In re: A.W.

[Cite as In re: A.W., 2018-Ohio-2644.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 105845

IN RE: A.W.
A Minor Child

JUDGMENT:
AFFIRMED

Civil Appeal from the
Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL 14105159

BEFORE: E.T. Gallagher, P.J., Celebrezze, J., and Keough, J.

RELEASED AND JOURNALIZED: July 5, 2018
ATTORNEYS FOR APPELLANT

Mark Stanton
Cuyahoga County Public Defender

BY: Frank Cavallo
Cullen Sweeney
Assistant Public Defender
Courthouse Square, Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113

AMICI CURIAE

Marsha L. Levick
Juvenile Law Center
1315 Walnut Street, 4th Floor
Philadelphia, Pennsylvania 19107

Amanda J. Powell
P.O. Box 281
Columbus, Ohio 43216

ATTORNEYS FOR APPELLEE, C.C.D.C.F.S.

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Jeffrey M. Maver
Kristen L. Sobieski
Eben McNair
Assistant Prosecuting Attorney
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, P.J.:

{¶1} Appellant, A.W., appeals a judgment invoking the adult portion of his serious

youth offender (“SYO”) sentence. He claims the following five assignments of error:

1. The trial court violated A.W.’s due process rights by invoking his adult
sentence for failure to complete court-ordered sex offender treatment at ODYS
when such treatment was not ordered at the time of his disposition, when A.W.
received no notice at the time of his disposition that the failure to complete sex
offender treatment could result in the invocation of his adult sentence, and when it
was factually impossible to complete sex offender programming given the short
length of A.W.’s ODYS commitment.

2. The trial court lacked the authority to order A.W. to engage in sex offender
treatment while in ODYS custody.

3. The trial court erred when it invoked the adult portion of the SYO sentence
under R.C. 2152.14(E) upon insufficient evidence of misconduct, invoking it
instead upon a failure to complete a court-ordered treatment program that he was
never ordered to complete and that was impossible for A.W. to finish.

4. The trial court violated A.W.’s constitutional protections against incriminating
himself by considering statements A.W. was compelled to make during his
individual and group sex offender treatment when invoking A.W.’s adult
sentence.

5. The trial court erred by denying A.W. his fundamental right to due process by
failing to provide proper notice of the adult sentence invocation hearing as
required by R.C. 2152.14(D).

{¶2} In addition to A.W.’s assigned errors, the Juvenile Law Center was given leave to

appear as amicus curiae and filed an amicus brief raising the following two assignments of error:

1. Using compelled statements made during court-ordered treatment to invoke
punishment violates the constitutional privilege against self-incrimination.

2. The constitutional harm of using compelled statements is compounded
because it invoked A.W.’s adult sentence, unjustly exposing him to the harsh
consequences of the adult justice system.

{¶3} We find no merit to the appeal and affirm the trial court’s judgment.
 I. Facts and Procedural History

{¶4} In April 2014, the state filed a complaint alleging that A.W. was a delinquent child

because he engaged in conduct that constituted two counts of rape in violation of R.C.

2907.02(A)(2) if committed by an adult. The complaint also alleged that A.W. engaged in

conduct that would be considered kidnapping and gross sexual imposition if committed by an

adult.

{¶5} A.W. failed to appear in court to answer the charges, and a warrant was issued for

his arrest. A.W. was eventually arraigned, over a year later, in May 2015. After the

arraignment, the state filed a motion asking the juvenile court to relinquish jurisdiction and

transfer the case to the general division of the Cuyahoga County Court of Common Pleas for an

adult trial. The state argued there was probable cause that A.W. committed the acts alleged in

the complaint and that he was not amenable to rehabilitation in any facility designed for the care,

supervision, and rehabilitation of delinquent children.

{¶6} The victim, A.A., testified at the probable cause hearing that she did not know A.W.

before he contacted her on a text messaging app known as Kik Messenger. In August 2013,

A.A. met A.W. at a community festival where A.W. led her into a nearby woods where he

vaginally and anally raped her. She was 13 years old, and A.W. was 17 years old at the time of

the rapes.

{¶7} A.A.’s mother took A.A. to Hillcrest Hospital where a rape kit was processed.

Three months later, the Ohio Bureau of Criminal Investigation discovered that DNA found on

A.A.’s clothes matched A.W.’s DNA, which had previously been entered into a national DNA

database known as the Combined DNA Index System (“CODIS”). A.A. subsequently identified

A.W. as the perpetrator from a photo lineup.

{¶8} On the second day of the probable cause hearing, the parties reached a plea
agreement, and A.W. pleaded guilty to one count of rape, as amended to include an SYO

specification. The remaining charges were dismissed. The SYO disposition consists of a

“blended sentence” whereby the juvenile court imposes a traditional juvenile disposition and a

stayed adult sentence. R.C. 2152.13(D)(2). The blended sentence allows the juvenile court to

enforce the adult portion of the sentence at a later time “if the juvenile commits certain acts that

indicate that the juvenile disposition has been unsuccessful in rehabilitating him.” State v.

D.H., 120 Ohio St.3d 540, 2009-Ohio-9, 901 N.E.2d 209, ¶ 2.

{¶9} After accepting A.W.’s admission to the rape charge, the court committed him to the

legal custody of the Ohio Department of Youth Service (“ODYS”) until his twenty-first birthday.

The court also imposed a three-year prison term “if the Serious Youth Offender specification is

imposed.” At the dispositional hearing, the court advised A.W. that if he complied with all

terms of the juvenile portion of his sentence, “the serious youth offender sentence will go away *

* * .” (Oct. 12, 2016 tr. 18.) Moreover, the court stated:

THE COURT: But young man, I want sex offender treatment put in place for
ODYS. You have three sex offenses.1 So does that mean that you’re just a
predator? Does that mean you’re a stupid kid? What is it that makes you
continually have sex offenses, and not just teenage stuff. [A.W.], they’re serious,
serious offenses.

So I don’t know the answer to that, but by the time you get back here in 90 days I
want you to have a better understanding of what’s appropriate and what’s not.
Do you understand me?

A.W.: Yes.

(Oct. 12, 2016 tr. 18.)

{¶10} Although the court indicated that it wanted A.W. to undergo sex offender

treatment, the journal entry providing the disposition did not order sex offender treatment. The

1
A.W. was adjudicated delinquent of sex offenses in two other cases in addition to this case.
journal entry simply states that “the youth herein is committed to the Legal Custody of the Ohio

Department of Youth Services * * * for institutionalization in a secure facility.”

{¶11} Nevertheless, at the review hearing held in January 2017, A.W.’s probation officer,

Cynthia Dansby, informed the court that A.W. was participating in all services except sex

offender treatment. (Jan. 18, 2017 tr. 4.) Based on Dansby’s remarks, the court warned A.W.

that if he did not participate in sex offender treatment, he would have to serve the adult portion of

his sentence in adult prison. (Jan. 18, 2017 tr. 5.) In a journal entry dated January 20, 2017

(journalized Feb. 13, 2017), the court stated, in relevant part:

Although the youth was committed for a sex offense, [t]he youth refuses to take
responsibility for his actions nor participate in sex offender treatment. The youth
shall fully participate in sex offender treatment.

{¶12} The court held another review hearing in March 2017 to assess A.W.’s treatment

progress. Dr. Jennifer Alpert informed the court that she assessed A.W. when he first entered

ODYS in November 2016, and that A.W. denied committing sex offenses at that time. On

December 9, 2016, Dr. Alpert invited A.W. to join a group sex offender class, but he refused.

Dr. Alpert further stated:

I explained to him that I just started a group and I would be willing to take him,
but he needed to be completely open and honest about his sexual offending in
order to, you know, participate meaningfully in the group. He became angry, he
disengaged and he left the room.

