[Cite as In re T.N., 2013-Ohio-135.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                UNION COUNTY




IN THE MATTER OF:
                                                        CASE NO. 14-12-13
        T.N.,
                                                        OPINION
ADJUDICATED DELINQUENT CHILD.




                  Appeal from Union County Common Pleas Court
                                 Juvenile Division
                             Trial Court No. 21120254

                       Judgment Reversed and Cause Remanded

                           Date of Decision: January 22, 2013




APPEARANCES:

        Alison Boggs for Appellant

        Rick Rodger for Appellee
Case No. 14-12-13


PRESTON, P.J.

       {¶1} Adjudicated-delinquent/appellant, T.N., appeals the Union County

Court of Common Pleas, Juvenile Division’s judgment entry of disposition. For

the reasons that follow, we reverse.

       {¶2} During the late evening hours of December 10, 2011, T.N. kicked two

staff members at the Oesterlen Services for Youth, in Springfield, Clark County,

Ohio, where she was receiving counseling treatment for Asperger’s syndrome

stemming from two previous Union County delinquency cases (case nos.

21120157, 21120164). (Doc. Nos. 1-11); (Jan. 26, 2012 Tr. at 4, 8, 12, 15, 28-31).

When law enforcement attempted to place T.N. in custody, she refused, shook her

head “no,” and pulled her arms away from officers while they were attempting to

hand-cuff her. (Doc. Nos. 4-5, 11). Law enforcement transported T.N. to police

headquarters, and, when the police officers opened the door to the van to let T.N.

out, T.N. fled from the officers. (Id.). By the time an officer tackled T.N. to the

ground, she had managed to free her left hand from the handcuff and had placed

her hands under her body, refusing to cooperate with the officer until he threatened

T.N. with pepper spray. (Id.).

       {¶3} As a result of these events, law enforcement filed four separate

complaints, charging T.N. with two assaults, violations of R.C. 2903.13(A) and

fifth degree felonies if committed by an adult, escape in violation of R.C.


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2921.34(A)(1), a third degree felony if committed by an adult, and resisting arrest

in violation of R.C. 2921.33(A), a second degree misdemeanor if committed by an

adult. (Doc. No. 12). The charges were assigned Clark County Case Nos. 2011-

1710A, B, C, and D, respectively. (Id.).

       {¶4} On December 12, 2011, the Clark County Juvenile Court held a

pretrial for case nos. 2011-1674, charging T.N. with a fifth degree felony assault

for a separate incident. (Dec. 12, 2011 Tr. at 3). T.N. waived arraignment on the

charges in case no. 2011-1710A, B, C, and D, and the parties indicated they had

reached a plea agreement for both cases. (Id. at 3-5). Pursuant to the plea

agreement, T.N. would admit to the charge of escape in case no. 2011-1710C, and

the State would dismiss all the remaining charges in both cases. (Id. at 5-6). The

trial court, thereafter, accepted T.N.’s admission to the escape charge, dismissed

the remaining charges, and transferred disposition to Union County, T.N.’s county

of residence and where T.N. was currently on probation. (Id. at 8-9); (Doc. Nos.

1, 12, 14-16).

       {¶5} The case was assigned Union County Case No. 21120254 upon

transfer. (Doc. No. 17). A combined hearing for review of case nos. 21120157

and 211120164 and for disposition of case no. 2112054 was held on January 26,

2012 before a magistrate. (Doc. No. 24). At the hearing and prior to disposition,

counsel for T.N. made an oral motion to withdraw T.N.’s admission to the escape


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since there was serious doubt concerning whether Oesterlen Services for Youth

qualified as a “private child placing agency” for purposes of the felony-level

assault charge, which was the predicate offense elevating the escape charge to a

third degree felony. (Jan. 26, 2012 Tr. at 33). When the State questioned whether

the juvenile court in Union County could properly grant the motion since T.N.

admitted to the offense in Clark County, counsel for T.N. alternatively asked the

trial court to transfer the matter back to Clark County for consideration of the

motion to withdraw. (Id. at 34-35). The magistrate ultimately denied both of these

motions, finding that the Clark County adjudication was proper, on its face, and

that it must presume regularity. (Id. at 35).

