In re D.G.

[Cite as In re D.G., 2014-Ohio-650.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ROSS COUNTY
IN THE MATTER OF: :
:
D. G. : Case Nos. 13CA3382
: 13CA3383
Adjudicated Delinquent Child :
: DECISION AND JUDGMENT
: ENTRY
:
: Released: 02/19/14
APPEARANCES:
Timothy Young, Ohio State Public Defender, and Charlyn Bohland, Assistant State
Public Defender, Columbus, Ohio, for Appellant.
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Robert C. Hess,
Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee.
McFarland, J.
{¶ 1} Appellant, D.G., appeals the trial court’s decisions that committed
him to the Department of Youth Services (DYS) for a minimum period of six
months and a maximum period not to exceed his 21st birthday. D.G. first argues
that the magistrate erred by finding him competent to stand trial. D.G. failed to
object to the magistrate’s competency determination. Thus, he waived all but plain
error. Because the record contains some reliable and credible evidence to support
the magistrate’s competency determination, the court did not plainly err by finding
D.G. competent.
Ross App. Nos. 13CA3382 and 13CA3383 2
{¶ 2} D.G. next asserts that the court plainly erred by failing to appoint a
guardian ad litem to represent his interests during the proceedings. He contends
that Juv.R. 4(B) and R.C. 2151.281(A) required the court to appoint a guardian ad
litem because his interests conflicted with those of his parents. We disagree. The
record does not contain any suggestion that D.G’s parents held interests
inconsistent with D.G.’s interests. Because the record fails to show a potential for
conflict between D.G. and his parents, the trial court did not plainly err by failing
to appoint a guardian ad litem.
{¶ 3} D.G. additionally contends that his trial counsel was ineffective by
stipulating to the competency evaluation and by failing to object to the magistrate’s
competency determination. D.G. cannot establish that the result of the proceedings
would be different if counsel had not stipulated to the evaluation or if counsel had
objected. D.G. merely speculates that if trial counsel had not stipulated to the
evaluation or had objected, the court would have found D.G. incompetent to stand
trial. Speculation is not sufficient to establish an ineffective assistance of counsel
claim. Thus, D.G.’s ineffective assistance of counsel argument is without merit.
{¶ 4} Accordingly, we overrule D.G.’s three assignments of error and affirm
the trial court’s judgment.
Ross App. Nos. 13CA3382 and 13CA3383 3
I. FACTS
{¶ 5} This case involves a consolidated appeal from two juvenile court
judgments that committed D.G. to the Department of Youth Services for a
minimum period of six months and a maximum period not to exceed his 21st
birthday.
A. Case Number 2011DEL208
{¶ 6} On June 17, 2011, a complaint was filed that alleged D.G. was a
delinquent child for committing domestic violence (case number 2011DEL0208).
On June 20, 2011, the court appointed attorney Walter Bevins to act as D.G.’s
counsel and guardian ad litem.
{¶ 7} On August 16, 2011, the magistrate held a hearing regarding D.G.’s
competency. The state and D.G. stipulated to the accuracy of the competency
evaluation. The magistrate stated: “Based on the evaluation that has been
stipulated into evidence[, t]he Court finds the child to be competent.” After the
magistrate found D.G. competent, she asked D.G. if he thought that he could “get
along at home.” D.G. responded affirmatively. The magistrate continued to
question him:
“Q. Follow the rules at home?
A. Yeah.
Q. Stay out of trouble?
A. Yeah.
Q. Take your medication?
A. Yeah.
Ross App. Nos. 13CA3382 and 13CA3383 4
Q. Do you know what happens if you don’t?
A. Yeah.
Q. What?
A. I go back to JDC.”
After engaging in this conversation with D.G., the magistrate again stated that she
found D.G. competent to stand trial.
{¶ 8} On September 26, 2011, the magistrate held a hearing. The parties
agreed that D.G. would admit to domestic violence. The magistrate questioned
D.G. regarding his admission to the charge of domestic violence:
“[Q.] Mr. Gearhart you understand the charges of domestic violence?
[A.] Yes.
[Q.] States that * * * you did * * * knowingly cause attempt * * *
attempt to cause physical harm to family or house hold [sic] member to wit.
You bit your mother on the (undistinguishable) and that you have previously
been * * * convicted of domestic violence in this Court. Do you understand
that?
[A.] Not really.
[Q.] What don’t you understand? * * *
****
[Q.] Look at me * * * you understand your charged with domestic
violence which is * * * causing or attempting to cause physical harm to
family or household member. In this case, it’s your mother. They state that
you bit your mother on the hand. Do you understand that charge?
[A.] Alright.
[Q.] I’m sorry, I need a yes or no * * * did you bite your mother on
the hand?
[A.] I guess.
[Q.] And you [have] been here before, for causing harm to a family or
household member.
[A.] Yes.
[Q.] Ok. You understand that if you admit this charge that means
there will not be a trial today. Do you understand that?
[A.] Yes.”
Ross App. Nos. 13CA3382 and 13CA3383 5
{¶ 9} The magistrate then asked D.G. whether he understood that she could
place him in a juvenile facility or commit him to DYS. D.G. stated that he did not
understand, so the magistrate questioned him:
“[Q.] What don’t you understand? You understand that I can take you
away from your home and place you elsewhere?
[A.] No.
[Q.] Ok, well I’m telling you that now. Do you understand that, I can
do that?
[A.] No.
[Q.] Tell me what you don’t understand.
[A.] I don’t know.
[Q.] Well look at me. You understand I can take you away from your
parents, do you understand that?
[A.] No.
[Q.] You understand what it means?
[A.] No.
Q. How old are you * * *?
A. 14.
Q. 14, do you go to school at Roweton.
A. Yeah.
Q. * * * Can you read?
A. No.
Q. Can you write?
A. No.
****
Q. Can you write your name?
A. Barely.
Q. Whether you do or you don’t, don’t play games with this.
A. I can write sometimes.”
{¶ 10} The magistrate permitted D.G.’s attorney to question him about the
domestic violence charge. The following exchange occurred:
“Q. State your name for the record.
