In re J.C.

2021 Ohio 4313

Opinion

[Cite as In re J.C., 2021-Ohio-4313.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

IN RE J.C. :

A Minor Child : No. 110394 :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: December 9, 2021

Civil Appeal from the Cuyahoga County Common Pleas Court Juvenile Division Case No. DL-18100183

Appearances:

Eric M. Levy, for appellant.

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Demetrios Sintsirmas, Assistant Prosecuting Attorney, for appellee.

SEAN C. GALLAGHER, P.J.:

J.C. appeals the disposition ordered by the Cuyahoga County Court of

Common Pleas, Juvenile Division (“juvenile court”), invoking the Serious Youth

Offender (“SYO”) portion of a final delinquency adjudication. The imposition of the

stayed SYO sentence arose after J.C. was found to be in violation of the terms of his

supervised release from his indefinite term of custody of the Ohio Department of Youth Services (“ODYS”), based on the commission of two weapons offenses after

J.C. attained the age of majority. For the following reasons, we affirm.

In this case, J.C. was adjudicated delinquent, upon an admission of

guilt, for acts constituting the crime of burglary under R.C. 2911.12(A)(2). The trial

court imposed a sentence of three years based on the SYO specification that included

notification of the mandatory three-year period of postrelease control, all of which

were stayed pending service of the juvenile disposition. After making the related

findings, the juvenile court committed J.C. to the custody of ODYS for an indefinite

term consisting of a minimum term of 12 months and a maximum term not to exceed

J.C.’s 21st birthday. J.C. did not timely appeal the delinquency adjudication or the

stayed sentenced under the SYO specification as permitted under R.C.

2152.13(D)(3).

Following service of the minimum term, ODYS released J.C. on

parole, referred to also as supervised release. During that period of time, and after

J.C. had attained the age of majority, J.C. committed two felony weapons offenses:

improperly handling a firearm in a motor vehicle and having a weapon while under

disability, respectively felonies of the fourth and third degree. In the general division

case arising from that separate felony indictment, the trial court sentenced J.C. to

serve 12 months in prison with a three-year discretionary term of postrelease

control. During the pending felony case, and shortly after J.C.’s arrest under the

felony charges, the state filed a motion to invoke the SYO dispositional sentence. At

that time and throughout the ensuing proceedings, J.C. had not aged out of the juvenile court’s jurisdiction. J.C. appeals from the trial court’s order invoking the

SYO sentencing.

In the first assignment of error, J.C. claims that the trial court lacked

authority to impose the suspended SYO sentence because the trial court considered

J.C.’s conduct at the time of his committing the felony weapons offenses, the

underlying violation of the conditions of his parole, instead of J.C.’s status at the

time of the hearing. J.C. claims that R.C. 2152.14, which provides the juvenile court’s

authority to impose the stayed SYO sentence, is presented in the present tense, and

therefore, the trial court must only consider conduct and the juvenile’s status

contemporaneous with the hearing.

According to J.C., by the time the juvenile court conducted the

hearing on the state’s motion to invoke the SYO sentence, J.C. had already pleaded

guilty to the criminal conduct in the general division felony case, and therefore, the

juvenile court could not conclude as a matter of law that the factors under R.C.

2152.14 existed. (For example, the court could not conclude that criminal charges

were actively pending against J.C. at the time of the hearing.) In addition, J.C.

argues in this appeal that at the time he was arrested and held in custody on the

felony offense as an adult, J.C. could no longer be considered to be serving the

juvenile portion of his sentence because J.C. was detained under the felony case. We

find no merit to claims advanced in the first assignment of error.

The state may seek to invoke the SYO dispositional sentence if the

juvenile is at least 14 years of age, is serving the juvenile portion of the SYO dispositional sentence, and is on “parole or aftercare” from an ODYS facility. R.C.

2152.14(B). If the state files a motion, the juvenile court may invoke the stayed SYO

sentence if it finds by clear and convincing evidence, that (1) the juvenile “is” serving

the juvenile portion of the SYO dispositional sentence; (2) the juvenile is at least 14

years old and has been admitted to an ODYS facility, or criminal charges “are

pending” against the person; and (3) the juvenile’s conduct demonstrates that the

person is unlikely to be rehabilitated during the remaining period of the juvenile

jurisdiction. R.C. 2152.14(E).

