[Cite as State v. Curtis, 2016-Ohio-6978.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY



STATE OF OHIO,

        PLAINTIFF-APPELLEE,                             CASE NO. 1-15-55

        v.

CELEEL D. CURTIS,                                       OPINION

        DEFENDANT-APPELLANT.



                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR20150044

      Judgment Affirmed in Part, Reversed in Part, and Cause Remanded

                          Date of Decision: September 26, 2016




APPEARANCES:

        Katherine R. Ross-Kinzie and Charlyn Bohland for Appellant

        Terri L. Kohlrieser for Appellee
Case No. 1-15-55



SHAW, P.J.

         {¶1} Defendant-appellant, Celeel1 Curtis (“Curtis”), brings this appeal from

the July 27, 2015, judgment of the Allen County Common Pleas Court sentencing

Curtis to an aggregate 27-year prison term after Curtis was found guilty in a jury

trial of Aggravated Burglary in violation of R.C. 2911.11(A)(1), a felony of the first

degree, Kidnapping in violation of R.C. 2905.01(A)(4), a felony of the first degree,

Rape in violation of R.C. 2907.02(A)(2), a felony of the first degree, and Robbery

in violation of R.C. 2911.02(A)(2), a felony of the second degree.

                             Relevant Facts and Procedural History

         {¶2} On September 16, 2014, in the early afternoon hours, Curtis and a friend

he called “Jay”2 were walking past the home of I.S. and I.S.’s husband in Lima,

Ohio. Curtis and Jay decided to burglarize I.S.’s residence, so they climbed into the

house through a window. Curtis was approximately 3 months shy of being 18 years

old at the time.

         {¶3} I.S. was not home when Curtis and Jay initially entered her residence.

I.S.’s sister had recently died and I.S. was helping her brother-in-law clear some




1
  There was an early dispute in this case over the spelling of Curtis’s first name. At Curtis’s first hearing, he
stated that he spelled his name “Caleel” even though his birth certificate showed “Celeel.” Curtis’s mother
indicated that Curtis’s name was spelled “correctly” as “Caleel” on his social security card and that the birth
certificate spelling was incorrect. The juvenile court, and later the common pleas court, elected to proceed
with the spelling “Celeel” based on the birth certificate. Regardless, we will refer to him as Curtis.
2
  This is a phonetic spelling based on Curtis’s interrogation video.

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things out of his nearby home. I.S.’s husband was also not at home, as he was at

work at the time Curtis entered the residence.

       {¶4} Once Curtis was inside the residence, he took multiple items from I.S.

including a pair of earrings, a necklace, and a Samsung Galaxy tablet. While Curtis

was still inside the residence, I.S. returned home. According to Curtis, Jay left

through the window they had entered from when I.S. returned. However, Curtis

stated that he was unable to exit, so he attempted to hide in a closet.

       {¶5} I.S. indicated that when she returned home there were flowers on her

front porch from a friend for her sister’s passing. I.S. picked up the flower

arrangement and brought it inside to take a picture of it to display on social media

with a “thank you.”

       {¶6} Upon entering her home, I.S. deactivated her home security system.

The security system did not cover I.S.’s bedroom window, as she believed it to be

too high for anyone to enter her home through. I.S. then went to her home-office to

take a picture of the flowers and upload the picture.

       {¶7} While in her office, I.S. caught sight of Curtis attempting to hide in her

closet. Curtis then came out of the closet, grabbed I.S. from behind, and struck her

multiple times in the side. I.S. was bruised as a result of these strikes.

       {¶8} I.S. screamed and asked Curtis who he was and why he was in her

house. Curtis threatened her, telling her to be quiet or he would kill her. Curtis


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indicated that he wanted to leave through the back door, so he told I.S. to take him

there.

         {¶9} Still being restrained, I.S. took Curtis toward the home’s rear entrance;

however, before they got there, they passed I.S.’s bedroom and Curtis pushed I.S.

inside onto the bed.

         {¶10} I.S. was then choked, beaten, and vaginally penetrated by Curtis. I.S.

indicated that the sexual assault lasted fifteen or twenty seconds and that Curtis

ejaculated. I.S. stated that she fought Curtis throughout the assault, biting him and

scratching him, but she was terrified and at one point Curtis shoved a blanket in her

mouth. She also testified that Curtis hit her in the neck and face. I.S. had numerous

bruises as a result of being held down, choked, and struck during this incident, and

the bruises were photographed.

         {¶11} I.S. testified that she focused on Curtis’s face and what he was wearing

during the sexual assault so that she could identify him. I.S. testified that Curtis was

wearing a green Boston Celtics hat with a black under-bill that had “Celtics” written

on it. She testified that Curtis had on black pants with white shorts underneath and

that he was wearing a dark-colored backpack.

         {¶12} During the assault, I.S. indicated that when she could speak or scream,

she repeatedly asked Curtis who he was and why he was doing this to her. I.S. also

testified that she asked Curtis why he was not in school because he looked so young.


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       {¶13} After the sexual assault, I.S. testified that she told Curtis she had

money in her purse in the kitchen in an attempt to get Curtis to leave. I.S. testified

that Curtis then grabbed her by her arm and her neck, took her off the bed into the

kitchen and emptied the contents of her purse, taking some money that was in there.

As Curtis was doing that, I.S. went to her alarm and pushed the buttons repeatedly

until the alarm went off. When the alarm sounded, Curtis ran to the back door but

could not get it open so he left through the window he had entered the house from.

I.S. watched the direction Curtis ran.

       {¶14} Police promptly responded to the scene and I.S. was soon taken to St.

Rita’s hospital in Lima where a Rape Kit was performed. I.S. provided as much

detail as she could to the Lima Police Department regarding the incident, her

assailant, and which direction he had gone upon leaving her house.

       {¶15} Detective Timothy Scott Clark canvassed the area, following what he

felt was a logical path to flee from I.S.’s residence if he knew the police were

coming. Detective Clark proceeded a few blocks to apartments on Brower Road.

He stopped there to ask the employees if they had seen anyone meeting the

assailant’s description with his clothing. Detective Clark thought the green Celtics

hat would stand out because there were not a lot of them in the area. The employees

had not seen anything, so Detective Clark went back outside and at that time he

spotted an individual wearing a green Celtics hat and white shorts getting into the


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rear of a vehicle with three other individuals. Detective Clark felt that the individual

was likely I.S.’s assailant, so he followed the vehicle in his unmarked cruiser.

       {¶16} Detective Clark radioed for a marked police unit to stop the vehicle.

As a marked police officer approached, Detective Clark observed the individual in

the back seat take off his green hat. The vehicle was then stopped by a Lima City

Police Officer and Curtis was taken out of the back of the vehicle.

       {¶17} In the seat where Curtis was sitting in the vehicle, two earrings were

found, which were identified to belong to I.S. Curtis also had a necklace attached

to the back of his white shorts when he was removed from the vehicle. Photographs

were taken of the earrings and the necklace attached to Curtis’s shorts. Curtis was

then taken into custody and transported for interrogation.

       {¶18} Curtis’s interrogation was videotaped, and later introduced into the

trial. In the interrogation, Curtis was initially informed of his Miranda rights, then

he later was informed of his rights again, and he signed a written waiver of his rights.

During the interrogation, Curtis readily admitted to burglarizing I.S.’s residence.

He also eventually admitted to the sexual assault. DNA swabs were taken from

Curtis and they were compared to the samples taken from I.S. in the Rape Kit.

       {¶19} On September 22, 2014, a complaint was filed in the Allen County

Common Pleas Court, Juvenile Division, alleging that Curtis was delinquent by

means of committing Rape in violation of R.C. 2907.02(A)(2), a first degree felony


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if committed by an adult, Aggravated Burglary in violation of R.C. 2911.11(A)(1),

a first degree felony if committed by an adult, and Aggravated Robbery in violation

of R.C. 2911.01(A)(3), a first degree felony if committed by an adult.            The

complaint also requested a permissive bindover to the general division of the

common pleas court pursuant to R.C. 2151.12(B). Curtis denied the allegations.

       {¶20} A probable cause hearing was then held on November 7, 2014, in the

Allen County Juvenile Court. I.S. testified at the hearing, as did the Sexual Assault

Nurse Examiner (“SANE”) who performed the Rape Kit. Detective Timothy Scott

Clark of the Lima Police Department also provided testimony on behalf of the State.

Ultimately the juvenile court determined that probable cause existed to believe that

Curtis committed the offenses and ordered that Curtis be evaluated by a

psychologist for purposes of determining Curtis’s amenability to treatment and

rehabilitation in the juvenile system.

       {¶21} The amenability hearing was held January 28, 2015. At the hearing,

Steve Brown, the director of detention services for the Allen County Juvenile

Detention Center, testified that Curtis had eight major rule violations and eight

general rule violations so far in his stay in the detention center.

       {¶22} Dr. Charlene Cassel, a court diagnostic and treatment psychologist,

testified that she performed a forensic evaluation of Curtis.         Dr. Cassel was

classified as an expert in forensic psychology. Dr. Cassel testified that Curtis had a


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number of offenses as a juvenile and that the offenses were escalating in severity.

Dr. Cassel testified that Curtis took no responsibility for his actions, and that he had

failed to be rehabilitated in the juvenile system in two states and three separate

jurisdictions.

       {¶23} Dr. Cassel testified that Curtis was impulsive and had an IQ composite

of 75, and that there was a 90% confidence that his IQ was between 69-83. Curtis’s

IQ placed him somewhere in the range of “borderline” mental retardation to average

intelligence. (Jan. 28, 2015, Tr. at 38). However, Dr. Cassel testified that Curtis

was functioning more like an average individual, and that Curtis’s school

achievement was much lower than his “street smart[s].” (Id.)

       {¶24} Dr. Cassel testified that Curtis had failed to be rehabilitated despite

juvenile treatment in multiple jurisdictions. In addition, Dr. Cassel testified that

there was not enough time to change Curtis’s behavior in the juvenile system and

that she did not know that a successful treatment existed for Curtis. Ultimately Dr.

Cassel testified that Curtis was not amenable to treatment in the juvenile system.

       {¶25} Curtis then called his mother, Sonya Curtis, to testify on his behalf in

opposing a transfer to the general division of the common pleas court. Sonya

testified that Curtis was rebellious and that he likely would not agree to treatment,

but she did not think the case should be transferred. Sonya testified that she did not

think Curtis could live on his own even though he had spent time not living with her


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previously. Sonya testified that she did not let Curtis drive and that she had to tell

him to shower and pick up his things.

       {¶26} On February 5, 2015, based on the evidence that had been presented,

the juvenile court determined that Curtis was not amenable to treatment and

rehabilitation in the juvenile system and ordered that the case be transferred to the

General Division of the Allen County Common Pleas Court.

       {¶27} On March 12, 2015, Curtis was indicted in the Allen County Common

Pleas Court for Aggravated Burglary in violation of R.C. 2911.11(A)(1), a felony

of the first degree, Kidnapping in violation of R.C. 2905.01(A)(4), a felony of the

first degree, Rape in violation of R.C. 2907.02(A)(2), a felony of the first degree,

and Robbery in violation of R.C. 2911.02(A)(2), a felony of the second degree.

Curtis pled not guilty to the charges.

       {¶28} On April 13, 2015, Curtis filed a motion to suppress the statements he

made to officers during his custodial interrogation.

       {¶29} On April 24, 2015, a hearing was held on Curtis’s motion to suppress.

The State conceded at the hearing that Curtis was in custody at the time of his

interrogation.   At the hearing, Detective Steven Stechschulte testified that he

interrogated Curtis on September 16, 2014. Detective Stechschulte testified that

Curtis had been given his Miranda rights multiple times. He testified that he advised

Curtis of his Miranda rights when Curtis was initially apprehended, then again prior


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to the beginning of the custodial interrogation, and yet another time when the

interrogation actually began. Detective Stechschulte also testified that Curtis signed

a written waiver of his right to remain silent, which was entered into evidence.

         {¶30} Detective Stechschulte testified that the interrogation lasted

approximately an hour to an hour and fifteen minutes, that Curtis appeared sober

and responsive and that Curtis never requested counsel and he never requested to

terminate the interrogation despite clearly understanding his ability to do so. A

recording of the full interrogation was introduced into evidence at the suppression

hearing.

         {¶31} On May 7, 2015, the trial court filed an entry overruling Curtis’s

motion to suppress.

         {¶32} The case then proceeded to a jury trial, which was held June 22-23,

2015. At trial the State called eight witnesses including the victim, I.S., the

detectives and officers involved in this case, the SANE, a BCI analyst, and a forensic

scientist who testified that the sperm DNA and the DNA taken from I.S.’s fingernail

scrapings were consistent with Curtis’s DNA.3 The forensic scientist testified to a




3
  The analyst testified that if the DNA did not match, Curtis would be excluded; however, the DNA taken
from Curtis’s cheek swab and from the sperm taken from the Rape kit showed that Curtis was “included with
a statistic of one in * * * one sextillion, six hundred thirty-six quintillion in the sperm fraction,” which meant
that the analyst “would have to test one sextillion six hundred and thirty-six quintillion random individual’s
DNA in order to find one [other] person’s DNA that matches the evidence sample.”3 (Tr. At 362-364).

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reasonable degree of scientific certainty that Curtis’s DNA was a “match” to the

evidence and that the DNA belonged to Curtis. (Tr. at 364-365).

        {¶33} After the State rested its case, Curtis elected not to call any witnesses

and also rested. The parties then proceeded to closing arguments, instructions were

given, and the case was turned over to the jury. The jury found Curtis guilty of all

four counts against him.

