In re N.S.

2021 Ohio 427

• Court: Ohio Court of Appeals
• Decided: February 17, 2021
• Docket: C-190713
• Status: Published

Opinion

[Cite as In re N.S., 2021-Ohio-427.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

IN RE: N.S. : APPEAL NO. C-190713 TRIAL NO. 19-2276 X : O P I N I O N. :

:

Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Reversed and Appellant Discharged

Date of Judgment Entry on Appeal: February 17, 2021

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin, Assistant Prosecuting Attorney, for Plaintiff-Appellee State of Ohio,

Raymond T. Faller, Hamilton County Public Defender, and Jessica Moss, Assistant Public Defender, for Defendant-Appellant N.S. OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Presiding Judge.

{¶1} Defendant-appellant N.S. appeals his September 5, 2019 adjudication

by the Hamilton County Juvenile Court for violating a condition of probation. The

record reveals, and the state concedes, that N.S was never actually placed on

probation and ordered to comply with conditions of probation prior to the alleged

violation. Therefore, we reverse the adjudication and discharge N.S. from further

prosecution.

I. Facts and Procedural History

{¶2} On June 26, 2019, after admitting to the allegations against him, N.S.

was adjudicated delinquent for grand theft of a motor vehicle, a felony of the fourth

degree if committed by an adult. The case was continued for disposition to a later

date, and N.S. was ordered held in detention while awaiting disposition. The

magistrate’s entry also states, “place on probation for investigation.”

{¶3} On August 23, 2019, a complaint was filed against N.S. alleging that he

had been placed on probation at the June 26, 2019 hearing and later violated a

condition of that probation by posting or electronically transmitting photographs

depicting illegal activity.

{¶4} On September 5, 2019, a hearing was held before the juvenile court

magistrate on the probation violation. The state presented the testimony of two

witnesses: the probation officer completing the investigation of N.S. and N.S.’s

stepmother. The alleged violation was based on photos sent to the probation officer

by N.S.’s stepmother that N.S. had allegedly posted to his Facebook page. The

photos included three photos of guns and one photo of the stepmother’s vehicle with

a caption saying, “That’s on me. I got you, though.” The magistrate determined that

the photos depicted illegal activity and found N.S. to be in violation of the rules of

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probation. N.S. was ordered removed from electronic monitoring and held in

detention pending disposition.

{¶5} On September 11, 2019, N.S. appeared before the juvenile court

magistrate for disposition on both adjudications. The magistrate placed N.S. on

probation, ordered N.S. to complete a program at Bassett House as a condition of his

probation and ordered N.S. to comply with all probation services. N.S. was also

given a suspended commitment to the Department of Youth Services.

{¶6} On September 18, 2019, N.S. filed an objection to the magistrate’s

September 5 decision finding N.S. in violation of the conditions of probation. The

juvenile court denied the objection and adopted the magistrate’s decision.

{¶7} N.S. now appeals, asserting five assignments of error.

II. Law and Analysis

{¶8} In his first assignment of error, N.S. argues that the juvenile court

erred in adjudicating him delinquent for violating probation because he was never

properly placed on probation.

{¶9} N.S. admitted to grant-theft-auto allegations on June 26, 2019. Under

Juv.R. 29(F)(2), the juvenile court has four permissible actions on how to proceed

with an adjudicatory hearing once the allegations in a complaint are admitted. One

of the permissible actions the court may take is to “[e]nter an adjudication and

continue the matter for not more than six months and may make appropriate

temporary orders.” Juv.R. 29(F)(2)(b).

{¶10} The parties disagree on whether the juvenile court is permitted under

this rule to issue a temporary order placing a juvenile on probation while awaiting

disposition. However, we need not reach this issue in order to sustain N.S.’s first

assignment of error, because the record shows, and the state concedes, that N.S. was

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never actually placed on probation or ordered to comply with the conditions of

probation at the June 26 hearing.

{¶11} A court speaks through its journal entries. In re R.M., 1st Dist.

Hamilton No. C-190420, 2020-Ohio-4446, ¶ 14; State v. Hildebrand, 1st Dist.

Hamilton No. C-150046, 2018-Ohio-2692, ¶ 7. Here, the magistrate’s June 26, 2019

entry states the following:

Juvenile is ordered to submit to the lawful care, custody, and control of

parent, guardian, custodian, and teachers and to obey all laws. Failure

to follow said order may result in the filing of a charge of delinquency.

Place on probation for investigation.

(Emphasis added.) This entry does not contain any order that N.S. comply with any

terms or conditions of probation.

{¶12} This is consistent with the record of the hearing that day. When

addressing N.S., the magistrate stated:

What I want—probation is going to investigate. They are going to talk

to you. They are going to talk to your stepmom. And what I want

them to do is come in with a recommendation on how to get you safely

back in the community, so this is not a situation where you just go

back out on EMU and something else happens because you don’t have

things in place to help you stay on track. So, I want probation to meet

with you before I’m comfortable letting you back out into the

community.

{¶13} Furthermore, the entry from the September 11 dispositional hearing

states: “Place on probation. Terminate Investigation.” (Emphasis added.) It then

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orders N.S. to comply with the conditions of probation and comply with all probation

services.

{¶14} This court previously addressed the language of an entry which said

“place on probation for investigation” and found the language had a clear limited

purpose of a probation investigation. In re Meyer, 1st Dist. Hamilton No. C-910292,

C-910404, 1992 WL 5843, *3 (Jan. 15, 1992).

{¶15} The record is clear that N.S. was not placed on probation or ordered to

comply with the conditions of probation until September 11, 2019. Yet, the juvenile

court found N.S. to be in violation of probation on September 5, 2019. N.S. cannot

be adjudicated for violating a condition of probation before he is actually placed on

probation and ordered to comply with those conditions. Accordingly, we sustain

N.S.’s first assignment of error.

{¶16} Our disposition of the first assignment of error is dispositive of this

appeal. Therefore, the four remaining assignments of error asserted by N.S. are

moot and we decline to address them.

III. Conclusion

{¶17} We sustain N.S.’s first assignment of error, reverse the adjudication

and discharge N.S. from further prosecution for the alleged probation violation.

Judgment reversed and appellant discharged.

MYERS and CROUSE, JJ., concur.

Please Note:

The court has recorded its own entry this date.