[Cite as State v. Loveless , 2019-Ohio-4830.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, Appellee,

- vs -

PAUL A. LOVELESS, Appellant. :

:

:

:

:

: CASE NO. CA2019-03-028

O P I N I O N

11/25/2019

CRIMINAL APPEAL FROM CLERMONT C OUNTY COURT OF COMMON PLEAS Case No. 2009CR00548

Vincent D. Faris, Clermont County Prosecuting Attorney, Nichola s A. Horton, 76 South Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee Timothy Young, Ohio Public Defender, Lauren Hammersmith, 250 Ea st Broad Street, Suite 1400, Columbus, Ohio 43215, for appellant

S. POWELL, J. {¶ 1} Appellant, Paul A. Loveless, appeals the decision of the Clermo nt County Court of Common Pleas denying his motion to vacate his 2009 con viction for one count of tampering with evidence, one count of pandering obscenity, and five counts of unauthorized use of a computer. For the reasons outlined below, we affirm.Clermont CA2019-03-028

- 2 - Facts and Procedural History {¶ 2} The facts of this case are generally not in dispute. At 10:44 a.m. on May 1, 2006, John Burns, the Manager of Technology Operations at the G reat Oaks Institute of Technology and Career Development ("Great Oaks"), received an a nonymous three-page e-mail from a Great Oaks student claiming he had discovered cer tain vulnerabilities in the Great Oaks' computer network that allowed him unauthorized acce ss to confidential

information stored on the network. 1 The student also claimed that he was sharing this information with Burns in order to assist Great Oaks in fixing the security issues with its network. Upon receiving this e-mail, Burns contacted the Sharo nville Police Department to report the security breach. There is no dispute that the stude nt who authored this e-mail later identified himself as Loveless. There is also no dispute that Loveless, who was then 17 years old, agreed to meet with Burns the next day to discuss how he was able to gain

access to the Great Oaks' network. {¶ 3} At 1:37 p.m. on May 2, 2006, Burns, Detective Aaron Blasky with the Sharonville Police Department, and Officer Steve Burgess with t he Miami Township Police Department, as well as two Great Oaks officials, administrator Dan Cox and counselor Robin Scallon, met with Loveless in a Great Oaks' conference ro om. 2 During this meeting, Detective Blasky informed Loveless that they were there "to fin d out what went on" and "need[ed] to talk" about his "great sleuthing" into the Great O aks' computer network. Loveless responded "yep" and explained that "he would fully coo perate and be honest." 3

1. The e-mail included several screenshots showing the student had access to payroll records, employee account numbers, social security numbers, and routing informati on stored on the Great Oaks' network. The e-mail also included a screenshot showing the student had acces s and the ability to change student grades. 2. Officer Burgess was at that time the Great Oaks' school reso urce officer. 3. These statements are taken from a narrative supplement draft ed by Officer Burgess on May 5, 2006.Clermont CA2019-03-028

- 3 - {¶ 4} Loveless thereafter admitted to accessing the Great Oaks' netwo rk by using an administrator account login name and password that he had ob tained by watching a Great Oaks technician log on to a classroom computer. 4 Loveless also admitted that after he obtained the login name and password that he enabled a progr am that allowed him to log on to the Great Oaks' network from home. Following these a dmissions, Loveless demonstrated how he could gain access into the Great Oaks' netw ork "within seconds" of logging on to the network. There is no dispute that Loveless m ade these admissions after signing a waiver of his Miranda rights. 5 There is also no dispute that Loveless made these admissions after Detective Blasky told Loveless that although " this could lead to criminal charges" that he was not under arrest. {¶ 5} After meeting with Loveless in the Great Oaks' conference room for approximately two hours, officials from Great Oaks contacted Lo veless' parents. Upon being contacted by Great Oaks officials, Loveless' father agree d to meet with Detective Blasky and Officer Burgess at the Loveless residence. Shortly thereafter, at 4:23 p.m., Detective Blasky transported Loveless home in his police cruise r. Once there, Loveless showed Officer Burgess the three computers that the Loveless fa mily kept in their home; one in Loveless' parents' first-floor bedroom and two in Lovele ss' bedroom in the basement. During this time, Officer Burgess waited upstairs for Loveless' father to arrive home. {¶ 6} Upon his arrival home, Loveless' father spoke upstairs with Det ective Blasky and Officer Burgess. During this conversation, there is no dis pute that Loveless was left alone downstairs in his basement bedroom with two of the family 's three computers. After speaking with Loveless' father, Detective Blasky went downstair s to the basement and