****
A. Zeek cotade.
Ross App. Nos. 13CA3382 and 13CA3383 6
****
Q. What [did] you say?
A. Zeek cotade.
Q. [D.G.] do you recall biting your mother?
A. No.
Q. You recall * * * [at]temping to set the house on fire?
A. No.
Q. Do you know what kind of medication you’re on today?
A. No.”
{¶ 11} On September 27, 2011, the magistrate adjudicated D.G. a
delinquent child for committing domestic violence. On October 21, 2011, the
magistrate ordered that D.G. be committed to DYS for a minimum period of six
months and a maximum period not to exceed his 21st birthday. The magistrate
suspended the commitment and placed D.G. on probation. On that same date, the
court adopted the magistrate’s decision
B. Case Number 2012DEL0153
{¶ 12} On April 25, 2012, a complaint containing two counts of domestic
violence was filed (case number 2012DEL0153). On April 26, 2012, the court
appointed attorney Bevins to act as counsel for D.G. The court did not appoint
Bevins as guardian ad litem, and it did not appoint anyone else as D.G.’s guardian
ad litem.
{¶ 13} On June 1, 2012, the magistrate adjudicated D.G. a delinquent child
for committing two acts of domestic violence. On July 12, 2012, the magistrate
committed D.G. to DYS for a minimum of six months and a maximum period not
Ross App. Nos. 13CA3382 and 13CA3383 7
to exceed his 21st birthday. The magistrate suspended the commitment and placed
D.G. on probation. On that same date, the trial court adopted the magistrate’s
decision.
C. Appeals
{¶ 14} On March 26, 2013, D.G. filed notices of appeal from the trial
court’s October 21, 2011 and July 12, 2012 judgments. D.G. argued that under the
rule set forth in In re Anderson, 92 Ohio St.3d 63, 67, 748 N.E.2d 67 (2001), his
time to appeal had not expired. D.G. asserted that the docket failed to indicate that
D.G. was served with notice of the court’s October 21, 2011 judgment entry.
{¶ 15} On March 14, 2013, this Court directed D.G. to address whether the
court’s judgment entries constituted “separate and distinct” entries and thus final,
appealable orders.
{¶ 16} On March 25, 2013, appellant filed a motion that requested the trial
court to issue final, appealable orders.
{¶ 17} On March 26, 2013, the court committed D.G. to DYS for
institutionalization in a secure facility for an indefinite term of a minimum period
of six months and a maximum period not to exceed his 21st birthday. The court
suspended the commitment and placed D.G. on probation.
II. ASSIGNMENTS OF ERROR
Ross App. Nos. 13CA3382 and 13CA3383 8
{¶ 18} Appellant timely appealed the trial court’s judgments and raises
identical assignments of error in each case:
First Assignment of Error:
The juvenile court abused its discretion when it found [D.G.]
competent to stand trial, in violation of the Fifth and Fourteenth
Amendments to the United States Constitution; Article I, Section 16
of the Ohio Constitution; and R.C. 2945.37
Second Assignment of Error:
The juvenile court committed plain error when it failed to appoint a
guardian ad litem for [D.G.], in violation of R.C. 2151.281(A) and
Juv.R. 4(B).
Third Assignment of Error:
[D.G.] was denied the effective assistance of counsel as guaranteed by
the Sixth and Fourteenth Amendments to the United States
Constitution and Article I, Section 10 of the Ohio Constitution.
III. ANALYSIS
A. COMPETENCY
{¶ 19} In his first assignment of error, D.G. asserts that the trial court
incorrectly determined that he was competent to stand trial. He contends that the
record shows that he did not understand the charges against him or the potential
penalties that he faced and thus that he did not have a rational or factual
understanding of the proceedings against him.
1. Failure to Object to the Magistrate’s Decision
Ross App. Nos. 13CA3382 and 13CA3383 9
{¶ 20} D.G. did not object to the magistrate’s decision finding him
competent to stand trial. Juv.R. 40(D)(3)(b)(i) requires a party to file written
objections to the magistrate’s decision within fourteen days. If no one files
objections, the court may adopt a magistrate’s decision, unless it determines that
there is an error of law or other defect evident on the face of the magistrate’s
decision. Juv.R. 40(D)(4)(c). Juv.R. 40(D)(4)(e)(i) allows the court to enter
judgment within the fourteen–day period, but the timely filing of objections
operates as an automatic stay until the court disposes of those objections.
{¶ 21} Juv.R. 40(D)(3)(b)(iv) provides that “[e]xcept for plain error, a party
shall not assign as error on appeal the court’s adoption of any finding of fact or
legal conclusion, whether or not specifically designated as a finding of fact or
conclusion of law under Juv.R. 40(D)(3)(a)(ii), unless the party has objected to that
finding or conclusion as required by Juv.R. 40(D)(3)(b).” Thus, the failure to file
written objections challenging a finding of fact or conclusion of law precludes a
party from assigning as error on appeal the court’s adoption of that finding or
conclusion, absent plain error. “The waiver under [former] Juv.R. 40(E)(3)(b)
embodies the long-recognized principle that the failure to draw the trial court’s
attention to possible error, by objection or otherwise, when the error could have
been corrected, results in a waiver of the issue for purposes of appeal.” In re Etter,
134 Ohio App.3d 484, 492, 731 N.E.2d 694 (1st Dist. 1998). The plain-error
Ross App. Nos. 13CA3382 and 13CA3383 10
doctrine is applicable in civil cases only when the error “seriously affects the basic
fairness, integrity, or public reputation of the judicial process.” Goldfuss v.
Davidson, 79 Ohio St.3d 116, 122–123, 679 N.E.2d 1099 (1997).
{¶ 22} In the case at bar, D.G. has not shown that the court committed plain
error.
2. Standard for Determining Competency
{¶ 23} “Due process principles forbid subjecting a legally incompetent
criminal defendant to trial.” State v. Braden, 98 Ohio St.3d 354, 785 N.E.2d 439,
2003–Ohio–1325, ¶114, citing State v. Berry, 72 Ohio St.3d 354, 359, 650 N.E.2d
433 (1995). “[T]he right not to be tried or convicted while incompetent is as
fundamental in juvenile proceedings as it is in criminal trials of adults.” In re
Bailey, 150 Ohio App.3d 664, 2002–Ohio–6792, 782 N.E.2d 1177, ¶10 (2nd Dist.).
