[Cite as In re J.D., 2020-Ohio-3225.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
IN RE:
CASE NO. 13-19-51
J.D.,
OPINION
A MINOR CHILD.
Appeal from Seneca County Common Pleas Court
Juvenile Division
Trial Court No. 21720127
Judgment Reversed and Cause Remanded
Date of Decision: June 8, 2020
APPEARANCES:
Lauren Hammersmith for Appellant
Eleanor J. Anderson for Appellee
Case No., 13-19-51
SHAW, P.J.
{¶1} Appellant J.D., a delinquent child, appeals the November 25, 2019
judgment of the Seneca County Court of Common Pleas, Juvenile Division,
overruling his Motion to Vacate Void Adjudication. On appeal, J.D. argues the trial
court erred in determining that his motion was an untimely petition for post-
conviction relief and as such, also erred in concluding that it did not have
jurisdiction to entertain the motion. J.D. further argues that his adjudication for
statutory rape is unlawful under the holding by the Supreme Court of Ohio in In re
D.B., 129 Ohio St. 3d 104, 2011-Ohio-2671.
Relevant Facts and Procedural History
{¶2} On April 6, 2017, the State filed a delinquency complaint alleging that
J.D. committed the offense of statutory rape, in violation of R.C. 2907.02(A)(1)(b),
a first degree felony if committed by an adult.1 Specifically, the complaint alleged
that J.D. engaged in sexual conduct with a nine-year-old child on multiple occasions
in the fall of 2016. J.D. was twelve-years-old at the time the allegations in the
complaint occurred.
1
Section 2907.02(A)(1)(b) of the Revised Code states:
(A)(1) No person shall engage in sexual conduct with another who is not the spouse
of the offender or who is the spouse of the offender but is living separate and apart
from the offender, when any of the following applies:
***
(b) The other person is less than thirteen years of age, whether or not the offender
knows the age of the other person.
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{¶3} On April 28, 2017, J.D. entered an admission to the statutory rape
charge. The trial court accepted the admission and found J.D. to be a delinquent
child. The trial court imposed a one-year commitment to the Department of Youth
Services (“DYS”) suspended upon J.D.’s compliance with certain conditions.
Specifically, the trial court placed J.D. on probation and ordered him to participate
in and successfully complete a sex offender treatment program at the Northern Ohio
Juvenile Community Corrections Facility.
{¶4} On March 25, 2019, the State filed a motion requesting the trial court
impose J.D.’s suspended DYS commitment for violating his probation based upon
his unsuccessful discharge from sex offender treatment programs at several juvenile
facilities. The next day, the trial court conducted a hearing on the matter. J.D.
entered an admission to the probation violation. The trial court held in abeyance its
ruling on the State’s motion to invoke J.D.’s suspended DYS commitment to give
J.D. a “last chance” opportunity to complete the required program.
{¶5} On June 14, 2019, the trial court was notified of J.D.’s failure to
successfully complete the court-ordered program. The trial court conducted an
evidentiary hearing on the State’s motion to invoke J.D.’s suspended DYS
commitment. The trial court heard testimony from several witnesses involved with
J.D. at various juvenile facilities. They each established that J.D.’s persistent
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disruptive behavior, insubordination, and non-compliance all contributed to his
unsuccessful discharges from the sex offender treatment programs at their facilities.
{¶6} On June 19, 2019, the trial court issued a judgment entry finding that
J.D. had violated his probation by failing to complete the sex offender treatment
program and imposed J.D.’s suspended commitment to DYS. The trial court
ordered that J.D. must complete the sex offender treatment program at DYS prior to
his release.
{¶7} On October 23, 2019, J.D. filed a Motion to Vacate Void Adjudication.2
In this motion, J.D. argued that the trial court’s April 28, 2017 Judgment Entry
adjudicating him delinquent by reason of statutory rape in violation of R.C.
2907.02(A)(1)(b) is unlawful because approximately six years prior to the
commission of the acts alleged in the delinquency complaint and the Juvenile
Court’s subsequent adjudication thereon, the Supreme Court of Ohio had ruled that
a child under the age of 13 years of age may not be adjudicated delinquent for
violating R.C. 2907.02(A)(1)(b). In re D.B., 129 Ohio St.3d 104, 2011-Ohio-2671.
