[Cite as Ohio v. Brookshire , 2014-Ohio-4858.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY STATE OF OHIO : : Appellate Case No. 25859 Plaintiff-Appellee : : Trial Court Ca se No. 2013-CR-635/1 v. : : DELAQUAN BROOKSHIRE : (Criminal Appeal from : ( Common Pleas Court) Defendant-Appellant : :

. . . . . . . . . . . O P I N I O N Rendered on the 31st da y of October, 2014.

. . . . . . . . . . . MATHIAS H. HECK, JR., by ANDREW T. FR ENCH, Atty. Reg. #0069384, Montgomery County Prosecutor’s Office, Appellate Division, Montgo mery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45402 Attorney for Plaintiff-Appellee SHERYL TRZASKA, Atty. Reg. #0079915, Office of th e Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio Attorney for Defendant-Appellant

. . . . . . . . . . . . .

FAIN, J. 2

 {¶ 1} Defendant-appellant Delaquan Brookshire appeals fro m his conviction and sentence on one count of Aggravated Robbery, with a fi rearm specification, two counts of Aggravated Robbery, without firearm specifica tions, and three counts of Kidnappi ng. Brookshire contends that the juvenile court erred when it transferred his two cases to adult court, because the mandatory transfer provisions in R.C. 2152.10(A)(2)(b) violate hi s rights to due process and equal protection and violate the prohibition against cruel and unusual punish ment. Brookshire also contends that the adult court was without authority to sent ence Brookshire on five of the six counts to which he pled guilty. Finally, Brookshire contends that he was denied the effectiv e assistance of trial counsel. {¶ 2} We conclude that the mandatory transf er provisions of R.C. 2152.10 do not violate Brookshire’s rights to due proce ss and equal protection a nd do not violate the prohibition against cruel and unusual punishment. We also conc lude that the adult court erred in failing to transfer five of the six offenses back to the juvenile court pur suant to R.C. 2152.121 after the adult court found Brookshire guilty of those offenses. Finally, we c onclude that Brookshire fa iled to prove that he received ineffective assi stance of trial counsel. {¶ 3} Accordingly, the judgment of the trial c ourt is Reversed, in pa rt, and Affirmed, in part, and this cause is Remanded for furthe r proceedings consistent with this opinion.

I. Brookshire Confesses That He Was Involved in Robberies at Burger King and Penn Station Restaurants {¶ 4} On January 9, 2013, men in masks robbed a Burger King fast-food restaurant. On January 20, 2013, men in masks robbed a Penn Station fast-food restaurant. During the robberies, the masked men held individuals at gunpoint. The police investigation of the Penn 3

 Station robbery led to interv iewing Brookshire as a suspect . Upon questioning, Brookshire admitted to the police that he was involved in the two robberies.

II. Course of the Proceedings {¶ 5} Delinquency complaints we re filed against Brookshire. The complaint in Montgomery County Juvenile C ourt Case No. 2013-639 a lleged that he had committed offenses that if he were an adult woul d have constituted one c ount of Aggravated Robbery and five counts of Kidnapping, all with firearm sp ecifications. This case related to Brookshire’s actions in the Burger King robbery. The delinquency complain t in Montgomery County Juvenile Court Case No. 2013-468 alleged that he had committed offenses that if he were an adult would have constituted four counts of Aggrav ated Robbery and three counts of Kidnapping, all with firearm specifications. This case relate d to Brookshire’s alleged actions in the Penn Station robbery. {¶ 6} After the delinquency compla ints were filed, the State filed a motion to transfer jurisdiction to the General Division of the Common Pleas Court (“adult court”) so that Brookshire could be tried as an adult. The juve nile court held a probabl e cause hearing in order to determine whether transfer to adult court was a ppropriate pursuant to R.C. 2152.10 and R.C. 2152.12. {¶ 7} Following the probable cause hearing, the juvenile court found that Brookshire was 17 years old at the time of the charged offenses, the acts alleged in the complaint would be felonies if committed by an adult, and there wa s probable cause to belie ve that Brookshire was responsible for committing Aggravated Robbery a nd Kidnapping in the two robberies. Based on these findings, the juvenile court relinquished its jurisdiction and transferre d the cases to the adult 4

