In re A.G. (Slip Opinion) , 148 Ohio St. 3d 118 ( 2016 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re A.G., Slip Opinion No. 2016-Ohio-3306.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2016-OHIO-3306
IN RE A.G.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re A.G., Slip Opinion No. 2016-Ohio-3306.]
Juvenile delinquency—The merger analysis set forth in State v. Ruff, 143 Ohio
St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, applies to juvenile delinquency
proceedings to protect a child’s right against double jeopardy.
(No. 2014-2190—Submitted December 15, 2015—Decided June 9, 2016.)
APPEAL from the Court of Appeals for Cuyahoga County,
No. 101010, 2014-Ohio-4927.
_________________
SYLLABUS OF THE COURT
The merger analysis set forth in State v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995,
34 N.E.3d 892, applies to juvenile delinquency proceedings to protect a
child’s right against double jeopardy.
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SUPREME COURT OF OHIO
LANZINGER, J.
{¶ 1} In this case we are asked to determine the extent of double-jeopardy
protections in juvenile delinquency proceedings. We reaffirm that juveniles are
entitled to the same constitutional double-jeopardy protections as adults, and we
hold that juvenile courts must conduct the same double-jeopardy analysis in
delinquency proceedings that other courts apply in adult criminal proceedings.
I. Case Background
{¶ 2} In June 2012, a person approached a man as the man was opening his
car door after obtaining money from an ATM inside a store. The person pulled a
gun out of his pocket and told the man that he would shoot him unless the man got
into the car. The man did not comply but ran to his home nearby and lost track of
the assailant. Police later took fingerprint samples from the car and found a
fingerprint identifying A.G., who was 15 years old at the time of the event, as the
assailant.
{¶ 3} A complaint was filed in juvenile court alleging that A.G. was
delinquent for engaging in conduct that if committed by an adult would have
constituted aggravated robbery in violation of R.C. 2911.01(A)(1) and kidnapping
in violation of R.C. 2905.01(A)(2), with firearms specifications as to each. A.G.
entered an admission to the allegations in the complaint. After finding the
allegations proved beyond a reasonable doubt, the juvenile court ordered that A.G.
be committed to the Department of Youth Services for minimum terms of one year
each for the aggravated robbery and kidnapping adjudications. The court merged
the firearm specifications into a single specification and imposed a one-year-
commitment term for that specification. The court ordered all the terms to be served
consecutively, for a total minimum commitment of three years, with the maximum
commitment lasting until A.G turned 21 years old.
{¶ 4} A.G. appealed and raised two assignments of error. First, he argued
that the juvenile court erred in failing to merge his adjudications for aggravated
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robbery and kidnapping as “allied offenses of similar import” and that the failure
to merge the adjudications violated the double-jeopardy protections contained in
the United States and Ohio Constitutions. 2014-Ohio-4927, 21 N.E.3d 355, ¶ 6
(8th Dist.). Second, he argued that his trial counsel was ineffective for failing to
raise the allied-offenses issue.
{¶ 5} The Eighth District Court of Appeals concluded that the aggravated
robbery and kidnapping admitted to by A.G. would constitute allied offenses of
similar import under R.C. 2941.25 if committed by an adult. Nevertheless, it
reasoned that criminal statutes, including R.C. 2941.25, do not apply in juvenile
delinquency proceedings. The court of appeals accordingly concluded that this
court’s decisions illustrating how R.C. 2941.25 should be applied are inapplicable
to juvenile delinquency proceedings. The court instead turned to the test from
Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932),
which requires comparing the elements of the offenses at issue “without regard to
the evidence to be introduced at trial.” 2014-Ohio-4927, 21 N.E.3d 355, at ¶ 25.
Relying on this decision, the Eighth District held that the juvenile court did not err
in refusing to merge the adjudications for aggravated robbery and kidnapping, and
it accordingly overruled A.G.’s first assignment of error and concluded that his
second assignment of error regarding ineffective assistance of counsel was moot.
{¶ 6} A.G. appealed to this court, and we accepted jurisdiction over his
proposition of law: “The merger analysis set forth in State v. Johnson applies to
juvenile delinquency proceedings to protect a child’s right against double
jeopardy.”1 142 Ohio St. 3d 1464, 2015-Ohio-1896, 30 N.E.3d 973.
