In re Haggard , 2009 Ohio 3821 ( 2009 )

[Cite as In re Haggard, 2009-Ohio-3821.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
IN THE MATTER OF: CASE NO. 2-08-20
JEFFREY A. HAGGARD,
OPINION
ADJUDICATED DELINQUENT CHILD.
IN THE MATTER OF: CASE NO. 2-08-21
JEFFREY A. HAGGARD,
OPINION
ADJUDICATED DELINQUENT CHILD.
IN THE MATTER OF: CASE NO. 2-08-22
JEFFREY A. HAGGARD,
OPINION
ADJUDICATED DELINQUENT CHILD.
IN THE MATTER OF: CASE NO. 2-08-23
JEFFREY A. HAGGARD,
OPINION
ADJUDICATED DELINQUENT CHILD.
Case Nos. 2-08-20, 21, 22, 23
Appeal from Auglaize County Common Pleas Court
Juvenile Division
Trial Court Nos. 2007-DEL-373, 2008-DEL-0021,
2008-DEL-157 and 2008-DEL-158
Judgments Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: August 3, 2009
APPEARANCES:
Amanda J. Powell for Appellant
Darren L. Meade for Appellee
SHAW, J.
{¶1} Delinquent-Appellant Jeffery A. Haggard (“Jeffery”) appeals from
the October 27, 2008 Judgment Entry of the Court of Common Pleas of Auglaize
County, Juvenile Division finding that Jeffery had violated the terms and
conditions of his community control and probation and committing him to the
Ohio Department of Youth Services (“DYS”) for a minimum period of one year.
{¶2} This matter is a consolidated appeal stemming from four underlying
cases. In Case No. 2007 DEL 373 (“373”), Jeffrey was adjudicated delinquent
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based on one count of Assault in violation of R.C. 2903.13(A), a misdemeanor of
the first degree if committed by an adult, for striking another juvenile while at
school on October 11, 2007. Jeffrey was placed on community control and
intensive probation for an indefinite period based on his adjudication in Case No.
373.
{¶3} In Case No. 2008 DEL 106 (“106”), Jeffrey was found to be
delinquent based on one count of Burglary in violation of R.C. 2911.12(A)(3), a
felony of the third degree if committed by an adult and one count of Grand Theft
in violation of R.C. 2913.02(A)(2)(B)(2), a felony of the fourth degree if
committed by an adult. These charges were based on an incident committed on
February 29, 2008 involving the theft of some trading cards. Once adjudicated
delinquent in Case No. 106, Jeffrey was committed to DYS for a minimum period
of one year not to exceed the attainment of his 21st birthday. It appears from the
record that his adjudication was suspended and Jeffrey remained on community
control and probation.
{¶4} In Case No. 2008 DEL 157 (“157”), Jeffrey was found to be a
delinquent child based on the charges of Theft in violation of R.C. 2913.02(A)(2),
a misdemeanor of the first degree if committed by an adult and Criminal Mischief
in violation of R.C. 2909.07(A)(1), a misdemeanor of the third degree if
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committed by an adult, based on the theft of a bicycle from a Wal-Mart parking lot
committed on April 19, 2008.
{¶5} In Case No. 2008 DEL 158 (“158”), Jeffrey was found to be a
delinquent child based on the charge of use of air guns in the city of Wapakoneta
in violation of Wapakoneta City Ordinance 672.095(a), a minor misdemeanor if
committed by an adult. The offense was committed on April 13, 2008.
{¶6} Case Nos. 157 and 158 were adjudicated on May 1, 2008. At the
same time, it appears that there was a hearing on a community control violation
stemming from Jeffrey’s community control sanctions imposed in Case Nos. 373
and 106. This Court was not provided with a record of these proceedings.
However, as is evidenced from the May 1, 2008 Entry, the juvenile court found
Jeffrey to be a delinquent child as well as a community control and probation
violator and ordered Jeffrey committed to DYS for the minimum period of one
year to a maximum period not to exceed Jeffrey’s attainment of age 21.
{¶7} Instead of committing Jeffrey directly to DYS, the juvenile court
suspended Jeffrey’s DYS commitment upon Jeffrey’s acceptance to the West
Central Juvenile Rehabilitation Center (“WCJR”) and his successful completion of
the WCJR program.
