724 N.E.2d 1217 | Ohio Ct. App. | 1999
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *305 Appellant, the Ohio Department of Youth Services, appeals the decision of the Cuyahoga County Court of Common Pleas, Juvenile Division, which permanently enjoined appellant from obtaining a DNA sample from appellee, Steven Nicholson. Appellant assigns one error for review. This court, finding error, reverses the decision of the Juvenile Court.
On January 9, 1996, appellee, who was seventeen-years-old at the time, waived the assistance of counsel and entered an admission of delinquency for acts that, if committed by an adult, would have constituted gross sexual imposition pursuant to R.C.
On May 31, 1996, appellee was charged with being in violation of his probation. A hearing was held on July 19, 1996, wherein appellee again waived his right to counsel and admitted violating the terms of his probation. Pursuant to R.C. 2151.335, appellee was committed to the Ohio Department of Youth Services ("O. D. Y. S.") with continued sex offender treatment. Appellee was transferred to a correction center until mid-October when he was transferred to a community facility pursuant to R.C.
After his release, appellee was placed on aftercare. As O.D.Y.S. was preparing to release appellee, he received notice that he was to report to the O.D.Y.S. *306 Regional Office on March 18, 1998 to provide a blood sample for DNA identification.1 Appellee obtained counsel and filed a motion for temporary and permanent injunctive relief arguing appellee had no authority to take the DNA sample. The Juvenile Court granted temporary relief and set a hearing for March 23, 1998.
Motions were filed by the respective parties wherein appellee argued: 1) the state failed to inform appellee of the consequences of admission in violation of Juv.R. 29(D); i.e., requirement of submitting a DNA sample, 2) the DNA sample can only be taken when an individual is leaving custody pursuant to R. C.
The trial court subsequently continued the matter until April 21, 1998. At that hearing, the trial court ruled appellant could not obtain the DNA sample reasoning that appellee was not apprised of the fact he would have to give a DNA sample when he entered his admission. It did not consider the constitutionality of the statute and/or its application. Appellant timely filed this appeal.
As its sole assignment of error, appellant states the following:
I. THE TRIAL COURT ABUSED ITS DISCRETION BY ENJOINING THE OHIO DEPARTMENT OF YOUTH SERVICES FROM COLLECTING A DNA SAMPLE FROM APPELLEE STEVEN NICHOLSON. R.C.
2151.315 REQUIRES THE COLLECTION BECAUSE APPELLEE NICHOLSON WAS ADJUDICATED FOR GROSS SEXUAL IMPOSITION. (SEE MAY 6, 1998 JUDGMENT ENTRY.)
Appellant argues the trial court abused its discretion by enjoining the collection of a DNA sample from appellee for the following reasons: 1) appellee was adjudicated delinquent for committing gross sexual imposition, 2) R.C.
Juv.R. 29(D) requires the court to make a careful inquiry before accepting an admission in a juvenile case. The rule provides:
The court may refuse to accept an admission and shall not accept an admission without addressing the party personally and determining both of the following: *307
(1) The party is making the admission voluntarily with understanding of the nature of the allegation and the consequences of the admission;
(2) The party understands that by entering an admission the party is waiving the right to challenge the witnesses and evidence against the party, to remain silent, and to introduce evidence at the adjudicatory hearing.
An admission in a delinquency case is similar to a guilty plea entered by an adult in a criminal case in that it involves a waiver of the juvenile's right to challenge the allegations of the complaint and to confront witnesses. In re Christopher (1995),
As with the acceptance of a guilty plea by an adult pursuant to Crim.R. 11(C) (2), the trial court may accept a juvenile's admission only upon the court's "substantial compliance with the provisions of Juv.R. 29(D)." In re Christopher, supra, at 248. In the absence of such compliance, the adjudication must be reversed and the juvenile permitted to plead again. Id.
Before applying Juv.R. 29(D) to the facts of this case, we must first determine whether or not the issue was preserved for appeal. It is without dispute that appellee did not attempt to withdraw and/or vacate his prior admission to the offense. In such a case, it has been held that failure to request withdrawal of a guilty plea waives any error on appeal. State v. Betances (July 10, 1997), Cuyahoga App. No. 70786, unreported; State v. Stokes (March 7, 1996), Cuyahoga App. No. 69032, unreported. Hence, appellee's failure to seek a withdrawal of his admission constitutes waiver of this issue.
Notwithstanding the issue of waiver, this court will address the application of Juv.R. 29(D) to the facts of this case as argued by the parties. In this case, the trial court reasoned that since appellee was not informed that he would be subject to a DNA sample, he did not make his admission "voluntarily with understanding of the nature of the allegation and the consequences of the admission." Juv. R. 29 (D) (1). However, not only did appellee voluntarily waive counsel prior to entering his admission, but the fact that by his admission he would be required to provide a DNA sample is not a "consequence" as contemplated by Juv.R. 29(D)(1). *308
The taking of a DNA sample for identification purposes under R.C.
Accordingly, the requirement of providing a DNA sample pursuant to R.C.
Moreover, we agree with appellant in that the extraction of blood for DNA samples does not constitute an unreasonable search and seizure under the
We recognize that a "compelled intrusion into the body for blood" must be considered a
Before a DNA sample can be collected under R.C.
More importantly, however, is the fact that in the law enforcement context, the State may interfere with an individual's
Initially we note that an inmate and/or probationer has diminished constitutional rights. See, e.g., Griffin v. Wisconsin (1987),
We find the state's legitimate interest in creating a DNA identification data bank not only deters a juvenile from committing future sex offenses, but also aids the police in the investigation of past and future crimes. These are legitimate state interests which outweigh the minimally intrusive drawing of blood. See Skinner, supra;Rise v. State of Oregon, (C.A.9, 1995),
Accordingly, we find that R.C.
For all of these reasons, the trial court abused its discretion in enjoining appellant from obtaining a DNA sample from appellee. The Juvenile Court and/or O.D.Y.S. shall have jurisdiction over appellee for the limited purpose of obtaining *310 a blood sample for the DNA bank. Appellant's sole assignment of error is well taken.
Judgment reversed and entered in favor of appellant.
This cause is reversed and final judgment entered for appellant.
It is, therefore, considered that said appellant recover of said appellee its costs herein.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
_______________________________ MICHAEL J. CORRIGAN, JUDGE
SPELLACY, P. J., and ROCCO, J., CONCUR.
N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1).