State v. Taylor , 2017 Ohio 8066 ( 2017 )

[Cite as State v. Taylor, 2017-Ohio-8066.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105322
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
LEON C. TAYLOR
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-590843-A
BEFORE: Stewart, J., McCormack, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: October 5, 2017
ATTORNEYS FOR APPELLANT
Timothy Young
State Public Defender
Brooke M. Burns
Assistant State Public Defender
250 East Broad Street, Suite 1400
Columbus, OH 43215
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
Daniel T. Van
Frank Romeo Zeleznikar
Assistant County Prosecutors
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶1} In 2000, defendant-appellant Leon Taylor, then 17 years of age, had what his
12-year-old victim described as “consensual” sexual intercourse with her. The victim
identified Taylor to the police, and vaginal and anal swabs were taken from her, but the
police did not further pursue the investigation — it appeared that the families of both
Taylor and the victim desired to resolve the matter privately. The swabs were tested 14
years later, and both the vaginal and anal swabs contained a positive match with Taylor’s
DNA. This caused the state to indict Taylor on counts of rape and kidnapping. He
subsequently pleaded guilty to sexual battery and was sentenced to three years in prison.
One year later, Taylor filed a motion to vacate his conviction on grounds that the general
division of the court of common pleas lacked jurisdiction over him because he was only
17 years of age when he committed the violation and therefore under the jurisdiction of
the juvenile division. The court denied the motion to vacate the conviction without
opinion. This appeal followed.
{¶2} The juvenile court has exclusive jurisdiction over a child (any person who is
under 18 years of age) who is alleged to be delinquent for having violated any law that
would be an offense if committed by an adult. See R.C. 2151.23(A)(1) and 2152.02(E)(1).
A person is deemed to be 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.”
R.C. 2152.02(C)(2). In no event, however, can a person be adjudicated in juvenile court
after a person has turned 21 years of age: “[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.” R.C. 2152.02(C)(3).
{¶3} This point is underscored by R.C. 2151.23(I):
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.
{¶4} We have held that R.C. 2151.23(I) contains three requirements for divesting
the juvenile court of jurisdiction:
(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.
(Emphasis deleted.) In re H.C., 8th Dist. Cuyahoga No. 102601, 2015-Ohio-3676, ¶ 10.
{¶5} There is no question that Taylor was under the age of 18 at the time he
committed the offense and that the offense was one that, if committed by an adult, would
be a felony. Taylor’s motion to vacate his conviction contested only whether he was
“taken into custody or apprehended” for the offense prior to turning 21 years of age.
Citing our acknowledgment that there is little precedent on the issue of what constitutes
being “apprehended,” State v. Lindstrom, 8th Dist. Cuyahoga No. 96653,
2011-Ohio-6755, ¶ 14, Taylor maintains that we should use the word “apprehend” in the
sense of “perceiving” or “being aware.” Relying on this meaning of the word, he
maintains that the police, with the information available at the time he committed the
offense, were aware of his identity and a delinquency case against him was “possible.”
He thus argues that the juvenile division had exclusive jurisdiction over the matter.
{¶6} This case has a very troubling set of facts: at all times, the police were aware
that the victim named Taylor as the person who engaged in sexual conduct with her and
Taylor, from the beginning, admitted as much; yet he was not arrested. The state
represented to the court that a follow-up report by a police detective assigned to
investigate the case in 2000 stated that the Cuyahoga County Department of Children and
Family Services had been “active” with the case and that the police would be contacted
“should there be any further need for police involvement[.]” The police inaction is
mystifying — this was a case of statutory rape given that the victim was 12 years old.
See R.C. 2907.02(A)(1)(b). The state acknowledged this inaction during the plea
proceedings: the assistant prosecuting attorney told the court that “there’s not a real
good reason” for the delay in prosecuting Taylor and that “[t]he police did not [do] much
investigation on this case.” The assistant prosecuting attorney told the court that the rape
kit was one of thousands that were forced to be tested and that “[i]t’s no surprise that the
defendant’s DNA is in that rape kit. * * * It’s no surprise because the police did know.”
{¶7} In light of all the circumstances surrounding this case, it appears that an
earnest consideration of prosecutorial discretion would have yielded a result different
from the one presented here. At all times, the authorities knew that Taylor was the one
and only named suspect in this case; he admitted to engaging in sexual conduct with the
victim; Taylor’s whereabouts were never unknown; and subsequent to the offense at issue
here, Taylor was charged for, and convicted of, other offenses prior to turning 21.