        {¶34} On July 22, 2015, the case proceeded to sentencing. At the sentencing

hearing the State recommended maximum consecutive sentences based on Curtis’s

prior adjudications of delinquency and the heinous nature of the crimes in this case.

The State emphasized, through a victim impact statement, the traumatic impact the

crimes had upon the victim. However, the State conceded that the Rape and

Kidnapping charges should merge and elected to proceed to sentence on the Rape

charge.

        {¶35} The trial court agreed that the Rape and Kidnapping charges merged

and specifically found that none of the other crimes should merge for the purposes

of sentencing.4 Curtis was then sentenced to serve 10 years in prison on the

Aggravated Burglary charge, 11 years in prison on the Rape charge, and 6 years in

prison on the Robbery charge for an aggregate prison sentence of 27 years. Curtis

was also classified as a Tier 3 sex offender.


4
  The trial judge noted that upon reading the victim impact statement that the impact was among the worst
the judge had ever seen in a case that was not a homicide.

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         {¶36} Curtis then filed a notice of appeal, appealing his convictions to this

Court.5

         {¶37} After Curtis filed his notice of appeal, Curtis filed a motion for jail-

time credit arguing that he should receive credit for days he spent in a juvenile

facility on these charges prior to trial. On September 3, 2015, despite the appeal

pending before this Court, the trial court granted Curtis’s motion for additional days

of jail-time credit.

         {¶38} On appeal, Curtis now asserts the following assignments of error for

our review.

                      ASSIGNMENT OF ERROR 1
         THE JUVENILE COURT ABUSED ITS DISCRETION WHEN
         IT DETERMINED THAT CELEEL CURTIS WAS NOT
         AMENABLE TO TREATMENT IN THE JUVENILE JUSTICE
         SYSTEM, IN VIOLATION OF R.C. 2152.12(B); FIFTH AND
         FOURTEENTH      AMENDMENTS      TO      THE     U.S.
         CONSTITUTION; AND, ARTICLE I, SECTION 10, OHIO
         CONSTITUTION.

                     ASSIGNMENT OF ERROR 2
         THE TRIAL COURT ERRED WHEN IT FAILED TO
         SUPPRESS STATEMENTS MADE BY CELEEL IN
         VIOLATION OF HIS RIGHTS GUARANTEED BY THE
         FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S.


5
  Following the trial, the State filed a clarification related to the DNA analysis that had been presented at
trial. The State indicated that there had been a miscalculation of the numbers related to the DNA probability
presented. Instead of the vaginal sample reflecting 1 in 1,636,000,000,000,000,000,000, it should have read
1 in 1,607,000,000,000,000,000,000, and instead of the fingernail scrapings being 1 in
95,600,000,000,000,000, it should have been 1 in 93,020,000,000,000,000. On the basis of these new
calculations, Curtis filed a motion for a new trial.
         The trial court denied Curtis’s motion for a new trial, finding that the change was marginal
considering that both calculations exceeded the world’s population many, many times over.

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      CONSTITUTION AND ALLOWED THOSE STATEMENTS
      TO BE INTRODUCED AT TRIAL.

                  ASSIGNMENT OF ERROR 3
      THE TRIAL COURT ERRED IN VIOLATION OF CELEEL’S
      RIGHTS UNDER THE DOUBLE JEOPARDY CLAUSE OF
      THE FIFTH AMENDMENT TO THE UNITED STATES
      CONSTITUTION, ARTICLE I, SECTION 10 OF THE OHIO
      CONSTITUTION, AND R.C. 2941.25, WHEN IT FAILED TO
      MERGE FOR SENTENCING OFFENSES THAT HAD
      SIMILAR IMPORT, AROSE FROM THE SAME CONDUCT,
      AND WERE NOT COMMITTED SEPARATELY OR WITH A
      SEPARATE ANIMUS.

                  ASSIGNMENT OF ERROR 4
      THE TRIAL COURT ERRED WHEN IT FAILED TO
      CALCULATE AND INCLUDE IN ITS SENTENCING ENTRY
      THE NUMBER OF DAYS OF CREDIT CELEEL WAS
      ENTITLED TO UNDER R.C. 2967.191.

                    ASSIGNMENT OF ERROR 5
      THE TRIAL COURT ERRED WHEN IT CLASSIFIED
      CELEEL CURTIS AS A TIER III SEX OFFENDER
      REGISTRANT, AS DEFINED IN R.C. 2950.01(G)(1), BECAUSE
      THE IRREBUTTABLE PRESUMPTION IN OHIO’S ADULT
      REGISTRATION SCHEME VIOLATES A CHILD’S RIGHT
      TO DUE PROCESS UNDER THE FOURTEENTH
      AMENDMENT TO THE U.S. CONSTITUTION; AND,
      ARTICLE I, SECTION 2, OHIO CONSTITUTION.

                   ASSIGNMENT OF ERROR 6
      THE TRIAL COURT ERRED WHEN IT CLASSIFIED
      CELEEL CURTIS AS A TIER III SEX OFFENDER
      REGISTRANT AS DEFINED IN R.C. 2950.01(G)(1), BECAUSE
      THE AUTOMATIC AND MANDATORY LIFETIME
      CLASSIFICATION OF JUVENILE OFFENDERS IS CRUEL
      AND UNUSUAL PUNISHMENT, IN VIOLATION OF THE
      EIGHTH AMENDMENT TO THE U.S. CONSTITUTION;
      AND, ARTICLE I, SECTION 9, OHIO CONSTITUTION.


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                     ASSIGNMENT OF ERROR 7
       CELEEL CURTIS WAS DENIED EFFECTIVE ASSISTANCE
       OF COUNSEL WHEN TRIAL COUNSEL FAILED TO
       OBJECT      TO    THE     IMPOSITION     OF    AN
       UNCONSTITUTIONAL CLASSIFICATION IN VIOLATION
       OF THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH
       AMENDMENTS TO THE U.S. CONSTITUTION; AND,
       ARTICLE I, SECTIONS 9 AND 10, OHIO CONSTITUTION.

       {¶39} We elect to address some of the assignments of error together and out

of the order in which they were raised.

                             First Assignment of Error

       {¶40} In Curtis’s first assignment of error, he argues that his case should not

have been transferred from juvenile court to the general division of the common

pleas court. Specifically, Curtis contends that the juvenile court failed to consider

alternative juvenile dispositions that could rehabilitate him, and that the juvenile

court failed to consider how Curtis would fare in the criminal justice system.

