In re B.H.
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Timothy Young, State Public Defender, and Brooke M. Burns, Assistant State Public Defender, for appellant.
Kevin J. Baxter, Erie County Prosecuting Attorney, Mary Ann Barylski and Ashley Thomas, Assistant Prosecuting Attorneys, for appellee.
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SINGER, J.
{¶ 1} Appellant, B.H., a minor, appeals from the June 4, 2014 judgment of the Erie County Court of Common Pleas, Juvenile Division, which committed B.H. to the legal custody of the Department of Youth Services for a six-month minimum
{¶ 2} On appeal, appellant asserts the following assignments of error:
ASSIGNMENT OF ERROR I
The Erie County Juvenile Court erred when it adjudicated B.H. delinquent of a probation violation, because it did not comply with the requirements of
Juv.R. 35 .
ASSIGNMENT OF ERROR II
The Erie County Juvenile Court erred when it adjudicated B.H. delinquent of a probation violation, because it did not substantially comply with the requirements of
Juv.R. 29 .
{¶ 3} Appellant was charged in Allen County with being a delinquent child based on allegations he committed three offenses: burglary, a violation of
{¶ 4} On March 19, 2014, the Allen County Court of Common Pleas, Juvenile Division, accepted appellant‘s admissions to the offenses and found appellant to be a delinquent child. The case was transferred to Erie County, where appellant resided, for
{¶ 5} With respect to the felony offenses (the burglary and weapon offenses), the trial court imposed in its May 2, 2014 judgments two six-month-to-age 21 commitments to the Ohio Department of Youth Services (“DYS”). The commitment for the weapon violation was held in abeyance and appellant was placed on indefinite probation. The commitment for the burglary violation was suspended on the condition that appellant comply with and complete indefinite probation. Appellant was ordered to be placed into the care and control/custody of the Northern Ohio Juvenile Community Corrections Facility (CCF), a facility operated by the ODYS as a dispositional alternative which provides a juvenile with treatment, in order for appellant to receive treatment for anger management and aggression counseling, as well as drug and alcohol counseling. The trial court admonished appellant for the misdemeanor possession violation.
{¶ 6} Four days later, on May 6, 2014, a complaint was filed (case No. 2014 VP 038) alleging that appellant had violated his probation. This trial court record was not made part of the record on appeal. The prosecution asserts that the complaint alleged appellant violated his probation in the weapon case by failing to follow the rules and comply with the reasonable demands and controls of all authority including his probation officer and the staff at the CCF. Appellant asserts that this additional delinquency action
{¶ 7} A dispositional review hearing was advanced to June 4, 2014, and involved several consolidated cases: the weapon and burglary cases, case No. 2013 JF 124 (a vandalism violation), 2014 B 238 (clarified by a November 24, 2014 judgment to be case No. 2014 VP 038, the probation violation case,); and case No. “2014-D or JF-50” (which appears to be a felony assault case). All parties had notice of the hearing, were present, and presented argument.
{¶ 8} The probation department recommended a six-month sentence in the weapon and burglary cases and a DYS commitment held in abeyance for six months with respect to the pending felony assault case. The prosecution recommended that the court lift the abeyance commitments for the weapon and burglary cases and vandalism case and impose a six-month commitment to DYS on the felony assault case, with the two commitments to be served consecutively for a minimum 12-month commitment up to his 21st birthday in order to protect the public. Appellant specifically requested to be removed from the treatment program and be committed to the DYS for the minimum
{¶ 9} The court found appellant was unable to correct his behavior, refused to participate in treatment, and desired to serve his ODYS commitments. The court terminated appellant‘s probation and lifted the abeyance of the commitment in both the weapon and burglary cases and committed appellant to the ODYS for the minimum term. The court ordered the two commitments to be served consecutive to each other for a total commitment of 12 months to age 21. The court also disposed of the other offenses: vandalism—continued probation with the intent to terminate it later so that appellant would not be placed on probation and parole at the same time; violation of probation—noted admonishment; and the felonious assault charge—commitment to the ODYS for six months, held in abeyance, and appellant placed on continued probation contingent on appellant‘s good behavior.
