[Cite as In re R.G., 2018-Ohio-4517.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 107081




                                               IN RE: R.G.


                                        [Appeal by the State of Ohio]




                                               JUDGMENT:
                                                AFFIRMED



                                        Civil Appeal from the
                               Cuyahoga County Court of Common Pleas
                                          Juvenile Division
                                       Case No. DL 17117631

        BEFORE: Kilbane, P.J., Boyle, J., and Celebrezze, J.

        RELEASED AND JOURNALIZED:                     November 8, 2018
ATTORNEYS FOR APPELLANT

Michael C. O’Malley
Cuyahoga County Prosecutor
Anthony Thomas Miranda
Yasmine M. Hasan
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113



ATTORNEYS FOR APPELLEE

Mark A. Stanton
Cuyahoga County Public Defender
Frank Cavallo
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


Also Listed

R.M.G.
1060 East 687th - Up
Cleveland, Ohio 44103

D.S.
446 Richmond Park E Apartment 517 A
Cleveland, Ohio 44143
MARY EILEEN KILBANE, P.J.:

          {¶1}   In this companion appeal, the state of Ohio (“the State”) appeals from the

judgment of the Cuyahoga County Court of Common Pleas, Juvenile Division, dismissing R.G.’s

indictment as a serious youthful offender (“SYO”).1 For the reasons set forth below, we affirm.

          {¶2}   On November 21, 2017, the State charged R.G., by complaint, with one count of

first-degree felony grand theft, with a one-year firearm specification attached. R.G. was 16

years old at the time of the charged offense. The complaint did not contain a SYO specification.

    On January 10, 2018, the State amended the complaint to add the name of codelinquent, K.A.

The amended complaint did not contain a SYO specification.

          {¶3}   Subsequently, a grand jury returned an indictment charging R.G. with first-degree

felony grand theft, with a one-year firearm specification. In addition, the grand jury indictment

now contained the SYO specification alleging R.G. was subject to discretionary SYO sentences.

The State filed this indictment on March 23, 2018.

          {¶4}   On April 10, 2018, the date previously scheduled for the adjudicatory hearing, the

State indicated they could not proceed to trial because R.G. had not been arraigned on the

recently filed indictment, which contained the SYO specification. The juvenile court concluded

the indictment was improper because neither the original or the amended complaint requested,

alleged, or specified that R.G. was a SYO.

          {¶5}   In its journal entry, dated April 12, 2018, dismissing the indictment, the juvenile

court stated:

          The state of Ohio filed the indictment herein on March 23, 2018, more than 90

          days following the child’s arraignment, more than 60 days after the first pre-trial,



1
This is a companion case to In re K.A., 8th Dist. Cuyahoga No.107080.
       and more than 30 days after the last court hearing. The Court further finds that

       no Notice of Intent to Seek a Serious Youthful Offender Dispositional Sentence

       was filed with the Court.

       {¶6}    It is from this judgment that the State now appeals, raising the following

assignment of error for review.

                                    Assignment of Error One

       The trial court erred in dismissing an indictment of R.G. as a serious youthful
       offender.

       {¶7}    We review a trial court’s decision on a motion to dismiss an indictment under a de

novo standard of review.      State v. Knox, 8th Dist. Cuyahoga Nos. 103662 and 103664,

2016-Ohio-5519, ¶ 12, citing State v. Gaines, 193 Ohio App.3d 260, 2011-Ohio-1475, 951

N.E.2d 814 (12th Dist.). “De novo review requires an independent review of the trial court’s

decision without any deference to the trial court’s determination.” State v. McCullough, 8th

Dist. Cuyahoga No. 105959, 2018-Ohio-1967.

       {¶8}    The State argues it can obtain an indictment of a juvenile as a SYO, despite the

existence of a pending complaint and without complying with the time requirements of written

notice under R.C. 2152.13(A)(4).

       {¶9}    R.C. 2152.13 provides in relevant part:

       (A) [A] juvenile court may impose a serious youthful offender dispositional
       sentence on a child only if the prosecuting attorney of the county in which the
       delinquent act allegedly occurred initiates the process against the child in
       accordance with this division, and the child is an alleged delinquent child who is
       eligible for the dispositional sentence. The prosecuting attorney may initiate the
       process in any of the following ways:

       (1) Obtaining an indictment of the child as a serious youthful offender;

       (2) The child waives the right to indictment, charging the child in a bill of
       information as a serious youthful offender;
       (3) Until an indictment or information is obtained, requesting a serious youthful
       offender dispositional sentence in the original complaint alleging that the child is
       a delinquent child;

       (4) Until an indictment or information is obtained, if the original complaint does
       not request a serious youthful offender dispositional sentence, filing with the
       juvenile court a written notice of intent to seek a serious youthful offender
       dispositional sentence within twenty days after the later of the following, unless
       the time is extended by the juvenile court for good cause shown:

       (a) The date of the child’s first juvenile court hearing regarding the complaint;

       (b) The date the juvenile court determines not to transfer the case under section
       2152.12 of the Revised Code.

