[Cite as In re D.F., 2017-Ohio-7307.]


                                       COURT OF APPEALS
                                   COSHOCTON COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

IN RE: D.F.                                       JUDGES:
                                                  Hon. Patricia A. Delaney, P.J.
                                                  Hon. William B. Hoffman, J.
                                                  Hon. Earle E. Wise, Jr., J.

                                                  Case No. 2016CA0015, 2016CA0016


                                                  OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Coshocton County Court of
                                               Common Pleas, Juvenile Division


JUDGMENT:                                      Reversed and Remanded

DATE OF JUDGMENT ENTRY:                       August 21, 2017

APPEARANCES:

For Appellee                                   For Appellant

BENJAMIN E. HALL                               CHARLYN BOHLAND
Coshocton County Prosecutor's Office           The Office of the Public Defender
Assistant Prosecuting Attorney                 Assistant State Public Defender
318 Chestnut Street                            250 East Broad Street, Suite 1400
Coshocton, Ohio 43812                          Columbus, Ohio 43215
Coshocton County, Case No. 2016CA0015, 2016CA0016                                           2

Hoffman, J.



        {¶1}    D.F., a juvenile at the time of the offenses, appeals his adjudication,

disposition, serious youthful offender classification, and adult sentence entered by the

Coshocton County Court of Common Pleas, Juvenile Division. Appellee is the state of

Ohio.

                                STATEMENT OF PROCEEDINGS1

        {¶2}    On January 17, 2014, the State filed a Bill of Information alleging D.F.

committed two counts of rape, felonies of the first degree, in violation of R.C.

2907.02(A)(1)(b), with each charge carrying an attendant serious youthful offender

specification, pursuant to R.C. 2152.11(D)(2)(b); and one count of gross sexual

imposition, a third degree felony, in violation of R.C. 2907.05(A)(4).

        {¶3}    Appellant’s date of birth is October 18, 1995, and the offenses were alleged

to have occurred between December 3, 2009 and January 16, 2013.

        {¶4}    On January 17, 2014, Appellant entered an admission to the charges. The

matter proceeded to disposition on January 30, 2014. The juvenile court committed

Appellant to the Ohio Department of Youth Services for a minimum of two years and six

months, maximum of up to Appellant’s twenty-first birthday. Pursuant to the serious

youthful offender specifications and R.C. 2152.11(D)(2)(b), the court imposed a

suspended adult sentence of fifteen years to life on each count of rape, to be served

concurrently.




1
 A full rendition of the underlying facts giving rise to Appellant’s adjudication, disposition
and sentence is unnecessary for resolution of the appeal.
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       {¶5}   Based upon Appellant’s conduct while committed to DYS2, on December

23, 2015, the State moved to invoke the suspended adult sentence under the serious

youthful offender specification. On October 4, 2016, the trial court conducted a hearing,

and imposed the previously suspended adult term of fifteen years to life. The trial court

on the same date held a hearing and imposed a juvenile disposition regarding

classification. The court classified Appellant a Tier III, Public Registry Qualified Juvenile

Offender Registrant (PRQJOR), pursuant to R.C. 2152.86. The parties and the trial court

acknowledged all juvenile dispositions terminated upon the imposition of an adult

sentence, but “waived any defect to this juvenile dispositional order and…affirmed its

intention for this juvenile order to survive the adult sentence.” (10/5/2016 Judgment

Entry) Counsel for Appellant did not object to the sentence or classifications.

       {¶6}   Appellant appeals, assigning as error,



              I. THE JUVENILE COURT ERRED WHEN IT FAILED TO APPOINT

       A GUARDIAN AD LITEM TO PROTECT D.F.’S BEST INTERESTS, IN

       VIOLATION OF R.C. 2151.281(A)(1) AND JUV. R. 4(B)(1).