 court. {¶ 8} In March 2013, a Montgomery County Gr and Jury indicted Brookshire on one count of Aggravated Robbery and five counts of Kidnapping for Brookshire’s alleged actions in the Burger King robbery. Each count had a firear m specification attached to it. The Grand Jury also indicted Brookshire on four counts of Aggr avated Robbery and three counts of Kidnapping for Brookshire’s alleged actions in the Penn Station robbery. Each count had a firearm specification attached to it. {¶ 9} Ultimately, Brookshire pled guilty to the following counts: one count of Aggravated Robbery with a fir earm specification relating to the Burger King robbery; two counts of Kidnapping relating to the Burger King robbery ; two counts of Aggravated Robbery relating to the Penn Station robbery; and one count of Kidnapping relating to the Penn Station robbery. In exchange for his guilty pleas, the remaining counts of the indictment were dismissed. The adult court found Brookshire guilty of these six count s. The court sentenced Brookshire to the following: six years on the Aggravated Robbery count in the Burger King robbery and three years on the firearm specificati on; five years each on the two Kidnapping counts involving the Burger King robbery; six years each on the two Aggravated Robbery counts involving the Penn Station robbery; and five year s on the Kidnapping count involvi ng the Penn Station robbery. The adult court ordered that the three-year sent ence on the firearm specification would be served consecutively to the six-year sentence on the A ggravated Robbery sentence. The remaining sentences were ordered to be se rved concurrently with each other, for a total prison sentence of nine years. {¶ 10} Brookshire appeals from the adult court’ s judgment of conviction and sentence. 5

 III. Brookshire Failed to Establish a Violation of his Right to

Due Process, Right to Equal Pr otection, or the Prohibition Against Cruel and Unusual Punishment {¶ 11} Brookshire’s first three a ssignments of error state: THE JUVENILE COURT ERRED WHEN IT TRANSFERRED DELAQUAN BROOKSHIRE’S CASE TO ADULT COURT BECAUSE THE MANDATORY-TRANSFER PROVISIONS IN R.C. 2152.10(A)(2)(b) AND R.C. 2152.12(A)(1)(b) VIOLATE A CHILD’S RIGHT TO DUE PROCESS AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION; OHIO CONSTITUTION, ARTICLE I, SECTION 16. THE JUVENILE COURT ERRED WHEN IT TRANSFERRED DELAQUAN BROOKSHIRE’S CASE TO ADULT COURT BECAUSE THE MANDATORY-TRANSFER PROVISIONS IN R.C. 2152.10(A)(2)(b) AND R.C. 2152.12(A)(1)(b) VIOLATE A CHILD’S RIGHT TO EQUAL PROTECTION AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTI TUTION; OHIO CONSTITUTION, ARTICLE I, SECTION 2. THE JUVENILE COURT ERRED WHEN IT TRANSFERRED DELAQUAN BROOKSHIRE’S CASE TO ADULT COURT BECAUSE THE MANDATORY-TRANSFER PROVISIONS IN R.C. 2152.10(A)(2)(b) AND R.C. 2152.12(A)(1)(b) VIOLATE THE PROHIBITION AGAINST CRUEL AND 6

 UNUSUAL PUNISHMENTS AS GUARANTEED BY THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION; OHIO CONSTITUTION, ARTICLE I, SECTION 9. {¶ 12} In State v. Brookshire , 2d Dist. Montgomery No. 25853, 2014-Ohio-1971, we addressed identical assignments of error brought by Delaquan’s co -defendant in the Penn Station robbery, LV Lavell Brookshire. For the reasons set forth in that opinion, Delaquan Brookshire’s first three assignments of erro r also are without merit. Id. at ¶ 26-33. See also State v. Anderson , 2d Dist. Montgomery No. 25689, 2014-Ohio-4245, ¶ 62-81. {¶ 13} Brookshire’s First, Second, and Thir d Assignments of Error are overruled.

