In re C.C. , 2011 Ohio 1879 ( 2011 )

[Cite as In re C.C., 2011-Ohio-1879.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
IN THE MATTER OF: :
C.C. : Case No. 10CA44
ADJUDICATED DELINQUENT CHILD. : DECISION AND JUDGMENT ENTRY
:
______________________________________________________________
APPEARANCES:
COUNSEL FOR APPELLANT: Paul David Knipp, 311 South Third Street, P.O. Box 4630,
Ironton, Ohio 45638
COUNSEL FOR APPELLEE: J.B. Collier, Jr., Lawrence County Prosecuting Attorney,
and Kevin J. Waldo, Lawrence County Assistant
Prosecuting Attorney, Lawrence County Courthouse, 1
Veteran’s Square, Ironton, Ohio 45638
_________________________________________________________________
CIVIL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED: 4-11-11
ABELE, J.
{¶ 1} This is an appeal from a Lawrence County Common Pleas Court,
Probate-Juvenile Division, judgment that revoked probation previously imposed on C.C. (dob
8-18-93), and committed him to the Lawrence County Juvenile Center's care. Appellant’s
counsel has advised us that he has reviewed the record and can discern no meritorious claims on
appeal. Thus, pursuant to Anders v. California (1967), 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d
493, counsel requests, and we hereby grant, leave to withdraw. Appellate counsel further
suggests, however, the following “potential assignments of error” that may warrant examination:
LAWRENCE, 10CA44 2
FIRST ASSIGNMENT OF ERROR:
“WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
WHEN IT FOUND C.C. DELINQUENT IN VIOLATION OF
THE TERMS OF HIS PROBATION WHEN THE TESTIMONY
COULD NOT ESTABLISH THAT HE WAS INTOXICATED[.]”
SECOND ASSIGNMENT OF ERROR:
“WHETHER C.C.’S RIGHT TO PHONE CONTACT WITH HIS
FATHER, PURSUANT TO JUV.R. 7(E)(2), WAS IMPROPERLY
DENIED[.]”
THIRD ASSIGNMENT OF ERROR:
“WHETHER C.C.’S DUE PROCESS RIGHTS, AS PROVIDED
BY THE 5TH AMENDMENT TO THE U.S. CONSTITUTION,
WERE VIOLATED WHEN THE TRIAL COURT PROCEEDED
TO TRIAL ON THE MOTION TO REVOKE C.C.’S
PROBATION AFTER DISMISSING [TWO OTHER CASES
FILED AGAINST HIM.]”
FOURTH ASSIGNMENT OF ERROR:
“WHETHER C.C.’S TRIAL COUNSEL WAS INEFFECTIVE.”
{¶ 2} On May 7, 2010, a complaint was filed that alleged C.C. to be a delinquent child
for having punched another boy at school in violation of R.C. 2152.02(F)(2) & R.C. 2903.13.
C.C. was later adjudicated a delinquent child. The trial court, inter alia, sentenced C.C. to serve
six months community control (probation). One condition of community control is a prohibition
from using drugs or alcohol.
{¶ 3} On September 3, 2010, C.C.’s probation officer requested community control be
revoked because he admitted to alcohol use. At the hearing to consider the request, Greg
Bowman, Assistant Principal at Collins Career Center, and Charles Hammond, Forensic Science
LAWRENCE, 10CA44 3
Teacher at the School, testified that they spoke with C.C. one day at school and he admitted to
drinking alcohol. Although Hammond could not say whether C.C. was actually intoxicated at
the time of the interview, he related that C.C. admitted to drinking vodka the previous night.
{¶ 4} The trial court adjudicated C.C. a delinquent child for the probation violation
and sentenced him to “a period of six month rehab” at the Lawrence County Juvenile Center.
This appeal followed.
I
{¶ 5} In the first potential assignment of error, counsel asserts that the trial court might
have erred by finding that C.C. violated probation because insufficient evidence supported the
finding that he was intoxicated when he spoke to Bowman and Hammond. Although we agree
that the evidence concerning intoxication is inconclusive, we disagree that this is the reason that
he violated his probation.
{¶ 6} The terms of probation prohibited C.C. from using alcohol. Whether he was
intoxicated when he spoke to Bowman and Hammond is irrelevant. C.C. admitted to two school
officials that he consumed alcohol, and told Hammond that the alcohol was vodka. This is
sufficient to find that C.C. violated the terms of his probation. Thus, the first potential
assignment of error is without merit.
II
{¶ 7} The second potential assignment of error suggests that C.C. may have been denied
“his right to phone contact with his father, pursuant to Juv.R. 7(E)(2).” This rule provides that
when a child has been admitted to detention or shelter care the admissions officer shall, inter alia,
“[a]dvise the child of the right to telephone parents . . .” Id. We, however, reject this potential
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assignment of error for two reasons.
{¶ 8} First, we find no evidence that C.C. was admitted to a detention facility during the
pendency of the trial court proceedings, and he makes no mention of any such admission in his
brief's statement of facts. Second, even if we assume C.C. was admitted to a detention facility,
and if we further assume that he was denied phone contact with his father, we fail to see how this
would negate a probation violation. Thus, the second potential assignment of error is without
merit.
III
{¶ 9} In his third possible assignment of error, appellate counsel suggests that C.C.’s
Fifth Amendment right to “due process” may have been violated when hearing on the motion to
revoke probation occurred after the prosecutor dismissed two other cases. We disagree with this
view, however. C.C., his father and trial counsel all knew that the motion was to be heard that
day. There is no indication of surprise and we see no prejudice. It is true that the two
additional delinquency charges against C.C. were dismissed, but this would appear inure to his
benefit rather than his detriment. For these reasons, we find no merit to this potential
assignment of error.
IV
{¶ 10} The fourth potential assignment of error suggests that C.C. may have received
constitutionally ineffective assistance from trial counsel. Our analysis begins with the premise
that defendants have a right to counsel, including a right to the effective assistance from counsel.
McMann v. Richardson (1970), 397 U.S. 759, 771, 25 L. Ed. 2d 763, 90 S. Ct. 1441; State v.
Lytle (Mar. 10, 1997), Ross App. No. 96CA2182. To establish constitutionally ineffective
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assistance of counsel, a defendant must show (1) that his counsel's performance was deficient,
and (2) that such performance prejudiced the defense and deprived him of a fair trial. See
Strickland v. Washington (1984), 466 U.S. 668, 687, 80 L.Ed .2d 674, 104 S. Ct. 2052; also see
State v. Issa (2001), 93 Ohio St. 3d 49, 67, 752 N.E.2d 904.
{¶ 11} Appellate counsel does not point to any specific action or inaction that may
constitute ineffective assistance and we have found nothing of the sort from our review of the
record. Thus, the fourth potential assignment of error is thus without merit.
{¶ 12} Having reviewed the record for potential errors, as well as the potential errors that
appellate counsel suggests, and having found no merit in these allegations, we hereby affirm the
trial court's judgment.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the judgment be affirmed and that appellee recover of appellant the costs
herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Lawrence County
Common Pleas Court, Probate Juvenile Division, to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is
continued for a period of sixty days upon the bail previously posted. The purpose of said stay is
to allow appellant to file with the Ohio Supreme Court an application for a stay during the
pendency of the proceedings in that court. The stay as herein continued will terminate at the
expiration of the sixty day period.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio
Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to
the expiration of said sixty days, the stay will terminate as of the date of such dismissal.
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A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Harsha, P.J. & Kline, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the
time period for further appeal commences from the date of filing with the clerk.
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