In re A.M., Appellee, 139 Ohio App. 3d 303

Karpinski, Presiding Judge. This case presents the question whether the prosecutor must respond to discovery requests made by a juvenile in preparation for the preliminary hearing in juvenile court that will determine whether there is probable cause to believe that the criminal charges filed against the juvenile must be bound over for prosecution as an adult pursuant to R.C. 2151.26(B). The juvenile court ordered the Cuyahoga County Prosecutor to respond to the juvenile’s discovery requests. In re AM. (1998), 92 Ohio Misc.2d 4, 699 N.E.2d 574.

The prosecutor refused, arguing that the juvenile is not entitled to obtain any discovery in preparation for the mandatory bindover hearing. We conclude that, in the absence of an order limiting discovery pursuant to Juv.R. 24(B), the juvenile is entitled to discovery which is coextensive with the issues that determine whether the juvenile must be bound over to the general division for prosecution as an adult.

We therefore find that the trial court did not err in ordering the prosecutor to respond to the discovery requests propounded or in dismissing the matter without prejudice when the prosecutor refused to respond to the juvenile’s discovery requests. Accordingly, we affirm the judgment. The record reflects that on September 2, 1997, Cleveland police filed a two-count complaint against appellee A.M. in the Juvenile Division of the Cuyahoga County Common Pleas Court. The complaint alleged that A.M. was a delinquent child by reason of alleged violations of R.C. 2911.01(A)(1), aggravated robbery, a first degree felony.

The complaint alleged that A.M. was over age sixteen but under age eighteen at the time of the offenses. Both counts contained firearm specifications. A.M. was apprehended several months later on an unrelated matter. On March 10, 1998, the juvenile court scheduled a probable cause hearing for March 31, 1998 to determine whether to transfer the matter to the general division of the common pleas court pursuant to R.C. 2151.26(B). On March 13, 1998, A.M., through his counsel, filed a request for discovery pursuant to Juv.R. 24(A).

Because the prosecutor refused to provide the requested discovery, A.M. filed a motion to compel discovery on March 19, 1998. On March 31, 1998, the juvenile court heard oral arguments on the discovery issue and requested written briefs from the parties. On May 28, 1998, the juvenile court ruled that the state was required to respond to the discovery request pursuant to Juv.R. 24. See In re A.M., supra. When the prosecutor refused to provide discovery, the juvenile court dismissed the matter without prejudice on July 6, 1998, pursuant to Juv.R. 24(C).

The prosecutor appealed and asserted two assignments of error which, because they are closely related, will be addressed together. The prosecutor’s assignments of error are as follows: “I. The trial court erred as a matter of law when it ordered the state to provide discovery for a preliminary hearing in a mandatory transfer case when the Juvenile Rules do not require the prosecution to provide discovery in such hearings. “II.

The trial court’s order compelling discovery is unreasonable and unconscionable because it orders the prosecution to give the accused more discovery than he is entitled to by the rules that ultimately govern this proceeding.” The issue presented is whether a juvenile is entitled to obtain discovery in preparation for the probable cause hearing that will determine whether the juvenile court retains jurisdiction over the matter or relinquishes jurisdiction to the general division for prosecution of the juvenile as an adult pursuant to R.C. 2151.26(B).

The prosecutor argues that the juvenile court does not have authority to require the prosecutor to answer discovery requests before the preliminary hearing has occurred. The Cuyahoga County Juvenile Court has issued conflicting decisions on this issue. The trial court in this case ruled that the juvenile is entitled to discovery (see In re AM. [1998], 92 Ohio Misc.2d 4, 699 N.E.2d 574), whereas another member of the Juvenile Court ruled in In re Hunter (1999), 99 Ohio Misc.2d 107, 716 N.E.2d 802, that a juvenile is not entitled to discovery under these circumstances.

We conclude that in the absence of an order limiting discovery pursuant to Juv.R. 24(B), the juvenile is entitled to discovery which is coextensive with the issues that will determine whether the juvenile court must transfer the case for further prosecution. Accordingly, we find that the prosecutor’s assignments of error are not well taken. The juvenile court has original jurisdiction over any person charged with committing

an act while under eighteen years of age that would be an offense had it been committed by an adult. R.C. 2151.23. Under R.C. 2151.25, the juvenile court retains jurisdiction unless the court relinquishes jurisdiction pursuant to R.C. 2151.26. R.C. 2151.26(

B) mandates that certain matters be transferred. Pertinent to this case is R.C. 2151.26(B)(4), which states: “After a complaint has been filed alleging that a child is a delinquent child for committing

an act that would be an offense if committed by an adult, the court at a hearing shall transfer the case for criminal prosecution to the appropriate court having jurisdiction of the offense if the child was fourteen years of age or older at the time of the act charged, if there is probable cause to believe that the child committed the act charged, and if one or more of the following applies to the child or the act charged: <£* ;¡í :|: “

(4) The act charged is a category two offense, other than a violation of

section 2905.01 of the Revised Code, the child was sixteen years of age or older at the time of the commission of the act charged, and either or both of the following apply to the child: «Ms M« Mí “(

b) The child is alleged to have had a firearm on or about the child’s person or under the child’s control while committing the act charged and to have displayed the firearm, brandished the firearm, indicated possession of the firearm, or used the firearm to facilitate the commission of the act charged.” In the case at bar, the complaint filed against A.M. contained allegations that would cause A.M. to be subject to mandatory transfer pursuant to R.C. 2151.26(B)(4).

