[Cite as In re S.L. McC. Jr., 2014-Ohio-2485.]
COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF : JUDGES: : S. L. McC. JR. : Hon. William B. Hoffman, P.J. A DELINQUENT CHILD. : Hon. W. Scott Gwin, J. : Hon. Craig R. Baldwin, J. : : : Case No. 2013CA0016 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Coshocton County Court of Common Pleas, Juvenile Division, Case No. 20920043
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: June 5, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JASON GIVEN BROOKE M. BURNS Prosecuting Attorney Assistant State Public Defender 250 East Broad Street, Suite 1400 By: BENJAMIN E. HALL Columbus, OH 43215 Assistant Prosecuting Attorney 318 Chestnut Street Coshocton, OH 43812 Coshocton County, Case No. 2013CA0016 2
Baldwin, J.
{¶1} Appellant S.L. Mc.C. Jr. appeals from the May 21, 2013 Judgment Entry of
the Coshocton County Court of Common Pleas, Juvenile Division, committing him to the
legal custody of the Ohio Department of Youth Services.
STATEMENT OF THE FACTS AND CASE
{¶2} On April 22, 2009, a complaint was filed alleging that appellant (DOB
1/4/96) was delinquent of four counts of statutory rape in violation of R.C.
2907.02(A)(1)(b), felonies of the first degree if committed by an adult, and two count of
gross sexual imposition in violation of R.C. 2907.05(A)(4), felonies of the third degree if
committed by an adult. The offenses were alleged to have occurred on or between
November 1, 2008 and February 28, 2009.
{¶3} On June 17, 2009, appellant entered admissions to two of the counts of
rape and one of the counts of gross sexual imposition. The trial court found appellant
delinquent and the remaining counts were dismissed. A dispositional hearing was
scheduled for July 21, 2009. As memorialized in a Judgment Entry filed on the same
date, the trial court imposed a minimum one year commitment to the Ohio Department
of Youth Services (DYS) for the offenses of rape and a minimum six month commitment
to DYS for the offense of gross sexual imposition, to be served consecutively. The trial
court suspended the sentence and placed appellant on probation for an indefinite period
of time under specified terms and conditions.
{¶4} The State, on April 16, 2013, filed a motion alleging that appellant had
violated his probation and asking that appellant’s suspended sentence to DYS be
invoked. Coshocton County, Case No. 2013CA0016 3
{¶5} At the start of a hearing on May 21, 2013, the State withdrew its motion
with regard to one of the counts of rape and the count of gross sexual imposition. The
trial court, pursuant to a Judgment Entry filed on May 21, 2013, found that appellant had
failed to abide by the terms and conditions of his probation and granted the motion to
invoke his suspended DYS commitment. The trial court ordered that appellant be
committed to the legal custody of DYS for the charge of rape.
{¶6} Appellant appealed from the trial court’s May 21, 2013 Judgment Entry,
raising the following assignments of error on appeal:
{¶7} THE COSHOCTON COUNTY JUVENILE COURT VIOLATED SCOTT
M.’S RIGHT TO DUE PROCESS WHEN IT COMMITTED HIM TO DYS BASED ON AN
UNCONSTITUTIONAL ADJUDICATION. IN RE D.B., 129 OHIO ST.3D 104, 2011-
OHIO-2671, 950 N.E.2D 528. (VOL. II, T.PP. 14-17; A-1). FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION; OHIO CONSTITUTION,
ARTICLE I, SECTION 16.
{¶8} SCOTT M. WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL
WHEN COUNSEL FAILED TO OBJECT TO THE COSHOCTON COUNTY JUVENILE
COURT’S INVOCATION OF SCOTT’S SUSPENDED COMMITMENT TO DYS FOR AN
OFFENSE THAT THE SUPREME COURT OF OHIO HAS FOUND
UNCONSTITUTIONAL. (VOL. II, T.PP. 14-17; A-1). IN RE D.B., 129 OHIO ST.3D 104,
2011-OHIO-2671, 950 N.E.2D 528, APPLIED. SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION; OHIO CONSTITUTION,
ARTICLE I, SECTION 10. Coshocton County, Case No. 2013CA0016 4
{¶9} Appellant, on January 10, 2014, filed a Motion for Limited Remand to the
Juvenile Court. Appellant, in his motion, stated that on December 5, 2013, he had filed
a Motion to Vacate or in the Alternative Relief from Judgment in the juvenile court
asking that such court vacate its July 21, 2009 Judgment Entry committing him to DYS.
