State v. Grant , 2019 Ohio 3561 ( 2019 )

[Cite as State v. Grant, 2019-Ohio-3561.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29259
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
EMMANUEL GRANT COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR-2018-05-1463
DECISION AND JOURNAL ENTRY
Dated: September 4, 2019
TEODOSIO, Presiding Judge.
{¶1} Appellant, Emmanuel Grant, appeals from his conviction in the Summit County
Court of Common Pleas. This Court reverses and remands.
I.
{¶2} Mr. Grant was 17 years old when he and another individual, under the guise of
selling an iPhone, met up with the victim and robbed him at gunpoint of $280.00 cash. The
juvenile court was statutorily mandated to bind the case over to the general division, and Mr.
Grant was then indicted as an adult for aggravated robbery with a firearm specification. He pled
guilty to an amended charge of robbery, while the firearm specification was dismissed. The trial
court sentenced him to three years in prison.
{¶3} Mr. Grant now appeals from his conviction and raises two assignments of error
for this Court’s review.
2
II.
ASSIGNMENT OF ERROR ONE
THE CRIMINAL COURT ERRED WHEN IT FAILED TO SENTENCE
EMMANUEL GRANT IN ACCORDANCE WITH R.C. 2152.121 * * *.
{¶4} In his first assignment of error, Mr. Grant argues that the trial court committed
plain error in failing to transfer his case back to juvenile court after he was convicted of a
discretionary transfer offense, in accordance with R.C. 2152.121(B)(3). We agree that the matter
must be remanded for the trial court to consider and apply R.C. 2152.121(B).
{¶5} Mr. Grant concedes that he never objected at the trial court level and is therefore
limited to arguing plain error on appeal. “Plain errors or defects affecting substantial rights may
be noticed although they were not brought to the attention of the court.” Crim.R. 52(B). To
establish plain error, one must show (1) an error occurred, i.e., a deviation from a legal rule, (2)
the error is plain, i.e., an obvious defect in the proceedings, and (3) the error affected a
substantial right, i.e., affected the outcome of the proceedings. State v. Morgan, 153 Ohio St. 3d
196, 2017-Ohio-7565, ¶ 36. Courts should notice plain error only with the utmost caution, under
exceptional circumstances, and only to prevent a manifest miscarriage of justice. Id. at ¶ 37.
{¶6} Juvenile courts have “‘exclusive jurisdiction over children alleged to be
delinquent for committing acts that would constitute a crime if committed by an adult.’” State v.
Aalim, 150 Ohio St. 3d 489, 2017-Ohio-2956, ¶ 2, quoting In re M.P., 124 Ohio St. 3d 445, 2010-
Ohio-599, ¶ 11; R.C. 2151.23(A). Jurisdiction may be transferred from juvenile court to adult
court, however, and the transfer will be either mandatory or discretionary. See State v. Lewis,
9th Dist. Summit No. 27887, 2017-Ohio-167, ¶ 9. R.C. 2152.10(A) sets forth which juvenile
cases are subject to mandatory bindover and includes cases where the alleged delinquent child is
at least 16 years old and is charged with a “category two offense” with a firearm, if there is
3
probable cause to believe that the child committed the act charged. Aalim at ¶ 13. Contrarily,
R.C. 2152.10(B) sets forth which cases the juvenile court maintains discretion to transfer its
jurisdiction to the adult court. In those cases, the juvenile court may only transfer jurisdiction if
it makes certain findings under R.C. 2152.12(B). Here, because Mr. Grant was 17 years old at
the time he allegedly committed a “category two offense” with a firearm to wit: aggravated
robbery under R.C. 2911.01(A)(1) and the juvenile court found probable cause to believe that
he committed the act as charged, the court was required by statute to transfer its jurisdiction over
the case to the general division. See R.C. 2152.02(BB)(1), 2152.10(A)(2)(b), and
2152.12(A)(1)(b)(ii). See also Aalim at ¶ 13.
{¶7} Despite the initial mandatory bindover, Mr. Grant ultimately pled guilty to, and
was convicted of, the lesser offense of robbery in common pleas court. Pursuant to R.C.
2152.121(B)(1), the trial court was therefore required to determine if the initial bindover from
the juvenile court would have been mandatory or discretionary for acts which would constitute
the offense of robbery if committed as an adult. See State v. D.B., 150 Ohio St. 3d 452, 2017-
Ohio-6952, ¶ 12. The trial court is presented with three options under R.C. 2152.121(B)(2)-(4).
