Matter of Brown, Unpublished Decision (5-10-1999)
Matter of Brown, Unpublished Decision (5-10-1999)
Opinion of the Court
Sarah L. Brown appeals her delinquency adjudications and assigns the following errors:
I. "THE TRIAL COURT'S ACCEPTANCE OF AN ADMISSION FROM A CHILD, WITHOUT DETERMINING WHETHER THE ADMISSION WAS MADE WITH AN UNDERSTANDING OF THE ALLEGATIONS AND THE CONSEQUENCES OF ADMISSION, WAS PREJUDICIAL ERROR, RENDERING THE PLEA NOT VOLUNTARY, KNOWING AND INTELLIGENT, IN VIOLATION OF THE CHILD'S RIGHTS TO DUE PROCESS OF LAW UNDER THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION SIXTEEN OF THE OHIO CONSTITUTION AND OHIO JUVENILE RULE 29."II. "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING TO FULLY INFORM THE ALLEGED DELINQUENT CHILD OF THE NATURE OF THE CHARGES AGAINST HER AND OF THE CONSEQUENCES OF ENTERING A PLEA OF ADMISSION IN VIOLATION OF THE CHILD'S RIGHTS TO DUE PROCESS OF LAW UNDER THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION SIXTEEN OF THE OHIO CONSTITUTION AND OHIO JUVENILE RULE 29."III. "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING TO FULLY INFORM THE ALLEGED DELINQUENT CHILD OF HER RIGHTS TO CHALLENGE THE WITNESSES AND EVIDENCE AGAINST HER, THE RIGHT TO REMAIN SILENT, AND THE RIGHT TO INTRODUCE EVIDENCE AT AN ADJUDICATORY HEARING IN VIOLATION OF THE CHILD'S RIGHTS TO DUE PROCESS OF LAW UNDER THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION SIXTEEN OF THE OHIO CONSTITUTION AND OHIO JUVENILE RULE 29."IV. "THE TRIAL COURT'S ACCEPTANCE OF AN ADMISSION FROM A CHILD, WITHOUT FULLY INFORMING THE ALLEGED DELINQUENT CHILD OF HER RIGHTS TO CHALLENGE THE WITNESSES AND EVIDENCE AGAINST HER, THE RIGHT TO REMAIN SILENT, AND THE RIGHT TO INTRODUCE EVIDENCE AT AN ADJUDICATORY HEARING WAS PREJUDICIAL ERROR, IN VIOLATION OF THE CHILD'S RIGHTS TO DUE PROCESS OF LAW UNDER THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE SECTION SIXTEEN OF THE OHIO CONSTITUTION AND OHIO JUVENILE RULE 29."V. "THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY FAILING TO NOTIFY THE APPELLANT OF HER RIGHT TO APPEAL THE DISPOSITIONAL ORDER OF THE COURT FINDING HER TO BE A DELINQUENT CHILD IN VIOLATION OF JUVENILE RULE 34(J), RESULTING IN A DEPRIVATION OF APPELLANT'S RIGHTS TO DUE PROCESS, DEPRIVING THE CHILD OF HER LIBERTY AND ABRIDGING HER RIGHT TO COUNSEL."
VI. "THE TRIAL COURT VIOLATED THE APPELLANT'S RIGHT TO A SEPARATE DISPOSITIONAL HEARING PURSUANT TO JUVENILE RULE 34(A)."
In February, 1998, appellant was adjudicated delinquent and placed on probation. Subsequently, she was charged with numerous allegations arising from several separate incidents.1 Appellant was charged under five separate case numbers, but has appealed only two of the five cases. We suasponte consolidated her appeals and will confine our discussion to those two cases. In 98CA2598 she was charged with delinquency by receiving stolen property and escape. In 98CA2599 she was originally charged with delinquency by grand theft, but the issue in that case was her probation revocation. All five cases were disposed of at one hearing. Appellant admitted the allegations of probation revocation and escape. In exchange, the appellee dismissed the allegations of receiving stolen property. The magistrate proceeded immediately to the dispositional hearing and committed appellant to the custody of the Department of Youth Services (DYS) for a minimum period of six months or until she is twenty-one years old on each delinquency adjudication.
