[Cite as State v. Rosser, 2017-Ohio-5572.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104624




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                               EMMANUEL L. ROSSER
                                                    DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-16-603971-A

        BEFORE: Keough, A.J., Kilbane, J., and Blackmon, J.

        RELEASED AND JOURNALIZED: June 29, 2017
ATTORNEY FOR APPELLANT

P. Andrew Baker
11510 Buckeye Road
Cleveland, Ohio 44104


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Maxwell Martin
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, A.J.:

       {¶1} Defendant-appellant, Emmanuel Rosser (“Rosser”), appeals his kidnapping

conviction. For the reasons that follow, we reverse and remand for further proceedings

consistent with this decision.

       {¶2} In June 2015, Rosser was initially indicted for attempted rape and kidnapping

that allegedly occurred on February 20, 1996, when he was 17 years old.                After a

subsequent complaint was filed in juvenile court in December 2015, Rosser was bound

over to the general division and reindicted in February 2016 for the same offenses.

Rosser pleaded not guilty and the case was tried to a jury.1 The jury found Rosser not

guilty of attempted rape, but guilty of kidnapping.           The court imposed a six-year

sentence.   Rosser now appeals, raising seven assignments of error, which will be

addressed out of order and together where appropriate.

                                  I. Statute of Limitations

       {¶3} Rosser contends in his fifth assignment of error that the trial court erred in

denying his motion to dismiss based on a statute of limitations violation.

       {¶4} On July 16, 2015, the statute of limitations for an attempted rape prosecution

increased from 20 years to 25 years.        See R.C. 2901.13(A)(4), 2015 H.B. 6. This

increase was retroactive provided that the prosecution would not have been barred under


        In the same indictment, Rosser was also charged with offenses that allegedly occurred in
       1


2000. These offenses were tried to the jury with 1996 offenses. He was acquitted of all the
charges that arose from the 2000 incident.
the prior 20-year statute of limitations on July 15, 2015.           See R.C. 2901.13(L)

(amendments “apply to a violation of [attempted rape] committed prior to the effective

date of the amendments if prosecution for that violation was not barred under this section

as it existed on the day prior to the effective date of the amendments”). Therefore, the

25-year statute of limitations will apply to all offenses that could have been brought under

the 20-year limitations period on July 15, 2015.

       {¶5} In this case, the indictment against Rosser alleged that he committed the act

of attempted rape and kidnapping on February 20, 1996. Because the 20-year limitations

period of February 20, 2016 was after the effective date of 2015 H.B. 6, the 25-year

statute of limitations applied to the offenses for which Rosser was indicted.

Accordingly, the state had until February 20, 2021 to commence prosecution against

Rosser for these offenses.

       {¶6} R.C. 2901.13(F) provides,

       A prosecution is commenced on the date an indictment is returned or an
       information filed, or on the date a lawful arrest without a warrant is made,
       or on the date a warrant, summons, citation, or other process is issued,
       whichever occurs first. A prosecution is not commenced by the return of an
       indictment or the filing of an information unless reasonable diligence is
       exercised to issue and execute process on the same. A prosecution is not
       commenced upon issuance of a warrant, summons, citation, or other
       process, unless reasonable diligence is exercised to execute the same.

       {¶7} A juvenile delinquency proceeding commences upon the filing of a

complaint. See In re A.G., 148 Ohio St.3d 118, 2016-Ohio-3306, 69 N.E.3d 646, ¶ 26,

citing R.C. 2152.021; Juv.R. 2(F) and 10 (a delinquency case is not commenced by

indictment or information, but rather it is the filing of a complaint that invokes the
juvenile court’s jurisdiction); In re M.W., 133 Ohio St.3d 309, 2012-Ohio-4538, 978

N.E.2d 164, ¶ 21

       {¶8} In this case, Rosser was indicted under Cuyahoga C.P. No. CR-14-583135 in

the common pleas court on June 3, 2015, for attempted rape and kidnapping. Because

Rosser was 17 years old when he committed the offenses, a delinquency complaint was

subsequently filed on December 3, 2015, in the juvenile court alleging the same offenses.

