Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
Also see Juveniles;
Counsel, Right to/Juveniles; Guardian ad
Detention and pretrial proceedings; Jurisdiction
Competency and sanity
Right to counsel
Adjudicatory hearing issues
Bindover, Subsequent proceedings; Double jeopardy
Disposition and sentencing
Probation, parole and continuing jurisdiction issues
Detention and pretrial proceedings; Jurisdiction
See Juveniles for
cases on appropriateness of prosecuting of younger children
In re A.B., 191 Ohio App.3 80,
2010-Ohio-5413 – Kid got in trouble in Cuyahoga County, Believing he lived
in an adjoining county the court ordered the child welfare agency there to
prepare a case plan. It did not and failed to attend the dispositional hearing.
Agency’s due process rights were not violated – notice went out well before the
hearing and no written continuance request was submitted. Nor may the agency now
claim the mother, who lived in Cuyahoga County, was actually the residential
State v. Mohamed,
178 Ohio App. 3d 695,
2008-Ohio-5591 – Mother born in Somalia was charged as an adult with
kidnapping, felonious assault and child endangerment, it being alleged she and
her husband had used a hot fork to discipline three children in their care. Her
actual age was in dispute. The state submitted documents indicating a January
1st birthday which would have made her 18. The defense offered testimony that
the age provided in such documents could not be relied upon, as documents
prepared to permit emigration from refugee camps was prepared by Somalis who did
not speak the same language as the Bantu refugees. There was a pattern of using
either January 1st or July 1st as the birth date. To establish jurisdiction the
prosecutor had to establish age beyond a reasonable doubt. Court did not abuse
its discretion ordering case transferred to the juvenile court.
W.W., 190 Ohio App. 3d 653,
2010-Ohio-5305 – Juvenile court dismissed abuse proceedings
for lack of venue, apparently mistakenly believing that the
child welfare agency that brought the action had to prove the
abuse occurred, or the child lived, in the city of Painesville,
though he actually lived in Painesville Township. Both are in
Lake County. Court did not lack jurisdiction. Venue was proper.
Even if it were not, court could transfer case to a county where
venue was proper. While a dismissal based on lack of venue is
generally not appealable, it is here because the court dismissed
for lack of jurisdiction.
In re Burton S. (1999), 136 Ohio App. 3d
386 -- Subject matter and personal jurisdiction distinguished: Subject matter
jurisdiction may be raised at any time, including when it is raised for the
first time on appeal. But the filing of a complaint alleging delinquency gives
the juvenile court subject matter jurisdiction. By contrast, personal
jurisdiction may be waived unless raised in the trial court. Unless age is an
essential element of the predicate adult crime, it is not a matter which must be
proved at the adjudicatory hearing.
Luman, 172 Ohio App. 3d 461,
2007-Ohio-2565 -- According to
R.C. 2151.353(J) in some circumstances the jurisdiction of a
juvenile court concerning a child residing in a different county
terminates a year after the last action in a case. Mother who
lived in county 1, sought unsuccessfully to regain custody in
county 2 where the child had been adjudicated dependent. More
than a year later she sought custody in county 3 where the child
actually lived. Applying the statute, which is deemed
unambiguous, the court in county 3 erroneously dismissed the
mother's motion for want of jurisdiction. The court notes there
may still be an impediment based on a prior paternity action in
In re Fudge (1977), 59 Ohio App. 2d 129 --
The age of a juvenile is not an element which must be proved. Instead, it is a
question of jurisdiction over the person which must be raised before the case is
In re Meyer (1994), 98 Ohio App. 3d 189,
192-193 -- Complaint seeking permanent custody was filed in Defiance County one
month after family had moved to Paulding County. Apparently the children
remained wards of the Defiance County court and were not the wards of any other
Ohio court. Thus the court had jurisdiction. Pursuant to
R.C. 2151.271 and Juv.
R. 11 venue is a matter within the discretion of the court, and was also proper.
In re C. (1991), 61 Ohio Misc. 2d 610 --
It is impossible to prosecute a rape committed before the accused was fifteen
(and thus not subject to bindover) where charges are not filed until after he is
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Competency and sanity
In re B.H., 169
Ohio App. 3d 331,
2006-Ohio-5534 -- It was an abuse of discretion for a juvenile court judge
to refuse to appoint an expert to assess the competency of a fourteen year old
girl accused of rape. Though the judge may have been satisfied with the child's
response to the standard inquiries from the bench, information a guardian ad
litem, counsel, and the custodial aunt required a professional evaluation.
In re B.M.S., 165 Ohio App. 3d 609,
2006-Ohio-981 -- Report indicated juvenile's competency was highly suspect,
though age equivalent. Court erred by not conducting a hearing on competency.
Plea was flawed as juvenile was misinformed as to the penalty. Disposition
without counsel or a waiver was a denial of the right to counsel. Hearing should
have been held to determine ability to pay a fine.
In re Grimes, 147 Ohio App. 3d 192,
2002-Ohio-1547 -- Deaf juvenile entered an admission to gross sexual imposition
in Clark County and was returned to his home county for disposition. Materials
reviewed by the sentencing judge included a prior psychological evaluation
indicating limited signing skills and that the juvenile was not competent to
stand trial on an earlier charge. Court was obligated to determine competency.
Reversed as plain error and on delayed appeal.
In re Bailey, 150 Ohio App. 3d 664,
2002-Ohio-6792 -- Examiner concluded juvenile was not competent to stand trial
as an adult if bound over, but was competent to enter an admission in juvenile
court. Court rejects the prosecutor's claim the same standard guides both
determinations, but reverses because trial court failed to specifically find the
juvenile was competent to enter an admission. Also see In re Williams
(1997), 116 Ohio App. 3d 237, 242.
In re Gooch, Montgomery App. No. C.A.
2002-Ohio-6859 -- Decisions concerning competency to stand trial are
outcome-determinative and are not subject to invited error analysis. Trial
counsel stipulated juvenile was competent.
In re William S. (1997), 116 Ohio App. 3d
237 -- The right not to be tried while incompetent is as fundamental in juvenile
proceedings as in criminal trials of adults. Finding of competency reversed as
plain error as examiners applied the wrong legal standard. Court indicates that
competency finding by a magistrate may require judicial adoption.
In re D.G. (1998), 91 Ohio Misc. 2d 226 --
The Due Process Clauses of the state and federal constitutions require a
juvenile court to observe procedures sufficient to assure a juvenile is
competent to stand trial. The adult competency statute may be applied to
juvenile proceedings provided the court makes its assessment applying juvenile
In re Chambers (1996), 116 Ohio App. 3d
312 -- Insanity may not be raised as an affirmative defense in delinquency
proceedings, but it is a factor which may be considered in adjudicating
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In re Andrew, 119
Ohio St. 3d 466,
2008-Ohio-4791 – Syllabus: "When a juvenile court is exercising jurisdiction
over a person adjudicated a delinquent child pursuant to the matter for which
the person was adjudicated delinquent, the person adjudicated delinquent shall
be treated as a child until he reaches the age of 21." 18-year old waived
counsel and admitted parole violation. Though the waiver would have been proper
if he were an adult, he was still a juvenile for purposes of continuing
jurisdiction and thus was subject to the statutory requirement counsel could not
be waived unless he first consulted with a parent, guardian, custodian or an
In re D.L., 189 Ohio
App. 3d 154,
2010-Ohio-1888 – Twelve and thirteen year old got into a
fight at school. Protection order was sought for the loser.
Magistrate allowed the fathers to ask questions at the hearing.
Order vacated as this amounted to the unauthorized practice of
In re Predmore, 187 Ohio App. 3d 100,
2010-Ohio-1626 – Defendant advances multiple denial of right
to counsel claims based on proceedings in two counties, but some
are hampered by transcript difficulties, resulting in
application of a presumption of regularity. But the right to
counsel was not addressed at all at one adjudicatory hearing,
leading to reversal. In re C.S., 115 Ohio St. 3d 267,
In re C.S., 115
Ohio St. 3d 267,
2007-Ohio-4919 -- A delinquent's right to counsel flows from the Due Process
Clause of the Sixth Amendment, not the Sixth, because juvenile proceedings are
deemed civil in nature. The right to counsel may be waived, but only if the
juvenile has first been "counseled" in this regard by a parent, custodian or
guardian, or has consulted with an attorney.
