Opinion
Appellate Court Case No. 28783
09-08-2020
IN RE: D.M.S.
Copies to: Heather Ketter Jamie Rizzo 301 W. Third Street, 5th Floor Dayton, Ohio 45422 Attorneys for Appellant, State of Ohio Catherine Breault Jon Paul Rion 130 W. Second Street, Suite 2150 Dayton, Ohio 45402 Attorney for Appellee, D.M.S. Hon. Anthony Capizzi Montgomery County Juvenile Court 380 W. Second Street Dayton, Ohio 45422
Trial Court Case No. A-2019-005809-0A [Civil Appeal from Juvenile Court]
DECISION AND ENTRY
PER CURIAM:
{¶ 1} The State of Ohio appeals the March 27, 2020 Judge's Order entered in the underlying, unresolved delinquency case in juvenile court. In the March 27 Order, the juvenile court denied the State's motion to transfer the case for criminal prosecution to the General Division of the Montgomery County Court of Common Pleas ("adult court"). The State's request for transfer asserted that the transfer (or bindover) to adult court was discretionary rather than mandatory.
{¶ 2} After a hearing, the juvenile court found the State had not shown that probable cause existed to prove that D.M.S. was responsible for the commission of reckless homicide. The juvenile court therefore overruled the motion to transfer and set the matter for a pretrial conference. The State timely appealed, but did not seek leave to appeal.
{¶ 3} On our own review, we questioned the authority for the State's appeal and ordered the parties to address whether the State's appeal was an appeal as a matter of right or a discretionary appeal requiring a concurrent motion for leave under App.R. 5(C), and further, whether the March 27 Order was a final appealable order. They have done so, and the matter is ready for decision. We conclude that the State may appeal as a matter of right, and that, to the extent that a final appealable order is required, the March 27 Order satisfies the definition under the provisional remedy portion of R.C. 2505.02(B)(4).
Appeal as of Right vs. Discretionary Appeal
{¶ 4} The State has a limited right of appeal in criminal and delinquency matters. By statute, a prosecuting attorney "may appeal as a matter of right any decision of a trial court in a criminal case, or any decision of a juvenile court in a delinquency case, which decision grants a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, or a motion for the return of seized property or grants post conviction relief * * *." R.C. 2945.67(A). In addition, a prosecuting attorney "may appeal by leave of the court to which the appeal is taken any other decision, except the final verdict, of the trial court in a criminal case or of the juvenile court in a delinquency case." Id. Whether the appeal here is an appeal as of right or a discretionary appeal is the first issue before us. Because the State has not sought leave to appeal here, this appeal must be an appeal as a matter of right in order to proceed.
{¶ 5} The Supreme Court of Ohio has specifically discussed the State's ability to appeal the denial of a transfer or bindover in two main cases: In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, and In re M.P., 124 Ohio St.3d 445, 2010-Ohio-599, 923 N.E.2d 584. The case currently before us falls somewhere between the two.
{¶ 6} In A.J.S., the State appealed an order that denied a mandatory bindover because of a lack of probable cause. A.J.S. at ¶ 19. The Supreme Court found that the order "bars the state from prosecuting a juvenile offender as an adult for a criminal offense. It is therefore the functional equivalent of a dismissal of a criminal indictment and constitutes a final order from which the state may appeal as a matter of right." Id. at syllabus.
