[Cite as In re D.C., 2017-Ohio-114.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


In the Matter of:                                   :
                                                                      No. 16AP-124
D.C.,                                               :           (C.P.C. No. 15JU-12062)

                 (Appellee).                         :        (REGULAR CALENDAR)



                                            D E C I S I O N

                                       Rendered on January 12, 2017


                 On brief: Yeura R. Venters, Public Defender, and
                 Timothy E. Pierce, for appellee. Argued: Timothy E. Pierce.

                 On brief: Ron O'Brien, Prosecuting Attorney, and Laura R.
                 Swisher, for appellant. Argued: Laura R. Swisher.

                  APPEAL from the Franklin County Court of Common Pleas,
                      Division of Domestic Relations, Juvenile Branch

LUPER SCHUSTER, J.
          {¶ 1} Plaintiff-appellant, State of Ohio, appeals from a decision and entry of the
Franklin County Court of Common Pleas, Juvenile Division ("juvenile court"), granting in
part the motion to dismiss of defendant-appellee, D.C. For the following reasons, we
affirm.
I. Facts and Procedural History
          {¶ 2} D.C. turned 18 years old on August 24, 2005. In 2005 and 2006, the state
filed three successive indictments against D.C. alleging criminal conduct that occurred
both before and after he obtained 18 years of age. The first indictment, filed October 27,
2005 in Franklin C.P. No. 05CR-7280, contained 18 counts, including multiple counts of
aggravated robbery, robbery, and kidnapping, plus accompanying gun specifications. All
of the alleged conduct in the first indictment occurred after D.C. turned 18 years old. The
second indictment, filed January 11, 2006 in Franklin C.P. No. 06CR-165, contained four
No. 16AP-124                                                                                2


counts, including two counts of aggravated robbery and two counts of robbery, all with
specifications. One of the counts for aggravated robbery (Count 1) and one of the counts
for robbery (Count 2) occurred before D.C.'s eighteenth birthday. In the third indictment,
filed January 26, 2006 in Franklin C.P. No. 06CR-694, the state charged D.C. with five
counts of aggravated robbery, and all five counts alleged conduct that occurred before
D.C. turned 18 years old. Pursuant to the state's January 27, 2006 motion, the trial court
consolidated all three indictments for one trial.
       {¶ 3} Despite the fact that all three indictments correctly listed D.C.'s date of birth
as August 24, 1987, the three indictments originated in the Franklin County Court of
Common Pleas, General Division ("trial court"). D.C. was not subject to any bindover
proceeding in the juvenile court, and there was never an entry filed purporting to transfer
jurisdiction from the juvenile court to the general division of the trial court.
       {¶ 4} On May 8, 2006, D.C. entered guilty pleas to two counts of aggravated
robbery in the first indictment; two counts of aggravated robbery with specifications in
the second indictment; and one count of aggravated robbery in the third indictment. The
conduct alleged in two of the counts to which D.C. pleaded guilty, one aggravated robbery
count with specification in the second indictment and the sole aggravated robbery count
from the third indictment, occurred when D.C. was a juvenile. In exchange for D.C.'s
guilty pleas, the state entered nolle prosequis on all remaining charges.
       {¶ 5} Following a sentencing hearing, and pursuant to a joint recommendation
from the state and defense counsel, the trial court sentenced D.C. to seven years per
aggravated robbery count plus an additional three years on each of the two gun
specifications.   Thus, the trial court sentenced D.C. to seven years for each of the
aggravated robbery counts in the first indictment, seven years plus three years for each of
the aggravated robbery counts and gun specifications in the second indictment, and seven
years for the aggravated robbery count in the third indictment. The trial court ordered
the sentence in the first and third indictments be served concurrently with each other and
with the sentences in the second indictment. The trial court ordered the sentences for the
two aggravated robbery counts and two gun specifications in the second indictment to be
served consecutively. The result was an aggregate sentence of 20 years in prison.
No. 16AP-124                                                                                 3


