In re D.F.

[Cite as In re D.F., 2017-Ohio-7307.]
COURT OF APPEALS
COSHOCTON COUNTY, OHIO
FIFTH APPELLATE DISTRICT
IN RE: D.F. JUDGES:
Hon. Patricia A. Delaney, P.J.
Hon. William B. Hoffman, J.
Hon. Earle E. Wise, Jr., J.
Case No. 2016CA0015, 2016CA0016
OPINION
CHARACTER OF PROCEEDING: Appeal from the Coshocton County Court of
Common Pleas, Juvenile Division
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: August 21, 2017
APPEARANCES:
For Appellee For Appellant
BENJAMIN E. HALL CHARLYN BOHLAND
Coshocton County Prosecutor's Office The Office of the Public Defender
Assistant Prosecuting Attorney Assistant State Public Defender
318 Chestnut Street 250 East Broad Street, Suite 1400
Coshocton, Ohio 43812 Columbus, Ohio 43215
Coshocton County, Case No. 2016CA0015, 2016CA0016 2
Hoffman, J.
{¶1} D.F., a juvenile at the time of the offenses, appeals his adjudication,
disposition, serious youthful offender classification, and adult sentence entered by the
Coshocton County Court of Common Pleas, Juvenile Division. Appellee is the state of
Ohio.
STATEMENT OF PROCEEDINGS1
{¶2} On January 17, 2014, the State filed a Bill of Information alleging D.F.
committed two counts of rape, felonies of the first degree, in violation of R.C.
2907.02(A)(1)(b), with each charge carrying an attendant serious youthful offender
specification, pursuant to R.C. 2152.11(D)(2)(b); and one count of gross sexual
imposition, a third degree felony, in violation of R.C. 2907.05(A)(4).
{¶3} Appellant’s date of birth is October 18, 1995, and the offenses were alleged
to have occurred between December 3, 2009 and January 16, 2013.
{¶4} On January 17, 2014, Appellant entered an admission to the charges. The
matter proceeded to disposition on January 30, 2014. The juvenile court committed
Appellant to the Ohio Department of Youth Services for a minimum of two years and six
months, maximum of up to Appellant’s twenty-first birthday. Pursuant to the serious
youthful offender specifications and R.C. 2152.11(D)(2)(b), the court imposed a
suspended adult sentence of fifteen years to life on each count of rape, to be served
concurrently.
1
A full rendition of the underlying facts giving rise to Appellant’s adjudication, disposition
and sentence is unnecessary for resolution of the appeal.
Coshocton County, Case No. 2016CA0015, 2016CA0016 3
{¶5} Based upon Appellant’s conduct while committed to DYS2, on December
23, 2015, the State moved to invoke the suspended adult sentence under the serious
youthful offender specification. On October 4, 2016, the trial court conducted a hearing,
and imposed the previously suspended adult term of fifteen years to life. The trial court
on the same date held a hearing and imposed a juvenile disposition regarding
classification. The court classified Appellant a Tier III, Public Registry Qualified Juvenile
Offender Registrant (PRQJOR), pursuant to R.C. 2152.86. The parties and the trial court
acknowledged all juvenile dispositions terminated upon the imposition of an adult
sentence, but “waived any defect to this juvenile dispositional order and…affirmed its
intention for this juvenile order to survive the adult sentence.” (10/5/2016 Judgment
Entry) Counsel for Appellant did not object to the sentence or classifications.
{¶6} Appellant appeals, assigning as error,
I. THE JUVENILE COURT ERRED WHEN IT FAILED TO APPOINT
A GUARDIAN AD LITEM TO PROTECT D.F.’S BEST INTERESTS, IN
VIOLATION OF R.C. 2151.281(A)(1) AND JUV. R. 4(B)(1).
