In re T.W.

2012 Ohio 1305

• Court: Ohio Court of Appeals
• Decided: March 21, 2012
• Docket: 11 MA 35
• Status: Published

Opinion

[Cite as In re T.W., 2012-Ohio-1305.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

IN RE: ) CASE NO. 11 MA 35 ) T.W. ) ) OPINION ) )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas, Juvenile Division, of Mahoning County, Ohio Case No. 10 JA 1723

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503

For Defendant-Appellant: Atty. Rhys B. Cartwright-Jones 42 N. Phelps Street Youngstown, Ohio 44503-1130

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Joseph J. Vukovich Dated: March 21, 2012 [Cite as In re T.W., 2012-Ohio-1305.] WAITE, P.J.

{¶1} This is an appeal of a judgment from the Mahoning County Court of

Common Pleas, Juvenile Division, regarding the juvenile delinquency of minor child

T.W. A delinquency complaint was filed in juvenile court charging T.W. with

aggravated robbery (with a gun specification), resisting arrest, and carrying a

concealed weapon. He and an accomplice were alleged to have robbed the

Campbell Pharmacy on September 7, 2010. T.W. was brandishing a .357 Taurus

revolver during the robbery. Afterwards, he fled and hid under a porch, and a K-9

police dog had to be used to retrieve T.W. from his hiding place. T.W. was 13 years

old when the crimes occurred. Counsel was appointed and the case was assigned to

a magistrate. T.W. entered a plea of admission to aggravated robbery, a first degree

felony if committed by an adult, along with an accompanying gun specification. The

gun specification called for a mandatory term of commitment of one to three years.

The court’s dispositional order imposed a mandatory thirty-six month term of

commitment for the gun specification, along with twelve months for the aggravated

robbery, to be served consecutively. T.W. appealed, and counsel was appointed on

appeal.

{¶2} T.W.'s attorney has filed a motion to withdraw as appointed counsel in

this appeal, pursuant to State v. Toney, 23 Ohio App.2d 203, 262 N.Ed.2d 419 (7th

Dist.1970). T.W.’s counsel has determined, after examining the record and finding

no reasonable arguments on appeal, that this appeal is wholly frivolous and that he

should be permitted to withdraw. Counsel's motion to withdraw is well-taken and for

the reasons that follow, we grant the motion and affirm the judgment of the trial court. -2-

{¶3} T.W. was arrested on September 7, 2010. A juvenile delinquency

complaint was filed against him on September 8, 2010. He was charged with

aggravated robbery with a gun specification, resisting arrest, and carrying a

concealed weapon. He initially entered a denial to the charges and counsel was

appointed. He later agreed to change his plea, and a change of plea hearing was

held on December 9, 2010. T.W. admitted to aggravated robbery, R.C. 2911.01 (a

first degree felony), and the accompanying gun specification, R.C. 2941.145 and

R.C. 2152.17, and the state agreed to dismiss the remaining charges. The gun

specification carried a mandatory penalty of one to three years of confinement with

the department of youth services. R.C. 2152.17(A)(2). The court reviewed all the

constitutional rights T.W. was waiving by entering the plea of admission. The court

accepted the plea and adjudicated T.W. a delinquent child. The judgment entry was

filed on December 16, 2010.

{¶4} The disposition of the case was originally heard before a magistrate,

who recommended a minimum 12-month period of confinement for the aggravated

robbery charge, and an additional 12 months for the gun specification. The probate

judge did not accept the recommendation of the magistrate and held its own

dispositional hearing on January 31, 2011. At that hearing, T.W. indicated that he

disagreed somewhat with some of the facts in the police report surrounding his

arrest. The court reset the hearing so that the arresting officer could testify. At the

continued hearing on February 14, 2011, and prior to any testimony by the police

officer, T.W. changed his testimony and agreed with the facts as contained in the -3-

police report. He agreed that he resisted arrest, that a police dog was sent in to pull

him out from under the porch, that he continued to resist arrest, that the dog was

released again, and that he sustained an injury to his thigh during the arrest. T.W.’s

counsel did not want the officer to testify, and no more was said about the

circumstances of the arrest. The court concluded there was no suggestion of police

brutality in the circumstances of T.W.’s arrest.