{¶8} On May 14, 2008 Jeffrey was placed on probation with placement at
WCJR. On October 20, 2008 an affidavit was filed by Jeffrey’s Probation Officer
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alleging that Jeffrey violated the terms of his community control and probation by
failing to complete the program at WCJR. Jeffrey was terminated from the
program at WCJR on October 19, 2008 due to a suicide attempt.
{¶9} On October 21, 2008 a hearing was held on the alleged community
control and probation violation. At the October 21, 2008 hearing, Jeffery admitted
to violating the terms of his community control and probation. The matter was
continued for disposition until October 24, 2008.
{¶10} In an October 27, 2008 Judgment Entry the juvenile court committed
Jeffrey to DYS for a minimum period of one year.
{¶11} Jeffery now appeals, asserting three assignments of error.
ASSIGNMENT OF ERROR I
THE TRIAL COURT VIOLATED JEFFREY HAGGARD’S
RIGHT TO COUNSEL AND TO DUE PROCESS UNDER
THE FIFTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION, SECTION 16, ARTICLE
1 OF THE OHIO CONSTITUTION, OHIO REVISED CODE
SECTION 2151.352, AND JUVENILE RULES 2, 4, AND 29.
ASSIGNMENT OF ERROR II
JEFFREY HAGGARD’S ADMISSION TO HIS PROBATION
VIOLATION WAS NOT KNOWING, INTELLIGENT, AND
VOLUNTARY IN VIOLATION OF THE FIFTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION, ARTICLE I, SECTIONS 10 AND 16 OF
THE OHIO CONSTITUTION, AND JUVENILE RULE 29.
ASSIGNMENT OF ERROR III
THE JUVENILE COURT VIOLATED JEFFREY
HAGGARD’S RIGHT TO DUE PROCESS OF LAW AS
GUARANTEED BY THE FIFTH AND FOURTEENTH
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AMENDMENTS TO THE UNITED STATES
CONSTITUTION; ARTICLE I, SECTION 16 OF THE OHIO
CONSTITUTION; AND JUV. R. 35, WHEN IT FAILED TO
FOLLOW THE REQUIREMENTS OF JUV. R. 35(B).
{¶12} For ease of discussion, we elect to address Jeffrey’s assignments of
error out of order.
Third Assignment of Error
{¶13} In his third assignment of error, Jeffrey argues that the trial court
violated his due process rights when it imposed a suspended commitment without
finding Jeffrey had violated a condition of probation of which he had been
notified. In particular, Jeffrey argues that he had not been specifically informed
that he was required not to commit suicide, not be demoted in the program at
WCJR, and to remain vested in the program.
{¶14} Notification of the conditions of probation is governed by Juv. R.
34(C) which provides that “ *** [i]n all cases where a child is placed on probation,
the child shall receive a written statement of the conditions of probation. If the
judgment is conditional, the order shall state the conditions. *** ” Moreover, Juv.
R. 35(B) controls probation revocation hearings. In re Nowak (1999), 133 Ohio
App.3d 396, 728 N.E.2d 411; In re Motley (1996), 110 Ohio App.3d 641, 674
N.E.2d 1268. Juv. R. 35(B) provides as follows:
The court shall not revoke probation except after a hearing at
which the child shall be present and apprised of the grounds on
which revocation is proposed. The parties shall have the right to
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counsel and the right to appointed counsel where entitled
pursuant to Juv. R. 4(A). Probation shall not be revoked except
upon a finding that the child has violated a condition of
probation of which the child had, pursuant to Juv. R. 34(C),
been notified.
{¶15} In the present case, Jeffrey was specifically informed in the juvenile
court’s May 1, 2008 Entry as follows:
Jeffrey’s commitment to detention and to the Ohio Department
of Youth Services will be suspended upon Jeffrey’s acceptance
into the West Central Juvenile Rehabilitation Center. The
Court will ORDER that Jeffrey be returned to the West Central
Juvenile Detention Center to be screened for admittance into the
West Central Juvenile Rehabilitation Center in lieu of the
Department of Youth Services commitment. Should Jeffrey be
accepted into that Program, his commitment will be with the
Rehabilitation Center where he will successfully undergo and
complete that program.
{¶16} No transcript of the April 30, 2008 hearing which was journalized in
the May 1, 2008 Entry was provided for this Court. Accordingly, we are bound by
a presumption of regularity, that what Jeffrey was told at that hearing was
mirrored in the May 1, 2008 Entry. State v. Miyamoto, 3rd Dist. No. 14-05-43,
2006-Ohio-1776 quoting Hartt v. Munobe (1993), 67 Ohio St.3d 3, 7, 615 N.E.2d
617, 1993-Ohio-177; State v. Pringle, 3rd Dist. No. 2-03-12, 2003-Ohio-4235, ¶
10.
{¶17} As noted by Jeffrey, it does not appear that Jeffrey was specifically
instructed that a suicide attempt would be considered a violation of his terms of
probation. Nonetheless, Jeffrey was informed that a condition of his probation
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was to successfully complete the WCJR program. Jeffrey was informed of this
condition in the May 1, 2008 Entry. Moreover, the October 20, 2008 motion for a
hearing on a community control violation and accompanying affidavit stated the
reasons why Jeffrey had been terminated from the WCJR program.
{¶18} Finally, the juvenile court informed Jeffrey at the beginning of the
October 21, 2008 hearing that the WCJR program was terminating him, as well as
the reasons he was being terminated. Therefore, based on the record before us, we
find that Jeffrey was informed of the terms of his probation in compliance with
Juv. R. 34(C) and Juv. R. 35(B). Accordingly, Jeffrey’s first assignment of error
is overruled.
Second Assignment of Error
{¶19} In his second assignment of error, Jeffrey argues that his admission
to his probation violation was not knowing, intelligent, and voluntary.
Specifically, Jeffrey argues that the juvenile court failed to comply with the
requirements of Juv. R. 29(D). Juvenile R. 29(D) provides, in pertinent part, as
follows:
The court may refuse to accept an admission and 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.
“An admission in a juvenile proceeding, pursuant to Juv.R. 29, is analogous to a
guilty plea made by an adult pursuant to Crim.R. 11 in that both require that a trial
court personally address the defendant on the record with respect to the issues set
forth in the rules.” In re C.S., 115 Ohio St.3d 267, 285, 874 N.E.2d 1177, 2007-
Ohio-4919 quoting In re Smith, Union App. No. 14-05-33, 2006-Ohio-2788. In
determining whether a trial court complied with the requirements of Crim. R. 11,
only substantial compliance is required. See State v. Nero (1990), 56 Ohio St.3d
106, 108, 564 N.E.2d 474. In In re C.S., the Ohio Supreme Court held that in a
juvenile delinquency case, the preferred practice is strict compliance with Juv.R.
29(D). In re C.S., 115 Ohio St.3d at 285.
[I]f the trial court substantially complies with Juv.R. 29(D) in
accepting an admission by a juvenile, the plea will be deemed
voluntary absent a showing of prejudice by the juvenile or a
showing that the totality of the circumstances does not support a
finding of a valid waiver. For purposes of juvenile delinquency
proceedings, substantial compliance means that in the totality of
the circumstances, the juvenile subjectively understood the
implications of his plea.
In re C.S., 115 Ohio St.3d at 285-286.
{¶20} In the present case, Jeffrey’s hearing began with the following
discussion between Jeffrey and the Court:
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The Court: *** The record reflects that an affidavit and motion
has been filed alleging that Jeffrey violated terms and conditions
of his community control probation in that he was ordered to
successfully undergo and complete the programming at the
West Central Juvenile Rehabilitation Center and on October
19th the Probation Department was notified that Jeffrey had
attempted suicide, had been demoted and was not vested in the
programming at West Central and therefore they were
recommending his termination. Jeffrey, do you understand what
it is you are alleged to have done here?
Jeffrey Haggard: Yes, Sir.