1
Although A.G. argues that the analysis set forth in State v. Johnson, 128 Ohio St. 3d 153, 2010-
Ohio-6314, 942 N.E.2d 1061, should apply in juvenile delinquency cases, our analysis focuses on
this court’s more recent statements regarding the law of merger.
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II. Analysis
{¶ 7} A.G. argues that the merger analysis set forth in this court’s decisions
explaining how R.C. 2941.25 should be applied also applies to juvenile delinquency
proceedings to protect the juvenile’s right against double jeopardy. In so arguing,
he asserts that R.C. 2941.25 is the codification of the constitutional merger principle
rather than simply an enhanced statutory protection. The state counters that R.C.
2941.25 is a protection statute that applies only to adults because the statute
addresses the merger of “convictions” and argues that the General Assembly’s
decision not to afford juveniles the protections given to adults in R.C. 2941.25
illustrates the legislature’s intention to allow cumulative commitment periods for
juveniles.
{¶ 8} The Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution, which applies to Ohio citizens through the Fourteenth
Amendment to the United States Constitution, Benton v. Maryland, 395 U.S. 784,
794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), provides that no person shall “be subject
for the same offence to be twice put in jeopardy of life or limb.” Article I, Section
10 of the Ohio Constitution likewise provides, “No person shall be twice put in
jeopardy for the same offense.” We have noted that
[t]he Double Jeopardy Clause protects against three abuses: (1) “a
second prosecution for the same offense after acquittal,” (2) “a
second prosecution for the same offense after conviction,” and (3)
“multiple punishments for the same offense.” North Carolina v.
Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969),
overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109
S. Ct. 2201, 104 L. Ed. 2d 865 (1989).
State v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10.
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{¶ 9} Noting that there “is little to distinguish” an adjudicatory hearing in a
juvenile delinquency case from a traditional criminal prosecution, the Supreme
Court of the United States has held that jeopardy attaches during adjudicatory
hearings. Breed v. Jones, 421 U.S. 519, 530-531, 95 S. Ct. 1779, 44 L. Ed. 2d 346
(1975). In reaching that conclusion, the court noted that similarities between
criminal and juvenile delinquency proceedings militate in favor of providing full
double-jeopardy protections to juveniles:
We believe it is simply too late in the day to conclude * * *
that a juvenile is not put in jeopardy at a proceeding whose object is
to determine whether he has committed acts that violate a criminal
law and whose potential consequences include both the stigma
inherent in such a determination and the deprivation of liberty for
many years.
Id. at 529. In addition to recognizing the stigma attached to a delinquency
determination, the court noted that juveniles in delinquency proceedings bear
essentially the same heavy pressures and psychological and physical burdens that
are borne by adults in criminal cases, so that adults and juveniles alike should be
subjected to only one such experience for the same offense. Id. at 530. We
accordingly acknowledge that both the federal and Ohio Constitutions protect
juveniles subject to delinquency proceedings from double jeopardy in the same
fashion as they do adults. See In re A.J.S., 120 Ohio St. 3d 185, 2008-Ohio-5307,
897 N.E.2d 629, ¶ 26.
{¶ 10} Because juveniles receive constitutional protection from double
jeopardy, the question before us is: To what extent do the Constitutions protect
juveniles from the third type of double jeopardy mentioned previously, multiple
punishments for the same offense? The state argues that the merging of allied
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offenses of similar import constitutes “enhanced statutory protection” that does not
stem from either the United States or Ohio Constitutions. A.G. argues that the
merging of allied offenses is rooted in the Double Jeopardy Clauses of both
Constitutions and that R.C. 2941.25 accordingly represents a codification of a
constitutional principle.
{¶ 11} We agree with A.G. In discussing R.C. 2941.25 in Ruff, we have
recently stated, “The General Assembly in codifying double-jeopardy protections
has expressed its intent as to when multiple punishments can be imposed.”
(Emphasis added.) 143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892, at ¶ 12.
Rather than providing enhanced double-jeopardy protections, R.C. 2941.25
codifies the protections established by the Ohio Constitution. And because the
protections contained in R.C. 2941.25 encapsulate constitutional double-jeopardy
protections, the language and principles of that statute can be applied to juveniles
as well.
