In re H.V. , 138 Ohio St. 3d 408 ( 2014 )

[Cite as In re H.V., 138 Ohio St. 3d 408, 2014-Ohio-812.]
IN RE H.V.
[Cite as In re H.V., 138 Ohio St. 3d 408, 2014-Ohio-812.]
R.C. 5139.52(F)—Juvenile court has authority under R.C. 5139.52(F) to commit
a juvenile to the custody of the Ohio Department of Youth Services for a
period exceeding 30 days—Juvenile court may order a commitment term
for a supervised-release violation to be served consecutively to a
commitment term for a new crime.
(No. 2012-1688—Submitted August 20, 2013—Decided March 13, 2014.)
APPEAL from the Court of Appeals for Lorain County,
Nos. 11CA010139 and 11CA010140, 2012-Ohio-3742.
____________________
O’NEILL, J.
{¶ 1} In this case, we are asked to decide whether a juvenile court has the
authority to commit a delinquent juvenile to the Ohio Department of Youth
Services (“ODYS”) for a minimum period in excess of 30 days for violating his
supervised release. We must then decide whether a juvenile court, when
committing a juvenile to the ODYS for a supervised-release violation, can order
that the commitment period be served consecutively to the commitment period
imposed for the crime that resulted in the violation of supervised release. We
answer both questions in the affirmative.
Facts and Procedural History
{¶ 2} On December 8, 2010, a Lorain County Court of Common Pleas
Juvenile Court judge found H.V. to be delinquent for having committed an act
that if committed by an adult would have constituted attempted domestic
violence, a felony of the fourth degree. At the time of the offense, H.V. was on
supervised release for committing two earlier domestic-violence offenses. Thus,
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H.V. had also been charged with violating the terms of his supervised release, but
that charge was merged with the attempted-domestic-violence charge. The court
committed H.V. to the ODYS for a minimum term of six months.
{¶ 3} On March 17, 2011, roughly three months after his “minimum six-
month commitment” to the ODYS, H.V. was placed on supervised release from
the ODYS. H.V. had been involved in two fights with other juveniles before
being released.
{¶ 4} Approximately six months after H.V.’s release, H.V., then age 16,
was charged with second-degree felonious assault in violation of R.C.
2903.11(A)(1). He was also charged with violating the terms of his supervised
release in the 2010 domestic-violence case.
{¶ 5} On November 23, 2011, the juvenile court judge conducted a
dispositional hearing, revoked H.V.’s supervised release, and committed H.V. to
the ODYS for a minimum period of 90 days for violating the conditions of his
supervised release. Five days later, the judge found H.V. to be delinquent and
committed him to the ODYS for a minimum term of one year for the felonious
assault. The court order specified that the 90-day term imposed for the violation
of supervised release would run consecutively to the one-year term imposed for
the felonious assault.
{¶ 6} On December 27, 2011, H.V. appealed to the Ninth District Court of
Appeals, asserting four assignments of error, two of which are relevant here.
First, H.V. alleged that pursuant to R.C. 5139.52(F), the juvenile court erred in
committing him to the ODYS for a minimum period in excess of 30 days for
violating the terms of his supervised release. Second, he claimed that pursuant to
R.C. 2152.17(F), the juvenile court erred when it ordered H.V. to serve his
sentences consecutively. The Ninth District rejected both of H.V.’s claims and
affirmed the order of the trial court.
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{¶ 7} H.V. now seeks this court’s review of the court of appeals’
judgment. For the reasons that follow, we affirm the judgment of the Ninth
District.
Analysis
{¶ 8} A juvenile court’s disposition order will be upheld unless the court
abused its discretion. In re D.S., 111 Ohio St. 3d 361, 2006-Ohio-5851, 856
N.E.2d 921. The term “abuse of discretion” implies that the trial court’s attitude
was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio
St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 9} In reviewing a case that originated in the juvenile court, we keep in
mind the overriding purposes for dispositions of juvenile offenders as set forth by
the General Assembly in R.C. 2152.01: to provide for the care, protection, and
mental and physical development of the juvenile offender; to protect the public
interest and safety; to hold the juvenile offender accountable; to restore the
victim; and to rehabilitate the juvenile offender. The statute further states that
these purposes are to be achieved “by a system of graduated sanctions and
services.” R.C. 2152.01(A).
{¶ 10} First, we are asked to determine whether a juvenile court has the
authority under R.C. 5139.52(F) to commit a delinquent juvenile to the ODYS for
a minimum period in excess of 30 days for a violation of supervised release. H.V.
asserts that the juvenile court erred in committing him to the ODYS for a
minimum period longer than 30 days. H.V. argues that the Revised Code does
not authorize a juvenile court to commit a delinquent juvenile to the ODYS for a
specific minimum period for a violation of supervised release. He argues that
R.C. 5139.52(F) authorizes the juvenile court to return a delinquent juvenile to the
ODYS but does not authorize the court to determine the length of the
commitment. H.V. suggests that following a revocation of supervised release,
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only the ODYS has the authority to impose a new period of incarceration beyond
30 days. We disagree.
{¶ 11} R.C. 5139.52(F) clearly authorizes juvenile courts to return
juveniles who have committed serious violations of the terms of their supervised
release to the ODYS for a minimum period of 30 days. The statute provides:
(F) If a child who is on supervised release is arrested under
an order of apprehension, under a warrant, or without a warrant as
described in division (B)(1), (B)(2), or (C) of this section and taken
into secure custody, and if a motion to revoke the child’s
supervised release is filed, the juvenile court of the county in
which the child is placed promptly shall schedule a time for a
hearing on whether the child violated any of the terms and
conditions of the supervised release. If a child is released on
supervised release and the juvenile court of the county in which the
child is placed otherwise has reason to believe that the child has
not complied with the terms and conditions of the supervised
release, the court of the county in which the child is placed, in its
discretion, may schedule a time for a hearing on whether the child
violated any of the terms and conditions of the supervised release.
