[Cite as In re M.W., 133 Ohio St.3d 309, 2012-Ohio-4538.]




                                       IN RE M.W.
           [Cite as In re M.W., 133 Ohio St.3d 309, 2012-Ohio-4538.]
Juvenile procedure—R.C. 2151.352—The term “proceedings” as used in R.C.
        2151.352 means court proceedings, and in that context, a child is
        statutorily entitled to representation by legal counsel upon the filing of a
        complaint in juvenile court or upon initial appearance in the juvenile
        court.
   (No. 2011-0215—Submitted December 6, 2011—Decided October 3, 2012.)
             APPEAL from the Court of Appeals for Cuyahoga County,
                             No. 94737, 2010-Ohio-6362.
                                ____________________
                               SYLLABUS OF THE COURT
The term “proceedings” as used in R.C. 2151.352 means court proceedings, and
        in that context, a child is statutorily entitled to representation by legal
        counsel upon the filing of a complaint in juvenile court or upon initial
        appearance in the juvenile court.
                                 __________________
        O’DONNELL, J.
        {¶ 1} The issue we confront in this appeal is whether a juvenile has a
statutory right to counsel during a police interrogation conducted before a
complaint is filed or an appearance is made in juvenile court.
        {¶ 2} R.C. 2151.352 provides that a child “is entitled to representation by
legal counsel at all stages of the proceedings under this chapter or Chapter 2152.”
Because the term “proceedings,” as used in this statute, means court proceedings,
a juvenile does not have a statutory right to counsel at an interrogation conducted
                                  SUPREME COURT OF OHIO




prior to the filing of a complaint or prior to appearing in juvenile court.
Accordingly, we affirm the judgment of the court of appeals.
                              Facts and Procedural History
         {¶ 3} On August 22, 2009, Cleveland Police Sergeant Thomas Shoulders
stopped a vehicle driven by M.W. (who at that time identified himself as M.J.)
and determined he had no valid Ohio driver’s license. When Shoulders asked
why he lied about his name, M.W. stated he “thought [he] could get away with it”
and he thought he had been stopped for “something to do with [A.C.]” Shoulders
knew that A.C. had been arrested for aggravated robbery the previous day and
therefore asked M.W. what he knew about that robbery. M.W. told Shoulders that
he heard A.C. robbed “someone at gun point on Thursday night” and then added
that he had served as the lookout for A.C.: “I kept anyone from walking up on
him or watched for the police.” M.W. further explained that after the robbery,
they each ran, intending to split the money the following day, but the police
arrested A.C. before they had that opportunity.
         {¶ 4} Based on those statements, Shoulders arrested M.W., transported
him to the Cleveland Second District Police Station, and in the presence of
Detective David Borden, advised M.W. of his constitutional rights. M.W. signed
a written waiver of his rights and a written statement.1 Detective Borden then
filed a complaint in the Cuyahoga County Juvenile Court alleging M.W. to be
delinquent for having committed aggravated robbery, in violation of R.C.
2911.01(A)(1), a felony of the first degree, with firearm specifications pursuant to
R.C. 2941.141 and 2941.145.
         {¶ 5} The state moved to bind M.W. over to the general division of
common pleas court in order to prosecute M.W. as an adult. The juvenile court



1. It is this statement that M.W. contests in this appeal; no objection is made to the statements he
gave to Shoulders at the time he was stopped.




                                                 2
                                January Term, 2012




denied that motion, finding M.W. amenable to care and rehabilitation in the
juvenile system.
       {¶ 6} Subsequently, a juvenile court magistrate adjudicated M.W.
delinquent of aggravated robbery with a three-year firearm specification, and the
juvenile court adopted that decision: it placed M.W. in the custody of the Ohio
Department of Youth Services for a minimum of one year on the aggravated-
robbery charge and one year on the three-year firearm specification, to be served
consecutively, for a period of commitment not to exceed 21 years of age.
       {¶ 7} M.W. appealed and raised several claims, urging that the trial court
erred in admitting his written statement into evidence because Shoulders had
violated R.C. 2151.352 in obtaining it. That statute provides a juvenile with a
right to representation by legal counsel at all stages of the proceedings pursuant to
R.C. Chapters 2151 and 2152. M.W. asserted that giving a written statement to
Shoulders was a proceeding and triggered his statutory right to counsel. He
further claimed that based on In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919,
874 N.E.2d 1177, he could not waive his Fifth Amendment right to counsel
during interrogation, recognized in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966), unless he had consulted with a parent, guardian,
custodian, or attorney regarding the waiver.       Because he had not consulted
anyone, M.W. argued that the waiver of his Miranda right to counsel was invalid
based on In re C.S.
       {¶ 8} The state disputed the assertion that interrogation constituted a
proceeding within the scope of R.C. Chapter 2151 at which the right to counsel
pursuant to R.C. 2151.352 attached, arguing that the term “proceedings” in R.C.
2151.352 meant court proceedings. It cited the definitions for the terms “court
proceeding” and “party” contained in Juv.R. 2 and the requirement of Juv.R. 4
that parties to a juvenile court proceeding are entitled to counsel. The state
further explained that a juvenile-delinquency proceeding commences when a



