In re David G.
For Plaintiff-Appellee
JOHN D. FERRERO
Prosecuting Attorney
Stark County, Ohio
BY:RENEE M. WATSON
Assitant Prosecuting Attorney
Appellate Section
110 Centrla Plaza, South
Canton, Ohio 44702-0049
For Defendant-Appellant
ANGELA MILLER
Office of the Ohio Public Defender
8 East Long Street, 11th Floor
Columbus, Ohio 43215
O P I N I O N
{¶1} Appellant, David G., appeals a judgment of the Stark County Common Pleas Court, Juvenile Division, finding him delinquent by reason of escape upon a plea of true and committing him to the Department of Youth Services (hereinafter “DYS“) for a minimum period of six months and no more than his attainment of the age of 21 (Case No. 2008CA00243). Appellant also appeals the judgment of the court imposing a previously suspended sentence for one count of receiving stolen property and committing him to DYS for a minimum period of six months and no more than his attainment of the age of 21 (Case No. 2008CA00244). The appeals have been consolidated by this Court. Appellee is the State of Ohio.
STATEMENT OF FACTS AND CASE
{¶2} On January 24, 2008, a complaint was filed in the Juvenile Court alleging that appellant was delinquent by reason of having committed the offense of receiving stolen property. He entered a plea of true, and on February 13, 2008, the court sentenced him to a DYS commitment of a minimum of six months. The court stayed the commitment and placed him at the Community Corrections Facility (hereinafter “CCF“). The entry suspending the commitment stated in pertinent part, “Said juvenile shall not leave CCF without the express permission of the court or shall be subject to charges of escape from detention filed pursuant to
{¶3} On August 21, 2008, a complaint was filed alleging that appellant was delinquent by reason of escape in violation of
{¶4} Appellant appeared at a pre-trial hearing before a magistrate on September 3, 2008. He entered a plea of true to the charge of escape, and the charge of violation of a prior court order was dismissed. On September 8, 2008, the court committed appellant to DYS for a minimum period of six months for escape. The court also imposed the suspended commitment for the prior finding of delinquency by reason of receiving stolen property. The court imposed fines and court costs. Appellant assigns three errors on appeal to this Court:
{¶5} “I. DAVID G.‘S ADMISSION TO ESCAPE WAS NOT KNOWING, VOLUNTARY AND INTELLIGENT, IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION, AND JUVENILE RULE 29.
{¶6} “II. DAVID G. WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.
{¶7} “III. THE TRIAL COURT ERRED WHEN IT FAILED TO CONSIDER COMMUNITY SERVICE IN LIEU OF FINANCIAL SANCTIONS FOR DAVID G., AN INDIGENT JUVENILE. THIS IS A VIOLATION OF
{¶8} In his first assignment of error, appellant argues that his plea of true to escape was not knowing, voluntary and intelligent because the trial court did not inform him of the nature of the allegations against him as required by
{¶9} In response, appellee argues that appellant did not object to the manner in which the hearing was conducted and did not file objections to the magistrate‘s decision, and therefore has waived all but plain error. Appellee also argues that appellant did not preserve the error for review because he failed to move to withdraw his plea. Appellee argues that appellant has not shown that but for the errors in the plea colloquy, he would not have entered an admission to the charge, and therefore has not demonstrated plain error. Appellee argues that appellant signed a waiver of his rights and was represented by counsel, creating a presumption that defense counsel informed him of the nature of the charges.
{¶10}
{¶11} “The court may refuse to accept an admission and shall not accept an admission without addressing the party personally and determining both of the following:
{¶12} “(1) The party is making the admission voluntarily with understanding of the nature of the allegations and the consequences of the admission;
{¶14} In a juvenile delinquency case, the preferred practice is strict compliance with Juvenile Rule 29(D). In re C.S., 115 Ohio St.3d 267, 874 N.E.2d 1177, 2007-Ohio-4919, ¶113. However, if the trial court substantially complies with
{¶15} In the instant case, the following colloquy occurred between the court and appellant:
{¶16} “THE COURT: Thank you. And David, your attorney indicates you‘re going to be pleading true today to the remaining charge of Escape. I‘ve been presented with your Rule 29, that you have signed. I‘m need [sic] to go over those rights briefly. You are here for a Pre-trial, you have a right to have this set for a trial. You have a right to subpoena any witnesses to testify on your behave (sic). You have the right to cross examine witnesses the State would present. You also, have the right to remain silent. Do you understand those rights?
