"Public safety bed"

2-81 ,1;997 Opinions OAG 97-014· OPINION NO. 97-014 Syllabus: 1. When a juvenile is adjudicated delinquent and committed to the Department of Youth Services for. committing an offense of complicity, pursuant to R.C. 2923.03, the juvenUe Can be. considered a "public safety bed" pur,suant to R.C. 5139.01(A)(13) if commission, of the principal offense would come within the definition of "public safety beds." 2. If th~ charge of a particular offenSe! would invoke the mandatory bindover provisions of R.C. 2151.26, then the charge of complicity in that offense, pursuant to R. C. 2923.03, would also invoke those mandatory bindover provisioUs. To: Geno Natalucci·Persichetti, Director, Ohio Department of Youth Services, Columbus, Ohio By: Betty D. Montgomery, Attorney General, March 31, 1997 . W~have received your request for an opinion on two questions involving the offense of complicjty. You have asked: March 1997 2-82 OAG 97-014 Attorney General 1. When a youth is adjudicated delinquent and committed to the Department of Youth Services for committing an offense of complicity, pursuant to R.C. 2923.03, can that youth be considered a "public safety bed" if commission of the principal offense would come within the definition of "public safety beds"? 2. Can a charge of complicity, pursuant to RC. 2923.03, invoke the mandatory bindover provisions of R.C. 2151.26? In order to answer your questions, we must first ex'amine the offense of complicity. Pursuant to R.C. 2923.03, the offense of complicity consists of soliciting or procuring another person to cOnUnit an offense, aiding or arJ<!tting another person in committing an offense, causing an innocent or irresponsible person to Gommit an offense, or conspiring with another person to commit an offense in violation of R.C. 2923.01, which defines the offense of conspiracy. A necessary element of the offense of complicity is that the actor have the kind of culpability required for the commission of the principal offense. RC. 2923.03(A). Except in cases of attempted crimes, an offense must actually be committed before someone can be convicted as an accomplice, but it is not necessary for a principal offender to be convicted before an accomplice can be convicted. R.C. 2923.03(B)-(C); State v. Graven, 52 Ohio St 2d 112, 369 N.E.2d 1205 (1977). An accomplice can be charged either under the complicity statute or under the primary offense and is liable to prosecution and punishment as if the accomplice were a principal offender. On this point, R.C. 2923.03(F) states: Whoever violates this section is guilty of complicity in the commission of an offense, and shall be prosecuted and punished as if he were a principal offender. A charge of complicity may be stated in terms of this section, or in terms of the principal offense. Ajuvenile who is charged with delinquency is not subject to prosecution and punishment as a criminal, unless the case is transferred to an adult court for criminal prosecution. See R.C. 2151.01; R.C. 2151.011(B)(1); RC. 2151.23(H); RC. 2151.26; R.C. 2151.358(H); In re T.R., 52 Ohio St. 3d 6, 15-16, 556 N.E. 2d 439,448-49, cert. denied, 498 U.S. 958 (1990); R. Juv. Proc. I(B); R Juv. Proc. 30; 1996 Op. Att'y Gen. No. 96-061. Nonetheless, a "delinquent child," by definition, includes a child who violates a law "that would be a crime if committed by an adult." R.C. 2151.02(A); see also R.C. 2151.27; In re Burgess, 13 Ohio App. 3d 374, 469 N.E.2d 967 (Preble County 1984); R. Juv. Proc. 10. Therefore, for purposes of defining and describing offenses upon which a charge of delinquency may be based, the concept of complicity is relevant to juveniles. Let us now turn to your first question, which asks whether a youth who is adjudicated delinquent and committed to the Department of Youth Services for committing an offense of complicity, pursuant to R.C. 2923.03, can be considered a public safety bed. The term "public safety bed" is used to determine how the institutionalization of delinquent youth is funded. The Department of Youth Services is responsible for institutionalizing youth who are adjudicated delinquent for committing acts that would be felonies if committed by an adult. See R.C. 2151.355; R.C. 5139.03-.06. The cost of committing a felony delinquent to the Department of Youth Services is paid by the committing county unless the underlying offense would be 2-83 1997 Opinions considered a public safety bed. See