[Cite as State v. Bonilla,

.]

IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 2011 CA 46

v. : T.C. NO. 98CR488

EDUARDO BONILLA : (Criminal appeal from aka JUAN RAMONE LOPEZ Common Pleas Court)

Defendant-Appellant :

:

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OPINION

Rendered on the 21st day of February , 2014.

..........

ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Prosecutor, 61 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee

ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, P. O. Box 341021, Beavercreek, Ohio 45434 Attorney for Defendant-Appellant

..........

FROELICH, P.J. [Cite as State v. Bonilla,

.] {¶ 1} Eduardo Bonilla, aka Juan Ramone Lopez,1 appeals from a judgment

of the Greene County Court of Common Pleas, which denied his motion to vacate his

conviction for want of subject matter jurisdiction. For the following reasons, the trial

court’s judgment will be affirmed.

{¶ 2} In 1999, Bonilla was found guilty, after a jury trial, of seven offenses,

including complicity to commit aggravated murder, complicity to commit murder, and

complicity to commit kidnapping. The charges stemmed from plans to kidnap, rob, and

murder Mark “Corky” Miller, a drug dealer, due to a large drug debt that Miller owed to

Bonilla, his Chicago supplier. Bonilla, in turn, was being threatened by his own supplier if

Bonilla did not get the money that was owed. Miller and one of Bonilla’s co-conspirators

were killed during a shoot-out in a Beavercreek apartment on October 4, 1998, as Bonilla

and others attempted to kidnap Miller.2

{¶ 3} At Bonilla’s sentencing, the trial court merged several of the offenses and

imposed consecutive sentences totaling life plus thirty years in prison. We affirmed

Bonilla’s convictions on direct appeal. State v. Bonilla, 2d Dist. Greene No. 99 CA 118,

(Mar. 2, 2001). Bonilla subsequently sought postconviction relief,

challenging his sentence. The trial court denied the petition; Bonilla did not appeal. In

2005, Bonilla filed a motion for a new trial. We affirmed the trial court’s denial of that

1 Bonilla has used several aliases. At trial and during the hearing on his motion to vacate, he testified that his name is, in fact, Juan Ramone Lopez. For sake of consistency, we will continue to refer to him as Bonilla, the name under which he was indicted, tried, and convicted in this case. 2 A detailed account of the facts underlying Bonilla’s offenses was set forth in Bonilla’s direct appeal from his convictions. State v. Bonilla, 2d Dist. Greene No. 99 CA 118,

(Mar. 2, 2001). 3

motion. State v. Bonilla, 2d Dist. Greene No. 2008 CA 68,

.

{¶ 4} On January 24, 2011, Bonilla filed a motion to vacate his conviction,

claiming, for the first time, that the trial court lacked subject matter jurisdiction over his case

because he was a minor (17 years old) on October 4, 1998, when the offenses occurred.

Bonilla supported his motion with a purported birth certificate from the Republic of

Guatemala for a Juan Ramone López, born in Malacatán, San Marcos, Guatemala, on

October 23, 1980, to Zuly Barrillas and Juan Ramón López. The court conducted a hearing

on the motion, during which Bonilla and the State presented additional evidence.

{¶ 5} After the hearing, the court overruled Bonilla’s motion. The trial court

noted that Bonilla’s motion met the definition of a petition for postconviction relief under

R.C. 2953.21, that the motion was untimely, and that Bonilla failed to demonstrate that the

untimeliness was excusable under R.C. 2953.23. The court further noted, however, that “a

conviction that is void for lack of jurisdiction may be attacked at any time,” but if

jurisdiction had been established at trial, then the conviction is not void and postconviction

relief procedures should apply.

{¶ 6} The court found that the evidence at trial established that Bonilla was an

adult at the time of the offenses. Bonilla had testified at trial that he was 21 years old, and

Stephanie Harden testified that, when she met Bonilla in the summer of 1998, Bonilla had

told her that he was 19 years old. Other testimony at trial supported the conclusion that his

birthday was in late August or September, not late October. Bonilla had presented no

argument or evidence at trial that he was a “child” at the time of the offenses.

{¶ 7} The court next considered the evidence submitted at the hearing on Bonilla’s 4

motion to vacate, which included testimony by Bonilla, Bonilla’s niece, and the investigating

detective, as well as documentation of Bonilla’s convictions in other Ohio courts. Upon

reviewing the evidence, the trial court stated, “One thing that has been clearly established by

the evidence is that the defendant is a liar and that nothing he testifies to can be taken for the

truth without corroboration. Two official documents [the birth certificate and a green card]

have been used by the defendant to establish his age; at least one of them is clearly a forgery

and fails to establish his true age.” While noting that the evidence “is perhaps insufficient

to establish his actual birth date with certainty,” the trial court found that the evidence

provided by the State was “sufficient to prove that the defendant was over the age of 18 at

the time of the offense, beyond a reasonable doubt.”

