         [Cite as State v. Carberry, 2018-Ohio-1060.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :    APPEAL NO. C-170095
                                                        TRIAL NO. B-1604243
        Plaintiff-Appellee,                        :

  vs.                                              :      O P I N I O N.

THOMAS CARBERRY,                                   :

    Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
                           Remanded

Date of Judgment Entry on Appeal: March 23, 2018


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

The Office of the Ohio Public Defender and Timothy B. Hackett, Assistant State
Public Defender, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS




CUNNINGHAM, Judge.
       {¶1}   On May 9, 2016, in the Clermont County Juvenile Court, defendant-

appellant Thomas Carberry was adjudicated delinquent for committing an act which,

had it been committed by an adult, would have constituted the crime of rape, in

violation of R.C. 2907.02. The matter was transferred to the Hamilton County

Juvenile Court for disposition.

       {¶2}   While the disposition was pending, three complaints were filed in the

Hamilton County Juvenile Court, each alleging that Carberry had committed an act

which, had it been committed by an adult, would have constituted gross sexual

imposition. The state requested that the juvenile court transfer Carberry’s gross-

sexual-imposition charges to the common pleas court for trial as an adult. Carberry

waived probable cause, and the case was continued for a mental evaluation as

required by Juv.R. 30. The juvenile court held consolidated hearings on the rape

disposition and on Carberry’s amenability to rehabilitation in the juvenile system.

On the rape charge, the court committed Carberry to the Department of Youth

Services for a minimum period of 12 months and a maximum not to exceed his

attainment of the age of 21. The court found that Carberry was not amenable to

rehabilitation in the juvenile system on the gross-sexual-imposition charges, and

transferred them to the adult court.

       {¶3}   After being bound over, Carberry was indicted for three counts of gross

sexual imposition, in violation of R.C. 2907.05(A)(4). He pleaded guilty to one count

of gross sexual imposition, and the other counts were dismissed. The parties agreed

to a 30-month term of incarceration. The trial court imposed the agreed-upon 30-

month sentence, with credit for 175 days served, and classified Carberry as a Tier II

sex offender. Carberry has appealed.


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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶4}   Carberry’s first assignment of error alleges that the juvenile court

abused its discretion and violated Carberry’s due-process rights in transferring his

gross-sexual-imposition cases to the common pleas court.

       {¶5}   “We review a juvenile court’s determination regarding a child’s

amenability to rehabilitation in the juvenile system under an abuse-of-discretion

standard.” State v. Amos, 1st Dist. Hamilton No. C-150265, 2016-Ohio-1319, ¶ 38,

citing In re M.P., 124 Ohio St.3d 445, 2010-Ohio-599, 923 N.E.2d 584, ¶ 14. In

determining whether the juvenile is amenable to rehabilitation in the juvenile

system, the juvenile court is required to consider statutory factors that weigh in favor

of, and against transfer of, the juvenile’s case to the common pleas court. Amos at ¶

38; see R.C. 2152.12(B)(3). “The factors weighing in favor of transfer are listed in

R.C. 2152.12(D), while the factors weighing against transfer are listed in R.C.

2152.12(E).” Amos at ¶ 38, citing State v. Dawson, 1st Dist. Hamilton No. C-130765,

2015-Ohio-488, ¶ 12. In addition to the listed factors, the juvenile court is required

to consider “any other relevant factors.”          R.C. 2152.12(D) and (E); State v.

Washington, 1st Dist. Hamilton No. C-130213, 2014-Ohio-4178, ¶ 18. “In making its

determination, the juvenile court need only identify those specific factors that were

applicable and that it weighed in making its determination.” Amos at ¶ 38, citing

Washington at ¶ 19 and 23.

       {¶6}   The juvenile court ordered a mental evaluation, held a hearing,

discussed on the record the factors weighing in favor of transferring jurisdiction, and

recorded the factors on a worksheet attached to the entry transferring jurisdiction.

Pursuant to R.C. 2152.12(D), the juvenile court indicated on the worksheet that it had

found these factors weighing in favor of transfer: the victim suffered physical or

psychological harm or serious economic harm; the victim’s physical or psychological

vulnerability or age exacerbated the physical or psychological harm; the child’s

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                     OHIO FIRST DISTRICT COURT OF APPEALS



relationship with the victim facilitated the act charged; the child is emotionally,

physically, or psychologically mature enough for transfer; and there is not sufficient

time to rehabilitate the child within the juvenile system. The court did not find any

R.C. 2152.12(E) factors weighing against transfer.

