In re D.R. , 2014 Ohio 832 ( 2014 )

[Cite as In re D.R., 2014-Ohio-832.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 100034 and 100035
IN RE: D.R.
JUDGMENT:
DISMISSED
Civil Appeals from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL 12119018
BEFORE: E.A. Gallagher, J., Boyle, A.J., and Blackmon, J.
RELEASED AND JOURNALIZED: March 6, 2014
ATTORNEYS FOR APPELLANT
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Joseph J. Ricotta
Daniel T. Van
Assistant County Prosecutors
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Robert Tobik
Cuyahoga County Public Defender
By: Cullen Sweeney
Ashley C. Stebbins
Assistant Public Defenders
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} The state appeals the decision of the trial court dismissing D.R.’s criminal
complaint. The state argues that the court was prohibited from both adjudicating a child
delinquent and then dismissing the complaint, that the court abused its discretion in
dismissing the complaint and that even if the court did properly dismiss part of the
complaint, it was required to impose sentence on the remaining charge and specifications.
For the following reasons, we find that this court does not have jurisdiction to hear the
appeal.
{¶2} On February 23, 2013, D.R. broke into the residence of Ted Ziolkowski, who
was present and armed at his home. At approximately 11 p.m. on that date, Ziolkowski
heard someone prying open his rear door and then heard wood falling onto the floor.
Ziolkowski moved closer to the door, saw it swing open and Ziolkowski fired his weapon
at the intruder. He saw D.R. fall to the ground and immediately called 911. When
police arrived, they found D.R. lying on the ground next to the rear door with a loaded
handgun, a pry bar and a screwdriver in his possession. Ziolkowski told police that he
heard D.R. speaking with another individual and that he saw a white SUV parked in front
of his house but that the SUV left before police arrived.
{¶3} The state filed a one-count complaint alleging that D.R. was a delinquent
child. Specifically, the state claimed that D.R. committed an aggravated robbery, that he
possessed and brandished a firearm during the commission of the crime and that he was a
serious youthful offender. D.R. admitted to the complaint and specifications as charged
and the trial court found him delinquent.
{¶4} D.R.’s health deteriorated after the adjudication of delinquency. As a result
of the gunshot wound to his chest, he underwent emergency surgery, which resulted in
aortic stenosis. The aortic stenosis caused poor circulation in D.R.’s lower extremities
and resulted in a build up of pressure that had to be surgically relieved. After this second
surgery, D.R. developed an infection in the bone that required amputation of his right leg
below the knee. Even after D.R.’s third surgery, D.R.’s poor circulation prevented him
from supporting a prosthesis, essentially making D.R. wheelchair bound.
{¶5} D.R.’s medical problems were not resolved as of the date of the court’s
dispositional hearing. At the hearing, Dr. John Bradley, the Chief Medical Director for
the Ohio Department of Youth Services, (“ODYS”), testified that D.R. requires “a lot of
major care.” Dr. Bradley testified that D.R. needs to have major heart surgery to improve
circulation and an additional surgery to repair a large wound in his abdominal wall that
was caused by the gunshot wound. Further, Dr. Bradley stated that once the abdominal
surgery was complete, it would take six to eight weeks for D.R’s metabolism to reset.
Dr. Bradley testified that D.R. would then need two months of gait training with a
prosthesis and that, if everything went perfectly, D.R. would need six to eight months of
medical care.
{¶6} D.R.’s attorney presented evidence of the cost to ODYS to house D.R.,
ODYS’s inability to care for D.R. given his current medical condition and the safety risks
to D.R. from other residents of the facility. At the close of evidence, the defense moved
to dismiss the firearm specification pursuant to Juv.R. 29(F)(2)(d). The defense argued
that because of D.R’s medical condition and the inability of ODYS to care for D.R., the
court should dismiss the firearm specification from the complaint, which would then
allow the court to sentence D.R. to something other than mandatory commitment to
ODYS.
