In re Z.M.W

[Cite as In re Z.M.W, 2012-Ohio-1785.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
IN THE MATTER OF: :
:
Z.M.W. : Case No. 11CA24
:
: Released: April 12, 2012
:
Adjudicated Delinquent Child : DECISION AND JUDGMENT
: ENTRY
_____________________________________________________________
APPEARANCES:
Timothy Young, Ohio Public Defender, and Brooke M. Burns, Assistant
State Public Defender, Columbus, Ohio, for Appellant.
Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M.
Stacks, Assistant Prosecuting Attorney, Athens, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Appellant, Z.M.W., appeals from the judgment of the Athens
County Court of Common Pleas, Juvenile Division, revoking his probation
and committing him to the custody of Department of Youth Services
(“DYS”). On Appeal, Appellant contends that 1) the juvenile court
committed plain error and violated his right to due process when it found
him delinquent of a probation violation without complying with the
requirements of Juv.R. 29(D); and 2) he was denied the effective assistance
of counsel when trial counsel failed to object to the revocation of his
Athens App. No. 11CA24 2
probation though the juvenile court revoked his probation without
complying with Juv.R. 29(D).
{¶2} Based upon our determination that the trial court failed to
substantially comply with Juv.R. 29(D) in accepting Appellant’s admission
to the probation violation, we cannot conclude that Appellant’s admission
was knowingly and voluntarily made. As such, Appellant’s first assignment
of error is sustained, the judgment of the trial court is reversed, Appellant’s
admission is vacated, and the matter is remanded for further proceedings.
Further, in light of our disposition of Appellant’s first assignment of error,
Appellant’s second assignment of error has been rendered moot. Thus, we
decline to address it.
FACTS
{¶3} On October 9, 2007, Appellant was adjudicated a delinquent
minor in the Athens County Court of Common Pleas, Juvenile Division, for
having committed acts that, if committed by an adult, would constitute the
offense of rape, in violation of 2907.02(A)(1)(B), a felony of the first
degree. Appellant’s disposition included a commitment to DYS for an
indefinite term consisting of a minimum period of three years and maximum
period not to exceed the child’s attainment of age twenty-one (21) years of
age. Appellant’s DYS commitment was stayed and he was placed in a foster
Athens App. No. 11CA24 3
home and put on probation. Over then next several years, Appellant went
through multiple placements and was charged with additional offenses,
including a charge of grand theft, a felony if committed by an adult, for
which Appellant was given a second suspended commitment to DYS.
Appellant continued on from placement to placement, including a placement
at Tri-State Youth Academy, which is located in Morrow County. It is this
placement from which Appellant’s current probation violation stems.
{¶4} On June 24, 2011, a detention hearing was held in Morrow
County after Appellant was taken into custody after absconding from
the Tri-State Youth Academy and assaulting several of the academy
employees. During that detention hearing, Appellant was advised of
his rights by the magistrate, which advisement included Appellant’s
right to counsel, right to remain silent, right to a trial, right to confront
witnesses, right to compulsory process and right to object to the
magistrate’s decision. However, the magistrate explained that these
rights were limited to Appellant’s current detention and need for
continued detention only. In fact, the magistrate prefaced the
explanation of Appellant’s right as follows:
“You are here on a detention hearing. I am not here in any way,
shape or form to adjudicate or decide what it is that you are
Athens App. No. 11CA24 4
alleged to have done. Okay. We are not here to decide that.
What I have to do is I’m here to do two things. I have to make
a determination you have been detained. You have been in
detention and I have to make a determination that your
detention was lawful. * * * I then have to decide whether or
not further detention is warranted.”
At the time of the detention hearing, a formal probation violation had not
been filed.
{¶5} Another hearing was held on June 27, 2011, with a judge in
Morrow County, after the probation violation was filed. Counsel was
appointed and present with Appellant at the hearing, which was described by
the judge as a “detention hearing in terms of proceed with this particular
matter and/or the determination on the motion to revoke on whether there is
an admission or denial.” Appellant admitted the probation violation at the
hearing, and the matter was transferred back to Athens County for
disposition. Disposition hearings were held on July 22 and August 10, 2011,
which ultimately resulted in the revocation of Appellant’s probation and the
imposition of Appellant’s previously stayed DYS commitment. It is from
the juvenile court’s August 11, 2011, journal entry that Appellant now
brings his timely appeal, assigning the following errors for our review.
Athens App. No. 11CA24 5
ASSIGNMENTS OF ERROR
"I. THE JUVENILE COURT COMMITTED PLAIN ERROR AND
VIOLATED Z.W.’S RIGHT TO DUE PROCESS WHEN IT FOUND
HIM DELINQUENT OF A PROBATION VIOLATION WITHOUT
COMPLYING WITH THE REQUIREMENTS OF JUV.R. 29(D).
