[Cite as In re D.P., 2014-Ohio-5414.]


                IN THE COURT OF APPEALS
            FIRST APPELLATE DISTRICT OF OHIO
                 HAMILTON COUNTY, OHIO



IN RE: D.P.                              :       APPEAL NO. C-140158
                                                 TRIAL NO. 13-487Z
                                         :


                                         :            O P I N I O N.




Appeal From: Hamilton County Juvenile Court

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: December 10, 2014


Gordon C. Magella for Appellant D.P.,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for Appellee State of Ohio.




Please note: this case has been removed from the accelerated calendar.
                  OHIO FIRST DISTRICT COURT OF APPEALS


FISCHER, Judge.

       {¶1}   D.P. appeals the February 27, 2014 judgment of the Hamilton County

Juvenile Court that committed him to the Department of Youth Services (“DYS”) and

credited him with the 99 days he had been “confined” at the Hamilton County Youth

Center towards his DYS commitment. He argues that he was also “confined” at the

Hillcrest School, and that the juvenile court erred by failing to credit him with the

days he had spent there prior to his commitment to DYS.

       {¶2}   After reviewing the applicable statute, R.C. 2152.18(B), the case law,

and the record, we cannot determine whether D.P. was “confined” for purposes of

R.C. 2152.18(B), because it requires our consideration of facts relating to nature of

the Hillcrest School and the staff’s control regarding D.P.’s personal liberties during

his time there, which are not a part of the record on appeal. We, therefore, reverse

the judgment of the juvenile court and remand the matter for the development of the

record with respect to those issues.

                           Factual and Procedural Posture

       {¶3}   D.P. was charged by complaint with committing acts which, had they

been committed by an adult, would have constituted the offense of aggravated

robbery with two firearm specifications, one for possession and one for facilitation.

A magistrate adjudicated D.P. delinquent of aggravated robbery with both firearm

specifications. The matter of disposition was heard by the juvenile court judge. Prior

to the dispositional hearing, D.P. moved to dismiss the firearm specifications. The

juvenile court judge denied D.P.'s motion as it related to the firearm-possession

specification, but held in abeyance the portion of D.P.’s motion seeking to dismiss

the facilitation specification. The juvenile court judge then placed D.P. on probation

and ordered that he attend the Hillcrest School.


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       {¶4}    The state appealed the disposition. See In re D.P., 1st Dist. Hamilton

Nos. C-130293 and C-130298, 2014-Ohio-467. It argued that the juvenile court had

erred in failing to commit D.P. to DYS. Id. at ¶ 6. It further asserted that the juvenile

court's disposition was tantamount to a dismissal of the firearm-facilitation

specification and that such a dismissal was not within the court's discretion. Id. This

court agreed with the state. Id. at ¶ 7.

       {¶5}    This court held that D.P.’s commitment to DYS was mandatory under

the plain language of R.C. 2152.17(A)(2), which provides that

       If a juvenile, were he an adult, * * * would be guilty of a specification of

       the type set forth in R.C. 2941.145 of the Revised Code [a firearm

       facilitation specification], the court shall commit the child to the

       department of youth services for the specification for a definite period

       of not less than one and not more than three years, and the court also

       shall commit the child to the department for the underlying delinquent

       act under sections 2152.11 to 2152.16 of the Revised Code.

       {¶6}    Thus, we held that the juvenile court did not have the discretion to

dismiss the firearm-facilitation specification, and that D.P.’s motion to dismiss the

facilitation specification was a nullity. Id. at ¶ 10. We further held that the juvenile

court “did not have the discretion, under R.C. 2152.17(A)(2) to place D.P. on

probation and order him to attend Hillcrest.” Id. at ¶ 9. As a result, we reversed the

judgment of the juvenile court and remanded the matter for disposition pursuant to

R.C. 2152.17(A)(2). Id. at ¶ 10.

       {¶7}    On February 20, 2014, the juvenile court held a dispositional hearing.

It committed D.P. to DYS for a minimum of one year on the firearm-facilitation



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specification, and to an indefinite term of one year to age 21 on the underlying

aggravated robbery, and ordered that the commitments be served consecutively.