In re William B., 163 Ohio App. 3d 201,
2005-Ohio-4428 -- Juvenile was before the court for violation of terms of
placement at a treatment center, and was facing two suspended DYS terms. Right
to counsel was violated. He could not be considered to be represented by his
mother as their interests were adverse. Purported waiver was presented to the
juvenile in terms of contesting the charge, and was ineffective. The court also
should have appointed a guardian ad litem. The admission colloquy did not
substantially comply with Juv. R. 29 as the magistrate referred only to the
shorter of the two suspended terms the juvenile faced.
In re Kindred, Licking App. No. 04 CA
2004-Ohio-3647. ¶29 (Concurring opinion.) -- "I concur with the majority as
to disposition of this case. I write separately only to make explicit what I
find to be implicit in the majority's analysis. If non-indigent parents of a
child refuse to provide counsel for that child and that child wants to be
represented by counsel, that child is indigent and the court must appoint
counsel. Any waiver of counsel by such child must be done with clear knowledge
of what counsel can do for the child as well as the fact that counsel will be
provided at no cost to the child."
In re M.L.R., 150 Ohio App. 3d 39,
2002-Ohio-5958 -- Dispositional hearing on permanent custody request was set for
9:00. Counsel for father was allowed to withdraw when his client had not
appeared by 9:45. Father arrived as the hearing was underway. The court refused
to appoint new counsel and the father did not waive his right to counsel.
Reversed. Claimed lack of "cooperation" at the last minute and without
elaboration was not a sufficient basis for permitting withdrawal. Nor did the
attorney's conduct satisfy ethical standards. Also see In re Tyler S.,
Lucas App. No. L-04-1294,
In re Clark (2001), 141 Ohio App. 3d 58 --
Guardian ad litem favored permanent custody to agency, but child wanted
to stay with his mother. Reversed for failure to appoint an attorney for the
child. Right to counsel attaches under
R.C. 2151.352 because a GAL does not
exercise parental rights, and thus the child is not represented by a parent,
guardian or custodian.
In re Smith (2001), 142 Ohio App. 3d 16,
19-20 -- Presence of a case worker from the agency to which a juvenile was
committed nullified the automatic appointment of counsel required by
2151.352 for those not accompanied by a parent, guardian or custodian. Reversed
anyway as merely advising the child she was entitled to counsel, and that an
attorney would be appointed if she was indigent, was insufficient.
In re Johnston (2001), 142 Ohio App. 3d
314 -- A delinquency trial cannot go forward unless the juvenile is represented
by counsel or has waived his right to counsel. Unsuccessful efforts by the
juvenile to hire counsel do not constitute waiver.
In re Kriak (1986), 30 Ohio App. 3d 83 --
Pursuant to R.C. 2151.352, a juvenile has a statutory right to counsel in all
proceedings, regardless of the potential for incarceration. Accordingly he must
be advised of his right to appointed counsel if indigent.
In re Johnson (1996), 106 Ohio App. 3d 38
-- (1) Court must make more than cursory inquiry for there to be a valid waiver
of counsel. (2) Error to appoint grandmother as guardian ad litem.
In re Brodbeck (1994), 97 Ohio App. 3d 652
-- Court finds no error in the appointment of a single attorney to represent
both parents in termination of parental rights proceedings where there was no
evidence that the couple planned to separate or dissolve their marriage or that
they did not intend to raise their children together.
In re Doyle (1997), 122 Ohio App. 3d 767
-- Magistrate erroneously: (1) limited advice regarding right to counsel to the
context of a trial, (2) failed to determine she understood the substance of the
complaint against her, and (3) failed to apprise her of dispositional
consequences. A parent cannot waive the right to counsel for a child.
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In re J.R.P., 175
Ohio App. 3d 481,
2008-Ohio-989 – A juvenile is entitled to counsel at all stages of
proceedings. Failure to obtain a valid waiver of the right to counsel at the
initial dispositional hearing, at the hearing where the juvenile admitted to a
violation of his probation, and at the dispositional hearing following that,
requires reversal. Juvenile was represented by counsel when he entered an
admission to the charge against him, but that hearing did not meet the
requirements of Juv. R. 29 because he was only asked if he understood the
charge. Instead the court was required to ascertain whether he understood the
nature of the allegations against him.
J.F., 178 Ohio App. 3d 702,
2008-Ohio-4325 – (1) At the adjudicatory hearing an
admission was entered. The magistrate referred to advice on the
specific consequences of the admission given at an earlier
hearing, but did not repeat that advisement. Court cannot
presume regularity of the earlier hearing, for which there is no
transcript. Reversed for failure to comply with Juv. R.
29(B)(2). (2) Juvenile waived his right to counsel at a
subsequent hearing on probation revocation. According to
In re C.S., 115 Ohio St. 3d 267,
2007-Ohio-4919, a juvenile may waive his right to counsel,
but only after consulting with an attorney, or counseling by his
parent, custodian, or guardian. Mother‘s statements at the
hearing were insufficient to establish the necessary counseling.
Court notes that in an earlier case it found insufficient an
affirmative response by a mother that her son understood his
G.W., 186 Ohio App. 3d 399,
2009-Ohio-4324 – Hearings mingled resolution of probation
violation and a new vandalism charge. As to the new charge the
court finds substantial compliance with Juv. R. 29, but as to
the violation the juvenile was not adequately advised as to his
rights if there were a trial on the merits. See ¶30.
In re Kirby, 101 Ohio St. 3d 312,
2004-Ohio-970 -- Juvenile courts are not required to accept
pleas. There is no constitutional right to plead guilty while maintaining
innocence. Unlike Criminal Rule 11 which tolerates Alford pleas, Juvenile
Rule 29 provides that the failure to admit the allegations in the complaint is
to be treated as a denial.
In re Steinmetz, Montgomery App. No.
2002-Ohio-4685 -- Magistrate coaxed an admission by threatening stacked
sentences if a juvenile wasted the court's time and went to trial and there were
multiple convictions, versus six months on an admission. Coercion found even
absent a statement by the juvenile that he felt coerced, since the record
indicates he came to court intending to reject the state's plea offer.
In re Graham, 147 Ohio App. 3d 452,
2002-Ohio-2407 -- Court did not comply with Rule 29 because it failed to
ascertain whether juvenile's admission was entered voluntarily, failed to advise
him of the nature of the allegations against him, the consequences he faced or
of the rights he was waiving. Attempts to remedy the situation at the
dispositional hearing were too little, too late. The court must advise a
juvenile of rights before accepting admission - which it had already done.
Juvenile has cause to regret the appeal as the court sua sponte
finds he was subject to mandatory bindover, and remands for a probable cause
In re Holcomb, 147 Ohio App. 3d 31,
2002-Ohio-2042 -- While Juvenile Rule 29(D) does not expressly require the court
to inform a juvenile of the maximum penalty he or she faces, it does require the
court to explain the "consequences of the juvenile's admission." Reversed as
juvenile was not advised his penalty could include one to six years in the
custody of the Department of Youth Services. General reference to DYS commitment
was not enough.
In re S.H., Montgomery App. No. 20107,
2004-Ohio-3779 -- Admissions process in juvenile court does not require advice
that consecutive terms of commitment to the Department of Youth Services might
In re Etter (1998), 134 Ohio App. 3d 484
-- Allegation of dependency was admitted, following which court ordered
permanent commitment. (1) Court was obliged to comply with Juv. R. 29(D),
despite guardian ad litem's statement he had no objection to a finding of
dependency being made based on what was alleged in the minimally changed
complaint. Court was required to address the mother personally in accordance
with the rule. (2) Reversed as plain error, notwithstanding the objections
requirement of Juv. R. 40.
In re Lakes, 149 Ohio App. 3d 128,
2002-Ohio-3917 -- At ¶34: "Furthermore, Juv. R. 34 pertaining to dispositional
hearings does not require the court to engage in a colloquy with a parent in an
R.C. 2151.414 proceeding, which this proceeding was, such as that required by
Juv. R. 29 at adjudicatory hearings." At ¶71: lacking the effect of a plea to a
charge, a parent's admission in a dispositional hearing that his or her child's
best interest would be served by permanent placement elsewhere that with the
parent is not a matter that requires protections similar to those in Juv. R.
29(D). The admission is but one more article of testimonial evidence for the
court to consider in resolving the best-interest question. The court is entitled
to credit the admission or discredit it, on the merits."
In re Amos, 154 Ohio App. 3d 434,
2003-Ohio-5014 -- In a delinquency case, the court appointed a guardian ad litem,
but not an attorney. Reversed, as the record does not demonstrate a waiver of
the right to counsel.
In re Jenkins (1995), 101 Ohio App. 3d 177
-- In delinquency proceedings, upon entry of an admission to the charge, the
court must substantially comply with the requirements of Juvenile Rule 29(A)
concerning assurance the plea is voluntary and made with an understanding of the
consequences and of the rights that are waived. Also see In re Christopher R.
