In re D.J.

2019 Ohio 288

IN RE: D.J.

APPEAL NO. C-170615

APPEAL NO. C-170616

COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

January 30, 2019

TRIAL NOS. 17-3298 17-3299

OPINION.

Appeals From: Hamilton County Juvenile Court

Judgments Appealed From Are: Reversed and Cause Remanded in C-170616; Appeal Dismissed in C-170615

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin, Assistant Prosecuting Attorney, for Appellee State of Ohio,

Raymond L. Katz, for Appellant D.J.

CUNNINGHAM, Presiding Judge.

{¶1} In these consolidated appeals, appellant D.J. challenges the decisions of the juvenile court transferring jurisdiction of two delinquency actions to the common pleas court for adult prosecution. The complaints alleged that when he was 17 years old, D.J. had engaged in behavior that would have constituted aggravated robbery and receiving stolen property if he had been an adult.

{¶2} Because the aggravated-robbery case was dismissed for want of prosecution by the juvenile court, D.J.'s appeal in C-170615 is not taken from a final order and must be dismissed. Because, contrary to the juvenile court's finding, the receiving-stolen-property case did not arise from a common nucleus of operative facts with another offense that was arguably subject to mandatory transfer, we hold that the juvenile court erred in transferring that case to the adult court without first considering whether D.J. would be amenable to care or rehabilitation within the juvenile system.

I. The Facts of Record

{¶3} In 2017, at least four complaints were filed against D.J. in the Hamilton County Juvenile Court, each initiating separate delinquency actions. Those complaints alleged that D.J. had committed multiple offenses against separate victims, each perpetrated on a separate day between February and May 2017. Only two of these delinquency actions are challenged in these consolidated appeals.

{¶4} One complaint at issue, filed in the case numbered 17-3298, charged D.J. with behavior, committed on April 17, 2017, that would have constituted the aggravated robbery of Darien Green had D.J. been an adult. The Green aggravated-robbery complaint is the subject of the appeal numbered C-170615.

{¶5} The second complaint at issue, filed in the case numbered 17-3299, charged D.J. with behavior, committed on May 27, 2017, that would have constitutedreceiving the stolen motor vehicle of Ella Washington had D.J. been an adult. That complaint is the subject of the appeal numbered C-170616.

{¶6} For the purposes of these appeals, the only other relevant complaint charged D.J. with behavior, committed on April 23, 2017, that would have constituted the aggravated robbery of Isaiah Woodard had D.J. been an adult, and an accompanying firearm specification.

{¶7} The state moved the juvenile court to relinquish jurisdiction in each case to the adult court pursuant to Juv.R. 30(A). On June 28, 2017, the juvenile court held a joint probable-cause hearing for the alleged offenses. After that hearing, at which Woodard and others testified, including the police officer who had investigated the receiving-stolen-property charge, the juvenile court found probable cause to believe that D.J. had committed each offense except the aggravated robbery of Green. That matter was continued at the state's request because it had not been able to contact the victim.

{¶8} On July 17, 2017, the juvenile court held a joint hearing on whether to transfer jurisdiction of these complaints to the adult court. At the beginning of the hearing, the juvenile court granted the state's motion to dismiss the Green aggravated-robbery complaint without prejudice for want of prosecution. The state had indicated that Green was not available to testify.

{¶9} The juvenile court proceeded with the other complaints, including the Woodard aggravated-robbery complaint. Under R.C. 2152.12, a juvenile who has "committed a qualifying offense and who meets certain age requirements is automatically removed from the jurisdiction of the juvenile division and transferred to the adult court." State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 2. This transfer of jurisdiction, colloquially known as "mandatory bindover," is reserved "for extraordinary cases, involving older or violent offenders." Aalim at ¶ 36. Under a mandatory bindover, the juvenile court is not required to considerwhether the child would be amenable to care or rehabilitation within the juvenile system. See State v. Cockrell, 2016-Ohio-5797, 70 N.E.3d 1168, ¶ 7 (1st Dist.).

{¶10} D.J. was 17 years old at the time of the Woodard aggravated robbery. The court found that D.J. had possessed or used a firearm to facilitate the offense, and that probable cause existed to believe that he had committed the offense. Aggravated robbery is a qualifying offense for purposes of mandatory bindover. R.C. 2152.02(BB). Therefore, the juvenile court declared that it was required to transfer jurisdiction over the Woodard aggravated-robbery case to the common pleas court.

