IN RE H.V.
No. 2012-1688
Supreme Court of Ohio
Submitted August 20, 2013—Decided March 13, 2014.
138 Ohio St.3d 408, 2014-Ohio-812
{¶ 37} While Fonda‘s misconduct is somewhat less egregious than that of Brueggeman, we have not found his anxiety and dysthymia to be mitigating factors as we did in Brueggeman. And we believe that a term suspension, all stayed on conditions, is the best way to ensure that those disorders will not cause additional harm to the public. Accordingly, we suspend Charles Walter Fonda from the practice of law for one year, but stay the entire suspension on the conditions that he make restitution of $707.33 to Schub within 90 days of the date of this order, that he remain in compliance with his August 1, 2012 OLAP contract, and that he engage in no further misconduct. Costs are taxed to Fonda.
Judgment accordingly.
O‘CONNOR, C.J., and LANZINGER, KENNEDY, FRENCH, and O‘NEILL, JJ., concur.
PFEIFER and O‘DONNELL, JJ., dissent and would impose a public reprimand.
Heather M. Zirke, Bar Counsel; and Jones Day, Joseph E. Huigens, and Robert S. Faxon, for relator.
Lester S. Potash; and Stanley E. Stein & Associates Co., L.P.A., and Stanley E. Stein, for respondent.
{¶ 1} In this case, we are asked to decide whether a juvenile court has the authority to commit a delinquent juvenile to the Ohio Department of Youth Services (“ODYS“) for a minimum period in excess of 30 days for violating his supervised release. We must then decide whether a juvenile court, when committing a juvenile to the ODYS for a supervised-release violation, can order that the commitment period be served consecutively to the commitment period imposed for the crime that resulted in the violation of supervised release. We answer both questions in the affirmative.
Facts and Procedural History
{¶ 2} On December 8, 2010, a Lorain County Court of Common Pleas Juvenile Court judge found H.V. to be delinquent for having committed an act that if committed by an adult would have constituted attempted domestic violence, a felony of the fourth degree. At the time of the offense, H.V. was on supervised release for committing two earlier domestic-violence offenses. Thus, H.V. had also been charged with violating the terms of his supervised release, but that charge was merged with the attempted-domestic-violence charge. The court committed H.V. to the ODYS for a minimum term of six months.
{¶ 3} On March 17, 2011, roughly three months after his “minimum six-month commitment” to the ODYS, H.V. was placed on supervised release from the ODYS. H.V. had been involved in two fights with other juveniles before being released.
{¶ 4} Approximately six months after H.V.‘s release, H.V., then age 16, was charged with second-degree felonious assault in violation of
{¶ 5} On November 23, 2011, the juvenile court judge conducted a dispositional hearing, revoked H.V.‘s supervised release, and committed H.V. to the ODYS for a minimum period of 90 days for violating the conditions of his supervised release. Five days later, the judge found H.V. to be delinquent and committed him to the ODYS for a minimum term of one year for the felonious assault. The court order
{¶ 6} On December 27, 2011, H.V. appealed to the Ninth District Court of Appeals, asserting four assignments of error, two of which are relevant here. First, H.V. alleged that pursuant to
{¶ 7} H.V. now seeks this court‘s review of the court of appeals’ judgment. For the reasons that follow, we affirm the judgment of the Ninth District.
