[Cite as In re E.S., 2020-Ohio-1029.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

IN RE E.S. : 

 : No. 108859 

A Minor Child : 

 : 

[Appeal by the state of Ohio] : 

 

JOURNAL ENTRY AND OPINION 

 JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: March 19, 2020 

 

Civil Appeal from the Cuyahoga County Court Common Pleas 

Juvenile Division 

Case No. DL-18-103409 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney and John F. Hirschauer, Assistant Prosecuting 

Attorney, for appellant. 

Rachel A. Kopec, for appellee. 

MARY EILEEN KILBANE, J.: 

The state of Ohio (“the State”) appeals from the judgment of the 

Cuyahoga County Court of Common Pleas, Juvenile Division, dismissing E.S.’s 

indictment as a serious youthful offender (“SYO”). For the reasons set forth below, 

we affirm. 
Facts 

On March 14, 2018, the State filed an 11 count complaint alleging that 

E.S. shot two juvenile victims, and fired upon two other adult victims while driving 

a stolen vehicle. E.S. was 14 years old at the time of the charged offenses. The March 

14, 2018 complaint did not contain a SYO specification. 

Subsequently, the State filed a motion with the trial court requesting 

the Juvenile Court relinquish jurisdiction to the general division. On August 6 and 

13, 2018, a probable cause hearing was held pursuant to the motion. 

On February 28, 2019, the trial court issued a decision finding 

probable cause on ten counts: four counts of attempted murder in violation of R.C. 

2903.02(A), first-degree felonies if committed by an adult; four counts of felonious 

assault in violation of R.C. 2903.11(A)(2), second-degree felonies if committed by an 

adult; and two counts of felonious assault in violation of R.C. 2903.11(A)(1), firstdegree felonies if committed by an adult. An amenability hearing was then set. 

On May 13, 2019, the court conducted an amenability hearing and 

found that there are reasonable grounds to believe E.S. is amenable to care and 

rehabilitation within the juvenile system. The State then pursued SYO specifications 

and, on May 24, 2019, a grand jury returned a true bill indictment that included an 

allegation that E.S. was a serious youthful offender. No written notice of intent to 

seek a SYO dispositional sentence was filed pursuant to R.C. 2152.13(A)(4). 

On June 17, 2019, the court dismissed the indictment. Specifically, 

the court found that because the March 14, 2018 complaint did not seek a SYO 
specification, the State had failed to comply with R.C. 2152.13(A)(4) and file a 

written notice of intent to seek a SYO dispositional sentence before filing a new 

complaint. This appeal follows. 

The State raises the following assignment of error for review. 

Assignment of Error 

The Trial Court erred in dismissing an indictment of E.S. as a serious 

youthful offender. 

We review a trial court’s decision on a motion to dismiss an 

indictment under a de novo standard of review. State v. Knox, 8th Dist. Cuyahoga 

Nos. 103662 and 103664, 2016-Ohio-5519, ¶ 12, citing State v. Gaines, 193 Ohio 

App.3d 260, 2011-Ohio-1475, 951 N.E.2d 814 (12th Dist.). “De novo review requires 

an independent review of the trial court’s decision without any deference to the trial 

court’s determination.” State v. McCullough, 8th Dist. Cuyahoga No. 105959, 2018-

Ohio-1967. 

The State argues that filing a written notice of intent to seek a SYO 

disposition is unnecessary when they indict a juvenile with a SYO disposition within 

twenty days of the amenability hearing. Our precedent and the language of R.C. 

2152.13 makes clear that this process is insufficient and inconsistent with the law. 

R.C. 2152.13 provides in relevant part: 

(A) * * * [A] juvenile court may impose a serious youthful offender 

dispositional sentence on a child only if the prosecuting attorney of the 

county in which the delinquent act allegedly occurred initiates the 

process against the child in accordance with this division, and the child 

is an alleged delinquent child who is eligible for the dispositional 
sentence. The prosecuting attorney may initiate the process in any of 

the following 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; 

(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. 

After a written notice is filed under division (A)(4) of this section, the 

juvenile court shall serve a copy of the notice on the child and advise 

the child of the prosecuting attorney’s intent to seek a serious youthful 

offender dispositional sentence in the case. 

While the particular question in this case is novel, we have ruled on 

similar questions before. In re T.S., 8th Dist. Cuyahoga No. 106825, 2018-Ohio3680; In re K.A., 8th Dist. Cuyahoga No. 107080, 2018-Ohio-4599; In re R.G., 8th 

Dist. Cuyahoga No. 107081, 2018-Ohio-4517. 

Procedurally, each of those three prior cases followed a similar 

pattern. The complaint filed in juvenile court did not contain SYO specifications; 
the State declined to file a written notice of intent within twenty days of the 

amenability hearing; a subsequent grand jury indictment did contain SYO 

specifications; and, thereafter, the juvenile court dismissed the indictment because 

the State failed to file a notice of intent to seek a SYO disposition within the 20-day 

period pursuant to R.C. 2152.13(A)(4). The State argued previously, as they again 

do now, that they can obtain an indictment of a juvenile as a SYO at any time, despite 

the existence of a pending complaint and without complying with the time or notice 

requirements of R.C. 2152.13(A)(4). In each case we disagreed. 

