[Cite as State v. Rosser, 2017-Ohio-5572.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104624
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
EMMANUEL L. ROSSER
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-603971-A
BEFORE: Keough, A.J., Kilbane, J., and Blackmon, J.
RELEASED AND JOURNALIZED: June 29, 2017
ATTORNEY FOR APPELLANT
P. Andrew Baker
11510 Buckeye Road
Cleveland, Ohio 44104
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Maxwell Martin
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, A.J.:
{¶1} Defendant-appellant, Emmanuel Rosser (“Rosser”), appeals his kidnapping
conviction. For the reasons that follow, we reverse and remand for further proceedings
consistent with this decision.
{¶2} In June 2015, Rosser was initially indicted for attempted rape and kidnapping
that allegedly occurred on February 20, 1996, when he was 17 years old. After a
subsequent complaint was filed in juvenile court in December 2015, Rosser was bound
over to the general division and reindicted in February 2016 for the same offenses.
Rosser pleaded not guilty and the case was tried to a jury.1 The jury found Rosser not
guilty of attempted rape, but guilty of kidnapping. The court imposed a six-year
sentence. Rosser now appeals, raising seven assignments of error, which will be
addressed out of order and together where appropriate.
I. Statute of Limitations
{¶3} Rosser contends in his fifth assignment of error that the trial court erred in
denying his motion to dismiss based on a statute of limitations violation.
{¶4} On July 16, 2015, the statute of limitations for an attempted rape prosecution
increased from 20 years to 25 years. See R.C. 2901.13(A)(4), 2015 H.B. 6. This
increase was retroactive provided that the prosecution would not have been barred under
In the same indictment, Rosser was also charged with offenses that allegedly occurred in
1
2000. These offenses were tried to the jury with 1996 offenses. He was acquitted of all the
charges that arose from the 2000 incident.
the prior 20-year statute of limitations on July 15, 2015. See R.C. 2901.13(L)
(amendments “apply to a violation of [attempted rape] committed prior to the effective
date of the amendments if prosecution for that violation was not barred under this section
as it existed on the day prior to the effective date of the amendments”). Therefore, the
25-year statute of limitations will apply to all offenses that could have been brought under
the 20-year limitations period on July 15, 2015.
{¶5} In this case, the indictment against Rosser alleged that he committed the act
of attempted rape and kidnapping on February 20, 1996. Because the 20-year limitations
period of February 20, 2016 was after the effective date of 2015 H.B. 6, the 25-year
statute of limitations applied to the offenses for which Rosser was indicted.
Accordingly, the state had until February 20, 2021 to commence prosecution against
Rosser for these offenses.
{¶6} R.C. 2901.13(F) provides,
A prosecution is commenced on the date an indictment is returned or an
information filed, or on the date a lawful arrest without a warrant is made,
or on the date a warrant, summons, citation, or other process is issued,
whichever occurs first. A prosecution is not commenced by the return of an
indictment or the filing of an information unless reasonable diligence is
exercised to issue and execute process on the same. A prosecution is not
commenced upon issuance of a warrant, summons, citation, or other
process, unless reasonable diligence is exercised to execute the same.
{¶7} A juvenile delinquency proceeding commences upon the filing of a
complaint. See In re A.G., 148 Ohio St.3d 118, 2016-Ohio-3306, 69 N.E.3d 646, ¶ 26,
citing R.C. 2152.021; Juv.R. 2(F) and 10 (a delinquency case is not commenced by
indictment or information, but rather it is the filing of a complaint that invokes the
juvenile court’s jurisdiction); In re M.W., 133 Ohio St.3d 309, 2012-Ohio-4538, 978
N.E.2d 164, ¶ 21
{¶8} In this case, Rosser was indicted under Cuyahoga C.P. No. CR-14-583135 in
the common pleas court on June 3, 2015, for attempted rape and kidnapping. Because
Rosser was 17 years old when he committed the offenses, a delinquency complaint was
subsequently filed on December 3, 2015, in the juvenile court alleging the same offenses.