           {¶ 6} On February 24, 2014, nearly eight years after entering his guilty pleas, D.C.
filed a pro se motion to withdraw his pleas in all three of the above-captioned cases on the
grounds that he was a juvenile when he committed some of the aggravated robberies and
was never bound over from the juvenile court. D.C. argued that because the juvenile court
had exclusive subject-matter jurisdiction over offenses committed by a minor, his guilty
pleas were void. The trial court agreed and, in an October 6, 2015 entry, vacated D.C.'s
guilty pleas as they related to the aggravated robbery with gun specification count in the
second indictment and the aggravated robbery count in the third indictment. The trial
court determined it lacked subject-matter jurisdiction over those charges, and those
charges and convictions were therefore void ab initio.
           {¶ 7} On October 1, 2015, the state filed a four-count complaint in juvenile court
related to the two robberies D.C. was alleged to have committed as a juvenile. Counts 1
and 2 of the juvenile complaint relate to charges in the second indictment and alleged
D.C. had a firearm on or about his person while committing the robbery. Counts 3 and 4
of the juvenile complaint relate to charges in the third indictment and alleged D.C.'s
codefendant brandished the firearm during the robbery. On October 2, 2015, the state
filed a motion to relinquish jurisdiction.
           {¶ 8} Subsequently, on October 28, 2015, D.C. filed a motion to dismiss the
juvenile court complaint, arguing the pending juvenile charges violated his protection
against double jeopardy, his right to a speedy trial, and his constitutional due process
rights. The state opposed D.C.'s motion to dismiss. In a January 22, 2016 decision and
entry, the trial court rejected D.C.'s double jeopardy and speedy trial arguments but
nonetheless dismissed Counts 3 and 41 of the juvenile complaint on the grounds that the
Due Process Clause applied to warrant dismissal of those charges. The juvenile court
reasoned the Due Process Clause required dismissal of those two counts because it was
"fundamentally unfair" to ignore the fact that D.C. had already spent seven years in prison
for the same alleged conduct. (Jan. 22, 2016 Decision & Entry at 16.) At the time the trial
court vacated D.C.'s pleas, he still had time remaining on his validly imposed sentences
for the other adult offenses.


1   Counts 1 and 2 are still pending before the trial court.
No. 16AP-124                                                                              4


       {¶ 9} The state timely appeals the juvenile court's dismissal of Counts 3 and 4 of
the juvenile complaint.
II. Assignment of Error
       {¶ 10} The state assigns the following sole error for our review:
            The juvenile court erred when it dismissed counts three and
            four of the complaint.
III. Analysis
       {¶ 11} In its sole assignment of error, the state argues the juvenile court erred
when it granted, in part, D.C.'s motion to dismiss. More specifically, the state argues the
juvenile court erred when it concluded the Due Process Clause required the dismissal of
two of the four counts contained in the juvenile complaint.
       A. Standard of Review
       {¶ 12} As a preliminary matter, the parties dispute the appropriate standard of
review. D.C. asserts we must review the juvenile court's decision dismissing two of the
counts only for an abuse of discretion, while the state urges us to apply a de novo standard
of review.
       {¶ 13} "Ohio's juvenile courts are statutory courts, created by the General
Assembly," and "[a]s a statutory court, the juvenile court has limited jurisdiction, and it
can exercise only the authority conferred upon it by the General Assembly." In re Z.R.,
144 Ohio St.3d 380, 2015-Ohio-3306, ¶ 15, citing R.C. Chapter 2151, State v. Wilson, 73
Ohio St.3d 40, 43 (1995), and State ex rel. Ramey v. Davis, 119 Ohio St. 596 (1929),
paragraph four of the syllabus.
       {¶ 14} As the Supreme Court of Ohio has noted, Ohio courts engage in a "general
practice of ensuring wide discretion for juvenile courts." In re Z.R. at ¶ 27, citing In re
T.W., 3d Dist. No. 16-11-12, 2012-Ohio-2843, ¶ 12 (stating "[w]hether a proceeding should
be dismissed or reach the merits is within the sound discretion of the trial judge"). More
generally, however, appellate courts review constitutional questions under a de novo
standard. State v. Rodgers, 166 Ohio App.3d 218, 2006-Ohio-1528, ¶ 6 (10th Dist.).
Indeed, the Supreme Court directs that constitutional issues are questions of law, even in
the context of a juvenile court proceeding, and thus subject to de novo review. In re J.V.,
134 Ohio St.3d 1, 2012-Ohio-4961, ¶ 3, citing In re M.P., 124 Ohio St.3d 445, 2010-Ohio-
No. 16AP-124                                                                               5


