State v. Walls

; see, also, Landgraf v. USI Film
Products (1994),

511 U.S. 244, 265

114 S.Ct. 1483

128 L.Ed.2d 229

 (noting that
“the presumption against retroactive legislation is deeply rooted in our
jurisprudence, and embodies a legal doctrine centuries older than our Republic”).
In recognition of the “possibility of the unjustness of retroactive legislation,” Van
Fossen,

36 Ohio St.3d at 104

, Section 28, Article II of the Ohio
Constitution provides that the General Assembly “shall have no power to pass
retroactive laws.” It is now settled in Ohio that a statute runs afoul of this provision
if it “ ‘takes away or impairs vested rights acquired under existing laws, or creates
a new obligation, imposes a new duty, or attaches a new disability, in respect to
transactions or considerations already past.’ ” Van Fossen,

36 Ohio St.3d at 106

,




                                           4
                                January Term, 2002

, quoting Cincinnati v. Seasongood (1889),

46 Ohio St. 296

, 303,

21 N.E. 630

; accord Bielat v. Bielat (2000),

87 Ohio St.3d 350, 354

; State v. Cook (1998),

83 Ohio St.3d 404, 411

.
       {¶10} This court has articulated a two-part framework, involving both
statutory and constitutional analyses, for determining whether a statute is
impermissibly retroactive under Section 28, Article II.         Because R.C. 1.48
establishes a presumption that statutes operate prospectively only, “[t]he issue of
whether a statute may constitutionally be applied retrospectively does not arise
unless there has been a prior determination that the General Assembly specified
that the statute so apply.” Van Fossen,

36 Ohio St.3d 100

,
paragraph one of the syllabus. If there is no “ ‘clear indication of retroactive
application, then the statute may only apply to cases which arise subsequent to its
enactment.’ ” (Emphasis sic.)

Id. at 106

, quoting Kiser v.
Coleman (1986),

28 Ohio St.3d 259, 262

, 28 OBR 337,

503 N.E.2d 753

. If we can
find, however, a “clearly expressed legislative intent” that a statute apply
retroactively, we proceed to the second step, which entails an analysis of whether
the challenged statute is substantive or remedial. Cook,

83 Ohio St.3d at 410

; see, also, Van Fossen,

36 Ohio St.3d 100

, paragraph
two of the syllabus.
       {¶11} In applying the analytic framework of Van Fossen and its progeny,
the court of appeals found that the amended statutes did not apply retrospectively
and therefore declined to undertake the second step of the Van Fossen analysis.
The court reasoned:
       {¶12} “The current version of R.C. 2151.011(B)(6)(c) determines the
present jurisdiction of the court of common pleas general division by looking to the
charged individual’s age at the time of the complaint or indictment. This section
makes irrelevant any consideration of the accused’s age at the time he committed
the crime. Thus, by its very terms, the statute relies on no factor that would extend




                                         5
                             SUPREME COURT OF OHIO




back in time before the date of its 1997 amendment. We hold that the statute was
intended to operate prospectively to confer jurisdiction on the general division of
the court of common pleas regardless of whether the juvenile was under the age of
eighteen at the time he or she committed the crime.” (Emphasis added.)
       {¶13} From this analysis, it is evident that the court of appeals viewed the
date on which criminal proceedings commenced against Walls as the relevant date
of assessing whether the amended juvenile statutes operated prospectively or
retrospectively. And although the court of appeals cited none, there exists some
authority that arguably supports this approach. See, e.g., State ex rel. Plavcan v.
School Emp. Retirement Sys. of Ohio (1994),

71 Ohio St.3d 240, 243

643 N.E.2d 122

 (“Statutes that reference past events to establish current status have been held
not to be retroactive”); Cox v. Hart (1922),

260 U.S. 427, 435

43 S.Ct. 154

67 L.Ed. 332

 (“A statute is not made retroactive merely because it draws upon
antecedent facts for its operation”); see, also, French v. Dwiggins (1984),

9 Ohio St.3d 32, 39

, 9 OBR 123,

458 N.E.2d 827

 (Holmes, J., dissenting) (“If there is no
specific expression by the General Assembly that the statute is to be retrospective
in its application * * *, the statute will be applied to causes of action arising
subsequent to the effective date of the legislation”). But while the court of appeals’
approach may be adequate to resolve retroactivity challenges to many types of
legislation, particularly laws pertaining to purely civil matters, it is not ideal when
the application of a new statute penalizes criminal conduct that occurred prior to
the statute’s effective date. In this circumstance, the date of the offense is the
governing date when assessing whether a given statute is retroactive. See Weaver
v. Graham (1981),

450 U.S. 24, 29

101 S.Ct. 960

67 L.Ed.2d 17

 (noting that a law
is retrospective for purposes of ex post facto analysis if it “appl[ies] to events
occurring before its enactment”). Thus, in order to assess properly whether the
amendments to R.C. Chapter 2151 are retrospective, we must determine whether
the General Assembly intended them to apply to offenses occurring before the




