{¶ 3} Three days after the warrant to arrest was issued, July 10, 2005, appellant broke into the home of Karen Linder at 257 Douglas Street, Mt. Gilead, Ohio. He stole a cell phone. A month later, on August 9, 2005, appellant committed a Felonious Assault in the city of Mount Vernon, Ohio. Appellant remained at large on the probation violation warrant until his arrest on December 4, 2005. Appellant was also charged with resisting at the time of his arrest.
{¶ 4} On August 19, 2005, a complaint was filed in the Knox County Juvenile Court alleging appellant was a delinquent child for committing felonious assault, a felony of the second degree if committed by an adult, in violation of R.C.
{¶ 5} On August 25, 2005, the Morrow County Grand Jury returned an indictment alleging appellant committed the offense of burglary, a felony of the second degree if committed by an adult in violation of R.C.
{¶ 6} On December 4, 2005 a detention hearing was held. The Court noted that the detention was due to the warrant issued on July 7, 2005. The State informed the Court that the appellant had absconded from the jurisdiction, failed to attend court hearings, failed to report in to his probation officer, and had beеn charged with two felonies and a misdemeanor while on probation and said offenses had occurred after the warrant was issued. The Court ordered that the juvenile remain in detention pending further hearings on the matter.
{¶ 7} On January 12, 2006 the court held an additional detention hearing and a dispositional hearing in Case Number 2005JD11190. The court ordered that appellant serve a period of ninety days in the juvenile detention center in that case number. [T. Change of Plea, January 12, 2006 at 10]. The court noted: "If you are entitled to credit for the time served you will get it. If, not, then you are to serve the 90 days. . . ." [Id. at 10].
{¶ 8} On March 10, 2006, appellant admitted to one count of burglary a felony of the second degree. In exchange for this plea appellant's defense attorney negotiated the dismissal of Case No. 11443, Resisting Arrest; and Case No. 11353, Truancy.
{¶ 9} On March 31, 2006, appellant was adjudicated delinquent of felonious assault in the Knox County Juvenile Court. Because appellant resided in Morrow *4 County, the court transferred the case to the Morrow County Juvenile Court for disposition.
{¶ 10} On May 11, 2006, the Morrow County Juvenile Court held a disposition hearing. Appellant was committed to the Ohio Department of Youth Services for a minimum of one year and a maximum of age twenty-one for felonious assault; and for a minimum of one year and a maximum оf age twenty-one for burglary. The commitments were ordered to be served concurrently. In addition, appellant also received a serious youthful offender disposition for the burglary charge. The Court ordered that appellant be given a sentence of five years in the Ohio Department of Rehabilitation and Corrections. The adult portion of appellant's sentence was suspended. The court further ordered appellant committed to the juvenile detention center for 90 days on both counts, for a total of 180 days in the detention center. At the disposition hearing, the court ordered the detention center commitment suspended. However, the entry generated as a result of the hearing stated that appellant was committed to the juvenile detention center for a total of 180 days, and ordered that he receive credit for time served. Appellant was also ordered to pay court costs and restitution.
{¶ 11} Appellant timely filed a notice of appeal and sets forth the following assignments of error for our consideration:
{¶ 12} "I. OHIO REVISED CODE SECTION
{¶ 13} "II. THE JUVENILE COURT ERRED WHEN IT FAILED TO MAKE THE PROPER FINDINGS TO IMPOSE A DISCRETIONARY SERIOUS YOUTHFUL OFFENDER SENTENCE UPON TRACY SEAVOLT, IN VIOLATION OF R.C.
{¶ 14} "III. THE JUVENILE COURT ERRED WHEN IT IMPOSED UPON TRACY SEAVOLT A COMMITMENT TO BOTH THE OHIO DEPARTMENT OF YOUTH SERVICES AND THE JUVENILE DETENTION CENTER, IN VIOLATION OF R.C.
{¶ 15} "IV. THE JUVENILE COURT ERRED WHEN IT FAILED TO CREDIT THE DAYS TRACY SEAVOLT WAS HELD IN THE LOGAN COUNTY AND MARION COUNTY JUVENILE DETENTION CENTERS TOWARD THE BALANCE OF HIS COMMITMENT TO THE OHIO DEPARTMENT OF YOUTH SERVICES IN VIOLATION OF R.0 2152.18(B).
