[Cite as State v. Weaver, 2019-Ohio-2477.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-18-1078

        Appellee                                 Trial Court No. CR0201601949

v.

Calvin Weaver                                    DECISION AND JUDGMENT

        Appellant                                Decided: June 21, 2019

                                             *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Jeremy W. Levy and Eric Allen Marks, for appellant.

                                             *****
        ZMUDA, J.

        {¶ 1} This matter is before the court on appeal from the judgment of the Lucas

County Court of Common Pleas, general division, sentencing appellant to an aggregate

prison term of 11 years following trial to the bench. For the reasons that follow, we

reverse the trial court’s imposition of sentence, and remand the matter for the required

procedure under R.C. 2152.121.
                         I. Facts and Procedural Background

       {¶ 2} On January 29, 2015, two masked men accosted 14-year-old D.C. as she

walked home from school, took her to an abandoned garage, and repeatedly raped her.

After the assault, the men told D.C. to gather her things and leave, and she escaped, but

without her cellphone, ear buds, or money. When D.C. arrived home, she told her

brother she was raped at gunpoint and he called the police. D.C. was taken to the hospital

for treatment where evidence was also collected. D.C. could not identify the assailants,

and while the hospital collected DNA, police had no suspects. The investigation stalled

until a year later, when a positive DNA match identified one of the assailants as Travon

Mitcheal. Mitcheal then identified appellant, Calvin Weaver, as the second individual.

Weaver provided a DNA sample, and his DNA matched samples collected from D.C.

Weaver told investigators that he and D.C. engaged in consensual sex, and had arranged

the meeting in the abandoned garage. At the time of the incident, Weaver was a juvenile,

16 years old.

       {¶ 3} On February 25, 2016, appellee, the state of Ohio, filed a complaint in

delinquency against Weaver, charging three counts of rape, in violation of R.C. 2907.02,

and one count of kidnapping, in violation of R.C. 2905.01. The facts supporting these

charges indicated Weaver used a firearm to commit a category-two offense as provided

by R.C. 2152.10. The state moved for mandatory bindover, pursuant to R.C.

2152.10(A)(2)(b)(ii) and 2152.12(A)(1)(b)(ii). The state then moved to amend its

transfer request with respect to the kidnapping charge, seeking discretionary transfer




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pursuant to R.C. 2152.10(B) and 2152.12(B). After hearing, the juvenile court granted

the motions as to mandatory transfer and discretionary transfer, and relinquished

jurisdiction over the case to the general trial division of the common pleas court, for

criminal prosecution of Weaver.1

       {¶ 4} On April 14, 2016, in case No. CR0201601698, the grand jury initially

indicted Weaver on one count of rape with a gun specification, and one count of

kidnapping, based on the events of January 29, 2015. Weaver entered a not guilty plea.

On May 19, 2016, a new grand jury, considering the same incident, returned a

superseding indictment in case No. CR0201601949, charging three counts of rape in

Counts 1 through 3 of the indictment, in violation of R.C. 2907.02(A)(2) and (B), each

with a firearm specification under R.C. 2941.145 and a gang participation specification

under R.C. 2941.142, and one count of kidnapping in Count 4 of the indictment, in

violation of R.C. 2905.01(A)(2) and (C), with a firearm specification under R.C.

2941.145 and a gang participation specification under R.C. 2941.142. Two additional

counts were included, charging aggravated robbery in Count 5 of the indictment, in

violation of R.C. 2911.01(A)(1), also accompanied by firearm and gang participation

specifications, and charging participation in a criminal gang in Count 6 of the indictment,


1
  While neither party raises the issue, the juvenile division’s secondary consideration of
discretionary bindover was improper, as the juvenile court relinquishes jurisdiction over
the case, and not the individual charges. See, e.g., State v. D.B., 150 Ohio St.3d 452,
2017-Ohio-6952, 82 N.E.3d 1162, ¶ 15 (in considering jurisdiction, the relevant inquiry
focuses on the case, and does not permit the court to split a case between the juvenile and
general trial divisions).