{¶ 24} Until September 30, 2011, the Revised Code did not contain any
provisions for determining a juvenile’s competence to stand trial. In re Stone, 12th
Dist. Clinton No. CA2002–09–035, 2003–Ohio–3071, ¶7. With the enactment of
2011 H.B. 86 (effective September 30, 2011), the juvenile code now contains
statutory provisions that govern juvenile competency determinations. R.C.
2152.51-2152.59. However, because D.G’s competency hearing was held before
September 30, 2011, we apply the law that existed before the enactment of R.C.
2152.51 through 2152.59.
Ross App. Nos. 13CA3382 and 13CA3383 11
{¶ 25} Under prior law, R.C. 2945.37, which governs competency for adults,
also governed competency for juveniles, so long as the standards applied were
consistent with juvenile norms. In re York, 142 Ohio App.3d 524, 536, 756 N.E.2d
191 (8th Dist. 2001); In re McWhorter, 12th Dist. Butler No. CA94-02-047 (Dec. 5,
1994). Under R.C. 2945.37(G), a “defendant is presumed competent to stand trial
unless it is proved by a preponderance of the evidence in a hearing under this
section that because of his present mental condition he is incapable of
understanding the nature and objective of the proceedings against him or presently
assisting in his defense.” The test for competency is whether the defendant has a
sufficient present ability to consult with his lawyer with a reasonable degree of
rational understanding and whether he has a rational as well as factual
understanding of the proceedings against him. Dusky v. United States, 362 U.S.
402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); In re Anderson, 5th Dist. Tuscarawas No.
2001AP030021, 2002-Ohio-776; In re Kristopher F., 5th Dist. Stark No.
2006CA00312, 2007–Ohio–3259, ¶ 25.
{¶ 26} In Kristopher F., ¶¶26-28, the court set forth a more specific analysis
that applies in juvenile competency determinations:
“In performing competency evaluations, the courts have
recognized that there are practical differences between juvenile
delinquency proceedings and adult criminal prosecutions. As a result,
these differences have been taken into consideration by the juvenile
court in determining whether an alleged juvenile delinquent is capable
Ross App. Nos. 13CA3382 and 13CA3383 12
of understanding the nature and objective of the proceedings and in
assisting in his or her own defense. In re McWhorter, Supra.
Factors which have been considered in juvenile competency
evaluations include, appellant’s age and cognitive and intellectual
development, appellant’s problems with receptive or expressive
language, the ability to understand and communicate during
competency testing, the complexity of the case and the attorney’s
ability to simplify and explain complex issues, the seriousness of the
charges in relation to the stress they could cause appellant during trial,
any mental condition that would adversely affect appellant’s ability to
understand the proceedings or work with counsel, appellant’s ability
to understand the nature of the charges and the potential penalties,
appellant’s ability to provide an adequate definition of the judge,
defense attorney and prosecutor. In re McWhorter, Supra.
Furthermore, a separate and important consideration is the manner in
which the system affords the juvenile additional protections such as
having a parent, guardian, or other person present with the child
during the proceedings. In re Stone, Clinton App. No. CA2002-09-
035, 2003-Ohio-3071. These factors provide a gauge to evaluate a
juvenile’s competency to stand trial and take into consideration the
best interest of the child. A below average verbal IQ alone does not in
and of itself, indicate that a defendant is not competent to stand trial.
In re McWhorter, Supra.
When reaching a competency determination, the adequacy of
the data relied upon by the expert who examined the defendant is a
question for the trial court as the trier of fact. State v. Williams
(1986), 23 Ohio St.3d 16, 19, 490 N.E.2d 906. An appellate court will
not disturb a competency determination if there was “some reliable
credible evidence supporting the trial court’s conclusion that [the
defendant] understood the nature and objective of the proceeding
against him.” State v. Williams, supra.”
3. Application
{¶ 27} In the case at bar, the record contains some reliable, credible evidence
to support the court’s conclusion that D.G. understood the nature and objective of
the proceedings against him. The competency evaluation constitutes some reliable,
Ross App. Nos. 13CA3382 and 13CA3383 13
credible evidence to support the trial court’s competency determination. The
August 4, 2011 evaluation observed that D.G. “reportedly” has been diagnosed
with schizophrenia and attention deficit hyperactivity disorder and that D.G.
“complains of short-term memory problems, saying that he often forgets names,
phone numbers, or similar information.” According to the evaluator, D.G. reported
that in June 2011, he bit his mother and tried to set the house on fire. D.G. claims
that “he heard voices commanding him to do this.”
{¶ 28} The evaluator determined that D.G. was competent and explained:
“Regarding the competency to undergo legal proceedings,
[D.G.] clearly understood the charges. He acknowledged that he did
have an attorney and that he had talked with him but did not know his
name. He was not sure what plea, if any, had been entered on his
behalf. He was able to correctly identify the various roles and
responsibilities in the courtroom. He related that the judge ‘rules on
what he thinks people did.’ He described the jury as ‘giving their
view on what they saw.’ He identified the job of his attorney [as] ‘to
defend me,’ and of the prosecuting attorney of ‘the opposite of that.’
He is unsure of what the penalty would be for the allegations against
him and he continued to emphasize that he did not remember the most
recent event involving assaulting his mother and attempting to start a
fire. He did say, ‘I don’t [know] why I would be found guilty[;] I
think it was the schizophrenia that caused it[,]’ suggesting that he is
certainly able to formulate a defense strategy.
[D.G.] was well oriented in all spheres. He was able to
correctly identify the month, the date, the year, and the most recent
important holiday. He knew his current whereabouts and the purpose
for the interview. He was able to count backwards from 20 by 3’s
correctly with one mistake. He could spell the word WORLD
forwards and backwards. Although he reported a history of hearing
voices, he was not currently showing signs or symptoms suggestive of
gross distortions or misinterpretations of reality.
****
Ross App. Nos. 13CA3382 and 13CA3383 14
His current mental status suggests that he is well oriented and
reasonably knowledgeable about the roles and responsibilities of the
legal system. He understands the charges against him and
understands the trial proceedings. He appears to have an adequate
ability to assist counsel in presenting a defense.”
