In re R.H. , 2016 Ohio 746 ( 2016 )

[Cite as In re R.H., 2016-Ohio-746.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
IN RE:
CASE NO. 1-15-37
R.H.,
OPINION
ALLEGED DELINQUENT CHILD.
Appeal from Allen County Common Pleas Court
Juvenile Division
Trial Court No. 13JG30562
Judgment Reversed and Cause Remanded
Date of Decision: February 29, 2016
APPEARANCES:
Brooke M. Burns for Appellant
Holly N. Urbanick for Appellee
Case No. 1-15-37
ROGERS, J.
{¶1} Defendant-Appellant, R.H., appeals the judgment of the Court of
Common Pleas of Allen County, Juvenile Division, finding that he violated the
terms of his probation, committing him to the Ohio Department of Youth Services
(“DYS”) for a minimum period of one year, and classifying him as a tier III
juvenile sex offender.1 On appeal, R.H. argues that (1) the juvenile court erred in
accepting his admission to a probation violation and (2) R.C. 2152.83(A), Ohio’s
statute governing juvenile sex offender classification, is unconstitutional. For the
reasons that follow, we reverse the judgment of the juvenile court.
{¶2} On May 14, 2013, a complaint was filed in the Court of Common
Pleas of Allen County, Juvenile Division, alleging that 17-year-old R.H. was
delinquent of one count of rape in violation of R.C. 2907.02(A)(2), a felony of the
first degree if committed by an adult. The complaint stemmed from a report that
R.H. had forced his younger sibling to engage in sexual activities with him.
{¶3} On November 20, 2013, an adjudicatory hearing was held, and
pursuant to a negotiated plea agreement, R.H. entered an admission to an amended
charge of attempted rape in violation of R.C. 2907.02(A)(2) and 2923.02(A), a
felony of the second degree if committed by an adult. In exchange, the State
recommended a stayed commitment at DYS provided that R.H. completed a
1
Although the January 2014 judgment entry placed R.H. on “community control”, the juvenile court later
referred to this aspect of the disposition as “probation.” For sake of clarity, we will also refer to this aspect
of the disposition as “probation.”
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treatment program at the Juvenile Residential Center (“JRC”). Pursuant to Juv.R.
29(D), the juvenile court accepted R.H.’s admission and adjudicated him
delinquent of the charge.
{¶4} On January 8, 2014, a dispositional hearing was held, and the juvenile
court committed R.H. to the legal care and custody of DYS for an indefinite term
of one year and a maximum period not to exceed the age of 21. Pursuant to the
State’s recommendation, the DYS commitment was stayed, and R.H. was
committed to JRC for treatment.
{¶5} On December 12, 2014, R.H.’s probation officer filed an affidavit of
failure to comply, alleging that R.H. had been “unsuccessfully discharged from his
commitment to [JRC] because of non-compliance and lack of progress in the
program. All being in violation of established rules and regulations of
[probation].” (Docket No. 50, p. 1). As a result, the juvenile court terminated
R.H.’s commitment at JRC and ordered that he be detained at the Allen County
Juvenile Detention Center until further order.
{¶6} A few days later, on December 19, 2014, the State filed a motion
requesting that R.H. be committed to the legal care and custody of DYS due to his
probation violation.
{¶7} On February 9, 2015, an adjudicatory hearing was held on the
affidavit, and R.H. entered an admission to the allegations. After determining that
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R.H. understood the nature of the allegations and was acting voluntarily, the
juvenile court accepted the admission.
{¶8} Next, R.H.’s probation officer reiterated the facts underlying the
allegations, and “[b]ased on the admission [sic] the facts as recited,” the juvenile
court “enter[ed] a finding that [R.H.] ha[d] violated the terms and conditions of
probation * * *.” Feb. 9, 2015 Hrg., p. 7.
{¶9} On May 20, 2015, a dispositional hearing was held concerning R.H.’s
probation violation and the State’s motion to impose R.H.’s stayed commitment.
The State offered a copy of R.H.’s discharge summary from JRC into evidence,
after which the State and R.H.’s probation officer recommended that R.H. be
committed to DYS.
{¶10} Ultimately, the juvenile court granted the State’s motion, imposed
R.H.’s stayed commitment, and classified him as a tier III juvenile sex offender
registrant. The juvenile court further ordered that R.H. pay court costs as a result
of his probation violation.
{¶11} It is from this judgment that R.H. appeals, presenting the following
assignments of error for our review.