II. Z.W. WAS DENIED THE EFFECTIVE ASSISTANCE OF
COUNSEL WHEN TRIAL COUNSEL FAILED TO OBJECT TO
THE REVOCATION OF HIS PROBATION THOUGH THE
JUVENILE COURT REVOKED HIS PROBATION WITHOUT
COMPLYING WITH JUV.R. 29(D).”
ASSIGNMENT OF ERROR I
{¶6} In his first assignment of error, Appellant contends that the
juvenile court committed plain error and violated his right to due process
when it found him delinquent of a probation violation without complying
with the requirements of Juv.R. 29(D). Specifically, Appellant argues that
the trial court failed to personally address him before it determined that his
admission was entered voluntarily, knowingly, and intelligently. Appellant
further contends that the trial court failed to explain the nature of the
allegations, the consequences of an admission, and the rights he would be
giving up if he entered an admission. Appellant contends that the trial
court’s reference to the rights, as explained to him by the magistrate in the
previous hearing, did not meet the requirements of Juv.R. 29. The State
disagrees, contending that the trial court complied with Juv.R. 29.
Athens App. No. 11CA24 6
{¶7} Initially, we note appellant failed to object to the magistrate's
decision. The State argues that, as such, Appellant has waived all but plain
error. However, Appellant, relying on a case from the Fifth District, argues
he was not required to file objections in order to preserve this issue on
appeal. Based upon the following, we agree.
{¶8} In In re David G., Fifth Dist. No. 2008CA00243 and 00244,
2009-Ohio-4002, (Aug. 3, 2009), a case dealing with a juvenile’s admission
to violation of a prior court order, the court reasoned at ¶ 31 that even where
objections were not filed, “the Supreme Court of Ohio defined the standard
of review as whether, under the totality of the circumstances, the juvenile
subjectively understood the implications of his plea.” Citing In re C.S., 115
Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177 at ¶ 113.1 Interestingly,
in In re C.S. the Supreme Court of Ohio expressly acknowledged that C.S.
and his mother were informed of their right to object to the magistrate’s
decision in accordance with Juv.R. 40 and waived any objections. In re C.S.
at ¶ 62. As such, we will not limit our review to a plain error analysis,
despite Appellant’s failure to file objections to the magistrate’s decision.2
1
In re C.S., supra, reversed the decision of the Fifth District Court of Appeals in In re Spears, Fifth Dist.
App. No. 2005CA93, 2006-Ohio-1920 (Apr. 17, 2006), which had applied a plain error analysis based upon
Spears’ failure to file objections to the magistrate’s decision, and instead addressed the issues based upon a
substantial compliance analysis, which will be discussed in further detail, infra.
2
We further note that the only issue the magistrate considered here was Appellant’s initial and continued
detention. The magistrate did not hear or consider any issue related to Appellant’s probation violation,
which matter was solely determined by the judge.
Athens App. No. 11CA24 7
{¶9} The Supreme Court of Ohio has recently held that Juv.R. 29 is
applicable to probation revocation hearings. In re L.A.B., 121 Ohio St.3d
112, 2009-Ohio-354, 902 N.E.2d 471, syllabus.3 Of relevance herein, Juv.R.
29 states:
(D) Initial procedure upon entry of an admission.
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;
(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. (Emphasis added).
{¶10} The Supreme Court of Ohio observed in In re C.S. that “most
courts of appeal have held that only substantial compliance with Juv.R. 29 is
needed[,] and in making this observation the Court agreed with that
3
Regarding the application of Juv.R. 29 to probation revocation hearings, the Court reasoned that
“[b]ecause the conditions of probation are established through a court order, a violation of probation also
constitutes a violation of a court order.” In re L.A.B. at ¶ 49.
Athens App. No. 11CA24 8
approach. In re C.S. at ¶ 112 (internal citations omitted.) Although the focus
of In re C.S. was on a juvenile's waiver of the right to counsel at a probation
revocation hearing, the Supreme Court held as follows:
[I]n a juvenile delinquency case, the preferred practice is strict
compliance with Juv.R. 29(D). We further hold, however, that
if 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. at ¶ 113.
The substantial compliance standard, as set forth in In re C.S. remains in
tact, and was subsequently adhered to by the Supreme Court of Ohio in In re
L.A.B., supra, at ¶ 57, with respect to a waiver of counsel issue. Thus, we
must determine whether the juvenile court substantially complied with the
requirements of Juv.R. 29(D), based upon the totality of the circumstances,
which involves a determination as to whether Appellant subjectively
understood the implications of his plea.