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in violation of R.C. 2923.42(A) and (B). Weaver entered not guilty pleas to all counts

and specifications.2

       {¶ 5} On February 6, 2017, the matter was transferred back to the juvenile court,

pursuant to State v. Aalim, 150 Ohio St.3d 463, 2016-Ohio-8278, 83 N.E.3d 862, for an

amenability hearing. On July 26, 2017, the general trial division received the case back

from the juvenile court.

       {¶ 6} On March 1, 2018, Weaver waived his right to a jury trial, and the matter

proceeded to a bench trial. The trial court found Weaver guilty of all three rape charges,

Counts 1 through 3, and each accompanying gang participation specification, guilty of

aggravated robbery in Count 5, and the attached gang participation specification, and

guilty of participating in a criminal gang, Count 6. The trial court found Weaver not

guilty as to every gun specification, and not guilty as to the kidnapping charge, Count 4

of the indictment. The court revoked Weaver’s bond, and ordered a presentence

investigation and report, continuing the matter for sentencing on March 27, 2018.

       {¶ 7} At sentencing, the trial court imposed a mandatory 4-year prison term for

each of the three rape counts, Counts 1 through 3, a 3-year prison term as to Count 5,

aggravated robbery, and a 3-year prison term for Count 6, participation in a criminal

gang. The court ordered the 4-year sentence for each rape count, Counts 1 through 3, and

the 3-year sentence for Count 6, participation in a criminal gang, to be served


2
 The trial court entered a nolle prosequi as to the charges in case No. CR0201601698 on
March 1, 2018, the first date of trial in case No. CR0201601949.




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concurrently, but consecutive to the 3-year sentence imposed for Count 5, aggravated

robbery. As to the specifications, the trial court imposed mandatory and consecutive one-

year prison terms for the specifications attached to the counts. The trial court, therefore,

imposed an aggregate prison term of 11 years, of which 8 years are mandatory.

         {¶ 8} This appeal followed, with Weaver asserting the following assignments of

error:

               I. APPELLANT’S SENTENCE IS CONTRARY TO LAW AND

         THEREFORE VOID.

               II. THE TRIAL COURT LACKED JURISDICTION TO

         PROCEED ON INDICTED CHARGES THAT WERE NOT BASED ON

         CHARGES TRANSFERRED FROM JUVENILE COURT.

               III. THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE

         PRISON TERMS.

         {¶ 9} Because Weaver’s second assignment of error challenges the jurisdiction of

the trial court to try all counts of the superseding indictment, we address this issue first.

                                       II. Jurisdiction

         {¶ 10} In his second assignment of error, Weaver argues that the trial court lacked

jurisdiction to indict him on additional charges, not alleged in the complaint before the

juvenile court. In arguing the trial court could not prosecute any offenses beyond those

included in the juvenile complaint, Weaver construes R.C. 2152.10 and 2152.12 as




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providing for only transfer of the juvenile complaint, rather than transfer of jurisdiction

over the case, or the child.

       {¶ 11} The juvenile court has exclusive jurisdiction over cases alleging

delinquency of a child, unless the court properly relinquishes jurisdiction to the adult

court through bindover proceedings. State ex rel. Fryerson v. Tate, 84 Ohio St.3d 481,

484, 705 N.E.2d 353 (1999). “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 adult court.” State v.

Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 2. In this case, the

juvenile court determined that allegations of rape, with an attached gun specification,

required mandatory bindover, based on application of R.C. 2152.12.

       {¶ 12} Once the juvenile court transfers a case, the adult court:

       has jurisdiction subsequent to the transfer to hear and determine the case in

       the same manner as if the case originally had been commenced in that court,

       subject to section 2152.121 of the Revised Code, including, but not limited

       to, * * * jurisdiction to accept a verdict and to enter a judgment of

       conviction pursuant to the Rules of Criminal Procedure against the child for

       the commission of the offense that was the basis of the transfer of the case

       for criminal prosecution, whether the conviction is for the same degree or a

       lesser degree of the offense charged, for the commission of a lesser-included




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       offense, or for the commission of another offense that is different from the

       offense charged.