(1995), 101 Ohio App. 3d 245; In re West (1998), 128 Ohio App. 3d 356;
In re Hendrickson
(1996), 114 Ohio App. 3d 290; In re Flynn (1995), 101 Ohio App. 3d 778
(same conclusion notwithstanding use of plea form and acknowledgment of
discussions with counsel); In re Brooks (1996), 112 Ohio App. 3d 54;
In re McKenzie (1995), 102 Ohio App. 3d 275; In re Johnson (1995),
106 Ohio App. 3d 38 [Juv. R. 29(B) noncompliance]; In re Beechler (1996),
113 Ohio App. 3d 567; In re Rogers (1997), 124 Ohio App. 3d 392 (most
remarks directed at parent who had filed an unruly charge); In re Onion
(1998), 128 Ohio App. 3d 498 (no mention of waiver of right to remain silent).
For a case finding noncompliance to be harmless error, see In re Harris
(1995), 104 Ohio App. 3d 324.
In re Terrance P. (1998), 129 Ohio App.
418 -- When juvenile's responses indicated possible lack of understanding of the
rights being waived, defense counsel took over inquiry, securing damaging
admissions. Reversed as ineffective assistance of counsel.
In re Miller (1997), 119 Ohio App. 3d 52
-- Juvenile entered an admission to raping his 9-year old sister. Their mother
was the only person accompanying him in the courtroom. (1) A guardian ad litem
should have been appointed. (2) Waiver of the right to counsel was insufficient
where the judge jointly addressed the group of juveniles making an initial
appearance, then utilized a form waiver without individually addressing those
waiving counsel. (3) Same manner of proceeding did not comply with Rule 29 as to
entry as an admission.
In re Montgomery (1997), 117 Ohio App. 3d
696 -- Indigent juvenile entered an uncounselled admission at an adjudicatory
hearing which counsel later sought to withdraw at the dispositional hearing. Use
of abbreviated forms and lack of a record rebutted presumption of regularity in
proceedings, leading to reversal for failure to establish knowing and voluntary
waiver of counsel and entry of admission.
In re Green (1982), 4 Ohio App. 3d 196 --
Juvenile rules do not provide for no contest pleas. Disposition of a case on a
no contest plea would be ill advised since the court found the plea not to be an
unequivocal admission of guilt and remanded the case for trial, without
addressing the suppression issue advanced on appeal.
In re Nicholson (1999), 132 Ohio App. 3d
303 -- DYS was not precluded from later seeking a DNA specimen by the failure to
mention such procedure during the admission hearing.
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Adjudicatory hearing issues
In re Weiland (2000), 89 Ohio St. 3d 535
-- In termination of parental rights proceedings the agency sought to introduce
records and testimony concerning mother's treatment for substance abuse. Court
of Appeals held privileges applied if communication between patient and provider
were related to court-ordered treatment, but not to communications made in the
course of examinations or evaluations for forensic purposes. Syllabus holds that
in the absence of a specific statutory waiver or exemption, the testimonial
privileges established by the various privilege statutes apply to communications
by a parent in the course of treatment ordered as part of a reunification plan
in an action for dependency and neglect.
In re Knight (1999), 135 Ohio App. 3d 172
-- Child welfare agency called mother as its first witness in a neglect case.
Held to be a Fifth Amendment violation as testimony she might provide could
subject her to prosecution for child endangering.
In re Pedro R., Lucas App. No.
2005-Ohio-539 -- Court did not err by overruling father's motion he
be brought from prison for a hearing on transfer of custody. Case did not
involve termination of parental rights and he was represented by counsel. Also
see State ex rel. Vanderlaan (1994), 96 Ohio App. 3d 235, 236;
In re Johnson (1996), 106 Ohio App. 3d 38
-- Error to permit prosecutor to ask unrepresented juvenile if he would
stipulate prior conviction without first advising him of his Miranda
In re Carlos O. (1994), 96 Ohio App. 3d
252 -- (1) The adjudicatory hearing on a delinquency complaint must be held
within ten days following filing of the complaint. If not, and a trial has been
conducted after a motion to dismiss was overruled, the remedy is dismissal with
prejudice. As to a related charge, the ten days runs from the filing of the
complaint and not from when the factual basis for the charge was known to the
police. (2) Proof of prior convictions for purposes of penalty enhancement
requires evidence and may not be accomplished through judicial notice.
In re Burgess (1984), 13 Ohio App. 3d 374
-- Court upholds finding of delinquency based on offense other than that alleged
in the complaint.
In re Elliott (1993), 87 Ohio App. 3d 816
-- Where the original complaint charged the defendant with being a delinquent
child, upon a failure of proof on the principal charge, the court was without
authority to find the defendant to be a juvenile traffic offender. In re
Burgess (1984), 13 Ohio App. 3d 374, distinguished.
In re Williams (1986), 31 Ohio App. 3d 241
-- When a juvenile court referee improperly intervenes to assist the prosecutor
in proving the enhanced penalty element of a theft offense, then declares a
mistrial based on that intervention, the juvenile may be retried for theft, but
not on the enhancement element.
State v. Aller (1992), 82 Ohio App. 3d 9
-- Juvenile was charged with being delinquent based on consumption of alcohol.
Upon failure to prove consumption instead of mere proximity, juvenile was found
unruly on amended complaint. Amendment held to be a violation of due process.
Compare In re Felton
(1997), 124 Ohio App. 3d 500 where court upheld amendment of sexual imposition
complaint to unruliness based on endangering health and morals. See dissent.
In re Howard (1997), 119 Ohio App. 3d 33,
-- (1) Court erred by not entering findings required by
R.C. 2151.3511 in order
for child victims to testify via closed circuit television. (2) At 40-41:
2151.3511 properly applied to permit testimony by children who witness the abuse
of another child where "there was sufficient evidence for the trial court to
determine that a child witness would be unable to testify in the defendant's
presence due to fear and the substantial likelihood of emotional trauma," making
the witness a "victim" within the scope of the statute.
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Bindover, Procedural issues
State v. Wyerick,
182 Ohio App. 3d 500,
2009-Ohio-3153 – Defendant was indicted for a burglary committed when he was
under 18 without first having been bound over. Though the opinion is not
entirely clear, it appears he was bound over on another burglary and convicted
of a felony as a result. Thus he no longer met the definition of "child" in
Steele, 146 Ohio Misc. 2d 23,
2008-Ohio-2467 – Defendant had been bound over and convicted
of a felony in the past. When he was charged with a subsequent
rape, committed before he turned eighteen charges should have
originated in juvenile court.
2151.23(I) allows immediate indictment only if he had turned
twenty-one. But since the prior conviction meant he was "no
longer a child" case is allowed to go forward.
In re S.J., 106 Ohio St. 3d 11,
2005-Ohio-3215 -- Juvenile court did not find probable cause in support of bindover. Prosecutor appealed. Juvenile admitted delinquency. Syllabus: "(1) A
juvenile court lacks jurisdiction to proceed with an adjudication of a child
after a notice of appeal has been filed from an order of that court. (2) During
the pendency of an appeal, any adjudication of a child made by a juvenile court
is void. Therefore the Double Jeopardy clause of the United States Constitution
does not apply, and the court of appeals may review the merits of the appeal."
In re Stanley, 165 Ohio App. 3d 726,
2006-Ohio-1279 -- Juvenile court rejected bindover motions because the offenses
charged did not qualify for mandatory bindover. The court erred by not
considering discretionary bindover. But in one case the state dismissed charges
before filing a notice of appeal, meaning there was no final appealable order.