4. The record indicates this technician logged on to the classr oom computer by using an "on screen keyboard on the large screen in the front of the class." 5. The record indicates that Detective Blasky read Loveless his Miranda rights at 2:05 p.m., 28 minutes after Loveless first entered the Great Oaks' conference room for ques tioning.Clermont CA2019-03-028

- 4 - asked Loveless to join them upstairs. Detective Blasky indicat ed that Loveless was at that time acting "more nervous than before[.]" {¶ 7} Once Loveless was back upstairs, Loveless' father "agreed to fu lly cooperate" with the investigation. To that end, Loveless' father signed a consent form that gave Detective Blasky and Officer Burgess consent to search each of the Loveless family's three computers. Loveless' father signed this consent form at 4:45 p .m., approximately three hours after Detective Blasky and Officer Burgess had first met with Loveless in the Great Oaks' conference room. While signing this consent form, the re cord indicates that Loveless' father told Detective Blasky and Officer Burgess that he "compl etely understood the

concern of Great Oaks." {¶ 8} On May 4, 2006, Officer Burgess contacted Loveless' probation o fficer and advised him that there was an open investigation into Loveless gaining unauthorized access to the Great Oaks' computer network. 6 Later that day, at 12:49 p.m., Officer Burgess received a telephone call from Loveless. During this call, Lov eless informed Officer Burgess that his probation officer had called him and informed him that he was being placed on the

"Detention Roster." 7 Loveless then asked Officer Burgess if he "could be looking a t felony charges." Officer Burgess responded that the investigation was still ongoing but that it was certainly a "possibility." {¶ 9} At 9:30 a.m. on May 11, 2006, Loveless came into Officer Burges s' office "upset and crying." Once there, Loveless told Officer Burgess that he was "just given 80 days out of school and will probably now go to jail." 8 Rather than discussing the ongoing

6. This information is taken from two narrative supplements dra fted by Officer Burgess on May 5 and 8, 2006.

7. We note that while there are some references in the record t o Loveless' earlier legal trouble, the record does not contain any specific information as to why Loveless wa s at that time on probation. 8. These statements are taken from a narrative supplement draft ed by Officer Burgess on May 12, 2006.Clermont CA2019-03-028

- 5 - investigation and the details of the case, Officer Burgess resp onded and advised Loveless that he needed "to get his [life] on track" and do "the right t hings." A half-hour later, at 10:00 a.m., Loveless' parents arrived and joined Loveless in Officer Burgess' office. {¶ 10} After Loveless' parents arrived, Officer Burgess "explained to them the case was still under investigation and may take a while" but that Lo veless "could be looking at felony charges." After explaining to Loveless the serious natu re of the charges levied against him, Officer Burgess asked Loveless if he would like to write a statement. Although initially somewhat reluctant, Loveless nevertheless agreed to w rite a statement for Officer Burgess. While writing this statement, the record indicates th at Loveless became visibly upset and told Officer Burgess that he just wanted "to be hones t." There is no dispute that Loveless wrote this statement after again signing a waiver of h is Miranda rights. {¶ 11} At 9:02 a.m. on May 19, 2006, Burns, Detective Blasky, and Offi cer Burgess met to discuss the progress of the ongoing investigation into L oveless' unauthorized access onto the Great Oaks' computer network. During this meeting, De tective Blasky advised Burns and Officer Burgess that "there is much more than he anti cipated that [Loveless]

accessed and did." 9 This includes Detective Blasky's discovery that Loveless had also gained unauthorized access to a company's computer network loca ted in Michigan. Burns further advised Detective Blasky and Officer Burgess that Great Oaks was still in the process of bringing in computer consultants to check its comput er network and "do the

needed maintenance." {¶ 12} Approximately one month later, on June 16, 2006, Detective Blas ky began a forensic examination of the computer taken from Loveless' paren ts' first-floor bedroom. During this examination, Detective Blasky discovered accounts b elonging to both Loveless

9. This information is taken from a narrative supplement drafte d by Officer Burgess on May 22, 2006.Clermont CA2019-03-028