Appellant argued that he was under 13 when his rape adjudications occurred and that,
under In re D.B., supra, he could not be culpable for violating R.C. 2907.02(A)(1)(b).
Appellant asked that the trial court vacate his rape adjudications. Pursuant to a
Judgment Entry filed on January 17, 2014, this Court granted the motion and remanded
the matter to the trial court to rule on appellant’s pending motion to vacate.
{¶10} The trial court, in a Judgment Entry filed on February 6, 2014, invoked
appellant’s suspended DYS sentence on Count 5, gross sexual imposition. The trial
court also ordered that appellant’s prior commitment for the invoked Count 1, rape, be
terminated.
I
{¶11} Appellant, in his first assignment of error, now argues that the trial court
violated his right to due process when it committed him to DYS based on an
unconstitutional adjudication. We agree.
{¶12} We note that In In Re: Gault , 387 U.S. 1, 87 S.Ct. 1428 (1967), the United
States Supreme Court held that courts must afford juveniles the protections of the Due
Process Clause of the Fourteenth Amendment, including notice of the charges, trial
rights, and the effective assistance of counsel.
{¶13} Appellant specifically cites to In re D.B., 129 Ohio St.3d 104, 2011-Ohio-
2671, 950 N.E.2d 528, in support of his argument that his probation violation was based Coshocton County, Case No. 2013CA0016 5
on an underlying adjudication for rape in violation of R.C. 2907.02(A)(1)(b) which has
been deemed unconstitutional. In the Ohio Supreme Court case In re D.B., 129 Ohio
St.3d 104, 2011–Ohio–2671, 950 N.E.2d 528, a 12 year old child was found to be
delinquent by reason of committing the offense of statutory rape against a child under
the age of 13 in violation of R.C. 2907.02(A)(1)(b). R.C. 2907.02(A)(1)(b) provides that
“No person shall engage in sexual conduct with another who is not the spouse of the
offender or who is the spouse of the offender but is living separate and apart from the
offender, when any of the following applies:…
{¶14} “(b) The other person is less than 13 years of age, whether or not the
offender knows the age of the other person.”
{¶15} The Supreme Court, in D.B., held as follows in analyzing whether or not
the 12 year old child’s due process rights had been violated : “As applied to children
under the age of 13 who engage in consensual sexual conduct with other children under
the age of 13, R.C. 2907.02(A)(1)(b) is unconstitutionally vague because the statute
authorizes and encourages arbitrary and discriminatory enforcement. When an adult
engages in sexual conduct with a child under the age of 13, it is clear which party is the
offender and which is the victim. But when two children under the age of 13 engage in
sexual conduct with each other, each child is both an offender and a victim, and the
distinction between those two terms breaks down.” (Emphasis added.) Id at paragraph
24. The Court held in the syllabus that R.C. 2907.02(A)(1)(b) was unconstitutional as
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[Cite as In re S.L. McC. Jr., 2014-Ohio-2485.]
COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT
IN THE MATTER OF : JUDGES: : S. L. McC. JR. : Hon. William B. Hoffman, P.J. A DELINQUENT CHILD. : Hon. W. Scott Gwin, J. : Hon. Craig R. Baldwin, J. : : : Case No. 2013CA0016 : : OPINION
CHARACTER OF PROCEEDING: Appeal from the Coshocton County Court of Common Pleas, Juvenile Division, Case No. 20920043
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: June 5, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JASON GIVEN BROOKE M. BURNS Prosecuting Attorney Assistant State Public Defender 250 East Broad Street, Suite 1400 By: BENJAMIN E. HALL Columbus, OH 43215 Assistant Prosecuting Attorney 318 Chestnut Street Coshocton, OH 43812 Coshocton County, Case No. 2013CA0016 2
Baldwin, J.