If the court of the county in which the child is placed on supervised
release conducts a hearing and determines at the hearing that the
child did not violate any term or condition of the child’s supervised
release, the child shall be released from custody, if the child is in
custody at that time, and shall continue on supervised release under
the terms and conditions that were in effect at the time of the
child’s arrest, subject to subsequent revocation or modification. If
the court of the county in which the child is placed on supervised
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release conducts a hearing and determines at the hearing that the
child violated one or more of the terms and conditions of the
child’s supervised release, the court, if it determines that the
violation was a serious violation, may revoke the child’s
supervised release and order the child to be returned to the
department of youth services for institutionalization or, in any
case, may make any other disposition of the child authorized by
law that the court considers proper. If the court orders the child to
be returned to a department of youth services institution, the child
shall remain institutionalized for a minimum period of thirty days,
the department shall not reduce the minimum thirty-day period of
institutionalization for any time that the child was held in secure
custody subsequent to the child’s arrest and pending the revocation
hearing and the child’s return to the department, the release
authority, in its discretion, may require the child to remain in
institutionalization for longer than the minimum thirty-day period,
and the child is not eligible for judicial release or early release
during the minimum thirty-day period of institutionalization or any
period of institutionalization in excess of the minimum thirty-day
period.
{¶ 12} This provision clearly means that the ODYS is prohibited from
releasing a returning violator for 30 days. The statute speaks only to the
minimum period of institutionalization. It clearly vests the ODYS with the
authority to increase the judge’s original sentence—presumably for juveniles who
simply cannot be rehabilitated within that time—but there is no indication in this
section that the juvenile court is limited in the amount of time that it may impose
under this provision. Nothing in the statute, or common sense, supports the
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proposition that the judge is limited to ordering a maximum 30-day commitment
to the ODYS. Our reading of the statute is further supported by the final clause
that specifically prohibits the granting of judicial release or early release “during
the minimum thirty-day period of institutionalization or any period of
institutionalization in excess of the minimum thirty-day period.” (Emphasis
added.) R.C. 5139.52(F). It makes no sense to include this clause in the statute if
the legislature intended to vest the release authority with the exclusive authority to
determine whether the juvenile should be held for a period beyond the minimum
30 days. The statute is clear on its face, and the trial court and the court of
appeals properly applied the law.
{¶ 13} Here we have a case in which a juvenile on supervised release
following two prior offenses was committed in 2010 to the ODYS for attempted
domestic violence, a felony of the fourth degree. The juvenile court merged the
charge for that violation of supervised release with the charge for the attempted
domestic violence. The juvenile was later placed on supervised release, and
within six months, he committed yet another crime, this time a felonious assault, a
felony of the second degree. The juvenile court properly revoked the juvenile’s
supervised release and committed him to the ODYS for a minimum of 90 days for
the supervised-release violation and for one year for the felonious assault. We
will not construe the statute to prevent the court from holding H.V. fully
accountable for his behavior or to force the court to ignore the fact that H.V. was
not only guilty of violating the conditions of his supervised release but had also
committed another violent act. There is no rational reason to suggest that a
juvenile court should be limited in the sanctions that it can apply in such a
situation. The court’s job, after all, is not only to attempt to correct the juvenile
but to protect the public as well. R.C. 2152.01(A).
{¶ 14} Felonious assault, without question, is a serious offense and a
serious violation of supervised release. H.V. appeared before the same juvenile
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court judge for each of the criminal offenses leading up to the felonious assault.
We are wholly unpersuaded that this juvenile’s latest violation of supervised
release deserved the same sanction that was imposed as a result of his previous
supervised-release violation or that the judge abused her discretion when she
ordered a term of commitment beyond the statutory minimum of 30 days.
{¶ 15} We can find no provision in the Revised Code that gives the release
authority of the ODYS the power to override a statutory minimum period of
commitment or a minimum period of commitment ordered by a juvenile court.
R.C. 5139.50 specifies the powers and duties of the ODYS release authority, and
R.C. 5139.51 specifies the procedures that the ODYS release authority must
follow when releasing a juvenile from the secure facility in which he or she was
placed following a juvenile court’s order of commitment. Both of these statutes
include clear prohibitions against releasing a juvenile who was committed to the
ODYS by a juvenile court order. R.C. 5139.50(E)(1)1 and 5139.51.2
{¶ 16} Thus, we hold that a juvenile court is within its statutory authority
under R.C. 5139.52(F) to commit a juvenile for a period exceeding the 30-day
minimum set forth in the statute. In so doing, we affirm the judgment of the Ninth
District Court of Appeals. If the ODYS release authority releases a juvenile prior
to the statutorily prescribed minimum period of 30 days, that release is contrary to
1. The ODYS release authority is a five-member bureau within the ODYS whose members are
appointed by the director of the ODYS. R.C. 5139.50(A). R.C. 5139.50 specifies the powers and
duties of the release authority. The statute specifically prohibits the release authority from
releasing juvenile offenders who have been committed to the legal custody of the ODYS and “who
have not completed a prescribed minimum period of time or prescribed period of time in a secure
facility.” R.C. 5139.50(E)(1).