- 6 - and Loveless' parents. Detective Blasky also found a folder th at contained "evidence of .mpg (movie) files of apparent minors engaged in sexual acts." After discovering these video files, Detective Blasky spoke with Officer Burgess. A se arch warrant was then obtained for all three computers taken from the Loveless family 's residence. {¶ 13} Once the search warrant was obtained, Detective Blasky met with Loveless' parents at the Miami Township Police Department and "informed t hem of this development, providing them with copies of the warrants." After speaking wi th Loveless' parents, Detective Blasky continued his forensic examination of the comp uter taken from Loveless' parent's first-floor bedroom. This examination uncovered "remn ants of approximately 15 movies depicting minors engaged in sexual acts" that had been d eleted "one year prior which coincides with the last login date of [Loveless'] account ." {¶ 14} On June 27, 2006, Detective Blasky conducted a forensic examina tion on one of the two computers taken from Loveless' basement bedroom. De tective Blasky identified this computer as "Homemade Computer SCSI Hard drive from [Lovel ess'] Room." This examination resulted in Detective Blasky discovering several no w deleted files containing child pornography. Detective Blasky also discovered evidence t hat these files had been

deleted while Loveless was left alone in the basement when he a nd Officer Burgess were upstairs speaking to Loveless' father on the afternoon of May 2 , 2006. {¶ 15} Due to the complex nature of this case, the record indicates th at Detective Blasky did not conduct a forensic examination of the other comp uter taken from Loveless' basement bedroom until nearly a year later on June 22, 2007. D etective Blasky identified this computer as "IBM Computer from [Loveless'] Room." Similar to the first computer taken from Loveless' basement bedroom, the record indicates this exam ination also resulted in Detective Blasky discovering a number of files that related to either child pornography or computer hacking. This includes one file named "R@ygold – 12yo girl lets 11yo boy cum."Clermont CA2019-03-028

- 7 - {¶ 16} On August 3, 2007, Office Burgess drafted a narrative supplemen t to his original May 2, 2006 police report. As part of this supplement al narrative, Officer Burgess stated that he had "kept in touch" with Detective Blasky regard ing the "very complex" investigation into Loveless having gained unauthorized access t o the Great Oaks' computer network and subsequent discovery of child pornography on the Lo veless family's three computers. Officer Burgess also stated that both of these matt ers were still "currently under investigation." To that end, and as part of this ongoing inves tigation, Officer Burgess stated that he had met with Detective Blasky in late June of 2007. Du ring this meeting, Detective Blasky stated that he briefed Officer Burgess on the status of the ongoing investigation and "the downloads that were leading to the investigation." {¶ 17} Continuing this narrative supplement, Officer Burgess described how the investigation was progressing as follows: August 1, 2007 Det. Blasky met w ith Ofc. Burgess at the Miami Township Police Department with the complete investigation and reviewed same. Det. Blasky gave Ofc. Burgess (2) investigation notebooks, one for the PD and one for the Prosecutor's Office. August 2, 2007 Ofc. Burgess e-mailed Great Oaks Director of Technology, John Burns and requested a detailed report and restitution request for the Loveless case. August 3, 2007 Ofc. Burgess spoke with Clermont County Prosecutor, Jay Mathers and briefed him of the investigation findings. A meeting will be set in the future. Officer Burgess concluded his supplemental narrative by noting that the "[c]ase remains open." {¶ 18} Over 18 months later, in April of 2009, the case was assigned t o Detective Robert Bradford with the Miami Township Police Department. Aft er being assigned the case, Detective Bradford met with Kevin Miles, an Assistant Pro secutor with the Clermont County Prosecutor's Office. During this meeting, which occurre d on April 30, 2009,Clermont CA2019-03-028

