      [Cite as In re D. P., 2014-Ohio-467.]

                        IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                         HAMILTON COUNTY, OHIO




IN RE: D.P.                                   :   APPEAL NO. C-130293
                                                              C-130298
                                                  TRIAL NO. 13-487z
                                              :
                                                     O P I N I O N.




Criminal Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: February 12, 2014


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellant,

Gordon C. Magella, for Defendant-Appellee.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS



HILDEBRANDT, Judge.

       {¶1}   Appellant the state of Ohio appeals the judgment of the Hamilton

County Juvenile Court placing a juvenile on probation and ordering him to

attend a residential training school.

               The Delinquency Adjudication and Disposition

       {¶2}   On January 16, 2013, the state alleged that defendant-appellee,

D.P., a juvenile, had engaged in conduct that would have constituted aggravated

robbery, with firearm specifications, had he been an adult.             The state

subsequently filed a motion for the trial court to relinquish jurisdiction and bind

the case over to the general division of the common pleas court. The trial court

denied that motion and retained jurisdiction over the matter.

       {¶3}   The case proceeded to a trial before a magistrate, who found D.P.

delinquent with respect to the aggravated-robbery charge and the specifications.

In his decision, the magistrate specifically found that D.P. had possessed a

firearm and had pointed the firearm at the victim to facilitate the aggravated

robbery. D.P. did not file objections to the magistrate’s decision.

       {¶4}   After the case had been referred to the trial judge for disposition,

D.P. filed a motion to dismiss the firearm specifications, contending that

dismissal was in his best interest and in the best interest of the community

under Juv.R. 29(F)(2)(d).

       {¶5}   The trial court denied D.P.’s motion to dismiss the firearm-

possession specification. The court placed D.P. on probation and ordered him to

attend a residential program at Hillcrest School. But it held the motion to

dismiss the facilitation specification in abeyance to assess D.P.’s performance in

the Hillcrest program.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶6}   In two related assignments of error, the state argues that the trial

court erred in failing to commit D.P. to the Department of Youth Services

(“DYS”) for the facilitation specification. The state contends that the court’s

disposition was tantamount to a dismissal of the facilitation specification and

that dismissal was not within the court’s discretion.

                    Juv.R. 29 and Statutory Limits on Disposition

       {¶7}   We find the state’s assignments of error to be well taken. Juv.R.

29(F)(2)(d) provides that, if the allegations of the complaint are admitted or

proven, the juvenile court may “[d]ismiss the complaint if dismissal is in the best

interest of the child and the community.” But this discretion to dismiss is

explicitly limited to those cases in which dismissal is not “precluded by statute.”

Juv.R. 29(F)(2).

       {¶8}   R.C. 2152.17(A)(2) provides that, if the juvenile, were he an adult:

       would be guilty of a specification of the type set forth in section

       2941.145 of the Revised Code * * *, the court shall commit the child

       to the department of youth services for the specification for a

       definite period of not less than one and not more than three years,

       and the court shall also commit the child to the department for the

       underlying delinquent act under sections 2152.11 to 2152.16 of the

       Revised Code.

(Emphasis added.) R.C. 2941.145, in turn, sets forth the specification that the

offender had a firearm on his person while committing the offense “and

displayed the firearm, brandished the firearm, indicated that the offender

possessed the firearm, or used it to facilitate the offense.” Thus, under the plain

language of R.C. 2152.17(A)(2), the juvenile court is required to commit the child

to DYS following an adjudication for a facilitation specification.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶9}    Other courts construing R.C. 2152.17(A)(2) have held that the

statute’s terms are mandatory. In re J.W., 2d Dist. Montgomery No. 24507,

2011-Ohio-6706; In re J.M., 8th Dist. Cuyahoga No. 79550, 2002-Ohio-1658. As

the Second Appellate District has stated, once an adjudication of delinquency is

made with respect to a facilitation specification, “[t]he only element of discretion

for the court to exercise was the number of years selected” for the commitment

to DYS. In re J.W. at ¶ 5. Because the court did not have the discretion, under

R.C. 2152.17(A)(2), to place D.P. on probation and order him to attend Hillcrest,

we sustain the assignments of error.

                                       Ripeness

       {¶10} Nonetheless, D.P. contends that the issue is not ripe for appeal
because the trial court had held the motion to dismiss in abeyance and had

therefore not dismissed the specification at the time the state’s notice of appeal

was filed.     But because the trial court had no discretion to dismiss the

specification under R.C. 2152.17(A)(2), the motion to dismiss was a nullity.

Therefore, the trial court’s decision to hold the motion in abeyance was itself

erroneous, as the court had no option but to commit D.P. to DYS.

                                        Conclusion

       {¶11} We reverse the judgment of the trial court and remand the cause
for disposition pursuant to statute.

                                          Judgment reversed and cause remanded.



CUNNINGHAM, P.J., and HENDON, J., concur.

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




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