In re J.P. ( 2022 )

[Cite as In re J.P., 2022-Ohio-539.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: J.P. : APPEAL NO. C-210388
TRIAL NO. 21-1175
:
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: February 25, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellant,
Raymond T. Faller, Hamilton County Public Defender, Andrew Hakala-Finch,
Assistant Public Defender, and Jessica Moss, Assistant Public Defender, for
Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} The state of Ohio appeals the juvenile court’s judgment dismissing an
indictment alleging that J.P. was a serious youthful offender (“SYO”). For the
reasons discussed below, we affirm the judgment of the trial court.
Factual Background
{¶2} On April 20, 2021, a complaint was filed against 13-year-old J.P. for
murder, a felony of the first or second degree if committed by an adult. The
complaint did not request an SYO dispositional sentence, and the state did not file a
notice of intent to seek an SYO dispositional sentence within 20 days of J.P.’s first
hearing.
{¶3} During a pretrial hearing on June 2, 2021, the state indicated that it
would be seeking an SYO indictment, and eight days later, the grand jury returned an
SYO indictment. J.P. moved to dismiss the indictment, arguing that the state did not
meet the notice or timing requirement under R.C. 2152.13(A)(4) to seek an SYO
dispositional sentence. The state argued that, under R.C. 2152.13(A)(1), it may
obtain an SYO indictment at any time, and therefore, the requirements of R.C.
2152.13(A)(4) were inapplicable.
{¶4} The juvenile court granted the motion, finding that because the initial
complaint did not seek an SYO specification, the state was required to comply with
the 20-day written notice requirement set forth in R.C. 2152.13(A)(4). The juvenile
court dismissed the indictment reasoning that the state failed to comply with any of
the statutory processes set forth in R.C. 2152.13(A)(1)-(4) to seek an SYO
dispositional sentence. The state appealed.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} We ordered supplemental briefing and asked the parties to address: (1)
whether a state’s appeal of right under R.C. 2945.67 from an order dismissing all or
part of an indictment, requires the order to comply with the R.C. 2505.02
requirements to be final and (2) whether the order was immediately appealable as a
provisional remedy under R.C. 2505.02(B)(4).
Final Appealable Order
{¶6} The Ohio Constitution grants the courts of appeals “such jurisdiction
as may be provided by law” to review “final orders” rendered by inferior courts. Ohio
Constitution, Article IV, Section 3(B)(2). “R.C. 2505.02 helps fill in the ‘provided by
law’ part of that jurisdictional grant by setting forth a definition of what constitutes a
final order.” State v. Glenn, Slip Opinion No. 2021-Ohio-3369, ¶ 9. Under R.C.
2505.02(B)(4), an appellate court has jurisdiction to review, affirm, modify, or
reverse an “order that grants or denies a provisional remedy” when both of the
following circumstances are satisfied:
(a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor of
the appealing party with respect to the provisional remedy.
(b) The appealing party would not be afforded a meaningful or
effective remedy by an appeal following final judgment as to all
proceedings, issues, claims, and parties in the action.
{¶7} R.C. 2945.67(A), which outlines the circumstances under which the
state may prosecute an appeal in a delinquency matter, states: “A prosecuting
attorney * * * may appeal as a matter of right * * * any decision of a juvenile court in
a delinquency case, which decision grants a motion to dismiss all or any part of an
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OHIO FIRST DISTRICT COURT OF APPEALS
indictment, complaint, or information * * *.” Thus, the state has the right to appeal
the order dismissing the SYO indictment.
{¶8} “Whether a state’s appeal as a matter of right must also be taken from
an order that is final and appealable has not been consistently answered in Ohio.” In
re D.M.S., 2d Dist. Montgomery No. 28783, 2020-Ohio-7028, ¶ 13, citing Painter &
Pollis, Ohio Appellate Practice, Section 2:25 (2019) (“The extent to which the State
must establish that the order on appeal is final under R.C. 2505.02, in addition to
meeting the requirements for an appeal as a matter of right under R.C. 2945.67(A),
has been the subject of some confusion in the courts.”). As the Second District Court
of Appeals articulated, “the law in Ohio appears unsettled as to whether an order that
the State may appeal as a matter of right under R.C. 2945.67(A) must also separately
meet the definition of a final appealable order in R.C. 2505.02(B).” Id. at ¶ 16.