                                         3
                               SUPREME COURT OF OHIO




complaint is filed or a juvenile appears before the juvenile court. In this case, the
state argued that because M.W. gave his written statement before Detective
Borden filed the complaint in juvenile court that commenced the delinquency
proceeding against him, his statutory right to counsel had not attached at the time
of interrogation.
        {¶ 9} The appellate court rejected M.W.’s claim that giving a written
statement to Shoulders constituted a stage of the proceedings, explaining that “a
juvenile proceeding does not commence until the filing of a complaint.” 8th Dist.
No. 94737, 2010-Ohio-6362, ¶ 16. It concluded that because no complaint had
been filed against M.W. at the time of the police interrogation, R.C. 2151.352 did
not apply. Id.2
        {¶ 10} M.W. appealed and now presents this proposition of law for our
consideration:


                  A child has the right to counsel at all stages of the
        proceedings against him. Because Ohio's General Assembly has
        designated interrogation as a stage of the proceedings, a child must
        be represented by his parent, guardian, custodian, or an attorney
        before the child can waive his right to counsel pursuant to
        Miranda.


        {¶ 11} M.W. contends that an interrogation is an R.C. Chapter 2151
proceeding because it is included in R.C. 2151.311(D)(2) and that he had a
statutory right to counsel at all stages of the proceedings pursuant to R.C.
2151.352 that arose before he waived his Miranda right to counsel. He further


2. M.W. never exercised his Miranda right to counsel, as noted by the court of appeals in its
opinion. Thus, the only basis upon which M.W. claims a right to counsel in this appeal is a
statutory right to counsel pursuant to R.C. 2151.352.




                                             4
                                January Term, 2012




asserts that the waiver of his Miranda right to counsel is invalid based on In re
C.S. because he had not consulted with an attorney or parent.
       {¶ 12} The state contends that an interrogation is not a “proceeding” as
that term is used in R.C. 2151.352 or within the usual and ordinary definition of
the term. It also contends that the legislative history of R.C. 2151.352 does not
support a finding that an interrogation is a proceeding and that the term
“proceeding” is used consistently throughout the Revised Code to mean a court
proceeding. The state also asserts that the juvenile rules of procedure similarly do
not lend support to M.W.’s position, pointing out that Juv.R. 2(G) defines “court
proceeding” to mean any action taken by a court after the filing of a complaint or
the time the child first appears before the court and that Juv.R. 4(A) states that the
right to counsel does not attach until the juvenile becomes “a party to a juvenile
court proceeding.” Thus, the state contends that because interrogation is not an
R.C. Chapter 2151 proceeding, the right of a juvenile to counsel pursuant to R.C.
2151.352 does not arise until the juvenile appears before the court, and, in turn, In
re C.S. does not apply in this case.
       {¶ 13} Thus, the issue presented by this appeal is whether the statutory
right to counsel delineated by the General Assembly in R.C. 2151.352 attaches to
an interrogation of a juvenile prior to the filing of a complaint alleging
delinquency or prior to an appearance by the juvenile in juvenile court.
Resolution of that issue rests on the definition of the term “proceedings” as used
in R.C. 2151.352.
                                 Law and Analysis
       {¶ 14} R.C. 2151.352 provides: “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.”




                                          5
                              SUPREME COURT OF OHIO




          {¶ 15} R.C. 2151.311(C)(1) provides that a person taking a child into
custody for a delinquent act that would be a felony if committed by an adult may
hold the child for processing purposes for a maximum of six hours in an adult
center.      The statute further defines “processing purposes” to include
“[i]nterrogating the child, contacting the child's parent or guardian, arranging for
placement of the child, or arranging for transfer or transferring the child, while
holding the child in a nonsecure area of the facility.” (Emphasis added.) R.C.
2151.311(D)(2).
          {¶ 16} In the case of In re C.S., we construed R.C. 2151.352 in the context
of a delinquency proceeding and held that “a juvenile may waive his
constitutional right to counsel, subject to certain standards * * *, if he is counseled
and advised by his parent, custodian, or guardian. If the juvenile is not counseled
by his parent, guardian, or custodian and has not consulted with an attorney, he
may not waive his right to counsel.” 115 Ohio St.3d 267, 2007-Ohio-4919, 874
N.E.2d 1177, at ¶ 98. Here, however, we are concerned with determining whether
an interrogation that occurs prior to the filing of a complaint in the juvenile court
is considered a “proceeding” for the purposes of R.C. 2151.352, and it is the
procedural and timing differences that distinguish this case from In re C.S.
          {¶ 17} This appeal involves a matter of statutory construction.         The
primary goal in construing a statute is to ascertain and give effect to the intent of
the legislature.    State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, 804
N.E.2d 471, ¶ 11. When analyzing a statute, we first examine its plain language
and apply the statute as written when the meaning is clear and unambiguous.
State v. Lowe, 112 Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512, ¶ 9. This
analysis also requires that we read words and phrases in context and construe
them according to the rules of grammar and common usage. R.C. 1.42.
          {¶ 18} R.C. 2151.352 does not define the term “proceedings”; therefore,
we look to the usual and ordinary definition of that term for guidance. Brecksville