State v. Walls, 96 Ohio St. 3d 437,
2002-Ohio-5059 -- No constitutional violation in retroactive application of
2151.011 resulting in an adult being prosecuted, without bindover proceedings,
in Common Pleas Court for an offense committed when he was a juvenile. For
retroactive law analysis in criminal cases the date of the offense is the
governing date for assessing retroactivity. Court finds the legislature intended
retroactive application and that the change was remedial, not substantive. Nor
does application of the amended statute violate the ex post facto clause of the
State v. Iacona 93 Ohio St. 3d 83,
2001-Ohio-1292 -- Syllabus: "(1) A prosecutor is under a duty imposed by the Due
Process Clauses of the Ohio Constitution and the United States Constitution and
Juv. R. 24 to disclose to a juvenile respondent all evidence in the state's
possession favorable to the juvenile respondent and material either to guilt or
punishment that is known at the time of a mandatory bindover hearing held
pursuant to R.C. 2151.26 and that may become known to the prosecutor after the bindover. (2) In determining whether reversible error is committed where the
state fails to disclose evidence in its possession that is favorable to a
juvenile respondent for use by the defense in a mandatory bindover proceeding,
the defense has the burden of proving that the violation was material, i.e.,
that there is a reasonable probability that, had the evidence been disclosed to
the defense, the result of the mandatory bindover hearing would have been
different. (3) The state must provide credible evidence of every element of an
offense to support a finding that probable cause exists to believe that the
juvenile committed the offense before ordering mandatory waiver of juvenile
court jurisdiction pursuant to
R.C. 2151.26(B)." Also see
State v. Goodwin,
166 Ohio App. 3d 709,
In re A.M. (2000), 139 Ohio App. 3d 303 --
In the absence of an order limiting discovery pursuant to Juv. R. 24(B), a
juvenile facing bindover is entitled to discovery coextensive with the issues
bearing on that determination, notwithstanding the possibility that such
discovery may be broader than he or she would be entitled to under Crim. R. 16.
State v. Simpson, 148 Ohio App. 3d 221,
2002-Ohio-3077 -- Juveniles are subject to bindover regardless of amenability to
rehabilitation if under the laws of the state where they are domiciled they are
an adult, and commit here acts which would be a felony at home. Detective's
testimony concerning investigation to determine if defendant lived in South
Carolina supported finding by clear and convincing evidence that defendant was
domiciled in the other state.
Kent v. United States (1966), 383 U.S. 541
-- Bindover proceedings must comply with due process standards.
Gaskins v. Shiplevy (1995), 74 Ohio St. 3d
149 -- Without a proper bindover procedure, a juvenile court's jurisdiction is
exclusive and cannot be waived. Bindover appears to have been invalid because of
right to counsel violation, which petitioner in habeas proceedings was entitled
to add to other cause of action pursuant to Civil Rule 15(A), which permits
amendment of pleading once as a matter of course at any time before a responsive
pleading is filed. Also see State v. Golphin (1998), 81 Ohio St. 3d 543.
In re Langston (1997), 119 Ohio App. 3d 1
-- R.C. 2151.26(B) providing for mandatory bindover in certain circumstances
involves substantive rights, and therefore prevails over Juv. R. 30.
State v. Whisenant (1998), 127 Ohio App.
3d 75 -- (1) After discussing the split of authority, court holds juvenile court
did not err in refusing to rule on a motion to suppress statements. (2) Juvenile
court did not abuse its discretion by refusing to appoint an independent
psychologist to assist in bindover proceedings.
State, ex rel. a Juvenile, v. Hoose
(1988), 43 Ohio App. 3d 109 -- Headnote: "In relinquishment proceedings in the
juvenile court pursuant to Juv. R. 30, a juvenile is not entitled to the
appointment of a private psychiatric examiner of the court's choosing and at the
state's expense, instead of the court psychologist."
State, ex rel Fyffe, v. Pierce (1988), 40
Ohio St. 2d 8 -- A court is not required to close a bindover hearing to the
State v. Taylor (1985), 26 Ohio App. 3d 69
-- Court did not have jurisdiction to proceed with bindover proceedings without
following proper procedure for notification of defendant's mother. Issue was not
waived by defendant's failure to object.
State v. Parks (1988), 51 Ohio App. 3d 194
-- Notice requirements satisfied where notice of bindover proceedings was given
to counsel and grandmother who appeared to be child's custodian.
In re Webb (1989), 64 Ohio App. 3d 280 --
Father had actual notice of proceedings, appeared and participated. Consequently
failure to serve him with summons was not prejudicial. Compare In re
Fassinger (1975), 42 Ohio St. 2d 505.
State v. Smith (1985), 29 Ohio App. 3d 194
-- If a juvenile court wishes to retain jurisdiction, it need not schedule a
hearing on a defendant's motion seeking bindover.
In re K.G. (1997), 89 Ohio Misc. 2d 16, 21
-- "(A) juvenile court may, in its discretion, admit a juvenile to bail pursuant
to Section 9, Article I of the Ohio Constitution in an action wherein a request
for waiver of jurisdiction has been made, pursuant to
R.C. 2151.26 and Juv. R.
30, seeking transfer of the matter to the general division of the court of
common pleas for prosecution as an adult."
Return to top of
State v. Davis, 189 Ohio App. 3d 374,
2010-Ohio-3782 – Juvenile appealed bindover after entering pleas in adult
court. No error found. Years he had spent under supervision in the juvenile
system were followed by a crime spree culminating in a $2,000,000 arson. Court
is not bound by psychologist’s opinion.
State v. Hanning, 89 Ohio St. 3d 86,
2000-Ohio-436 -- Syllabus: "(1) The mandatory bindover provision of
2151.26(B)(4)(b) does not apply unless the child, himself or herself, had a
firearm on or about the child's person or under the child's control while
committing the act charged and the child displayed the firearm, brandished the
firearm, indicated possession of the firearm, or used the firearm to facilitate
the commission of the act charged. (2) The complicity statute,
does not apply to the juvenile bindover criteria set forth in
Negates State v. Agee
(1999), 133 Ohio App. 3d 441.
State v. Timmerman-Cooper 93 Ohio St. 3d
State v. Hanning 89 Ohio St. 3d 86,
applies retroactively and for the benefit of a juvenile who pleaded guilty in
adult court and did not pursue an appeal or postconviction relief.
Agee v. Russell 92 Ohio St. 3d 540,
State v. Hanning 89 Ohio St. 3d 86,
limited to R.C. 2151.26(B)(4)(b) mandatory bindovers, involving the mere use of
a firearm. It does not apply to
2151.26(B)(3) mandatory bindovers involving
category one offenses. Juvenile complicitor convicted of murder was properly
West, 167 Ohio App. 3d 598,
2006-Ohio-3518 -- Majority concludes discretionary bindover
of a fourteen year old who murdered his aunt was warranted. At
the amenability hearing two psychologists supported retention in
the juvenile system, but the court instead focused on the facts
of the crime, the amount of time needed for remedial counselling
and the fact counselling in the juvenile system is not
mandatory. Dissent reaches the opposite conclusion and further
believes notice failures rendered bindover void ab initio.
State v. Carmichael (1973), 35 Ohio St. 2d
1 -- A court has considerable latitude in determining whether to relinquish
jurisdiction, provided the necessary investigation is conducted.
State v. Watson (1989), 47 Ohio St. 3d 93,
95-96 -- "...(R)ule 30(E) requires consideration of all the listed factors, but
we discern nothing in the rule, or in the policy it serves, which prohibits
consideration of other relevant factors. The seriousness of the alleged act is
relevant to 'the assessment of the probability of rehabilitating the child
within the juvenile justice system' for a number of reasons." Also see
v. Ford (December 4, 1979), Franklin Co. App. No. 79AP-396, unreported (1979
Opinions 3652, 3656-3657); State v. Harris (October 6, 1981), Franklin
Co. App. No. 81AP-299, unreported (1981 Opinions 3038); State v. Campbell
(1991), 74 Ohio App. 3d 352.
State v. Oviedo (1982), 5 Ohio App. 3d 168
-- The court may order bindover even if not all of the factors enumerated in
Juv. R. 30(E) have been resolved against the juvenile.
State v. Lopez (1996), 112 Ohio App. 3d
659 -- Court may consider facts of the offense in weighing potential
responsiveness to rehabilitation and treatment. State v. Watson (1989),
47 Ohio St. 3d 93, followed.
State v. Douglas (1985), 20 Ohio St. 3d 34
-- The juvenile court is not required to make written findings as to the matters
enumerated in Juvenile Rule 30(E).
In re B.S. (1998), 103 Ohio Misc. 2d 34 --
In mandatory bindover proceedings, the state must establish probable cause as to
the firearm specification as well as to the offense charged.
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Bindover, Subsequent proceedings; Double jeopardy
In re A.J.S., 120
Ohio St. 3d 185,
2008-Ohio-5307 – (1) Syllabus: "The order of a juvenile court denying a
motion for mandatory bindover bars the state from prosecuting a juvenile as an
adult for a criminal offense. It is therefore the functional equivalent of a
dismissal of a criminal indictment and constitutes a final order from which the
state may appeal as a matter of right." Court notes that jeopardy would attach
as soon as the juvenile court started hearing evidence to determine guilt. (2)
The court of appeals split on the standard of review. After citing Ornelas v. United States (1996), 517 U.S. 690, 699
and State v. Fanning (1982), 1 Ohio St. 3d 19, ¶51:
"Following these lines of analysis, a juvenile court‘s probable-cause
determination in a mandatory-bindover proceeding involves questions of both fact
and law, and thus we defer to the trial court‘s determinations regarding witness
credibility, but we review de novo the legal conclusion whether the state
presented sufficient evidence to demonstrate probable cause to believe that the
juvenile committed the acts charged." Case below: In re
A.J.S., 173 Ohio App. 3d 171,
In re M.P., 124 Ohio
St. 3d 445,
2010-Ohio-599 – Syllabus: “An order of a juvenile court for
discretionary juvenile bindover in a delinquency proceeding
because the court finds that the child is amenable to care or
rehabilitation within the juvenile system is not a final order
from which the state may appeal as a matter of right.” Court of
appeals denied a motion for leave to appeal.