{¶8} The Supreme Court of Ohio’s 2011 decision in In re D.B. involved a
12-year-old child who was found to be delinquent by reason of committing the
2
Counsel for J.D. initially filed a direct appeal from the trial court’s judgment entry of June 19, 2019
imposing the DYS commitment. However, the record reveals that counsel voluntarily dismissed that appeal
to pursue the Motion to Vacate Void Adjudication in the trial court.
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offense of statutory rape against another child under the age of 13 in violation of
R.C. 2907.02(A)(1)(b), which states that:
No person shall engage in sexual conduct with another who is not
the spouse of the offender or who is the spouse of the offender but
is living separate and apart from the offender, when any of the
following applies:
***
(b) The other person is less than 13 years of age, whether or not
the offender knows the age of the other person.
{¶9} The Supreme Court in D.B. held that R.C. 2907.02(A)(1)(b) was
unconstitutional as applied to a child under the age of 13 who engages in sexual
conduct with another child under 13. In re D.B., 129 Ohio St.3d 104, 2011-Ohio-
2671, syllabus. In analyzing whether or not the 12 year old child’s due process
rights had been violated, the Supreme Court determined that:
As applied to children under the age of 13 who engage in
consensual sexual conduct with other children under the age of
13, R.C. 2907.02(A)(1)(b) is unconstitutionally vague because the
statute authorizes and encourages arbitrary and discriminatory
enforcement. When an adult engages in sexual conduct with a
child under the age of 13, it is clear which party is the offender
and which is the victim. But when two children under the age of
13 engage in sexual conduct with each other, each child is both an
offender and a victim, and the distinction between those two terms
breaks down.
Id. at ¶ 24.
{¶10} The Supreme Court also concluded that the application of R.C.
2907.02(A)(1)(b) violated the equal protection clause because both children
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engaged in sexual conduct with a person under the age of thirteen, but only D.B.
was charged. D.B., 129 Ohio St.3d 104, 2011-Ohio-2671, at ¶ 31-32. Specifically,
the Supreme Court stated that under the plain language of the statute, “every person
who engages in sexual conduct with a child under the age of 13 is strictly liable for
statutory rape, and the statute must be enforced equally and without regard to the
particular circumstances of an individual’s situation.” Id. at ¶ 30. Thus, because
D.B. and the victim were both under the age of 13 at the time of the alleged offense,
the Supreme Court found that “they were both members of the class protected by
the statute, and both could have been charged under the offense. Application of the
statute in this case to a single party violates the Equal Protection Clause’s mandate
that persons similarly circumstanced shall be treated alike.” Id.
{¶11} On November 18, 2019, the trial court held a hearing on J.D.’s motion
to vacate his adjudication.
{¶12} On November 25, 2019, the trial court overruled the Motion to Vacate
Void Adjudication, finding that the motion was in effect an untimely petition for
post-conviction relief that failed to meet the requirements of R.C. 2953.21 and R.C.
2953.23. As a result, the trial court found that it was without jurisdiction to consider
the merits of the Motion to Vacate Void Adjudication.
{¶13} J.D. filed this appeal, asserting the following assignments of error.
ASSIGNMENT OF ERROR NO. 1
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THE SENECA COUNTY JUVENILE COURT ERRED WHEN
IT DETERMINED THAT IT WAS WITHOUT JURISDICTION
TO RULE ON J.D.’S REQUEST TO VACATE HIS VOID
SENTENCE [SIC]. IN RE N.G., 3D DIST. HANCOCK NO. 5-13-
35, 2014-OHIO-3190, ¶ 7; 11/25/2019 ENTRY.
ASSIGNMENT OF ERROR NO. 2
THE SENECA COUNTY JUVENILE COURT ERRED WHEN
IT DENIED J.D.’S MOTION TO VACATE HIS
ADJUDICATION FOR STATUTORY RAPE UNDER R.C.
2907.02(A)(1)(b) WHEN HE WAS UNDER THE AGE OF 13
WHEN THE OFFENSES IN THIS CASE WERE ALLEGED TO
HAVE OCCURRED. IN RE D.B., 129 OHIO ST.3D 104, 2011-
OHIO-2671, 950 N.E.2D 525, ¶ 33.
First Assignment of Error
{¶14} In his first assignment of error, J.D. argues that the trial court erred
when it elected to treat his Motion to Vacate Void Adjudication as an untimely
petition for post-conviction relief under R.C. 2953.21 and R.C. 2953.23, and
concluded that it lacked jurisdiction to rule on the merits. In reaching this
determination, the trial court relied on a prior case from this Court, In the matter of
J.P., 3d Hancock No. 5-12-31, 2013-Ohio-1007.