599, ¶ 13. Thus, we review the issue of whether the Due Process Clause required dismissal
of two counts of the juvenile complaint under a de novo standard.
       B. Due Process
       {¶ 15} The parties agree that the trial court acted without jurisdiction when it
initially accepted D.C.'s guilty plea and sentenced him on the aggravated robbery counts
in the second indictment and the aggravated robbery count in the third indictment, and
indeed the trial court vacated his guilty plea on that basis. State v. Wilson, 73 Ohio St.3d
40 (1995), paragraph one of the syllabus (stating "[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"). Thus, the trial court's order
convicting D.C. on those counts was void. Id. at 44 ("[b]ecause the general division of the
court of common pleas lacked subject matter jurisdiction to convict Wilson, the judgment
of conviction against him was void ab initio"); R.C. 2152.12(H) (stating "[a]ny prosecution
that is had in a criminal court on the mistaken belief that the person who is the subject of
the case was eighteen years of age or older at the time of the commission of the offense
shall be deemed a nullity, and the person shall not be considered to have been in jeopardy
on the offense"). The issue we must consider, then, is what impact D.C.'s time spent in
prison on those offenses has on his due process rights in the subsequently filed
proceedings in juvenile court.
       {¶ 16} The Fourteenth Amendment to the United States Constitution provides
"[n]o State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws." The Supreme Court has repeatedly held that the Due
Process Clause applies to juvenile court proceedings. In re C.S., 115 Ohio St.3d 267, 2007-
Ohio-4919; State v. Aalim, __ Ohio St.3d __, 2016-Ohio-8278; In re D.S., 146 Ohio St.3d
182, 2016-Ohio-1027, ¶ 28.
       {¶ 17} The Supreme Court recognizes the extremely fact-intensive nature of a due
process analysis. " 'For all its consequence, "due process" has never been, and perhaps
never can be, precisely defined.' " Aalim at ¶ 13, quoting Lassiter v. Dept. of Social Servs.
of Durham Cty., N. Carolina, 452 U.S. 18, 24 (1981). "Due Process is a flexible concept
No. 16AP-124                                                                                 6


that varies depending on the importance attached to the interest at stake and the
particular circumstances under which the deprivation may occur." Id., citing Walters v.
Natl. Assn. of Radiation Survivors, 473 U.S. 305, 320 (1985). The phrase "due process"
expresses " 'the requirement of "fundamental fairness," a requirement whose meaning can
be as opaque as its importance is lofty.' " In re C.S. at ¶ 80, quoting Lassiter at 24. "
'Applying the Due Process Clause is therefore an uncertain enterprise which must
discover what "fundamental fairness" consists of in a particular situation by first
considering any relevant precedents and then by assessing the several interests that are at
stake.' " Aalim at ¶ 13, quoting Lassiter at 24-25. Thus, "[w]hat process is due depends on
considerations of fundamental fairness in a particular situation." In re D.S. at ¶ 28.
       {¶ 18} The juvenile court stated it could not ignore the fact that D.C. had already
spent more than seven years in prison, more than the entire duration of the sentence
imposed for the aggravated robbery related to Counts 3 and 4 in the juvenile complaint,
before the state filed the juvenile complaint. Because D.C. had already served this time,
the juvenile court determined the notion of "fundamental fairness" required dismissal of
Counts 3 and 4.
       {¶ 19} We note, as D.C. does in his brief, that a person's expectation of sentencing
finality relates to a person's due process rights. See, e.g., State v. Simpkins, 117 Ohio St.3d
420, 2008-Ohio-1197, ¶ 37. See also DeWitt v. Ventenoulo, 6 F.3d 32, 35 (1st Cir.1993)
(noting that in "extreme case[s]" a court can say "that the later upward revision of a
sentence, made to correct an earlier mistake, is so unfair that it must be deemed
inconsistent with fundamental notions of fairness embodied in the Due Process Clause"),
citing United States v. Lundien, 769 F.2d 981, 987 (4th Cir.1985).
       {¶ 20} The question of when a person has an expectation of finality in sentencing
for due process purposes depends heavily on the circumstances of each case.                For
example, when a defendant has completed most, but not all, of a void sentence, a
defendant does not have a legitimate expectation of finality in that sentence. In Simpkins,
the Supreme Court stated that where "the sentence imposed was unlawful and thus void,
there can be no reasonable, legitimate expectation of finality in it." Simpkins at ¶ 36-37
(holding there was no unfair surprise or prejudice to the defendant in his resentencing
because "the sentence was issued without the authority of law and [he] was represented
No. 16AP-124                                                                            7