       {¶41} “[A] juvenile court’s determination regarding a child’s amenability to

rehabilitation in the juvenile system is reviewed by an appellate court under an

abuse-of-discretion standard.” In re M.P., 124 Ohio St.3d 445, 2010-Ohio-599, ¶

14, citing In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, ¶¶ 39-40. “ ‘A trial

court abuses its discretion when it makes a decision that is unreasonable,

unconscionable, or arbitrary.’ ” State v. Keenan, 143 Ohio St.3d 397, 2015-Ohio-

2484, ¶ 7, quoting State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, ¶ 34,

citing State v. Adams, 62 Ohio St.2d 151 (1980).

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       {¶42} Curtis was a juvenile when he committed the offenses in this case.

Curtis was born in late December of 1996 and the offenses took place in September

of 2014, so he was just over 3 months shy of turning 18. When the complaint was

filed against Curtis in juvenile court, a permissive transfer was requested pursuant

to R.C. 2152.12(B), which reads,

       (B) Except as provided in division (A) of this section, after a
       complaint has been filed alleging that a child is a delinquent child
       for committing an act that would be a felony if committed by an
       adult, the juvenile court at a hearing may transfer the case if the
       court finds all of the following:

       (1) The child was fourteen years of age or older at the time of
       the act charged.

       (2) There is probable cause to believe that the child committed
       the act charged.

       (3) The child is not amenable to care or rehabilitation within the
       juvenile system, and the safety of the community may require that
       the child be subject to adult sanctions. In making its decision
       under this division, the court shall consider whether the
       applicable factors under division (D) of this section indicating that
       the case should be transferred outweigh the applicable factors
       under division (E) of this section indicating that the case should
       not be transferred. The record shall indicate the specific factors
       that were applicable and that the court weighed.

       {¶43} Curtis does not allege any fault with the juvenile court’s determination

with regard to R.C. 2152.12(B)(1) and (B)(2) in the permissive transfer, as Curtis

was over the age of 14 and a probable cause hearing was held wherein it was

determined that probable cause existed to believe that Curtis committed the alleged


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acts. Rather, Curtis focuses his argument on R.C. 2152.12(B)(3), contending that

the trial court failed to adequately examine whether Curtis was amenable to some

form of treatment in the juvenile system.

      {¶44} In order for a juvenile court to determine if a transfer to the general

division of the common pleas court is appropriate, Revised Code 2152.12(D) and

(E) provide a number of factors for consideration. Subsection (D) provides the

following:

      (D) In considering whether to transfer a child under division (B)
      of this section, the juvenile court shall consider the following
      relevant factors, and any other relevant factors, in favor of a
      transfer under that division:

      (1) The victim of the act charged suffered physical or
      psychological harm, or serious economic harm, as a result of the
      alleged act.

      (2) The physical or psychological harm suffered by the victim
      due to the alleged act of the child was exacerbated because of the
      physical or psychological vulnerability or the age of the victim.

      (3) The child’s relationship with the victim facilitated the act
      charged.

      (4) The child allegedly committed the act charged for hire or as
      a part of a gang or other organized criminal activity.

      (5) The child had a firearm on or about the child's person or
      under the child's control at the time of the act charged * * * [.]

      (6) At the time of the act charged, the child was awaiting
      adjudication or disposition as a delinquent child, was under a
      community control sanction, or was on parole for a prior
      delinquent child adjudication or conviction.

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         (7) The results of any previous juvenile sanctions and programs
         indicate that rehabilitation of the child will not occur in the
         juvenile system.

         (8) The child is emotionally, physically, or psychologically
         mature enough for the transfer.

         (9) There is not sufficient time to rehabilitate the child within
         the juvenile system.

         {¶45} The juvenile court should then consider the following factors in R.C.

2152.12(E) weighing against a transfer to the general division of the common pleas

court.

         (E) In considering whether to transfer a child under division (B)
         of this section, the juvenile court shall consider the following
         relevant factors, and any other relevant factors, against a transfer
         under that division:

         (1) The victim induced or facilitated the act charged.

         (2) The child acted under provocation in allegedly committing
         the act charged.

         (3) The child was not the principal actor in the act charged, or,
         at the time of the act charged, the child was under the negative
         influence or coercion of another person.

         (4) The child did not cause physical harm to any person or
         property, or have reasonable cause to believe that harm of that
         nature would occur, in allegedly committing the act charged.

         (5) The child previously has not been adjudicated a delinquent
         child.

         (6) The child is not emotionally, physically, or psychologically
         mature enough for the transfer.

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       (7) The child has a mental illness or is a mentally retarded
       person.

       (8) There is sufficient time to rehabilitate the child within the
       juvenile system and the level of security available in the juvenile
       system provides a reasonable assurance of public safety.

       {¶46} In this case the trial court held a hearing on Curtis’s amenability to

treatment in the juvenile system and heard the testimony of Steve Brown, the

director of detention services for the Allen County Juvenile Detention Center, Dr.

Charlene Cassel, a court diagnostic and treatment psychologist, and Sonya Curtis,

Curtis’s mother. Following the hearing, the trial court issued an entry finding that

Curtis was not amenable to treatment in the juvenile system. In doing so, the trial

court thoroughly analyzed the factors in R.C. 2152.12(D) and (E) and made the

following relevant findings based on the evidence presented.

       The Court finds that the victim * * * suffered significant
       psychological harm as well as physical harm as a result of the
       commission of the offenses alleged. * * * (R.C. Section
       2152.12(D)(1)). The child has had numerous delinquency
       adjudications in the State of Michigan and has served detention
       time, and time under probation supervision in that state. It
       appears from the Social History that he was on unsupervised
       probation supervision in the State of Michigan at the time of the
       alleged * * * offenses (R.C. Section 2152.12(D)(6)). The Child was
       on probation under court supervision at various times from the
       age of 13 years. He was in secure custody in various juvenile
       detention facilities in Ohio and Michigan for most of the calendar
       year 2014.       He has had at least five prior delinquency
       adjudications. One of the prior delinquencies involved assault
       and battery. Two of the prior adjudications were for breaking
       and entering and another was a theft offense, receiving stolen

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         property. * * * His mother’s testimony confirmed that he has
         never been willing to participate in any rehabilitative or
         treatment services while under the supervision of juvenile
         authorities and has resisted any efforts geared toward treatment.
         The Court concludes that the results of all previous juvenile
         sanctions indicate that the rehabilitation of the child will not
         occur in the juvenile system. (R.C. 2152.12(D)(7)). Given the
         prior efforts at rehabilitation, the Court concludes that there is
         insufficient time in which to rehabilitate the Child in the juvenile
         justice system and that the level of security available in the
         juvenile system does not provide a reasonable assurance of public
         safety (R.C. Section 2152.12(D)(9) and (E)(8)). * * * Finally, the
         Child was 17 years and 9 months of age when he allegedly
         committed the offense, is now 18 years of age, and is emotionally,
         physically, and psychologically mature enough for the transfer
         (R.C. Section 2152.12(D)(8)).

         {¶47} The court also noted factors favorable to Curtis, determining that R.C.