       {¶7}    The court considered the report of Dr. Kathleen Hart, a board-certified

clinical child-and-adolescent psychologist. Dr. Hart concluded that Carberry was

amenable to treatment in the juvenile system. But Dr. Hart also acknowledged that

the court had factors to consider that fell outside the scope of her report, including

the severity of the offenses, the availability of resources to address Carberry’s

rehabilitation needs, and the impact of Carberry’s behavior on his victims.

       {¶8}    Carberry’s victims were his five- and 12-year-old cousins, one of whom

had cancer and was on medication that made her drowsy. The record shows that the

juvenile court was very concerned that there was not sufficient time to rehabilitate

Carberry in the juvenile system because he was 19-and-a-half years old at the time of

the hearing.   The court stated that Carberry was “mentally mature enough and

physically mature enough and chronologically mature enough to go to the adult

court.” The court also considered that Carberry had no juvenile record other than

the adjudication for rape in Clermont County.

       {¶9}    The record shows that the juvenile court complied with all the

requirements for discretionary transfer. The court’s amenability determination is

supported by the record and evinces a sound reasoning process. We hold that the

juvenile court did not abuse its discretion in transferring Carberry’s gross-sexual-

imposition cases to the common pleas court. See Washington, 1st Dist. Hamilton

No. C-130213, 2014-Ohio-4178, at ¶ 26. The first assignment of error is overruled.

       {¶10} Carberry’s second assignment of error alleges that the common pleas

court violated Carberry’s constitutional rights to due process and to be free from

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                     OHIO FIRST DISTRICT COURT OF APPEALS



cruel and unusual punishment, when the court “automatically” classified him as a

Tier II sex offender under R.C. Chapter 2950. Carberry argues that even though his

cases were transferred to the common pleas court and he faced adult penalties for his

crimes, his constitutional rights were violated when the court classified him as a Tier

II sex offender pursuant to the adult classification system. He argues that because he

was a juvenile when he committed the crimes, he should have been classified under

the juvenile sex-offender-classification scheme.

       {¶11} Carberry failed to object to his Tier II classification or to raise his

constitutional challenges to the common pleas court. Therefore, he forfeited the

constitutional challenges to the application of adult sex-offender classification and

registration requirements. See State v. Golson, 8th Dist. Cuyahoga No. 104776,

2017-Ohio-4438, ¶ 11. But we have discretion to consider the forfeited constitutional

challenges under a plain-error analysis.     Id. at ¶ 12.   To establish plain error,

Carberry must show that but for the error, the outcome of the proceedings clearly

would have been different, and reversal is necessary to correct a manifest injustice.

Id. at ¶ 13, citing State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19

N.E.2d 900, and State v. Davis, 127 Ohio St.3d 268, 2010-Ohio-5706, 939 N.E.2d

147.

       {¶12} R.C. 2152.02(C)(4) provides, “Except as otherwise provided * * * any

person whose case is transferred for criminal prosecution pursuant to section

2152.12 of the Revised Code shall be deemed after the transfer not to be a child in the

transferred case.”    (Emphasis added.)      The Third, Fourth, Fifth, and Eighth

Appellate Districts have held that once a juvenile offender has been properly bound

over to the adult criminal court, or if the juvenile offender is being prosecuted after

becoming an adult for offenses committed while he was a juvenile, the offender’s

classification under the adult sex-offender-classification scheme does not violate his

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                     OHIO FIRST DISTRICT COURT OF APPEALS



or her constitutional right to due process or right to be free from cruel and unusual

punishment. See Golson, 8th Dist. Cuyahoga No. 104776, 2017-Ohio-4438; State v.

Stidham, 2016-Ohio-7906, 74 N.E.3d 787 (4th Dist.); State v. Curtis, 3d Dist. Allen

No. 1-15-55, 2016-Ohio-6978, appeal not accepted, 149 Ohio St.3d 1431, 2017-Ohio-

4396, 76 N.E.3d 1207; State v. Martin, 2016-Ohio-922, 61 N.E.3d 537 (8th Dist.),

appeal not accepted, 146 Ohio St.3d 1471, 2016-Ohio-5108, 54 N.E.3d 1269; State v.

Reidenbach, 5th Dist. Coshocton No. 2014CA0019, 2015-Ohio-2915, appeal not

allowed, 144 Ohio St.3d 1476, 2016-Ohio-467, 45 N.E.3d 243.

