In re A.R.

[Cite as In re A.R., 2017-Ohio-8058.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
Nos. 104869, 104870, 104871,
104872, 104873, 104875, and 104876

IN RE: A.R.

JUDGMENT:
REVERSED AND REMANDED

Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case Nos. DL-14112213, DL-15102047, DL-15105955,
DL-15103378, DL-15102238, DL-15105280, and DL-15114582

BEFORE: Laster Mays, J., E.A. Gallagher, P.J., and E.T. Gallagher, J.

RELEASED AND JOURNALIZED: October 5, 2017
-i-
ATTORNEYS FOR APPELLANT

Timothy Young
Ohio Public Defender

By: Victoria Bader
Assistant Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215

ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Vencot Brown
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

{¶1} Defendant-appellant A.R. appeals his admission to a probation violation and

asks this court to vacate his adjudication and remand for a new hearing. We vacate and

remand.

{¶2} A.R. was found to be in violation of the terms of his probation. The trial

court invoked the suspended sentences on seven prior cases where A.R. was the

defendant. A.R. was sentenced to the Ohio Department of Youth Services (“DYS”) for

five years with 487 days credit on all seven cases.

I. Facts

{¶3} A.R. was first adjudicated delinquent in the Cuyahoga County Juvenile Court

on November 20, 2014, for robbery, a second-degree felony if committed by an adult, in

violation of R.C. 2911.02(A)(2). The court sentenced A.R. to DYS for a minimum

period of 12 months, but stayed the commitment for 45 days, and placed him on

community control for one year. On March 9, 2015, A.R. was adjudicated delinquent

for theft, a fourth-degree felony if committed by an adult, in violation of R.C.

2913.51(A). The court sentenced A.R. to DYS for six months, but suspended that

commitment under the condition that A.R. participate and successfully complete a

treatment program. The court ordered A.R. to complete 50 hours of community service

and pay $250 in restitution.
 {¶4} Again that year, on September 28, 2015, the court adjudicated A.R.

delinquent on six additional cases. In the first case, he was adjudicated delinquent for

robbery, a second-degree felony, in violation of R.C. 2911.02(A)(2). The court

sentenced A.R. to a 12-month suspended sentence to DYS, and placed him on community

control for one year. In the second case, A.R. was adjudicated delinquent for burglary, a

second-degree felony, in violation of R.C. 2911.12(A)(1); and theft, a first-degree

misdemeanor, in violation of R.C. 2913.02(A)(1). The court sentenced A.R. to a

six-month suspended sentence to DYS. A.R.’s third adjudication was for receiving

stolen property, a fourth-degree felony, in violation of R.C. 2913.51(A); and burglary, a

second-degree felony, in violation of R.C. 2911.12(A). The court sentenced A.R. to a

six-month suspended sentence to DYS.

{¶5} A.R. was adjudicated delinquent in the fourth case for burglary, a

second-degree felony, in violation of R.C. 2911.12(A); and criminal damaging or

endangering, a second-degree misdemeanor, in violation of R.C. 2909.06(A)(1). A.R.

was sentenced to a 12-month suspended sentence on the burglary count, and 90 days

suspended sentence on the criminal damaging count, to be served concurrently. In the

final two cases, A.R. was adjudicated delinquent for burglary, a third-degree felony, in

violation of R.C. 2911.12(A). The court sentenced A.R. to a six-month suspended

sentence in both cases. The court ordered the sentences on all six cases to be served

consecutively.
 {¶6} On December 4, 2015, the probation department filed a motion for violation

of probation in the November 2014 case alleging that A.R. failed to follow the terms of

his probation by not reporting his whereabouts and failing to attend school. On March

16, 2016, A.R. admitted to the court that he violated his probation. In addition, he was

adjudicated delinquent for attempted grand theft, a fifth-degree felony, in violation of

R.C. 2923.21(A)(1) and 2913.02(A)(1); and criminal trespass, a fourth-degree

misdemeanor, in violation of R.C. 2911.21(A)(1). On April 1, 2016, the court

maintained the suspended one- year commitment on the violation of probation as long as

A.R. participated in treatments and placement at Hillcrest Academy until he successfully

completed the program.

