IN RE: N.S.
Case No. 2016 CA 0005
COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT
January 17, 2017
2017-Ohio-163
Hоn. W. Scott Gwin, P. J.; Hon. John W. Wise, J.; Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Juvenile Division, Case No. 21420057; JUDGMENT: Affirmed
For Appellee State of Ohio
BENJAMIN E. HALL
ASSISTANT PROSECUTOR
318 Chestnut Street
Coshocton, Ohio 43812
Appellant N. S.
CHARLYN BOHLAND
250 East Broad Street
Suite 1400
Columbus, Ohio 43215
{¶1} Appellant N.S., a delinquent child, appeals his conviction and SYO sentencing, in the Coshocton County Court of Common Pleas, Juvenile Division, оn two counts of rape. Appellee is the State of Ohio. The relevant facts leading to this appeal are as follows.
{¶2} On April 28, 2014, appellant was indicted on four counts of rape, each with a serious youthful offender (“SYO“) specification. Counts One and Two involved a child victim born in 2003. Counts Three and Four involved a child victim born in 2004.
{¶3} The Coshocton County Court of Common Pleas thereafter transferred the case to Coshocton County Juvenile Court.
{¶4} On September 19, 2014, a change of plea hearing took place. Appellant entered pleas of guilty to Counts Two and Four, both charged under
{¶5} The trial court thereupon adjudicated N.S. delinquent of two counts of rape,
Through that entire period of time, [the second victim] would have been *** under 10 years of age. As a result of that, you are subject to a
different disposition or a different potential sentence in Count 4. That is you are subject to a sentence of 15-yеars-to-life on that and it is a possibility of parole after the 15 years can occur. There is some law-and if you were an adult, which you would be sentenced as, that you could receive a sentence or a penalty of life without parole. But it is at least this court‘s opinion that juveniles under constitutional precedence established by the United States Supreme Court, and I think it was last summer - I mean the summer of 2013, that juveniles, regardless of where they go through the system, cаn‘t be subjected-meaning juveniles by age, not by court, cannot be subject to life sentences without parole. * * *
{¶6} Tr., September 19, 2014, at 21.
{¶7} Because the juvenile court‘s written judgment entry did not contain all of the terms of N.S.‘s disposition; the juvenile court issued a subsequent nunc pro tunc entry on November 3, 2014. Rendering a blended serious-youth-offender (“SYO“) sentence, the juvenile court sentenced N.S. to 11 years in prison on Count Two; and, life in prison with parole eligibility after 15 years on Count Four pursuant to
{¶8} On March 30, 2016, appellant filed a notice of appeal. He herein raises thе following two Assignments of Error:
{¶9} “I. THE MANDATORY SENTENCING SCHEME IN
{¶10} “II. N.S. WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION; AND, ARTICLE I, SECTION 10, OHIO CONSTITUTION.”
Timeliness of Appeal
{¶11} As an initial matter, we will address the State‘s renewed responsive procedural argument that the present appeal is untimely, even though this Court issued a procedural order on May 4, 2016 rejecting the State‘s position. As noted in our above recitation of facts, appellant filed his notice of appeal in March 2016, roughly seventeen months after the issuance of the nunc pro tunc dispositional judgment entry under appeal. In a memorandum in suppоrt of his notice of appeal, appellant relied upon In re Anderson, 92 Ohio St.3d 63, 2001-Ohio-131, 748 N.E.2d 67 (2001), for the proposition that the civil rules and the appellate rules pertaining to the filing of a civil notice of appeal apply to appeals from a juvenile court. Appellant then asserted that he had never been served with the November 3, 2014 dispositional entry in accordance with Civ.R. 58(B), making his notice of appeal timely.
{¶12} The State presently urges in response that App.R. 5(A) was amended in 2003 to add “delinquency and serious youthful offender proceedings” to the classes of cases specified in App.R. 5, which addresses delayed appeals in criminal matters, and
{¶13} However, despite our potential reassessment of the applicability of Anderson herein, we find we have jurisdiction to sua sponte grant leave for a delayed appeal where a party has filed an untimely notice of appeal in a proceeding which is subject to App.R. 5. See State v. Ronny, 8th Dist. Cuyahoga No. 102968, 2016-Ohio-3448, ¶ 20. We choose to do so at this juncture in the interest of justice, and we will thus proceed to the merits of the present appeal.
I.
{¶14} In his First Assignment of Error, appellant contends the mandatory sentencing aspеcts of
{¶15} The Ohio Supreme Court has summarized as follows: “A serious-youthful-offender disposition consists of a ‘blended’ sentence: a traditional juvenile disposition and a stayed adult sentence.
{¶16}
{¶17} Furthermore,
{¶18} Appellant in the case sub judice thus correctly maintains that because Ohio‘s serious-youthful-offender (“SYO“) statute requires the juvenile court to impose an adult sentence under thе adult sentencing statutes when choosing to impose a blended sentence, the mandatory sentencing requirements of
{¶19} It is well-established in Ohio that statutes are presumed to be constitutional unless shown beyond reasonable doubt to violate a constitutional provision. See Fabrey v. McDonald Police Dept. (1994), 70 Ohio St.3d 351, 352, 639 N.E.2d 31. Although he is not challenging the overall constitutionality of the SYO statute (see Appellant‘s Reply Brief at 2), appellant argues that the mandatory sentencing scheme in
{¶21} Thus, discretion is built into the statutory scheme, allowing juvenile judges in Ohio to consider, with certain exceptions, whether an alleged delinquent child‘s actions even warrant SYO classification and sentencing. Appellant herein nonetheless urges that the United States Supreme Court has mandated that individualized sentencing for juvenile offenders is constitutionally required despite the existence of such initial discretionary decision. See Miller v. Alabama, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012). However, we first note the discretion involved in Miller was primarily the prosecutor‘s choice under the Alabama statute “to seek removal of the case to adult court,” to which the juvenile court could agree or disagree. See id. at 2462, citing
{¶22} Accordingly, we find no Eighth or Fourteenth Amendment constitutional violations resulting from appellant‘s SYO sentencing pursuant tо
II.
{¶23} In his Second Assignment of Error, appellant contends he was deprived of the effective assistance of trial counsel. We disagree.
{¶24} Our standard of review for ineffective assistаnce claims is set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Ohio adopted this standard in the case of State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. These cases require a two-pronged analysis in reviewing a claim for ineffective assistance of counsel. First, we must determine whether counsel‘s assistance was ineffective; i.e., whether counsel‘s pеrformance fell below an objective standard of
{¶25} Appellant specifically argues he was deprived of his right to the effective assistance of counsel when his trial counsel failed to raise objections to the mandatory nature of the blended sentence. However, based on our conclusions in rеgard to appellant‘s first assigned error, we find he has failed to demonstrate a reasonable probability of success had the constitutional claims been raised by trial counsel, making further analysis of the ineffective assistance issue moot. Cf. State v. Allen, 8th Dist. Cuyahoga No. 97820, 2013-Ohio-258, ¶ 15.
{¶27} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Juvenile Division, Coshocton County, Ohio, is hereby affirmed.
By: Wise, J.
Gwin, P. J., and
Baldwin, J., concur.
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