{¶ 12} It follows that under the Ohio Constitution, a juvenile’s double-
jeopardy protections are violated when that juvenile is subjected to multiple terms
of commitment for conduct constituting allied offenses of similar import. Just as a
judge in adult court would do to determine if conduct constitutes allied offenses of
similar import, a juvenile judge must evaluate three separate factors: the juvenile’s
conduct, the juvenile’s animus, and the import of the offenses. Ruff at paragraph
one of the syllabus. The Ruff test for allied offenses accordingly applies to juvenile
delinquency proceedings. A juvenile whose conduct supports multiple offenses
may be subject to terms of commitment for all the offenses if any one of the
following is true: “(1) the conduct constitutes offenses of dissimilar import, (2) the
conduct shows that the offenses were committed separately, or (3) the conduct
shows that the offenses were committed with separate animus.” Id. at paragraph
three of the syllabus.
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{¶ 13} Application of the Ruff test—rather than the Blockburger test
developed by the United States Supreme Court—is necessary to both provide
juveniles with proper double-jeopardy protection under the Ohio Constitution and
to ensure that juveniles receive the same constitutional double-jeopardy protection
as adults. Indeed, if we were to approve the Eighth District’s application of the
Blockburger comparison-of-the-elements test to juveniles, the practical
consequence would be that merger would occur very rarely in juvenile courts, even
when merger would occur in cases with identical facts involving adults. We have
disavowed the application of an abstract, comparison-of-the-elements test in Ohio.
See Ruff at ¶ 16. We no longer follow the test set forth in State v. Rance, 85 Ohio
St.3d 632, 710 N.E.2d 699 (1999). See State v. Johnson, 128 Ohio St. 3d 153, 2010-
Ohio-6314, 942 N.E.2d 1061, at the syllabus (overruling Rance). Similarly we
again disavow application of the test in the juvenile context.
{¶ 14} We note that our decision today fully comports with what we have
termed “heightened goals of rehabilitation and treatment” of the juvenile court
system in Ohio. State v. D.H., 120 Ohio St. 3d 540, 2009-Ohio-9, 901 N.E.2d 209,
¶ 38. By applying double-jeopardy protections to juveniles in a manner that ensures
that they will receive only one term of commitment, rather than multiple terms of
commitment, for conduct constituting allied offenses of similar import, juveniles
who are fully rehabilitated and treated can be released at the conclusion of their
minimum term, rather than be forced to serve a second, duplicative term for the
same conduct for which they have been rehabilitated and treated. While juvenile
judges in cases like A.G.’s will retain the discretion to extend the commitment
period until the juvenile turns 21 years old, the merging of terms of commitment
allows for the individualized, case-by-case treatment that is appropriate for juvenile
cases.
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III. Conclusion
{¶ 15} We hold that the merger analysis set forth in State v. Ruff, 143 Ohio
St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, applies to juvenile delinquency
proceedings to protect a child’s right against double jeopardy. We accordingly
reverse the judgment of the court of appeals and remand the cause to the Eighth
District to apply our holding to the facts of this case and for consideration of A.G.’s
remaining assignment of error, if necessary.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., and PFEIFER and O’NEILL, JJ., concur.
O’DONNELL, J., dissents with an opinion that KENNEDY and FRENCH, JJ.,
join.
_________________
O’DONNELL, J., dissenting.
{¶ 16} Respectfully, I dissent.
{¶ 17} The majority today takes a criminal law statute related to whether
allied offenses of similar import should be merged for purposes of criminal
sentencing and applies that law to civil proceedings in juvenile court, taking another
step toward characterizing proceedings in the juvenile court system as criminal in
nature while upending settled constitutional principles regarding double jeopardy.
The General Assembly did not intend that the allied offenses statute should apply
to juveniles who are not criminals and who have not been convicted of any crimes.
The judgment of the court of appeals should be affirmed.
Plain Error Review
{¶ 18} A.G. did not object to the consecutive commitments to the
Department of Youth Services (“DYS”) on the adjudications for delinquency for
acts constituting aggravated robbery and kidnapping if committed by an adult.
Failing to raise the allied offenses issue in the trial court forfeits the matter for
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appellate review, except for plain error. State v. Rogers, 143 Ohio St. 3d 385, 2015-
Ohio-2459, 38 N.E.3d 860, ¶ 21-22.
