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In re D.F.

Court of Appeals of Ohio, Fifth District, Coshocton

May 2, 2018

IN RE: D.F.

          Appeal from the Coshocton County Court of Common Pleas, Juvenile Division, Case Nos. 201420009, 2014CR008

          For Appellant CHARLYN BOHLAND The Office of the Public Defender Assistant State Public Defender

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

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

          OPINION

          Hoffman, P.J.

         {¶1} This case comes before this Court from the judgment entered by the Ohio Supreme Court on February 28, 2018, remanding for application of State v. Morgan, 2017-Ohio-7566. Appellant is D.F.; 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 (SYO) 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 SYO specification and R.C. 2152.11(D)(2)(b), the court imposed a suspended adult sentence of life imprisonment with parole eligibility after 15 years 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 SYO specification. On October 4, 2016, the trial court conducted a hearing, and imposed an adult term of incarceration 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) The court also classified Appellant a tier III adult registrant. Counsel for Appellant did not object to the sentence or classifications.

         {¶6} Appellant appealed 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, 131 Ohio St.3d 513, 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.

         {¶7} We sustained the first assignment of error, finding the court erred in failing to appoint a guardian ad litem for Appellant. We overruled the second assignment of error, finding the Ohio Supreme Court had addressed the assigned error concerning constitutionality of the statute. We found the third, fourth and fifth assignments of error to be premature based on our disposition of the first assignment of error. In re: D.F., 5th Dist. Coshocton Nos. 2016CA0015, 2016CA0016, 2017-Ohio-7307.

         {¶8} The state of Ohio appealed our decision to the Ohio Supreme Court, which accepted jurisdiction over the appeal. On February 28, 2018, the Supreme Court remanded the case to this Court for reconsideration of Appellant's direct appeal. Pursuant to instructions on remand, we address Appellant's assignments of error.

         I.

         {¶9} Appellant argues the trial court erred in failing to appoint a guardian ad litem for the SYO invocation proceedings and subsequent sentencing. Appellant did not appear with a parent or legal guardian for these proceedings, and did not object to the court's failure to appoint a guardian ad litem.

         {¶10} R.C. 2151.281(A)(1) provides:

(A) The court shall appoint a guardian ad litem, subject to rules adopted by the supreme court, to protect the interest of a child in any proceeding concerning an alleged or adjudicated delinquent child or ...

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