THE STATE OF OHIO, APPELLEE, v. WALLS, APPELLANT.
No. 2001-0099
SUPREME COURT OF OHIO
October 9, 2002
96 Ohio St.3d 437 | 2002-Ohio-5059
COOK, J.
Submitted March 13, 2002. APPEAL from the Court of Appeals for Butler County, No. CA99-10-174.
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COOK, J.
{¶1} Defendant-appellant, Kevin Walls, appeals from his aggravated murder conviction for an offense that occurred 13 years prior to his indictment and while he was still a minor. Focusing upon the time lapse between the indictment and the offense, Walls argues that his conviction is unconstitutional because of (1) a retroactive application of a law requiring that he be tried as an adult and (2) unreasonable preindictment delay. Because we find no merit to either of his constitutional claims, we affirm his conviction.
I
{¶2} On March 8, 1985, Ann Zwiefelhoefer was found dead in her home, having bled to death from nine stab wounds. When investigators arrived at the scene, they found her home ransacked in several areas and appearing as though it had been forcibly entered. The Butler County Coroner examined the victim‘s body
{¶3} While at the scene, investigators retrieved a number of latent fingerprints and submitted them to the Ohio Bureau of Criminal Identification and Investigation for analysis. Investigators compared these fingerprints with those of various suspects and other persons having business at the victim‘s residence. The comparisons revealed no matches and the fingerprints remained unidentified for 13 years.
{¶4} In the summer of 1998, some of the latent prints were entered into an on-line automated fingerprint identification system that had just become available. This new system identified Walls‘s fingerprints as a good match. After a visual comparison and subsequent analysis by an FBI specialist in Washington, D.C., experts discovered that Walls‘s fingerprints matched those on a coin jar found in the victim‘s basement, on a fondue pot in the kitchen pantry, on the storm door, and on a cup and a dish lying on the floor.
{¶5} Following this discovery, the investigators located Walls for questioning. Walls, who was 15 years old at the time of the murder, stated that he had never been to the victim‘s home or to any other home on that street. Investigators learned, however, that Walls had attended school only 436 yards from the victim‘s home on the day of the murder.
{¶6} The Butler County Grand Jury indicted Walls on November 13, 1998, for aggravated murder in violation of
{¶7} Walls appealed his conviction, raising the issues of retroactive application of the law, preindictment delay, and prosecutorial misconduct. The
II
{¶8} Walls urges us to void the conviction against him, arguing that the court of common pleas, general division, lacked subject matter jurisdiction to hear his case. At the center of this jurisdictional argument is his belief that application of the 1997 statutes,
A
{¶9} “Retroactive laws and retrospective application of laws have received the near universal distrust of civilizations.” Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 104, 522 N.E.2d 489; see, also, Landgraf v. USI Film Products (1994), 511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (noting that “the presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic“). In recognition of the “possibility of the unjustness of retroactive legislation,” Van Fossen, 36 Ohio St.3d at 104, 522 N.E.2d 489,
{¶10} This court has articulated a two-part framework, involving both statutory and constitutional analyses, for determining whether a statute is impermissibly retroactive under
{¶11} In applying the analytic framework of Van Fossen, supra, and its progeny, the court of appeals found that the amended statutes did not apply retrospectively and therefore declined to undertake the second step of the Van Fossen analysis. The court reasoned:
{¶12} “The current version of
{¶13} From this analysis, it is evident that the court of appeals viewed the date on which criminal proceedings commenced against Walls as the relevant date of assessing whether the amended juvenile statutes operated prospectively or retrospectively. And although the court of appeals cited none, there exists some authority that arguably supports this approach. See, e.g., State ex rel. Plavcan v. School Emp. Retirement Sys. of Ohio (1994), 71 Ohio St.3d 240, 243, 643 N.E.2d 122 (“Statutes that reference past events to establish current status have been held not to be retroactive“); Cox v. Hart (1922), 260 U.S. 427, 435, 43 S.Ct. 154, 67 L.Ed. 332 (“A statute is not made retroactive merely because it draws upon antecedent facts for its operation“); see, also, French v. Dwiggins (1984), 9 Ohio St.3d 32, 39, 9 OBR 123, 458 N.E.2d 827 (Holmes, J., dissenting) (“If there is no specific expression by the General Assembly that the statute is to be retrospective in its application * * *, the statute will be applied to causes