[Cite as In re A.G., 2016-Ohio-5616.]




                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                      No. 101010




                                         IN RE: A.G.
                                        A Minor Child




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                                     Case No. DL 12117864

        BEFORE: Stewart, J., E.A. Gallagher, P.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED:                 September 1, 2016
ATTORNEYS FOR APPELLANT

Timothy Young
State Public Defender

Charlyn Bohland
Assistant State Public Defender
250 East Broad Street, Suite 1400
Columbus, OH 43215


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

Eben McNair
Anne Kiran Mikhaiel
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:

       {¶1} On June 9, 2016, the Supreme Court of Ohio reversed our decision in In re

A.G., 2014-Ohio-4927, 21 N.E.3d 355 (8th Dist.), and remanded the case to this court to

once again consider A.G.’s assignments of error.         In re A.G., Slip Opinion No.

2016-Ohio-3306. In light of the Supreme Court’s holding, we reverse the decision of

the juvenile court.

       {¶2} The Supreme Court set out the relevant facts and procedural history of this

case as follows:

       In June 2012, a person approached a man as the man was opening his car
       door after obtaining money from an ATM inside a store. The person
       pulled a gun out of his pocket and told the man that he would shoot him
       unless the man got into the car. The man did not comply but ran to his
       home nearby and lost track of the assailant. Police later took fingerprint
       samples from the car and found a fingerprint identifying A.G., who was 15
       years old at the time of the event, as the assailant.

       A complaint was filed in juvenile court alleging that A.G. was delinquent
       for engaging in conduct that if committed by an adult would have
       constituted aggravated robbery in violation of R.C. 2911.01(A)(1) and
       kidnapping in violation of R.C. 2905.01(A)(2), with firearms specifications
       as to each. A.G. entered an admission to the allegations in the complaint.
       After finding the allegations proved beyond a reasonable doubt, the juvenile
       court ordered that A.G. be committed to the Department of Youth Services
       for minimum terms of one year each for the aggravated robbery and
       kidnapping adjudications. The court merged the firearm specifications
       into a single specification and imposed a one-year-commitment term for
       that specification.    The court ordered all the terms to be served
       consecutively, for a total minimum commitment of three years, with the
       maximum commitment lasting until A.G. turned 21 years old.

       A.G. appealed and raised two assignments of error. First, he argued that
       the juvenile court erred in failing to merge his adjudications for aggravated
       robbery and kidnapping as “allied offenses of similar import” and that the
      failure to merge the adjudications violated the double-jeopardy protections
      contained in the United States and Ohio Constitutions. 2014-Ohio-4927,
      21 N.E.3d 355, ¶ 6 (8th Dist.). Second, he argued that his trial counsel
      was ineffective for failing to raise the allied-offenses issue.

      The Eighth District Court of Appeals concluded that the aggravated robbery
      and kidnapping admitted to by A.G. would constitute allied offenses of
      similar import under R.C. 2941.25 if committed by an adult. Nevertheless,
      it reasoned that criminal statutes, including R.C. 2941.25, do not apply in
      juvenile delinquency proceedings. The court of appeals accordingly
      concluded that this court’s decisions illustrating how R.C. 2941.25 should
      be applied are inapplicable to juvenile delinquency proceedings. The court
      instead turned to the test from Blockburger v. United States, 284 U.S. 299,
      304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which requires comparing the
      elements of the offenses at issue “without regard to the evidence to be
      introduced at trial.” 2014-Ohio-4927, 21 N.E.3d 355, at ¶ 25. Relying on
      this decision, the Eighth District held that the juvenile court did not err in
      refusing to merge the adjudications for aggravated robbery and kidnapping,
      and it accordingly overruled A.G.’s first assignment of error and concluded
      that his second assignment of error regarding ineffective assistance of
      counsel was moot.

      A.G. appealed to this court, and we accepted jurisdiction over his
      proposition of law: “The merger analysis set forth in State v. Johnson
      applies to juvenile delinquency proceedings to protect a child’s right against
      double jeopardy.” 142 Ohio St.3d 1464, 2015-Ohio-1896, 30 N.E.3d 973.

In re A.G., Slip Opinion No. 2016-Ohio-3306, ¶ 2-6.

      {¶3} On appeal, the Supreme Court determined that the allied offense statute, R.C.

2941.25, codifies the constitutional double jeopardy protections for both adults and

juveniles, and thus the R.C. 2941.25 merger analysis set forth in State v. Ruff, 143 Ohio

St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, applies equally to juvenile delinquency

proceedings. Id. at syllabus. With the Supreme Court’s clarification on this point of

law, we now reconsider A.G.’s arguments.

