[Cite as State v. Murphy, 2012-Ohio-2924.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97459




                                      STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.



                                JOVAUGHN MURPHY
                                                             DEFENDANT-APPELLANT




                                  JUDGMENT:
                            REVERSED AND REMANDED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-543715

        BEFORE:          Jones, P.J., Cooney, J., and Kilbane, J.

        RELEASED AND JOURNALIZED:                     June 28, 2012
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

BY: Nathaniel McDonald
Assistant County Public Defender
310 Lakeside Avenue
Suite 400
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Melissa Riley
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:

       {¶1} Defendant-appellant, Jovaughn Murphy, appeals from the trial court’s

October 3, 2011 entry sentencing him to one year of community control sanctions. We

reverse and remand.

                                I. Procedural History and Facts

       {¶2} In July 2010, a complaint was filed in juvenile court against Murphy. The

complaint charged aggravated robbery with one- and three-year firearm specifications,

alleged to have been committed when Murphy was 17 years old.            In November 2010, the

case was transferred to adult court.     The bindover to adult court was mandatory because

of the nature of the charge and allegation of the use of a firearm. See R.C. 2152.10 and

2152.02(CC). 1      Murphy was thereafter charged in adult court with kidnapping,

aggravated robbery, theft of a motor vehicle, and having weapons while under disability.

All the charges contained one- and three-year firearm specifications.        The case was tried

to a jury, with the exception of the having weapons while under disability charge, which

was tried to the court.

       {¶3} The following facts were elicited at trial.     The incident occurred on May 31,

2010, which was Memorial Day. Two witnesses testified for the state: Adam Navedo

and Joshua Ocana.         Navedo and Ocana testified that they were at Ocana’s house for a


         Under R.C. 2152.02(CC)(1), aggravated robbery is a “category two” offense. R.C.
       1


2152.10(A)(2)(b) provides for mandatory bindover if a child is (1) charged with a category two
offense, (2) 16 years or older at the time he committed the offense, and (3) alleged to have had a
firearm and displayed, brandished, indicated possession of, or used it to facilitate the crime.
cookout.    According to Navedo, he had driven his sister’s Dodge Magnum to the

cookout.    He and Ocana were sitting on the porch when Murphy approached them,

pointed a gun at them, and ordered Navedo to give up his wallet and car keys, which he

did. Murphy took the items and drove off in Navedo’s sister’s car.

      {¶4} According to Ocana, Murphy came to the cookout because he wanted

something to drink. Ocana gave Murphy a drink, Murphy left, but then returned 30

minutes later with a gun. Murphy ordered Navedo to give him his car keys, which

Navedo did. Murphy then drove off in Navedo’s sister’s car.

      {¶5} Murphy testified that he knew Ocana and had arranged to purchase marijuana

from him.    When he arrived at Ocana’s house, he saw Ocana and Navedo on the front

porch, approached them, and Navedo sold him $20 worth of marijuana.          However,

Murphy confronted Navedo because he felt that he had been “short-changed,” and the two

argued.    Eventually, Navedo and Ocana went inside the house and Murphy saw that

Navedo had left the keys to the Magnum on a chair.    Murphy testified that he knew the

keys were for the Magnum because Navedo frequently drove the Magnum around the

neighborhood and the keys had a Dodge Magnum insignia on them. Murphy admitted

that he drove off in the Magnum, but denied having a gun or threatening Navedo and

Ocana.

      {¶6} On this testimony, the kidnapping count was dismissed pursuant to Murphy’s

Crim.R. 29 motion. The jury found Murphy guilty of theft of a motor vehicle, but not

guilty of the firearm specifications.    The jury also found Murphy not guilty of
aggravated robbery. The court found Murphy not guilty of having weapons while under

disability.   On September 30, 2011, the court sentenced Murphy to one year of

community control sanctions.

       {¶7} Murphy raises two assignments of error for our review:

       [I.] The trial court erred when it imposed an active adult sentence on
       September 30, 2011 without regard to Mr. Murphy’s entitlement to a stayed
       adult sentence and remand to juvenile court for proceedings consistent with
       R.C. 2152.121.

       [II.] Mr. Murphy’s counsel was ineffective for failing to raise R.C.

       2152.121 at the September 30, 2011 sentencing hearing.

                                  II.   Law and Analysis

       {¶8} At issue in this appeal is whether R.C. 2152.121, newly enacted under House

Bill 86 (“H.B. 86”), and effective on September 30, 2011, the day Murphy was sentenced,

applies to this case. Murphy contends that it does; the state contends that it does not.

       {¶9} H.B. 86 states that a purpose of R.C. 2152.121 is to “establish a new

mechanism, which may involve transfer back to a juvenile court, for determining the

sanction for certain children who are convicted of a crime in criminal court after their

case is transferred under a specified mandatory transfer provision[.]”         Under R.C.

2152.121(B), if (1) a complaint is filed against a juvenile alleging delinquency, (2) the

case is transferred to adult court under the mandatory requirement of R.C.

2152.12(A)(1)(b)(ii), and (3) the child is subsequently convicted or pleads guilty to an

offense in the case, then R.C. 2152.121(B) applies for the purpose of sentencing. All of

the conditions under R.C. 2152.121(B) were met here.          R.C. 2152.121(B) therefore
applies to this case.

