[Cite as State v. Hicks, 2014-Ohio-1444.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                    :

                 Plaintiff-Appellee,              :

v.                                                :                   No. 13AP-429
                                                                   (C.P.C. No. 12CR-1050)
Dejuan Hicks,                                     :
                                                              (REGULAR CALENDAR)
                 Defendant-Appellant.             :


                                            D E C I S I O N

                                       Rendered on April 3, 2014


                 Ron O'Brien, Prosecuting Attorney, and Sheryl L. Prichard,
                 for appellee.

                 Todd Barstow, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas

CONNOR, J.
        {¶ 1} Defendant-appellant, Dejuan Hicks, appeals from a judgment of the
Franklin County Court of Common Pleas, convicting him of robbery with a firearm
specification and sentencing him to three years in prison.
A. Facts and Procedural History
        {¶ 2} The prosecutor set forth the basic facts of the case during appellant's plea
hearing. According to the prosecutor, at approximately 7:30 p.m. on December 10, 2011,
Columbus police arrived at the home of the victim, Susan Carpening, to follow-up on her
report of an assault and robbery that occurred earlier that day. Carpening told police the
following: a male black assaulted and robbed her after she left a convenience store on
Granville Street; her assailant approached her from behind and struck her on the back of
the head; pushed her toward the rear of a nearby apartment complex and demanded
No. 13AP-429                                                                           2


money; struck her with the black handgun both on the head and on the bridge of her nose;
stepped on her hand when she reached to answer her cellular phone; reached into her bra
and stole $106; and pointed his gun at her head and told her not to scream as he fled.
Emergency personnel took Carpening to the hospital where she was treated for a broken
nose and received stitches to close a wound on her head.
       {¶ 3} Based upon surveillance video and Carpening's description of her assailant,
police compiled a photographic array that included a photograph of appellant. After
viewing the array, Carpening identified appellant as the man who had assaulted and
robbed her. Columbus Police subsequently took appellant into custody and conducted an
interview during which appellant denied any involvement in the crime. However, in later
discussions with his juvenile probation officer, appellant admitted his involvement in a
crime that was remarkably similar to the assault and robbery of Carpening.
       {¶ 4} On December 13, 2011, the State filed a delinquency complaint in Juvenile
court alleging that appellant committed aggravated robbery, robbery, and kidnapping. On
February 27, 2012, a juvenile court judge conducted a bind-over hearing pursuant to R.C.
2152.12. On February 28, 2012, the juvenile court determined that the transfer of the case
from the juvenile division was mandatory pursuant to R.C. 2152.12(A)(1)(b)(ii), based
upon the following: appellant was 17-years old at the time of the commission of the
offense; probable cause existed that appellant committed aggravated robbery, a Category
Two Offense; and appellant possessed and used a firearm during the commission of the
offense.
       {¶ 5} Thereafter, on March 12, 2012, a Franklin County Grand Jury indicted
appellant on the additional charges of felonious assault and a three-year firearm
specification. Appellant initially entered a plea of not guilty but subsequently accepted a
negotiated plea. On February 20, 2013, the trial court conducted a hearing on appellant's
change of plea and, as a result of the hearing, appellant pleaded guilty to robbery with a
firearm specification. The prosecutor filed a nolle prosequi as to the remaining charges.
The parties submitted a joint sentencing recommendation to the trial court of three years
for robbery and one year for the firearm specification.
No. 13AP-429                                                                                                3


         {¶ 6} The trial court scheduled a sentencing hearing for March 6, 2013. However,
on the date of the hearing, new counsel entered an appearance on behalf of appellant. The
trial court continued appellant's sentencing hearing to April 22, 2013, but revoked his
bond. Thereafter, on March 28, 2013, appellant filed a motion to withdraw his guilty plea.
According to the parties, the trial court denied the motion at a hearing held on April 9,
2013.1 At the April 22, 2013 sentencing hearing, the trial court imposed the sentence
previously recommended by the parties. Appellant filed a timely notice of appeal from the
judgment of the trial court.
B. Assignments of Error
         {¶ 7} Appellant appeals from the Franklin County Court of Common Pleas,
assigning the following as error:
                 I.  THE TRIAL COURT ERRED AND ABUSED ITS
                 DISCRETION BY NOT REMANDING APPELLANT TO THE
                 FRANKLIN COUNTY DOMESTIC RELATIONS/JUVENILE
                 COURT FOR FURTHER PROCEEDINGS AS REQUIRED BY
                 STATUTE.

                 II. THE TRIAL COURT ABUSED ITS DISCRETION IN
                 FAILING TO CONDUCT A HEARING ON APPELLANT'S
                 MOTION TO WITHDRAW HIS GUILTY PLEA.

    C. Standard of Review
         {¶ 8} Juvenile courts have exclusive original jurisdiction over any person under
age 18 alleged to be delinquent for committing acts that would constitute a criminal
offense if committed by an adult. State v. Golphin, 81 Ohio St.3d 543, 545 (1998). A
juvenile offender may not be tried as an adult unless the juvenile court transfers
jurisdiction of the matter to an adult court. Id. Absent a proper bind-over proceeding in
the juvenile court, the common pleas court lacks subject-matter jurisdiction over the case
and any conviction obtained there is void ab initio. State v. Wilson, 73 Ohio St.3d 40, 44
(1995).


