Opinion
No. 22127.
Decided June 3, 1991.
Ray E. Leisy, Assistant Prosecuting Attorney, for the state.
Robert N. Gluck, for the child.
On December 13, 1990, a complaint was filed alleging C., who was born on March 24, 1969 and, thus, was age twenty-one when the complaint was filed, to be a delinquent child by reason of rape. It was alleged in the complaint that he committed the offense on or about February 1, 1983, when he would have been fourteen years of age.
A second complaint was filed on April 3, 1991, alleging a second rape offense on or about March 25, 1984, when the child would have been age fifteen.
A motion for bindover was filed pursuant to R.C. 2151.26 and Juv.R. 30. A hearing on the motion was held April 22, 1991. The evidence showed that both cases involve allegations made by C.'s sister, who will be eighteen on December 12, 1991. The first report by the sister of these allegations was made to their mother sometime in 1986. The evidence also showed that the incident alleged in the second complaint had to have happened prior to December 20, 1983. The prosecution moved to amend the second complaint to allege an incident date of March 25, 1983.
The court dismissed the motion for bindover as the evidence showed that the child was not "fifteen or more years of age at the time of the conduct charged." R.C. 2151.26(A)(1)(a). The case was then set for hearing on the merits before Referee Kienzle. Although the court did not doubt its jurisdiction to hear the Juv.R. 30 motion, it did question its jurisdiction to treat the accused as a juvenile when the complaints were filed after the accused was twenty-one years of age.
The Referee requested briefs from counsel, found that the court is without jurisdiction, and recommended that the complaints be dismissed. The prosecution has timely filed his objections to the Referee's report. The court has reviewed the briefs of counsel, the Findings and Recommendations of the Referee, and the objections filed in response.
The issue to be decided is this: Does a juvenile court have jurisdiction to adjudicate a delinquency complaint alleging a felonious act where (a) the complaint was filed after the alleged delinquent child had attained the age of twenty-one, (b) the alleged act was committed before the alleged delinquent was fifteen years of age, and (c) the alleged delinquent is, thus, not subject to a motion to relinquish jurisdiction under the provisions of R.C. 2151.26?
This appears to be a case of first impression.
In his objections, the assistant prosecuting attorney cites Kent v. United States (1966), 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84, and In re Cox (1973), 36 Ohio App.2d 65, 65 O.O.2d 51, 301 N.E.2d 907, as authority for the court's jurisdiction to proceed in this matter.
The court finds Kent is not applicable to the facts of this case. That case dealt with an accused who was properly before a juvenile court prior to the age of eighteen. Although the United States Supreme Court's ruling remanded the case when the accused was over the age of twenty-one, it is apparent that jurisdiction had been properly established prior to appellate review. Cox also does not support the argument of the prosecution. That case involved two brothers who had committed acts as juveniles, were charged and adjudicated as juveniles, were committed to state institutions under statutory authority, and then absconded to avoid that disposition. When the brothers were returned for disposition, they were both over the age of twenty-one. The trial court then sentenced the brothers to six months in the county jail. The jail sentence was upheld on appeal with the holding that "where a child, * * * who has been adjudicated a delinquent, leaves the jurisdiction of the juvenile court so that such court can not dispose of his case until he is over twenty-one years of age, he is an adult * * *." Id. at paragraph three of the syllabus. However, a different court of appeals, under very similar circumstances, found such an order invalid. In re Day (Aug. 23, 1976), Geauga App. No. 669, unreported.
Although the Cox and Day courts reached different decisions, both acknowledged the age of twenty-one as the limit to juvenile court jurisdiction, and both decisions dealt with individuals who were properly before the court prior to the age of twenty-one for adjudication. Those facts are not applicable to the case at hand, for the alleged delinquent in this case was not charged until after he was twenty-one years of age.
It has been argued that R.C. 2151.011(B)(1), the definition of a "child," provides for jurisdiction. But that section must be construed in light of other statutory provisions in order to be meaningful. It appears clear to the court that age twenty-one is the limit of juvenile court jurisdiction. This has remained the case even though the age of majority has lowered to eighteen.
A child who is adjudicated delinquent by reason of rape may be committed to a state institution for delinquents, but only until the age of twenty-one. R.C. 2151.355(A)(5). There is no provision for the court to commit this accused (should the complaint be proven to be true) to an institution, for he attained the age of mandatory release prior to the date of the filing of the complaint.
The prosecution notes correctly that other dispositional alternatives are available without any obvious limitation as to age. A fine of $50, for example, could be imposed upon adjudication, R.C. 2151.355(A)(7); "further disposition that the court finds proper" is authorized also, R.C. 2151.355(A)(11). But both examples are predicated upon the assumption that a juvenile court has jurisdiction over the acts of minors until relinquished, in other words, forever.
The prosecution notes a dismissal for want of jurisdiction would bring about a situation wherein "the child [would not be] held accountable for his actions, a result that is not intended by the statutes." With that the court would agree. There is no obvious "answer" to be found in R.C. Chapter 2151.
The statutes provide for a limit to accountability for one's action, even in a criminal prosecution. The statute of limitations for rape is six years. R.C. 2901.13(A)(1). A recent Supreme Court decision construes R.C. 2901.13(F), as to discovery of corpus delicti, so that the time period does not begin to run until the crime is reported by a child victim to someone with a statutory duty to report child abuse. State v. Hensley (1991), 59 Ohio St.3d 136, 571 N.E.2d 711.
It is true that some of the possible dispositional alternatives set forth in R.C. 2151.355 do not, by their express language, indicate an age limitation of twenty-one, but the court does not believe it was the intent of the legislature for a person, regardless of age when charged, to be forever under the jurisdiction of the juvenile court for acts committed when legally a child.
Under the unique facts of this case it would be possible for the accused to be more than twenty-one years of age. Due to the decision in Hensley, a person who is thirty or forty years of age could conceivably be charged as a delinquent child.
The juvenile court is a statutory creation, with clearly specified goals. R.C. 2151.01 states:
"The sections in Chapter 2151. of the Revised Code, with the exception of those sections providing for the criminal prosecution of adults, shall be liberally interpreted and construed so as to effectuate the following purposes:
"(A) To provide for the care, protection, and mental and physical development of children * * *.
"(B) To protect the public interest in removing the consequences of criminal behavior and the taint of criminality from children committing delinquent acts and to substitute therefor a program of supervision, care, and rehabilitation[.]"
An obvious conflict exists between the above-stated goals and the theory that an adult charged with a felonious act alleged to have happened many years ago should be treated as a child to ensure there is a consequence. The facts of this case, coupled as they are with a recent high court decision which extended the statute of limitations, present a situation not contemplated by the General Assembly. That is an issue for that body, and not the court, to redress.
It is of interest that R.C. 2151.26(A)(2) requires a transfer for a child who stands accused of aggravated murder or murder when the child has been adjudicated delinquent for such an offense before, regardless of age. The legislature has made one exception in order to deal with specific and relatively unique circumstances; it may choose to do so again in order to resolve this dilemma.
The court finds it is without jurisdiction in this matter and the complaint should therefore be dismissed.
It is therefore the order of the court that the complaints filed by Patrolman Caskey on December 13, 1990 and April 3, 1991 be, and hereby are, dismissed.
Complaints dismissed.