R.C. 2151.23(H).

       {¶ 13} After transfer to the adult court, that court’s felony jurisdiction requires a

grand jury to return an indictment after considering the evidence in the case. See Click v.

Eckle, 174 Ohio St. 88, 89 186 N.E.2d 731 (1962) (“The felony jurisdiction is invoked by

the return of a proper indictment by the grand jury of the county.”). Pursuant to Section

10, Article I of the Ohio Constitution, defendants have a right to grand jury presentment

and indictment.

              The grand jury is the ultimate charging body, and it is within its

       discretion, based on the evidence presented to it, to determine for which

       felony an accused shall be charged. The fact that the grand jury determines

       that an accused shall be charged with a felony other than that made against

       him in the original affidavit originally filed and upon which he is bound

       over to the grand jury has no effect on the validity of the indictment

       returned by the grand jury.

Foston v. Maxwell, 177 Ohio St. 74, 76, 202 N.E.2d 425 (1964), citing Clinger v.

Maxwell, 175 Ohio St. 540, 196 N.E.2d 771 (1964).

       {¶ 14} We have previously recognized the authority of a grand jury to return an

indictment that differs from the initial complaint and affidavit filed in adult criminal

proceedings. See State v. Jones, 6th Dist. Lucas No. L-09-1182, 2010-Ohio-2576, ¶ 24,




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citing State v. Adams, 69 Ohio St.2d 120, 125, 431 N.E.2d 326 (1982), superseded by

statute on other grounds as stated in State v. D.W., 133 Ohio St.3d 434, 2012-Ohio-4544,

978 N.E.2d 894. While we have not yet addressed whether a grand jury could return

additional charges based on a juvenile case, transferred to adult court, many other

jurisdictions have addressed this issue and determined that a grand jury has authority to

include additional charges in the indictment, arising from the same conduct at issue

before the juvenile court. See, e.g., State v. Beauregard, 8th Dist. Cuyahoga No. 101418,

2015-Ohio-1021, ¶ 28, citing State v. Walker, 5th Dist. Delaware No. 99 CA 2, 1999

Ohio App. LEXIS 4590 (Sept. 28, 1999); State v. Sims, 7th Dist. Mahoning No.

07MA180, 2008-Ohio-6367, ¶ 30; State v. Duncan, 9th Dist. Medina No. 3117-M, 2001

Ohio App. LEXIS 4022 (Sept. 12, 2001); State v. Whisenant, 127 Ohio App.3d 75, 81,

711 N.E.2d 1016 (11th Dist. 1998) (noting well established law regarding transfer of

jurisdiction over the “delinquent acts” and not just the charges filed in the juvenile court).

The grand jury, however, may not consider additional charges arising from different

conduct or occurrences, absent proper bindover of those crimes from juvenile court.

State v. Muhammad, 11th Dist. Geauga No. 2014-G-3182, 2014-Ohio-5771, ¶ 22, citing

State v. Fryerson, 8th Dist. Cuyahoga No. 71683, 2000 Ohio App. LEXIS 456 (Feb. 10,

2000), citing R.C. 2151.23(H).

       {¶ 15} In arguing a lack of jurisdiction, Weaver does not dispute that a single

incident provided the basis for the crimes charged in the juvenile complaint as well as the

additional charges for aggravated robbery and participation in a criminal gang, with




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attached gang participation specifications. Instead, Weaver argues that only those

charges and specifications listed in the juvenile complaint were eligible for prosecution as

an adult, without separate bindover proceedings. Weaver incorrectly construes R.C.

2152.12 narrowly, to provide for only transfer of the juvenile complaint, and not transfer

of jurisdiction over the case.