of action arising subsequent to the effective date of the legislation“). But while the court of appeals’ approach may be adequate to resolve retroactivity challenges to many types of legislation, particularly laws pertaining to purely civil matters, it is not ideal when the application of a new statute penalizes criminal conduct that occurred prior to the statute‘s effective date. In this circumstance, the date of the offense is the governing date when assessing whether a given statute is retroactive. See Weaver v. Graham (1981), 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (noting that a law is retrospective for purposes of ex post facto analysis if it “appl[ies] to events occurring before its enactment“). Thus, in order to assess properly whether the amendments to
{¶14} Focusing on the date of Walls‘s offense, we conclude that the General Assembly intended that the 1997 amendments to
B
{¶15} Having held that the juvenile statutes apply retroactively (i.e., to juvenile offenses committed prior to the statutes’ effective date), we next proceed to the constitutional prong of the Van Fossen analysis. As we have previously noted, a statute is unconstitutionally retroactive under
{¶16} Walls argues that the 1997 statutes were “substantive” within the meaning of our retroactivity cases because of the statutes’ profound effect on the jurisdiction of the juvenile and common pleas courts. Whereas the old statutes required a bindover proceeding in juvenile court as a prerequisite to criminal proceedings in the court of common pleas for persons situated similarly to Walls, the 1997 statutes divested the juvenile court of jurisdiction. Thus, the 1997 statutes subjected a person 21 years of age or older to criminal prosecution in the general division of the court of common pleas, regardless of the person‘s age at the time of the alleged offense and without any necessity of a bindover proceeding in juvenile court. Emphasizing the “extraordinary” difference between delinquency proceedings in juvenile court and criminal proceedings in common pleas court, Walls contends that the 1997 statutory changes were substantive because they deprived him of juvenile-court proceedings to which he had a vested right. We disagree.
{¶17} The 1997 changes to
{¶18} Walls makes much of the fact that the new statutes effected substantial changes to the jurisdiction of the juvenile and common pleas courts. He maintains that the changes must be substantive within the meaning of our retroactivity cases because the amendments conferred jurisdiction where it was previously lacking. See State v. Wilson, 73 Ohio St.3d at 44, 652 N.E.2d 196 (noting that the juvenile court had exclusive subject matter jurisdiction in the absence of a bindover procedure under former
{¶19} We therefore hold that application of the juvenile statutes in place at the time the state commenced criminal proceedings in this case did not impair Walls‘s substantive rights within the meaning of Van Fossen and its progeny.
III
{¶20} Our conclusion that the amended statutes do not impair Walls‘s substantive rights does not end our constitutional inquiry. Walls also argues that the amendments to the juvenile statutes, when retroactively applied to him, are ex post facto laws prohibited by
{¶21} “Although the Latin phrase ’ex post facto’ literally encompasses any law passed ‘after the fact,’ it has long been recognized by [the United States Supreme Court] that the constitutional prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them.” Collins v. Youngblood (1990), 497 U.S. 37, 41, 110 S.Ct. 2715, 111 L.Ed.2d 30. Not just any “disadvantage” to an offender, however, will run afoul of the Ex Post Facto Clause. The clause implicates only certain types of legislative acts:
{¶22} ” ‘1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when
{¶23} Even though a law may not impair “vested rights” within the meaning of our retroactivity cases, the law may still run afoul of the ex post facto prohibition if it falls within one of the four Calder categories enumerated above. See Weaver v. Graham (1981), 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17, fn. 13 (referring to a vested-rights analysis of retroactivity as “irrelevant” to an ex post facto inquiry); see, also, Collins, 497 U.S. at 46, 110 S.Ct. 2715, 111 L.Ed.2d 30 (“simply labeling a law ‘procedural’ * * * does not thereby immunize it from scrutiny under the Ex Post Facto Clause“). In this case, Walls argues that the amended juvenile statutes applied in his case implicate the first and third categories of ex post facto legislation. He contends that by making criminal prosecution mandatory for a person over 21 years of age, regardless of the person‘s age at the time of the offense, the legislature has impermissibly criminalized juvenile acts (implicating the first Calder factor) and enhanced the punishment meted out for their commission (implicating the third Calder factor).