       {¶13} Carberry’s right to due process was protected by the discretionary

bindover procedure, which the juvenile court followed.          See Golson at ¶ 21;

Reidenbach at ¶ 33. Once his cases were properly transferred to the adult criminal

court, Carberry was no longer a “child” under R.C. 2152.02(C)(4), and he was subject

to the adult sex-offender classification scheme. Id. Further, because Carberry was

no longer a “juvenile offender” once he had been bound over, his “automatic

classification” as a sex offender by the common pleas court did not constitute cruel

and unusual punishment. See Golson at ¶ 27; Martin at ¶ 21; Reidenbach at ¶ 33.

       {¶14} Carberry has failed to demonstrate plain error in his classification as a

Tier II sex offender. The second assignment of error is overruled.

       {¶15} Carberry’s third assignment of error alleges that he was denied the

effective assistance of counsel. To establish that counsel was ineffective, Carberry

must show that his counsel’s performance was deficient and that the deficient

performance prejudiced him. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989).   To establish prejudice, Carberry must show that there is a “reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland at 694.

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                        OHIO FIRST DISTRICT COURT OF APPEALS



       {¶16} Carberry argues that counsel was ineffective in failing “to move for

dismissal based on the juvenile court’s arbitrary and unreasonable relinquishment of

jurisdiction” and “to object to [Carberry’s] classification as a [T]ier II sex offender

registrant as defined in R.C. 2950.01(F)(1).” We have held under the first and second

assignments of error that the juvenile court did not abuse its discretion in

transferring Carberry’s cases to the common pleas court and that Carberry’s

constitutional rights were not violated by his classification as a Tier II sex offender by

the common pleas court.         Therefore, Carberry cannot demonstrate ineffective

assistance of counsel. The third assignment of error is overruled.

       {¶17} Carberry’s fourth assignment of error alleges that the trial court erred

in crediting Carberry with “only 175 days of jail time credit.” In the trial court, the

parties agreed that Carberry was entitled to 175 days of credit, and the trial court

credited Carberry with 175 days. Carberry now argues that he is entitled to 354 days

of jail-time credit. The state disagrees that Carberry is entitled to 354 days of credit,

but concedes that the 175-day credit is incorrect and argues that he is entitled to only

12 additional days of credit.

       {¶18} In State v. Washington, 1st Dist. Hamilton No. C-140315, 2015-Ohio-

1815, ¶ 9, we stated,

       Jail-time credit is prescribed by R.C. 2967.191, which authorizes a trial

       court to give a defendant credit for the total number of days that he

       was “confined for any reason arising out of the offense for which he

       was convicted and sentenced.” The trial court is required to include

       the amount of jail-time credit in the sentencing entry.           See R.C.

       2929.19(B)(1)(g)(i); Ohio Adm.Code 5120-2-04(6). An offender may

       challenge the amount of jail-time credit on direct appeal. See [State

       v.] Morgan, 1st Dist. Hamilton No. C-140416, 2014-Ohio-5325[,] at ¶

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                     OHIO FIRST DISTRICT COURT OF APPEALS



       5.   A trial court commits plain error when it fails to include the

       appropriate amount of jail-time credit in the sentencing entry. State v.

       Hargrove, 1st Dist. Hamilton No. C-120321, 2013-Ohio-1860, ¶ 9.

       {¶19} The parties agree on appeal that Carberry was not given the proper

amount of jail-time credit, although they disagree on the amount Carberry was

entitled to receive. The trial court had the duty to determine and include in the

sentencing entry the proper amount of jail-time credit. R.C. 2929.19(B)(1)(g)(i). The

fourth assignment of error is sustained to the extent it challenges the amount of jail-

time credited to Carberry.     The cause must be remanded for the trial court to

determine the proper amount of jail-time credit to which Carberry is entitled.

       {¶20} The judgment of the juvenile court transferring Carberry’s cases to the

common pleas court is affirmed. The portion of the common pleas court’s judgment

awarding Carberry 175 days of jail-time credit is reversed, and this cause is

remanded for the court to determine the proper amount of jail-time credit to which

Carberry is entitled. The common pleas court’s judgment is affirmed in all other

respects.

                   Judgment affirmed in part, reversed in part, and cause remanded.

MOCK, P.J., and ZAYAS, J., concur.




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




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