In re L.B.B.
Charlyn Bohland, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215, for appellant
HENDRICKSON, J.
{¶ 1} Appellant, L.B.B., appeals from a judgment of the Butler County Court of Common Pleas, Juvenile Division, which revoked his parole and committed him to the Ohio Department of Youth Services (“DYS“) for a minimum period of 90 days. For the reasons discussed below we reverse the juvenile court‘s decision and remand this matter for further proceedings.
{¶ 3} L.B.B. violated his probation in November 2010, and the juvenile court invoked the previously suspended six-month commitment to DYS. On February 5, 2011, L.B.B. was placed on DYS supervised release (“parole“). On March 14, 2011, a complaint was filed alleging that L.B.B. violated the terms of his parole by changing his residence without prior approval from his parole officer. On December 20, 2011, the juvenile court accepted L.B.B.‘s admission to violating the terms of his parole and revoked his parole, ordering that he be returned to DYS for “a minimum of ninety (90) days.” L.B.B.‘s trial counsel did not object to the juvenile court‘s 90-day commitment.
{¶ 4} L.B.B. appeals the revocation of his parole, raising two assignments of error.1
Assignment of Error No. 1:
{¶ 6} THE JUVENILE COURT ERRED WHEN IT COMMITTED [L.B.B.] TO DYS FOR A MINIMUM PERIOD OF NINETY DAYS FOR A PAROLE REVOCATION, AS ONLY A THIRTY-DAY MINIMUM DYS COMMITMENT IS AUTHORIZED BY R.C. 5139.52(F) .
{¶ 7} In his first assignment of error, L.B.B. argues that the trial court committed plain error when it ordered a 90-day minimum DYS commitment. L.B.B. contends that
{¶ 8} As an initial matter, we note that L.B.B. did not object to the length of his recommitment to DYS in the juvenile court. As such, we review the juvenile court‘s disposition for plain error only. In re J.B., 12th Dist. No. CA2004-09-226, 2005-Ohio-7029, ¶ 37. See also In re T.K., 9th Dist. No. 26076, 2012-Ohio-906, ¶ 5. 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).
{¶ 9}
the child shall remain institutionalized for a minimum period of thirty days, the department shall not reduce the minimum thirty-day period of institutionalization * * *, 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.
(Emphasis added.)
{¶ 10} There is a disagreement among the district courts that have considered
{¶ 11} Conversely, the Second District has held that
{¶ 12} We agree with the rationale expressed by the Second District in In re I.M. Under
{¶ 13} Accordingly, we find that the juvenile court committed plain error in ordering L.B.B. returned to DYS for a “minimum of ninety (90) days,” rather than for a minimum period of 30 days as required by statute. L.B.B.‘s first assignment of error is sustained.
Assignment of Error No. 2:
{¶ 15} TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE BY FAILING TO OBJECT TO [L.B.B.‘S] ILLEGAL PAROLE REVOCATION COMMITMENT, AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION .
{¶ 16} In his second assignment of error, L.B.B. argues that he received ineffective assistance of counsel as his trial counsel failed to object to the juvenile court‘s 90-day parole revocation. However, based on our finding that the trial court committed plain error in ordering that L.B.B. be returned to DYS for a “minimum of ninety (90) days,” we now find L.B.B.‘s argument under his second assignment of error to be rendered moot. See
{¶ 17} Judgment is hereby reversed and the matter remanded to the juvenile court for
POWELL, P.J., and RINGLAND, J., concur.