STATE OF OHIO v. FRANKIE HUDSON, JR.

{¶2} On August 15, 2013, a Mahoning County Grand Jury indicted appellant in

case number 2013 CR 828 on six counts from two separate incidents. Counts One, Two,

and Three comprised the first incident and Counts Four, Five, and Six comprised the

second incident. Count One charged appellant with aggravated murder in violation of

R.C. 2903.01(B)(F), an unspecified felony. Count Two charged appellant with aggravated

robbery in violation of R.C. 2911.01(A)(1)(C), a first-degree felony. And Count Three

charged appellant with possessing a firearm while under a disability in violation of R.C.

2923.13(A)(2)(B), a third-degree felony. Counts One and Two also contained firearm

specifications pursuant to R.C. 2941.145(A). Count Four charged appellant and a codefendant with aggravated murder in violation of R.C. 2903.01(B)(3), an unspecified

felony. Count Five charged appellant and the same co-defendant with aggravated

robbery in violation of R.C. 2911.01(A)(1)(C), a first-degree felony. And Count Six

charged appellant with possessing a firearm while under disability in violation of R.C.

2923.13(A)(2)(b), a third-degree felony.

{¶3} At the time of the first incident (Counts One, Two, and Three), appellant

was 17 years old. At the time of the second incident (Counts Four, Five, and Six),

appellant was 18 years old. At the time of indictment in 2013 CR 828, appellant was 20

years old.

{¶4} Appellant moved to sever the counts related to the first incident from the

counts related to the second incident. The trial court granted this motion and proceeded

with the counts related to the second incident. Appellant pled guilty to Count Six and

proceeded to a jury trial on Counts Four and Five. A jury found appellant and his codefendant not guilty of Counts Four and Five.

– 3 –

Case No. 17 MA 0080

{¶5} On November 12, 2015, plaintiff-appellee, the State of Ohio, moved to

dismiss Counts One, Two, and Three without prejudice. At this time, appellant was 22

years old. The trial court granted the state’s motion. On the same day, a Mahoning

County Grand Jury indicted appellant in case number 2015 CR 1133 on identical Counts

One, Two, and Three alleging identical conduct from case number 2013 CR 838. The

grand jury subsequently filed a superseding indictment maintaining Counts One, Two,

and Three but adding criminal gang specifications pursuant to R.C. 2941.142(A) to

Counts One and Two. The superseding indictment also added four more charges: two

charges for attempted murder and two charges for witness intimidation.

{¶6} Appellant filed a motion to dismiss the indictment on the grounds that the

general division of the Mahoning County Common Pleas Court lacked subject matter

jurisdiction. Appellant argued that because Counts One, Two, and Three all occurred

when he was 17 years old, the matter should have been brought in the juvenile division.

{¶7} The state opposed this motion arguing that appellant was not

apprehended in case number 2015 CR 1133 until he was served with the indictment,

which occurred on November 13, 2015 when he was 22 years old. As appellant was 22

years old at the time he was apprehended, the state argued that the general division had

subject matter jurisdiction over the charges. The trial court denied appellant’s motion to

dismiss.

{¶8} Appellant then filed a petition for a writ of prohibition and an alternative writ

of prohibition in this court raising similar arguments as his motion to dismiss. State ex rel.

Hudson v. Sweeney, 7th Dist. Mahoning No. 16 MA 0127, 2016-Ohio-5468. This court

held “we cannot conclude that jurisdiction is patently and unambiguously lacking” and

denied the writs. Id. at ¶ 1.

{¶9} Appellant and the state reached a plea agreement. The state agreed to

amend Count One to involuntary manslaughter, dismiss the two attempted murder and

two witness intimidation charges, and recommend a prison sentence of 15 years. In

exchange, appellant agreed to plead no contest to the amended Count One, Count Two,

and Count Three. The trial court accepted appellant’s no contest plea.

{¶10} On April 24, 2017, the trial court sentenced appellant to the agreed upon

prison term of 15 years. The trial court ordered this sentence to run concurrently with

– 4 –

Case No. 17 MA 0080

appellant’s sentence in case number 2013 CR 838 and concurrently to another nine-year

sentence appellant was serving in case number 2011 CR 1282A. Appellant timely filed

his notice of appeal. Appellant now raises one assignment of error.