In particular, the two-count complaint alleged that A.M. was more than sixteen but less than eighteen years of age when he committed aggravated robbery, R.C. 2911.01. Under R.C. 2151.26(A)(2)(a), a violation of R.C. 2911.01 is a category two offense. The complaint also contained firearm specifications. Before the juvenile court may relinquish its jurisdiction, the court must conduct a preliminary hearing. Juv.R. 30(

A) provides: “In any proceeding where the court considers the transfer of a case for criminal prosecution, the court shall hold a preliminary hearing to determine if there is probable cause to believe that the child committed the act alleged and that the act would be an offense if committed by an adult. The hearing may be upon motion of the court, the prosecuting attorney, or the child.” Juv.R. 30(

B) states: “In any proceeding in which transfer of a case for criminal prosecution is required by statute upon a finding of probable cause, the order of transfer shall be entered upon a finding of probable cause.” The juvenile court has jurisdiction over the matter unless and until a transfer order is entered binding the juvenile over to the general division pursuant to R.C. 2151.26 and Juv.R. 30. In State v. Wilson (1995), 73 Ohio St.3d 40, 652 N.E.2d 196, the court’s syllabus states: “1.

Absent 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. (R.C. 2151.23, 2151.25 and 2151.26[E], applied.) “2. The exclusive subject matter jurisdiction of the juvenile court cannot be waived.” See, also, State ex rel. Harris v. Anderson (1996), 76 Ohio St.3d 193, 195, 667 N.E.2d 1, 2-3. R.C. 2151.26(

F) states: “Upon the transfer of a case for criminal prosecution to the appropriate court having jurisdiction of the offense under division (B) * * * of this section, the juvenile court shall state the reasons for the transfer * * *. The transfer abates the jurisdiction of the juvenile court with respect to the delinquent acts alleged in the complaint, and, upon the transfer, all further proceedings pertaining to the act charged shall be discontinued in the juvenile court, and the case then shall be within the jurisdiction of the court to which it is transferred as described in division (

H) of

section 2151.23 of the Revised Code.” R.C. 2151.23(

H) provides: “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 ease 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 * * Until such time as there has been a valid bindover, however, the juvenile court retains exclusive jurisdiction. See State v. Golphin (1998), 81 Ohio St.3d 543, 692 N.E.2d 608. In the case at bar, the juvenile court suggested that because the preliminary hearing determines whether' the juvenile is within the jurisdiction of the [juvenile] court, the preliminary hearing constitutes an adjudicatory hearing as defined by Juv.R. 2(

B) and the juvenile may therefore have discovery under Juv.R. 24. Contesting the juvenile court’s ruling, the prosecutor insists that the preliminary hearing is not an adjudicatory hearing. We agree with the prosecutor that the juvenile court erred in suggesting that a preliminary hearing was an adjudicatory hearing. [Proceedings conducted in a Juvenile Court for the purpose of determining whether or not to bind over a juvenile defendant to be tried as an adult do not constitute an adjudicatory hearing in the sense that the ‘evidence is put to the trier of fact’ or that jeopardy attaches.

In re Lee (Dec. 17, 1992), Cuyahoga App. No. 63858, unreported, at 3, 1992 WL 390193. See, also, State v. Sims (1977), 55 Ohio App.2d 285, 9 O.O.3d 417, 380 N.E.2d 1350. The introduction of evidence of probable cause to believe the juvenile committed the alleged offense does not transform a probable cause hearing into an adjudicatory proceeding. State v. Smith (Aug. 21, 1997), Cuyahoga App. No. 70855, unreported, at 15, 1997 WL 476828.

While we agree that the juvenile court erred in equating the preliminary hearing with an adjudicatory hearing, we do not agree that the juvenile court erred in allowing the juvenile to have limited discovery in preparation for the preliminary hearing. Because the preliminary hearing at which the juvenile court will determine whether to transfer proceedings to adult court is “critically important,” the hearing must “measure up to the essentials of due process and fair treatment.” Kent v. United States (1966), 383 U.S. 541, 560, 562, 86 S.Ct. 1045, 1056, 1057, 16 L.Ed.2d 84, 97, 98.