{¶ 19} Although appellate courts have discretion to correct “[p]lain errors
or defects affecting substantial rights,” Crim.R. 52(B), the juvenile court’s failure
to apply the allied offenses statute in this case is not a “plain error.” We have
explained that error is not “plain” at the time the trial court committed it if this court
had not yet recognized the error in a “definitive pronouncement” and Ohio appellate
courts were divided on the issue. State v. Barnes, 94 Ohio St. 3d 21, 28, 759 N.E.2d
1240 (2002).
{¶ 20} Before today’s decision, this court had not held that the allied
offenses statute applied to juvenile delinquency proceedings. And Ohio appellate
courts had recognized that R.C. 2941.25 is a criminal statute that does not apply to
juvenile delinquency proceedings, which are civil in nature. E.g., In re M.P.R.,
12th Dist. Butler No. CA2014-10-209, 2015-Ohio-3102, ¶ 15, fn.1; In re M.C., 6th
Dist. Erie No. E–12–031, 2013-Ohio-2808, ¶ 21; In re S.S., 4th Dist. Vinton No.
10CA682, 2011-Ohio-4081, ¶ 29; In re H.F., 8th Dist. Cuyahoga No. 94840, 2010-
Ohio-5253, ¶ 13; In re Bowers, 11th Dist. Ashtabula No. 2002-A-0010, 2002-Ohio-
6913, ¶ 23; but see In re T.L., 186 Ohio App. 3d 42, 2010-Ohio-402, 926 N.E.2d
346, ¶ 46 (9th Dist.) vacated in part on other grounds, 127 Ohio St. 3d 9, 2010-
Ohio-4936, 935 N.E.2d 840.
{¶ 21} Thus, there is no plain error in these circumstances, and as we have
explained, “if a forfeited error is not plain, a reviewing court need not examine
whether the defect affects a defendant’s substantial rights; the lack of a ‘plain’ error
within the meaning of Crim.R. 52(B) ends the inquiry and prevents recognition of
the defect.” Barnes at 28.
The Allied Offenses Statute
{¶ 22} The allied offenses statute, R.C. 2941.25, provides,
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(A) Where the same conduct by defendant can be construed
to constitute two or more allied offenses of similar import, the
indictment or information may contain counts for all such offenses,
but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more
offenses of dissimilar import, or where his conduct results in two or
more offenses of the same or similar kind committed separately or
with a separate animus as to each, the indictment or information may
contain counts for all such offenses, and the defendant may be
convicted of all of them.
{¶ 23} When the words of a statute demonstrate that “ ‘the General
Assembly has plainly and unambiguously conveyed its legislative intent, there is
nothing for a court to interpret or construe, and therefore, the court applies the law
as written.’ ” In re I.A., 140 Ohio St. 3d 203, 2014-Ohio-3155, 16 N.E.3d 653,
¶ 12, quoting State v. Kreischer, 109 Ohio St. 3d 391, 2006-Ohio-2706, 848 N.E.2d
496, ¶ 12.
{¶ 24} Notably, R.C. 2941.25 uses the words “defendant,” “offenses,”
“indictment or information,” and “convicted.” These are terms that specifically and
expressly relate to and are consistent with adult criminal prosecutions. They have
nothing to do with juvenile adjudications, which do not refer to juveniles as
defendants, do not involve offenses or indictments or informations, and do not
result in convictions.
{¶ 25} A defendant, we have explained, is “ ‘the accused in a criminal case,’
” State v. Wickline, 50 Ohio St. 3d 114, 118, 552 N.E.2d 913 (1990), quoting Black’s
Law Dictionary 377 (5th Ed.1979), that is, “one indicted or charged” in connection
with a crime, Wickline at 118. The word “offense” means “crime.” State v. Rose,
89 Ohio St. 383, 386, 106 N.E. 50 (1914). In Ohio, criminal offenses are charged
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by indictment or information. Article I, Section 10 of the Ohio Constitution; R.C.
