[Cite as In Re B.H., 2018-Ohio-3350.]



                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO




IN RE: B.H.                             :      APPEAL NOS. C-180108
                                                            C-180109
                                        :      TRIAL NOS. 17-5723Z
                                                          17-5724Z
                                        :

                                        :           O P I N I O N.




Appeals From: Hamilton County Juvenile Court

Judgments Appealed From Are: Affirmed

Date of Judgment Entry on Appeal: August 22, 2018



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

The Office of the Ohio Public Defender and Lauren Hammersmith, Assistant Public
Defender, for Appellant B.H.
                  OHIO FIRST DISTRICT COURT OF APPEALS



MYERS, Judge.

       {¶1}   Sixteen-year-old B.H. and two other juveniles forced their way into a

man’s vehicle at gunpoint and ordered him to drive to multiple ATM machines to

withdraw money. During the victim’s hour-long ordeal, the juveniles joked about

shooting and killing him.

       {¶2}   In the ensuing proceedings before the juvenile court, B.H. admitted to

conduct that, if committed by an adult, would have constituted aggravated robbery,

kidnapping, and two firearm specifications of the type set forth in R.C. 2941.145. As

part of the plea bargain with the state, B.H. agreed to a seven-year period of

commitment to the Department of Youth Services (“DYS”), consisting of concurrent

one-year terms for the underlying offenses and two consecutive three-year terms for

each of the firearm specifications. In exchange for B.H.’s admissions and agreement

on sentencing, the state withdrew its motions for relinquishment of jurisdiction to

the general division of the common pleas court and dismissed a theft charge with

accompanying firearm specifications. B.H. now appeals.

                                  Firearm Specifications


       {¶3}   In his first assignment of error, B.H. argues that the juvenile court

erred by committing him to DYS for three years on each firearm specification

because he claims R.C. 2152.17(B)(1) prohibited the court from imposing more than a

one-year commitment for each specification. He contends that he could not be

sentenced to a three-year firearm specification as a complicitor in the offenses where

the record contained no evidence that he furnished, used, or disposed of the firearm

involved in the offenses.

       {¶4}   R.C. 2152.17 sets forth two ways that a child may be sentenced to a

three-year period of commitment for a firearm specification: “(1) as the principal

offender, if he had ‘displayed, brandished, indicated possession of, or used a firearm



                                          2
                   OHIO FIRST DISTRICT COURT OF APPEALS



to facilitate the offense’ or (2) as a complicitor, if he had ‘furnished, used or disposed

of’ the gun used by the principal.” In re E.B., 1st Dist. Hamilton No. C-150351, 2016-

Ohio-1507, ¶ 16.

       {¶5}    If the juvenile court determines that a child would be guilty of a

specification of the type set forth in R.C. 2941.145 because the child “displayed,

brandished, indicated possession of, or used a firearm to facilitate the offense,” the

court must commit the child to DYS for the specification “for a definite period of not

less than one and not more than three years.” R.C. 2152.17(A)(2). However, a

juvenile who is determined to be merely “complicit in another person’s conduct that

is of such a nature that the other person would be guilty of a specification of the type

set forth in” R.C. 2941.145, may receive no more than one year on the specification if

the juvenile “did not furnish, use or dispose of any firearm that was involved with the

underlying delinquent act.” R.C. 2152.17(B)(1); see E.B. at ¶ 15.

       {¶6}    B.H. argues that the court erred by sentencing him to three years on

each firearm specification because he was only an accomplice. He contends that,

without evidence that he furnished, used, or disposed of the firearm involved in the

offenses, the court was limited by R.C. 2152.17(B)(1) to committing him to only one

year in DYS for each of the specifications. He points to the prosecutor’s statement at

the adjudication hearing that two other individuals had been the principal actors:

               The main actor in this case, codefendant [E.S.], being in the

       front seat with the firearm while defendant was in the back passenger’s

       seat, and there was an unidentified subject behind the victim [driver]

       holding a gun to him.