First, if the court determines that a mandatory bindover would have been required, it must
sentence the child under R.C. Chapter 2929 accordingly. See R.C. 2152.121(B)(4). However, if
a mandatory bindover would not have been required and a discretionary bindover would not have
been allowed, the trial court must transfer jurisdiction back to the juvenile court. See R.C.
2152.121(B)(2). Finally, if the court determines that a mandatory bindover would not have been
required, but a discretionary bindover would have been allowed, a “reverse-bindover” procedure
shall occur, in which the trial court shall: (1) determine an appropriate sentence under R.C.
Chapter 2929; (2) impose that sentence; and (3) stay the sentence pending completion of the
4
procedures outlined in R.C. 2152.121. See R.C. 2152.121(B)(3); D.B. at ¶ 13. Furthermore,
upon the imposition and staying of that sentence under R.C. 2152.121(B)(3), the trial court shall
then transfer jurisdiction of the case back to the juvenile court for further proceedings in
accordance with R.C. 2152.121(B)(3)(a)-(b). Because our review of the record reveals that the
trial court did not consider and apply R.C. 2152.121(B) in Mr. Grant’s case, we must remand the
matter back to the trial court to conduct the appropriate analysis. See State v. Ferguson, 2d Dist.
Montgomery No. 27032, 2017-Ohio-7930, ¶ 90 (“[T]he procedures set forth in R.C. 2152.121
are clear and unambiguous, and the adult court does not have the discretion to ignore its
mandates.”).
{¶8} The State concedes that the amended charge of robbery would not have subjected
Mr. Grant to a mandatory bindover, but a bindover would have instead been at the discretion of
the juvenile court. It nonetheless contends that the error was harmless because had the trial court
properly transferred jurisdiction back to the juvenile court pursuant to R.C. 2152.121(B)(3), the
State would have objected to the imposition of a serious youthful offender dispositional sentence
in juvenile court under R.C. 2152.121(B)(3)(b) and would have shown that Mr. Grant is not
amenable to rehabilitation and the safety of the community requires that he be subject solely to
adult sanctions. See Crim.R. 52(A) (“Any error, defect, irregularity, or variance which does not
affect substantial rights shall be disregarded.”). We find no merit in the State’s harmless error
argument, however, as it is not necessary to place the proverbial cart before the horse and
speculate as to what the State may later argue or what the juvenile court may later hold once
jurisdiction is transferred. For now, the trial court must first consider and apply R.C.
2152.121(B).
5
{¶9} We conclude that this is an exceptional case whereby the trial court committed
plain error in failing to follow the procedures set forth in R.C. 2152.121(B), which error affected
Mr. Grant’s substantial rights. To prevent a manifest miscarriage of justice, the matter must be
remanded back to the trial court for consideration and application of R.C. 2152.121(B).
{¶10} Mr. Grant’s first assignment of error is sustained.
ASSIGNMENT OF ERROR TWO
EMMANUEL GRANT RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL, AS GUARANTEED BY THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE U.S. CONSTITUTION; AND ARTICLE I, SECTION
10, OHIO CONSTITUTION * * *.
{¶11} In his second assignment of error, Mr. Grant argues that his counsel was
ineffective in failing to inform or apprise the trial court of R.C. 2152.121 and in failing to object
when the trial court did not stay his sentence and transfer his case back to the juvenile court.
Because we have already sustained his first assignment of error and are remanding the matter
back to the trial court to consider and apply R.C. 2152.121(B), Mr. Grant’s ineffective assistance
claim has been rendered moot, and we decline to address it. See App.R. 12(A)(1)(c).
III.
{¶12} Mr. Grant’s first assignment of error is sustained. We decline to address his
second assignment of error, as it has been rendered moot. The judgment of the Summit County
Court of Common Pleas is reversed, and the cause is remanded for further proceedings consistent
with this opinion.
Judgment reversed,
and cause remanded.
There were reasonable grounds for this appeal.
6
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellee.
THOMAS A. TEODOSIO
FOR THE COURT
SCHAFER, J.
CALLAHAN, J.
CONCUR.
APPEARANCES:
CHARLYN BOHLAND, Assistant State Public Defender, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO GUEST,
Assistant Prosecuting Attorney, for Appellee.