IN THE COURT OF COMMON PLEAS
WAYNE COUNTY, OHIO
CRIMINAL DIVISION
STATE OF OHIO
Plaintiff
Case
No. CR 0325
-vs.- Judge
Wiest
DREW H***
Defendant
Down loaded from web site gabatriallaw.com
DEFENDANT DREW H***’S MOTION TO DISMISS THE INDICTMENT
FOR LACK OF SUBJECT - MATTER JURISDICTION
Now comes
the Defendant Drew H***, by and through undersigned counsel, and respectfully
moves this Honorable Court, pursuant to Ohio Crim. R. 12(B), for an Order
dismissing the indictment in the above- captioned matter on the grounds that
this Court does not have subject-matter jurisdiction to hear a criminal case
where the facts are that an offense allegedly occurred when the Defendant was
younger than age 15, in 1993. The
attached memorandum states the reason and authorities supporting this motion.
Respectfully
submitted
/s/
Elizabeth N. Gaba
Elizabeth
N. Gaba
1231
East Broad St.
Columbus,
Ohio 43205
Telephone
(614) 586-1586
Facsimile
(614) 586-0064
MEMORANDUM
On December 3, 2003, the Wayne County
Grand Jury returned a two (2) - count
indictment naming the Defendant Drew H*** and alleging therein two counts of
Rape, a felony of the first degree, in violation of Ohio Rev. Code Section
2907.02. The
indictment fails to specify the exact date(s), time(s), and
place(s) of any of the alleged offenses.
The indictment merely states the dates of offenses as between June 1,
1993 and September 30, 1994, and further fails to state the specific time(s) of
the alleged offenses.
The
Defendant was born March 1, 1979. He was
indicted when he was 24 years old. The
Defendant was 14 years old on June 1, 1993, and turned 15 on March 1, 1994. Neither the State of Ohio nor the purported
victim herself is able to say with any certainty when the alleged offenses took
place; i.e. was the Defendant 14 or 15 years old?
As such, the
Defendant asserts that the law as set forth in State v. Walls, 96 Ohio
St.3d 437 (2002) is controlling. In Walls,
the defendant was indicted at twenty-nine (29) years old for a felony he
committed when he was fifteen (15) years old.
The defendant-appellant (in Walls) raised several arguments,
specifically arguments addressing the constitutionality of the retroactive
application of certain juvenile statutes.
Applying the principles as set forth in the decision, the Defendant
moves for a dismissal of the indictment against him based on the argument
below.
THE AMENDMENTS TO THE OHIO JUVENILE STATUTES WHEN
RETROACTIVELY APPLIED TO THE DEFENDANT ARE EX POST FACTO
LAWS PROHIBITED BY SECTION 10, ARTICLE I OF THE UNITED
STATES CONSTITUTION AND SECTION 28, ARTICLE II OF THE OHIO
CONSTITUTION
Down loaded from web
site gabatriallaw.com
The application of the current
juvenile laws in this matter inflict a greater punishment upon the Defendant
than the law annexed to the crime at its purported commission. Section 10, Article I of the United States
Constitution and Section 28, Article II of the Ohio Constitution prohibit ex
post facto laws. “Although the Latin
phrase ‘ex post facto’ literally encompasses any law passed ’after the
fact,’ it has long
been recognized by [the United States Supreme Court] that the
constitutional prohibition on ex post facto laws applies only to penal
statutes which disadvantage the offender affected by them. “State v. Walls,
96 Ohio St.3d 437, 445 (2002) quoting Collings v. Youngblood, 497 U.S.
37, 41 (1990). This document was written by Gaba Law
Office, Columbus, O.
The United
States Supreme Court has dictated that only certain types of legislative acts
will violate the ex post facto clause.
One of these acts occurs when the punishment for a crime increases the
punishment that was available when the crime was committed. “Every law that changes the punishment,
and inflicts a greater punishment, than the law annexed to the crime,
when committed.” Id at 445, quoting Collings
at 42, quoting Calder v. Bull, 3 U.S. 386,390 (1798). Down loaded from web site gabatriallaw.com
Once it is
determined that a law may have an ex post facto effect, in order to succeed a
claim, the Defendant must show more than a “speculative or attenuated”
possibility of increased punishment. The
Defendant must show that “the amendments to the juvenile law applied in h is
case actually produced a sufficient risk of increasing the measure of
punishment attached to his crime.” Id
at 448 quoting California Dept of Corrections v. Morales, 514 U.S. 499,
509 (1995).