{¶ 7} In M.P., the State appealed an order denying a discretionary bindover. The denial was not based on a lack of probable cause, as here and in A.J.S. Rather, the Court denied the bindover motion because it found the child amenable to care or rehabilitation in the juvenile system. The Supreme Court declined to extend A.J.S. to the facts of M.P. "[b]ecause of the important difference between mandatory-bindover and discretionary-bindover proceedings." M.P., 124 Ohio St.3d 445, 2010-Ohio-599, 923 N.E.2d 584, ¶ 10. The Court explained:
Juvenile courts possess exclusive jurisdiction over children alleged to be delinquent for committing acts that would constitute a crime if committed by an adult. R.C. 2151.23(A). Under certain circumstances, however, the juvenile court has the duty to transfer a case, or bind a juvenile over, to the adult criminal system. R.C. 2152.10 and 2152.12. When the state requests a mandatory bindover, the juvenile court determines whether the child is eligible for mandatory bindover according to the child's age, the nature of the act, and
other circumstances, and whether probable cause exists to believe that the juvenile committed the act charged. R.C. 2152.10(A) and 2152.12(A)(1); Juv.R. 30(A). If the child is eligible for mandatory bindover and if probable cause exists to believe that the juvenile did commit the acts charged, the only procedural step remaining is for the court to enter the order of transfer. Juv.R. 30(B).Id. at ¶ 11-12. The Court noted that probable cause determinations involved questions of law, reviewed de novo, while amenability determinations involve "a broad assessment of individual circumstances and is inherently individualized and fact-based," and are reviewed for an abuse of discretion. Id. at ¶ 14.
When the state requests a discretionary bindover, the juvenile court is also to determine the age of the child and whether probable cause exists to believe that the juvenile committed the act charged. R.C. 2152.10(B) and 2152.12(B)(1) and (2). However, if probable cause exists and the child is eligible by age, the juvenile court must then continue the proceeding for a full investigation. R.C. 2152.12(C) and Juv.R. 30(C). This investigation includes a mental examination of the child, a hearing to determine whether the child is "amenable to care or rehabilitation within the juvenile system" or whether "the safety of the community may require that the child be subject to adult sanctions," and the consideration of 17 other statutory criteria to determine whether a transfer is appropriate. Juv.R. 30(C); R.C. 2152.12(B), (C), (D), and (E).
{¶ 8} The Supreme Court concluded that "juvenile court decisions regarding a child's amenability to care or rehabilitation within the juvenile system are different from probable-cause determinations," as are the "legal effects of such determinations." Id. at ¶ 15. Unlike a denial for lack of probable cause in a mandatory bindover, when a discretionary bindover request is denied on the basis of amenability, "there is no 'functional equivalent of a dismissal of a criminal indictment' and there is no authority under R.C. 2945.67(A) for the state to appeal as a matter of right. R.C. 2945.67(A). Therefore, any appeal must be by leave of the court. App.R. 5(C)." Id. at ¶ 16.
{¶ 9} The Supreme Court in M.P. recognized but did not reach the question presented here: whether the denial of a discretionary bindover for lack of probable cause is controlled by the rationale in A.J.S. Id. at ¶ 14. The parties have not pointed us to any cases that directly address the issue, and we have found no cases analyzing A.J.S. and M.P. in the precise context presented here. For the following reasons, we conclude that the rationale of A.J.S. applies, and that the State has an appeal as of right to challenge the no-probable-cause denial of a discretionary bindover.
We are aware of this court's previous decision in In re Cline, 2d Dist. Montgomery No. 19082, 2002-Ohio-271 (Decision and Entry, Jan. 18, 2002), which was entered several years before A.J.S. and M.P. In Cline, this court granted the State's motion for leave to appeal a similar determination that there was not probable cause to believe that a juvenile committed felonious assault. This court did not examine the question of whether such could be construed as an appeal as of right, but instead focused on whether the order was final and appealable. Because Cline predates A.J.S. and M.P., it is of limited utility in determining if A.J.S. should be extended to discretionary bindovers.
{¶ 10} In A.J.S., the Court accepted the State's argument that the denial of a mandatory bindover for lack of probable cause was the "functional equivalent of a dismissal," which the State may appeal as of right. A.J.S. at ¶ 32-33; R.C. 1945.67(A). More specifically, the State had argued that the decision "is the functional equivalent of a dismissal because it forever bars the state from criminally prosecuting" the child in adult court. Id. at ¶ 32. The Court agreed that the order "prevented the state from seeking a criminal indictment to try A.J.S. as an adult. Because a juvenile court order denying a motion for mandatory bindover terminates the state's ability to secure an indictment for the acts charged, its denial of a mandatory transfer is the functional equivalent of the dismissal of an indictment." Id. at ¶ 33.