       {¶6} The magistrate imposed six months in the Department of Youth

Services (DYS) to a maximum up to and including T.N.’s 21st birthday. (Id. at

43). The trial court also imposed 90 days in detention, giving her two days credit

for the time T.N. was detained in Clark County. (Id. at 45). However, the trial

court suspended both the DYS commitment and the remaining 88 days of

detention and continued T.N.’s previous probation. (Id. at 46-47); (Amended

Magistrate’s Decision, Doc. No. 41).

       {¶7} On February 23, 2012, T.N. filed objections to the magistrate’s

decision, arguing that the magistrate should have granted her motion to withdraw




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or, alternatively, transferred the case back to Clark County to allow her to file a

motion to withdraw. (Doc. No. 50).

       {¶8} On March 12, 2012, the trial court overruled the objections. (JE, Doc.

No. 56). The trial court concluded that Union County had jurisdiction over T.N’s

motion to withdraw once the case was transferred from Clark County; however,

the motion to withdraw should be denied because the adjudication was proper on

its face, T.N. failed to provide a transcript of the Clark County adjudication, and

consequently no evidence had been presented to demonstrate any error in the

Clark County proceedings. (JE, Doc. No. 56).

       {¶9} On April 10, 2012, T.N. filed a notice of appeal. (Doc. No. 65). T.N.

now appeals raising five assignments of error for our review. We elect to address

T.N.’s fifth assignment of error first since it is dispositive herein.

                             Assignment of Error No. V

       The Clark County Juvenile Court erred when it failed to
       conduct a proper Juvenile Rule 29(D) hearing before accepting
       appellant’s admission.

       {¶10} In her fifth assignment of error, T.N. argues that the trial court in

Clark County failed to properly conduct a proper Juv.R. 29(D) hearing prior to

accepting her admission.

       Juv.R. 29(D) provides, in pertinent part:




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      The court may refuse to accept an admission and shall not accept an

      admission without addressing the party personally and determining

      both of the following:

      (1) The party is         making the admission voluntarily with

      understanding of the nature of the allegations and the consequences

      of the admissions;

      (2) The party understands that by entering an admission the party is

      waiving the right to challenge the witnesses and evidence against the

      party, to remain silent, and to introduce evidence at the adjudicatory

      hearing.

      {¶11} Juv.R. 29 is analogous to Crim.R. 11 since both require a trial court

to personally address the offender on the record to ensure that the admission or

guilty plea is entered voluntarily, intelligently, and knowingly. In re Messmer, 3d

Dist. No. 16-08-03, 2008-Ohio-4955, ¶ 9, citations omitted; In re Smith, 3d Dist.

No. 14-05-33, 2006-Ohio-2788, ¶ 13, citing In re Flynn, 101 Ohio App.3d 778,

781 (8th Dist.1995); In re Royal, 132 Ohio App.3d 496, 504 (7th Dist.1999); In re

McKenzie, 102 Ohio App.3d 275, 277 (8th Dist.1995); In re Jenkins, 101 Ohio

App.3d 177, 179-180 (12th Dist.1995). The juvenile court has an affirmative duty

under Juv.R. 29(D) to “determine that the [juvenile], and not merely the attorney,




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Case No. 14-12-13


understands the nature of the allegations and the consequences of entering the

admission.” In re Beechler, 115 Ohio App.3d 567, 571 (4th Dist.1996).