                                          6
                                January Term, 2002




statutes became effective in 1997. See In re Daniel H. (1996),

237 Conn. 364, 376

678 A.2d 462

 (identifying the date of the offense as the governing date in assessing
whether a juvenile statute was impermissibly retroactive).
       {¶14} Focusing on the date of Walls’s offense, we conclude that the General
Assembly intended that the 1997 amendments to R.C. Chapter 2151 apply
retrospectively.   The 1997 version of R.C. 2151.011(B)(6)(c) changed the
definition of “child” to exclude “[a]ny 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 that person attains twenty-
one years of age.” Also effective in 1997, the General Assembly added R.C.
2151.23(I), which declared the juvenile court’s lack of jurisdiction over a person
21 years of age who is apprehended for an offense committed prior to the person’s
18th birthday. 146 Ohio Laws, Part II, 2054. These changes to the statutory scheme
effectively removed anyone over 21 years of age from juvenile-court jurisdiction,
regardless of the date on which the person allegedly committed the offense. In
other words, the statutory amendments made the age of the offender upon
apprehension the touchstone of determining juvenile-court jurisdiction without
regard to whether the alleged offense occurred prior to the amendments’ effective
date. From these circumstances, we find an express legislative intent that the
juvenile statutes apply retroactively. Cf. Cook,

83 Ohio St.3d at 410

 (finding a “clearly expressed legislative intent” that sexual-predator statutes
apply retrospectively because the statutes imposed requirements on offenders based
on offenses committed before the statutes’ effective date).
                                          B
       {¶15} Having held that the juvenile statutes apply retroactively (i.e., to
juvenile offenses committed prior to the statutes’ effective date), we next proceed
to the constitutional prong of the Van Fossen analysis. As we have previously
noted, a statute is unconstitutionally retroactive under Section 28, Article II “if it




                                          7
                              SUPREME COURT OF OHIO




impairs vested rights, affects an accrued substantive right, or imposes new or
additional burdens, duties, obligations, or liabilities as to a past transaction.” Bielat,

87 Ohio St.3d at 354

; see, also, Van Fossen,

36 Ohio St.3d at 106

-
107,

. On the other hand, a statute that is “ ‘purely remedial’ ” does
not violate Section 28, Article II. Van Fossen,

36 Ohio St.3d at 107

, quoting Rairden v. Holden (1864),

15 Ohio St. 207

1864 WL 26

, paragraph
two of the syllabus. We have defined as “remedial” those laws affecting merely “
‘the methods and procedure[s] by which rights are recognized, protected and
enforced, not * * * the rights themselves.’ (Emphasis added.)” Bielat,

87 Ohio St.3d at 354

, quoting Weil v. Taxicabs of Cincinnati, Inc. (1942),

139 Ohio St. 198, 205

22 O.O. 205

39 N.E.2d 148

.
         {¶16} Walls argues that the 1997 statutes were “substantive” within the
meaning of our retroactivity cases because of the statutes’ profound effect on the
jurisdiction of the juvenile and common pleas courts. Whereas the old statutes
required a bindover proceeding in juvenile court as a prerequisite to criminal
proceedings in the court of common pleas for persons situated similarly to Walls,
the 1997 statutes divested the juvenile court of jurisdiction. Thus, the 1997 statutes
subjected a person 21 years of age or older to criminal prosecution in the general
division of the court of common pleas, regardless of the person’s age at the time of
the alleged offense and without any necessity of a bindover proceeding in juvenile
court.      Emphasizing the “extraordinary” difference between delinquency
proceedings in juvenile court and criminal proceedings in common pleas court,
Walls contends that the 1997 statutory changes were substantive because they
deprived him of juvenile-court proceedings to which he had a vested right. We
disagree.
         {¶17} The 1997 changes to R.C. Chapter 2151 did not impair any of Walls’s
vested rights within the meaning of our retroactivity jurisprudence. Although the
1997 amendments to the juvenile statutes allowed criminal prosecution without the




                                            8
                                January Term, 2002




bindover proceeding required under the 1985 law, we cannot characterize this
change as anything other than remedial. Even under the law in effect in 1985, Walls
was subject to criminal prosecution in the general division of a court of common
pleas if the juvenile court made certain determinations specified by statute. See
former R.C. 2151.26(A) and (E), 140 Ohio Laws, Part I, 585-586. Thus, under
either the 1985 law or the 1997 law, Walls was on notice that the offense he
allegedly committed could subject him to criminal prosecution as an adult in the
general division of the court of common pleas. The 1997 law merely removed the
procedural prerequisite of a juvenile-court proceeding. Even though they may have
an occasional substantive effect on past conduct, “it is generally true that laws that
relate to procedures are ordinarily remedial in nature.” Cook,

83 Ohio St.3d at 411

; see, also, In re Nevius (1963),

174 Ohio St. 560

, 564,

23 O.O.2d 239

191 N.E.2d 166

.
       {¶18} Walls makes much of the fact that the new statutes effected
substantial changes to the jurisdiction of the juvenile and common pleas courts. He
maintains that the changes must be substantive within the meaning of our
retroactivity cases because the amendments conferred jurisdiction where it was
previously lacking. See State v. Wilson,

73 Ohio St.3d at 44

652 N.E.2d 196

(noting that the juvenile court had exclusive subject matter jurisdiction in the
absence of a bindover procedure under former R.C. 2151.26). But Walls offers no
authority for the proposition that legislative changes in jurisdiction implicate
substantive rights when applied to conduct occurring before the effective date of
the amendments. To the contrary, “[a]pplication of a new jurisdictional rule usually
‘takes away no substantive right but simply changes the tribunal that is to hear the
case.’ ” Landgraf,

511 U.S. at 274

114 S.Ct. 1483

128 L.Ed.2d 229

, quoting
Hallowell v. Commons (1916),

239 U.S. 506, 508

36 S.Ct. 202

60 L.Ed. 409

; see,
also, People v. Pena (2001),

321 Ill.App.3d 538, 542

254 Ill.Dec. 608

747 N.E.2d 1020

 (observing that a bindover proceeding is a procedural matter that




                                          9
                                   SUPREME COURT OF OHIO




“determin[es] the forum in which guilt or innocence will be adjudicated”), citing
People v. Taylor (1979),