2941.021. And we have explained that for purposes of R.C. 2941.25, “a
‘conviction’ consists of a guilty verdict and the imposition of a sentence or
penalty.” (Emphasis sic.) State v. Whitfield, 124 Ohio St. 3d 319, 2010-Ohio-2,
922 N.E.2d 182, ¶ 24.
{¶ 26} The allied offenses statute is wholly inconsistent with proceedings
in juvenile court. A juvenile is not a defendant or an accused but is a “child.” R.C.
2152.02(C)(1), 2152.021; State v. Hanning, 89 Ohio St. 3d 86, 89, 728 N.E.2d 1059
(2000). A juvenile delinquency case is not commenced by indictment or
information, but rather it is the filing of a complaint that invokes the juvenile court’s
jurisdiction. R.C. 2152.021; Juv. R. 2(F) and 10; In re M.W., 133 Ohio St. 3d 309,
2012-Ohio-4538, 978 N.E.2d 164, ¶ 21. “Ohio juvenile proceedings do not result
in criminal convictions—a juvenile court proceeding is a civil action, * * * and
juveniles are ‘adjudicated delinquent’ rather than ‘found guilty’ * * *.” State v.
Adkins, 129 Ohio St. 3d 287, 2011-Ohio-3141, 951 N.E.2d 766, ¶ 10, quoting State
v. Hanning, 89 Ohio St. 3d 86, 89, 728 N.E.2d 1059 (2000). And a juvenile receives
a “disposition,” not a sentence. R.C. 2152.16, 2152.19.
{¶ 27} And this distinct terminology reflects that
[t]he juvenile courts were premised on profoundly different
assumptions and goals than a criminal court, * * * with a focus on
the state’s role as parens patriae and the vision that the courts would
protect the wayward child from “evil influences,” “save” him from
criminal prosecution, and provide him social and rehabilitative
services.
In re C.S., 115 Ohio St. 3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 66, citing In
re T.R., 52 Ohio St. 3d 6, 15, 556 N.E.2d 439 (1990), Children’s Home of Marion
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Cty. v. Fetter, 90 Ohio St. 110, 127, 106 N.E. 761 (1914), and Ex parte Januszewski,
196 F. 123, 127 (C.C.Ohio 1911).
{¶ 28} When the legislature has intended juvenile adjudications to be
treated as criminal convictions, it has expressly stated its intent. See, e.g., R.C.
2923.13(A), 2950.01(B), and 2901.08(A). But in regards to allied offenses, the
General Assembly did not make R.C. 2941.25 applicable to juvenile delinquency
adjudications; thus, we are obliged to apply that law as written, and nothing in the
statute authorizes or requires the juvenile court to merge delinquency adjudications
that would be allied offenses if committed by an adult.
Double Jeopardy
{¶ 29} Notwithstanding the plain language of the statute, the majority
focuses on dicta in State v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d
892, ¶ 12, that referred to R.C. 2941.25 as “codifying double-jeopardy protections.”
This court was not asked in that case to decide whether the statute codifies
constitutional rights against double jeopardy; instead, we considered “what
‘import’ means within the meaning of R.C. 2941.25.” Id. at ¶ 9.
{¶ 30} The Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution affords protections against the imposition of multiple criminal
punishments for the same offense in successive proceedings. Hudson v. United
States, 522 U.S. 93, 99, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997); State v. Raber, 134
Ohio St. 3d 350, 2012-Ohio-5636, 982 N.E.2d 684, ¶ 24. As the Seventh Circuit
Court of Appeals recently explained in Boyd v. Boughton, 798 F.3d 490, 497 (7th
Cir.2015), fn. 5, “the Double Jeopardy Clause outright forbids multiple
punishments for a single offense only when those punishments are imposed in
successive proceedings.” (Emphasis added.)
{¶ 31} However, when multiple punishments are imposed in the same
proceeding, the Double Jeopardy Clause does nothing more than prevent the
sentencing court from imposing greater punishment than the legislature intended.
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Garrett v. United States, 471 U.S. 773, 793, 105 S. Ct. 2407, 85 L. Ed. 2d 764 (1985);
Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983);
Rogers, 143 Ohio St. 3d 385, 2015-Ohio-2459, 38 N.E.3d 860, at ¶ 16. In this way,
the Double Jeopardy Clause embodies the basic principles that the power to define
criminal offenses and prescribe punishment is vested in the legislative branch of
government and that courts may impose sentences only as provided by statute.
