State v. Rosser , 2017 Ohio 5572 ( 2017 )


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  • [Cite as State v. Rosser, 2017-Ohio-5572.]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 104624
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    EMMANUEL L. ROSSER
    DEFENDANT-APPELLANT
    JUDGMENT:
    REVERSED AND REMANDED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-16-603971-A
    BEFORE: Keough, A.J., Kilbane, J., and Blackmon, J.
    RELEASED AND JOURNALIZED: June 29, 2017
    ATTORNEY FOR APPELLANT
    P. Andrew Baker
    11510 Buckeye Road
    Cleveland, Ohio 44104
    ATTORNEYS FOR APPELLEE
    Michael C. O’Malley
    Cuyahoga County Prosecutor
    By: Maxwell Martin
    Assistant Prosecuting Attorney
    The Justice Center, 8th Floor
    1200 Ontario Street
    Cleveland, Ohio 44113
    KATHLEEN ANN KEOUGH, A.J.:
    {¶1} Defendant-appellant, Emmanuel Rosser (“Rosser”), appeals his kidnapping
    conviction. For the reasons that follow, we reverse and remand for further proceedings
    consistent with this decision.
    {¶2} In June 2015, Rosser was initially indicted for attempted rape and kidnapping
    that allegedly occurred on February 20, 1996, when he was 17 years old.                After a
    subsequent complaint was filed in juvenile court in December 2015, Rosser was bound
    over to the general division and reindicted in February 2016 for the same offenses.
    Rosser pleaded not guilty and the case was tried to a jury.1 The jury found Rosser not
    guilty of attempted rape, but guilty of kidnapping.           The court imposed a six-year
    sentence.   Rosser now appeals, raising seven assignments of error, which will be
    addressed out of order and together where appropriate.
    I. Statute of Limitations
    {¶3} Rosser contends in his fifth assignment of error that the trial court erred in
    denying his motion to dismiss based on a statute of limitations violation.
    {¶4} On July 16, 2015, the statute of limitations for an attempted rape prosecution
    increased from 20 years to 25 years.        See R.C. 2901.13(A)(4), 2015 H.B. 6. This
    increase was retroactive provided that the prosecution would not have been barred under
    In the same indictment, Rosser was also charged with offenses that allegedly occurred in
    1
    2000. These offenses were tried to the jury with 1996 offenses. He was acquitted of all the
    charges that arose from the 2000 incident.
    the prior 20-year statute of limitations on July 15, 2015.           See R.C. 2901.13(L)
    (amendments “apply to a violation of [attempted rape] committed prior to the effective
    date of the amendments if prosecution for that violation was not barred under this section
    as it existed on the day prior to the effective date of the amendments”). Therefore, the
    25-year statute of limitations will apply to all offenses that could have been brought under
    the 20-year limitations period on July 15, 2015.
    {¶5} In this case, the indictment against Rosser alleged that he committed the act
    of attempted rape and kidnapping on February 20, 1996. Because the 20-year limitations
    period of February 20, 2016 was after the effective date of 2015 H.B. 6, the 25-year
    statute of limitations applied to the offenses for which Rosser was indicted.
    Accordingly, the state had until February 20, 2021 to commence prosecution against
    Rosser for these offenses.
    {¶6} R.C. 2901.13(F) provides,
    A prosecution is commenced on the date an indictment is returned or an
    information filed, or on the date a lawful arrest without a warrant is made,
    or on the date a warrant, summons, citation, or other process is issued,
    whichever occurs first. A prosecution is not commenced by the return of an
    indictment or the filing of an information unless reasonable diligence is
    exercised to issue and execute process on the same. A prosecution is not
    commenced upon issuance of a warrant, summons, citation, or other
    process, unless reasonable diligence is exercised to execute the same.
    {¶7} A juvenile delinquency proceeding commences upon the filing of a
    complaint. See In re A.G., 
    148 Ohio St. 3d 118
    , 2016-Ohio-3306, 
    69 N.E.3d 646
    , ¶ 26,
    citing R.C. 2152.021; Juv.R. 2(F) and 10 (a delinquency case is not commenced by
    indictment or information, but rather it is the filing of a complaint that invokes the
    juvenile court’s jurisdiction); In re M.W., 
    133 Ohio St. 3d 309
    , 2012-Ohio-4538, 
    978 N.E.2d 164
    , ¶ 21
    {¶8} In this case, Rosser was indicted under Cuyahoga C.P. No. CR-14-583135 in
    the common pleas court on June 3, 2015, for attempted rape and kidnapping. Because
    Rosser was 17 years old when he committed the offenses, a delinquency complaint was
    subsequently filed on December 3, 2015, in the juvenile court alleging the same offenses.