                                           6
                                January Term, 2012




v. Cook, 75 Ohio St.3d 53, 56, 661 N.E.2d 706 (1996). Black's Law Dictionary
1324 (9th Ed.2009) defines “proceeding” as (1) “[t]he regular and orderly
progression of a lawsuit, including all acts and events between the time of
commencement and the entry of judgment” (emphasis added), (2) a way by which
redress is sought from a tribunal or an agency, (3) “[a]n act or step that is part of a
larger action,” and (4) “[t]he business conducted by a court or other official body;
a hearing.” It is also noteworthy that in 1969, when the General Assembly
enacted R.C. 2151.352, “proceeding” was defined in Black’s Law Dictionary in
virtually the same way, but the entry included a comment that the term proceeding
“is properly applicable, in a legal sense, only to judicial acts before some judicial
tribunal.” Id. at 1368 (4th Ed.1968). Also, Webster's Third New International
Dictionary 1807 (1986) defines “proceedings” as “the course of procedure in a
judicial action or in a suit in litigation: legal action * * * : a particular action at
law or case in litigation.” (Emphasis added.) Thus, the term “proceedings”
denotes acts or events taken between the time of commencing an action at law and
the entry of a final judgment by a judicial tribunal. “Proceedings” evokes a court
of law, not the investigatory action taken by police prior to the filing of a
complaint or a juvenile’s initial appearance before a tribunal.
       {¶ 19} Prior decisions from this court also support interpretation of the
term “proceedings” to mean court proceedings. In State v. Davis, 132 Ohio St.3d
25, 2012-Ohio-1654, 968 N.E.2d 466, we construed R.C. 2921.04(B) and held
that a conviction for witness intimidation could not be sustained when the act of
intimidation occurred prior to the formal initiation of criminal charges or grand
jury proceedings, but during a pending police investigation, because a court was
not yet involved. We reiterated: “Throughout the Revised Code, ‘ “criminal
action or proceeding” * * * indicates the involvement of a court.’ ” (Emphasis
added.) Id. at ¶ 16, quoting State v. Malone, 121 Ohio St.3d 244, 2009-Ohio-310,
903 N.E.2d 614, at ¶ 15; see also Malone at ¶ 18 (“As demonstrated in Ohio's



                                          7
                             SUPREME COURT OF OHIO




statutory scheme and in this court’s case law, a ‘criminal action or proceeding’
implies a formal process involving a court”); State ex rel. Steckman v. Jackson, 70
Ohio St.3d 420, 432, 639 N.E.2d 83 (1994) (noting that the term “proceeding,”
used in R.C. 149.43(A)(1), is defined in Black’s to mean the steps in an action
from commencement to final judgment).
       {¶ 20} In addition, the Juvenile Rules lend support to the view that the
term “proceedings” in R.C. 2151.352 means court proceedings. See, e.g., Juv.R.
2(G) defines “court proceeding” to mean “all action taken by a court from the
earlier of (1) the time a complaint is filed and (2) the time a person first appears
before an officer of a juvenile court until the court relinquishes jurisdiction over
such child”; Juv.R. 2(Y) defines a “party” as “a child who is the subject of a
juvenile court proceeding”; and Juv.R. 4(A) provides that “[e]very party shall
have the right to be represented by counsel” and that right attaches “when a
person becomes a party to a juvenile court proceeding.”
       {¶ 21} Finally, the context in which the term “proceedings” is used in R.C.
2151.352 reveals that the General Assembly contemplated that the term would
mean court proceedings. The statute applies to a “child, the child’s parents or
custodian, or any other person in loco parentis of the child” and refers to each as a
“party,” inferring that a legal action has commenced. The statute also directs the
court to undertake a variety of actions, including providing counsel to indigent
parties, observing whether a party is aware of the right to counsel and the right to
be appointed counsel if indigent, and continuing a case to enable a party to obtain
counsel or be appointed counsel; a court, however, may take action only after its
jurisdiction has been invoked. See State ex rel. Pfeiffer v. Lorain Cty. Common
Pleas Court, 13 Ohio St.2d 133, 136-137, 235 N.E.2d 232 (1968); see also In re
Hunt, 46 Ohio St.2d 378, 348 N.E.2d 727 (1976), paragraph one of the syllabus
(“A complaint under Juv.R. 10 and R.C. 2151.27 alleging that a child is