The Court: If the Court were to find that you are a probation
violator as this alleges, the following things can happen, your
protective supervision can be placed with the Department of Job
and Family Services; your temporary or permanent custody
placed with another person; you could be placed into a foster
home; you could be placed on community control probation for
an indefinite period of time; you could be ordered to make
restitution for any damages caused; you could be ordered to
perform up to five hundred (500) hours of community service;
be ordered to serve up to ninety (90) days in a detention center
in each of your four (4) cases, for a total of three hundred and
sixty (360) days; you could be fined up to fifty dollars ($50.00).
In Case No. 2008-106, your legal custody can be committed to
the Department of Youth Services for a minimum period of six
(6) months to a maximum period of the attainment of the age of
twenty-one (21) in each of your two (2) counts, for a total
minimum period of one (1) year to a maximum period of the
attainment of the age of twenty-one (21). You can be assessed
the court costs and if you have a driver’s license it can be
suspended or revoked. Do you understand the things that could
happen?
Jeffrey Haggard: Yes, Your Honor.
The Court: Any question about those things?
Jeffrey Haggard: No, I understand them.
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The Court: Are you sure?
Jeffrey Haggard: Yes, Sir.
(Tr.p. 3-4).
{¶21} As evidenced from the above discussion, Jeffrey was informed of
what he was admitting to, as well as the consequences of his admission in
compliance with Juv. R. 29(D)(1). Jeffrey was further informed as to what rights
he was giving up by entering an admission as follows:
The Court: Now on the probation violation that has been filed
here, you also have the right to have a trial. At the trial it would
be up to the Prosecuting Attorney’s Office to present evidence to
the Court that would convince the Court of your guilt of this
probation violation beyond a reasonable doubt. You would not
be required to prove or to disprove anything. Do you
understand that?
Jeffrey Haggard: Yes, Sir.
The Court: Now the way that works is that this matter would
be assigned to a trial date. At that time the Prosecuting
Attorney would call different people into court to testify as to
what’s in this probation violation. As those people testified you
would have the right to ask them any questions that you want to
ask them. Do you understand?
Jeffrey Haggard: Yes, Sir.
The Court: You would also have the right to call into court any
person that you want to have testify for you. And if that person
would not appear here on their own, you have the right to
request that the Court force them to appear. Do you
understand that?
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Jeffrey Haggard: Yes, Sir.
The Court: You would also have the right to testify on your
own behalf if you want to. However, you are not required to do
so, as no one can force you to be a witness against yourself. Do
you understand that?
Jeffrey Haggard: Yes, Sir.
The Court: Any question about any of that?
Jeffrey Haggard: No, Sir.
(Tr.p. 5-6).
{¶22} Based on the discussion between Jeffrey and the juvenile court, we
find that the juvenile court’s admonition more than substantially complied with the
requirements of Juv. R. 29. The juvenile court informed Jeffrey of all of the rights
that he was giving up, and then inquired as to Jeffrey’s understanding of those
rights. Moreover, Jeffrey’s own description of how he violated his probation
demonstrated his knowledge of the violation.
{¶23} Finally, Jeffrey seems to argue that the trial court was required to
inform him of the nature of the allegations and the consequences of admission
separately at the time of the admission, apart and in addition to informing him of
that information prior to accepting his waiver of counsel. However, we can find
nothing in Juv. R. 29 which supports Jeffrey’s argument. Accordingly, Jeffrey’s
second assignment of error is overruled.
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First Assignment of Error
{¶24} In his first assignment of error, Jeffrey argues that the trial court
violated his right to counsel and due process based on its failure to provide counsel
where Jeffrey was not counseled by his mother, to ascertain Jeffrey’s level of
literacy prior to obtaining a written waiver of counsel, and to provide counsel or
obtain a waiver of counsel at disposition.
{¶25} The Ohio Supreme Court has recognized that a juvenile has the right
to the assistance of counsel in juvenile court proceedings involving criminal
aspects. In re Anderson (2001), 92 Ohio St.3d 63, 66, 748 N.E.2d 67, 2001-Ohio-
131 citing In re Gault (1967), 387 U.S. 1, 31-57, 87 S.Ct. 1428, 18 L.Ed.2d 527.