 Following a probable cause and bindover hearing on February 23, 2016, the juvenile

court transferred the case to the general division of the common pleas court.             On

February 26, 2016, Rosser was reindicted for attempted rape and kidnapping under

Cuyahoga C.P. No. 16-603971. The prior 2015 indictment was ultimately dismissed.

       {¶9} Therefore, regardless of which date this court looks at in determining when

the prosecution against Rosser commenced — June 3, 2015, when he was initially

indicted, December 3, 2015, when the delinquency complaint was filed against him, or

February 26, 2016, when Rosser was reindicted after his case was transferred from

juvenile court — the dates all fall within the relevant 25-year statute of limitations.

       {¶10} Morever, even if the 20-year statute of limitations applied, “‘a superseding

indictment brought after the statute of limitations has expired is valid so long as the

original indictment is still pending and was timely and the superseding indictment does

not broaden or substantially amend the original charges.’”          State v. Ross, 9th Dist.

Summit No. 26694, 2014-Ohio-2867, ¶ 42, quoting United States v. Italiano, 894 F.2d

1280, 1282 (11th Cir.1990). Here, the 2016 indictment was a superseding indictment to
the 2015 indictment because the charges and facts were the same, and the 2015

indictment was timely filed and still pending when the 2016 indictment was filed.

Therefore, no statute of limitations violation occurred.

       {¶11} Accordingly, the trial court did not err in denying the motion to dismiss

based on a statute of limitations violation.       Rosser’s fifth assignment of error is

overruled.

                           II. Effective Assistance of Counsel

       {¶12} In his sixth assignment of error, Rosser contends he was denied effective

assistance of counsel because counsel failed to move for dismissal of the case due to

preindictment delay. Additionally, this court ordered briefing on the sua sponte issue of

whether Rosser was subject to mandatory bindover and if not, whether counsel should

have filed a motion to dismiss for preindictment delay on that basis.

       {¶13} To establish ineffective assistance of counsel, a defendant must demonstrate

(1) that counsel’s performance fell below an objective standard of reasonable

representation and (2) that he was prejudiced by that performance. Strickland v.

Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice

is established when the defendant demonstrates “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Strickland at 694.
      {¶14} The failure to prove either prong of the Strickland two-part test makes it

unnecessary for a court to consider the other prong. State v. Madrigal, 87 Ohio St.3d

378, 388-389, 721 N.E.2d 52 (2000), citing Strickland at 697. “In particular, a court

need not determine whether counsel’s performance was deficient before examining the

prejudice suffered by the defendant as a result of the alleged deficiencies. * * * If it is

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice

* * * that course should be followed.” Strickland at id.

      {¶15} Despite the state’s initiation of prosecution within the statutorily defined

limitations period, an unjustifiable delay between the commission of an offense and an

indictment can, under certain circumstances, constitute a violation of due process of law

guaranteed by the federal and state constitutions. State v. Jones, 148 Ohio St.3d 167,

2016-Ohio-5105, 69 N.E.3d 688, ¶ 11-12, citing United States v. Marion, 404 U.S. 307,

322, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) and State v. Luck, 15 Ohio St.3d 150, 472

N.E.2d 1097 (1984), paragraph two of the syllabus. In Jones, the Ohio Supreme Court

reaffirmed the burden-shifting framework for analyzing a due-process claim based on

preindictment delay — the defendant must establish actual prejudice in the delay prior to

the burden shifting to the state to produce evidence of a justifiable reason for the delay.

Jones at ¶ 13-14.

      {¶16} In this case, Rosser fails to demonstrate how he was actually prejudiced by

the state’s delay in bringing the case against him. At best, Rosser speculates that he

could have asserted an alibi to the offense. However, if Rosser had an alibi for the
offense, he could have asserted the alibi at trial as a defense. He makes no allegation

that witnesses were no longer available or that certain evidence was lost or destroyed due

to the delay in the indictment.     See Jones at ¶ 28, citing Luck, at 157-158 (actual

prejudice exists when identifiable and relevant missing evidence or unavailable testimony

would minimize or eliminate the impact of the state’s evidence and bolster the defense).

