[Cite as In re K.A. , 2018-Ohio-4599.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 107080

IN RE: K.A.

[Appeal By the State of Ohio]

JUDGMENT:

AFFIRMED

Civil Appeal from the Cuyahoga County Court of Common Pleas Juvenile Division Case No. DL 17104832

BEFORE: Celebrezze, J., Kilbane, P.J., and Boyle, J.

RELEASED AND JOURNALIZED: November 15, 2018ATTORNEYS FOR APPELLANT Michael C. O’Malley Cuyahoga County Prosecutor BY: Anthony Thomas Miranda Yasmine M. Hasan Assistant Prosecuting Attorneys The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Mark A. Stanton Cuyahoga County Public Defender BY: Frank Cavallo Assistant Public Defender Courthouse Square, Suite 200 310 Lakeside Avenue Cleveland, Ohio 44113

Mark A. Stanton Cuyahoga County Public Defender BY: Jeremy Gatta Assistant Public Defender 9300 Quincy Avenue, 5th Floor Cleveland, Ohio 44106

ALSO LISTED:

K.A. 19525 Shelton Drive Cleveland, Ohio 44110

A.F. 3592 East 120th Street Cleveland, Ohio 44105FRANK D. CELEBREZZE, JR., J.: {¶1} Plaintiff-appellant, the state of Ohio (“state”), appeals the decision of the Cuyahoga County Court of Common Pleas Juvenile Di vision (“juvenile c ourt”), dismissing appellee-delinquent’s (“K.A.”) complaint as a serious youthful offender (“SYO”). 1 The state argues that the juvenile cour t erred in its interpretation of R.C. 2152.13 and its subsequent dismissal of the complaint as untimely. After a thorough review of the record and law, this

court affirms. I. Factual and Procedural History {¶2} On March 27, 2017, K.A. was charged in a se ven-count complaint in the juvenile court with the following crimes: Count 1, aggravated robbery in violation of R.C. 2911.01(A)(1), with three-year and one-year firear m specifications, a firs t-degree felony; Count 2, kidnapping in violation of R.C. 2905.01(A)(2 ), with three-year and one-year firearm specifications, a first-degree fel ony; Count 3, robbery in viola tion of R.C. 2911.02(A)(2), with three-year and one-year firearm specifications, a second-degree felony; Count 4, felonious assault in violation of R.C. 2903.11(A)(2), with thr ee-year and one-year firearm specifications, a second-degree felony; Count 5, tampering with evidence in violation of R.C. 2921.12(A)(1), a third-degree felony; Count 6, breaking and en tering in violation of R.C. 2911.13(B), a fifth-degree felony; and Count 7, obstructing offi cial business in violation of R.C. 2921.31(A), a second-degree misdemeanor. 2 K.A. was arraigned on the same day as the filing of the

1 This is a companion case to In re R.G. , 8th Dist. Cuyahoga No. 107081.

2 The state did not include within this complaint a request for a SYO dispositional sentence pursuant to R.C. 2152.13(A)(4).complaint. {¶3} Thereafter, on March 29, 2017, the state filed a motion in the juven ile court to have