              II. THE MANDATORY SENTENCING SCHEME IN R.C. 2971.03 IS

       UNCONSTITUTIONAL BECAUSE IT DOES NOT PERMIT THE TRIAL

       COURT TO MAKE AN INDIVIDUALIZED DETERMINATION ABOUT

       D.F.’S SENTENCE OR THE ATTRIBUTES OF HIS YOUTH, IN VIOLATION

       OF HIS RIGHT TO BE FREE FROM CRUEL AND UNUSUAL



2
 A State Trooper conducted an investigation into Appellant’s conduct while at DYS, and
substantiated sexual conduct occurred between Appellant and another DYS resident.
6/24/2016 Transcript, p. 207.
Coshocton County, Case No. 2016CA0015, 2016CA0016                                      4


      PUNISHMENT, AS GUARANTEED BY THE EIGHTH AMENDMENT TO

      THE U.S. CONSTITUTION, AND ARTICLE I, SECTION 9, OHIO

      CONSTITUTION.

             III. THE JUVENILE COURT ERRED WHEN IT CLASSIFIED D.F. AS

      A PUBLIC REGISTRY QUALIFIED JUVENILE OFFENDER REGISTRANT

      (PRQJOR), PURSUANT TO R.C. 2152.86, IN VIOLATION OF IN RE C.P.,

      131 OHIO ST.513, 2012-OHIO-1446, 967 N.E.2D 729, ¶86.

             IV. THE JUVENILE COURT ERRED WHEN IT CLASSIFIED D.F.

      TO AN ADULT TIER III REGISTRATION, PURSUANT TO THE ADULT

      STATUTES, IN VIOLATION OF R.C. 2152.82, 2152.83, 2152.84, 2152.85,

      AND 2950.01(G), (M).

             V. D.F. WAS DENIED THE EFFECTIVE ASSISTANCE OF

      COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH

      AMENDMENTS TO THE U.S. CONSTITUTION; AND, ARTICLE I,

      SECTION 10, OHIO CONSTITUTION.



                                               I.

      {¶7}   The question of whether R.C. 2151.281(A)(1) and Juv.R. 4(B)(1) impose a

mandatory duty upon the court to appoint a GAL, and whether the court failed to discharge

that duty, constitutes a mixed question of law and fact and is subject to de novo review.

State v. Lindstrom, 8th Dist. Cuyahoga No. 96653, 2011–Ohio–6755, ¶ 20; M6 Motors,

Inc. v. Nissan of N. Olmsted, L . L.C., 2014–Ohio–2537, 14 N.E.3d 1054, ¶ 48 (8th Dist.)

(“Statutory interpretation is a question of law that we review de novo.”) De novo review
Coshocton County, Case No. 2016CA0015, 2016CA0016                                         5


means the appellate court independently reviews the record and affords no deference to

the trial court's decision. B.P. Communications Alaska, Inc. v. Cent. Collection Agency,

136 Ohio App.3d 807, 812, 737 N.E.2d 1050 (8th Dist.2000).

      {¶8}   R.C. 2151.281(A) provides,



             (A) The court shall appoint a guardian ad litem, subject to rules

      adopted by the Supreme Court, to protect the interest of a child in any

      proceeding concerning an alleged or adjudicated delinquent child or unruly

      child when either of the following applies:

             (1) The child has no parent, guardian, or legal custodian.

             (2) The court finds that there is a conflict of interest between the child

      and the child's parent, guardian, or legal custodian.



      {¶9}   Ohio Rule of Juvenile Procedure 4 reads,



             (B) Guardian ad Litem; When Appointed. The court shall appoint a

      guardian ad litem to protect the interests of a child or incompetent adult in

      a juvenile court proceeding when:

             (1) The child has no parents, guardian, or legal custodian;

             (2) The interests of the child and the interests of the parent may

      conflict;

             (3) The parent is under eighteen years of age or appears to be

      mentally incompetent;
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             (4) The court believes that the parent of the child is not capable of

      representing the best interest of the child.

             (5) Any proceeding involves allegations of abuse or neglect,

      voluntary surrender of permanent custody, or termination of parental rights

      as soon as possible after the commencement of such proceeding.

             (6) There is an agreement for the voluntary surrender of temporary

      custody that is made in accordance with section 5103.15 of the Revised

      Code, and thereafter there is a request for extension of the voluntary

      agreement.

             (7) The proceeding is a removal action.

             (8) Appointment is otherwise necessary to meet the requirements of

      a fair hearing.



      {¶10} The Eighth District addressed the issue raised herein in In re DRB, No.