RC. 5139.43. The Department of Youth Services bears the care and custody costs associated with public safety beds.. R.C. 5139.43(B)(2)(a); see also 16 Ohio Admin. Code 5139-65-0S. In order to determine whether a youth who has been adjudicated delinquent for committing an offense of complicity can be considered a "public safety bed," it is necessary to determine the meaning of that term. The statutory definition of "public safety beds" includes several categories of youth. The first category consists of felony delinquents who have been committed to the Department of Youth Services uforthe commission of an act, other than a violation' of [R.C. 2911.01 (aggravated robbery) or 2911.11 (aggravated burglary)], that is a.category one offense or a category two' offense"I and who are in an institution or a community corrections facility.' R.C. 5139.01(A)(13)(a). The second category consists of felony delinquents who, while committed to the Department and in an institution or community corrections facility, are adjudicated delinquent "for haVing committed in that institution or community corrections facility an act that if committed by an adult would be a felony or a misdemeanor.", R.C. 5139.01(A)(13)(b). The third category consists of children between ages twelve and eighteen who are adjudicated delinquent "for having committed acts that if committed by an adult would be II. felony," are in an· institution or community corrections facility, and were committed to the Department by the, juvenile coUrt of a county that has had one-tenth of one per cent or less of the average statewide adjudications for felony delinquents. R.C. 5139.01(A)(13)(c). The fourth category· consists of felony celinquents who, while committed to the Department and in an institution, "commit in that institution an act that if committed by an adult would be a felony," who are serving administrative time under R.C. 5139.04(E) for that act, and who have been institutionalized for the minimum period of time specified in R.C. 2151.355(A)(4) or (5). R.C. 5139.01(A)(13)(d). The fifth category consists of felony delinquents who are serving a three-year period of commitment order imposed by a juvenile court pursuant to R.C. 2151.355(A)(7) "for an act, other than a violation of [R.C. 2911.11 (aggravated burglary)], that would be a category one offense or category two offense if committed by an adult." R.C. 5139.01(A)(13)(e). Some of the categories of "public safety beds" are defined in terms of commission of an Relevant statutory definitions of category one and category two offenses, see RC. 5139.01(A)(18), appear in RC. 2151.26(A), as follows: (1) "Category one offense" means-any of the following: (a) A violation of section 2903.01 [aggravated murder] or 2903.02 [murder] of the Revised Code; (b) A violation ofsection 2923.02 [attempt] of the Revised Code involving an attempt to commit aggravated murder or murder. (2) "Category two offense" means any of the following: (a) A violation of section 2903.03 (voluntary manslaughter], 2905.01 [kidnapping], 2907.02 [rape], 2909.02 [aggravated arson], 2911.01 [aggravated robbery], or 2911.11 [aggravated burglary] of the Revised Code; (b) A violation ofseetion 2903.04 [involuntary manslaughter] ofthe Revised Code that is a felony of the tirst degree; (c) A violation ofsection 2907.12 [felonious sexual penetration, repealed] of the Revised Code as it existed prior to September 3, 1996. March 1997 2-84 OAG97-014 Attorney General act that if committed by an adult would be a felony .or misdemeanor, see R.C,5139,.01(A)(13)(b), (c), (d), and others .refer to the commission of an act that is a category one' or category two offense, see R.C. 5139.01(A)(13)(a), (e). In order to answer your question, it is necessary to determine whether a juvenile who commits an offense of complicity can, in appropriate circumstances,· be considered to have committed a category one or category two offeru;e, or an act that if committed by an adult would be a felony ora misdemeanor. Pursuantto R.C. 2923.03, a charge of complicity may .be brought for the act, with the appropriate 'culpability"of soliciting, procuring, aiding, abetting, conspiring, or causing the commission of: an offense. Complicity in itself is not d/!fined .as a felony .or misdemeanor. Rather, its characterization depends upon the nature of the offense that was solicited, procured, aided, abetted, conspired, or caused. As discussed above, the