In re B.C.
APPEARANCES:
Lauren Hammersmith, Assistant State Public Defender, Columbus, Ohio, for Appellant.
Kelsey R. Riffle, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee.
Smith, P.J.
{1} Appellant, B.C., appeals the trial court‘s decision that (1) committed him to the legal custody of the Department of Youth Services (DYS) for a minimum period of 12 months and a maximum period not to exceed his attainment of the age of 21, and (2) placed him on probation as a community control condition. Appellant raises three assignments of error. First, Appellant argues that the juvenile court imposed a void dispositional order. Appellant alleges that the juvenile statutes do not allow juvenile courts to enter a dispositional order that both commits a child to DYS and
FACTS
{2} On June 24, 2021, a complaint was filed that alleged Appellant to be a delinquent child for engaging in conduct that would constitute the following criminal offenses, if committed by an adult: (1) rape, in violation of
{3} Appellant later admitted the allegations of the second count of the complaint, rape, in violation of
{4} On September 23, 2021, the court held a dispositional hearing. At the start, the probation officer stated that he believes that committing Appellant to DYS for one year with a recommendation that he receive treatment at Paint Creek “is probably the best disposition” to rehabilitate Appellant. The state likewise asked the court to commit Appellant to DYS and stated that it “would support the recommendation that [Appellant] go to Paint Creek as well.” Appellant‘s counsel indicated that he did not “have anything to add.” Additionally, neither Appellant‘s father nor Appellant stated that they had anything to say.
{5} The court then stated: “Well, the Court in this matter, having discussed it along the way at the various hearings with counsel for the state and defense, is going to honor the agreement that was reached prior to [Appellant] entering an admission to count two.” The court announced that it would commit Appellant to DYS for a minimum period of one year and a maximum period not to exceed the age of 21. The court additionally recommended that Appellant be placed in a sex offender rehabilitation program at Paint Creek. The court informed Appellant that the treatment
{6} The court asked the parties whether they had anything further to add, and Appellant‘s counsel, Appellant, and Appellant‘s father stated that they did not have anything to add or any questions to ask.
{7} The court subsequently journalized its dispositional order that committed Appellant to DYS‘s legal custody for an indefinite term consisting of a minimum period of 12 months and a maximum period not to exceed the age of 21. The court also placed Appellant on community control by placing him “on probation until further order of the Court subject to the general supervision and control of the Washington County Juvenile Probation Department.” The court further recommended and “approve[d]” Appellant for the “sex offender program at Paint Creek.” This appeal followed.
I. THE JUVENILE COURT EXCEEDED ITS STATUTORY AUTHORITY AND UNDERMINED THE EXECUTIVE BRANCH WHEN IT COMMITTED B.C. TO DYS AND PLACED HIM ON A TERM OF COURT PROBATION FOR THE SAME CHARGE.
II. A CONFLICT EXISTS BETWEEN THE DISPOSITIONAL OPTIONS IN
III. B.C. WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
ANALYSIS
FIRST AND SECOND ASSIGNMENTS OF ERROR
{8} Appellant‘s first and second assignments of error involve related issues. For ease of discussion, we consider them together.
{9} In his first assignment of error, Appellant argues that the trial court erred as a matter of law by committing him to the legal custody of DYS and by placing him on court-supervised probation. Appellant contends that after a juvenile court commits a delinquent child to the legal custody of DYS, the juvenile court “relinquishes control with respect to the child except for granting judicial release or juvenile sex offender classification.” Appellant asserts that after a child completes the prescribed minimum
{10} In his second assignment of error, Appellant argues that the trial court abused its discretion by committing him to DYS and by placing him on probation. Appellant contends that the trial court abused its discretion by failing to “abide by the rules of statutory interpretation when imposing [its] disposition.” Appellant asserts that committing the child to DYS, as
{11} Appellant claims that a conflict exists because when a juvenile court commits a child to DYS under
{12} Appellant claims that once the trial court committed him to the legal custody of DYS, the court relinquished “authority and jurisdiction to DYS to care and provide for the child‘s rehabilitation.” Appellant thus argues that the trial court had no authority to impose a term of probation as a community control condition under
{13} The state asserts that Appellant failed to raise any of these issues during the trial court proceedings and that he, therefore, forfeited the right to raise them on appeal. The state additionally contends that Appellant agreed to the disposition that the trial court imposed as part of a negotiated plea deal. The state thus claims that Appellant invited any error that may have occurred.