Following a probable cause and bindover hearing on February 23, 2016, the juvenile
court transferred the case to the general division of the common pleas court. On
February 26, 2016, Rosser was reindicted for attempted rape and kidnapping under
Cuyahoga C.P. No. 16-603971. The prior 2015 indictment was ultimately dismissed.
{¶9} Therefore, regardless of which date this court looks at in determining when
the prosecution against Rosser commenced — June 3, 2015, when he was initially
indicted, December 3, 2015, when the delinquency complaint was filed against him, or
February 26, 2016, when Rosser was reindicted after his case was transferred from
juvenile court — the dates all fall within the relevant 25-year statute of limitations.
{¶10} Morever, even if the 20-year statute of limitations applied, “‘a superseding
indictment brought after the statute of limitations has expired is valid so long as the
original indictment is still pending and was timely and the superseding indictment does
not broaden or substantially amend the original charges.’” State v. Ross, 9th Dist.
Summit No. 26694, 2014-Ohio-2867, ¶ 42, quoting United States v. Italiano, 894 F.2d
1280, 1282 (11th Cir.1990). Here, the 2016 indictment was a superseding indictment to
the 2015 indictment because the charges and facts were the same, and the 2015
indictment was timely filed and still pending when the 2016 indictment was filed.
Therefore, no statute of limitations violation occurred.
{¶11} Accordingly, the trial court did not err in denying the motion to dismiss
based on a statute of limitations violation. Rosser’s fifth assignment of error is
overruled.
II. Effective Assistance of Counsel
{¶12} In his sixth assignment of error, Rosser contends he was denied effective
assistance of counsel because counsel failed to move for dismissal of the case due to
preindictment delay. Additionally, this court ordered briefing on the sua sponte issue of
whether Rosser was subject to mandatory bindover and if not, whether counsel should
have filed a motion to dismiss for preindictment delay on that basis.
{¶13} To establish ineffective assistance of counsel, a defendant must demonstrate
(1) that counsel’s performance fell below an objective standard of reasonable
representation and (2) that he was prejudiced by that performance. Strickland v.
Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice
is established when the defendant demonstrates “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland at 694.
{¶14} The failure to prove either prong of the Strickland two-part test makes it
unnecessary for a court to consider the other prong. State v. Madrigal, 87 Ohio St.3d
378, 388-389, 721 N.E.2d 52 (2000), citing Strickland at 697. “In particular, a court
need not determine whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged deficiencies. * * * If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice
* * * that course should be followed.” Strickland at id.
{¶15} Despite the state’s initiation of prosecution within the statutorily defined
limitations period, an unjustifiable delay between the commission of an offense and an
indictment can, under certain circumstances, constitute a violation of due process of law
guaranteed by the federal and state constitutions. State v. Jones, 148 Ohio St.3d 167,
2016-Ohio-5105, 69 N.E.3d 688, ¶ 11-12, citing United States v. Marion, 404 U.S. 307,
322, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) and State v. Luck, 15 Ohio St.3d 150, 472
N.E.2d 1097 (1984), paragraph two of the syllabus. In Jones, the Ohio Supreme Court
reaffirmed the burden-shifting framework for analyzing a due-process claim based on
preindictment delay — the defendant must establish actual prejudice in the delay prior to
the burden shifting to the state to produce evidence of a justifiable reason for the delay.
Jones at ¶ 13-14.
{¶16} In this case, Rosser fails to demonstrate how he was actually prejudiced by
the state’s delay in bringing the case against him. At best, Rosser speculates that he
could have asserted an alibi to the offense. However, if Rosser had an alibi for the
offense, he could have asserted the alibi at trial as a defense. He makes no allegation
that witnesses were no longer available or that certain evidence was lost or destroyed due
to the delay in the indictment. See Jones at ¶ 28, citing Luck, at 157-158 (actual
prejudice exists when identifiable and relevant missing evidence or unavailable testimony
would minimize or eliminate the impact of the state’s evidence and bolster the defense).
Because Rosser has failed to demonstrate how he was actually prejudiced in the
indictment delay, he has equally failed to demonstrate that he was actually prejudiced by
his trial counsel’s failure to file a motion to dismiss based on preindictment delay.
