[Cite as State v. Hudson, 2020-Ohio-3577.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY

                                         STATE OF OHIO,

                                             Plaintiff-Appellee,

                                                     v.

                                    FRANKIE HUDSON, JR.,

                                       Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                        Case No. 17 MA 0080


                                   Criminal Appeal from the
                       Court of Common Pleas of Mahoning County, Ohio
                                   Case No. 2015 CR 01133

                                        BEFORE:
                 Gene Donofrio, Carol Ann Robb, David A. D’Apolito, Judges.


                                                JUDGMENT:
                                                  Affirmed



 Atty. Paul Gains, Prosecuting Attorney, Atty. Ralph Rivera, Assistant Prosecutor, Atty.
 Caitlyn Andrews, Assistant Prosecutor, Mahoning County Prosecutor’s Office, 21
 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee and

 Atty. John Laczko, City Centre One, Suite 975, 100 East Federal Street, Youngstown,
 Ohio 44503, for Defendant-Appellant.
                                                                                      –2–



                                          Dated:
                                       June 24, 2020

 Donofrio, J.

          {¶1}   Defendant-appellant, Frankie Hudson Jr., appeals a Mahoning County
Common Pleas Court judgment denying his motion to dismiss the indictment against him
on the basis that the trial court lacked subject matter jurisdiction.
          {¶2}   On August 15, 2013, a Mahoning County Grand Jury indicted appellant in
case number 2013 CR 828 on six counts from two separate incidents. Counts One, Two,
and Three comprised the first incident and Counts Four, Five, and Six comprised the
second incident. Count One charged appellant with aggravated murder in violation of
R.C. 2903.01(B)(F), an unspecified felony. Count Two charged appellant with aggravated
robbery in violation of R.C. 2911.01(A)(1)(C), a first-degree felony. And Count Three
charged appellant with possessing a firearm while under a disability in violation of R.C.
2923.13(A)(2)(B), a third-degree felony. Counts One and Two also contained firearm
specifications pursuant to R.C. 2941.145(A). Count Four charged appellant and a co-
defendant with aggravated murder in violation of R.C. 2903.01(B)(3), an unspecified
felony.     Count Five charged appellant and the same co-defendant with aggravated
robbery in violation of R.C. 2911.01(A)(1)(C), a first-degree felony.      And Count Six
charged appellant with possessing a firearm while under disability in violation of R.C.
2923.13(A)(2)(b), a third-degree felony.
          {¶3}   At the time of the first incident (Counts One, Two, and Three), appellant
was 17 years old. At the time of the second incident (Counts Four, Five, and Six),
appellant was 18 years old. At the time of indictment in 2013 CR 828, appellant was 20
years old.
          {¶4}   Appellant moved to sever the counts related to the first incident from the
counts related to the second incident. The trial court granted this motion and proceeded
with the counts related to the second incident. Appellant pled guilty to Count Six and
proceeded to a jury trial on Counts Four and Five. A jury found appellant and his co-
defendant not guilty of Counts Four and Five.




Case No. 17 MA 0080
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       {¶5}    On November 12, 2015, plaintiff-appellee, the State of Ohio, moved to
dismiss Counts One, Two, and Three without prejudice. At this time, appellant was 22
years old. The trial court granted the state’s motion. On the same day, a Mahoning
County Grand Jury indicted appellant in case number 2015 CR 1133 on identical Counts
One, Two, and Three alleging identical conduct from case number 2013 CR 838. The
grand jury subsequently filed a superseding indictment maintaining Counts One, Two,
and Three but adding criminal gang specifications pursuant to R.C. 2941.142(A) to
Counts One and Two. The superseding indictment also added four more charges: two
charges for attempted murder and two charges for witness intimidation.
       {¶6}    Appellant filed a motion to dismiss the indictment on the grounds that the
general division of the Mahoning County Common Pleas Court lacked subject matter
jurisdiction. Appellant argued that because Counts One, Two, and Three all occurred
when he was 17 years old, the matter should have been brought in the juvenile division.
       {¶7}    The state opposed this motion arguing that appellant was not
apprehended in case number 2015 CR 1133 until he was served with the indictment,
which occurred on November 13, 2015 when he was 22 years old. As appellant was 22
years old at the time he was apprehended, the state argued that the general division had
subject matter jurisdiction over the charges. The trial court denied appellant’s motion to
dismiss.
       {¶8}    Appellant then filed a petition for a writ of prohibition and an alternative writ
of prohibition in this court raising similar arguments as his motion to dismiss. State ex rel.
Hudson v. Sweeney, 7th Dist. Mahoning No. 16 MA 0127, 2016-Ohio-5468. This court
held “we cannot conclude that jurisdiction is patently and unambiguously lacking” and
denied the writs. Id. at ¶ 1.
       {¶9}    Appellant and the state reached a plea agreement. The state agreed to
amend Count One to involuntary manslaughter, dismiss the two attempted murder and
two witness intimidation charges, and recommend a prison sentence of 15 years. In
exchange, appellant agreed to plead no contest to the amended Count One, Count Two,
and Count Three. The trial court accepted appellant’s no contest plea.
       {¶10}   On April 24, 2017, the trial court sentenced appellant to the agreed upon
prison term of 15 years. The trial court ordered this sentence to run concurrently with