    Following a probable cause and bindover hearing on February 23, 2016, the juvenile
    court transferred the case to the general division of the common pleas court.             On
    February 26, 2016, Rosser was reindicted for attempted rape and kidnapping under
    Cuyahoga C.P. No. 16-603971. The prior 2015 indictment was ultimately dismissed.
    {¶9} Therefore, regardless of which date this court looks at in determining when
    the prosecution against Rosser commenced — June 3, 2015, when he was initially
    indicted, December 3, 2015, when the delinquency complaint was filed against him, or
    February 26, 2016, when Rosser was reindicted after his case was transferred from
    juvenile court — the dates all fall within the relevant 25-year statute of limitations.
    {¶10} Morever, even if the 20-year statute of limitations applied, “‘a superseding
    indictment brought after the statute of limitations has expired is valid so long as the
    original indictment is still pending and was timely and the superseding indictment does
    not broaden or substantially amend the original charges.’”          State v. Ross, 9th Dist.
    Summit No. 26694, 2014-Ohio-2867, ¶ 42, quoting United States v. Italiano, 
    894 F.2d 1280
    , 1282 (11th Cir.1990). Here, the 2016 indictment was a superseding indictment to
    the 2015 indictment because the charges and facts were the same, and the 2015
    indictment was timely filed and still pending when the 2016 indictment was filed.
    Therefore, no statute of limitations violation occurred.
    {¶11} Accordingly, the trial court did not err in denying the motion to dismiss
    based on a statute of limitations violation.       Rosser’s fifth assignment of error is
    overruled.
    II. Effective Assistance of Counsel
    {¶12} In his sixth assignment of error, Rosser contends he was denied effective
    assistance of counsel because counsel failed to move for dismissal of the case due to
    preindictment delay. Additionally, this court ordered briefing on the sua sponte issue of
    whether Rosser was subject to mandatory bindover and if not, whether counsel should
    have filed a motion to dismiss for preindictment delay on that basis.
    {¶13} To establish ineffective assistance of counsel, a defendant must demonstrate
    (1) that counsel’s performance fell below an objective standard of reasonable
    representation and (2) that he was prejudiced by that performance. Strickland v.
    Washington, 
    466 U.S. 668
    , 687-688, 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984). Prejudice
    is established when the defendant demonstrates “a reasonable probability that, but for
    counsel’s unprofessional errors, the result of the proceeding would have been different.
    A reasonable probability is a probability sufficient to undermine confidence in the
    outcome.” Strickland at 694.
    {¶14} The failure to prove either prong of the Strickland two-part test makes it
    unnecessary for a court to consider the other prong. State v. Madrigal, 
    87 Ohio St. 3d 378
    , 388-389, 
    721 N.E.2d 52
    (2000), citing Strickland at 697. “In particular, a court
    need not determine whether counsel’s performance was deficient before examining the
    prejudice suffered by the defendant as a result of the alleged deficiencies. * * * If it is
    easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice
    * * * that course should be followed.” Strickland at 
    id. {¶15} Despite
    the state’s initiation of prosecution within the statutorily defined
    limitations period, an unjustifiable delay between the commission of an offense and an
    indictment can, under certain circumstances, constitute a violation of due process of law
    guaranteed by the federal and state constitutions. State v. Jones, 
    148 Ohio St. 3d 167
    ,
    2016-Ohio-5105, 
    69 N.E.3d 688
    , ¶ 11-12, citing United States v. Marion, 
    404 U.S. 307
    ,
    322, 
    92 S. Ct. 455
    , 
    30 L. Ed. 2d 468
    (1971) and State v. Luck, 
    15 Ohio St. 3d 150
    , 
    472 N.E.2d 1097
    (1984), paragraph two of the syllabus. In Jones, the Ohio Supreme Court
    reaffirmed the burden-shifting framework for analyzing a due-process claim based on
    preindictment delay — the defendant must establish actual prejudice in the delay prior to
    the burden shifting to the state to produce evidence of a justifiable reason for the delay.
    Jones at ¶ 13-14.
    {¶16} In this case, Rosser fails to demonstrate how he was actually prejudiced by
    the state’s delay in bringing the case against him. At best, Rosser speculates that he
    could have asserted an alibi to the offense. However, if Rosser had an alibi for the
    offense, he could have asserted the alibi at trial as a defense. He makes no allegation
    that witnesses were no longer available or that certain evidence was lost or destroyed due
    to the delay in the indictment.     See Jones at ¶ 28, citing Luck, at 157-158 (actual
    prejudice exists when identifiable and relevant missing evidence or unavailable testimony
    would minimize or eliminate the impact of the state’s evidence and bolster the defense).