However, the Second District declined to resolve that “interesting jurisdictional
quandary” because it determined that the order was a final order as defined by R.C.
2505.02(B)(4). Id. We too decline to address the issue because we find that the
order dismissing the SYO indictment is a final order under R.C. 2505.02(B)(4).
{¶9} We agree with the parties that the dismissal of an SYO indictment is a
proceeding that is ancillary to the action because the underlying action is the juvenile
adjudication, and the dismissal of the SYO indictment determined the action with
respect to the provisional remedy and prevented a judgment in the state’s favor.
Therefore, we must determine whether the state would be afforded a meaningful or
effective remedy by an appeal following final judgment in the case.
{¶10} Serious youthful offenders are both entitled and subject to a blend of
juvenile and adult court processes and procedures. Once a child is indicted, “the
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OHIO FIRST DISTRICT COURT OF APPEALS
child is entitled to an open and speedy trial by jury in juvenile court” and “the same
right to bail as an adult.” R.C. 2152.13(C)(1). Additionally, “all provisions of Title
XXIX of the Revised Code and the Criminal Rules shall apply in the case and to the
child.”
{¶11} Juveniles subject to delinquency proceedings are also protected from
double jeopardy by both the federal and state constitutions. See In re A.G., 148 Ohio
St.3d 118, 2016-Ohio-3306, 69 N.E.3d 646, ¶ 9. The Double Jeopardy Clause
protects against “a second prosecution for the same offense after conviction.” Id. at ¶
8. “Noting that there ‘is little to distinguish’ an adjudicatory hearing in a juvenile-
delinquency case from a traditional criminal prosecution, the Supreme Court of the
United States has held that jeopardy attaches during adjudicatory hearings.” Id. at ¶
9, citing Breed v. Jones, 421 U.S. 519, 530-531, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975).
“In Breed, the court determined that jeopardy attaches in a delinquency proceeding
when the juvenile court begins to hear evidence as the trier of fact.” (Citations
omitted.) In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E. 2d 629, ¶ 27.
{¶12} Relying on Breed, the Ohio Supreme Court held, in In re A.J.S., that a
juvenile court order denying a motion for mandatory transfer prevents the state from
obtaining a meaningful or effective remedy by way of appeal at the conclusion of the
proceedings because “double jeopardy attaches once the adjudicatory phase of the
delinquency proceedings commences.” Id. at ¶ 28. “Thus, a juvenile court’s decision
denying a motion for mandatory bindover satisfies the test for determining whether
the denial of a provisional remedy constitutes a final appealable order as set forth in
R.C. 2505.02(B)(4).” Id.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} That rationale applies here. The juvenile court’s order dismissing the
SYO indictment prevents the state from a meaningful remedy by an appeal following
an adjudication and disposition. See id. Therefore, the order is a final appealable
order as set forth in R.C. 2505.02(B)(4).
Standard of Review
{¶14} In its sole assignment of error, the state contends that the juvenile
court erred in dismissing the indictment because it obtained the SYO indictment
pursuant to R.C. 2152.13(A)(1), rendering the notice requirements of R.C.
2152.13(A)(4) inapplicable.
{¶15} An appellate court reviews a juvenile court’s decision on a motion to
dismiss an indictment under a de novo standard of review. See In re J.B., 12th Dist.
Butler No. CA2004-09-226, 2005-Ohio-7029, ¶ 15. “De novo review requires an
independent review of the trial court’s decision without any deference to the trial
court’s determination.” In re E.S., 2020-Ohio-1029, 152 N.E.3d 1213, ¶ 8 (8th Dist.).
Statutory Process to Obtain an SYO Indictment
{¶16} In order to impose an SYO dispositional sentence, a prosecuting
attorney must comply with R.C. 2152.13(A) to initiate the process. R.C. 2152.13(A).
