[Cite as State v. Taylor, 2017-Ohio-8066.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105322




                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                     LEON C. TAYLOR
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-590843-A

        BEFORE: Stewart, J., McCormack, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: October 5, 2017
ATTORNEYS FOR APPELLANT

Timothy Young
State Public Defender

Brooke M. Burns
Assistant State Public Defender
250 East Broad Street, Suite 1400
Columbus, OH 43215


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

Daniel T. Van
Frank Romeo Zeleznikar
Assistant County Prosecutors
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:

      {¶1} In 2000, defendant-appellant Leon Taylor, then 17 years of age, had what his

12-year-old victim described as “consensual” sexual intercourse with her. The victim

identified Taylor to the police, and vaginal and anal swabs were taken from her, but the

police did not further pursue the investigation — it appeared that the families of both

Taylor and the victim desired to resolve the matter privately. The swabs were tested 14

years later, and both the vaginal and anal swabs contained a positive match with Taylor’s

DNA. This caused the state to indict Taylor on counts of rape and kidnapping. He

subsequently pleaded guilty to sexual battery and was sentenced to three years in prison.

One year later, Taylor filed a motion to vacate his conviction on grounds that the general

division of the court of common pleas lacked jurisdiction over him because he was only

17 years of age when he committed the violation and therefore under the jurisdiction of

the juvenile division. The court denied the motion to vacate the conviction without

opinion. This appeal followed.
       {¶2} The juvenile court has exclusive jurisdiction over a child (any person who is

under 18 years of age) who is alleged to be delinquent for having violated any law that

would be an offense if committed by an adult. See R.C. 2151.23(A)(1) and 2152.02(E)(1).

 A person is deemed to be 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.”

R.C. 2152.02(C)(2). In no event, however, can a person be adjudicated in juvenile court

after a person has turned 21 years of age: “[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.” R.C. 2152.02(C)(3).

       {¶3} This point is underscored by R.C. 2151.23(I):

       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.

       {¶4} We have held that R.C. 2151.23(I) contains three requirements for divesting

the juvenile court of jurisdiction:
        (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.

(Emphasis deleted.) In re H.C., 8th Dist. Cuyahoga No. 102601, 2015-Ohio-3676, ¶ 10.

        {¶5} There is no question that Taylor was under the age of 18 at the time he

committed the offense and that the offense was one that, if committed by an adult, would

be a felony. Taylor’s motion to vacate his conviction contested only whether he was

“taken into custody or apprehended” for the offense prior to turning 21 years of age.

Citing our acknowledgment that there is little precedent on the issue of what constitutes

being    “apprehended,”   State   v.   Lindstrom,   8th   Dist.   Cuyahoga     No.      96653,

2011-Ohio-6755, ¶ 14, Taylor maintains that we should use the word “apprehend” in the

sense of “perceiving” or “being aware.”       Relying on this meaning of the word, he

maintains that the police, with the information available at the time he committed the

offense, were aware of his identity and a delinquency case against him was “possible.”

He thus argues that the juvenile division had exclusive jurisdiction over the matter.
       {¶6} This case has a very troubling set of facts: at all times, the police were aware

that the victim named Taylor as the person who engaged in sexual conduct with her and

Taylor, from the beginning, admitted as much; yet he was not arrested.            The state

represented to the court that a follow-up report by a police detective assigned to

investigate the case in 2000 stated that the Cuyahoga County Department of Children and

Family Services had been “active” with the case and that the police would be contacted

“should there be any further need for police involvement[.]” The police inaction is

mystifying — this was a case of statutory rape given that the victim was 12 years old.

See R.C. 2907.02(A)(1)(b). The state acknowledged this inaction during the plea

proceedings: the assistant prosecuting attorney told the court that “there’s not a real

good reason” for the delay in prosecuting Taylor and that “[t]he police did not [do] much

investigation on this case.” The assistant prosecuting attorney told the court that the rape

kit was one of thousands that were forced to be tested and that “[i]t’s no surprise that the

defendant’s DNA is in that rape kit. * * * It’s no surprise because the police did know.”
      {¶7} In light of all the circumstances surrounding this case, it appears that an

earnest consideration of prosecutorial discretion would have yielded a result different

from the one presented here. At all times, the authorities knew that Taylor was the one

and only named suspect in this case; he admitted to engaging in sexual conduct with the

victim; Taylor’s whereabouts were never unknown; and subsequent to the offense at issue

here, Taylor was charged for, and convicted of, other offenses prior to turning 21.

