In re T.O.B. , 2013 Ohio 2908 ( 2013 )

[Cite as In re T.O.B., 2013-Ohio-2908.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99061
IN RE: T.O.B.
A Minor Child
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL 12105209
BEFORE: S. Gallagher, J., Stewart, A.J., and Keough, J.
RELEASED AND JOURNALIZED: July 3, 2013
ATTORNEYS FOR APPELLANT
Timothy Young
Ohio Public Defender
BY: Brooke M. Burns
Assistant Ohio Public Defender
Ohio Public Defenders Commission
250 East Broad Street
Suite 1400
Columbus, OH 43215
ATTORNEYS FOR APPELLEE, STATE OF OHIO
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Michael Hustick
Assistant Prosecuting Attorney
9300 Quincy Avenue, 4th Floor
Cleveland, OH 44106
SEAN C. GALLAGHER, J.:
{¶1} Appellant T.O.B. appeals the adjudication and disposition by the Cuyahoga
County Court of Common Pleas, Juvenile Division. For the reasons that follow, we
reverse the decision of the court and remand this cause for further proceedings.
{¶2} As a result of a March 23, 2012 incident, a complaint was filed on March 30,
2012 (“March 2012 Complaint”), alleging that then 14-year-old T.O.B. was delinquent of
two counts of aggravated robbery, in violation of R.C. 2911.01(A)(1), felonies of the first
degree if committed by an adult. Each charge was enhanced with two firearm
specifications pursuant to R.C. 2941.141(A) and R.C. 2941.145(A).
{¶3} Trial commenced on August 23, 2012, in order for a juvenile witness to
testify for the state before leaving for college. After his testimony, the court continued
the trial to September 4, 2012.
{¶4} On September 4, 2012, the state announced that the parties reached an
agreement as to the March 2012 Complaint. T.O.B. agreed to admit to one count of
aggravated robbery, as amended, in exchange for the nullification of one firearm
specification enhancing Count 1 and all other charges alleged in the complaint.1
{¶5} After a preliminary discussion among the state, the court, and T.O.B.’s
1
T.O.B. also agreed to admit to other charges from subsequent and separate complaints then
pending with the court for incidents occurring while in detention on the March 2012 Complaint.
These admissions are not before this court.
counsel, the juvenile court addressed T.O.B. as follows:
THE COURT: [T.O.B.], stand up. It is my understanding that you are
admitting to the charges either as amended or as presented originally as
specifically stated by the State’s attorney through the Prosecutor’s Office
and through your attorney indicating the same.
Is this true and accurate that you are admitting to the charges as they have
been amended?
T.O.B.: Yes.
{¶6} T.O.B. responded “yes,” after the court inquired whether he was making the
admission of his own free will, voluntarily, and with the guidance of legal counsel.
T.O.B. responded “no” after the juvenile court inquired whether anyone promised him,
threatened him, or coerced him into making the decision to enter the admission. He also
responded “no” when asked if he was under the influence of any drugs, alcohol, or any
medication that would cause him to make a poor decision.
{¶7} The court accepted the admission to the amended March 2012 Complaint, and
found T.O.B. to be a delinquent child. After acceptance of T.O.B.’s admission, the
court cited the constitutional and other rights given up by T.O.B. through the court’s
acceptance of his admission. The court also identified the consequences T.O.B. faced,
including continued housing in a detention center, placement in the Ohio Department of
Youth Services, a restitution order, probation, and/or court costs.
{¶8} The juvenile court, at the September 25, 2012 disposition hearing, committed
T.O.B. to the Ohio Department of Youth Services for one year for the charge of
aggravated robbery. The court imposed an additional and consecutive three-year term
for the firearm specification. This appeal followed.
{¶9} T.O.B. asserts two assignments of error for this court’s review. He argues
that the juvenile court committed plain error and violated his rights to due process for
failing to substantially comply with Juv.R. 29. T.O.B. also asserts that he was denied
the effective assistance of counsel as a result of counsel’s failure to object to the court’s
violation of Juv.R. 29. For the following reasons, we sustain T.O.B.’s first assignment
of error.