{¶15} In J.P., the juvenile offender (J.P.) filed a petition for post-conviction
relief in February of 2012 alleging that his 2005 adjudication for statutory rape in
violation R.C. 2907.02(A)(1)(b) was unconstitutional based upon the subsequently
released Supreme Court of Ohio’s 2011 decision In re D.B., 129 Ohio St.3d 104,
2011-Ohio-2671. J.P., 2013-Ohio-1007 at ¶ 7. We affirmed the trial court’s
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judgment dismissing J.P.’s petition for post-conviction relief on the basis that the
petition did not meet the criteria stated in R.C. 2953.23(A)(1). These statutory
criteria must be established in order for the trial court to obtain jurisdiction to
entertain a post-conviction petition that has been filed after the expiration of the
prescribed statutory time limit, which in J.P.’s case would have been 180 days after
the trial transcript was filed with the court of appeals in the direct appeal from the
trial court’s 2005 judgment of disposition. Id. at ¶ 19.
{¶16} Specifically, R.C. 2953.23(A)(1) states that:
(A) Whether a hearing is or is not held on a petition filed
pursuant to section 2953.21 of the Revised Code, a court may not
entertain a petition filed after the expiration of the period
prescribed in division (A) of that section or a second petition or
successive petitions for similar relief on behalf of a petitioner
unless division (A)(1) or (2) of this section applies:
(1) Both of the following apply:
(a) Either the petitioner shows that the petitioner was
unavoidably prevented from discovery of the facts upon
which the petitioner must rely to present the claim for relief,
or, subsequent to the period prescribed in division (A)(2) of
section 2953.21 of the Revised Code or to the filing of an
earlier petition, the United States Supreme Court recognized
a new federal or state right that applies retroactively to
persons in the petitioner’s situation, and the petition asserts
a claim based on that right.
(b) The petitioner shows by clear and convincing evidence
that, but for constitutional error at trial, no reasonable
factfinder would have found the petitioner guilty of the
offense of which the petitioner was convicted or, if the claim
challenges a sentence of death that, but for constitutional
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error at the sentencing hearing, no reasonable factfinder
would have found the petitioner eligible for the death
sentence.
R.C. 2953.23(A)(1).
{¶17} In his petition, J.P. did not allege any new factual evidence in his case,
but instead he claimed that a new state “right” had been recognized by the Supreme
Court of Ohio in D.B. J.P., 2013-Ohio-1007 at ¶ 15. However, we determined that
J.P. had failed to establish that the Supreme Court of Ohio’s holding in D.B. satisfied
the requirements of R.C. 2953.23(A)(1)(a) because it was not a new “right”
recognized by the United States Supreme Court, and there was also no indication
that D.B. was intended to be applied retroactively. Id. at ¶¶ 17-18. Accordingly,
we concluded that J.P. failed to meet the requirements to invoke the trial court’s
jurisdiction to entertain an untimely petition for post-conviction relief under R.C.
2953.21 and R.C. 2953.23.
{¶18} There are several aspects of the instant case that distinguish it from
our prior case, J.P. At the outset, J.D. did not seek relief pursuant to R.C. 2953.21
and R.C. 2953.23. Moreover, at the time the complaint in this case was filed and
the trial court adjudicated J.D. delinquent in 2017, the Supreme Court had already
issued its decision in D.B. six years prior, rendering it unlawful for J.D. to be
adjudicated delinquent by reason of a violation of R.C. 2907.02(A)(1)(b).
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{¶19} Although perhaps not articulated as specifically as it could be, it is
apparent that the Motion to Vacate Void Adjudication is challenging J.D.’s entry of
an admission, the trial court’s acceptance of that admission and subsequent
adjudication of delinquency to a statutory offense that the Supreme Court of Ohio
had already held cannot be a basis for such an adjudication. As such, the record in
this case demonstrates that beginning with the complaint itself, the entire process
underlying the trial court’s adjudication of J.D. as a delinquent child was fatally
flawed. Specifically, the parties and the trial court were all operating under a mutual
mistake of law when J.D. was charged with statutory rape in violation of R.C.
2907.02(A)(1)(b), when J.D. entered an admission to the unlawful charge, when the
trial court accepted J.D.’s admission, and when the trial court entered an
adjudication of delinquency thereon.