{¶ 29} The evaluator thus concluded “that beyond a reasonable psychological
certainty, [D.G.] is competent to undergo juvenile court proceedings. His
psychiatric condition appears well managed at present. His intellectual functioning
and fund of information is adequate to the task.” Because the evaluator’s report
constitutes some reliable and credible evidence to support the trial court’s
competency determination, we will not disturb its determination.
{¶ 30} We do not agree with D.G. that his memory problems should have led
the court to conclude that he was incompetent.
“In Ohio, ‘amnesia alone is not sufficient to render the accused
incompetent to stand trial.’ State v. Brooks (1986), 25 Ohio St.3d 144, 495
N.E.2d 407. ‘Although “there are no definitive judicial explanations” of
what constitutes the ability to assist in one’s own defense, * * * it is clear
that the cases without exception reject the notion that an accused possesses
that ability only if he is able to remember the circumstances of the crime
with which he is charged.’ Id. at 151, 495 N.E.2d 407, quoting Morrow v.
State (1980), 47 Md.App. 296, 423 A.2d 251.”
State v. Lennox, 11th Dist. Lake No. 2010-L-104, 2011-Ohio-5103, ¶56.
{¶ 31} To the extent D.G. asserts that his conduct at the adjudicatory hearing
shows that he was incompetent, the magistrate reasonably could have believed that
D.G.’s conduct was a charade. At one point, the magistrate stated: “[D]on’t play
games with this.” It is well-established that the credibility of the witnesses and the
Ross App. Nos. 13CA3382 and 13CA3383 15
weight to be given to their testimony are matters for the trier of facts to resolve.
State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). Thus, the magistrate
was not required to believe D.G’s statements that he thought his name was “Zeke
cotade” and that he did not recall biting his mother or attempting to set the house
on fire.
{¶ 32} Accordingly, based upon the foregoing reasons, we overrule D.G.’s
first assignment of error.
B.
GUARDIAN AD LITEM
{¶ 33} In his second assignment of error, D.G. argues that the trial court
plainly erred by failing to appoint a guardian ad litem to represent his interests in
the 2012 case. He asserts that the court should have appointed a guardian ad litem
to represent his interests because the record shows that an actual conflict existed
between D.G. and his parents.
{¶ 34} D.G. further argues that although the juvenile court appointed
attorney Bevins to act as both counsel and guardian ad litem in the 2011 case,
Bevins never actually acted as D.G.’s guardian ad litem during the juvenile court
proceedings and thus the court should have appointed a new guardian ad litem.
Ross App. Nos. 13CA3382 and 13CA3383 16
th
{¶ 35} We addressed these same arguments in In re D.A.G., 4 Dist. Ross
Nos. 13CA3366 and 13CA3367, 2013-Ohio-3414, ¶¶44-55, and rejected both. We
explained:
“Initially, we note that D.G. did not request the court to appoint
a guardian ad litem in the 2012 case. D.G. also did not object to the
court’s failure to appoint a guardian ad litem in the 2012 case. He
further did not object to attorney Bevins’s dual role in the 2011 case
or raise any suggestion that Bevins failed to act as his guardian ad
litem.
Some courts have held that a juvenile need not request a trial
court to appoint a guardian ad litem or object to a court’s failure to
appoint one when a mandatory duty to do so exists. In re Dennis,
11th Dist. No.2006–A–0040, 2007–Ohio–2432, ¶29. Other courts
have reviewed an appellant’s failure to request the trial court to
appoint a guardian ad litem or to object using a plain error analysis.
In re M.T., 6th Dist. No. L–09–1197, 2009–Ohio–6674, ¶¶14–15; In
re A.K., 9th Dist. No. 09CA0025–M, 2009–Ohio–4941, ¶8, reversed
on other grounds sub nom In re Cases Held for the Decision in D.J.S.,
130 Ohio St.3d 253, 2011–Ohio–5349, 957 N.E.2d 288; In re Smith,
3rd Dist. No. 14–05–33, 2006–Ohio–2788, ¶35; In re McHugh
Children, 5th Dist. No.2004CA00091, 2005–Ohio–2345, ¶37. In In
re Slider, 160 Ohio App.3d 159, 2005–Ohio–, 826 N.E.2d 356 (4th
Dist.), we briefly mentioned the plain error doctrine but did not
explicitly apply it. We stated:
“Ordinarily, rights are deemed waived it they are not raised
before the trial court and will be enforced upon appeal only if the
error constitutes plain error. However, this court has previously
reversed a finding of delinquency when the trial court failed to
appoint a guardian ad litem or at least inquire further whether a
guardian ad litem was necessary, even though an objection was not
made.”
Id. at ¶ 11 (citations omitted). Cf. In re A. G.B., 173 Ohio App.3d
263, 2007–Ohio-4753, 878 N.E.2d 49, ¶15 (plurality opinion, with
one judge concurring in judgment only and one judge dissenting).
Thus, based upon our Slider decision, D.G.’s failure to object or to
request a guardian ad litem does not preclude appellate review.
***
Ross App. Nos. 13CA3382 and 13CA3383 17
A guardian ad litem is a “person appointed to protect the
interests of a party in a juvenile court proceeding.” Juv.R. 2(O). “The
role of guardian ad litem is to investigate the ward’s situation and then
to ask the court to do what the guardian feels is in the child’s best
interest.” In re Baby Girl Baxter, 17 Ohio St.3d 229, 232, 479 N.E.2d
257 (1985).
Both R.C. 2151.281(A) and Juv.R. 4(B) require a juvenile court
to appoint a guardian ad litem in certain circumstances. R.C.
2151.281(A) provides:
The court shall appoint a guardian ad litem 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.
Juv.R. 4(B) provides:
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, guardians, or legal custodian; [or]
(2) The interests of the child and the interests of the parent may
conflict * * *.