76 Ill.2d 289, 302

29 Ill.Dec. 103

391 N.E.2d 366

.
         {¶19} We therefore hold that application of the juvenile statutes in place at
the time the state commenced criminal proceedings in this case did not impair
Walls’s substantive rights within the meaning of Van Fossen and its progeny.
                                                 III
         {¶20} Our conclusion that the amended statutes do not impair Walls’s
substantive rights does not end our constitutional inquiry. Walls also argues that
the amendments to the juvenile statutes, when retroactively applied to him, are ex
post facto laws prohibited by Section 10, Article I of the United States
Constitution.4
         {¶21} “Although the Latin phrase ‘ex post facto’ literally encompasses any
law passed ‘after the fact,’ it has long been recognized by [the United States
Supreme Court] that the constitutional prohibition on ex post facto laws applies
only to penal statutes which disadvantage the offender affected by them.” Collins
v. Youngblood (1990),

497 U.S. 37, 41

. Not just
any “disadvantage” to an offender, however, will run afoul of the Ex Post Facto
Clause. The clause implicates only certain types of legislative acts:
         {¶22} “ ‘1st. Every law that makes an action done before the passing of the
law, and which was innocent when done, criminal; and punishes such action. 2d.
Every law that aggravates a crime, or makes it greater than it was, when


4. Walls limits his ex post facto argument here to the federal Constitution. We note, however, that
various courts of appeals have observed that the prohibition of “retroactive laws” in Section 28,
Article II of the Ohio Constitution includes a prohibition of ex post facto laws. See State v. Gleason
(1996),

110 Ohio App.3d 240, 246

673 N.E.2d 985

; State v. Smith (1984),

16 Ohio App.3d 114, 116

, 16 OBR 121,

474 N.E.2d 685, fn. 4

; State v. Ahedo (1984),

14 Ohio App.3d 254, 256

, 14 OBR
283,

470 N.E.2d 904

; State ex rel. Corrigan v. Barnes (1982),

3 Ohio App.3d 40

, 3 OBR 43,

443 N.E.2d 1034

. This court has also implied as much. See, e.g., Van Fossen,

36 Ohio St.3d at 107

 (observing that Section 28, Article II was “a much stronger prohibition” on
retroactive legislation than its precursor, which was limited to ex post facto laws and laws impairing
contracts).




                                                 10
                                 January Term, 2002




committed. 3d. Every law that changes the punishment, and inflicts a greater
punishment, than the law annexed to the crime, when committed. 4th. Every law
that alters the legal rules of evidence, and receives less, or different, testimony, than
the law required at the time of the commission of the offence, in order to convict
the offender.’ ” (Emphasis sic.) Id. at 42,

, quoting
Calder v. Bull (1798),

3 U.S. (Dall.) 386

, 390,

1 L.Ed. 648

 (opinion of Chase, J.);
see, also, Carmell v. Texas (2000),

529 U.S. 513, 521-522

120 S.Ct. 1620

146 L.Ed.2d 577

.
        {¶23} Even though a law may not impair “vested rights” within the meaning
of our retroactivity cases, the law may still run afoul of the ex post facto prohibition
if it falls within one of the four Calder categories enumerated above. See Weaver
v. Graham (1981),

450 U.S. 24, 29

101 S.Ct. 960

67 L.Ed.2d 17, fn. 13

 (referring
to a vested-rights analysis of retroactivity as “irrelevant” to an ex post facto
inquiry); see, also, Collins,

497 U.S. at 46

 (“simply
labeling a law ‘procedural’ * * * does not thereby immunize it from scrutiny under
the Ex Post Facto Clause”). In this case, Walls argues that the amended juvenile
statutes applied in his case implicate the first and third categories of ex post facto
legislation. He contends that by making criminal prosecution mandatory for a
person over 21 years of age, regardless of the person’s age at the time of the offense,
the legislature has impermissibly criminalized juvenile acts (implicating the first
Calder factor) and enhanced the punishment meted out for their commission
(implicating the third Calder factor).
                                           A
        {¶24} Walls invokes the first category of ex post facto laws by emphasizing
his age at the time of the murder. Because Walls was only 15 years old at the time
of the offense, he maintains that his conduct was “a civil delinquency act and
remained a civil delinquency act unless and until the Juvenile Division held a proper
bind-over proceeding resulting in [Walls] being bound over to the adult justice




                                           11
                             SUPREME COURT OF OHIO




system.” (Emphasis sic.) Walls therefore concludes that the amended statutes, as
applied to him, impermissibly transformed a “civil delinquency act” into a criminal
offense.
       {¶25} It is true that this court has characterized juvenile proceedings as civil
rather than criminal. See In re Anderson (2001),

92 Ohio St.3d 63, 65

. But the “civil” label traditionally attached to juvenile matters does not lead a
fortiori to a conclusion that Walls’s act was not “criminal” at the time he committed
it. “[D]etermining the relevance of constitutional policies, like determining the
applicability of constitutional rights, in juvenile proceedings, requires that courts
eschew ‘the “civil” label-of-convenience which has been attached to juvenile
proceedings,’ In re Gault [(1967),

387 U.S. 1, 50

87 S.Ct. 1428

18 L.Ed.2d 527

],
and that ‘the juvenile process * * * be candidly appraised.’ [

Id. at 21, 87 S.Ct. 1428

18 L.Ed.2d 527

].” Breed v. Jones (1975),

421 U.S. 519, 529

95 S.Ct. 1779

44 L.Ed.2d 346

.
       {¶26} Whatever their label, juvenile delinquency laws feature inherently
criminal aspects that we cannot ignore. See Anderson,

92 Ohio St.3d at 65-66

. For this reason, numerous constitutional safeguards normally reserved
for criminal prosecutions are equally applicable to juvenile delinquency
proceedings.