       {¶12} The best method for complying with Juv.R. 29(D) is for the juvenile

court to use the language of the rule, “carefully tailored to the child’s level of

understanding, stopping after each right and asking whether the child understands

the right and knows he is waiving it by entering an admission.” In re Miller, 119

Ohio App.3d 52, 58 (2d Dist.1997), citing State v. Ballard, 66 Ohio St.2d 473

(1981).   Although strict compliance with Juv.R. 29(D) is preferred, only

“substantial compliance” is required. In re C.S., 115 Ohio St.3d 267, 2007-Ohio-

4919, ¶ 113. In the context of juvenile delinquency proceedings, “[s]ubstantial

compliance means that in the totality of the circumstances, the juvenile

subjectively understood the implications of his plea.” Id. Failure of a juvenile

court to substantially comply with Juv.R. 29(D) has a prejudicial effect

necessitating a reversal of the adjudication so that the juvenile may plead anew. In

re Smith, 2006-Ohio-2788, at ¶ 14, citing In re Doyle, 122 Ohio App.3d 767, 772

(2d Dist.1997); In re Hendrickson, 114 Ohio App.3d 290 (2d Dist.1996); In re

Christopher R., 101 Ohio App.3d 245, 248 (6th Dist.1995).

       {¶13} In order to substantially comply with Juv.R. 29(D)(1), “[a] defendant

need not be informed of every element of the charge brought against him, but he

must be made aware of the ‘circumstances of the crime.’” In re Wood, 9th Dist.


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Case No. 14-12-13


No. 04CA0005-M, 2004-Ohio-6539, ¶ 18, quoting State v. Lane, 11th Dist. Nos.

97-A-056, 97-A-0057, 97-A-0058 (Nov. 19, 1999).                When a juvenile is

represented by counsel or when the juvenile is served with a copy of the

complaint, there is a presumption that the juvenile has been apprised of the nature

of the charge. Id. at ¶ 18, citing In re Argo, 5th Dist. No. CT2003-055, 2004-

Ohio-4938, ¶ 32 and Bousley v. U.S., 523 U.S. 614, 618, 118 S.Ct. 1604 (1998).

       {¶14} The Court of Appeals for the Eighth Appellate District concluded

that a trial court did not substantially comply with Juv.R. 29(D)(1) when it failed

to review the elements of an offense or inquire whether the juvenile understood

the nature of the offense prior to accepting his admission, even though the

prosecutor recited the evidence that would constitute the offense at the trial court’s

direction, in the juvenile’s presence, and prior to the acceptance of the juvenile’s

admission. In re S.M., 8th Dist. No. 91408, 2008-Ohio-6852. The Court of

Appeals in several appellate districts, including this district, has concluded that a

trial court failed to substantially comply with Juv.R. 29(D)(1) when it did not

inform the juvenile of his possible term of commitment prior to accepting his

admission. In re Hendrickson, 114 Ohio App.3d at 293. See also In re Keeling,

3d Dist. No. 1-09-51, 2010-Ohio-1713, ¶ 18; In re Beechler, 115 Ohio App.3d at

572; In re Prithcard, 5th Dist. No. 2001 AP 080078, 2002-Ohio-1664; In re

Holcomb, 147 Ohio App.3d 31, 2002-Ohio-2042 (8th Dist.).


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Case No. 14-12-13


      {¶15} Whether the trial court substantially complied with Juv.R. 29(D)

presents an issue of law reviewed on appeal de novo. In re C.K., 4th Dist. No.

07CA4, 2007-Ohio-3234, ¶ 15; In Matter of Beckert, 8th Dist. No. 68893, *1

(Aug. 8, 1996); In re R.D.G., 12th Dist. No. CA2010-12-323, 2011-Ohio-6018, ¶

10.

       {¶16} Before discussing the merits of this case in light of the applicable

law, we must address a couple preliminary matters. Initially, we note that the

State failed to file an appellee’s brief, and therefore, we “may accept the

appellant’s statement of facts and issues as correct and reverse the judgment if

appellant’s brief reasonably appears to sustain such action.” App.R. 18(C). On

the other hand, T.N. failed to file any objections relating to the Clark County

magistrate’s failure to properly conduct a Juv.R. 29(D) inquiry prior to accepting

her admission. Juv.R. 40(D)(3)(b)(iv) generally provides for a waiver of all but

plain error on appeal under those circumstances. The Second and Tenth Appellate

Districts have followed this general rule and concluded that a Juv.R. 40(D)(3)(b)

objection is necessary to preserve a Juv.R. 29(D) error on appeal and absent such

an objection the appellant is limited to raising plain error. In re Harper, 2d Dist.

