[Cite as In re K.H., 2013-Ohio-5743.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
Nos. 99981 and 99982
IN RE: K.H.
A Minor Child
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL 13100558
BEFORE: Jones, P.J., S. Gallagher, J., and Blackmon, J.
RELEASED AND JOURNALIZED: December 26, 2013
ATTORNEYS FOR APPELLANT
Timothy Young
State Public Defender
Sheryl A. Trzaska
Assistant State Public Defender
250 East Broad Street
Suite 1400
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Joseph J. Ricotta
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:
{¶1} Juvenile-appellant, K.H., appeals his commitment to the Ohio Department of
Youth Services (“DYS”). We affirm.
I. Procedural History
{¶2} In 2009, K.H. was found delinquent of aggravated robbery with a one-year
firearm specification and felonious assault. He was committed to DYS for a period of
two years up to his twenty-first birthday. When he was released from DYS, he was
placed on parole, but he violated parole, and was placed at a residential center and
continued on probation.
{¶3} In 2013, K.H. was charged with escape and with violating his probation in
his aggravated robbery case after he failed to return to the residential center after being
allowed to visit his father during the 2012 Christmas holiday. He admitted to both
charges and the juvenile court committed him to DYS for a minimum of one year,
maximum to his twenty-first birthday. The court also revoked his probation in his
aggravated robbery case and committed him to DYS for a minimum period of 90 days.
The court later issued a nunc pro tunc journal entry and ordered that the two
commitments be served consecutively.
{¶4} K.H. filed a delayed notice of appeal in both cases and this court granted him
leave to appeal. K.H. raises the following three assignments of error for our review:
[I]. The juvenile court committed plain error when it
ordered [K.H.] to serve a
minimum period of ninety days
for a revocation of his supervised
release, because the court is
limited to determining whether the
child should be returned to the
Department of Youth Services,
and may not commit a child for a
prescribed period of time. R.C.
5139.52(F).
[II.] The juvenile court committed plain error when it ordered [K.H.’s]
revocation be served consecutively to his new commitment, because a
juvenile court may not order a revocation of supervised release to be served
consecutively to a new commitment to the Department of Youth Services.
R.C. 2152.17.
[III]. [K.H.] was denied effective assistance of counsel when his attorney
failed to object to the imposition of an unlawful, consecutive commitment.
Sixth and Fourteenth Amendments to the United States Constitutions; Ohio
Constitution Article I, Sections 10 and 16.
{¶5} We have consolidated the two appeals for briefing and disposition.
II. Law and Analysis
Length of Commitment
{¶6} In the first assignment of error, K.H. claims that the trial court erred when it
ordered him to serve a minimum sentence of 90 days for his violating the terms of his
probation. According to K.H., only DYS, not the court, may impose a term longer than
30 days for a violation of his supervised release. K.H. concedes that because he did not
object to the trial court’s imposition of sentence, he has waived all but plain error. Plain
error exists when, but for the error, the outcome would have been different. In re J.T.,
8th Dist. Cuyahoga No. 93241, 2009-Ohio-6224, ¶ 67.
{¶7} R.C. 5139.52(F) governs the violation of supervised release and provides, in
part:
If the court * * * determines at the hearing that the child violated one or
more of the terms and conditions of the child’s supervised release, the court
* * * may revoke the child’s supervised release and order the child to be
returned to the department of youth services for institutionalization or, in
any case, may make any other disposition of the child authorized by law that
the court considers proper. If the court orders the child to be returned to a
department of youth services institution, the child shall remain
institutionalized for a minimum period of thirty days * * *. [T]he release
authority, in its discretion, may require the child to remain in
institutionalization for longer than the minimum thirty-day period, and the
child is not eligible for judicial release or early release during the minimum
thirty-day period of institutionalization or any period of
institutionalization in excess of the minimum thirty-day period.
{¶8} The state notes that this court dealt with an analogous situation in In re D.B.,
8th Dist. Cuyahoga No. 87445, 2012-Ohio-2505, and held that R.C. 5139.52(F)
authorizes juvenile courts to impose a sentence greater than the minimum 30-day
commitment period for a supervised release violation.
{¶9} In In re D.B., D.B. violated his probation; the court revoked his probation and
committed him to DYS. The court subsequently granted him judicial release and placed
him under DYS supervision (parole). D.B. violated the terms of his parole and the trial
court sent him back to DYS for 90 days. He was released from DYS custody, but was
later recommitted to the institution for another 90 days after again violating the terms and
conditions of his parole.