1002252, 2015-Ohio-3346. DRB was eighteen years of age at the time the complaint was

filed on February 1, 2013. The complaint alleged two acts of rape occurred when DRB

was seventeen years-old. At all hearings, Appellant was represented by counsel, and an

aunt, who was not a legal custodian attended. The Eighth District held,



             Inquiries were properly made by the trial court during the

      proceedings as to whether a parent was in attendance. However, observing

      that D.R.B. was 18 years old, subsequently 19 years old, at the hearings

      and that an aunt was in attendance, there appeared to be an assumption
Coshocton County, Case No. 2016CA0015, 2016CA0016                                       7


     by the court, state, and defense counsel that no parent or legal guardian

     needed to be present.

               The parties agree that a GAL shall be appointed to represent a “child”

     in juvenile court delinquency and unruliness proceedings as provided by

     statute. Therefore, the pivotal issue is whether D.R.B. qualifies as a child by

     law and is so entitled. We preface our analysis by clarifying that the question

     before us is whether D.R.B. qualifies as a child under the applicable

     delinquency and related statutes, and not the unruliness statute [footnote

     omitted] as cited by the state.

               In interpreting a statute, we have held that “the word ‘shall’ is

     mandatory. The General Assembly is presumed to mean what it said.” San

     Allen v. Buehrer, 2014–Ohio–2071, 11 N.E.3d 739, ¶ 81 (8th Dist.); Smith

     v. Leis, 106 Ohio St.3d 309, 2005–Ohio–5125, 835 N.E.2d 5, ¶ 62; In re

     A.G.B., 173 Ohio App.3d 263, 2007–Ohio–4753, 878 N.E.2d 49, ¶ 13 (4th

     Dist.).

               ***

               The definition of “child” under Sup.R. 48 governing GALs includes a

     person under 18 years of age, or a person who is older than 18 years of

     age who is deemed a child until the person attains 21 years of age under

     R.C. 2152.02(C) of the Revised Code, and Sup.R. 48(B)(2)(a) and (b). In

     addition, Juv.R. 4(B)(1) provides, in pertinent part, that a court “shall”

     appoint a GAL to protect the interests of a “child” in a juvenile court
Coshocton County, Case No. 2016CA0015, 2016CA0016                                       8


     proceeding when the child has no parents, guardian or legal custodian.

     (Compare R.C. 2151.281(A)(1)).

            Under R.C. 2152.02(C)(1), a delinquent child is defined as, “a person

     who is under eighteen years of age, except as otherwise provided in

     divisions (C)(2) to (8) of this section.” Id. R.C. 2152.02(C)(2) through (8)

     provide the exceptions to the rule. R.C. 2152.02(C)(2) applies:

            (2) Subject to division (C)(3) of this section, any person who violates

     a federal or state law or a municipal ordinance prior to attaining eighteen

     years of age shall be deemed a “child” irrespective of that person's age at

     the time the complaint with respect to that violation is filed or the hearing on

     the complaint is held.

            Id. [footnote omitted.]

            ***

            We do not agree that an objection to the failure to appoint a GAL is

     required to constitute reversible error.

            ***

            This court has also decided that the appointment of a GAL under

     R.C. 2151.281 and Juv.R. 4 are mandatory where required by statute. Both

     the statute and the rule provide that a court “shall” appoint a GAL under the

     listed circumstances. In re Taylor, 8th Dist. Cuyahoga No. 74257, 1999 Ohio

     App. LEXIS 2610, *3–5, 1999 WL 378355 (June 10, 1999); In re Howell, 77

     Ohio App.3d 80, 92, 601 N.E.2d 92 (4th Dist.1991); In re Slider, 160 Ohio

     App.3d 159, 2005–Ohio–1457, 826 N.E.2d 356, ¶ 8–9 (4th Dist.).
Coshocton County, Case No. 2016CA0015, 2016CA0016                                         9


              D.R.B. was 17 years of age at the time the act occurred. He was

       charged with rape under R.C. 2907.02(A)(1)(b), a first-degree felony if

       committed by an adult. Neither his mother nor his stepfather attended his

       hearings. The aunt who attended was not his guardian. Therefore, D.R.B.

       qualified as a child and is entitled to the appointment of a GAL as mandated

       by R.C. 2151.281(A)(1) and Juv.R. 4(B)(1).