- 8 - Assistant Prosecutor Miles advised Detective Bradford of the fa cts and circumstances surrounding the ongoing investigation into Loveless' unauthoriz ed access into the Great Oaks' computer network and "pandering nudity oriented matter in volving a juvenile." To further this ongoing investigat ion, Assistant Prosecutor Miles asked Detective Bradford to "gather the images in question for review" and meet with him ag ain after reviewing the file. {¶ 19} The following month, in May of 2009, Detective Bradford asked D etective Blasky to provide him with the files that were recovered from t he Loveless family's three computers. This includes the two computers taken from Loveless ' basement bedroom. Detective Blasky responded that he would have the files availab le for Detective Bradford "as soon as he could create a disk." Later that month, Detecti ve Blasky provided Detective Bradford with a disk that contained the various photographs and videos of minors engaged in sexual acts that were recovered from the Loveless family's t hree computers. Upon receiving this disk, Detective Bradford reviewed the files prov ided to him by Detective Blasky. This review resulted in Detective Bradford locating 26 files that contained child pornography and several other files that "depicted child pornog raphy by the file names." {¶ 20} After reviewing the files provided to him by Detective Blasky, Detective Bradford met with Assistant Prosecutor Miles again and advised him of his findings. Upon being so advised, Assistant Prosecutor Miles asked Detective Br adford to contact Detective Blasky to determine exactly how many times Loveless had gained access into the Great Oaks' computer network. Assistant Prosecutor Miles also asked Detective Bradford to interview Loveless and Loveless' parents again. Assistant Pros ecutor Miles further advised Detective Bradford that, in accordance with R.C. 2151.23(I), Lo veless "would have a grand jury hearing for indictment after he turned 21 years old [two m onths later on July 31, 2009], because he was a juvenile when this offense took place." Pursu ant to R.C. 2151.23(I), an offender who is 21 years old or older may be prosecuted as an a dult and subject to adultClermont CA2019-03-028

- 9 - sentences regardless of when the act was committed so long as t he act would be charged as a felony if committed by an adult and "the person [had not b een] taken into custody or apprehended for that act until after the person attains twenty- one years of age[.]" {¶ 21} On June 4, 2009, Loveless went to the Miami Township Police Dep artment to obtain a copy of an unrelated crash report. While there, Detec tive Bradford asked Loveless if they could talk. Loveless agreed. Detective Bradford and L oveless then went into an interview room located just off of the police department's fron t lobby. Once in the interview room, Detective Bradford advised Loveless that he did not need to speak with him and that he was free to leave at any time. Upon being so advised, Detec tive Bradford asked Loveless about the child pornography that Detective Blasky had discovered on the three computers taken from the Loveless family's residence. Loveless denied all knowledge about the child pornography found on those three computers. Lo veless instead advised Detective Bradford that he used to buy and sell computers so th e child pornography must have belonged to someone else. Loveless also denied any knowle dge about the child pornography that was deleted from one of the two computers take n from his basement bedroom while Detective Blasky and Officer Burgess were upstair s talking to his father on the afternoon of May 2, 2006. {¶ 22} At 11:10 a.m. on July 15, 2009, Detective Bradford met with Lov eless' father to discuss the allegations against Loveless and the child porno graphy located on the Loveless family's three computers. During this meeting, Lovele ss' father told Detective Bradford that Loveless had prior legal trouble relating to comp uter hacking and other sexually related offenses. This includes Loveless having a "pr oblem" with child pornography. Loveless' father also advised Detective Bradford that Loveless "has had soClermont CA2019-03-028

- 10 - much counseling in the past that he did not know if this was st ill a problem for him." 10

Loveless' father further told Detective Bradford that Loveless "would fix and refurbish computers" and that Loveless may not have been "as careful as h e should about that." Loveless' father additionally advised Detective Bradford that L oveless, who had been diagnosed with bipolar disorder and ADHD, had previously attemp ted to "set up a porn site and solicit girls" before this more recent incident involving c hild pornography. {¶ 23} The record indicates Loveless' father also showed concerns that the police might have thought the child pornography belonged to him. So, in order to distance himself from those allegations, Loveless' father advised Detective Brad ford that Loveless had vast knowledge of computers and computer systems, thereby making it relatively easy for Loveless to crack computer passwords. Loveless' father also to ld Detective Bradford that he had already told Detective Blasky that it was "[Loveless] on his computers and that he was not doing this." Loveless' father further told Detective B radford that he wanted to help Loveless but that he was "unaware of anything that had ever hap pened to [Loveless] that would cause this type of behavior." Loveless' father additiona lly advised Detective Bradford

that he was unaware if Loveless had ever been abused and denied that any abuse had

ever occurred in their home. {¶ 24} Later that day, Detective Bradford drafted a narrative suppleme nt outlining his

conversations with Loveless and Loveless' father. Detective Br adford also noted that he had prepared a discovery packet that included a disk containing the child pornography discovered on the Loveless family's three computers. Detective Bradford concluded this narrative statement by noting that he was recommending Loveless be indicted for 26 counts of second-degree felony pandering sexually oriented material in volving a minor in violation

