[Cite as In re D. P. , 2014-Ohio-467.] 

### IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

IN RE: D.P. :

: APPEAL NO. C-130293 C-130298 TRIAL NO. 13-487z

O P I N I O N.

Criminal Appeal From: Hami lton County Juvenile Court Judgment Appealed From Is: Reversed and Cause Remanded Date of Judgment Entry on Appeal: February 12, 2014

Joseph T. Deters , Hamilton County Pros ecuting Attorney, and Rachel Lipman Curran , Assistant Prosecuting Attorney, for Plaintiff-Appellant, Gordon C. Magella , for Defendant-Appellee.

Please note: this case has been removed from the accelerated calendar.OHIO FIRST DISTRICT COURT OF APPEALS

2 H ILDEBRANDT , Judge. 

### {¶1} Appellant the state of Ohio appeals the judgment of the Hamilton County Juvenile Court placing a juvenile on probation and ordering him to attend a residential training school. The Delinquency Adjudication and Disposition 

### {¶2} On January 16, 2013, the state alleged that defendant-appellee, D.P., a juvenile, had engaged in conduct that would have constituted aggravated robbery, with firearm specifications, had he been an adult. The state subsequently filed a motion for the trial court to relinquish jurisdiction and bind the case over to the genera l division of the common plea s court. The trial court
denied that motion and retained jurisdiction over the matter. 

### {¶3} The case proceeded to a trial before a magistrate, who found D.P. delinquent with respect to th e aggravated-robbery charge and the specifications. In his decision, the magistrate specifically found that D.P. had possessed a firearm and had pointed the firearm at th e victim to facilitate the aggravated robbery. D.P. did not file objectio ns to the magistrate’s decision. 

### {¶4} After the case had been referred to the trial judg e for disposition,
D.P. filed a motion to dismiss the fire arm specifications, contending that dismissal was in his best interest and in the best interest of the community under Juv.R. 29(F)(2)(d). 

### {¶5} The trial court denied D.P.’s motion to dismiss the firearmpossession specification. The court placed D.P. on probation and ordered him to attend a residential program at Hillcrest School. But it held the motion to dismiss the facilitation specif ication in abeyance to asse ss D.P.’s performance in the Hillcrest program.OHIO FIRST DISTRICT COURT OF APPEALS

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### {¶6} In two related assignments of error, the state argues that the trial court erred in failing to commit D.P. to the Department of Youth Services (“DYS”) for the facilitation specification. The state contends that the court’s disposition was tantamount to a dismissal of the facilitation specification and
that dismissal was not within the court’s discretion.

Juv.R. 29 and Statutory Limits on Disposition 

### {¶7} We find the state’s assignments of error to be well taken. Juv.R. 29(F)(2)(d) provides that, if the allegati ons of the complaint are admitted or proven, the juvenile court may “[d]ismiss th e complaint if dismissal is in the best interest of the child and the community.” But this discretion to dismiss is explicitly limited to those cases in which dismissal is not “precluded by statute.” Juv.R. 29(F)(2). 

### {¶8} R.C. 2152.17(A)(2) provides that, if the juvenile, were he an adult: would be guilty of a specification of the type set forth in section 2941.145 of the Revised Code * * *, the court shall commit the child to the department of youth serv ices for the specification for a definite period of not less than on e and not more th an three years,
and the court shall also commit the child to the department for the underlying delinquent act under sect ions 2152.11 to 2152.16 of the
Revised Code. (Emphasis added.) R.C. 2941.145, in turn , sets forth the specification that the offender had a firearm on his person while committing the offense “and displayed the firearm, brandished the firearm, indicated that the offender possessed the firearm, or used it to faci litate the offense.” Thus, under the plain language of R.C. 2152.17(A)(2), the juvenile court is required to commit the child to DYS following an adjudication fo r a facilitation specification.OHIO FIRST DISTRICT COURT OF APPEALS

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### {¶9} Other courts construing R.C. 21 52.17(A)(2) have held that the statute’s terms are mandatory. In re J.W., 2d Dist. Montgomery No. 24507, 2011-Ohio-6706; In re J.M., 8th Dist. Cuyahoga No. 79550, 2002-Ohio-1658. As the Second Appellate District has stated, once an adjudication of delinquency is made with respect to a facili tation specification, “[t]he only element of discretion for the court to exercise was the number of years selected” for the commitment

to DYS. In re J.W. at ¶ 5. Because the court di d not have the discretion, under R.C. 2152.17(A)(2), to place D.P. on probation and order him to attend Hillcrest, we sustain the assignments of error. Ripeness 

### {¶10} Nonetheless, D.P. contends that the issue is not ripe for appeal
because the trial court had held the mo tion to dismiss in abeyance and had therefore not dismissed the specification at the time the state’s notice of appeal
was filed. But because the trial co urt had no discretion to dismiss the specification under R.C. 2152.17(A)(2), the motion to dismiss was a nullity. Therefore, the trial court’s decision to hold the motion in abeyance was itself erroneous, as the court had no op tion but to commit D.P. to DYS.
Conclusion 

### {¶11} We reverse the judgment of the trial court and remand the cause for disposition pursuant to statute. Judgment reversed and cause remanded.

C UNNINGHAM , P.J., and H ENDON , J., concur.

Please note : The court has recorded its own entry on the date of the release of this opinion



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