IN RE: A.G. A Minor Child
No. 101010
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
November 6, 2014
2014-Ohio-4927
BEFORE: Stewart, J., Rocco, P.J., and E.A. Gallagher, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL 12117864. JUDGMENT: AFFIRMED. RELEASED AND JOURNALIZED: November 6, 2014
Timothy Young
State Public Defender
BY: Charlyn Bohland
Assistant State Public Defender
250 East Broad Street, Suite 1400
Columbus, OH 43215
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Eben McNair
Anne Kovoor
Assistant County Prosecutors
Juvenile Justice Center
9300 Quincy Avenue, 4th Floor
Cleveland, OH 44106
{¶1} This is a case of first impression in our court whereby we are asked to extend the substance and effect of
{¶2} On June 29, 2012, at 1:00 a.m., the victim in this case drove to his neighborhood beverage store. While at the store, he withdrew money from an ATM located within the store and proceeded to walk back to his car. As he approached his car, the victim was stopped by a man with a gun. The victim described the incident as: “And I‘m thinking he‘s [fixing] to go to the store, but instead he pulls a small revolver out of his pocket and tells me to get in the car. I stood there and looked at him. Then he said, get in the car, n****r, or I will shoot you. And I looked and I turned and I ran * * *.” Police investigated the robbery аnd found a fingerprint on the car that did not belong to the victim. The police traced the fingerprint to A.G., then 15 year‘s old.
{¶3} A two-count complaint was filed in the Cuyahoga County Court of Common Pleas, Juvenile Division against A.G. on October 24, 2012. Count 1 of the complaint alleged that A.G. was a delinquent child for committing aggravated robbery in violation of
{¶4} The state requested that the juvenile court relinquish jurisdiction and bind over A.G. to the general division — (criminal court) for prosecution as an adult. The juvenile court
{¶5} A.G. admitted to the aggravated robbery and kidnapping counts in the complaint, and the court adjudicated him delinquent on both counts. At the disposition hearing on December 20, 2013, the court imposed a commitment to the Ohio Department of Youth Services (DYS) for a minimum of three years with a maximum to A.G.‘s 21st birthday. In imposing this commitment, the court found that the firearm specifications merged because both specifications arose out оf a single incident, but the court entered separate commitments for the aggravated robbery and kidnapping counts. Altogether, a one-year commitment was imposed for the firearm specification; 12-months for the aggravated robbery count; and 12-months for the kidnapping count. The court ordered that the commitments be served consecutively for a total minimum commitment of three years in DYS.
{¶6} A.G. now appeals the disposition of his case raising two assignments of error for our review. First A.G. argues that the juvenile court erred when it failed to merge his adjudications for aggravated robbery and kidnapping. He contends that aggravated robbery and kidnapping are allied offenses of similar import that should have merged and argues that the failure to merge the two offenses constitutes a violation of the double jeopardy protections of the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 10 and 16, of the Ohio Constitution. In his second assignment of error, A.G. argues that his trial counsel was ineffеctive for failing to object to A.G.‘s adjudication for allied offenses of similar import, in violation of the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 10 and 16, of the Ohio Constitution.
{¶8} The Double Jeopardy Clause of the
{¶9} The question that courts are often called upon to resolve in double jeopardy cases is what exactly constitutes the “same offense” for double jeopardy purposes. This question is anаlyzed differently depending on whether the defendant is being reprosecuted for the same offense or the state is attempting to impose multiple punishments for the same offense. In this
{¶10} The
{¶11} While prosecutorial conduct and judicial action are constrained by the double jeopardy protections, the legislature remains free to define crimes and fix punishments. See Moss at 518, citing Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Brown at 165. However, once the legislature has acted by either proscribing or permitting multiple punishments or prosecutions, courts must act in accordance with those guidelines and may not impose more than one punishment for acts that the legislature deems to be the same offense. Brown at ¶ 161.
{¶13} At a minimum, the applicable standard for determining whether two offenses are the same for purposes of double jeopardy is laid out in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). In Blockburger the United States Supreme Court stated, “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id. The Blockburger test has been interpreted to mean that a defendant may be convicted of two offenses arising out of the same criminal incident if each crime contains an element that thе other does not. Dixon, 509 U.S. at 696-697. The Blockburger test requires courts to look strictly at the proof necessary to prove the statutory elements of each offense without regard to the evidence to be introduced at trial. Illinois v. Vitale, 447 U.S. 410, 416, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980).
