In re J.K.O. ( 2021 )

[Cite as In re J.K.O., 2021-Ohio-1215.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
IN RE: J.K.O. :
:
: Appellate Case No. 28899
:
: Trial Court Case Nos. 2019-3814 and
: 2020-909
:
: (Appeal from Common Pleas Court-
: Juvenile Division)
:
...........
OPINION
Rendered on the 9th day of April, 2021.
...........
MATHIAS H. HECK, JR., by JAMIE J, RIZZO, Atty. Reg. No. 0099218, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Appellee, State of Ohio
KEITH A. FRICKER, Atty. Reg. No. 0037355, 10 North Ludlow Street, Suite 920, Dayton,
Ohio 45402
Attorney for Appellant, J.K.O.
.............
TUCKER, P.J.
-2-
{¶ 1} J.K.O. was adjudicated delinquent for committing acts which, if committed by
an adult, would constitute the offenses of rape and kidnapping. He appeals, asserting
that the juvenile court erred by failing to give him credit for the time he was incarcerated
pending disposition. We conclude the court did not err in its denial of credit for time
served. However, the juvenile court did err by failing to include in the commitment order
that J.K.O. was entitled to zero days of jail time credit.
I. Factual and Procedural Background
{¶ 2} In 2018, J.K.O. was adjudicated delinquent after committing an act that would
constitute rape of a child under the age of 13 if he were an adult. He was committed to
the Ohio Department of Youth Services (“DYS”), but the sentence was suspended.
J.K.O. was placed on probation, the terms of which required him to attend treatment in a
facility located in Columbus.
{¶ 3} It was subsequently discovered that J.K.O. had committed offenses against
a second child. In August 2019, J.K.O. was charged by complaint with two counts of
gross sexual imposition and one count of kidnapping. In November 2019, an amended
complaint was filed which added a charge of rape in relation to the same victim.
{¶ 4} J.K.O. was also charged with violating the terms of his probation in the 2018
case.1 On January 28, 2020, a hearing was conducted during which J.K.O. admitted
violating the terms of his probation in the 2018 case. The juvenile court found him in
violation, and it entered the following order:
The Juvenile is remanded pursuant to Juvenile Rule 7. Continuation of
1
The 2018 case is not part of the record before us. Thus, any information we have
regarding that case is gleaned from the parties’ briefs and an order of the juvenile court
filed on January 28, 2020, which pertains to both the 2018 and 2019 cases.
-3-
residence in the home is contrary to the welfare and removal is in the best
interest of the child. The child is hereby placed in and ordered to complete
the cognitive rehabilitation program through JCARE-STP, the Juvenile
Cognitive Alternative Rehabilitation Effort as a condition of the suspension
of his commitment to the custody of the ODYS, or until further order of this
Court; the JCARE-STP Program shall prepare and present to the assigned
Judge a Report and Recommendation on the child’s progress in JCARE no
later than three (3) business days prior to a review hearing.
A review hearing was scheduled for April 27, 2020.
{¶ 5} On February 27, 2020, J.K.O. was charged by complaint with rape of a third
child. On March 4, 2020, J.K.O. entered an admission to one count of rape and one
count of kidnapping in the 2019 case. He also entered an admission to the sole count
of rape in the 2020 case.
{¶ 6} A disposition hearing on the 2019 and 2020 cases was conducted on August
10, 2020, at which time the juvenile court committed J.K.O. to the Ohio Department of
Youth services for a minimum term of 18 months on each count and a maximum term not
to exceed his attainment of age 21. The court ordered the three sentences to run
consecutively for a minimum commitment term of 54 months. The placement in JCARE
was terminated.
{¶ 7} J.K.O. appeals.
II. Jail Time Credit Analysis
{¶ 8} The sole assignment of error asserted by J.K.O. states:
-4-
THE TRIAL COURT ERRED IN NOT GRANTING THE JUVENILE CREDIT
FOR TIME SERVED IN DETENTION AND TREATMENT FACILITY
CENTER WHILE AWAITING DISPOSITION.
{¶ 9} J.K.O. claims that the time he was in the custody from January 28, 2020, until
the disposition date of his 2019 and 2020 offenses on August 10, 2020, should have been
credited against the minimum commitment term for those offenses. In support, he cites
R.C. 2152.18(B), which states, in pertinent part, as follows:
When a juvenile court commits a delinquent child to the custody of the
department of youth services pursuant to this chapter, the court shall state
in the order of commitment the total number of days that the child has been
confined in connection with the delinquent child complaint upon which the
order of commitment is based. The court shall not include days that the
child has been under electronic monitoring or house arrest or days that the
child has been confined in a halfway house. The department shall reduce
the minimum period of institutionalization that was ordered by both the total
number of days that the child has been so confined as stated by the court
in the order of commitment and the total number of any additional days that
the child has been confined subsequent to the order of commitment but prior
to the transfer of physical custody of the child to the department.