{¶ 8} Bonilla appeals from the trial court’s judgment. His sole assignment of

error claims that “the trial court erred by overruling [his] motion to vacate void judgment

for lack of subject matter jurisdiction pursuant to R.C. 2151.26(E) and State v. Wilson,

.”

{¶ 9} The subject matter jurisdiction of Ohio courts of common pleas is defined by

statute, pursuant to Section 4, Article IV of the Ohio Constitution. State v. Neguse,

,

(10th Dist. 1991). “The criminal law jurisdiction of

common pleas courts is defined by R.C. 2931.02 and 2931.03, which grant common pleas

courts general original subject matter jurisdiction over the prosecution of all crimes which

take place within their geographical limits except for minor offenses where exclusive

jurisdiction has been vested in an inferior court.”

Bonilla’s charged offenses, if

committed by an adult, fell within the purview of the Greene County Court of Common 5

Pleas, General Division.

{¶ 10} R.C. 2151.23 provides exclusive original subject matter jurisdiction to the

juvenile court concerning any “child” who, on or about the date specified in the complaint, is

alleged to be a delinquent or unruly. Former and current R.C. 2151.23(A)(1). At the time

of Bonilla’s offenses, R.C. 2151.23(H) further provided:

If a child who is charged with an act that would be an offense if committed by

an adult was fourteen years of age or older and under eighteen years of age at

the time of the alleged act and if the case is transferred for criminal

prosecution pursuant to section 2151.26 of the Revised Code, the juvenile

court does not have jurisdiction to hear or determine the case subsequent to

the transfer. The court to which the case is transferred for criminal

prosecution pursuant to that section has jurisdiction subsequent to the transfer

to hear and determine the case in the same manner as if the case originally

had been commenced in that court * * *.

Id.; see also Juv.R. 30.

{¶ 11} Former R.C. 2151.263 governed the transfer of a criminal prosecution from

juvenile court to the appropriate adult court. R.C. 2151.26(E), now codified as R.C.

2152.26(H), read:

No person, either before or after reaching eighteen years of age, shall be

prosecuted as an adult for an offense committed prior to becoming eighteen

years of age, unless the person has been transferred as provided in division

3 R.C. 2151.26 has been repealed and recodified as R.C. 2152.12. 6

(B) or (C) of this section or unless division (G) of this section applies. Any

prosecution that is had in a criminal court on the mistaken belief that the

person who is the subject of the case was eighteen years of age or older at the

time of the commission of the offense shall be deemed a nullity, and the

person shall not be considered to have been in jeopardy on the offense.

{¶ 12} Consistent with these statutes, the Ohio Supreme Court has held that,

“[a]bsent a proper bindover procedure pursuant to R.C. 2151.26, the juvenile court has the

exclusive subject matter jurisdiction over any case concerning a child who is alleged to be a

delinquent,” and that the “exclusive subject matter jurisdiction of the juvenile court cannot

be waived.” State v. Wilson,

,

(1995), paragraphs one and

two of the syllabus.

{¶ 13} Bonilla claims that his 1999 convictions are void, because he was 17 years

old at the time of the offenses on October 4, 1998. He asserts that his birthday is October

23, 1980, as reflected by the Guatemalan birth certificate.

{¶ 14} As an initial matter, the State asserts that Bonilla’s motion is “nothing more

than a successive petition for post-conviction relief.” The State argues that Bonilla’s

motion – brought eleven years after his conviction – was untimely and that Bonilla was not

unavoidably prevented from learning the facts to support his claim. The State further

asserts that res judicata bars relief, because Bonilla could have raised the issue in a prior

postconviction motion.

{¶ 15} Assuming, arguendo, that Bonilla’s motion should be treated as a petition

for postconviction relief, Bonilla’s motion was properly rejected by the trial court. 7

Bonilla’s motion was filed eleven years after his conviction, well beyond the 180-day time

period for filing a petition for postconviction relief. The petition was thus untimely, and

Bonilla did not establish that his timeliness was excused under R.C. 2953.23. Bonilla has

not asserted, much less demonstrated, that he was unavoidably prevented from learning his

actual age.