10. As discussed more fully below, these statements are taken f rom a memorandum drafted by Detective Bradford on the same day that he spoke with Loveless' father, J uly 15, 2009.Clermont CA2019-03-028

- 11 - of R.C. 2907.322(A)(1), 26 additional counts of third-degree fe lony pandering sexually oriented material involving a minor in violation of R.C. 2907.3 22(A)(5), one count of thirddegree felony tampering with evidence in violation or R.C. 2921 .12, and five counts of fifthdegree felony unauthorized use of a computer in violation or R. C. 2913.04(B). After drafting this narrative supplement, Detective Bradford left a message fo r Assistant Prosecutor Miles advising him that the discovery packet was ready to be dropped off at the Clermont County

Prosecutor's Office. {¶ 25} On August 5, 2009, approximately three weeks after Detective Br adford spoke to Loveless' father, and five days after Loveless turned 21 yea rs old, the Clermont County Grand Jury returned a 26-count indictment against Loveless. So mewhat different than the charges recommended by Detective Bradford, the indictment charg ed Loveless with ten counts of second-degree felony pandering sexually oriented mate rial involving a minor in violation of R.C. 2907.322(A)(1), ten counts of fourth-degree f elony pandering sexually oriented material involving a minor in violation of R.C. 2907.3 22(A)(5), one count of thirddegree felony tampering with evidence in violation of R.C. 2921 .12(A)(1), and five counts of fifth-degree felony unauthorized use of a computer in violat ion of R.C. 2913.04(B). The charges were based on the facts set forth above that were alleg ed to have occurred between January 18, 2006 and May 2, 2006 when Loveless was 17 y ears old. {¶ 26} On October 21, 2009, Loveless entered a plea agreement and pled guilty to one count of third-degree felony tampering with evidence in vio lation of R.C. 2921.12(A)(1), one count of fifth-degree felony pandering obscenity in violati on of R.C. 2907.32(A)(1), and five counts of fifth-degree felony unauthorized use of a comput er in violation R.C. 2913.04(B). Approximately three months later, on January 7, 20 10, the trial court held a sentencing hearing and sentenced Loveless to three years of com munity control. The trial

court also classified Loveless as a Tier I sex offender and ord ered Loveless to pay GreatClermont CA2019-03-028

- 12 - Oaks $11,945 in restitution. Loveless thereafter violated his community control three times, which ultimately resulted in him serving two years in prison. These violations included Loveless having possession of two computers and a cell phone th at he then used to access the Internet and view pornography, Loveless submitting three po sitive drug screens, and Loveless admitted heroin use, among others. {¶ 27} On July 13, 2018, over nine years after he entered his guilty p lea, Loveless filed a motion to vacate his conviction. Loveless supported hi s motion based on two central arguments; (1) preindictment delay and (2) the trial court's al leged improper exercise of subject matter jurisdiction to convict and sentence him for cri mes that he committed prior to turning 18. Taking the matter under advisement, the trial cour t issued a decision denying Loveless' motion on February 26, 2019. In so holding, the tria l court found that by pleading guilty Loveless had waived any argument that his conviction sho uld be vacated due to preindictment delay. The trial court also found that it had pr operly exercised subject matter jurisdiction over Loveless' conviction even though the convicti on was based on crimes that Loveless committed prior to turning 18 since he was neither "ta ken into custody" nor "apprehended" as those terms are used in R.C. 2151.23(I) prior to his 21st birthday. Appeal {¶ 28} Loveless now appeals the trial court's decision denying his mot ion to vacate his conviction, raising the following single assignment of erro r for review. {¶ 29} THE CLERMONT COUNTY COURT OF COMMON PLEAS ERRED [WHEN]

IT FAILED TO VACATE PAUL LOVELESS' CONVICTIONS AS VOID BECAUSE THE

COMMON PLEAS COURT LACKED JURISDICTION TO CONVICT HIM OF THAT

OFFENSE IN 2009 AND BECAUSE THE STATE FAILED TO TIMELY PROSECUT E

PAUL. {¶ 30} In his single assignment of error, Loveless argues that the tri al court erred byClermont CA2019-03-028