Analysis
{¶ 8} A juvenile court‘s disposition order will be upheld unless the court abused its discretion. In re D.S., 111 Ohio St.3d 361, 2006-Ohio-5851, 856 N.E.2d 921. The term “abuse of discretion” implies that the trial court‘s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 9} In reviewing a case that originated in the juvenile court, we keep in mind the overriding purposes for dispositions of juvenile offenders as set forth by the General Assembly in
{¶ 10} First, we are asked to determine whether a juvenile court has the authority under
(F) If a child who is on supervised release is arrested under an order of apprehension, under a warrant, or without a warrant as described in division (B)(1), (B)(2), or (C) of this section and taken into secure custody, and if a motion to revoke the child‘s supervised release is filed, the juvenile court of the county in which the child is placed promptly shall schedule a time for a hearing on whether the child violated any of the terms and conditions of the supervised release. If a child is released on supervised release and the juvenile court of the county in which the child is placed otherwise has reason to believe that the child has not complied with the terms and conditions of the supervised release, the court of the county in which the child is placed, in its discretion, may schedule a time for a hearing on whether the child violated any of the terms and conditions of the supervised release. If the court of the county in which the child is placed on supervised release conducts a hearing and determines at the hearing that the child did not violate any term or condition of the child‘s supervised release, the child shall be released from custody, if the child is in custody at that time, and shall continue on supervised release under the terms and conditions that were in effect at the time of the child‘s arrest, subject to subsequent revocation or modification. If the court of the county in which the child is placed on supervised release conducts a hearing and determines at the hearing that the child violated one or more of the terms and conditions of the child‘s supervised release, the court, if it determines that the violation was a serious violation, may revoke the child‘s supervised release and order the child to be returned to the department of youth services for institutionalization or, in any case, may make any other disposition of the child authorized by law that the court considers proper. If the court orders the child to be returned to a department of youth services institution, the child shall remain institutionalized for a minimum period of thirty days, the department shall not reduce the minimum thirty-day period of institutionalization for any time that the child was held in secure custody subsequent to the child‘s arrest and pending the revocation hearing and the child‘s return to the department, the release authority, in its discretion, may require the child to remain in institutionalization for longer than the minimum thirty-day period, and the child is not eligible for judicial release or early release during the minimum thirty-day period of institutionalization or any period of institutionalization in excess of the minimum thirty-day period.
{¶ 13} Here we have a case in which a juvenile on supervised release following two prior offenses was committed in 2010 to the ODYS for attempted domestic violence, a felony of the fourth degree. The juvenile court merged the charge for that violation of supervised release with the charge for the attempted domestic violence. The juvenile was later placed on supervised release, and within six months, he committed yet another crime, this time a felonious assault, a felony of the second degree. The juvenile court properly revoked the juvenile‘s supervised release and committed him to the ODYS for a minimum of 90 days for the supervised-release violation and for one year for the felonious assault. We will not construe the statute to prevent the court from holding H.V. fully accountable for his behavior or to force the court to ignore the fact that H.V. was not only guilty of violating the conditions of his supervised release but had also committed another violent act. There is no rational reason to suggest that a juvenile court should be limited in the sanctions that it can apply in such a situation. The court‘s job, after all, is not only to attempt to correct the juvenile but to protect the public as well.
{¶ 14} Felonious assault, without question, is a serious offense and a serious violation of supervised release. H.V. appeared before the same juvenile court judge for each of the criminal offenses leading up to the felonious assault. We are wholly unpersuaded that this juvenile‘s latest violation of supervised release deserved the same sanction that was imposed as a result of his previous
{¶ 15} We can find no provision in the Revised Code that gives the release authority of the ODYS the power to override a statutory minimum period of commitment or a minimum period of commitment ordered by a juvenile court.
{¶ 16} Thus, we hold that a juvenile court is within its statutory authority under
{¶ 17} Next, we are asked to determine whether a juvenile court may order a commitment term for a supervised-release violation to be served consecutively to a commitment term for a new crime. H.V. asserts that the juvenile court erred when it ordered that his commitment for his supervised-release violation pursuant to
{¶ 18} We agree with H.V. that
{¶ 19} H.V. argues that because the Revised Code enumerates circumstances under which a juvenile court may impose consecutive terms of commitment, juvenile courts are prohibited from imposing consecutive sentences under any other circumstances. This court rejected that argument in In re Caldwell, 76 Ohio St.3d 156, 158-159, 666 N.E.2d 1367 (1996), and we reject it in this case as well.
{¶ 20} Here, the juvenile court was presented with a repeat offender whose criminal conduct showed no signs of ebbing. In fact, it was escalating—from an earlier domestic-violence charge to the current felonious-assault charge. Under these circumstances, it would have been contrary to
{¶ 21} Thus, we hold that the juvenile court was within its statutory authority under
Conclusion
{¶ 22} We hold that the juvenile court did not abuse its discretion when it ordered H.V. to serve a minimum 90-day term for a serious violation of supervised release. This order was made in accordance with the plain language of
Judgment affirmed.
O‘DONNELL, LANZINGER, and KENNEDY, JJ., concur.
FRENCH, J., concurs in part and dissents in part.
O‘CONNOR, C.J., and PFEIFER, J., dissent.
FRENCH, J., concurring in part and dissenting in part.
{¶ 23} I agree with the majority‘s conclusion that the juvenile court could order H.V.‘s commitments to be served consecutively. Like the majority, I find In re Caldwell, 76 Ohio St.3d 156, 666 N.E.2d 1367 (1996), to be dispositive on this issue.