A
{¶24} Walls invokes the first category of ex post facto laws by emphasizing his age at the time of the murder. Because Walls was only 15 years old at the time of the offense, he maintains that his conduct was “a civil delinquency act and remained a civil delinquency act unless and until the Juvenile Division held a proper bind-over proceeding resulting in [Walls] being bound over to the adult justice
{¶25} It is true that this court has characterized juvenile proceedings as civil rather than criminal. See In re Anderson (2001), 92 Ohio St.3d 63, 65, 748 N.E.2d 67. But the “civil” label traditionally attached to juvenile matters does not lead a fortiori to a conclusion that Walls‘s act was not “criminal” at the time he committed it. “[D]etermining the relevance of constitutional policies, like determining the applicability of constitutional rights, in juvenile proceedings, requires that courts eschew ‘the “civil” label-of-convenience which has been attached to juvenile proceedings,’ In re Gault [(1967), 387 U.S. 1, 50, 87 S.Ct. 1428, 18 L.Ed.2d 527], and that ‘the juvenile process * * * be candidly appraised.’ [Id. at 21, 87 S.Ct. 1428, 18 L.Ed.2d 527].” Breed v. Jones (1975), 421 U.S. 519, 529, 95 S.Ct. 1779, 44 L.Ed.2d 346.
{¶26} Whatever their label, juvenile delinquency laws feature inherently criminal aspects that we cannot ignore. See Anderson, 92 Ohio St.3d at 65-66, 748 N.E.2d 67. For this reason, numerous constitutional safeguards normally reserved for criminal prosecutions are equally applicable to juvenile delinquency proceedings. Id. at 66, 748 N.E.2d 67, citing In re Gault, 387 U.S. 1, 31-57, 87 S.Ct. 1428, 18 L.Ed.2d 527 (holding that various Fifth and Sixth Amendment protections apply to juvenile proceedings), and In re Winship (1970), 397 U.S. 358, 365-368, 90 S.Ct. 1068, 25 L.Ed.2d 368 (holding that the state must prove juvenile delinquency beyond a reasonable doubt); see, also, Breed, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (holding that a delinquency proceeding places a juvenile in jeopardy for purposes of the Double Jeopardy Clause); In re Melvin J. (2000), 81 Cal.App.4th 742, 759-760, 96 Cal.Rptr.2d 917 (relying on Gault, Winship, and Breed to hold that ex post facto principles apply to juvenile proceedings). Just as we cannot ignore the criminal aspects inherent in juvenile proceedings for purposes
{¶27} In light of the criminal aspects inherent in Ohio‘s juvenile law, we reject Walls‘s contention that the amended statutes applied in his case had an impermissible ex post facto effect under the first Calder category. The primary evil prohibited by this category is the legislature‘s retroactive alteration of the definition of crimes. See Collins, 497 U.S. at 43, 110 S.Ct. 2715, 111 L.Ed.2d 30. Walls cannot persuasively argue here that the legislature altered the definition of aggravated murder in a manner that has retroactively criminalized his conduct.
