      [Cite as In re D.J., 2019-Ohio-288.]
              IN THE COURT OF APPEALS
          FIRST APPELLATE DISTRICT OF OHIO
               HAMILTON COUNTY, OHIO



IN RE: D.J.                                  :       APPEAL NOS. C-170615
                                                                  C-170616
                                             :        TRIAL NOS. 17-3298
                                                                 17-3299
                                             :

                                             :         O P I N I O N.




Appeals From: Hamilton County Juvenile Court

Judgments Appealed From Are: Reversed and Cause Remanded in C-170616;
                             Appeal Dismissed in C-170615

Date of Judgment Entry on Appeal: January 30, 2019


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

Raymond L. Katz, for Appellant D.J.
                    OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Presiding Judge.

       {¶1}   In these consolidated appeals, appellant D.J. challenges the decisions

of the juvenile court transferring jurisdiction of two delinquency actions to the

common pleas court for adult prosecution. The complaints alleged that when he was

17 years old, D.J. had engaged in behavior that would have constituted aggravated

robbery and receiving stolen property if he had been an adult.

       {¶2}   Because the aggravated-robbery case was dismissed for want of

prosecution by the juvenile court, D.J.’s appeal in C-170615 is not taken from a final

order and must be dismissed. Because, contrary to the juvenile court’s finding, the

receiving-stolen-property case did not arise from a common nucleus of operative facts

with another offense that was arguably subject to mandatory transfer, we hold that the

juvenile court erred in transferring that case to the adult court without first

considering whether D.J. would be amenable to care or rehabilitation within the

juvenile system.

                               I.   The Facts of Record

       {¶3}   In 2017, at least four complaints were filed against D.J. in the

Hamilton County Juvenile Court, each initiating separate delinquency actions.

Those complaints alleged that D.J. had committed multiple offenses against separate

victims, each perpetrated on a separate day between February and May 2017. Only

two of these delinquency actions are challenged in these consolidated appeals.

       {¶4}   One complaint at issue, filed in the case numbered 17-3298, charged

D.J. with behavior, committed on April 17, 2017, that would have constituted the

aggravated robbery of Darien Green had D.J. been an adult. The Green aggravated-

robbery complaint is the subject of the appeal numbered C-170615.

       {¶5}   The second complaint at issue, filed in the case numbered 17-3299,

charged D.J. with behavior, committed on May 27, 2017, that would have constituted



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receiving the stolen motor vehicle of Ella Washington had D.J. been an adult. That

complaint is the subject of the appeal numbered C-170616.

       {¶6}   For the purposes of these appeals, the only other relevant complaint

charged D.J. with behavior, committed on April 23, 2017, that would have

constituted the aggravated robbery of Isaiah Woodard had D.J. been an adult, and an

accompanying firearm specification.

       {¶7}   The state moved the juvenile court to relinquish jurisdiction in each

case to the adult court pursuant to Juv.R. 30(A). On June 28, 2017, the juvenile

court held a joint probable-cause hearing for the alleged offenses. After that hearing,

at which Woodard and others testified, including the police officer who had

investigated the receiving-stolen-property charge, the juvenile court found probable

cause to believe that D.J. had committed each offense except the aggravated robbery

of Green. That matter was continued at the state’s request because it had not been

able to contact the victim.

       {¶8}   On July 17, 2017, the juvenile court held a joint hearing on whether to

transfer jurisdiction of these complaints to the adult court. At the beginning of the

hearing, the juvenile court granted the state’s motion to dismiss the Green

aggravated-robbery complaint without prejudice for want of prosecution. The state

had indicated that Green was not available to testify.

       {¶9}   The juvenile court proceeded with the other complaints, including the

Woodard aggravated-robbery complaint. Under R.C. 2152.12, a juvenile who has

“committed a qualifying offense and who meets certain age requirements is

automatically removed from the jurisdiction of the juvenile division and transferred

to the adult court.” State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d

883, ¶ 2. This transfer of jurisdiction, colloquially known as “mandatory bindover,”

is reserved “for extraordinary cases, involving older or violent offenders.” Aalim at ¶

36. Under a mandatory bindover, the juvenile court is not required to consider



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whether the child would be amenable to care or rehabilitation within the juvenile

system. See State v. Cockrell, 2016-Ohio-5797, 70 N.E.3d 1168, ¶ 7 (1st Dist.).

       {¶10} D.J. was 17 years old at the time of the Woodard aggravated robbery.
The court found that D.J. had possessed or used a firearm to facilitate the offense,

and that probable cause existed to believe that he had committed the offense.