{¶17} “JUVENILE: Yes, ma‘am.
{¶18} “THE COURT: You understand that by pleading true today, you‘re waving (sic) those rights and there will be no trial?
{¶20} “THE COURT: And if you plead true today, possibly disposition could be incarceration at the Ohio Department of Youth Services for a minimum period of six (6) months but you could be help [sic] up to the age of twenty-one (21). Do you understand that?
{¶21} “JUVENILE: (Inaudible).
{¶22} “THE COURT: Alright. Then given that, how do you plead to one count of Escape, a felony three (F3)?
{¶23} “JUVENILE: True.
{¶24} “THE COURT: Did anyone force you to plead true today?
{¶25} “JUVENILE: No, ma‘am.
{¶26} “THE COURT: Did anyone promise you anything?
{¶27} “JUVENILE: No, ma‘am.
{¶28} “THE COURT: Alright. I‘ll accept your true plea. You‘re found to be a juvenile delinquent.” Tr. 3-5.
{¶29} We first address the state‘s argument that appellant has waived all but plain error by failing to object on the record to the plea colloquy and failing to file an objection to the magistrate‘s decision pursuant to
{¶30} This Court has previously held that based on the U.S. Supreme Court‘s interpretation of
{¶31} However, when the Ohio Supreme Court reversed this Court‘s decision in Spears, in which we found that the juvenile had validly waived counsel, the Ohio Supreme Court did not use a plain error standard of review. In re C.S., supra. The Supreme Court did not expressly state that this Court erred in requiring the juvenile to demonstrate plain error based on his failure to object on
{¶32} We are troubled by the concept of requiring a juvenile to object to the plea proceedings to preserve the error for appeal. The purpose of
{¶34}
{¶35}
{¶36} Further, we reject the state‘s argument that appellant was required to move to withdraw his plea to preserve the error for review. The state relies on In re Bice, Clermont App. No. CA2001-01-008, 2001-Ohio-8660, where the Twelfth District found the appellant failed to preserve a
{¶37} If the record demonstrates the alleged error in the
{¶38} We further reject the state‘s claims that we can infer appellant understood the charges against him and the rights he was waiving because he was represented by counsel and signed a written waiver form. Representations by the defendant‘s attorney that the juvenile understood the rights waived and the consequences of the plea are not enough to demonstrate a voluntary and knowing waiver. In re Flynn (1995), 101 Ohio App.3d 778, 783, 656 N.E.2d 737. A written waiver form is not a substitute for the court‘s duty to personally address the juvenile. In re Royal (1999), 132 Ohio App.3d 496, 504, 725 N.E.2d 685.
{¶39} Appellant argues that the court failed to determine that he understood the nature of the charge against him.
{¶40}
{¶41} In the instant case, the magistrate did not ask appellant whether he understood the charge against him, nor did the magistrate read the complaint into the record at the plea hearing. The magistrate did not review the elements of the charge with the juvenile. The state argues that the appellant was before the court for a review hearing in May 2008, and, at that time, part of his non-compliance with the court‘s prior orders appears to have been appellant‘s plan to escape from the CCF. The state argues that when appellant fled the CCF in September of 2008, it may be inferred from the record that he was aware that this behavior constituted escape. However,
{¶42} Because we find that the trial court did not substantially comply with
{¶43} The first assignment of error is sustained.
II, III
{¶44} Appellant‘s second and third assignments of error are rendered moot by our disposition of assignment of error number one.
By: Edwards, J.
Hoffman, P.J. and
Delaney, J. concur
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JUDGES
JAE/r0430
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Stark County Court of Common Pleas, Juvenile Division, is reversed and remanded to the trial court for further proceedings. Costs assessed to appellee.
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JUDGES