II. THE MANDATORY SENTENCING SCHEME IN R.C. 2971.03 IS
UNCONSTITUTIONAL BECAUSE IT DOES NOT PERMIT THE TRIAL
COURT TO MAKE AN INDIVIDUALIZED DETERMINATION ABOUT
D.F.’S SENTENCE OR THE ATTRIBUTES OF HIS YOUTH, IN VIOLATION
OF HIS RIGHT TO BE FREE FROM CRUEL AND UNUSUAL
2
A State Trooper conducted an investigation into Appellant’s conduct while at DYS, and
substantiated sexual conduct occurred between Appellant and another DYS resident.
6/24/2016 Transcript, p. 207.
Coshocton County, Case No. 2016CA0015, 2016CA0016 4
PUNISHMENT, AS GUARANTEED BY THE EIGHTH AMENDMENT TO
THE U.S. CONSTITUTION, AND ARTICLE I, SECTION 9, OHIO
CONSTITUTION.
III. THE JUVENILE COURT ERRED WHEN IT CLASSIFIED D.F. AS
A PUBLIC REGISTRY QUALIFIED JUVENILE OFFENDER REGISTRANT
(PRQJOR), PURSUANT TO R.C. 2152.86, IN VIOLATION OF IN RE C.P.,
131 OHIO ST.513, 2012-OHIO-1446, 967 N.E.2D 729, ¶86.
IV. THE JUVENILE COURT ERRED WHEN IT CLASSIFIED D.F.
TO AN ADULT TIER III REGISTRATION, PURSUANT TO THE ADULT
STATUTES, IN VIOLATION OF R.C. 2152.82, 2152.83, 2152.84, 2152.85,
AND 2950.01(G), (M).
V. D.F. WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE U.S. CONSTITUTION; AND, ARTICLE I,
SECTION 10, OHIO CONSTITUTION.
I.
{¶7} The question of whether R.C. 2151.281(A)(1) and Juv.R. 4(B)(1) impose a
mandatory duty upon the court to appoint a GAL, and whether the court failed to discharge
that duty, constitutes a mixed question of law and fact and is subject to de novo review.
State v. Lindstrom, 8th Dist. Cuyahoga No. 96653, 2011–Ohio–6755, ¶ 20; M6 Motors,
Inc. v. Nissan of N. Olmsted, L . L.C., 2014–Ohio–2537, 14 N.E.3d 1054, ¶ 48 (8th Dist.)
(“Statutory interpretation is a question of law that we review de novo.”) De novo review
Coshocton County, Case No. 2016CA0015, 2016CA0016 5
means the appellate court independently reviews the record and affords no deference to
the trial court's decision. B.P. Communications Alaska, Inc. v. Cent. Collection Agency,
136 Ohio App. 3d 807, 812, 737 N.E.2d 1050 (8th Dist.2000).
{¶8} R.C. 2151.281(A) provides,
(A) The court shall appoint a guardian ad litem, subject to rules
adopted by the Supreme Court, to protect the interest of a child in any
proceeding concerning an alleged or adjudicated delinquent child or unruly
child when either of the following applies:
(1) The child has no parent, guardian, or legal custodian.
(2) The court finds that there is a conflict of interest between the child
and the child's parent, guardian, or legal custodian.
{¶9} Ohio Rule of Juvenile Procedure 4 reads,
(B) Guardian ad Litem; When Appointed. The court shall appoint a
guardian ad litem to protect the interests of a child or incompetent adult in
a juvenile court proceeding when:
(1) The child has no parents, guardian, or legal custodian;
(2) The interests of the child and the interests of the parent may
conflict;
(3) The parent is under eighteen years of age or appears to be
mentally incompetent;
Coshocton County, Case No. 2016CA0015, 2016CA0016 6
(4) The court believes that the parent of the child is not capable of
representing the best interest of the child.
(5) Any proceeding involves allegations of abuse or neglect,
voluntary surrender of permanent custody, or termination of parental rights
as soon as possible after the commencement of such proceeding.
(6) There is an agreement for the voluntary surrender of temporary
custody that is made in accordance with section 5103.15 of the Revised
Code, and thereafter there is a request for extension of the voluntary
agreement.
(7) The proceeding is a removal action.
(8) Appointment is otherwise necessary to meet the requirements of
a fair hearing.
{¶10} The Eighth District addressed the issue raised herein in In re DRB, No.