{¶5} At the dispositional hearing, the court reviewed T.W.’s extensive

criminal history, which included convictions for domestic violence, drug use,

vandalism, disorderly conduct, and prior charges of burglary and attempted

aggravated menacing. T.W. was part of a gang, often ran away from home, and

repeatedly violated his probation. The judge noted that T.W. had no remorse for the

crime, although he did show some remorse over the fact that he had been caught.

The judge reviewed the circumstances of the crime, including the fact that drug and

alcohol use was involved. The judge was aware that the gun T.W. used in the crime

was not loaded. The court also reviewed the turbulent and dire circumstances of

T.W.’s upbringing, which included family members sustaining gunshot wounds or

being killed by gun violence. Although his mother tried to control T.W.’s behavior, it

was very difficult and she would lock him out of the house at times.

{¶6} The prosecutor made no recommendation regarding the punishment for

the gun specification. The victim described the terror she felt at having a gun held to

her head, and she requested the maximum sentence. -4-

{¶7} The court committed T.W. to twelve months of minimum confinement

on the aggravated robbery charge, and a mandatory three years of minimum

confinement on the gun specification, up to a maximum confinement to last until

T.W.’s twenty-first birthday. He was given credit for time served. The judgment entry

was filed on February 24, 2011. This appeal followed.

{¶8} An attorney appointed to represent an indigent criminal defendant on

his first appeal as of right may seek permission to withdraw if the attorney can show

that there is no merit to the appeal. See, generally, Anders v. California, 386 U.S.

738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Toney, supra. To support such a

request, appellate counsel is required to undertake a conscientious examination of

the case and accompany his or her request for withdrawal with a brief referring to

anything in the record that might arguably support an appeal. Toney at 207. The

reviewing court must then decide, after a full examination of the proceedings,

whether the case is wholly frivolous. Id.

{¶9} In Toney, this Court established guidelines to be followed when counsel

of record determines that an indigent's appeal is frivolous:

{¶10} 3. Where a court-appointed counsel, with long and

extensive experience in criminal practice, concludes that

the indigent's appeal is frivolous and that there is no

assignment of error which could be arguably supported on

appeal, he should so advise the appointing court by brief -5-

and request that he be permitted to withdraw as counsel of

record.

{¶11} 4. Court-appointed counsel's conclusions and

motion to withdraw as counsel of record should be

transmitted forthwith to the indigent, and the indigent

should be granted time to raise any points that he chooses,

pro se.

{¶12} 5. It is the duty of the Court of Appeals to fully

examine the proceedings in the trial court, the brief of

appointed counsel, the arguments pro se of the indigent,

and then determine whether or not the appeal is wholly

frivolous.

{¶13} 6. Where the Court of Appeals makes such an

examination and concludes that the appeal is wholly

frivolous, the motion of an indigent appellant for the

appointment of new counsel for the purposes of appeal

should be denied.

{¶14} 7. Where the Court of Appeals determines that an

indigent's appeal is wholly frivolous, the motion of court-

appointed counsel to withdraw as counsel of record should

be allowed, and the judgment of the trial court should be

affirmed. (Emphasis sic.) Id. at syllabus. -6-

{¶15} T.W.’s counsel has not listed any non-frivolous issues to review on

appeal. The record contains the facts surrounding T.W.’s crime and subsequent

arrest. Counsel was appointed to represent T.W. throughout the juvenile court

proceedings and on appeal.

{¶16} When accepting a plea of admission in juvenile proceedings, the court

must strictly comply with Juv.R. 29(D) as it pertains to the waiver of critical

constitutional rights. In re Onion, 128 Ohio App.3d 498, 503, 715 N.E.2d 604 (11th

Dist.1998).

