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In re D.J.

Court of Appeals of Ohio, Ninth District, Summit

July 24, 2019

IN RE: D.J.

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. DL-11-11-2532

          JENNIFER M. KINSLEY, Attorney at Law, for Appellant.

          SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          CALLAHAN, PRESIDING JUDGE.

         {¶1} Appellant, D.J., appeals the decision of the Summit County Court of Common Pleas, Juvenile Division, that dismissed his petition for postconviction relief without a hearing. This Court affirms.

         I.

         {¶2} In 2012, D.J. was adjudicated delinquent by virtue of committing rape, a violation of RC. 2907.02(A)(1)(b), and murder, a violation of RC. 2903.02(B). The charges arose out of the rape and subsequent death of D.J.'s three-year-old sister, M.R.J., following a period of time in which she was in his care. D.J. was fifteen years old at the time of the offense. The juvenile court found that D.J. was a serious youthful offender and committed him to the custody of the Ohio Department of Youth Services ("ODYS") through his twenty-first birthday. The juvenile court also imposed an adult sentence on the rape charge of life imprisonment with parole eligibility after twenty-five years pursuant to R.C. 2907.02(B), R.C. 2971.03(A)(2), and R.C. 2152.13(D)(1)(a), but stayed the adult portion of the sentence pending D.J.'s completion of the juvenile disposition. D.J. filed, but voluntarily dismissed, an appeal from his adjudication and disposition.

         {¶3} During the juvenile portion of his disposition, D.J. appeared before the juvenile court for periodic dispositional reviews. During these reviews, the juvenile court made findings that reflected a mixed view of his progress. On October 7, 2016, the State moved to invoke the adult portion of D.J.'s sentence, arguing that he had not engaged in sex offender treatment while in the custody of ODYS. Because D.J. was within two months of his twenty-first birthday, the State also moved for an expedited hearing on the motion. The juvenile court granted the motion to invoke the adult sentence on November 22, 2016, five days before D.J.'s twenty-first birthday. In granting the motion, the juvenile court emphasized D.J.'s failure to participate in sex offender programming until January 2016 and his "superficial" participation thereafter. The juvenile court noted that "[D.J.]'s defiance and failure to timely engage in treatment constitutes conduct that demonstrates that [D.J.] has not been rehabilitated during the course of his ODYS commitment and cannot complete treatment so that he can safely enter the community in the few days that remain before his 21st birthday." On November 23, 2016, the trial court imposed the adult portion of D.J.'s sentence.

         {¶4} D.J. appealed the juvenile court's order that granted the State's motion to invoke the adult portion of his sentence. The transcript in that direct appeal was filed with the clerk of this Court on January 27, 2017. On January 31, 2018, while that appeal was pending, D.J. petitioned the juvenile court for postconviction relief, asserting five claims for relief. The juvenile court did not take any action on the petition while the direct appeal was pending in this Court. On February 13, 2018, this Court affirmed the juvenile court's order that granted the State's motion to invoke the adult portion of D.J.'s sentence. In re D.J, 9th Dist. Summit No. 28472, 2018-Ohio-569. On February 28, 2018, the juvenile court determined that upon its initial review of the petition, D.J. would be allowed an evidentiary hearing on claims one, two, four, and five, but not on claim three. The juvenile court also ordered the parties to submit briefs on claims one, two, and four. The State moved to dismiss the petition, arguing that all of D.J.'s claims for relief were barred by res judicata or otherwise without merit. In response, D.J. conceded that claims three and four could have been raised on direct appeal.

         {¶5} On June 29, 2018, the juvenile court ruled on D.J.'s remaining claims for relief without having conducted an evidentiary hearing, concluding that each was barred by res judicata. D.J. filed this appeal. After oral argument on April 2, 2019, this Court stayed the appeal and remanded it to the juvenile court under App.R. 9(E) so that the clerk could certify and transmit the complete record. Approximately sixty days later, the clerk filed the record from the juvenile court in this appeal. On June 17, 2019, this Court reactivated the appeal and submitted it for decision.

         II.

         ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN DISMISSING CLAIMS ONE, TWO, AND FIVE OF [D.J.]'S POST-CONVICTION PETITION ON RES JUDICATA GROUNDS, BECAUSE THE CLAIMS RELIED UPON EVIDENCE OUTSIDE THE RECORD.

         {¶6} In his only assignment of error, D.J. argues that the juvenile court erred by concluding that each of his claims for relief was barred by res judicata. This Court concludes that D.J. did not comply with the timeliness requirements set forth in R.C. 2953.21(A)(2), however, so the juvenile court lacked jurisdiction to consider his untimely petition. See State v.Jones, 10th Dist. Franklin No. 18AP-578, 2019-Ohio-1014, ΒΆ 12 (noting that a court ...


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