{¶ 11} The State similarly argues here that the March 27 Order prevents it from pursuing a judgment on the reckless homicide charge against D.M.S. in adult court. D.M.S. counters that nothing has actually been dismissed, and that the State still has the ability to proceed against him in juvenile court on other, lesser charges. However, D.M.S. does acknowledges that the State cannot prosecute him for reckless homicide in adult court.
{¶ 12} This was the determinative factor in A.J.S., and it exists here as well. A criminal indictment of D.M.S. in adult court has been foreclosed by the juvenile court's order. We are not convinced that this case should have a different outcome based on the distinctions drawn in M.P. about amenability determinations, as those are not at issue here. We conclude that A.J.S. controls the outcome of this case. Because the March 27 Order is the functional equivalent of a dismissal in that it forecloses criminal prosecution in adult court, the State may appeal it as a matter of right.
Final Appealable Order
{¶ 13} We also asked the parties to address whether the March 27 Order is a final appealable order. Whether a state's appeal as a matter of right must also be taken from an order that is final and appealable has not been consistently answered in Ohio. See, e.g., Painter & Pollis, Ohio Appellate Practice, Section 2:25 (2019) ("The extent to which the State must establish that the order on appeal is final under R.C. 2505.02, in addition to meeting the requirements for an appeal as a matter of right under R.C. 2945.67(A), has been the subject of some confusion in the courts."). This court has written on interplay between finality and a state's appeal previously:
In 1994, in what arguably could be described as dicta, the Supreme Court described the State's right to appeal by leave of court as an "exception" to the rule that interlocutory orders are not final or appealable. State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 438-439, 639 N.E.2d 83 (1994), overruled on other grounds by State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 2016-Ohio-8394, 89 N.E.3d 598.
In 2007, the Supreme Court relied on Steckman to explicitly hold that the State could seek leave to appeal from a trial court's interlocutory, pretrial discovery order. State ex rel. Mason v. Burnside, 117 Ohio St.3d 1, 2007-Ohio-6754, 881 N.E.2d 224, ¶ 13-14. That same year the court also reversed a court of appeals' dismissal of a state's as-of-right appeal for lack of a final appealable order, holding that the state's appeal statute, and not the final appealable order statute, was dispositive. State v. Craig, 116 Ohio St.3d 135, 2007-Ohio-5752, 876 N.E.2d 957, ¶ 9-16 ("The state premises its argument on two statutes, R.C. 2505.02, which governs final, appealable orders, and R.C. 2945.67, which speaks to the state's right to appeal the dismissal of an indictment in whole or in part. We find the latter statute dispositive and, accordingly, discuss only it"). Craig suggests that a finality analysis is not
required. Id. at ¶ 16 ("We need go no further").State v. Jones, 2017-Ohio-5758, 94 N.E.3d 971, ¶ 11-13 (2d Dist.).
In 2008, the Supreme Court examined the finality of an order denying mandatory transfer of a juvenile to the general division of the common pleas court before finding that it was an appeal as of right, suggesting that a finality analysis is required. In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 13-33. The decision also suggested that whether an order was final was a distinct question from whether the State could appeal it, holding that "even when a trial court's order constitutes a final order pursuant to R.C. 2505.02 and 2505.03, the state may appeal from that order only by leave of the court of appeals unless it is one of the types of orders that R.C. 2945.67(A) permits the state to appeal as of right." Id. at ¶ 30. In 2010, the Court affirmed an appellate court's grant of leave to appeal an order granting reconsideration of a motion for acquittal, where the order left charges pending against the defendant, without explicitly resolving whether the reconsideration order was a final appealable order. State v. Ross, 128 Ohio St.3d 283, 2010-Ohio-6282, 943 N.E.2d 992, ¶ 52.