Id. at 66

81 Cal.App.4th 742, 759-760

, citing In re Gault,

387 U.S. 1, 31-57

87 S.Ct. 1428

18 L.Ed.2d 527

 (holding that various Fifth and Sixth Amendment
protections apply to juvenile proceedings), and In re Winship (1970),

397 U.S. 358, 365-368

90 S.Ct. 1068

25 L.Ed.2d 368

 (holding that the state must prove juvenile
delinquency beyond a reasonable doubt); see, also, Breed,

421 U.S. 519

95 S.Ct. 1779

44 L.Ed.2d 346

 (holding that a delinquency proceeding places a juvenile in
jeopardy for purposes of the Double Jeopardy Clause); In re Melvin J. (2000),

96 Cal.Rptr.2d 917

 (relying on Gault, Winship, and
Breed to hold that ex post facto principles apply to juvenile proceedings). Just as
we cannot ignore the criminal aspects inherent in juvenile proceedings for purposes




                                          12
                                 January Term, 2002




of affording certain constitutional protections, we also cannot ignore the criminality
inherent in juvenile conduct that violates criminal statutes. See former R.C.
2151.02(A), now R.C. 2152.02(F)(1) (defining “delinquent child” as a child who
commits an act that would be a crime if committed by an adult). Whether the state
prosecutes a criminal action or a juvenile delinquency matter, its goal is the same:
to vindicate a vital interest in the enforcement of criminal laws. Breed,

421 U.S. at 531

95 S.Ct. 1779

44 L.Ed.2d 346

.
        {¶27} In light of the criminal aspects inherent in Ohio’s juvenile law, we
reject Walls’s contention that the amended statutes applied in his case had an
impermissible ex post facto effect under the first Calder category. The primary evil
prohibited by this category is the legislature’s retroactive alteration of the definition
of crimes. See Collins,

497 U.S. at 43

. Walls
cannot persuasively argue here that the legislature altered the definition of
aggravated murder in a manner that has retroactively criminalized his conduct.
R.C. 2903.01(B), the statute under which Walls was convicted, was the same in all
material respects at the time of Walls’s offense in 1985 as it was during the criminal
proceedings against him. Compare 139 Ohio Laws, Part I, 3, with 146 Ohio Laws,
Part VI, 10424-10425. And under either the law effective at the time of the offense
or the law effective at the time of the indictment, Walls was subject to criminal
prosecution for his conduct. Walls therefore cannot complain of a lack of fair
warning that his conduct could be treated as a criminal offense. See Weaver v.
Graham,

450 U.S. at 28-29

101 S.Ct. 960

67 L.Ed.2d 17

 (noting that the Ex Post
Facto Clause assures that “legislative Acts give fair warning of their effect and
permit individuals to rely on their meaning until explicitly changed”). Inasmuch as
Walls was already subject to criminal prosecution under the old law, we cannot say
that the new statutes criminalized actions that were “innocent when done” within
the meaning of Calder’s first category. Cf. People v. Pena,

321 Ill.App.3d at 543

-
544,

254 Ill.Dec. 608

747 N.E.2d 1020

(retroactive application of new law

13
SUPREME COURT OF OHIO

providing for a juvenile’s “presumptive transfer” to adult court did not violate Ex
Post Facto Clause).
B
{¶28} Walls also invokes the third Calder factor, which prohibits as ex post
facto any law that inflicts a greater punishment for a crime than the law annexed to
the crime at its commission. As we have previously stated, the common pleas court
could not have tried Walls as an adult under the 1985 law unless and until the
juvenile court had first conducted a bindover proceeding under former R.C.
2151.26. Only after a juvenile court had made the necessary determinations in
former R.C. 2151.26(A) could it have transferred Walls to the court of common
pleas for a criminal trial. Thus, under the law in place in 1985, Walls was
technically eligible to remain within the jurisdiction of the juvenile court, leaving
open the possibility that he could receive lesser “punishment” (i.e., the dispositional
orders provided in former R.C. 2151.355 for children adjudicated delinquent) than
the term of life imprisonment he received upon his conviction in criminal court. By
divesting the juvenile court of jurisdiction in his case, Walls contends, the amended
statutes necessarily “raised the specter of substantially increased criminal
punishment” by removing any possibility of his case being treated as a juvenile
delinquency matter.
{¶29} Retroactive changes in the measure of punishment are impermissibly
ex post facto if they subject a defendant to a more severe sentence than was
available at the time of the offense. See Lindsey v. Washington (1937),

301 U.S. 397, 401

57 S.Ct. 797

81 L.Ed. 1182

. In one sense, Walls’s punishment under the
new statutes was not “more severe” than under the old; he could have received the
same punishment under the 1985 law upon conviction for aggravated murder (albeit
only after a bindover proceeding in juvenile court).           Assessing whether a
punishment is “more severe” under a later statute, however, involves more than
simply comparing the range of punishments available under an old statute. “[O]ne




                                          14
                                    January Term, 2002




is not barred from challenging a change in the penal code on ex post facto grounds
simply because the sentence he received under the new law was not more onerous
than that which he might have received under the old.” Dobbert v. Florida (1977),