In 1997 the
Ohio Assembly enacted Ohio Revised Code 2151.23 (I) which states:
“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, division (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.
Therefore,
under the current statute, the Juvenile Court does not have jurisdiction over
the Defendant, even though the alleged offenses he committed occurred while he
was fourteen (14) years old.
Down loaded from
web site gabatriallaw.com
The
Defendant asserts that by making the criminal prosecution mandatory for a
person over twenty-one (21) years of age, regardless of that person’s age at the
time of the offense, the legislature has impermissibly criminalized juvenile
acts and enhanced the punishment meted out for their commission. Specifically, the Defendant asserts that the law prohibits as ex post
facto any law that inflicts a greater punishment for a crime that the law
applied to the crime at its commission.
At the time
of the alleged offense as indicated by the indictment of June 1, 1993 through
September 30, 1994, the Ohio Juvenile statute addressing the jurisdiction of
the Court stated (former O.R.C. 2151.26);
This document was
written by Gaba Law Office, Columbus, O.
“Amendment Note:
1995 H 1 rewrote this section, which previously read: (A)(1)
Except as provided in division (A)(2) of its section, after a
complaint has been filed alleging that a child is a delinquent child for
committing an act that would constitute a felony if committed by an adult, the
court at a hearing may transfer the case for criminal prosecution to the
appropriate court having jurisdiction of the offense, after making the
following determinations:
(a) The child was fifteen years of age or older at the
time of the conduct charged;”
Ohio Revised Code 2152.12 Amendment Note (former O.R.C.
2151.26).
The current
version of O.R.C. 2152.12 (the former O.R.C. 2151.26) amends the age of the
child to fourteen (14) years of age or older at the time of the act charged for
bind over eligibility. In 1993 - 1994,
the criteria for deciding whether to transfer a child to common pleas court for
trial would not have been met, as the Defendant was not fifteen (15)
years old during the overwhelming majority of the times described in the
indictment.
Down loaded from
web site gabatriallaw.com
Any law that
subjects the Defendant to a greater punishment5 than that available at the time
the crime was committed is an ex post facto violation. “Retroactive changes in the measure of
punishment are impermissibly ex post facto if they subject a defendant to a
more severe sentence than was available at the time of the offense.” Id at 447 acknowledging Lindsey v.
Washington, 301 U.S. 397, 401 (1937).
Unlike the
above cited case of State v. Walls, the Defendant here would not have met the
first requirement of the former 2151.26, being that the Defendant was not
fifteen (15) years old. Second, 2151.23
(I) as passed in 1997 limit’s the Juvenile Court’s jurisdiction to individuals
under twenty-one years old, regardless of when the crime was committed. As such, it is not pure speculation by the
Defendant that the retroactive application of current juvenile statutes will
subject the Defendant to greater penalties at
the Common Pleas Court. The
Juvenile Court did not possess the ability to procedurally bind-over the
Defendant in 1993 - 1994, as the criteria needed would not have been met. The fact that the Defendant was fourteen (14)
years old distinguishes this case for Walls. Also, the Defendant is solely
subjected to the Court of Common Pleas due to O.R.C.
2151.23 (I) being enacted in 1997. This Defendant’s ex post facto argument is
not speculative. Instead, the
retroactive application of the statutes subjects the Defendant to the Common
Pleas Court and punishments that are much greater in severity than it the
Defendant were subject to the Juvenile Court. This document was written by Gaba Law Office, Columbus,
O.
The current
matter draws similarities to another case cited in the Walls decision, United
States v. Juvenile Male, 819 F.2d 468 (1987). While the Ohio Supreme Court sets forth the distinguishing
factors between Juvenile Male and Walls, the Court’s
interpretation of Juvenile Male unambiguously draws a correlation
between that case and this current matter.
Just like the case at hand, there was no possibility that the juvenile
in Juvenile Male could be tried as an adult. “Under the federal law in place at the time
of the Juvenile Male defendant’s offense, there was absolutely no
possibility that he could be tried as an adult. Thus, application of the intervening statute
unquestionably subjected the defendant to a greater punishment that was not at
all possible at the time of his offense.