(Mar. 31, 2017 tr. 4.) In January 2017, A.W. indicated he was willing to participate in sex

offender treatment. (Mar. 31, 2017 tr. 5.) However, because there were no available sex

offender groups at that time, Dr. Alpert informed A.W. that he would have to wait until April

2017, when the next group class was scheduled to begin the treatment program. (Mar. 31, 2017

tr. 5.) In response to this information, the court asked:

So how — I don’t understand — even though you have a closed group and I
understand that, how did we not go to Plan B and figure out how to get him the
 required sex offender treatment? It’s been two months now where I ordered him
to do something. He agreed to do it and we’re the ones that are failing him?

(Mar. 31, 2017 tr. 6.) Dr. Alpert explained that “group sex offender treatment is best practice,”

and that ODYS does not provide individual sex offender treatment programs because individual

treatment is not considered best practice. (Mar. 31, 2017 tr. 6.) Bonita Reaves, an ODYS

social worker, later explained at the invocation hearing that youths are not added to group classes

that are already in progress “because we’re always building on what we learned the day before.”

(May 22, 2017 tr. 21.)

{¶13} Due to the limited amount of time remaining before A.W.’s twenty-first birthday,

ODYS agreed to start A.W. in a new sex offender group and to augment his treatment with

individual therapy. However, a social worker from ODYS informed the court that sex offender

treatment generally takes nine months for completion and that A.W. would not be able to

complete his treatment before his twenty-first birthday.

{¶14} Before the hearing adjourned, A.W.’s probation officer advised the court that it

was not the fault of ODYS that A.W. did not start his sex offender treatment sooner.

Addressing A.W., Officer Dansby stated:

You could have been well into sex offender offender treatment had you started when you
got there. But because you delayed, that’s what’s bringing us to today. * * *

It’s not on Dr. Alpert and your social worker. This was on you because this didn’t have
to happen. You could have started treatment in November when you got there, but you
choose to do what you do and that’s what [sic] brought to today.

So I just wanted to put that out there. That this could have been avoided if you did what
you need to do.

(Mar. 31, 2017 tr. 13.)

{¶15} At a review hearing held on May 8, 2017, Dr. Alpert informed the court that although

A.W. was participating in the sex offender program, he was only “superficially engaged in his
treatment.” The court observed that the state was going to file a motion to invoke the adult portion of

A.W.’s SYO sentence. (May 8, 2017 tr. 4.) Officer Dansby also indicated on the record that the

consensus at ODYS was that A.W. should be bound over to adult prison. (May 8, 2017 tr. 10.)

Accordingly, the trial court scheduled the hearing to invoke the adult portion of A.W.’s sentence for May

22, 2017.

{¶16} The state filed a motion to invoke the adult portion of A.W.’s SYO sentence on May 18,

2017, five days before A.W.’s 21st birthday. At the invocation hearing held on May 22, 2017, defense

counsel objected to the state’s motion and to the witnesses who testified at the hearing, claiming the

motion was untimely. The court proceeded with the hearing over A.W.’s objection.

{¶17} Bonita Reaves testified that A.W. was in her group sex offender class. The

classes are conducted in two phases. Phase one covers 35 lessons and generally takes four to

six months to complete. As of the date of the hearing, A.W. had only completed seven of the

35 classes in the first phase of treatment. (May 22, 2017 tr. 13.)

{¶18} Robin Palmer, president of the Mokita Center,2 testified that she evaluated A.W.

one week before the hearing. Palmer used an assessment tool called the Estimate of Risk of

Adolescent Sexual Offense Recidivism (“ERASOR”), which evaluates 25 risk factors correlated

to sexual reoffending. A.W.’s score revealed he had 20 of the 25 risk factors, which correlates

to a high risk of reoffending. (May 22, 2017 tr. 36.)

{¶19} Palmer further stated that although A.W. eventually participated in sex offender

treatment, he was motivated by his SYO status and wanted to avoid the adult portion of his

sentence. (May 22, 2017 tr. 37-38.) Palmer explained that when juveniles are motivated by an

external threat such as prison, the treatment is generally not meaningful.

2
The Mokita Center is a private business that contracts with the juvenile court to perform assessments,
counseling, and monitoring of juveniles charged with sex offenses.
 {¶20} According to Palmer, A.W. also had antisocial personality disorder with

narcissistic tendencies, which is known to be resistant to treatment. Therefore, Palmer

concluded that continued therapy would not be effective and that a correctional approach would

be more effective because A.W. would be

forced to understand the seriousness of his conduct and the harm it caused his victims.

{¶21} Based on the evidence presented at the hearing, the juvenile court concluded that

A.W. failed to participate in sex offender treatment in a meaningful way and invoked the adult

portion of his sentence. However, the court reduced the adult sentence to two years in adult

prison followed by five years of mandatory postrelease control. A.W. now appeals the

invocation of the adult portion of his SYO sentence.

II. Law and Analysis
A. Due Process

{¶22} In the first assignment of error, A.W. argues the trial court violated his right to due

process by invoking the adult portion of his sentence in three ways (1) the trial court did not

order sex offender treatment at the time of disposition, (2) A.W. had no notice at the time of his

disposition that failure to complete sex offender treatment could result in the invocation of his

adult sentence, and (3) it was impossible for A.W. to complete sex offender treatment given the

limited duration of his commitment to ODYS.

{¶23} In the second assignment of error, A.W. argues that because the juvenile court

failed to order sex offender treatment in its original dispositional order, it lacked authority to

impose court-ordered sex offender treatment at the review hearing held three months later. We

discuss these assigned errors together because they are interrelated.

1. Authority to Order Sex Offender Treatment
 {¶24} When a juvenile court commits a child to the legal custody of ODYS, the court’s

jurisdiction terminates, except over certain decisions regarding judicial release, early release, and

supervised release. See R.C. 2152.22; State v. McCallister, 5th Dist. Stark No. CA-7264, 1987

Ohio App. LEXIS 10009 (Dec. 7, 1987). In other words, the juvenile court loses jurisdiction to

impose new orders on a child once the child has been committed to ODYS. R.C. 2152.22(A)

acknowledges the separation of powers between the judiciary’s role of defining a definite

minimum commitment and ODYS’s executive power to determine conditions under which the

commitment is served. Therefore, the trial court’s judgment dated January 20, 2017, ordering

A.W. to “fully participate in sex offender treatment” was a nullity because it was entered after

A.W. had already been committed to the legal custody of ODYS.

{¶25} Nevertheless, the court’s failure to include an order requiring A.W. to complete sex

offender treatment in the original dispositional judgment entry does not mean that the treatment

was not ordered or required at the time A.W. entered ODYS custody. Such orders from the

juvenile court are unnecessary to require a child to complete sexual offender treatment because

ODYS has broad authority to

[r]eceive custody of all children committed to it under Chapter 2152
of the Revised Code, cause a study to be made of those children, and issue any orders, as it
considers best suited to the needs of any of those children and the interest of the public, for the
treatment of each of those children.

R.C. 5139.04.

{¶26} ODYS ordered A.W. to participate in sex offender treatment in November 2016,

when he came into ODYS custody. At the first review hearing held in January 2017, Dansby

reported that A.W. had been ordered to participate in sex offender treatment and he refused to

comply with that order. (Jan. 18, 2017 tr. 4.) Therefore, the trial court’s failure to expressly
include an order that A.W. complete sex offender treatment in the original dispositional order is

of no consequence since ODYS had authority to make the order.

2. Notice

{¶27} Still, A.W. argues he had no notice at the time of disposition that failure to

participate in sex offender treatment could result in invocation of his adult sentence and that such

lack of notice violated his right to due process.