       After a written notice is filed under division (A)(4) of this section, the juvenile
       court shall serve a copy of the notice on the child and advise the child of the
       prosecuting attorney’s intent to seek a serious youthful offender dispositional
       sentence in the case.

       {¶10} The State posits it is not constrained by the 20-day notice limitation in R.C.

2152.13(A)(4) when it elects to obtain an indictment under division R.C. 2152.13(A)(1). The

State contends it has discretion to exercise the option to obtain an indictment at anytime

following the denial of a transfer under R.C. 2152.12.

       {¶11} This court recently addressed the same issue in In re T.S., 8th Dist. Cuyahoga No.

106825, 2018-Ohio-3680.      In T.S., we held the state must provide notice to the alleged

delinquent child of its intent to pursue indictment of the child as a serious youthful offender

within 20 days of the juvenile court’s determination to deny transfer.          We find this case

dispositive.

       {¶12} In T.S., we stated:

       The state’s argument is centered on the words “[u]ntil an indictment * * * is
       obtained” which it takes to mean that the return of an indictment under division
       (A)(1), at any point in time, operates to trump all other provisions of the statute.

       * * * Both parties are ignoring the relevant language in R.C. 2152.13(C)(1) which
       provides: A child for whom a serious youthful offender dispositional sentence is
       sought by a prosecuting attorney has the right to a grand jury determination of
       probable cause that the child committed the act charged and that the child is
       eligible by age for a serious youthful offender dispositional sentence. The grand
       jury may be impaneled by the court of common pleas or the juvenile court.

       Read in conjunction with this division the meaning of the phrase “[u]ntil an
       indictment * * * is obtained” is clear. Under either section (A)(3) or (A)(4) the
       state may provide notice to the alleged delinquent child of its intent to pursue a
       SYO disposition. However, the child is entitled to a grand jury determination of
       probable cause pursuant to division (C)(1). This is the indictment referenced by
       the language in question in divisions (A)(3) and (A)(4).

       Within this context, it is clear, under R.C. 2152.13(A)(4), that the state must
       provide notice to the alleged delinquent child of its intent to pursue an indictment
       of the child as a serious youthful offender within 20 days of the juvenile court’s
       determination to deny transfer. To hold otherwise would render divisions (A)(3),
       (A)(4) and (B) of R.C. 2152.13 superfluous. The point of both (A)(3) and (A)(4)
       is to provide notice to the child that the state intends to seek a SYO disposition.
       Once this occurs, the juvenile court is required, under R.C. 2152.13(B) to “hold a
       preliminary hearing to determine if there is probable cause that the child
       committed the act charged and is by age eligible for, or required to receive, a
       serious youthful offender dispositional sentence.” If the court finds that such
       probable cause exists, the child is entitled to a speedy trial right pursuant to
       division (C).

       Pursuant to R.C. 2152.13(C)(1)(c), a juvenile’s speedy trial right begins as of the
       date that the prosecuting attorney files the written notice of intent to seek a serious
       youthful offender disposition. In other words, when the state brings a complaint
       that does not initially include a SYO specification but instead later provides notice
       of its intent to seek an SYO disposition pursuant to R.C. 2152.13(A)(4) the child’s
       speedy trial right attaches at the date the written notice is provided rather than the
       date that the prosecutor subsequently obtains an indictment. The state’s proposed
       interpretation of the statute, whereby it would not be bound by the notice
       requirements of R.C. 2152.13(A)(4), would contradict the plain terminology of
       R.C. 2152.13(C)(1)(c) and create a loophole for circumventing the speedy trial
       right set forth therein. See also In re D.S., 8th Dist. Cuyahoga No. 97757,
       2012-Ohio-2213, ¶ 15 (noting, in dicta, that a juvenile’s speedy trial right attached
       upon the state’s filing of a notice of intent to seek an SYO disposition even when
       an indictment was subsequently obtained).

In re T.S. ¶ 7-11.

       {¶13} In support of its argument, the State cites In re J.B., 12th Dist. Butler No.

CA2004-09-226, 2005-Ohio-7029, which held that nothing in R.C. 2152.021 or 2152.13

prohibits a prosecutor from initiating a SYO proceedings via indictment when a complaint has
previously been filed. In light of T.S., we are not persuaded by the State’s reliance on In re J.B.,

as that case failed to address the relevant language in R.C. 2152.13(B) and (C)(1) as applied to

the disputed terminology in division (A)(4).

       {¶14} Based on the foregoing, we conclude that the juvenile court properly dismissed the

indictment because it was obtained after the 20-day period for notice to R.G. had lapsed.

       {¶15} Accordingly, we overrule the sole assignment of error.

       {¶16} Judgment is 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, juvenile division, 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.




MARY EILEEN KILBANE, PRESIDING JUDGE

MARY J. BOYLE, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