statutory definition of complicity states that a person who is·guilty of complicity, in the commission of an offense "shall be prosecuted and punished as if he were a principal offender." R.C . .2~23.03(F). The Ohio Supreme Court has construed this language to mean that an' accomplice'"is criminally culpable to the same degree as the principal offender and, in fact, may be presecuted for the principal offense." State v. Moore, 16 Ohio St. 3d 30, 33,476 N :E.2d 355, 357. (1985): Thus, the conviction of an accomplice "is identical in degree and quality to,a conviction of a principal offender under the same section." Id.;see also State v. Graven, 52 Ohio St.2dat 116, 369 N.E.2d 1205 at 1208 (the crime of one charged as an aider and abettor "is equal in status and punishment" to the offense of the principal). 1.n the Moore case, the court found that an accomplice who did not actually hold a gun was subject to enhancement of sentence under R.C. 2929.71(B) for violations that involved the use of firearms, because the accomplice was convicted of a violation of R.C. 2911.01 (aggravated robbery), which was one of the statutes named in the enhancement statute. A similar conclusion was reached under a later version of R.C. 2929.71. State v. Chapman, 21 Ohio St. 3d 41,487 N.E.2d 566 (1986); see also State v. Rust, 14 Ohio App. 3d 314,471 N.E.2d 179 (Clark County 1984) (finding that R.C. 2929.71 did not exempt aiders and abettors from its coverage and that R.C. 2923.03 was not ambiguous in providing that an aider and abettor shall be prosecuted and punished as if he were a principal offender). As discussed in the cases cited above, the basic premise of a complicity offense is that an accomplice is considered to be gUilty of the principal offense to the same extent as the principal offender and is subject to being punished accordingly. See, e.g., State v. Coleman, 37 Ohio St. 3d 286,525 N.E.2d 792, cert. denied, 488 U.S. 900 (1988); State V. Jackson, 90 Ohio App. 3d 702. 630 N.E.2d 414 (Lucas County 1993).2 By statute. a charl!e of comDlicitY may be stated The prosecution and pWlishment of a principal offender and an accomplice may vary in some regards, depending upon the actions and history of the individuals involved. For example, the complicity statute does not provide for the criminal record of the principal offender to be attributed to the accomplice. State v. Jackson, 90 Ohio App. 3d 702, 630 N.E. 2d 414 (Lucas County 1993). Further, where a statute provides that it applies only to persons who have themselves performed a particular act, the complicity provisions do not operate to expand the statute's scope. See State V. Taylor, 66 Ohio 8t. 3d 295, 612 N.E. 2d 316 (1993) (where statute provided for imposition of death penalty in certain circumstances only if "either the offender was the principal offender in the commission of the aggravated murder or, if not the principal offender, committed the aggravated 2 2-85 1997 Opinions OAG97-014 either in terms of the complicity statute "or jn terms of the principal offense." R.C. 2923.03(f). Because acn~rge of complicity, maYb~istated.in terms of the principal offense, a, complicity v;iQlation is equivalent t~a violation oOhe statute setting forth the principalQffense. Hence, an ~t:t of complicity has, the samecharacteI:tization as a felony or misdemeanor that the principal offense has. Further, if violation of-a particular s~tute is a category one offense or a category tw.o offense, then complicity in the violation of mat statute is, correspondingly, a category, one offense or a category two offense. See RIC., 2151.2(i(A); see generally, e.g., :State,,v. Moore; State v. Graven. As used,·.in the statutory definition of "public safety beds," therefore, references to a misdemeapor or,a felony include the offense of complicity in the commissiQn of a misd~mean()r or a felony. In'addition, references to a category one offense or a category two offense include the offense of complicity in a violation that is _defmed as a category one offense or a category two offense;. See note -1, supra. , A juvenile who commits an offense of complicity commits an act that would be a crime ifcommitted ):>y an adult... The offense has the same characterization - as. felony, misdemeanor, category one,offeJ,lse, or category two offense - as the principal offense. Consequently, when a juvenile is adjudicated delinquent and committed to the Department of Youth Services for committing an offense of complicity, pursuant to RC. 2923.03, the juvenile can be considered a "public safety bed" pursuant to R.C. 5139.01(A)(13) if commission of the principal offense would come within the d,etinition of "public safety beds." Let us now.consid~r your second question, which asks whether a charge of complicity, pursuant toR.C. 2923,.03,.can.