{¶11} The juvenile court also found that two other complaints, including the Washington receiving-stolen-property complaint—a nonqualifying offense not ordinarily subject to mandatory bindover—were "in a mandatory posture" based on the Woodard aggravated-robbery case. D.J.'s counsel agreed. Accordingly, the juvenile court immediately transferred jurisdiction over the Washington receiving-stolen-property case to the common pleas court without considering whether D.J. would be amenable to care or rehabilitation within the juvenile system.

{¶12} Two months later, the juvenile court docketed an entry from the common pleas court remanding the case to the juvenile court's jurisdiction under the reverse-bindover procedure identified in R.C. 2151.121(B). That scheme applies when a case initially subject to mandatory bindover results in a conviction in adult court which was subject only to discretionary bindover. The adult court must transfer those cases back to the juvenile court after considering "what the juvenile court would have been required to do with the case[s] if the juvenile had been charged with only those offenses for which convictions were obtained." State v. D.B., 150 Ohio St.3d 452, 2017-Ohio-6952, 82 N.E.3d 1162, ¶ 12.

{¶13} The juvenile court held a hearing and ultimately determined on October 10, 2017, that D.J. was "not amenable to care or rehabilitation within the juvenile system, or that the safety of the community require[d] that [he] be subjectsolely to adult sanctions." The juvenile court then ordered that jurisdiction be "transferred back" to the common pleas court.

{¶14} On November 6, 2017, in the appeal numbered C-170616, D.J. appealed from this order entered in the Washington receiving-stolen-property case. A juvenile whose delinquency action is transferred to adult court cannot immediately appeal the bindover decision. He must wait until the end of the adult-court proceedings. In re D.H., 152 Ohio St.3d 310, 2018-Ohio-17, 95 N.E.3d 389, ¶ 1.

{¶15} On the same date, D.J. filed a notice of appeal, numbered C-170615, in the case alleging the aggravated robbery of Green.

{¶16} This court consolidated these two appeals for decision. We note that D.J. has brought a separate appeal from the common pleas court challenging his convictions following the bindover. On June 29, 2018, in response to a motion by D.J., this court consolidated these appeals with that separate appeal for purposes of oral argument only. Nothing in that entry did, or could have, added materials filed in the common pleas court to the record certified for our review in these appeals. D.J. ultimately waived oral argument.

II. No Final Order in Appeal C-170615

{¶17} In the juvenile court case numbered 17-3298, the state sought an adjudication that D.J. was delinquent for actions which would have constituted the aggravated robbery of Green if D.J. were an adult.

{¶18} In the appeal numbered C-170615, D.J. purported to appeal from the juvenile court's entry of "October 24, 2016" transferring jurisdiction over this case to the Hamilton County Common Pleas Court. But the record on appeal does not contain any entry, dated October 24, 2016, or otherwise, transferring jurisdiction. The last substantive entry journalized by the juvenile court in this matter was a July 17, 2017 entry granting the state's motion and dismissing the case for want of prosecution.

{¶19} Under R.C. 2501.02, a court of appeals has jurisdiction to review judgments or final orders of courts of record inferior to the court of appeals, "including the finding, order, or judgment of a juvenile court that a child is delinquent, neglected, abused, or dependent, for prejudicial error committed by such lower court."

{¶20} Here, the juvenile court's entry of dismissal for want of prosecution did not determine that D.J. was delinquent. To the contrary, it left the parties as if the action had never been commenced. The entry ended this delinquency action without affecting D.J.'s substantial rights. See R.C. 2505.02(A)(1). Were this action to be renewed, nothing in this entry would deny D.J. effective appellate review in the future. See Thomasson v. Thomasson, 153 Ohio St.3d 398, 2018-Ohio-2417, 106 N.E.3d 1239 (holding that an order affects a substantial right for purposes of R.C. 2505.02(B)(2) only if, in the absence of immediate review, the appellant would be denied effective relief in the future). Thus the juvenile court's entry, entered in a special proceeding, was not a final order under R.C. 2505.02(B)(2).

{¶21} We note that while R.C. 2945.67(A) authorizes an appeal from a juvenile court decision that dismisses a delinquency action, that right lies only with the state and not with a juvenile offender. See State v. Craig, 116 Ohio St.3d 135, 2007-Ohio-5752, 876 N.E.2d 957, syllabus; see also In re J.F., 2017-Ohio-7675, 97 N.E.3d 999, ¶ 14 (1st Dist.).

{¶22} This court has no jurisdiction over nonfinal orders, and...