In re D.M.S.
PER CURIAM:
{¶ 1} The State of Ohio appeals the March 27, 2020 Judge‘s Order entered in the underlying, unresolved delinquency case in juvenile court. In the March 27 Order, the juvenile court denied the State‘s motion to transfer the case for criminal prosecution to the General Division of the Montgomery County Court of Common Pleas (“adult court“). The State‘s request for transfer asserted that the transfer (or bindover) to adult court was discretionary rather than mandatory.
{¶ 3} On our own review, we questioned the authority for the State‘s appeal and ordered the parties to address whether the State‘s appeal was an appeal as a matter of right or a discretionary appeal requiring a concurrent motion for leave under
Appeal as of Right vs. Discretionary Appeal
{¶ 4} The State has a limited right of appeal in criminal and delinquency matters. By statute, a prosecuting attorney “may appeal as a matter of right any decision of a trial court in a criminal case, or any decision of a juvenile court in a delinquency case, which decision grants a motion to dismiss all or any part of an indictment, complaint, or information, a motion to suppress evidence, or a motion for the return of seized property or grants post conviction relief * * *.”
{¶ 6} In A.J.S., the State appealed an order that denied a mandatory bindover because of a lack of probable cause. A.J.S. at ¶ 19. The Supreme Court found that the order “bars the state from prosecuting a juvenile offender as an adult for a criminal offense. It is therefore the functional equivalent of a dismissal of a criminal indictment and constitutes a final order from which the state may appeal as a matter of right.” Id. at syllabus.
{¶ 7} In M.P., the State appealed an order denying a discretionary bindover. The denial was not based on a lack of probable cause, as here and in A.J.S. Rather, the Court denied the bindover motion because it found the child amenable to care or rehabilitation in the juvenile system. The Supreme Court declined to extend A.J.S. to the facts of M.P. “[b]ecause of the important difference between mandatory-bindover and discretionary-bindover proceedings.” M.P., 124 Ohio St.3d 445, 2010-Ohio-599, 923 N.E.2d 584, ¶ 10. The Court explained:
Juvenile courts possess exclusive jurisdiction over children alleged to be delinquent for committing acts that would constitute a crime if committed by an adult.
R.C. 2151.23(A) . Under certain circumstances, however, the juvenile court has the duty to transfer a case, or bind a juvenile over, to the adult criminal system.R.C. 2152.10 and2152.12 . When the state requests a mandatory bindover, the juvenile court determines whether the child is eligible for mandatory bindover according to the child‘s age, the nature of the act, andother circumstances, and whether probable cause exists to believe that the juvenile committed the act charged. R.C. 2152.10(A) and2152.12(A)(1) ;Juv.R. 30(A) . If the child is eligible for mandatory bindover and if probable cause exists to believe that the juvenile did commit the acts charged, the only procedural step remaining is for the court to enter the order of transfer.Juv.R. 30(B) .When the state requests a discretionary bindover, the juvenile court is also to determine the age of the child and whether probable cause exists to believe that the juvenile committed the act charged.
R.C. 2152.10(B) and2152.12(B)(1) and(2) . However, if probable cause exists and the child is eligible by age, the juvenile court must then continue the proceeding for a full investigation.R.C. 2152.12(C) andJuv.R. 30(C) . This investigation includes a mental examination of the child, a hearing to determine whether the child is “amenable to care or rehabilitation within the juvenile system” or whether “the safety of the community may require that the child be subject to adult sanctions,” and the consideration of 17 other statutory criteria to determine whether a transfer is appropriate.Juv.R. 30(C) ;R.C. 2152.12(B) ,(C) ,(D) , and(E) .
Id. at ¶ 11-12. The Court noted that probable cause determinations involved questions of law, reviewed de novo, while amenability determinations involve “a broad assessment of individual circumstances and is inherently individualized and fact-based,” and are reviewed for an abuse of discretion. Id. at ¶ 14.
