State v. JonesState v. Jones
AFFIRMED; REMANDED FOR CORRECTION OF JOURNAL ENTRY
{¶ 1} Defendant-appellant Sonya Jones appeals from her conviction and sentence after she entered a guilty plea to a charge of involuntary manslaughter in the Cuyahoga Court of Common Pleas, General Division.
{¶ 2} As to her sentence, appellant argues the trial court erred when it failed to explicitly state in its judgment entry that appellant should be given credit for her time in Ohio Department of Youth Services (“ODYS“) detention. The state
{¶ 3} As to her conviction, appellant asserts
{¶ 4} A review of the record, however, reveals appellant never raised any constitutional arguments in the trial court. Since she had every opportunity to do so prior to entering her plea, she has waived those arguments for purposes of this appeal.
{¶ 5} Consequently, her conviction is affirmed. This case is remanded to the trial court solely for correction of the journal entry of sentence to reflect appellant‘s “credit for time served” includes the time of her ODYS detention.
{¶ 6} This court twice has considered appellant‘s case previously. In 2002, when appellant was seventeen-years old, the state originally alleged in the Cuyahoga Court of Common Pleas, Juvenile Division, that appellant committed an offense which, if committed by an adult, constituted the crimes of murder and/or felony murder.
{¶ 7} Following the hearing conducted pursuant to Juv.R. 30, the juvenile court ruled that the state had failed to establish probable cause for a mandatory
{¶ 8} This court subsequently dismissed the state‘s appeal on the grounds that “jeopardy” attached when the juvenile court proceeded with the adjudication, rendering any challenge to the juvenile court‘s probable cause findings “moot.” In re: S.J., Cuyahoga App. No. 82106, 2003-Ohio-5071 (“S. J. I“). The state then appealed that dismissal. Subsequently, the Ohio Supreme Court reversed and remanded the case to this court for a consideration of the merits of the state‘s original appeal. In re: S.J., 106 Ohio St.3d 11, 2005-Ohio-3215.
{¶ 9} On remand, this court determined the state had made the requisite showing to mandate the bind-over of appellant‘s case from juvenile court. In re: S.J., Cuyahoga App. No. 82106, 2005-Ohio-6353, ¶32 (“S.J. II“). Upon receiving that decision, in January 2006, the state filed an indictment against appellant in the Cuyahoga County Court of Common Pleas, General Division, that charged her as an adult with two alternative counts of murder.
{¶ 10} Although appellant sought review of the decision in S.J. II, the supreme court issued an order on April 26, 2006 that declined to accept her appeal. In re: S.J., 109 Ohio St.3d 1425, 2006-Ohio-1967.
{¶ 12} On June 15, 2006 the trial court imposed upon appellant for her conviction a prison sentence of eight years, with “jail credit days to date to be calculated by the Sheriff.”
{¶ 13} Appellant now challenges her conviction and the journal entry of sentence with four assignments of error.
{¶ 14} “I. The trial court erred when it failed to credit the days Sonya Jones was held in detention, the Department of Youth Services, and county jail toward the balance of her sentence to the Department of Rehabilitation and Correction.
{¶ 15} “II. Mandatory transfer violates a juvenile‘s right to equal protection under the law as guaranteed by the Fourteenth Amendment of the United States Constitution and Article I, Section 2 of the Ohio Constitution.
{¶ 16} “III. Mandatory transfer violates a juvenile‘s right to due process of law as guaranteed by the Fourteenth Amendment of the United States Constitution and Article I, Section 16 of the Ohio Constitution.
{¶ 17} “IV. Mandatory transfer violates the Separation of Powers Doctrine.”
{¶ 19} The state concedes both appellant‘s argument and her calculation.
{¶ 20} Therefore, this case is remanded to the trial court for correction of the journal entry of sentence to reflect that appellant is given time-served credit for 1456 days.
{¶ 21} Appellant argues in her second, third and fourth assignments of error that,
{¶ 22} However, the record reflects appellant never presented in the trial court any argument that challenged the proceedings based upon the unconstitutionality of
{¶ 23} In State v. Awan (1986), 22 Ohio St.3d 120, the Ohio Supreme Court states at the syllabus that the “[f]ailure to raise at the trial court level the issue of the constitutionality of a statute or its application, which issue is apparent at the time of trial, constitutes a waiver of such issue and a deviation from this state‘s orderly procedure, and therefore need not be heard for the first time on appeal.”
{¶ 25} Appellant attempts to overcome her failure to raise these issues by claiming that the juvenile court retained exclusive subject matter jurisdiction by virtue of her age when she committed the act. The supreme court has impliedly rejected her claim.
{¶ 26} In State v. Wilson, 73 Ohio St.3d 40, 1995-Ohio-217, the court acknowledged that the juvenile court‘s subject matter jurisdiction over a child is “exclusive.” Thus, it “cannot be waived” and the prosecution of a minor in adult court is a “nullity” unless a proper bind-over has occurred. Id. at 44. Since the supreme court declined to hear appellant‘s appeal of this court‘s decision in In re: S.J. II, the supreme court must have concluded that the bind-over of her case was proper.
{¶ 27} Appellant had every opportunity to raise the constitutionality of
{¶ 28} Appellant‘s failure to do so has waived the argument for purposes of this appeal. State v. Awan, supra. Consequently, her second, third and fourth assignments of error are overruled.
{¶ 29} Appellant‘s conviction is affirmed.
{¶ 30} The case is remanded to the trial court solely for correction of the journal entry of sentence consistent with this court‘s disposition of appellant‘s first assignment of error.
It is ordered that appellee recover from 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. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
KENNETH A. ROCCO, J.
SEAN C. GALLAGHER, P.J. and PATRICIA ANN BLACKMON, J. CONCUR.