B
{¶28} Walls also invokes the third Calder factor, which prohibits as ex post facto any law that inflicts a greater punishment for a crime than the law annexed to the crime at its commission. As we have previously stated, the common pleas court could not have tried Walls as an adult under the 1985 law unless and until the juvenile court had first conducted a bindover proceeding under former
{¶29} Retroactive changes in the measure of punishment are impermissibly ex post facto if they subject a defendant to a more severe sentence than was available at the time of the offense. See Lindsey v. Washington (1937), 301 U.S. 397, 401, 57 S.Ct. 797, 81 L.Ed. 1182. In one sense, Walls‘s punishment under the new statutes was not “more severe” than under the old; he could have received the same punishment under the 1985 law upon conviction for aggravated murder (albeit only after a bindover proceeding in juvenile court). Assessing whether a punishment is “more severe” under a later statute, however, involves more than simply comparing the range of punishments available under an old statute. “[O]ne
{¶30} In this case, the statutory amendments at issue arguably subjected Walls to a more severe range of punishment than he faced under the 1985 law. Because of the amendments to
{¶31} Walls‘s claim that the new statutes actually increased the measure of punishment for his conduct is speculative at best. While Walls perhaps remained eligible for retention within the jurisdiction of the juvenile court under a technical reading of the old statutes, the practical reality is that Walls had virtually no chance of being kept in the juvenile system. In 1985, the criteria for deciding whether to transfer a child to common pleas court for trial as an adult were contained in former
{¶32} “After a complaint has been filed alleging that a child is delinquent by reason of having committed an act that would constitute a felony if committed by an adult, the court at a hearing may transfer the case for criminal prosecution to the appropriate court having jurisdiction of the offense, after making the following determinations:
{¶33} “(1) The child was fifteen or more years of age at the time of the conduct charged;
{¶34} “(2) There is probable cause to believe that the child committed the act alleged;
{¶35} “(3) After an investigation, including a mental and physical examination of the child made by a public or private agency, or a person qualified to make the examination, that there are reasonable grounds to believe that:
{¶36} “(a) He is not amenable to care or rehabilitation or further care or rehabilitation in any facility designed for the care, supervision, or rehabilitation of delinquent children;
{¶37} “(b) The safety of the community may require that he be placed under legal restraint, including, if necessary, for the period extending beyond his majority.” 140 Ohio Laws, Part I, 585-586. See, also,
{¶39} The first two factors of former
{¶40} Even a cursory reading of former
{¶41} Notwithstanding the broad degree of discretion afforded to juvenile courts in bindover decisions, see State v. Watson (1989), 47 Ohio St.3d 93, 95-96, 547 N.E.2d 1181, the inherent limitations on the juvenile system under the law in place in 1985 convince us that the juvenile court would have had virtually no discretion to retain jurisdiction in Walls‘s case because of his mature age. The juvenile system in place in 1985 was not structured to retain a person well beyond the age of majority for an offense as serious as aggravated murder. Any bindover hearing under the 1985 statute would have been simply a procedural step in the process of transferring Walls for prosecution as an adult. Consequently, application of the amended statutes did not increase his available punishment in any manner other than a speculative and attenuated one. Such a change in the measure of punishment is not enough to constitute an ex post facto violation.
C
{¶42} Our finding that Walls‘s claim of increased punishment is only speculative distinguishes his case from Saucedo v. La Paz Cty. Superior Court (Ariz.App.1997), 190 Ariz. 226, 946 P.2d 908, and United States v. Juvenile Male (C.A.4, 1987), 819 F.2d 468, both of which found that a retroactive application of juvenile legislation violated the Ex Post Facto Clause.
{¶43} At issue in Saucedo was an amendment to the Arizona Constitution providing that juveniles 15 years of age or older accused of certain serious offenses ” ‘shall be prosecuted as adults.’ ” Id. at 227, 946 P.2d 908, fn. 1, quoting
{¶45} The circumstances at issue in Juvenile Male are likewise distinguishable from the scenario in this case. In Juvenile Male, the defendant was accused of committing multiple murders on federal property in 1981, when he was 15 years old. At the time of the murders, federal law did not allow prosecution as an adult of any person who committed a crime at age 15; the government could prosecute the offender only as a juvenile, subjecting the offender to a maximum punishment of incarceration until the age of 21. 819 F.2d at 469, citing
{¶46} The United States Court of Appeals for the Fourth Circuit held that the application of the new statute to the defendant violated the ex post facto
{¶47} The result in Juvenile Male is of no help to Walls. Under the federal law in place at the time of the Juvenile Male defendant‘s offense, there was absolutely no possibility that he could be tried as an adult. Thus, application of the intervening statute unquestionably subjected the defendant to a greater punishment that was not at all possible at the time of his offense. Because the new federal statute allowed for a punishment that was previously unavailable as a matter of law, there was nothing speculative about the onerous effect of retroactively applying the amendment to that defendant‘s case. In contrast, the Ohio law in place at the time of Walls‘s offense already contained a procedural mechanism for transfer to adult court, subjecting a 15-year-old (as Walls was at the time of the murder) to criminal prosecution and the full range of adult punishment. And as we have previously explained, the new legislation‘s removal of the bindover process—allowing for automatic jurisdiction in the common pleas court for trial as an adult—merely removed a procedural step that Walls had only a speculative and attenuated chance
{¶48} We also reject Walls‘s contention that Kent v. United States (1966), 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84, mandates his receipt of a bindover hearing. It is true that Kent identified the bindover procedure as a ” ‘critically important’ action determining vitally important statutory rights of the juvenile.” Id. at 556, 86 S.Ct. 1045, 16 L.Ed.2d 84. But the protections afforded by that procedure are important precisely because of the juvenile‘s age at the time of the proceeding. The offender in Kent was 16 years old; by contrast, Walls was 29 years old at the time criminal proceedings commenced and well beyond an age at which there was a need for such protection. Accordingly, our categorization of the bindover hearing as a procedural formality with respect to Walls in no way contravenes the Supreme Court‘s decision in Kent.