432 U.S. 282, 300

97 S.Ct. 2290

53 L.Ed.2d 344

; see, also, Miller v. Florida
(1987),

482 U.S. 423, 432

107 S.Ct. 2446

96 L.Ed.2d 351

. Rather, a defendant
may establish an ex post facto violation by demonstrating that a penal statute
increases the measure of punishment for crimes committed before its effective date.
California Dept. of Corrections v. Morales (1995),

514 U.S. 499, 505-506

131 L.Ed.2d 588, fn. 6

.5
        {¶30} In this case, the statutory amendments at issue arguably subjected
Walls to a more severe range of punishment than he faced under the 1985 law.
Because of the amendments to R.C. Chapter 2151, Walls stood no chance of
remaining in the juvenile system and could no longer receive the lesser
“punishment” available in juvenile dispositional orders. But our analysis of the
statutory changes does not stop there. The types of legislative adjustments that are
“ ‘of sufficient moment to transgress the constitutional prohibition’ [of ex post facto
laws] must be a matter of ‘degree.’ ” (Emphasis sic.) Morales,

514 U.S. at 509

115 S.Ct. 1597

131 L.Ed.2d 588

, quoting Beazell v. Ohio (1925),

269 U.S. 167, 171

46 S.Ct. 68

70 L.Ed. 216

. Accordingly, to succeed on his ex post facto claim
based on the third Calder factor, Walls must show that the amendments to the
juvenile law applied in his case actually “produce[d] a sufficient risk of increasing
the measure of punishment attached to” his crime. Morales,

514 U.S. at 509

115 S.Ct. 1597

131 L.Ed.2d 588

. A “speculative and attenuated” possibility that the
statutory change has increased the measure of punishment will not constitute an ex



5. In Lindsey, for example, the United States Supreme Court held that a statute providing a
mandatory sentence of fifteen years’ imprisonment violated the Ex Post Facto Clause when applied
to an offender who committed his crime at a time when the penalty was only an indeterminate
sentence of not more than 15 years. Lindsey,

301 U.S. at 401

57 S.Ct. 797

81 L.Ed. 1182

.




                                              15
                              SUPREME COURT OF OHIO




post facto violation.

Id.

 In other words, Walls must demonstrate that he had more
than a speculative chance under the old law of being tried in juvenile court and
subjected only to juvenile delinquency dispositions.
       {¶31} Walls’s claim that the new statutes actually increased the measure of
punishment for his conduct is speculative at best. While Walls perhaps remained
eligible for retention within the jurisdiction of the juvenile court under a technical
reading of the old statutes, the practical reality is that Walls had virtually no chance
of being kept in the juvenile system. In 1985, the criteria for deciding whether to
transfer a child to common pleas court for trial as an adult were contained in former
R.C. 2151.26(A):
       {¶32} “After a complaint has been filed alleging that a child is delinquent
by reason of having committed an act that would constitute a felony if committed
by an adult, the court at a hearing may transfer the case for criminal prosecution to
the appropriate court having jurisdiction of the offense, after making the following
determinations:
       {¶33} “(1) The child was fifteen or more years of age at the time of the
conduct charged;
       {¶34} “(2) There is probable cause to believe that the child committed the
act alleged;
       {¶35} “(3) After an investigation, including a mental and physical
examination of the child made by a public or private agency, or a person qualified
to make the examination, that there are reasonable grounds to believe that:
       {¶36} “(a) He is not amenable to care or rehabilitation or further care or
rehabilitation in any facility designed for the care, supervision, or rehabilitation of
delinquent children;
       {¶37} “(b) The safety of the community may require that he be placed under
legal restraint, including, if necessary, for the period extending beyond his
majority.” 140 Ohio Laws, Part I, 585-586. See, also, Juv.R. 30.




                                          16
                                January Term, 2002




       {¶38} The purpose behind former R.C. 2151.26 was “the assessment of the
probability of rehabilitating the child within the juvenile justice system.” (Emphasis
added.) State v. Douglas (1985),

20 Ohio St.3d 34, 36

, 20 OBR 282,

485 N.E.2d 711

. Given this overriding statutory purpose, we find no basis to conclude that
Walls had any realistic chance of remaining in the juvenile system under the 1985
law.
       {¶39} The first two factors of former R.C. 2151.26 are undoubtedly met in
Walls’s case: Walls does not dispute that he was 15 years of age at the time of the
alleged offense, and the grand jury indictment establishes that there was probable
cause to believe that he had committed the act. Whether Walls had any chance of
remaining within juvenile-court jurisdiction under the 1985 law therefore depends
on whether there was something more than a speculative possibility that a juvenile
court could have found him amenable to juvenile treatment.
       {¶40} Even a cursory reading of former R.C. 2125.26(A)(3) reveals that the
statute does not contemplate treatment of a 29-year-old adult within the juvenile
justice system. The statute contains not even one inquiry into whether a person
beyond the age of majority should be protected as though still a minor. Indeed, the
language in former R.C. 2125.26(A)(3)(a) and (b), with its emphasis on “care or
rehabilitation” and reference to legal restraint “for the period extending beyond his
majority,” contemplates the assessment of a person younger than 21 years of age.
Moreover, even if a juvenile court retained jurisdiction over a delinquency
complaint against a person over 21 years of age, it would find its dispositional
options profoundly limited. For example, the law in place in 1985 (and in 1997 for
that matter) would have prevented a juvenile court from imposing any type of
institutionalization or confinement on Walls. See, e.g., State v. Iacona (2001),