{¶28} The Due Process Clause of the Fourteenth Amendment to the United States

Constitution provides that no person shall be “deprived of life, liberty, or property without due

process of law.” Due process rights are applicable to juveniles through the Due Process Clause

of the Fourteenth Amendment to the United States Constitution and Article I, Section 16 of the

Ohio Constitution. State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 23.

{¶29} The concept of due process escapes concise definition because it is “a flexible

concept that varies depending on the importance attached to the interest at stake and the

particular circumstances under which the deprivation may occur.” Aalim at ¶ 22, citing Walters

v. Natl. Assn. of Radiation Survivors, 473 U.S. 305, 320, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985).

As relevant here, the fair warning requirement of the Due Process Clause prohibits an individual

from being held “criminally responsible for conduct which he could not reasonably understand to

be proscribed.” Rose v. Locke, 423 U.S. 48, 50, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975). That is,

due process requires that “the law give sufficient warning that men may conduct themselves so as

to avoid that which is forbidden.” Id.

{¶30} A.W. claims he had no notice that failure to complete court-ordered sex offender

treatment at ODYS would result in invocation of his adult sentence. However, the trial court

specifically told A.W. at the dispositional hearing that it wanted him to receive sex offender

treatment. (Oct. 12, 2016 tr. 18.) As previously stated, the court advised A.W. as follows:
 THE COURT: But young man, I want sex offender treatment put in place for
ODYS. You have three sex offenses. So does that mean that you’re just a
predator? Does that mean you’re a stupid kid? What is it that makes you
continually have sex offenses, and not just teenage stuff. [A.W.], they’re serious,
serious offenses.
So I don’t know the answer to that, but by the time you get back here in 90
days I want you to have a better understanding of what’s appropriate and
what’s not. Do you understand me?

A.W.: Yes.

(Oct. 12, 2016 tr. 18.)

{¶31} Moreover, the court explained:

I’m going to be bring you back in 90 days and see how you’re doing. That
means are you getting your education, are doing what you’re supposed to, are you
participating in group therapies * * * ?

All of those things will matter when you come back and we have a hearing. And
I’m going to bring you in so that I can look at you face-to-face. And if, in fact,
you are not doing what you’re supposed to, I am going to cut the sentence at
ODYS and send you to prison.

(Emphasis added.) (Oct. 12, 2016 tr. 17.) Therefore, the court warned A.W. that if he failed

to comply with the treatment programs imposed by ODYS, which included sex offender

treatment, he would serve the adult portion of his sentence. He was on notice.

3. Impossible to Complete

{¶32} Finally, A.W. argues his right to due process was violated because the adult portion

of his sentence was contingent on his completing sex offender treatment but completion was

impossible due to the short duration of his commitment to ODYS. However, the court never

conditioned the adult portion of his sentence on completion of the entire sex offender program.

At the dispositional hearing, the court explained that it wanted A.W. “to have a better

understanding of what’s appropriate and what’s not.” And, as previously stated, the court

advised A.W. that it would not invoke A.W.’s adult prison sentence as long as he did “what [he

was] supposed to do” and “participat[ed] in group therapies.” (Oct. 12, 2016 tr. 17.) At the
January 2017 review hearing, the court reiterated that “the long and short of it is that he’s doing

well,” which simply means making progress. (Jan. 18, 2017 tr. 8.)

{¶33} Having advised A.W. that the court simply expected participation and progress in

the required therapies, it is doubtful the court would have invoked the adult portion of A.W.’s

sentence just because he failed to complete the entire program if A.W. had taken his sex offender

treatment seriously from the time he entered ODYS. In other words, A.W. could have avoided

the adult sentence if he had complied with the required therapies when they were offered to him

in December 2016.

{¶34} Therefore, the first and second assignments of error are overruled.

B. Evidence of Misconduct

{¶35} In the third assignment of error, A.W. argues the trial court erred in invoking the

adult portion of the SYO sentence where there was insufficient evidence of misconduct. He

contends the adult sentence is not supported by legally sufficient evidence because (1) the failure

to complete sex offender treatment does not constitute “misconduct” within the meaning of the

SYO statute, (2) A.W. fully complied with the trial court’s orders to complete as much of the sex

offender program as he could, and (3) it is fundamentally unfair to invoke the adult sentence for

failing to complete a treatment program that was impossible for him to finish given the length of

his disposition.

1. Misconduct

{¶36} A.W. first argues there was insufficient evidence of misconduct because failure to

complete sex offender treatment does not constitute misconduct under the SYO statute.

{¶37} R.C. 2152.14 of the SYO statute states, in relevant part:

(1) The juvenile court may invoke the adult portion of a person’s serious youthful
offender dispositional sentence if the juvenile court finds all of the following on
the record by clear and convincing evidence:
 (a) The person is serving the juvenile portion of a serious youthful offender
dispositional sentence.

(b) The person is at least fourteen years of age and has been admitted to a
department of youth services facility, or criminal charges are pending against the
person.

(c) The person engaged in the conduct or acts charged under division (A), (B), or
(C) of this section, and the person’s conduct demonstrates that the person is
unlikely to be rehabilitated during the remaining period of juvenile jurisdiction.

R.C. 2152.14(E)(1).

{¶38} Clear and convincing evidence is that “which will produce in the mind of the trier

of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161

Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.

{¶39} The conduct referred to in R.C. 2152.14(E)(1)(c) includes evidence

that “‘[t]he person has engaged in conduct that creates a substantial risk to the safety or security

of the institution, the community, or the victim.’” In re D.J., 9th Dist. Summit Nos. 28472 and

28473, 2018-Ohio-569, ¶ 8, quoting R.C. 2152.14(A)(2)(b).

{¶40} In In re D.J., the court held that the youth’s delay in commencing sex offender

treatment coupled with evidence that the sex offender treatment the youth received failed to

achieve the desired results constituted sufficient evidence that the youth engaged in conduct that

created a substantial risk to the safety and security of the community. Id. at ¶ 11. Therefore,

failure to actively participate in sex offender treatment constitutes misconduct under R.C.

2152.14(E)(1)(c) if the failure to participate in treatments results in inadequate rehabilitation.

{¶41} It is undisputed that A.W. was serving the juvenile portion of his SYO sentence in

the custody of ODYS and that he was over 14 years of age at the time the court invoked the adult

portion of his sentence. Thus, the requirements of R.C. 2152.14(E)(1)(a) and (b) were

unequivocally satisfied.
 {¶42} As previously stated, A.W. refused to participate in sex offender treatment, and his

refusal caused a substantial delay in the start of the treatment program. Bonita Reaves testified

that as a result of the delayed start

to treatment, A.W. only completed seven of 35 sex offender lessons in the first phase of the

program. (May 22, 2017 tr. 13.) Robin Palmer testified that she administered the ERASOR

assessment to A.W. one week before the hearing and that A.W. possessed 20 of the 25 risk

factors for sexual reoffending.

{¶43} The delay in starting sex offender treatment significantly reduced the time in which

A.W. could receive treatment, and the limited treatment he received was not enough to reduce his

likelihood of recidivism. He had only scratched the surface. Because A.W. failed to

demonstrate any meaningful progress with the treatment, he continued to pose a substantial risk

to the safety of the community. And since A.W. was turning 21 years of age on the day after the

hearing, the evidence demonstrated that he was not likely to be rehabilitated during the remaining

period of juvenile jurisdiction.

{¶44} Therefore, there is clear and convincing evidence in the record supporting the trial

court’s judgment invoking the adult portion of A.W.’s SYO sentence.