{¶17} The court should also try to strictly comply with the remaining aspects

of Juv.R. 29(D). It must, at a minimum, substantially comply with the parts of the rule

that do not implicate critical constitutional rights. Juv.R. 29(D) states that the court

“shall not accept an admission without addressing the party personally and

determining both of the following: (1) The party is making the admission voluntarily

with understanding of the nature of the allegations and the consequences of the

admission; (2) The party understands that by entering an admission the party is

waiving the right to challenge the witnesses and evidence against the party, to

remain silent, and to introduce evidence at the adjudicatory hearing.” In re C.S., 115

Ohio St.3d 267, 2007-Ohio-4919, ¶113. “For purposes of juvenile delinquency

proceedings, substantial compliance means that in the totality of the circumstances,

the juvenile subjectively understood the implications of his plea.” Id.

{¶18} The record of the change of plea hearing indicates that the court strictly

complied with Juv.R. 29(D). The judge specifically explained that T.W. had the right -7-

to trial, to present evidence and subpoena witnesses, to challenge the evidence

against him, to remain silent, and to require the state to prove the charges against

him beyond a reasonable doubt. T.W. clearly waived all those rights at the hearing.

The judge described the charges and explained the minimum and maximum periods

of confinement T.W. was facing. The court found that T.W. intelligently and

voluntarily waived his rights and entered the plea.

{¶19} The juvenile court has wide latitude in issuing its dispositional order

after a plea of admission to delinquency charges. “The order of disposition in a

juvenile case is a matter within the court's discretion.” State v. Matha, 107 Ohio

App.3d 756, 760, 669 N.E.2d 504 (9th Dist.1995). In fact, a juvenile court is allowed

more discretion in its dispositional sentencing than for comparable actions under

criminal law. In re Tiber, 154 Ohio App.3d 360, 2003-Ohio-5155, 797 N.E.2d 161,

¶25. Abuse of discretion means the decision of the trial court was unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

{¶20} There is a discussion in the record regarding the use of the K-9 dog to

pull T.W. from underneath a porch as he was resisting arrest. The court was

concerned that certain comments that T.W. had made could be interpreted as a

suggestion of police brutality, but T.W.’s counsel denied that he had ever raised the

issue or that there was any problem that arose from use of the police dog. (2/14/11

Tr., pp. 4-5.) The court reviewed the facts of T.W.’s apprehension by the police, and -8-

nothing further was mentioned about the subject. Nothing in the record suggests any

legal issues arising from T.W.’s arrest or the use of the police dog in the arrest.

{¶21} The record contains substantial evidence supporting the juvenile court’s

disposition. The crime involved T.W. pressing a gun to the victim’s head and cocking

the gun. T.W. showed little or no remorse for his actions. He has an extensive

juvenile record, including prior violent crimes. The trial court reviewed all the facts of

the case and the facts of T.W.’s life history, including the statements made by T.W.

and by his counsel at the final hearing. The penalty imposed was permitted by law

and was within the court’s discretionary authority.

{¶22} The record indicates that the juvenile judge did not agree completely

with the disposition recommended by the magistrate, and after reviewing the facts the

judge imposed a harsher penalty for the gun specification than was recommended by

the magistrate. The magistrate suggested imposing a one-year sentence, but the

trial court decided to impose three years of confinement. There is no error here. The

juvenile judge has the authority to hold additional hearings or correct or modify a

magistrate’s decision even if no objections are filed. Davis v. Davis, 115 Ohio App.3d

623, 625, 685 N.E.2d 1292 (7th Dist.1998). Juv.R. 40(D)(4)(b) states: “Whether or

not objections are timely filed, a court may adopt or reject a magistrate's decision in

whole or in part, with or without modification. A court may hear a previously-referred

matter, take additional evidence, or return a matter to a magistrate.” Thus, no issues

arise from the fact that the magistrate’s recommendation was not accepted by the

court. -9-

{¶23} In conclusion, there are no non-frivolous issues to be reviewed in this

appeal. T.W. admitted to the crime and a lawful punishment was imposed by the

juvenile court. All the appropriate hearings were held, and T.W. intelligently and

voluntarily waived his rights and entered an admission. The record supports the

punishment that was imposed. Counsel’s motion to withdraw pursuant to Toney and

Anders is hereby granted and the judgment of the juvenile court is affirmed.

Donofrio, J., concurs.

Vukovich, J., concurs.