Because the new federal statute allowed for a punishment that was
previously unavailable as a matter of law, there was nothing speculative about
the onerous effect of retroactively applying the amendment to that defendant’s
case.” Walls at 451 - 452. This document was written by Gaba Law
Office, Columbus, O.
There was no
possibility for the Defendant in this matter to be bound over to the Common Pleas
Court at the time of the offense because the Defendant was only fourteen (14)
years old. The applicable statute
unequivocally stated a Defendant must be fifteen
Down loaded from web site gabatriallaw.com
(15) years old or older.
The application of O.R.C. 2151.12 (I) as enacted in 1997 now
places the Defendant under the sole jurisdiction of the
Common Pleas Court. In 1993-
1994, the Common Pleas Court did not have, and would never
have had jurisdiction over this case, as the Defendant was not eligible to be bound over. Therefore, this current matter is
distinguishable from State v. Walls.
Down loaded from
web site gabatriallaw.com
Wherefore,
Defendant Drew H***, by and through undersigned counsel, respectfully moves
this Honorable Court, pursuant to Ohio Crim. R. 12(B), for an order dismissing
the indictment in the above-captioned matter, on the grounds that, since in
1993-1994 the Common Pleas Court did not have, and would never have had,
subject matter jurisdiction over this case, as the Defendant was not eligible
to be bound over, this Court does not, therefore, have subject matter
jurisdiction now. To allow the case to
proceed would cause a violation of Section 10, Article I of the United States
Constitution and Section 28, Article II of the Ohio Constitution prohibiting ex
post facto laws.
This document was written by Gaba Law Office, Columbus, O.
Respectfully
submitted,
/s/ Elizabeth N. Gaba
Elizabeth
N. Gaba
Attorney
for Defendant
1231
East Broad Street
Columbus,
Ohio 43205
Telephone
(614) 5786-1586
Facsimile
(614) 586-0064
CERTIFICATE OF SERVICE
Down
loaded from web site gabatriallaw.com
The
undersigned hereby certifies that a copy of the foregoing document was sent to
the Prosecutor’s Office of Wayne County (Jocelyn Stefancin, Esq.) at 115 West
Liberty Street, Wooster, Ohio 44671, on this 8th day of November,
2004, by facsimile transmission (330-287-5412) and/or hand delivery and/or
ordinary U.S. mail, postage prepaid
This document was written by Gaba Law
Office, Columbus, O.
/s/ Elizabeth N. Gaba
Elizabeth
N. Gaba
Attorney
for Defendant
IN THE COURT OF COMMON PLEAS, WAYNE COUNTY, OHIO
STATE OF OHIO
Plaintiff CASE NO. CR-0325
vs.
DREW H*** JUDGMENT
ENTRY
Down loaded from the web site
gabatriallaw.com
Defendant
This
is a ruling on defendant’s motion to dismiss the indictment for lack of subject
matter jurisdiction. Oral argument was
held on November 8, 2004. On December 3,
2003, defendant was indicted on two counts of rape. Both counts allege that the rapes took place
“on or about June 1, 1993, through September 30, 1994. . . “” The
Defendant’s date of birth is March 1, 1979. The State has represented to the court that
the only evidence in its possession as to when the crimes occurred is the
defendant’s statement. In a statement
dated May 8, 2003, the defendant told investigators in reference to the date of
the offense, “During late summer in about 1993 - 1994.” In her testimony to the grand jury on
December 3, 2003, the victim, Brandy Eggleston, was not asked when the offenses
occurred. In fact, the only reference to
the date of the offenses are contained in two questions asked by the assistant
prosecutor. The first question: “and was
Tom around ’93 or ’94 dating your mom?”
Second question: “And in the summer of ’94 or ’94, when you were eight
or nine, did he force himself on you sexually?”
Brandy Eggleston answered yes to both of these questions.