{¶45} A.W. nevertheless argues that it is fundamentally unfair to invoke the adult portion

of his sentence for failing to complete a treatment program that was impossible for him to finish

given the short duration of his disposition. However, as previously stated, the trial court never

required that A.W. complete the entire sex offender program. It conditioned the adult portion of

the sentence on A.W.’s participation in the sex offender treatment program and effective progress

in that treatment. The court indicated it would have been satisfied if A.W. had taken

responsibility for his actions and actively engaged in sex offender treatment in a meaningful way.

The court stated at the dispositional hearing that it wanted A.W. “to have a better understanding
of what’s appropriate and what’s not.” (Oct. 12, 2016 tr. 18.) A.W. never demonstrated an

openness or desire to benefit from sex offender treatment.

{¶46} Moreover, A.W. created all of the circumstances that caused his treatment to be

curtailed. A.W. failed to appear in court for his arraignment on April 22, 2014, and a warrant

was issued for his arrest. Consequently, A.W. was not arraigned until May 2015. Following

his arraignment, A.W. was released into the community and again failed to appear in court in

September 2015. A second warrant was issued for his arrest.

{¶47} Once A.W. admitted the rape and was committed to the legal custody of ODYS, he

refused to participate in sex offender treatment even though the court advised him that sex

offender treatment would be part of his rehabilitation program and that failure to comply would

result in service of the adult sentence. (Oct. 12, 2016 tr. 17.) A.W. had the ability to avoid the

adult sentence but he squandered it, which ultimately caused his lack of time to show progress.

We find nothing unfair about the imposition of his adult sentence under these circumstances.

{¶48} The third assignment of error is overruled.

C. Self-Incrimination

{¶49} In the fourth assignment of error, A.W. argues the trial court violated his Fifth

Amendment privilege against self-incrimination when it relied on statements he made to his

therapists during sex offender treatment to justify the imposition of the adult portion of his

sentence. The amici curiae also argue in their first assigned error that “using compelled

statements made during court-ordered treatment to invoke punishment violates the constitutional

privilege against self-incrimination.” In its second assignment of error, the amicus curiae

asserts that the constitutional harm of using compelled statements was compounded because it

invoked A.W.’s adult sentence and unjustly exposed him to the harsh consequences of the adult

justice system. We discuss these assigned errors together because they are closely related.
 {¶50} The Fifth Amendment to the United States Constitution, as applied to the states

through the Fourteenth Amendment, provides that no person “shall be compelled in any criminal

case to be a witness against himself.” Article I, Section 10, of the Ohio Constitution contains

nearly identical language. Constitutional safeguards such as the Fifth Amendment protection

against self-incrimination apply to juvenile delinquency proceedings. In re D.S., 111 Ohio St.3d

361, 2006-Ohio-5851, 856 N.E.2d 921, ¶ 17.

{¶51} In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),

the United States Supreme Court held that the state may not use incriminating statements made

by a defendant during a custodial interrogation against him in a criminal proceeding unless it

proves that procedural safeguards resulted in the defendant’s voluntary waiver of his Fifth

Amendment rights. These procedural safeguards include informing the defendant, before

interrogation, that he has the right to remain silent, the right to speak to an attorney, and the right

to have an attorney present during questioning. Id.

{¶52} Where a defendant is entitled to these procedural safeguards and the state fails to

inform the defendant of his Fifth Amendment rights, the state is precluded from using any

incriminating statements made during the custodial interrogation against the defendant. Id. at

469. For purposes of the Fifth Amendment privilege against self-incrimination, there is no

appreciable difference between the guilt and penalty phases of the criminal proceedings. Estelle

v. Smith, 451 U.S. 454, 462-463, 101 S.Ct. 1966, 68 L.Ed.2d 359 (1981).

{¶53} Generally, the right to be free from state coerced self-incrimination must be

invoked or it is lost. Roberts v. United States, 445 U.S. 552, 559, 100 S.Ct. 1358, 63 L.Ed.2d

622 (1980). If a person, compelled by the state to make self-incriminating statements, chooses

to make the statements rather than invoke the privilege, the person has not been compelled by the

government and has offered the statements voluntarily. State v. Evans, 144 Ohio App.3d 539,
550, 760 N.E.2d 909 (1st Dist.2001).

{¶54} However, there are situations in which the right to be free from self-incrimination

is triggered in the absence of its express invocation. In these situations, the right becomes

self-executing, and the defendant is excused from asserting the privilege. Garner v. United

States, 424 U.S. 648, 654, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976). One such situation, known as

the “classic penalty scenario,” occurs where the assertion of the privilege against

self-incrimination is penalized so as to foreclose the right to remain silent. Minnesota v.

Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984), quoting Garner at 661. To

constitute a “classic penalty situation,” the individual must be faced with the government’s

assertion, either expressly or impliedly, that invocation of the Fifth Amendment will lead to a

substantial penalty. Lefkowitz v. Cunningham, 431 U.S. 801, 805-06, 97 S.Ct. 2132, 53 L.Ed.2d

1 (1977).

{¶55} In Evans, the First District Court of Appeals held that Evans, a juvenile, was in the

“classic penalty situation” when he made incriminating statements to his counselors during

court-ordered therapy. Evans made the statements while he was involuntarily confined in an

ODYS facility. In concluding that the “classic penalty” exception to the Miranda procedural

safeguards applied, the Evans court explained that “[h]ad Evans failed to participate, he could

have been found in violation of the court order that he do so, and he would have risked transfer to

a far more restrictive facility.” Id. at 547.

{¶56} It is undisputed that A.W. was involuntarily confined by ODYS and

that his participation in the sex offender treatment was compulsory. The juvenile court had

previously warned A.W. that if he failed to participate in sex offender treatment, he would have

to serve the adult portion of his sentence in prison. (Jan. 18, 2017 tr. 5.) A.W. was in the

classic penalty situation because had A.W. asserted his right to remain silent, he would have been
penalized by invocation of the adult portion of his sentence. Therefore, incriminating

statements A.W. made to his counselor, such as how he fantasizes about his rapes and intends to

watch violent pornography after his release from ODYS even though it is a known trigger for sex

offending, were privileged under the Fifth Amendment and could not be used against him to

invoke the adult portion of his sentence.

{¶57} The remedy for Fifth Amendment violations is suppression of the tainted evidence.

Missouri v. Siebert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). Thus, evidence of

A.W.’s incriminating statements could not be used as a basis for invoking his adult sentence.

We nevertheless find that the record contains sufficient evidence to support the trial court’s

decision to invoke A.W.’s adult sentence without A.W.’s incriminating statements.

{¶58} As previously stated, A.W. refused to participate in sex offender treatment when it

was ordered in November 2016. (Jan. 18, 2017 tr. 4.) Dr. Alpert informed the court that she

invited A.W. to join a sex offender group in December 2016, and he once again refused. (Mar.

31, 2017 tr. 4.) Although A.W. eventually agreed to participate in sex offender treatment in

January 2017, there were no groups available at that time. When A.W. finally started treatment

in April 2017, only one month remained before his twenty-first birthday. Consequently, A.W.

only completed seven of the 35 lessons required from the first phase of sex offender treatment at

the time of the invocation hearing . (May 22, 2017 tr. 13.)

{¶59} A.W. argues the trial court must have relied on A.W.’s incriminating statements

when it imposed his adult sentence because all the other evidence established that he was a

model participant. Indeed, Dr. Greene testified that A.W. “was very engaged and he did do the

work.” Bonita Reeves testified that A.W. “did well” in the group, “was always on time,” “did a

lot of sharing,” “asked relevant questions,” and “completed all of his homework assignments.”