2152.12 factors (D)(3) and (D)(4) were not present in this case. However, further

supporting the juvenile court’s decision to transfer, the juvenile court found that the

victim did not induce or facilitate the offense, that Curtis was not under provocation,

that Curtis was a principal actor, that Curtis did cause physical and psychological

harm, and that he had numerous prior adjudications as a delinquent child. R.C.

2152.12(E)(1)-(5).

         {¶48} The court also noted that it was persuaded by Dr. Cassel’s assessment

that Curtis’s criminal activity was escalating and her opinion that Curtis was not

amenable to treatment in the juvenile justice system.6



6
 In fact, Dr. Cassel specifically opined that even given more time she did not know that a successful treatment
for Curtis existed at all. (Tr. at 52).

                                                    -19-
Case No. 1-15-55


       {¶49} Curtis argues on appeal that we should find that the trial court abused

its discretion because the trial court did not consider other dispositions that would

be available to rehabilitate Curtis in the juvenile system. However, the trial court

was clearly persuaded by the fact that Curtis had been through the juvenile system

numerous times and had not been rehabilitated, that Curtis’s own mother stated that

Curtis would not commit to rehabilitation, that Curtis’s crimes were escalating in

severity, and that the forensic psychologist opined that, in her expert opinion, Curtis

was not amenable to treatment in the juvenile justice system.

       {¶50} It is evident from the juvenile court’s entry on the matter that the court

also found that Curtis, being so close to 18 years of age, was simply not amenable

to treatment in the juvenile justice system given the testimony presented. The trial

court was not required to individually analyze each and every possible avenue for

juvenile rehabilitation and decide that Curtis was not amenable to them.

       {¶51} The trial court was required to weigh the factors of R.C. 2152.12(D)

and (E) and make a determination, which it did. The trial court’s findings related to

the factors were clearly supported by the record, and were noted in the trial court’s

thorough judgment entry, therefore we cannot find that it abused its discretion on

this issue. Curtis’s argument is thus not well-taken.

       {¶52} Curtis next argues that the juvenile court did not consider how Curtis

would fare in the criminal justice system. Again, the trial court thoroughly reviewed


                                         -20-
Case No. 1-15-55


and analyzed the appropriate factors and there was ample evidence to support the

trial court’s decision. The trial court is also not required to make a specific finding

related to Curtis and how he would fare in the criminal justice system. Nevertheless,

it is implicit in the trial court’s finding that Curtis could not be rehabilitated in the

juvenile justice system. The trial court also specifically noted that Curtis was

physically and psychologically mature enough for the transfer. Therefore, Curtis’s

argument on this issue is similarly not well-taken, and his first assignment of error

is overruled.

                             Second Assignment of Error

       {¶53} In Curtis’s second assignment of error he argues that the trial court

erred by overruling his suppression motion. Specifically, Curtis argues that since

he was a juvenile at the time of his custodial interrogation, the trial court did not

properly examine the totality of the circumstances when deciding whether Curtis

knowingly, intelligently, and voluntarily waived his Miranda rights. In addition,

Curtis argues that he did not have access to his parent or guardian at the time of his

interrogation, which should have been a stronger factor in weighing the totality of

the circumstances.

       {¶54} “To determine whether a suspect knowingly, intelligently, and

voluntarily waived his Miranda rights, courts examine the totality of the

circumstances.” State v. Baker, --- Ohio St.3d ---, 2016-Ohio-2708, ¶ 24 citing State


                                          -21-
Case No. 1-15-55


v. Clark, 38 Ohio St.3d 252, 261 (1988). When the suspect is a juvenile, the totality

of the circumstances includes “ ‘the juvenile’s age, experience, education,

background, and intelligence” as well as his “capacity to understand the warnings

given him, the nature of his Fifth Amendment rights, and the consequences of

waiving those rights.’ ” Id. at ¶ 24, quoting Fare v. Michael C., 442 U.S. 707, 725,

99 S.Ct. 2560 (1979). A juvenile’s access to advice from a parent, guardian or

custodian also plays a role in assuring that the juvenile’s waiver is knowing,

intelligent, and voluntary. Baker at ¶ 24, citing In re C.S., 115 Ohio St.3d 267, 2007-

Ohio-4919, ¶ 96.

       {¶55} In this case, the State concedes that Curtis was in custody when he was

interrogated by the Lima City Police Department. The State argues, however, that

Curtis was clearly informed of his Miranda rights, that he understood them, and that

he signed a written waiver of those rights. The State maintains that under the totality

of the circumstances, Curtis’s statement was knowing, intelligent, and voluntary and

that the trial court was correct in overruling Curtis’s suppression motion. We agree.

       {¶56} At the suppression hearing, the State called Detective Steven

Stechschulte, who conducted Curtis’s custodial interrogation.                Detective

Stechschulte testified that he initially interacted with Curtis when Curtis’s vehicle

was pulled over by the police. Detective Stechschulte testified that he advised

Curtis at the scene of his Miranda rights, his right to counsel, and his right to remain


                                         -22-
Case No. 1-15-55


silent. Detective Stechschulte testified that Curtis did not make any statements at

the scene and that Curtis was then transported to the Lima Police Department for

interrogation.

       {¶57} Curtis’s entire interrogation was recorded, and that recording was

introduced into evidence. It lasted approximately one hour and eighteen minutes,

though Curtis was not being questioned that entire time. The recording shows that

as soon as Curtis was approached in the interrogation room, he was given a verbal

admonishment of his rights and the detective ensured that Curtis understood his

rights by engaging him in the following discussion.

       DETECTIVE: You have the right to remain silent, anything you
       say can and will be used against you in court, you have the right
       to an attorney if you cannot afford an attorney one will be
       appointed without any expense to you to represent and advise you.
       Do you understand those rights?

       CURTIS: Mmhm. (nodding head).

       DETECTIVE: Okay so what does that mean? Do you have to
       talk to me?

       CURTIS: No.

       DETECTIVE: No. Okay can you have an attorney?

       CURTIS: Yes.

       DETECTIVE: Okay. What if you can’t afford one?

       CURTIS: Ummm I’ll be court appointed one.



                                       -23-
Case No. 1-15-55


       DETECTIVE: Right. We will pay one—pay for one for ya. And
       any conversation that we have, is it just going to be a secret
       between you and me?

       CURTIS: No.

       DETECTIVE: Okay, no it can be used against you in court.

(Apr. 24, 2015 Hr., State’s Ex. 1).

       {¶58} Following the initial admonishment, DNA samples were then taken

from Curtis.   After the DNA samples were taken, the detective sat down to

interrogate Curtis, and he began by reading Curtis his rights again on an

admonishment form, which was introduced into evidence at the suppression

hearing. The form reads,

       It is my duty to advise you that under the constitution of the
       United States and the Constitution of the State of Ohio, you do not
       have to make any statement and if you do make a statement, what
       you do say may be used against you in court. You are further
       advised that if you do wish to make a statement you have a right
       to have your attorney present during the taking of this statement
       and that if you do not have the funds to employ an attorney, then
       an attorney will be appointed, without any expense to you, to
       represent and advise you.

