[Cite as In re Johnathan L., 2012-Ohio-888.]


                                       COURT OF APPEALS
                                      KNOX COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT




IN THE MATTER OF:                              :    JUDGES:
                                               :    Hon. W. Scott Gwin, P.J.
JOHNATHAN L.                                   :    Hon. Sheila G. Farmer, J.
                                               :    Hon. John W. Wise, J.
                                               :
                                               :    Case No. 11-CA-17
                                               :
                                               :    OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Juvenile Division, Case No.
                                                    2111306


JUDGMENT:                                           Judgment Vacated and Remanded




DATE OF JUDGMENT:                                   March 5, 2012




APPEARANCES:

For Appellant                                       For Appellee

AMANDA J. POWELL                                    CHARLES T. MCCONVILLE
250 East Broad Street                               117 East High Street
Suite 1400                                          Suite 234
Columbus, OH 43215                                  Mount Vernon, OH 43050
Knox County, Case No. 11-CA-17                                                            2

Farmer, J.

       {¶1}   On August 24, 2011, appellant, Johnathan L., a juvenile, was charged with

trafficking in drugs in violation of R.C. 2925.03(A)(1). An adjudicatory and dispositional

hearing was held on August 30, 2011. Appellant was not represented by counsel, and

admitted the charge.     By journal entry filed August 31, 2011, the trial court found

appellant to be delinquent and placed him in the custody of the Ohio Department of

Youth Services for a minimum term of six months with a possible maximum term until

his 21st birthday.

       {¶2}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

       {¶3}   "THE TRIAL       COURT       VIOLATED JOHNATHAN L.'S             RIGHT    TO

COUNSEL AND RIGHT TO DUE PROCESS UNDER THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION 16

OF THE OHIO CONSTITUTION, OHIO REVISED CODE SECTION 2151.352 AND

JUVENILE RULES 3, 4 AND 29."

                                             I

       {¶4}   Appellant claims the trial court failed to obtain a valid waiver of counsel or

to appoint counsel prior to accepting his admission, and the colloquy between the trial

court and appellant on the issue was inadequate. We agree.

       {¶5}   A juvenile's right to counsel is codified in R.C. 2151.352 and Juv.R. 4

which state the following, respectively:
Knox County, Case No. 11-CA-17                                                           3


       {¶6}   "[R.C. 2151.352] A child, the child's parents or custodian, or any other

person in loco parentis of the child is entitled to representation by legal counsel at all

stages of the proceedings under this chapter or Chapter 2152. of the Revised Code.***If

a party appears without counsel, the court shall ascertain whether the party knows of

the party's right to counsel and of the party's right to be provided with counsel if the

party is an indigent person. The court may continue the case to enable a party to obtain

counsel, to be represented by the county public defender or the joint county public

defender, or to be appointed counsel upon request pursuant to Chapter 120. of the

Revised Code. Counsel must be provided for a child not represented by the child's

parent, guardian, or custodian. If the interests of two or more such parties conflict,

separate counsel shall be provided for each of them.

       {¶7}   "[Juv.R. 4] Every party shall have the right to be represented by counsel

and every child, parent, custodian, or other person in loco parentis the right to appointed

counsel if indigent.   These rights shall arise when a person becomes a party to a

juvenile court proceeding. When the complaint alleges that a child is an abused child,

the court must appoint an attorney to represent the interests of the child. This rule shall

not be construed to provide for a right to appointed counsel in cases in which that right

is not otherwise provided for by constitution or statute."

       {¶8}   Although the trial court did conduct a discussion on appellant's rights,

including the right to an attorney (T. at 4), the discussion on waiving his right to an

attorney was very brief:

       {¶9}   "THE COURT: Okay. All right. My next obligation is to go over your plea

options of the three ways that you can answer these charges.
Knox County, Case No. 11-CA-17                                                            4


       {¶10} "And the first option you have is to ask for a delay or a continuance so that

you can have the opportunity to speak to an attorney. So option one would be to ask for

a continuance to see to an attorney.

       {¶11} "The second option you have, with or without an attorney, is to ask for a

formal hearing, which you are entitled to and the way you ask for a formal hearing is to

plead not guilty. That's option Number two.

       {¶12} "And the third and final option, of course, is to plead guilty.

       {¶13} "So Mr. [L.], I certainly think you ought to discuss this with your mother at

least one more time, but I want to start with the most serious charge and find out how

you want to plead to this charge of aggravated trafficking in drugs.

       {¶14} "JOHNATHAN [L.]: Guilty.

       {¶15} "THE COURT: All right. You want to plead guilty to that charge.

       {¶16} "JOHNATHAN [L.]: Yes, sir.

       {¶17} "***

       {¶18} "THE COURT: Are you doing that freely and voluntarily? Nobody has

offered you any bribes or made any threats to get you to plead guilty?

       {¶19} "JOHNATHAN [L.]: No, sir." T. at 6-8.

       {¶20} Most notably, the record is silent as to a written waiver of attorney. In In re

C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, ¶109, the Supreme Court of Ohio held the

following:

       {¶21} "In cases such as this one, in which a juvenile is charged with a serious

offense, the waiver of the right to counsel must be made in open court, recorded, and in

writing. Cf. State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024,
Knox County, Case No. 11-CA-17                                                        5


paragraph two of the syllabus. If a written waiver has been executed, the juvenile court

judge must consider the form used and the juvenile's literacy level to ensure that the

juvenile has an intelligent understanding of the document and an appreciation of the

gravity of signing it. See, e.g., In re Shane (Jan. 26, 2001), Darke App. No. 1523, 2001

WL 62550, *3."

       {¶22} The trial court acknowledged the charge "is a very serious charge." T. at

6. The state concedes the issue of not obtaining a written waiver of counsel. Appellee's

Brief at 2.

       {¶23} Upon review, we agree with appellant's arguments herein and vacate the

admission and disposition and remand the matter for further proceedings according to

law.

       {¶24} The sole assignment of error is granted.

       {¶25} The judgment of the Court of Common Pleas of Knox County, Ohio,

Juvenile Division is hereby vacated.

By Farmer, J.

Gwin, P.J. and

Wise, J. concur.


                                           _s/ Sheila G. Farmer____________



                                           _s/ W. Scott Gwin         _________



                                           s/ John W. Wise      ______________

SGF/sg 229                                               JUDGES
[Cite as In re Johnathan L., 2012-Ohio-888.]


                     IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT




IN THE MATTER OF:                              :
                                               :
JOHNATHAN L.                                   :        JUDGMENT ENTRY
                                               :
                                               :
                                               :
                                               :        CASE NO. 11-CA-17




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Knox County, Ohio, Juvenile Division is

vacated and the matter is remanded to said court for further proceedings consistent with

this opinion. Costs to appellant.




                                               _s/ Sheila G. Farmer____________



                                               _s/ W. Scott Gwin       _________



                                               s/ John W. Wise     ______________

                                                       JUDGES