Because Rosser has failed to demonstrate how he was actually prejudiced in the

indictment delay, he has equally failed to demonstrate that he was actually prejudiced by

his trial counsel’s failure to file a motion to dismiss based on preindictment delay.

Rosser’s sixth assignment of error is overruled.

       {¶17} Addressing the sua sponte issue raised by this court and briefed in full by the

parties, we find that counsel was deficient in his performance for failing to file a motion

to dismiss — not for preindictment delay based on bindover, but rather for the juvenile

court’s improper transfer to the common pleas court because the juvenile court did not

conduct an amenability hearing. Because this is a jurisdictional impediment, it can be

raised at any time, even sua sponte.         State v. Adams, 11th Dist. Trumbull No.

200-T-0121, 2002-Ohio-7164, ¶ 29, quoting In re Graham, 147 Ohio App.3d 452,

2002-Ohio-2407, 770 N.E.2d 1123, ¶ 29 (7th Dist.), citing Fox v. Eaton Corp., 48 Ohio

St.2d 236, 238, 358 N.E.2d 536 (1976), overruled on other grounds, Manning v. Ohio

State Library Bd., 62 Ohio St.3d 24, 577 N.E.2d 650 (1991), paragraph one of the

syllabus. (“Even when not raised by either party, the issue of [the juvenile court’s]
subject matter jurisdiction may be raised sua sponte by the court at any stage of the

proceedings, including for the first time on appeal.”)

       {¶18} Ohio juvenile courts have exclusive subject matter jurisdiction over cases

“‘[c]oncerning any child who on or about the date specified in the complaint, indictment,

or information is alleged * * * to be * * * a delinquent * * * child.’”                   R.C.

2151.23(A)(1). This jurisdictional scope is limited in R.C. 2151.23(I), which provides:

       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 until after the person attains
       twenty-one years of age, the juvenile court does not have jurisdiction to
       hear or determine any portion of the case charging the person with
       committing that act. In those circumstances, divisions (A) and (B) of
       section 2152.12 of 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, and that court has all the authority and duties in the case that it has
       in other criminal cases in that court.

(Emphasis added.) See also R.C. 2152.12(J).

       {¶19} R.C. 2152.02(C) explains that a “child” for the purposes of juvenile

delinquency cases is “a person who is under eighteen years of age, except as otherwise

provided in divisions (C)(2) to (8) of this section.” As pertinent to the facts of this case,

R.C. 2152.02(C)(2) provides that

       [s]ubject to division (C)(3) of this section, any person who violates a federal
       or state law or a municipal ordinance prior to attaining eighteen years of age
       shall be deemed a “child” irrespective of that person’s age at the time the
       complaint with respect to that violation is filed or the hearing on the
       complaint is held.
       {¶20} Furthermore, R.C. 2152.02(C)(3) states that

       [a]ny person who, while under eighteen years of age, commits an act that
       would be a felony if committed by an adult and who is not taken into
       custody or apprehended for that act until after the person attains twenty-one
       years of age is not a child in relation to that act.

       {¶21} As this court noted, “R.C. 2151.23(I) is written in the negative, and 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.

       [T]hree requirements that must be fulfilled in order for the juvenile court to
       lack jurisdiction under R.C. 2151.23(I): (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. In interpreting this statute, the
       Ohio Supreme Court held that the touchstone of determining whether or not
       a juvenile court possesses jurisdiction under the provision was “‘the age of
       the offender upon apprehension.’” State v. Walls, 96 Ohio St.3d 437, 442,
       2002-Ohio-5059, 775 N.E.2d 829. (Emphasis sic.)

Id.

       {¶22} Accordingly, if a defendant had been taken into custody or apprehended for

a would-be-felony offense prior to turning the age of 21, then arguably the juvenile court

possesses jurisdiction over the matter.