{14} The state further argues that even if Appellant had preserved the issues for appeal, his arguments lack merit. The state notes that juvenile courts have broad discretion when choosing among the dispositional options and that
VOID VS. VOIDABLE
{15} We initially observe that Appellant asserts that the trial court‘s dispositional order is void under void sentence doctrine. However, in 2020, the Ohio Supreme Court overruled its sentencing cases that had held that a sentence is void when a trial court lacks statutory authority to impose it. State v. Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776; State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 42. Therefore, reviewing courts no longer recognize sentences as void when imposed without statutory authority. Rather, “[a] sentence is void only if the sentencing court lacks jurisdiction over the subject matter of the case or personal jurisdiction over the accused.” Henderson at ¶ 27. Any other error in sentencing, including an error in applying the sentencing statutes, renders the sentence voidable, not void. Id.
{16} Consequently, we summarily reject Appellant‘s assertion that the trial court‘s dispositional order is void for allegedly failing to comply with the juvenile dispositional statutes. We may, however, review whether the court‘s dispositional order is voidable.
{17} We note, as does Appellee, that Appellant did not raise any objection to the court‘s decision to commit Appellant to DYS and to impose probation as a community control condition.1 Thus, during the trial court proceedings, Appellant did not argue that the juvenile statutes prohibited the trial court from imposing this disposition.
{18} It is well-settled that a party may not raise any new issues or legal theories for the first time on appeal. Stores Realty Co. v. Cleveland, 41 Ohio St.2d 41, 43, 322 N.E.2d 629 (1975). Thus, a litigant who fails to raise an argument before the trial court forfeits the right to raise that issue on appeal. Independence v. Office of the Cuyahoga Cty. Executive, 142 Ohio St.3d 125, 2014-Ohio-4650, 28 N.E.3d 1182, ¶ 30 (stating that “an appellant generally may not raise an argument on appeal that the appellant has not raised in the lower courts“); State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 21 (explaining that defendant forfeited his constitutional challenge by failing to raise it during trial court proceedings); Gibson v. Meadow Gold Dairy, 88 Ohio St.3d 201, 204, 724, N.E.2d 787
{19} When an adjudicated delinquent child “forfeits the right to assert an error on appeal by failing to bring it to the trial court‘s attention in the first instance, an appellate court applies plain error review.” State v. Jones, 160 Ohio St.3d 314, 2020-Ohio-3051, 156 N.E.3d 872, ¶ 17, citing State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21-22; State v. Morgan, 153 Ohio St.3d 196, 2017-Ohio-7565, 103 N.E.3d 784, ¶ 49 (determining that criminal plain error standard also applies to juvenile delinquency appeals); State v. Perry, 4th Dist. Pike No. 16CA863, 2017-Ohio-69, ¶ 14 (failure to object to during trial court proceedings
{20} Even when an appellant establishes all of the elements necessary to demonstrate plain error, appellate courts are not required to correct the error. Rogers at ¶ 23. Instead, appellate courts have discretion when deciding whether to correct plain error. Jones at ¶ 17. The Ohio Supreme Court has “admonished [appellate] courts to notice plain error ‘with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice.’ ” Barnes, 94 Ohio St.3d at 27,
{21} In the case at bar, we do not believe that Appellant has established that the circumstances require us to correct a plain error. First, Appellant has not shown that an obvious error occurred. Appellant has not cited any previous cases that have held that a juvenile court cannot impose both a DYS commitment and a term of community control consisting of court supervised probation that takes effect upon the child‘s release from DYS. In fact, the Third District Court of Appeals has rejected the same arguments that Appellant raises in this appeal. In re A.F., 3rd Dist. Defiance No. 4-20-06, 2020-Ohio-4622, ¶ 39, appeal not allowed, 161 Ohio St.3d 1410, 2021-Ohio-106, 161 N.E.3d 694; In re L.R., 3rd Dist. Defiance No. 4-19-19, 2020-Ohio-2990, ¶ 10 (rejecting argument that trial court‘s dispositional order that imposed a five-year term of court probation and committing him to DYS was “contradictory” and created “a conflict within the juvenile code“).
{22} Moreover, we do not believe that the juvenile statutes obviously prohibit juvenile courts from committing a child to DYS‘s legal custody and imposing community control in the form of court supervised probation. Juvenile courts have broad discretion to craft dispositions in
{23} To that end,
{24} We recognize Appellant‘s argument that
{25}
{27}
Unless the court grants judicial release under division (D)(1)(b) of this section, the court that commits a delinquent child to the department of youth services may grant judicial release of the child to court supervision under this division during the first half of the prescribed minimum term for which the child was committed to the department or, if the child was committed to the department until the child attains twenty-one years of age, during the first half of the prescribed period of commitment that begins on the first day of commitment and ends on the child‘s twenty-first birthday, provided any commitment imposed under division (A), (B), (C), or (D) of section 2152.17 of the Revised Code has ended.
Unless the court grants judicial release under division (D)(1)(b) of this section, the court that commits a delinquent child to the department of youth services may grant judicial release of the child to department of youth services supervision under this division during the second half of the prescribed minimum term for which the child was committed to the department or, if the child was committed to the department until the child attains twenty-one years of age, during the second half of the prescribed period of commitment that begins on the first day of commitment and ends on the child‘s twenty-first birthday, provided any commitment imposed under division (A), (B), (C), or (D) of section 2152.17 of the Revised Code has ended.
