[Cite as State v. Grant,

.]

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,

,

, ¶ 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,

,

, quoting In re M.P.,

, 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,

. 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.

. 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

.

{¶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.,

, 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,

(“[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.