{¶10} After D.B. was released from DYS, he violated parole another time and was
recommitted to DYS. As part of his commitment, the trial court ordered that he be
returned to DYS custody for a period of not less than 90 days or until he completed a
specialized release program. D.B. appealed, arguing that the trial court did not have the
authority to order more than a 30-day commitment.
{¶11} This court disagreed, concluding that although the governing statute, R.C.
5139.52(F), provides that a child “shall remain institutionalized for a minimum period of
thirty days, the statute does not provide that a child may only be institutionalized for only
30 days; rather, it states that the child must be given a minimum commitment of 30 days.”
In re D.B. at ¶ 18.
{¶12} This court reasoned that R.C. 5139.52(F) gives a juvenile court the
discretion to “make any other disposition of the child authorized by law that the court
considers proper” and “[u]se of the word ‘any’ means that the trial court had discretion to
take any steps the court believed necessary to fully and completely implement the
rehabilitative disposition of the child, including that of committing D.B. to DYS for 90
days.” Id.
{¶13} K.H. acknowledges our holding in In re D.B., but urges this court to reverse
and follow the Second, Eleventh, and Twelfth Appellate Districts in holding that R.C.
5139.52(F) does not authorize a juvenile court to return a child to the custody of the DYS
for more than the minimum period of 30 days. In re J.C., 11th Dist. Geauga No.
2012-G-3105, 2013-Ohio-2819; In re I.M., 2d Dist. Clark No. 2012 CA 20,
2012-Ohio-3847; In re L.B.B., 12th Dist. Butler No. CA2012-01-011, 2012-Ohio-4641.1
We decline to do so.
{¶14} For reasons stated in D.B., we find that the statute allows the trial court to
sentence a juvenile to more than 30 days of commitment. The trial court in this case had
The Ohio Supreme Court certified a conflict on this issue and the matter is pending review.
1
In re L.L.B., 134 Ohio St.3d 1446, 2013-Ohio-347, 982 N.E.2d 726; In re H.V., 134 Ohio St.3d 1417,
the discretion and authority to fashion a sentence it found most appropriate for K.H. As
will be discussed under the second assignment of error, the trial court did not abuse its
discretion in sentencing K.H. to a 90-day commitment to DYS for his probation violation.
{¶15} The first assignment of error is overruled.
Consecutive Commitments
{¶16} In the second assignment of error, K.H. argues that the court erred in
ordering K.H.’s revocation be served consecutively to his new commitment because a
juvenile court may not order a revocation of supervised release to be served consecutively
to a new term of commitment.
{¶17} A juvenile court’s order of disposition will not be reversed absent an abuse
of discretion. In re D.S., 111 Ohio St.3d 361, 2006-Ohio-5851, 856 N.E.2d 921, ¶6.
An abuse of discretion implies that the trial court’s attitude was unreasonable, arbitrary,
or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983).
{¶18} K.H. argues that the trial court improperly imposed consecutive terms of
commitment because R.C. 2152.17(F) does not allow a court to impose a commitment for
a parole or probation violation consecutive to another term of commitment. R.C.
2152.17(F) provides:
If a child adjudicated a delinquent child for committing two or more acts
that would be felonies if committed by an adult and if the court * * * orders
the commitment of the child for two or more of those acts to the legal
2013-Ohio-158, 981 N.E.2d 884.
custody of the department of youth services * * * the court may order that
all of the periods of commitment imposed under those sections for those
acts be served consecutively * * * .
{¶19} According to K.H., a court may only sentence a juvenile to consecutive
terms of commitment when a court adjudicates a child delinquent for two or more acts
that would be felonies if committed by an adult; that is, Ohio law does not authorize
consecutive commitments for parole or probation violations. The state argues that R.C.
2152.17(F) is not the sole governing authority that allows a juvenile court to impose
consecutive sentences; because a juvenile court enjoys broad discretion to craft an
appropriate disposition for a child adjudicated delinquent, the court has discretion to
impose consecutive terms of commitment.
{¶20} The state cites a recent decision by the Eleventh Appellate District to
support its position. In In re N.P., 11th Dist. Ashtabula No. 2012-A-0024,
2013-Ohio-1288, appeal allowed, 136 Ohio St.3d 1449, 2013-Ohio-3210, 991 N.E.2d
256, the Eleventh Appellate District held that, although R.C. 2152.17(F) is inapplicable to
sentences for parole violations, because a juvenile court has discretion to craft an
appropriate disposition for a child adjudicated delinquent, it has the inherent authority to
run the child’s parole violation consecutive to another term of commitment. Id. at ¶ 17.