During the hearing, D.P.’s counsel orally moved the court to credit D.P. with the time

he had spent at the Hamilton County Youth Center and the Hillcrest School against

his DYS commitment. The state agreed that D.P. should be credited with the time he

had spent at the Hamilton County Youth Center, but it opposed D.P.’s motion to the

extent he sought to be credited for the time at the Hillcrest School.

       {¶8}   The trial court stated that it would take the matter under advisement,

and asked counsel for D.P. and the state to brief the matter. On February 21, 2014,

and February 24, 2014, the state and D.P. filed opposing briefs. On February 27,

2014, the juvenile court journalized an entry, which committed D.P. to DYS and

credited him with the 99 days he had spent at the Youth Center towards the balance

of his DYS commitment.

                                          Analysis

       {¶9}   In a single assignment of error, D.P. argues that the juvenile court

erred by failing to credit the 310 days he had spent at the Hillcrest School towards

the balance of his commitment to DYS, in violation of R.C. 2152.18.

       {¶10} In 2012 the General Assembly amended R.C. 2152.18, the statute

relating to credit that juveniles are entitled to receive towards their DYS

commitment. Under the former version of the statute, a youth committed to a DYS

facility could only receive credit for days the youth was held in “detention.” See

former R.C. 2152.18(B). The statute defined detention as “the temporary care of

children pending court adjudication or disposition, or execution of a court order, in a




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public or private facility designed to physically restrict the movement and activities

of children.” See R.C. 2151.011(B)(14).

       {¶11} The General Assembly amended R.C. 2152.18(B), effective September

28, 2012, deleting the word “detention” and replacing it with “confined.” As a result,

the statute now provides:

       When a juvenile court commits a delinquent child to the custody of the

       department of youth services pursuant to this chapter, the court shall

       state in the order of commitment the total number of days that the

       child has been confined in connection with the delinquent child

       complaint upon which the order of commitment is based. The court

       shall not include days that the child has been under electronic

       monitoring or house arrest or days that the child has been confined in

       a halfway house. The department shall reduce the minimum period of

       institutionalization that was ordered by both the total number of days

       that the child has been so confined as stated by the court in the order

       of commitment and the total number of any additional days that the

       child has been confined subsequent to the order of commitment but

       prior to the transfer of physical custody of the child to the department.

       {¶12} Under the plain language of the statute, the juvenile court, upon D.P.'s

commitment to DYS, was required to calculate the total number of days D.P. had

been “confined” in connection with the delinquent-child complaint upon which his

order of commitment was based. The court could not include any days that D.P. had

been on electronic monitoring, house arrest, or “confined in a halfway house.” See

R.C. 2152.18(B).



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        {¶13} The term “confined” is not defined in R.C. Chapter 2152. D.P. and the

state dispute the meaning of the term. The state argues that the term “confine” is

synonymous with imprison, incarcerate, and jail. It contends that because Hillcrest

School is not a lockdown facility, D.P. was not “confined,” and therefore, he is not

entitled to credit for any days he spent there. D.P. argues that this court should

apply the definition of “confinement” in R.C. 2967.191, the adult-jail-time credit

statute, as articulated by the Ohio Supreme Court in State v. Napier, 93 Ohio St.3d

646, 648, 758 N.E.2d 1127 (2001).

        {¶14} In Napier, the Ohio Supreme Court addressed whether time in a

community-based corrections facility (“CBCF”) should be credited against prison

time under R.C. 2967.191 since inmates have much greater opportunities to leave the

facilities than those confined in prison or jail. In that case, the defendant had

pleaded guilty to felony drug possession and had been sentenced to three years of

community-control sanctions, including evaluation and treatment at a residential

CBCF.     Id. at 649.    After the defendant had violated his community-control

sanctions, the trial court imposed an eight-month prison sentence, and the

defendant claimed he was entitled to credit for 110 days spent at the CBCF. The trial

court granted the defendant credit for only 30 days at the facility when he had been

in a “lockdown” status, and not permitted to leave the facility. Id. at 647.

