YOUNGSTOWN, Ohio (WKBN) — Attorneys for one of two people in custody for the September 2020 shooting death of a 4-year-old Struthers boy have filed a motion in Mahoning County Common Pleas Court to dismiss the charges.

The motion, filed by attorneys Lou DeFabio and Ed Hartwig on behalf of Brandon Crump, is based on a June Ohio Supreme Court decision in State v Smith, where the court ruled that an adult court does not have jurisdiction over matters involving a juvenile unless a juvenile court found probable cause to bind those cases over.

The motion, and a potential return of Crump’s case to juvenile court, were discussed Thursday at a pretrial hearing before Judge Anthony D’Apolito.

Crump was 17 when he was accused for his role in the death of Rowan Sweeney in the Perry Street home of his mother in a shooting that wounded four other people.

Crump, who was arrested in November 2020, was originally charged in juvenile court with aggravated robbery in Sweeney’s case. That charge, and an additional charge of escape, were bound over in March 2021 to common pleas court.

A grand jury then indicted Crump on charges of aggravated murder with death penalty specifications for Sweeney’s murder as well as charges of attempted murder and felonious assault a few weeks later, after he turned 18.

Because he was a juvenile at the time of Sweeney’s death, Crump is not eligible to be put to death if he is convicted.

The aggravated murder and attempted murder charges, however, were not heard at the juvenile court level. Only the aggravated robbery and escape were bound over from juvenile court. The motion to dismiss asks that if the charges are not dismissed, then they be remanded back to juvenile court.

If those charges are dismissed or remanded back to juvenile court, the aggravated robbery and escape charges will remain at the common pleas level because they were bound over from common pleas court.

Assistant Prosecutor Jennifer McLaughlin said there was a chance another pending state Supreme Court decision with local ties could affect the case, that being the case of Chaz Bunch.

Bunch, who was 16 when he was convicted of the 2001 rape of a Youngstown State University student, is serving a 49-year prison term. His attorneys are contending that mandatory bind overs of cases from juvenile court to adult court are unconstitutional. That could have an effect on Crump’s case, McLaughlin said.

McLaughlin said when Crump was indicted, it was still legal to do so in a way that bypassed a probable cause finding in juvenile court. When asked by Judge D’Apolito if the Smith decision is retroactive, neither McLaughlin nor DeFabio could give an answer.

McLaughlin acknowledged the case might have to go back to juvenile court to make sure all jurisdictional issues are addressed properly.

Judge D’Apolito, who was a magistrate in juvenile court before ascending to the common pleas bench, said the case could be expedited if it is returned there. He said that might be a wise decision because if the case can be completed there by the end of the year and the jurisdictional issues resolved, it would be a shorter period of time than ruling on the defense motion and waiting for any possible appeal.

The judge stressed he was not telling prosecutors what to do or how they should do it, only making a suggestion. He gave them 30 days to respond to the motion to dismiss.

A preliminary report on DNA evidence in the case is also expected to be completed by Nov. 7, which could help prosecutors decide if Crump should be tried first or the other man in custody for Sweeney’s death, Kimonie Bryant, 25, who also faces aggravated murder charges with death penalty specifications.

The process to test the DNA, which was originally contested by Bryant’s attorneys, is one of the major holdups in the case. The issue was litigated for months.

Bryant turned himself in shortly after Sweeney was murdered. He was indicted first and Crump and a third defendant, Andre McCoy, 22, were charged in a superseding indictment. McCoy was shot in the head in the attack. He received treatment afterward but has yet to be found.

Police said Sweeney was killed after Bryant, Crump and McCoy stormed into the home of Sweeney’s mother on Sept. 21, 2020, to rob her boyfriend of his stimulus check.