{¶7} The state opposed the defense’s motion and argued that the cost to ODYS
should not factor into the court’s decisions and that because D.R. admitted to aggravated
robbery, a three-year firearm specification and a serious youthful offender specification,
the court was without discretion to consider anything other than a commitment to ODYS.
{¶8} At the conclusion of the hearing, the trial court dismissed the complaint
against D.R. pursuant to Juv.R. 29(F)(2)(d) and held as follows:
[U]pon due consideration the Court finds that based on the evidence
presented, the child’s significant medical conditions and needs cannot be
properly met by the Department and his commitment to the current facilities
would pose a risk to his health, safety, and well-being.
The court then released D.R. to his own custody.
{¶9} The state appeals, raising the following assigned errors:
I. The trial court erred when it adjudicated D.R. guilty and dismissed the
complaint because under Juv.R. 29(F)(2) the trial court can only take one of
those actions.
II. The trial court erred in dismissing the complaint under Juv.R.
29(F)(2)(d) because it was precluded from doing so by statute.
III. The trial court abused its discretion in dismissing the complaint under
Juv.R. 29(F)(2)(d) because the record did not support the finding that
dismissal was in the best interest of the community and the child.
{¶10} D.R. argues the state has no jurisdiction to appeal because a Juv.R.
29(F)(2)(d) dismissal is a final verdict that may not be appealed by the state. D.R. cites
to In re N.I., 191 Ohio App.3d 97, 2010-Ohio-5791, 944 N.E.2d 1214 (8th Dist.).
{¶11} As stated in In re N.I., “[t]he state may appeal a juvenile court’s delinquency
decision only in limited circumstances.” Article IV, Section 3(B)(2), Ohio Constitution;
R.C. 2945.67. Pursuant to R.C. 2945.67(A), the state
may appeal as a matter of right any decision * * * of a juvenile court in a
delinquency case, which grants a motion to dismiss all or any part of an
indictment, complaint, or information, a motion to suppress evidence, or a
motion for the return of seized property or grants post conviction relief * * *
and may appeal by leave of court to which the appeal is taken any other
decision, except the final verdict * * * of the juvenile court in a delinquency
case.
{¶12} Thus, “[p]ursuant to R.C. 2945.67(A), the General Assembly has given the
courts of appeals discretionary authority to decide whether to hear an appeal from a
decision adverse to the state other than a final verdict.” State v. Bistricky, 51 Ohio St.3d
157, 555 N.E.2d 644 (1990); In re N.I.
{¶13} In In re N.I., the trial court, after hearing evidence, found that the state
proved the complaint beyond a reasonable doubt and adjudicated N.I. delinquent of rape.
However, at the dispositional hearing, the court found that “substantial grounds exist to
mitigate the delinquent child’s conduct” and ordered the complaint dismissed against N.I.,
concluding that it was in both N.I.’s and the community’s best interest to do so. In
affirming the dismissal on appeal, this court noted that “[a]lthough the state normally has
the right to appeal a decision by the trial court granting a motion to dismiss, in this case
the trial court’s decision to do so was a ‘final verdict’ to which double jeopardy attached.”
This court determined that a Juv.R. 29(F)(2)(d) dismissal effectively stood as an acquittal
of the charges. As a result, the Double Jeopardy Clause of the Fifth Amendment of the
United States Constitution and Article I, Section 10 of the Constitution of the state of
Ohio prevents the state from initiating any further criminal proceedings against the
juvenile based on the allegations contained in the complaint. In re N.I.; see also In re
Arnett, 3rd Dist. Hancock No. 5-04-20, 2004-Ohio-5766.
{¶14} Although distinguishable from In re N.I. in that the present case involved an
admission to the complaint while N.I., involved a hearing to the trier of fact, the remaining
facts are substantially similar. Here, like in N.I., the court adjudicated the juvenile
delinquent and then later dismissed the complaint pursuant to Juv.R. 29(F)(2)(d) in the
best interest of the child and the community. The trial court, determined that although
delinquent of the crime of aggravated robbery with firearm and serious youthful offender
specifications, significant mitigation in the form of D.R.’s serious health conditions as
well as ODYS’ inability to care for and safeguard D.R. while in its custody, warranted
dismissing the complaint.