Moreover, the Ohio Rules of Juvenile Procedure also provide for a right to counsel
in juvenile proceedings. Juvenile Rule 4(A) provides that “[e]very party shall have
the right to be represented by counsel[.]”
{¶26} The juvenile right to counsel is also codified in R.C. 2151.352 as
follows:
A child *** is entitled to representation by legal counsel at all
stages of the proceedings under this chapter or Chapter 2152. of
the Revised Code. *** If a party appears without counsel, the
court shall ascertain whether the party knows of the party's
right to counsel and of the party's right to be provided with
counsel if the party is an indigent person. The court may
continue the case to enable a party to obtain counsel, to be
represented by the county public defender or the joint county
public defender, or to be appointed counsel upon request
pursuant to Chapter 120. of the Revised Code. Counsel must be
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provided for a child not represented by the child's parent,
guardian, or custodian. If the interests of two or more such
parties conflict, separate counsel shall be provided for each of
them.
{¶27} In In re C.S., the Ohio Supreme Court revisited the issue of a
juvenile's right to counsel noting that “numerous constitutional safeguards
normally reserved for criminal prosecutions are equally applicable to delinquency
proceedings.” In re C.S., 115 Ohio St.3d at 275-276 citing State v. Walls, 96 Ohio
St.3d 437, 446, 775 N.E.2d 829, 2002-Ohio-5059.
{¶28} The Ohio Supreme Court has further said that “[w]e believe that the
fifth sentence of [R.C. 2151.352] reflects the General Assembly's understanding
that Gault held that the juvenile may waive his rights, including his right to
counsel, see Gault, 387 U.S. at 41-42, 87 S.Ct. 1428, 18 L.Ed.2d 527, and that it
codifies that right of waiver but only if the juvenile is advised by a parent in
considering waiver.” In re C.S., 115 Ohio St.3d at 281.
{¶29} To waive the right to counsel, an effective waiver must be voluntary,
knowing, and intelligent. In re C.S., 115 Ohio St.3d 283-284 citing State v. Gibson
(1976), 45 Ohio St.2d 366, 345 N.E.2d 399. To determine if a valid waiver of the
right to counsel has occurred, the court is to apply a totality-of-the-circumstances
test. In re C.S., 115 Ohio St.3d at 284; See, also, In re Ramon, 3rd Dist. No. 4-07-
03, 2007-Ohio-5768. In applying the totality of the circumstances test, a judge is
to consider the:
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age, intelligence, and education of the juvenile; the juvenile's
background and experience generally and in the court system
specifically; the presence or absence of the juvenile's parent,
guardian, or custodian; the language used by the court in
describing the juvenile's emotional stability; and the complexity
of the proceedings.
Id.{¶30} In addition to the application of the totality of the circumstances test
to determine whether counsel has been validly waived, the juvenile court must
also comply with procedural guidelines addressed in In re C.S. In determining the
appropriate form of a waiver of the right to counsel, the court specified that where
a juvenile is charged with a serious offense, the waiver of the right to counsel must
be made in open court, recorded, and in writing. In re C.S., 115 Ohio St.3d at 284.
This requirement is analogous to the requirement for adult offenders charged with
a serious offense. State v. Brooke, 113 Ohio St.3d 199, 863 N.E.2d 1024, 2007-
Ohio-1533 (The Brooke Court defined a serious offense as one where the penalty
includes confinement of more than six months. The court also required that the
written waiver be filed with the trial court).
{¶31} In addition to the execution of a valid waiver in form, prior to the
commencement of an adjudicatory hearing, the juvenile court must also comply
with the requirements of Juv. R. 29. This Court has recognized that upon the
commencement of an adjudicatory hearing against a juvenile, Juv.R. 29(B)
requires the court to do the following:
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(1) Ascertain whether notice requirements have been
complied with and, if not, whether the affected parties waive
compliance;
(2) 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 fifteen years of age or
over is delinquent by conduct that would constitute a felony if
committed by an adult;
(3) Inform unrepresented parties of their right to counsel
and determine if those parties are waiving their right to counsel;
(4) Appoint counsel for any unrepresented party under
Juv.R. 4(A) who does not waive the right to counsel;
(5) Inform any unrepresented party who waives the right to
counsel of the right: to obtain counsel at any stage of the
proceedings, to remain silent, to offer evidence, to cross examine
witnesses, and upon request, to have a record of all proceedings
made, at public expense if indigent.