The rule requires a juvenile court to appoint a guardian ad litem
upon the possibility of conflict, but the statute requires the juvenile
court to appoint a guardian ad litem if the court determines that a
conflict indeed exists. Both the statute and the rule are mandatory,
and a court’s failure to appoint a guardian ad litem when required
constitutes reversible error. In re S.B., 183 Ohio App.3d 300, 2009–
Ohio–3619, 916 N.E .2d 110 (10th Dist.), ¶12, citing In re K.J.F., 2nd
Dist. No. 2003–CA–41, 2004–Ohio–263, ¶23, citing In re Sappington,
123 Ohio App.3d 448, 452, 704 N.E.2d 339 (2nd Dist.1997), and In re
Spradlin, 140 Ohio App.3d 402, 406, 747 N.E.2d 877 (4th Dist.2000).
“[T]he juvenile court is in the best position to weigh the
relevant facts in determining whether a potential conflict of interest
exists between the parent and child.” Sappington, 123 Ohio App.3d at
453–454, citing Trickey v. Trickey, 158 Ohio St. 9, 13, 106 N.E.2d
772 (1952). We thus review the trial court’s determination regarding
Ross App. Nos. 13CA3382 and 13CA3383 18
whether a potential conflict of interest exists between the parent and
child for an abuse of discretion. In re Wilson, 4th Dist. No. 04CA26,
2004–Ohio–7276, ¶21; Spradlin, 140 Ohio App.3d at 407;
Sappington, 123 Ohio App.3d at 453–454. But, see, In re A.K., 9th
Dist. No. 26291, 2012–Ohio4430, ¶12; In re C.W., 4th Dist. No.
10CA892, 2010–Ohio–5633, ¶9 (stating that whether the court
possessed a mandatory duty to appoint a guardian ad litem is a
question of law). The question is whether the record “reveals a strong
enough possibility of conflict of interest between parent and child to
show that the juvenile court abused its discretion” by not appointing a
guardian ad litem. Sappington, 123 Ohio App.3d at 454.
A “colorable claim of conflict” frequently arises in a
delinquency proceeding when the parent speaks against the child’s
penal interests or files delinquency charges against the child. In re
Bostwick, 4th Dist. No., 2005–Ohio5123, ¶¶ 8–9, citing In re Howard,
119 Ohio App.3d 201, 207, 695 N.E.2d 1 (1st Dist.1997). The
potential for conflict results because the parent’s interests in seeking
the juvenile court’s assistance may be wholly inconsistent with the
child’s interests. Sappington, 123 Ohio App.3d at 454. Thus, when a
parent or legal guardian instigates a delinquency proceeding or speaks
out against the child’s penal interests, the juvenile court ordinarily
must conduct “a ‘thorough inquiry’ * * * to determine whether a
conflict of interest exists such that the court must appoint a guardian
ad litem.” Bostwick at ¶8. However, courts have been unwilling to
adopt a bright-line rule that would require the appointment of a
guardian ad litem in every case in which a child's parents or legal
guardians initiate a delinquency proceeding against their child.
Howard, 119 Ohio App.3d at 207. Instead, the courts have examined
the record to determine whether the parent or legal guardian expressed
any interest inconsistent with the child’s interests.
For instance, courts have found no potential for conflict when
the victim of the child’s delinquent act was a family member and
when neither parent (nor a legal guardian) spoke against the child’s
penal interests or expressed a desire inconsistent with the child’s
interests. In In re Wilkins, 3rd Dist. No. 5–96–1 (June 26, 1996), the
court found no conflict of interest between the father and the child
even though the delinquency charge involved the child hitting his
father. In reaching its decision, the court observed that the father did
not attempt to persuade the court to act in any manner inconsistent
with the child's interests. The court explained:
Ross App. Nos. 13CA3382 and 13CA3383 19
“Timothy’s father did not attempt to persuade the court in any
manner that would be consistent with an understanding that he was
not acting in Timothy’s best interests. Indeed, the record reveals just
the opposite; that Timothy’s father was acting in Timothy’s best
interests. When the court suggested an institution remedial in nature,
as opposed to the harsher environment of a DYS facility, Timothy’s
father did not object or demand that Timothy be placed in the latter
facility. Timothy and his father did not argue or have any contentious
words at hearing. In fact, Timothy’s father seemed most concerned
with the court understanding and helping Timothy with his substance
abuse addiction.”
Similarly, in In re A.K., 9th Dist. No. 09CA0025–M, 2009–
Ohio4941, supra, the court determined that a potential for conflict did
not exist even when the child’s parents called law enforcement after
the child’s sister alleged that the child had sexually assaulted her. In
concluding that a potential for conflict did not exist, the court
observed that the child’s parents did not testify against him and did
not recommend that he be committed. Id. at ¶11. Moreover, the
child’s parents “appeared with him at his adjudication and disposition
hearings and, more than once, expressed concern over the length and
severity of the disposition that [the child] might receive.” Id.
In contrast, we have found that a trial court abused its discretion
by failing to appoint a guardian ad litem—or by failing to inquire
further into whether a conflict of interest existed sufficient to warrant
the court in appointing a guardian ad litem—when the facts showed
that the child's legal guardians’ interests were not aligned with the
child’s interests. In Slider, for example, we determined that a
sufficient potential for conflict between the child and the child’s legal
guardians existed when the child’s legal guardians were unwilling to
hire an attorney for the child, when they refused to take the child
home with them because they feared for their daughter’s safety, and
when they requested the trial court to institutionalize the child. In re
Slider, 160 Ohio App.3d 159, 2005–Ohio–1457, 826 N.E.2d 356 (4th
Dist.), ¶12. Accord In re Wilson at ¶18 (concluding that trial court
abused its discretion by failing to appoint guardian ad litem when the
child’s step-brother was the victim, the child’s mother testified for the
prosecution, the child’s mother and father recommended that the child
be committed to DYS, and the child previously victimized other
family members); Sappington, 123 Ohio App.3d at 454–455
(determining that the juvenile court abused its discretion by failing to
Ross App. Nos. 13CA3382 and 13CA3383 20
appoint a guardian ad litem for the child when the child’s parents
previously filed domestic violence charges against the child, had
sought to place the child out of the home, and had convinced the
minor that he did not need an attorney); In re K.J.F., supra
(concluding that the juvenile court abused its discretion by failing to
appoint a guardian ad litem for the child’s delinquency-related
proceedings, which included his original adjudication and the
subsequent revocation of probation for the rape of his half-sister,
when the child’s step-father stated that the family did not want the
child to return to their home where the victim lived and when the
child's mother informed the court that she “did not feel [she] could
make choices in [the child's] best interest”).
