[Cite as State v. Smith, 2014-Ohio-3511.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

 STATE OF OHIO                                  :
                                                :     Appellate Case No. 25916
          Plaintiff-Appellee                    :
                                                :     Trial Court Case No. 2013-CR-1954
 v.                                             :
                                                :
 COLBY E. SMITH                                 :     (Criminal Appeal from
                                                :     (Common Pleas Court)
          Defendant-Appellant                   :
                                                :
                                            ...........
                                            OPINION
                              Rendered on the 15th day of August, 2014.
                                            ...........

MATHIAS H. HECK, JR., by APRIL F. CAMPBELL, Atty. Reg. #0089541, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box
972, 301 West Third Street, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellee

KIRSTEN KNIGHT, Atty. Reg. 0080433, Post Office Box 137, Dayton, Ohio 45327
     Attorney for Defendant-Appellant

                                            .............

HALL, J.

        {¶ 1}     Colby E. Smith appeals from his conviction and sentence on one count of
burglary, a second-degree felony.

        {¶ 2}    In his sole assignment of error, Smith contends the trial court erred in finding

him ineligible for community control due to prior juvenile delinquency adjudications.

        {¶ 3}    The record reflects that Smith pled no contest to the burglary charge. Before

entering his plea, however, he argued that two prior juvenile-delinquency adjudications did not

make a prison sentence mandatory. The trial court disagreed. Based on the prior adjudications,

which would have been first-degree-felony aggravated robbery convictions if committed by an

adult, it found that he was ineligible for community control and that a prison sentence was

mandatory. (Tr. at 4-5). In light of Smith’s record, the trial court also stated that it would impose

a prison sentence even if not mandatory. (Id. at 5). Smith then entered his no-contest plea. The

trial court accepted the plea and found him guilty. (Id. at 12-13). It imposed a mandatory

three-year prison term. (Id. at 15).

        {¶ 4}    Under R.C. 2929.13(F)(6), a trial court must impose a sentence of a mandatory

prison term “if the offender previously was convicted of or pleaded guilty to aggravated murder,

murder, any first or second degree felony.” The question we decide is whether this statute

encompasses prior juvenile adjudications. Smith’s appellate argument involves the meaning of

R.C. 2901.08, which provides in relevant part:

                (A) If a person is alleged to have committed an offense and if the person

        previously has been adjudicated a delinquent child or juvenile traffic offender for

        a violation of a law or ordinance, * * * the adjudication as a delinquent child or as

        a juvenile traffic offender is a conviction for a violation of the law or ordinance

        for purposes of determining the offense with which the person should be charged

        and, if the person is convicted of or pleads guilty to an offense, the sentence to be
                                                                                                  3


       imposed upon the person relative to the conviction or guilty plea.

       {¶ 5}    Relying on R.C. 2901.08(A), the trial court reasoned that Smith’s two prior

juvenile adjudications made a prison term mandatory under R.C. 2929.13(F)(6). Smith disagrees

with this conclusion. He argues:

               * * * R.C. 2901.08 should be limited in its application to situations where

       the prior adjudication (1) identifies the subsequent offense, and (2) defines an

       enhanced penalty. If application of R.C. 2901.08 does not fulfill both functions, it

       should not be applied. The identification of the charge herein is Burglary, a felony

       of the 2nd degree, and is totally independent of any prior adjudication of the

       Defendant. As a result, Defendant’s juvenile adjudication should not be construed

       to be subject to R.C. 2901.08 and R.C. 2929.13(F)(6) to require mandatory

       sentencing.

(Appellant’s brief at 4).

       {¶ 6}    Upon review, we find Smith’s argument to be unpersuasive. He contends that a

juvenile adjudication cannot be treated as a conviction under R.C. 2901.08(A) unless it enhances

both the offense charged and the sentence imposed. We do not agree. The plain language of the

statute provides that a prior adjudication is a conviction “for purposes of determining the offense

with which the person should be charged and * * * the sentence to be imposed[.]” Here Smith’s

prior adjudications did not directly enhance the offense with which he was charged. Under R.C.