Assignment of Error No. I
THE ALLEN COUNTY JUVENILE COURT ERRED WHEN
IT ADJUDICATED R.H. DELINQUENT OF A PROBATION
VIOLATION BECAUSE IT DID NOT SUBSTANTIALLY
COMPLY WITH THE REQUIREMENTS OF JUV.R. 29. IN
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RE L.A.B., 121 OHIO ST.3D 112, 2009-OHIO-354, 902 N.E.2D
471. FOURTEENTH AMENDMENT TO THE U.S.
CONSTITUTION; OHIO CONSTITUTION, ARTICLE 1,
SECTION 16. (2/9/15 T.PP. 1-10; A-1).
Assignment of Error No. II
THE ALLEN COUNTY JUVENILE COURT ERRED WHEN
IT CLASSIFIED R.H. AS A TIER III JUVENILE SEX
OFFENDER REGISTRANT UNDER R.C. 2152.83(A), IN
VIOLATION OF R.H.’S RIGHT TO DUE PROCESS, EQUAL
PROTECTION, AND HIS RIGHT TO BE FREE FROM
DOUBLE JEOPARDY. FIFTH AND FOURTEENTH
AMENDMENTS TO THE U.S. CONSTITUTION; OHIO
CONSTITUTION, ARTICLE I, SECTIONS 2, 9, AND 16.
(5/10/15 T.PP. 8; A-1).
Assignment of Error No. I
{¶12} In his first assignment of error, R.H. claims that the juvenile court
failed to conduct a proper Juv.R. 29(D) colloquy prior to accepting R.H.’s
admission to the allegations in the affidavit. Specifically, R.H. claims that the trial
court did not ascertain whether he understood (1) the rights that he would be
giving up if he entered an admission and (2) the consequences of entering an
admission. We agree.
{¶13} Under Juv.R. 29(D), the juvenile court shall not accept an admission
without addressing the party personally and determining both of the following:
(1) The party is making the admission voluntarily with
understanding of the nature of the allegations and the consequences
of the admission;
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(2) The party understands that by entering an admission the party is
waiving the right to challenge the witnesses and evidence against the
party, to remain silent, and to introduce evidence at the adjudicatory
hearing.
This rule applies to all juvenile adjudicatory hearings, including probation
revocation hearings. In re L.A.B, 121 Ohio St.3d 112, 2009-Ohio-354, ¶ 65. “The
juvenile court has an affirmative duty under Juv.R. 29(D) to ‘determine that the
child, and not merely the attorney, understands the nature of the allegations and
the consequences of entering the admission.’ ” In re T.N., 3d Dist. Union No. 14-
12-13, 2013-Ohio-135, ¶ 11, quoting In re Beechler, 115 Ohio App.3d 567, 571
(4th Dist.1996). The best method for complying with Juv.R. 29(D) is for a
juvenile court to tailor the language of the rule to “the child's level of
understanding, stopping after each right and asking whether the child understands
the right and knows he is waiving it by entering an admission.” In re Smith, 3d
Dist. Union No. 14-05-33, 2006-Ohio-2788, ¶ 14, quoting In re Miller, 119 Ohio
App.3d 52, 58 (2d Dist.1997).
{¶14} While strict compliance with Juv.R. 29(D) is preferred, only
“substantial compliance” is required. In re C.S., 115 Ohio St.3d 267, 2007–Ohio–
4919, ¶ 113. “[S]ubstantial compliance means that in the totality of the
circumstances, the juvenile subjectively understood the implications of his plea.
Id. “Failure of a juvenile court to substantially comply with Juv.R. 29(D) has a
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prejudicial effect necessitating a reversal of the adjudication so that the juvenile
may plead anew.” In re T.N. at ¶ 12, quoting In re Smith at ¶ 14.
{¶15} Here, the State concedes that the juvenile court failed to substantially
comply with the colloquy requirements of Juv.R. 29(D) prior to accepting R.H.’s
admission to the allegations in the affidavit. The only relevant exchange between
the juvenile court and R.H. concerned the nature of the allegations and the
voluntariness of R.H.’s admission; the juvenile court failed to discuss the
consequences of an admission or the rights that a juvenile waives by entering an
admission.
{¶16} The State argues, however, that the error only affects the juvenile
court’s adjudication and disposition of the affidavit, as opposed to its decision to
revoke R.H.’s probation and impose his stayed commitment at DYS. Specifically,
the State argues that “the [juvenile] court had a multitude of evidence to support
invoking the stayed commitment based on the stipulated JRC discharge summary
and the recommendation of both the State and R.H.’s probation officer.”