{¶ 10} The court issued separate judgments for case nos. 2014 JF 028A (burglary case), 2014 JF 028B (weapon case), and also allegedly in 2014 VP 038 (probation violation delinquency action). Appellant appealed from the June 4, 2014 judgment with respect to burglary and weapon cases (discussed further below). Appellant did not appeal from case No. 2014 VP 038 (probation violation delinquency action). Therefore, the record from the probation violation case is not before us.
{¶ 11} In his first assignment of error, appellant argues that the trial court erred as a matter of law when it adjudicated B.H. delinquent of a probation violation because it
{¶ 12} In his second assignment of error, appellant argues that the trial court erred when it adjudicated B.H. delinquent of a probation violation because it did not comply with due process requirements protected by
{¶ 13} Because of the incomplete record before us, the determination of the pertinent facts of this case was problematic. Appellant did not include the second
{¶ 14} Beyond the need to sort out of the facts of this case, we also face the issue of the juvenile court failing to abide by the current juvenile procedures. Therefore, we begin by reviewing the relevant juvenile procedure.
{¶ 15} Because juvenile courts were created by statute, juvenile proceedings are special statutory proceedings, neither civil nor criminal, and are governed entirely by
{¶ 16} After a child is adjudicated a delinquent, the juvenile court must hold a dispositional hearing pursuant to
{¶ 18} Therefore, disposition orders must be:
reasonably calculated to achieve the overriding purposes of providing for the care, protection and mental and physical development of the delinquent child, holding the delinquent child accountable for his actions, restoring the victim, and rehabilitating the delinquent child. The court‘s disposition must be commensurate with, and not demeaning to, the seriousness of the child‘s conduct and its impact on the victim, and must be consistent with dispositions for similar acts committed by similar delinquent children. The court does so through a graduated system and sanctions and services. In re R.G., 5th Dist. Stark No. 2009-CA-00218, 2010-Ohio-138, ¶ 17, citing
R.C. 2151.01 .
{¶ 20} The court may commit a juvenile to the custody of the ODYS for an indefinite term of a minimum of one year and a maximum period not to exceed the child‘s attainment of age 21 for a felony of the first degree if committed by an adult.
{¶ 21} Under adult criminal law, community control is viewed as a sanction in lieu of a prison term. State v. Hart, 4th Dist. Athens No. 13CA8, 2014-Ohio-3733, ¶ 31. It is not probation or a “contract for good behavior.” State v. Carlton, 2d Dist. Montgomery No. 26086, 2014-Ohio-3835, ¶ 24-25 (Froelich, J. concurring), quoting State v. Lewis, 2d Dist. Montgomery No. 23505, 2010-Ohio-3652, ¶ 14-15. “The right to continue on community control depends on compliance with community control conditions and ‘is a matter resting within the sound discretion of the court.’” State v. White, 2d Dist. Montgomery No. 23906, 2011-Ohio-497, ¶ 8, citing State v. Schlecht, 2d Dist. Champaign No. 2003-CA-3, 2003-Ohio-5336, ¶ 7. (Additional citation omitted.)