IV. The Adult Court Committed Plain Error By Failing to Follow The Procedures Set Forth in R.C. 2152.121 {¶ 14} Brookshire’s Fourth Assignment of Error states: THE TRIAL COURT WAS WITHOUT AUTHORITY TO SENTENCE DELAQUAN BROOKSHIRE TO PRISON FOR COUNTS 2, 3, 7, 8, AND 10, BECAUSE THE COURT WAS REQUIRED TO IMPOSE A SENTENCE IN ACCORDANCE WITH R.C. 2152.121 AND REMAND THE MATTER TO THE JUVENILE COURT AFTER IMPOSING A STAYED SENTENCE. {¶ 15} R.C. 2152.10(A) provides that, under certa in circumstances, a juvenile court must transfer cases to adult court for criminal prosecution “as provided in section 2152.12 of the Revised Code.” Specifically, R. C. 2152.10(A)(2)(b) states that a de linquent child is eligible for mandatory transfer when the child is charged w ith a “category two offense,” the child was sixteen 7

 years or older at the time of the commission of the offense, and “[t]he child is alleged to have had a firearm on or about the child’s person * * * and to have displayed the firearm, brandished the firearm, indicated possession of the firearm, or used the firearm to facilitate the commission of the act charged.” Category two offenses incl ude Aggravated Robbery and Kidnapping. R.C. 2152.02(CC). {¶ 16} All of the Aggravated Robbery a nd Kidnapping charges brought against Brookshire in the juvenile cour t included firearm specifications, which made Brooks hire eligible for mandatory transfer to the a dult court. R.C. 2152.10(A)(2)(b). The juvenile court then had to apply R.C. 2152.12(A) to determine whether the cas es had to be transferre d to the adult court. {¶ 17} R.C. 2152.12(A)(1)(b)(ii) provides that the j uvenile court “shall” transfer the case to the adult court if the child was sixteen or seventeen years of age at the time of the act charged, R.C. 2152.10(A)(2)(b) requires the mandatory transfer of the case, and there is probable cause to believe that the child committed the act charged. At the probable cause hearing, the juvenile court found that these conditions were met and tran sferred the two cases to adult court. {¶ 18} But the fact that the juvenile court properly transferred the cases to adult court does not end our analysis. Whether all of th e charges were properly transferred from the juvenile court to the adult court is a differe nt question than whethe r the adult court could subsequently impose sentences on all six of th e offenses. R.C. 2152.121(B) governs what the adult court must do once a juvenile has been f ound guilty of an offense in adult court that previously was transferre d from juvenile court. {¶ 19} R.C. 2152.121(B) provides, in part: If a complaint is filed against a child alleging that the child is a delinquent 8

 child, if the case is transferred pursuant to division (A)(1)(a)(i) or (A)(1)(b)(ii) of section 2152.12 of the Revised C ode, and if the child subse quently is convicted of or pleads guilty to an offense in that case, the sentence to be imposed or disposition to be made of the child shall be determined as follows: (1) The court * * * shall determine wh ether * * * division (A) of section 2152.12 of the Revised Code would have re quired mandatory transfer of the case or division (B) of that section would have allowed discretionary transfer of the

case. (2) If the court in which the child is convicted of or pleads guilty to the offense determines under division (B)(1) of this section that, had a complaint been filed in juvenile court a lleging that the child was a delinquent child for committing an act that would be that offense if committed by an adult, division (A) of section 2152.12 of the Revised Code would not have required mandatory transfer of the case, and division (B) of that section would not have allo wed discretionary transfer of the case, the court shall tran sfer jurisdiction of the case back to the juvenile court that initially transferred the case, the court and all other agencies that have any record of the conviction of the child or the child's guilty plea shall expunge the conviction or guilty plea and all records of it, the conviction or guilty plea shall be considered and treated for a ll purposes other than as provided in this section to have never occurred, the convic tion or guilty plea shall be considered and treated for all purposes other than as provided in this section to have been a delinquent child adjudication of the child, and the juvenile c ourt shall impose one 9

