In re C.W.

2016 Ohio 4834

Opinion

[Cite as In re C.W., 2016-Ohio-4834.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

IN THE MATTER OF C.W. : JUDGES: : Hon. Sheila G. Farmer, P.J. DELINQUENT CHILD : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. : : : Case No. 15CA113 : : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Juvenile Division, Case No. 2015-DEL-373

JUDGMENT: Appeal Dismissed

DATE OF JUDGMENT: July 5, 2016

APPEARANCES:

For Appellant For Appellee

DANIEL M. ROGERS JOHN A. BOYD 38 South Park Street 1 Marion Avenue Mansfield, OH 44902 Suite 215 Mansfield, OH 44903 Richland County, Case No. 15CA113 2

Farmer, P.J.

{¶1} On April 17, 2015, a complaint was filed in the Court of Common Pleas of

Ashland County, Ohio, Juvenile Division, alleging appellee, C.W., a juvenile, to be a

delinquent child by having committed six counts of rape in violation of R.C. 2907.02 and

four counts of gross sexual imposition in violation of R.C. 2907.05 if committed by an

adult. All ten counts carried serious youthful offender specifications pursuant to R.C.

2152.11. Said charges arose from incidents involving appellee and his five year old niece.

{¶2} On May 4, 2015, appellee appeared in the Ashland County Juvenile Court

and admitted and pled guilty to a bill of information listing three counts of rape and two

counts of gross sexual imposition, each containing a serious youthful offender

specification. By judgment entry filed May 29, 2015, the Ashland County Juvenile Court

transferred the case pursuant to Juv.R. 11 to the Court of Common Pleas of Richland

County, Ohio, Juvenile Division, the trial court herein, for disposition due to appellee being

in the custody of the Richland County Children Services under a previous court order.

{¶3} On August 11, 2015, appellant, the state of Ohio, filed a motion to transfer,

requesting the return of the case to Ashland County. By amended opinion and judgment

entry filed October 6, 2015, the trial court denied the motion.

{¶4} On December 11, 2015, appellant filed a memorandum in support of

imposition of serious youthful offender specifications.

{¶5} A dispositional hearing was held on December 15, 2015. By amended

judgment entry filed December 21, 2015, the trial court declined to impose a serious

youthful offender blended sentence, and committed appellee to the Department of Youth

Services for a total aggregate term of seven years to age twenty-one. Richland County, Case No. 15CA113 3

{¶6} On December 29, 2015, appellant filed a notice of appeal and this matter is

now before this court for consideration. Assignments of error are as follows:

I

{¶7} "THE TRIAL COURT ERRED WHEN IT EXERCISED JURISDICTION

OVER APPELLEE'S CASE DESPITE THE CASE BEING IMPROPERLY

TRANSFERRED."

II

{¶8} "THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DISMISSED

THE SYOS, AS THE RISKS AND FAILURES ASSOCIATED WITH THE DISMISSAL OF

THE SYOS FAR OUTWEIGHED ANY BENEFITS."

{¶9} At the outset, it is important to review whether appellant properly invoked

this court's jurisdiction. R.C. 2945.67 governs appeal by state and states the following in

pertinent part:

A prosecuting attorney***may appeal as a matter of right***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 pursuant to sections 2953.21 to 2953.24 of

the Revised Code, and may appeal by leave of the court to which the appeal

is taken any other decision, except the final verdict***of the juvenile court in

a delinquency case. In addition to any other right to appeal under this

section or any other provision of law, a prosecuting attorney***may appeal, Richland County, Case No. 15CA113 4

in accordance with section 2953.08 of the Revised Code, a sentence

imposed upon a person who is convicted of or pleads guilty to a felony.

{¶10} R.C. 2953.08(B) states:

(B) In addition to any other right to appeal and except as provided in

division (D) of this section, a prosecuting attorney***may appeal as a matter

of right a sentence imposed upon a defendant who is convicted of or pleads

guilty to a felony or, in the circumstances described in division (B)(3) of this

section the modification of a sentence imposed upon such a defendant, on

any of the following grounds:

(1) The sentence did not include a prison term despite a presumption

favoring a prison term for the offense for which it was imposed, as set forth

in section 2929.13 or Chapter 2925. of the Revised Code.

(2) The sentence is contrary to law.

(3) The sentence is a modification under section 2929.20 of the

Revised Code of a sentence that was imposed for a felony of the first or

second degree.

{¶11} The trial court's denial of the motion to transfer and therefore exercise

jurisdiction is not a decision contemplated in R.C. 2945.67 as granting the prosecutor the

ability to appeal "as a matter of right." In addition, in its appellate brief at 10, appellant

acknowledges the serious youthful offender specifications were "discretionary, rather Richland County, Case No. 15CA113 5

than mandatory, pursuant to R.C. 2152.11." Therefore, the trial court's decision to not

impose a serious youthful offender blended sentence at disposition does not fall under

R.C. 2945.67 of R.C. 2953.08(B).

{¶12} As a result, appellant was required to follow the mandates of App.R. 5(C)

which states the following:

(C) Motion by Prosecution for Leave to Appeal When leave is

sought by the prosecution from the court of appeals to appeal a judgment

or order of the trial court, a motion for leave to appeal shall be filed with the

court of appeals within thirty days from the entry of the judgment and order

sought to be appealed and shall set forth the errors that the movant claims

occurred in the proceedings of the trial court. The motion shall be

accompanied by affidavits, or by the parts of the record upon which the

movant relies, to show the probability that the errors claimed did in fact

occur, and by a brief or memorandum of law in support of the movant's

claims. Concurrently with the filing of the motion, the movant shall file with

the clerk of the trial court a notice of appeal in the form prescribed by App.

R. 3 and file a copy of the notice of appeal in the court of appeals. The

movant also shall furnish a copy of the motion and a copy of the notice of

appeal to the clerk of the court of appeals who shall serve the notice of

appeal and a copy of the motion for leave to appeal upon the attorney for

the defendant who, within thirty days from the filing of the motion, may file Richland County, Case No. 15CA113 6

affidavits, parts of the record, and brief or memorandum of law to refute the

claims of the movant.

{¶13} A review of the docket and appellant's December 29, 2015 notice of appeal

establishes appellant did not follow the dictates of App.R. 5(C); therefore, this court lacks

jurisdiction to entertain this appeal.

{¶14} The appeal is dismissed on jurisdictional grounds.

By Farmer, P.J.

Wise, J. and

Delaney, J. concur.

SGF/sg 613