State v. Burrell, Hamilton App. No.
2005-Ohio-34 -- Juvenile was bound over for burglary. No separate bindover proceeding was required for prosecution of a related homicide. Also see
State v. Barnette, Mahoning App. No. 02 CA 65,
State v. Washington, Montgomery App.
2004-Ohio-5283 -- Seventeen year old previously convicted of a felony
as an adult could be prosecuted in the general division of common pleas court
without a further bindover hearing. According to
R.C. 2152.02(C)(5) he does not
fall within the definition of a "child."
State ex rel Fryerson v. Tate (1999), 84
Ohio St. 3d 481 -- Juvenile was bound over for crimes against A, but convicted
only for crimes against B. Majority and dissenters split on whether the issue is
jurisdictional, the minority finding that the controlling version of
2151.26 effectively overruled State v. Adams (1982), 69 Ohio St. 2d 120,
and limits jurisdiction to those offenses bound over by the juvenile court.
Majority sidesteps merits by finding defendant had an adequate remedy at law in
the form of direct appeal raising this issue.
State v. Reddick (1996), 113 Ohio App. 3d
788 -- Juvenile entered admission to unauthorized use of a motor vehicle and
assault before a referee. Before the hearing concluded, the prosecutor announced
an intention to seek bindover. Resulting trial as an adult violated double
jeopardy. Jeopardy attached when hearing before the referee commenced. Bindover
must be sought prior to adjudicatory hearing.
State v. Payne (1997), 118 Ohio App. 3d
699 -- Jeopardy did not attach when the judge at a bindover hearing said
evidence proved defendant guilty beyond a reasonable doubt. Nor did such
statement mean the judge could not afford defendant a fair amenability hearing.
State v. Penrod (1989), 62 Ohio App. 2d
720 -- Double jeopardy bars bindover and further prosecution on complaints which
have been disposed of by the juvenile court either by a finding of delinquency
or dismissal based on failure of proof.
Johnson v. Perini (6th Cir. 1981), 644 F.
2d 573 -- Probable cause determination as a part of bindover proceedings in
juvenile court does not constitute jeopardy. Compare Breed v. Jones
(1975), 421 U.S. 517 where jeopardy barred further prosecution as an adult,
since the juvenile proceedings required an adjudication that the accused was
guilty of the acts charged.
In re K.W. (1995), 73 Ohio Misc. 2d 20 --
After court found juvenile amenable to rehabilitation as a juvenile, defendant
failed to show for trial, was arrested on new charges as an adult, escaped
detention and was arrested on additional new charges. Since adjudicatory hearing
had not commenced, double jeopardy did not bar reconsideration and bindover.
Court was entitled to base decision on further conduct of the defendant.
State v. Whiteside (1982), 6 Ohio App. 3d
30 -- The common pleas court is not authorized to review the wisdom of the
In re Williams (1996), 111 Ohio App. 3d
120 -- Juvenile Court did not retain jurisdiction to consider a motion for
relief from judgment after juvenile had been bound over for trial as an adult.
In re Becker (1974), 39 Ohio St. 2d 84 --
Bindover order of Juvenile Court is not a final appealable order. Also see State, ex rel. Torres, v. Simmons
(1981), 68 Ohio St. 2d 118 -- Prohibition does not lie to challenge bindover
order. Must take an appeal from the judgment of the common pleas court.
State v. Riggins (1980), 68 Ohio App. 2d 1
-- Entry of a guilty plea does not waive appeal of constitutional deficiencies
in juvenile bindover proceedings.
DuBose v. Court (1980), 64 Ohio St. 2d 169
-- Appeal and not prohibition is the remedy when the state seeks to prosecute a
juvenile in adult court on a charge he has already been found delinquent of in
State v. Hopfer (1996), 112 Ohio App. 3d
521, 534-536 -- In reviewing bindover, the test for an appellate court is not
whether it would have reached the same result upon the record. The trial court
in its assessment may give greater weight to some circumstances, such as the
seriousness of the offense, here a mother causing the death of her new born
daughter. Bindover will be upheld provided the evidence reasonably supports the
juvenile court's decision to relinquish jurisdiction.
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Disposition and sentencing
Graham v. Florida (2010), 130 S.Ct.
2011 – A juvenile may not be sentenced to life without parole for a non-homicide
offense. 16-year old initially was placed on probation for burglary, but was
sentenced to life upon violation. Florida has eliminated parole. While the
subject may end up serving life he must be given a meaningful opportunity to
gain release. “Juvenile” means under eighteen.
State v. D.H., 120
Ohio St. 3d 540,
2009-Ohio-9 – Juvenile was charged in a manner making him eligible for a
blended sentence. Having availed himself of his right to a jury trial, he
challenged on Sixth Amendment grounds the authority of the court to make further
factual findings leading to the imposition of a blended sentence. At ¶61: "We
hold that due process does not require a jury determination on the imposition of
a serious-youth-offender dispositional sentence under
including the determination of the stayed, adult portion of the sentence." At
¶37: "Since the adult portion of D.H.‘s sentence has not been invoked, this
opinion does not address the constitutional ramifications of invoking the adult
sentence under R.C.
2152.14 in light of Blakely and
In re C.E., 190 Ohio
App. 3d 85,
2010-Ohio-4072 – While doing time in a Stark County DYS
facility juvenile was charged with assaults on employees.
Admissions were enters in Stark County, and sentences of
community control were imposed. Apparently the juvenile was from
Paulding County, as the Stark County court further certified the
two cases to the Paulding County Juvenile Court, which also
imposed community control. When the juvenile committed a new
offense the Paulding County court revoked community control and
ordered previously suspended DYS sentences be served. Reversed.
The earlier cases arising in Stark County had been fully
disposed of there. There was nothing to certify to Paulding
County. Thus the Paulding County court did not have authority to
revoke the community control it had ordered. In re Sekulich
(1981), 65 Ohio St. 2d 13, followed.
In re Johnson, 193 Ohio App. 3d 555,
2011-Ohio-2706 – While doing time in a Stark County DYS
facility juvenile allegedly threw urine at a corrections officer
as she passed his cell. After a trial he was convicted of
harassment by an inmate. Disposition was purportedly transferred
to home county. (1) No double jeopardy found. Terms of the
transfer order did not amount to final disposition. (2)
Analyzing the timing of objections and stays, case was not
simultaneously under the jurisdiction of two courts. (3) Officer
did not have to give Miranda warnings before asking “Who did
it?” in circumstances that did not create a change in
surroundings. Thus counsel was not ineffective for failing to
file a motion to suppress statements.
In re J.D., 172
Ohio St. 3d 288,
2007-Ohio-3279 -- When a court commits a delinquent child to a child welfare
agency it may not further direct he be place in a specific (here out of state)
institution. Catchall dispositional authority under
does not override the agency's discretion as legal custodian. Separation of
powers also given consideration.
D.H., 169 Ohio App. 3d 798,
2006-Ohio-6953, ¶59-68 -- Regarding Booker/Foster/6th
Amendment claims and blended sentences for juveniles, there is
no right to jury trial on such findings because there is not
general right to jury trial in juvenile court. Case is pending
before the Ohio Supreme Court.
In re R.W.J., 155 Ohio App. 3d 52,
2003-Ohio-5407 -- A six-month D.Y.S. sentence that did not include a maximum
term was a nullity. Therefore, a subsequent indeterminate D.Y.S. sentence upon
violation of probation was not an impermissible increase.
In re Tiber, 154 Ohio App. 3d 360,
2003-Ohio-5155 -- Juvenile took his father's new shotgun down from the wall to
show a friend. While walking across the room the gun discharged, wounding the
friend. Accidental assault conviction was supported by the evidence. Juvenile
was negligent in not checking to see gun was unloaded or at least assuring the
safety was on. No abuse of discretion found in imposing 90 days of imprisonment,
even though maximum for an adult convicted of an M-3 is 60 days.