In re Kimble (1996), 114 Ohio App.3d 136, 139-140, 682 N.E.2d 1066. The Ohio
Supreme Court confirmed this application of Juv. R. 29. In re C.S., 115 Ohio St.3d
at 285.
{¶32} In Kimble this Court further recognized that “[t]his rights dialogue is
mandatory, and failure to advise the child of these constitutionally afforded
protections constitutes reversible error.” In re Kimble, 114 Ohio App.3d at 140
citing In re Smith (1991), 77 Ohio App.3d 1, 601 N.E.2d 45. The C.S. court
adopted the position of many appellate districts holding that “[w]hile the failure to
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inform a juvenile of her rights under Juv. R. 29(B) constitutes reversible error, this
court has required only substantial compliance with the rule.” In re C.S., 115 Ohio
St.3d at 285 citing In re Bays, Green App. Nos.2002-CA-52 and 20020-CA-56,
2003-Ohio-1256.
{¶33} Although we note that the hearing in the present case was a
probation revocation hearing, the Ohio Supreme Court has held that
[a] probation revocation hearing is an adjudicatory hearing,
which is held to determine whether a child is delinquent as
defined by R.C. 2152.02(F)(2); therefore, both Juv.R. 29, setting
forth the procedure for adjudicatory hearings, and Juv.R. 35(B),
setting forth the procedure for the revocation of probation, are
applicable to the hearing.
In re L.A.B., 121 Ohio St.3d 112, 902 N.E.2d 471, 2009-Ohio-354, at syllabus.
{¶34} In the present case, prior to Jeffrey’s adjudication as a probation
violator, the following discussion occurred between Jeffrey and the juvenile court:
The Court: Now throughout the course of these proceedings,
you have the right to have an attorney represent you. If you
cannot afford an attorney one can be appointed to represent you
at little or no cost to you. Do you understand that?
Jeffrey Haggard: Yes, Sir.
The Court: Do you want to go forward today without an
attorney or would you like to have time to talk with an attorney
first?
Jeffrey Haggard: I’ll go without an attorney, Sir.
The Court: Jeffrey, Ms. Lee is gonna give you a piece of paper
which is your written waiver of your right to an attorney. I
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want you to read it. If you do agree with it, sign it at the bottom
where it says “Juvenile” and then give it to your mother for her
review and if she agrees then she can sign it as well. (Jeffrey and
his mother complying.) Now even though you’ve signed that
Jeffrey, if at any time you change your mind and decide you
want an attorney all you have to do is tell me, alright?
Jeffrey Haggard: Yes, Sir.
(Tr.p. 3-6).
{¶35} Despite Jeffrey’s contention to the contrary, on appeal, we cannot
find that he was not counseled by a parent when he decided to waive counsel.
Jeffrey’s mother was clearly present at the time the waiver was signed and co-
signed the waiver, thus providing a clear indication that she agreed that waiving
counsel was the correct decision for Jeffrey. Moreover, nothing in the record
indicates that either Jeffrey or his mother needed additional time to discuss his
waiver or that either objected to waiving counsel. Nevertheless, Jeffrey relies on
several cases for the proposition that his consultation with his mother was
insufficiently demonstrated on the record to support a finding of a valid waiver of
the right to counsel.
{¶36} The Ohio Supreme Court has recognized the right of children to be
counseled by a parent and further stated that, when determining the validity of a
waiver, “[t]hough it is not dispositive, a key factor in the totality of the
circumstances is the degree to which the juvenile's parent is capable of assisting
and willing to assist the juvenile in the waiver analysis. The juvenile court judge
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must be aware that not all parents may sufficiently counsel and advise, that is,
“represent,” their child in a delinquency proceeding.” In re C.S., 115 Ohio St.3d
at 284. However, in In re C.S., although the court noted some circumstances
where a parent could not effectively advise a child, the court made no
requirements for putting a parent’s advisements on the record before the Court.