    Because Rosser has failed to demonstrate how he was actually prejudiced in the
    indictment delay, he has equally failed to demonstrate that he was actually prejudiced by
    his trial counsel’s failure to file a motion to dismiss based on preindictment delay.
    Rosser’s sixth assignment of error is overruled.
    {¶17} Addressing the sua sponte issue raised by this court and briefed in full by the
    parties, we find that counsel was deficient in his performance for failing to file a motion
    to dismiss — not for preindictment delay based on bindover, but rather for the juvenile
    court’s improper transfer to the common pleas court because the juvenile court did not
    conduct an amenability hearing. Because this is a jurisdictional impediment, it can be
    raised at any time, even sua sponte.         State v. Adams, 11th Dist. Trumbull No.
    200-T-0121, 2002-Ohio-7164, ¶ 29, quoting In re Graham, 
    147 Ohio App. 3d 452
    ,
    2002-Ohio-2407, 
    770 N.E.2d 1123
    , ¶ 29 (7th Dist.), citing Fox v. Eaton Corp., 48 Ohio
    St.2d 236, 238, 
    358 N.E.2d 536
    (1976), overruled on other grounds, Manning v. Ohio
    State Library Bd., 
    62 Ohio St. 3d 24
    , 
    577 N.E.2d 650
    (1991), paragraph one of the
    syllabus. (“Even when not raised by either party, the issue of [the juvenile court’s]
    subject matter jurisdiction may be raised sua sponte by the court at any stage of the
    proceedings, including for the first time on appeal.”)
    {¶18} Ohio juvenile courts have exclusive subject matter jurisdiction over cases
    “‘[c]oncerning any child who on or about the date specified in the complaint, indictment,
    or information is alleged * * * to be * * * a delinquent * * * child.’”                   R.C.
    2151.23(A)(1). This jurisdictional scope is limited in R.C. 2151.23(I), which provides:
    If a person under eighteen years of age allegedly commits an act that would
    be a felony if committed by an adult and if the person is not taken into
    custody or apprehended for that act until after the person attains
    twenty-one years of age, the juvenile court does not have jurisdiction to
    hear or determine any portion of the case charging the person with
    committing that act. In those circumstances, divisions (A) and (B) of
    section 2152.12 of the Revised Code do not apply regarding the act, and the
    case charging the person with committing the act shall be a criminal
    prosecution commenced and heard in the appropriate court having
    jurisdiction of the offense as if the person had been eighteen years of age or
    older when the person committed the act. All proceedings pertaining to the
    act shall be within the jurisdiction of the court having jurisdiction of the
    offense, and that court has all the authority and duties in the case that it has
    in other criminal cases in that court.
    (Emphasis added.) See also R.C. 2152.12(J).
    {¶19} R.C. 2152.02(C) explains that a “child” for the purposes of juvenile
    delinquency cases is “a person who is under eighteen years of age, except as otherwise
    provided in divisions (C)(2) to (8) of this section.” As pertinent to the facts of this case,
    R.C. 2152.02(C)(2) provides that
    [s]ubject to division (C)(3) of this section, any person who violates a federal
    or state law or a municipal ordinance prior to attaining eighteen years of age
    shall be deemed a “child” irrespective of that person’s age at the time the
    complaint with respect to that violation is filed or the hearing on the
    complaint is held.
    {¶20} Furthermore, R.C. 2152.02(C)(3) states that
    [a]ny person who, while under eighteen years of age, commits an act that
    would be a felony if committed by an adult and who is not taken into
    custody or apprehended for that act until after the person attains twenty-one
    years of age is not a child in relation to that act.
    {¶21} As this court noted, “R.C. 2151.23(I) is written in the negative, and clearly
    states that a juvenile court is divested of jurisdiction when certain requirements are met.”
    In re H.C., 8th Dist. Cuyahoga No. 102601, 2015-Ohio-3676, ¶ 10.
    [T]hree requirements that must be fulfilled in order for the juvenile court to
    lack jurisdiction under R.C. 2151.23(I): (1) the defendant must have been
    under eighteen years of age at the time of the offense; (2) the alleged
    offense would be a felony if committed by an adult; and (3) the defendant
    must not have been “taken into custody or apprehended” for the offense
    prior to turning twenty-one years of age. In interpreting this statute, the
    Ohio Supreme Court held that the touchstone of determining whether or not
    a juvenile court possesses jurisdiction under the provision was “‘the age of
    the offender upon apprehension.’” State v. Walls, 
    96 Ohio St. 3d 437
    , 442,
    2002-Ohio-5059, 
    775 N.E.2d 829
    . (Emphasis sic.)