the matter transferred to the tr ial court pursuant to R.C. 2152.10(B) . The juvenile court held a hearing, commonly known as a “bind-over hear ing,” on the state’s motion on June 12, and July 17, 2017. On August 14, 2017, the juvenile cour t issued a journal entry denying the state’s motion. In particular, the juven ile court noted that the state pr ovided insufficient evidence that K.A. was 16 years old at the time of the offense. {¶4} On September 20, 2017, the state appealed the j uvenile court’s denial of the transfer motion pursuant to R.C. 2152.10(B). However, on December 13, 2017, the state filed a motion in this court voluntarily dismissing its appeal pursuant to App.R. 28. {¶5} Thereafter, the state sought an indictment ag ainst K.A. in adult court. On February 23, 2018, a grand jury returned an indictment for the alleged crimes. Th e indictment contained the same offenses as the juvenile complain t; however, Counts 1 and 2 contained “mandatory” and “discretionary” SYO specifi cations, and Counts 3, 4, and 5 c ontained only “discretionary” SYO specifications. K.A. then moved to have th e indictment dismissed in the trial court. {¶6} Also, on March 9, 2018, a hearing was schedul ed in the juvenile court on K.A.’s previously filed motion to suppress. The motion to suppress hearing was not held on that date; however, the juvenile court heard arguments related to K.A.’s motion to dismiss the indictment filed in the trial court. K.A. argued that because the complaint was filed in juvenile court without SYO specifications, the state could only seek a SYO th rough written notice pursuant to R.C. 2152.13(A)(4). The state however, argued that it could seek a SYO through an indictment at any time pursuant to R.C. 2152.13(A)(1). Th e juvenile court agreed with K.A., and dismissed the indictment finding that the state was required to file a written notice of intent toseek a SYO within 20 days of the bindover hearing. It is from that decision that the state brings the instant appeal. The state assigns a sole assignment of error for our review. I. The trial court erred in dismissing an indictment of K.A. as a serious youthful offender. II. Law and Analysis {¶7} In its sole assignment of error, the state argues that the juvenile court erred in dismissing the indictment. {¶8} A trial court’s decision on a motion to dismi ss an indictment is reviewed on appeal

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 re quires an independent review of the trial court’s decision without any deference to the trial court’s determination.”’ Knox at id. , quoting State v. Clay , 2d Dist. Miami No. 2015-CA-17, 2016-Ohio-424, ¶ 5. {¶9} In the instant matter, the state argues that the prosecutor may obtain an indictment of a juvenile as a SYO pursuant to R.C. 2152.13( A)(1), without complying with the 20-day requirement of written notice pur suant to R.C. 2152.13(A)(4). {¶10} R.C. 2152.13 states, in relevant part: (A) [A] juvenile court may impose a se rious youthful offender dispositional sentence on a child only if the prosecuting attorney of the county in which the delinquent act allegedly o ccurred 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 ch ild 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 juven ile 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 tr ansfer the case under section 2152.12 of the Revised Code.

After a written notice is filed under divisi on (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 a seek a serious youthful offender dispositional sentence in the case. (B) If an alleged delinquent child is not indicted or charged by information as described in division (A)(1) or (2) of this section and if a notice or complaint as described in division (A)(3) or (4) of th is section indicates that the prosecuting attorney intends to pursue a serious yout hful offender dispositional sentence in the case, the juvenile court shall hold a preliminary hearing to determine if there is probable cause that the child committed the act charged and is by age eligible for, or required to receive, a serious yout hful offender dispositional sentence. {¶11} This precise issue was very recently decided by this court in In re T.S., 8th Dist. Cuyahoga No. 106825, 2018-Ohio-3680. The procedural facts in the instant matter are identical to the procedural facts in T.S. , namely that the complaint initially filed in juvenile court did not contain SYO specifications pursuant to R.C. 2152.13( A)(3); a subsequent grand jury indictment did contain SYO specifica tions; and thereafter, the juvenile court dismissed the indictment because the state failed to comply with the 20-day written notice of intent to seek a SYO pursuant to R.C. 2152.13(A)(4). {¶12} In the instant case, the state argues, as it did in T.S. , that it is not bound by the 20-day written notice requirement pursuant to R.C. 2152.13(A)(4) because it elected to pursue anindictment under division (A)(1). More specifically, the state ar gues that the “notice provision of R.C. 2152.13(A)(4) is unnecessary in situations where an indictment is obtained.” State’s

brief at 5. {¶13} In support of its argument, the state relie s upon a case out of th e Twelfth District,