2. R.C. 5139.51, the statute describing the procedures the ODYS release authority must follow
when releasing a juvenile offender, specifically states that the release authority “shall not
discharge the child or order the child’s release on supervised visitation release prior to the
expiration of the prescribed minimum period of institutionalization or institutionalization in a
secure facility or prior to the child’s attainment of twenty-one years of age, whichever is
applicable under the order of commitment, other than as is provided in section 2152.22 of the
Revised Code [the statute setting forth the procedures for judicial release].”
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law. Likewise, if the ODYS release authority releases a juvenile prior to the
expiration of the minimum time specified by a juvenile court’s order, that release
violates a court order and is contrary to law.
{¶ 17} Next, we are asked to determine whether a juvenile court may
order a commitment term for a supervised-release violation to be served
consecutively to a commitment term for a new crime. H.V. asserts that the
juvenile court erred when it ordered that his commitment for his supervised-
release violation pursuant to R.C. 5139.52(F) be served consecutively to his
commitment for his new felonious-assault offense pursuant to R.C. 2152.16.
H.V. argues that because R.C. 2152.17(F) authorizes a court to impose
consecutive commitment periods when a juvenile commits multiple felony
offenses and because that section does not specifically state that a court may order
a commitment term for a new felony offense to be served consecutively to a term
for a supervised-release violation, the juvenile court lacks the authority to require
that these terms be served consecutively.
{¶ 18} We agree with H.V. that R.C. 2152.17 does not apply in this case;
however, we disagree with his assertion that because R.C. 2152.17 does not
apply, the juvenile court lacks the statutory authority to order that the term it
imposes for a supervised-release violation be served consecutively to the term it
imposes for felonious assault. Authority to impose consecutive terms can be
found in R.C. 2152.19(A)(8), which provides that “[i]f a child is adjudicated a
delinquent child, the court may * * * [m]ake any further disposition that the court
finds proper, * * *.”
{¶ 19} H.V. argues that because the Revised Code enumerates
circumstances under which a juvenile court may impose consecutive terms of
commitment, juvenile courts are prohibited from imposing consecutive sentences
under any other circumstances. This court rejected that argument in In re
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Caldwell, 76 Ohio St. 3d 156, 158-159, 666 N.E.2d 1367 (1996), and we reject it
in this case as well.
{¶ 20} Here, the juvenile court was presented with a repeat offender
whose criminal conduct showed no signs of ebbing. In fact, it was escalating—
from an earlier domestic-violence charge to the current felonious-assault charge.
Under these circumstances, it would have been contrary to R.C. 2152.01(A),
which requires juvenile courts to hold offenders accountable for their actions by
imposing graduated sanctions, for the juvenile court to continue to order the same
sanction despite the escalating and dangerous criminal behavior. R.C.
2152.19(A)(8) expressly grants juvenile courts the authority to make any
disposition that the court finds proper. By ordering that the commitment period
imposed for H.V.’s latest supervised-release violation be served consecutively to
the commitment period imposed for the felonious assault, the juvenile court,
pursuant to the authority in R.C. 2152.19(A)(8), imposed a more severe sanction
than it had imposed for his previous violation, in accordance with R.C.
2152.01(A).
{¶ 21} Thus, we hold that the juvenile court was within its statutory
authority under R.C. 2152.19(A)(8), 5139.52(F), and 2152.01(A) to order H.V. to
serve the imposed term of commitment for his supervised-release violation
consecutively to the imposed term of commitment for his new crime. In so doing,
we affirm the judgment of the Ninth District Court of Appeals.
Conclusion
{¶ 22} We hold that the juvenile court did not abuse its discretion when it
ordered H.V. to serve a minimum 90-day term for a serious violation of
supervised release. This order was made in accordance with the plain language of
R.C. 5139.52(F). We also hold that it was not an abuse of discretion for the
juvenile court to order the term of commitment imposed for the supervised-
release violation to be served consecutively to the term of commitment imposed
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for the underlying offense and that this order was made in accordance with the
plain language of R.C. 2152.19(A)(8) and 2152.01(A).
Judgment affirmed.
O’DONNELL, LANZINGER, and KENNEDY, JJ., concur.
FRENCH, J., concurs in part and dissents in part.
O’CONNOR, C.J., and PFEIFER, J., dissent.
____________________
FRENCH, J., concurring in part and dissenting in part.
{¶ 23} I agree with the majority’s conclusion that the juvenile court could
order H.V.’s commitments to be served consecutively. Like the majority, I find
In re Caldwell, 76 Ohio St. 3d 156, 666 N.E.2d 1367 (1996), to be dispositive on
this issue.
{¶ 24} Caldwell dealt with identical statutory language and identical
arguments. There, we were asked to decide whether a juvenile court had
authority to order consecutive terms of commitment under former R.C.
2151.355(A)(11), Am.Sub.H.B. No. 725, 144 Ohio Laws, Part IV, 6368, 6372,
effective April 16, 1993. Former R.C. 2151.355(A)(11) gave juvenile courts the
ability to “[m]ake any further disposition that the court finds proper.” We held
that this catchall language allows courts to impose consecutive commitment
terms. Id. at 159.
{¶ 25} R.C. 2151.355(A)(11) was repealed in 2002, but the pertinent
language from that section was reenacted in R.C. 2152.19(A), the statute at issue
here. Am.Sub.S.B. No. 179, 148 Ohio Laws, Part IV, 9447, 9573, relevant
sections effective January 1, 2002. The relevant language of both statutes is
identical; like its predecessor, R.C. 2152.19(A)(8) gives a court the authority to
“[m]ake any further disposition that the court finds proper.” Per Caldwell, this
language clearly “includes the authority to order consecutive terms of
commitment.” Id. at 159. Because Caldwell is dispositive and indistinguishable,
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I agree with the majority opinion that the juvenile court had the authority to order
consecutive commitments.