In this case, J.C. was on active parole from the indefinite term of

ODYS’s custody under the juvenile portion of the SYO dispositional sentence. J.C.

was not released from parole until the juvenile court journalized its entry invoking

the SYO dispositional sentence following the hearing. At all times, up to and

including the hearing, J.C. was serving the juvenile portion of the SYO dispositional

sentence. The juvenile portion of the sentence was not terminated solely based on

J.C.’s being arrested and detained on the new felony charges. Further, R.C.

2152.14(B) expressly contemplates the invocation of the SYO dispositional sentence

during the juvenile offender’s parole from the indefinite custody.

With respect to J.C.’s claim that the juvenile court could not conclude

that there were pending criminal charges at the time the juvenile court conducted

the SYO invocation hearing since the general division court had already sentenced

him and, therefore, there were no “pending” criminal charges for the purposes of

R.C. 2152.14(E)(1)(b), that is but one alternative under this particular subdivision. R.C. 2152.14(E)(1)(b) provides, as one of the three required findings in order to

impose the stayed SYO dispositional sentence, that the juvenile court must find by

clear and convincing evidence that “[t]he person is at least fourteen years of age and

has been admitted to a department of youth services facility, or criminal charges are

pending against the person.” Thus, as a matter of statutory construction, there are

two alternative conditions under subdivision (E)(1)(b): either criminal charges are

pending or the person is at least 14 years old and “has been admitted to a department

of youth services facility.” We need not consider J.C.’s argument with respect to the

pending criminal charges. J.C. was at least 14 years of age and had been admitted

to an ODYS facility under a plain reading of the subdivision.

Generally, the legislature uses the phrases “has been admitted,” “has

been convicted,” or “has been arrested” in the past tense. See, e.g., State v. Cole, 94

Ohio App.3d 629, 634, 641 N.E.2d 732 (1st Dist.1994); State ex rel. White v. Billings,

12th Dist. Clermont No. CA2006-09-072, 2007-Ohio-4356, ¶ 26; R.C.

2919.27(B)(3); State v. Hudson, 2013-Ohio-647, 986 N.E.2d 1128, ¶ 34 (3d Dist.)

(“the statute used both present and past tense verbs to describe the convicted sex

offenders; to wit: ‘[n]o person who has been convicted of, is convicted of, has

pleaded guilty to, or pleads guilty to [specified categories of sexual offenses] * * *.”).

Thus, the fact that J.C. was in the custody of ODYS at a juvenile facility for the one-

year minimum term, a finding of fact noted at the hearing and in the final disposition

invoking the SYO sentence, satisfies the second requirement without needing to

demonstrate that pending charges existed. Inasmuch as one could claim that the legislature meant R.C.

2152.14(E)(1)(b) as prospective in nature, so that the person must be admitted to an

ODYS facility at the time of the hearing, a plain reading of the statutory section

dispels such an interpretation. Under R.C. 2152.14(A)(1)(b), the legislature has

demonstrated its awareness of the language needed to create a present tense

condition: “the person is in the institutional custody * * * of the department of youth

services.” See also Hudson at ¶ 34. Had the legislature intended for R.C.

2152.14(E)(1)(b) to be prospective in nature, i.e., that the person was returned to the

ODYS facility at the time of the SYO invocation hearing, it would have drafted the

statute using phrasing similar to subdivision (A)(1)(b).

In this case, it is undisputed that J.C. was “at least fourteen years of

age” and “has been admitted to” an ODYS facility under the juvenile portion of the

SYO dispositional sentence. J.C. was on parole or supervised release from his

indefinite term of custody at the ODYS facility, satisfying the requirement of R.C.

2152.14(E)(1)(b). In light of the shift in the language under R.C. 2152.14(B)(1)(b) to

a term describing the admission to the facility in the past tense and J.C.’s lack of

discussion of that alternative, we find no merit to the claim that the juvenile court

was unable to find by clear and convincing evidence the factual basis satisfying the

requirements under R.C. 2152.14(E). App.R. 16(A)(7).