-invdke tbe;mandatory bindover provisions ofRC. 2151.26. The mandatory bindover provisions of R;C.:215L26 require that, after a complaint has been filed "alleging that a child is a delinquent child for committing an act that would be an offense if committed by. ,an adult," the court must transfer the case for criminal prosecution of the child if the child .was at leastfourteen: at the time of the act charged, if there is probable cause to believe that the -child co~tted the act charged, and if one or more other specified criteria are satisfied. RC. 2151.26(B). One of the specified criteria is that a previous case involving the child was transferred for criminal prosecution and the child was convicted of or pleaded guilty to a felony in that case. RC. 2151.26(B)(1). Another is that the child is domiciled in another state and, if the act charged had been committed in that state, the child would be subject to criminal prosecution as an adult under the law of that state without the need for a transfer of jurisdiction from a noncriminal court. R.C. 2151.26(B)(2). A third criterion is that the act charged is a category one offense, and either the child was at least sixteen or the child previously was adjudicated a delinquent child for committing a category one or category two offense and was committed to the legal custody of the Department of Youth Services upon the basis of that adjudication. R.C. 2151.26(B)(3). The fourth criterion is that the act charged is a category two murder with prior calculation and design," R.C. 2929.04(A)(7), the complicity statute did not operate to include as the principal offender an accomplice who was not the actual kifler, although on proper facts the accomplice could be subject to the death penalty if he was not the principal offender but committed the murder with prior calculation and design); see also State v. Penix, 32 Ohio St. 3d 369, 513 N.E.2d 744 (1987). March 1997 OAG 97-014 Attorney General 2-86 offense (other than a violation of RC. 2905.01(kidnapping», the child was at least sixteen, and either the child previously was adjudicated a delinquent child for committing a category one or category two offense and was cOInmitted to the legal custody of the Department upon the basis of that adjudication or the child "is alleged to have had a firearm on or about the child's person or under the'child's control while committing the act charged 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." RC.2151.26(B)(4). In order to determine whether a charge of complicity can invoke the mandatory bindover provisions of RC. 2i'51.26, it is necessary to determine whether a charge of complicity can come within any of the specified criteria. A charge of complicity is not designated as a category one or category two offense. As discussed above, a charge of complicity may be stated either in terms of RC. 2923.03 or in terms of the principal offense. Hence, a charge of complicity is equivalent to a charge of the principal offense. A charge of complicity is a category one offense when the principal offense is a category one offense, and it is a category two offense when the principal offense is a category two offense. Therefore, if the charge of a particular offense would invoke the mandatory bindover provisions ofRC. 2151.26, then the charge of complicity in that offense, pursuant to RC. 2923.03, would also invoke those mandatory bindover provisions. For the reasons discussed above, it is my opinion, and you are advised, as follows: 1. When a juvenile is adjudicated delinquent, and coIilmitted to the Department of Youth Services for committing an offense of complicity, pursuant to RC. 2923.03, the juvenile can be consider.ed a "public safety bed" pursuant to R.C. 5139.01(A)(13) if commiss'ton of the principal offense would come within the definition of "public safety beds." 2. If the charge of a particular' offe:" would invoke the mandatory bindover provisions of RC. 2151.26, then me charge of complicity in that offense, pursuant to RC. 2923.03, would also invoke those mandatory bindover provisions.