{¶1} Appellant S.L. Mc.C. Jr. appeals from the May 21, 2013 Judgment Entry of
the Coshocton County Court of Common Pleas, Juvenile Division, committing him to the
legal custody of the Ohio Department of Youth Services.
STATEMENT OF THE FACTS AND CASE
{¶2} On April 22, 2009, a complaint was filed alleging that appellant (DOB
1/4/96) was delinquent of four counts of statutory rape in violation of R.C.
2907.02(A)(1)(b), felonies of the first degree if committed by an adult, and two count of
gross sexual imposition in violation of R.C. 2907.05(A)(4), felonies of the third degree if
committed by an adult. The offenses were alleged to have occurred on or between
November 1, 2008 and February 28, 2009.
{¶3} On June 17, 2009, appellant entered admissions to two of the counts of
rape and one of the counts of gross sexual imposition. The trial court found appellant
delinquent and the remaining counts were dismissed. A dispositional hearing was
scheduled for July 21, 2009. As memorialized in a Judgment Entry filed on the same
date, the trial court imposed a minimum one year commitment to the Ohio Department
of Youth Services (DYS) for the offenses of rape and a minimum six month commitment
to DYS for the offense of gross sexual imposition, to be served consecutively. The trial
court suspended the sentence and placed appellant on probation for an indefinite period
of time under specified terms and conditions.
{¶4} The State, on April 16, 2013, filed a motion alleging that appellant had
violated his probation and asking that appellant’s suspended sentence to DYS be
invoked. Coshocton County, Case No. 2013CA0016 3
{¶5} At the start of a hearing on May 21, 2013, the State withdrew its motion
with regard to one of the counts of rape and the count of gross sexual imposition. The
trial court, pursuant to a Judgment Entry filed on May 21, 2013, found that appellant had
failed to abide by the terms and conditions of his probation and granted the motion to
invoke his suspended DYS commitment. The trial court ordered that appellant be
committed to the legal custody of DYS for the charge of rape.
{¶6} Appellant appealed from the trial court’s May 21, 2013 Judgment Entry,
raising the following assignments of error on appeal:
{¶7} THE COSHOCTON COUNTY JUVENILE COURT VIOLATED SCOTT
M.’S RIGHT TO DUE PROCESS WHEN IT COMMITTED HIM TO DYS BASED ON AN
UNCONSTITUTIONAL ADJUDICATION. IN RE D.B., 129 OHIO ST.3D 104, 2011-
OHIO-2671, 950 N.E.2D 528. (VOL. II, T.PP. 14-17; A-1). FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION; OHIO CONSTITUTION,
ARTICLE I, SECTION 16.
{¶8} SCOTT M. WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL
WHEN COUNSEL FAILED TO OBJECT TO THE COSHOCTON COUNTY JUVENILE
COURT’S INVOCATION OF SCOTT’S SUSPENDED COMMITMENT TO DYS FOR AN
OFFENSE THAT THE SUPREME COURT OF OHIO HAS FOUND
UNCONSTITUTIONAL. (VOL. II, T.PP. 14-17; A-1). IN RE D.B., 129 OHIO ST.3D 104,
2011-OHIO-2671, 950 N.E.2D 528, APPLIED. SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION; OHIO CONSTITUTION,
ARTICLE I, SECTION 10. Coshocton County, Case No. 2013CA0016 4
{¶9} Appellant, on January 10, 2014, filed a Motion for Limited Remand to the
Juvenile Court. Appellant, in his motion, stated that on December 5, 2013, he had filed
a Motion to Vacate or in the Alternative Relief from Judgment in the juvenile court
asking that such court vacate its July 21, 2009 Judgment Entry committing him to DYS.
Appellant argued that he was under 13 when his rape adjudications occurred and that,
under In re D.B., supra, he could not be culpable for violating R.C. 2907.02(A)(1)(b).