{¶60} However, Dr. Alpert informed the court that although A.W. attended classes and
did the work, he was only “superficially engaged.” Dr. Palmer stated that A.W. attended sex

offender classes and did what he was supposed to do, not because he was interested in reforming

his behavior, but because he wanted to avoid prison. (May 22, 2017 tr. 39.) He was “just

going through the motions.” Moreover, Dr. Palmer explained that due to A.W.’s late

start in the sex offender treatment program, he was unable to make any meaningful progress.

(May 22, 2017 tr. 39.)

{¶61} In its judgment entry invoking the adult portion of A.W.’s sentence, the court

found that A.W. “placed the community at risk since * * * sexual offender treatment was offered

upon the youth entering ODYS at Cuyahoga Hills Correctional Institution and the Youth refused

treatment and did not engage in [treatment] until April 2017.” (Entry journalized May 31,

2017.) Therefore, the trial court’s decision to invoke the adult portion of A.W.’s sentence is

supported by clear and convincing evidence as required by R.C. 2152.14(E) even without

consideration of statements A.W. made to his therapists during sex offender treatment.

{¶62} A.W.’s fourth assignment of error and both of the assigned errors raised in the

amicus brief are overruled.

D. Notice of the Hearing

{¶63} In the fifth assignment of error, A.W. argues the trial court violated his right to due

process of law by failing to provide him proper notice of the hearing to invoke the adult portion

of his sentence as required by R.C. 2152.14(D).

{¶64} The prosecutor filed the motion to invoke the adult portion of A.W.’s sentence on

Thursday, May 18, 2017. The court held the invocation hearing on the following Monday, May

22, 2017. A.W.’s trial counsel objected to the hearing and to the state’s witnesses, claiming he

had not been served with the state’s motion until the day of the hearing. The state asserted that

it sent notice to A.W.’s trial counsel electronically, but defense counsel claimed he never
received it. Therefore, A.W. now argues that his right to due process was violated because he

was not afforded adequate notice and a reasonable opportunity to prepare a defense to the state’s

motion to invoke the adult sentence.

{¶65} R.C. 2152.14(D), which governs hearings to determine whether to invoke the adult

portion of an SYO, does not provide a time frame within which notice must be provided to the

juvenile. A.W. argues that because R.C. 2152.12(G), which governs bindover hearings, requires

that counsel receive notice “at least three days prior to the hearing, a three-day notice requirement

should apply to invocation hearings under R.C. 2152.14(D). We disagree. If the legislature had

intended to legislate this specific notice requirement, it would have expressly included it in R.C.

2152.14(D). We therefore review A.W.’s claim under standard principles of due process.

{¶66} “The failure to accord an accused a fair hearing violates even the minimal

standards of due process.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751

(1961). Thus, due process requires that the accused be given “notice and opportunity to be

heard ‘at a meaningful time and in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319,

333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

{¶67} A.W. claims he had no notice of the invocation hearing prior to the actual date of

the invocation hearing on May 22, 2017. However, the trial court scheduled the invocation

hearing on the record at the May 8, 2017 review hearing. (May 8, 2017 tr. 12, 16.) Therefore,

A.W. had almost two weeks notice of the invocation hearing.

{¶68} A.W. argues that even though the court scheduled the invocation hearing on May 8,

2017, the court’s statements on the record do not constitute adequate notice for due process

purposes because he was absent from the courtroom when the court made them. However, his

trial counsel was present, represented A.W., and received notice on his behalf. Therefore, A.W.

received timely notice of the hearing through his trial counsel.
 {¶69} Furthermore, there was only one reason for the invocation hearing; A.W. had not

engaged in sex offender treatment in a meaningful way that could result in any amount of

rehabilitation. The record shows that the court scheduled the hearing because A.W. was only

“superficially engaged” in sex offender treatment and had not made sufficient progress with it.

(See generally May 8, 2017 transcript.) ODYS personnel repeatedly informed the court that

A.W. complied with all required treatments except sex offender treatment. Therefore, A.W. not

only had timely notice of the invocation hearing, he was on notice that his deficient progress in

sex offender treatment was the proposed

basis for invoking the adult portion of his SYO sentence. We find no due process violation

under these circumstances.

{¶70} Therefore, the fifth assignment of error is overruled.

{¶71} Judgment affirmed.

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

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate be sent to Cuyahoga County Common Pleas Court,

Juvenile Division, 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.

EILEEN T. GALLAGHER, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., CONCURS;
KATHLEEN ANN KEOUGH, J., DISSENTS WITH SEPARATE OPINION

KATHLEEN ANN KEOUGH, J., DISSENTING:
 {¶72} This case represents how our juvenile justice system has failed our juveniles.

Much emphasis has been placed on A.W.’s failures, which I am not discounting. However,

when a system that is put in place to protect our most vulnerable while protecting our community

fails, we cannot put the entire blame on A.W. to justify the invocation of the adult portion of his

sentence. The system in this case sabotaged any effort that A.W. made or could have made to

prevent the adult portion of his sentence to be invoked. The dangling carrot was never going to

be caught.

A. The system failed the community by failing to execute the initial arrest warrant, yet
blamed A.W. for going “AWOL” on two occasions.

{¶73} On April 22, 2014, the state filed a complaint against A.W., then age 17, for sex

offenses committed in 2013. On that same day, the state requested that an arrest warrant for

A.W. be issued, and the juvenile court conducted a hearing. The court subsequently issued a

journal entry stating that the matter came for a hearing on April 22, 2014, and “notwithstanding

receipt of notice, the youth has failed to appear.” Accordingly, the juvenile court issued an

arrest warrant for A.W. that day. The record is completely silent on how, if, or when A.W.

received notice that a complaint was filed against him, that the state requested a warrant be

issued, and that the court was hearing the matter, which all occurred on April 22, 2014. Yet the

juvenile court and A.W.’s parole officer at ODYS blamed him for going “AWOL” during that

time. The record is also silent as to what attempts were made to apprehend A.W. during this

time until his arrest on May 26, 2015, over a year later, when A.W. was 18 years old.

{¶74} On May 26, 2015, when A.W. appeared in juvenile court for another matter, he was

arrested and arraigned for this case. Admittedly, A.W. failed to appear for a pretrial on

September 10, 2015, and a warrant was issued for his arrest. Despite his flight, the record is
again silent as to what attempts were made to apprehend A.W. during this time. When A.W.

was finally apprehended on May 8, 2016, he was age 19.

{¶75} I point this out for two reasons. First, A.W. did not go “AWOL” on two

occasions. So any delay in his adjudication from the time of the complaint until his arrest in

May 2015 should not be attributed to him. And secondly, the state made an issue of A.W.’s

criminal history and the danger he posed to the community, yet failed to show what steps it took

to secure his appearance other than simply having an arrest warrant issued.

B. The system failed A.W. in the delay of prosecution.

{¶76} Once A.W. was apprehended, the probable cause hearing was originally scheduled

for June 28, 2016, but was continued due to an unavailable state’s witness. The probable cause

hearing, which turned into an adjudication hearing, finally occurred on September 7 and 13,

2016. A.W. was now 20 years old. At this time, the state and the juvenile court knew that any

mandatory programs or treatment in ODYS would be for less than eight months before A.W.’s

21st birthday, yet they believed A.W. could be rehabilitated in the juvenile justice system.

C. The system failed A.W. by giving him false hope during adjudication

{¶77} At the time of adjudication, prior to A.W. making his admission to the amended

complaint, the court made the following statements on the record:

So he will stay in Juvenile Court. And the only way you will go to Adult Court,
young man, is if you act out so badly at ODYS that they cannot handle you.
Meaning, that you continually fight, you continually create delinquent acts. Once
you are 21 years of age, this Court loses jurisdiction and the SYO, what we call
the serious youth offender specification, goes away. Does that make sense?