{¶ 26} I respectfully disagree, however, with the majority’s determination
that the juvenile court can commit a juvenile to a minimum term of commitment
in excess of 30 days. If a juvenile violates parole, a court can, under R.C.
5139.52(F), revoke the parole and return the child to the Ohio Department of
Youth Services (“ODYS”). R.C. 5139.52(F) does not grant the court any
authority to determine the term of the juvenile’s commitment, minimum or
maximum. The minimum 30-day term is imposed by statute, and the maximum
term (or rather, the child’s release date) is left solely to the discretion of ODYS.
The court simply has no authority to determine the length of the ODYS
commitment at all. It may only revoke parole and return the child to ODYS. I
join the chief justice’s well-reasoned dissent on this issue.
____________________
O’CONNOR, C.J., dissenting.
{¶ 27} The majority’s decision to affirm the Ninth District Court of
Appeals is not supported by the language of the relevant statutes or by the General
Assembly’s rationale in enacting those laws.
{¶ 28} The juvenile court did not have the power to designate a mandatory
minimum confinement term of 90 days when ordering H.V.’s return to the Ohio
Department of Youth Services (“ODYS”) to continue serving under his 2010
disposition, and that portion of the juvenile court’s November 23, 2011 revocation
disposition should be reversed as unlawful. And because the juvenile court did
not have the power to order H.V. to serve the confinement term imposed for his
supervised-release violation consecutively to the confinement term imposed for
the new delinquency adjudication, that portion of the November 23, 2011
disposition also should be reversed as unlawful. I therefore dissent.
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ANALYSIS
{¶ 29} Upon revocation of a child’s supervised release, a juvenile court
has no authority to increase the 30-day mandatory minimum period of
confinement set forth in R.C. 5139.52(F). Additionally, in enacting R.C. 2152.17,
the General Assembly chose to permit consecutive terms of confinement only for
certain enumerated specifications or dispositions involving multiple offenses that
would be felonies if committed by an adult, leaving juvenile courts without
authority to impose consecutive terms outside of these specified circumstances.
The juvenile court therefore acted in excess of its statutory authority when it
increased H.V.’s mandatory minimum term of confinement under R.C.
5139.52(F) and imposed consecutive terms of confinement in a way that was not
permitted by R.C. 2152.17.
A juvenile court has no authority to increase the statutory
minimum term of institutionalization
{¶ 30} The plain language of R.C. 5139.52(F) dictates that once a
juvenile’s supervised release is revoked and his original indefinite term of
institutionalization is reinstated, a minimum 30-day term of institutionalization
arises as a matter of law. By construing the 30-day term in R.C. 5139.52(F) as
merely the baseline for the juvenile court’s discretion to impose any minimum
term of institutionalization, the majority fails to recognize the significance of
minimum and indefinite sentencing provisions in the context of juvenile cases, as
well as the significance of statutory limitations on the discretionary authority of
both the juvenile court and the ODYS.
{¶ 31} The juvenile justice system exists as “ ‘an uneasy partnership of
law and social work,’ ” In re Agler, 19 Ohio St. 2d 70, 73, 249 N.E.2d 808 (1969),
quoting Whitlatch, The Juvenile Court, 18 W.Res.L.Rev. 1239, 1246 (1967),
which serves to both support and correct its wards in an “institutionalized and
thus reliable manner,” id. Juvenile proceedings are neither criminal nor penal in
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nature, and the juvenile justice system must value, above all, the child’s welfare
and betterment. See In re C.S., 115 Ohio St. 3d 267, 2007-Ohio-4919, 874 N.E.2d
1177, ¶ 66-67.
{¶ 32} The purposes underlying all juvenile dispositions are set forth in
R.C. 2152.01(A): “to provide for the care, protection, and mental and physical
development of children subject to this chapter [R.C. Chapter 2152], protect the
public interest and safety, hold the offender accountable for the offender’s
actions, restore the victim, and rehabilitate the offender.” And “[t]hese purposes
shall be achieved by a system of graduated sanctions and services.” (Emphasis
added.) Id. The various traditional juvenile dispositions available to a trial court
are delineated in R.C. 2152.16, 2152.17, 2152.19, and 2152.20. R.C. 2152.02(Z).
A child is eligible for harsher sanctions only upon reaching a certain age and for
certain serious misconduct. See, e.g., R.C. 2152.11 (serious-youthful-offender
dispositions); R.C. 2152.12 (transfer of cases from juvenile to adult criminal
proceedings).
{¶ 33} In this case, H.V. was adjudicated through the traditional juvenile
process for committing a fourth-degree felony at the age of 15. In fashioning an
appropriate disposition for H.V., the juvenile court had a choice among various
traditional juvenile dispositions: placement into the legal custody of ODYS for
secure confinement, R.C. 2152.16; placement in a detention facility, R.C.
2152.19(A)(3); placement under house arrest, R.C. 2152.19(A)(4)(j); the
imposition of fines, R.C. 2152.20(A)(1); and additional options or combinations
of options.
{¶ 34} But after the juvenile court chose to place H.V. in the legal custody
of ODYS for secure confinement, the court’s discretion regarding that
confinement was limited by R.C. 2152.16 and 2152.18. Because H.V. was
adjudicated delinquent for a fourth-degree felony, the juvenile court had no
discretion to impose anything other than an indefinite term of institutionalization
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with a minimum period of six months and a maximum period up to H.V.’s 21st
birthday. R.C. 2152.16(A)(1)(e). The juvenile court was also required to credit
H.V. for the 83 days that H.V. spent in a detention home while awaiting the
juvenile court’s December 8, 2010 dispositional decision, causing H.V.’s
minimum six-month term to expire on or about March 16, 2011. R.C.