{¶ 16} However, we need not decide whether, under the facts of this case, Bonilla’s

motion should be construed as a petition for postconviction relief. Even assuming that

Bonilla’s motion properly challenged the trial court’s subject matter jurisdiction and that the

State had the burden of proving that Bonilla was an adult at the time of the offenses, we find

no fault with the trial court’s conclusion that it had subject matter jurisdiction over Bonilla’s

case.

{¶ 17} At the hearing on his motion, Bonilla testified on his own behalf and he

presented his 18-year-old niece, Korayma Lopez, as a witness. Lopez testified that she is a

United States citizen who was born in California, raised in Chicago, and currently lives in

Guatamala. Lopez identified Bonilla as Juan Ramone Lopez, her mother’s brother, and she

testified that Bonilla’s parents (her grandparents) were Zuly Barrillas and Juan Ramon

Lopez. Lopez testified that she met Bonilla while she lived in Chicago, and she has seen

him “five or more” times. Lopez identified a childhood photograph of herself with her

brother, her sister, and Bonilla, taken at Ross Correctional Institute, where Bonilla was

incarcerated.

{¶ 18} Bonilla testified that his real name is Juan Ramone Lopez and that he was

born on October 23, 1980. He stated that he “changed his age” so that he could buy 8

cigarettes and later, when he started drinking, he used a fake green card with an inaccurate

birth date of August 23, 1978, so that he would be able to purchase beer.

{¶ 19} The State cross-examined Bonilla extensively about his 1999 trial testimony

and his adult convictions under other aliases. Bonilla acknowledged that he had convictions

under the names Monte Lopez, Jesse Lugo, and Juan Lopez. Bonilla stated that he had

provided August 23, 1978 as his birth date when he was arrested on the charges at issue

under the name Eduardo Bonilla. The State elicited testimony from Bonilla that, at his

October 1999 trial, Bonilla had testified that he was 21 years old. Bonilla explained at the

hearing that “Eduardo Bonilla” was 21 years old at the time of trial, but that he (Juan

Ramone Lopez) was not. The State asked Bonilla about other specific instances when he

indicated that his birth date was in 1978 or 1976; Bonilla generally did not recall those

instances.

{¶ 20} During cross-examination, the State asked Bonilla about inconsistencies in

his background information. Bonilla testified at the hearing that he had not lived long in

California and that he did not attend high school in the United States; the State contradicted

that testimony with Bonilla’s 1999 trial testimony, in which he had stated that he moved to

the United States when he was 14 years old, lived in Los Angeles for two years, and attended

high school in California until eleventh grade. Bonilla testified at his 1999 trial that he was

born in Guatemala City, but the purported birth certificate was for Malacatán. Bonilla had

further testified at his trial that he was avoiding coming to Dayton after June 1998, but he

came back in October 1998 to see the mother of his unborn child; Bonilla testified that the

“pregnant girl” had come to see him on his birthday and she called and asked when he was 9

coming to see her. Bonilla acknowledged on cross-examination that this testimony

suggested that his birthday was shortly before the October 4, 1998 murder.

{¶ 21} Bonilla explained that he waited twelve years to raise the issue of his age,

because he was incarcerated, he had no family in the United States, and English was his

second language. However, he also testified that his mother had lived in Woodbridge,

Illinois, and Lopez’s testimony indicated that Bonilla had family in the Chicago area for

several years after Bonilla’s conviction.

{¶ 22} The State offered the testimony of Sergeant George Combs and Detective

Mark Brown, both of the Beavercreek Police Department. Sgt. Combs testified that he

investigated the murder on October 4, 1998, and, as part of that investigation, he met Bonilla

at the Lake County Sheriff’s Jail in Crown Point, Indiana. Combs stated that he completed

a pre-interview form with Bonilla, at which time Bonilla indicated that his birth date was

August 23, 1978 and that he resided at 7517 Orchard, #5, in Woodbridge, Illinois. Bonilla

filled out the portion of the form regarding education; the form indicated that Bonilla had 12

years of schooling and that he last attended Wilson High School in 1996. Combs testified

that he performed various computer checks on Bonilla using the L.E.A.D.S. and NCIC

police computers and sent Bonilla’s fingerprints to the FBI. The FBI responded that the

fingerprints were associated with the name “Juan Ramon Lopez,” with a birth date of

September 23, 1978. Combs stated that he continued to use the August 1978 date in the

case because it was the date of birth that Bonilla most often used.

{¶ 23} Detective Brown testified that he obtained certified copies of convictions

from Vandalia Municipal Court, Dayton Municipal Court and Montgomery Count Common 10

Pleas Court for the names Juan Lopez, Eduardo Bonilla, Jesse Lugo, and Monte Lopez.