Under R.C. 2152.13(A), a prosecutor may initiate the process in one of four ways:
(1) Obtaining an indictment of the child as a serious youthful offender;
(2) The child waives the right to indictment, charging the child in a bill
of information as a serious youthful offender;
(3) Until an indictment or information is obtained, requesting a
serious youthful offender dispositional sentence in the original
complaint alleging that the child is a delinquent child;
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OHIO FIRST DISTRICT COURT OF APPEALS
(4) Until an indictment or information is obtained, if the original
complaint does not request a serious youthful offender dispositional
sentence, filing with the juvenile court a written notice of intent to seek
a serious youthful offender dispositional sentence within twenty days
after the later of the following, unless the time is extended by the
juvenile court for good cause shown:
(a) The date of the child’s first juvenile court hearing
regarding the complaint;
(b) The date the juvenile court determines not to
transfer the case under section 2152.12 of the Revised
Code.
{¶17} The following facts are not in dispute: (1) the initial complaint did not
seek an SYO disposition; (2) J.P.’s first court appearance occurred on April 21, 2021;
(3) the state did not file a written notice of intent to seek an SYO dispositional
sentence within 20 days of J.P.’s initial court hearing; and (4) the indictment
charging J.P. as a serious youthful offender was obtained outside the 20-day window
for notice.
{¶18} The state argues that the prosecutor may obtain an indictment of a
juvenile as an SYO at any time under R.C. 2152.13(A)(1) without complying with the
20-day notice and time requirements set forth in R.C. 2152.13(A)(4). In support of
this argument, the state cites to In re J.B., 12th Dist. Butler No. CA2004-09-226,
2005-Ohio-7029, a case with identical facts, which held that when the state exercises
its discretion to seek an indictment under R.C. 2152.13(A)(1), the notice and time
constraints contained in R.C. 2152.13(A)(4) are inapplicable. Id. at ¶ 27. In reaching
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OHIO FIRST DISTRICT COURT OF APPEALS
this conclusion, the Twelfth District Court of Appeals determined that “nothing in
R.C. 2152.021 or R.C. 2152.13 prohibits a prosecutor from initiating serious youthful
offender proceedings via an indictment when a complaint has previously been filed.”
Id.
{¶19} The state acknowledges that the Eighth District Court of Appeals
rejected the Twelfth District’s analysis and concluded that “because the state filed a
complaint in the juvenile court prior to obtaining an indictment, the state was
required to initiate SYO proceedings in accordance with R.C. 2152.13(A)(3) and (4).”
In re K.A., 2018-Ohio-4599, 125 N.E.3d 212, ¶ 17 (8th Dist.). The court determined
that any other determination would allow the state “to ‘initiate’ the process under
(A)(4) and then yet again ‘initiate’ the process under (A)(1), (2), or (3), if (A)(4) failed
in any regard” and “render divisions (A)(3), (A)(4) and (B) of R.C. 2152.13
superfluous.” Id. at ¶ 15, 17.
{¶20} The Eighth District noted that the J.B. court relied solely on the
language contained in R.C. 2152.13(A) without considering R.C. 2152.13(C)(1). See
In re D.S., 8th Dist. Cuyahoga No. 97757, 2012-Ohio-2213, ¶ 15; In re T.S., 2018-
Ohio-3680, 108 N.E.3d 1287, ¶ 12 (8th Dist.); In re R.G., 8th Dist. Cuyahoga No.
107081, 2018-Ohio-4517, ¶ 13; In re E.S., 2020-Ohio-1029, 152 N.E.3d 1213, ¶ 14
(8th Dist.). R.C. 2152.13(C)(1) grants serious youthful offenders the right to a speedy
trial which begins on whichever of the following dates is applicable:
(a) If the child is indicted or charged by information, on the date of the
filing of the indictment or information.
(b) If the child is charged by an original complaint that requests a
serious youthful offender dispositional sentence, on the date of the
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filing of the complaint.