{¶ 14} Also in 2010, in M.P., the Supreme Court analyzed the discretionary bindover order only under the State's appeal statute, and not in terms of provisional remedies or the final appealable order statute. The Court did not cite R.C. 2505.02, the statute defining final orders, or use the phrases "provisional remedy" or "final appealable order" in the opinion. The Court did conclude, however, that the order on appeal "is not a final order from which the state may appeal as a matter of right." Id. at ¶ 17. M.P. appears to present the sort of nomenclature issue we observed in Jones, wherein courts sometimes "use the term 'final appealable order' [or final order] in this context as a shorthand designation to refer to an order that the State may appeal, rather than as a separate, statutory, jurisdictional requirement." Id. at ¶ 17.
{¶ 15} In Jones, this court concluded that the existence of a final appealable order was necessary to our review of a discretionary appeal by the State, in that the time to appeal began to run under App.R. 5(C) when a final appealable order was entered. Id. at ¶ 25; see also 2019 Staff Note, App.R. 5(C) (amended to address the timing of a motion for leave to appeal). The Tenth District recently dismissed an asserted State's appeal of right because it was taken from an order that was not final and appealable as a provisional remedy under R.C. 2505.02(B)(4). State v. Harvey, 10th Dist. Franklin No. 19AP-165, 2019-Ohio-4022, ¶ 20 (extending the rationale of Jones to both types of State's appeals). The Ninth District took a different approach, looking only to whether the order satisfied the State's appeal statute, R.C. 2945.67. State v. Heil, 9th Dist. Medina No. 18CA0030-M, 2019-Ohio-2602. See also In re E.S., 8th Dist. Cuyahoga No. 109129, 2020-Ohio-3598, ¶ 18 (finding that the State had a right to appeal a dismissal, without discussing the final appealability of the order).
{¶ 16} In short, the law in Ohio appears unsettled as to whether an order that the State may appeal as a matter of right under R.C. 2945.67(A) must also separately meet the definition of a final appealable order in R.C. 2505.02(B), or whether, as the Supreme Court said in Craig, "[w]e need go no further" than R.C. 2945.67(A). Craig at ¶ 16. Although this presents an interesting jurisdictional quandary, and one on which additional guidance would be useful, we need not resolve it today. For purposes of the proceedings before us, we find that the March 27 Order on appeal here is a final appealable order as defined in R.C. 2505.02(B)(4).
The Supreme Court of Ohio has referred to the state's right to appeal the four types of orders listed in R.C. 2945.67(A) as "an absolute right to appeal." State ex rel. Prade v. Ninth Dist. Court of Appeals, 151 Ohio St.3d 252, 2017-Ohio-7651, 87 N.E.3d 1239, ¶ 27 (discussing the state's right to appeal an order granting post-conviction relief). It is at least arguably inconsistent for the state's appeal right to be described as "absolute," "unambiguous," and "without qualification" (Prade at ¶ 21, 27) while then querying whether the State has proved that it really needs to appeal at this time, such as is required in the analysis of provisional remedies. Further, it is difficult to say that the Legislature intended the State to have an absolute, unqualified right to appeal, for example, a partial dismissal of its case or a dismissal without prejudice under R.C. 2945.67(A), where a partial dismissal or dismissal without prejudice will almost never be final and appealable under R.C. 2505.02(B). See Painter & Pollis, Ohio Appellate Practice, Section 2:28 (2019) (discussing these and other inconsistencies). --------
{¶ 17} R.C. 2505.02(B)(4) discusses provisional remedies, which is what the bindover order in A.J.S. was determined to be. Under this subdivision, we consider: "(1) whether the orders are provisional remedies, (2) whether the orders determine the action and prevent a judgment in [the State's] favor with respect to the provisional remedies, and (3) whether [the State] would have a meaningful or effective remedy if [its] appeal must wait until after final judgment in his case." In re D.H., 152 Ohio St.3d 310, 2018-Ohio-17, 95 N.E.3d 389, ¶ 11.