In re Thomas, 100 Ohio St. 3d 89,
2003-Ohio-5162 -- Syllabus: "Former R.C. 2151.355(F)(6) (now
required a juvenile court to grant credit toward a delinquent child's commitment
to the Department of Youth Services for time served by the child in a
rehabilitation or treatment facility only if the time was served awaiting the
adjudication or disposition of, or the execution of a final court order in
connection with, the delinquency complaint or a related charge of probation
violation." Footnote suggests the same result under the current statute.
In re Futrell, 153 Ohio App. 3d 20,
2003-Ohio-2685 -- Court sentenced juvenile to the Department of Youth Services
imposing a minimum term less than that provided for by statute. Sentence was
void and resentencing was proper, notwithstanding the fact the juvenile had
begun serving the initial sentence. State v. Beasley
(1984), 14 Ohio St. 3d 74, Colegrove v. Burns (1964), 175 Ohio St. 437
and State v. McCullough (1991), 78 Ohio App. 3d 42, followed.
In re Jacobs, 148 Ohio App. 3d 173,
2002-Ohio-2844 -- Juvenile entered admission to vehicular homicide. Court
properly ordered payment of victim's funeral expenses. Though the restitution
subsection of R.C. 2151.355 refers only to property damage and theft loss, the
order fell within the catchall subsection permitting "any further disposition
the court finds proper."
In re Olah (2000), 142 Ohio App. 3d 176 --
Failure to conduct a dispositional hearing within 90 days of the filing of the
complaint requires dismissal without prejudice. Dissent would find implicit
waiver of the time limit.
In re Monroe, Belmont App. No. 03 BE 50,
2004-Ohio-4988 -- Up against the 90-day limit, the magistrate did not conduct a
separate dispositional hearing, basing disposition on evidence introduced at the
adjudicatory hearing. (1) Parties had not been served with all documents
relevant to disposition. Father objected and had no opportunity to introduce
evidence. Reversed. (2) The 90-day limit is not self-executing. Father moved to
dismiss case on the 91st day. Since time limit has been passed, court may not
now proceed to disposition. Case is dismissed without prejudice.
In re Brown (2001), 142 Ohio App. 3d 193
-- Failure to journalize case plan in transfer county was error, but harmless
given the circumstances. Furthermore, issue was waived by failure to call it to
the attention of the trial court.
In re Hennessey, 146 Ohio App. 3d 743,
2001-Ohio-2267 -- Juvenile about to turn 18 was ordered to serve the first part
of his delinquency sentence in a juvenile facility and the balance in an adult
jail. Under the controlling versions of
R.C. 2151.312(D) and
this was not permitted.
In re Davis (1999), 84 Ohio St. 3d 520 --
Juvenile court judge took seventeen months to rule on a permanent commitment
motion, though statute called for ruling within seven days. Syllabus: "The
seven-day time limit set forth in
R.C. 2151.35(B)(3) is directory, and failure
to comply with it will not deprive a court of jurisdiction." Compare In re
Omosun Children (1995), 106 Ohio App. 3d 813 which found a twenty-eight
month delay worked to deny due process, and further found a due process
violation in exceeding a two year maximum placed on temporary custody.
In re Ramsey Children (1995), 102 Ohio
App. 3d 168 -- Although a dispositional hearing may be conducted in an informal
manner, if evidence is presented it must be in the form of sworn testimony. Case
involved children found to be abused and placed in long term shelter care.
In re Lawson (1994), 98 Ohio App. 3d 456
-- (1) A court may commit a delinquent to a child welfare agency and direct
placement in a residential treatment facility pursuant to
Agency claimed court could not name facility. Court passes on whether specific
facility may be designated by finding only examples of acceptable facilities
were given. (2) Earlier journalized temporary commitment pending final
disposition made agency a party. (3) The agency could only appear in court
through counsel. Thus a continuance request made by an attending non-attorney
caseworker was not proper and "cannot be sanctioned."
In re Devlin (1992), 78 Ohio App. 3d 543
-- Child was found unruly and final disposition was transferred to another
county, which had not yet determined whether or not to accept jurisdiction. The
court also issued a temporary custody order in favor of the child's father who
lived in that county. Neither ruling was a final appealable order.
In re Caldwell (1996), 76 Ohio St. 3d 156
-- Syllabus: "A juvenile court is authorized to impose consecutive terms of
commitment upon a delinquent minor for separate delinquent acts whether or not
they arise from the same set of operative facts." Also see In re Samkas
(1992), 80 Ohio App. 3d 240, 244. (While the delinquency sentencing statute does
not specifically provide for consecutive sentences, such sentences may be
imposed in appropriate cases under
R.C. 2151.355(A)(10) permitting the court to
"make any further disposition that the court finds proper.")
State v. Matha (1995), 107 Ohio App. 3d
756 -- Juvenile court was permitted to permanently commit child to DYS on one
charge of rape while placing him on probation for a second, related offense.
In re Miller (1992), 82 Ohio App. 3d 81 --
Juvenile was found guilty of domestic violence following an altercation with his
brother. Terms of probation that the defendant not dress as a female, not
associate with Joe Wicks, and not go to Caesar's were invalid bore no
relationship to the original charge, did not relate to conduct in itself
criminal, did not serve the statutory ends of probation and infringed upon First
In re Hinko (1992), 84 Ohio App. 3d 89, 93
-- Commitment of child, now over age 18, to center pursuant to
permitted the court to order parents to continue support of their son,
notwithstanding usual emancipation at age 18.
In the Matter of Kettapong Phommarath
(November 14, 1995), Franklin Co. App. No. 95APF05-539, unreported (1995
Opinions 4686) -- Double jeopardy violation found where judge signed an entry
adopting the report and recommendations of the referee that the defendant be
found not guilty before the period for objections had expired, then later
sustained subsequently filed objections and found the defendant guilty.
In re Osman (1996), 109 Ohio App. 3d 731
-- Court improperly sentenced curfew violator to five days detention.
Confinement is permitted only after a hearing to determine whether child is
amenable to treatment or rehabilitation.
In re Good (1997), 118 Ohio App. 3d 371 --
Court finds no error in sentencing juvenile to an additional three years on a
firearm specification, where the specification was not a part of the complaint.
Juvenile had notice from proceedings. Specification complaint may have existed,
but been misplaced.
In re Rinehart (1983), 10 Ohio App. 3d 318
-- Placing an indigent juvenile in detention for non-payment of court costs is
imprisonment for owing a civil debt.
In re Lambert (1989), 63 Ohio App. 3d 121
-- A juvenile delinquent may be ordered to make restitution for medical bills
resulting from the assault he committed. (Dubious holding - see Restitution.)
In re Sekulich (1981), 65 Ohio St. 2d 13
-- A finding of delinquency not accompanied by a disposition is not a final
appealable order. Imposition of a fine and costs is a disposition. Having done
so, the juvenile court is without authority to transfer a case to the juvenile
court of another county for further disposition. Also see In re Whittington
(1969), 17 Ohio App. 2d 164; In re Bolden (1973), 37 Ohio App. 2d 7.
Return to top of
Probation, parole and continuing jurisdiction issues
In re J.F., 121
Ohio St. 3d 76,
2009-Ohio-318 – Syllabus: "A court may order a juvenile to serve a
previously suspended commitment after probation supervision has been terminated
when the juvenile violates a separate, unexpired condition of community
control." In the majority‘s view though probation had ended the juvenile
remained subject to community service and monitored time conditions of community
control. Dissenters believe court‘s termination of probation terminated all
conditions of community control.
L.A.B., 121 Ohio St. 3d 112,
2009-Ohio-354 – Syllabus: "A probation revocation hearing is
an adjudicatory hearing, which is held to determine whether a
child is delinquent as defined by
2152.02(F)(2); therefore, both Juv. R. 29, setting forth the
procedure for adjudicatory hearings, and Juv. R. 35(B), setting
forth the procedure for the revocation of probation, are
applicable to the hearing." Immediate issue was whether juvenile
properly waived counsel. Because violation of probation is a
violation of a court order it is an independent act of
delinquency. Thus Rule 29 applies as well as Rule 35.
Bucholtz, 179 Ohio App. 3d 249,
2008-Ohio-5826 – After his eighteenth birthday a delinquent
appeared before a magistrate, waived his right to counsel and
admitted a violation of his parole. Reversed based on
In re Andrew, 119 Ohio St. 3d 466.