    
    Id. {¶22} Accordingly,
    if a defendant had been taken into custody or apprehended for
    a would-be-felony offense prior to turning the age of 21, then arguably the juvenile court
    possesses jurisdiction over the matter.
    {¶23} In this case, Rosser was 17 years old at the time of the offenses, and the
    alleged offenses of attempted rape and kidnapping are both felonies if committed by an
    adult. Therefore, much like in H.C., the only remaining issue as to whether Rosser is a
    “child” is whether Rosser was “taken into custody or apprehended” for the alleged crimes
    prior to turning 21 years old. According to the juvenile record, he was.
    {¶24} First, the transcript of the bindover hearing and subsequent trial is replete
    with evidence that Rosser was identified on the day of the offense by the victim and
    subsequently arrested that evening. Following the arrest and booking process, he was
    released in the custody of his mother. Additionally, the juvenile record reflects that
    Rosser was initially indicted in the Cuyahoga County Common Pleas Court General
    Division. However, subsequently a complaint was filed with the juvenile division. As
    the defense counsel explained to the juvenile court judge,
    This case was actually indicted in an indictment and then it was later
    learned that he was a juvenile and that case law had to be investigated
    whether he was actually charged and who had jurisdiction.
    THE COURT: So they thought at first that he was not arrested and just
    proceeded to indict him?
    [DEFENSE COUNSEL]: Correct. And then it was learned that he was
    arrested so that jurisdiction laid with Juvenile Court.
    (Tr. 79, Juvenile Bindover Hearing Dated February 23, 2016.)
    {¶25} Accordingly, the juvenile court possessed jurisdiction over Rosser and prior
    to transferring jurisdiction to the general division of the common pleas court, the juvenile
    court was required to follow the procedures in R.C. 2152.12.
    {¶26} R.C. 2152.12 governs the juvenile court’s authority to transfer a child to the
    general division of the common pleas court. Subsection (A) governs mandatory bindover
    and subsection (B) governs discretionary bindover. In this case, Rosser was charged
    with attempted rape and kidnapping. These offenses do not subject Rosser to mandatory
    bindover because they are not category one offenses as defined under R.C. 2152.02(AA).
    Although he was charged with kidnapping, which is a category two offense under R.C.
    2152.02(BB), R.C. 2152.10(A)(2) expressly removes kidnapping from offenses that
    would require mandatory bindover.           Accordingly, Rosser was only subject to
    discretionary bindover, which required the trial court to make certain findings prior to
    transferring him to the general division of the common pleas court.
    {¶27} In order to transfer a case to adult court, pursuant to R.C. 2152.12(B), the
    court is required to find (1) that the child was 14 years of age or older at the time of the
    act charged; (2) there is probable cause to believe that the child committed the act
    charged; and (3) after completion of the required investigation under subsection (C) and
    upon consideration of the relevant factors under subsection (D) and (E), the child is not
    amenable to care or rehabilitation with the juvenile system, and the safety of the
    community may require that the child be subject to adult sanctions.
    {¶28} In this case, the juvenile court, prior to transferring Rosser pursuant to R.C.
    2151.12(B), concluded that Rosser was over the age of 14 at the time of the offense, and
    there was probable cause to believe he committed the act charged. However, it failed to
    conduct an amenability hearing as required. While the amenability hearing may have
    been a futile act, the failure to conduct such hearing was a jurisdictional impediment that
    deprived the general division of jurisdiction over the case. Absent a proper bindover
    proceeding in the juvenile court, the common pleas court lacks subject-matter jurisdiction
    over the case and any conviction obtained there is void ab initio. State v. Wilson, 
    73 Ohio St. 3d 40
    , 44, 
    652 N.E.2d 196
    (1995).
    {¶29}    Accordingly, Rosser’s counsel was deficient for failing to request
    dismissal of the indictment because the juvenile court improperly transferred the case to
    the general division. Because the general division did not have jurisdiction over the
    matter, Rosser’s convictions are reversed and the case is remanded to the juvenile court to
    conduct an amenability hearing pursuant to R.C. 2152.12(B).
    {¶30} Having reversed his convictions for lack of jurisdiction, Rosser’s first,
    second, third, fourth, and seventh assignments of error, all of which pertain to the
    evidence presented at trial, are hereby rendered moot.
    {¶31} Judgment reversed and remanded.
    It is ordered that appellant recover from appellee costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this court directing the common
    pleas court to carry this judgment into execution.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
    the Rules of Appellate Procedure.
    KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE
    MARY EILEEN KILBANE, J., and
    PATRICIA ANN BLACKMON, J., CONCUR