Nevertheless, we have no choice but to find that the general division of the common pleas
court had jurisdiction over this matter. We reject Taylor’s argument that he had been
taken into custody or apprehended for purposes of R.C. 2152.02(C)(3) when he had been
identified as the offender. There is no question that Taylor had not been arrested or
otherwise taken into custody at the time the police investigated the allegations made
against him. Taylor argues that the police “apprehended him because they had ‘become
aware’ of Leon, had ‘perceived’ Leon, and had an ‘understanding’ and ‘grasp’ of Leon
and his whereabouts at the time of the alleged offense — and they had positively
identified him in 2000.”
{¶8} Taylor’s suggested meaning of the word “apprehended” — to perceive in the
sense of becoming aware of something — is inconsistent with the intent behind R.C.
2151.23(I). The statute speaks in terms of a person who commits an act but is not “taken
into custody” or “apprehended for” that act until after that person attains 21 years of age.
Read in context, the phrases “apprehended for” and “taken into custody” both indicate a
form of detention as opposed to a mere thought or perception that a person named as the
perpetrator of an offense could be arrested or detained. Using the phrase “apprehended
for” as being synonymous with detention, we agree that Taylor was not apprehended for
his acts before turning 21 years of age. The general division of the common pleas court
thus had jurisdiction over the matter.
{¶9} Taylor also argues that he was prejudiced by the state’s failure to prosecute
this case in 2000 because he lost the opportunity for an amenability determination in
juvenile court, would have been subject to a different sexual offender classification, and
may have been eligible to have the record of his case sealed. These are assertions of
preindictment delay.
{¶10} “An unjustifiable delay between the commission of an offense and a
defendant’s indictment therefor, which results in actual prejudice to the defendant, is a
violation of the right to due process of law under the United States and Ohio
Constitutions.” State v. Luck, 15 Ohio St. 3d 150, 472 N.E.2d 1097 (1984), paragraph
two of the syllabus. “Actual” prejudice is determined on a case-by-case basis, State v.
Jones, 148 Ohio St. 3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 20. If the defendant
shows actual prejudice from the delay, the burden shifts to the state to establish a
justifiable reason for the delay. State v. Whiting, 84 Ohio St. 3d 215, 217, 702 N.E.2d
1199 (1998), citing Luck at 154.
{¶11} It is possible that Taylor could have shown actual prejudice for all the
reasons that he argues here. The burden then would have shifted to the state to show that
the delay was justified.
{¶12} The record shows that Taylor did file a motion to dismiss based on
preindictment delay but chose not to pursue it. The attorney who filed that motion later
withdrew as counsel, and a new attorney negotiated the plea deal. During sentencing,
new defense counsel stated, “I consulted with Leon about filing a motion for this, some
kind of due process violation or preindictment delay. And he told me — you know what
he said? Let’s not even go there. It’s a fact that I had sex with this girl.” Even if Taylor
had not withdrawn his motion to dismiss for preindictment delay, his guilty plea waived
the claim. State v. Ramos, 8th Dist. Cuyahoga No. 104550, 2017-Ohio-934, ¶ 2.
{¶13} We earlier noted that we are troubled by how this case has been handled.
At the sentencing hearing, when addressing the lack of initial investigation and follow up
on this case, the state told the court that the victim’s family and defendant’s family went
to the same church and “wanted to treat this as a family incident and deal with it that
way.” The assistant prosecuting attorney characterized the matter as “a situation where
no one wanted to make waves, so they dealt with it.” When addressing the court prior to
being sentenced, Taylor stated:
Your Honor. This case, I mean I was 17 years old. I was a child. We both
were children. I didn’t know she was 12 years old. That’s still my friend
to this day. I still have contact with her.
***
I try [sic] to take responsibility for the case then, Your Honor. And they
said it’s not a crime because it was consensual. Then I was trying to man
up. If there was [a] crime, then I actually — it should have been handled
then. And now it seems like I’m getting more time now as an adult than I
would have had when I was a child.
Tr. 34-35.
{¶14} There is no legitimate or justifiable explanation for discontinuing the
investigation on a statutory rape case. That Taylor is now being punished as a felon
rather than adjudicated as a juvenile because of it is alarming. Nonetheless, we are
bound by the express language of R.C. 2151.23(I). Because Taylor had not been
apprehended for committing the offense until after he turned 21 years of age, the general
division of the court of common pleas properly exercised jurisdiction over his criminal
case.
{¶15} Judgment affirmed.
It is ordered that appellee recover of appellant 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.
______________________________________________
MELODY J. STEWART, JUDGE
TIM McCORMACK, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR