Lead Opinion
{¶ 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
{¶ 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 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.
{¶ 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,
{¶ 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.”
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
{¶ 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,
[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,
{¶ 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,
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
{¶ 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 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.)
{¶ 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.
{¶ 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
{¶ 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.,
III. Conclusion
{¶ 15} We hold that the merger analysis set forth in State v. Ruff,
Judgment reversed and cause remanded.
Notes
. Although A.G. argues that the analysis set forth in State v. Johnson,
Dissenting Opinion
dissenting.
{¶ 16} Respectfully, I dissent.
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 appellate review, except for plain error. State v. Rogers,
{¶ 19} Although appellate courts have discretion to correct “[pjlain 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,
{¶ 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,
{¶ 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.
{¶ 22} The allied offenses statute, R.C. 2941.25, provides,
(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.,
{¶ 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,
{¶ 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,
{¶ 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.,
{¶ 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 regard 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,
{¶ 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,
{¶ 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. Garrett v. United States,
{¶ 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,
{¶ 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 conduct.” State v. Washington,
{¶ 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,
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.
{¶ 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,
{¶ 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,
{¶ 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 court did not exceed the sentencing authority which the General Assembly has permitted the judiciary.” State v. Moss,
{¶ 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.,
{¶ 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.
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
{¶ 44} Accordingly, I would affirm the judgment of the court of appeals.
Kennedy and French, JJ., concur in the foregoing opinion.