IN THE MATTER OF: N.P., DELINQUENT CHILD.
CASE NO. 2012-A-0024
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY, OHIO
2013-Ohio-1288
[Cite as In re N.P., 2013-Ohio-1288.]
Appeal from the Ashtabula County Court of Common Pleas, Juvenile Division, Case No. 10 JA 74. Judgment: Affirmed.
Timothy Young, Ohio Public Defender, and Charlyn Bohland, Assistant State Public Defender, 250 East Broad Street, Suite 1400, Columbus, OH 43215 (For Appellant, N.P.).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, N.P., appeals from the judgment of the Ashtabula County Court of Common Pleas, Juvenile Division, revoking his probation and committing him to the legal custody of the Ohio Department of Youth Services (“ODYS“) for a period of 90 days on each count of a two-count complaint to be served consecutively. Based on the following reasons, we affirm the judgment of the juvenile court.
{¶2} A complaint was filed against N.P. for committing five counts of breaking and entering, each a violation of
{¶3} N.P. violated his terms of probation, and the juvenile court invoked his suspended ODYS commitment. Complaints were filed in the juvenile court alleging N.P. violated the conditions of his parole based on conduct after his release from ODYS. N.P. admitted to the parole violations and was committed to ODYS for a minimum period of 60 days. After completing his 60-day commitment, N.P. was released from ODYS to parole supervision.
{¶4} A two-count complaint was filed in the juvenile court alleging that N.P. once again violated the conditions of his parole based on conduct subsequent to his latest release. At a hearing, N.P. admitted to the parole violations. N.P. was adjudicated a delinquent, his parole was revoked, and he was committed to ODYS for 90 days for each violation, to be served consecutively.
{¶5} N.P. filed a timely appeal. His assignments of error allege:
{¶6} [1.] The juvenile court erred when it committed [N.P.] to [ODYS] for a minimum period of ninety days for each parole revocation, as only
{¶7} [2.] The juvenile court committed plain error when it ordered [N.P.] to serve consecutive ninety-day parole revocation commitments, in violation of
{¶8} [3.] Trial counsel rendered ineffective assistance by failing to object to [N.P.‘s] illegal parole revocation commitments and the consecutive nature of the commitments, as guaranteed by the
{¶9} N.P.‘s assignments of error on appeal challenge the juvenile court‘s imposition of his sentence based on alleged errors by the juvenile court and alleged ineffective assistance of trial counsel during sentencing. N.P. maintains the trial court erred in issuing consecutive 90-day sentences. The remedy for these alleged errors would be for this court to remand the matter for resentencing. The record reflects, however, that N.P. was recommitted to the custody of ODYS on May 23, 2012, for a period of 90 days on two counts to be served consecutively. N.P. was therefore due to be released from ODYS on November 18, 2012. As such, this court cannot grant such relief to an appellant who has served his sentence, but does not attack the underlying conviction on appeal. In this case, N.P. admitted to the underlying parole violations. See State v. Evans, 2d Dist. No. 24928, 2012-Ohio-5099 (finding that appellant‘s
{¶10} Although we may dismiss this appeal as moot, we recognize that the issues raised by appellant on appeal are similar to those raised in In re A.N., 11th Dist. Nos. 2011-A-0057 and 2011-A-0058, 2012-Ohio-1789. In that case, this court addressed a situation where a juvenile pled guilty to having violated the terms of his parole and was recommitted to the ODYS for a definite period of 90 days. As the juvenile was no longer in custody at the time of appeal, this court rendered the appellant‘s assigned errors moot. Id. at ¶7. This court, however, did review the case substantively in order to determine whether a 90-day revocation of parole is permissible and to address the appellant‘s claim of ineffective assistance of counsel.
{¶11} This court noted that ”
{¶12} In the case sub judice, appellant committed two separate and distinct parole violations, which were filed in a single complaint. Based on the plain language of
{¶13} Appellant‘s first assignment of error is without merit.
{¶14} Moreover, we do not find merit in appellant‘s second assignment of error. Under this assigned error, appellant argues it was error for the trial court to impose his sentences consecutively, as
{¶15}
{¶16} If a child is adjudicated a delinquent child for committing two or more acts that would be felonies if committed by an adult and if the court entering the delinquent child adjudication orders the commitment of the child for two or more of those acts to the legal custody of the department of youth services for institutionalization * * *, the court may order that all of the periods of commitment imposed under those sections for those acts be served consecutively in the legal custody of the department of youth services * * *.
{¶17} We agree with and therefore adopt the Ninth Appellate District‘s holding that
{¶18} Additionally, appellant argues his trial counsel provided ineffective assistance of counsel when he failed to object to the court‘s imposition of a 180-day parole revocation. This court has considered and rejected an ineffective assistance of counsel claim in relation to trial counsel‘s failure to object to a juvenile‘s 90-day parole revocation. In re A.N., supra, ¶14-17. Based on our court‘s previous decision, we find appellant‘s third assignment of error without merit.
{¶19} Based on the decision of this court, the judgment of the Ashtabula County Court of Common Pleas, Juvenile Division, is hereby affirmed.
DIANE V. GRENDELL, J.,
CYNTHIA WESTCOTT RICE, J.,
concur.