As we stated in T.S.: 

The state’s argument is centered on the words “[u]ntil an indictment * 

* * is obtained” which it takes to mean that the return of an indictment 

under division (A)(1), at any point in time, operates to trump all other 

provisions of the statute. 

* * * Both parties are ignoring the relevant language in R.C. 

2152.13(C)(1) which provides: A child for whom a serious youthful 

offender dispositional sentence is sought by a prosecuting attorney has 

the right to a grand jury determination of probable cause that the child 

committed the act charged and that the child is eligible by age for a 

serious youthful offender dispositional sentence. The grand jury may 

be impaneled by the court of common pleas or the juvenile court. 

Read in conjunction with this division the meaning of the phrase 

“[u]ntil an indictment * * * is obtained” is clear. Under either section 

(A)(3) or (A)(4) the state may provide notice to the alleged delinquent 

child of its intent to pursue a SYO disposition. However, the child is 

entitled to a grand jury determination of probable cause pursuant to 

division (C)(1). This is the indictment referenced by the language in 

question in divisions (A)(3) and (A)(4). 

Within this context, it is clear, under R.C. 2152.13(A)(4), that the state 

must provide notice to the alleged delinquent child of its intent to 

pursue an indictment of the child as a serious youthful offender within 

20 days of the juvenile court’s determination to deny transfer. To hold 
otherwise would render divisions (A)(3), (A)(4) and (B) of R.C. 2152.13 

superfluous. 

The State cites to In re J.B., 12th Dist. Butler No. CA2004-09-226, 

2005-Ohio-7029, which held that nothing in R.C. 2152.13 prohibits a prosecutor 

from initiating SYO proceedings via indictment when a complaint has previously 

been filed. In light of our precedent, we are not persuaded by J.B., because it failed 

to address the relevant language in R.C. 2152.13(B) and (C)(1) as applied to the 

disputed terminology in division (A)(4). In re R.G. at ¶ 13. 

Of course, this case differs from our previous decisions because the 

State secured a subsequent indictment within the 20-day limitation period for filing 

a written notice of intent. As a result, the State argues that E.S. received notice of 

the SYO specifications in a timely manner and that the end result of some form of 

notice justifies a method inconsistent with the statute. We again disagree. 

It is certainly true that “the point of both [R.C. 2152.13](A)(3) and 

(A)(4) is to provide notice to the child that the state intends to seek a SYO 

disposition.” T.S., 2018-Ohio-3680 at ¶ 20. However, notice is not an end in and of 

itself. When an initial complaint is filed without SYO specifications, the State’s filing 

a written notice of intent acts not only as notice, but as a means of triggering a 

procedural process required by statute. 

When a SYO disposition is sought for a juvenile, that juvenile has the 

right to “an open and speedy trial by jury in juvenile court and to be provided with a 
transcript of the proceedings.” R.C. 2152.13(C)(1). The time the State has to 

commence the trial is determined by 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 

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. 

R.C. 2152.13(C)(1) 

In this instance, the State filed an original complaint without an SYO 

specification; when determining the speedy trial rights of a juvenile there is only a 

single provision that refers to that scenario — R.C. 2152.13(C)(1)(c). The State 

cannot point to any language within R.C. 2152.13(C)(1) that accounts for a second 

indictment being sought without first filing a written notice of intent. 

R.C. 2152.13(C)(1)(c) is clear; when a juvenile is not charged in the 

original complaint with SYO specifications, as we have here, the speedy trial clock 

can only be triggered by the filing of a written notice of intent. 

The core of the State’s argument is that their second indictment, filed 

only 11 days after the amenability hearing, provides notice and that notice, rather 

than process, is really the underlying purpose of R.C. 2152.13. The ends do not 

justify the means when it comes to statutory interpretation, however. The State’s 

argument would nullify R.C. 2152.13(C)(1), and R.C. 2152.13(C)(1)(c) would be made 

superfluous. Further, as we noted in In re T.S., there would then be a loophole 
whereby the State could ignore the speedy trial rights mandated by R.C. 

2152.13(C)(1). That clearly is not what the legislature intended. 

The language of the statute is clear: when a SYO dispositional 

sentence is not sought in the original complaint, a written notice of intent is required 

to trigger the juvenile’s speedy trial right. To hold otherwise would strip R.C. 

2152.13(C)(1) of its meaning and purpose. 

For the foregoing reasons, we affirm the decision of the trial court in 

dismissing the indictment. 

Judgment affirmed. 

It is ordered that appellee recover from 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, juvenile division, 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. 

 

MARY EILEEN KILBANE, JUDGE 

EILEEN T. GALLAGHER, A.J., and 

SEAN C. GALLAGHER, J., CONCUR