{¶20} Juvenile Rule 29(D) states that a court “shall not accept an admission
without addressing the party personally and determining” that “[t]he party is making
the admission voluntarily with understanding of the nature of the allegations and the
consequences of the admission* * *.” Juv.R. 29(D)(1). Clearly, J.D.’s admission
to a statutory offense that the Supreme Court has deemed to be unconstitutional as
applied to him cannot be said to be voluntarily entered “with understanding of the
nature of the allegations and the consequences of the admission.” Id. Therefore,
we cannot conclude that Juv.R. 29(D) was complied with when J.D. entered and the
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Juvenile Court accepted his admission to statutory rape in violation of R.C.
2907.02(A)(1)(b), in direct contravention of the law as set forth in the Supreme
Court’s holding in D.B.
{¶21} By way of analogy, we have recognized in the context of Crim. R.
32.1, when an adult offender files a motion to withdraw a guilty plea, that a
“manifest injustice” has occurred when the parties are under a mutual mistake of
law at the time the plea was entered. See State v. Youngpeter, 3d Dist. Van Wert
Nos. 15-04-09, 15-04-10, 2005-Ohio-329, ¶ 16 (“After reviewing the record, it
appears that there was a specific misunderstanding and mistake of law by the court
and the prosecution as to whether Youngpeter could be charged with violating the
protection order that she obtained against Roger Lewis. A fundamental error of this
nature is sufficient to constitute a manifest injustice under Crim.R. 32.1.”).
Moreover, we also have previously determined that a “specific misunderstanding
and mistake of law by court and counsel * * *, which is corroborated by the record,
is sufficient to void the plea and is therefore sufficient to constitute a manifest
injustice under Crim. R. 32.1.” State v. Cook, 3d Dist. Putnam No. 12-01-15, 2002-
Ohio-2846, ¶ 12.
{¶22} In general, “[c]ourts may recast irregular motions into whatever
category necessary to identify and establish the criteria by which the motion should
be judged.” See State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, ¶ 12. We
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acknowledge that a motion to vacate might under certain circumstances be properly
characterized as a petition for post-conviction relief when it is filed subsequent to a
direct appeal (or the expiration of the time for filing a direct appeal), it claims the
denial of a constitutional right, it seeks to void a voidable judgment, and asks for
the vacation of the judgment and sentence. See id.; State v. Reynolds, 79 Ohio St.3d
158 (1997). “Where, on the other hand, the judgment is void, not voidable, the trial
court can act under its inherent authority to vacate the void judgment, and it need
not construe a motion to vacate as a petition for post-conviction relief.” State v.
Moore, 2d Dist. Clark No. 2013 CA 97, 2014-Ohio-4411, ¶ 13.
{¶23} Here, the record establishes a fundamental error in the acceptance of
J.D.’s admission sufficient to render the admission and subsequent adjudication of
delinquency thereon void. Therefore, we find that J.D.’s motion does not fall within
the purview of R.C. 2953.21 and R.C. 2953.23. Accordingly, we believe it was
error for the trial court to dismiss J.D.’s Motion to Vacate Void Adjudication as an
untimely petition for post-conviction relief. Rather, we conclude that the record
demonstrated a legitimate basis for the trial court to consider the merits of the
motion as a motion to withdraw and/or vacate the admission under Juv.R. 29(D), as
we have just done. See In re D.D., 3d Dist. Putnam No. 12-18-19, 2019-Ohio-2073
(considering a motion to withdraw an admission under a Juv.R. 29(D) analysis).
For these reasons, we sustain the first assignment of error.
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Second Assignment of Error
{¶24} In his second assignment of error, J.D. argues that the trial court
violated his right to due process when it committed him to DYS based on an
unconstitutional adjudication. Again, J.D. cites In re D.B., 129 Ohio St.3d 104,
2011-Ohio-2671, in support of his argument that his probation violation was based
on an unlawful underlying adjudication for statutory rape in violation of R.C.
2907.02(A)(1)(b). Based upon our discussion and disposition of the first assignment
of error, we agree. Accordingly, we also sustain the second assignment of error.
{¶25} Based upon the foregoing, the assignments of error are sustained, the
judgment of the trial court is reversed and the cause is remanded for further
proceedings consistent with this opinion.
Judgment Reversed and
Cause Remanded
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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