No. 19948, 2003-Ohio-6666, ¶ 2, 4; In re J.J.A., 10th Dist. Nos. 09AP-242, 09AP-

243, 2010-Ohio-672, ¶ 6, 9; In re B.J.C., 10th Dist. No. 07AP-961, 2008-Ohio-

2794, ¶ 5; In re T.K.W., 10th Dist. Nos. 06AP-903, 06AP-904, 2007-Ohio-1205, ¶


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Case No. 14-12-13


6, 12. The Fourth and Fifth Appellate Districts, however, have found that the

delinquent need not file such an objection to preserve a Juv.R. 29(D) error for

appeal purposes. In re David G., 5th Dist. Nos. 2008 CA 00243, 2008 CA 00244,

2009-Ohio-4002; In re Z.M.W., 4th Dist. No. 11CA24, 2012-Ohio-1785. We do

not need to choose sides in this waiver debate, because the Clark County

magistrate’s failure to substantially comply with Juv.R. 29(D), prior to accepting

the juvenile’s admission, constituted plain error. In re Tabler, 4th Dist. No.

06CA30, 2007-Ohio-411; In re S.M., 2008-Ohio-6852, at ¶ 15; In re Hall, 9th

Dist. No. 20658, 2002-Ohio-1107; In re R.A., 11th Dist. No. 2009-P-0063, 2010-

Ohio-3687, ¶ 18. See also In re Etter, 134 Ohio App.3d 484, 493 (1st Dist.1998)

(failure to substantially comply with Juv.R. 29(D) in case affecting parental rights

is plain error); In re Elliot, 4th Dist. Nos. 03CA65, 03CA66, 2004-Ohio-2770, ¶

15 (same); In re L.C., 8th Dist. No. 90390, 2008-Ohio-917, ¶ 24; In re Roque, 11th

Dist. No. 2005-T-0138, 2006-Ohio-7007, ¶ 19.

           {¶17} With those preliminary matters now resolved, we turn to the merits

of T.N.’s fifth assignment of error. The following colloquy occurred during the

Clark County combined arraignment/adjudicatory hearing:

           THE COURT1: All right. We are here in the matter of [T.N.] for a

           pre-trial in case 2011-1674, a charge of assault, a felony of the fifth



1
    The transcript refers to “The Court” even though a magistrate is speaking, not the judge of the court.

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Case No. 14-12-13


      degree, and in case 2011-1710, A, B, C, and D for arraignment on

      these charges.     However it’s my understanding that counsel has

      already discussed these charges and we’re ready to proceed on all of

      these charges as a pre-trial.

      MR. WILLIAMS: That’s correct, your Honor. The defense would

      waive arraignment in case 2011-1710.

      THE COURT: Have your reviewed [T.N.’s] rights with her? Do you

      need to do that?

      MR. WILLIAMS: I have reviewed her right to trial on all of these

      matters, your Honor, including the matters in which she has not yet

      been arraigned. She understands that she does have a right to a trial

      on all of these matters.

      THE COURT: Okay. And [T.N.] is represented by Attorney

      Williams. The State of Ohio is represented by Assistant Prosecutor

      Reed. It’s my understanding that [T.N.’s] from Union County.

      THE YOUTH: Yes, your Honor.

                                      ***

      MR. WILLIAMS: Thank you, your Honor.            I’ve had a pre-trial

      conference with my client, as well as with Attorney Reed on behalf

      of the State of Ohio, as well as with all the folks here from Union


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      County and [T.N.’s] mother.         At this time, we’ve reached an

      agreement, the terms of which are [T.N.] would admit to the escape

      charge in case 2011-1710, that being a felony of the third degree,

      with the understanding that the A charge, resisting arrest, a

      misdemeanor of the second degree, the B charge of assault, a felony

      of the fifth degree, and the D charge of assault, a felony of the fifth

      degree, would be dismissed. Also, the State would be willing to

      dismiss the assault charge, a felony of the fifth degree in 2000 -- in

      case 2011-1674 upon her admission.