93 Ohio St.3d 83, 90

752 N.E.2d 937

 (observing that former R.C. 2151.355[A][4] and
[A][6] forbid the confinement of any person in the Department of Youth Services
beyond the age of 21); In re J.B. (1995),

71 Ohio Misc.2d 63, 66

654 N.E.2d 216




                                         17
                             SUPREME COURT OF OHIO




(recognizing that former R.C. 2151.355[A][11] prohibited a juvenile court from
sentencing a person adjudicated delinquent to confinement in an adult correctional
facility).
        {¶41} Notwithstanding the broad degree of discretion afforded to juvenile
courts in bindover decisions, see State v. Watson (1989),

47 Ohio St.3d 93, 95-96

547 N.E.2d 1181

, the inherent limitations on the juvenile system under the law in
place in 1985 convince us that the juvenile court would have had virtually no
discretion to retain jurisdiction in Walls’s case because of his mature age. The
juvenile system in place in 1985 was not structured to retain a person well beyond
the age of majority for an offense as serious as aggravated murder. Any bindover
hearing under the 1985 statute would have been simply a procedural step in the
process of transferring Walls for prosecution as an adult. Consequently, application
of the amended statutes did not increase his available punishment in any manner
other than a speculative and attenuated one. Such a change in the measure of
punishment is not enough to constitute an ex post facto violation.
                                         C
        {¶42} Our finding that Walls’s claim of increased punishment is only
speculative distinguishes his case from Saucedo v. La Paz Cty. Superior Court
(Ariz.App.1997),

190 Ariz. 226

, and United States v. Juvenile Male
(C.A.4, 1987),

819 F.2d 468

, both of which found that a retroactive application of
juvenile legislation violated the Ex Post Facto Clause.
        {¶43} At issue in Saucedo was an amendment to the Arizona Constitution
providing that juveniles 15 years of age or older accused of certain serious offenses
“ ‘shall be prosecuted as adults.’ ” Id. at 227,

946 P.2d 908, fn. 1

, quoting Section
22(1), Part 2, Article IV, Arizona Constitution.       Under the law prior to the
amendment, Arizona, like Ohio, allowed prosecution of a juvenile in criminal court
“[o]nly after a transfer decision by the juvenile court.”

Id. at 227

.




                                         18
                                 January Term, 2002




        {¶44} The Arizona Court of Appeals found that applying this provision to
Saucedo for an offense committed prior to its effective date offended ex post facto
principles. “By depriving [Saucedo] of eligibility for prosecution as a juvenile, it
would substantially alter his range of punishment, depriving him of eligibility for
probation and raising his potential length of confinement from a maximum of two
and one-half years in a juvenile setting to a minimum of thirteen years in a prison
for adults.”

Id. at 229

. In contrast to Walls, however, Saucedo was
only 15 years old at the time criminal proceedings commenced.

Id. at 227

. Thus, under Arizona’s preamendment law, Saucedo had a realistic
chance of remaining in the juvenile system. But because Walls was 29 years old at
the time criminal proceedings commenced in this case, he had no such chance under
Ohio law. Walls’s mature age therefore renders Saucedo’s reasoning inapplicable
here.
        {¶45} The circumstances at issue in Juvenile Male are likewise
distinguishable from the scenario in this case. In Juvenile Male, the defendant was
accused of committing multiple murders on federal property in 1981, when he was
15 years old. At the time of the murders, federal law did not allow prosecution as
an adult of any person who committed a crime at age 15; the government could
prosecute the offender only as a juvenile, subjecting the offender to a maximum
punishment of incarceration until the age of 21.

819 F.2d at 469

, citing Sections
5032 and 5037, Title 18, U.S.Code (1982). By the time the offender in Juvenile
Male was apprehended in 1986, however, Congress had amended the relevant
statutes to allow transfer of the defendant to a district court for trial as an adult for
certain crimes committed by 15-year-old offenders.

Id.,

 citing Section 5032, Title
18, U.S.Code (Supp. II 1984). The government invoked the new statute and sought
to prosecute the then-20-year-old defendant for trial as an adult.
        {¶46} The United States Court of Appeals for the Fourth Circuit held that
the application of the new statute to the defendant violated the ex post facto




                                           19
                                   SUPREME COURT OF OHIO




prohibition in Section 9, Article I of the United States Constitution.6 Applying the
third Calder factor, the court held that the new statute plainly imposed a greater
punishment than the law in effect in 1981 because it exposed the defendant to a
much more severe sentence.

Id. at 470

, citing Calder, Beazell, and

Weaver, supra.

The court rejected the characterization of the change as “procedural,” noting that
“[o]nly by closing one’s eyes to the actual effect of the transfer can one label this
radical increase in the applicable punishment a procedural change.” Id. at 471.
Despite the defendant’s mature age at the time of trial, the court found itself “bound
by the result Congress dictated when it drafted the law in effect in 1981—that
fifteen-year-old offenders should be tried as juveniles, even if they are not charged
until they reach the age of twenty.” Id. at 472.
{¶47} The result in Juvenile Male is of no help to Walls. Under the federal
law in place at the time of the Juvenile Male defendant’s offense, there was
absolutely no possibility that he could be tried as an adult. Thus, application of the
intervening statute unquestionably subjected the defendant to a greater punishment
that was not at all possible at the time of his offense. Because the new federal
statute allowed for a punishment that was previously unavailable as a matter of law,
there was nothing speculative about the onerous effect of retroactively applying the
amendment to that defendant’s case. In contrast, the Ohio law in place at the time
of Walls’s offense already contained a procedural mechanism for transfer to adult
court, subjecting a 15-year-old (as Walls was at the time of the murder) to criminal
prosecution and the full range of adult punishment. And as we have previously
explained, the new legislation’s removal of the bindover process—allowing for
automatic jurisdiction in the common pleas court for trial as an adult—merely
removed a procedural step that Walls had only a speculative and attenuated chance

6. Section 9, Article I of the United States Constitution prohibits Congress from passing ex post
facto laws. Section 10, Article I, which is at issue in this case, extends the identical prohibition to
the states.