1002252, 2015-Ohio-3346. DRB was eighteen years of age at the time the complaint was
filed on February 1, 2013. The complaint alleged two acts of rape occurred when DRB
was seventeen years-old. At all hearings, Appellant was represented by counsel, and an
aunt, who was not a legal custodian attended. The Eighth District held,
Inquiries were properly made by the trial court during the
proceedings as to whether a parent was in attendance. However, observing
that D.R.B. was 18 years old, subsequently 19 years old, at the hearings
and that an aunt was in attendance, there appeared to be an assumption
Coshocton County, Case No. 2016CA0015, 2016CA0016 7
by the court, state, and defense counsel that no parent or legal guardian
needed to be present.
The parties agree that a GAL shall be appointed to represent a “child”
in juvenile court delinquency and unruliness proceedings as provided by
statute. Therefore, the pivotal issue is whether D.R.B. qualifies as a child by
law and is so entitled. We preface our analysis by clarifying that the question
before us is whether D.R.B. qualifies as a child under the applicable
delinquency and related statutes, and not the unruliness statute [footnote
omitted] as cited by the state.
In interpreting a statute, we have held that “the word ‘shall’ is
mandatory. The General Assembly is presumed to mean what it said.” San
Allen v. Buehrer, 2014–Ohio–2071, 11 N.E.3d 739, ¶ 81 (8th Dist.); Smith
v. Leis, 106 Ohio St. 3d 309, 2005–Ohio–5125, 835 N.E.2d 5, ¶ 62; In re
A.G.B., 173 Ohio App. 3d 263, 2007–Ohio–4753, 878 N.E.2d 49, ¶ 13 (4th
Dist.).
***
The definition of “child” under Sup.R. 48 governing GALs includes a
person under 18 years of age, or a person who is older than 18 years of
age who is deemed a child until the person attains 21 years of age under
R.C. 2152.02(C) of the Revised Code, and Sup.R. 48(B)(2)(a) and (b). In
addition, Juv.R. 4(B)(1) provides, in pertinent part, that a court “shall”
appoint a GAL to protect the interests of a “child” in a juvenile court
Coshocton County, Case No. 2016CA0015, 2016CA0016 8
proceeding when the child has no parents, guardian or legal custodian.
(Compare R.C. 2151.281(A)(1)).
Under R.C. 2152.02(C)(1), a delinquent child is defined as, “a person
who is under eighteen years of age, except as otherwise provided in
divisions (C)(2) to (8) of this section.” Id. R.C. 2152.02(C)(2) through (8)
provide the exceptions to the rule. R.C. 2152.02(C)(2) applies:
(2) Subject to division (C)(3) of this section, any person who violates
a federal or state law or a municipal ordinance prior to attaining eighteen
years of age shall be deemed a “child” irrespective of that person's age at
the time the complaint with respect to that violation is filed or the hearing on
the complaint is held.
Id. [footnote omitted.]
***
We do not agree that an objection to the failure to appoint a GAL is
required to constitute reversible error.
***
This court has also decided that the appointment of a GAL under
R.C. 2151.281 and Juv.R. 4 are mandatory where required by statute. Both
the statute and the rule provide that a court “shall” appoint a GAL under the
listed circumstances. In re Taylor, 8th Dist. Cuyahoga No. 74257, 1999 Ohio
App. LEXIS 2610, *3–5, 1999 WL 378355 (June 10, 1999); In re Howell, 77
Ohio App. 3d 80, 92, 601 N.E.2d 92 (4th Dist.1991); In re Slider, 160 Ohio
App.3d 159, 2005–Ohio–1457, 826 N.E.2d 356, ¶ 8–9 (4th Dist.).
Coshocton County, Case No. 2016CA0015, 2016CA0016 9
D.R.B. was 17 years of age at the time the act occurred. He was
charged with rape under R.C. 2907.02(A)(1)(b), a first-degree felony if
committed by an adult. Neither his mother nor his stepfather attended his
hearings. The aunt who attended was not his guardian. Therefore, D.R.B.
qualified as a child and is entitled to the appointment of a GAL as mandated
by R.C. 2151.281(A)(1) and Juv.R. 4(B)(1).
