In Re William H.

664 N.E.2d 1361, 105 Ohio App. 3d 761, 1995 Ohio App. LEXIS 3357

• Court: Ohio Court of Appeals
• Decided: August 18, 1995
• Docket: No. L-94-263.
• Status: Published

Opinions

Abood, Presiding Judge.

This is an appeal from a judgment of the Lucas County Court of Common Pleas, Juvenile Division, which ordered appellant to serve a previously stayed six-month commitment to the Department of Youth Services.

Appointed appellate counsel, Joseph R. Scalzo, has submitted a motion to withdraw pursuant to Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. In support of his motion, counsel for appellant states that after reviewing the record of the proceedings in the trial court, researching the applicable law and conferring with trial counsel, he was unable to find any meritorious, appealable issues. Counsel for appellant does, however, set forth three potential assignments of error:

“I. The trial court failed to strictly comply with Ohio Juvenile Rule 29[D].

“II. Whether juvenile-appellant was denied the effective assistance of counsel at trial, in violation of his Sixth Amendment rights.

“III. The court abused its discretion by committing juvenile to the Department of Youth Services in violation of Juvenile Rule 35(B).”

The facts giving rise to this appeal are as follows. On September 20,1993, appellant was adjudicated delinquent by the Lucas County Court of Common Pleas, Juvenile Division, based on a reduced charge of gross sexual imposition. In the same judgment entry the court (1) sentenced appellant to commitment to the Department of Youth Services; (2) stayed the commitment order; and (3) placed appellant on probation. One condition of appellant’s probation was his placement in rehabilitative detention at St. Anthony’s Villa, Sexual Offenders Treatment (“SOT”) program. A second condition of probation was that he cooperate and participate with treatment.

On June 17, 1994, a motion to show cause why disposition should not be changed was filed by appellant’s probation officer, which alleged that “[appellant] violated the court order by leaving the St. Anthony Villa Residential SOT program without permission and is currently A.W.O.L. and his whereabouts at this time are unknown.”

On June 24, 1994, a separate complaint' that was assigned a separate case number was filed by an officer of the Toledo Police Department, which alleged that appellant “did on listed date break out a window at listed location and escape from his treatment center. While doing so the Def. did cause a counselor * * * to chase him and in the process of that chase did cause other members of that facility to become involved in the chase. Causing much confusion and disruption in the normal school activity.”

On July 1, 1994, a hearing was conducted by a referee of the juvenile court. A transcript from the hearing shows that the following exchange took place:

“THE COURT: My understanding, Mr. Driscoll, that there’s been an agreement reached in these matters.

“MR. DRISCOLL: Yes, Honor. At this time there’s going to be an admission made to Complaint Number 94-11743, violation of safe school ordinance. On that admission, I will not INAUDIBLE, and proceed to the motion to show cause, Your Honor.

“THE COURT: And Mr. Popil, is that your understanding?

“MR. POPIL: Yes, Your Honor. I would like to state for the record I did talk with my client [appellant] this morning. He is aware that he has a right to a trial regarding the window incident. At this time he would like to admit and state what actually happened last week on this offense.

“And he does know potential penalties if he does admit to this offense. He knows his constitutional rights to a trial, to remain silent, that he’s presumed innocent, that the prosecutor has to prove beyond a reasonable doubt, the right to call witnesses, etc.

“At this time he wants to give up his rights and admit to the 94 case, with the understanding that the motion to show cause will be dismissed.”

At the conclusion of the attorneys’ statements, the following exchange took place.

“THE COURT: [Appellant], I’m going to ask you a couple questions just to make sure what your attorney said is correct. You understand that you do have the right to have a trial on this safe school ordinance?

“[APPELLANT]: Yes sir.

“THE COURT: It’s my understanding that you don’t want a trial and that you’re going to admit today, is that right?

“[APPELLANT]: Yes sir.

“THE COURT: And you understand that you are on a stayed commitment. That means that if you admit to this charge today, the Court could lift that stay and send you to D.Y.S., do you understand that that can happen?

“[APPELLANT]: Yes sir.