2901.08(A), however, we see no reason why they would not qualify as convictions for purposes

of determining the sentence to be imposed. We do not read the statute as requiring that a juvenile

adjudication can be considered as a conviction only if it impacts both the offense charged and the
                                                                                                                                            4


sentence imposed. Cf. State v. Prether, 141 Ohio App.3d 6, 8, 749 N.E.2d 796 (2d Dist.2001)

(recognizing that R.C. 2901.08(A) “permits juvenile delinquency adjudications to be used in

considering the crime to be charged or the sentence to be imposed”); State v. Camacho, 8th Dist.

Cuyahoga No. 99712, 2014-Ohio-492, ¶ 14-15 (applying R.C. 2901.08(A) and treating a

defendant’s prior delinquency adjudications as convictions that enhanced his sentence even

though they did not affect his offense).1

          {¶ 7}       Smith’s assignment of error is overruled, and the judgment of the Montgomery

County Common Pleas Court is affirmed.

                                                           .............

FROELICH, P.J., concurs in judgment only.

DONOVAN, J., dissenting:

         {¶ 8}        I disagree.         The rule of lenity codified in R.C. 2901.04(A) requires that a

criminal sentencing statute “shall be strictly construed against the State and liberally construed in

favor of the accused.” This Court should attempt to give effect to every word, phrase, sentence

and part of the statute and to avoid an interpretation that would restrict, constrict, qualify, narrow,

enlarge or abridge the General Assembly’s wording. State ex rel. Carna v. Teays Valley Local

School Dist. Bd. of Edn., 131 Ohio St.3d 478, 2012-Ohio-1484, 967 N.E.2d 193, ¶ 18. In my

view, the majority’s opinion enlarges the effect of R.C. 2901.08(A).

         {¶ 9}        R.C. 2901.08(A) speaks in terms of determining the offense with which an


            1
              We are aware that neither Prether nor Camacho addressed the specific issue before us. The parties have not cited, and we have not
  found, any case law directly on point. We cite Prether and Camacho simply to point out that they are consistent with our reading of R.C.
  2901.08(A). We also recognize that the issue before us is one of first impression about which there may be disagreement, and which is subject
  to repetition, which may eventually be resolved by the Supreme Court.
                                                                                               5


individual should be charged AND the sentence to be imposed. Thus, its application should be

limited to felony enhancement statutes, such as Domestic Violence and OMVI. There is a

distinction between an enhancement statute and a penalty enhancement provision under R.C.

2929.13(F)(6). The plain language of the statute, in my view, should be limited to situations

where the prior adjudications essentially re-define the offense, e.g., elevate a misdemeanor to a

felony. The effect of R.C. 2901.08(A) should be to redefine the new adult offense by degree.

Smith’s burglary charge was not elevated to a higher level offense by virtue of his prior

adjudication(s) of delinquency. The adjudications do not act as an offense enhancement nor

degree enhancement, but solely a penalty enhancement which is not contemplated by R.C.

2901.08(A). If the legislature had wanted to make prior adjudications of delinquency a basis to

impose mandatory sentencing, it should have explicitly done so in both R.C. 2901.08(A) and R.C.

2929.13(F)(6). The use of OR instead of AND in R.C. 2901.08(A) arguably may have sufficed.

       {¶ 10} As noted above, R.C. 2929.13(F)(6) which dictates imposition of a mandatory

term for burglary in certain circumstances makes no reference to adjudications of delinquency

constituting convictions. I recognize that R.C. 2929.12(D)(2) permits the judge to consider prior

adjudications of delinquency in determining the sentence to be imposed, but this is a permissive

use and not a mandatory one. R.C. 2929.12(D)(2) must be read in pari materia with R.C.

2901.08(A) and R.C. 2929.13(F)(6).

       {¶ 11} The effect of a mandatory term for Smith, as a first time adult offender makes him

ineligible for judicial release, furlough, earned credit and any Court recommendation for a Risk

Reduction Sentence. In my view, this runs afoul of the historical and well-founded distinctions

between the conduct of a juvenile and the conduct of an adult when considering an appropriate
                                                                                       6


sentence. A mandatory sentence deprived Smith of a fresh start upon reaching majority and

limited the court’s discretion with a first time adult offender.

       {¶ 12} I would reverse and remand, finding a prison term is discretionary but not

mandatory.

                                             ..........



Copies mailed to:

Mathias H. Heck
April F. Campbell
Kirsten Knight
Hon. Mary K. Huffman