                                         8
                               January Term, 2012




dependent must state the essential facts which bring the proceeding within the
jurisdiction of the court”).
        {¶ 22} The fallacy of M.W.’s argument is highlighted by the fact that he
invokes a right to counsel pursuant to R.C. 2151.352 before the delinquency
matter is brought against him in juvenile court. His reliance on R.C. 2151.352,
which requires a court to appoint counsel or ascertain whether a party is aware of
his right to counsel, is weakened by the fact that the jurisdiction of the juvenile
court had not yet been invoked, and thus no court had authority to act.
        {¶ 23} In view of these reasons and the plain language of R.C. 2151.352,
we conclude that an interrogation that occurs prior to the filing of a complaint
alleging delinquency or prior to an appearance in juvenile court is not a
proceeding that falls within the scope of R.C. Chapter 2151. This determination
is consistent with our duty to construe statutes to avoid unjust and unreasonable
results. R.C. 1.47(C).
        {¶ 24} This conclusion also conforms with our statement in State v.
Ostrowski, 30 Ohio St.2d 34, 282 N.E.2d 359 (1972): “Taken as a whole, the
purpose of R.C. 2151.352 is to insure to the juvenile his right to counsel and/or
his right to have parents present at any hearing.” Id. at 42 (construing an earlier
version of R.C. 2151.352, which contained the term “stages of the proceedings”).
        {¶ 25} In this case, the complaint filed by Detective Borden commenced
the delinquency proceeding against M.W. and invoked the jurisdiction of the
juvenile court and afforded M.W. the right to counsel pursuant to R.C. 2151.352.
Because Shoulders’s interrogation of M.W. occurred prior to the filing of that
complaint, M.W.’s statutory right to counsel had not attached.
        {¶ 26} We stress that the only claimed right to counsel in this appeal is a
statutory one premised on R.C. 2151.352, and our narrow holding does not
address any constitutional right to counsel or the issue of waiver. Although M.W.
had a Fifth Amendment right to counsel pursuant to Miranda, he did not exercise



                                         9
                             SUPREME COURT OF OHIO




that right. In re M.W., 2010-Ohio-6362, at ¶ 16. His Sixth Amendment right to
counsel, which guarantees the right to counsel at all “ ‘critical’ stages of the
proceedings,” United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 18
L.Ed.2d 1149 (1967), had not yet attached because a complaint alleging
delinquency had not yet been filed. United States v. Gouveia, 467 U.S. 180, 189,
104 S.Ct. 2292, 81 L.Ed.2d 146 (1984) (right to counsel “attaches at the
initiation” of adversarial judicial proceedings).
                                     Conclusion
       {¶ 27} The term “proceedings” as used in R.C. 2151.352 means court
proceedings, and in that context, a child is statutorily entitled to representation by
legal counsel upon the filing of a complaint in juvenile court or upon initial
appearance in the juvenile court. Thus, the right of a juvenile to counsel pursuant
to R.C. 2151.352 attaches when the jurisdiction of a juvenile court is properly
invoked. For these reasons, we affirm the judgment of the appellate court.
                                                                 Judgment affirmed.
       LUNDBERG STRATTON, LANZINGER, and CUPP, JJ., concur.
       O’CONNOR, C.J., and PFEIFER and MCGEE BROWN, JJ., dissent.
                               __________________
       LANZINGER, J., concurring.
       {¶ 28} I concur in judgment because the statute, the juvenile rules, and the
cases cited in the majority opinion support the conclusion that the term
“proceedings” in R.C. 2151.352 relates to juvenile court proceedings that begin
when a complaint alleging delinquency is filed.           Although the dissent is
impassioned in arguing that a juvenile’s right to counsel should attach at an earlier
time, such an extension is a policy matter. Just as it amended R.C. 2921.04 to
define “witness” to mean a person with knowledge of facts “whether or not
criminal or delinquent child charges are actually filed,” the General Assembly




                                          10
                               January Term, 2012




may define the term “proceedings” to include a statutory right to counsel for
juveniles during “investigations of delinquency” if it so chooses.
       CUPP, J., concurs in the foregoing opinion.
                              __________________
       O’CONNOR, C.J., dissenting.
       {¶ 29} Because I believe that the majority’s holding offends the United
States Supreme Court’s constitutional commands on a juvenile’s due process and
Fifth Amendment rights, our own precedent, and the intent of the General
Assembly in enacting R.C. 2151.352, I must dissent.
                                THE CONFESSION
       {¶ 30} In 2009, M.W., a 15-year-old boy, acted as a lookout while his
friend, another juvenile male, robbed a victim at gunpoint. We believe this to be
true because soon thereafter, M.W. admitted those facts to Cleveland Police.
       {¶ 31} M.W. confessed after signing a waiver of his rights to an attorney,
without the benefit of advice from counsel or his parents or guardian. (Evidently,
it is “typical” for the Cleveland Police Department to interview juveniles without
their parents being present.) And after doing so, he was interrogated by police
without an attorney being present.
       {¶ 32} There is no doubt that M.W.’s actions were dangerous and that he
is in need of intervention. But there is doubt whether his confession, which was
used against him in the subsequent delinquency proceedings, was constitutionally
obtained.
       {¶ 33} The majority opinion divorces the relevant analyses from the
question before us, asserting that there is no need to discuss a juvenile’s
constitutional protections because M.W. waived any constitutional right against
self-incrimination.   Evidently, the majority ignores that the proposition we