- 13 - denying his motion to vacate his conviction. We disagree. {¶ 31} Loveless initially argues that the trial court erred by denying his motion since the trial court lacked subject-matter jurisdiction to convict h im for crimes that he committed prior to turning 18. Loveless instead argues that it was the j uvenile court that had exclusive subject-matter jurisdiction to punish him for those offenses. We find no merit to Loveless'

claim. {¶ 32} Pursuant to R.C. 2151.23(A)(1), "[j]uvenile courts have exclusi ve original jurisdiction over proceedings involving a child alleged to have committed a delinquent act."

State v. Watkins , 12th Dist. Clermont No. CA2017-03-013, 2018-Ohio-46, ¶ 13. T he term "child" generally means "a person who is under eighteen years o f age[.]" R.C. 2152.02(C)(1). "Therefore, absent a proper bindover procedure, 'the juvenile court has the exclusive subject-matter jurisdiction over any case concerning a child who is alleged to be a delinquent' that 'cannot be waived.'" State v. Isse , 12th Dist. Fayette No. CA2017-06- 012, 2018-Ohio-799, ¶ 11, quoting State v. Wilson , 73 Ohio St.3d 40 (1995), paragraphs one and two of the syllabus ("[t]he exclusive subject matter ju risdiction of the juvenile court cannot be waived"). "A conviction is void where the court of c ommon pleas lacks subject matter jurisdiction to convict the defendant due to the defenda nt's age at the time of the

offense." Id. , citing Wells Fargo Bank, N.A. v. Horn , 142 Ohio St.3d 416, 2015-Ohio-1484, ¶ 8, fn. 1, citing Wilson at 44. {¶ 33} There is an exception, however, that limits the juvenile court' s exclusive subject-matter jurisdiction. Bear v. Buchanan , 156 Ohio St.3d 348, 2019-Ohio-931, ¶ 5. As noted above, this exception is found in R.C. 2151.23(I). Pursu ant to that statute: 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 un til after the person attains twenty-one years of age, the juvenile court does not have jurisdiction to hear or determine any porti onClermont CA2019-03-028

- 14 - of the case charging the person with committing that act. In those circumstances, divisions (A) and (B) of section 2152.12 o f 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, a nd that court has all the authority and duties in the case that it has in other criminal cases in that court. {¶ 34} "By enacting R.C. 2151.23(I), the General Assembly intended for offenders 21 years of age to be prosecuted as adults and subject to adult sentences, regardless of

when their acts were committed." State v. Stidam , 4th Dist. Adams No. 15CA1014, 2016- Ohio-7906, ¶ 58. This, as the Ohio Supreme Court explained, ef fectively removes "anyone over 21 years of age from juvenile-court jurisdiction, regardle ss of the date on which the person allegedly committed the offense." State v. Walls , 96 Ohio St.3d 437, 2002-Ohio5059, ¶ 14 This is because "R.C. 2151.23(I) is written in the negative, an d clearly states that a juvenile court is divested of jurisdiction when certain requirements are met." In re

H.C. , 8th Dist. Cuyahoga No. 102601, 2015-Ohio-3676, ¶ 10. Those r equirements are as

follows: (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. State v. Taylor , 8th Dist. Cuyahoga No. 105322, 2017-Ohio-8066, ¶ 4. {¶ 35} "The legislature chose to authorize prosecution of those [offen ders over the age of 21] in the general division because persons who commit o ffenses as juveniles but who are not prosecuted until after they turn 21 are not likely to be amenable to the juvenileClermont CA2019-03-028

- 15 - justice system." State v. Fortson , 11th Dist. Portage No. 2011-P-0031, 2012-Ohio-3118, ¶ 43, citing State v. Schaar , 5th Dist. Stark No. 2003CA00129, 2004-Ohio-1631, ¶ 29. To hold otherwise, thereby permitting a juvenile court to retain s ubject-matter jurisdiction over a person who is 21 years old or older, the juvenile court "woul d find its dispositional options profoundly limited." Walls , 2002-Ohio-5059 at ¶ 40. This makes "the age of the offender upon apprehension the touchstone of determining juvenile-court jurisdiction[.]" (Emphasis sic.) Id. at ¶ 14. {¶ 36} There is no dispute that Loveless was under the age of 18 at th e time he committed the above named offenses and that the offenses, if co mmitted by an adult, would all be charged as felonies. The only question is whether Lovel ess was "taken into custody or apprehended" as those terms are used in R.C. 2151.23(I) prio r to turning 21. "The fact that the legislature chose to use the phrase, 'taken into custo dy or apprehended' in the disjunctive and as opposed to the phrase 'taken into custody' a lone, indicates that the legislature recognized a difference between being in 'custody' and being 'apprehended.'"