2152.18(B).3
{¶ 35} Because the juvenile court committed H.V. to the permanent legal
custody of ODYS, the court ceased to have jurisdiction over H.V. in relation to
the 2010 adjudication, except under limited circumstances. R.C. 2152.22(A).
The juvenile court’s jurisdiction became limited to (1) granting judicial release
during H.V.’s minimum six-month institutionalization period under certain
conditions provided in R.C. 2152.22(B) and (C), (2) granting judicial release at
any time after the minimum period under R.C. 2152.22(D), (3) determining
whether H.V. violated the terms of his judicial release and, if so, revoking judicial
release pursuant to the conditions of R.C. 2152.22(E), and (4) under R.C.
2152.22(H), performing certain judicial functions related to a decision by ODYS
to release H.V. and revocation of that release under R.C. 5139.51 and 5139.52.
Conversely, upon being granted permanent legal custody of H.V. up to his 21st
birthday, ODYS’s authority to determine the trajectory of H.V.’s rehabilitation
was plenary, subject to the above limitations provided by statute. R.C.
2152.22(A). Within the parameters of H.V.’s indefinite term of
institutionalization, ODYS had the authority to release H.V. at any point that it
determined that its rehabilitative efforts had reached a satisfactory end. Ohio
Adm.Code 5139-68-03.
{¶ 36} A review of the authority granted to and the constraints placed
upon both the juvenile court and ODYS by the legislature requires a conclusion
3. The majority implies in ¶ 3 that ODYS permitted H.V.’s release after he had served only three
months toward his six-month mandatory minimum term. This implication is patently incorrect.
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that after the disposition in a traditional juvenile proceeding, the statutes are
primarily focused on facilitating the release of the child from confinement. After
a child serves a minimum period of confinement, the ODYS has the authority to
release the child, even if the juvenile court does not believe that he or she should
be released. And the juvenile court can order the child’s release, even if ODYS
does not believe that he or she should be released. R.C. 5139.51; 2152.22.
Neither of these statutes allows either entity to compel a child’s confinement past
the minimum term if the other entity wants him or her to be released.
{¶ 37} This general standard of promoting release from institutionalization
is subject to few exceptions, but the revocation-of-supervised-release rule of R.C.
5139.52(F) contains one of those exceptions. The statute provides that after a
juvenile court determines that a child has committed a serious violation of the
terms and conditions of the child’s supervised release, the juvenile court may
return the child to ODYS pursuant to the prior adjudication or it may craft any
other disposition that is “authorized by law that the court considers proper.” R.C.
5139.52(F).
{¶ 38} Although the juvenile court’s discretionary authority under the
language of R.C. 5139.52(F) seems practically limitless when read out of context,
it must be remembered that the juvenile court’s authority under R.C. 5139.52(F)
arises only in circumstances in which the court’s general authority has otherwise
been extinguished. R.C. 2152.22(A). Because the juvenile court’s authority over
the child is restored only to the limited extent provided by R.C. 5139.52(F), the
majority’s generosity in construing the court’s discretionary powers is not
supported by the statutory scheme. Moreover, just as with H.V.’s original 2010
disposition, when the juvenile court revoked H.V.’s supervised release, the
juvenile court had the discretion to choose among various lawful dispositional
options, but its discretion became limited by the applicable terms of the option it
selected. Thus, once the juvenile court opted to return H.V. to ODYS, the other
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terms of H.V.’s disposition were controlled by the remainder of the language in
R.C. 5139.52(F):
[T]he child shall remain institutionalized for a minimum period of
thirty days, [ODYS] shall not reduce the minimum thirty-day
period of institutionalization for any time that the child was held in
secure custody subsequent to the child’s arrest and pending the
revocation hearing and the child’s return to [ODYS], the [ODYS]
release authority, in its discretion, may require the child to remain
in institutionalization for longer than the minimum thirty-day
period, and the child is not eligible for judicial release or early
release during the minimum thirty-day period of
institutionalization or any period of institutionalization in excess of
the minimum thirty-day period.
{¶ 39} When construing this and any other statute, our paramount concern
is the legislative intent in enacting the statute, and our interpretation of the
specific words used is guided by their plain, customary meaning. Yonkings v.
Wilkinson, 86 Ohio St. 3d 225, 227, 714 N.E.2d 394 (1999). A plain reading of
the terms and modifiers in the above statutory language reveals that the trial court
no longer has any control over the length of a child’s confinement after choosing
to return the child to the custody of ODYS. It is only ODYS that is authorized to
resume its role of carrying out the indefinite term of institutionalization imposed
in the original disposition.
{¶ 40} Although the statute states that “the court * * * may * * * order the
child to be returned” to ODYS, it does not authorize the court to prescribe a
minimum term of institutionalization. R.C. 5139.52(F). Instead, the 30-day-
minimum term arises from the statute, and all further references to the juvenile
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court serve only to vitiate the court’s normal discretionary power to release the
child from confinement. Thus the length of the child’s confinement after
revocation is not within the trial court’s authority. This makes sense because the
revocation is merely a reinstatement of the juvenile court’s previous disposition
for the child, and a court has neither the power to alter the terms of the original
disposition nor the power to increase the child’s minimum term of confinement.
{¶ 41} The General Assembly’s reason for inserting a minimum-term-of-
confinement rule in R.C. 5139.52(F) is clear. The child has necessarily already
completed a minimum term of confinement, so both the court and ODYS would
ordinarily have the authority to immediately release the child the moment after the
child returns to secure confinement. The 30-day rule acts, in effect, as a
temporary stay on the release powers that either entity might be able to exercise.