                                         11
                                 SUPREME COURT OF OHIO




accepted for review in this appeal clearly refers to Miranda v. Arizona, 384 U.S.
436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).3
        {¶ 34} The majority then asserts that the statute at issue, R.C. 2151.352, is
a plainly worded one and that the statutory term “proceedings” cannot be subject
to more than one interpretation.
        {¶ 35} The majority is mistaken on both counts.
                             CONTEXT IS EVERYTHING
       The Statutory Term “Proceedings” Is Not Clear and Unambiguous
        {¶ 36} The term “proceedings” does not have one plain and ordinary
meaning.
        {¶ 37} The term can certainly refer to an event in civil litigation or
criminal prosecution that occurs after the filing of a complaint or an indictment
with the court. But that understanding of the word is not the exclusive one, nor is
it dispositive here. After all, the majority concedes that the word “proceedings”
also refers to “ ‘[a]n act or step that is part of a larger action.’ ” Majority opinion
at ¶ 18, quoting Black’s Law Dictionary 1324 (9th Ed.2009). And certainly an
interrogation of a juvenile is an act or step that is part of a larger action, i.e., the
process of adjudicating the juvenile as a delinquent.
        {¶ 38} Perhaps more compelling, however, is that Black’s recognizes that
the term “proceedings” includes “ ‘all ancillary or provisional steps, such as
arrest.’ ” (Emphasis added.) Black’s at 1324, quoting Edwin E. Bryant, The Law
of Pleading under the Codes of Civil Procedure 3-4 (2d Ed.1899).4 Notably, that

3. The question before us is whether a juvenile has the right to counsel at all stages of the
proceedings against him, and whether in the interrogation stage, the juvenile must be represented
by his parent, guardian, custodian, or an attorney before waiving his right to counsel pursuant to
Miranda.

4. The majority attempts to support its view by pointing to the definitions that were in Black’s
when the statute was enacted in 1969. But 70 years prior to the enactment of the statute, Dean
Bryant had explained that an “arrest” is a “proceeding.” We must presume that the General
Assembly was aware of that usage of the term “proceeding” in the common law. In re C.S., 115




                                               12
                                   January Term, 2012




definition is absent from the majority’s opinion, notwithstanding the fact that it
appears in the same definition upon which the majority relies.
        {¶ 39} Thus, the varied definitions of “proceedings” contradict the
majority’s insistence that there is only one plain and ordinary meaning of the
word and its conclusion that the only meaning of “proceedings” is a court event
that takes place after the filing of a complaint or indictment. Thus, to understand
what the General Assembly intended, we must look beyond the statute’s words.
        {¶ 40} The majority implicitly agrees that we must look beyond the words
of the statute because its analysis does not end with a discussion of the plain and
ordinary meaning of “proceeding.” Instead, it attempts to buttress its conclusion
with context from our case law. I agree that context controls the analysis here,
but I strongly disagree with the context upon which the majority relies.
                THE IMPROPER CONTEXT USED BY THE MAJORITY
   The Sixth Amendment Right to Counsel Is Inapplicable in Juvenile Cases
        {¶ 41} The majority holds, “ ‘Proceedings’ evokes a court of law, not the
investigatory action taken by police prior to the filing of the complaint or a
juvenile’s appearance before a tribunal.” Majority opinion at ¶ 18. The majority
would be correct if it were addressing an adult criminal defendant’s Sixth
Amendment right to counsel in a proceeding, which does not attach until a
prosecution commences. See, e.g., McNeil v. Wisconsin, 501 U.S. 171, 175, 111
S.Ct. 2204, 115 L.Ed.2d 158 (1991). More specifically, in the adult criminal
context, the United States Supreme Court has held that a defendant’s right to
counsel in a proceeding does not commence until the government initiates
“ ‘adversary judicial criminal proceedings—whether by way of formal charge,
preliminary hearing, indictment, information, or arraignment.’ ”               Rothgery v.
Gillespie Cty., Tex., 554 U.S. 191, 198, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008),

Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 91 (when enacting statutes, we presume the
General Assembly was mindful of the common law).




