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In re D.L.

Court of Appeals of Ohio, Fifth District, Stark

May 15, 2017

IN THE MATTER OF: D.L. MINOR CHILD

         Civil Appeal from the Court of Common Pleas, Juvenile Division, Case No. 2015 JCR 00693

          For Plaintiff-Appellee JOHN D. FERRERO PROSECUTING ATTORNEY RONALD MARK CALDWELL ASSISTANT PROSECUTOR

          For Defendant-Appellant MICHAEL P. WALTON ASSISTANT PUBLIC DEFENDER

          JUDGES: Hon. William B. Hoffman, P. J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J.

          OPINION

          WISE, JOHN, J.

         {¶1} Appellant D.L., a juvenile, appeals his adjudication, in the Stark County Court of Common Pleas, Juvenile Division, for delinquency by reason of gross sexual imposition. Appellee is the State of Ohio. The relevant procedural facts leading to this appeal are as follows.[1]

         {¶2} On April 24, 2015, a juvenile complaint was filed in Stark County alleging Appellant D.L., then a 15-year-old male, was delinquent via the commission of gross sexual imposition (R.C. 2907.05(A)(4)), a felony of the third degree if committed by an adult. According to the complaint, brought under juvenile court case number 2015-JCR-00693, appellant was fourteen at the time of the offense, and the victim was a ten-year-old female.

         {¶3} Subsequently, appellant was also the subject of a delinquency complaint for allegedly violating a prior court order ("VIPCO"), under juvenile court case number 2015-JCR-01382. The two cases were combined for economy of adjudication and disposition, although 2015-JCR-01382 is not specifically referenced in the underlying notice of appeal.

         {¶4} Appellant initially entered pleas of not true.

         {¶5} On May 22, 2015, during pretrial proceedings, appellant's trial counsel requested a competency evaluation for his client. The juvenile court granted the request. Psychologist Colin Christensen, Ph.D., subsequently conducted appellant's competency evaluation.

         {¶6} In his ensuing report, Dr. Christensen discussed inter alia appellant's significant mental health history, medications, and treatment. He noted appellant's existing diagnoses included, but were not limited to, autism spectrum disorder, posttraumatic stress disorder, Asperger's disorder, dysthymia, ADHD, adjustment disorder, and anxiety disorder. See Competency Report and Evaluation, July 10, 2015, State's Exh. 5, at 3. Dr. Christensen also determined that appellant sometimes demonstrated a "lack of common sense, " but displayed above-average intelligence. See Evaluation at 4. Dr. Christensen further concluded that appellant was not competent to stand trial in the juvenile court at that time, but in his professional opinion it was "likely that [appellant] could attain competency to stand trial within six months in a nonresidential setting." See Evaluation at 6-7 (emphases deleted). The recommended competency attainment services included education regarding the seriousness of the charges, the roles of the judge and the attorneys, appreciation of the consequences of the charges and future adjudication, and decision-making as to plea bargaining. Id. at 7.

         {¶7} On July 20, 2015, based upon a stipulation to the aforesaid report, the juvenile court ordered that appellant undergo competency attainment services, and that periodic review take place of the progress of these services. Accordingly, Kimberly Genis, M.Ed., who is employed by the juvenile court to provide attainment and/or restorative services, including competency attainment, conducted nine sessions with appellant over a three-month period. Genis also submitted periodic reports to the court, the last of which, submitted October 29, 2015, reached the following conclusion: "It is through review of created modules, discussion, questioning, a courtroom tour and quizzes that I have come to the conclusion that [appellant] has successfully achieved the goals of the attainment plan." See State's Exh. 8.

         {¶8} The case was then set for a pre-trial to the senior magistrate on November 16, 2015. At said hearing, the State asked the court to proceed to an adjudicatory hearing based upon Genis's aforesaid report that essentially concluded attainment had been successful. However, appellant's defense counsel disputed proceeding to adjudication, and instead requested another competency evaluation. Defense counsel urged that since Genis's role was to provide attainment services, not to determine competency, an additional qualified competency review was needed, including a review of the attainment service reports. Tr. at 8. The senior magistrate ultimately did not grant counsel's request for a new evaluation, but he scheduled an evidentiary hearing before the juvenile judge. See Magistrate's Order, Nov. 18, 2015.

         {¶9} After one continuance, the evidentiary hearing regarding competency went forward on December 22, 2015. The State called Ms. Genis as a witness, while appellant called Dr. Christensen. Appellant also called Clorinda Brace, service coordinator for the Tuscarawas County Family Children's First Council, and Jamar Wedeaamn, appellant's direct care mentor from Pathway Caring for Children.

         {¶10} Via a judgment entry issued the day after the competency hearing, the juvenile court found appellant competent for purposes of adjudication; i.e., it concluded appellant had "attained a necessary level of competency to stand trial on this offense."

         {¶11} The matter proceeded to an additional pre-trial hearing before a magistrate on February 1, 2016. The court was informed at that time that appellant would be entering an admission to the gross sexual imposition complaint. After reciting the rights appellant would be waiving by entering an admission, the court accepted appellant's plea of true.

         {¶12} Upon the completion of a risk assessment, the juvenile court conducted a dispositional hearing on May 9, 2016. Following said hearing, appellant was committed to the Ohio Department of Youth Services for a minimum period of six months and a maximum period until his twenty-first birthday. The court also classified appellant as a Tier I juvenile sex offender. A final judgment entry was filed on May 19, 2016.

         {¶13} On June 17, 2016, appellant filed a notice of appeal. He herein raises the following sole Assignment of Error:

         {¶14} "I. D.L WAS DENIED HIS RIGHT TO DUE PROCESS OF LAW WHEN HE WAS ADJUDICATED DELINQUENT WHILE HE WAS INCOMPETENT, IN VIOLATION OF R.C. 2152.51; JUV.R. 29; THE FIFTH AND FOURTEENTH AMENDMENTS TO THE U.S. ...


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