State of Ohio v. Calvin Weaver
Court of Appeals No. L-18-1078
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
Decided: June 21, 2019
2019-Ohio-2477
ZMUDA, J.
Trial Court No. CR0201601949
Jeremy W. Levy and Eric Allen Marks, for appellant.
ZMUDA, J.
{¶ 1} This matter is before the court on appeal from the judgment of the Lucas County Court of Common Pleas, general division, sentencing appellant to an aggregate prison term of 11 years following trial to the bench. For the reasons that follow, we reverse the trial court‘s imposition of sentence, and remand the matter for the required procedure under
{¶ 2} On January 29, 2015, two masked men accosted 14-year-old D.C. as she walked home from school, took her to an abandoned garage, and repeatedly raped her. After the assault, the men told D.C. to gather her things and leave, and she escaped, but without her cellphone, ear buds, or money. When D.C. arrived home, she told her brother she was raped at gunpoint and he called the police. D.C. was taken to the hospital for treatment where evidence was also collected. D.C. could not identify the assailants, and while the hospital collected DNA, police had no suspects. The investigation stalled until a year later, when a positive DNA match identified one of the assailants as Travon Mitcheal. Mitcheal then identified appellant, Calvin Weaver, as the second individual. Weaver provided а DNA sample, and his DNA matched samples collected from D.C. Weaver told investigators that he and D.C. engaged in consensual sex, and had arranged the meeting in the abandoned garage. At the time of the incident, Weaver was a juvenile, 16 years old.
{¶ 3} On February 25, 2016, appellee, the state of Ohio, filed a complaint in delinquency against Weaver, charging three counts of rape, in violation of
{¶ 4} On April 14, 2016, in case No. CR0201601698, the grand jury initially indicted Weaver on one count of rape with a gun specification, and one count of kidnapping, based on the events of January 29, 2015. Weaver entered a not guilty plea. On May 19, 2016, a new grand jury, considering the same incident, returned a superseding indictment in case No. CR0201601949, charging three counts of rape in Counts 1 through 3 of the indictment, in violation of
{¶ 5} On February 6, 2017, the matter was transferred back to the juvenile court, pursuant to State v. Aalim, 150 Ohio St.3d 463, 2016-Ohio-8278, 83 N.E.3d 862, for an amenability hearing. On July 26, 2017, the general trial division received the case back from the juvenile court.
{¶ 6} On March 1, 2018, Weaver waived his right to a jury trial, and the matter proceeded to a bench trial. The trial court found Weaver guilty of all three rape charges, Counts 1 through 3, and each accompanying gang participation specification, guilty of aggravated robbеry in Count 5, and the attached gang participation specification, and guilty of participating in a criminal gang, Count 6. The trial court found Weaver not guilty as to every gun specification, and not guilty as to the kidnapping charge, Count 4 of the indictment. The court revoked Weaver‘s bond, and ordered a presentence investigation and report, continuing the matter for sentencing on March 27, 2018.
{¶ 7} At sentencing, the trial court imposed a mandatory 4-year prison term for each of the three rape counts, Counts 1 through 3, a 3-year prison term as to Count 5, aggravated robbery, and a 3-year prison term for Count 6, participation in a criminal gang. The court ordered the 4-year sentence for each rape count, Counts 1 through 3, and the 3-year sentence for Count 6, participation in a criminal gang, to be served
{¶ 8} This appeal followed, with Weaver asserting the following assignments оf error:
I. APPELLANT‘S SENTENCE IS CONTRARY TO LAW AND THEREFORE VOID.
II. THE TRIAL COURT LACKED JURISDICTION TO PROCEED ON INDICTED CHARGES THAT WERE NOT BASED ON CHARGES TRANSFERRED FROM JUVENILE COURT.
III. THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE PRISON TERMS.
{¶ 9} Because Weaver‘s second assignment of error challenges the jurisdiction of the trial court to try all counts of the superseding indictment, we address this issue first.
II. Jurisdiction
{¶ 10} In his second assignment of error, Weaver argues that the trial court lacked jurisdiction to indict him on additional charges, not alleged in the complaint before the juvenile court. In arguing the trial court could not prosecute any offenses beyond those includеd in the juvenile complaint, Weaver construes
{¶ 11} The juvenile court has exclusive jurisdiction over cases alleging delinquency of a child, unless the court properly relinquishes jurisdiction to the adult court through bindover proceedings. State ex rel. Fryerson v. Tate, 84 Ohio St.3d 481, 484, 705 N.E.2d 353 (1999). “Under
{¶ 12} Once the juvenile court transfers a case, the adult court:
has jurisdiction subsequent to the transfer to hear and determine the case in the same manner as if the case originally had been commenced in that court, subject to section
2152.121 of the Revised Code, including, but not limited to, * * * jurisdiction to accept a verdict and to enter a judgment of conviction pursuant to the Rules of Criminal Procedure against the child for the commission of the offense that was the basis of the transfer of the case for criminal prosecution, whether the conviction is for the same degrеe or a lesser degree of the offense charged, for the commission of a lesser-includedoffense, or for the commission of another offense that is different from the offense charged.
{¶ 13} After transfer to the adult court, that court‘s felony jurisdiction requires a grand jury to return an indictment after considering the evidence in the case. See Click v. Eckle, 174 Ohio St. 88, 89, 186 N.E.2d 731 (1962) (“The felony jurisdiction is invoked by the return of a proper indictment by the grand jury of the сounty.“). Pursuant to
The grand jury is the ultimate charging body, and it is within its discretion, based on the evidence presented to it, to determine for which felony an accused shall be charged. The fact that the grand jury determines that an accused shall be charged with a felony other than that made against him in the original affidavit originally filed and upon which he is bound over to the grand jury has no effeсt on the validity of the indictment returned by the grand jury.