The case at bar bears more similarity to A.K. and Wilkins than
the Slider/Sappington line of cases. Unlike the parents in Slider and
Sappington, D.G.’s parents did not request the court to institutionalize
D.G. Instead, D.G.’s mother wrote a heart-felt note to the court
requesting that the court not commit her child to DYS and imploring
the court to return D.G. to his home. At no point during the hearing
did either D.G.’s mother or father speak against his penal interest.
Thus, even though the charges involved domestic violence against
D.G.’s family members, the record does not demonstrate that a
potential for conflict existed so as to warrant the court in appointing a
guardian ad litem. Consequently, we disagree with D.G. that the trial
court plainly erred by failing to appoint a guardian ad litem to
represent him during the probation violation proceedings in the 2012
case.
D.G. further asserts that the trial court should have appointed a
guardian ad litem to represent him during the probation violation
proceedings in the 2011 case. However, on June 20, 2011, the court
appointed attorney Bevins to act as counsel and guardian ad litem for
D.G. Although D.G. claims that Bevins failed to act as his guardian ad
litem, he has not raised Bevins's alleged failure as a separate
assignment of error and also has not asserted that Bevins's roles as
counsel and guardian ad litem conflicted.FN3 Therefore, we do not
consider either issue. Nor do we express any opinion regarding the
merits of either argument. Nothing in the record affirmatively
demonstrates that attorney Bevins failed to act as D.G.'s guardian ad
litem and counsel throughout the probation violation proceedings filed
in the 2011 case.”
Ross App. Nos. 13CA3382 and 13CA3383 21
{¶ 36} Thus, based upon similar reasons, we do not believe the trial court
plainly erred by failing to appoint a guardian ad litem in the 2012 case or a new
guardian ad litem in the 2011 case. The record as a whole does not demonstrate a
strong enough possibility of a conflict such that the court was required to appoint a
guardian ad litem.
C. EFFECTIVE ASSISTANCE OF COUNSEL
{¶ 37} In his third assignment of error, D.G. argues that he did not receive
effective assistance of counsel. D.G. asserts that trial counsel was ineffective by
stipulating to the evaluation report and by failing to object to the trial court’s
finding of competency.
{¶ 38} The Sixth Amendment to the United States Constitution and Section
10, Article I, of the Ohio Constitution provide that defendants in all criminal
proceedings shall have the assistance of counsel for their defense. The United
States Supreme Court has generally interpreted this provision to mean a criminal
defendant is entitled to the “reasonably effective assistance” of counsel. Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An accused
juvenile has a constitutional right to counsel, and the same rights to effective
assistance of counsel as an adult criminal defendant. In re Lower, 4th Dist.
Highland No. 06CA31, 2007-Ohio-1735, ¶37, citing In re Gault, 387 U.S. 1, 41,
87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Thus, we apply the same Sixth Amendment
Ross App. Nos. 13CA3382 and 13CA3383 22
effective assistance of counsel principles that apply in criminal proceedings. See
In re B.C.S., 4th Dist. Washington No. 07CA60, 2008-Ohio-5771.
{¶ 39} To prevail on a claim of ineffective assistance of counsel, D.G. must
show (1) his counsel’s performance was deficient in that it fell below an objective
standard of reasonable representation, and (2) the deficient performance prejudiced
his defense so as to deprive him of a fair trial. E.g., State v. Smith, 89 Ohio St.3d
323, 327, 731 N.E.2d 645 (2000), citing Strickland, 466 U.S. at 687; State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus.
To establish prejudice, D.G. must show that there is a reasonable probability that,
were it not for counsel’s errors, the result of the proceeding would have been
different. E.g., State v. White, 82 Ohio St.3d 16, 23, 693 N.E.2d 772 (1998);
Bradley, paragraph three of the syllabus. “Failure to establish either element is
fatal to the claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio-
968, ¶14. Therefore, if one element is dispositive, a court need not analyze both.
State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000) (stating that a
defendant’s failure to satisfy one of the elements “negates a courts need to consider
the other.”).
{¶ 40} In the case at bar, even if trial counsel performed deficiently by
stipulating to the competency evaluation and by failing to object to the court’s
competency determination, D.G. cannot establish that the alleged deficient
Ross App. Nos. 13CA3382 and 13CA3383 23
performance affected the outcome of the proceedings. As we explained in our
discussion of D.G.’s first assignment of error, some competent and reliable
evidence supports the trial court’s competency finding. Thus, even if trial counsel
had had objected, D.G. cannot show that the trial court would have refused to
consider the evaluation and found D.G. incompetent. Moreover, D.G. fails to
show that if trial counsel had not stipulated to the evaluation, the proceedings
would have turned out any differently. D.G. fails to establish that if trial counsel
had not stipulated to the evaluation, then a competency hearing would have been
held and the trial court would have determined D.G. was incompetent. D.G. only
speculates that the result would have been different. Speculation is insufficient to
demonstrate the prejudice component of an ineffective assistance of counsel claim.
E.g., State v. Leonard, 4th Dist. Athens No. 08CA24, 2009-Ohio-6191, ¶68.
Consequently, D.G. cannot show that the outcome would have been any different if
trial counsel had not stipulated to the evaluation or had objected.
{¶ 41} Accordingly, based upon the foregoing reasons, we overrule D.G.’s
third assignment of error and affirm the trial court’s judgment.
JUDGMENT AFFIRMED.
Ross App. Nos. 13CA3382 and 13CA3383 24
Hoover, J., concurs in judgment only and dissents in part:
{¶ 42} I concur in judgment only and dissent in part from the principal
opinion. The principal opinion uses a similar analysis to the one used by this court
in In re D.A.G., 4th Dist. Ross Nos. 13CA3366 and 13CA3367, 2013-Ohio-3414,
¶¶ 44-55 to overrule D.G.'s second assignment of error. Because the appeals at bar
pertain to proceedings that occurred before the revocation proceedings at issue in
the previous appeals, the facts of the case at bar should be analyzed using the
appropriate standards and a similar analysis should not necessarily be relied upon
in deciding the issues regarding the failure to appoint the guardian ad litem in Case
No. 2012DEL0153 and the duality of attorney/guardian ad litem in Case No.