         {¶ 16} Considering the facts of this case, the charges returned by the grand jury

primarily arose from Weaver’s conduct on January 29, 2015, regarding the same victim.

Considering the language of the statute, the juvenile court relinquished jurisdiction over

the case, based on Weaver’s conduct on January 29, 2015, and not just the offenses

charged in the juvenile complaint. Once the adult court received the case, it proceeded to

prosecution “in the same manner as if the case originally had been commenced in that

court[.]” R.C. 2151.23(H). Accordingly, the state properly presented Weaver’s case to

the grand jury for prosecution on the indictment returned, relative to the incident of

January 29, 2015. Weaver’s second assignment of error, therefore, is found not well-

taken.

         {¶ 17} We note, however, that the indictment returned included an offense arising

from occurrences beyond the incident of January 29, 2015. For the separate offense of

participation in a criminal gang, the indictment specifies conduct ranging from January

2012 through May 2016.3 The juvenile court relinquished jurisdiction over Weaver’s


3
  The evidence of gang participation, presented at trial, indicated participation beginning
in January 2014, and continuing to the present day.




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case on April 8, 2016, based on allegations of criminal conduct on January 29, 2015.

While not clearly articulated as error in this appeal, the variation in the date of occurrence

implicates the trial court’s subject-matter jurisdiction over Weaver for the offense of

participation in a criminal gang. Because “the exclusive subject matter jurisdiction of the

juvenile court cannot be waived[,]” any judgment entered against Weaver, without proper

jurisdiction, would be void, and may be addressed by this court, sua sponte. See State v.

Wilson, 73 Ohio St.3d 40, 44-45, 652 N.E.2d 196 (1995); State v. Lomax, 96 Ohio St.3d

318, 2002-Ohio-4453, 774 N.E.2d 249, ¶ 17 (subject-matter jurisdiction may be

addressed by the court, even if the specific issue has not been raised by the parties).

        {¶ 18} Participation in a criminal gang, a violation of R.C. 2923.42, is a charge

that—when alleged against a juvenile—would be a felony and, while not a category I or

II offense, could be subject to discretionary bindover to adult court. In re Stanley, 165

Ohio App.3d 726, 2006-Ohio-1279, 848 N.E.2d 540, ¶ 23 (7th Dist.). To demonstrate

the offense of participation in a criminal gang, the state must prove the existence of a

criminal gang, as well as the offender’s active participation in the gang, knowledge that

the gang engages in or has engaged in a pattern of criminal gang activity, and “purposeful

promotion, furtherance, or assistance of, or commission of or engagement in, any

criminal conduct.” State v. Roberson, 6th Dist. Lucas No. L-16-1131, 2017-Ohio-4339,

¶ 72.

        {¶ 19} While the statute does not define “active participation,” we have held that

this element of the offense requires demonstration of actual, and not just nominal,




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participation in the gang, performing “some role to benefit the gang.” State v. Smith, 6th

Dist. Lucas No. L-15-1027, 2017-Ohio-776, ¶ 38-39. In other words, the state must

present evidence of more than guilt by association to support a conviction for the offense

of participating in a criminal gang. Id.

       {¶ 20} The gang participation specification, on the other hand, does not require

proof of ongoing participation with, and support for, gang activities, but only proof that

the offense charged was a felony of violence, and was committed while the offender was

participating in a criminal gang. See R.C. 2941.142. The specification enhances the

penalty for the underlying offense, and is “by its nature, ancillary to, and completely

dependent upon, the existence of the underlying criminal charge or charges to which the

specification is attached.” State v. Evans, 113 Ohio St.3d 100, 2007-Ohio-861, 863

N.E.2d 113, ¶ 15.

       {¶ 21} It is possible to both commit a violent felony while participating in a

criminal gang, resulting in an enhanced penalty under R.C. 2941.142 for the underlying

offense, and commit the separate offense of participating in a criminal gang under R.C.