{¶10} Initially, T.O.B. never objected to the plea colloquy with the juvenile court.
He, therefore, waived this argument on appeal absent plain error. “Plain errors or
defects affecting substantial rights may be noticed although they were not brought to the
attention of the court.” Crim.R. 52(B).
{¶11} “Notice of plain error under Crim.R. 52(B) is to be taken with the utmost
caution, under exceptional circumstances and only to prevent a manifest miscarriage of
justice.” State v. Long, 53 Ohio St. 2d 91, 97, 372 N.E.2d 804 (1978). “The plain error
test requires that, but for the existence of the error, the result of the trial would have been
otherwise.” State v. Wiles, 59 Ohio St. 3d 71, 86, 571 N.E.2d 97 (1991).
{¶12} Juv.R. 29(B)(2) requires the juvenile court to inform the parties of the
substance of the complaint, the purpose of the hearing, and possible consequences of the
hearing, including the possibility that the cause may be transferred to the appropriate adult
court under Juv.R. 30 where the complaint alleges that a child 14 years of age or over is
delinquent by conduct that would constitute a felony if committed by an adult. Pursuant
to Juv.R. 29(D)(1), the court may refuse to accept an admission and shall not accept an
admission without addressing the party personally and determining that the party is
making the admission voluntarily with understanding of the nature of the allegations and
the consequences of the admission.
{¶13} Juv.R. 29 is analogous to Crim.R. 11 because both rules require a court to
personally address the offender on the record to ensure that the admission or guilty plea is
entered voluntarily, intelligently, and knowingly. In re McKenzie, 102 Ohio App. 3d
275, 277, 656 N.E.2d 1377 (8th Dist.1995). The juvenile court has an affirmative duty
under Juv.R. 29(D) to “determine that the [juvenile], and not merely the attorney,
understands the nature of the allegations and the consequences of entering the
admission.” In re Beechler, 115 Ohio App. 3d 567, 571, 685 N.E.2d 1257 (4th
Dist.1996).
{¶14} Although 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, 874 N.E.2d
1177, ¶ 113. In the context of juvenile delinquency proceedings, “[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 prejudicial effect necessitating a reversal of the
adjudication so that the juvenile may plead anew. In re Smith, 3d Dist. No. 14-05-33,
2006-Ohio-2788, ¶ 14, citing In re Doyle, 122 Ohio App. 3d 767, 772, 702 N.E.2d 970 (2d
Dist.1997).
{¶15} “A defendant need not be informed of every element of the charge brought
against him, but he must be made aware of the ‘circumstances of the crime.’” In re
Wood, 9th Dist. No. 04CA0005-M, 2004-Ohio-6539, ¶ 18, quoting State v. Lane, 11th
Dist. Nos. 97-A-056, 97-A-0057, and 97-A-0058, 1999 Ohio App. LEXIS 5490 (Nov. 19,
1999). When a juvenile is represented by counsel or when the juvenile is served with a
copy of the complaint, there is a presumption that the juvenile has been apprised of the
nature of the charge. Id. at ¶ 18, citing In re Argo, 5th Dist. No. CT2003-055,
2004-Ohio-4938, and Bousley v. U.S., 523 U.S. 614, 618, 118 S. Ct. 1604, 140 L. Ed. 2d
828 (1998).
{¶16} Whether the juvenile court substantially complied with Juv.R. 29(D)
presents an issue of law reviewed on appeal de novo. In re C.K., 4th Dist. No. 07CA4,
2007-Ohio-3234, ¶ 15; In Matter of Beckert, 8th Dist. No. 68893, 1996 Ohio App. LEXIS
3319, *4 (Aug. 8, 1996). A juvenile court does not substantially comply with Juv.R.
