798 N.E.2d 1206 | Ohio Ct. App. | 2003
{¶ 2} Subsequently, R. W. J. violated probation by running away from home in July, 2002. After serving a short amount of time in detention, he was placed on electronic monitoring, at his parents' home. Ultimately, the court revoked R. W. J.'s probation because he failed to obey the rules for electronic monitoring, and also failed to pay fines that had been imposed. R. W. J. was then committed to the custody of DYS for an indefinite term with a minimum period of six months and a maximum period not to exceed the age of 21.
{¶ 3} R. W. J. appeals from the order of commitment, raising the following assignment of error:
{¶ 4} It is error for the Juvenile [Court], having imposed a sentence on a delinquent juvenile and suspended that sentence, to revisit the sentencing upon the occasion of a probation violation by the juvenile to impose a new and more severe sentence.
{¶ 5} After considering the record and the applicable law, we find the assignment of error to be without merit.
{¶ 6} In contending that the trial court erred, R. W. J. points out that the court originally imposed only a six-month sentence, but then later changed the sentence to six months minimum, with a maximum commitment until age 21. This was a potential increase of about five and a half years, because R. W. J. was 15 and a half years old when his probation was revoked. R. W. J. says this was an improper increase underState v. Draper (1991),
{¶ 7} In response, the State argues that this matter is moot, because R. W. J. was released from DYS on March 23, 2003. The State does agree that the trial court could not properly impose a new and more severe sentence. However, the State argues that this did not happen in the present case, because there were no differences between the original sentence and the sentence that was imposed after the probation violation.
{¶ 8} Since the appeal must be dismissed if it is moot, we will consider that issue first. In the present case, R. W. J. does not challenge the delinquency adjudication; instead, he contests only the sentence that was imposed. Normally, this would moot the appeal, because we would not be able to order any relief. See, e.g., State v. Henson, Champaign App. No. 2002CA21, 2003-Ohio-4426, ¶ 9. However, we are unable to determine if this is the case, because we have no record of any order relating to the release. While we accept the State's representation that R. W. J. was released from DYS, we cannot tell if any conditions have been imposed, the violation of which might cause R. W. J. to be returned to the institution. See State v. Cochran (June 1, 2001), Montgomery App. No. 18424, 2001 WL 585605, *1 (holding that an appeal is not moot where a sentence is completed, if the defendant is subject to post-release control). Because the record fails to reflect the absence of release conditions that could affect R. W. J., the appeal is not moot.
{¶ 9} As for the merits of the appeal, R. W. J. claims that the court improperly increased his sentence from the six-month term originally imposed. As noted, the State agrees that the court could not properly increase the sentence, but contends that no enhancement occurred. After reviewing the record, we conclude that the sentence was altered, but we do not agree that the court erred by changing its order.
{¶ 10} In this case, the trial court filed several dispositional orders. The first was filed on September 5, 2001. At that time, the court ordered that R. W. J. be committed to the department of youth services "for a minimum of six months, suspended." The court also "continued" R. W. J. on probation, even though no prior order of probation had been filed. Neither side appealed from that order.
{¶ 11} A second dispositional order was filed on September 21, 2001. In this order, the court committed R. W. J. "to the custody of the Ohio Department of Youth Services for a term of six months." The order also suspended the commitment and placed R. W. J. on indefinite probation with the court, subject to various terms and conditions. Again, neither R. W. J. nor the State appealed.
{¶ 12} After the probation violations, the trial court filed another dispositional order, on November 5, 2002, committing R. W. J. "to the legal custody of the Department of Youth Services for institutionalization for an indefinite term consisting of a minimum period of six months and maximum period not to exceed *55 the youth's attainment of the age of twenty-one (21) years." This appeal is from that order.
{¶ 13} The first two orders are somewhat conflicting. One specifies a "minimum" term, but does not mention a maximum term, leaving the court's intent in doubt. However, the second order removes any doubt as to intent, by imposing only a six-month term. The final order conflicts with the second order, and possibly with the first, by specifying both a minimum and maximum term of commitment. As a result, R. W. J. is correct when he says that the sentence was increased.
{¶ 14} Nonetheless, after reviewing the applicable statute, we find no error in the increase or change in sentence. At the time of the original dispositional order, R.C.
{¶ 15} "[i]f a child is adjudicated a delinquent child, the court may make any of the following orders of disposition:
{¶ 16} "* * *
{¶ 17} "(2) Place the child on probation under any conditions that the court prescribes.
{¶ 18} "* * *
{¶ 19} "(4) If the child is adjudicated a delinquent child for committing an act that would be a felony of the third, fourth, or fifth degree if committed by an adult or for violating division (A) of section
{¶ 20} R. W. J.'s offense was an attempt to commit arson, which, under the circumstances of this case, would have been a fifth-degree felony, if committed by an adult. See R.C.
{¶ 21} Accordingly, to the extent the original orders purported to impose a definite term of six months, they were nullities, because imposition of a definite sentence was not authorized by statute. This also makes any failure to appeal from these orders immaterial. And, since the trial court's final dispositional order correctly imposed the indefinite term mandated by R.C.
{¶ 22} R. W. J.'s sole assignment of error is overruled. The judgment of the trial court is affirmed.
GRADY, J., and YOUNG, J., concur. *57