{¶49} We therefore hold that the application of the amended juvenile statutes to Walls did not violate the Ex Post Facto Clause. Because we find no violation of either
IV
{¶50} With his second proposition, Walls argues that the delay between the time of the offense and his indictment violated his due process rights. Specifically, Walls contends that he was harmed by the disappearance of evidence implicating another suspect in the crime.
{¶51} To warrant dismissal on the basis of preindictment delay, a defendant must present evidence establishing substantial prejudice. Once the defendant fulfills that burden, the state has the burden of producing evidence of a justifiable reason for the delay. State v. Whiting (1998), 84 Ohio St.3d 215, 217, 702 N.E.2d 1199. Thus, “the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused.” United States v. Lovasco (1977), 431 U.S. 783, 790, 97 S.Ct. 2044, 52 L.Ed.2d 752.
{¶52} The determination of “actual prejudice” involves “a delicate judgment based on the circumstances of each case.” United States v. Marion (1971), 404 U.S. 307, 325, 92 S.Ct. 455, 30 L.Ed.2d 468. In making this assessment, courts are to consider the evidence as it exists when the indictment is filed and the prejudice the defendant will suffer at trial due to the delay. State v. Luck (1984), 15 Ohio St.3d 150, 154, 15 OBR 296, 472 N.E.2d 1097, citing Marion, 404 U.S. at 326, 92 S.Ct. 455, 30 L.Ed.2d 468.
{¶53} Walls insists that the passage of time resulted in the loss of substantial exculpatory evidence. He argues that the coroner‘s investigator—if he had been alive to testify—could have placed the time of death during school hours rather than at 4:00 p.m. Walls also contends that missing school attendance records would have shown that he was in school on the afternoon of the murder. He further believes that unavailable witnesses could have supplied evidence implicating one Anthony Gray as the murderer. In particular, he claims that an acquaintance of Gray‘s, Dawn Smith, had heard Gray tell his cousin that he had killed a woman on the street where the murder took place. Walls argues that he was prejudiced even further by the death of the lead investigator because only the investigator knew why Gray was considered a suspect. Finally, Walls contends that he was prejudiced by the disappearance of specific items of evidence: (1) a tape made by a neighbor describing a person she saw entering the victim‘s house, (2) a faucet handle from the victim‘s home that had a blood stain on it, and (3) an anonymous letter that apparently discussed who committed the murder.
{¶54} For its part, the state counters that the evidence of which Walls complains was either not missing, unhelpful to Walls, or duplicative. First, although the coroner‘s assistant is deceased and could not testify, the Butler County
{¶55} In addition to the state‘s substantial arguments refuting Walls‘s contentions, we must also consider the fingerprint evidence implicating Walls. Though Walls stated that he had never been to the victim‘s home, his fingerprints were found in incriminating locations around the house, including on the storm door and on items scattered about the ransacked home. Furthermore, the fingerprints found in the home did not match those of Gray, the individual who Walls claims actually committed the crime.
