[Cite as In re N.P., 2013-Ohio-1288.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
IN THE MATTER OF: : OPINION
N.P., DELINQUENT CHILD. : CASE NO. 2012-A-0024
Appeal from the Ashtabula County Court of Common Pleas, Juvenile Division, Case No. 10 JA 74.
Judgment: Affirmed.
Thomas L. Sartini, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047-1092 (For Appellee, the state of Ohio).
Timothy Young, Ohio Public Defender, and Charlyn Bohland, Assistant State Public Defender, 250 East Broad Street, Suite 1400, Columbus, OH 43215 (For Appellant, N.P.).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, N.P., appeals from the judgment of the Ashtabula County Court
of Common Pleas, Juvenile Division, revoking his probation and committing him to the
legal custody of the Ohio Department of Youth Services (“ODYS”) for a period of 90
days on each count of a two-count complaint to be served consecutively. Based on the
following reasons, we affirm the judgment of the juvenile court.
{¶2} A complaint was filed against N.P. for committing five counts of breaking
and entering, each a violation of R.C. 2911.13(A), fifth-degree felonies if committed by an adult; two counts of criminal damaging, each a violation of R.C. 2909.06(A)(1),
second-degree misdemeanors if committed by an adult; and criminal trespassing, a
violation of R.C. 2911.21(A)(3), a fourth-degree misdemeanor if committed by an adult.
N.P. admitted to one count of breaking and entering and one count of criminal
damaging; the juvenile court dismissed the other counts and adjudicated him
delinquent. The juvenile court committed N.P. to the ODYS for a minimum period of six
months, maximum to his 21st birthday, but stayed the commitment on the condition that
N.P. successfully complete probation.
{¶3} N.P. violated his terms of probation, and the juvenile court invoked his
suspended ODYS commitment. Complaints were filed in the juvenile court alleging N.P.
violated the conditions of his parole based on conduct after his release from ODYS.
N.P. admitted to the parole violations and was committed to ODYS for a minimum
period of 60 days. After completing his 60-day commitment, N.P. was released from
ODYS to parole supervision.
{¶4} A two-count complaint was filed in the juvenile court alleging that N.P.
once again violated the conditions of his parole based on conduct subsequent to his
latest release. At a hearing, N.P. admitted to the parole violations. N.P. was
adjudicated a delinquent, his parole was revoked, and he was committed to ODYS for
90 days for each violation, to be served consecutively.
{¶5} N.P. filed a timely appeal. His assignments of error allege:
{¶6} [1.] The juvenile court erred when it committed [N.P.] to [ODYS] for
a minimum period of ninety days for each parole revocation, as only
2 a thirty-day minimum [ODYS] commitment is authorized by R.C.
5139.52(F).
{¶7} [2.] The juvenile court committed plain error when it ordered [N.P.]
to serve consecutive ninety-day parole revocation commitments, in
violation of [R.C.] 2152.17(F); [R.C.] 5139.52(F); the Fifth and
Fourteenth Amendments to the United States Constitution; and
Article I, Section 16 of the Ohio Constitution.
{¶8} [3.] Trial counsel rendered ineffective assistance by failing to object
to [N.P.’s] illegal parole revocation commitments and the
consecutive nature of the commitments, as guaranteed by the Sixth
and Fourteenth Amendments to the United States Constitution and
Article I, Section 10 of the Ohio Constitution.
{¶9} N.P.’s assignments of error on appeal challenge the juvenile court’s
imposition of his sentence based on alleged errors by the juvenile court and alleged
ineffective assistance of trial counsel during sentencing. N.P. maintains the trial court
erred in issuing consecutive 90-day sentences. The remedy for these alleged errors
would be for this court to remand the matter for resentencing. The record reflects,
however, that N.P. was recommitted to the custody of ODYS on May 23, 2012, for a
period of 90 days on two counts to be served consecutively. N.P. was therefore due to
be released from ODYS on November 18, 2012. As such, this court cannot grant such
relief to an appellant who has served his sentence, but does not attack the underlying
conviction on appeal. In this case, N.P. admitted to the underlying parole violations.
See State v. Evans, 2d Dist. No. 24928, 2012-Ohio-5099 (finding that appellant’s
3 assignments of error, including ineffective assistance of trial counsel, are moot because
the appellant completed his 11-month sentence).
{¶10} Although we may dismiss this appeal as moot, we recognize that the
issues raised by appellant on appeal are similar to those raised in In re A.N., 11th Dist.
Nos. 2011-A-0057 and 2011-A-0058, 2012-Ohio-1789. In that case, this court
addressed a situation where a juvenile pled guilty to having violated the terms of his
parole and was recommitted to the ODYS for a definite period of 90 days. As the
juvenile was no longer in custody at the time of appeal, this court rendered the
appellant’s assigned errors moot. Id. at ¶7. This court, however, did review the case
substantively in order to determine whether a 90-day revocation of parole is permissible
and to address the appellant’s claim of ineffective assistance of counsel.