{¶ 9} The Supreme Court in M.P. recognized but did not reach the question presented here: whether the denial of a discretionary bindover for lack of probable cause is controlled by the rationale in A.J.S. Id. at ¶ 14. The parties have not pointed us to any cases that directly address the issue, and we have found no cases analyzing A.J.S. and M.P. in the precise context presented here.1 For the following reasons, we conclude that the rationale of A.J.S. applies, and that the State has an appeal as of right to challenge the no-probable-cause denial of a discretionary bindover.
{¶ 10} In A.J.S., the Court accepted the State‘s argument that the denial of a mandatory bindover for lack of probable cause was the “functional equivalent of a dismissal,” which the State may appeal as of right. A.J.S. at ¶ 32-33;
{¶ 11} The State similarly argues here that the March 27 Order prevents it from pursuing a judgment on the reckless homicide charge against D.M.S. in adult court. D.M.S. counters that nothing has actually been dismissed, and that the State still has the ability to proceed against him in juvenile court on other, lesser charges. However, D.M.S. does acknowledges that the State cannot prosecute him for reckless homicide in adult court.
{¶ 12} This was the determinative factor in A.J.S., and it exists here as well. A criminal indictment of D.M.S. in adult court has been foreclosed by the juvenile court‘s order. We are not convinced that this case should have a different outcome based on the distinctions drawn in M.P. about amenability determinations, as those are not at issue here. We conclude that A.J.S. controls the outcome of this case. Because the March 27 Order is the functional equivalent of a dismissal in that it forecloses criminal prosecution in adult court, the State may appeal it as a matter of right.
Final Appealable Order
{¶ 13} We also asked the parties to address whether the March 27 Order is a final appealable order. Whether a state‘s appeal as a matter of right must also be taken from an order that is final and appealable has not been consistently answered in Ohio. See,
In 1994, in what arguably could be described as dicta, the Supreme Court described the State‘s right to appeal by leave of court as an “exception” to the rule that interlocutory orders are not final or appealable. State ex rel. Steckman v. Jackson, 70 Ohio St.3d 420, 438-439, 639 N.E.2d 83 (1994), overruled on other grounds by State ex rel. Caster v. Columbus, 151 Ohio St.3d 425, 2016-Ohio-8394, 89 N.E.3d 598.
In 2007, the Supreme Court relied on Steckman to explicitly hold that the State could seek leave to appeal from a trial court‘s interlocutory, pretrial discovery order. State ex rel. Mason v. Burnside, 117 Ohio St.3d 1, 2007-Ohio-6754, 881 N.E.2d 224, ¶ 13-14. That same year the court also reversed a court of appeals’ dismissal of a state‘s as-of-right appeal for lack of a final appealable order, holding that the state‘s appeal statute, and not the final appealable order statute, was dispositive. State v. Craig, 116 Ohio St.3d 135, 2007-Ohio-5752, 876 N.E.2d 957, ¶ 9-16 (“The state premises its argument on two statutes,
R.C. 2505.02 , which governs final, appealable orders, andR.C. 2945.67 , which speaks to the state‘s right to appeal the dismissal of an indictment in whole or in part. We find the latter statute dispositive and, accordingly, discuss only it“). Craig suggests that a finality analysis is notrequired. Id. at ¶ 16 (“We need go no further“). In 2008, the Supreme Court examined the finality of an order denying mandatory transfer of a juvenile to the general division of the common pleas court before finding that it was an appeal as of right, suggesting that a finality analysis is required. In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307, 897 N.E.2d 629, ¶ 13-33. The decision also suggested that whether an order was final was a distinct question from whether the State could appeal it, holding that “even when a trial court‘s order constitutes a final order pursuant to
R.C. 2505.02 and2505.03 , the state may appeal from that order only by leave of the court of appeals unless it is one of the types of orders thatR.C. 2945.67(A) permits the state to appeal as of right.” Id. at ¶ 30. In 2010, the Court affirmed an appellate court‘s grant of leave to appeal an order granting reconsideration of a motion for acquittal, where the order left charges pending against the defendant, without explicitly resolving whether the reconsideration order was a final appealable order. State v. Ross, 128 Ohio St.3d 283, 2010-Ohio-6282, 943 N.E.2d 992, ¶ 52.