by counsel," so his resentencing did not offend the Double Jeopardy or Due Process
Clauses), citing United States v. Crawford, 769 F.2d 253, 257-58 (5th Cir.1985). This
court has similarly concluded that a defendant who completed all but 15 days of an 8-year
sentence did not have a legitimate expectation of finality in his otherwise void sentence
when the trial court acted to resentence him to include a period of post-release control,
noting that "[s]o long as defendant had not completed his sentence, the trial court
retained authority to correct a void sentence." State v. Addison, 10th Dist. No. 10AP-554,
2011-Ohio-2113, ¶ 22, citing State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, ¶ 28.
       {¶ 21} Both Simpkins and Addison contemplate a defendant who had not yet
completed the entirety of a void sentence.       However, the Supreme Court noted in
Simpkins that "[i]n some circumstances, including the completion of a sentence, it may be
reasonable to find that a defendant's expectation of finality in his sentence has become
legitimate and must be respected." Simpkins at ¶ 38 (concluding Simpkins had no
reasonable expectation of finality in his void sentence because, among other reasons, he
had not yet completed the sentence). See also Addison at ¶ 22 (stating "[s]o long as
defendant had not completed his sentence, the trial court retained authority to correct a
void sentence") (emphasis added), citing Bloomer at ¶ 28.
       {¶ 22} More recently, the Supreme Court has considered the ability of a court to
resentence a defendant where one of the sanctions imposed was void but the defendant
had already served the entire prison term for that offense, yet the defendant remained in
prison for other offenses. In State v. Holdcroft, 137 Ohio St.3d 526, 2013-Ohio-5014, the
Supreme Court provided a framework for "the role that a defendant's legitimate
expectation of finality plays in constraining a court's authority to review a sentence,"
stating:
               First, when a sentence is subject to direct review, it may be
               modified; second, when the prison-sanction portion of a
               sentence that also includes a void sanction has not been
               completely served, the void sanction may be modified; and
               third, when the entirety of a prison sanction has been served,
               the defendant's interest in finality in his sentence becomes
               paramount, and his sentence for that crime may no longer be
               modified.
No. 16AP-124                                                                               8


Holdcroft at ¶ 18. The defendant in Holdcroft was serving a ten-year aggravated arson
sentence consecutive to a five-year arson sentence and had already completed the ten-
year sentence at the time the trial court attempted to resentence him. The Supreme Court
concluded "[n]either [the Supreme Court of Ohio's] jurisprudence nor Ohio's criminal-
sentencing statutes allow a trial court to resentence a defendant for an offense when the
defendant has already completed the prison sanction for that offense. It is irrelevant
whether the defendant is still in prison for other offenses." Id. at ¶ 19.
       {¶ 23} We find D.C.'s situation most similar to the defendant in Holdcroft. Though
the defendant in Holdcroft was serving two consecutive sentences, D.C. was serving his
sentences consecutively and concurrently. The sentence at issue for due process purposes
was the seven-year sentence imposed on the aggravated robbery count contained in the
third indictment, which corresponds to Counts 3 and 4 of the juvenile complaint. The
trial court ordered D.C. to serve that seven-year sentence concurrently with his longer
sentences for the counts in the second indictment. See, e.g., State v. Melhado, 10th Dist.
No. 13AP-114, 2013-Ohio-3547, ¶ 16 (noting "a concurrent sentence is one which runs
simultaneously with another sentence; concurrent sentences mean that the prisoner is
given the privilege of serving each day a portion of each sentence and if the sentences are
of different lengths, the prisoner cannot be discharged until he has served the longest
sentence"), citing State ex rel. Gray v. Karnes, 10th Dist. No. 10AP-789, 2010-Ohio-5364,
¶ 6.
       {¶ 24} There is no dispute that D.C. spent more than seven years in prison at the
time the trial court vacated his guilty plea. Though D.C. still had time to serve in order to
complete the aggregate sentence imposed in the trial court, he had already served the
entirety of the sentence related to the third indictment, and D.C. thus had an interest in
sentencing finality related to the time served on that count. Holdcroft at ¶ 19. We
recognize that Holdcroft involved a trial court attempting to resentence a defendant,
while the present case concerns the state filing a complaint in juvenile court after D.C.
served a void sentence. Despite these procedural differences, we find the core principles
espoused in Holdcroft apply to our analysis of fundamental fairness in the unique facts of
this case. Thus, following Holdcroft, we agree with the juvenile court that this is one of
those extremely rare cases implicating the notions of fundamental fairness that the Due
No. 16AP-124                                                                           9


Process Clause was designed to protect against. Accordingly, we conclude the juvenile
court did not err in dismissing Counts 3 and 4 of the juvenile complaint, and we overrule
the state's sole assignment of error.
IV. Disposition
       {¶ 25} Based on the foregoing reasons, the juvenile court did not err when it
granted D.C.'s motion to dismiss Counts 3 and 4 of the juvenile complaint. Having
overruled the state's sole assignment of error, we affirm the decision and entry of the
Franklin County Court of Common Pleas, Juvenile Division.
                                                                    Judgment affirmed.

                            TYACK, P.J., and KLATT, J., concur.
