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In re J.C.

Court of Appeals of Ohio, Eleventh District

June 28, 2013

IN RE: J.C., DELINQUENT CHILD

Civil Appeal from the Geauga County Court of Common Pleas, Juvenile Division, Case No. 12 JD 000362.

David P. Joyce, Geauga County Prosecutor, and Christopher J. Joyce, Assistant Prosecutor, Courthouse Annex, (For Appellee, state of Ohio).

Timothy Young, Ohio Public Defender, and Brooke M. Burns, Assistant State Public Defender, (For Appellant, J.C).

OPINION

COLLEEN MARY OTOOLE, J.

{¶1} Appellant, J.C, appeals from the August 9, 2012 judgment of the Geauga County Court of Common Pleas, Juvenile Division, which revoked his parole and recommitted him to the custody of the Ohio Department of Youth Services ("ODYS") until his twenty-first birthday.

{¶2} On October 20, 2010, appellee, the state of Ohio, filed a delinquency complaint against appellant in the Geauga County Court of Common Pleas, Juvenile Division. The complaint alleged that appellant, born on March 30, 1992, committed an act that, if committed by an adult, would have constituted rape. On February 16, 2011, the state amended the complaint to a violation of gross sexual imposition, a felony of the third degree, in violation of R.C. 2907.05(A)(4), if committed by an adult, in exchange for a plea of true. Following a disposition hearing, on April 14, 2011, the court committed appellant to the custody of ODYS for an indefinite term ranging from a minimum of six months to a maximum of his twenty-first birthday. On October 14, 2011, appellant was released on parole.

{¶3} Thereafter, on May 10, 2012, appellant was indicted in Mahoning County for having committed felonious assault and kidnapping. Appellant pleaded to assault. He was sentenced to serve 180 days, fined $1, 000, and placed on monitored probation for two years.

{¶4} As a result of the Mahoning County case, on August 7, 2012, the state filed a new complaint in the Geauga County Court of Common Pleas, Juvenile Division, alleging that appellant had violated the terms of his parole. The state also filed a motion to revoke appellant's parole. Following a hearing, on August 9, 2012, the court revoked appellant's parole and recommitted him to the custody of ODYS until his twenty-first birthday, March 30, 2013. Appellant filed a timely appeal asserting the following two assignments of error:

{¶5} "[1] The juvenile court committed plain error when it ordered [appellant] to return to the Department of Youth Services until his 21st birthday for a parole violation. R.C. 5139.52(F); Fifth and Fourteenth Amendments to the United States Constitution; Article I, Section 16 of the Ohio Constitution; R.C. 5139.52(F)[.]

{¶6} "[2.] [Appellant] was denied the effective assistance of counsel when his attorney failed to object to the imposition of a minimum commitment that doesn't expire until his 21st birthday."

{¶7} Preliminarily, we note that appellant's twenty-first birthday, March 30, 2013, has passed and he is no longer in custody. A decision made after that date renders his appeal moot. Nevertheless, although his appeal is now moot, we hold that the underlying legal question in this matter is capable of repetition yet evading review. See In re A.N., Delinquent Child, 11th Dist. Nos. 2011-A-0057 and 2011-A-0058, 2012-Ohio-1789, ¶9 (holding "a court may hear and determine on the merits an appeal 'that is otherwise moot when the issues raised are "capable of repetition, yet evading review."' Nextel West Corp. v. Franklin Cty. Bd. of Zoning Appeals, 10th Dist. No. 03AP-625, 2004-Ohio-2943, ¶14, citing State ex rel. Plain Dealer Pub. Co. v. Barnes, 38 Ohio St.3d 165 (1988), paragraph one of syllabus. Accord In re AG Subpoena, 11th Dist. No. 2009-G-2916, 2010-Ohio-476.")

{¶8} Upon consideration, the state is correct regarding the fact that appellant's 21st birthday has already occurred. However, as we will address below, this panel is not directly following In re A.N. with respect to the R.C. 5139.52(F) issue. Therefore, the state's "Motion to Dismiss Appellant's First Assignment of Error for Mootness, " is hereby overruled.

{¶9} Thus, we now turn to appellant's first assignment of error, in which he argues that the juvenile court committed plain error by ordering him to return to the custody of ODYS until his 21st birthday for a parole violation. He contends that the court only had the authority to impose 30 days according to R.C. 5139.52(F). We agree.

{¶10} Appellant did not object to the length of his recommitment to ODYS in the court below. Therefore, we review the juvenile court's disposition for plain error only. Plain error exists where there is an obvious deviation from a legal rule that affected the defendant's substantial rights by influencing the outcome of the proceedings. State v. Barnes, 94 Ohio St.3d 21, 27 (2002). "Plain error does not exist unless it can be said that but for the error, ...


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