20
January Term, 2002

of successfully invoking. Because a 29-year-old had no realistic change of
remaining within the juvenile system under the old law, the actual effect of the
statutory changes applied to Walls was not nearly as dramatic as the amendments
at issue in Juvenile Male.
{¶48} We also reject Walls’s contention that Kent v. United States (1966),

383 U.S. 541

86 S.Ct. 1045

16 L.Ed.2d 84

, mandates his receipt of a bindover
hearing. It is true that Kent identified the bindover procedure as a “ ‘critically
important’ action determining vitally important statutory rights of the juvenile.”

Id. at 556

86 S.Ct. 1045

16 L.Ed.2d 84

. But the protections afforded by that
procedure are important precisely because of the juvenile’s age at the time of the
proceeding. The offender in Kent was 16 years old; by contrast, Walls was 29 years
old at the time criminal proceedings commenced and well beyond an age at which
there was a need for such protection. Accordingly, our categorization of the
bindover hearing as a procedural formality with respect to Walls in no way
contravenes the Supreme Court’s decision in Kent.
       {¶49} We therefore hold that the application of the amended juvenile
statutes to Walls did not violate the Ex Post Facto Clause. Because we find no
violation of either Section 10, Article I of the United States Constitution or Section
28, Article II of the Ohio Constitution, we reject Walls’s first proposition of law.
                                          IV
       {¶50} With his second proposition, Walls argues that the delay between the
time of the offense and his indictment violated his due process rights. Specifically,
Walls contends that he was harmed by the disappearance of evidence implicating
another suspect in the crime.
       {¶51} To warrant dismissal on the basis of preindictment delay, a defendant
must present evidence establishing substantial prejudice. Once the defendant
fulfills that burden, the state has the burden of producing evidence of a justifiable
reason for the delay. State v. Whiting (1998),

84 Ohio St.3d 215, 217

702 N.E.2d 21

                             SUPREME COURT OF OHIO




1199. Thus, “the due process inquiry must consider the reasons for the delay as
well as the prejudice to the accused.” United States v. Lovasco (1977),

431 U.S. 783, 790

97 S.Ct. 2044

52 L.Ed.2d 752

.
       {¶52} The determination of “actual prejudice” involves “a delicate
judgment based on the circumstances of each case.” United States v. Marion (1971),

404 U.S. 307, 325

92 S.Ct. 455

30 L.Ed.2d 468

. In making this assessment, courts
are to consider the evidence as it exists when the indictment is filed and the
prejudice the defendant will suffer at trial due to the delay. State v. Luck (1984),

15 Ohio St.3d 150, 154

, 15 OBR 296,

472 N.E.2d 1097

, citing Marion,

404 U.S. at 326

92 S.Ct. 455

30 L.Ed.2d 468

.
       {¶53} Walls insists that the passage of time resulted in the loss of substantial
exculpatory evidence. He argues that the coroner’s investigator—if he had been
alive to testify—could have placed the time of death during school hours rather than
at 4:00 p.m. Walls also contends that missing school attendance records would
have shown that he was in school on the afternoon of the murder. He further
believes that unavailable witnesses could have supplied evidence implicating one
Anthony Gray as the murderer. In particular, he claims that an acquaintance of
Gray’s, Dawn Smith, had heard Gray tell his cousin that he had killed a woman on
the street where the murder took place. Walls argues that he was prejudiced even
further by the death of the lead investigator because only the investigator knew why
Gray was considered a suspect. Finally, Walls contends that he was prejudiced by
the disappearance of specific items of evidence: (1) a tape made by a neighbor
describing a person she saw entering the victim’s house, (2) a faucet handle from
the victim’s home that had a blood stain on it, and (3) an anonymous letter that
apparently discussed who committed the murder.
       {¶54} For its part, the state counters that the evidence of which Walls
complains was either not missing, unhelpful to Walls, or duplicative.            First,
although the coroner’s assistant is deceased and could not testify, the Butler County




                                         22
                                January Term, 2002




Coroner testified at length as to the time of death. And despite the missing
attendance reports from individual classes, the state produced a school record
showing that Walls was in school on the day of the murder. As to the evidence
concerning the other suspect, police located Smith but considered her unreliable
because she gave inconsistent statements. Furthermore, scientific testing revealed
that a bloodstain on a “missing” pillow taken from Gray’s home did not contain the
victim’s DNA.
       {¶55} In addition to the state’s substantial arguments refuting Walls’s
contentions, we must also consider the fingerprint evidence implicating Walls.
Though Walls stated that he had never been to the victim’s home, his fingerprints
were found in incriminating locations around the house, including on the storm
door and on items scattered about the ransacked home.              Furthermore, the
fingerprints found in the home did not match those of Gray, the individual who
Walls claims actually committed the crime.
       {¶56} Although some prejudice may have occurred from evidence lost over
the years, we conclude that Walls’s claims of prejudice are speculative at best.
Marion,