{¶ 24} Caldwell dealt with identical statutory language and identical arguments. There, we were asked to decide whether a juvenile court had authority to order consecutive terms of commitment under former
{¶ 25}
{¶ 26} I respectfully disagree, however, with the majority‘s determination that the juvenile court can commit a juvenile to a minimum term of commitment in excess of 30 days. If a juvenile violates parole, a court can, under
O‘CONNOR, C.J., dissenting.
{¶ 27} The majority‘s decision to affirm the Ninth District Court of Appeals is not supported by the language of the relevant statutes or by the General Assembly‘s rationale in enacting those laws.
{¶ 28} The juvenile court did not have the power to designate a mandatory minimum confinement term of 90 days when ordering H.V.‘s return to the Ohio Department of Youth Services (“ODYS“) to continue serving under his 2010 disposition, and that portion of the juvenile court‘s November 23, 2011 revocation disposition should be reversed as unlawful. And because the juvenile court did not have the power to order H.V. to serve the confinement term imposed for his supervised-release violation consecutively to the confinement term imposed for the new delinquency adjudication, that portion of the November 23, 2011 disposition also should be reversed as unlawful. I therefore dissent.
ANALYSIS
{¶ 29} Upon revocation of a child‘s supervised release, a juvenile court has no authority to increase the 30-day mandatory minimum period of confinement set forth in
A juvenile court has no authority to increase the statutory minimum term of institutionalization
{¶ 30} The plain language of
{¶ 31} The juvenile justice system exists as “‘an uneasy partnership of law and social work,‘” In re Agler, 19 Ohio St.2d 70, 73, 249 N.E.2d 808 (1969), quoting Whitlatch, The Juvenile Court, 18 W.Res.L.Rev. 1239, 1246 (1967), which serves to both support and correct its wards in an “institutionalized and thus reliable manner,” id. Juvenile proceedings are neither criminal nor penal in nature, and the juvenile justice system must value, above all, the child‘s welfare and betterment. See In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 66-67.
{¶ 32} The purposes underlying all juvenile dispositions are set forth in
{¶ 33} In this case, H.V. was adjudicated through the traditional juvenile process for committing a fourth-degree felony at the age of 15. In fashioning an appropriate disposition for H.V., the juvenile court had a choice among various traditional juvenile dispositions: placement into the legal custody of ODYS for secure confinement,
{¶ 34} But after the juvenile court chose to place H.V. in the legal custody of ODYS for secure confinement, the court‘s discretion regarding that confinement was limited by
{¶ 35} Because the juvenile court committed H.V. to the permanent legal custody of ODYS, the court ceased to have jurisdiction over H.V. in relation to the 2010 adjudication, except under limited circumstances.
{¶ 36} A review of the authority granted to and the constraints placed upon both the juvenile court and ODYS by the legislature requires a conclusion that after the disposition in a traditional juvenile proceeding, the statutes are primarily focused on facilitating the release of the child from confinement. After a child serves a minimum period of confinement, the ODYS has the authority to release the child, even if the juvenile court does not believe that he or she should be released. And the juvenile court can order the child‘s release, even if ODYS does not believe that he or she should be released.
{¶ 37} This general standard of promoting release from institutionalization is subject to few exceptions, but the revocation-of-supervised-release rule of
{¶ 38} Although the juvenile court‘s discretionary authority under the language of
[T]he child shall remain institutionalized for a minimum period of thirty days, [ODYS] shall not reduce the minimum thirty-day period of institutionalization for any time that the child was held in secure custody subsequent to the child‘s arrest and pending the revocation hearing and the child‘s return to [ODYS], the [ODYS] release authority, in its discretion, may require the child to remain in institutionalization for longer than the minimum thirty-day period, and the child is not eligible for judicial release or early release during the minimum thirty-day period of institutionalization or any period of institutionalization in excess of the minimum thirty-day period.
{¶ 39} When construing this and any other statute, our paramount concern is the legislative intent in enacting the statute, and our interpretation of the specific words used is guided by their plain, customary meaning. Yonkings v. Wilkinson, 86 Ohio St.3d 225, 227, 714 N.E.2d 394 (1999). A plain reading of the terms and modifiers in the above statutory language reveals that the trial court no longer has any control over the length of a child‘s confinement after choosing to return the child to the custody of ODYS. It is only ODYS that is authorized to resume its role of carrying out the indefinite term of institutionalization imposed in the original disposition.