Kent established that a juvenile is entitled to notice and an opportunity to be heard before the juvenile court waives its jurisdiction. Kent, 383 U.S. at 557, 561, 86 S.Ct. at 1055, 1057, 16 L.Ed.2d at 95, 97. Kent further recognized that the juvenile is entitled to counsel and access to information the court would consider in deciding whether to relinquish jurisdiction over the juvenile.

In that case, the information requested was the juvenile’s social records: “With respect to access by the child’s counsel to the social records of the child, we deem it obvious that since these are to be considered by the Juvenile Court in making its decision to waive, they must be made available to the child’s counsel. * * * [C]ounsel must be afforded to the child in waiver proceedings. Counsel, therefore, have a ‘legitimate interest’ in the protection of the child, and must be afforded access to these records.” (Footnote omitted.) Kent, 383 U.S. at 562-563, 86 S.Ct. at 1057-1058, 16 L.Ed.2d at 98.

The Kent court explained: “If a decision on waiver is ‘critically important’ it is equally of ‘critical importance’ that the material submitted to the judge * * * be subjected, within reasonable limits having regard to the theory of the Juvenile Court Act, to examination, criticism and refutation. While the Juvenile Court judge may, of course, receive ex parte analyses and recommendations from his staff, he may not, for purposes of a decision on waiver, receive and rely upon secret information, whether emanating from his staff or otherwise.” Kent, 383 U.S. at 563, 86 S.Ct. at 1058, 16 L.Ed.2d at 98.

The question here is whether the juvenile may have any discovery in preparation for the mandatory bindover hearing. The prosecutor maintains that the juvenile is not entitled to any discovery, but he does not identify any authority to support this contention. Nothing in Juv.R. 24 or any other law we have found suggests that the juvenile cannot seek discovery in preparation for the preliminary hearing.

The prosecutor argues that because the discovery available to a juvenile under Juv.R. 24 is more expansive than that which is available to an adult under Crim.R. 16, the prosecutor cannot be required to provide Juv.R. 24 discovery if the juvenile’s case will be transferred to the general division, where discovery will be controlled by the more limited Crim.R. 16. The prosecutor argues that until the court which will adjudicate the charges against the juvenile is determined at the Juv.R. 30 preliminary hearing, the juvenile is not entitled to any discovery.

We see merit in the prosecutor’s argument that a juvenile who will be tried as an adult should not be able to obtain discovery through Juv.R. 24 that he would not be entitled to receive under Crim.R. 16. At the same time, however, the evidence the prosecutor presents at the preliminary hearing to establish probable cause will determine whether or not the juvenile remains within the juvenile court system. The juvenile plainly has a legitimate interest in discovering the evidence that the prosecutor will offer to establish probable cause mandating transfer.

We see no reason why the juvenile, in preparing for the only proceeding that will determine whether he will be tried as a juvenile or as an adult, should be denied the opportunity to discover the evidence the state will present to establish probable cause. While the discovery provided in anticipation of the mandatory bindover hearing under R.C. 2151.26(

B) need not go beyond the limited issues that will be decided at the hearing, we find no support for the prosecutor’s contention that the juvenile is not entitled to any discovery for that hearing. Moreover, the juvenile’s right to request discovery does not foreclose the prosecutor from seeking to limit that discovery. Juv.R. 24(

B) states, in relevant part: “Notwithstanding the provisions of subdivision (A), the court may deny, in whole or in part, or otherwise limit or set conditions on the discovery authorized by such subdivision, upon its own motion, or upon a showing by a party upon whom a request for discovery is made that granting discovery may jeopardize the safety of a party, witness, or confidential informant, result in the production of perjured testimony or evidence, endanger the existence of physical evidence, violate a privileged communication, or impede the criminal prosecution of a minor as an adult or of an adult charged with an offense arising from the same transaction or occurrence.” Upon a proper showing, Juv.R. 24(

B) authorizes the juvenile court to limit discovery. See, e.g., State v. Metz (June 4, 1997), Washington App. No. 96CA03, unreported, 1997 WL 305220; In re Doss (1994), 65 Ohio Misc.2d 8, 640 N.E.2d 618. The juvenile court’s ruling will not be disturbed on appeal absent an abuse of discretion. See State v. Crumedy (Jan. 30, 1997), Cuyahoga App. No. 69183, unreported, 1997 WL 37790. But the prosecutor in the case at hand did not seek to limit the scope of A.M.’s discovery requests pursuant to Juv.R. 24(B). He instead maintained that he was under no obligation to respond to the discovery requests.

We can find no support for the prosecutor’s position. As a result, the juvenile court did not err in dismissing the complaint without prejudice pursuant to Juv.R. 24(

C) after the prosecutor refused to respond to A.M.’s discovery requests. The prosecutor’s assignments of error are therefore overruled, and the judgment is affirmed. Judgment affirmed. Patricia A. Blackmon, J., concurs. Patton, J., dissents.