                                             13
                              SUPREME COURT OF OHIO




quoting Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411
(1972) (plurality opinion).
       {¶ 42} But the Sixth Amendment is not applicable here.
             The Due Process Clause of the Fourteenth Amendment
                              Controls in Juvenile Cases
       {¶ 43} As we explained in In re C.S., the juvenile’s right to counsel is not
governed by the Sixth Amendment, but rather by the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. 115 Ohio St.3d 267,
2007-Ohio-4919, 874 N.E.2d 1177, ¶ 79, citing In re Gault, 387 U.S. 1, 41, 87
S.Ct. 1428, 18 L.Ed.2d 527 (1967). Because it is founded in due process, the
juvenile’s right to counsel in proceedings is a malleable right rather than a rigid
one; it is driven by concerns for fundamental fairness. Id. at ¶ 80. It was that
sense of fundamental fairness that drove the analysis in In re C.S., a critical point
that was evidently lost on the majority.
                The Majority’s Reliance on Inapposite Precedent
       {¶ 44} The majority also relies on Ohio case law decided long after the
General Assembly enacted R.C. 2151.352. I do not quibble with the import of
those cases in other contexts, but they are inapposite here.
       {¶ 45} For example, the majority’s reliance on cases like State v. Davis,
132 Ohio St.3d 25, 2012-Ohio-1654, 968 N.E.2d 466, is entirely misplaced.
       {¶ 46} In Davis, we rendered a narrow holding interpreting R.C. 2921.04,
a modern statute prohibiting intimidation of witnesses.        We held, “A police
investigation of a crime, without more, is not a proceeding in a court of justice,
and it does not invoke the protection of R.C. 2921.04(B) for a person who
observes the crime.” Id. at ¶ 19.
       {¶ 47} Davis was decided more than 40 years after the General Assembly
enacted R.C. 2151.352, and the decision does not interpret R.C. 2151.352 or any




                                           14
                                     January Term, 2012




other juvenile statute. It does not offer even the smallest glimpse of insight into
the legislative thinking on juvenile rights in 1969.5
         {¶ 48} And notably, while the appeal in Davis was pending, the General
Assembly sent a clear message rejecting the courts’ narrow interpretation of R.C.
2921.04, which included the phrase “criminal action or proceeding” when Davis
was prosecuted. While the appeal was pending, the General Assembly amended
R.C. 2921.04, clarifying that the statutory scheme is designed to protect “any
person who has or claims to have knowledge concerning a fact or facts
concerning a criminal or delinquent act, whether or not criminal or delinquent
child charges are actually filed.” Davis, 132 Ohio St.3d 25, 2012-Ohio-1654, 968
N.E.2d 466, ¶ 3, fn. 1, citing 2011 Sub.H.B. No. 20, effective June 4, 2012. If
anything, the General Assembly’s response to Davis militates in favor of holding
that the right to counsel precedes the filing of formal charges.
         {¶ 49} Further, our holding in Davis was driven in part by the rule that we
must construe ambiguity in criminal statutes in favor of the defendant and against
the state. That rule does not support the majority’s holding in construing R.C.
2151.352. Rather, it supports the notion that we must generously read R.C.


5. Rice v. United States, 356 F.2d 709, 710-712 (8th Cir.1966), a case in which union laborers
were intimidated into withdrawing grievances they had filed with the National Labor Relations
Board, is a far better explanation of how legislative bodies viewed “proceedings” in the context of
witness-intimidation statutes at the time. There, the federal appeals court expansively interpreted
the term “proceeding” to reach the filing of a preliminary charge filed with an administrative
agency even though the agency had never filed a formal complaint. Rice at 712. The court
broadly interpreted the term “proceeding” as “a comprehensive term meaning the action of
proceeding—a particular step or series of steps, adopted for accomplishing something,” thus
including all steps from the inception of an action to its conclusion. Id. In doing so, it noted the
importance of understanding the legislative intent behind the word. The court explained that the
purpose of the statute at issue in Rice was to punish obstruction of the administrative process by
impeding a witness in any proceeding before a governmental agency. The court stressed that the
statute reached intimidation “at any stage of the proceedings, be it adjudicative or investigative.
Congress did not limit the term ‘proceeding’ as used in [the witness-intimidation statute] to only
those acts committed after a formal stage was reached, and we cannot so limit the term.”
(Emphasis added.) Id.




                                                15
                             SUPREME COURT OF OHIO




2151.352 in favor of the juvenile’s rights, including his right to counsel and due
process. The majority does the opposite; it reads the statute in favor of the state.
       {¶ 50} The majority opinion also relies on State v. Ostrowski, 30 Ohio
St.2d 34, 282 N.E.2d 359 (1972), for the proposition that we interpreted an earlier
version of R.C. 2151.352 to ensure that juveniles have counsel or their parents
present at any hearing. That statement is wholly misleading.
       {¶ 51} The full context of the quote used by the majority establishes that
in Ostrowski, we were concerned with the sequestration of witnesses, including a
juvenile’s parents, and not the right to have those parents, or counsel, present
during the proceedings:


               Taken as a whole, the purpose of R.C. 2151.352 is to insure
       to the juvenile his right to counsel and/or his right to have his
       parents present at any hearing. In our opinion, such a provision is
       not intended to and does not take away from a trial court its basic
       right to order a separation of witnesses until such time as such
       witnesses have testified. During such time the exclusion is not of
       parents, as such, but instead is the exclusion of witnesses.
               Moreover, during such time as the parents were so
       excluded, the juvenile was fully and adequately represented by two
       attorneys. Under these circumstances, no possible prejudice to the
       juvenile could result from such exclusion.