Athens App. No. 11CA24 9
{¶11} Here, as set forth above, the magistrate advised Appellant of his
rights during the detention hearing held on June 24, 2011. However, the
magistrate was careful to limit the explanation of those rights to the
detention hearing. The record reveals that at the subsequent hearing held
before a judge on June 27, 2011, the judge did, contrary to Appellant’s
assertion, personally address Appellant and inquire as to whether he wished
to enter a plea of admission. Although the manner in which the court
conducted this personal colloquy is confusing, it appears the court did
personally address Appellant to insure it was his intention to enter an
admission. However, based upon our review of the record, we conclude that
the trial court did not insure Appellant understood the rights he was waiving
by entering an admission, nor was Appellant informed at any point that a
possible consequence of his admission would be imposition of his
previously stayed DYS commitment.
{¶12} Specifically, the transcript from the second hearing, described
by the trial court as a detention/probation hearing, reveals that the trial court
did not explain Appellant’s rights at all. Instead, the trial court made two
passing references to the rights which were explained by the magistrate in
the previous hearing. For instance, at the beginning of the hearing the trial
court simply stated that “[y]ou have signed all the appropriate waivers of
Athens App. No. 11CA24 10
rights and had your rights explained to you by the magistrate before.” Later
in the hearing the trial court stated “[a]nd you were previously asked
questions about knowingly, voluntarily and all that stuff by Magistrate
Freiman; is that right?”
{¶13} At no point during the hearing did the trial court even attempt
to enumerate those rights for Appellant. We are mindful that Appellant was
informed of his rights during the detention hearing. However, we cannot
conclude that the trial court’s mere reference to rights enumerated during a
detention hearing, which rights were expressly limited to the detention
hearing by the magistrate himself, constitute substantial compliance with
Juv.R. 29(D) for purposes of accepting an admission during a subsequent
probation violation/revocation hearing. See In re E.L., Eighth Dist. No.
90848, 2010-Ohio-1413, ¶ 17 (Apr. 1, 2010). We are further troubled by the
fact that the trial court did not advise Appellant that an admission to the
probation violation could result in revocation of his probation and
imposition of his previously stayed DYS commitment.
{¶14} In fact, it was stated on the record by the trial court during the
hearing, prior to acceptance of Appellant’s admission, that a representative
from Athens County was present and had a placement for Appellant. We
believe, after reviewing the transcript, that this statement was misleading
Athens App. No. 11CA24 11
and in effect suggested to Appellant that he would be going back to Athens
County and would be placed there, rather than informing Appellant that he
could be facing a DYS commitment. As such, we cannot conclude that
Appellant subjectively understood the implications of his plea.
{¶15} In light of the foregoing, we find Appellant’s admission was not
knowingly, intelligently, or voluntarily made, where based upon the totality
of the circumstances, we conclude that the trial court failed to substantially
comply with Juv.R. 29(D) in accepting Appellant’s admission. Thus,
Appellant’s first assignment of error is sustained. Accordingly, the decision
of the trial court is reversed, Appellant’s admission is vacated, and this
matter is remanded to the trial court.
ASSIGNMENT OF ERROR II
{¶16} In his second assignment of error, Appellant contends that he
was denied the effective assistance of counsel when trial counsel failed to
object to the revocation of his probation though the juvenile court though the
juvenile court revoked his probation without complying with Juv.R. 29(D).
Because our disposition of Appellant’s first assignment of error resulted in
the reversal of the trial court’s decision and Appellant’s admission being
vacated, Appellant’s second assignment of error has been rendered moot.
Thus, we decline to address it. See App.R. 12(A)(1)(c).
Athens App. No. 11CA24 12
JUDGMENT REVERSED IN PART, VACATED IN PART, AND
CAUSE REMANDED.
Harsha, J., Dissenting:
{¶17} Contrary to the principal opinion’s contention, it is the
appellant who has invoked a plain error standard of review here. See
appellant’s first assignment of error. Thus, I believe that standard is
appropriate. Finding no manifest miscarriage of justice given appellant’s
representation by counsel and familiarity with the juvenile process, i.e., his
numerous prior appearances for violations of court orders, I would affirm the
trial court’s judgment.
Athens App. No. 11CA24 13
JUDGMENT ENTRY
It is ordered that the JUDGMENT REVERSED IN PART,
VACATED IN PART, AND CAUSE REMANDED and that the Appellant
recover of Appellee.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing
the Athens County Court of Common Pleas, Juvenile Division to carry this
judgment into execution.
Any stay previously granted by this Court is hereby terminated as of
the date of this entry.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Abele, P.J.: Concurs in Judgment and Opinion.
Harsha, J.: Dissents with Dissenting 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.