2923.42. See, e.g., State v. Allen, 6th Dist. Lucas No. L-14-1078, 2016-Ohio-2742, ¶ 23

(defendant convicted of murder, with the specification he committed the murder while

participating in a criminal gang, as well as the separate offense of participating in a

criminal gang).

       {¶ 22} Based on the indictment in this case, the grand jury charged Weaver with

underlying violent offenses, committed on January 29, 2015, with specifications that




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Weaver committed these offenses while participating in a criminal gang. The grand jury

also indicted Weaver for the separate offense of participating in a criminal gang,

committed over the course of years, with nothing in the record indicating the juvenile

court relinquished jurisdiction over Weaver relative to conduct unrelated to the events of

January 29, 2015.

       {¶ 23} Without bindover proceedings relative to this separate conduct, therefore,

the trial court entered a judgment of conviction for matters still within the exclusive

jurisdiction of the juvenile court. Despite Weaver’s failure to specifically raise this issue

as error, the conviction entered for the offense of participating in a criminal gang is void,

and a nullity. See Wilson, 73 Ohio St.3d at 45, 652 N.E.2d 196 (prosecution of a child

without proper bindover is a nullity). As to the offense of participating in a criminal

gang, therefore, we remand with instructions to vacate the conviction on Count 6 in the

superseding indictment, and return the case on this count only, for further proceedings in

juvenile court under R.C. 2152.03.

                                  III. Reverse-Bindover

       {¶ 24} Finding the indictment to be proper, with the exception of Count 6 for

participation in a criminal gang, we next address the issue of reverse-bindover. In

Weaver’s first assignment of error, he challenges the trial court’s imposition of sentence,

arguing that the court’s failure to comply with the reverse-bindover proceedings under

R.C. 2152.121 resulted in a void sentence. The trial court found Weaver guilty of the

rape charges, but acquitted him on the attached firearm specifications, and therefore did




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not enter convictions on the charges that subjected Weaver to mandatory bindover. The

state concedes that the trial court erred in failing to make the determination required

under R.C. 2152.121, but argues that this failure does not render the sentence void.

        {¶ 25} As previously addressed, a conviction entered without proper subject-

matter jurisdiction is void ab initio. Wilson at 44. With proper bindover, however, the

trial court obtained subject-matter jurisdiction over the case. Id. Therefore, the

determinative issue in finding a void or a valid judgment is not whether the trial court

complied with the reverse-bindover procedures, but whether the trial court obtained

jurisdiction from the juvenile court prior to proceeding on the indictment.

        {¶ 26} “R.C. 2152.12(A)(1)(b)(ii) incorporates R.C. 2152.10(A)(2)(b) by

reference and requires transfer when there is probable cause to believe that a 16-year-old

or 17-year-old committed a category-two offense other than kidnapping while displaying,

brandishing, indicating possession of, or using a firearm.” State v. D.B., 150 Ohio St.3d

452, 2017-Ohio-6952, 82 N.E.3d 1162, ¶ 11. A “category-two offense” includes rape, in

violation of R.C. 2907.02 and aggravated robbery, in violation of R.C. 2911.01. The

juvenile court transfers cases falling within this category without any findings regarding

“the juvenile’s amenability to care or rehabilitation within the juvenile system.” D.B. at

¶ 11.

        {¶ 27} Because the juvenile court relinquished jurisdiction of the case for criminal

proceedings arising from the incident of January 29, 2015, and the grand jury properly

indicted Weaver of the charges in Counts 1, 2, 3, and 5 with the attached gang




13.
participation specifications, for which he was convicted, the trial court’s sentence was not

imposed without proper jurisdiction, and is therefore not void. See, e.g., State v. King,

6th Dist. Lucas No. L-12-1013, 2013-Ohio-1265, ¶ 24 (where transfer was mandatory,

there was nothing to impede the general trial division court’s subject-matter jurisdiction

over the case). The trial court’s jurisdiction, however, was still subject to the

requirements of R.C. 2152.121.

