[Cite as State v. Armstead-Williams, 2017-Ohio-1004.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                           :         OPINION

                 Plaintiff-Appellee,                     :
                                                                   CASE NO. 2016-P-0007
        - vs -                                           :

ORLANDO LEE ARMSTEAD-WILLIAMS,                           :

                 Defendant-Appellant.                    :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2015 CR
0374.

Judgment: Reversed and remanded.


Victor Vigluicci, Portage County Prosecutor, and Kristina Reilly, Assistant Prosecutor,
241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Timothy Young, Ohio Public Defender, and Charlyn Bohland, Assistant State Public
Defender, 250 East Broad Street, Suite 1400, Columbus, OH 43215 (For Defendant-
Appellant).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellant, Orlando Lee Armstead-Williams, appeals his conviction,

following his guilty plea, of aggravated robbery, aggravated burglary, and two counts of

kidnapping.         At    issue    is   whether         Ohio’s   mandatory-bindover   statutes   are

unconstitutional. For the reasons that follow, we reverse and remand.

        {¶2}     On March 8, 2015, Tyler Shepherd was in his apartment with some friends

when two black males forced their way in. Appellant, while holding a gun on Tyler,
ordered him to give them all the marijuana and money he had. Tyler hesitated and, as

a result, appellant struck him in the head with his gun. Appellant aimed his gun at

everyone in the apartment, and told them to get on the floor. He said if anyone looked

at them, he would shoot them.        After the victims laid on the floor, appellant told

everyone to put their hands behind their backs. The intruders tied the victims’ hands

and then tied the victims together. While the victims were on the floor, appellant “pistol-

whipped” them. The intruders searched their pockets and wallets demanding money.

They searched the apartment for drugs and money, stealing two cell phones and about

$2,500 in cash.

       {¶3}   On March 17, 2015, appellant, who was one week shy of his18th birthday,

was charged in a complaint filed in the Portage County Juvenile Court with kidnapping

and aggravated robbery, each with a firearm specification, if committed by an adult. He

entered a denial to the complaint. On the state’s motion, a Juvenile Rule 30 hearing

took place at which appellant waived the probable cause hearing and stipulated to a

finding of probable cause and to the bindover.

       {¶4}   On May 29, 2015, the grand jury returned a 15-count indictment against

appellant, charging him with aggravated robbery, aggravated burglary, two counts of

felonious assault, nine counts of kidnapping, tampering with evidence, and possession

of criminal tools.

       {¶5}   On August 13, 2015, appellant and the state entered a plea bargain,

pursuant to which appellant pled guilty to aggravated robbery, a felony of the first

degree, with a firearm specification (Count 1); aggravated burglary, a felony of the first

degree, with a firearm specification (Count 2); and two counts of kidnapping, each being




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a felony of the first degree, and each carrying a firearm specification (Counts 5 and 6).

The court found that appellant was advised of his rights; that he understood and waived

those rights; and that he entered his guilty plea voluntarily. The court accepted

appellant’s guilty plea and found him guilty of each of the offenses with the

accompanying specification to which he pled guilty. On the state’s motion, the court

dismissed the remaining 11 counts of the indictment. Appellant was referred for a pre-

sentence investigation. The state and defense filed sentencing memoranda on the

issue of merger.

       {¶6}   On October 9, 2015, the court held a sentencing hearing. On Count 1,

aggravated robbery, the court sentenced appellant to three years in prison and three

years on the firearm specification, each term to be served consecutively to the other.

On Count 2, aggravated burglary, the court sentenced appellant to three years, which

was to be served concurrently with the sentence for aggravated robbery, but the firearm

specification was ordered to be served consecutively. On Count 5, the kidnapping of

Tyler Shepherd, the court sentenced appellant to three years, to be served concurrently

with the sentence for aggravated robbery and aggraved burglary, but the firearm

specification was ordered to be served consecutively. On Count 6, the kidnapping of

another victim, Kurt Pietrick, the court sentenced appellant to three years, to be served

concurrently with the sentences imposed for aggravated robbery, aggravated burglary,

and the kidnapping of Tyler Shepherd, but the firearm specification was ordered to be

served consecutively, for a total of 15 years in prison.

       {¶7}   Appellant appeals, asserting five assignments of error, as follows:




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       {¶8}   “[1.] The trial court erred when it failed to merge for sentencing offenses

that had a similar import, arose from the same conduct, and were not committed

separately or with a separate animus, in violation of Orlando Armstead-Williams’s rights

under the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution;

Article I, Section 10, Ohio Constitution; and R.C. 2941.25.