 or more traditional juve nile dispositions upon the child under sections 2152.19 and 2152.20 of the Revised Code. (3) If the court in which the child is convicted of or pleads guilty to the offense determines under division (B)(1) of this section that, had a complaint been filed in juvenile court a lleging that the child was a delinquent child for committing an act that would be that offense if committed by an adult, division (A) of section 2152.12 of the Revised Code would not have required mandatory transfer of the case but division (B) of that section would have allowed discretionary transfer of the case, the court shall determine the sentence it believes should be imposed upon the child under Chapter 2929. of the Revi sed Code, shall impose that sentence upon the child, and shall stay that senten ce pending completion of the procedures specified in this division. Upon imposition and staying of the sentence, the court shall transfer jurisdiction of the case back to the juvenile court that initially transferred the case and the juvenile cour t shall proceed in accordance with this division. * * * (4) If the court in which the child is convicted of or pleads guilty to the offense determines under division (B)(1) of this section that, had a complaint been filed in juvenile court a lleging that the child was a delinquent child for committing an act that would be that offense if committed by an adult, division (A) of section 2152.12 of the Revised Code w ould have required mandatory transfer of the case, the court shall impose sentence upon the child under Chapter 2929. of the Revised Code. 10

 {¶ 20} In summary, if the adult court is faced with a conviction on an offense that would still be a mandatory bindover for the juvenile, then the court should sentence the juvenile on that offense just as it normally would sentence an a dult defendant before it. R.C. 2152.121(B)(4). However, if the juvenile is convicted of an offense that would not be a mandatory bindover for that juvenile but would be a di scretionary bindover, then the adu lt court must “impose” an adult sentence but then stay the sentence and return the case to the juvenile court for further action there. R.C. 2152.121(B)(3). At that point, the juvenile court can ultima tely transfer the case back to the adult system or make a Serious Y outhful Offender disposition along with a traditional juvenile disposition. R.C. 2152.121(B)(3)(a), (b). Finally, if the juvenile is convicted of an offense that would not have been a bindover at all for the juvenile , then the adult court makes no sentence on that offense and returns the case to the juvenile court for further action there. R.C. 2152.121(B)(2). {¶ 21} Ultimately, Brookshire was c onvicted of one offense that would have still been a mandatory bindover for the juvenile – the A ggravated Robbery charge with a firearm specification relating to the Burger King robbe ry. Pursuant to R.C. 2152.121(B)(4), the adult court was authorized to sentence Brookshire as it normally would senten ce an adult defendant before it. Therefore, we find no error in the adult court’s senten ce on the one count of Aggravated Robbery with a firearm specification. {¶ 22} But the remaining five convictions i nvolve Aggravated Robbery and Kidnapping offenses with no firearm specifications. These are offenses that do not app ear to be subject to a mandatory bindover but could be subject to disc retionary bindover. C onsequently, the adult court was required to dete rmine whether these five offenses were subject to mandatory transfer or 11

