In re E.S.

2014 Ohio 2969

• Court: Ohio Court of Appeals
• Decided: July 3, 2014
• Docket: L-13-1217, L-13-1218
• Status: Published

Opinion

[Cite as In re E.S., 2014-Ohio-2969.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

In re E.S. Court of Appeals Nos. L-13-1217 L-13-1218

Trial Court Nos. DL 13234295 DL 09191581

DECISION AND JUDGMENT

Decided: July 3, 2014

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Maggie Koch, Assistant Prosecuting Attorney, for appellee.

Timothy Young, State Public Defender, and Brooke M. Burns, Assistant State Public Defender, for appellant.

YARBROUGH, P.J.

I. Introduction

{¶ 1} Appellant, E.S., appeals the judgment of the Lucas County Court of

Common Pleas, Juvenile Division, adjudicating him delinquent on an attempted burglary charge and an attendant violation of his supervised release. For the following reasons, we

affirm.

A. Facts and Procedural Background

{¶ 2} On February 27, 2009, the state filed a complaint alleging that E.S. was

delinquent of one count of gross sexual imposition in violation of R.C. 2907.05(A)(4).

E.S. was ultimately adjudicated delinquent of the charge and placed on probation. His

probation was subsequently revoked and he was committed to the Ohio Department of

Youth Services (DYS) for a minimum period of 6 months, up to his 21st birthday. After

completing his minimum term, E.S. was eventually released by the DYS release authority

on supervised release.

{¶ 3} Ten months after his release, another complaint was filed against E.S.,

alleging that he was delinquent of one count of burglary in violation of R.C. 2911.12(A).

E.S. entered an admission to attempted burglary on August 14, 2013, and was

subsequently adjudicated delinquent on the attempted burglary charge. Additionally, the

juvenile court found E.S. violated the terms of his supervised release from the 2009 case.

Consequently, E.S. was adjudicated delinquent on the supervised release violation.

{¶ 4} As a result of his delinquency, E.S. was committed to DYS for a minimum

period of six months for the attempted burglary, to run consecutive to a 90-day

commitment for the violation of his supervised release. E.S. has timely appealed the

juvenile court’s adjudications.

2. B. Assignments of Error

{¶ 5} On appeal, E.S. assigns the following errors for our review:

ASSIGNMENT OF ERROR I: The Lucas County Juvenile Court

committed plain error when it ordered E.S. to serve a 90-day commitment

for a violation of his supervised release (parole).

ASSIGNMENT OF ERROR II: The Lucas County Juvenile Court

erred when it ordered that E.S.’s commitment for a parole revocation be

served consecutively to a new commitment to DYS.

ASSIGNMENT OF ERROR III: Trial counsel rendered ineffective

assistance by failing to object to E.S.’s illegal commitment for a parole

revocation and unlawful consecutive commitments to DYS.

II. Analysis

{¶ 6} In each of E.S.’s assignments of error, he challenges the juvenile court’s

imposition of sentence following his delinquency adjudications. In his first assignment,

he argues that the court imposed an improper minimum sentence by ordering him to serve

a 90-day minimum rather than a 30-day minimum. In his second assignment, he asserts

that the juvenile court erroneously imposed consecutive sentences. In his third

assignment of error, E.S. contends that his trial counsel was ineffective for failing to

object to the imposition of those sentences. Because the assignments are interrelated, we

will address them simultaneously.

3. {¶ 7} We review a juvenile court’s disposition order for an abuse of discretion. In

re D.S., 111 Ohio St.3d 361, 2006-Ohio-5851, 856 N.E.2d 921. The term “abuse of

discretion” connotes that the court’s attitude was unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

{¶ 8} At the outset, we note that the issues E.S. raises on appeal are identical to

those at issue in the recent Ohio Supreme Court decision in In re H.V., 138 Ohio St.3d

408, 2014-Ohio-812, 7 N.E.2d 1173. While the Supreme Court’s decision had already

been released by the time E.S. filed his appellate brief, its precedential value was unclear

due to a motion for reconsideration that was pending before the court. That motion has

since been denied. Thus, In re H.V. will govern our disposition of this appeal.

{¶ 9} In In re H.V., the Ohio Supreme Court was first tasked with resolving

“whether a juvenile court has the authority under R.C. 5139.52(F) to commit a delinquent

juvenile to the ODYS for a minimum period in excess of 30 days for a violation of

supervised release.” Id. at ¶ 10. R.C. 5139.52(F) provides, in relevant part:

If a child who is on supervised release is arrested under an order of

apprehension, under a warrant, or without a warrant as described in division

(B)(1), (B)(2), or (C) of this section and taken into secure custody, and if a

motion to revoke the child’s supervised release is filed, the juvenile court of

the county in which the child is placed promptly shall schedule a time for a

hearing on whether the child violated any of the terms and conditions of the

4. supervised release. If a child is released on supervised release and the

juvenile court of the county in which the child is placed otherwise has

reason to believe that the child has not complied with the terms and

conditions of the supervised release, the court of the county in which the

child is placed, in its discretion, may schedule a time for a hearing on

whether the child violated any of the terms and conditions of the supervised

release. * * * If the court of the county in which the child is placed on

supervised release conducts a hearing and determines at the hearing that the

child violated one or more of the terms and conditions of the child’s

supervised release, the court, if it determines that the violation was a serious

violation, may revoke the child’s supervised release and order the child to be

returned to the department of youth services for institutionalization or, in

any case, may make any other disposition of the child authorized by law that

the court considers proper. If the court orders the child to be returned to a

department of youth services institution, the child shall remain

institutionalized for a minimum period of thirty days, the department shall

not reduce the minimum thirty-day period of institutionalization for any time

that the child was held in secure custody subsequent to the child’s arrest and

pending the revocation hearing and the child’s return to the department, the

release authority, in its discretion, may require the child to remain in

institutionalization for longer than the minimum thirty-day period, and the

5. child is not eligible for judicial release or early release during the minimum

thirty-day period of institutionalization or any period of institutionalization

in excess of the minimum thirty-day period.