Juv.R. 29(D) provides in part:
"The court * * * shall not accept an admission without addressing the party personally and determining both of the following:
"(1) The party is making the admission voluntarily with understanding of the nature of the allegations 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." (Emphasis supplied)
This rule places an affirmative duty upon the juvenile court. Prior to accepting an admission, the juvenile court mustpersonally address the party before the court and determine that the party, and not merely the attorney, understands the nature of the allegations and the consequences of entering the admission. In re Beechler (1996),
Upon consideration of the record in this case, we find that the trial court substantially complied with Juv.R. 29(D)(1). After explaining appellant's constitutional rights, the magistrate then explained the consequences of the plea to appellant. He told her that she could be committed to DYS for a minimum of six months or up to the age of twenty-one, receive a fine, or both. He told her in what type of facilities she could be placed. Several times he asked appellant if she had any questions. The magistrate told appellant she was charged with escape, receiving stolen property, and revocation of probation and asked appellant if she understood "what we're talking about on that case?" She answered yes. He then asked "is that what you wish to do?" and she answered yes. Thus, the record indicates that the magistrate substantially complied with Juv.R. 29(D)(1) and the trial court did not err in accepting appellant's pleas of admission. We overrule her first and second assignments of error.
After considering the entire record in this case, we find that the trial court substantially complied with Juv.R. 29(D)(2). At the beginning of the hearing, the magistrate explained to appellant her right to a court-appointed attorney, to present witnesses, and to not testify or make a statement against herself. The appellant signed a waiver of her rights that included the right "not to testify or make any statement against myself." After reading aloud this portion of the waiver, the magistrate asked appellant if she understood the rights he had just explained to her and she answered yes. Thus, the record indicates that the magistrate substantially complied with Juv.R. 29(D)(2). The trial court did not err in accepting her admission. We overrule appellant's third and fourth assignments of error.
Although we have determined that the trial court substantially complied with Juv.R. 29 in this case, there is no practical reason for the magistrate to continue taking juvenile pleas in this manner. This court, without having the benefits of observing the juvenile's demeanor or responses, relies entirely on the written record. The better practice is for the trial court to ensure that the magistrate's compliance with Juv.R. 29 is obvious from the record, especially given the minimal extra effort needed to do so. A brief explanation of the allegations rather than a reference to the charge using legal terminology, such as "escape" or "grand theft" would ensure that the record clearly reflects that the juvenile understood the nature of the allegations. The magistrate's practice of referring to the charges by their short-hand legal name is risky. See, e.g., In re Doyle (1997),
"At the conclusion of the hearing, the court shall advise the child of the child's right to record expungement and, where any part of the proceeding was contested, advise the parties of their right to appeal."
Appellant asserts that she was prejudiced by the trial court's failure to inform her of her right to appeal because she was forced to file a pro se appeal and wait for court-appointed counsel. In spite of her lack of counsel, she was able to timely file a pro se notice of appeal, order a transcript of the proceedings, comply with the Local Rules by filing a Criminal Docketing Statement, and move for a court-appointed attorney. The trial court appointed an attorney less than a week later. Thus, appellant was not prejudiced by the trial court's failure to inform her of her right to appeal. See In re Haas (1975),
"Upon the determination of the issues, the court shall do one of the following:
* * *
(2) If the allegations of the complaint are admitted or proved, do one of the following:
(a) Enter an adjudication and proceed forthwith to disposition; or
(b) Enter an adjudication and continue the matter * * * (.)"
and Juv.R. 34(A) which states in part:
"* * * Where the dispositional hearing is to be held immediately following the adjudicatory hearing, the court, upon the request of any party, shall continue the hearing for a reasonable time to enable the party to obtain or consult counsel."
See by way of comparison Juv.R. 29(D) discussed above, which expressly requires a personal dialogue between the court and the offender.
JUDGMENT AFFIRMED.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas, Juvenile Division, to carry this judgment into execution.
Any stay previously granted by this Court is hereby terminated as of the date of this Entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Kline, P.J. and Evans, J.
Concur in Judgment Opinion:
For the Court
BY: ___________________________ William H. Harsha, Judge
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