(Emphasis sic.) Id. at 43.
       {¶ 52} Even if Ostrowski had not been focused on the issue of
sequestration, let us be clear that Ostrowski addressed proceedings in court—not
custodial interrogations—in which the juvenile at issue had the benefit of two




                                         16
                               January Term, 2012




attorneys.   Thus, in this case, in which a juvenile had no counsel during a
custodial interrogation, Ostrowski is of no value.
       {¶ 53} It is a difficult task to attempt to define “proceedings” by looking
to cases that analyzed the term in the era in which R.C. 2151.352 was enacted.
This is particularly true given that while the General Assembly was crafting R.C.
2151.352, the federal courts were struggling to define and interpret “proceedings”
in quasi-judicial proceedings like administrative proceedings.
       {¶ 54} In a host of cases, the federal courts interpreted “proceedings” to
reach investigations conducted by administrative agencies long before any formal
complaint or indictment was filed in court. For example, in 1964, the District of
Columbia District Court considered a Securities and Exchange Commission
investigation to be a “proceeding.” United States v. Batten, 226 F.Supp. 492, 494
(D.D.C.1964). And soon thereafter, the Sixth Circuit Court of Appeals upheld a
conviction for giving false invoices to an investigator in a Federal Trade
Commission case, holding that the term “proceeding” has a broad scope,
“encompassing both the investigative and adjudicative functions of a department
or agency.” United States v. Fruchtman, 421 F.2d 1019, 1021 (6th Cir.1970).
       {¶ 55} Admittedly, the statutory schemes at issue in Batten and
Fruchtman are not any more akin to R.C. 2151.352 than the cases cited by the
majority. But they illustrate that at the time the General Assembly used the word
“proceedings” in R.C. 2151.352, the courts were not limiting its definition to the
events that occur after the formal filing of charges in a court. Indeed, neither
lawmakers nor judges of that era myopically viewed the term “proceedings” in the
manner the majority suggests here.       As the Tenth Circuit Court of Appeals
succinctly stated after reviewing cases like Rice and Batten:


               In sum, the term “proceeding” is not, as one might believe,
       limited to something in the nature of a trial. The growth and



                                         17
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       expansion of agency activities have resulted in a meaning being
       given to “proceeding” which is more inclusive and which no
       longer limits itself to formal activities in a court of law. Rather,
       the investigation or search for the true facts such as that which is
       described in the indictment here is not to be ruled a non-
       proceeding simply because it is preliminary to indictment and trial.


United States v. Browning, 572 F.2d 720, 724 (10th Cir.1978).
       {¶ 56} Having illustrated the reasons why the majority’s contextualization
is improper, I turn to one that accurately illuminates the statute.
                              THE PROPER CONTEXT
    R.C. 2151.352 Codifies and Expands a Juvenile’s Constitutional Rights
       {¶ 57} This court recognizes that R.C. 2151.352 is the legislative
embodiment of the United States Supreme Court’s holding in Gault. In re C.S.,
115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, at ¶ 83.             “Indeed,
through R.C. 2151.352, the legislature provided a statutory right to appointed
counsel that goes beyond constitutional requirements.” Id., citing In re Williams,
101 Ohio St.3d 398, 2004-Ohio-1500, 805 N.E.2d 1110, ¶ 15, and State ex rel.
Asberry v. Payne, 82 Ohio St.3d 44, 46, 693 N.E.2d 794 (1998).
       {¶ 58} We must look to the constitutional requirements that the statute
embodies. And after doing so, we must be true to them and to the statutory right
that exceeds those requirements.
                        Relevant Supreme Court Precedent
       {¶ 59} The General Assembly enacted our juvenile-delinquency statutes in
the wake of the Supreme Court’s decisions in watershed cases like Kent v. United
States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), and Gault. See In re
C.S. Those decisions, and their rationales, control here. So, too, do the court’s
contemporaneous pronouncements on the Fifth Amendment right against self-




