[Cite as State v. Mack, 2015-Ohio-4148.]



                           STATE OF OHIO, MAHONING COUNTY
                                  IN THE COURT OF APPEALS
                                       SEVENTH DISTRICT

STATE OF OHIO,                                  )
                                                )
        PLAINTIFF-APPELLEE,                     )
                                                )             CASE NO. 14 MA 82
V.                                              )
                                                )                  OPINION
DARRL A. MACK, JR.,                             )
                                                )
        DEFENDANT-APPELLANT.                    )

CHARACTER OF PROCEEDINGS:                       Criminal Appeal from Court of Common
                                                Pleas of Mahoning County, Ohio
                                                Case No. 14CR65

JUDGMENT:                                       Reversed and Remanded

APPEARANCES:
For Plaintiff-Appellee                          Paul Gains
                                                Prosecutor
                                                Ralph M. Rivera
                                                Assistant Prosecutor
                                                21 W. Boardman St., 6th Floor
                                                Youngstown, Ohio 44503-1426

For Defendant-Appellant                         Charlyn Bohland
                                                Assistant State Public Defender
                                                250 East Broad St., Suite 1400
                                                Columbus, Ohio 43215

JUDGES:

Hon. Gene Donofrio
Hon. Mary DeGenaro
Hon. Carol Ann Robb


                                                Dated: October 2, 2015
[Cite as State v. Mack, 2015-Ohio-4148.]
DONOFRIO, P.J.

          {¶1}   Defendant-appellant Darrl A. Mack Jr. appeals from his conviction and
sentence for aggravated robbery and aggravated burglary entered in the Mahoning
County Common Pleas Court.
          {¶2}   On November 1, 2013, a three-count delinquency complaint was filed
against 16-year-old Mack. Two counts were for offenses that if he were an adult
would have constituted aggravated robbery in violation of R.C. 2911.01(A)(1), first-
degree felonies. One count was for an offense that if he were an adult would have
constituted aggravated burglary in violation of R.C. 2911.11, a first-degree felony. All
three counts contained firearm specifications.
          {¶3}   The juvenile court appointed counsel and Mack entered pleas of denial
to the complaint. Subsequently, Mack waived the right to a probable cause hearing
and stipulated to probable cause. Pursuant to the mandatory transfer statute, the
juvenile court transferred Mack’s case to the adult court.
          {¶4}   Once in adult court, Mack reached a plea agreement with the state.
Mack agreed to plead guilty to one count each of aggravated robbery and aggravated
burglary. In exchange, the state agreed to dismiss all other charges since they would
have merged with the aggravated robbery and aggravated burglary offenses to which
Mack was pleading guilty. The state also agreed to recommend consecutive terms of
four years in prison for each of the offenses for an aggregate term of eight years, and
that it would not oppose an application for judicial release when Mack becomes
eligible in four and half years. More importantly, the state dismissed the firearm
specifications because the instrument Mack used in the commission of the offenses
turned out to be a starter pistol which was incapable of shooting a projectile.
          {¶5}   On June 2, 2014, the trial court sentenced Mack in accordance with the
state’s recommendation. This appeal followed.
          {¶6}   Mack raises two assignments of error. Mack’s first assignment of error
states:

                 The court erred when it failed to sentence Darrl A. Mack, Jr. in
          accordance with R.C. 2152.121. (A-1; 4/9/2014 T.pp.9, 14; 6/2/2014
                                                                                -2-


       T.pp.10-11; June 4, 2014 Judgment Entry of Sentence, pp.1-2).

       {¶7}   Mack argues that plain error occurred when the adult court did not stay
his adult sentence and remand his case back to the juvenile court after he was
convicted of offenses that were not subject to a mandatory transfer.
       {¶8}   Juvenile courts have exclusive initial subject matter jurisdiction over any
case involving a child alleged to be delinquent for having committed an act that would
constitute a felony if committed by an adult. State v. Golphin, 81 Ohio St.3d 543, 545,
692 N.E.2d 608 (1998). If a juvenile offender meets defined criteria, the juvenile court
may, or in specific cases shall, transfer the case to the general division of the
common pleas court. In specified situations, transfer to the general division is
mandatory. R.C. 2151.26(B).
       {¶9}   The present case initially presented a mandatory transfer situation. R.C.
2152.10(A)(2)(b) states that a delinquent child is eligible for mandatory transfer when
the child is charged with a “category two offense,” the child was sixteen years or
older at the time of the commission of the offense, and “[t]he child is alleged to have
had a firearm on or about the child's person * * * and to have displayed the firearm,
brandished the firearm, indicated possession of the firearm, or used the firearm to
facilitate the commission of the act charged.” Category two offenses include the
offenses Mack was charged with here – aggravated robbery and aggravated
burglary. R.C. 2152.02(CC)(1).
       {¶10} All of the aggravated robbery and aggravated burglary charges brought
against Mack in the juvenile court included firearm specifications, which made him
eligible for mandatory transfer to the adult court. R.C. 2152.10(A)(2)(b). The juvenile
court then had to apply R.C. 2152.12(A) to determine whether the cases had to be
transferred to the adult court.
       {¶11} The juvenile court “shall” transfer the case to the adult court if the child
was sixteen or seventeen years of age at the time of the act charged and mandatory
transfer of the case is required upon probable cause to believe that the child
committed the act charged. R.C. 2152.12(A)(1)(b)(ii); R.C. 2152.10(A)(2)(b). Here,
                                                                                 -3-


Mack stipulated to probable cause and the juvenile court properly transferred the
case to adult court.
       {¶12} But the fact that the juvenile court properly transferred the case to adult
court does not end the inquiry. Whether the charges were properly transferred from
the juvenile court to the adult court is a different question than whether the adult court
could subsequently impose sentences on all of the offenses. R.C. 2152.121(B)
governs what the adult court must do once a juvenile has been found guilty of an
offense in adult court that previously was transferred from juvenile court.
       {¶13} R.C. 2152.121(B) provides, in part:

              If a complaint is filed against a child alleging that the child is a
       delinquent child, if the case is transferred pursuant to division
       (A)(1)(a)(i) or (A)(1)(b)(ii) of section 2152.12 of the Revised Code, and if
       the child subsequently is convicted of or pleads guilty to an offense in
       that case, the sentence to be imposed or disposition to be made of the
       child shall be determined as follows:
              (1) The court * * * shall determine whether * * * division (A) of
       section 2152.12 of the Revised Code would have required mandatory
       transfer of the case or division (B) of that section would have allowed
       discretionary transfer of the case.
              (2) 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, and
       division (B) of that section would not have allowed discretionary transfer
       of the case, the court shall transfer jurisdiction of the case back to the
       juvenile court that initially transferred the case, the court and all other
       agencies that have any record of the conviction of the child or the
                                                                            -4-


child's guilty plea shall expunge the conviction or guilty plea and all
records of it, the conviction or guilty plea shall be considered and
treated for all purposes other than as provided in this section to have
never occurred, the conviction or guilty plea shall be considered and
treated for all purposes other than as provided in this section to have
been a delinquent child adjudication of the child, and the juvenile court
shall impose one or more traditional juvenile dispositions upon the child
under sections 2152.19 and 2152 .20 of the Revised Code.
        (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. * * *
        (4) 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 have required mandatory transfer of the case, the court
                                                                              -5-


        shall impose sentence upon the child under Chapter 2929. of the
        Revised Code.

        {¶14} Thus, R.C. 2152.121(B) envisions three possible scenarios where a
juvenile who has been transferred to adult court has been convicted or pleads guilty
to an offense. One, if the offense would not have required mandatory transfer and
would not have allowed for discretionary transfer, the adult court must transfer the
case back to juvenile court for adjudication. R.C. 2152.121(B)(2). Two, if the offense
would not have required mandatory transfer but would have allowed for discretionary
transfer, the adult court must impose sentence, stay the sentence, and return the
case to juvenile court. R.C. 2152.121(B)(3). The juvenile court then has two options:
(1) return the case back to adult court or (2) impose a serious youthful offender
dispositional sentence along with a traditional delinquent child adjudication. R.C.
2152.121(B)(3)(a), (b). Three, if the offense would have required mandatory transfer,
the adult court imposes sentence upon the child as it would normally sentence an
adult defendant before it. R.C. 2152.121(B)(4).
        {¶15} Here, Mack’s convictions involve aggravated robbery and aggravated
burglary offenses with no firearm specifications. Each of these offenses is one which
would not have required mandatory transfer but would have allowed for discretionary
transfer. Consequently, the trial court was required to impose sentence, stay the
sentence, and return the case to juvenile court. R.C. 2152.121(B)(3). The trial court
failed to make the required determination, stay the sentence, or return the case to the
juvenile court. Thus, the trial court's failure to follow the plain language of R.C.
2152.121 constitutes plain error. Ohio v. Brookshire, 2d Dist. No. 25859, 2014-Ohio-
4858.
        {¶16} Accordingly, Mack’s first assignment of error has merit.
        {¶17} Mack’s second assignment of error states:

              Darrl A. Mack, Jr. received ineffective assistance of counsel, as
        guaranteed by the Sixth and Fourteenth Amendments to the U.S.
                                                                                  -6-


       Constitution; and, Article I, Section 10, Ohio Constitution. (A-1; 4/9/2014
       T.pp.9, 14; 6/2/2014 T.pp.10-11; June 4, 2014 Judgment Entry of
       Sentence, pp.1-2).

       {¶18} Mack argues that his trial counsel’s performance was deficient because
he failed to inform the court about the process in R.C. 2152.121 and object when the
trial court did not stay the sentence and transfer the case back to juvenile court in
accordance with those procedures. The State has filed a confession of judgment
agreeing with Mack that his trial counsel’s failure to bring to the trial court’s attention
the procedure outlined in R.C. 2152.121 amounted to a violation of his right to
counsel.
       {¶19} Based on our resolution of Mack’s first assignment of error and since
the error in the proceedings below clearly constituted plain error, his second
assignment of error has been rendered moot. App.R. 12(A)(1)(c).
       {¶20} The judgment of the trial court is reversed and the case remanded for
further proceedings according to law and consistent with this court’s opinion.

DeGenaro, J., concurs.

Robb, J., concurs.