Lindstrom , 2011-Ohio-6755 at ¶ 22. {¶ 37} As it relates to whether an offender was "taken into custody" u nder R.C. 2151.23(I), R.C. 2151.31(A) and Juv.R. 6(A) provide that a chil d may be "taken into custody" in accordance with a court order, the "laws of arrest," or by a law enforcement officer where "[t]here are reasonable grounds to believe that the child commi tted a delinquent act and that taking the child into custody is necessary to protect the public interest and safety." 11 This implies that an offender has been "taken into custody" und er R.C. 2151.23(I) when the offender has been physically detained "by virtue of lawful auth ority" for "judicial or penal

11. Both R.C. 2151.31(A) and Juv.R. 6(A) list several other way s in which a child may be "taken into custody" none of which are applicable here.Clermont CA2019-03-028

- 16 - safe-keeping." Lidstrom at ¶ 20, citing Rarey v. Schmidt , 115 Ohio St. 518, 522 (1926). {¶ 38} On the other hand, unlike where a child has been "taken into cu stody," it has been determined that an offender has been "apprehended" under R .C. 2151.23(I) when a complaint has been filed in the juvenile court and a summons ha s been issued for the offender's arrest if the state had so requested. Lindstrom at ¶ 29. This is true despite the fact that the offender was not physically taken into custody. Id. Therefore, as properly explained by the trial court, the term "apprehended" would "cov er complaints filed and served, but not necessarily accompanied by physical seizure," w hereas the phrase "taken into custody" would "apply to physical seizure in accordance wi th official action." {¶ 39} Loveless claims that he was "taken into custody" as that term i s used in R.C. 2151.23(I) prior to turning 21 when "he was brought into his sc hool's conference room for questioning" on the afternoon of May 2, 2006. However, as the record indicates, there was no court order mandating Loveless be taken into custody at the time he was brought into the Great Oaks' conference room for questioning. Loveless was also not taken into custody by being placed under arrest either before, during, or immediat ely after he was questioned by police in the Great Oaks' conference room. Loveless was ins tead taken into custody years later after he was indicted and a warrant was issued for his arrest on August 5, 2009, five days after Loveless turned 21 on July 31, 2009. {¶ 40} The record further indicates that there was no reason to believ e that it was necessary to physically detain Loveless by taking him into cust ody or place him under arrest in order to protect the public interest or public safety on the afternoon of May 2, 2006. This holds true even after Detective Blasky drove Loveless home in h is police cruiser and spoke

with Loveless' father. This is because Loveless was at that ti me being investigated based solely on allegations that he had gained unauthorized access on to the Great Oaks' computer network and not for possessing child pornography. The refore, contrary toClermont CA2019-03-028

- 17 - Loveless' claim otherwise, Loveless was not "taken into custody " as that term is used in R.C. 2151.23(I) when he was questioned by police in the Great O aks' conference room on the afternoon of May 2, 2006. {¶ 41} Although this court's analysis is based on the meaning of the p hrase "taken into custody" under R.C. 2151.23(I), we find the same to be tru e when considering whether Loveless was "in custody" and subject to a "custodial interroga tion" under Miranda v.