      THE COURT: All right. You indicated a D charge in case 2011-

      1710 was an assault, F-5. I have that as a resisting arrest, F-2 [sic].

      MR. WILLIAMS: I’m sorry. I had the resisting as the A charge,

      maybe I misspoke. There were four charges; a resisting arrest --

      THE COURT: As long as we’re clear that we’re dismissing resisting

      arrest, and then two assault charges --

      MR. WILLIAMS: That is correct, your Honor, upon the admission

      to the escape.

      THE COURT: -- is that correct?

      MR. REED: That’s correct.

      THE COURT: And then the assault charge in 1674?


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      MR. REED: That’s correct.

                                        ***

      THE COURT: All right. [T.N.], is it true that you wish to admit to

      the charge of escape, a felony of the third degree?

      THE YOUTH: Yes.

      THE COURT: Are you admitting this charge because it is true?

      THE YOUTH: Yes.

      THE COURT: Is anyone forcing you to make this admission?

      THE YOUTH: No.

      THE COURT: Is anyone promising you anything, other than the

      dismissal of the other charges?

      THE YOUTH: No.

      THE COURT: Is it your intention to give up your right to trial --

      THE YOUTH: Yes.

      THE COURT: -- to make this admission? Do you understand that

      you have the right to have a trial on all of these charges?

      THE YOUTH: Yes.

      THE COURT: And you don’t want to do that?

      THE YOUTH: No.

      THE COURT: Why?


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      THE YOUTH: Just get it done and over with.

      THE COURT: Why?

      THE YOUTH: I just don’t feel like going through all that, I guess.

      THE COURT: Okay. And let me ask, Mandy Postal, you’re her CSB

      worker?

      MS. POSTAL: Yes, your Honor.

      THE COURT: And is there anything in Mandy -- in [T.N.’s]

      background that would cause you to believe that she does not

      understand what she’s doing today?

      MS. POSTAL: I do not believe so, your Honor. She is diagnosed

      with Asperger’s but I believe that she does understand what she’s

      doing here today.

      THE COURT: Okay. Is she -- does she – she’s on probation in

      Union County as well with Ms. Price; is that correct?

      MS. POSTAL: Yeah. Yes, your Honor.

      THE COURT: And so she’s had other charges in the past. Has she

      ever been found to not be competent?

      MS. POSTAL: No, your Honor.

      THE COURT: Has there ever been an issue of competency raised?

      MS. POSTAL: No, your Honor.


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                                        ***

       THE COURT: All right. I’ll accept your admission and adjudicate

       you delinquent of the charge of escape, a felony of the third degree. I

       will dismiss the A, B, and D charges, resisting arrest and two

       charges of assault, F-5’s, and I’ll dismiss the assault F-5 charge in

       case 2011-1674, and I will transfer this matter to Union County for

       disposition. * * *. (Dec. 12, 2011 Tr. at 3-9).

       {¶18} The Clark County magistrate’s Juv.R. 29(D) colloquy was

inadequate to insure that T.N. entered her admission voluntarily, intelligently, and

knowingly; and therefore, T.N. was deprived procedural due process, which

amounts to plain error.     Other than mentioning the names and levels of the

criminal charges facing T.N., the magistrate did not otherwise explain the nature

of the charges—neither their factual basis nor their elements—as required under

Juv.R. 29(D)(1). The presumption that T.N. had been appraised of the nature of

the charges by virtue of having trial counsel does not eviscerate the magistrate’s

affirmative duty to determine that T.N., and not merely her attorney, understood

the nature of the allegations and the consequences of entering her admission. In re