{¶11} This court noted that “R.C. 5139.52(F) unambiguously states that if a trial
court decides to return a juvenile to the custody of ODYS as a result of a parole
violation, the court shall return him for no less than 30 days.” Id. at ¶12. (Emphasis
sic.) “While a trial court or ODYS Release Authority may require the child to spend
more than the minimum 30 days in ODYS’s custody subsequent to a parole revocation,
they are prohibited from requiring less than a 30-day commitment, or releasing the
juvenile prior to completion of a minimum of 30 days.” Id.
{¶12} In the case sub judice, appellant committed two separate and distinct
parole violations, which were filed in a single complaint. Based on the plain language of
R.C. 5139.52(F), the trial court was within its power to revoke N.P.’s parole for a period
of 180 days: 90 days for each parole violation. The court satisfied the 30-day minimum
sentence requirement of R.C. 5139.52(F), and as a result, we find no error.
4 {¶13} Appellant’s first assignment of error is without merit.
{¶14} Moreover, we do not find merit in appellant’s second assignment of error.
Under this assigned error, appellant argues it was error for the trial court to impose his
sentences consecutively, as R.C. 2152.17(F) does not permit consecutive commitments
for parole revocations under R.C. 5139.52(F).
{¶15} R.C. 2152.17(F) states, in relevant part:
{¶16} If a child is adjudicated a delinquent child for committing two or
more acts that would be felonies if committed by an adult and if the
court entering the delinquent child adjudication orders the
commitment of the child for two or more of those acts to the legal
custody of the department of youth services for institutionalization *
* *, the court may order that all of the periods of commitment
imposed under those sections for those acts be served
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as In re N.P., 2013-Ohio-1288.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
IN THE MATTER OF: : OPINION
N.P., DELINQUENT CHILD. : CASE NO. 2012-A-0024
Appeal from the Ashtabula County Court of Common Pleas, Juvenile Division, Case No. 10 JA 74.
Judgment: Affirmed.
Thomas L. Sartini, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH 44047-1092 (For Appellee, the state of Ohio).
Timothy Young, Ohio Public Defender, and Charlyn Bohland, Assistant State Public Defender, 250 East Broad Street, Suite 1400, Columbus, OH 43215 (For Appellant, N.P.).
TIMOTHY P. CANNON, P.J.
{¶1} Appellant, N.P., appeals from the judgment of the Ashtabula County Court
of Common Pleas, Juvenile Division, revoking his probation and committing him to the
legal custody of the Ohio Department of Youth Services (“ODYS”) for a period of 90
days on each count of a two-count complaint to be served consecutively. Based on the
following reasons, we affirm the judgment of the juvenile court.
{¶2} A complaint was filed against N.P. for committing five counts of breaking
and entering, each a violation of R.C. 2911.13(A), fifth-degree felonies if committed by an adult; two counts of criminal damaging, each a violation of R.C. 2909.06(A)(1),
second-degree misdemeanors if committed by an adult; and criminal trespassing, a
violation of R.C. 2911.21(A)(3), a fourth-degree misdemeanor if committed by an adult.
N.P. admitted to one count of breaking and entering and one count of criminal
damaging; the juvenile court dismissed the other counts and adjudicated him
delinquent. The juvenile court committed N.P. to the ODYS for a minimum period of six
months, maximum to his 21st birthday, but stayed the commitment on the condition that
N.P. successfully complete probation.
{¶3} N.P. violated his terms of probation, and the juvenile court invoked his
suspended ODYS commitment. Complaints were filed in the juvenile court alleging N.P.
violated the conditions of his parole based on conduct after his release from ODYS.
N.P. admitted to the parole violations and was committed to ODYS for a minimum
period of 60 days. After completing his 60-day commitment, N.P. was released from
ODYS to parole supervision.
{¶4} A two-count complaint was filed in the juvenile court alleging that N.P.
once again violated the conditions of his parole based on conduct subsequent to his
latest release. At a hearing, N.P. admitted to the parole violations. N.P. was
adjudicated a delinquent, his parole was revoked, and he was committed to ODYS for
90 days for each violation, to be served consecutively.
{¶5} N.P. filed a timely appeal. His assignments of error allege:
{¶6} [1.] The juvenile court erred when it committed [N.P.] to [ODYS] for
a minimum period of ninety days for each parole revocation, as only
2 a thirty-day minimum [ODYS] commitment is authorized by R.C.
5139.52(F).
{¶7} [2.] The juvenile court committed plain error when it ordered [N.P.]
to serve consecutive ninety-day parole revocation commitments, in
violation of [R.C.] 2152.17(F); [R.C.] 5139.52(F); the Fifth and
Fourteenth Amendments to the United States Constitution; and
Article I, Section 16 of the Ohio Constitution.