{¶14} The Blockburger test, however, is not controlling in cases where the legislature manifests a clear rule for determining what constitutes the same offеnse. See Albernaz, 450 U.S. 333, at paragraph four of the syllabus. And, of course, legislatures are free to provide greater constitutional protections than Blockburger provides as long as this intent is clearly shown. See Rance, 85 Ohio St.3d at 635.
{¶15} By enacting
(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 оffenses, 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.
{¶16} The effect of
{¶18} Thus, unlike Blockburger, which mandates that each offense require proof of an element that the other does not in order to find that two offenses are not the same offense, under
{¶19} Here, we recognize that the offenses of aggravated robbery and kidnapping can be committed with the same conduct and therefore are potentially allied offenses of similar import if they arise out of the same conduct. Indeed, in State v. McGee, 8th Dist. Cuyahoga No. 92019, 2010-Ohio-2081 (defendant convicted and sentenced for kidnapping and aggravated robbery аfter he and codefendants robbed a check-cashing business at gun point) we held that there was no evidence to suggest that the kidnapping was anything but incidental to the aggravated robbery. Id. at ¶ 51-53. Similar to the facts in McGee, A.G. held the victim at gun point in order to effectuate a robbery. Brandishing the gun and ordering the victim to get in the car in this instance is the same conduct that cоnstituted both the aggravated robbery and the kidnapping. During the probable cause hearing, the victim testified that the entire encounter with A.G. lasted
{¶20} In Ohio however, courts (including this one) have held that
{¶21} In In re Skeens, 10th Dist. Franklin Nos. 81AP-882 and 81AP-883, 1982 Ohio App. LEXIS 12181 (Feb. 25, 1982), the Tenth District Court of Appeals set forth the rationale for holding that
R.C. 2941.25(A) does not apply to situations where a minor is alleged to be a delinquent minor since, under our Juvenile Code, such a minor is not charged with a crime. While the commission of acts which would constitute a crime if committed by an adult sets the machinery of the Juvenile Court in motion, the issue before the court is whether or not the minor has engaged in the kind of conduct that constitutes delinquency and will therefore justify the intervention of the state to assume his protection and custody. Evidence that the minor committed acts that would constitute a crime if committed by an adult is used only for the purpose of establishing that the minor is delinquent, not to convict him of a crime and to subject him to punishment for that crime.
Id. at 6-7.
{¶22} Skeens was decided over 30 years ago, yet the General Assembly has not enacted a statute codifying double jeopardy protections in juvenile delinquency proceedings. Likewise,
{¶23} Still, the United States Supreme Court and the Ohio Supreme Court agree that the Double Jeopardy provisions of the United States Constitution and the Ohio Constitution apply to both juveniles and adults alike. While the Supreme Courts are in agreement, Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.E.2d 346 (1975); see In re Cross, 96 Ohio St.3d 328, 2002-Ohio-4183, 774 N.E.2d 258, ¶ 23 (recognizing that double jeopardy protections apply in juvenile delinquency proceedings), this does not mean that juveniles are constitutionally entitled to the same greater statutory protections afforded adults when it comes to consideration of allied offenses for double jeopardy purposes.
{¶24} This leaves us at the crossroads of deciding how to evaluate whether constitutional double jeopardy protections have been abridged in a juvenile delinquency proceeding when the adjudication involves the same or “allied” offenses. We hold that in the absence of clear instruction from the Ohio General Assembly, the test to be employed is sеt forth in Blockburger, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306.
{¶25} As previously noted, in order to determine whether offenses should merge as the same offense under Blockburger, an appellate court is to examine the elements of multiple offenses and decide whether each offense requires proof of an element that the other does not. Courts are to examine the elements оf each offense without regard to the evidence to be
{¶26} In the present case, aggravated robbery,
{¶27} A.G.‘s first assignment of error is overruled. Resolution of this assigned error renders the second one, that trial counsel rendered ineffective assistance of counsel by failing to object to A.G.‘s adjudication for allied offenses of similar import, moot.
{¶28} Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is оrdered that a special mandate issue out of this court directing the Cuyahoga County Common Pleas Court — Juvenile Division to carry this judgment into execution. The finding of delinquency having been affirmed, any bail or stay of execution pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MELODY J. STEWART, JUDGE
KENNETH A. ROCCO, P.J., and EILEEN A. GALLAGHER, J., CONCUR