{¶11} In In re CW, 4th Dist. No. 10CA892, 2010-Ohio-5633, the Fourth District
addressed this issue. After C.W. entered an admission to two counts of rape, the Adams
County Common Pleas Court, Juvenile Division adjudicated him a delinquent child and
committed him to the custody of the Ohio Department of Youth Services (“DYS”). Upon
his release from DYS custody, the court classified C.W. as a Tier III juvenile sex offender.
C.W. was nineteen years of age at the time of the classification hearing.
{¶12} The Fourth District held C.W. qualified as a “child” within the meaning of the
rule and the hearing constituted a “juvenile court proceeding,” despite C.W.’s attaining
the age of nineteen at the time of the hearing. Even if C.W. had a parent, guardian, or
legal custodian (at the time of the hearing), that person was never notified of the hearing
and thus did not appear to protect C.W.'s interests. Therefore, the court should have
appointed a guardian ad litem.
{¶13} As these statutes are mandatory, the failure of a court to appoint a guardian
ad litem when these provisions require such an appointment constitutes reversible error.
In re Spradlin 140 Ohio App. 3d 402, 747 N.E.2d 877 (2000). Further, the absence of an
objection does not preclude a reversal due to the juvenile court's failure to appoint a
Coshocton County, Case No. 2016CA0015, 2016CA0016 10
guardian when required under R .C. 2151.281(A)(2) or Juvenile Rule 4(B). In re K.B., 170
Ohio App. 3d 121, 866 N.E.2d 66, 2007–Ohio–396, citing In re Etter, 134 Ohio App. 3d
484, 731 N.E.2d 694 (1998).
{¶14} D.F. was represented by counsel at all proceedings before the trial court.
R.C. 2151.281(H), and Juv. R. 4(C) permit an attorney to serve both as counsel and as
guardian ad litem for a child in a juvenile court proceeding, provided the court makes an
explicit dual appointment and no conflicts arise in the dual representation. Here, the court
did not order dual representation. Appellant’s sister attended the hearings, but was not
found to be a guardian or legal custodian nor otherwise designated as such.
{¶15} At the time Appellant entered admissions to the charges, he was eighteen
years of age. At the time of the dispositional hearing and classification hearing he was
20 years of age. We find the trial court should have appointed a guardian ad litem during
the proceedings herein, and such constitutes reversible error.
{¶16} Accordingly, we sustain Appellant’s first assignment of error, and remand
the matter to the juvenile court for further proceedings in accordance with the law and this
opinion.
II.
{¶17} In the second assignment of error, Appellant maintains the sentencing
scheme under R.C. 2971.03 is unconstitutional as the statute does not allow the trial court
discretion as to the sentence or consideration of the juvenile’s age.
{¶18} Recently, the Ohio Supreme Court addressed the issue raised herein in
State v. Anderson, ____ N.E.3d ____, 2017-Ohio-5156 (July 5, 2017). The Court held,
Coshocton County, Case No. 2016CA0015, 2016CA0016 11
We conclude, therefore, that a mandatory three year prison sentence
imposed on a juvenile offender tried as an adult for a conviction of a firearm
specification does not violate the Eighth Amendment because it serves a
legitimate penological goal, is proportional to the crimes committed, and is
not one of the harshest possible penalties for a juvenile offender.
{¶19} Pursuant to the Ohio Supreme Court’s holding in Anderson, supra,
Appellant’s second assignment of error is overruled.
III., IV. and V.
{¶20} Pursuant to our analysis and disposition of Appellant’s first assigned error,
we find Appellant’s third, fourth and fifth assigned errors are premature. The issues raised
therein may be raised on remand.
{¶21} Appellant D.F.’s adjudication in the Coshocton County Court of Common
Pleas, Juvenile Division, is reversed and the matter is remanded to that Court for further
proceedings in accordance to law and this Opinion.
By: Hoffman, J.
Delaney, P.J. and
Wise, Earle, J. concur