{¶ 16} "V. THE TRIAL COURT ERRED WHEN IT FAILED TO HOLD A HEARING TO DETERMINE WHETHER TRACY SEAVOLT WAS ABLE TO PAY THE SANCTIONS IMPOSED BY THE JUVENILE COURT AND WHEN IT FAILED TO CONSIDER COMMUNITY SERVICE IN LIEU OF THE FINANCIAL SANCTION IN VIOLATION OF R.C.
{¶ 17} "VI. TRACY SEAVOLT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND *6
{¶ 19} A serious youthful offender is subject to a sentence prescribed under both juvenile and adult sentencing guidelines. R.C.
{¶ 20} "If a child is adjudicated a delinquent child for committing an act under circumstances that allow, but do not require, the juvenile court to impose on the child a serious youthful offender dispositional sentence under section
{¶ 21} "(i) If the juvenile court on the record makes a finding that, given the nature and circumstances of the violation and the history of the child, the length of time, level of security, and types of programming and resources available in the juvenile *7
system alone are not adequate to provide the juvenile court with a reasonable expectation that the purposes set forth in section
{¶ 22} "(ii) If a sentence is imposed under division (D) (2) (a) (i) of this section, the juvenile court also shall impose upon the child one or more traditional juvenile dispositions under sections
{¶ 23} Further, under R.C.
{¶ 24} R.C.
{¶ 25} "(A) The overriding purposes for dispositions under this chapter are to provide for the care, protection, and mental and physical development of children subject to this chapter, protect the public interest and safety, hold the offender accountable for the offender's actions, restore the victim, and rehabilitate the offender".
{¶ 26} Thus, R.C.
{¶ 27} After exercising its discretion to impose a blended juvenile/adult sentence on a serious youthful offender, "[t]he juvenile court shall stay the adult portion of the serious youthful offender dispositional sentence pending the successful completion of the traditional juvenile dispositions imposed." R.C.
{¶ 28} Appellant asserts that the juvenile court imposed the blended juvenile/adult sentence after making findings under R.C.
{¶ 29} This same argument was considered in In re J.B., 12th Dist. No. CA 2004-09-226, which was decided afterBlakely but before Foster. The court in In re J.B. reasoned: "[a]ppellant's right to a jury trial was not violated due to the juvenile court judge making the finding in R.C.
{¶ 30} In the case of In re: Strum, the Court of Appeals for the Fourth District stated: "We find the reasoning in In re J.B. persuasive and adopt it here. Once the jury found Sturm guilty of murder, he was automatically subject to a blended sentence. The juvenile court's findings in R.C.
{¶ 31} At least one court outside of Ohio has reached a similar result. The New Mexico Court of Appeals in State v. Gonzales (2001),
{¶ 32} "The second difference between the Section 32A-2-20(B) findings and the elements of a crime is in the nature of the findings. The determination of a child's *12 prospects for rehabilitation is a cоmplicated and difficult question that requires consideration of a child's environment, age, maturity, past behavior, and predictions of future behavior as well as specifics of the offense as they relate to the prospects of rehabilitation. Unlike the finding that a child has committed a criminal offense, the finding that a child is not amenable to treatment as a child within the juvenile system requires a predictive, more than historical, analysis.
{¶ 33} "As such, a finding of non-amenability is different in nature from the type of findings discussed in Apprendi". Id. at 348,
{¶ 34} The court in Gonzales concluded: "[w]hile a finding of non-amenability and ineligibility for commitment may expose a youthful offender to a longer period of deprivation of liberty than is possible under the Children's Code, only two factual findings are required to expose a child to the possibility of adult sentencing: (1) the child's age at the time of the offense and (2) the jury's verdict or a plea of guilty to a specifically enumerated felony or to any felony, provided it is in fact the child's fourth felony in three years . . . Therefore, at the time the child pleads or is adjudicated guilty of an offense, the range of possible sentences is fixed. In this case, the finding of non-amenability and ineligibility for commitment did not expose the Defendant to a first degree sentence for a second degree crime as was the case in Apprendi". Id. at 350,
{¶ 35} We find the reasоning of the above-citied cases persuasive and adopt it here. The juvenile court's findings in R.C.