       {¶9}   “[2.] The trial court was without authority to sentence Orlando Armstead-

Williams to prison for two counts of kidnapping, because the court was required to

impose a sentence in accordance with R.C. 2152.121 and remand the matter to the

juvenile court after imposing a stayed sentence.

       {¶10} “[3.] The juvenile court erred when it transferred Orlando Armstead-

Williams’s case to criminal court because the mandatory transfer provisions in R.C.

2152.10(A)(2)(b) and 2152.12(A)(1)(b) violate a child’s right to due process as

guaranteed by the Fourteenth Amendment to the U.S. Constitution; and, Article I,

Section 16, Ohio Constitution.

       {¶11} “[4.] The juvenile court erred when it transferred Orlando Armstead-

Williams’s case to criminal court because the mandatory transfer provisions in R.C.

2152.10(A)(2)(b) and 2152.12(A)(1)(b) violate a child’s right to equal protection as

guaranteed by the Fourteenth Amendment to the U.S. Constitution; and, Article I,

Section 2, Ohio Constitution.

       {¶12} “[5.] Orlando Armstead-Williams was denied the effective assistance of

counsel, in violation of the Sixth and Fourteenth Amendments to the United States

Constitution; Ohio Constitution, Article I, Section 10.”




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      {¶13} Because appellant’s third and fourth assignments of error are related and

dispositive of this appeal, we first address them together. Under these assigned errors,

appellant argues that Ohio’s mandatory-bindover statutes violate due process and equal

protection. These same arguments were recently addressed by the Supreme Court of

Ohio in State v. Aalim, __ Ohio St.3d __, 2016-Ohio-8278.

      {¶14} In Aalim, the juvenile was charged with conduct that would have

constituted aggravated robbery and a firearm specification if committed by an adult.

Following his mandatory transfer to the general division, the juvenile was indicted, pled

no contest, and was found guilty of aggravated robbery and sentenced as an adult. The

juvenile appealed, arguing the mandatory-transfer statutes are unconstitutional. The

Second District rejected this argument and affirmed the juvenile’s conviction.

      {¶15} On further appeal, the Ohio Supreme Court reversed, holding:            “The

mandatory transfer of juveniles to the general division of common pleas court violates

juveniles’ right to due process as guaranteed by Article I, Section 16 of the Ohio

Constitution.” Id. at paragraph one of the syllabus. However, the Court also held: “The

discretionary transfer of juveniles 14 years or older to the general division of common

pleas court pursuant to the     process set forth in R.C. 2152.10(B) and 2152.12(B)

through (E) satisfies due process as guaranteed by Article I, Section 16 of the Ohio

Constitution.” Aalim, at paragraph two of the syllabus.

      {¶16} In severing the mandatory-transfer statutes, the Ohio Supreme Court

stated:

      {¶17} “When this court holds that a statute is unconstitutional, severing
            the portion that causes it to be unconstitutional may be
            appropriate.” Cleveland v. State, 138 Ohio St.3d 232, 2014-Ohio-
            86, ¶18, citing R.C. 1.50. * * * Clearly, the mandatory-transfer



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              provisions and discretionary-transfer provisions are capable of
              separation, can be read independently, and can stand
              independently. Furthermore, it is possible to carry out transfers of
              juveniles to adult court once the unconstitutional provisions are
              stricken. And no words or terms need to be inserted in the
              discretionary-transfer provisions in order to give effect to them.
              Therefore, having held that the mandatory-transfer provisions of
              R.C. 2152.10(A) and 2152.12(A) are unconstitutional, we sever
              those provisions. After the severance, transfers of juveniles
              previously subject to mandatory transfer may occur pursuant to
              R.C. 2152.10(B) and 2152.12(B). Aalim, supra, at ¶29.

       {¶18} Thus, pursuant to Aalim, Ohio’s mandatory-transfer statutes violate

juveniles’ right to due process, while the discretionary-transfer statutes do not.

Accordingly, we reverse the trial court’s judgment and remand this cause to the juvenile

court for an amenability hearing pursuant to R.C. 2152.10 and 2152.12. See Aalim at

¶32. Further, since we hold the mandatory-transfer statutes are unconstitutional on

due-process grounds, appellant’s remaining assignments of error are denied as moot.

See Aalim at ¶30.

       {¶19} For the reasons stated in the opinion of this court, it is the judgment and

order of this court that the judgment of the Portage County Court of Common Pleas is

reversed, and this matter is remanded to the juvenile court for further proceedings

consistent with this opinion.



TIMOTHY P. CANNON, J.,

THOMAS R. WRIGHT, J.,

concur.




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