{¶7} In July 2016, the probation department filed a motion for violation of

probation on Cuyahoga C.P. Juv. No. DL-14112213, the first case he was adjudicated

delinquent, stating A.R. violated the terms of his probation when he was unsuccessfully

discharged from Hillcrest. No other motions regarding any other cases were filed.

Later on that month, the court held a hearing on the probation violation motion. During

the proceedings, the court addressed A.R. stating,

COURT: [T]he penalty for this is going to be to send you to ODYS. I
will give you credit for time served, but the balance of
whatever time that you have not served, you may have to
serve at ODYS.

Do you understand?”
(Tr. 8.). The court then asked A.R. if he admitted or denied that he violated his

probation. He admitted. The court then sentenced A.R. to the Ohio Department of

Youth Services (“DYS”) for five years with 487 days credit on all seven cases.

{¶8} A.R. has filed this timely appeal and argues three assignments of error for our

review.

I. A.R.’s admission to this probation violation was not knowing,
intelligent, and voluntary, in violation of the Fifth and Fourteenth
Amendments to the United States Constitution; Article I, Sections 10
and 16 of the Ohio Constitution; and Juvenile Rule 29;

II. The juvenile court violated A.R.’s right to due process of law when
it failed to follow the requirements of Juv.R. 35; Fifth and
Fourteenth Amendments to the United States Constitution; Article I,
Section 16 of the Ohio Constitution; and

III. A.R. was denied the effective assistance of counsel when trial
counsel failed to object to the juvenile court’s failure to comply with
Juv.R. 35, Sixth and Fourteenth Amendments to the United States
Constitution, and Article I, Section 10 of the Ohio Constitution.

II. Probation Violation Admission

A. Standard of Review

{¶9} “We employ a de novo standard of review in determining the juvenile

court’s degree of compliance with Juv.R. 29. See In re Beckert, 8th Dist. Cuyahoga No.

68893, 1996 Ohio App. LEXIS 3319.” In re E.L., 8th Dist. Cuyahoga No. 90848,

2010-Ohio-1413, ¶ 12.
 B. Law and Analysis

{¶10} In A.R.’s first assignment of error, he argues that his admission to the

probation violation was not knowing, intelligent, and voluntary because the juvenile court

failed to substantially comply with Juv.R. 29(D). We agree.

In accepting an admission from a juvenile, the court is required to
personally address the juvenile and conduct an on-the-record discussion to
determine whether the admission is being made voluntarily and with an
understanding of the nature of the allegations and the possible
consequences of the admission. Juv.R. 29(D)(1); In re McKenzie, 102 Ohio
App.3d 275, 277, 656 N.E.2d 1377 (1995).

In re Stone, 5th Dist. Coshocton No. 04-CA-013, 2005-Ohio-1831, ¶ 17.

{¶11} The juvenile court did not inform A.R. of the possible consequences of his

plea.

The Ohio Supreme Court has stated that “[a]n admission in a juvenile
proceeding, pursuant to Juv.R. 29, is analogous to a guilty plea made by an
adult pursuant to Crim.R. 11 in that both require that a trial court personally
address the defendant on the record with respect to the issues set forth in the
rules.” In re C.S., 115 Ohio St. 3d 267, 285, 2007-Ohio-4919, 874
N.E.2d 1177, quoting In re Smith, 3d Dist. Union No. 14-05-33,
2006-Ohio-2788. In determining whether a trial court complied with the
requirements of Crim.R. 11, “only substantial compliance is required.”
See State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). The
same is true for juvenile proceedings pursuant to Juv.R. 29; however, strict
compliance is the preferred practice. In re C.S. at 285. But if the trial
court substantially complies with Juv.R. 29 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. Id. In juvenile proceedings,
“substantial compliance means that in the totality of the circumstances, the
juvenile subjectively understood the implications of his plea.” Id.; In re
L.A.B. at 113.

