Jackson, In re

• Decision Date: 18 March 1970
• Docket Number: No. 69-290,69-290
• Citation: 21 Ohio St.2d 215,257 N.E.2d 74
• Parties: , 50 O.O.2d 447 In re JACKSON.
• Court: Ohio Supreme Court

Page 215

21 Ohio St.2d 215

257 N.E.2d 74, 50 O.O.2d 447

In re JACKSON.

No. 69-290.

Supreme Court of Ohio.

March 18, 1970.

Syllabus by the Court

1. Pursuant to Section 2151.26, Revised Code, as it existed immediately prior to November 19, 1969, where a juvenile was charged with being a delinquent child, and where the Juvenile Court sought to bind that child over to the Court of Common Pleas, the child must first have been found to be a delinquent child; and, if so found, the Juvenile Court must also have found that the child could not be rehabilitated within the exercise of the exclusive jurisdiction of the Juvenile Court.

2. Pursuant to Section 2151.26, Revised Code, as it existed immediately prior to November 19, 1969, where the evidence before a Juvenile Court was sufficient to support a finding that there was probable cause to believe a delinquent child had committed an act which could be a felony if committed by an adult, that court could properly bind the child over to the Court of Common Pleas.

On July 29, 1968, Leslie Jackson, age 16, was charged in the Juvenile Court of Cuyahoga County with being a delinquent child. The petition alleged that on or about July 23, 1968, Jackson maliciously shot at a Cleveland police officer with intent to kill. On August 15, 1968, after a hearing in the Juvenile Court, the court ordered that Jackson be bound over to the Court of Common Pleas for further proceedings according to law. The Court of Appeals reversed that judgment and the cause is now before us pursuant to our allowance of the state's motion to certify the record. Jackson, the appellee herein, has filed a cross-appeal raising questions presented to, but not determined by, the Court of Appeals.

John T. Corrigan, Pros. Atty., Harvey R. Monck and Charles R. Laurie, Cleveland, for the State.

Carol G. Emerling, Cleveland, for Leslie Jackson.

HERBERT, Justice.

Effective November 19, 1969, significant amendments were made to the Ohio Juvenile Code. This opinion relates solely to the Code as it existed when the instant case was considered below and prior to the effective date of those amendments.

The order of the Juvenile Court binding the appellee over to the Court of Common Pleas stated, in part:

'* * * After full investigation and a hearing, the child being duly represented by * * * (counsel), the court finds that there is probable cause to believe that the child has committed an act which if committed by an adult could be a felony. The court having carefully examined the reports of the duly qualified persons who conducted the physical and mental examinations of the child and the report of the probation officer and being fully advised in the premises finds that the child herein is not amenable to the care and treatment abailable to this court and that the child is charged with a law violation wherein the protection of society and other considerations requires that he be treated as an adult. It is therefore ordered, adjudged and decreed that, pursuant to Section 2151.26, Ohio Revised Code, the said Leslie Jackson be, and he is hereby bound over to the Court of Common Pleas of Cuyahoga County for further proceedings according to law.'

In reversing the order of the Juvenile Court, the Court of Appeals provided no written opinion. However, its journal entry stated, in part:

'Upon consideration whereof, this court orders the judgment reversed as contrary to law for the reason that upon a careful reading of the record herein and the journal entry of the court we find that the court made no finding that the defendant was a delinquent child and that, if a delinquent, he could not be rehabilitated within the exercise of the exclusive jurisdiction of Juvenile Court. We conclude and hold that such determinations are a condition precedent to the waiver of its jurisdiction by the Juvenile Court in favor of a bind over to the Court of Common Pleas. Cause remanded to the Juvenile Court for further proceedings according to law consistent with this holding. In view of the foregoing ruling all other assigned errors are overruled.'

One of the basic questions raised by this appeal is whether a juvenile court must make a determination and finding of delinquency before it can bind a juvenile over to the Court of Common Pleas.

In 1968, Section 2151.26, Revised Code, provided:

'In any case involving a delinquent child under sections 2151.01 to 2151.54, inclusive, of the Revised Code, who has committed an act which could be a felony if committed by an adult, the juvenile judge, after full investigation and after a mental and physical examination of such child has been made by the youth commission, or by some other public or private agency, or by a person qualified to make such examination, may order that such child enter into a recognizance with good and sufficient surety, subject to the approval of the judge, for his appearance before the court of common pleas at the next term thereof, for such disposition as the court of common pleas is authorized to make for a like act committed by an adult; or the judge may exercise the other powers conferred in such sections in disposing of such case.' (Emphasis added.)

Appellant contends that the statute requires only that the juvenile be charged as a delinquent, and not that he be found to be a delinquent, before being bound over to the Court of Common Pleas. However, it is clear to us that before the Juvenile Court may bind the child over to the Court of Common Pleas, it must first determine that the child is, in fact, delinquent. The language employed in the statute is unambiguous and does not indicate any legislative intent to the contrary. See State ex rel. Gareau v. Stillman (1969), 18 Ohio St.2d 63, 247 N.E.2d 461. To permit the word 'delinquent,' as used in Section 2151.26, Revised Code, to be read to mean 'alleged delinquent' would distort the true meaning of Section 2151.26, and would ignore the dispositional powers thereby granted to the Juvenile Court. As Judge Bell, dissenting on other grounds, stated in his opinion in State v. Worden (1955), 162 Ohio St. 593, 597, 124 N.E.2d 817, 819:

'Let us examine the procedure to be followed under these statutes. A juvenile is arrested and charged with the * * * (crime). Under Section 2151.25, such juvenile must be brought before the Juvenile Court. Then, under Section 2151.26, provided such juvenile is found to be a delinquent, the juvenile judge may order him to appear before the Court of Common Pleas. But, first, the juvenile must be found to be delinquent. And this can be done only after a hearing. It is only after this finding of delinquency that the juvenile judge may exercise some discretion. He may dispose of the matter of committing the juvenile to the appropriate correctional school, release him, or 'bind him over,' so to speak, to the Court of Common Pleas. * * *'

We agree with the Court of Appeals that as conditions precedent to the binding over of a juvenile to the Court of Common Pleas, the Juvenile Court must find that the child is, in fact, delinquent, and that he cannot be rehabilitated within the exercise of the exclusive jurisdiction of the Juvenile Court. See Kent v. United States (1966), 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84; In re Whittington (1969), 17 Ohio App.2d 164, 245 N.E.2d 364.

This is not to say that the act upon which a bind-over is predicated must be the same as that from which the finding of delinquency emanated, nor that the quantum of proof necessary to uphold every juvenile bind-over order is the same as that required to support a finding of delinquency. For example, a child could be adjudged a delinquent on many grounds, including those enumerated in Section 2150.02, Revised Code, before the Juvenile Court even began consideration of whether he should be bound over under Section 2151.26, Revised Code. A child could have been found to be a delinquent in an entirely unrelated, prior occurrence, and then become involved in a matter which would fall within the purview of Section 2151.26, Revised Code.

A study of the Juvenile Code, as it existed immediately prior to November 19, 1969, fails to reveal a definite statement of the quantum of evidence necessary to sustain a bind-over order under Section 2151.26, Revised Code. However, that section placed the widest discretion in the Juvenile Court with respect to the entry...