The
defendant argues that the law as set forth in State v. Walls (2002), 96
Ohio
St. 3d 437 is
controlling. In 1997, certain amendments
were made to Revised Code section 2151.011 and 2151.23(I). The 1997 version of R.C. 2151.011(B)(c )
changed
The definition of child to exclude any person who while under
18 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 that
person attains 21 years of age. The
defendant in this case is therefore excluded from the 1997 definition of
child. Also in 1997, the legislature
added R.C. 2151.23(I), which states that the juvenile court lacked jurisdiction
over a person 21 years of age or more who is apprehended for an offense
committed prior to the person’s 18th birthday. In Walls, the Supreme Court found an
express legislative intent that these statutes apply retroactively. Walls, who was 15 at the time of the
offense, then argued that the amendments, when retroactively applied to him,
were ex post facto laws. The court
(quoting from Collins v. Youngblood (1990), 497 U.S. 37) said that the
constitutional prohibition against ex post facto laws applies only to criminal
statutes which disadvantage the offender affected by them. The Collins court (quoting Calder v. Bull (1798), 3 U.S. 386)
then listed the four types of legislative acts implicated by the ex post facto
clause. Down loaded from the web site
gabatriallaw.com
Walls first
argued that the amendments impermissibly transformed a civil delinquency act
into a criminal offense. The court
rejected this out of hand and then addressed the so-called third Calder factor. This prohibits as ex post facto any law
that inflicts a greater punishment for a crime than the law in effect at the
time of the commission. Under the 1985
law, Walls who would have been 15 in 1985, could not have been tried as an
adult until the juvenile court conducted a bind over hearing. But the court said Walls must show that he
had more than a speculative chance under the old law of being tried in juvenile
court and subjected only to juvenile delinquency dispositions. The court found the bind over hearing to be
merely a procedural step in transferring the case to adult court and rejected
the ex post facto claim. In essence,
there was no change of Walls being tried as a juvenile and thus the third Calder
factor did not apply.
The court
then went on to say that Walls’ argument could be distinguished from two cases
that found retroactive applications of juvenile statutes to be ex post facto
violations. One of the two cases,
United States v. Juvenile Male (C.A. 4, 1987), 819 F. 2d 468, is pertinent to
our analysis here. Down loaded from the web site
gabatriallaw.com
In Juvenile
Male, the defendant was accused of committing multiple murders on federal
property when he was 15 years of age At the time of the murders, federal law
did not allow prosecution as an adult of any person who committed a crime at
age 15. The government could prosecute
the offender only as a juvenile, subjecting him to a maximum punishment of
incarceration until the age of 21. When
Juvenile Male was apprehended in 1986, at age 20, the statute had been amended
to allow transfer to district court for trial as an adult for certain crimes
committed by 15-year-old offenders. The
United States Court of Appeals for the Fourth Circuit, applying the third Calder
factor, found that the new statute plainly imposed a greater punishment than
the law in effect at the time the crime was committed because it exposes the
defendant to a much more severe sentence.
The court rejected the characterization of the charge as procedural,
noting that only by closing one’s eyes to the actual effect of the transfer can
one label tis radical increase in the applicable punishment a procedural
change. The Supreme Court of Ohio found
the Juvenile Male case of no help to Walls because in the Juvenile
Male case, the new statute allowed for a punishment that was not even
available as a matter of law, whereas in the Walls case, a procedural
mechanism to transfer to the adult court was in existence. Thus, the Supreme Court of Ohio said,
“Because a 29 year old had no realistic chance of remaining within the juvenile
system under the old law, the actual effect of the statutory change, as applied
to Walls was not nearly as dramatic as the amendments at issue in Juvenile
Male. Down loaded
from the web site gabatriallaw.com
The date of
birth of defendant H*** is March 1, 1979.
According to his own statements (the only evidence of when the crimes
occurred), he was 14 - 15 during the period of time specified in the
indictment. If he was 14 when the crimes
occurred, the case could not have been bound over to adult court. The problem is that there is nothing from
which the court can even draw an inference that he was 15 at the time of the
offense. (If this was before the court
on a Rule 29 motion, it would have to be granted. The jury would have to in effect “flip a
coin” as to when the offense occurred.) The court assumes that he was 15. The effect of retroactively applying the
amendments to the defendant’s case is onerous to say the least. The maximum sentence is increased from a
commitment to Department of Youth Services until age 21 to 20 to 50 years in
adult prison (10 - 25 years on each count consecutive). Down loaded from the web site gabatriallaw.com
This is a
violation of the ex post facto prohibition in Section 9 Article I of the U.S.
Constitution. THE MOTION IS GRANTED
AND THE CASE DISMISSED. (Emphasis
added) Costs to plaintiff.
IT IS SO
ORDERED.
/S/
Mark K Wiest Mark K. Wiest, Judge
Dated: 12/17/04