{¶ 40} Although the statute states that “the court * * * may * * * order the child to be returned” to ODYS, it does not authorize the court to prescribe a minimum term of institutionalization.
{¶ 41} The General Assembly‘s reason for inserting a minimum-term-of-confinement rule in
{¶ 42} The majority gives a juvenile court discretion to impose a longer minimum confinement period than the 30 days allowed by statute when the juvenile court believes that 30 days is not sufficient to hold the juvenile accountable for the new offense. But the majority‘s concerns are addressed in provisions such as
{¶ 43} Thus, not only is the majority‘s expansion of judicial discretion unsupported by the plain language of the statutory scheme, it is redundant, as its purposes are already served by the 30-day “stay” of
{¶ 44} The majority stresses that nothing in
{¶ 46} Although the majority finds authority for the juvenile court in the absence of an explicit prohibition from the General Assembly, doing so severely undermines other provisions within the juvenile justice system. For example, although
{¶ 47} In
{¶ 48} When the juvenile court committed H.V. to the custody of ODYS in 2010, it had no authority to impose a definite term of institutionalization and no authority to alter the minimum and maximum terms of the mandatory indefinite sentence provided in
{¶ 49} It would be antithetical to the rehabilitative goals of the traditional juvenile system to allow a permanent term of confinement to be imposed prior to the child‘s reintroduction to an ODYS institutional environment, because at that time, it is not known how the child is going to respond to rehabilitative efforts. Such a disposition would be even more restrictive and punitive than the use of stayed adult sentences in serious-youthful-offender dispositional proceedings, as it would leave a child no motivation to change his or her behavior and meet assigned rehabilitative goals in order to avoid a definite sentence.
{¶ 50} If the 30-day-minimum-institutionalization provision in
{¶ 51} I would therefore hold that the juvenile court did not have the power to impose a mandatory minimum institutionalization term of 90 days after ordering H.V.‘s return to ODYS to continue serving under his 2010 disposition and would hold that the disposition must be reversed as unlawful.
The juvenile statutory scheme does not permit a juvenile court to impose an institutionalization term for a supervised-release revocation consecutively to a new term of institutionalization
{¶ 52} Just as the phrase “any other disposition * * * that the court considers proper” in
{¶ 54} A court‘s inherent authority is a power that is neither created nor assailable by acts of the legislature. Hale v. State, 55 Ohio St. 210, 215, 45 N.E. 199 (1896). But a juvenile court is a creature of statute and therefore has only such powers as are conferred upon it by the legislature. See In re Agler, 19 Ohio St.2d at 72-74, 249 N.E.2d 808. Thus it has little, if any, inherent power.
{¶ 55} It is the legislature that has the authority to define offenses and fix penalties, and it is the legislature that authorizes the judiciary to pass a particular sentence upon an accused. Ex parte Fleming, 123 Ohio St. 16, 173 N.E. 441 (1930), at paragraph one of the syllabus; Ex parte United States, 242 U.S. 27, 42, 37 S.Ct. 72, 61 L.Ed. 129 (1916). See also State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 22 (“Judges have no inherent power to create sentences“).
{¶ 56} In the face of silence on the issue of consecutive terms of institutionalization, it should not be inferred that a juvenile court has the discretion to order multiple confinement terms to be served consecutively. Although this court made that inference in In re Caldwell, 76 Ohio St.3d 156, 666 N.E.2d 1367 (1996), the circumstances of Caldwell, both in law and in fact, are far different from the circumstances of the present case.