404 U.S. at 326

92 S.Ct. 455

30 L.Ed.2d 468

. Moreover, we are firmly
convinced that the delay was justified. As the United States Supreme Court
explained, “[T]o prosecute a defendant following investigative delay does not
deprive him of due process, even if his defense might have been somewhat
prejudiced by the lapse of time.” Lovasco,

431 U.S. at 796

97 S.Ct. 2044

52 L.Ed.2d 752

. Here, the indictment occurred only a couple of months after new
computer technology made it possible to match the fingerprints at the murder scene
to those of Walls. Prior to the advent of that technology, the state had no means of
obtaining a match for these prints. Upon receiving the new fingerprint evidence,
the state proceeded diligently to initiate proceedings against Walls. This situation
is distinctly different from cases in which the state has compiled evidence but
simply fails, or refuses, to take action for a substantial period. See, e.g., Luck, 15




                                         23
                                SUPREME COURT OF OHIO




Ohio St.3d 150, 15 OBR 296,

472 N.E.2d 1097

. Because the delay here was
justified, the 13-year hiatus between the offense and the indictment did not violate
Walls’s due process rights.
                                          V
       {¶57} Having found no constitutional violations, we reject both of Walls’s
propositions of law. The judgment of the court of appeals is affirmed.
                                                                 Judgment affirmed.
       MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY and LUNDBERG
STRATTON, JJ., concur.
       PFEIFER, J., dissents.
                                 __________________
       PFEIFER, J., dissenting.
       {¶58} The majority opinion well states the objectionable nature of
retroactive legislation and accurately sets forth the test to determine whether
legislation was designed to apply retroactively and whether it is constitutional. We
diverge on our conclusions.
       {¶59} I dissent because former R.C. 2151.26 and 2151.011(B)(6) do not
contain provisions allowing them to be applied retroactively to an offense that
occurred prior to the enactment of the statutes. State ex rel. Wehrung v. Dinkelacker
(2001),

92 Ohio St.3d 310, 311

750 N.E.2d 154

 (Pfeifer, J., dissenting). The
retroactive application of R.C. 2151.26 and 2151.01(B)(6) fails on both statutory
and constitutional grounds.
       {¶60} First, the General Assembly has not specified that the statutes at issue
should be applied retrospectively. The “ ‘clear indication of retroactive application’
” required by Van Fossen v. Babcock & Wilcox Co. (1988),

36 Ohio St.3d 100, 106

, is lacking.

Id. at 106

, quoting Kiser v. Coleman
(1986),

28 Ohio St.3d 259, 262

, 28 OBR 337,

503 N.E.2d 753

.




                                         24
                                January Term, 2002




       {¶61} Former R.C. 2151.011(B)(6) and 2151.23(I) were clearly designed to
change the law that gave juvenile courts at least initial jurisdiction over persons
apprehended after they turned 21 for crimes they committed before the age of
eighteen. R.C. 2151.011(B)(6) and 2151.23(I) achieved the sought-for change –
but only for children who committed crimes during the life of those statutes. The
statutes do not reach back to acts that occurred before their effective dates.
       {¶62} The 1997 version of R.C. 2151.011(B)(6)(c) changed the definition
of “child” to exclude “[a]ny 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.” (Emphasis added.) 147 Ohio Laws, Part II, 3421-3422. The General
Assembly used the present tense “commits” in crafting the statute. The use of the
past tense, “committed,” would have evidenced a clear intent by the legislature to
make the statute applicable to acts committed before the effective date of the
statute. The way the statute is written encompasses acts, not just apprehension, that
occurred while the statute was in force, not before the statute was written.
       {¶63} Likewise, former R.C. 2151.23(I) stated:
       {¶64} “If a person under eighteen years of age allegedly commits an act that
would be a felony if committed by an adult and if the person is not taken into
custody or apprehended for that act until after the person attains twenty-one years
of age, the juvenile court does not have jurisdiction to hear or determine any portion
of the case charging the person with committing that act.” (Emphasis added.), 146
Ohio Laws, Part II, 2054.
       {¶65} Again, the use of the present tense indicates that the statute applies to
acts that occur over the life of the statute. The law tells persons under 18 years old
that if they commit a felony but avoid apprehension until after age 21, they will
face disposition of their case through the criminal court. It alerts persons under
eighteen years of age to the consequences of not facing responsibility for their




                                          25
                             SUPREME COURT OF OHIO




actions in a timely manner. The statute does not speak to persons over 21 who have
already committed a felony as a juvenile before the statute was enacted. Those
persons would be unable to conform their behavior to the statute. Under the
majority’s construction, however, people over the age of 21 are simply informed
that under this new statute they must now face new and different consequences for
their previous acts. That interpretation is untenable—the way the statute is written
requires both the commission of the felonious act and the apprehension to occur as
of the effective date. The General Assembly could clearly have written the statute
otherwise, but did not.
       {¶66} Even if the statutes did feature clear evidence of intended
retroactivity, such an application would be unconstitutional.          A statute is
unconstitutionally retroactive pursuant to Section 28, Article II of the Ohio
Constitution “if it impairs vested rights, affects an accrued substantive right, or
imposes new or additional burdens, duties, obligations, or liabilities as to a past
transaction.” Bielat v. Bielat (2000),

87 Ohio St.3d 350, 354

.
       {¶67} In finding that the statutes are remedial, rather than substantive, the
majority ignores the important distinctions between juvenile and criminal courts.
This court’s recognition in In re Anderson (2001),

92 Ohio St.3d 63