[Cite as State v. Hudson , 2020-Ohio-3577.]



## IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT MAHONING COUNTY

STATE OF OHIO,
Plaintiff-Appellee,

v. FRANKIE HUDSON, JR.,
Defendant-Appellant.

OPINION AND JUDGMENT ENTRY Case No. 17 MA 0080

Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 2015 CR 01133

BEFORE: Gene Donofrio, Carol Ann Robb, David A. D’Apolito, Jud g es.

JUDGMENT: Affirmed

Atty. Paul Gains , Prosecuting Attorney, Atty. Ralph Rivera, Assistant Prosecutor, Atty. Caitlyn Andrews, Assistant Prosecutor, Mahoning County Prosecutor’s Office, 21 West Boardman Street, 6 th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee and
Atty. John Laczko , City Centre One, Suite 975, 100 East Federal Street, Youngsto wn, Ohio 44503, for Defendant-Appellant.– 2 –

Case No. 17 MA 0080 Dated: June 24, 2020

Donofrio, J.
{¶1} Defendant-appellant, Frankie Hudson Jr., appeals a Mahoning Co unty Common Pleas Court judgment denying his motion to dismiss the i ndictment against him on the basis that the trial court lacked subject matter jurisdi ction. {¶2} On August 15, 2013, a Mahoning County Grand Jury indicted appe llant in case number 2013 CR 828 on six counts from two separate inciden ts. Counts One, Two, and Three comprised the first incident and Counts Four, Five, a nd Six comprised the second incident. Count One charged appellant with aggravated m urder in violation of R.C. 2903.01(B)(F), an unspecified felony. Count Two charged ap pellant with aggravated robbery in violation of R.C. 2911.01(A)(1)(C), a first-degree f elony. And Count Three charged appellant with possessing a firearm while under a disab ility in violation of R.C. 2923.13(A)(2)(B), a third-degree felony. Counts One and Two al so contained firearm specifications pursuant to R.C. 2941.145(A). Count Four charge d appellant and a codefendant with aggravated murder in violation of R.C. 2903.01(B )(3), an unspecified felony. Count Five charged appellant and the same co-defendant with aggravated robbery in violation of R.C. 2911.01(A)(1)(C), a first-degree f elony. And Count Six charged appellant with possessing a firearm while under disabil ity in violation of R.C. 2923.13(A)(2)(b), a third-degree felony. {¶3} At the time of the first incident (Counts One, Two, and Three) , appellant was 17 years old. At the time of the second incident (Counts F our, Five, and Six), appellant was 18 years old. At the time of indictment in 2013 CR 828, appellant was 20 years old. {¶4} Appellant moved to sever the counts related to the first incid ent from the counts related to the second incident. The trial court granted this motion and proceeded with the counts related to the second incident. Appellant pled guilty to Count Six and proceeded to a jury trial on Counts Four and Five. A jury foun d appellant and his codefendant not guilty of Counts Four and Five.– 3 –

Case No. 17 MA 0080 {¶5} On November 12, 2015, plaintiff-appellee, the State of Ohio, m oved to dismiss Counts One, Two, and Three without prejudice. At this time, appellant was 22 years old. The trial court granted the state’s motion. On the same day, a Mahoning County Grand Jury indicted appellant in case number 2015 CR 113 3 on identical Counts One, Two, and Three alleging identical conduct from case number 2013 CR 838. The grand jury subsequently filed a superseding indictment maintain ing Counts One, Two, and Three but adding criminal gang specifications pursuant to R .C. 2941.142(A) to Counts One and Two. The superseding indictment also added four more charges: two charges for attempted murder and two charges for witness intimi dation. {¶6} Appellant filed a motion to dismiss the indictment on the grou nds that the general division of the Mahoning County Common Pleas Court lack ed subject matter jurisdiction. Appellant argued that because Counts One, Two, a nd Three all occurred when he was 17 years old, the matter should have been brought i n the juvenile division. {¶7} The state opposed this motion arguing that appellant was not apprehended in case number 2015 CR 1133 until he was served wit h the indictment, which occurred on November 13, 2015 when he was 22 years old. As appellant was 22 years old at the time he was apprehended, the state argued that the general division had subject matter jurisdiction over the charges. The trial court denied appellant’s motion to
dismiss. {¶8} Appellant then filed a petition for a writ of prohibition and an alternative writ of prohibition in this court raising similar arguments as his m otion to dismiss. State ex rel. Hudson v. Sweeney , 7th Dist. Mahoning No. 16 MA 0127, 2016-Ohio-5468. This cour t held “we cannot conclude that jurisdiction is patently and unam biguously lacking” and
denied the writs. Id. at ¶ 1. {¶9} Appellant and the state reached a plea agreement. The state agreed to amend Count One to involuntary manslaughter, dismiss the two at tempted murder and two witness intimidation charges, and recommend a prison senten ce of 15 years. In exchange, appellant agreed to plead no contest to the amended C ount One, Count Two, and Count Three. The trial court accepted appellant’s no conte st plea. {¶10} On April 24, 2017, the trial court sentenced appellant to the agreed upon prison term of 15 years. The trial court ordered this sentence to run concurrently with– 4 –

Case No. 17 MA 0080 appellant’s sentence in case number 2013 CR 838 and concurrentl y to another nine-year sentence appellant was serving in case number 2011 CR 1282A. A ppellant timely filed his notice of appeal. Appellant now raises one assignment of e rror. {¶11} Appellant’s sole assignment of error states:

THE TRIAL COURT ERRED BY OVERRULING DEFENDANTAPPELLANT’S MOTION TO DISMISS THE INDICTMENT WHEN THE
TRIAL COURT LACKED SUBJECT MATTER JURISDICTION OVER THE
CHARGES BROUGHT AGAINST DEFENDANT-APPELLANT
CONTRARY TO LAW CONSTITUTING AN ABUSE OF THE TRIAL COURT’S DISCRETION IN CONTRAVENTION OF R.C. 2151.23(I) AND R.C. 2152.02(C)(2).