“THE COURT: No one’s forcing you to admit today, you’re doing it because you want to?

“[APPELLANT]: Yes sir.

“THE COURT: And no one’s made you any promises as to what the Court will do if you admit today?

“[APPELLANT]: Yes sir.

“THE COURT: Is it true then that on June 23rd, 1994, that you broke out a window at St. Anthony Villa?

“[APPELLANT]: Yes sir.

“THE COURT: And it’s also true that you were chased?

“[APPELLANT]: Yes sir.

“THE COURT: And this cause[d] disruption and confusion of the school activity at St. Anthony’s Villa?

“[APPELLANT]: Yes sir.

“THE COURT: How old were you when this happened?

“[APPELLANT]: Seventeen, sir.

“THE COURT: And St. Anthony’s Villa is located in Lucas County, Ohio, correct?

“[APPELLANT]: Yes Sir.

“THE COURT: State satisfied with the admission?

“MR. DRISCOLL: Yes.

“THE COURT: The Court is also satisfied that the admission is knowingly, voluntarily made. The Court therefore finds [appellant] to be in violation of the safe school ordinance.”

The transcript shows that the focus of the hearing then changed to disposition. Appellant told the referee that he refused to return to St. Anthony’s Villa SOT program and that if he was returned there he would run away. Following two further hearings and appellant’s continued refusal to change his position regarding a return to St. Anthony’s Villa, the referee made the following statements on the record:

“THE COURT: This is the Lucas County Court of Common Pleas, Juvenile Division. We’re here on this 21st day of July, 1994. We’re here in the matter styled * * * [appellant’s full name].

“This matter was continued today for final disposition. The Court has continued this matter a number of times. * * *

« * * *

“THE COURT: Okay. The Court will lift the stay on the gross sexual imposition charge, commit you to the Department of Youth Services for a minimum of six months. Court will order that you not be released until you complete sex appropriate treatment in the institution. * * *

i< # * *

“THE COURT: This hearing is adjourned. You’ll be credited for the time you spent in C.S.I. This hearing is adjourned.”

Thereafter the court approved the written recommendation of the referee and ordered the prior stay rescinded and appellant committed to the Department of Youth Services “for a minimum period of six months to age 21.” On August 29, 1994, appellant filed a pro se notice of appeal, “from the commitments imposed in the above-captioned case on the 28th of July 1994 and from all rulings of the Court on all motions and objections of the juvenile or counsel.” On October 4, 1994, counsel was appointed for appellant for purposes of appeal. On January 13, 1995, counsel for appellant filed his brief and request to withdraw as counsel pursuant to Anders, supra.

Anders, supra, and State v. Duncan (1978), 57 Ohio App.2d 93, 11 O.O.3d 83, 385 N.E.2d 323, set forth the procedure to be followed by appointed counsel who desires to withdraw for want of a meritorious, appealable issue. In Anders, the United States Supreme Court held that if counsel, after a conscientious examination of the case, determines an appeal to be wholly frivolous, he should so advise the court and request permission to withdraw. Id. at 744, 87 S.Ct. at 1400, 18 L.Ed.2d at 498. This request, however, must be accompanied by a brief which identifies anything in the record that could arguably support an appeal. Counsel must also furnish his client with a copy of the brief and request to withdraw and allow the client sufficient time to raise any matters that he chooses. Once these requirements have been satisfied, the appellate court must then conduct a full examination of the proceedings held below to determine if the appeal is indeed frivolous. If the appellate court determines that the appeal is frivolous, it may grant counsel’s request to withdraw and dismiss the appeal.

In this case, appointed counsel for appellant has satisfied the Anders requirements. This court notes further that appellant has not filed a pro se brief or otherwise responded to counsel’s request to withdraw. Accordingly, this court will now proceed to examine the potential assignments of error set forth by appellant’s counsel and review the entire record from the trial court to determine if this appeal lacks merit and is wholly frivolous.