In re E.L. at ¶ 11.
 {¶12} The juvenile court failed to explain to A.R. that his admission to the

probation violation would result in him being sentenced on all of his previous cases.

“Failure of the trial court to substantially comply with the provisions of Juv.R. 29(D)

requires reversal, allowing the juvenile to plead anew.” (Internal citations omitted.) In

re Stone at ¶ 19. “[T]he trial court bears the burden of explaining to a juvenile the

consequences of an admission by explaining the minimum and maximum terms of

commitment to ODYS that might result from the court’s accepting the juvenile’s

admission.” In re T.B., 8th Dist. Cuyahoga Nos. 93422 and 93423, 2010-Ohio-523, ¶

10.

An admission in a juvenile proceeding pursuant to Juv.R. 29(D) is
analogous to a guilty plea made by an adult pursuant to Crim.R. 11(C). In
re Christopher R., 101 Ohio App. 3d 245, 247, 655 N.E.2d 280 (1995); In
re Jenkins, 101 Ohio App. 3d 177, 179, 655 N.E.2d 238 (1995). Both
rules require the respective trial courts to make careful inquiries in order to
insure that the admission or guilty plea is entered voluntarily, intelligently
and knowingly. In re Flynn, 101 Ohio App. 3d 778, 781, 656 N.E.2d 737
(1995) and In re McKenzie, 102 Ohio App. 3d 275, 277, 656 N.E.2d 1377
656 N.E.2d 737.

In re Beechler, 115 Ohio App.3d 567, 685 N.E.2d 1257 (4th Dist.1996).

{¶13} In stating “[t]he penalty for this is going to be to send you to ODYS. I will

give you credit for time served, but the balance of whatever time that you have not served,

you may have to serve at ODYS. Do you understand?” (tr. 8), the juvenile court did not

substantially comply where looking at the totality of the circumstances, A.R. could

understand the implications of his admission. Although the juvenile court stated that it
was going to send A.R. to ODYS, it did not explain the minimum or maximum terms of

commitment that may result in the acceptance of an admission.

{¶14} Appellant’s first assignment of error is sustained.

III. Jurisdiction

A. Standard of Review

{¶15} We review violation of due process rights under a de novo standard. In re

D.C., 2017-Ohio-114, 75 N.E.3d 1040, ¶ 14 (10th Dist.).

More generally, however, appellate courts review constitutional questions
under a de novo standard. State v. Rodgers, 166 Ohio App.3d 218,
2006-Ohio-1528, ¶ 6, 850 N.E.2d 90 (10th Dist.). Indeed, the Supreme
Court directs that constitutional issues are questions of law, even in the
context of a juvenile court proceeding, and thus subject to de novo review.

Id.

B. Law and Analysis

{¶16} In A.R.’s second assignment of error, he contends that the juvenile court

violated his due process rights when it imposed a suspended commitment without

jurisdiction and without finding that he violated a condition of probation of which he had

been properly notified. We agree.

The Ohio Supreme Court has held that juveniles are entitled to certain due
process rights. In re C.S., citing In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18
L.Ed.2d 527 (1967). “Juv.R. 35(B) recognizes a juvenile’s due process
rights through its requirements.” In re Royal, 132 Ohio App.3d 496, 725
N.E.2d 685 (7th Dist.1999), citing In re Davis, 12th Dist. Clinton No.
CA97-12-016, 1998 Ohio App. LEXIS 4170 (Sept. 8, 1998). Juv.R. 35
provides, in pertinent part:

“(A) Continuing jurisdiction; invoked by motion. The continuing
jurisdiction of the court shall be invoked by motion filed in the original
 proceeding, notice of which shall be served in the manner provided for the
service of process.