       {¶ 28} In this case, the complaint in delinquency alleged that Weaver committed

category-two offenses, each with a firearm specification, subjecting Weaver to mandatory

bindover. The trial court acquitted Weaver of all firearm specifications, however, and

entered convictions for offenses that would only be subject to discretionary transfer

proceedings. Therefore, as the state concedes, R.C. 2152.121 mandated a transfer back to

the juvenile court for an amenability determination regarding the crimes for which

convictions were actually obtained. D.B. at ¶ 13; see also In re D.M., 6th Dist. Lucas

Nos. L-16-1237, L-16-1238, and L-16-1270, 2017-Ohio-8768 (trial court must stay the

sentence for reverse-bindover proceedings based on conviction meriting only

discretionary transfer). This reverse-bindover procedure is “required if the crimes for

which convictions were obtained, had they been delinquency charges, would have

subjected the juvenile’s case only to discretionary, rather than mandatory, transfer

proceedings.” D.B. at ¶ 13.

       {¶ 29} Accordingly, the trial court was required to comply with R.C.

2152.121(B)(3), which provides:




14.
              If the court in which the child is convicted of or pleads guilty to the

       offense determines under division (B)(1) of this section that, had a

       complaint been filed in juvenile court alleging that the child was a

       delinquent child for committing an act that would be that offense if

       committed by an adult, division (A) of section 2152.12 of the Revised Code

       would not have required mandatory transfer of the case but division (B) of

       that section would have allowed discretionary transfer of the case, the court

       shall determine the sentence it believes should be imposed upon the child

       under Chapter 2929. of the Revised Code, shall impose that sentence upon

       the child, and shall stay that sentence pending completion of the procedures

       specified in this division. Upon imposition and staying of the sentence, the

       court shall transfer jurisdiction of the case back to the juvenile court that

       initially transferred the case and the juvenile court shall proceed in

       accordance with this division.

       {¶ 30} Here, the trial court failed to stay imposition of the sentence imposed for

Counts 1, 2, 3, and 5 with the attached gang participation specifications, as required by

R.C. 2152.121. Therefore, we must remand the case for reverse-bindover proceedings, as

required by law.

                                IV. Consecutive Sentences

       {¶ 31} In his third and final assignment of error, Weaver challenges the trial

court’s imposition of consecutive sentences. However, based on our determination that




15.
remand is appropriate for proceedings under R.C. 2152.121(B)(3), Weaver’s sentence is

not yet properly before us for review. See, e.g., In re D.M., 7th Dist. Mahoning No.

16 MA 0166, 2017-Ohio-2710, ¶ 10 (an appellate court addresses the conviction only

after proceedings are held under R.C. 2152.121(B)(3), and the sentence ordered by the

adult court is imposed). Because the trial court erred in failing to stay Weaver’s sentence

for reverse-bindover proceedings, and there has been no final determination as to whether

Weaver is amenable to adjudication in the juvenile court, Weaver’s sentence is not yet a

final judgment, appropriately challenged on appeal. Therefore, we do not address this

assignment of error.

                                      V. Conclusion

       {¶ 32} For the foregoing reasons, we find that the trial court had proper

jurisdiction to proceed on the superseding indictment, with the exception of the offense

charged in Count 6, participating in a criminal gang. However, the trial court erred in

failing to comply with the statutory reverse-bindover procedure. We therefore remand

the matter back to the trial court with instructions to vacate the conviction for Count 6,

participating in a criminal gang, and for further proceedings under R.C. 2152.03 as to

Count 6, and we remand the matter under R.C. 2152.121(B)(3) as to Counts 1, 2, 3, and

5, with the attached gang participation specifications. Appellant and appellee are ordered

to split the costs of this appeal pursuant to App.R. 24.


                                                                         Judgment reversed.




16.
                                                                      State v. Weaver
                                                                      C.A. No. L-18-1078




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Thomas J. Osowik, J.                           _______________________________
                                                           JUDGE
Christine E. Mayle, P.J.
                                               _______________________________
Gene A. Zmuda, J.                                          JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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