(September 13, 2016 tr. 79.). Following this advisement, the court engaged in a conversation

with A.W., his mother, and defense counsel explaining the types of behavior that would warrant

the imposition of the adult portion of his sentence — “I don’t mean just get into random fights.

I mean he literally refuses to follow any of the rules and is constantly [a problem]. * * * And I
mean serious. * * * So it has to be fairly severe.” (Id. at tr. 79-80). The court continued

explaining that if he engaged in these types of behaviors, A.W. would come back before the court

and following a hearing, the court would determine whether “he in fact is an aggressor and I need

to invoke the serious youth offender.” (Id. at tr. 81.) Defense counsel also read on the record the

language in R.C. 2152.14(B) that governs under what circumstances the SYO dispositional

sentence will be invoked.

{¶78} Thereafter, the juvenile court engaged in the requisite plea colloquy with A.W. and

he admitted to the charges in the delinquency complaint. During the plea colloquy, the juvenile

court vaguely advised A.W. that “if in fact you don’t do what you’re supposed to do in ODYS,

that they can impose the sentence and you can be sentenced from anywhere between 3 to 11 years

* * *.” However, at no time during his plea, did the court explain to A.W. that the adult portion

of his sentence would be invoked for failing to comply with counseling, treatment, or any other

programs ODYS ordered.

D. The system failed A.W. by depriving him of due process

{¶79} In addition to protection against the deprivation of “life, liberty, or property without

due process of law,” juveniles, at a minimum, “are entitled to proceedings that ‘measure up to the

essentials of due process and fair treatment.’” In re J.V. 134 Ohio St.3d 1, 2012-Ohio-4961, 979

N.E.2d 1203, ¶ 14, quoting Kent v. United States, 383 U.S. 541, 562, 86 S.Ct. 1045, 16 L.Ed.2d

84 (1966). The fair warning or notice requirement of the Due Process Clause prohibits an

individual from being held “‘criminally responsible for conduct which he could not reasonably

understand to be proscribed.’” Rose, 423 U.S. at 49, quoting United States v. Harriss, 347 U.S.

612, 617, 74 S.Ct.808, 98 L.Ed. 989 (1954). Although the nature of the due process clause

defies a rigid application in juvenile cases, the Ohio Supreme Court has held that “‘fundamental
fairness is the overarching concern.’” In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967

N.E.2d 729, ¶ 71, quoting D.H., 120 Ohio St.3d 540, 2009-Ohio-9, 901 N.E.2d 209, at ¶ 51.

1. No Order for Sex Offender Treatment

{¶80} As the majority correctly points out, the juvenile court did not specifically order

sex offender treatment in its dispositional judgment entry, and any attempt to “correct” that order

was a nullity. Additionally, I agree that R.C. 5139.04 allows ODYS to “issue any orders” for the

treatment of the children. However, the evidence in the record is insufficient to conclude that

ODYS “ordered” A.W. to participate in sex offender treatment. Contrary to the majority’s

assertion, at no time during the first review hearing on January 18, 2017, did Officer Dansby

testify that A.W. was ordered to participate in sex offender treatment. She stated:

[A.W.] continues to deny the accusations. He does not participate in any type of
treatment. And according to [the] latest report they have given him until January
31st to weigh his options as to whether he’ll participate in treatment or not, but as
of this date he’s not participating.

(January 18, 2017 tr. 4.) Morever, Dr. Alpert later testified at a subsequent hearing, that she

invited A.W. to attend her group session in December, which A.W. declined. Accordingly, I

cannot say that A.W. was ordered to attend sex offender treatment.

{¶81} Furthermore, I find it reasonable to believe that if ODYS felt that it could order

A.W. to engage in sex offender treatment, then there was no necessity for ODYS to confirm with

the juvenile court whether treatment “was ordered in the journal entry.”

THE COURT: Okay. All right. So I guess you can take him back. Do you
need me to order anything specific, Officer Dansby?

MS. DANSBY: No.

THE COURT: Can you remind him of this conversation when he says, I’m not
doing anything?

MS. DANSBY: Yeah, I mean, it’s in the journal entry, right, that he has to have
sex offender treatment?
 THE COURT: Yes.

MS. DANSBY: Okay. That’s all they need.

(January 18, 2017 tr. 10-11.)

{¶82} Although it is true that the juvenile court “wanted” A.W. to receive sex offender

treatment, no order was issued requiring that he participate or complete treatment. When

dealing with individuals in the juvenile justice system, I am mindful that unless they are

specifically ordered to do a task and advised of the consequences, it is likely that they will not

engage in that activity willingly or voluntarily. This is evidenced by A.W.’s understanding at

the January 18, 2017 review hearing, when the juvenile court for the first time advised A.W. that

he must participate in sex offender treatment or the adult portion of his sentence would be

imposed. A.W. unequivocally stated he understood, and contrary to the majority’s position,

nothing in the record demonstrates that A.W. refused to participate in such treatment following

the court’s order. The juvenile court’s ultimatum occurred five months before A.W.’s 21st

birthday.

2. No Notice of Consequences

{¶83} I also disagree with the majority’s conclusion that A.W. knew at the time of

disposition that sex offender treatment would be part of his rehabilitation program and that his

failure to participate in sex offender treatment would result in invocation of his adult sentence.

Rather, the record reflects that at no time during disposition did the trial court order such

treatment or advise him of the consequences for failing to participate.
 {¶84} Granted, the juvenile court judge stated during the dispositional hearing that she

would bring him back for a review hearing and if he was not doing what he was supposed to, she

would “cut the sentence at ODYS and send [A.W.] to prison.” (October 12, 2016 tr. 17-18).

However, I find this statement insufficient to apprise A.W. of the consequences of failing to

participate in sex offender treatment, considering the juvenile court’s subsequent statement:

[a]nd if you’re still doing everything you can by May 23, 2017, you will have
completed the terms of Juvenile Court, the SYO, the serious youth offender
sentence, will go away and you can then go on and live your life.

(Id. at tr. 18.)

{¶85} It must be remembered that when A.W. entered his admission to the amended

delinquency complaint, the juvenile court was clear with A.W. that the only conduct that would

lead to the invocation of his adult sentence were further delinquent acts. Specifically, A.W. was

on notice that his adult sentence would be invoked only if he acted up at ODYS, .

{¶86} Subsequently at the disposition hearing, the court vaguely advised A.W. that he

could be sent to prison if he “mess[es] up at ODYS at any given time,” and “if, in fact, you are

not doing what you’re supposed to.” (October 12, 2016 tr. 15, 17.) And while the juvenile

court indicated at disposition that it wanted sex offender treatment put in place at ODYS, it never

advised A.W. or issued an order that his failure to participate in treatment would warrant

invocation of his adult sentence.

{¶87} Constitutional due process requires that A.W. have specific notice of the conduct

that could lead to the invocation of his adult sentence. When, as here, he was told that his adult

sentence would only be invoked by his engaging in delinquent acts, his due process rights were

violated when his adult sentence was invoked for some other condition — failing to sufficiently

participate or engage in sex offender treatment.

3. No Chance to Satisfy — Factual Impossibility
 {¶88} The majority summarily disposes of A.W.’s argument that his due process rights

were violated when the juvenile court invoked his adult sentence based upon his failure to

complete sex offender treatment despite the factual impossibility of him completing such

treatment given the short duration of his ODYS commitment. The majority concludes that the

court never conditioned the adult portion of his sentence on the completion of “the entire sex

offender program,” because the court only stated at the dispositional hearing that it wanted sex

offender treatment put in place at ODYS and for A.W. “to have a better understanding of what’s

appropriate and what’s not.” I agree that this was the juvenile court’s statement and initial

position. However, the record demonstrates that this condition drastically changed following his

commitment to ODYS when the court on January 20, 2017, subsequently ordered A.W. to fully

participate in sex offender treatment, and stated that failure to do so would result in the

invocation of the adult portion of his sentence. Moreover, the juvenile court only required A.W.

to participate in treatment, which he did, although apparently not to the satisfaction of ODYS and

the juvenile court.

