{¶ 2} On July 6, 2003, J.W., a fifteen-year-old juvenile, was charged in the Butler County Juvenile Court with violating R.C.
{¶ 3} The court then determined that the act of ethnic intimidation, if committed by an adult, would constitute a felony of the fifth degree. Accordingly, and pursuant to R.C.
{¶ 4} While on probation, J.W. was ordered to attend sensitivity training, complete a work program, and participate in victim offender mediation. Additionally, the court ordered J.W. to pay restitution and court costs, including attorney fees.
{¶ 5} Thereafter, on August 27, 2003, J.W. was charged with violating his probation by failing to attend his court-ordered work program. He was found delinquent for violating the terms of his probation and ordered committed to the legal custody of the Butler County Rehabilitation Center.
{¶ 6} On November 21, 2003, J.W. was again charged with violating his probation. On this occasion, the complaint alleged that he failed to comply with the program at the Butler County Juvenile Rehabilitation Center. He was again found delinquent, and on January 8, 2004, the court determined it was in J.W.'s best interest to transfer him to the custody of DYS. In accordance with the court's previously stayed order, the confinement was ordered for a minimum period of six months and a maximum period not to exceed J.W.'s twenty-first birthday.
{¶ 7} Following his transfer to the custody of the DYS, J.W. filed a petition for a writ of habeas corpus with the Fourth District Court of Appeals. Upon reviewing the petition, the Fourth District found its factual claims were accurate. The court denied the petition, however, holding that a writ of habeas corpus was not proper because an adequate remedy at law still existed through direct appeal.
{¶ 8} An appeal to this court followed, in which J.W. raises four assignments of error.
{¶ 9} Assignment of Error No. 1:
{¶ 10} "The trial court exceeded its statutory authority when it adjudicated [J.W.] delinquent for the crime of ethnic intimidation and committed him to the ohio department of youth services when the required predicate offenses for that crime were never charged or found."
{¶ 11} In his first assignment of error, J.W. argues the juvenile court erred when it adjudicated him delinquent for committing ethnic intimidation in violation of R.C.
{¶ 12} R.C.
{¶ 13} J.W. was initially charged with vandalism, resisting arrest, and ethnic intimidation. Neither menacing, aggravated menacing, criminal damaging, criminal mischief, nor telephone harassment were ever listed as charges against him. Therefore, J.W. argues, a necessary element of R.C.
{¶ 14} J.W. is correct in his assertion that none of the five necessary predicate offenses for ethnic intimidation was ever charged. However, he was charged with vandalism. Criminal damaging, a valid predicate offense for ethnic intimidation, is a lesser-included offense of vandalism. See State v. Gatewood (Dec. 22, 2000), Hamilton App. No. C-000157.
{¶ 15} If J.W. had been tried on the charge of vandalism, a jury could have lawfully convicted him for the lesser-included offense of criminal damaging even though that offense was never charged. Crim.R. 31(C) provides: "When [an] indictment, information, or complaint charges an offense * * *, [and] lesser offenses are included within the offense charged, the defendant may be found * * * guilty of * * * a lesser included offense." Accordingly, based upon the lesser-included predicate offense of criminal damaging, we find the juvenile court could, and did, validly adjudicate J.W. delinquent for the crime of ethnic intimidation.
{¶ 16} J.W. also argues that even if the juvenile court correctly adjudicated him delinquent for the crime of ethnic intimidation, the court erred in imposing a sentence of confinement at DYS. We agree.
{¶ 17} R.C.
{¶ 18} R.C.
{¶ 19} Aggravated menacing and telephone harassment are first degree misdemeanors. Therefore, according to the terms of R.C 2927(B), if a person commits either of these offenses "by reason of race, color, religion, or national origin," that person is guilty of a felony of the fifth degree.
{¶ 20} Criminal damaging, however, is a second-degree misdemeanor. An act of ethnic intimidation with criminal damaging as a predicate offense would therefore result in a first-degree misdemeanor conviction. As indicated above, the relevant predicate offense in this case is criminal damaging, a lesser-included offense of vandalism. Therefore, pursuant to the directive of R.C.
