decision for plain error. State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034,

19 N.E.3d 900, ¶ 2.

       {¶17} The Equal Protection Clause prohibits a state from “deny[ing] to any

person within its jurisdiction the equal protection of the laws.”         “The Equal

Protection Clause does not require that a state never distinguish between citizens,




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                      OHIO FIRST DISTRICT COURT OF APPEALS


but only that the distinctions made are not arbitrary or invidious.” In re Z.S., 12th

Dist. Clermont Nos. CA2005-02-010 and CA2005-02-011, 2005-Ohio-7033, ¶ 17.

       {¶18} Statutes are presumed constitutional, unless a constitutional violation

is shown beyond a reasonable doubt. Conley v. Shearer, 64 Ohio St.3d 284, 289, 595

N.E.2d 862 (1992). Courts must employ all rules of construction to uphold a statute

whenever possible. Id.

       {¶19} Legislation that distinguishes based on age is subject to the rational-

basis test. See State v. McKinney, 2015-Ohio-4398, 46 N.E.3d 179, ¶ 27 (1st Dist.).

The rational-basis test “requires us to uphold the statutes if they are rationally

related to a legitimate government purpose * * * .” State v. Aalim, 150 Ohio St.3d

486, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 34. Under rational-basis review, Ohio courts

have consistently found a reasonable basis to sentence juveniles differently than

adults. See In re J.T., 2017-Ohio-7723, 85 N.E.3d 763, ¶ 32. “A rational basis exists

for sentencing juveniles in a ‘different fashion’ than adults because the purposes of

felony sentencing and juvenile sentencing are different, and juvenile courts are given

wider discretion in the early release of offenders.” In re Z.S. at ¶ 27. Distinctions

between juveniles and adults are permitted with respect to incarceration and

detention.   In re Chappell, 164 Ohio App.3d 628, 2005-Ohio-6451, 843 N.E.2d

823, ¶ 46 (7th Dist.).

       {¶20} The juvenile system “provide[s] for the care, protection, and mental

and physical development of children.” Id. at ¶ 49. The state has a legitimate

interest in “rehabilitating the juvenile as well as protecting the public.” In re J.T. at ¶

34. Consistent with this purpose, R.C. 2152.17(E) promotes the state’s objective of

protection, development, and rehabilitation of juveniles. Accordingly, we overrule

his second assignment of error.

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                     OHIO FIRST DISTRICT COURT OF APPEALS


                      Ineffective Assistance of Counsel

       {¶21} In his third assignment of error, D.L. asserts that his counsel was

ineffective in failing to raise the constitutional issues addressed in the first and

second assignments of error.

       {¶22} To establish a claim for ineffective assistance of counsel, the appellant

has the burden of demonstrating that (1) the performance of defense counsel was

seriously flawed and deficient, and (2) there is a reasonable probability that the

result of the proceeding would have been different had defense counsel provided

proper representation. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984).

       {¶23} Since we have found no constitutional violations, we cannot conclude

that D.L. received ineffective assistance in counsel’s failure to object to the

dispositions on double-jeopardy and equal-protection grounds. We overrule his

third assignment of error.

                                     Conclusion

       {¶24} We affirm the judgment of the juvenile court in the appeals numbered

C-170151 and C-170152, and we dismiss the appeal numbered C-170153.

                                                              Judgment accordingly.

MOCK, P.J., and CUNNINGHAM, J., concur.




Please note:
       The court has recorded its own entry this date.




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