{¶56} Although some prejudice may have occurred from evidence lost over the years, we conclude that Walls‘s claims of prejudice are speculative at best. Marion, 404 U.S. at 326, 92 S.Ct. 455, 30 L.Ed.2d 468. Moreover, we are firmly convinced that the delay was justified. As the United States Supreme Court explained, “[T]o prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time.” Lovasco, 431 U.S. at 796, 97 S.Ct. 2044, 52 L.Ed.2d 752. Here, the indictment occurred only a couple of months after new computer technology made it possible to match the fingerprints at the murder scene to those of Walls. Prior to the advent of that technology, the state had no means of obtaining a match for these prints. Upon receiving the new fingerprint evidence, the state proceeded diligently to initiate proceedings against Walls. This situation is distinctly different from cases in which the state has compiled evidence but simply fails, or refuses, to take action for a substantial period. See, e.g., Luck, 15 Ohio St.3d 150, 15 OBR 296, 472 N.E.2d 1097. Because the delay here was justified, the 13-year hiatus between the offense and the indictment did not violate Walls‘s due process rights.
V
{¶57} Having found no constitutional violations, we reject both of Walls‘s propositions of law. The judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY and LUNDBERG STRATTON, JJ., concur.
PFEIFER, J., dissents.
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PFEIFER, J., dissenting.
{¶58} The majority opinion well states the objectionable nature of retroactive legislation and accurately sets forth the test to determine whether legislation was designed to apply retroactively and whether it is constitutional. We diverge on our conclusions.
{¶59} I dissent because former
{¶60} First, the General Assembly has not specified that the statutes at issue should be applied retrospectively. The ” ‘clear indication of retroactive application’ ” required by Van Fossen v. Babcock & Wilcox Co. (1988), 36 Ohio St.3d 100, 106, 522 N.E.2d 489, is lacking. Id. at 106, 522 N.E.2d 489, quoting Kiser v. Coleman (1986), 28 Ohio St.3d 259, 262, 28 OBR 337, 503 N.E.2d 753.
{¶62} The 1997 version of
{¶63} Likewise, former
{¶64} “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.” (Emphasis added.), 146 Ohio Laws, Part II, 2054.
{¶65} Again, the use of the present tense indicates that the statute applies to acts that occur over the life of the statute. The law tells persons under 18 years old that if they commit a felony but avoid apprehension until after age 21, they will face disposition of their case through the criminal court. It alerts persons under eighteen years of age to the consequences of not facing responsibility for their
{¶66} Even if the statutes did feature clear evidence of intended retroactivity, such an application would be unconstitutional. A statute is unconstitutionally retroactive pursuant to
{¶67} In finding that the statutes are remedial, rather than substantive, the majority ignores the important distinctions between juvenile and criminal courts. This court‘s recognition in In re Anderson (2001), 92 Ohio St.3d 63, 748 N.E.2d 67, syllabus, that a juvenile court proceeding is a civil action, not a criminal one, demonstrates that the differences are substantive. The dichotomy between juvenile and criminal courts exists because we understand the important differences between children and adults, not just in their ultimate disposition once they are adjudged, but also in the motivations behind their behaviors.
{¶68} Whenever the juvenile offender is ultimately apprehended, at the time of the crime or after he turns twenty-one, the fact remains that a child committed the offense. Who of us is the same person we were as a teenager? Who of us is the person we aspired to be as a teenager? Our juvenile laws and courts take into account that we are eminently changeable and reformable at that age. The
{¶69} Ohio‘s juvenile court system at the time Walls committed his crimes was not naïve as to serious juvenile offenders. Pursuant to the version of
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Robin N. Piper, Butler County Prosecuting Attorney, and Daniel G. Eichel, Assistant Prosecuting Attorney, for appellee.
Law Offices of Scott J. Frederick, Scott J. Frederick and Kristen L. Sphar, for appellant.
Michael K. Allen, Hamilton County Prosecuting Attorney, and Rebecca L. Collins, Assistant Prosecuting Attorney, urging affirmance for amicus curiae Ohio Prosecuting Attorneys’ Association.
David H. Bodiker, Ohio Public Defender, and T. Kenneth Lee, Assistant Public Defender, urging reversal for amicus curiae Office of the Ohio Public Defender.
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