{¶11} Appellant’s sole assignment of error states:

THE TRIAL COURT ERRED BY OVERRULING DEFENDANTAPPELLANT’S MOTION TO DISMISS THE INDICTMENT WHEN THE

TRIAL COURT LACKED SUBJECT MATTER JURISDICTION OVER THE

CHARGES BROUGHT AGAINST DEFENDANT-APPELLANT

CONTRARY TO LAW CONSTITUTING AN ABUSE OF THE TRIAL

COURT’S DISCRETION IN CONTRAVENTION OF R.C. 2151.23(I) AND

R.C. 2152.02(C)(2).

{¶12} Appellant argues that the trial court did not have subject matter over

Counts One, Two, and Three because he was 17 years old at the time the events giving

rise to those counts occurred. Because he was 17 years old at the time of those actions,

he argues that the action should have originated in the juvenile division and not the

general division of the common pleas court.

{¶13} Motions to dismiss are subject to an abuse of discretion standard of

review. State v. Brown, 7th Dist. Mahoning No. 03-MA-32, 2005-Ohio-2939, ¶ 77. But

the issue appellant raises is whether the trial court had subject matter jurisdiction which

is an issue of law and, therefore, subject to a de novo review. State v. Williams, 12th

Dist. Butler No. CA2014-06-144, 2015-Ohio-1090, ¶ 7. Thus, an abuse of discretion

standard of review applies to the trial court’s determination of the relevant facts and a de

novo review applies to the trial court’s ruling on subject matter jurisdiction.

{¶14} The relevant facts are not in dispute. At the time Counts One, Two, and

Three were committed, appellant was 17 years old. At the time of indictment in case

number 2013 CR 828, appellant was 20 years old. When the state dismissed Counts

One, Two, and Three in case number 2013 CR 828 and refiled them in case number 2015

CR 1133, appellant was 22 years old.

– 5 –

Case No. 17 MA 0080

{¶15} Pursuant to R.C. 2151.23(A)(1), the juvenile court has exclusive original

jurisdiction over child delinquency proceedings. R.C. 2152.02 defines who is and who is

not a “child” for juvenile court jurisdiction purposes. These definitions are, in relevant part:

(1) ‘Child’ means a person who is under eighteen years of age, except as

otherwise provided in divisions (C)(2) to (8) of this section.

(2) Subject 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.

(3) Any 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.

R.C. 2152.02(C)(1)-(3).

{¶16} The provisions of R.C. 2152.02(C)(3) are also present in R.C. 2151.23(I).

This statute provides that if a person who is under 18 years of age allegedly commits an

act that would be a felony if committed by an adult but “is not taken into custody or

apprehended” for that act until after the person reaches 21 years of age, the juvenile court

does not have jurisdiction.

{¶17} Appellant argues that he was apprehended in this case when he was

indicted in case number 2013 CR 828, when he was 20 years old and this action should

have originated in the juvenile court. He argues that his re-indictment in case number

2015 CR 1133 on identical charges alleging identical conduct does not cure the

jurisdictional defect.

{¶18} Appellant was arrested in case number 2013 CR 828 on August 19, 2013.

Three of the six charges under this case number were committed when appellant was 18

years old. On January 15, 2014, appellant was sentenced on unrelated charges to a

nine-year prison sentence in case number 2011 CR 1282(A). At the time of indictment

– 6 –

Case No. 17 MA 0080

and apprehension in the present case, appellant was still serving prison time in the

unrelated case and was 22 years old.

{¶19} Other appellate districts have upheld the practice of indicting and

apprehending defendants for acts committed when they were juveniles after they turn 21

years old pursuant to R.C. 2151.23(I). State v. Loveless, 12th Dist. Clermont No.

CA2019-03-028, 2019-Ohio-4830, jurisdiction declined, 158 Ohio St.3d 1483; State v.

Taylor, 8th Dist. Cuyahoga No. 105322, 2017-Ohio-8066; State v. Martin, 3d Dist. Mercer

No. 10-14-12, 2015-Ohio-1339.

{¶20} Based on the foregoing, the general division of the Common Pleas Court

had jurisdiction over this matter and the dismissal of the original charges do not effect this

result.

{¶21} Accordingly, appellant’s sole assignment of error is without merit and is

overruled.

or the reasons stated above, the trial court’s judgment is hereby affirmed.