(B) Revocation of probation. The court shall not revoke probation except
after a hearing at which the child shall be present and apprised of the
grounds on which revocation is proposed. The parties shall have the right
to counsel and the right to appointed counsel where entitled pursuant to
Juv.R. 4(A). Probation shall not be revoked except upon a finding that the
child has violated a condition of probation of which the child had, pursuant
to Juv.R. 34(C), been notified.”

In re T.B., 8th Dist. Cuyahoga Nos. 93422 and 93423, 2010-Ohio-523, ¶ 14.

{¶17} The record reveals that the state only filed a probation violation motion in

A.R.’s first case (DL-14112213) from November 20, 2014, but did not file probation

violation motions in the remaining six cases. The state should have notified A.R. that he

had violated in his remaining six cases, as required by Juv.R. 35. See, e.g., In re T.B. at ¶

14. Therefore, A.R. had not been properly notified. “And the court must comply with

Juv.R. 35 and inquire whether the juvenile has been notified of the rules of probation

pursuant to Juv.R. 34(C).” Id. at ¶ 15. Without notification, the juvenile court erred

when it sentenced A.R. on the remaining cases.

{¶18} A.R.’s second assignment of error is sustained.
IV. Ineffective Assistance of Counsel

A. Standard of Review

{¶19} “To succeed on a claim of ineffective assistance, a defendant must

establish that counsel’s performance was deficient and that the defendant was prejudiced

by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984).” State v. Jackson, 8th Dist. Cuyahoga No. 104132,

2017-Ohio-2651, ¶ 39.

When reviewing counsel’s performance, this court must be highly
deferential and “must indulge a strong presumption that counsel’s conduct
[fell] within the wide range of reasonable professional assistance.” To
establish resulting prejudice, a defendant must show that the outcome of the
proceedings would have been different but for counsel’s deficient
performance. (Internal citations omitted.)

Id. at ¶ 40.

B. Law and Analysis

{¶20} In the third assignment of error, A.R. argues that he was denied effective

assistance of counsel when his counsel failed to object to the juvenile court’s failure to

comply with Juv.R. 35.

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
Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Reversal of
a conviction for ineffective assistance of counsel requires a defendant to
show that (1) counsel’s performance was deficient, and (2) the deficient
performance prejudiced the defense. State v. Smith, 89 Ohio St.3d 323,
327, 731 N.E.2d 645 (2000), citing Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Defense counsel’s
performance must fall below an objective standard of reasonableness to be
deficient in terms of ineffective assistance of counsel. See State v.
Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). Moreover, the
 defendant must show that there exists a reasonable probability that, were it
not for counsel’s errors, the results of the proceeding would have been
different. State v. White, 82 Ohio St.3d 16, 23, 693 N.E.2d 772 (1998).

In re J.G., 2013-Ohio-583, 986 N.E.2d 1122, ¶ 22 (8th Dist.).

{¶21} The record is clear that A.R.’s counsel did not object to the juvenile court’s

failure to follow Juv.R. 35. Had A.R.’s counsel objected to the juvenile court’s failure

to follow Juv.R. 35, A.R. may not have been sentenced on the other adjudications. If the

court had sentenced A.R. in accordance with Juv.R. 35, notification on case

DL-14112213 only, A.R. would have been sentenced to 12 months in DYS instead of five

years. We find that trial counsel’s performance was deficient and to the prejudice of

A.R.

{¶22} A.R.’s final assignment of error is sustained.

{¶23} Judgment is reversed and remanded.

It is ordered that the appellant recover from appellee costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to said court to carry this judgment into

execution.
 A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

__________________________________________
ANITA LASTER MAYS, JUDGE

EILEEN A. GALLAGHER, P.J., and
EILEEN T. GALLAGHER, J., CONCUR