       {¶23} In this case, Rosser was 17 years old at the time of the offenses, and the

alleged offenses of attempted rape and kidnapping are both felonies if committed by an

adult. Therefore, much like in H.C., the only remaining issue as to whether Rosser is a

“child” is whether Rosser was “taken into custody or apprehended” for the alleged crimes

prior to turning 21 years old. According to the juvenile record, he was.
       {¶24} First, the transcript of the bindover hearing and subsequent trial is replete

with evidence that Rosser was identified on the day of the offense by the victim and

subsequently arrested that evening. Following the arrest and booking process, he was

released in the custody of his mother. Additionally, the juvenile record reflects that

Rosser was initially indicted in the Cuyahoga County Common Pleas Court General

Division. However, subsequently a complaint was filed with the juvenile division. As

the defense counsel explained to the juvenile court judge,

       This case was actually indicted in an indictment and then it was later
       learned that he was a juvenile and that case law had to be investigated
       whether he was actually charged and who had jurisdiction.

       THE COURT: So they thought at first that he was not arrested and just
       proceeded to indict him?

       [DEFENSE COUNSEL]: Correct. And then it was learned that he was
       arrested so that jurisdiction laid with Juvenile Court.

(Tr. 79, Juvenile Bindover Hearing Dated February 23, 2016.)

       {¶25} Accordingly, the juvenile court possessed jurisdiction over Rosser and prior

to transferring jurisdiction to the general division of the common pleas court, the juvenile

court was required to follow the procedures in R.C. 2152.12.

       {¶26} R.C. 2152.12 governs the juvenile court’s authority to transfer a child to the

general division of the common pleas court. Subsection (A) governs mandatory bindover

and subsection (B) governs discretionary bindover. In this case, Rosser was charged

with attempted rape and kidnapping. These offenses do not subject Rosser to mandatory

bindover because they are not category one offenses as defined under R.C. 2152.02(AA).
Although he was charged with kidnapping, which is a category two offense under R.C.

2152.02(BB), R.C. 2152.10(A)(2) expressly removes kidnapping from offenses that

would require mandatory bindover.           Accordingly, Rosser was only subject to

discretionary bindover, which required the trial court to make certain findings prior to

transferring him to the general division of the common pleas court.

       {¶27} In order to transfer a case to adult court, pursuant to R.C. 2152.12(B), the

court is required to find (1) that the child was 14 years of age or older at the time of the

act charged; (2) there is probable cause to believe that the child committed the act

charged; and (3) after completion of the required investigation under subsection (C) and

upon consideration of the relevant factors under subsection (D) and (E), the child is not

amenable to care or rehabilitation with the juvenile system, and the safety of the

community may require that the child be subject to adult sanctions.

       {¶28} In this case, the juvenile court, prior to transferring Rosser pursuant to R.C.

2151.12(B), concluded that Rosser was over the age of 14 at the time of the offense, and

there was probable cause to believe he committed the act charged. However, it failed to

conduct an amenability hearing as required. While the amenability hearing may have

been a futile act, the failure to conduct such hearing was a jurisdictional impediment that

deprived the general division of jurisdiction over the case. Absent a proper bindover

proceeding in the juvenile court, the common pleas court lacks subject-matter jurisdiction

over the case and any conviction obtained there is void ab initio. State v. Wilson, 73

Ohio St.3d 40, 44, 652 N.E.2d 196 (1995).
       {¶29}    Accordingly, Rosser’s counsel was deficient for failing to request

dismissal of the indictment because the juvenile court improperly transferred the case to

the general division. Because the general division did not have jurisdiction over the

matter, Rosser’s convictions are reversed and the case is remanded to the juvenile court to

conduct an amenability hearing pursuant to R.C. 2152.12(B).

       {¶30} Having reversed his convictions for lack of jurisdiction, Rosser’s first,

second, third, fourth, and seventh assignments of error, all of which pertain to the

evidence presented at trial, are hereby rendered moot.

       {¶31} Judgment reversed and remanded.

       It is ordered that appellant recover from appellee 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 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.


KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

MARY EILEEN KILBANE, J., and
PATRICIA ANN BLACKMON, J., CONCUR