Though an adult he was still a party to a juvenile proceeding,
and could not waive the right to counsel unless he is counseled
by his parent, guardian or custodian, or has consulted with an
S.B., 121 Ohio St. 3d 279,
2009-Ohio-507 – A juvenile may be found delinquent for
failure to comply with a court order. Doing so does not violate
due process. While probation violation proceedings might be the
better practice, nothing in the Revised Code requires the state
to elect such proceedings instead of pursuing a delinquency
In re Cross, 96 Ohio St. 3d 328,
2002-Ohio-4183 -- Syllabus: "A juvenile court does not have the jurisdiction to reimpose a suspended commitment to a Department of Youth Services facility after
a juvenile has been released from probation." The continuing jurisdiction
conferred by R.C. 2151.353(E)(1) is limited to dispositional orders under
T.J., 172 Ohio App. 3d 7,
2007-Ohio-2424 -- Unhappy about reversal after imposing an
unauthorized four year minimum term the juvenile court imposed
the required one year term, but ranted at length about the
necessity of the longer term. This was unsolicited by DYS,
premature and a nullity, but because of this was also
In re Gillespie, 150 Ohio App. 3d 502,
2002-Ohio-7025 -- A juvenile court may exercise continuing jurisdiction over a
probation violator past his eighteenth birthday. This includes ordering the
juvenile held without bail, even though he has been admitted to bail on a
pending adult charge.
In re Howard, 150 Ohio App. 3d 1,
2002-Ohio-6004 -- Under the statutes governing early release in effect prior to
January 1, 2002, a juvenile was eligible for release after serving half of the
minimum term of commitment, with no distinction being drawn between time on
firearm specifications and other time.
In re Nowak (1999), 133 Ohio App. 3d
396 -- Juvenile was found in contempt in absentia for what was
essentially a probation violation. Reversed and remanded for further proceedings
since there is no authority for proceeding in contempt in such circumstances,
and probation violation proceedings require the presence of the defendant.
Dissenting judge would find no violation based on the facts of the case.
In re Walker, Franklin App. No.
2003-Ohio-2137 -- Juvenile was placed on probation for two years "or
until all conditions have been completed." This is construed to mean probation
did not automatically terminate at the end of two years.
In re Slater, Wayne App. Nos. 04CA0004
2004-Ohio-4961 -- While findings are required when adult felons
receive consecutive sentences, the lack of a similar requirement for delinquents
does not violate equal protection. Also see In re R.L., Cuyahoga App.
Nos. 84543, 84545, 84546,
In re Chappell, 164 Ohio App. 3d
2005-Ohio-6451. Issue nullified by
State v. Foster, 109 Ohio St. 3d
D.S., 111 Ohio St. 3d 361,
2006-Ohio-5851 -- A full disclosure polygraph examination is
not a reasonable term of juvenile community control absent
evidence that it is particularly suited to the facts of the
offense. ¶19: "The Fifth Amendment prohibits compelling a person
on community control who claims privilege to give answers that
might incriminate him in future criminal proceedings.
Minnesota v. Murphy (1984), 465 U.S.
420, 426." Reverses In re D.S., 160
Ohio App. 3d 552,
In re Long (1985), 24 Ohio App. 3d 32 --
Headnotes: "(1) R.C. 2151.38, which establishes the parole provisions for
juveniles in Ohio, comports with the requirements of the Due Process Clause, and
does not mandate a full-scale adversarial adjudicatory hearing in juvenile
parole revocation cases. (2) The determination of whether a violation of the
terms and conditions of a juvenile's parole constitutes a serious violation for
purposes of revoking that parole is to be made at the discretion of the trial
State v. Grady (1981), 3 Ohio App. 3d 174
-- Headnote 2: "There is no authority for a juvenile court to commit a
delinquent juvenile to a jail for adult offenders, absent a finding that housing
in an appropriate juvenile facility is unavailable, or that the public safety
and protection so require."
In re Young Children (1996), 76 Ohio St.
3d 632 -- Syllabus: "The passing of the statutory time period ('sunset date')
pursuant to R.C. 2151.353(F) does not divest juvenile courts of jurisdiction to
enter dispositional orders." Temporary custody order ends, but court's
jurisdiction to put on a new order does not. Agencies do not need to file new
complaints alleging same facts to maintain intervention.
In re Bracewell (1998), 126 Ohio App. 3d
133 -- Juvenile was found delinquent based on carrying a concealed weapon. A DYS
commitment was suspended conditioned on probation, which he completed, but
following subsequent charges, the suspension was lifted and he was sent to DYS.
Held that the court acted within its jurisdiction. See dissent.
In re Hamil (1982), 69 Ohio St. 2d 97 --
Syllabus: "The Juvenile Court acts beyond the scope of its jurisdiction when it
orders the Ohio Department of Mental Health to pay the cost of care of a child
placed in a private, non-public psychiatric hospital." Also see In re Lozano
(1990), 66 Ohio App. 3d 583; In re Hoodlet (1991), 72 Ohio App. 3d 115.
In re Kimble (1996), 114 Ohio App. 3d 136
-- Juvenile admitted truancy charge, was found guilty, immediately had his
parole revoked, and was returned to DYS. Rule 29 was not complied with as to
right to counsel and knowledge of consequences, including parole revocation.
Manner in which parole was revoked did not satisfy due process standards of Morrissey v. Brewer (1972), 408 U.S. 471. Also see
In re Royal
(1999), 132 Ohio App. 3d 496 involving faulty admission hearing and probation
In re Edwards (1996), 117 Ohio App. 3d 108
-- A juvenile's probation may not be revoked except upon a finding that a
specific term of probation has been violated.
In re Sanders (1991), 72 Ohio App. 3d 655
-- When the court finds a juvenile to be in violation of the terms and
conditions of his parole and recommits him to the Department of Youth Services,
it may not order his placement in a specific institution, here an out of state
In re Kelly (November 7, 1995), Franklin
Co. App. No. 95APF05-613, unreported (1995 Opinions 4752, 4747) -- "(W)hen
placing a juvenile on probation, the trial court need not first impose and
suspend a commitment to DYS in order to later make a DYS disposition after the
juvenile violates probation." Also see In re Barnhouse (January 30,
1996), Franklin Co. App. No. 95APF07-860, unreported (1996 Opinions 222).
In re Bowman (1995), 101 Ohio App. 3d 599
-- Grandmother's letter to the court announcing she was unilaterally imposing
restrictions on visitation by child's mother was treated by the court as a
motion, and a hearing was scheduled. At the hearing legal custody was returned
to the mother. While the court could make such an order without a party filing a
motion to this effect, the grandmother should have received notices that the
hearing would address this issue.
Return to top of
In re D.J.S., 130
Ohio St. 3d 257,
2011-Ohio-5342, 957 N.E.2d 291 – The Court of Appeals had
rejected various constitutional challenges in the context of
S.B. 10 juvenile sex offender registrants. ¶1: “The judgment of
the court of appeals is reversed, and the cause is remanded for
application of State v. Williams, 129 Ohio St. 3d 344,
2011-Ohio-3374, 952 N.E. 2d 1108.”
In re W.A.S., 188 Ohio App. 3d 390,
2009-Ohio-4331 – Juvenile convicted of a sex offense in
Illinois registered as a sex offender upon moving to Ohio to
live with grandparents. Offense was committed shortly after S.B.
10 went into effect. Following registration the Attorney General
reclassified the juvenile. He filed a petition for relief which
was granted. (1) Though a declaratory judgment action would also
lie, a petition for relief pursuant to
R.C. 2950.032 was an alternative. Case was decided before
Bodyke excised that statute. (2) The Attorney General
was without statutory authority to reclassify in these
Antwon C., 182 Ohio App. 3d 237,
2009-Ohio-2567 – Juvenile fled the state before sentencing.
Thus Juv. R. 35 did not apply, because when he returned to court
it was not an exercise of continuing jurisdiction. Court placed
juvenile in Tier II, stating classification was mandatory, and
sent him to DYS. Reversed. Classification was discretionary.
Court was misled by a pamphlet distributed by the Attorney
General. Classification must take place after release from DYS.
P.M., 182 Ohio App. 3d 168,
2009-Ohio-1694 – Upon release from DYS the trial court
classified juvenile as a Tier II offender, determined he was not
a "public registry qualified juvenile offender registrant," buy
made him subject to community notification. State conceded Tier
II offenders were not subject to community notification, but
claimed the classification was void and sought a new
classification hearing. Held that it was routine error, and
remanded with instructions notification requirement be deleted.
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State ex rel. N.A. v. Cross, 125 Ohio
St. 3d 6,
2010-Ohio-1471 – Defendant who was a juvenile at the time of alleged rapes
denied writ of prohibition barring trial going forward after he had turned
twenty-one. First trial took place after he turned eighteen, but was reversed.
