[Cite as State ex rel. Jean-Baptiste v. Kirsch,

.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

: State of Ohio ex rel. : Pression Jean-Baptiste, : : Relator, : Case No. 10CA3338 : v. : : Honorable James W. Kirsch, : DECISION AND : JUDGMENT ENTRY Respondent. : : RELEASED 04/18/11 ________________________________________________________________

APPEARANCES:

Angela M. Lloyd and David Boylan, Justice for Children Project, Moritz College of Law, The Ohio State University, Columbus, Ohio, for Relator Pression Jean- Baptiste.

Mark E. Kuhn, Prosecuting Attorney, and Chadwick K. Sayre, Assistant Prosecuting Attorney, Portsmouth, Ohio, for Respondent Honorable James W. Kirsch.

________________________________________________________________

Harsha, P.J.

{¶1} Relator Pression Jean-Baptiste filed a complaint for peremptory writ

of prohibition against Honorable James W. Kirsch seeking to prevent Judge

Kirsch from classifying Jean-Baptiste as a juvenile sexual offender registrant.

Judge Kirsch contends that he is authorized by R.C. 2151.23(A)(15) to hold a

juvenile sexual offender hearing as required by R.C. 2152.191. Jean-Baptiste

argues that, because he is over the age of twenty-one, he is no longer a “child”

as defined in R.C. 2152.02(C) and, therefore, Judge Kirsch does not have Scioto App. No. 10CA3338 2

jurisdiction to hold the hearing or classify him as a juvenile sexual offender

registrant. He also argues he does not need to demonstrate that he lacks an

adequate remedy at law because the juvenile court patently and unambiguously

lacks jurisdiction to proceed. Finally, Jean-Baptiste contends that the juvenile

court was untimely in scheduling the juvenile sexual offender hearing over a year

and a half after his release from custody and, therefore, lost jurisdiction.

{¶2} We agree with Judge Kirsch that Jean-Baptiste meets the statutory

definition of a “child.” R.C. 2152.02(C)(2) states that any person who violates a

state law prior to attaining eighteen years of age is a “child” irrespective of that

person’s age at the time the complaint is filed or the hearing on the complaint is

held. Because R.C. 2152.02(C)(2) does not limit the juvenile court’s jurisdiction

over a “child” only until the person attains twenty-one years of age, we find that

Judge Kirsch has continuing jurisdiction to determine whether Jean-Baptiste is a

juvenile sexual offender. And, because Judge Kirsch does not patently and

unambiguously lack jurisdiction to proceed with the hearing, we conclude that

Jean-Baptiste has an adequate remedy by way of appeal. Finally, we conclude

that any improper delay in scheduling the juvenile sexual offender hearing does

not affect the juvenile court’s jurisdiction and any error in this regard can only be

raised on direct appeal.

Therefore, we deny the writ of prohibition.

Factual Summary

{¶3} On January 19, 2007, the day after Jean-Baptiste’s eighteenth Scioto App. No. 10CA3338 3

birthday, the Scioto County Juvenile Court adjudicated him a delinquent child for

an act that would have been a first degree felony, i.e. rape, if committed by an

adult. On February 5, 2007, Judge Kirsch committed Jean-Baptiste to the

permanent custody of the Department of Youth Services (“DYS”) for a minimum

period of one year and a maximum period until his twenty-first birthday. At the

dispositional hearing, Judge Kirsch also classified Jean-Baptiste as a sexual

predator and mandated his registration upon his release. However, this Court

reversed and vacated the sexual predator classification after finding that, under

to R.C. 2152.83(A)(1), the juvenile court could only classify Jean-Baptiste after

he was released from the custody of DYS. In re P.B., Scioto App. No.