(Apr. 24, 2015, Hr., State’s Ex. 2).

       {¶59} After the written admonishment on the form, the form contains a

written waiver, which reads,

       I have had my rights shown above read to me. I understand what
       my rights are. I am willing to answer questions and make a
       statement. I do not want an attorney at this time. I understand
       and know what I am doing. No promises or threats have been

                                       -24-
Case No. 1-15-55


        made to me and no pressure of any kind has been used against
        me.

(Apr. 24, 2015, Hr., State’s Exs. 1; 2). Curtis signed the waiver in front of the

detective on the video. It was also dated and the time was noted. There is no

indication of any coercion or pressure in the video. There is also no indication that

Curtis was under the influence of any drugs or alcohol or was otherwise of unsound

mind.

        {¶60} Moreover, in addition to the two admonishments in the interrogation

room, the detective also made it clear to Curtis again that he could end the interview

at any time for any reason.

        DETECTIVE: If sometime during our conversation, you get mad
        at me, you don’t like the color of my shirt, whatever reason, you
        just say I’m done. Okay, does that sound fair?

        CURITS: Alright (nodding).

(Apr. 24, 2015, Hr., State’s Ex. 1).

        {¶61} In overruling Curtis’s suppression motion, the trial court indicated that

it reviewed the evidence submitted and the relevant law and stated the following.

        After review the [court] finds that in the interview of September
        16, 2014 the Defendant relinquished his Miranda Rights
        voluntarily and the same was a product of a free deliberate choice
        and that the Waiver as signed by the Defendant was made with
        full awareness both of the nature of the rights being abandoned
        and the consequences of the decision to abandon it.

        This Court has given particular close scrutiny regarding the
        knowing, intelligent and voluntary nature of Defendant’s actions

                                         -25-
Case No. 1-15-55


       in light of Defendant’s age. This is the conclusion of the Court in
       all respects even when taken into consideration the minority
       status of Defendant.

(Doc. No. 24).

       {¶62} Curtis now argues on appeal that the trial court did not give enough

consideration to several factors when assessing the totality of the circumstances

including that Curtis was not given the opportunity to speak with a parent or

guardian, that Curtis had, arguably, lower intelligence, and that Curtis’s prior

involvement in the juvenile system was for offenses “relatively minor” in

comparison. Curtis contends that if the trial court had considered these factors in

determining the totality of the circumstances, the trial court would have found that

Curtis’s waiver was not knowing, intelligent and voluntary.

       {¶63} However, the trial court explicitly stated that it gave close scrutiny to

the waiver given that Curtis was a juvenile. Curtis was only 3 months shy of being

18 at the time of the interview, and he had multiple interactions with law

enforcement before. Detective Stechschulte made sure that Curtis understood his

rights and that he did not have to speak to the police at all. Notwithstanding Curtis’s

clear understanding, he elected to speak with law enforcement anyway.

       {¶64} A review of the videotaped interrogation, and the accompanying

written waiver, shows absolutely no coercion and a completely voluntary statement

from Curtis. Curtis even repeated his understanding of his rights to the detective


                                         -26-
Case No. 1-15-55


and never indicated he was anything less than willing.7 On the basis of the evidence

in the record, we cannot find that the trial court erred by denying Curtis’s motion to

suppress.8 Therefore, Curtis’s second assignment of error is overruled.

                  Curtis’s Fifth, Sixth, and Seventh Assignments of Error

         {¶65} In Curtis’s fifth assignment of error, he argues that the trial court erred

when it classified him as a Tier III sex offender because the adult scheme violates a

child’s right to due process. In Curtis’s sixth assignment of error, he contends that

automatic and mandatory lifetime classification of “juvenile offenders” is cruel and

unusual punishment. In Curtis’s seventh assignment of error, he argues that his trial

counsel was ineffective for failing to object to Curtis’s classification.

         {¶66} At the outset we note that R.C. 2152.02(C)(4) reads, “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).




7
  Curtis emphasizes multiple times in his brief that Detective Stechschulte offered Curtis a cigarette at the
beginning of the interrogation before Detective Stechschulte knew Curtis’s age. Curtis argues that this is an
indication that he was not treated like a juvenile and afforded extra protection. However, once Detective
Stechschulte learned that Curtis was under 18, the detective acknowledged in the video to Curtis that he
would not have given Curtis a cigarette if he had known Curtis’s age.
8
  We would also note that Curtis’s mother, who Curtis complains was not present for his interrogation, stated
at Curtis’s first hearing that she would not “waste” money getting Curtis a lawyer “on something that’s true,”
so it isn’t clear that having his mother present would have changed Curtis’s mind on whether he wanted to
speak to police. (Sept. 29, 2014, Tr. at 16). In fact, at one point in Curtis’s initial hearing Curtis stated he
wanted to “plead guilty to this [sic] whole charges,” but the juvenile court said it would not accept the
admission because the “whole bindover question” had to be resolved, so a denial to the charges was entered.
(Id. at 15).

                                                     -27-
Case No. 1-15-55


       {¶67} All of Curtis’s arguments in his fifth, sixth, and seventh assignments

of error contend that he should be treated as a juvenile/child even though his case

was transferred to the general division of the common pleas court and he faced adult

penalties. However, Curtis contends that additional protections should apply to

juveniles even if they are being tried in criminal court similar to prohibiting the

death penalty for crimes committed as juveniles as in Roper v. Simmons, 543 U.S.

551, 125 S.Ct. 1183 (2005), and prohibiting a life-without-parole sentence on a

juvenile offender who did not commit a homicide as in Graham v. Florida, 560 U.S.

48, 130 S.Ct. 2011 (2010).

       {¶68} Curtis also directs us to In re C.P., 131 Ohio St.3d 513, 2012-Ohio-

1446, wherein the Supreme Court of Ohio determined that lifetime sex offender

registration is unconstitutional for juveniles who “remain in the juvenile system.”

(Emphasis added). C.P. at ¶ 84. Similarly, Curtis relies heavily on a case from the

Supreme Court of Pennsylvania wherein it was determined that Pennsylvania’s

lifetime sex-offender registration provision as applied to juveniles in juvenile court

was unconstitutional. In re J.B., 107 A.3d 1, 20 (Pa.2014).

       {¶69} As C.P. and J.B. addressed juveniles in juvenile court, not juveniles

whose cases were transferred to criminal court facing adult penalties, they are

facially distinguishable from the case sub judice.