 discretionary transfer. If they were subject to discretionary transfer, then the adult court must “impose” an adult sentence, but then stay the sent ence and return the case to the juvenile court for further action there. R.C. 2152.121(B)(3). Th e adult court failed to make the required determination, stay the sentence, or return the case to the juvenile court. We conclude that the adult court’s failure to follow the plain la nguage of R.C. 2152.121 constitutes plain error. {¶ 23} The State disagrees and believes the a dult court was not re quired to reverse transfer the five offenses to th e juvenile court. In support of its position, the State cites our prior decision in State v. Washington , 2d Dist. Montgomery No. 20226, 2005-Ohio-6546. In Washington , we were faced with the question of whether a juvenile court must transfer the entire case to the adult court when at least one of the offenses in the case constituted a mandatory transfer offense. We concluded, at ¶ 24, that the entire case must be transferred: None of the provisions c ited above apply to the CCW charge, which is a non-category offense. However, R.C. 2152.12(I) provides that when a “case” is transferred pursuant to division (A) of that section “[t]he transfer abates the jurisdiction of the juvenile court with respect to the de linquent acts alleged in the complaint, and, upon the transfer, all furt her proceedings pertaining to the act charged shall be discontinued in the juve nile court, and the case then shall be within the jurisdiction of the court to which it is transferred as described in division (H) of section 2151.23 of the Re vised Code.” R.C. 2151.23(H) likewise terminates the jurisdiction of the juven ile division after a tr ansfer is ordered. {¶ 24} We further noted that the object of R.C. 2152.12(I) “is judicial economy; to prevent dual proceedings in the two divisions. Presumably, the Gene ral Assembly has found 12

 that the value of judicial econom y in that regard outweighs an y benefit that would otherwise accrue by treating the alleged offender as a juvenile.” Washington at ¶ 25. {¶ 25} But, as we mentioned above, the ques tion of whether an entire case should be transferred from the juvenile court to the adult court is a different question from whether an adult court must transfer back offenses at the time of sentencing, after a single factfinder has heard the evidence and adjudicated the charges. R. C. 2152.121, not R.C. 2152.12, governs the procedure that must be followed at the time of sentenci ng. R.C. 2152.121(A) provides that even after a case is transferred to the a dult court pursuant to R.C. 2152.12, the juvenile court retains jurisdiction to make disposition when re quired under R.C. 2152.121(B). Similarly, R.C. 2151.23(H) provides that the juvenile court does not have jurisdiction to hear or determine the case subsequent to the transfer to the adult court “except as provided in section 2152.121 of the Revised Code.” The General Assembly explained in R.C. 2152.121(B) what the adult court must do at the time of sentencing regarding different types of “offenses.” The adult court must follow the statute. {¶ 26} We acknowledge that the judicial economy benefits we noted in Washington may not be served by the subsequent enactment of R.C. 2152.121, which leads to proceedings in two different divisions of the Mont gomery County Common Pleas Court. But the General Assembly may have decided that the judici al economy served by transferri ng an entire case from juvenile court to adult court at the beginning of the case was subsequently trumped at the time of sentencing by the need to allow the juvenile court to take part in sentencing. In State v. Murphy , 8th Dist. Cuyahoga No. 97459, 2012-Ohio-2924, ¶ 14, th e Eighth District noted the importance of the juvenile court handling the sentencing pursuant to R.C. 2152.121: 13

 The state also contends that R.C. 2152.121 “does not affect sentencing; it is a purely procedural issue concerning wh ich court shall have jurisdiction.” We disagree. The very language of the statute demonstrates that it is a sentencing statute. Moreover, juvenile offenders are generally treated differently than adult offenders because the objectives of the juve nile justice system differ from those of the adult criminal justice system. {¶ 27} The Murphy court noted that the overriding purpos es in felony sentencing are to protect the public from future crime by th e offender and to punish the offender. Id. , quoting R.C. 2929.11(A). On the other hand, the overriding purposes in juvenile dispositions “are to provide for the care, protection and mental and physical development of children * * * , protect the public interest and safety, hold the offender accountable for th e offender’s actions, restore the victim, and rehabilitate the offender.” Murphy at ¶ 15, quoting R.C. 2152.01(A). Also, the juvenile court is instructed to use “a syst em of graduated sancti ons and services.” Id. {¶ 28} The plain language of R.C. 2151.121 required the adult court to transfer five of the six offenses back to the juvenile court. Gi ven the differences in th e purposes of sentencing between adult and juvenile courts, we conclude that the adult court’s failure to do so in this case constitutes plain error. {¶ 29} We acknowledge that, arguably, the tria l court’s error coul d be considered harmless error, because the cour t ordered the terms of the sent ences for the five non-mandatory transfer offenses to be served concurrently with the sentence for the mandatory transfer offense of Aggravated Robbery with a fir earm specification, resulting in an aggregate sentence of nine
years. See State v. Mays , 8th Dist. Cuyahoga No. 100265, 2014-Ohio-3815; State v. Bradford , 14