Whalen v. United States, 445 U.S. 684, 689, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980);
Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977).
{¶ 32} The Double Jeopardy Clause therefore does not curtail the General
Assembly’s discretion in providing for multiple sanctions for the same offense. It
is well settled that the legislature may require a fine and imprisonment as the
sentence for a single crime. United States v. DiFrancesco, 449 U.S. 117, 139, 101
S. Ct. 426, 66 L. Ed. 2d 328 (1980). Nor does the Double Jeopardy Clause preclude
the legislature from establishing multiple punishments when the same conduct or
transaction results in the commission of multiple offenses. Garrett at 793. This is
so because the Double Jeopardy Clause does not protect against excessive
punishments prescribed by the legislature and imposed by a court in the same
proceeding. Rather, protections against arbitrary, disparate, and disproportionate
punishment emanate from the Due Process Clause, the Equal Protection Clause,
and the Eighth Amendment’s prohibitions against cruel and unusual punishment
and excessive fines. See Hudson, 522 U.S. at 103, 118 S. Ct. 488, 139 L. Ed. 2d 450;
Chapman v. United States, 500 U.S. 453, 465, 111 S. Ct. 1919, 114 L. Ed. 2d 524
(1991); Ingraham v. Wright, 430 U.S. 651, 672-673, 97 S. Ct. 1401, 51 L. Ed. 2d 711
(1977).
{¶ 33} Accordingly, the question posed in this case is solely one of
legislative intent, and in Ohio, “[a]bsent a more specific legislative statement, R.C.
2941.25 is the primary indication of the General Assembly’s intent to prohibit or
allow multiple punishments for two or more offenses resulting from the same
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conduct.” State v. Washington, 137 Ohio St. 3d 427, 2013-Ohio-4982, 999 N.E.2d
661, ¶ 11. And R.C. 2941.25 provides “ ‘a clear indication of the General
Assembly’s intent to permit cumulative sentencing for the commission of certain
offenses.’ ” (Emphasis added.) State v. Cooper, 104 Ohio St. 3d 293, 2004-Ohio-
6553, 819 N.E.2d 657, ¶ 12, quoting State v. Bickerstaff, 10 Ohio St. 3d 62, 66, 461
N.E.2d 892 (1984), fn. 1.
{¶ 34} The majority’s inference that the allied offenses statute codifies
double jeopardy protections is therefore faulty, because the Double Jeopardy
Clause affords no protection against the imposition of multiple punishments
prescribed by the legislature for the same offense in the same proceeding, and the
merger of allied offenses is required only as provided by R.C. 2941.25.
{¶ 35} Tellingly, the majority does not hold that the Fifth Amendment
requires the merger of allied offenses—the majority rejects the use of the test
established by the United States Supreme Court in Blockburger v. United States,
284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)—but rather the majority
claims that
R.C. 2941.25 codifies the protections established by the Ohio
Constitution. And because the protections contained in R.C.
2941.25 encapsulate constitutional double-jeopardy protections, the
language and principles of that statute can be applied to juveniles as
well.
It follows that under the Ohio Constitution, a juvenile’s
double-jeopardy protections are violated when that juvenile is
subjected to multiple terms of commitment for conduct constituting
allied offenses of similar import.
Majority opinion at ¶ 11-12.
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{¶ 36} The question whether the Ohio Constitution forbids the imposition
of multiple punishments for the same offense in the same proceeding has not been
specifically briefed or argued in this case. Although A.G. asserted in the appellate
court that the United States and Ohio Constitutions require the merger of his
delinquency adjudications, no argument was presented that the Ohio Constitution
affords greater protections than the United States Constitution provides. The
memorandum in support of jurisdiction that A.G. filed did not even mention the
Ohio Constitution. See State v. Boswell, 121 Ohio St. 3d 575, 2009-Ohio-1577, 906
N.E.2d 422, ¶ 11 (declining to address an issue that was not presented in the
memorandum in support of jurisdiction); DIRECTV, Inc. v. Levin, 128 Ohio St. 3d
68, 2010-Ohio-6279, 941 N.E.2d 1187, ¶ 40 (same). And the relevant argument in
A.G.’s opening brief to this court is limited to the statement that “[t]he Ohio
Constitution also provides Double Jeopardy protections.”
