[Cite as In re J.W., 2011-Ohio-6706.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

IN RE:                                  :
                                                :    Appellate Case No. 24507
         J.W., JR.                              :
                                                :    Trial Court Case Nos. JC 2010-10161
                                                :    Trial Court Case Nos. JC 2010-10162
                                                :
                                                :
                                                :    (Appeal from Montgomery County
                                                :    (Juvenile Court)
                                                :
                                            ...........

                                            OPINION
                                          rd
                        Rendered on the 23 day of December, 2011.

                                             .........

MATHIAS H. HECK, JR., by R. CARLEY J. INGRAM, Atty. Reg. #0020084,
Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County
Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorneys for Appellee

JOHN S. PINARD, Atty. Reg. #0085567, 703 Liberty Tower, 120 West Second
Street, Dayton, Ohio 45402
       Attorney for Appellant

                                             .........

         HALL, J.

         {¶ 1} In Montgomery County Juvenile Court case number 2010-10161, a

complaint was filed alleging J.W. was a delinquent child by virtue of having

committed Aggravated Robbery. The complaint included a firearm specification. At
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the time the complaint was filed, the defendant was fifteen years old. On January 4,

2011, the defendant admitted responsibility for the charge and the specification. In

addition, the defendant admitted responsibility for a complaint of Robbery in case

number 2010-10162. In exchange for the admissions, case number 2010-10160,

also charging Aggravated Robbery with a firearm specification, was dismissed. T.

3-4. The transcript of the plea hearing contains a complete review of the juvenile’s

constitutional rights and the penalties that he was facing, including the mandatory

nature of the firearm specification. The court made findings that J.W. understood and

voluntarily waived his constitutional rights; that he understood the plea agreement,

the penalties involved, and the factual basis for the cases. The court found him to be

delinquent, ordered a formal review by the probation department, and scheduled the

case for sentencing.

      {¶ 2} On January 18, 2011, the case was set for final disposition. The court

had reviewed the report from the probation department. T. 4. J.W.’s counsel and his

mother spoke on his behalf. The court’s Order of Disposition filed January 19, 2011

made appropriate findings and committed J.W. to the Department of Youth Services

for confinement of a mandatory three years for the gun specification, prior to serving

a minimum of one year, and a maximum up to J.W.’s attainment of age twenty-one.

      {¶ 3} Although the transcripts of proceedings indicate that the court ordered

a sentence of one year on the companion robbery case, to be served concurrently

with the aggravated robbery with the firearm specification, that case was not

appealed and therefore is not before us.

      {¶ 4} J.W.’s appointed appellate counsel filed a brief pursuant to Anders v.
                                                                                     3


California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, asserting the

absence of any non-frivolous issue for our review. The Anders brief raises a potential

issue as to whether the sentence appellant received is “so harsh and arbitrary as to

constitute an abuse of discretion.” Brief at 2. After the filing of the Anders brief, by

order filed July 20, 2011, we notified the appellant of the opportunity to file a pro se

brief within sixty days of the order. On July 25, 2011, appellate counsel filed a Motion

to Withdraw as counsel and a request to grant appellant additional time to obtain

private counsel and/or to file a pro se brief. Because we believe our July 20, 2011

order granted the appellant more than sufficient time, we will not address counsel’s

request further. J.W. has not filed a brief or other request of his own.

       {¶ 5} If a juvenile is found responsible for a firearm specification of the type

listed in the complaint in this case, “the court shall commit the child to the

department of youth services for the specification for a definite period of not less

than one and not more than three years, and the court also shall commit the child to

the department for the underlying delinquent act under sections 2152.11 to 2152.16

of   the   Revised Code.” R.C. 2152.17(A)(2) (Emphasis added). Therefore,

commitment to DYS was required. The only element of discretion for the court to

exercise was the number of years selected for the firearm specification.

       {¶ 6} If we were to believe the sentence should be reviewed, our standard

would be the abuse of discretion standard. “The order of disposition in a juvenile

case is a matter within the court's discretion.” State v. Matha (1995), 107 Ohio

App.3d 756, 760.The Supreme Court has repeatedly held the phrase “abuse of

discretion” means the decision of the trial court was unreasonable, arbitrary, or
                                                                                   4


unconscionable. See, e.g., Blakemore v. Blakemore (1983), 5 Ohio St.3d 217.

      {¶ 7} Under the circumstances of this case, the disposition ordered by the

trial court, specifically the selection of the three-year commitment for the firearm

specification, is within the statutory range of choices and does not remotely approach

an abuse of discretion. Furthermore, we have conducted our independent review of

the record and have found no potential assignments of error having arguable merit.

      {¶ 8} Counsel’s request to withdraw from further representation is granted,

and the judgment of the Montgomery County Juvenile Court is affirmed.

                                  ..............

DONOVAN and FROELICH, JJ., concur.



Copies mailed to:

Mathias H. Heck, Jr.
Carley J. Ingram
John S. Pinard
J.W., Jr.
Hon. Anthony Capizzi