{¶15} We find this court’s decision to dismiss the complaint against D.R. to be a
“final verdict” to which double jeopardy attached. See In re N.I.; In re Arnett. As such
and in keeping with this court’s past precedent, we find that this court has no jurisdiction
to hear the instant appeal.
{¶16} The case is dismissed.
It is ordered that appellee recover of appellant costs herein taxed.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
PATRICIA ANN BLACKMON, J., CONCURS;
MARY J. BOYLE, A.J., DISSENTS WITH SEPARATE OPINION
MARY J. BOYLE, A.J., DISSENTING:
{¶17} I respectfully dissent. Although this case is somewhat analogous to the
facts of In re N.I., 191 Ohio App.3d 97, 2010-Ohio-5791, 944 N.E.2d 1214 (8th Dist.),
there are some significant distinctions, including that the adjudication of delinquency was
based on D.R.’s admissions to the complaint and his admission to the serious youthful
offender specification. I believe the state’s appeal does raise substantive issues that are
subject to our review that include the juvenile court’s authority pursuant to Juv.R. 29, as
well as the procedures that are applicable for a dispositional sentence after a juvenile
admits a serious youthful offender specification.
{¶18} We noted in In re N.I. that “even when there is a final verdict, however, an
appellate court may review substantive rulings of law when it is presented with an
underlying legal question that is capable of repetition yet evading review.” Id. at ¶ 14,
citing State v. Bistricky, 51 Ohio St.3d 157, 555 N.E.2d 644 (1990), at syllabus. This is
now the second instance that this court has been presented with a factual scenario where
the trial court has ordered a dismissal pursuant to Juv.R. 29(F)(2)(d) after previously
having adjudicated the juvenile delinquent.
{¶19} Juv.R. 29 clearly provides:
Upon the determination of the issues, the court shall do one of the
following:
(1) If the allegations of the complaint, indictment, or information
were not proven, dismiss the complaint;
(2) If the allegations of the complaint, indictment, or information are
admitted or proven, do any one of the following, unless precluded by
statute:
(a) Enter an adjudication and proceed forthwith to disposition;
(b) Enter an adjudication and continue the matter for disposition for
not more than six months and may make appropriate temporary
orders;
(c) Postpone entry of adjudication for not more than six months;
(d) Dismiss the complaint if dismissal is in the best interest of the
child and the community.
{¶20} In this case, the juvenile court not only entered an adjudication but also
dismissed the complaint. Juv.R. 29 directs the court to take a single action provided by
the rule, and in this case the court took at least two. This case also involves a serious
youth offender (“SYO”) specification.
{¶21} The dissenting judges, in In re J.S., 136 Ohio St.3d 8, 2013-Ohio-1721, 989
N.E.2d 978, identified the statutory procedure for the SYO dispositional sentence and for
invoking the adult portion of an SYO sentence and stated that “an SYO sentence has two
parts: a juvenile portion and a stayed adult portion * * * the adult portions of the SYO
sentences are akin to community control sentences * * *.” Id. at ¶ 25. The dissent
expressed its belief that the Ohio Supreme Court should establish what exactly an SYO
sentence is; specifically,
Is it a single sentence with juvenile and an adult portion, or is it instead
separately a juvenile and an adult sentence? If it is a sentence with two
portions, * * * does an error in one portion cause the SYO sentence to be
only partially void as suggested in State v. Fisher, 128 Ohio St.3d,
2010-Ohio-6238, 942 N.E.2d 332?
Id. at ¶ 5.
{¶22} For these reasons, I would reach the merits of the state’s appeal because it
involves substantive issues beyond the final judgment in this case that are capable of
repetition but will otherwise evade review.