{¶ 37} R.C.
{¶ 38} "[G]iven the nature and circumstances of the violation and the history of the child, the length of time, level of security, and types of progrаmming and resources available in the juvenile system alone are not adequate to provide the juvenile court with a reasonable expectation that the purposes set forth in section
{¶ 39} If the juvenile court imposes a serious youthful offender sentence under R.C.
{¶ 40} The overriding purposes for juvenile dispositions, as stated in R.C.
{¶ 41} Additionally, R.C.
{¶ 42} "The juvenile disposition statutes do not exist merely to punish children and prevent future crime [.]" In re Chappell,
{¶ 43} In the case at bar, the trial court had both a pre-sentence investigation report and a predisposition investigation report. (Sent. T. April 19, 2006 at 3). Pursuant to its discretion under R.C.
{¶ 44} The record in the case at bar does not establish that the court considered all of the factors in R.C.
{¶ 45} Although the court may well have had information relative to the factors in R.C.
{¶ 46} Because the record indicates the court did not evaluate each of the elements contained in the statute on the record, we conclude that the disposition with respect to the serious youthful offender sentence, on the authority contained in Section
{¶ 47} Accordingly, we sustain appellant's second assignment of error.
{¶ 49} R.C.
{¶ 50} "(A)(1) If a child is adjudicated a delinquent child for committing an act that would be a felony if сommitted by an adult, the juvenile court may commit the child to the legal custody of the department of youth services for secure confinement as follows:
{¶ 51} "(d) If the child is adjudicated a delinquent child for committing an act that is not described in division (A) (1) (b) or (c) of this section and that would be a felony of the first or second degree if committed by an adult, for an indefinite term consisting of a *17 minimum period of one year and a maximum period not to exceed the child's attainment of twenty-one years of age".
{¶ 52} While it is not uncommon for a court to order a commitment to the Department of Youth Services suspended upon the condition that the juvenile complete a lesser period of detention in a juvenile detention center there appears to be no authority for the court to impose two separate commitments for a single criminal offense. By imposing such a sentence on appellant, the court erased ninety days of potential credit for time served on each case which would shorten appellant's commitment to DYS on the same offenses.
{¶ 53} Although a juvenile court is authorized to impose consecutive terms of commitment upon a delinquent minor for separate delinquent acts whether or not they arise from the same set of operative facts, we find no authority for a juvenile court to impose what in essence is a consecutive sentence of commitment for the same delinquent act. See,In re Caldwell (1996),
{¶ 54} Accordingly, on the authority contained in Section
{¶ 56} Revised Code Section
{¶ 57} In the case at bar, on August 19, 2005 the appellant had several active cases in the Morrow County Juvenile Court. Of relevance to his assignment of error, appellant had pending case number 2005JU11190 [Delinquent by virtue of chronic truancy]. [T. Change of Plea, January 12, 2006 at 6]. Appellant entered an admission to that charge on March 16, 2005. [Id.]. The court requested a predisposition report be prepared and appellant was released to his mother pending disposition. [Id.]. The dispositional hearing was scheduled for April 20, 2005. [Id. at 7]. Appellant failed to appear for disposition. On July 7, 2005 an arrest warrant was issued in case number 2003JD10557. [Journal Entry, filed December 12, 2005]. In that case appellant was on probation. [Journal Entry, filed December 12, 2005]. The burglary and felonious assault charges that make up the present appeal occurred prior to appellant's arrest on the outstanding warrant. Appellant was finally arrested on the warrant on December 4, *19 2005. [Journal Entry, filed December 12, 2005]. The court ordered appellant to remain in custody pending hearings on all the outstanding complaints. [Id.].