Aggravated robbery is a qualifying offense for purposes of mandatory bindover. R.C.

2152.02(BB). Therefore, the juvenile court declared that it was required to transfer

jurisdiction over the Woodard aggravated-robbery case to the common pleas court.

       {¶11} The juvenile court also found that two other complaints, including the
Washington receiving-stolen-property complaint—a nonqualifying offense not

ordinarily subject to mandatory bindover—were “in a mandatory posture” based on

the Woodard aggravated-robbery case.        D.J.’s counsel agreed.    Accordingly, the

juvenile court immediately transferred jurisdiction over the Washington receiving-

stolen-property case to the common pleas court without considering whether D.J.

would be amenable to care or rehabilitation within the juvenile system.

       {¶12} Two months later, the juvenile court docketed an entry from the
common pleas court remanding the case to the juvenile court’s jurisdiction under the

reverse-bindover procedure identified in R.C. 2151.121(B).       That scheme applies

when a case initially subject to mandatory bindover results in a conviction in adult

court which was subject only to discretionary bindover.         The adult court must

transfer those cases back to the juvenile court after considering “what the juvenile

court would have been required to do with the case[s] if the juvenile had been

charged with only those offenses for which convictions were obtained.” State v. D.B.,

150 Ohio St.3d 452, 2017-Ohio-6952, 82 N.E.3d 1162, ¶ 12.

       {¶13} The juvenile court held a hearing and ultimately determined on
October 10, 2017, that D.J. was “not amenable to care or rehabilitation within the

juvenile system, or that the safety of the community require[d] that [he] be subject



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solely to adult sanctions.”   The juvenile court then ordered that jurisdiction be

“transferred back” to the common pleas court.

       {¶14} On November 6, 2017, in the appeal numbered C-170616, D.J.
appealed from this order entered in the Washington receiving-stolen-property case.

A juvenile whose delinquency action is transferred to adult court cannot immediately

appeal the bindover decision.      He must wait until the end of the adult-court

proceedings. In re D.H., 152 Ohio St.3d 310, 2018-Ohio-17, 95 N.E.3d 389, ¶ 1.

       {¶15} On the same date, D.J. filed a notice of appeal, numbered C-170615, in
the case alleging the aggravated robbery of Green.

       {¶16} This court consolidated these two appeals for decision. We note that
D.J. has brought a separate appeal from the common pleas court challenging his

convictions following the bindover. On June 29, 2018, in response to a motion by

D.J., this court consolidated these appeals with that separate appeal for purposes of

oral argument only. Nothing in that entry did, or could have, added materials filed in

the common pleas court to the record certified for our review in these appeals. D.J.

ultimately waived oral argument.

                        II. No Final Order in Appeal C-170615

       {¶17} In the juvenile court case numbered 17-3298, the state sought an
adjudication that D.J. was delinquent for actions which would have constituted the

aggravated robbery of Green if D.J. were an adult.

       {¶18} In the appeal numbered C-170615, D.J. purported to appeal from the
juvenile court’s entry of “October 24, 2016” transferring jurisdiction over this case to

the Hamilton County Common Pleas Court. But the record on appeal does not

contain any entry, dated October 24, 2016, or otherwise, transferring jurisdiction.

The last substantive entry journalized by the juvenile court in this matter was a July

17, 2017 entry granting the state’s motion and dismissing the case for want of

prosecution.



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶19} Under R.C. 2501.02, a court of appeals has jurisdiction to review
judgments or final orders of courts of record inferior to the court of appeals,

“including the finding, order, or judgment of a juvenile court that a child is

delinquent, neglected, abused, or dependent, for prejudicial error committed by such

lower court.”

       {¶20} Here, the juvenile court’s entry of dismissal for want of prosecution
did not determine that D.J. was delinquent. To the contrary, it left the parties as if

the action had never been commenced. The entry ended this delinquency action

without affecting D.J.’s substantial rights. See R.C. 2505.02(A)(1). Were this action

to be renewed, nothing in this entry would deny D.J. effective appellate review in the

future. See Thomasson v. Thomasson, 153 Ohio St.3d 398, 2018-Ohio-2417, 106

N.E.3d 1239 (holding that an order affects a substantial right for purposes of R.C.

2505.02(B)(2) only if, in the absence of immediate review, the appellant would be

denied effective relief in the future). Thus the juvenile court’s entry, entered in a

special proceeding, was not a final order under R.C. 2505.02(B)(2).

       {¶21} We note that while R.C. 2945.67(A) authorizes an appeal from a
juvenile court decision that dismisses a delinquency action, that right lies only with

the state and not with a juvenile offender. See State v. Craig, 116 Ohio St.3d 135,

2007-Ohio-5752, 876 N.E.2d 957, syllabus; see also In re J.F., 2017-Ohio-7675, 97

N.E.3d 999, ¶ 14 (1st Dist.).

       {¶22} This     court     has   no   jurisdiction   over   nonfinal   orders,   and

we must dismiss the appeal numbered C-170615. See In re L.S., 1st Dist. Hamilton

No. C-140318, 2015-Ohio-1321, ¶ 6, citing Gen. Acc. Ins. Co. v. Ins. Co. of N. Am., 44

Ohio St.3d 17, 20, 540 N.E.2d 266 (1989).

        III. Appeal From the Transfer of the Receiving-Stolen-Property Case

       {¶23} In the appeal numbered C-170616, D.J. principally challenges the
juvenile court’s July 17, 2017 entry transferring jurisdiction over the Washington



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                      OHIO FIRST DISTRICT COURT OF APPEALS



receiving-stolen-property case to the common pleas court, and other court rulings

that flow from that decision.

                     a. A constitutional challenge to mandatory bindover

         {¶24} In his first assignment of error, D.J. asserts the juvenile court erred
when it transferred this matter to the trial court on grounds that the mandatory-

transfer scheme it employed, codified in R.C. 2152.10(A)(2)(B) and 2151.12(A)(1)(b),

was unconstitutional. The mandatory bindover of the Woodard aggravated-robbery

case was the predicate for the transfer of jurisdiction over the Washington receiving-

stolen-property case. Since D.J. did not raise this objection in juvenile court, we

review only for plain error. See Crim.R. 52(B); see also State v. Morgan, 153 Ohio

St.3d 196, 2017-Ohio-7565, 103 N.E.3d 784, ¶ 49 (holding that the plain-error

standard applied in criminal proceedings applies when errors that are not preserved

arise in juvenile-delinquency proceedings).

         {¶25} The Ohio Supreme Court has held the statutory scheme that D.J.
challenges “complies with due process and equal protection as guaranteed by the

Ohio and United States Constitutions.” Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956,

83 N.E.3d 883, at ¶ 38. Since D.J. cannot demonstrate error, much less plain error,

the first assignment of error is overruled.

         {¶26} In a related assignment of error, D.J. claims that he was denied the
effective assistance of counsel when his juvenile court counsel failed to challenge the

constitutionality of the bindover procedure as set forth in his first assignment of

error.   To prevail on this claim, he must first show his counsel’s performance was

deficient. 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, 142, 538 N.E.2d 373 (1989), paragraph two

of the syllabus.

         {¶27} In light of our resolution of the first assignment of error, counsel’s
failure to raise the constitutional issue was not deficient performance and thus could



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                     OHIO FIRST DISTRICT COURT OF APPEALS



not have, on that basis, denied D.J. a reliable and fundamentally fair proceeding. See

In re B.H., 1st Dist. Hamilton Nos. C-180108 and C-180109, 2018-Ohio-3350, ¶ 13;

see also Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). The

sixth assignment of error is overruled.

                          b. No common nucleus of operative facts

        {¶28} In his second assignment of error, D.J. asserts that since the
Washington receiving-stolen-property case, a discretionary-bindover offense, did not

share a common nucleus of operative facts with the case charging him with the

aggravated robbery of Woodard, an offense subject to mandatory bindover, the juvenile

court was required to hold a hearing to determine whether D.J. was amenable to

rehabilitation in the juvenile system before transferring the case. We agree.

        {¶29} The juvenile court possesses exclusive jurisdiction over children
alleged to be delinquent for committing acts that would constitute a crime if

committed by an adult. See R.C. 2151.23(A)(1); see also In re M.P., 124 Ohio St.3d

445, 2010-Ohio-599, 923 N.E.2d 584, ¶ 11. However, under certain circumstances,

“the juvenile court has the duty to transfer a case, or bind a juvenile over, to the adult

criminal system.” M.P. at ¶ 11; see R.C. 2152.10(A); Aalim, 150 Ohio St.3d 489, 2017-

Ohio-2956, 83 N.E.3d 883, at ¶ 2.