Appellant asked that the trial court vacate his rape adjudications. Pursuant to a
Judgment Entry filed on January 17, 2014, this Court granted the motion and remanded
the matter to the trial court to rule on appellant’s pending motion to vacate.
{¶10} The trial court, in a Judgment Entry filed on February 6, 2014, invoked
appellant’s suspended DYS sentence on Count 5, gross sexual imposition. The trial
court also ordered that appellant’s prior commitment for the invoked Count 1, rape, be
terminated.
I
{¶11} Appellant, in his first assignment of error, now argues that the trial court
violated his right to due process when it committed him to DYS based on an
unconstitutional adjudication. We agree.
{¶12} We note that In In Re: Gault , 387 U.S. 1, 87 S.Ct. 1428 (1967), the United
States Supreme Court held that courts must afford juveniles the protections of the Due
Process Clause of the Fourteenth Amendment, including notice of the charges, trial
rights, and the effective assistance of counsel.
{¶13} Appellant specifically cites to In re D.B., 129 Ohio St.3d 104, 2011-Ohio-
2671, 950 N.E.2d 528, in support of his argument that his probation violation was based Coshocton County, Case No. 2013CA0016 5
on an underlying adjudication for rape in violation of R.C. 2907.02(A)(1)(b) which has
been deemed unconstitutional. In the Ohio Supreme Court case In re D.B., 129 Ohio
St.3d 104, 2011–Ohio–2671, 950 N.E.2d 528, a 12 year old child was found to be
delinquent by reason of committing the offense of statutory rape against a child under
the age of 13 in violation of R.C. 2907.02(A)(1)(b). R.C. 2907.02(A)(1)(b) provides that
“No person shall engage in sexual conduct with another who is not the spouse of the
offender or who is the spouse of the offender but is living separate and apart from the
offender, when any of the following applies:…
{¶14} “(b) The other person is less than 13 years of age, whether or not the
offender knows the age of the other person.”
{¶15} The Supreme Court, in D.B., held as follows in analyzing whether or not
the 12 year old child’s due process rights had been violated : “As applied to children
under the age of 13 who engage in consensual sexual conduct with other children under
the age of 13, R.C. 2907.02(A)(1)(b) is unconstitutionally vague because the statute
authorizes and encourages arbitrary and discriminatory enforcement. When an adult
engages in sexual conduct with a child under the age of 13, it is clear which party is the
offender and which is the victim. But when two children under the age of 13 engage in
sexual conduct with each other, each child is both an offender and a victim, and the
distinction between those two terms breaks down.” (Emphasis added.) Id at paragraph
24. The Court held in the syllabus that R.C. 2907.02(A)(1)(b) was unconstitutional as
applied to a child under the age of 13 who engages in sexual conduct with another child
under 13. Coshocton County, Case No. 2013CA0016 6
{¶16} In the case sub judice, the victim was under the age of 13. The complaint
alleged that the offenses occurred on or between November 1, 2008 and February 28,
2009. Thus, during most of such time frame, appellant, who was born on January 4,
1996, was under the age of 13.
{¶17} Based on the holding of the Ohio Supreme Court in D.B., we find that
appellant’s due process rights were violated when he was adjudicated delinquent for
rape in violation of R.C. 2907.02(A)(1)(b) and subsequently committed to DYS with
respect to such adjudication.
{¶18} Appellant’s first assignment of error is, therefore, sustained.
II
{¶19} Appellant, in his second assignment of error, argues that his trial counsel
was ineffective in failing to object when the trial court invoked appellant’s suspended
commitment to DYS for rape in violation of R.C. 2907.02(A)(1)(b).
{¶20} Based on our disposition of appellant’s first assignment of error,
appellant’s second assignment of error is moot. Coshocton County, Case No. 2013CA0016 7
{¶21} Accordingly, the judgment of the Coshocton County Court of Common
Pleas, Juvenile Division, is reversed. This matter is remanded to the trial court with
directions to vacate appellant’s adjudication and commitment to DYS for the offense of
rape in violation of R.C. 2907.02(A)(1)(b).
By: Baldwin, J.
Hoffman, P.J. and
Gwin, J. concur.