{¶ 58} On January 12, 2006 the court held an additional detention hearing and a dispositional hearing in Case Number 2005JD11190. The court ordered that appellant serve a period of ninety days in the juvenile detention center in that case number. [T. Change of Plea, January 12, 2006 at 10]. The court noted: "If you are entitled to credit for the timе served you will get it. If, not, then you are to serve the 90 days . . .". [Id. at 10].
{¶ 59} The Ohio Supreme Court has previously held that juveniles are to receive credit for "days that a juvenile is restricted to a facility pending adjudication or disposition of the delinquency complaint, or pending execution of a court order relating to that complaint." In reThomas,
{¶ 60} It appears that the appellant was not being held solely on the pending burglary and felonious assault complaints. Appellant was ordered to serve ninety days with credit for time served in detention on January 12, 2006 in Case No. 2005JD11190. Accordingly, appellant is not entitled to double credit, i.e. сredit toward his ninety day commitment in Case No. 2005JD11190 and the same ninety day credit toward his DYS commitment. However appellant is entitled to credit for any days spent in detention after the expiration of his ninety day commitment in Case No. 2005JD11190 toward balance of his commitment to the Department of Youth Services.
{¶ 61} Accordingly, appellant's fourth assignment of error is sustained. On the authority contained in Section
{¶ 63} R.C.
{¶ 64} "(2) Require the child to pay costs . . .
{¶ 65} "(3) Unless the child's delinquent act or juvenile traffic offense would be a minor misdemeanor if committed by an adult or could be disposed of by the juvenile *21 traffic violations bureau serving the court under Traffic Rule 13.1 if the court has established a juvenile traffic violatiоns bureau, require the child to make restitution to the victim of the child's delinquent act or juvenile traffic offense or, if the victim is deceased, to a survivor of the victim in an amount based upon the victim's economic loss caused by or related to the delinquent act or juvenile traffic offense. The court may not require a child to make restitution pursuant to this division if the child's delinquent act or juvenile traffic offense would be a minor misdemeanor if committed by an adult or could be disposed of by the juvenile traffic violations bureau serving the court under Traffic Rule 13.1 if the court has established a juvenile traffic violations bureau. If the court requires restitution under this division, thе restitution shall be made directly to the victim in open court or to the probation department that serves the jurisdiction or the clerk of courts on behalf of the victim.
{¶ 66} "(C) The court may hold a hearing if necessary to determine whether a child is able to pay a sanction under this section.
{¶ 67} "(D) If a child who is adjudicated a delinquent child is indigent, the court shall consider imposing a term of community service under division (A) of section
{¶ 68} In In re: McClanahan, 5th Dist. No. 2004AP010004,
{¶ 69} Accordingly, the trial court is not mandated to hold a hearing before it may impose financial sanctions against an indigent juvenile. Nor does the statute mandate that the court impose community control sanctions upon an indigent juvenile; rather the statutes direct the court to "consider" imposing a community control sanction. In contrast to R.C.
{¶ 70} In light of our disposition of appellant's second assignment of error vacating the serious youthful offender sentence and remanding the matter to the trial court to conduct a new hearing, appellant can move the trial court to hold a hearing before it imposes financial sanctions against him. It is within the court's discretion to hold such a hearing; however the court can consider imposing community service in lieu of sanctions when the child being sentenced is indigent.
{¶ 71} Accordingly, appellant's fifth assignment of error is sustained in part. On the authority сontained in Section
{¶ 73} Appellant's claim of ineffective assistance of trial counsel simply requires that he demonstrate two things: deficient performance by trial counsel, and prejudice from trial counsel's deficient performance. Strickland, supra at 687; Hodge v. Hurley (6th Cir 2005),
{¶ 74} To satisfy the prejudice prong, appellant had to demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
{¶ 75} In light of our disposition of appellant's assignments of error remanding this mаtter to the trial court, we overrule appellant's sixth assignment of error because appellant cannot show that he was prejudiced by counsel's performance. *24
{¶ 76} For the foregoing reasons, the judgment of the Morrow County Court of Common Pleas, Juvenile Division is affirmed in part and reversed in part and this case is remanded to the trial court for further proceedings consistent with this Opinion.
*25Gwin, P.J., Farmer, J., and Edwards, J., concur.