Court of Appeals of Ohio, Seventh District, Mahoning
Appellant Charlyn Bohland Assistant State Public Defender.
Appellee Paul Gains Prosecutor Ralph M. Rivera Assistant
JUDGES: Hon. Gene Donofrio Hon. Cheryl L. Waite Hon. Carol
OPINION AND JUDGMENT ENTRY
Appellant D.M. appeals a judgment entry of the Mahoning
County Common Pleas Court, Juvenile Division, transferring
the case back to the General Division pursuant to R.C.
2151.121(B)(3)(b). Following a reverse bindover, the juvenile
court conducted an amenability hearing and, upon determining
that Appellant was not amenable to juvenile rehabilitation,
sent the case back to the General Division for imposition of
the adult sentence. The state has filed a motion to dismiss
arguing that the entry appealed from is not a final
appealable order. Appellant has filed a response in
opposition. We conclude that the entry does not constitute a
final appealable order.
In 2013, a three-count delinquency complaint was filed
against 16-year-old Appellant in juvenile court. Two counts
were for offenses that if he were an adult would have
constituted aggravated robbery in violation of R.C.
2911.01(A)(1), first-degree felonies. One count was for an
offense that if he were an adult would have constituted
aggravated burglary in violation of R.C. 2911.11, a
first-degree felony. All three counts contained firearm
The juvenile court appointed counsel and Appellant entered
pleas of denial to the complaint. Subsequently, Appellant
waived the right to a probable cause hearing and stipulated
to probable cause. Pursuant to the mandatory transfer
statute, the juvenile court transferred Appellant's case
to the adult court.
Once in adult court, Appellant reached a plea agreement with
the state. Appellant agreed to plead guilty to one count each
of aggravated robbery and aggravated burglary. In exchange,
the state agreed to dismiss all other charges since they
would have merged with the aggravated robbery and aggravated
burglary offenses to which Appellant was pleading guilty. The
state also agreed to recommend consecutive terms of four
years in prison for each of the offenses for an aggregate
term of eight years, and that it would not oppose an
application for judicial release when Appellant becomes
eligible in four and half years. Also, the state dismissed
the firearm specifications because the instrument Appellant
used in the commission of the offenses turned out to be a
starter pistol which was incapable of shooting a projectile.
In 2014, the adult court sentenced Appellant in accordance
with the state's recommendation and he appealed. Because
the offenses to which Appellant pleaded guilty would not have
required a mandatory transfer of the case from the juvenile
division to the general division, this court found that the
reverse bindover procedure set forth in R.C. 2152.121(B)(3)
was activated requiring transfer of the case back to the
Upon remand to the juvenile court, the state objected to the
imposition of a Serious Youthful Offender dispositional
sentence pursuant to R.C. 2152.121(B)(3)(b) and the court
conducted an amenability hearing. Following the hearing, the
juvenile court determined that Appellant was not amenable to
rehabilitation within the juvenile justice system.
Subsequently, in a judgment entry filed September 29, 2016
which is the subject of this appeal, the juvenile court
ordered the case returned to the general division for
imposition of the adult sentence.
The general division conducted a resentencing hearing on
November 3, 2016, pursuant to R.C. 2929.19 and R.C.
2152.121(B)(3) and imposed the previously agreed upon 8-year
prison term. The judgment entry of sentence was filed
November 21, 2016, and no appeal was filed from that entry.
Turning to a review of the juvenile court's order
appealed in this case, Ohio Supreme Court precedent is clear:
"[a]n order by a Juvenile Court, pursuant R.C. 2151.26
[now R.C. 2152.12], transferring a child to the Court of
Common Pleas for criminal prosecution, is not a final
appealable order." In re Becker, 39 Ohio St.2d
84, 314 N.E.2d 158 (1974), syllabus. Ohio appellate courts
have adhered to Becker. See, e.g., In re J.L., 11th
Dist. No. 2015-T-0137, 2016-Ohio-644, 2016 WL 697800, ¶
6-7; In re D.H., 2d Dist. No. 27074, 2016-Ohio-5265;
State v. McKinney, 2015-Ohio-4398, 46 N.E.3d 179,
¶ 8 (1st Dist.).
Appellant argues this case is distinguishable from
Becker and other appellate court decisions applying
Becker simply because a conviction has already
occurred in this case. However, Appellant does not explain
how the procedural posture of this case (i.e., discretionary
transfer after a reverse bindover) takes it outside the
purview of the Ohio Supreme Court's decision in
Becker. Nor does Appellant cite any caselaw that
would support even an inference to that effect.
Moreover, Appellant's argument overlooks the
interlocutory nature of this appeal. Although Appellant was
convicted in adult court, the sentence was automatically
stayed by operation of law pursuant to R.C. 2152.121(B)(3). A
judgment of conviction is not a final appealable order until
a sentence is imposed. State v. Chamberlain, 177
Ohio St. 104, 106-107, 202 N.E.2d 695 (1964); State v.
Pasqualone,140 Ohio App.3d 650, 655, 748 N.E.2d 1153
(11th Dist.2000); State v. George, 98 Ohio App.3d
371, 374, 648 N.E.2d 597 (12th Dist.1994). The adult sentence
cannot be imposed by the adult court until the juvenile court
transfers jurisdiction of the case back to adult court. In
this instance, Appellant's conviction ...