07CA3140,

. On May 23, 2008, Jean-Baptiste was transferred

from the custody of DYS to the custody of Immigration and Customs

Enforcement (“ICE”). On January 18, 2010, Jean-Baptiste’s twenty-first birthday,

DYS released him.1

{¶4} Judge Kirsch scheduled a juvenile sexual offender classification

hearing for February 8, 2010. Shortly before the hearing date, Jean-Baptiste

filed a verified complaint for peremptory writ of prohibition seeking to prevent

Judge Kirsch from classifying him as a juvenile sexual offender registrant after

1 Jean-Baptiste was born in Haiti. According to ¶¶ 7 -8 of the complaint, which Judge Kirsch admits to, Jean-Baptiste was transferred from DYS to ICE custody on May 23, 2008 and released by DYS on January 18, 2010. In his affidavit, Jean-Baptiste states that he was released from ICE custody on January 25, 2008. However, in his brief, Jean-Baptiste states that he was released to parole from DYS custody on July 17, 2008 and then taken into custody by ICE and held in the Seneca County Jail. He states that he was discharged from DYS on January 18, 2010, upon reaching the age of twenty- one, and released from ICE custody after his twenty-first birthday. Scioto App. No. 10CA3338 4

Jean-Baptiste’s twenty-first birthday.

Applicable Law

{¶5} A writ of prohibition is an extraordinary judicial writ; its purpose is to

restrain inferior courts and tribunals from exceeding their jurisdiction. State ex

rel. Tubbs Jones v. Suster,

,

,

.

A writ of prohibition is customarily granted with caution and restraint, and is

issued only in cases of necessity arising from the inadequacy of other remedies.

Id.; see, also, State ex rel. Barclays Bank PLC v. Hamilton Cty. Court of Common

Pleas,

,

,

(“Prohibition

is an extraordinary writ and we do not grant it routinely or easily.”).

{¶6} A writ of prohibition “tests and determines ‘solely and only’ the

subject matter jurisdiction” of the lower court. Tubbs Jones at 73, citing State ex

rel. Eaton Corp. v. Lancaster (1988),

,

.

It does not lie where the court has made a mere error in the exercise of

jurisdiction, i.e., simply reached a legally incorrect result. Brooks v. Gaul,

,

,

. But see State ex rel.

News Herald v. Ottawa Cty. Court of Common Pleas,

, 1996-

Ohio-354,

(writ of prohibition was appropriate remedy to challenge

lower court’s gag order because once the order was enforced and the hearing

conducted, relator would have no adequate remedy at law) and State ex rel.

Connor v. McGough (1989),

,

(writ of

prohibition issued where trial court had subject matter jurisdiction but patently Scioto App. No. 10CA3338 5

and unambiguously lacked personal jurisdiction over the defendant, a resident of

Germany).

{¶7} In order for a writ of prohibition to issue, the relator must establish

that: (1) the lower court is about to exercise judicial or quasi-judicial powers; (2)

the exercise of the power is unauthorized by law; and (3) the denial of the writ will

cause injury for which no other adequate remedy in the ordinary course of law

exists. State ex rel. Henry v. McMonagle,

,

,

. Only requirements two and three are at issue here as the

parties agree Judge Kirsch is attempting to exercise judicial powers by holding a

juvenile sexual offender hearing.

Exercise of Power

{¶8} The parties dispute whether Judge Kirsch’s exercise of judicial

power is authorized by law. Judge Kirsch argues that he has both subject matter

and personal jurisdiction in this case. Jean-Baptiste contends that the juvenile

court does not have personal jurisdiction over him because he is over age

twenty-one.

{¶9} Judge Kirsch argues that the Ohio General Assembly has given

juvenile courts the exclusive authority to hear cases “[c]oncerning any child who

on or about the date specified in the complaint, indictment, or information is

alleged * * * to be a juvenile traffic offender or a delinquent, unruly, abused,

neglected, or dependent child * * *.” R.C. 2151.23(A)(1). And, juvenile courts

have exclusive authority “to conduct the hearings, and to make the Scioto App. No. 10CA3338 6

determinations, adjudications, and orders authorized or required under sections

2152.82 to 2152.85 and Chapter 2950 of the Revised Code [sexual offender

registration statutes] regarding a child who has been adjudicated a delinquent

child.” R.C. 2151.23(A)(15). Jean-Baptiste does not dispute that Judge Kirsch,

as a juvenile court judge, has subject matter jurisdiction to hear these types of

cases, i.e. to determine whether a juvenile is a sexual offender under the Ohio

Revised Code; however, Jean-Baptiste argues that he is not a “child” under the

Revised Code and, therefore, the court was essentially lost subject matter

jurisdiction of his case.