Foston v. Maxwell, 177 Ohio St. 74, 76, 202 N.E.2d 425 (1964), citing Clinger v. Maxwell, 175 Ohio St. 540, 196 N.E.2d 771 (1964).
{¶ 14} We have previously recognized the authority of a grand jury to return an indictment that differs from the initial complaint and affidavit filed in adult criminal proceedings. See State v. Jones, 6th Dist. Lucas No. L-09-1182, 2010-Ohio-2576, ¶ 24,
{¶ 15} In arguing a lack of jurisdiction, Weaver does not dispute that a single incident provided the basis for the crimes charged in the juvenile complaint as well as the additional charges for aggravated robbery and participation in a criminal gang, with
{¶ 16} Considering the facts of this case, the charges returned by the grand jury primarily arose from Weaver‘s conduct on Jаnuary 29, 2015, regarding the same victim. Considering the language of the statute, the juvenile court relinquished jurisdiction over the case, based on Weaver‘s conduct on January 29, 2015, and not just the offenses charged in the juvenile complaint. Once the adult court received the case, it proceeded to prosecution “in the same manner as if the case originally had been commenced in that court[.]”
{¶ 17} We note, however, that the indictment returned included an offense arising from occurrences beyond the incident of January 29, 2015. For the separate offense of participation in a criminal gang, the indictmеnt specifies conduct ranging from January 2012 through May 2016.3 The juvenile court relinquished jurisdiction over Weaver‘s
{¶ 18} Participation in a criminal gang, a violation of
{¶ 19} While the statute does not define “active participation,” we have held that this element of the offense requires demonstration of actual, and not just nominal,
{¶ 20} The gang participation specification, on the other hand, does not require proof of ongoing participation with, and support for, gang activities, but only proof that the offense charged was a felony of violence, and was committed while the offender was participating in a criminal gang. See
{¶ 21} It is possible to both commit a violent felony while participating in a criminal gang, resulting in an enhanced penalty under
{¶ 22} Based on the indictment in this case, the grand jury charged Weaver with underlying violent offenses, committed on January 29, 2015, with specifications that
{¶ 23} Without bindover proceedings relative to this separate conduct, therefore, the trial court entered a judgment of conviction for matters still within the exclusive jurisdiction of the juvenile сourt. Despite Weaver‘s failure to specifically raise this issue as error, the conviction entered for the offense of participating in a criminal gang is void, and a nullity. See Wilson, 73 Ohio St.3d at 45 (prosecution of a child without proper bindover is a nullity). As to the offense of participating in a criminal gang, therefore, we remand with instructions to vacate the conviction on Count 6 in the superseding indictment, and return the case on this cоunt only, for further proceedings in juvenile court under
III. Reverse-Bindover
{¶ 24} Finding the indictment to be proper, with the exception of Count 6 for participation in a criminal gang, we next address the issue of reverse-bindover. In Weaver‘s first assignment of error, he challenges the trial court‘s imposition of sentence, arguing that the court‘s failure to comply with the reverse-bindover proceedings under
{¶ 25} As previously addressed, a conviction entered without prоper subject-matter jurisdiction is void ab initio. Wilson at 44. With proper bindover, however, the trial court obtained subject-matter jurisdiction over the case. Id. Therefore, the determinative issue in finding a void or a valid judgment is not whether the trial court complied with the reverse-bindover procedures, but whether the trial court obtained jurisdiction from the juvenile court prior to proceeding on the indictment.
{¶ 26} ”
{¶ 27} Because the juvenile court relinquished jurisdiction of the case for criminal proceedings arising from the incident of January 29, 2015, and the grand jury properly indicted Weaver of the charges in Counts 1, 2, 3, and 5 with the attached gang
{¶ 28} In this case, the complaint in delinquency alleged that Weaver committed category-two offenses, each with a firearm specification, subjecting Weaver to mandatory bindover. The trial court acquitted Weaver of all firearm specifications, however, and entered convictions for offenses that would only be subject to discretionary transfer proceedings. Therefore, as the state concedes,
{¶ 29} Accordingly, the trial court was required to comply with
If the court in which the child is convicted of or pleads guilty to the offense determines under division (B)(1) of this section that, had a complaint been filed in juvenile court alleging that the child was a delinquent child for committing an act that would be that offense if committed by an adult, division (A) of section
2152.12 of the Revised Code would not have required mandatory transfer of the case but division (B) of that section would have allowed discretionary transfer of the case, the court shall determine the sentence it believes should be imposed upon the child under Chapter 2929. of the Revised Code, shall impose that sentence upon the child, and shall stay that sentence pending completion of the procedures specified in this division. Upon imposition and staying of the sentence, the court shall transfer jurisdiction of the case back to the juvenile court that initially transferred the case and the juvenile court shall proceed in accordance with this division.
{¶ 30} Here, the trial court failed to stay imposition of the sеntence imposed for Counts 1, 2, 3, and 5 with the attached gang participation specifications, as required by
IV. Consecutive Sentences
{¶ 31} In his third and final assignment of error, Weaver challenges the trial court‘s imposition of consecutive sentences. However, based on our determination that
V. Conclusion
{¶ 32} For the foregoing reasons, we find that the trial court had proper jurisdiction to proceed on the superseding indictment, with the exception of the offense charged in Count 6, participating in a criminal gang. However, the trial court erred in failing to comply with the statutory reverse-bindover procedure. We therefore remand the matter back to the trial court with instructions to vacate the conviction for Count 6, participating in a criminal gang, and for further proceedings under
Judgment reversed.
Thomas J. Osowik, J.
JUDGE
Christine E. Mayle, P.J.
JUDGE
Gene A. Zmuda, J.
JUDGE
CONCUR.
This decisiоn is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.