        {¶30} One circumstance requiring mandatory bindover is when the juvenile
was 16 or 17 years old at the time he committed the offense, there is probable cause

to believe that the juvenile committed a serious offense, identified as a “category two

offense,” and the juvenile had a firearm in his possession or used it to facilitate the

offense. See R.C. 2152.10(A)(2)(b) and 2152.12(A)(1)(b)(ii). Aggravated robbery is a

category two offense. R.C. 2152.02(BB)(1); see Cockrell, 2016-Ohio-5797, 70 N.E.3d

1168, at ¶ 7.




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       {¶31} At the conclusion of the July 17, 2017 joint hearing, the juvenile court
stated that each of these requirements had been met in the Woodard aggravated-

robbery case, and concluded that that case was subject to mandatory bindover.

       {¶32} Receiving stolen property, however, is a “non-category,” or
“discretionary-bindover,” offense. See State v. Mays, 2014-Ohio-3815, 18 N.E.3d

850, ¶ 31 (8th Dist.). Ordinarily, R.C. 2152.12(B) permits a juvenile court to order

the transfer of a discretionary bindover delinquency case only if the court has found

at a hearing, inter alia, that the child was not amenable to care or rehabilitation

within the juvenile system and should be subject to adult sanctions to ensure the

safety of the community. See State v. Marshall, 1st Dist. Hamilton No. C-150383,

2016-Ohio-3184, ¶ 12.         But a juvenile court may transfer jurisdiction of a

discretionary-bindover delinquency case without an amenability hearing as long as it

has found probable cause to believe that the juvenile also committed a mandatory-

bindover offense and that both the mandatory-bindover offense and “the additional

[discretionary] charges arose from a common nucleus of operative facts.” Cockrell,

2016-Ohio-5797, 70 N.E.3d 1168, at ¶ 17. If the cases arise from a common nucleus of

operative facts, the juvenile court is relieved of any requirement that R.C. 2152.12(B)

otherwise imposes to conduct further hearings or to make findings with respect to

the juvenile’s eligibility to be tried as a juvenile.

       {¶33} As the state now acknowledges, there was no evidence before the juvenile
court that the receiving-stolen-property case and the Woodard aggravated-robbery case

arose from a common nucleus of operative facts. Based upon the evidence adduced at

the June 28, 2017 probable-cause hearing, the two offenses were committed on

different dates, at different locations, against different victims, and without any factual

similarity in the manner in which D.J. committed the offenses.

       {¶34} Since the Washington receiving-stolen-property case did not arise from a
common nucleus of operative facts shared with an offense that was arguably subject to



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                     OHIO FIRST DISTRICT COURT OF APPEALS



mandatory transfer, we hold that the juvenile court erred in transferring that case to the

adult court without considering whether D.J. would be amenable to care or

rehabilitation within the juvenile system. Cockrell, 2016-Ohio-5797, 70 N.E.3d 1168,

at ¶ 17. “[A]bsent a proper bindover procedure * * * the juvenile court has the

exclusive subject matter jurisdiction over any case concerning a child who is alleged

to be a delinquent.” State v. Wilson, 73 Ohio St.3d 40, 44, 652 N.E.2d 196 (1995);

see State v. Amos, 1st Dist. Hamilton No. C-150265, 2016-Ohio-1319, ¶ 28.

       {¶35} The second assignment of error is sustained.
           c. Entries made subsequent to improper transfer were legal nullities

       {¶36} In his fifth assignment of error, D.J. challenges the juvenile court’s
reverse-bindover amenability decision.       In an entry dated September 22, 2017,

journalized in the record in this appeal, the common pleas court remanded the case

to juvenile court under the reverse-bindover procedure. In response to the order of

remand, the juvenile court held a hearing in which it found that D.J. was not

amenable to rehabilitation in the juvenile system and returned the case for criminal

prosecution.

       {¶37} In our resolution of the second assignment of error, we held that the
juvenile court’s July 17, 2017 entry transferring the receiving-stolen-property case to

the common pleas court must be reversed. Under the rule of Wilson, 73 Ohio St.3d

at 44, 652 N.E.2d 196, that entry did not properly transfer jurisdiction. Thus every

subsequent entry of record was a legal nullity. See In re Marshall, 1st Dist. Hamilton

No. C-830874, 1984 WL 6955, *4 (Aug. 15, 1984); see also State v. Purnell, 171 Ohio

App.3d 446, 2006-Ohio-6160, 871 N.E.2d 613, ¶ 10 (1st Dist.). Since the juvenile

court’s reverse-bindover amenability ruling was a legal nullity, we do not reach the

merits of the fifth assignment of error.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



               IV. No Appeal From the Woodard Aggravated Robbery

       {¶38} In his fourth assignment of error, D.J. asserts that the juvenile court
erred in finding probable cause to believe that he had used a firearm to facilitate the

aggravated robbery of Woodard.          While D.J. has timely appealed from the

Washington receiving-stolen-property action, he has not filed any appeal from the

Woodard aggravated-robbery delinquency action, numbered 17-3296. Consequently,

this court is unable to address any alleged error in that case.