{¶89} The majority’s statement that if A.W. had “taken responsibility for his actions and

taken his sex offender treatment seriously when he entered ODYS, he could have avoided the

adult sentence even if he did not complete the entire sex offender program” is mere speculation

on what the juvenile court would have done considering at all relevant times the individuals at

ODYS felt prison was the better option for A.W. Morever, I fail to understand the majority’s

conclusion that the juvenile court’s statement made at the January 2017 review hearing that “he’s

doing well” equates that A.W. was “making progress” toward “what’s appropriate” when he had

yet to start sex offender treatment.

{¶90} The evidence in the record is clear that A.W. was unfairly punished for a factual

impossibility. It must be noted that even though A.W. entered ODYS in November 2016, he
was not assessed for his treatment needs until December 2016. At that point, he only had

approximately six months remaining on his ODYS commitment to fully participate in a

nine-month sex offender program.

{¶91} Both A.W.’s treating psychologist and supervising psychologist at ODYS were

clear that given the abbreviated duration of A.W.’s ODYS commitment, it would have been

impossible for A.W. to complete the sex offender treatment programming. Dr. Alpert testified

that “[e]ven if [A.W.] would have engaged in sex offender treatment on his first day in ODYS,

that would not be enough time,” because treatment is at least nine months and A.W., given his

“vast amount of issues,” may have required even more time. Dr. Greene likewise testified that

even if A.W. had begun his sex offender treatment at the beginning of his ODYS commitment,

he “could potentially be, you know, 60 to 70% done though it’s very variable.” (May 22, 2017

tr. 9.)

{¶92} This factual impossibility was exacerbated by the unreasonable delay in A.W.’s

treatment caused by ODYS. At no time during the January 18, 2017 hearing when the court

ordered sex offender treatment, did anyone indicate to the court that treatment would be delayed

due to the scheduling procedures and treatment preferences of ODYS, or that A.W. would not

even satisfactorily “scratch the surface” of the treatment before his 21st birthday.

{¶93} Moreover, despite the juvenile court’s order that AW either participate in sex

offender treatment or go to prison, ODYS did not make treatment available to A.W. for over 70

days even though A.W. agreed to participate. Furthermore, the record reflects that no one from

ODYS advised the court prior to the March 31, 2017 hearing that treatment was not made

available to A.W. At that hearing, Dr. Alpert admitted to A.W.’s willingness:

Okay. When he came back [from being in court in January], his social worker let
me know that he wanted to meet with me again. So I did meet with him at the
 very beginning of February. At that time he was very forthcoming about his sex
offending.

(March 31, 2017 tr. 5.)

{¶94} The Court was bewildered to learn about the delay in treatment, stating:

So how — I don’t understand — even though you have a closed group and I

understand that, how did we not go to Plan B and figure out how to get him the

required sex offender treatment? It’s been two months now where I ordered him

to do something. He agreed to do it and we’re the ones that are failing him?

(March 31, 2017 tr. 6.) I agree with the juvenile court that the system was failing A.W. The

record is clear that the juvenile court acknowledged during the March 31, 2017 hearing that the

delay in implementing sex offender treatment from January to April was the fault of the

scheduling procedures at ODYS, and placed the blame squarely upon the institution. The

juvenile court was very troubled and actually asked for guidance about when she brought A.W.

back in April, “are we going to say that he has fulfilled the requirement that this Court set forth

for his treatment?” (Id. at tr. 8). In my belief, the only person looking out for A.W. was the

juvenile court. It was the court that was finding solutions to the situation and making

suggestions, whereas the institution was placing blame on A.W., upset that they had to make

special arrangements for him and reminding him that he was “not special.” (Id., tr. at 9, 15.)

{¶95} Thereupon, the juvenile court made, what I perceive to be, a promise to A.W.:

THE COURT: All right. So what we’re going to do is you’re going to start and
April 5th you’re going to do the sex offender treatment. We’re going to
accelerate it by doing an individual group program along with it. And then what
I’m going to do is — when do you turn 21, May 23rd? * * * So we’re going to
push your April 21st [review hearing] into May and if you do everything you’re
supposed to, I will not impose your SYO. Okay? Do we got a deal?

A.W.: Yes, your honor.

(Emphasis added.) (Id., tr. 10.)
 {¶96} Following the review hearing, the court issued another journal entry:

Although the youth was committed for a sex offense, [A.W.] was refusing in
December 2016 to take responsibility for his actions nor participate in sex
offender treatment. In February, the youth expressed that he would like to
participate in Sex Offender Treatment, although he was told that the next class
was not until April 5, 2017 and would take approximately nine months. The
youth turns twenty-one on May 23, 2017 and needs to complete as much of the
program as he can. [ODYS] agreed to give him an additional individualized
program to accelerate the youth’s progress.
IT IS THEREFORE ORDERED that the youth shall participate and engage in
individualized sex offender treatment. [ODYS] shall ensure that individualized
services are offered to the youth.

IT IS FURTHER ORDERED that the youth shall fully cooperate, including but
not limited to engaging in services in the evenings and weekends. Failure to
engage with services may result in the Serious Youth Offender disposition being
invoked.

(Apr. 3, 2017 Journal Entry).

{¶97} I am not turning a blind eye to the fact that A.W. could have started treatment

following his assessment in December, but on January 18, 2017, when everyone was in

agreement that counseling was mandatory and failure to do so unequivocally warranted the

imposition of his adult portion of his sentence, no programs, treatment sessions, or counseling

services were made available to A.W. until after March 31, 2017. This was over 72 days — for

72 days the system failed A.W.

{¶98} In addition to not providing adequate notice of the existence of court-ordered sex

offender treatment and consequences, the proceedings in this case do not “measure up to the

essentials of due process and fair treatment” because it was impossible to meet the court’s

unstated expectation that A.W. complete sex offender treatment at ODYS to everyone’s

satisfaction. The conditions and consequences kept changing, causing the invocation of A.W.’s

adult sentence to be based on a flawed and fundamentally unfair premise, which violates the very

fabric of the Due Process Clause.
 {¶99} Accordingly, I would find that A.W. was deprived due process of law when the

juvenile court invoked the adult portion of his sentence.

E. No Evidence of Misconduct — Fifth Amendment Violation

{¶100} Furthermore, once it was discovered that it was impossible to complete sex

offender treatment to the state’s satisfaction, and A.W. had not engaged in the requisite

misconduct to warrant invocation of his adult sentence, A.W.’s incriminating statements made

during treatment were used against him to justify the invocation of the serious youth offender

specification under the guise that he creates a substantial risk to the safety or security of the

community.

{¶101} I agree with the majority’s analysis and conclusion that A.W.’s Fifth Amendment

privilege against self-incrimination was violated when the juvenile court relied on statements

A.W. made to his therapists during sex offender treatment to justify the imposition of the adult

portion of his sentence. I further agree that the remedy for this violation is suppression of the

tainted evidence, and that A.W.’s incriminating statements could not be used as a basis for

invoking the adult sentence.

{¶102} However, I disagree with the majority’s conclusion that even absent these

statements, the weight of the evidence supports the juvenile court’s decision to invoke A.W.’s

adult sentence. The majority concludes that failure to actively participate in sex offender

treatment constitutes misconduct under R.C. 2152.14(E)(1)(c) if the failure to participate results

in inadequate rehabilitation. In some cases this may be true, but as it pertains to the facts

presented in this case, I disagree.