        {¶15} The Supreme Court reversed the trial court's decision, holding that the

defendant was entitled to credit for all the time he had spent at the facility. Id. at

648. In reaching this conclusion, the Supreme Court focused on its prior opinion in

State v. Snowder, 87 Ohio St.3d 335, 720 N.E.2d 909 (1999), where, in considering

whether a CBCF was “confinement,” it had looked to the definition of a CBCF, which



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“must be a secure facility that contains lockups and other measures sufficient to

ensure the safety of the surrounding community.” Napier at 648.            The Supreme

Court looked at the exact qualities of the facility, as well as the specific nature of the

defendant's experience at the facility as compared to the experience of the defendant

in Snowder, to determine whether he had been sufficiently restricted so as to

constitute “confinement.” Id.

       {¶16} The Supreme Court ruled that because a CBCF exercises effective

control over the ability of the offender to leave the facility and the facility is secured

in such a way to prevent offenders from entering the community without approval of

the facility's managers, “all time served in a CBCF constitutes confinement for the

purposes of R.C. 2967.191” even though the offender may be permitted to leave to

participate in employment and other activities outside the CBCF. Id. at syllabus and

648.

       {¶17} In In re K.A., 6th Dist. Lucas No. L-12-1334, 2013-Ohio-3847, the only

case interpreting the amended version of R.C. 2152.18(B), the Sixth Appellate

District, in determining whether a juvenile was entitled to credit for time spent at the

Youth Treatment Center, a community corrections facility, followed the Supreme

Court's definition of “confinement” in Napier. Id. at ¶ 5.

       {¶18} We, too, adhere to that interpretation of “confinement.” In light of the

Supreme Court's interpretation of “confinement” in Napier, we cannot agree with the

state that juveniles are never entitled to credit for “confinement” unless they are in a

lockdown facility. Rather, juvenile courts must review the nature of the facility, to

see if it is a secure facility with measures sufficient to ensure the safety of the

surrounding community. Napier at 648. They must also review the nature of the



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                  OHIO FIRST DISTRICT COURT OF APPEALS



restrictions on the juvenile at the facility to determine if the juvenile was “free to

come and go as he wished” or if he was “subject to the control of the staff regarding

personal liberties” as contemplated by Napier. Id.

       {¶19} After an exhaustive review of the record, we are unable to determine

whether D.P.’s time at Hillcrest School constitutes “confinement” for purposes of

R.C. 2152.18(B). At the dispositional hearing, D.P.’s counsel and the state did not

point to any evidence in the record related to the nature of the Hillcrest facility or the

conditions affecting D.P.’s personal liberties during his time at Hillcrest. While the

parties were given the opportunity to brief the matter, their briefs consist largely of

argument without any evidentiary support. The trial court, likewise, did not make

any findings relative to the nature of either Hillcrest School or D.P.’s time there. On

appeal, D.P. and the state present contradictory arguments as to the nature of

Hillcrest School and D.P.’s time there without supporting evidence in the record.

       {¶20} Without further evidence as to the nature of Hillcrest and the nature of

the staff’s control regarding D.P.’s personal liberties, we are unable to determine the

severity of the restrictions placed upon D.P.’s freedom and, thus, we cannot conduct

a meaningful review of whether D.P. was “confined” as that term has been defined by

the Supreme Court in Napier so as to be entitled to credit for time spent at Hillcrest

School. See State v. Ventra, 11th Dist. Geauga No. 2010-G-2968, 2011-Ohio-156, ¶

19-20. We, therefore, sustain D.P.’s assignment of error to the extent that the record

does not contain enough evidence to support the trial court’s judgment, and the

cause must be remanded so that the record can be developed as to the nature of the

Hillcrest School and the staff’s control regarding D.P.’s personal liberties, and a

determination can be made as to whether he was “confined” within the meaning of



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                  OHIO FIRST DISTRICT COURT OF APPEALS



R.C. 2152.18(B). We reverse the judgment of the trial court, and remand this matter

for further proceedings consistent with this opinion and the law.

                                               Judgment reversed and cause remanded.


CUNNINGHAM, P.J., concurs.
HENDON, J., concurs separately.


HENDON, J., concurring separately.

       {¶21} While my experience on the juvenile court bench leads me to perhaps a

general conclusion as to the nature of Hillcrest School and its similarities and

differences from the language used in the adult statute defining “confinement,” R.C.

2967 et seq., I concur with the majority in believing that this matter should be

remanded to give the trial court the opportunity to develop evidence for the record of

the characteristics of that facility and to make its determination of the issue of credit

for days served in the Hillcrest setting based on that evidence.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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