Arizona , 384 U.S. 436, 86 S.Ct. 1602 (1966). "[C]ourts have previousl y rejected the argument that a school is necessarily a coercive setting for a juvenile to be questioned by police." State v. Spahr , 2d Dist. Miami Nos. 2008 CA 21 and 2008 CA 22, 2009-Ohio-4609 , ¶ 15. Therefore, when faced with facts similar to the case at bar, it has been determined that "the act of law enforcement officers questioning minors wh ile they are at school does not amount to custodial interrogation where there is no evidenc e that the student was under

arrest or told he was not free to leave." In re Haubeil , 4th Dist. Ross No. 01CA2631, 2002- Ohio-4095, ¶ 16, citing In re Bucy , 9th Dist. Wayne No. 96CA0019, 1996 Ohio App. LEXIS 4842 (Nov. 6, 1996) (student was not in custody when he was int erviewed by a police officer

in his school's conference room where the student was told that he was not under arrest and was free to leave to which the student responded that he wa nted to speak with the officer because he had "nothing to hide"). Accordingly, even w hen analyzing this case

under Miranda , Loveless' claim that he was "taken into custody" when he was questioned by police in the Great Oaks' conference room on the afternoon o f May 2, 2006, or at any time immediately thereafter, lacks merit. {¶ 42} Loveless also claims that he was "apprehended" as that term is used in R.C. 2151.23(I) prior to turning 21 since the police "knew his ident ity, his whereabouts, and the nature of his offenses before he turned 21." However, contrary to Loveless' claim, the term "apprehended" means something more than "a mere thought or perc eption that a personClermont CA2019-03-028

- 18 - named as the perpetrator of an offense could be arrested or detained." (Emphasis sic.). Taylor , 2017-Ohio-8066 at ¶ 8 (appellant was not apprehended by polic e even though police had "become aware" of appellant, "perceived" appellant, and had "positively identified" appellant as the offender before he turned 21 years old). {¶ 43} Again, as properly explained by the trial court, the term "appr ehended" would "cover complaints filed and served, but not necessarily accompa nied by physical seizure." Therefore, as discussed more fully above, not only was Loveless not "taken into custody" prior to turning 21, Loveless was also not "apprehended" until after he was indicted and a warrant was issued for his arrest on August 5, 2009, five days after his 21st birthday on July 31, 2009. See State v. Steele , 146 Ohio Misc. 2d 23, 2008-Ohio-2467, ¶ 6 (C.P.) (offender was not "apprehended" as that term is used in R.C. 2151.23(I) u ntil after the offender was indicted). Accordingly, because Loveless was neither "taken into custody" nor "apprehended" as those terms are used under R.C. 2151.23(I) pri or to turning 21, Loveless' claim that the trial court erred by denying his motion to vacat e his conviction for lack of subject matter jurisdiction is without merit. Preindictment Delay {¶ 44} Loveless additionally argues that the trial court erred by deny ing his motion to vacate his conviction since he was subject to preindictment del ay that violated his right to due process. While there may be some question as to why the in vestigation lasted for over three years, it is nevertheless well established that "a guilty plea waives any alleged due process violation arising from preindictment delay." State v. Thomas , 8th Dist. Cuyahoga No. 105824, 2019-Ohio-1372, ¶ 6, citing State v. Brown , 8th Dist. Cuyahoga No. 104085, 2017-Ohio-184, ¶ 9 ("[appellant's] guilty plea waives any alleg ed due process violation arising from preindictment delay"); State v. Shivers , 8th Dist. Cuyahoga No. 105621, 2018- Ohio-99, ¶ 11 ("appellant's guilty plea resulted in a waiver of any alleged due processClermont CA2019-03-028

- 19 - violation arising from preindictment delay"); State v. Cordell , 2d Dist. Greene No. 2009 CA 57, 2010-Ohio-5277, ¶ 8 (appellant's guilty plea "effectively w aived" any due process violation arising from preindictment delay). Therefore, just a s the trial court found, "by pleading guilty, Loveless waived his right to challenge his con viction based upon a preindictment delay argument." Accordingly, even though the re cord is not explicit in why the investigation lasted as long as it did, because Loveless wa ived any alleged due process violation arising from preindictment delay by entering a guilty plea, Loveless' claim that the trial court erred by denying his motion to vacate his convictio n due to preindictment delay

also lacks merit.

Conclusion {¶ 45} The trial court did not err by denying Loveless' motion to vaca te his conviction resulting from his guilty plea to one count of tampering with e vidence, one count of pandering obscenity, and five counts of unauthorized use of pro perty. Therefore, finding no merit to any of the argument raised herein, Loveless' single assignment of error challenging the trial court's decision denying his motion to va cate his conviction is overruled. {¶ 46} Judgment affirmed.

HENDRICKSON, P.J., and M. POWELL, J., concur.