A juvenile court may commit a child to the custody of ODYS for an
indefinite term, not to exceed the child’s 21st birthday. R.C. 2152.16(A).
It was therefore within the trial court’s inherent authority to run appellant’s
parole violations consecutively.
Id.; see also In re H.V., 9th Dist. Lorain Nos. 11CA010139 and 11CA010140,
2012-Ohio-3742, ¶ 9, appeal allowed, 134 Ohio St.3d 1417, 2013-Ohio-158, 981 N.E.2d
884; In re K.P., 9th Dist. Lorain No. 12CA010183, 2012-Ohio-5814, ¶ 7 (holding that it
is within the inherent authority of the juvenile court to run parole violations consecutively
to DYS commitments for new crimes).
{¶21} By the plain language of the statute, R.C. 2152.17(F) only applies when a
child has been adjudicated delinquent for the commission of two or more acts that would
be felonies if committed by an adult. Therefore, the statute is inapplicable to the case at
bar.
{¶22} We acknowledge that the Ohio Supreme Court is currently reviewing the
Eleventh and Ninth Districts’ approach to consecutive terms of commitment when one of
the terms is a probation or parole revocation. A juvenile court is mandated to impose
dispositions that achieve the overriding purpose of R.C. 2152.01(B), which
are to provide for the care, protection, and mental and physical development
of children * * * , protect the public interest and safety, hold the offender
accountable for the offender’s actions, restore the victim, and rehabilitate
the offender.
In doing so, juvenile courts are specially charged with providing for the “care, protection,
and mental and physical development of children subject to this chapter * * * .” R.C.
2152.01(A). In allowing the trial court the discretion to fashion an appropriate sentence
for a given child, including the imposition of consecutive terms of commitment, a court
may best try to achieve these statutory purposes.
{¶23} At the dispositional hearing in this case, K.H.’s father, stepmother, attorney,
guardian ad litem, probation officer, parole officer, and the prosecutor were present in
court. The juvenile court noted that K.H. failed to return to the residential center after
being allowed to visit his father on a Christmas home pass. The court further noted that
K.H. was not located until February 2013, when he was found at a hospital being treated
for two gunshot wounds to the abdomen.
{¶24} The court took into consideration that the residential center where K.H. had
been living would not take him back, K.H.’s father told the court that his son had no
remorse for his actions and would continue to “run the streets,” and K.H.’s guardian ad
litem opined that the most appropriate placement for the child was DYS. The court also
noted that K.H.’s history with the court began when he was 13 years old and shot another
juvenile in the face; he then committed aggravated robbery and violated his parole.
{¶25} The court determined it “literally ha[d] no other options to protect the safety
of the community and [K.H.] besides ODYS.” The court told K.H. that it was
specifically crafting his commitment so that he would be released from DYS around his
18th birthday.
{¶26} In light of the above, the trial court did not abuse its discretion in running
K.H.’s probation violation consecutive to his term of commitment for escape.
{¶27} The second assignment of error is overruled.
Ineffective Assistance of Counsel
{¶28} In the third assignment of error, K.H. argues that he was afforded ineffective
assistance of counsel because his attorney did not object to the length of his commitment.
{¶29} “The benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result.” Strickland v. Washington,
466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to succeed on a
claim of ineffective assistance of counsel, K.H. must satisfy a two-prong test. First, he
must demonstrate that his trial counsel’s performance was deficient. Id. at 687. If he
can show deficient performance, he must next demonstrate that he was prejudiced by the
deficient performance. Id. To show prejudice, K.H. must establish there is a
reasonable probability that, but for his counsel’s unprofessional errors, the result of his
dispositional hearing would have been different.
{¶30} Because we have concluded that the court did not err in sentencing, we
cannot conclude that counsel was ineffective for failing to object at the length of his
commitment. Therefore, K.H. is unable to show that he received ineffective assistance
of counsel.
{¶31} The third assignment of error is overruled.
{¶32} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court, juvenile division, to carry this judgment into execution. The finding of
delinquency having been affirmed, any bail or stay of execution pending appeal is
terminated. Case remanded to the trial court for execution of commitment.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
LARRY A. JONES, SR., PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
PATRICIA ANN BLACKMON, J., CONCUR