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In re D.P.

Court of Appeals of Ohio, Eighth District, Cuyahoga

July 5, 2019

IN RE D.P.

          Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case Nos. DL17116441, DL17117881 and DL18110989

          Mark A Stanton, Cuyahoga County Public Defender, and Britta M. Barthol, Assistant Public Defender, for appellant

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Nora Caitlin Bryan, Assistant Prosecuting Attorney, for appellee.

          JOURNAL ENTRY AND OPINION

          MARY EILEEN KILBANE, A.J.

         {¶ 1} Delinquent-appellant, D.P., appeals from the judgment of the Cuyahoga County Common Pleas Court, Juvenile Division, ordering him to be incarcerated in an adult facility. The state of Ohio, pursuant to LocApp.R. 16(B), concedes the error.[1] We reverse and vacate the juvenile court's order of disposition.

         {¶ 2} In October 2017, the state filed a complaint alleging that D.P., who was 17 years old, was delinquent for committing one count of criminal trespass, a felony of the fourth degree, if committed by an adult. In November 2017, the state filed a second complaint alleging that D.P., still 17 years old, was delinquent for committing one count of receiving stolen property, a felony of the fourth degree, if committed by an adult.

         {¶ 3} In June 2018, while D.P. was still 17 years old, the state filed a third complaint alleging he was delinquent for committing one count of aggravated burglary, a felony of the first degree if committed by an adult. In addition, this count contained a firearm specification in violation of R.C. 2941.141(A) and 2152.17(A)(1). The alleged offense occurred in Medina County.

         {¶ 4} In September 2018, in Medina County Juvenile Court, D.P. admitted to an amended count of burglary in the second degree, with the deletion of the firearm specification. The juvenile court adjudicated D.P. a delinquent and transferred the case to Cuyahoga County for disposition. In October 2018, D.P. admitted the allegations of criminal trespass and of receiving stolen property. The juvenile court adjudicated D.P. a delinquent and continued the matter for disposition.

         {¶5} In December 2018, D.P., who had now attained the age of 18, appeared for disposition. The juvenile court imposed a jail sentence of ninety days and a fine of fifty dollars for the charge of criminal trespass. The juvenile court also imposed a jail sentence of six months for receiving stolen property. The sentences for criminal trespass and receiving stolen property were to be served concurrently.

         {¶ 6} In addition, the juvenile court imposed a jail sentence of twelve months for aggravated burglary and ordered D.P. to pay restitution of $1, 000. The juvenile court ordered this sentence served consecutively to the sentences imposed for criminal trespass and receiving stolen property, for an aggregate jail sentence of eighteen months. Further, the juvenile court ordered that D.P. serve the sentences in the Cuyahoga County Jail.

         {¶ 7} D.P. now appeals and assigns the following error for our review:

         Assignment of Error

         The trial court erred when it ordered the delinquent child to be incarcerated in an adult facility.

         {¶ 8} R.C. 2152.19(A) provides in pertinent ...


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