{¶37} In In re L.A.B. 121 Ohio St.3d at 121, the Ohio Supreme Court
appears to conclude that where a parent has adverse interests to that of the child,
the parent’s presence is nullified, with respect to the parent’s ability to help a child
waive counsel. However, as the dissent in In re L.A.B. concludes, making these
determinations is difficult and can require a reviewing court to assign interests to
the involved parties. The dissent in In re L.A.B. observes that the Ohio Supreme
Court only nullifies the presence of the parent, in In re L.A.B., due to the court’s
own conclusion that the parent and child had adverse interests because the parent
openly stated a preference in favor of sending the child to DYS where probation
had been unsuccessful, a preference the majority assumed was contrary to
L.A.B.’s best interests – an assumption criticized by the dissent.
{¶38} Jeffrey would also have us rely on a Second Appellate District case
in which the appellate court found an invalid waiver of counsel because the
parents were not in a position to render meaningful advice. In In re T.B., 2nd Dist.
No. 2008CA83, 2009-Ohio-2551, T.B.’s parents stated that they could not afford
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an attorney, and that when they had previously requested counsel for T.B., it had
caused significant financial strain for the family. Again, this is another case where
a reviewing court was able to affirmatively conclude from the record that child
and parent had adverse interests, and therefore, the parents were not in a position
to offer meaningful advice to the child. These cases are distinguishable from the
case at hand, where nothing in the record indicates that Jeffrey’s mother was not in
a position to offer meaningful advice to Jeffrey.
{¶39} Therefore, while we recognize the potential for a conflict of interest
between a parent and a child when waiving counsel, we are not willing to create a
rule that would presume such a conflict in the absence of any indication of conflict
in the record. Therefore, in this case, we cannot find Jeffrey’s waiver of counsel
invalid based upon the mere allegation on appeal of the failure to be counseled by
a parent.
{¶40} Jeffrey also alleges that his waiver of counsel did not comply with
the mandates of Juv. R. 29(B)(1)-(5). However, as evidenced by the portions of
the record excerpted above, the trial court ascertained that the notice requirements
were met, informed Jeffrey of what the hearing would involve and the possible
consequences of the hearing, informed Jeffrey and his mother of the right to
counsel and obtained a valid waiver, informed Jeffrey that he could obtain counsel
at any time in the proceedings, and informed Jeffrey of his rights going forward.
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Moreover, the juvenile court repeatedly stopped and inquired as to whether Jeffrey
understood what he was being told. Therefore, we cannot conclude that Juv. R.
29(B) was in any way violated.
{¶41} Next, Jeffrey argues that the trial court erred by accepting a written
waiver of counsel without properly considering the form, Jeffrey’s understanding
of the form, and his appreciation of the gravity of signing the form. As an initial
matter we note that the following “Waiver of Right to Counsel” form dated
October 21, 2008 was signed by both Jeffrey and his mother:
1. I understand what I am charged with and that I may be
placed in a juvenile detention center, the Ohio Department of
Youth Services or an adult jail, if I am over age 18.
2. I understand that I have the right to have a lawyer help me
and represent me in Court.
3. I understand that if I, or my parents, do not have money for
a lawyer, the Court will get a lawyer for me at little or no costs.
4. I understand that if I sign this paper, I am giving up my
right to have a lawyer help me and represent me in Court.
{¶42} This waiver closely mirrors the discussion the juvenile court actually
engaged in with Jeffrey. (Tr.p. 3-5). Moreover, during its discussion with Jeffrey
the juvenile court repeatedly inquired as to whether Jeffrey understood the rights
the juvenile court was explaining and as to whether Jeffrey had any questions
concerning the waiver. Therefore, we cannot find that the trial court did not take
into account Jeffrey’s understanding of his waiver of counsel, or his appreciation
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Case Nos. 2-08-20, 21, 22, 23
of the consequences of waiving counsel, because in this case, the form was not
supplied in isolation. Here, the written waiver of counsel only served to confirm
what the juvenile court had already ascertained orally.
{¶43} Finally, we note that Jeffrey’s school records were included in the
record and, although he had some difficulty in school, nothing was supplied to
indicate that his level of literacy would not have allowed him to understand such a
simple form. Accordingly, we cannot find that the trial court erred in accepting
Jeffrey’s written waiver of counsel.
