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In re A.S.

Court of Appeals of Ohio, First District, Hamilton

June 26, 2019

IN RE: A.S.

          Appeals From: Hamilton County Juvenile Court Trial Nos. 16-7750Z 17-2985Z

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin, Assistant Prosecuting Attorney, for Appellee State of Ohio,

          Raymond T. Faller, Hamilton County Public Defender, and Julie Kahrs Nessler and Caitlin J. Burgess, Assistant Public Defenders, for Appellant A.S.

          OPINION

          Winkler, Judge.

         {¶1} Appellant A.S. appeals the judgments of the juvenile court revoking his probation in two delinquency cases, and committing him to the Department of Youth Services ("DYS"). We determine that the juvenile court violated A.S.'s due-process rights by revoking his probation in the case numbered 17-2985Z without following Juv.R. 29 and 35. With respect to the case numbered 16-7750Z, we determine that the juvenile court erred in failing to give A.S. credit toward his DYS commitment for the days he spent at Abraxas Youth Center ("Abraxas").

         I. Facts and Procedure

         {¶2} In November 2016, the state filed a delinquency complaint against A.S. alleging that he had committed what would be the offense of burglary, if committed by an adult. The juvenile court adjudicated A.S. delinquent, imposed a suspended commitment to DYS, and placed A.S. on probation. In May 2017, the state filed another delinquency complaint against A.S. for receiving stolen property ("RSP"), accompanied by a firearm specification. The juvenile court adjudicated A.S. delinquent, imposed a suspended commitment to DYS, and placed A.S. on probation at Abraxas-a residential, behavioral-health facility.

         {¶3} In November 2017, the state filed a probation-violation complaint in A.S.'s 2016 burglary case, alleging that A.S. had violated his probation by absconding from Abraxas. The state did not file a probation-violation complaint in A.S.'s RSP case.

         {¶4} The magistrate held a hearing on the probation violation and A.S. indicated that he was prepared to admit to the violation. The magistrate told A.S. that by admitting to the probation violation, he could be sent to DYS for a minimum of six months, up to the age of 21. Neither the state nor the magistrate mentioned A.S.'s RSP case. A.S. admitted to violating his probation, and the matter was continued for disposition.

         {¶5} At the dispositional hearing, the state asked the juvenile court to "reopen" A.S.'s RSP case in order to impose the suspended commitment in that case, in addition to imposing the suspended commitment in the burglary case. A.S.'s attorney objected to the imposition of the suspended commitment in the RSP case on notice grounds. The juvenile court followed the state's recommendation and imposed a DYS commitment of six months, up to the age of 21, in A.S.'s burglary case, and also imposed a DYS commitment of six months, up to the age of 21, in A.S.'s RSP case, plus an additional 12 months for the firearm specification. The juvenile court imposed the commitments in both cases consecutively.

         {¶6} A.S. filed a motion requesting confinement credit for the time he spent at Abraxas to reduce the minimum period of his DYS commitment. The juvenile court held an evidentiary hearing to consider whether Abraxas had measures sufficient to ensure the safety of the surrounding community, and whether staff controlled the youths' personal liberties, such that Abraxas constitutes confinement. The juvenile court determined that Abraxas did not constitute confinement.

         {¶7} A.S. has appealed.

         II. Due Process under Juv.R. 29 and 35

         {¶8} We address A.S.'s second assignment of error first. In this assignment, A.S. argues that his due-process rights were violated when the juvenile court imposed the suspended commitments without following the procedures laid out in Juv.R. 29 and 35.

         {¶9} Similar to adults facing criminal charges, juveniles who are subject to delinquency proceedings "are entitled to proceedings that 'measure up to the essentials of due process and fair treatment.'" In re J.V., 134 Ohio St.3d 1, 2012-Ohio-4961, 979 N.E.2d 1203, ¶ 14, citing Kent v. United States, 383 U.S. 541, 562, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). Due-process protections apply when the state seeks to revoke a juvenile's probation, and those protections are embodied in Juv.R. 29 and 35. See In re LA.B., 121 Ohio St.3d 112, 2009-Ohio-354, 902 N.E.2d 471, ¶ 56.

         {¶10} Juv.R. 29 governs adjudicatory hearings, including probation-revocation hearings. See id. at syllabus. An "adjudicatory hearing" is conducted by the juvenile court "to determine whether a child is * * * delinquent * * * or otherwise within the jurisdiction of the court." Juv.R. 2(B). Juv.R. 29 provides in relevant part,

(B) Advisement and Findings at the Commencement of the Hearing. At the beginning of the [adjudicatory] hearing, the court shall do all of the following: (1) Ascertain whether notice requirements have been complied with and, if not, whether the affected parties waive compliance; (2) Inform the parties of the substance of the complaint, the purpose of the hearing, and possible consequences of the hearing *
(C) Entry of Admission or Denial. The court shall request each party against whom allegations are being made in the complaint to admit or deny the allegations.
(D) 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 []: (1) The party is making the admission voluntarily with understanding of the nature of ...

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