29(D)(1) when it fails to review the elements of an offense or inquire whether the juvenile
understands “the nature of the offense prior to accepting his admission, even though the
prosecutor recited the evidence constituting the offense at the court’s direction, in the
juvenile’s presence, and prior to the acceptance of the juvenile’s admission.” In re T.N.,
3d Dist. No. 14-12-13, 2013-Ohio-135, ¶ 14, citing In re S.M., 8th Dist. No. 91408,
2008-Ohio-6852. A court also fails to substantially comply with Juv.R. 29(D)(1) when
it does not inform the juvenile of his possible term of commitment prior to accepting the
admission. In re Holcomb, 147 Ohio App. 3d 31, 2002-Ohio-2042, 768 N.E.2d 722,
*36-37 (8th Dist.).
{¶17} Here, the juvenile court’s Juv.R. 29(D) colloquy was totally deficient to
ensure that T.O.B. entered his admission voluntarily, intelligently, and knowingly.
Rather than specifying a criminal charge, the court referred to “the charges either as
amended or as presented originally as specifically stated by the State’s Attorney through
the Prosecutor’s Office and through your attorney indicating the same.” The court,
therefore, neither explained the factual basis for the charge nor its elements as required
under Juv.R. 29(D)(1). The presumption that T.O.B.’s counsel informed him of the
nature of the charges does not trump a court’s failure to affirmatively determine T.O.B.,
and not merely his attorney or those of the state, understood the nature of the allegations
and the consequences of entering his admission. Wood at ¶ 18. See Beechler at 571.
Because the court failed to explain the criminal charges, we are not persuaded that T.O.B.
understood the nature of the allegations against him. Additionally, the court completely
failed to mention any of the possible consequences facing T.O.B. or the rights being
waived by him, until after his admission to a first-degree felony. This weighs heavily
toward finding a lack of substantial compliance in this case. See In re Keeling, 3d Dist.
No. 1-09-51, 2010-Ohio-1713.
{¶18} Given the deficient nature of the colloquy, the juvenile court did not
substantially comply with Juv.R. 29(D), depriving T.O.B. of his procedural due process
rights, which constitutes plain error. The court’s failure to substantially comply with
Juv.R. 29(D) had a prejudicial effect upon T.O.B., necessitating a reversal of the
adjudication so that he may plead anew. C.S., 115 Ohio St. 3d 267, 2007-Ohio-4919,
874 N.E.2d 1177, ¶ 112; In re Smith, 3d Dist. No. 14-05-33, 2006-Ohio-2788, ¶ 14, citing
Doyle, 122 Ohio App. 3d at 772, 702 N.E.2d 970.
{¶19} While it is true that the state apprised T.O.B. of the details of the charges at
the commencement of trial on August 23, 2012, this does not correct the juvenile court’s
failure to substantially comply with Juv.R. 29 on September 4, 2012, when T.O.B.
actually entered an admission. The court’s recitation of rights at an earlier hearing does
not correct the court’s subsequent failure to address the charges as more than “charges,”
or its subsequent failure to address the consequences, both the waiver of rights and
potential penalties, until after the admission. See In re E.L., 8th Dist. No. 90848,
2010-Ohio-1413. “The provisions of Juv.R. 29(D) specify that the juvenile must be
made aware of the consequences of his admission before that admission is accepted. A
trial court cannot retroactively cure its omission under this rule by informing the juvenile
after the fact.” In re Jones, 4th Dist. No. 99 CA 4, 2000 Ohio App. LEXIS 1753,
*15-16 (Apr. 13, 2000); see also Keeling.
{¶20} T.O.B.’s first assignment of error is sustained. This ruling renders moot
his second assignment of error.
{¶21} Judgment reversed. All other cases nolled or dismissed as a result of this
admission are hereby reinstated. This cause is remanded and returned to the trial court
for further proceedings from the point where the trial was interrupted, that is, prior to
T.O.B.’s admission. State ex rel. Stevenson v. Murray, 69 Ohio St. 2d 112, 113, 431
N.E.2d 324 (1982).
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
MELODY J. STEWART, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR