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In re D.S.

Supreme Court of Ohio

August 29, 2013

In re D.S.

Submitted May 7, 2013

Appeal from the Court of Appeals for Cuyahoga County, No. 97757, 2012-Ohio-2213.

Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Kristen Sobieski, Assistant Prosecuting Attorney, for appellant.

Timothy Young, Ohio Public Defender, and Sheryl A. Trzaska, Assistant Public Defender, for appellee.

(¶ 1} The cause is dismissed as having been improvidently accepted.

Pfeifer, Lanzinger, Kennedy, French, and O'Neill, JJ., concur.

O'Connor, C.J., and O'Donnell, J., dissent.

O'Connor, C.J., dissenting.

(¶ 2} I dissent from the majority's decision to dismiss this appeal as having been improvidently accepted. The state's proposition of law presents a substantial question regarding the effect of a juvenile's failure to provide discovery on the calculation of speedy-trial time. I would address the merits of the appeal and hold that the statutory speedy-trial time is tolled when a juvenile prosecuted as a serious youthful offender ("SYO") fails to respond to the state's request for discovery. Accordingly, I would reverse the judgment of the court of appeals and remand the cause to the juvenile court for a reinstatement of the adjudication of delinquency and sentence.

Background

(¶ 3} Appellee, D.S., was indicted on one count of murder, two counts of felonious assault, and two counts of attempted felonious assault in the Cuyahoga County Court of Common Pleas, Juvenile Division, case No. DL 09-119366. At the time of the offenses, D.S. was 15 years old.

(¶ 4} A complaint of delinquency had been filed by the Cuyahoga County prosecutor on October 20, 2009. At a hearing on October 28, 2009, D.S. denied the allegations in the complaint and was admitted to detention.

(¶ 5} On January 13, 2010, D.S. sought discovery from the state. On January 19, 2010, the state filed a request for reciprocal discovery. The state responded to D.S.'s discovery request on the same day and supplemented the response on January 27, 2010, and again on May 4, 2010. D.S. never responded to the state's January 19, 2010 discovery request.

(¶ 6} On May 4, 2010, after the juvenile court denied a motion to bind over the juvenile to common pleas court to be tried as an adult, the state filed a notice of intent to prosecute D.S. as a serious youthful offender. The grand jury returned the five-count SYO indictment on May 28, 2010. The juvenile court scheduled trial for August 16, 2010. At the time, no objection was raised as to the date of the trial.

(¶ 7} When the trial began, D. S. had not responded to the state's January 19, 2010 discovery request. The state neither informed the trial court of D.S.'s failure to provide discovery nor moved to compel discovery.

(¶ 8} D.S. was adjudicated delinquent as to all charges. The trial court imposed a juvenile disposition for murder and committed D.S. to the Department of Youth Services ("DYS") until his 21st birthday. The adult portion of his SYO sentence included a 15-years-to-life prison term with a consecutive three-year term for a firearm specification, a one-year prison term for each of two charges of attempted felonious assault with an additional and consecutive three-year term for a firearm specification on each charge of attempted felonious assault, and a two-year term for each of two felonious-assault charges, with an additional consecutive three-year term for a firearm specification on each charge. The prison terms on the counts of murder, attempted felonious assault, and felonious assault were ordered to be served concurrently.

(¶ 9} D.S. appealed the sentence to the Eighth District Court of Appeals. 8th Dist. No. 95803, 2011-Ohio-5250. The appellate court held that there was no final, appealable order, because the juvenile court "did not dispose of all counts at the traditional juvenile adjudication level." Id. at ¶ 12. The appellate court held that the juvenile court's "juvenile disposition for murder did not cover D.S.'s four assault adjudications with firearm specifications, as they were not addressed in the dispositional hearing or journal entry." Id. at ¶ 11. Therefore, the court of appeals dismissed his appeal for lack of jurisdiction.

(¶ 10} Upon remand, the juvenile court ordered a juvenile disposition on each of the five counts. On the murder count, D.S. was ordered to be committed to DYS until his 21st birthday, with a concurrent year of commitment for the firearm specification. For each of the two felonious-assault counts, D.S. was ordered to serve a term of commitment of a minimum of 12 months and a maximum period not to exceed his 21st birthday. Each felonious-assault count also included a concurrent one-year commitment for a firearm specification. The juvenile dispositions for the two counts of attempted felonious assault merged with the felonious-assault terms of commitment.

(¶ 11} D.S. again sought review in the Eighth District and asserted that his right to a speedy trial had been violated. 8th Dist. No. 97757, 2012-Ohio-2213. The state countered that D.S.'s speedy-trial time had been tolled as a result of his failure to respond to its discovery request. The Eighth District reversed the juvenile court's decision because it found that D.S.'s right to a speedy trial had been violated. In so doing, it concluded:

To hold that 30 days count against D.S., for a motion he filed months before he even had a right to a speedy trial, after the state delayed for almost three months, and where there is no indication in the record that the state was delayed in its trial preparations by D.S.'s lack of response, would be an injustice ...

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