R.C. 2152.02(C) states:

(1) “Child” means a person who is under eighteen years of age, except as otherwise provided in divisions (C)(2) to (7).

(2) Subject to division (C)(3) of this section, any person who violates a federal or state law or a municipal ordinance prior to attaining eighteen years of age shall be deemed a “child” irrespective of that person’s age at the time the complaint with respect to that violation is filed or the hearing on the complaint is held.

(3) Any person who, while under eighteen 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 the person attains twenty-one years of age is not a child in relation to that act.

* * *

(6) The juvenile court has jurisdiction over a person who is adjudicated a delinquent child or juvenile traffic offender prior to attaining eighteen years of age until Scioto App. No. 10CA3338 7

the person attains twenty-one years of age, and, for purposes of that jurisdiction related to that adjudication, except as otherwise provided in this division, a person who is so adjudicated a delinquent child or juvenile traffic offender shall be deemed a “child” until the person attains twenty-one years of age. * * *

* * *

{¶10} Judge Kirsch argues that Jean-Baptiste is a “child” under R.C.

2152.02(C)(2) because he committed the offense at issue prior to attaining the

age of eighteen. We agree. We recognize that we have reached a different

result here than in our orders denying Judge Kirsch’s motion to dismiss and

motion for relief from judgment and application for leave to renew motion to

dismiss. However, the denial of a motion to dismiss is not a final appealable

order, In re Fennell, Athens App. No. 02CA19,

, at ¶ 11, and can

be reconsidered. Upon further contemplation, we conclude that R.C.

2152.02(C)(2) applies to Jean-Baptiste.

{¶11} When interpreting a statute, courts must first look to the plain

language of the statute to determine legislative intent. Hubbell v. Xenia,

,

,

. We must read words and

phrases in context, giving words their common, ordinary and accepted meaning

unless the legislature has clearly expressed a contrary intention. Kunkler v.

Goodyear Tire & Rubber Co. (1988),

,

;

State v. Singer (1977),

,

. We cannot

interpret the plain language of a statute to mean something it does not say. State Scioto App. No. 10CA3338 8

v. Hix (1988),

,

.

{¶12} Under R.C. 2152.02(C)(1), a “child” is a person under age eighteen

unless one of the exceptions apply. Under R.C. 2152.02(C)(2), a person who

violates a state law before turning eighteen years of age is deemed a “child”

regardless of that person's age at the time the complaint on the violation is filed

or when the hearing on the complaint is held. R.C. 2152.02(C)(2) is limited by

subdivision (3), which provides that a person who – while under eighteen years

of age - commits an act that would be a felony if committed by an adult and is not

taken into custody or apprehended for that act until after he turns twenty-one

years of age is not a child in relation to that act. Jean-Baptiste was apprehended

before his twenty-first birthday. Therefore, subdivision (3) is inapplicable. The

language of R.C. 2152.02(C)(2) does not limit the juvenile court’s jurisdiction to

only the “hearing on the complaint,” i.e. the adjudication and disposition.

Therefore, we conclude that the trial court has continuing jurisdiction to hold a

juvenile sexual offender hearing, if applicable, involving a “child.”

{¶13} Jean-Baptiste violated state law by committing a delinquent act that

would have been a first degree felony, i.e. rape, if committed by an adult. And,

he committed this violation before his eighteenth birthday. Therefore, he is

considered a “child” under the plain language of R.C. 2152.02(C)(2).

{¶14} Because Jean-Baptiste is still considered a “child,” the juvenile

court is required to hold a juvenile sexual offender hearing under R.C.

