[Cite as In re D.M., 2017-Ohio-2710.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

IN THE MATTER OF D.M. ) 

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CASE NO. 16 MA 0166 

OPINION 

AND 

JUDGMENT ENTRY 

CHARACTER OF PROCEEDINGS: Motion to Dismiss 

JUDGMENT: Dismissed 

APPEARANCES: 

For Appellant Charlyn Bohland 

Assistant State Public Defender 

250 East Broad Street, Suite 1400 

Columbus, Ohio 43215 

For Appellee Paul Gains 

Prosecutor 

Ralph M. Rivera 

Assistant Prosecutor 

21 W. Boardman St., 6th Floor 

Youngstown, Ohio 44503-1426 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Hon. Carol Ann Robb 

 

 

 Dated: May 2, 2017 
[Cite as In re D.M., 2017-Ohio-2710.]

PER CURIAM. 

{¶1} 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. 

{¶2} In 2013, a three-count delinquency complaint was filed against 16-yearold 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), firstdegree 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 specifications. 

{¶3} 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. 

{¶4} 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. 
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{¶5} 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 juvenile court. 

{¶6} 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. 

{¶7} 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. 

{¶8} 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.). 

{¶9} 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 
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Appellant cite any caselaw that would support even an inference to that effect. 

{¶10} 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 

and sentence became a final appealable order when the adult court, pursuant to R.C. 

2919.121(B)(3), reinvoked the previously stayed sentence on November 21, 2016, 

from which no appeal was taken. 

{¶11} Accordingly, Appellant’s appeal of the juvenile court’s order transferring 

the case back to the adult court is dismissed. Appellant’s pending motion to strike 

the use of Appellant’s full name rather than his initials in Appellee’s motion to dismiss 

is overruled as moot. Costs taxed against Appellant. 

{¶12} Final order. Clerk to serve notice as provided by Civil Rules. 

 ______________________________ 

 Judge Gene Donofrio 

 ______________________________ 

 Judge Cheryl L. Waite 

 ______________________________ 

 Judge Carol Ann Robb