2011DEL0208.
{¶ 43} Because D.G. (also referred to as D.A.G.) failed to object to the fact
that he was not appointed a guardian ad litem in Case No. 2012DEL153, his appeal
is subject to a plain error analysis. Although I believe that a guardian ad litem
should have been appointed in Case No. 2012DEL153, I believe that the outcome
of the trial would not have been any different had a guardian ad litem been
appointed; therefore, I would affirm the judgment of the trial court in Case No.
2012DEL153/ App. Case No.13CA3382.
{¶ 44} In Case No. 2011DEL208, D.G. failed to object to the fact that his
purported guardian ad litem did not act in the capacity of a guardian ad litem.
Ross App. Nos. 13CA3382 and 13CA3383 25
Therefore, D.G.'s appeal is again subject to a plain error analysis. Likewise, even
though I agree with D.G. that the appointed guardian ad litem never acted in the
capacity of a guardian ad litem, when applying the plain error analysis, I do not
believe that the outcome of the trial would have been any different even if the
guardian ad litem had completed an evaluation and a report. Consequently, I would
also affirm the judgment of the trial court in Case No. 2011DEL208/ App. Case
No. 13CA3383.
{¶ 45} The procedural postures of these two consolidated cases (13CA3382
and 13CA3383) are anomalous. The cases, In re D.A.G., 4th Dist. Ross Nos.
13CA3366 and 13CA3367, 2013-Ohio-3414, were appeals from the trial court's
decisions in January 2013 to revoke the probation of appellant, D.G. (also referred
to as D.A.G.) The cases sub judice are the cases underlying the revocation
proceedings. Normally, the appeals on these underlying cases would have been
decided prior to any appeals on the revocation proceedings; however, the notices of
appeal on these consolidated cases were not filed until April 25, 2013. This delay
in filing the notices of appeal was justified due to the fact the D.G. was not served
notice of the filing of the dispositional entries. In re Anderson, 92 Ohio St.3d 63,
67, 748 N.E.2d 67 (2001).
{¶ 46} In Case No. 2011DEL208, the victim of the domestic violence was
D.G.'s mother, Mrs. G. On June 17, 2011, at D.G.'s initial appearance or
Ross App. Nos. 13CA3382 and 13CA3383 26
arraignment, the Court appointed attorney Walter Bevins to represent D.G. in the
dual capacity of attorney and guardian ad litem. After the appointment, the
following exchange took place between the trial court magistrate and Mrs. G:
Mrs. G: I want for him to be held at...uh...JDC until this Trial.
Magistrate: Do you feel like you can't control his conduct?
Mrs. G: Uh...no he's out of control.
{¶ 47} In the adjudicatory hearing, Mrs. G. testified for the State and against
her own son as follows:
Mrs. G.: He went off on another one of his tirades
and...he...was hitting me and Samantha and yelling, calling me
every name in the book and he tried to set the house on fire
and he grabbed my lighter from me to set the house on fire.
He did not once but twice and when I grabbed the lighter from
him, he bit me on the hand and...(sigh) I ended up calling the
police and...trying to get Samantha calm down and...that's
pretty much it.
{¶ 48} As for Case No. 2012DEL153, the victims on the two counts of
domestic violence were D.G.'s mother and sister. The trial court did not appoint a
guardian ad litem for D.G. In April 2012, at the initial appearance or arraignment
in this matter, the following exchange took place:
Ross App. Nos. 13CA3382 and 13CA3383 27
Attorney: On behalf of my client your Honor....uh...he has
asked me to request the Court that foster care placement be
looked into as an alternative as opposed to this gentlemen, this
young man just being locked...uh...it seems to me that the
majority of his problems stem from the home setting and I
would ask that some-some placement other than home be
considered. Nothing further your Honor.
Magistrate: Parents have anything they want to tell me?
Mrs. G: I disagree I think it is his medication and he needs to
be put into a psychiatric facility.
Magistrate: Has he been going to school?
Mrs. G.: No, he has not, he has been refusing to.
The trial court then decided to remand D.G. to the custody of the sheriff's
department to be held at the juvenile detention center pending disposition or trial.
{¶ 49} On May 11, 2012, an adjudicatory hearing was scheduled. The State
and D.G.'s attorney purportedly had an agreement; however, the trial court was not
satisfied that D.G. agreed to the terms of the agreement; and therefore, the
adjudication was rescheduled.
{¶ 50} On May 25, 2013, D.G. appeared for his adjudication on the two
counts of domestic violence in Case No. 2012DEL153, an unruly charge, and the
Ross App. Nos. 13CA3382 and 13CA3383 28
probation violation for Case No. 2011DEL208. In that trial, the probation officer
testified that Mrs. G. reported that D.G. was not taking his medications and was
not following the rules in the home and was leaving without permission. D.G. also
had not attended school as required.
{¶51} Mrs. G. once again testified for the State. D.G.'s mother testified that
D.G. had kicked her in the leg and hit her in the head. She stated that D.G. had
"targeted" her leg as he was aware of her condition that it had been broken in two
places. She also told the court that on the same day, D.G. punched his sister in the
head and bit her a couple of times. Mrs. G. said the altercation was "pretty
violent." She said there was not much she could do as she was in a wheelchair.
Mrs. G. also testified that D.G. had not been obeying her or her husband.
{¶ 52} D.G.'s sister, Miss G., also testified against him at the trial. She
testified that D.G. knocked her down, hit her in the head and was "punch-biting"
her. Miss G. also stated that D.G. bit her on her hand and her arm.
{¶ 53} D.G. testified at the trial also. D.G. testified that he missed school
because a person was making him smoke weed under duress. D.G. admitted to
biting his sister and hitting her in the head several times. D.G. further admitted to
kicking his mother "with like the back of [his] heel or something."