      {¶4} In his first assigned error, A.G. argued that the trial court erred by failing to
merge his adjudications for aggravated robbery and kidnapping, as allied offenses of

similar import under R.C. 2941.25.       A.G.’s defense counsel failed to object to the

nonmerger and, therefore, forfeited all but plain error review.   See State v. Rogers, 143

Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21. Pursuant to Crim.R. 52(B),

appellate courts have discretion to correct plain errors.     Plain errors are defined as

obvious defects in the trial court proceedings that affected the outcome of trial. Id. at ¶

22.

       {¶5} R.C. 2941.25 provides:

       (A) Where the same conduct by defendant can be construed to constitute
       two or more allied offenses of similar import, the indictment or information
       may contain counts for all such offenses, but the defendant may be
       convicted of only one.

       (B) Where the defendant’s conduct constitutes two or more offenses of
       dissimilar import, or where his conduct results in two or more offenses of
       the same or similar kind committed separately or with a separate animus as
       to each, the indictment or information may contain counts for all such
       offenses, and the defendant may be convicted of all of them.

       {¶6} Courts must look to the offender’s conduct when considering whether

multiple offenses are allied and of similar import. Ruff at ¶ 25. This involves an

examination of “how the offenses were committed.” Id. The offenses will not merge if

any of the following are true:

       (1) the offenses are dissimilar in import, (2) the offenses were committed
       separately, and (3) the offenses were committed with separate animus or
       motivation.

Id. at ¶ 20.   As to the first factor, offenses committed with the same conduct are

dissimilar in import when they result in separate and identifiable harms.   Id. at ¶ 26.
         {¶7} In this particular case, there was no recitation of the facts at the dispositional

hearing from which we can conduct an allied offenses analysis.              Nevertheless, two other

areas of the record — the juvenile complaint to which A.G. admitted and the transcript of

the discretionary bindover probable cause hearing — establish that the aggravated

robbery and kidnapping offenses were subject to merger.

         {¶8} The first count of the juvenile complaint charged A.G. with the offense of

aggravated robbery, if committed by an adult.               The second count of the complaint

charged A.G. with the offense of kidnapping under R.C. 2905.01,1 if committed by an

adult.       The second count stated:

         [A.G.] on or about June 29, 2012, did, by force, threat, or deception,
         purposely remove [the victim] from the place where he was found or
         restrain the liberty of him for the purpose of facilitating the commission of a
         felony to wit: Aggravated Robbery in violation of ORC 2911.01(A)(1) or
         flight thereafter in violation of Ohio Revised Code Section 2905.01(A)(2).

         {¶9} Accordingly, by its terms, the plain language of the complaint establishes a

nexus between the aggravated robbery offense and the kidnapping offense by charging

the aggravated robbery as an element of the kidnapping.                   This alone should have

indicated to the judge that the offenses were subject to a merger analysis.

         {¶10}      Moreover, the probable cause hearing on the discretionary bindover

established the necessary facts for determining whether the offenses were allied offenses


        R.C. 2905.01(A)(2) states that “[n]o person by force, threat, or deception, or, in the case of a
         1


victim under the age of thirteen or mentally incompetent, by any means, shall remove another from
the place where the other person is found or restrain the liberty of the other person, for any of the
following purposes: to facilitate the commission of any felony or flight thereafter.”
of similar import. At this hearing, the victim took the witness stand and testified that on

the evening of the offense, he was at a gas station and had just finished making a

withdrawal from an ATM when he was approached by a person who would later be

identified as A.G. The victim testified that as soon as A.G. approached him, A.G. pulled

out a gun and threatened to shoot the victim if the victim did not get into his car. At that

point, the victim successfully ran away and called the police.

       {¶11} These facts establish that A.G.’s conduct — i.e., pulling out a gun and

ordering that the victim get into the car, presumably so A.G. could rob him — constituted

both the kidnapping and aggravated robbery.      The facts also show that the offenses were

committed simultaneously with a single animus, which was to restrain the victim long

enough to effectuate the robbery, and resulted in the same harm to the victim

       {¶12} We thus conclude that the offenses were allied offenses of similar import

and that the juvenile court’s failure to merge them as such was an obvious defect that

prejudiced the defendant.    The defect was obvious because the record clearly supported

the merger of offenses, and the court’s failure to conduct an allied offenses analysis

prejudiced the defendant because it resulted in a longer sentence.

       {¶13} Having found plain error on the first assigned error, we find that the second

assignment of error alleging ineffective assistance of counsel, is moot.

       {¶14}   Accordingly, the judgment is reversed and remanded to the juvenile court

for further proceedings consistent with this opinion.

       It is ordered that appellant recover of appellee costs herein taxed.
      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the Cuyahoga

County Common Pleas Court, Juvenile Division, to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



MELODY J. STEWART, JUDGE

EILEEN A. GALLAGHER, P.J., and
ANITA LASTER MAYS, J., CONCUR