                                        -28-
Case No. 1-15-55


       {¶70} The arguments raised by Curtis have actually been presented to, and

rejected by, multiple Ohio Appellate Courts. In State v. Martin, 8th Dist. Cuyahoga

No. 102783, 2016-Ohio-922, the Eighth District Court of Appeals recently

considered nearly identical claims to those posed by Curtis in a case wherein a

juvenile’s case had been transferred to criminal court. The Eighth District found

Martin’s arguments that a mandatory lifetime classification was unconstitutional

invalid, reasoning, “The flaw in Martin’s argument is that he is trying to equate a

death sentence or a life sentence without the possibility of parole with having to

register as a sex offender for life. It is illogical to do so and, as such, we decline to

extend the reasoning * * * to the facts present here.” State v. Martin, 8th Dist.

Cuyahoga No. 102783, 2016-Ohio-922, ¶ 21, appeal not allowed, 146 Ohio St.3d

1471, 2016-Ohio-5108.

       {¶71} In State v. Reidenbach, 5th Dist. Coshocton No. 2014CA0019, 2015-

Ohio-2915, the Fifth District addressed arguments similar to Curtis’s—and similar

to those argued in Martin—and concluded the same as the Eighth District Court of

Appeals, holding,

       As Justice Pfeifer definitively stated, the C.P. case applied to
       juveniles deemed juvenile offender registrants who remained in
       the juvenile system. Such is not the case sub judice. In this case,
       appellant was bound over to adult court pursuant to R.C.
       2152.10(B) and 2152.12, a discretionary procedure by the juvenile
       court. The juvenile court provided appellant with due process,
       holding a probable cause hearing and amenability hearings
       before making its determination. * * * Once the bind over

                                          -29-
Case No. 1-15-55


       occurred, appellant was no longer a “child” pursuant to R.C.
       2152.02(C)(4).

Reidenbach at ¶ 33, motion for delayed appeal granted, 143 Ohio St.3d 1497, 2015-

Ohio-4468, ¶ 33, and appeal not allowed, 144 Ohio St.3d 1476, 2016-Ohio-467, ¶

33.

       {¶72} We wish to emphasize that the Supreme Court of Ohio declined

jurisdiction in both Martin and Reidenbach. Combining this fact with the Supreme

Court of Ohio’s emphasis in C.P., supra, that its holding was limited to juveniles in

juvenile court, we do not find Curtis’s arguments persuasive here. Therefore, we

agree with the Eighth and Fifth District Courts of Appeal and find that a lifetime

sex offender registration does not violate due process rights, or constitute cruel and

unusual punishment, where a juvenile’s case has been transferred to criminal court.

Therefore, Curtis’s fifth and sixth assignments of error are overruled. As we find

no error in Curtis’s Tier III sex offender classification in this case, we cannot find

that Curtis’s trial counsel was ineffective for failing to object to that classification,

therefore his seventh assignment of error is also overruled.

                              Third Assignment of Error

       {¶73} In Curtis’s third assignment of error, he argues that his convictions for

Aggravated Burglary and Robbery should have merged for the purposes of

sentencing. Specifically, Curtis contends that the harm from the Robbery was not a



                                          -30-
Case No. 1-15-55


separate and identifiable harm from the harm caused by the aggravating element of

the Aggravated Burglary, and that the crimes were committed with the same animus.

      {¶74} Whether offenses are allied offenses of similar import is a question of

law that this Court reviews de novo. State v. Badertscher, 3d Dist. Putnam No. 12-

14-06, 2015-Ohio-927, ¶ 21, citing State v. Stall, 3d Dist. Crawford No. 3–10–12,

2011–Ohio–5733, ¶ 15, citing State v. Brown, 3d Dist. Allen No. 1–10–31, 2011–

Ohio–1461, ¶ 36. Revised Code 2941.25, Ohio’s multiple-count statute, states:

      (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.

      {¶75} In State v. Ruff, 143 Ohio St.3d 114, 2015–Ohio–995, the Supreme

Court of Ohio provided Ohio courts with the following guidelines as to how to

interpret R.C. 2941.25.

      As a practical matter, when determining whether offenses are
      allied offenses of similar import within the meaning of R.C.
      2941.25, courts must ask three questions when the defendant's
      conduct supports multiple offenses: (1) Were the offenses
      dissimilar in import or significance? (2) Were they committed
      separately? and (3) Were they committed with separate animus
      or motivation? An affirmative answer to any of the above will


                                      -31-
Case No. 1-15-55


         permit separate convictions. The conduct, the animus, and the
         import must all be considered.

(Emphasis added.) Ruff at ¶ 31.9 The Court further held in Ruff that “two or more

offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the

defendant’s conduct constitutes offenses involving separate victims or if the harm

that results from each offense is separate and identifiable.” Id. at ¶ 26.

         {¶76} In this case Curtis argues that his convictions for Aggravated Burglary

and Robbery were allied offenses of similar import. As indicted in this case, these

statutes read as follows.

         Aggravated Burglary – R.C. 2911.11(A)(1)

         (A) No person, by force, stealth, or deception, shall trespass in an
         occupied structure or in a separately secured or separately
         occupied portion of an occupied structure, when another person
         other than an accomplice of the offender is present, with purpose
         to commit in the structure or in the separately secured or
         separately occupied portion of the structure any criminal offense,
         if any of the following apply:

         (1) The offender inflicts, or attempts or threatens to inflict
             physical harm on another;

         Robbery – R.C. 2911.02(A)(2)

         (A) No person, in attempting or committing a theft offense or in
         fleeing immediately after the attempt or offense, shall do any of
         the following:

9
  Ruff, a 6-1 decision (with two justices concurring in judgment only), clarified the Supreme Court of Ohio’s
plurality opinion in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314. Johnson removed the element-
comparison test that had been used under State v. Rance, 85 Ohio St.3d 632 (1999), and replaced it with an
analysis that required courts to look at a defendant’s conduct. Ruff provided more concrete guidelines for
courts to use in determining whether the “conduct” referenced in Johnson constituted allied offenses.

                                                   -32-
Case No. 1-15-55



       ***

       (2) Inflict, attempt to inflict, or threaten to inflict physical harm
       on another[.]

       {¶77} On appeal, Curtis argues that both the Aggravated Burglary and the

Robbery allege that Curtis inflicted, attempted, or threatened to inflict physical harm

on I.S. He argues that the physical harm from the Robbery was the same physical

harm that elevated the Burglary to Aggravated Burglary. Curtis argues that the

animus that “drove” Curtis when he “rifled through [the victim’s] purse in the

kitchen” was the same as the animus Curtis had during his struggle with the victim

in her office. (Appt.’s Br. At 19).

       {¶78} Contrary to Curtis’s arguments, his actions reflect separate periods of

harm separated by time and action, and a separate animus for his actions. Any of

these points could lead a trial court to find that the offenses did not merge.

       {¶79} The evidence showed that Curtis initially entered I.S.’s residence

when she was not home and began taking her jewelry. When I.S. returned home,

Curtis remained in the home, and he attacked her when she saw Curtis hiding in her

office closet. Curtis then struck I.S. multiple times while in the office and told her

to take him to the back door of the residence so he could leave.