The following certified judgment entries were submitted into evidence:

1. Moncy Lopez, aka Eduardo Bonilla Barillas, dob August 23, 1976:

Montgomery County Court of Common Pleas conviction for possession of

heroin on July 28, 2000; date of offense was June 17, 1998 (State’s Ex. 2).

2. Jesse Lugo, Jr., dob July 5, 1977, charged with driving without a license

in Dayton Municipal Court, dated June 17, 1998 (State’s Ex. 5).

3. Juan Ramon Lopez, dob August 23, 1978, open container conviction,

Vandalia Municipal Court, dated September 30, 1997 (State’s Ex. 8).

4. Juan Ramon Lopez, dob August 23, 1978, Vandalia Municipal Court

conviction for driving without a license on December 31, 1997; violation date

was October 29, 1997 (State’s Ex. 9)

As of the date of the hearing on Bonilla’s motion, Bonilla had not challenged any of these

other convictions for lack of subject matter jurisdiction.

{¶ 24} Upon review of the evidence, the State presented substantial credible

evidence that Bonilla was an adult at the time of the offenses in this case. Bonilla had

testified at trial that he was 21 years old (on October 8, 1999) and other witnesses at trial

provided evidence indicating that Bonilla had turned 18 prior to the date of the offenses.

Bonilla repeatedly provided dates of births that would have made him an adult on October 4,

1998. Two 1997 convictions from Vandalia Municipal Court for Juan Ramon Lopez

indicated a date of birth of August 23, 1978. The 1998 traffic case from Dayton Municipal

Court for Jesse Lugo indicated a date of birth of July 5, 1977. The Montgomery County 11

case for Eduardo Bonilla Barillas had a date of birth of August 23, 1976. Bonilla

acknowledged he was the defendant in several of those cases. The pre-interview form that

Detective Combs completed with Bonilla indicated that Bonilla had 12 years of schooling

and that he last attended Wilson High School in 1996; that information was consistent with a

birth date in 1978.

{¶ 25} The trial court found Bonilla’s testimony about his age to be not credible,

and the court had ample evidence from which to reject Bonilla’s testimony and evidence that

his actual birth date was October 23, 1980. Bonilla had repeatedly used false documentation

to support his various aliases. At trial, Bonilla explained that he borrowed the name

Eduardo Bonilla from someone he knew at school named Eduardo Bonilla Santino and that

he (Bonilla) made a fake identification card with that name. At the hearing on Bonilla’s

motion, Bonilla indicated that Detective Combs had Bonilla’s fake green card, which

showed the August 23, 1978 birth date. Bonilla was asked about his alias Jessie Lugo at his

1999 trial. Bonilla responded that “one guy in Chicago sold me this birth certificate with

the name of Jessie Lugo” so that Bonilla could go back and forth to Mexico; Bonilla stated

that he made an ID with the birth certificate, but he lost it.

{¶ 26} Bonilla supported his motion with a purported Guatemalan birth certificate

for Juan Ramone López, born in Malacatán, San Marcos, Guatemala, on October 23, 1980,

to Zuly Barrillas and Juan Ramón López. However, Bonilla had testified at his trial that he

was 21 years old and was born in Guatemala City, not Malacatán. Bonilla repeatedly

contradicted himself regarding his background and his family’s residences, and he explained

that he used earlier birth years as a way to purchase beer and cigarettes while a minor. 12

Bonilla’s 18-year-old niece, Korayma Lopez, testified that Bonilla’s parents were Zuly

Barrillas and Juan Ramón López, but the court did not find that Lopez’s testimony

established that the birth certificate was authentic and reflected Bonilla’s birth. Although

the Guatemalan birth certificate appeared to be certified, the trial court reasonably found it

unreliable, and there was little basis to believe that Bonilla was the individual identified in

that document.

{¶ 27} In summary, we agree with the trial court’s conclusion that, although

Bonilla’s exact birth date could not be definitively established, the State proved that

Bonilla turned 18 prior to the October 4, 1998 offenses. The trial court did not err in

concluding that the State established that defendant was not a “child” at the time of the

offenses and, thus, the trial court had subject matter jurisdiction over his criminal case.

{¶ 28} Bonilla’s assignment of error is overruled.

{¶ 29} The trial court’s judgment will be affirmed.

..........

FAIN, J. and DONOVAN, J., concur.

Copies mailed to:

Elizabeth A. Ellis Robert Alan Brenner Hon. Sumner E. Walters, Visiting Judge