{29}
may grant judicial release of the child under this division at any time after the expiration of one of the following periods of time:
(a) Except as otherwise provided in division (D)(1)(b) of this section, if the child was committed to the department for a prescribed minimum period and a maximum period not to exceed the child‘s attainment of twenty-one years, the court may grant judicial release of the child at any time after the expiration of the prescribed minimum term for which the child was committed to the department.
(b) If the child was committed to the department for both one or more definite periods under division (A), (B), (C), or (D) of section 2152.17 of the Revised Code and a period of the type described in division (D)(1)(a) of this section, all of the prescribed minimum periods of commitment imposed under division (A), (B), (C), or (D) of section 2152.17 of the Revised Code and the prescribed period of commitment of the type described in division (D)(1)(a) of this section shall be aggregated for purposes of this division, and the court may grant judicial release of the child at any time after the expiration of one year after the child begins serving the aggregate period of commitment.
(2) If a court grants a judicial release of a child under division (D)(1) of this section, the release shall be a judicial release to department of youth services supervision, if the release is granted during a period described in division (C)(1) of this section, and the second and third paragraphs of division (C)(3) of this section apply regarding the release. In all other cases, the release shall be a judicial release to court supervision, and the second paragraph of division (B)(3) of this section applies regarding the release.
{30} While little case law exists explaining the precise contours of
If a court grants a judicial release of a child under division (D)(1) of this section, the release shall be a judicial release to department of youth services supervision, if the release is granted during a period described in division
(C)(1) of this section, and the second and third paragraphs of division (C)(3) of this section apply regarding the release. In all other cases, the release shall be a judicial release to court supervision, and the second paragraph of division (B)(3) of this section applies regarding the release.
(Emphasis added.)
{31} Reading the statute in proper context shows that the judicial release is to DYS if the court grants the child release during the period defined in
{32} In the case at bar, the trial court did not grant Appellant judicial release during the second half of his confinement. Instead, the court committed Appellant to DYS for a minimum term of one year to a maximum period not to exceed the age of 21. The court also indicated that upon Appellant‘s release from DYS, Appellant would be subject to court supervision.
{33} Furthermore, even if we agreed with Appellant that the trial court plainly erred by not ordering that he be released to DYS supervision after his prescribed minimum commitment, we are unable to conclude that the error results in a manifest injustice. Instead, the court‘s disposition appears designed to fulfill the overall goal of the juvenile code: “the goal of the juvenile code is to rehabilitate, not to punish, while protecting society from criminal and delinquent acts during rehabilitation.” Caldwell, 76 Ohio St.3d at 158; accord
{34} Accordingly, based upon the foregoing reasons, we overrule Appellant‘s first and second assignments of error.
THIRD ASSIGNMENT OF ERROR
{35} In his third assignment of error, Appellant contends that he did not receive effective assistance of counsel. Specifically, Appellant asserts that trial counsel was ineffective for failing to object to the trial court‘s dispositional order that committed him to DYS and that placed Appellant on probation as a community control condition. Appellant contends that if trial counsel had objected, then the trial court would have chosen to impose either a DYS commitment or a community control sanction rather than imposing both.
{37} Moreover, when addressing an ineffective assistance of counsel claim, the reviewing court should not consider what, in hindsight, may have been a more appropriate course of action. State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051 ¶ 153; State v. McKnight, 4th Dist. Vinton No. 07CA665, 2008-Ohio-2435, ¶ 70. Rather, the reviewing court “must be highly deferential.” Strickland at 689. As the Strickland
{38} In the case at bar, we do not believe that Appellant has demonstrated that trial counsel performed deficiently or that any deficient performance affected the outcome of the proceedings. As we stated in our discussion of Appellant‘s first and second assignments of error, the juvenile statutes gave the trial court broad discretion to craft an appropriate disposition aimed at rehabilitation. We further determined that the trial court‘s disposition does not contravene the governing statutes. Therefore, even if counsel had objected, the trial court still may have determined to impose both a DYS commitment and a term of court supervision as a community control condition. Consequently, even if counsel‘s failure to object constituted deficient performance, Appellant cannot establish that counsel‘s failure to object affected the outcome of the proceedings.
{39} Accordingly, based upon the foregoing reasons, we overrule Appellant‘s third assignment of error.
CONCLUSION
{40} Having overruled Appellant‘s three assignments of error, we affirm the trial court‘s judgment.
It is ordered that the JUDGMENT BE AFFIRMED. Appellee shall recover any costs from Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court – Juvenile Division, to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Hess, J. and Wilkin, J. concur in Judgment and Opinion.
For the Court,
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.