In re B.J.G. ( 2010 )

[Cite as In re B.J.G., 2010-Ohio-5195.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
IN THE MATTER OF B.J.G. :
Adjudicated Delinquent : Case No. 10CA894
Child and Serious Youthful Offender. :
DECISION AND JUDGMENT ENTRY
:
_________________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: Timothy Young, Ohio Public Defender, and Amanda
J. Powell, Assistant Ohio Public Defender, 250 East
Broad Street, Ste. 1400, Columbus, Ohio 43215
COUNSEL FOR APPELLEE: Chris Van Harlingen, Special Prosecuting Attorney,
and Aaron Haslam, Adams County Prosecuting
Attorney, 110 West Main Street, Room 112, West
Union, Ohio 45693
_______________________________________________________________
CIVIL APPEAL FROM COMMON PLEAS COURT, JUVENILE DIVISION
DATE JOURNALIZED: 10-18-10
ABELE, J.
{¶ 1} This is an appeal from an Adams County Common Pleas Court, Juvenile
Division, delinquency adjudication. B.J.G., appellant herein, was pursuant to R.C.
2152.02, found to be a delinquent child for having committed the offenses of (1) rape in
violation of R.C. 2907.02 (A)(1)(b); and (2) attempted rape in violation of R.C.
2923.02(A) & 2907.02(A)(1)(b).
{¶ 2} Appellant assigns the following errors for review:
ADAMS, 10CA894 2
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED WHEN IT ORDERED B.J.G.
TO BE SUBJECT TO COMMUNITY NOTIFICATION.”
SECOND ASSIGNMENT OF ERROR:
“B.J.G. WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL WHEN TRIAL COUNSEL FAILED TO OBJECT
TO THE IMPOSITION OF COMMUNITY NOTIFICATION.”
THIRD ASSIGNMENT OF ERROR:
“THE TRIAL COURT ERRED WHEN IT CLASSIFIED B.J.G.
AS A PUBLIC REGISTRY-QUALIFIED JUVENILE
OFFENDER REGISTRANT, AS R.C. 2152.86 VIOLATES
HIS RIGHT TO DUE PROCESS AS GUARANTEED BY
THE FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND ARTICLE I, SECTION 16
OF THE OHIO CONSTITUTION.”
FOURTH ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED WHEN IT CLASSIFIED B.J.G.
AS A PUBLIC REGISTRY-QUALIFIED JUVENILE
OFFENDER REGISTRANT AS R.C. 2152.86 VIOLATES
HIS RIGHT TO EQUAL PROTECTION UNDER THE LAW.”
FIFTH ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED WHEN IT CLASSIFIED B.J.G.
AS A PUBLIC REGISTRY QUALIFIED JUVENILE
OFFENDER REGISTRANT, IN VIOLATION OF THE
PROHIBITION AGAINST CRUEL AND UNUSUAL
PUNISHMENTS.”
{¶ 3} B.J.G. was seventeen years old during the summer of 2008 when his
1
father’s girlfriend observed him on a couch with her five year old son. The five year
1
Appellant’s date of birth is September 26, 1990. Thus, although he was an
adult at the time of the trial court proceedings, he was a juvenile at the time he
committed the offenses.
ADAMS, 10CA894 3
old’s head was in B.J.G.’s lap and the older boy moved his head up and down in what
appeared to be fellatio. Adams County Children Services subsequently received a
referral of possible sexual abuse.
{¶ 4} The Adams County Grand Jury returned an indictment, with serious
youthful offender specifications, that charged B.J.G. with three counts of rape and one
count of attempted rape. Not guilty pleas were entered on his behalf.
{¶ 5} On February 10, 2010, B.J.G. entered an admission to counts I (rape) and
IV(attempted rape). The trial court accepted those pleas and, in an entry filed that day,
adjudicated him a delinquent child. The following month, the matter came on for
hearing at which time B.J.G. was adjudicated a Tier III sex offender and sentenced to
the Ohio Department of Youth Services for a minimum period of one year, not to
exceed his twenty-first birthday. As a serious youthful offender, the court also
sentenced B.J.G. (1) to life imprisonment, with parole eligibility after ten years, on the
rape count and (2) eight years imprisonment on the attempted rape count. The court
ordered the sentences to be served concurrently with one another.2 This appeal
followed.
{¶ 6} Before we address the merits of the assignments of error, however, we
must first address a threshold jurisdictional issue. Ohio courts of appeals have
appellate jurisdiction over “final appealable orders.” Section 3(B)(2), Article IV of the
Ohio Constitution. If a judgment is not a final order, then an appellate court has no
2
We believe that the trial court intended to order that the sentences be served
concurrently. We note, however, that the trial court's language is somewhat unclear
("sentences to be served concurrent with or consecutively to, each other.").
ADAMS, 10CA894 4
jurisdiction to consider it and the appeal must be dismissed. See Davison v. Rini
(1996), 115 Ohio App. 3d 688, 692, 686 N.E.2d 278; Prod. Credit Assn. v. Hedges, 87
Ohio Ap.3d 207, 210, fn. 2, 621 N.E.2d 1360. Furthermore, even if the parties do not
raise jurisdictional issues on appeal, courts must raise them sua sponte once they
become apparent. See In re Murray (1990), 52 Ohio St. 3d 155, 159-160, 556 N.E.2d
1169, at fn. 2; Whitaker-Merrell v. Geupel Co. (1972), 29 Ohio St. 2d 184, 186, 280
N.E.2d 922.
{¶ 7} In the case sub judice, the jurisdictional problem at issue is that the
second and third counts of the indictment have not been resolved. The Juvenile Court
specified in its February 10, 2010 “Change of Plea and Judgment Entry” that, after
sentencing, the State would dismiss those counts. We find no such dismissal in the
record, however.
{¶ 8} When an indictment count is unresolved and still pending, there is no
final, appealable order. State v. Wyant, Scioto App. No. 08CA3264, 2009-Ohio-5200, at
¶10; State v. Rothe, Fairfield App. No. 2008CA44, 2009-Ohio-1852, at ¶10; State v.
Goodwin, Summit App. No. 23337, 2007-Ohio-2343, at ¶13. Thus, until such time as
counts II & III of the indictment are resolved, we have no jurisdiction to consider this
matter and this appeal is hereby dismissed.
APPEAL DISMISSED.
ADAMS, 10CA894 5
JUDGMENT ENTRY
It is ordered that the appeal be dismissed and that appellee recover of appellant
the 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 Adams
County Common Pleas Court, Juvenile Division, to carry this judgment into execution.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of
ADAMS, 10CA894 6
the Rules of Appellate Procedure.
Harsha, J. & Kline, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry
and the time period for further appeal commences from the date of filing with the clerk.