{¶ 57} In Caldwell, the child had been adjudicated delinquent in 1994 in two cases that were heard together. In re Caldwell, 10th Dist. Franklin Nos. 94APF07-996 and 94APF07-997, 1995 WL 46199 (Jan. 31, 1995). In the first case, the child was adjudicated delinquent on two fourth-degree felony counts of aggravated vehicular assault, and in the second case, the child was adjudicated delinquent on a third-degree felony count of receiving stolen property. The juvenile court imposed terms of institutionalization for each of the three counts and ordered that they be served consecutively. This court‘s approval of the juvenile court‘s dispositional decision was based on the fact that (1) the applicable version of R.C. Chapter 2151 made no mention of consecutive dispositions, (2) the only guidance on the issue was found in the instructions that a court shall “[m]ake any further disposition that the court finds proper” under former
{¶ 58} Caldwell was decided at a time when R.C. Chapter 2151 governed children who were abused, neglected, or dependent, as well as juvenile delinquents. See In re Cross, 96 Ohio St.3d 328, 2002-Ohio-4183, 774 N.E.2d 258, ¶ 9. However, the juvenile statutory scheme was significantly altered in 2002 by the Juvenile Justice Reform Act, Am.Sub.S.B. No. 179, 148 Ohio Laws, Part IV, 9447. Both bodies of juvenile law were revised, and R.C. Chapter 2152 was enacted to exclusively address juvenile delinquency. Cross at ¶ 11.
{¶ 59} Caldwell was also decided at a time when Ohio‘s criminal sentencing code retained the common-law preference for consecutive sentences. State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, ¶ 26 (stating that “the common law prefer[red] consecutive sentences over concurrent sentences“). Comprehensive changes were made to the sentencing code by 1995 Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136, effective July 1, 1996. For example,
{¶ 60} Here, we are not facing the same lack of direction on the issue of consecutive terms of confinement in the juvenile statutes as we were in Caldwell, and we are also facing a very different juvenile statutory scheme from what existed at the time of Caldwell. The General Assembly has now addressed the issue of consecutive terms of confinement for a delinquent child by enacting
The Ohio Legislature having dealt with the subject, and having made certain provisions and certain exceptions thereto, it will be presumed that the Legislature has exhausted the legislative intent, and that it has not
intended the practice to be extended further than the plain import of the statutes already enacted. The well-known maxim, expressio unius est exclusio alterius, applies.
Madjorous v. State, 113 Ohio St. 427, 433, 149 N.E. 393 (1925).
{¶ 61}
{¶ 62} We must remain mindful throughout this process that if the juvenile court has decided to utilize the traditional juvenile process rather than bind a juvenile over to adult criminal proceedings, we cannot allow criminal-sentencing notions to creep into our assumptions, and we certainly cannot allow them to creep into our explicit analysis. Instead, we must keep in mind the fundamental rehabilitative purpose of the juvenile justice system. See In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 67.
{¶ 63} If a county prosecuting attorney thinks that a child‘s offenses are serious enough that the traditional juvenile process will not rehabilitate the child and protect the public and that harsher sanctions should apply, the prosecuting attorney may request serious-youthful-offender proceedings as provided in
{¶ 64} I would therefore hold that the juvenile court did not have the authority to order that the confinement term imposed for the supervised-release revocation be served consecutively to the confinement term imposed for the new delinquency disposition and that the offending portion of the November 23, 2011 disposition must be reversed as unlawful.
{¶ 65} In the end, it may have been a very good idea for H.V. to remain in secure confinement for the term imposed by the juvenile court. But the fact that H.V.‘s case does not cry out for a shorter term of institutionalization is irrelevant to the determination whether the juvenile court had statutory authority to act as it did. Unsympathetic circumstances provide a perfect opportunity for bad law—law that will have an adverse impact on more sympathetic cases in the future. But my concern is not solely with the court‘s trampling on the important public policies behind the juvenile code, e.g., to rehabilitate young offenders. It offends the law and our Constitutions when a judge legislates from the bench in order to increase the confinement period that may be imposed on a child merely because the judge believes that the confinement period allowed under the statute is too lenient in a particular situation. The statutes that govern dispositions in juvenile cases are for the General Assembly, and not judges, to create. Once created, courts must employ the statutes in order to fashion proper, just sanctions for delinquent youth.
{¶ 66} In cases in which we believe that punishment is paramount to rehabilitation, judges must rely on the juvenile statutes that allow for bindover, serious-youthful-offender hybrid sentencing, or any number of additional dispositions, to address cases in which the juvenile presents a risk that cannot be addressed in the juvenile system. Judges cannot, however, alter a statutory scheme in order to fashion a remedy in any given case. Because the majority ignores the proper role of the judicial branch, I dissent.
PFEIFER, J., concurs in the foregoing opinion.
Timothy Young, Ohio Public Defender, and Sheryl Trzaska, Assistant State Public Defender, for appellant.
Dennis P. Will, Lorain County Prosecuting Attorney, and Chris A. Pyanowski, Assistant Prosecuting Attorney, for appellee, the state of Ohio.