[Cite as In re H.C., 2015-Ohio-3676.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                      No. 102601




                                         IN RE: H.C.
                                        A Minor Child




                                   JUDGMENT:
                             REVERSED AND REMANDED



                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                                    Case No. DL-15100449


        BEFORE: Celebrezze, A.J., E.A. Gallagher, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: September 10, 2015
ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel T. Van
       Brett Hammond
Assistant Prosecuting Attorneys
1200 Ontario Street, 8th Floor
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Robert L. Tobik
Cuyahoga County Public Defender
BY: Jeffery Gamso
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., A.J.:

       {¶1} This cause came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1. Appellant, the state of Ohio (“the state”), brings this

appeal challenging the juvenile court’s dismissal of the state’s complaint against appellee,

H.C., for lack of jurisdiction. After a thorough review of the record and law, this court

reverses the dismissal of the case and remands the case to the juvenile court.

       {¶2} On January 14, 2015, appellant, the state, filed a complaint against appellee,

37-year-old H.C., for the rape and kidnapping of a female victim. The state alleged that

on January 16, 1995, H.C., then 17 years old, sexually assaulted a 14-year-old victim.

       {¶3} On January 15, 2015, the state filed a brief in support of jurisdiction and a

request for oral hearing. The state argued that the juvenile court possessed jurisdiction to

hear the case pursuant to R.C. 2152.02(C)(2)-(3) and 2151.23(I) because H.C. was a

minor at the time of the alleged crimes and had been taken into custody for the offenses

prior to turning 21 years old. In support of its argument, the state averred that H.C. was

interviewed at the Cleveland Police Department on the day after the alleged rape. The

state claimed that H.C. was Mirandized and provided officers with a written statement in

which he admitted to engaging in consensual sex with the victim. The state further

posited that a booking card, dated February 2, 1995, evidenced that H.C. had been taken

into custody for the rape because the words “Non-Physical” were typed in the space
adjacent to the phrase “Arrested at.” A poor-quality photocopy of the booking card was

attached to the state’s brief for the juvenile court’s consideration.

       {¶4} One day later, on January 16, 2015, the juvenile court dismissed the state’s

complaint with prejudice for lack of jurisdiction pursuant to R.C. 2151.23(I).             The

juvenile court’s journal entry made no mention of the state’s motion or the booking card,

and did not address the state’s allegation that H.C. had been in custody for the purported

rape prior to turning 21 years old. Subsequently, the state filed this appeal arguing that

the trial court erred in dismissing the charges against H.C. for lack of jurisdiction.

       {¶5} “Subject matter jurisdiction is the power of a court to entertain and adjudicate

a particular class of cases.”      Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75,

2014-Ohio-4275, 21 N.E.3d 1040, ¶ 19. “The exclusive subject matter jurisdiction of the

juvenile court cannot be waived.” State v. Wilson, 73 Ohio St.3d 40, 652 N.E.2d 196

(1995), paragraph two of the syllabus. A trial court’s dismissal for lack of subject matter

jurisdiction is a question of law that appellate courts review de novo. In re T.J.B., 1st

Dist. Hamilton No. C-130725, 2014-Ohio-2028, ¶ 7, citing Dikong v. Ohio Supports, Inc.,

2013-Ohio-33, 985 N.E.2d 949, ¶ 9 (1st Dist.).

       {¶6} 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.’”

State ex rel. Jean-Baptiste v. Kirsch, 134 Ohio St.3d 421, 2012-Ohio-5697, 983

N.E.2d 302, quoting R.C. 2151.23(A)(1).            {¶7}    R.C.    2151.23(I)     limits   the
jurisdictional scope of the juvenile court by providing:

      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
      (B) and (C) of section 2151.26 of the Revised Code do not apply
      regarding the act, the case charging the 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 the court having
      jurisdiction of the offense has all authority and duties in the case as it
      has in other criminal cases commenced in that court.

      {¶8} 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.