Wood, 2004-Ohio-6539, at ¶ 18, citing In re Argo, 2004-Ohio-4938, at ¶ 32 and

Bousley, 523 U.S. at 618; In re Beechler, 115 Ohio App.3d at 571.                The

magistrate’s explanation concerning the criminal charges was so cursory that we


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are not persuaded that T.N. understood the nature of the allegations against her. In

addition to that, the magistrate completely failed to mention any of the possible

consequences facing T.N. upon her admission to a third degree felony offense—

significant possible consequences, including possible DYS commitment. This fact

weighs heavily towards finding a lack of substantial compliance in this case. See

In re Keeling, 2010-Ohio-1713. Finally, although her attorney stated that he

informed T.N. of her “right to a trial,” Juv.R. 29(D)(2) more specifically requires

that the juvenile understand he has the “right to challenge the witnesses and

evidence against the party, to remain silent, and to introduce evidence at the

adjudicatory hearing.”

       {¶19} Given the inadequate nature of the colloquy, the magistrate did not

substantially comply with the Juv.R. 29(D), depriving T.N. of her procedural due

process rights, which constitutes plain error.         The magistrate’s failure to

substantially comply with Juv.R. 29(D) had a prejudicial effect upon T.N.,

necessitating a reversal of the adjudication so that she may plead anew. In re C.S.,

2007-Ohio-4919, at ¶ 112; In re Smith, 2006-Ohio-2788, at ¶ 14, citing In re

Doyle, 122 Ohio App.3d at 772.

       {¶20} T.N.’s fifth assignment of error is, therefore, sustained.




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                           Assignment of Error No. I

       The Clark County Juvenile Court erred when it failed to
       transfer appellant’s case to Union County, pursuant to Ohio
       Juvenile Rule 11(B).

                           Assignment of Error No. II

       The Union County Juvenile Court erred when it failed to
       conduct a hearing to determine if appellant should be permitted
       to withdraw her guilty plea.

                          Assignment of Error No. III

       The Union County Juvenile Court erred when it failed to permit
       appellant to withdraw her guilty plea.

                          Assignment of Error No. IV

       Appellant’s attorney failed to provide her with the type of
       counsel guaranteed by the Fifth Amendment to the United States
       Constitution when he failed to raise the issue of the classification
       of Oesterlen prior to her admission to the charges, as the
       classification of Oesterlen directly influenced the type of charges
       appellant faced.

       {¶21} In her remaining assignments of error, T.N. raises several issues all

stemming from her claim that she improperly admitted to a third degree felony

escape charge as a result of the State’s erroneous classification of Oesterlen Youth

Services’ employees under R.C. 2903.13(C)(5). Specifically, T.N. argues that

Oesterlen Youth Services is not a “private child placing agency” under R.C.

2903.13(C)(5), so her alleged assault upon their employees was only a

misdemeanor-level offense. Since the alleged assault was only a misdemeanor-


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Case No. 14-12-13


level offense, T.N. argues that her escape charge is only a misdemeanor pursuant

to R.C. 2921.34(C)(1). DYS commitment is not an available punishment for a

misdemeanor.      R.C. 2152.16; In re J.W., 12th Dist. Nos. CA2004-02-036,

CA2004-03-061, 2004-Ohio-7139, ¶ 16-21.

       {¶22} T.N.’s remaining assignments of error are rendered moot in light of

our disposition of T.N.’s fifth assignment of error. T.N. will have an opportunity

to address her concern regarding the appropriateness of the third degree felony

escape charge upon remand when she may plead anew, and the trial court can

clarify the record or correct the problem if justice so requires.

       {¶23} Nevertheless, since T.N.’s first, second, third, and fourth assignments

of error are moot, we will not address them any further. App.R. 12(A)(1)(c).

       {¶24} Having found error prejudicial to the appellant herein in the

particulars assigned and argued, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.

                                                             Judgment Reversed and
                                                                  Cause Remanded

WILLAMOWSKI and SHAW, J.J., concur.

/jlr




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