{¶ 22} Under the prior system of probation, the juvenile court retained jurisdiction to ensure that the imposed conditions for probation in lieu of commitment to the ODYS were fulfilled. In re Walker, 10th Dist. Franklin No. 02AP-421, 2003-Ohio-2137, ¶ 20; In re J.F., 2d Dist. Green No. 06-CA-123, 2007-Ohio-5652, ¶ 52, aff‘d on appeal and remanded, 121 Ohio St.3d 76, 2009-Ohio-318, 902 N.E.2d 19; and In re Bracewell, 126 Ohio App.3d 133, 136-37, 709 N.E.2d 938 (1st Dist.1998). If there was a violation, the prosecution could file a new delinquency complaint alleging delinquency for violating the terms of probation
{¶ 24} Community control is not probation. As stated in State v. Beverly, 4th Dist. Ross No. 01CA2603, 2002 WL 59643, *3 (Jan. 11, 2002):
It appears that the court may have confused violation of community control sanctions with probation revocation. * * * In a probation revocation proceeding, the court may indeed reimpose the original sentence if it finds a violation. Probation is seen as a contract for good behavior. Under probation, a court imposes but suspends the proper punishment for the underlying crime. A violation of probation is a breach of contract, for which the sentencing judge may reimpose the original (proper) sentence.
Community control is not a contract for good behavior. The community control sanction is deemed the appropriate sentence to both punish the offender and protect the public. Community control is not “a break;” it is the punishment that fits the crime. Thus, when the defendant violates community control, the court imposes an appropriate sanction for that misconduct, but not for the original or underlying crime. See State v. Gilliam (June 10, 1999), Lawrence App. No. 98CA30, unreported and Griffin & Katz, Ohio Felony Sentencing Law (2001 Ed.), 580 et seq., § 5.35 et seq.
{¶ 25} Under adult criminal law statutes,
{¶ 27} Under the current statutory provisions and juvenile rules, it is unclear as to what procedure is appropriate before the juvenile court can modify or terminate a prior disposition order, which committed the child to the ODYS but held the commitment in abeyance in order to place the juvenile in the temporary custody of the CCF for purposes of treatment. Since the commitment to the ODYS was held in abeyance or suspended pending successful completion of the treatment program, we find the court retained jurisdiction to ensure that the conditions of community control were fulfilled or to reimpose the suspended commitment if the juvenile failed to complete the treatment. In re J.F., 121 Ohio St.3d 76, 2009-Ohio-318, 902 N.E.2d 19, at ¶ 13-14.
{¶ 28} All dispositional orders are temporary orders and “continue for a period that is designated by the court in its order, until terminated or modified by the court or
{¶ 29} If the juvenile allegedly fails to complete the treatment, we find that the prosecution may proceed in the same manner for a community control violation as provided for a probation violation. Because the disposition of treatment was an order of the court, any action by the juvenile to fail to complete treatment is a violation of the court‘s order. Therefore,
{¶ 30} Because the juvenile court‘s disposition order in the case before us states that appellant‘s ODYS commitment was held in abeyance and appellant was placed on
{¶ 31} After appellant violated the terms of his “probation,” the prosecution alleges that it filed a new delinquency complaint (case No. 2014 VP 038), alleging appellant was delinquent for violating his probation. Since we do not have the record of that case before us, we presume that the court properly adjudicated the case in its May 30, 2014 judgment and the admonishment of appellant at the dispositional review hearing in the present case was proper. If we presume, as the prosecution has argued, that this probation violation related to the weapon case, the court found appellant delinquent and admonished him for it. Thereafter, in the weapon and burglary cases, the trial court terminated B.H.‘s “probation,” removed him from the treatment program, and reimposed the suspended sentences of ODYS commitment. The issue is whether the trial court had the authority to both admonish appellant for his probation violation and reimpose the original sentence.
{¶ 32} Appellant challenges on appeal that the trial court could not reimpose a commitment to the ODYS based on a probation violation adjudicated in a separate
{¶ 33} Appellant also argues the trial court did not have authority to hold a dispositional review hearing because
{¶ 34} Accordingly, we find appellant‘s first and second assignments of error not well-taken.
{¶ 35} Having found that the trial court did not commit error prejudicial to appellant, the judgment of the Erie County Court of Common Pleas, Juvenile Division, is affirmed. Appellant is ordered to pay the court costs of this appeal pursuant to
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J. _______________________________ JUDGE
Arlene Singer, J. _______________________________ JUDGE
James D. Jensen, J. CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.