{¶54} This court stated in In re Wilson, 4th Dist. Washington No. 04CA26,
2004-Ohio-7276, ¶¶ 12-13:
Ross App. Nos. 13CA3382 and 13CA3383 29
R.C. 2151.281(A)(2) states that a court shall appoint a guardian ad
litem to protect the interest of a child in any proceeding concerning
an alleged or adjudicated delinquent child when “[t]he court finds
that there is a conflict of interest between the child and the child's
parent ...” (Emphasis added.) Similarly, Juv.R. 4(B) requires that a
guardian ad litem be appointed to protect the interests of a child
whenever the interests of the child and the interests of the parent may
conflict.
These provisions do not require that an actual conflict of interest be
demonstrated. Rather, a showing that the interests “may conflict”
will suffice to trigger the need to appoint a guardian ad litem. See In
re Spradlin (2000), 140 Ohio App.3d 402, 407, 747 N.E.2d 877; In
re Sappington (1997), 123 Ohio App.3d 448, 453, 704 N.E.2d 339.
The failure to appoint a guardian ad litem, when required by R.C.
2151.281(A) and Juv.R. 4(B), constitutes reversible error. In re
Spradlin, supra, at 406, 747 N.E.2d 877 In re Sappington, supra, at
452, 704 N.E.2d 339; In re K.J.F., Clark App. No.2003–CA–41,
2004–Ohio–263, at ¶ 23.
{¶55} In light of the above cited case law, it would appear that a guardian ad
litem would be required in both cases. At the initial appearance in Case No.
Ross App. Nos. 13CA3382 and 13CA3383 30
2011DEL208, Mrs. G. testified that D.G. was out of control and that she could not
handle him. She wanted the court to hold D.G. in the juvenile detention center. At
the initial appearance in Case No. 2012DEL153, Mrs. G. testified that D.G. should
be held in a psychiatric facility while D.G.'s attorney asked that he be placed in
foster care due to home issues. At these early points in these proceedings, the trial
court should have determined that a "conflict of interest between the child and the
child's parent" existed. In Case No. 2012DEL153, the trial court should have
appointed a guardian ad litem then. In Case No. 2011DEL208, the appointed
guardian ad litem should have acted as such and proceeded with his investigation
as a guardian ad litem.
{¶56} During the adjudicatory hearings in both cases, it was clear that the
victims of the cases were family members, D.G.'s mother and sister. Even if the
conflict of interest was not clear at the arraignment, the conflict should have been
clear at this point. The case at bar is similar to the facts in Wilson, Id. at ¶¶15-16.
The perpetrator and the victims were in the same family unit. As the court in
Wilson stated, "[t]his placed the appellant's parents, particularly his mother, in a
very awkward position. Appellant's mother testified for the prosecution at the
adjudicatory hearing...* * * The fact that a conflict of interest may exist required
the appointment of a guardian ad litem."
Ross App. Nos. 13CA3382 and 13CA3383 31
{¶57} When overruling D.G.'s second assignment of error, the principal
opinion relies on the fact that "D.G.'s parents did not request the court to
institutionalize D.G. Instead, D.G.'s mother wrote a heart-felt note to the court
requesting that the court not commit her child to DYS and imploring the court to
return D.G. to his home." However, this "heartfelt letter" did not even exist at the
time of these underlying cases. This "heartfelt letter" is not in the record for these
underlying cases. When determining whether to appoint a guardian ad litem, the
appointment should be made early in the proceedings, not after the disposition. In
order to be effective in the process, the guardian ad litem needs to be active
throughout the proceedings.
{¶58} Even though in Case No. 2011DEL208, a guardian ad litem was
actually appointed, the record is completely devoid of any evidence that the
appointed guardian ad litem actually acted in that capacity. There is no guardian
ad litem report. There is no evidence that the guardian ad litem did any type of
investigation into D.G.'s home or family life. Furthermore, there is no evidence
that the guardian ad litem reviewed D.G.'s medical, psychological, or psychiatric
records, if any. No evidence in the record exists that the guardian ad litem reviewed
any of D.G.'s school records either. Therefore, even though the Court appointed a
guardian ad litem in Case No. 2011DEL208, the guardian ad litem did not act in
such capacity.
Ross App. Nos. 13CA3382 and 13CA3383 32
{¶59} This court stated in State v. Alexander, 4th Dist. Adams No.
12CA945, 2013-Ohio-1913, ¶¶ 10-11:
Under Crim.R. 52(B) “[p]lain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention
of the court.” “Thus, there are ‘three limitations on a reviewing
court's decision to correct an error despite the absence of a timely
objection at trial. First, there must be an error, i.e., a deviation from a
legal rule. * * * Second, the error must be plain. To be “plain” within
the meaning of Crim.R. 52(B), an error must be an “obvious” defect
in the trial proceedings. * * * Third, the error must have affected
“substantial rights.” Courts have interpreted this aspect of the rule to
mean that the trial court's error must have affected the outcome of
the trial.’ “ State v. Lynn, 129 Ohio St.3d 146, 2011–Ohio–2722, 950
N.E.2d 931, ¶ 13, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759
N.E.2d 1240 (2002).
“Even when all three prongs are satisfied, a court still has discretion
whether or not to correct the error.” Lynn at ¶ 14. The Supreme
Court of Ohio has acknowledged the discretionary aspect of Crim.R.
52(B) by cautioning courts to notice plain error “with the utmost
caution, under exceptional circumstances and only to prevent a
Ross App. Nos. 13CA3382 and 13CA3383 33
manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91,
372 N.E.2d 804 (1978), paragraph three of the syllabus.
{¶60} In the case at bar, although I believe that an error has occurred, the
error is not obvious, as my opinion differs from the principal opinion. In addition, I
do not believe that the trial court's error affected the outcome of the trial. Thus, I
believe that only one of the three prongs has been satisfied. This is not a case
wherein plain error needs to be noticed to prevent a manifest miscarriage of justice.
{¶ 61} Therefore, I would affirm the judgments of the trial court with
respect to each case.
Ross App. Nos. 13CA3382 and 13CA3383 34
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Ross County
Common Pleas Court, Juvenile Division, to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a stay is continued by
this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of
the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day
appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days,
the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
Abele, P.J.: Concurs in Judgment and Opinion.
Hoover, J: Concurs in Judgment Only and Dissents in Part with Opinion.
For the Court,
BY: ___________________________________
Matthew W. McFarland, 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.