1 Although the parties maintain that a transcript of the April 9, 2013 hearing is part of the supplemental
record filed by the State on August 29, 2013, we note that the State's filing contains only two transcripts: one
from the April 22, 2013 sentencing hearing; and the other from the February 20, 2013 hearing on appellant's
change of plea.
No. 13AP-429                                                                                                4


        {¶ 9} The issue of a juvenile court's subject matter jurisdiction cannot be waived.

In re Graham, 147 Ohio App.3d 452, 457-58, 2002-Ohio-2407, ¶ 30 (7th Dist.2002). The

failure of a party to challenge a court's subject matter jurisdiction over a juvenile does not

confer jurisdiction on a court where none exists. Id., citing State v. Wilson, 73 Ohio St.3d

40, 46 (1995). Inasmuch as this appeal challenges the trial court's jurisdiction to carry out

the adult sentence imposed upon appellant, our review is de novo. State v. Conway, 10th

Dist. No. 12AP-412, 2013-Ohio-3741.

D. Legal Analysis
        {¶ 10} In his first assignment of error, appellant contends that the trial court
committed plain error when it failed to stay his sentence and remand the case to the
Juvenile Division for a juvenile court judge to determine whether appellant was
"amenable to care or rehabilitation in the juvenile system." 2 R.C. 2152.121, provides in
relevant part:
                 (B) If a complaint is filed against a child alleging that the child
                 is a delinquent child, if the case is transferred pursuant to
                 division (A)(1)(a)(i) or (A)(1)(b)(ii) of section 2152.12 of the
                 Revised Code, and if the child subsequently is convicted of or
                 pleads guilty to an offense in that case, the sentence to be
                 imposed or disposition to be made of the child shall be
                 determined as follows:

                 ***

                 (3) If the court in which the child is convicted of or pleads
                 guilty to the offense determines under division (B)(1) of this
                 section that, had a complaint been filed in juvenile court
                 alleging that the child was a delinquent child for committing
                 an act that would be that offense if committed by an adult,

2 R.C. 2152.12(B)(3) states: "The child is not amenable to care or rehabilitation within the juvenile system,
and the safety of the community may require that the child be subject to adult sanctions. In making its
decision under this division, the court shall consider whether the applicable factors under division (D) of this
section indicating that the case should be transferred outweigh the applicable factors under division (E) of
this section indicating that the case should not be transferred. The record shall indicate the specific factors
that were applicable and that the court weighed."
No. 13AP-429                                                                                             5


                division (A) of section 2152.12 of the Revised Code would not
                have required mandatory transfer of the case but division (B)
                of that section would have allowed discretionary transfer of
                the case, the court shall determine the sentence it believes
                should be imposed upon the child under Chapter 2929. of the
                Revised Code, shall impose that sentence upon the child, and
                shall stay that sentence pending completion of the
                procedures specified in this division. Upon imposition and
                staying of the sentence, the court shall transfer jurisdiction of
                the case back to the juvenile court that initially transferred the
                case and the juvenile court shall proceed in accordance with
                this division. In no case may the child waive a right to a
                hearing of the type described in division (B)(3)(b) of this
                section, regarding a motion filed as described in that division
                by the prosecuting attorney in the case.

(Emphasis added.)

        {¶ 11} The State concedes that the trial court committed plain error when it failed
to stay appellant's sentence and remand the case to the juvenile division for an R.C.
2152.12 hearing.3 Appellant pleaded guilty to robbery, an offense that would not have
required mandatory transfer of the case. See R.C. 2152.10(A). Additionally, had the
original juvenile complaint alleged that appellant was delinquent based solely upon a
charge of robbery, the case could be transferred from juvenile court only upon a finding
by such court that appellant was "not amenable to care or rehabilitation within the
juvenile system." See R.C. 2152.12(B). Under the statutory scheme, the juvenile division
retained jurisdiction of the case, even after transfer, for the purpose of conducting an R.C.
2152.12 hearing. See State v. Adams, 10th Dist. No. 12AP-83, 2012-Ohio-5088.
        {¶ 12} For the foregoing reasons, we sustain appellant's first assignment of error.
Additionally, inasmuch as appellant now concedes that the trial court conducted a hearing
on appellant's motion to withdraw his guilty plea, appellant's second assignment of error
is moot.


3 R.C. 2152.121(B)(3)(b) states impertinent part: "Within fourteen days after the filing of the journal entry
regarding the transfer, the prosecuting attorney in the case may file a motion in the juvenile court that
objects to the imposition of a serious youthful offender dispositional sentence upon the child and requests
that the sentence imposed upon the child by the court in which the child was convicted of or pleaded guilty
to the offense be invoked."
No. 13AP-429                                                                      6


E. Conclusion
      {¶ 13} Having sustained appellant's first assignment of error and having
determined that appellant's second assignment of error is moot, the judgment of the
Franklin County Court of Common Pleas is hereby reversed and the case is remanded for
further proceedings consistent with this opinion.
                         Judgment reversed and case remanded for further proceedings.

                          SADLER, P.J., and TYACK, J., concur.
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