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In re D.F.

Court of Appeals of Ohio, Fifth District, Coshocton

August 21, 2017

IN RE: D.F.

         Appeal from the Coshocton County Court of Common Pleas, Juvenile Division

          For Appellee BENJAMIN E. HALL Coshocton County Prosecutor's Office Assistant Prosecuting Attorney.

          For Appellant CHARLYN BOHLAND The Office of the Public Defender.

          JUDGES: Hon. Patricia A. Delaney, P.J. Hon. William B. Hoffman, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          Hoffman, J.

         {¶1} D.F., a juvenile at the time of the offenses, appeals his adjudication, disposition, serious youthful offender classification, and adult sentence entered by the Coshocton County Court of Common Pleas, Juvenile Division. Appellee is the state of Ohio.

         STATEMENT OF PROCEEDINGS[1]

         {¶2} On January 17, 2014, the State filed a Bill of Information alleging D.F. committed two counts of rape, felonies of the first degree, in violation of R.C. 2907.02(A)(1)(b), with each charge carrying an attendant serious youthful offender specification, pursuant to R.C. 2152.11(D)(2)(b); and one count of gross sexual imposition, a third degree felony, in violation of R.C. 2907.05(A)(4).

         {¶3} Appellant's date of birth is October 18, 1995, and the offenses were alleged to have occurred between December 3, 2009 and January 16, 2013.

         {¶4} On January 17, 2014, Appellant entered an admission to the charges. The matter proceeded to disposition on January 30, 2014. The juvenile court committed Appellant to the Ohio Department of Youth Services for a minimum of two years and six months, maximum of up to Appellant's twenty-first birthday. Pursuant to the serious youthful offender specifications and R.C. 2152.11(D)(2)(b), the court imposed a suspended adult sentence of fifteen years to life on each count of rape, to be served concurrently.

         {¶5} Based upon Appellant's conduct while committed to DYS[2], on December 23, 2015, the State moved to invoke the suspended adult sentence under the serious youthful offender specification. On October 4, 2016, the trial court conducted a hearing, and imposed the previously suspended adult term of fifteen years to life. The trial court on the same date held a hearing and imposed a juvenile disposition regarding classification. The court classified Appellant a Tier III, Public Registry Qualified Juvenile Offender Registrant (PRQJOR), pursuant to R.C. 2152.86. The parties and the trial court acknowledged all juvenile dispositions terminated upon the imposition of an adult sentence, but "waived any defect to this juvenile dispositional order and…affirmed its intention for this juvenile order to survive the adult sentence." (10/5/2016 Judgment Entry) Counsel for Appellant did not object to the sentence or classifications.

         {¶6} Appellant appeals, assigning as error,

I.THE JUVENILE COURT ERRED WHEN IT FAILED TO APPOINT A GUARDIAN AD LITEM TO PROTECT D.F.'S BEST INTERESTS, IN VIOLATION OF R.C. 2151.281(A)(1) AND JUV. R. 4(B)(1).
II. THE MANDATORY SENTENCING SCHEME IN R.C. 2971.03 IS UNCONSTITUTIONAL BECAUSE IT DOES NOT PERMIT THE TRIAL COURT TO MAKE AN INDIVIDUALIZED DETERMINATION ABOUT D.F.'S SENTENCE OR THE ATTRIBUTES OF HIS YOUTH, IN VIOLATION OF HIS RIGHT TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT, AS GUARANTEED BY THE EIGHTH AMENDMENT TO THE U.S. CONSTITUTION, AND ARTICLE I, SECTION 9, OHIO CONSTITUTION.
III.THE JUVENILE COURT ERRED WHEN IT CLASSIFIED D.F. AS A PUBLIC REGISTRY QUALIFIED JUVENILE OFFENDER REGISTRANT (PRQJOR), PURSUANT TO R.C. 2152.86, IN VIOLATION OF IN RE C.P., 131 OHIO ST.513, 2012-OHIO-1446, 967 N.E.2D 729, ¶86.
IV. THE JUVENILE COURT ERRED WHEN IT CLASSIFIED D.F. TO AN ADULT TIER III REGISTRATION, PURSUANT TO THE ADULT STATUTES, IN VIOLATION OF R.C. 2152.82, 2152.83, 2152.84, 2152.85, AND 2950.01 (G), (M).
V. D.F. WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION; AND, ARTICLE I, SECTION 10, OHIO CONSTITUTION.

         I.

         {¶7} The question of whether R.C. 2151.281(A)(1) and Juv.R. 4(B)(1) impose a mandatory duty upon the court to appoint a GAL, and whether the court failed to discharge that duty, constitutes a mixed question of law and fact and is subject to de novo review. State v. Lindstrom, 8th Dist. Cuyahoga No. 96653, 2011-Ohio-6755, ¶ 20; M6 Motors, Inc. v. Nissan of N. Olmsted, L . L.C.,2014-Ohio-2537, 14 N.E.3d 1054, ΒΆ 48 (8th Dist.) ("Statutory interpretation is a question of law that we review de novo.") De novo review means the appellate court independently reviews the record and affords no deference ...


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