{¶ 37} Because A.G. has not argued that Article I, Section 10 of the Ohio
Constitution provides greater protection against multiple punishments than the
Fifth Amendment, we should not raise this question on our own initiative.
{¶ 38} But in any case, as Justice Lanzinger recently wrote for the court in
State v. Broom, ___ Ohio St.3d ___, 2016-Ohio-1028, ___ N.E.3d ___, ¶ 21,
“Ohio’s constitutional prohibition on double jeopardy, Article I, Section 10, is
coextensive with the federal clause.” We have consistently adhered to this view
that the Ohio Constitution affords no greater double jeopardy protections than the
Fifth Amendment. State v. Brewer, 121 Ohio St. 3d 202, 2009-Ohio-593, 903
N.E.2d 284, ¶ 14; State v. Martello, 97 Ohio St. 3d 398, 2002-Ohio-6661, 780
N.E.2d 250, ¶ 7; State v. Gustafson, 76 Ohio St. 3d 425, 432, 668 N.E.2d 435 (1996).
{¶ 39} And our cases reviewing whether Article I, Section 10 of the Ohio
Constitution bars multiple punishments for the same offense in the same proceeding
have accorded with decisions from federal courts applying the United States
Constitution; we have held that “appellate review is limited to ensuring that the trial
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court did not exceed the sentencing authority which the General Assembly has
permitted the judiciary.” State v. Moss, 69 Ohio St. 2d 515, 518, 433 N.E.2d 181
(1982); accord State v. Williams, 124 Ohio St. 3d 381, 2010-Ohio-147, 922 N.E.2d
937, ¶ 12; State v. Rance, 85 Ohio St. 3d 632, 634-635, 710 N.E.2d 699 (1999),
overruled on other grounds, State v. Johnson, 128 Ohio St. 3d 153, 2010-Ohio-
6314, 942 N.E.2d 1061, syllabus; State v. Delfino, 22 Ohio St. 3d 270, 272, 490
N.E.2d 884 (1986).
{¶ 40} The legislature’s intent is manifest. R.C. 2941.25 does not apply to
juvenile delinquency adjudications. Moreover, R.C. 2152.17(F) vests the juvenile
court with discretion to impose separate consecutive commitments to DYS in these
circumstances, as long as the total commitment does not exceed the child’s
attainment of 21 years of age.
{¶ 41} The majority loses sight of the fact that the General Assembly has
granted the juvenile court judges of this state discretion and flexibility because
rehabilitation of the delinquent child—not punishing the child for committing
crimes—is the ultimate goal of the juvenile court. State v. D.H., 120 Ohio St. 3d
540, 2009-Ohio-9, 901 N.E.2d 209, ¶ 54. By superimposing yet another
requirement of criminal procedure on juvenile courts, the majority blurs the focus
on rehabilitation and threatens the flexibility and discretion that distinguish juvenile
dispositions from criminal sentencing, all to the detriment of juvenile offenders
who could benefit from services provided during commitment.
{¶ 42} And the majority’s effort to apply the adult allied offenses statute to
juvenile proceedings is a broad attempt to judicially impose what the legislature has
chosen not to do and violates the separation of powers doctrine by legislating from
the bench. This is a matter of policy for the General Assembly—not this court—to
decide.
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January Term, 2016
Conclusion
{¶ 43} The consecutive commitments to DYS imposed in this case do not
violate either the Double Jeopardy Clauses of the Fifth Amendment to the United
States Constitution and Article I, Section 10 of the Ohio Constitution or the allied
offenses statute. According to its plain language, R.C. 2941.25 applies only to adult
criminal convictions, not to juvenile delinquency adjudications that might
constitute convictions for allied offenses if the acts had been committed by an adult.
{¶ 44} Accordingly, I would affirm the judgment of the court of appeals.
KENNEDY and FRENCH, JJ., concur in the foregoing opinion.
_________________
Timothy McGinty, Cuyahoga County Prosecuting Attorney, and Gregory
Ochocki and T. Allan Regas, Assistant Prosecuting Attorneys, for appellee.
Timothy Young, Ohio Public Defender, and Charlyn Bohland, Assistant
Public Defender, for appellant.
_________________
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