And finally, throughout the hearing, the juvenile court explained the

basis for its conclusion that the record clearly and convincingly demonstrated that

J.C. was unlikely to be rehabilitated during the remaining period of the juvenile court’s jurisdiction. The primary reasons provided by the juvenile court at the

hearing was J.C.’s extensive criminal history and the fact of his recidivism upon

being released from ODYS’s custody while on parole from that indefinite sentence.

There is no requirement that the juvenile court use the express language of R.C.

2152.14(E)(1)(c) in rendering its findings of facts. See, e.g., State v. Bonnell, 140

Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 33. We find no merit to the claim

that the trial court was unable to conclude by clear and convincing evidence that J.C.

was unlikely to be rehabilitated during the remaining period of the juvenile court’s

jurisdiction over his person.

The first assignment of error is overruled.

In the second assignment of error, J.C. claims that he was denied

effective assistance of counsel because his mental illness was not raised or

considered before the trial court invoked the SYO dispositional sentence.

With respect to evidence to be considered at the invocation hearing,

R.C. 2152.14(D) provides in pertinent part, that “[i]f the person presents evidence

that the person has a mental illness or intellectual disability, the juvenile court shall

consider that evidence in determining whether to invoke the adult portion of the

serious youthful offender dispositional sentence.” Thus, the statute provides a

condition precedent to the court’s mandatory obligation to consider the person’s

mental illness or intellectual disability that the person first present evidence of such

at the hearing. Neither J.C. nor his counsel of record presented any evidence of J.C.’s mental illness at the SYO invocation hearing conducted in accordance with

R.C. 2152.14(D).

“[A]ppellate courts generally review ineffective assistance of counsel

claims on a de novo basis * * *.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-

6679, 860 N.E.2d 77, ¶ 53. In order to prevail on an ineffective assistance of counsel

claim, the defendant must show that his trial counsel’s performance was deficient

and that the deficient performance prejudiced the defense. Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8, ¶ 49. “[A] court must

indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance * * *.” Strickland at 689. To establish prejudice,

the defendant must demonstrate there is a “reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694.

In this case, J.C. focuses on the first prong, whether his counsel’s

performance was deficient, but J.C. fails to argue, much less demonstrate, that he

was prejudiced by the deficient performance. On this alone, the second assignment

of error is overruled. App.R. 16(A)(7). Nevertheless, the record indicates that J.C.’s

mental health was evaluated and considered by the juvenile court throughout the

proceedings. It is important to note that J.C. is not claiming a change to his mental

health status that coincided with his commission of the felony crimes, only that the

prior information considered by the juvenile court should be reevaluated in light of the invocation of the SYO dispositional sentence. Under these circumstances, we

cannot conclude that J.C. was prejudiced by any failure to reintroduce facts and

evidence already considered by the juvenile court; namely, J.C.’s addiction to

marijuana and the documentation of his posttraumatic stress disorder. J.C. is

unable to demonstrate that, but for the failure to reintroduce that evidence, the

outcome would have been different. The second assignment of error is overruled.

In the third assignment of error, J.C. claims that his right to a public

hearing was violated because the court conducted the SYO invocation hearing

remotely through a video hearing in light of the COVID-19 protocols enacted by the

juvenile court at the time of the March 2021 hearing.

We need not address this argument on the merits as presented. J.C.

failed to preserve the issue for appeal by not objecting to the remote access hearing

in a more timely fashion. State v. Jackson, 149 Ohio St.3d 55, 2016-Ohio-5488, 73

N.E.3d 414, ¶ 133-134 (failure to object to the method of execution as a constitutional

violation forfeits all but plain error), citing State v. Davis, 116 Ohio St.3d 404, 2008-

Ohio-2, 880 N.E.2d 31, ¶ 377. “When the defendant forfeits the right to assert an

error on appeal by failing to bring it to the trial court’s attention in the first instance,

an appellate court applies plain-error review.” State v. Jones, 160 Ohio St.3d 314,

2020-Ohio-3051, 156 N.E.3d 872, ¶ 17, citing State v. Rogers, 143 Ohio St.3d 385,

2015-Ohio-2459, 38 N.E.3d 860, ¶ 21-22. In order to demonstrate plain error, the

party “must show (1) that an error occurred, (2) that the error was obvious, and (3)

that the error affected the outcome of the trial.” Jackson at ¶ 134, citing State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240, and Crim.R. 52(B).