Rosser’s sixth assignment of error is overruled.
{¶17} Addressing the sua sponte issue raised by this court and briefed in full by the
parties, we find that counsel was deficient in his performance for failing to file a motion
to dismiss — not for preindictment delay based on bindover, but rather for the juvenile
court’s improper transfer to the common pleas court because the juvenile court did not
conduct an amenability hearing. Because this is a jurisdictional impediment, it can be
raised at any time, even sua sponte. State v. Adams, 11th Dist. Trumbull No.
200-T-0121, 2002-Ohio-7164, ¶ 29, quoting In re Graham, 147 Ohio App.3d 452,
2002-Ohio-2407, 770 N.E.2d 1123, ¶ 29 (7th Dist.), citing Fox v. Eaton Corp., 48 Ohio
St.2d 236, 238, 358 N.E.2d 536 (1976), overruled on other grounds, Manning v. Ohio
State Library Bd., 62 Ohio St.3d 24, 577 N.E.2d 650 (1991), paragraph one of the
syllabus. (“Even when not raised by either party, the issue of [the juvenile court’s]
subject matter jurisdiction may be raised sua sponte by the court at any stage of the
proceedings, including for the first time on appeal.”)
{¶18} Ohio juvenile courts have exclusive subject matter jurisdiction over cases
“‘[c]oncerning any child who on or about the date specified in the complaint, indictment,
or information is alleged * * * to be * * * a delinquent * * * child.’” R.C.
2151.23(A)(1). This jurisdictional scope is limited in R.C. 2151.23(I), which provides:
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. In those circumstances, divisions (A) and (B) of
section 2152.12 of the Revised Code do not apply regarding the act, and the
case charging the person with committing the act shall be a criminal
prosecution commenced and heard in the appropriate court having
jurisdiction of the offense as if the person had been eighteen years of age or
older when the person committed the act. All proceedings pertaining to the
act shall be within the jurisdiction of the court having jurisdiction of the
offense, and that court has all the authority and duties in the case that it has
in other criminal cases in that court.
(Emphasis added.) See also R.C. 2152.12(J).
{¶19} R.C. 2152.02(C) explains that a “child” for the purposes of juvenile
delinquency cases is “a person who is under eighteen years of age, except as otherwise
provided in divisions (C)(2) to (8) of this section.” As pertinent to the facts of this case,
R.C. 2152.02(C)(2) provides that
[s]ubject to division (C)(3) of this section, any person who violates a federal
or state law or a municipal ordinance prior to attaining eighteen years of age
shall be deemed a “child” irrespective of that person’s age at the time the
complaint with respect to that violation is filed or the hearing on the
complaint is held.
{¶20} Furthermore, R.C. 2152.02(C)(3) states that
[a]ny person who, while under eighteen years of age, commits an act that
would be a felony if committed by an adult and who is not taken into
custody or apprehended for that act until after the person attains twenty-one
years of age is not a child in relation to that act.
{¶21} As this court noted, “R.C. 2151.23(I) is written in the negative, and clearly
states that a juvenile court is divested of jurisdiction when certain requirements are met.”
In re H.C., 8th Dist. Cuyahoga No. 102601, 2015-Ohio-3676, ¶ 10.
[T]hree requirements that must be fulfilled in order for the juvenile court to
lack jurisdiction under R.C. 2151.23(I): (1) the defendant must have been
under eighteen years of age at the time of the offense; (2) the alleged
offense would be a felony if committed by an adult; and (3) the defendant
must not have been “taken into custody or apprehended” for the offense
prior to turning twenty-one years of age. In interpreting this statute, the
Ohio Supreme Court held that the touchstone of determining whether or not
a juvenile court possesses jurisdiction under the provision was “‘the age of
the offender upon apprehension.’” State v. Walls, 96 Ohio St.3d 437, 442,
2002-Ohio-5059, 775 N.E.2d 829. (Emphasis sic.)
Id.
{¶22} Accordingly, if a defendant had been taken into custody or apprehended for
a would-be-felony offense prior to turning the age of 21, then arguably the juvenile court
possesses jurisdiction over the matter.