Case No. 17 MA 0080
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appellant’s sentence in case number 2013 CR 838 and concurrently to another nine-year
sentence appellant was serving in case number 2011 CR 1282A. Appellant timely filed
his notice of appeal. Appellant now raises one assignment of error.
       {¶11}   Appellant’s sole assignment of error states:

               THE TRIAL COURT ERRED BY OVERRULING DEFENDANT-
       APPELLANT’S MOTION TO DISMISS THE INDICTMENT WHEN THE
       TRIAL COURT LACKED SUBJECT MATTER JURISDICTION OVER THE
       CHARGES          BROUGHT          AGAINST         DEFENDANT-APPELLANT
       CONTRARY TO LAW CONSTITUTING AN ABUSE OF THE TRIAL
       COURT’S DISCRETION IN CONTRAVENTION OF R.C. 2151.23(I) AND
       R.C. 2152.02(C)(2).

       {¶12}   Appellant argues that the trial court did not have subject matter over
Counts One, Two, and Three because he was 17 years old at the time the events giving
rise to those counts occurred. Because he was 17 years old at the time of those actions,
he argues that the action should have originated in the juvenile division and not the
general division of the common pleas court.
       {¶13}   Motions to dismiss are subject to an abuse of discretion standard of
review. State v. Brown, 7th Dist. Mahoning No. 03-MA-32, 2005-Ohio-2939, ¶ 77. But
the issue appellant raises is whether the trial court had subject matter jurisdiction which
is an issue of law and, therefore, subject to a de novo review. State v. Williams, 12th
Dist. Butler No. CA2014-06-144, 2015-Ohio-1090, ¶ 7. Thus, an abuse of discretion
standard of review applies to the trial court’s determination of the relevant facts and a de
novo review applies to the trial court’s ruling on subject matter jurisdiction.
       {¶14}   The relevant facts are not in dispute. At the time Counts One, Two, and
Three were committed, appellant was 17 years old. At the time of indictment in case
number 2013 CR 828, appellant was 20 years old. When the state dismissed Counts
One, Two, and Three in case number 2013 CR 828 and refiled them in case number 2015
CR 1133, appellant was 22 years old.




Case No. 17 MA 0080
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       {¶15}     Pursuant to R.C. 2151.23(A)(1), the juvenile court has exclusive original
jurisdiction over child delinquency proceedings. R.C. 2152.02 defines who is and who is
not a “child” for juvenile court jurisdiction purposes. These definitions are, in relevant part:

       (1) ‘Child’ means a person who is under eighteen years of age, except as
       otherwise provided in divisions (C)(2) to (8) of this section.

       (2) Subject 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.

       (3) Any 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)(1)-(3).
       {¶16}    The provisions of R.C. 2152.02(C)(3) are also present in R.C. 2151.23(I).
This statute provides that if a person who is under 18 years of age allegedly commits an
act that would be a felony if committed by an adult but “is not taken into custody or
apprehended” for that act until after the person reaches 21 years of age, the juvenile court
does not have jurisdiction.
       {¶17}    Appellant argues that he was apprehended in this case when he was
indicted in case number 2013 CR 828, when he was 20 years old and this action should
have originated in the juvenile court. He argues that his re-indictment in case number
2015 CR 1133 on identical charges alleging identical conduct does not cure the
jurisdictional defect.
       {¶18}    Appellant was arrested in case number 2013 CR 828 on August 19, 2013.
Three of the six charges under this case number were committed when appellant was 18
years old. On January 15, 2014, appellant was sentenced on unrelated charges to a
nine-year prison sentence in case number 2011 CR 1282(A). At the time of indictment



Case No. 17 MA 0080
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and apprehension in the present case, appellant was still serving prison time in the
unrelated case and was 22 years old.
          {¶19}   Other appellate districts have upheld the practice of indicting and
apprehending defendants for acts committed when they were juveniles after they turn 21
years old pursuant to R.C. 2151.23(I).         State v. Loveless, 12th Dist. Clermont No.
CA2019-03-028, 2019-Ohio-4830, jurisdiction declined, 158 Ohio St.3d 1483; State v.
Taylor, 8th Dist. Cuyahoga No. 105322, 2017-Ohio-8066; State v. Martin, 3d Dist. Mercer
No. 10-14-12, 2015-Ohio-1339.
          {¶20}   Based on the foregoing, the general division of the Common Pleas Court
had jurisdiction over this matter and the dismissal of the original charges do not effect this
result.
          {¶21}   Accordingly, appellant’s sole assignment of error is without merit and is
overruled.
          {¶22}   For the reasons stated above, the trial court’s judgment is hereby affirmed.




Robb, J., concurs.

D’Apolito, J., concurs.




Case No. 17 MA 0080
[Cite as State v. Hudson, 2020-Ohio-3577.]




         For the reasons stated in the Opinion rendered herein, the sole assignment of
 error is overruled and it is the final judgment and order of this Court that the judgment
 of the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be
 waived.
         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                       NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