       {¶80} This physical violence during a trespass was separate from what then

took place as Curtis pushed I.S. down the hallway into the bedroom and raped her.


                                         -33-
Case No. 1-15-55


Curtis also struck I.S. multiple times in the bedroom in the face and neck and

restrained her, all leaving bruises. After the sexual assault, I.S. mentioned that she

had money in her purse. Curtis then physically dragged her to the kitchen by her

neck and took the money in her purse.

           {¶81} It seems clear that Curtis initially striking and threatening the victim

was to facilitate an escape from the Burglary, then the separate commission of a

Rape, and thereafter separately dragging the victim to the kitchen to facilitate a

Robbery, demonstrating a separate animus in each instance. Thus there were

separate spaces of time and separate scenes of violence, each with separate

motivation and animus, in the office, the bedroom, the kitchen, and arguably the

hallway as well. That such spaces of time and scene existed illustrates that Curtis’s

convictions were not committed by the same conduct.10 Similar conduct over a

short span of time does not make the conduct the same.

           {¶82} Thus for any and all of these reasons we find that the trial court did

not err in sentencing Curtis on both the Aggravated Burglary conviction and the

Robbery conviction. Therefore, Curtis’s third assignment of error is overruled.

                                     Fourth Assignment of Error

           {¶83} In Curtis’s fourth assignment of error, he argues that the trial court

erred when it failed to calculate and include in its sentencing entry the number of



10
     As noted earlier, the Kidnapping was merged for the purposes of sentencing with the Rape conviction.

                                                    -34-
Case No. 1-15-55


days of jail-time credit Curtis was entitled to under R.C. 2967.191. Specifically,

Curtis argues that the trial court did not credit him with the proper amount of time

that Curtis spent in a juvenile facility awaiting trial.

       {¶84} 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,” which includes, “confinement in a juvenile facility.” An offender may

challenge the amount of jail-time credit on direct appeal. See, e.g., State v. Phillips,

7th Dist. Mahoning No. 16 MA 0003, 2016-Ohio-5194. A trial court commits plain

error when it fails to include the appropriate amount of jail-time credit in the

sentencing entry. State v. Washington, 1st Dist. Hamilton No. C-140315, 2015-

Ohio-1815, ¶ 9, citing State v. Hargrove, 1st Dist. Hamilton No. C–120321, 2013–

Ohi0–1860, ¶ 9.

       {¶85} In this case the State actually agrees with Curtis that he was not given

the proper amount of jail-time credit, stating that Curtis was not credited for his

confinement in a juvenile facility pending trial. However, the State argues that after

Curtis’s notice of appeal had been filed in this case, Curtis filed a pro se motion

seeking proper jail-time credit, and that motion was granted. The State thus

contends that any error has been remedied. In the alternative, the State concedes in

its brief that if we determine that because an appeal was already pending, the trial


                                          -35-
Case No. 1-15-55


court did not have jurisdiction to correct the jail-time credit in this instance, the case

should be remanded for the trial court to authorize the proper amount of credit.

       {¶86} At the outset we note that Curtis and the State are correct that Curtis

was not awarded proper jail-time credit at sentencing. At the sentencing hearing,

the State argued that Curtis was not entitled to credit for time spent confined in a

juvenile facility awaiting trial, despite the clear language to the contrary in R.C.

2967.191.    Thus we agree that the initial calculation not containing days of

confinement in a juvenile facility was indeed inaccurate.

       {¶87} Now, we must determine whether the trial court had jurisdiction to

correct its jail-time credit calculation after a notice of appeal had already been filed

in this Court. The Supreme Court of Ohio has stated,

       The general rule of law is that the trial court loses jurisdiction to
       take action in a cause after an appeal has been taken and decided.
       * * * See, also, 7 Moore's Federal Practice (2 Ed.) 419, Paragraph
       60.30(2), wherein it is stated:

       “But, the general rule is that when an appeal is taken from the
       district court the latter court is divested of jurisdiction, except to
       take action in aid of the appeal, until the case is remanded to it by
       the appellate court.”

       Yet, it has been stated that the trial court does retain jurisdiction
       over issues not inconsistent with that of the appellate court to
       review, affirm, modify or reverse the appealed judgment, such as
       the collateral issues like contempt, appointment of a receiver and
       injunction.




                                          -36-
Case No. 1-15-55


State ex rel. Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d

94, 97 (1978).

           {¶88} Ohio Appellate Courts have, arguably, differed on whether a trial court

has jurisdiction to correct jail-time credit while a case is pending on appeal. In State

v. Washington, 1st Dist. Hamilton No. C-140315, 2015-Ohio-1815, the First District

Court of appeals determined that a trial court had continuing jurisdiction to correct

jail-time credit following sentencing; however, “once a notice of appeal has been

filed in a case, a trial court ‘loses jurisdiction to act, except to take action in aid of

the appeal or in a manner not inconsistent with the appeals court’s jurisdiction to

review, affirm, modify, or reverse the appealed judgment.’ ” Washington at ¶ 6,

citing State v. Morgan, 1st Dist. Hamilton No. C–140416, 2014–Ohio–5325, ¶ 12,

citing State ex rel. Prosecutors v. Judges, 55 Ohio St.2d 94, 97 (1978).

           {¶89} Meanwhile, in State v. Sturgell, 9th Dist. Summit No. 26618, 2013-

Ohio-3518, the Ninth District seemed to imply that a trial court could correct jail-

time credit while the case was pending appeal, however, credit was not specifically

at issue on appeal in that decision.11 See Sturgell at ¶¶ 4-5.

           {¶90} In our own review of the issue, we note that jail-time credit is an issue

that may be appealed by an appellant to an appellate court. Therefore, by correcting

jail-time credit after a notice of appeal has been filed, the trial court is exercising



11
     Sturgell also involved a delayed appeal, further distinguishing it from this case.

                                                       -37-
Case No. 1-15-55


jurisdiction over an issue that is potentially inconsistent with the appellate court’s

jurisdiction. Because of this, we find that the First District Court of Appeals

decision in Washington determining that a trial court lacks jurisdiction to correct

jail-time credit after a notice of appeal has been filed, contains the better rule.

Accordingly, Curtis’s fourth assignment of error is sustained to the extent that this

matter must be reversed and remanded to the trial court to issue an entry containing

proper jail-time credit with the proper jurisdiction to do so.

       {¶91} For the foregoing reasons, Curtis’s first, second, third, fifth, sixth, and

seventh assignments of error are overruled. Curtis’s fourth assignment of error is

sustained, and this case is remanded to the trial court for the limited purposes of

exercising its jurisdiction to correct Curtis’s jail-time credit.

                                                 Judgment Affirmed in Part, Reversed
                                                       in Part and Cause Remanded

PRESTON and ROGERS, J.J., concur.




                                          -38-