       {¶11} In In re CW, 4th Dist. No. 10CA892, 2010-Ohio-5633, the Fourth District

addressed this issue. After C.W. entered an admission to two counts of rape, the Adams

County Common Pleas Court, Juvenile Division adjudicated him a delinquent child and

committed him to the custody of the Ohio Department of Youth Services (“DYS”). Upon

his release from DYS custody, the court classified C.W. as a Tier III juvenile sex offender.

C.W. was nineteen years of age at the time of the classification hearing.

       {¶12} The Fourth District held C.W. qualified as a “child” within the meaning of the

rule and the hearing constituted a “juvenile court proceeding,” despite C.W.’s attaining

the age of nineteen at the time of the hearing. Even if C.W. had a parent, guardian, or

legal custodian (at the time of the hearing), that person was never notified of the hearing

and thus did not appear to protect C.W.'s interests. Therefore, the court should have

appointed a guardian ad litem.

       {¶13} As these statutes are mandatory, the failure of a court to appoint a guardian

ad litem when these provisions require such an appointment constitutes reversible error.

In re Spradlin 140 Ohio App.3d 402, 747 N.E.2d 877 (2000). Further, the absence of an

objection does not preclude a reversal due to the juvenile court's failure to appoint a
Coshocton County, Case No. 2016CA0015, 2016CA0016                                        10

guardian when required under R .C. 2151.281(A)(2) or Juvenile Rule 4(B). In re K.B., 170

Ohio App.3d 121, 866 N.E.2d 66, 2007–Ohio–396, citing In re Etter, 134 Ohio App.3d

484, 731 N.E.2d 694 (1998).

       {¶14} D.F. was represented by counsel at all proceedings before the trial court.

R.C. 2151.281(H), and Juv. R. 4(C) permit an attorney to serve both as counsel and as

guardian ad litem for a child in a juvenile court proceeding, provided the court makes an

explicit dual appointment and no conflicts arise in the dual representation. Here, the court

did not order dual representation. Appellant’s sister attended the hearings, but was not

found to be a guardian or legal custodian nor otherwise designated as such.

       {¶15} At the time Appellant entered admissions to the charges, he was eighteen

years of age. At the time of the dispositional hearing and classification hearing he was

20 years of age. We find the trial court should have appointed a guardian ad litem during

the proceedings herein, and such constitutes reversible error.

       {¶16} Accordingly, we sustain Appellant’s first assignment of error, and remand

the matter to the juvenile court for further proceedings in accordance with the law and this

opinion.

                                                II.

       {¶17} In the second assignment of error, Appellant maintains the sentencing

scheme under R.C. 2971.03 is unconstitutional as the statute does not allow the trial court

discretion as to the sentence or consideration of the juvenile’s age.

       {¶18} Recently, the Ohio Supreme Court addressed the issue raised herein in

State v. Anderson, ____ N.E.3d ____, 2017-Ohio-5156 (July 5, 2017). The Court held,
Coshocton County, Case No. 2016CA0015, 2016CA0016                                        11


              We conclude, therefore, that a mandatory three year prison sentence

       imposed on a juvenile offender tried as an adult for a conviction of a firearm

       specification does not violate the Eighth Amendment because it serves a

       legitimate penological goal, is proportional to the crimes committed, and is

       not one of the harshest possible penalties for a juvenile offender.



       {¶19} Pursuant to the Ohio Supreme Court’s holding in Anderson, supra,

Appellant’s second assignment of error is overruled.

                                          III., IV. and V.

       {¶20} Pursuant to our analysis and disposition of Appellant’s first assigned error,

we find Appellant’s third, fourth and fifth assigned errors are premature. The issues raised

therein may be raised on remand.

       {¶21} Appellant D.F.’s adjudication in the Coshocton County Court of Common

Pleas, Juvenile Division, is reversed and the matter is remanded to that Court for further

proceedings in accordance to law and this Opinion.

By: Hoffman, J.

Delaney, P.J. and

Wise, Earle, J. concur