The 30-day rule, as well as its provision that prevents ODYS from reducing that
30-day minimum period by crediting the child with the time he or she served,
prevents an immediate release from occurring and ensures that a child will be held
accountable for the violation of supervised release.
{¶ 42} The majority gives a juvenile court discretion to impose a longer
minimum confinement period than the 30 days allowed by statute when the
juvenile court believes that 30 days is not sufficient to hold the juvenile
accountable for the new offense. But the majority’s concerns are addressed in
provisions such as R.C. 2152.16(C) and 2152.19, which direct a juvenile court to
consider any prior adjudications when fashioning a disposition for a new
adjudication. Nothing in R.C. 5139.52(F) diminishes the juvenile court’s
authority to impose other terms of institutionalization for newly committed
offenses, so the majority’s concern that a juvenile will not be held accountable for
additional offenses is mistaken.
{¶ 43} Thus, not only is the majority’s expansion of judicial discretion
unsupported by the plain language of the statutory scheme, it is redundant, as its
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purposes are already served by the 30-day “stay” of R.C. 5139.52(F) and statutory
directives for new adjudications.
{¶ 44} The majority stresses that nothing in R.C. 5139.52(F) indicates that
the child can be reinstitutionalized for a maximum of 30 days. The majority is
certainly correct on that point: any child who was originally committed to secure
confinement under R.C. 2152.16(A)(1) has a maximum, indefinite term that
extends to the child’s attainment of 21 years of age, and nothing in R.C.
5139.52(F) allows the trial court to decrease that maximum when the child is
returned to commitment under his or her original disposition. By the same token,
however, nothing in R.C. 5139.52(F) allows the trial court to take it upon itself to
increase the mandatory minimum terms provided by R.C. 2152.16(A)(1).
{¶ 45} Discretion to upwardly depart from minimum periods of
confinement should not be read into a juvenile dispositional statute, particularly
where the General Assembly elsewhere has explicitly evidenced its intent for the
court to have such discretion in other dispositional provisions. See, e.g., R.C.
2152.16(A)(1)(b) (for attempted murder or attempted aggravated murder, the
sentence prescribed is “a minimum period of six or seven years as prescribed by
the court and a maximum not to exceed the child’s attainment of twenty-one years
of age” [emphasis added]) and 2152.16(A)(1)(c) (for certain enumerated felonies,
“a minimum period of one to three years, as prescribed by the court, and a
maximum period not to exceed the child’s attainment of twenty-one years of age”
[emphasis added]).
{¶ 46} Although the majority finds authority for the juvenile court in the
absence of an explicit prohibition from the General Assembly, doing so severely
undermines other provisions within the juvenile justice system. For example,
although R.C. 2152.16 provides instructions only for the institutionalization of
children who have committed felony offenses, nothing in the statute prohibits the
court from institutionalizing a child for a misdemeanor offense. But it is well
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settled that a juvenile court does not have the authority to institutionalize a
misdemeanant child, regardless of its discretion to impose any disposition it
deems proper. In re J.W., 12th Dist. Butler Nos. CA2004-02-036 and CA2004-
03-061, 2004-Ohio-7139, ¶ 16-21; Wright v. Bower, 8th Dist. Cuyahoga No.
79794, 2001 WL 824472 (July 16, 2001); In re T.N., 3d Dist. Union No. 14-12-
13, 2013-Ohio-135, ¶ 21.
{¶ 47} In R.C. 5139.52(F), the only entity identified as having the
discretion to determine the timing of a child’s release from an indefinite term of
confinement after the 30-day minimum period is the ODYS release authority.
The General Assembly easily could have stated that the juvenile court also had
the authority to extend a child’s term of institutionalization, but the General
Assembly chose not to do so.
{¶ 48} When the juvenile court committed H.V. to the custody of ODYS
in 2010, it had no authority to impose a definite term of institutionalization and no
authority to alter the minimum and maximum terms of the mandatory indefinite
sentence provided in R.C. 2152.16(A)(1)(e). It is illogical to assume from a mere
lack of explicit prohibition that the juvenile court would later have the discretion
to impose a definite term of institutionalization for a supervised-release
revocation, even up to the very maximum limits. There is nothing to indicate that
the General Assembly intended such a result, particularly in light of the fact that a
child institutionalized pursuant to R.C. 5139.52(F) as a result of a supervised-
release revocation is not eligible for early release. A provision providing the
court with the discretion to impose an irrevocable, definite term of
institutionalization for a supervised-release revocation—in excess of any possible
term of institutionalization that would have been lawful in the child’s original
disposition—would completely undermine the purpose of the laws that a juvenile
judge is obligated to uphold.
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{¶ 49} It would be antithetical to the rehabilitative goals of the traditional
juvenile system to allow a permanent term of confinement to be imposed prior to
the child’s reintroduction to an ODYS institutional environment, because at that
time, it is not known how the child is going to respond to rehabilitative efforts.
Such a disposition would be even more restrictive and punitive than the use of
stayed adult sentences in serious-youthful-offender dispositional proceedings, as
it would leave a child no motivation to change his or her behavior and meet
assigned rehabilitative goals in order to avoid a definite sentence.
{¶ 50} If the 30-day-minimum-institutionalization provision in R.C.
5139.52(F) truly allows a trial court to impose any definite term of
institutionalization that it deems proper within the range of the child’s previous
indefinite term, the revocation no longer has the quality of a juvenile disposition.