2152.83(A)(1), which states: Scioto App. No. 10CA3338 9

The court that adjudicates a child a delinquent child shall issue as part of the dispositional order or, if the court commits the child for the delinquent act to the custody of a secure facility, shall issue at the time of the child's release from the secure facility an order that classifies the child as a juvenile offender registrant.

See State ex rel. N.A. v. Cross,

,

, 2010-Ohio-

1471, at ¶¶ 10-13 (if delinquent child is still a “child” under R.C. 2152.02(C)(2),

juvenile court has jurisdiction to declare delinquent child a juvenile sexual

offender even though he has turned twenty-one).

{¶15} Jean-Baptiste cites In re G.M.,

, 2010-Ohio-

2295,

, in support of his contention that a juvenile court does not

have jurisdiction to conduct a juvenile sexual offender classification hearing once

a juvenile offender has reached age twenty-one. However, G.M. is

distinguishable because G.M. was adjudicated a delinquent child at age sixteen;

therefore, under R.C. 2152.02(C)(6), the juvenile court had jurisdiction over G.M.

only until he reached age twenty-one. R.C. 2152.02(C)(6) is inapplicable here

because Jean-Baptiste was not adjudicated a delinquent child until after his

eighteenth birthday and is considered a “child” under R.C. 2152.02(C)(2). Unlike

subsection (C)(6), subsection (C)(2) does not contain a provision limiting

jurisdiction until age twenty-one. Further, in

the Ohio Supreme Court

specifically held that a juvenile who is a “child” pursuant to R.C. 2152.02(C)(2) is

subject to the juvenile offender registration provisions even if he has attained

twenty-one years of age.

at ¶¶ 10 and 13. Scioto App. No. 10CA3338 10

{¶16} We conclude that Judge Kirsch has both subject matter and

personal jurisdiction over Jean-Baptiste. Therefore, his exercise of judicial power

by holding a juvenile sexual offender hearing is authorized by law.

Adequate Remedy at Law

{¶17} Absent a patent and unambiguous lack of jurisdiction, a party

challenging a court's jurisdiction generally has an adequate remedy via

postjudgment appeal within which to pursue a jurisdictional challenge. Clark v.

Connor (1998),

,

. Because we have

concluded that Judge Kirsch does not patently and unambiguously lack

jurisdiction, we find that Jean-Baptiste has an adequate remedy at law by way of

an appeal.

Failure to Hold Hearing Within Reasonable Time

{¶18} Jean-Baptiste also argues that the juvenile court was statutorily

required to hold the juvenile sexual offender classification hearing upon his

release from the secure DYS facility and, because it waited over a year and a

half to hold the hearing, it lost jurisdiction. Specifically, Jean-Baptiste states that

he was released from the secure DYS facility on July 17, 2008 and the hearing

was not scheduled until February 8, 2010. Judge Kirsch argues that Jean-

Baptiste is relying on facts not in evidence to support his claim because he stated

in his complaint that he was released from DYS on January 18, 2010.

{¶19} While we agree with Judge Kirsch that the timeline in this case is

unclear, Jean-Baptiste did state in his affidavit and his complaint that he was Scioto App. No. 10CA3338 11

transferred to ICE custody in May 2008. Nonetheless, we decline to address this

argument.

{¶20} Jean-Baptiste primarily cites two cases to support his argument that

the juvenile court lost jurisdiction to hold the juvenile sexual offender hearing

because it did not hold the hearing in a timely manner – In re McAllister, 2006-

Ohio-5554, and In the Matter of B.W.,

. However, neither of

these cases involves a writ of prohibition and neither the Second nor the Fifth

District held that a delay in scheduling the hearing may affect the juvenile court’s

jurisdiction. Therefore, Jean-Baptiste's claim that the hearing is untimely should

be raised by way of an appeal as it is not a challenge to Judge Kirsch's

jurisdiction.

Conclusion

{¶21} We hereby DENY the requested writ of prohibition. WRIT DENIED.

COSTS TO PETITIONER. IT IS SO ORDERED.

Abele, J. & Kline, J.: Concurs

FOR THE COURT

_____________________________________ William H. Harsha Presiding Judge