IN RE: J.C., DELINQUENT CHILD
CASE NO. 2012-G-3105
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT GEAUGA COUNTY, OHIO
May 28, 2013
2013-Ohio-2819
COLLEEN MARY O‘TOOLE, J.
Civil Appeal from the Geauga County Court of Common Pleas, Juvenile Division, Case No. 12 JD 000362. Judgment: Reversed and remanded.
Timothy Young, Ohio Public Defender, and Brooke M. Burns, Assistant State Public Defender, 250 East Broad Street, Suite 1400, Columbus, OH 43215 (For Appellant, J.C.).
COLLEEN MARY O‘TOOLE, J.
{1} Appellant, J.C., appeals from the August 9, 2012 judgment of the Geauga County Court of Common Pleas, Juvenile Division, which revoked his parole and recommitted him to the custody of the Ohio Department of Youth Services (“ODYS“) until his twenty-first birthday.
{3} Thereafter, on May 10, 2012, appellant was indicted in Mahoning County for having committed felonious assault and kidnapping. Appellant pleaded to assault. He was sentenced to serve 180 days, fined $1,000, and placed on monitored probation for two years.
{4} As a result of the Mahoning County case, on August 7, 2012, the state filed a new complaint in the Geauga County Court of Common Pleas, Juvenile Division, alleging that appellant had violated the terms of his parole. The state also filed a motion to revoke appellant‘s parole. Following a hearing, on August 9, 2012, the court revoked appellant‘s parole and recommitted him to the custody of ODYS until his twenty-first birthday, March 30, 2013. Appellant filed a timely appeal asserting the following two assignments of error:
{5} “[1.] The juvenile court committed plain error when it ordered [appellant] to return to the Department of Youth Services until his 21st birthday for a parole violation.
{6} “[2.] [Appellant] was denied the effective assistance of counsel when his attorney failed to object to the imposition of a minimum commitment that doesn‘t expire until his 21st birthday.”
{7} Preliminarily, we note that appellant‘s twenty-first birthday, March 30, 2013, has passed and he is no longer in custody. A decision made after that date renders his appeal moot. Nevertheless, although his appeal is now moot, we hold that the underlying legal question in this matter is capable of repetition yet evading review. See In re A.N., Delinquent Child, 11th Dist. Nos. 2011-A-0057 and 2011-A-0058, 2012-Ohio-1789, ¶9 (holding “a court may hear and determine on the merits an appeal ‘that is otherwise moot when the issues raised are “capable of repetition, yet evading review.“” Nextel West Corp. v. Franklin Cty. Bd. of Zoning Appeals, 10th Dist. No. 03AP-625, 2004-Ohio-2943, ¶14, citing State ex rel. Plain Dealer Pub. Co. v. Barnes, 38 Ohio St.3d 165 (1988), paragraph one of syllabus. Accord In re AG Subpoena, 11th Dist. No. 2009-G-2916, 2010-Ohio-476.“)
{8} Upon consideration, the state is correct regarding the fact that appellant‘s 21st birthday has already occurred. However, as we will address below, this panel is not directly following In re A.N. with respect to the
{9} Thus, we now turn to appellant‘s first assignment of error, in which he argues that the juvenile court committed plain error by ordering him to return to the
{10} Appellant did not object to the length of his recommitment to ODYS in the court below. Therefore, we review the juvenile court‘s disposition for plain error only. Plain error exists where there is an obvious deviation from a legal rule that affected the defendant‘s substantial rights by influencing the outcome of the proceedings. State v. Barnes, 94 Ohio St.3d 21, 27 (2002). “Plain error does not exist unless it can be said that but for the error, the outcome * * * would clearly have been otherwise.” State v. Biros, 78 Ohio St.3d 426, 436 (1997).
{11} This case pertains to juvenile delinquency proceedings and sentencing. Upon disposition of a juvenile as delinquent, a court may commit the juvenile to the custody of ODYS, pursuant to
{12} Juvenile parole violation proceedings are governed by
{13} The next sentence of
{14} “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.”
{15} Reading the foregoing provisions together,
{16} There is a disagreement among the district courts that have considered whether the juvenile court may order a child returned to ODYS for more than a “minimum period of thirty days” pursuant to
{17} Appellant wants us to follow the holdings of the Second and Twelfth Districts which have held that
{18} We note that the dissent in this case cites to In re N.P., 11th Dist. No. 2012-A-0024, 2013-Ohio-1288, which relied on In re A.N. However, unlike the instant case, in In re A.N., the only remedy appellant requested was that this court vacate his disposition as it related to the imposition of his 90-day commitment to ODYS. In re A.N., supra, at ¶8. We also note that In re A.N. was decided on April 23, 2012, prior to the Second District‘s release of In re I.M. on August 24, 2012, and the Twelfth District‘s release of In re L.B.B. on October 8, 2012.
{20} Contrasting
{21} Under
{22} Accordingly, we find that the juvenile court committed plain error in revoking appellant‘s parole and recommitting him to the custody of ODYS until his 21st birthday, rather than for a minimum period of 30 days as required by statute.
{23} Appellant‘s first assignment of error is with merit.
{24} In his second assignment of error, appellant contends he was denied the effective assistance of counsel because his attorney did not object to the juvenile court‘s imposition of the maximum commitment.
{25} Based on our finding in appellant‘s first assignment of error that the juvenile court committed plain error in ordering him to return to ODYS until his 21st
{26} For the foregoing reasons, as stated, the state‘s “Motion to Dismiss Appellant‘s First Assignment of Error for Mootness,” is hereby overruled. The judgment of the Geauga County Court of Common Pleas, Juvenile Division, is reversed and the matter is remanded for the entry of a modified judgment entry that eliminates the phrase “until he attains the age of twenty-one” and includes the language “for a minimum period of thirty days” as required by
THOMAS R. WRIGHT, J., concurs.
TIMOTHY P. CANNON, P.J., dissents with a Dissenting Opinion.
TIMOTHY P. CANNON, P.J., dissenting.
{27} For the reasons stated in In re N.P., 11th Dist. No. 2012-A-0024, 2013-Ohio-1288, I dissent from the majority‘s opinion.
{28} In In re N.P., we followed the standing precedent on the issue sub judice. This court has previously held that ”
{29}
{30} 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
{31} It follows that the phrase “any period of institutionalization in excess of the minimum thirty-day period” refers to the period of institutionalization imposed by the trial court greater than the 30-day minimum. If the trial court exercised its discretion and ordered the juvenile to return to ODYS, the department could not grant early release during the minimum period. Because the statute appears to contemplate that the trial court could impose a sentence greater than the stated minimum, it does not follow that the 30-day minimum reference is a limitation on the trial court‘s authority. If this was the intention of the legislature, it could have clearly stated it in that manner.
{32} In this case, the juvenile was committed to the custody of ODYS for a minimum of six months; the juvenile was released on parole; and the juvenile committed a separate offense while on parole. It does not make logical sense that if a juvenile violates parole, possibly as a result of the commission of subsequent offenses, the trial court would have the limited ability to restrain the juvenile to only a 30-day period of institutionalization.