 5th Dist. Stark No. 2013 CA 00124, 2014-Ohio-904. But we do not agree that the error is harmless. For example, depending on the a dult court’s finding pursuant to R.C. 2152.121(B), Brookshire ultimately could have his convictions and guilty pl eas on the five non-mandatory transfer offenses expunged. R.C. 2151.121(B)(2), (3). Furthermore, if Brookshire seeks and obtains either State post-convic tion relief or federal relief fro m his nine-year sentence on his Aggravated Robbery and firearm specification convictions, then th e particular sentences received on his other five convictions woul d have independent significance. Given the record before us, we conclude that the adult c ourt’s error was not harmless. {¶ 30} Brookshire’s Fourth Assignment of Error is sustained.

V. Brookshire Has Failed to Demonstrate

Ineffective Assistance of Trial Counsel {¶ 31} Brookshire’s Fifth Assignment of Error states: DELAQUAN BROOKSHIRE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION; OHIO CONSTITUTI ON, ARTICLE I, SECTION 10. {¶ 32} A claim of ineffective assi stance of trial counsel require s both a showing that trial counsel’s representation fell be low an objective standard of reasonableness, and that the defendant was prejudiced as a result. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A reviewing court “must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonabl e professional assistance.” Id. at 689. 15

 The prejudice prong requires a finding that there is a reasonable pr obability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different, with a reasonable probability being “a probability sufficient to undermine confidence in the outcome.” Id. at 694. See also State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). {¶ 33} Delaquan contends that his trial counsel was in effective “for failing to object to the constitutionality of the transfer of his case to adult court.” Brief, p. 19. Since we have concluded in Part III, a bove, that the transfer to adult cour t was not unconstitutiona l, we conclude that trial counsel was not ineffective for failing to object on this basis. {¶ 34} Delaquan also contends that his trial counsel “was ineffective for agreeing to a void sentence.” Brief, p. 20. According to De laquan: “Had counsel argued that R.C. 2152.121 required stayed sentences in Counts 2, 3, 7, 8, and 10, the trial court would have sentenced Delaquan in accordance with R.C. 2152.121, and he w ould not currently be serving prison terms for those charges.” Id. We find no prejudice has been demonstrated. {¶ 35} As we found in Part IV, above, the adult court should have followed the mandates of R.C. 2152.121, and made the required deter mination to reverse transfer five of the six offenses to the juvenile court for sentencing . On remand, this error will be corrected by the adult court. Furthermore, because we are a ffirming the adult court’s decision to sentence Brookshire to nine years in prison on the mandatory transfer offense of Aggravated Robbery with a firearm specification, Brookshire w ould currently be in prison even if trial counsel had alerted the adult court that it was mis applying R.C. 2152.121. Consequen tly, Brookshire has failed to show that but for his trial counsel’s errors, “h e would not currently be serving prison terms.” Brief, p. 20. 16

 {¶ 36} The Fifth Assignment of Error is overruled.

VI. Conclusion {¶ 37} Brookshire’s Fourth Assignment of Erro r having been sustained, and his other assignments of error having been overruled, the judgment of the trial court will be Reversed, in part, and Affirmed, in part. The cause is re manded for the adult cour t to make the required determination pursuant to R.C. 2152.121(B)(1), a nd to proceed accordingly, pursuant to R.C. 2152.121(B)(2)-(4).

. . . . . . . . . . . . . FROELICH, P.J., and WELBAUM, J., concur.

Copies mailed to: Mathias H. Heck Andrew T. French Sheryl Trzaska Hon. Michael Tucker