Appellee’s Brief, p. 7. We find this argument unpersuasive.
{¶17} “During a probation revocation hearing, the juvenile court
determines whether a juvenile has violated a condition of probation.” In re L.A.B.,
2009-Ohio-354 at ¶ 49. Under Juv.R. 35(B), “Probation shall not be revoked
except upon a finding that the [juvenile] has violated a condition of probation of
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which the [juvenile] had * * * been notified.” (Emphasis added.) “A juvenile
court must comply with Juv.R. 35(B) before it revokes probation and imposes a
previously suspended commitment.” In re A.R.D., 12th Dist. Butler Nos.
CA2008–04–095, CA2008–04–103, 2009–Ohio–1306, ¶ 11.
{¶18} In this case, whether the juvenile court had a multitude of evidence
before it at the May 2015 hearing to support imposing R.H.’s stayed commitment
is immaterial because the juvenile court never found—at the May 2015 hearing or
in its subsequent entry—that R.H. had violated a condition of probation.
{¶19} Instead, at the February 2015 hearing, the juvenile court found that
R.H. had violated a condition of probation “[b]ased on the admission [sic] the
facts as recited.” Feb. 9, 2015 Hrg., p. 7. Clearly, the juvenile court based its
probation-violation finding, in part, on R.H.’s admission to the allegations in the
affidavit—an admission which the State concedes was accepted in violation of
Juv.R. 29(D).
{¶20} In sum, the juvenile court erred by failing to substantially comply
with the colloquy requirements of Juv.R. 29(D) prior to accepting R.H.’s
admission to the allegations in the affidavit, and this error directly affected the
juvenile court’s ability to invoke R.H.’s stayed commitment.
{¶21} Accordingly, we sustain R.H.’s first assignment of error.
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Assignment of Error No. II
{¶22} In his second assignment of error, R.H. argues that R.C. 2152.83(A),
Ohio’s statute governing juvenile sex offender classification, is unconstitutional.
Specifically, R.H. argues that this subsection offends the Equal Protection Clause,
the Due Process Clause, and the Double Jeopardy Clause of the U.S. Constitution
and the Ohio Constitution.
{¶23} R.H. did not challenge the constitutionality of R.C. 2152.83(A)
before the trial court. “Failure to raise at the trial court level the issue of the
constitutionality of a statute or its application, which issue is apparent at the time
of trial, constitutes a waiver of such issue and a deviation from this state's orderly
procedure, and therefore need not be heard for the first time on appeal.” State v.
Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 64, quoting State v.
Awan, 22 Ohio St.3d 120 (1986), paragraph one of the syllabus. Although it is
“within the reviewing court’s discretion to address the constitutional argument
under a plain error analysis”, we decline to exercise that discretion here. Haller at
¶ 64, citing In re M.D., 38 Ohio St.3d 149 (1988), paragraph one of the syllabus.
{¶24} Alternatively, R.H. argues that his constitutional claims relate to the
juvenile court’s subject-matter jurisdiction. Subject-matter jurisdiction goes to the
power of the court to adjudicate the merits of a case, and it can never be waived
and may be challenged at any time. United States v. Cotton, 535 U.S. 625, 630,
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122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). Absent a proper bind-over procedure, a
juvenile court has exclusive subject-matter jurisdiction over any case concerning a
child who is alleged to be delinquent. State v. Wilson, 73 Ohio St.3d 40, 43
(1995); see generally R.C. Chapter 2151.
{¶25} R.H. fails to explain how his claim concerning R.C. 2152.83(A)
affected the juvenile court’s ability to hear and adjudicate R.H.’s delinquency
proceedings. Under App.R. 12(A)(2), we are not required to address arguments
that have not been sufficiently presented for review or supported by proper
authority, as required by App.R. 16(A)(7). In re A.M., 3d Dist. Marion No. 9-14-
46, 2015-Ohio-2740, ¶ 19 citing Black v. St. Marys Police Dept., 3d Dist. Mercer
No. 10–11–11, 2011–Ohio–6697, ¶ 14.
{¶26} Accordingly, we overrule R.H.’s second assignment of error.
{¶27} Having found error prejudicial to R.H., in the particulars assigned
and argued, we reverse the judgment of the juvenile court and remand the matter
for further proceedings consistent with this opinion.
Judgment Reversed and
Cause Remanded
SHAW, P.J. and WILLAMOWSKI, J., concur in Judgment Only.
/jlr
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