(Emphasis added.)
{¶ 10} In the case of In re O.H., 4th District Washington No. 09CA38, 2010-Ohio-
1244, the Fourth Appellate District analyzed a R.C. 2152.18(B) jail-time credit issue
similar to the one presented in J.K.O.’s appeal. In 2007, O.H. was adjudicated
-5-
delinquent by reason of committing an assault against a teacher. The juvenile court
committed O.H. to DYS but suspended the sentence, provided that O.H. complied with
the terms of his probation.
{¶ 11} In July 2009, a complaint was filed against O.H. alleging that he committed
an act against his sister that would constitute the offense of domestic violence if he were
an adult; O.H. was placed in detention pending resolution of that charge. Thereafter, a
complaint for probation violation was filed, alleging that O.H had violated the terms of his
probation in the prior assault case by committing the domestic violence offense. No
detention hearing was conducted on the probation violation.
{¶ 12} In September 2009, the juvenile court conducted a hearing on both the
domestic violence charge and the probation violation. O.H. admitted to the domestic
violence charge and was adjudicated delinquent. The juvenile court admonished O.H.
but did not impose any further punishment regarding the domestic violence offense.
O.H. also admitted to the probation violation. The juvenile court revoked his probation
and imposed the sentence previously imposed for the 2007 assault case. O.H. claimed
he was entitled to credit for time served on the assault adjudication while awaiting
adjudication on the domestic violence charge. But the juvenile court did not credit O.H.
with the requested jail-time credit.
{¶ 13} On appeal, the court noted that the “Supreme Court of Ohio has found that
a juvenile is entitled to credit for time spent in detention while awaiting the final disposition
of an alleged probation violation because this detention ‘relates back to the complaint of
delinquency and is in “connection with” that complaint[.]’ ” In re O.H., 4th Dist.
Washington No. 09CA38, 2010-Ohio-1244, at ¶ 10, citing In re Thomas, 100 Ohio St. 3d
-6-
89, 2003-Ohio-5162, 796 N.E.2d 908, ¶ 13. “Such detention goes to the original
disposition in the case and is sufficiently linked to the adjudication of the original charges
that credit is required by the statutory language.” Id. “And although the Thomas Court
reached these conclusions by analyzing former R.C. 2151.355(F)(6), the Court clearly
intended its holding to also apply to R.C. 2152.18(B) -- the current, similarly worded
statute.” Id., citing Thomas at ¶ 11, fn. 1.
{¶ 14} In re O.H. went on to conclude that, although the probation violation and the
new domestic violence offense were factually related in that the probation violation was
based upon the commission of the new domestic violence offense, the new domestic
violence offense was separate from the original assault and carried with it the risk of a
separate sentence. Id. at ¶ 11. Thus, the Fourth District concluded the juvenile court
properly denied any credit for time served in connection with the domestic violence case
against the sentence imposed on the assault case.2
{¶ 15} Here, the record shows J.K.O. was taken into custody on January 28, 2020,
following his admission to violating the terms of probation imposed in the 2018 case.
There is nothing in this record to indicate that this detention was related to the 2019 or
the 2020 cases. In fact, the record does not contain any order reflecting that J.K.O. was
detained in connection with those later cases until after the court conducted the
disposition hearing and imposed the minimum 54-month commitment. After imposing
sentences for the 2019 and 2020 cases, the court terminated the requirement that J.K.O.
participate in JCARE regarding the 2018 case.
2
The Supreme Court of Ohio has stated that the issue in O.H. was correctly decided.
See In re D.S., 148 Ohio St. 3d 390, 2016-Ohio-7369, 71 N.E.3d 223, ¶ 18, fn. 1.
-7-
{¶ 16} Based upon this record, as well as the above-cited relevant statutory
language and case law, we conclude that the juvenile court did not err in failing to credit
J.K.O. for the time spent in detention related to the probation violation in the 2018 case
against the sentences imposed in the 2019 and 2020 cases.
{¶ 17} The first assignment of error is overruled.
{¶ 18} However, as conceded by the State, we note that the order of commitment
in the 2019 and 2020 cases does not set forth “the total number of days that the child has
been confined in connection with the delinquent child complaint upon which the order of
commitment is based.” In this case, that number was zero, but the statute mandates the
inclusion of that number in the commitment order. Thus, we will remand this matter to
the juvenile court for the issuance of a nunc pro tunc order correcting what appears to be
simply a clerical error.
III. Conclusion
{¶ 19} The judgment of the trial court is affirmed, but we remand to the trial court
for the filing of a nunc pro tunc commitment order correcting a clerical error identified in
this opinion.
.............
DONOVAN, J. and HALL, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Jamie J. Rizzo
Keith A. Fricker
Hon. Helen Wallace