       {¶39} An appeal is commenced only by the timely filing of a notice of appeal.
See App.R. 3(A). The failure to file a notice of appeal deprives an appellate court of

jurisdiction to review a lower court’s actions. See State v. Hamberg, 2015-Ohio-

5074, 53 N.E.3d 918, ¶ 8 (1st Dist.); see also State ex rel. Curran v. Brookes, 142

Ohio St. 107, 50 N.E.2d 995 (1943), paragraph seven of the syllabus.           “In our

adversary system, in both civil and criminal cases, in the first instance on appeal, we

follow the principle of party presentation. That is, we rely on the parties to frame the

issues for decision * * * .” Greenlaw v. United States, 554 U.S. 237, 243-245, 128

S.Ct. 2559, 171 L.Ed.2d 399 (2008).

       {¶40} Because D.J. has not appealed from the Woodard aggravated-robbery
delinquency action, we are unable to address any alleged error in that case. See

Hamberg at ¶ 8; see also State v. Harmon, 9th Dist. Summit No. 26502, 2013-Ohio-

1769, ¶ 14. Thus we do not address the merits of D.J.’s fourth assignment of error.

                              V. The Criminal Prosecution

       {¶41} Finally, in his third assignment of error, D.J. asserts that the “general
division of the common pleas court erred * * * when, lacking subject matter

jurisdiction, it imposed sentence in appellant’s cases.” Because this appeal is taken

only from the Washington receiving-stolen-property case, we have authority to

address errors raised in that case only. See Hamberg, 2015-Ohio-5074, 53 N.E.3d

918, at ¶ 8.



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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶42} The common pleas court’s judgment “impos[ing] sentence” in this
case, however, is not part of the record on appeal. See App.R. 9(A). Appellate review

is strictly limited to the record on appeal. See Morgan v. Eads, 104 Ohio St.3d 142,

2004-Ohio-6110, 818 N.E.2d 1157, ¶ 13; see also State v. Bumu, 1st Dist. Hamilton

No. C-160492, 2017-Ohio-6901, ¶ 13.

       {¶43} D.J. has not appealed from or included any common pleas court entry
imposing sentence in the record here. Compare In re D.M., 6th Dist. Lucas No. L-

16-1237, 2017-Ohio-8768, ¶ 5 (appellant challenging juvenile court’s transfer of

jurisdiction appealed from both the juvenile court case containing the transfer

orders, and from the criminal judgment of conviction); see also State v. Marshall, 1st

Dist. Hamilton No. C-150383, 2016-Ohio-3184 (appellant included the original

papers filed in the juvenile court in the record on appeal from his criminal

prosecution following a transfer of jurisdiction). Since D.J. has not ensured that the

record on appeal includes the items necessary to review this claimed error, we

presume regularity. See Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199,

400 N.E.2d 384 (1980). The third assignment of error is overruled.

                                      VI. Conclusion

       {¶44} Since D.J. has not appealed from a final order in the appeal numbered
C-170615, that appeal is dismissed.

       {¶45} Having sustained D.J.’s second assignment of error, in the appeal
numbered C-170616, holding that the juvenile court erred in transferring jurisdiction

to the common pleas court on July 17, 2017, we vacate that order, and remand the

matter to the juvenile court for further proceedings consistent with law and this

opinion.

       {¶46} We note that, in light of our resolution of the second assignment of
error, any exercise of subject-matter jurisdiction by the common pleas court would

have been predicated upon the juvenile court’s improper transfer of jurisdiction. See



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Wilson, 73 Ohio St.3d at 44, 652 N.E.2d 196. A judgment imposed by a court that

lacks subject-matter jurisdiction is void. See State v. Payne, 114 Ohio St.3d 502,

2007-Ohio-4642, 873 N.E.2d 306, ¶ 27. And while a trial court’s jurisdiction over a

criminal case is limited after it renders judgment, it retains jurisdiction to correct a

void judgment See State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197, 884

N.E.2d 568, ¶ 23; State v. Gilbert, 1st Dist. Hamilton No. C-110382, 2013-Ohio-238,

¶ 6.

                                                                  Judgment accordingly.



ZAYAS and MILLER, JJ., concur.


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




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