{¶ 18} The Supreme Court of Ohio has confirmed that a discretionary-bindover proceeding qualifies as a provisional remedy and satisfies the first prong, in that it "is ancillary to the adult-court proceedings that would determine whether [the child] is guilty and would impose sentence if appropriate." Id. at ¶ 12-13.
{¶ 19} We agree with the State that the March 27 Order denying the motion to transfer D.M.S. to adult court determined the discretionary-bindover proceeding, satisfying the second prong of the test. See also A.J.S. at ¶ 28 ("a juvenile court order finding no probable cause that the child committed the charged offense, and thus denying a motion for mandatory transfer, determines the action with respect to the provisional remedy and prevents a judgment in the state's favor").
{¶ 20} The third prong - whether the State would have a meaningful or effective remedy following final judgment - is also satisfied. In A.J.S., the Supreme Court explained this prong's satisfaction as a function of the application of the Double Jeopardy Clause:
In Breed [v. Jones], the court determined that jeopardy attaches in a delinquency proceeding when the juvenile court begins to hear evidence as the trier of fact. Breed, 421 U.S. at 531, 95 S.Ct. 1779, 44 L.Ed.2d 346, citing United States v. Jorn (1971), 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543; Serfass v. United States (1975), 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265. Therefore, the court held that the prosecution of a child in adult court following an adjudicatory proceeding in juvenile court violated the Double Jeopardy Clause of the Fifth Amendment as applied to the states through the Fourteenth Amendment. Breed at 541, 95 S.Ct. 1779, 44 L.Ed.2d 346.
Because double jeopardy attaches once the adjudicatory phase of the delinquency proceedings commences, a juvenile court order finding no probable cause that the child committed the charged offense, and thus denying a motion for mandatory transfer, determines the action with respect to the provisional remedy and prevents a judgment in the state's favor.
Moreover, it prevents the state from obtaining a meaningful or effective remedy by way of appeal at the conclusion of those proceedings. Thus, a juvenile court's decision denying a motion for mandatory bindover satisfies the test for determining whether the denial of a provisional remedy constitutes a final appealable order as set forth in R.C. 2505.02(B)(4).A.J.S. at ¶ 27-28. The State argues that the same is true here; if it pursues any other charges with respect to D.M.S. in the adjudicatory phase in juvenile court, jeopardy would attach, and would bar the State from later pursuing criminal charges in adult court.
{¶ 21} We agree that the State would lack a meaningful remedy to challenge the juvenile court's probable cause determination after the end of juvenile court proceedings. We therefore conclude that the March 27 Order satisfies R.C. 2505.02(B)(4).
Conclusion
{¶ 22} The State may appeal the juvenile court's March 27 Order as a matter of right under R.C. 2945.67(A). The order is final and appealable under R.C. 2505.02(B)(4). Thus, this matter shall proceed in accordance with the Rules of Appellate Procedure. D.M.S.'s motion to dismiss, filed in response to our order concerning jurisdiction, is OVERRULED. The State shall file its brief within 20 days of the journalization of this Decision and Entry.
SO ORDERED.
/s/_________
MICHAEL L. TUCKER, Presiding Judge
/s/_________
JEFFREY E. FROELICH, Judge
/s/_________
JEFFREY M. WELBAUM, Judge Copies to: Heather Ketter
Jamie Rizzo
301 W. Third Street, 5th Floor
Dayton, Ohio 45422
Attorneys for Appellant, State of Ohio Catherine Breault
Jon Paul Rion
130 W. Second Street, Suite 2150
Dayton, Ohio 45402
Attorney for Appellee, D.M.S. Hon. Anthony Capizzi
Montgomery County Juvenile Court
380 W. Second Street
Dayton, Ohio 45422 CA3/KY