Nevertheless, we have no choice but to find that the general division of the common pleas

court had jurisdiction over this matter. We reject Taylor’s argument that he had been

taken into custody or apprehended for purposes of R.C. 2152.02(C)(3) when he had been

identified as the offender. There is no question that Taylor had not been arrested or

otherwise taken into custody at the time the police investigated the allegations made

against him. Taylor argues that the police “apprehended him because they had ‘become

aware’ of Leon, had ‘perceived’ Leon, and had an ‘understanding’ and ‘grasp’ of Leon

and his whereabouts at the time of the alleged offense — and they had positively

identified him in 2000.”
       {¶8} Taylor’s suggested meaning of the word “apprehended” — to perceive in the

sense of becoming aware of something — is inconsistent with the intent behind R.C.

2151.23(I). The statute speaks in terms of a person who commits an act but is not “taken

into custody” or “apprehended for” that act until after that person attains 21 years of age.

Read in context, the phrases “apprehended for” and “taken into custody” both indicate a

form of detention as opposed to a mere thought or perception that a person named as the

perpetrator of an offense could be arrested or detained. Using the phrase “apprehended

for” as being synonymous with detention, we agree that Taylor was not apprehended for

his acts before turning 21 years of age. The general division of the common pleas court

thus had jurisdiction over the matter.

       {¶9} Taylor also argues that he was prejudiced by the state’s failure to prosecute

this case in 2000 because he lost the opportunity for an amenability determination in

juvenile court, would have been subject to a different sexual offender classification, and

may have been eligible to have the record of his case sealed. These are assertions of

preindictment delay.
       {¶10} “An unjustifiable delay between the commission of an offense and a

defendant’s indictment therefor, which results in actual prejudice to the defendant, is a

violation of the right to due process of law under the United States and Ohio

Constitutions.” State v. Luck, 15 Ohio St.3d 150, 472 N.E.2d 1097 (1984), paragraph

two of the syllabus. “Actual” prejudice is determined on a case-by-case basis, State v.

Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69 N.E.3d 688, ¶ 20. If the defendant

shows actual prejudice from the delay, the burden shifts to the state to establish a

justifiable reason for the delay. State v. Whiting, 84 Ohio St.3d 215, 217, 702 N.E.2d

1199 (1998), citing Luck at 154.

       {¶11} It is possible that Taylor could have shown actual prejudice for all the

reasons that he argues here. The burden then would have shifted to the state to show that

the delay was justified.

       {¶12} The record shows that Taylor did file a motion to dismiss based on

preindictment delay but chose not to pursue it. The attorney who filed that motion later

withdrew as counsel, and a new attorney negotiated the plea deal. During sentencing,

new defense counsel stated, “I consulted with Leon about filing a motion for this, some

kind of due process violation or preindictment delay. And he told me — you know what

he said? Let’s not even go there. It’s a fact that I had sex with this girl.” Even if Taylor

had not withdrawn his motion to dismiss for preindictment delay, his guilty plea waived

the claim. State v. Ramos, 8th Dist. Cuyahoga No. 104550, 2017-Ohio-934, ¶ 2.
        {¶13} We earlier noted that we are troubled by how this case has been handled.

At the sentencing hearing, when addressing the lack of initial investigation and follow up

on this case, the state told the court that the victim’s family and defendant’s family went

to the same church and “wanted to treat this as a family incident and deal with it that

way.” The assistant prosecuting attorney characterized the matter as “a situation where

no one wanted to make waves, so they dealt with it.” When addressing the court prior to

being sentenced, Taylor stated:

        Your Honor. This case, I mean I was 17 years old. I was a child. We both
        were children. I didn’t know she was 12 years old. That’s still my friend
        to this day. I still have contact with her.

        ***

        I try [sic] to take responsibility for the case then, Your Honor. And they
        said it’s not a crime because it was consensual. Then I was trying to man
        up. If there was [a] crime, then I actually — it should have been handled
        then. And now it seems like I’m getting more time now as an adult than I
        would have had when I was a child.

Tr. 34-35.

        {¶14} There is no legitimate or justifiable explanation for discontinuing the

investigation on a statutory rape case. That Taylor is now being punished as a felon

rather than adjudicated as a juvenile because of it is alarming. Nonetheless, we are

bound by the express language of R.C. 2151.23(I).         Because Taylor had not been

apprehended for committing the offense until after he turned 21 years of age, the general

division of the court of common pleas properly exercised jurisdiction over his criminal

case.
       {¶15} Judgment affirmed.

       It is ordered that appellee recover of appellant 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.



______________________________________________
MELODY J. STEWART, JUDGE

TIM McCORMACK, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