Instead, it is a punitive sentence. The juvenile court has the authority to enforce
its own judgment by returning the child to ODYS under the original disposition,
and it has the authority to do anything else that might be lawful and proper. But
lawful and proper dispositions do not include those in which the court exceeds the
dispositional mandates and instructions of the legislature and imposes what is, in
essence, a criminal sentence within traditional juvenile proceedings.
{¶ 51} I would therefore hold that the juvenile court did not have the
power to impose a mandatory minimum institutionalization term of 90 days after
ordering H.V.’s return to ODYS to continue serving under his 2010 disposition
and would hold that the disposition must be reversed as unlawful.
The juvenile statutory scheme does not permit a juvenile court to
impose an institutionalization term for a supervised-release
revocation consecutively to a new term of institutionalization
{¶ 52} Just as the phrase “any other disposition * * * that the court
considers proper” in R.C. 5139.52(F) is not carte blanche for juvenile courts to
disregard other statutory limits, the general reference in R.C. 2152.19(A)(8) to the
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January Term, 2014
juvenile court’s authority to make any disposition that it finds proper does not
expand what constitutes a lawful disposition under the juvenile statutory scheme.
Looking at the more specific terms of R.C. 2152.17, it is clear that the General
Assembly has delineated the circumstances under which a court may impose
consecutive terms of institutionalization and that the circumstances of H.V.’s
dispositions are not among those listed.
{¶ 53} Neither the dispositional provisions of R.C. 2152.16 nor the
revocation provisions of R.C. 5139.52 provide the juvenile court with the
authority to run institutionalization terms for revocation dispositions
consecutively to institutionalization terms for new delinquency dispositions.
Most certainly, the juvenile court does not have the “inherent power” to run the
terms consecutively, as the Ninth District held in this case. In re H.V., 9th Dist.
Lorain Nos. 11CA010139 and 11CA010140, 2012-Ohio-3742, at ¶ 10.
{¶ 54} A court’s inherent authority is a power that is neither created nor
assailable by acts of the legislature. Hale v. State, 55 Ohio St. 210, 215, 45 N.E.
199 (1896). But a juvenile court is a creature of statute and therefore has only
such powers as are conferred upon it by the legislature. See In re Agler, 19 Ohio
St.2d at 72-74, 249 N.E.2d 808. Thus it has little, if any, inherent power.
{¶ 55} It is the legislature that has the authority to define offenses and fix
penalties, and it is the legislature that authorizes the judiciary to pass a particular
sentence upon an accused. Ex parte Fleming, 123 Ohio St. 16, 173 N.E. 441
(1930), at paragraph one of the syllabus; Ex parte United States, 242 U.S. 27, 42,
37 S. Ct. 72, 61 L. Ed. 129 (1916). See also State v. Fischer, 128 Ohio St. 3d 92,
2010-Ohio-6238, 942 N.E.2d 332, ¶ 22 (“Judges have no inherent power to create
sentences”).
{¶ 56} In the face of silence on the issue of consecutive terms of
institutionalization, it should not be inferred that a juvenile court has the
discretion to order multiple confinement terms to be served consecutively.
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Although this court made that inference in In re Caldwell, 76 Ohio St. 3d 156, 666
N.E.2d 1367 (1996), the circumstances of Caldwell, both in law and in fact, are
far different from the circumstances of the present case.
{¶ 57} In Caldwell, the child had been adjudicated delinquent in 1994 in
two cases that were heard together. In re Caldwell, 10th Dist. Franklin Nos.
94APF07-996 and 94APF07-997, 1995 WL 46199 (Jan. 31, 1995). In the first
case, the child was adjudicated delinquent on two fourth-degree felony counts of
aggravated vehicular assault, and in the second case, the child was adjudicated
delinquent on a third-degree felony count of receiving stolen property. The
juvenile court imposed terms of institutionalization for each of the three counts
and ordered that they be served consecutively. This court’s approval of the
juvenile court’s dispositional decision was based on the fact that (1) the applicable
version of R.C. Chapter 2151 made no mention of consecutive dispositions, (2)
the only guidance on the issue was found in the instructions that a court shall
“[m]ake any further disposition that the court finds proper” under former R.C.
2151.355(A)(11), Am.Sub.H.B. No. 725, 144 Ohio Laws, Part IV, 6368, 6372,
effective April 16, 1993, and (3) future cases would be governed by the then
newly amended R.C. 2151.355(B)(2), Am.Sub.H.B. No. 1, 146 Ohio Laws, Part I,
31, 34, effective January 1, 1996, which expressly provided for consecutive terms
of confinement in cases such as Caldwell’s. Caldwell, 76 Ohio St. 3d at 158-159,
666 N.E.2d 1367, fn. 1.
{¶ 58} Caldwell was decided at a time when R.C. Chapter 2151 governed
children who were abused, neglected, or dependent, as well as juvenile
delinquents. See In re Cross, 96 Ohio St. 3d 328, 2002-Ohio-4183, 774 N.E.2d
258, ¶ 9. However, the juvenile statutory scheme was significantly altered in
2002 by the Juvenile Justice Reform Act, Am.Sub.S.B. No. 179, 148 Ohio Laws,
Part IV, 9447. Both bodies of juvenile law were revised, and R.C. Chapter 2152
was enacted to exclusively address juvenile delinquency. Cross at ¶ 11.
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January Term, 2014
{¶ 59} Caldwell was also decided at a time when Ohio’s criminal
sentencing code retained the common-law preference for consecutive sentences.