In re J.B., 12th Dist. Butler No. CA2004-09-226, 2005-Oh io-7029, which shared the same procedural facts of the instant case. In J.B. , the juvenile was charged w ith murder in the juvenile

court in June 2003 and was thereafte r indicted in July 2003. The complaint in the juvenile court did not contain SYO speci fications. The indictment include d SYO specifications. Thereafter, the juvenile filed a motion in the juvenile court to dismiss the indictment, arguing “that because the state initiated the case by a complaint and not a grand jury indictment, the state was subject to certain statutory requirements” which it failed to follow. Id. at ¶ 14. {¶14} The Twelfth District denied the juvenile’s motion. The court stated that “R.C. 2152.021 and R.C. 2152.13 grant prosecutors the discre tion to initiate serious youthful offender proceedings in four ways: via a grand jury indi ctment, a bill of information, a complaint, or a

written notice of intent.” Id. at ¶ 27. The Twelfth Di strict also noted that “nothing in R.C. 2152.021 or R.C. 2152.13 prohibits a prosecutor fro m initiating serious youthful offender proceedings via an indictment when a complaint has previously been filed.” Id. The Twelfth

District stated that because the prosecutor “obtained an indictment under R.C. 2152.13(A)(1), R.C. 2152.13(A)(3) and (4) we re not applicable.” Id. {¶15} To the extent that the stat e argues that this court should adopt the ruling by the

Twelfth District in J.B. , we note that we are not bound by that court’s ruling. Undeniably, the ruling in J.B. completely invalidates the plain reading of R.C. 2152.13(A)(3), (4) and (B). If we were to adopt the state’s interp retation of R.C. 2152.13, the state w ould be able to “initiate” theprocess under (A)(4) and then yet again “initiate” th e process under (A)(1), (2), or (3), if (A)(4) failed in any regard. {¶16} In the instant case, we find, as this court did in T.S. , that if the state elects to initiate the SYO process by way of R.C. 2152.13(A)(4): [T]he state must provide notice to the a lleged delinquent child of its intent to pursue an indictment of the child as a se rious youthful offender within 20 days of the juvenile court’s determination to de ny transfer. To hold otherwise would render divisions (A)(3), (A)(4) and (B ) of R.C. 2152.13 superfluous. The point of both (A)(3) and (A)(4) is to provide notice to the child that the state intends to seek a SYO disposition. On ce this occurs, the juven ile court is required, under R.C. 2152.13(B) to “hold a preliminary hearin g to determine if there is probable cause that the child committed the act charged and is by age eligible for, or required to receive, a serious youthful offender dispositional sentence.” If the court finds that such probable cause exists, the child is entitled to a speedy trial right pursuant to division (C). T.S., 8th Dist. Cuyahoga No. 106825, 2018-Ohio-3680, at ¶ 10. {¶17} Simply put, because the state filed a complaint in the juvenile court prior to obtaining an indictment, the st ate was required to initiate SYO proceedings in accordance with R.C. 2152.13(A)(3) and (4). Given the procedural f acts of the instant matter, the state, pursuant to R.C. 2152.13(A)(4)(b), had 20 days from Augu st 14, 2017, to file a timely written notice of intent to seek a SYO dispositional sentence. The statute is painfully clear in this regard, and “[t]o hold otherwise would render divisions (A )(3), (A)(4) and (B) of R.C. 2152.13 superfluous.”

Id. at ¶ 10. {¶18} Accordingly, because the st ate did not request a SYO di spositional sentence in the complaint pursuant to R.C. 2152.13(A)(3), or file a timely notice of its intent to do so pursuant to R.C. 2152.13(A)(4), the juvenile court did not error in dismissing the indictment. {¶19} The state’s sole assignment of error is overruled. {¶20} Judgment affirmed.It is ordered that appellee recove r of appellant co sts herein taxed.

The court finds there were reas onable grounds for this appeal. It is ordered that a special mandate be sent to the Cuyahoga County Court of Common Pleas, 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 Appella te Procedure.

FRANK D. CELEBREZZE, JR., JUDGE MARY EILEEN KILBANE, P.J., and MARY J. BOYLE, J., CONCUR