{¶8} [3.] Trial counsel rendered ineffective assistance by failing to object
to [N.P.’s] illegal parole revocation commitments and the
consecutive nature of the commitments, as guaranteed by the Sixth
and Fourteenth Amendments to the United States Constitution and
Article I, Section 10 of the Ohio Constitution.
{¶9} N.P.’s assignments of error on appeal challenge the juvenile court’s
imposition of his sentence based on alleged errors by the juvenile court and alleged
ineffective assistance of trial counsel during sentencing. N.P. maintains the trial court
erred in issuing consecutive 90-day sentences. The remedy for these alleged errors
would be for this court to remand the matter for resentencing. The record reflects,
however, that N.P. was recommitted to the custody of ODYS on May 23, 2012, for a
period of 90 days on two counts to be served consecutively. N.P. was therefore due to
be released from ODYS on November 18, 2012. As such, this court cannot grant such
relief to an appellant who has served his sentence, but does not attack the underlying
conviction on appeal. In this case, N.P. admitted to the underlying parole violations.
See State v. Evans, 2d Dist. No. 24928, 2012-Ohio-5099 (finding that appellant’s
3 assignments of error, including ineffective assistance of trial counsel, are moot because
the appellant completed his 11-month sentence).
{¶10} Although we may dismiss this appeal as moot, we recognize that the
issues raised by appellant on appeal are similar to those raised in In re A.N., 11th Dist.
Nos. 2011-A-0057 and 2011-A-0058, 2012-Ohio-1789. In that case, this court
addressed a situation where a juvenile pled guilty to having violated the terms of his
parole and was recommitted to the ODYS for a definite period of 90 days. As the
juvenile was no longer in custody at the time of appeal, this court rendered the
appellant’s assigned errors moot. Id. at ¶7. This court, however, did review the case
substantively in order to determine whether a 90-day revocation of parole is permissible
and to address the appellant’s claim of ineffective assistance of counsel.
{¶11} This court noted that “R.C. 5139.52(F) unambiguously states that if a trial
court decides to return a juvenile to the custody of ODYS as a result of a parole
violation, the court shall return him for no less than 30 days.” Id. at ¶12. (Emphasis
sic.) “While a trial court or ODYS Release Authority may require the child to spend
more than the minimum 30 days in ODYS’s custody subsequent to a parole revocation,
they are prohibited from requiring less than a 30-day commitment, or releasing the
juvenile prior to completion of a minimum of 30 days.” Id.
{¶12} In the case sub judice, appellant committed two separate and distinct
parole violations, which were filed in a single complaint. Based on the plain language of
R.C. 5139.52(F), the trial court was within its power to revoke N.P.’s parole for a period
of 180 days: 90 days for each parole violation. The court satisfied the 30-day minimum
sentence requirement of R.C. 5139.52(F), and as a result, we find no error.
4 {¶13} Appellant’s first assignment of error is without merit.
{¶14} Moreover, we do not find merit in appellant’s second assignment of error.
Under this assigned error, appellant argues it was error for the trial court to impose his
sentences consecutively, as R.C. 2152.17(F) does not permit consecutive commitments
for parole revocations under R.C. 5139.52(F).
{¶15} R.C. 2152.17(F) states, in relevant part:
{¶16} If a child is adjudicated a delinquent child for committing two or
more acts that would be felonies if committed by an adult and if the
court entering the delinquent child adjudication orders the
commitment of the child for two or more of those acts to the legal
custody of the department of youth services for institutionalization *
* *, the court may order that all of the periods of commitment
imposed under those sections for those acts be served
consecutively in the legal custody of the department of youth
services * * *.
{¶17} We agree with and therefore adopt the Ninth Appellate District’s holding
that R.C. 2152.17(F) is inapplicable to sentences for parole violations. In re H.V., 9th
Dist. Nos. 11CA010139 and 11CA010140, 2012-Ohio-3742, ¶9. “[A] juvenile court has
broad discretion to craft an appropriate disposition for a child adjudicated delinquent.”
In re D.S., 111 Ohio St.3d 361, 2006-Ohio-5851, ¶6. A juvenile court may commit a
child to the custody of ODYS for an indefinite term, not to exceed the child’s 21st
birthday. R.C. 2152.16(A). It was therefore within the trial court’s inherent authority to
5 run appellant’s parole violations consecutively. Therefore, appellant’s second
assignment of error is without merit.
{¶18} Additionally, appellant argues his trial counsel provided ineffective
assistance of counsel when he failed to object to the court’s imposition of a 180-day
parole revocation. This court has considered and rejected an ineffective assistance of
counsel claim in relation to trial counsel’s failure to object to a juvenile’s 90-day parole
revocation. In re A.N., supra, ¶14-17. Based on our court’s previous decision, we find
appellant’s third assignment of error without merit.
{¶19} Based on the decision of this court, the judgment of the Ashtabula County
Court of Common Pleas, Juvenile Division, is hereby affirmed.
DIANE V. GRENDELL, J.,
CYNTHIA WESTCOTT RICE, J.,
concur.