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Criminal Law Casebook
Franklin County Criminal Law Casebook
Reproduced with permission from:
David L. Strait
Franklin County Public Defender Office
Detention and Pretrial Proceedings; Jurisdiction
for cases on appropriateness of prosecuting of younger children
In re A.B.
, 191 Ohio App.3 80,
– 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 parent.
State v. Mohamed
, 178 Ohio App. 3d 695,
– 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.
In re W.W.
, 190 Ohio App. 3d 653,
– 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.
In re Luman
, 172 Ohio App. 3d 461,
-- According to
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 county 4.
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 submitted.
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
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 twenty-one.
Competency and Sanity
In re B.H.
, 169 Ohio App. 3d 331,
-- 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,
-- 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,
-- 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,
-- 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. 19339,
-- 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 norms.
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 delinquency.
Right to Counsel
In re Andrew
, 119 Ohio St. 3d 466,
– 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 attorney.
In re D.L.
, 189 Ohio App. 3d 154,
– 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 law.
In re Predmore
, 187 Ohio App. 3d 100,
– 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,
-- 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,
-- 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 7,
. ¶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,
-- 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
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
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
, 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.
In re J.R.P.
, 175 Ohio App. 3d 481,
– 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.
In re J.F.
, 178 Ohio App. 3d 702,
– (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,
, 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 constitutional rights.
In re G.W.
, 186 Ohio App. 3d 399,
– 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,
-- 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
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. 19254,
-- 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,
-- 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 hearing.
In re Holcomb
, 147 Ohio App. 3d 31,
-- 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,
-- Admissions process in juvenile court does not require advice that consecutive terms of commitment to the Department of Youth Services might be imposed.
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,
-- 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
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,
-- 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.
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. L-04-1017,
-- 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
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
in order for child victims to testify via closed circuit television. (2) At 40-41:
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.
Bindover, Procedural Issues
Last updated 1/5/2017
State v. Aalim
, Slip Opinion No.
Mandatory transfer of juveniles to the common pleas courts pursuant
violates juveniles’ right to due process as guaranteed by the Ohio Constitution
State v. Wyerick
, 182 Ohio App. 3d 500,
– 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
State v. Steele
, 146 Ohio Misc. 2d 23,
– 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.
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,
-- 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,
-- 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,
-- No constitutional violation in retroactive application of
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 federal Constitution.
State v. Iacona
93 Ohio St. 3d 83,
-- 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
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
." 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,
-- 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 --
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 public.
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
and Juv. R. 30, seeking transfer of the matter to the general division of the court of common pleas for prosecution as an adult."
State v. Davis
, 189 Ohio App. 3d 374,
– 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,
-- Syllabus: "(1) The mandatory bindover provision of
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
State v. Agee
(1999), 133 Ohio App. 3d 441.
State v. Timmerman-Cooper
93 Ohio St. 3d 614,
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,
is limited to
mandatory bindovers, involving the mere use of a firearm. It does not apply to
mandatory bindovers involving category one offenses. Juvenile complicitor convicted of murder was properly bound over.
State v. West
, 167 Ohio App. 3d 598,
-- 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
State 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.
Bindover, Subsequent Proceedings; Double Jeopardy
In re A.J.S.
, 120 Ohio St. 3d 185,
– (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,
– 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. C-030803,
-- 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. No. 20218,
-- 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
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
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 bindover order.
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 juvenile court.
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.
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,
– 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
in light of
In re C.E.
, 190 Ohio App. 3d 85,
– 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,
– 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,
-- 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.
State v. D.H.
, 169 Ohio App. 3d 798,
, ¶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,
-- 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,
-- 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,
-- 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,
-- 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,
-- Juvenile entered admission to vehicular homicide. Court properly ordered payment of victim's funeral expenses. Though the restitution subsection of
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,
-- 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
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
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
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 Amendment freedoms.
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.
Probation, Parole and Continuing Jurisdiction Issues
In re J.F.
, 121 Ohio St. 3d 76,
– 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.
In re L.A.B.
, 121 Ohio St. 3d 112,
– Syllabus: "A probation revocation hearing is an adjudicatory hearing, which is held to determine whether a child is delinquent as defined by
; 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.
In re Bucholtz
, 179 Ohio App. 3d 249,
– 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 attorney.
In re S.B.
, 121 Ohio St. 3d 279,
– 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 charge.
In re Cross
, 96 Ohio St. 3d 328,
-- 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
is limited to dispositional orders under
In re T.J.
, 172 Ohio App. 3d 7,
-- 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 nonprejudicial.
In re Gillespie
, 150 Ohio App. 3d 502,
-- 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,
-- 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. 02AP-421,
-- 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 and 0005,
-- 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 628,
. Issue nullified by
State v. Foster
, 109 Ohio St. 3d 1,
In re D.S.
, 111 Ohio St. 3d 361,
-- 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)
, 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 court."
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
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 revocation.
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 boarding school.
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.
Sex Offender Classification
In re D.J.S.
, 130 Ohio St. 3d 257,
, 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,
, 952 N.E. 2d 1108.”
In re W.A.S.
, 188 Ohio App. 3d 390,
– 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
was an alternative. Case was decided before
excised that statute. (2) The Attorney General was without statutory authority to reclassify in these circumstances.
In re Antwon C.
, 182 Ohio App. 3d 237,
– 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.
In re P.M.
, 182 Ohio App. 3d 168,
– 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.
Sentencing of Juveniles by Adult Court
Last updated 1/5/2017
State v. Moore
, Slip Opinion No.
Imposition of “term-of-years” prison sentences that exceed the juvenile offender’s life expectancy.
State ex rel. N.A. v. Cross
, 125 Ohio St. 3d 6,
– 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
In re H.F.
, 120 Ohio St. 3d 499,
– Syllabus: "An appeal of an adjudication order of abuse, dependency, or neglect and the award of temporary custody pursuant to
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,
– 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,
-- 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 328,332,
¶ 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,
¶ 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. 03AP-1011,
-- (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 process rights.
In re Reed
, 147 Ohio App. 3d 182,
-- 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,
-- 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,
-- 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,
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 101,
-- 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. 02AP-792,
-- 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,
-- 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,
-- 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 dispositional hearing.
In re Breanna E.
(1997), 124 Ohio App. 3d 143 -- Though
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
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 reprimand imposed.
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
David L. Strait
Copyright © Franklin County Public Defender and David L. Strait, 2015
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