State v. Jones, 2017-Ohio-5758, 94 N.E.3d 971, ¶ 11-13 (2d Dist.).
{¶ 14} Also in 2010, in M.P., the Supreme Court analyzed the discretionary bindover order only under the State‘s appeal statute, and not in terms of provisional remedies or the final appealable order statute. The Court did not cite
{¶ 15} In Jones, this court concluded that the existence of a final appealable order was necessary to our review of a discretionary appeal by the State, in that the time to appeal began to run under
{¶ 16} In short, the law in Ohio appears unsettled as to whether an order that the State may appeal as a matter of right under
{¶ 17}
{¶ 18} The Supreme Court of Ohio has confirmed that a discretionary-bindover proceeding qualifies as a provisional remedy and satisfies the first prong, in that it “is ancillary to the adult-court proceedings that would determine whether [the child] is guilty and would impose sentence if appropriate.” Id. at ¶ 12-13.
{¶ 20} The third prong – whether the State would have a meaningful or effective remedy following final judgment – is also satisfied. In A.J.S., the Supreme Court explained this prong‘s satisfaction as a function of the application of the Double Jeopardy Clause:
In Breed [v. Jones], the court determined that jeopardy attaches in a delinquency proceeding when the juvenile court begins to hear evidence as the trier of fact. Breed, 421 U.S. at 531, 95 S.Ct. 1779, 44 L.Ed.2d 346, citing United States v. Jorn (1971), 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543; Serfass v. United States (1975), 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265. Therefore, the court held that the prosecution of a child in adult court following an adjudicatory proceeding in juvenile court violated the Double Jeopardy Clause of the Fifth Amendment as applied to the states through the Fourteenth Amendment. Breed at 541, 95 S.Ct. 1779, 44 L.Ed.2d 346.
Because double jeopardy attaches once the adjudicatory phase of the delinquency proceedings commences, a juvenile court order finding no probable cause that the child committed the charged offense, and thus denying a motion for mandatory transfer, determines the action with respect to the provisional remedy and prevents a judgment in the state‘s favor.
Moreover, it prevents the state from obtaining a meaningful or effective remedy by way of appeal at the conclusion of those proceedings. Thus, a juvenile court‘s decision denying a motion for mandatory bindover satisfies the test for determining whether the denial of a provisional remedy constitutes a final appealable order as set forth in
R.C. 2505.02(B)(4) .
A.J.S. at ¶ 27-28. The State argues that the same is true here; if it pursues any other charges with respect to D.M.S. in the adjudicatory phase in juvenile court, jeopardy would attach, and would bar the State from later pursuing criminal charges in adult court.
{¶ 21} We agree that the State would lack a meaningful remedy to challenge the juvenile court‘s probable cause determination after the end of juvenile court proceedings. We therefore conclude that the March 27 Order satisfies
Conclusion
{¶ 22} The State may appeal the juvenile court‘s March 27 Order as a matter of right under
SO ORDERED.
MICHAEL L. TUCKER, Presiding Judge
JEFFREY E. FROELICH, Judge
JEFFREY M. WELBAUM, Judge
Copies to:
Heather Ketter
Jamie Rizzo
301 W. Third Street, 5th Floor
Dayton, Ohio 45422
Attorneys for Appellant, State of Ohio
Catherine Breault
Jon Paul Rion
130 W. Second Street, Suite 2150
Dayton, Ohio 45402
Attorney for Appellee, D.M.S.
Hon. Anthony Capizzi
Montgomery County Juvenile Court
380 W. Second Street
Dayton, Ohio 45422
CA3/KY