{¶103} A juvenile court may invoke the adult portion of a person’s serious youthful

offender sentence if it finds by clear and convincing evidence that “the person engaged in the

conduct or acts charged under division (A), (B), or (C) of [R.C. 2152.14], and the person’s
conduct demonstrates that the person is unlikely to be rehabilitated during the remaining period

of juvenile detention.” (Emphasis added.) R.C. 2152.14(A)(1)(c).

{¶104} “The conduct that can result in the enforcement of an adult sentence includes

committing, while in custody or on parole, an act that is a violation of the rules of the institution

or the conditions of supervision and that could be charged as any felony or as a first-degree

misdemeanor offense of violence if committed by an adult, R.C. 2152.14(A)(2)(a) and (B)(1), or

engaging in conduct that creates a substantial risk to the safety and security of the institution, the

community, or the victim. RC. 2152.14(A)(2)(b) and (B)(2).” D.H., 120 Ohio St.3d 540,

2009-Ohio-9, 901 N.E.2d 209, at ¶ 36.

{¶105} There is no dispute that A.W. did not commit an act that could be charged as a

felony or first-degree misdemeanor. The issue is whether the failure to sufficiently complete sex

offender treatment satisfies the requirement of “engaging in conduct that creates a substantial risk

to the safety and security of the institution, the community, or the victim.”

{¶106} In support of its conclusion, the majority cites to the Ninth District’s recent

decision in In re D.J., 9th Dist. Summit Nos. 28472 and 28473, 2018-Ohio-569.3

{¶107} D.J., age 15, was committed to ODYS following an adjudication for rape and

felony murder. He appealed his adjudication, but after doing well during his commitment, he

dismissed his appeal. Following the dismissal, the juvenile court noted that D.J.’s sex offender

treatment would begin, but D.J. refused to enter the program until nine months before turning 21

years of age. Although he attended and participated in the first phase of the program, he did not

meet his goals because he would not identify the triggers for his conduct. This prevented him

from continuing with the second phase of his treatment.

3
On April 2, 2018, D.J. appealed this decision to the Ohio Supreme Court. See In re D.J., 2018-0479.
The jurisdictional memorandum is pending.
 {¶108} Less than two months before D.J.’s 21st birthday, the state moved to invoke the

adult portion of his sentence. Following a hearing, the juvenile court granted the motion,

finding that by failing to complete sex offender treatment, D.J. engaged in conduct that posed a

substantial risk to the safety of the community, and that he could not be rehabilitated before

turning 21.

{¶109} The Ninth District affirmed the juvenile court’s decision. It concluded that D.J.

had 29 months to complete sex offender treatment, which typically takes between 9 and 18

months. And by intentionally waiting until he had only 9 months prior to turning 21 to begin

treatment, it was too late to finish the treatment in light of his minimal participation and

emotional detachment from his offense. The court concluded that D.J., in failing to complete

sex offender treatment, engaged in conduct that created a substantial risk to the safety of the

community.

{¶110} The facts and circumstances in D.J. are distinguishable. The most glaring

distinction is that D.J. had over 29 months to complete sex offender treatment. His commitment

to ODYS did not create an impossibility, unlike A.W.’s six-month commitment. Additionally,

the facts in D.J. indicate that the juvenile court ordered sex offender treatment during the

disposition hearing. In this case, the juvenile court did not order A.W. to participate and engage

in sex offender treatment during disposition. D.J. also refused to participate in treatment from

the beginning of his commitment up until nine months before his 21st birthday — he refused for

almost two years. Whereas in this case and contrary to the majority’s statement, A.W. did not

refuse to participate in sex offender treatment once he was ordered to participate and advised that

failure to do so would result in the invocation of his adult sentence.

{¶111} Finally, the facts in D.J. indicate that D.J. obtained no benefit from the sex

offender treatment that he did receive, whereas the facts here show that A.W. responded well to
individualized treatment, and despite only completing seven of the 35 lessons in the first phase of

the program, A.W. was benefitting. Dr. Greene, his individual therapist, testified that A.W. was

very engaged and did the work. Bonita Reaves, the social worker who facilitated the group

therapy, testified that A.W. did well in group, was always on time, did a lot of sharing, asked

relevant questions, and completed all of his homework assignments.

{¶112} In addition to his therapists testifying that A.W. was engaged in treatment, A.W.’s

social worker, Dorothy Chapman, advised the court that A.W. participated and completed his

substance abuse group, completed aftercare group, and participated in his education requirement.

She stated, “[H]e reports his goals for the next 30 days as completing or participating in SO

program as required, completing Phase 2 of the substance abuse and completing successfully and

continue to attend the [inaudible] support group that we have in place.” (May 8, 2017 tr. 7.).

{¶113} Accordingly, I find D.J. distinguishable from the facts in this case. Moreover, I

doubt that failure to adequately engage in treatment and achieve certain desired results is the type

of misconduct that the General Assembly intended when it drafted R.C. 2152.14(E)(1)(c).

{¶114} The juvenile court rescinded its promise about not invoking the adult portion of

A.W.’s sentence only after A.W.’s incriminating statements made during treatment were relayed

to the court. I agree with A.W. that the juvenile court must have relied on his incriminating

statements when it imposed his adult sentence because (1) A.W. did not engage in any further

wrongdoing or bad acts at ODYS, such as fighting or causing disruption, and (2) the other

admissible and untainted evidence establishes that A.W. was doing the best he could in the time

he had, which was complying with the exact order the juvenile court issued at the March 31,

2017 hearing.

{¶115} The majority notes that Dr. Alpert testified that A.W. was only “superficially

engaged” in group treatment. The rationale for this conclusion, however, was based on A.W.’s
incriminating statements — statements that should have been suppressed. Additionally, the

majority relies on Dr. Palmer’s statement that A.W. only attended the classes because he wanted

to avoid prison, not to reform his behavior. However, as the Ohio Supreme Court has noted,

“the threat of the imposition of an adult sentence encourages a juvenile’s cooperation in his own

rehabilitation, functioning as both carrot and stick.” D.H., 120 Ohio St.3d 540, 2009-Ohio-9,

901 N.E.2d 209, at ¶ 18. Accordingly, it is not surprising that A.W.’s motivation in cooperating

with his own rehabilitation would be to avoid an adult sentence.

F. Conclusion

{¶116} In my opinion, the record is very clear. A.W. was sentenced to ODYS for

approximately 6 months before turning 21 years old. Five months before turning 21, he was

ordered for the first time by the juvenile court to participate and engage in sex offender treatment

or his adult portion of his sentence would be imposed. Despite this order, ODYS sat on its

hands until March 31, 2017, when the juvenile court discovered ODYS had not immediately

placed A.W. into sex offender treatment or notified the court of its inability to place him into

treatment. A.W. was advised on March 31, 2017, that if he participated in sex offender

treatment, the adult portion of his sentence would not be invoked. The court’s journal entry

noted that A.W. would turn 21 on May 23, 2017, and that he needed “to complete as much of the

program as he can.” And the court promised A.W. that “if you do everything you’re supposed

to, I will not impose your SYO.” (March 31, 2017 tr. 10.) The record reflects that A.W. did

everything he was supposed to do from March 31, 2017, yet the juvenile court still invoked the

SYO. It can only be deduced from the record that its justification for doing so was because of

statements made during A.W.’s full participation in treatment — incriminating statements that
violated his Fifth Amendment right. The system obviously failed A.W. by depriving him of

basic fundamental fairness.

{¶117} For the foregoing reasons, I would vacate the juvenile court’s order invoking the

adult portion of A.W.’s SYO sentence.