       {¶10} Under R.C. 2152.121(B)(3), the sentence to be imposed or disposition to be

made “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,
              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. * * *

(Emphasis added.)

       {¶11} Murphy was convicted of one offense, theft, which, had that been the only

offense he was charged with, would not have been subject to mandatory bindover.           See

R.C. 2152.12(A).        The charge could have been subject to discretionary bindover. See

R.C. 2152.12(B). Had Murphy been charged with only theft, bound over to adult court,

and convicted under R.C. 2152.121(B)(3), the trial court would have been required to stay

the adult sentence and transfer jurisdiction back to the juvenile court for proceedings

       {¶12} In support of its position that the statute is not applicable here, the state

contends that in enacting H.B. 86, the Ohio Legislature “addressed [the] issue of who
could benefit from sentencing changes.”            According to the state,

       [f]or offenses involving marijuana, cocaine, or hashish, the changes apply
       to a person “who commits an offense * * * on or after the effective date of
       this act and to a person to whom division (B) of section 1.58 of the Revised
       Code makes the amendments applicable.”2

       {¶13} This case does not involve marijuana, cocaine, or hashish, and therefore, the

state’s reliance on the above proposition is misplaced. Further, R.C. 1.58(B) does not

directly address this situation.3         That section provides as follows:              “If the penalty,

forfeiture, or punishment for any offense is reduced by a reenactment or amendment of a

statute, the penalty, forfeiture, or punishment, if not already imposed, shall be imposed

according to the statute as amended.” (Emphasis added.) R.C. 2152.121 is neither a

reenactment nor an amendment of a statute; rather, it is a newly created statute.

       {¶14} The state also contends that R.C. 2152.121 “does not affect sentencing; it is

a purely procedural issue concerning which court shall have jurisdiction.”                  We disagree.

  The very language of the statute demonstrates that it is a sentencing statute.

Moreover, juvenile offenders are generally treated differently than adult offenders

because the objectives of the juvenile justice system differ from those of the adult

criminal justice system. In terms of adult sentencing, the

       overriding purposes of felony sentencing are to protect the public from
       future crime by the offender and others and to punish the offender using the
       minimum sanctions that the court determines accomplish those purposes

        P. 4 of state’s brief.   The state does not cite what authority it is quoting.
       2




        Murphy also cites R.C. 1.58 in support of his position, contending that the potential penalty
       3


he faced was reduced by the new statute.
       without imposing an unnecessary burden on state or local government
       resources.

R.C. 2929.11(A).

       {¶15} On the other hand, for juvenile dispositions, the:

       overriding purposes * * * are to provide for the care, protection, and mental
       and physical development of children subject to this chapter, protect the
       public interest and safety, hold the offender accountable for the offender’s
       actions, restore the victim, and rehabilitate the offender. These purposes
       shall be achieved by a system of graduated sanctions and services.

R.C. 2152.01(A).

       {¶16} The distinctions in the purposes of sentencing between the adult criminal

justice system and the juvenile criminal justice system are more than just “procedural.”

On the day Murphy was sentenced, September 30, 2011, R.C. 2152.121, titled “retention

of jurisdiction by juvenile court for purposes of making disposition of child,” took effect.

 Murphy met the qualifications of the statute, and the trial court, therefore, should have

applied the statute to him. Murphy’s first assignment of error is sustained.

       {¶17} In his second assignment of error, Murphy contends that his counsel was

ineffective for not raising R.C. 2152.121 at sentencing. We disagree.

       {¶18} To establish an ineffective assistance of counsel claim, a defendant must

demonstrate that counsel’s performance was deficient and that the deficient performance

prejudiced the defense. 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, 141-142, 538 N.E.2d 373

(1989).

       {¶19} Strickland places the burden of proving ineffective assistance of counsel on
the defendant. Id. at 687.       It also requires a reviewing court to strongly presume that

defense counsel adequately represented his client’s interests.               Id. at 690; see also

Vaughn v. Maxwell, 2 Ohio St.2d 299, 301, 209 N.E.2d 164 (1965) (properly licensed

attorney presumed competent).            “The fundamental consideration in discerning a

Strickland violation is whether defense counsel’s performance was such as to raise

compelling questions concerning the integrity of the adversarial process.”                  State v.

Malone, 2d Dist. No. 10564, 1989 WL 150798 (Dec. 13, 1989). Therefore, the “focus is

on whether a defendant had access to a fair trial.” Id.

       {¶20} Murphy’s counsel did not raise R.C. 2152.121 at sentencing. Although we

find that the statute does apply to Murphy, it was newly enacted and took effect the day

Murphy was sentenced. On this record, we do not find that counsel’s failure to raise the

statute was an error “so serious that counsel was not functioning as the ‘counsel’

guaranteed defendant by the Sixth Amendment * * *.”4 Strickland at 687.

       {¶21} In light of the above, the second assignment of error is overruled.

       {¶22} Judgment reversed and case remanded for the court to stay its sentence and

remand to juvenile court pursuant to R.C. 2152.121.

       It is ordered that appellant and appellee split the 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 common


          See, e.g., State v. Gates, 8th Dist. No. 78120, 2002-Ohio-4018, ¶21, counsel not ineffective
       4


for failing to raise a “developing area” of the law.
pleas court 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.




LARRY A. JONES, SR., PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and
MARY EILEEN KILBANE, J., CONCUR