       {¶7}    However, as part of his plea agreement, B.H. admitted to the following

facts from the complaints as read by the prosecutor:

               As far as the facts on the kidnapping with gun specifications,

       [B.H.] * * * did by force, threat, or deception knowingly restrain our


                                            3
                  OHIO FIRST DISTRICT COURT OF APPEALS



       victim, [C.P.] of his liberty under circumstances which created a

       substantial risk of physical harm to [C.P.], while at the same time

       having on his possession a firearm and brandishing that firearm.

              In addition, your Honor, the aggravated robbery charges, same

       child * * *, while committing a theft offense did have a deadly weapon

       under his control and displayed such weapon.

              Same with the gun specifications, at some point in the

       interaction he did have a firearm on him and did have that firearm

       brandished.

       {¶8}   A juvenile’s admission in a delinquency case is an admission of the

facts contained in the complaint and is a waiver of the juvenile’s right to challenge

those factual allegations. State v. Penrod, 62 Ohio App.3d 720, 723, 577 N.E.2d 424

(9th Dist.1989); In re J.R.P., 175 Ohio App.3d 481, 2008-Ohio-989, 887 N.E.2d

1222, ¶ 32 (2d Dist.). Therefore, since B.H. admitted to the allegations that he had,

in committing the underlying offenses, displayed and brandished a firearm, B.H.

waived his right to challenge those allegations on appeal. See In re Flynn, 101 Ohio

App.3d 778, 781, 656 N.E.2d 737 (8th Dist.1995); In re Pope, 1st Dist. Hamilton No.

C-010306, 2002 WL 91525, *2 (Jan. 25, 2002).

       {¶9}   By accepting B.H.’s admissions, the court necessarily “determine[d]

that the child would be guilty of a specification of the type set forth in” R.C. 2941.145,

and was required by R.C. 2152.17(A)(2) to commit B.H. for each firearm specification

for a definite period of at least one year and not more than three years. Moreover, as

part of the plea deal, B.H. agreed to the seven-year commitment, specifically to three

years for each of the firearm specifications. For the reasons above, we hold that the

juvenile court did not err by committing B.H. to DYS for three years on each firearm

specification. We overrule the first assignment of error.




                                            4
                 OHIO FIRST DISTRICT COURT OF APPEALS


                          Double Jeopardy and Equal Protection


       {¶10} In his second and third assignments of error, B.H. argues that the
juvenile court erred by imposing commitments for multiple firearm specifications

because R.C. 2152.17(E) violates a child’s rights to equal protection and to be free

from double jeopardy. We overrule these assignments of error on the authority of

our recent decision in In re D.L., 1st Dist. Hamilton Nos. C-170152, C-170153 and C-

170154, 2018-Ohio-2161.

                             Effective Assistance of Counsel


       {¶11} In his fourth assignment of error, B.H. argues that he was denied the
effective assistance of counsel where counsel failed to argue that B.H. should not

have been committed for three years on each of the firearm specifications where he

was not the primary actor in the offenses. To establish ineffective assistance of

counsel, the defendant must demonstrate that counsel’s performance was deficient,

and that she or he was prejudiced by counsel's deficient performance. See Strickland

v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989). Our review of counsel’s

performance must be highly deferential. Strickland at 689.

       {¶12} Because B.H. admitted to the complaints’ allegations that he had
displayed and brandished a firearm, B.H. cannot now complain that counsel should

have argued that he was merely an accomplice for purposes of sentencing on the

firearm specifications. And while B.H. does not challenge counsel’s performance

with respect to the plea bargain itself, we are convinced that it was a reasonable

strategy for defense counsel to recommend that B.H. enter the plea in exchange for

the state’s agreement to keep the case in the juvenile court and to dismiss the

remaining charges.




                                         5
                  OHIO FIRST DISTRICT COURT OF APPEALS



       {¶13} In addition, B.H. argues that counsel was ineffective for failing to raise
the constitutional issues set forth in his second and third assignments of error.

However, where no constitutional violations occurred, we cannot say that counsel

was ineffective for failing to object on those grounds. See D.L. at ¶ 23. We overrule

the fourth assignment of error.

       {¶14} Having overruled B.H.’s assignments of error, we affirm the judgments
of the juvenile court.

                                                                     Judgments affirmed.


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



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




                                             6