{¶ 21} Crimes are statutory, as are their penalties, and the only sentence a judge may impose is that provided for by statute. Colegrovev. Burns (1964),
{¶ 22} Assignment of Error No. 2:
{¶ 23} "[J.W.] was denied the effective assistance of counsel when counsel advised him to enter an admission of true to ethnic intimidation and failed to object to his commitment to the ohio department of youth services or otherwise bring the sentencing error to the court's attention."
{¶ 24} In his second assignment of error, J.W argues his court-appointed counsel was ineffective for advising him to plead to the charge of ethnic intimidation when the elements of that crime were not present. A claim of ineffective assistance of counsel is a constitutional argument in which a defendant must satisfy a two-part test. First, a defendant must show that his counsel's performance was deficient. Second, the defendant must show that the deficient performance prejudiced his defense. Strickland v. Washington (1984),
{¶ 25} J.W. also argues his counsel was constitutionally ineffective for failing to object to his confinement at DYS. This argument, however, is also moot. We concluded under the first assignment of error that the juvenile court's order committing J.W. to DYS is void. Because we were able to reach our conclusion on non-constitutional grounds, we need not address J.W.'s constitutional claim. When an issue can be determined on another basis, a court should refrain from deciding the issue on constitutional grounds. State ex rel. Essig v. Blackwell,
{¶ 26} The second assignment of error is therefore dismissed as moot. See App.R. 12(A)(1)(c).
{¶ 27} Assignment of Error No. 3:
{¶ 28} "The trial court erred when it failed to make an affirmative determination on the record that [J.W.], an indigent juvenile, had the means, or reasonably could be expected to have the means, to pay for legal services rendered."
{¶ 29} In his third assignment of error, J.W. argues the juvenile court erred by not making a determination on the record that he, as an indigent defendant, had the ability to pay the court-appointed counsel fees imposed upon him as a sanction. We agree.
{¶ 30} The rules governing the disposition of children adjudicated delinquent are contained primarily in R.C. Chapter 2152. When a child is adjudicated delinquent, R.C.
{¶ 31} R.C. Chapter 2152 does not explicitly require the court to make the determination that an indigent child has the means to pay a financial sanction imposed. The chapter does provide, however, that "[i]f the child is indigent, the court shall consider imposing a term of community service * * * in lieu of imposing a financial sanction * * *." R.C.
{¶ 32} Furthermore, R.C.
{¶ 33} We also note how we have dealt with similar situations in adult criminal cases. We have held that "[a] trial court may require an indigent defendant to pay the cost of his court-appointed attorney only after the court makes an affirmative determination on the record in the form of a journal entry, that the defendant has, or reasonably may be expected to have, the means to pay all or some part of the cost of the legal services rendered to him." State v. Cooper,
{¶ 34} Upon reviewing the record in this case, we find nothing indicating the juvenile court followed R.C.
{¶ 35} Assignment of Error No. 4:
{¶ 36} "[J.W.], An indigent juvenile, was denied his constitutional rights to due process and equal protection of the law when the trial court ordered him to pay attorney fees."
{¶ 37} In his fourth assignment of error, J.W. argues that he was denied his constitutional rights to due process and equal protection when the court failed to determine his ability to pay attorney fees before imposing them as a sanction. Because we have already concluded under the third assignment of error that the juvenile court erred in imposing attorney fees as a sanction, we conclude that this assignment of error is moot. See Blackwell,
{¶ 38} In conclusion, we find the juvenile court's decision to adjudicate J.W. delinquent for engaging in the act of ethnic intimidation is valid. We also find, however, that the court erred in classifying the act as a fifth-degree felony. The proper classification for the offense is a first-degree misdemeanor. Consequently, the order confining J.W. to DYS is hereby vacated, and this case is remanded to the juvenile court for a re-disposition that is consistent with a first-degree misdemeanor offense.
{¶ 39} Furthermore, the juvenile court erred in not making a determination on the record that J.W. has the ability to pay attorney fees before imposing them as a financial sanction. Therefore, the court is instructed to determine on the record if J.W. has the ability to pay court-appointed counsel fees before imposing them upon him.
{¶ 40} Judgment affirmed in part, reversed in part, and remanded to the juvenile court for further proceedings according to law and consistent with this opinion.
Young, P.J., and Walsh, J., concur.