State v. Hodge, 128 Ohio St. 3d 1, 2010-Ohio-6320, 941 N.E.2d 768, ¶ 26 (stating
that “the common law prefer[red] consecutive sentences over concurrent
sentences”). Comprehensive changes were made to the sentencing code by 1995
Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136, effective July 1, 1996. For
example, R.C. 2929.41(A) was amended to presume that sentences would be
served concurrently unless a court stated otherwise. Although R.C. 2929.41(A)
was excised by State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, 845 N.E.2d
470, the identical language of R.C. 2929.41(A) was reenacted in full by the
legislature in 2011 Am.Sub.H.B. No. 86, effective September 30, 2011.
Accordingly, a whole host of direct and analogous presumptions that existed at
the time of Caldwell are no longer valid in the present day.
{¶ 60} Here, we are not facing the same lack of direction on the issue of
consecutive terms of confinement in the juvenile statutes as we were in Caldwell,
and we are also facing a very different juvenile statutory scheme from what
existed at the time of Caldwell. The General Assembly has now addressed the
issue of consecutive terms of confinement for a delinquent child by enacting R.C.
2152.17. Pursuant to R.C. 2152.17(E), if a child is adjudicated a delinquent for a
felony and the child also committed one of several enumerated specifications, the
child’s term of confinement for the specification must be served consecutively to
the term of confinement for the underlying delinquent act. And pursuant to R.C.
2152.17(G), the juvenile court may impose consecutive terms of confinement if it
adjudicates a child delinquent for multiple felony offenses and commits the child
to the legal custody of ODYS for each offense. Neither of those circumstances
applies here.
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The Ohio Legislature having dealt with the subject, and having
made certain provisions and certain exceptions thereto, it will be
presumed that the Legislature has exhausted the legislative intent,
and that it has not intended the practice to be extended further than
the plain import of the statutes already enacted. The well-known
maxim, expressio unius est exclusio alterius, applies.
Madjorous v. State, 113 Ohio St. 427, 433, 149 N.E. 393 (1925).
{¶ 61} R.C. 2152.17 does not state that a juvenile court is permitted to
order that a term of confinement imposed from a revocation disposition be served
consecutively to a term of confinement from a new adjudication of delinquency.
And this court has no power to create additional juvenile court authority. The
extension of authority to impose consecutive confinement terms is a policy matter
within the purview of the legislature. In re M.W., 133 Ohio St. 3d 309, 2012-
Ohio-4538, 978 N.E.2d 164, ¶ 28 (Lanzinger, J., concurring). Just as the General
Assembly amended R.C. Chapter 2152 to allow for consecutive confinement
terms in certain circumstances, it could do so for the circumstances in this case.
{¶ 62} We must remain mindful throughout this process that if the
juvenile court has decided to utilize the traditional juvenile process rather than
bind a juvenile over to adult criminal proceedings, we cannot allow criminal-
sentencing notions to creep into our assumptions, and we certainly cannot allow
them to creep into our explicit analysis. Instead, we must keep in mind the
fundamental rehabilitative purpose of the juvenile justice system. See In re C.S.,
115 Ohio St. 3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 67.
{¶ 63} If a county prosecuting attorney thinks that a child’s offenses are
serious enough that the traditional juvenile process will not rehabilitate the child
and protect the public and that harsher sanctions should apply, the prosecuting
attorney may request serious-youthful-offender proceedings as provided in R.C.
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January Term, 2014
2152.13 or move to bind the child over to adult criminal proceedings as provided
in R.C. 2152.12, and the court will grant such requests under the appropriate
circumstances. If the minimum confinement period of a possible disposition does
not adequately address the concerns voiced by the majority regarding a child’s
serious, repeated, or escalating criminal conduct, the proper remedy is to use the
alternative “graduated sanctions” that are available within the juvenile code. R.C.
2152.01(A). But the court cannot, and should not, change or expand the
dispositions available in the juvenile code.
{¶ 64} I would therefore hold that the juvenile court did not have the
authority to order that the confinement term imposed for the supervised-release
revocation be served consecutively to the confinement term imposed for the new
delinquency disposition and that the offending portion of the November 23, 2011
disposition must be reversed as unlawful.
CONCLUSION
{¶ 65} In the end, it may have been a very good idea for H.V. to remain in
secure confinement for the term imposed by the juvenile court. But the fact that
H.V.’s case does not cry out for a shorter term of institutionalization is irrelevant
to the determination whether the juvenile court had statutory authority to act as it
did. Unsympathetic circumstances provide a perfect opportunity for bad law—
law that will have an adverse impact on more sympathetic cases in the future. But
my concern is not solely with the court’s trampling on the important public
policies behind the juvenile code, e.g., to rehabilitate young offenders. It offends
the law and our Constitutions when a judge legislates from the bench in order to
increase the confinement period that may be imposed on a child merely because
the judge believes that the confinement period allowed under the statute is too
lenient in a particular situation. The statutes that govern dispositions in juvenile
cases are for the General Assembly, and not judges, to create. Once created,
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courts must employ the statutes in order to fashion proper, just sanctions for
delinquent youth.
{¶ 66} In cases in which we believe that punishment is paramount to
rehabilitation, judges must rely on the juvenile statutes that allow for bindover,
serious-youthful-offender hybrid sentencing, or any number of additional
dispositions, to address cases in which the juvenile presents a risk that cannot be
addressed in the juvenile system. Judges cannot, however, alter a statutory
scheme in order to fashion a remedy in any given case. Because the majority
ignores the proper role of the judicial branch, I dissent.
PFEIFER, J., concurs in the foregoing opinion.
____________________
Timothy Young, Ohio Public Defender, and Sheryl Trzaska, Assistant
State Public Defender, for appellant.
Dennis P. Will, Lorain County Prosecuting Attorney, and Chris A.
Pyanowski, Assistant Prosecuting Attorney, for appellee, the state of Ohio.
_________________________
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