The first potential assignment of error asserts that appellant was deprived of due process of law because the referee failed to strictly comply with the requirements of Juv.R. 29(D) when it accepted his admission to the new charges. Juv.R. 29(D) provides:

“Initial procedure upon entry of an admission. The court may refuse to accept an admission and 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.

“The court may hear testimony, review documents, or make further inquiry, as it considers appropriate, or it may proceed directly to the action required by division (F) of this rule.”

Appellant argues that the referee in his case was obligated to strictly comply with the requirements of Juv.R. 29(D). This court recently considered the issue of a trial court’s compliance with Juv.R. 29 in accepting admissions in In re Christopher R. (1995), 101 Ohio App.3d 245, 655 N.E.2d 280, and determined that the appropriate standard is substantial compliance.

Upon consideration of the entire record of proceedings in the trial court and as summarized above, this court finds that the trial court did substantially comply with the requirements of Juv.R. 29 when it accepted appellant’s admission to the charges and, therefore, appellant’s first assignment of error is not well taken.

The second potential assignment of error asserts that appellant received ineffective assistance of trial counsel because he “was committed to the custody of the Department of Youth Services after entering his ‘admission.’ ”

The Supreme Court of Ohio has adopted a two-part test for determining whether a defendant has received ineffective assistance of counsel. The test requires evidence that (1) the representation of the defendant’s trial counsel fell below “an objective standard of reasonable representation”; and (2) the substandard representation resulted in prejudice to the complaining defendant. State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus. In addition, “in Ohio a properly licensed attorney is presumably competent.” State v. Jackson (1980), 64 Ohio St.2d 107, 110-111, 18 O.O.3d 348, 350-351, 413 N.E.2d 819, 822-823.

Upon consideration thereof, this court finds nothing in the record which would support a finding that the representation appellant received from his trial counsel fell below “an objective standard of reasonable representation.” Accordingly, appellant’s second assignment of error is found not well taken.

The third potential assignment of error asserts that the trial court abused its discretion by committing appellant “to the Department of Youth Services in violation of Juvenile Rule 35(B).”

R.C. 2151.355, which sets forth the power of a juvenile court to make dispositional orders concerning a juvenile who is found to be delinquent, states:

“(A) If a child is found by the court to be a delinquent child, the court may make any of the following orders of disposition:

U * * *

“(2) Place the child on probation under any conditions that the court prescribes. * * *

i< * * *

“(4) If the child was adjudicated delinquent by reason of having committed an act that would be an aggravated felony of the third degree or a felony of the third or fourth degree if committed by an adult, commit the child to the legal custody of the department of youth services for institutionalization for an indefinite term consisting of a minimum period of six months and a maximum period not to exceed the child’s attainment of the age of twenty-one years[.]”

Juv.R. 35(B) states:

“The court shall not revoke probation except after a hearing at which the child shall be present and apprised of the grounds on which revocation is proposed. The parties shall have the right to counsel and the right to appointed counsel * * *. Probation shall not be revoked except upon a finding that the child has violated a condition of probation of which the child had * * * been notified.”

Unless the juvenile court exceeds the statutory sentencing guidelines or abuses its discretion, this court will not reverse the decision of the juvenile court on appeal. In re Anthony M. (Mar. 10, 1995), Lucas App. No. L-94-204, unreported, 1995 WL 96786. An abuse of discretion “connotes more than an error of law or of judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 173, 404 N.E.2d 144, 148.

Upon consideration of the entire record of proceedings before the trial court and as summarized above, this court finds that the trial court did not act outside its statutory authority or in abuse of its discretion when it rescinded its prior stay and committed appellant to the Department of Youth Services “for a minimum period of six months to age 21.” Accordingly, appellant’s third assignment of error is found not well taken.

Upon our own independent review thereof, this court finds further that the record fails to reveal any arguable issues for appeal and that this appeal is wholly frivolous. The motion to withdraw filed by appellant’s counsel is, therefore, granted and the decision of the Lucas County Court of Common Pleas, Juvenile Division, is hereby affirmed. Appellant is ordered to pay the court costs of this appeal.

Judgment affirmed.

Glasser, J., concurs. Handwork, J., dissents.