(c) If the child is not charged by an original complaint that requests a
serious youthful offender dispositional sentence, on the date that the
prosecuting attorney files the written notice of intent to seek a serious
youthful offender dispositional sentence.
{¶21} When the state does not request an SYO dispositional sentence in the
original complaint, speedy-trial time does not begin until the prosecutor files the
written notice of intent. As the Eighth District explained:
In other words, when the state brings a complaint that does not
initially include a SYO specification but instead later provides notice of
its intent to seek an SYO disposition pursuant to R.C. 2152.13(A)(4),
the child’s speedy trial right attaches at the date the written notice is
provided rather than the date that the prosecutor subsequently obtains
an indictment. The state’s proposed interpretation of the statute,
whereby it would not be bound by the notice requirements of R.C.
2152.13(A)(4), would contradict the plain terminology of R.C.
2152.13(C)(1)(c) and create a loophole for circumventing the speedy
trial right set forth therein.
In re T.S. at ¶ 11; In re R.G. at ¶ 12, quoting In re T.S. at ¶ 11.
{¶22} This interpretation is supported by R.C. 2152.021(A) which sets forth
the following four procedures when the state wishes to seek an SYO dispositional
sentence:
the prosecuting attorney of the county in which the alleged
delinquency occurs may initiate a case in the juvenile court of the
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OHIO FIRST DISTRICT COURT OF APPEALS
county by presenting the case to a grand jury for indictment, by
charging the child in a bill of information as a serious youthful
offender pursuant to section 2152.13 of the Revised Code, by
requesting a serious youthful offender dispositional sentence in the
original complaint alleging that the child is a delinquent child, or by
filing with the juvenile court a written notice of intent to seek a serious
youthful offender dispositional sentence.
These four options mirror the four options set forth in R.C. 2152.13(A) to initiate a
case when the prosecutor seeks to obtain an SYO dispositional sentence.
{¶23} Here, the state did not initiate the case by presenting an indictment or
a bill of information or by filing an original complaint that requested an SYO
dispositional sentence. This case was initiated when the state filed an original
complaint that did not request an SYO dispositional sentence. Therefore, to initiate
the process to obtain an SYO dispositional sentence, the state was required to file a
written notice of intent within 20 days of J.P.’s initial appearance to seek an SYO
dispositional sentence under both R.C. 2152.021(A) and 2152.13(A)(4).
{¶24} Moreover, the rules of juvenile procedure further support the
conclusion that the state must provide a timely notice of intent to seek an SYO
dispositional sentence when the original complaint does not request it. Juv.R. 22(E)
requires that a motion to determine a child’s eligibility for an SYO disposition, which
constitutes a notice of intent to pursue an SYO disposition, be filed by 20 days after
the child’s initial appearance.
{¶25} Juv.R. 29(A) requires the adjudicatory hearing to be scheduled within
15 days if the complaint does not request an SYO dispositional sentence. The
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OHIO FIRST DISTRICT COURT OF APPEALS
adjudicatory hearing may be continued if the prosecutor files “either a notice of
intent to pursue or a statement of an interest in pursuing a serious youthful offender
sentence.” Juv.R. 29(A). The 2001 staff notes to Juv.R. 29(A) explain that the rule
was amended to conform to R.C. 2152.13, which provides that “the prosecuting
attorney has twenty days after a child’s initial appearance in juvenile court within
which to file a notice of intent to pursue a serious youthful offender dispositional
sentence.” The amended rule “grants [the state] a twenty-day time period for
making the charging decision.”
{¶26} Thus, the juvenile rules recognize that the state has 20 days to file a
notice of intent to pursue an SYO disposition when the original complaint did not
seek an SYO disposition.
{¶27} In this case, the state did not request an SYO dispositional sentence in
the complaint, or file a timely notice of its intent to do so as required by R.C.
2152.13(A)(4). Therefore, the juvenile court did not err in dismissing the indictment,
and we overrule the state’s sole assignment of error.
Conclusion
{¶28} Finding the state’s assignment of error to be without merit, we affirm
the judgment of the juvenile court.
Judgment affirmed.
CROUSE and BOCK, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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