Nevertheless, “[a]n appellate court has discretion to notice plain error and therefore

‘is not required to correct it.’” Jones at ¶ 17, citing Rogers at ¶ 23.

This is not the exceptional issue warranting our intervention. J.C. has

not argued, let alone demonstrated, that the remote hearing as it was conducted

prejudiced the outcome. We decline to impose limits on the juvenile court’s ability

to adapt to a global pandemic while maintaining its operations based on the limited

arguments presented in this case. In light of the fact that invocation of the plain

error doctrine is discretionary, we find no error here. The third assignment of error

is overruled.

In the fourth assignment of error, J.C. claims that the juvenile court

erred by failing to impose the three-year mandatory period of postrelease control

attendant to the three-year prison term imposed under the SYO dispositional

sentence. J.C. is mistaken. In the order invoking the SYO dispositional sentence,

the juvenile court indicated that the stayed three-year prison term included the

mandatory three-year term of postrelease control for the second-degree felony

burglary offense and J.C. was properly advised of the mandatory term of postrelease

control in the adjudication of delinquency order. After reciting the terms of the SYO

dispositional sentence in its entirety, the juvenile court terminated the term of

supervised release (also referred to as parole) and ordered the SYO dispositional

sentence into effect, which necessarily included the three-year mandatory term of postrelease control. In addition, J.C. was credited with 365 days of time served in

the juvenile facility. The fourth assignment of error is overruled.

In the fifth and final assignment of error, J.C. challenges the

imposition of the SYO dispositional sentence based on the claim that the state failed

to properly initiate the SYO specification before adjudicating J.C. delinquent and

imposing the stayed SYO sentence upon J.C.’s admission of guilt. J.C.’s argument is

precluded under the doctrine of res judicata.

Under R.C. 2152.13(D)(3),

[a] child upon whom a serious youthful offender dispositional sentence is imposed under division (D)(1) or (2) of this section has a right to appeal under division (A)(1), (3), (4), or (5) of section 2953.08 of the Revised Code the adult portion of the serious youthful offender dispositional sentence when any of those divisions apply. The child may appeal the adult portion, and the court shall consider the appeal as if the adult portion were not stayed.

(Emphasis added.) Thus, under R.C. 2152.13(D)(3), the adult portion of the SYO

dispositional sentence may be appealed in the direct appeal of the delinquency

adjudication, including issues involving the validity of the SYO determination. See,

e.g., In re T.D.R., 11th Dist. Lake No. 2014-L-109, 2015-Ohio-3541, ¶ 22. That the

legislature instructed the appellate court to consider the adult portion “as if [it] were

not stayed” indicates an express intent to create a final appealable order over the

SYO dispositional sentence after the delinquency adjudication despite the fact that

the sentence is stayed pending service of the juvenile portion of the sentence.

It is well settled that “[t]he doctrine of res judicata bars a convicted

defendant from raising a defense or claiming a lack of due process that was or could have been raised at trial or on direct appeal.” State v. Smith, 8th Dist. Cuyahoga No.

108499, 2020-Ohio-1026, ¶ 7, citing State v. Samuels, 8th Dist. Cuyahoga No.

106520, 2018-Ohio-3675, ¶ 8, and State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104

(1967). Since J.C. could have raised the validity of the SYO dispositional sentence

within the direct appeal from the adjudication of delinquency, he is precluded under

the doctrine of res judicata from relitigating this issue through a collateral appeal of

the trial court’s invocation of the SYO dispositional sentence. The fifth assignment

of error is overruled.

Having overruled the five assignments of error presented for

consideration, we affirm.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court, juvenile division, to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

_______________________________ SEAN C. GALLAGHER, PRESIDING JUDGE

ANITA LASTER MAYS, J., and LISA B. FORBES, J., CONCUR