{¶ 10} H.V. argued that the statute authorized the juvenile court to recommit a

delinquent juvenile to DYS, but did not allow the juvenile court to specify the term of

such commitment. In re H.V. at ¶ 10. Rather, H.V. contended, only DYS had the

authority to extend the commitment beyond the 30-day period specified in R.C.

5139.52(F). Id. The Supreme Court disagreed.

{¶ 11} With respect to R.C. 5139.52(F), the Supreme Court stated:

This provision clearly means that the ODYS is prohibited from

releasing a returning violator for 30 days. The statute speaks only to the

minimum period of institutionalization. It clearly vests the ODYS with the

authority to increase the judge’s original sentence * * * but there is no

indication in this section that the juvenile court is limited in the amount of

time that it may impose under this provision. Nothing in the statute, or

common sense, supports the proposition that the judge is limited to ordering

a maximum 30-day commitment to the ODYS. Our reading of the statute is

further supported by the final clause that specifically prohibits the granting

of judicial release or early release “during the minimum thirty-day period of

institutionalization or any period of institutionalization in excess of the

minimum thirty-day period.” It makes no sense to include this clause in the

6. statute if the legislature intended to vest the release authority with exclusive

authority to determine whether the juvenile should be held for a period

beyond the minimum 30 days. (Emphasis sic.) Id. at ¶ 12.

{¶ 12} Ultimately, the Supreme Court held that “a juvenile court is within its

statutory authority under R.C. 5139.52(F) to commit a juvenile for a period exceeding the

30-day minimum set forth in the statute.” Id. at ¶ 16.

{¶ 13} In support of his first assignment of error, E.S. makes the same arguments

that were rejected by the Supreme Court in In re H.V. In light of the Supreme Court’s

holding, we find E.S.’s first assignment of error not well-taken.

{¶ 14} The second issue that was resolved by the Supreme Court in In re H.V.,

which is identical to the issue underlying E.S.’s second assignment of error, was

“whether a juvenile court may order a commitment term for a supervised-release

violation to be served consecutively to a commitment term for a new crime.” Id. at ¶ 17.

With respect to this issue, H.V. argued that R.C. 2152.17(F) did not apply to him because

the statute only governed the imposition of consecutive sentences for multiple felony

offenses. The Supreme Court agreed with H.V. that R.C. 2152.17(F) did not authorize

the juvenile court to order the commitment period for a violation of H.V.’s supervised

release to be served consecutive to the commitment period imposed for the new felony.

However, the court concluded that the sentence was permissible under R.C.

7. 2152.19(A)(8).1 Id. at ¶ 21 (“the juvenile court was within its statutory authority * * * to

order H.V. to serve the imposed term of commitment for his supervised-release violation

consecutively to the imposed term of commitment for his new crime”).

{¶ 15} E.S. makes the same argument before this court that was previously

advanced by H.V. concerning the juvenile court’s imposition of consecutive sentences.

Because the Supreme Court has already determined that consecutive sentences are

permissible in this context, we find that the trial court did not abuse its discretion in

imposing consecutive sentences.

{¶ 16} Accordingly, E.S.’s second assignment of error is not well-taken.

{¶ 17} In his final assignment of error, E.S. argues that his trial counsel was

ineffective for failing to object to the juvenile court’s imposition of sentence.

{¶ 18} To support a claim for ineffective assistance of counsel, E.S. must satisfy

the two-prong test developed in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). That is, he must show that counsel’s performance fell

below an objective standard of reasonableness, and a reasonable probability exists that

1 R.C. 2152.19(A)(8) provides:

(A) If a child is adjudicated a delinquent child, the court may make any of the following orders of disposition, in addition to any other disposition authorized or required by this chapter:

***

(8) Make any further disposition that the court finds proper, * * *.

8. but for counsel’s error, the result of the proceedings would have been different. Id. at

687-688, 694.

{¶ 19} We have already concluded that the juvenile court did not err in ordering

E.S. committed to DYS for a minimum term of 90 days and ordering that sentence served

consecutive to the commitment for the underlying offense. Therefore, we find that E.S.

has failed to demonstrate that his trial counsel was unreasonable for failing to object to

the juvenile court’s imposition of sentence. Further, we conclude that E.S. was not

prejudiced by counsel’s performance.

{¶ 20} Accordingly, E.S.’s third assignment of error is not well-taken.

III. Conclusion

{¶ 21} Based on the foregoing, the judgment of the Lucas County Court of

Common Pleas, Juvenile Division, is affirmed. Costs are hereby assessed to E.S. in

accordance with App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

9. In re E.S. C.A. Nos. L-13-1217 L-13-1218

Thomas J. Osowik, J. _______________________________ JUDGE Stephen A. Yarbrough, P.J. _______________________________ James D. Jensen, J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.

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