{¶44} Finally, Jeffrey argues that the trial court erred by not providing
counsel or obtaining a valid waiver of counsel at disposition. In making his
argument, Jeffrey relies on the recent Ohio Supreme Court pronouncement in In re
L.A.B., 121 Ohio St.3d 112, in which the court stated that:
[w]hen an unrepresented child faces a dispositional hearing
immediately following an adjudicatory hearing, the court must
ensure that the child understands that a dispositional hearing
has begun and that the child may continue the hearing to obtain
counsel. Juv.R. 34. While such a statement may seem repetitive
when the issue of counsel has already been addressed at the
outset, it ensures that the child will understand what phase of
the legal process the child is in and helps to guarantee that the
child's rights are preserved as the court enters into the
dispositional phase.
In re L.A.B., 121 Ohio St.3d at 121-122.
{¶45} Other Ohio courts have previously found that a juvenile’s waiver of
counsel at one stage of the proceedings does not preclude him from “asserting his
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right to counsel at a later stage.” See In re M.T., 12th Dist. No. 2006-04-018, 2007-
Ohio-2446 quoting In re S.J., Summit App. No. 23058, 2006-Ohio-4467, ¶ 6,
citing Juv.R. 29(B)(5). “Once a juvenile validly waives counsel during the
adjudication hearing,” which is governed by Juv.R. 29(B), “he does not lose the
right to request counsel for the disposition hearing, which is governed by Juv.R.
34.” Id.{¶46} When considering a situation where a juvenile court had not
obtained a valid waiver of counsel at the adjudicatory stage of a hearing, the
Twelfth District Court of Appeals has held that “even had appellant validly waived
his right to counsel during the adjudicatory hearing, the trial court was still
required to advise appellant of his right to counsel and determine whether he
wished to waive his right to counsel during the disposition hearing.” In re M.T.,
2007-Ohio-2446, at ¶24. The same conclusion has been reached by the Ninth
District Court of Appeals. In In re S.J., despite the finding of a valid waiver at the
adjudicatory stage, the court found that “[a]lthough the right to counsel can be
invoked by a juvenile at any stage of the proceedings, the court did not reiterate
Appellant's right to counsel during disposition or allow him either to invoke or to
waive his right to counsel at that stage,” and based on that finding reversed and
remanded the matter. In re S.J., 2006-Ohio-4467, at ¶10.
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{¶47} We have significant reservations concerning the rule adopted by the
Twelfth and Ninth Districts when applied to a case such as the present, where the
juvenile court scrupulously adhered to the requirements of Juv. R. 29(B) in
securing the initial waiver of counsel at the probation violation hearing, and
especially where, as here, the juvenile court advised Jeffrey of his right to an
attorney “throughout these proceedings,” and further advised Jeffrey that even
though he had signed the waiver of counsel, he still had the right to change his
mind at any time and request counsel.
{¶48} As applied to this case, particularly with regard to the lack of any
indication of conflict in the participation of Jeffrey’s mother in waiving counsel,
we find the dissenting opinion in In re L.A.B. to be the more persuasive opinion.
Nevertheless, it is our conclusion that the majority opinion of In re L.A.B.
unequivocally espouses the position of the Ninth District Court of Appeals in In re
S.J. regarding the reiteration of the right to counsel and/or the waiver thereof, at
any juvenile disposition regardless of any prior waivers or admonitions at
adjudication, even though this was not the precise issue before the court in that
case. As a result, we find that the juvenile court was required to re-advise Jeffrey
of his continued right to counsel at disposition. Because that was not done in this
case, Jeffrey’s first assignment of error is sustained.
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{¶49} Based on the foregoing the October 27, 2008 Judgment Entries of
the Court of Common Pleas of Auglaize County, Juvenile Division are affirmed in
part, reversed in part, and remanded for proceeds consistent with the opinion of
this court, specifically for a new dispositional hearing with a reiteration of the
right to counsel.
Judgmenst Affirmed in Part,
Reversed in Part and
Cause Remanded
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
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