Second trial began before he turned twenty-one but was set over until after his
birthday. Though he could no longer be sentenced to the Department of Youth
Services, other dispositions were open and he was subject to consequences of
being a convicted sex offender.
In re A.L.,
Franklin App. No. 07AP-638 and 647, ¶78-88 -- The denial of a continuance in
termination of parental rights proceedings is assessed on the basis of the abuse
of discretion standard followed in criminal proceedings
H.F., 120 Ohio St. 3d 499,
2008-Ohio-6810 – Syllabus: "An appeal of an adjudication
order of abuse, dependency, or neglect and the award of
temporary custody pursuant to
R.C. 2151.353(A)(2) must be filed within 30 days of the
judgment entry pursuant to App. R. 4(A)." Parent sought to raise
an assignment of error pertaining to the initial proceedings
which resulted in an award of temporary custody in an appeal
from the order granting permanent custody. Reverses In re H.F., 176 Ohio App. 3d 106,
In re N.I., 191 Ohio
App. 3d 97,
2010-Ohio-5791 – 13-year old was found guilty of rape, then
found substantial grounds existed to mitigate the juvenile’s
conduct and dismissed the complaint pursuant to Juv. R.
29(F)(2)(d). State was granted leave to appeal. While the state
may generally appeal dismissals, the dismissal here was the
court’s final verdict, which may not be appealed according to
In re A.C., 160 Ohio App. 3d 457,
2005-Ohio-1742 -- In a neglect/dependency/abuse case a notice of appeal is
timely either within thirty days of the adjudicatory ruling or within thirty
days of the final dispositional order. If the notice of appeal is filed after
final disposition, matters pertaining to adjudication may, in the court's
discretion, be raised even if the judgment entry from that phase of proceedings
is not attached to the notice of appeal. On the ultimate issue of Rule 29
noncompliance, a motion to withdraw the admission was not required to preserve
the issue for appeal.
In re Anderson (2001), 92 Ohio St. 3d 63
-- Syllabus: "A juvenile court proceeding is a civil proceeding." Thus delayed
appeals pursuant to App. R. 5(A) are not available. However, the saving
provision of App. R. 4(A) applies, extending the time for filing the notice of
appeal when service of the judgment entry is not made upon the parties within
three days as required by Civ. R. 58. Compare In re Cross, 96 Ohio St. 3d
2002-Ohio-4183 ¶ 21: While juvenile court proceedings may generally be
categorized as civil, there are criminal aspects that require adherence to the
requirements of due process; State v. Walls, 96 Ohio St. 3d 437,
2002-Ohio-5059 ¶ 25-27. Note that App. R. 5(A) has been amended to permit
delayed appeals in delinquency and serious youthful offender proceedings.
In re Babbs, Franklin App, No.
2004-Ohio-583 -- (1) Initial judgment entry in termination of
parental rights proceedings did not dispose of the rights of an unidentified
father and did not indicate in accordance with Civil Rule 54(B) that there was
no reason for delay in disposing of the rights of some but not all parties.
Thus, that entry was not a final appealable order, and a party not otherwise
affected by a nunc pro tunc entry had standing to appeal from that order. (2)
Convention of identifying a fictitious courtroom when cases were set before a
visiting judge meant notice was inadequate and in violation of a parent's due
In re Reed, 147 Ohio App. 3d 182,
2002-Ohio-43 -- Juvenile emulated a TV wrestling move at a school bus stop,
dropping a companion on her head. Original charge was felonious assault premised
on serious physical harm. Before trial the state reduced the charge to attempt,
but the court found the juvenile guilty of felonious assault premised on the use
of a deadly weapon - the ground. Reversed. Opinion focuses on surprise and
lesser included offense analysis - DYS term on violation of probation would be
longer for the greater offense.
In re B.E., 102 Ohio St 3d 388,
2004-Ohio-3361 -- Syllabus: "When a juvenile court fails to comply with the
recording requirements of Juv.R. 37(A) and an appellant attempts but is unable
to submit an App.R. 9(C) statement to correct or supplement the record, the
matter must be remanded to the juvenile court for a rehearing." See dissent for
outline of prudent procedure in securing a 9(C) statement.
State v. Mock, 136 Ohio Misc. 2d 21,
2005-Ohio-7142 -- Common pleas court judge is of the opinion that trial may
proceed even though no record was kept of bindover hearing and no record can be
made pursuant to App. R. 9(C). Though In re B.E., 102 Ohio St 3d 388,
2004-Ohio-3361 may require reversal if there is an appeal, the court has subject
matter jurisdiction to proceed to trial.
In re Edgerson (2001), 144 Ohio App. 3d
113 -- Tapes of juvenile court termination or parental rights hearing were
unavailable. Appellant mother had missed the hearing. Case was remanded to the
trial court with an order to settle the record. Trial court adopted an App. R.
9(C) statement prepared by appellee. Reversed. App. R. 9(C) statements may only
be prepared by an appellant. Motion to strike the titular App. R. 9(C) statement
should have been sustained.
In re Nice (2001), 141 Ohio App. 3d 445 --
Extension of a temporary custody order is a final order and may be appealed. But
such extension becomes a moot issue once permanent custody has been granted.
In re Lee (2001), 145 Ohio App. 3d 167 --
The prosecution may not appeal the finding that a juvenile is not delinquent.
In re Jeter Children, 118 Ohio Misc. 2d
2001-Ohio-4362 -- In termination of parental rights proceedings discovery
under Civ. R. 26 entitles the parent to access to original documents. The parent
is not required to accept a computer disk depicting such documents.
In re Timberlake, Franklin App. No.
2003-Ohio-1183 -- Mother unsuccessful in claims of error based on
failure to maintain visitation and agency involvement after child was placed in
the permanent legal custody of an individual. However, the court was obliged to
conduct annual review hearings.
In re Kutcher, Belmont App. No. 02 BE 58,
2003-Ohio-1235 -- No abuse of discretion found in refusal to continue termination
of parental rights hearing because of the mother's unexplained absence.
In re Ballard, Montgomery App. No. 19511,
2003-Ohio-3233 -- In a case involving the need to prove changed circumstances
warranting a change in custody, a court is entitled to consider information
concerning all past abuse in determining the best interests of the children.
Testimony is not limited to matters occurring since the last hearing.
In re Collins (1998), 127 Ohio App. 3d 278
-- Failure to record a hearing before juvenile court magistrate, as required by
Juv. R. 37(A), leads to reversal and remand for a new adjudicatory hearing. Only
record of proceedings were fill in the blank forms.
In re Solis (1997), 124 Ohio App. 3d 547
-- Juvenile Rule 37 requires recording of juvenile dispositional hearings. Where
there is no transcript available, the mere entry in the journal entry that
counsel was waived is insufficient to establish waiver. Amendment of the rule
means In re East (1995), 105 Ohio App. 3d 221 is no longer good law. Same
defect applied to plea hearing, but the assignment of error only referred to the
In re Breanna E. (1997), 124 Ohio App. 3d
143 -- Though R.C. 2151.413(A) has been amended to eliminate the requirement of
six months in temporary custody before seeking permanent commitment, the former
version of the statute remains controlling for cases arising before the 9-18-96
effective date of the amendment. Also see In re Carroll (1997), 124 Ohio
App. 3d 51 -- When children entered protective supervision, there was no limit
placed on the number of extensions. Court holds subsequent amendment of
2151.353(G) limiting such extensions may not be applied retroactively.
Disciplinary Counsel v. Slodow (1996), 74
Ohio St. 3d 618 -- Dependency case could not be completed within the prescribed
90 day period. During hearing, counsel for biological father instructed his
client to leave the courthouse before cross-examination and insisted that the
court address a motion to dismiss, while refusing to answer judge's question
whether he had anything more to present. Later, the lawyer left the courtroom
while the judge was addressing issues concerning refiled complaint. Public
In re Zakov (1995), 107 Ohio App. 3d 716
-- An entry merely incorporating the recommendations of a referee's report does
not constitute a final appealable order. Statement that restitution is to be
determined in the future renders the entry interlocutory.
In re Mullenax (1996), 108 Ohio App. 3d
271 -- Service by publication on anyone claiming to be child's father was
sufficient where neither mother nor grandmother could identify a likely father
for the child, and person claiming to be father failed to demonstrate additional
inquiries would have been successful.
State v. Hall (1989), 57 Ohio App. 3d 144,
147 -- "...(W)hen a child admits the allegations of a juvenile complaint,
evidence of the acts which underlie the allegations is not admissible against
the child in a subsequent case or proceeding, except as provided in
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