{¶12} Appellant argues that the trial court did not have subject mat ter over Counts One, Two, and Three because he was 17 years old at the t ime the events giving rise to those counts occurred. Because he was 17 years old at the time of those actions, he argues that the action should have originated in the juvenil e division and not the general division of the common pleas court. {¶13} Motions to dismiss are subject to an abuse of discretion stan dard of
review. State v. Brown , 7th Dist. Mahoning No. 03-MA-32, 2005-Ohio-2939, ¶ 77. But the issue appellant raises is whether the trial court had subje ct matter jurisdiction which is an issue of law and, therefore, subject to a de novo review. State v. Williams , 12th Dist. Butler No. CA2014-06-144, 2015-Ohio-1090, ¶ 7. Thus, an abuse of discretion standard of review applies to the trial court’s determination o f the relevant facts and a de novo review applies to the trial court’s ruling on subject matt er jurisdiction. {¶14} The relevant facts are not in dispute. At the time Counts On e, Two, and Three were committed, appellant was 17 years old. At the time of indictment in case number 2013 CR 828, appellant was 20 years old. When the state dismissed Counts One, Two, and Three in case number 2013 CR 828 and refiled them in case number 2015 CR 1133, appellant was 22 years old.– 5 –

Case No. 17 MA 0080 {¶15} Pursuant to R.C. 2151.23(A)(1), the juvenile court has exclus ive original jurisdiction over child delinquency proceedings. R.C. 2152.02 defines who is and who is not a “child” for juvenile court jurisdiction purposes. These definitions are, in relevant part:

(1) ‘Child’ means a person who is under eighteen years of age, except as otherwise provided in divisions (C)(2) to (8) of this section.

(2) Subject to division (C)(3) of this section, any person who violates a federal or state law or a municipal ordinance prior to attainin g eighteen years of age shall be deemed a ‘child’ irrespective of that per son's age at the time the complaint with respect to that violation is filed or the hearing on the complaint is held.

(3) Any 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 twen ty-one years of age is not a child in relation to that act.

R.C. 2152.02(C)(1)-(3). {¶16} The provisions of R.C. 2152.02(C)(3) are also present in R.C. 2151.23(I). This statute provides that if a person who is under 18 years of age allegedly commits an act that would be a felony if committed by an adult but “is not taken into custody or apprehended” for that act until after the person reaches 21 yea rs of age, the juvenile court does not have jurisdiction. {¶17} Appellant argues that he was apprehended in this case when he was indicted in case number 2013 CR 828, when he was 20 years old a nd this action should have originated in the juvenile court. He argues that his re-i ndictment in case number 2015 CR 1133 on identical charges alleging identical conduct do es not cure the jurisdictional defect. {¶18} Appellant was arrested in case number 2013 CR 828 on August 19 , 2013. Three of the six charges under this case number were committed when appellant was 18 years old. On January 15, 2014, appellant was sentenced on unr elated charges to a nine-year prison sentence in case number 2011 CR 1282(A). At t he time of indictment– 6 –

Case No. 17 MA 0080 and apprehension in the present case, appellant was still servi ng prison time in the unrelated case and was 22 years old. {¶19} Other appellate districts have upheld the practice of indictin g and apprehending defendants for acts committed when they were juven iles after they turn 21 years old pursuant to R.C. 2151.23(I). State v. Loveless , 12th Dist. Clermont No. CA2019-03-028, 2019-Ohio-4830, jurisdiction declined , 158 Ohio St.3d 1483; State v. Taylor , 8th Dist. Cuyahoga No. 105322, 2017-Ohio-8066; State v. Martin , 3d Dist. Mercer No. 10-14-12, 2015-Ohio-1339. {¶20} Based on the foregoing, the general division of the Common P leas Court had jurisdiction over this matter and the dismissal of the orig inal charges do not effect this
result. {¶21} Accordingly, appellant’s sole assignment of error is without merit and is
overruled. {¶22} For the reasons stated above, the trial court’s judgment is he reby affirmed.

Robb, J., concurs.

D’Apolito, J., concurs.[Cite as State v. Hudson , 2020-Ohio-3577.]

For the reasons stated in the Opinion rendered herein, the sole assignment of error is overruled and it is the final judgment and order of th is Court that the judgment of the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be
waived. A certified copy of this opinion and judgment entry shall const itute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Proc edure. It is ordered that a certified copy be sent by the clerk to the trial court to car ry this judgment into
execution.

NOTICE TO COUNSEL
This document constitutes a final judgment entry.