State ex rel. Leis v. Black

• Decision Date: 04 August 1975
• Citation: 74 O.O.2d 270,45 Ohio App.2d 191,341 N.E.2d 853
• Parties: , 74 O.O.2d 270 STATE ex rel. LEIS, v. BLACK. STATE ex rel. LEIS, v. AMMER (two cases).
• Court: Ohio Court of Appeals

Page 191

45 Ohio App.2d 191

341 N.E.2d 853, 74 O.O.2d 270

STATE ex rel. LEIS, v. BLACK.

STATE ex rel. LEIS, v. AMMER (two cases).

Court of Appeals of Ohio, First District, Hamilton County.

Aug. 4, 1975.

Syllabus by the Court

The juvenile and general divisions of a Court of Common Pleas possess concurrent jurisdiction over a juvenile accused of a crime, and the juvenile division has not been divested of personal jurisdiction over one whose disposition is returned to it after the accused initially waived his right to be judged in that tribunal.

Simon L. Leis, Jr., and Leonard Kirschner, Cincinnati, for relator.

Finn, Sirkin & Pinales, Cincinnati, for respondents.

PALMER, Judge.

These three actions in mandamus, brought on relation of the prosecutor of Hamilton County against various judges of the Court of Common Pleas of Hamilton County, raise similar issues of law questioning the authority of judges of the general division of the Court of Common Pleas to transfer the causes of defendants to the juvenile division of such court upon the discovery, after the entry of pleas and other proceedings, that such defendants had not then attained the age of eighteen years. Motions to dismiss the respective petitions have been filed in each instance, supported by memoranda, and are here consolidated for purposes of disposition.

The factual antecedents of the three causes are relatively uncomplicated and may be summarized as follows:

No. C-75161. The defendant, one Arthur Lee Hill, was indicted for receiving stolen goods and for theft, and represented to the court on arraignment on December 10, 1974, that he was twenty-two years of age. Legal counsel was provided for the defendant, who thereafter entered a plea of no contest. Following a hearing, the trial court found the defendant guilty of receiving stolen goods, but, upon receiving a report from the Adult Probate Department confirming the defendant's age as seventeen years, ordered the cause transferred to the juvenile division for further proceedings. No entry setting aside the plea and/or the finding of guilt appears of record. Six days after the February 4, 1975, entry transferring the cause to the juvenile division, proceedings were commenced therein which eventuated in the following entry of February 10, 1975:

'This day appeared in open court Arthur Lee Hill, juvenile, alleged by petition heretofore filed herein to be a delinquent person; and the Court, after full consideration and investigation, orders said juvenile be placed on 2 years Probation, Adult Probation Department, and ordered to pay Court Costs. Guilty on Trial. Denied.'

No. C-75162 and C-75163. Here, the involvement of the same defendant was occasioned by two earlier indictments, the first charging unauthorized use of a motor vehicle, and the second charging the receipt of stolen property and theft. Upon arraignment, the defendant represented his age to be nineteen years, was afforded counsel, and subsequently entered pleas of guilty to the indictments. Thereafter, a probation investigation revealed the defendant to be under eighteen years of age and, on February 20, 1975, the trial court entered an order setting aside the plea of guilty and transferred the cause to the juvenile division for further proceedings. No further action has been taken by the juvenile division with respect to these two causes, pending the determination of the instant proceedings.

The petitions for writs of mandamus pray that the several respondent judges be ordered to set aside the above entries of February 4 and February 20, 1975, by which the respective causes were transferred to the juvenile division of the court, and be further commanded to proceed with the sentencing of the defendant on the various charges. The basic postulate of the relator is that the trial court loses whatever duty or discretion it may once have had to transfer a cause involving a defendant under eighteen years to the juvenile division, when a voluntary and intelligent plea of guilty has been entered by a juvenile ¹ and/or when the trial court has determined and entered its finding of guilty, ² whatever the plea may have been. Therefore, says the relator, the court must thereafter proceed to the sentencing of the juvenile as a mandatory duty. We cannot agree.

At the outset, we note the obvious: that the threshold issue here is the appropriateness of the extraordinary writ of mandamus to compel sentencing under the above circumstances. We are not concerned with the question of the authority of the general division of the Court of Common Pleas to elect to proceed with sentencing after the juvenile has waived the personal jurisdiction of the juvenile division by entering his plea and consenting to proceedings in the general division of the court. State v. Lipscomb, unreported, Hamilton Co., No. C-72377, March 19, 1973. Had the respondent judges here elected to continue proceedings in their respective courts against the juvenile, we apprehend no reason why they could not lawfully have done so. Indeed, this seems to be the lesson of State v. Klingenberger (1925), 113 Ohio St. 418, 149 N.E. 395; Hemphill v. Johnson (1972), 31 Ohio App.2d 241, 287 N.E.2d 828; Harris v. Alvis (1950), Ohio App., 104 N.E.2d 182, 61 Ohio Law Abst. 311; State v. Peterson (1966), 9 Ohio Misc. 154, 223 N.E.2d 838, 38 Ohio Op.2d 220 and others. Rather the question is whether trial judges have discretion to elect not to proceed with the trial of the juvenile once the fact of minority is discovered, and accordingly to transfer the cause to the juvenile division. If they have such discretion to proceed or not to proceed, then obviously mandamus will not lie. R.C. 2731.03; 35 Ohio Jurisprudence 2d 370, Mandamus, Section 97, et seq.

A review of the applicable statutes and authorities has failed to reveal to us the existence of any such mandatory duty, as claimed by the relator, on the part of the general division of the Court of Common Pleas to proceed with sentencing when minority is first ascertained after a plea is entered and/or a determination of guilt made. The statutes of Ohio ³ clearly set out the jurisdiction of the juvenile division over the persons of children under eighteen years, among others, consistent with the purposes expressed in amended R.C. 2151.01, et seq., effective November 9, 1969, as follows:

'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 subject to ...