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.
      {¶9} The parties do not dispute that the juvenile court would have

jurisdiction over this case if H.C. was “taken into custody or apprehended” for the

alleged 1995 rape before he turned 21 years old. However, the parties differ on

why the case should be remanded.        H.C. requests a remand so that both parties may

have an opportunity to present evidence and testimony at an evidentiary hearing on the

issue, and so that the juvenile court may make an informed decision.    On the other hand,

the state asks us to find that H.C. was “taken into custody or apprehended” for the crime

based on the record before us and asks us to remand so that the juvenile court may

proceed with the case.

      {¶10} We begin by analyzing the relevant statutes at issue, and by noting that the

case law on this topic is sparse. 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.

As such, we discern three 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.)
       {¶11} In this case, the state fulfilled the first requirement by filing a complaint that

set forth H.C.’s birth date and alleged that he was 17 years old at the time of the offense.

The second requirement was met when H.C. was charged with the rape and kidnapping of

a 14-year-old girl, both of which would be first-degree felony crimes if committed by an

adult under R.C. 2907.02(A) and 2905.01(A), respectively. Thus, the only remaining

issue is whether H.C. was “taken into custody or apprehended” for the alleged crimes

prior to turning 21 years old.

       {¶12} This issue was clearly anticipated by the state when it submitted its brief in

support of jurisdiction. The state averred that H.C. was detained and brought to the

Cleveland Police Department for questioning when he was 17 years old. Moreover, the

state posited that H.C. provided authorities with a statement in which he admitted to

having consensual sex with the victim. Additionally, the state attached a photocopy of a

booking card for the court’s review in furtherance of its argument that H.C. had been

“taken into custody or apprehended” within the meaning of R.C. 2151.23(I).

       {¶13} However, our review of the juvenile court’s entry disposing of the

complaint reveals that the trial court neither considered nor addressed the merits of the

state’s argument. Although the juvenile court in this case relied on R.C. 2151.23(I)

when dismissing the complaint, the only factual material the court relied on was that H.C.

was 37 years old at the time the complaint was filed. We find it difficult to comprehend

that the court could adequately dismiss the complaint under R.C. 2151.23(I) without

remarking on the state’s brief or holding an evidentiary hearing to address the state’s
substantial allegations.

       {¶14} Moreover, we cannot ignore the significant questions that remain

unanswered regarding whether or not H.C. was “taken into custody or apprehended” for

the alleged crimes.    For example, the circumstances behind H.C.’s questioning at the

police department and how long he was detained remain unknown.             Furthermore, what

the investigating officers meant by indicating “non-physical” next to “arrested at” on the

booking card remains a mystery. These important issues could have, and should have,

been investigated and resolved by the trial court based on the significant allegations made

by the state prior to dismissing the complaint under R.C. 2151.23(I).

       {¶15} Based on the anemic record before us, due in part to the juvenile court’s

hasty dismissal of the complaint, we are presently unable to make an adequate

determination as to whether or not H.C. was “taken into custody or apprehended” within

the meaning of the statute. We reiterate that our disposition of this case makes no

recommendation regarding whether or not H.C. was, in fact, “taken into custody or

apprehended” for the alleged crimes.      However, we do believe that the trial court failed

to investigate the state’s plausible allegations and failed to adequately explain its rationale

for dismissing the complaint under R.C. 2151.23(I).

       {¶16} Therefore, we reverse the dismissal of this case and remand the case to the

juvenile court, which is directed to hold an evidentiary hearing on the allegations made in

the state’s jurisdictional brief and to make a determination as to whether H.C. was “taken

into custody or apprehended” within the meaning of R.C. 2151.23(I).
       {¶17} This cause is reversed and remanded to the lower court for further

proceedings consistent with this opinion.

       It is ordered that appellant recover of said 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, 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.



_________________________________________________________
FRANK D. CELEBREZZE, JR., ADMINISTRATIVE JUDGE

EILEEN A. GALLAGHER, J., and
SEAN C. GALLAGHER, J., CONCUR