{¶23} In this case, Rosser was 17 years old at the time of the offenses, and the
alleged offenses of attempted rape and kidnapping are both felonies if committed by an
adult. Therefore, much like in H.C., the only remaining issue as to whether Rosser is a
“child” is whether Rosser was “taken into custody or apprehended” for the alleged crimes
prior to turning 21 years old. According to the juvenile record, he was.
{¶24} First, the transcript of the bindover hearing and subsequent trial is replete
with evidence that Rosser was identified on the day of the offense by the victim and
subsequently arrested that evening. Following the arrest and booking process, he was
released in the custody of his mother. Additionally, the juvenile record reflects that
Rosser was initially indicted in the Cuyahoga County Common Pleas Court General
Division. However, subsequently a complaint was filed with the juvenile division. As
the defense counsel explained to the juvenile court judge,
This case was actually indicted in an indictment and then it was later
learned that he was a juvenile and that case law had to be investigated
whether he was actually charged and who had jurisdiction.
THE COURT: So they thought at first that he was not arrested and just
proceeded to indict him?
[DEFENSE COUNSEL]: Correct. And then it was learned that he was
arrested so that jurisdiction laid with Juvenile Court.
(Tr. 79, Juvenile Bindover Hearing Dated February 23, 2016.)
{¶25} Accordingly, the juvenile court possessed jurisdiction over Rosser and prior
to transferring jurisdiction to the general division of the common pleas court, the juvenile
court was required to follow the procedures in R.C. 2152.12.
{¶26} R.C. 2152.12 governs the juvenile court’s authority to transfer a child to the
general division of the common pleas court. Subsection (A) governs mandatory bindover
and subsection (B) governs discretionary bindover. In this case, Rosser was charged
with attempted rape and kidnapping. These offenses do not subject Rosser to mandatory
bindover because they are not category one offenses as defined under R.C. 2152.02(AA).
Although he was charged with kidnapping, which is a category two offense under R.C.
2152.02(BB), R.C. 2152.10(A)(2) expressly removes kidnapping from offenses that
would require mandatory bindover. Accordingly, Rosser was only subject to
discretionary bindover, which required the trial court to make certain findings prior to
transferring him to the general division of the common pleas court.
{¶27} In order to transfer a case to adult court, pursuant to R.C. 2152.12(B), the
court is required to find (1) that the child was 14 years of age or older at the time of the
act charged; (2) there is probable cause to believe that the child committed the act
charged; and (3) after completion of the required investigation under subsection (C) and
upon consideration of the relevant factors under subsection (D) and (E), the child is not
amenable to care or rehabilitation with the juvenile system, and the safety of the
community may require that the child be subject to adult sanctions.
{¶28} In this case, the juvenile court, prior to transferring Rosser pursuant to R.C.
2151.12(B), concluded that Rosser was over the age of 14 at the time of the offense, and
there was probable cause to believe he committed the act charged. However, it failed to
conduct an amenability hearing as required. While the amenability hearing may have
been a futile act, the failure to conduct such hearing was a jurisdictional impediment that
deprived the general division of jurisdiction over the case. Absent a proper bindover
proceeding in the juvenile court, the common pleas court lacks subject-matter jurisdiction
over the case and any conviction obtained there is void ab initio. State v. Wilson, 73
Ohio St.3d 40, 44, 652 N.E.2d 196 (1995).
{¶29} Accordingly, Rosser’s counsel was deficient for failing to request
dismissal of the indictment because the juvenile court improperly transferred the case to
the general division. Because the general division did not have jurisdiction over the
matter, Rosser’s convictions are reversed and the case is remanded to the juvenile court to
conduct an amenability hearing pursuant to R.C. 2152.12(B).
{¶30} Having reversed his convictions for lack of jurisdiction, Rosser’s first,
second, third, fourth, and seventh assignments of error, all of which pertain to the
evidence presented at trial, are hereby rendered moot.
{¶31} Judgment reversed and remanded.
It is ordered that appellant recover from appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE
MARY EILEEN KILBANE, J., and
PATRICIA ANN BLACKMON, J., CONCUR