                                          18
                                  January Term, 2012




incrimination in Miranda, which was announced shortly before Ohio’s enactment
of R.C. 2151.352.
        {¶ 60} The Fifth Amendment protects an individual from being compelled
to be a witness against himself, whether in a custodial interrogation or in court
after formal charges have been brought. See Bram v. United States, 168 U.S. 532,
542-543, 18 S.Ct. 183, 42 L.Ed. 568 (1897). In Miranda, the Supreme Court
explained those rights, holding that a police officer, before questioning a suspect
in custody, must warn the suspect of the right to remain silent and that anything
said during interrogation could be used against the suspect in court, that the
suspect has a right to have an attorney present during questioning, and that if the
suspect cannot afford an attorney but desires one, the court will appoint one prior
to any questioning. Miranda, 384 U.S. at 478-479, 86 S.Ct. 1602, 16 L.Ed.2d 694.
        {¶ 61} The Miranda warning is more than fodder for television and movie
depictions of police work. Its purpose is “to dispel the compulsion inherent in
custodial surroundings.” Id. at 458. Indeed, the warning concerning a suspect’s
right to counsel is designed to ensure that the privilege against self-incrimination
“remains unfettered throughout the interrogation process.”           Id. at 469. That
protection is critical for all individuals, but particularly for juveniles.
        {¶ 62} As the Supreme Court recently reiterated, by their very nature,
custodial police interrogations entail inherently compelling pressures. J.D.B. v.
North Carolina, ___ U.S. ___, 131 S.Ct. 2394, 2401, 180 L.Ed.2d 310 (2011),
citing Miranda at 467. Those pressures are heightened for juveniles:


        Even for an adult, the physical and psychological isolation of
        custodial interrogation can “undermine the individual’s will to
        resist and * * * compel him to speak where he would not otherwise
        do so freely.” [Miranda at 467.] Indeed, the pressure of custodial
        interrogation is so immense that it “can induce a frighteningly high



                                           19
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       percentage of people to confess to crimes they never committed.”
       Corley v. United States, 556 U.S. 303 [321], 129 S.Ct. 1558, 1570,
       173 L.Ed.2d 443 (2009) (citing Drizin & Leo, The Problem of
       False Confessions in the Post-DNA World, 82 N.C.L.Rev. 891,
       906-907 (2004)); see also Miranda, 384 U.S., at 455, n. 23, 86
       S.Ct. 1602 [16 L.Ed.2d 694]. That risk is all the more troubling—
       and recent studies suggest, all the more acute—when the subject of
       custodial interrogation is a juvenile.


Id., ___ U.S. ___, 131 S.Ct. at 2401, 180 L.Ed.2d 310.
       {¶ 63} Given the importance of the Fifth Amendment’s protections against
self-incrimination, it is not surprising that the year after the Supreme Court issued
Miranda, the court announced its decision in Gault, which held that the concept
of Fifth Amendment rights set forth in Miranda applied to juveniles. Gault, 387
U.S. at 55, 87 S.Ct. 1428, 18 L.Ed.2d 527. In doing so, the court made clear that
the juvenile’s right to counsel extended to the juvenile’s interactions with police
as well as in any courtroom hearings that might follow the interaction with police:


       The participation of counsel will, of course, assist the police,
       Juvenile Courts and appellate tribunals in administering the
       privilege. If counsel was not present for some permissible reason
       when an admission was obtained, the greatest care must be taken to
       assure that the admission was voluntary, in the sense not only that
       it was not coerced or suggested, but also that it was not the product
       of ignorance of rights or of adolescent fantasy, fright or despair.


(Emphasis added.) Id.




                                         20
                               January Term, 2012




       {¶ 64} The rationale for the Supreme Court’s holdings was not shrouded
in mystery. Rather, the court had previously discussed the need for a juvenile to
have parents or counsel present during interrogations. “[A juvenile] cannot be
compared with an adult in full possession of his senses and knowledgeable of the
consequences of his admissions.” Gallegos v. Colorado, 370 U.S. 49, 54, 82
S.Ct. 1209, 8 L.Ed.2d 325 (1962). A juvenile in police custody is often in need of
“more mature judgment” from an adult relative or counsel, who can give the
juvenile “the protection which his own immaturity could not.” Id.
       {¶ 65} That understanding of the limitations on a juvenile’s cognitive
abilities and legal capacity was not new to the court or created by it. Indeed, as
recognized by Blackstone, the common law is replete with examples of how
juveniles are treated differently in the law. J.D.B., ___ U.S. ___, 131 S.Ct. at
2403-2404, 180 L.Ed.2d 310, citing 1 Blackstone, Commentaries on the Laws of
England, *464-465.


              The concept of establishing different standards for a
       juvenile is an accepted legal principle since minors generally hold
       a subordinate and protected status in our legal system. There are
       legally and socially recognized differences between the presumed
       responsibility of adults and minors. Indeed the juvenile justice
       system, which deals with most offenses committed by those under
       eighteen, is substantially different in philosophy and procedure
       from the adult system. This State, like all the others, has
       recognized the fact that juveniles many times lack the capacity and
       responsibility to realize the full consequences of their actions. As a
       result of this recognition minors are unable to execute a binding
       contract, unable to convey real property, and unable to marry of
       their own free will. It would indeed be inconsistent and unjust to



                                        21
                             SUPREME COURT OF OHIO




       hold that one whom the State deems incapable of being able to
       marry, purchase alcoholic beverages, or even donate their own
       blood, should be compelled to stand on the same footing as an
       adult when asked to waive important Fifth and Sixth Amendment
       rights at a time most critical to him and in an atmosphere most
       foreign and unfamiliar.


(Citations omitted.) Lewis v. State, 259 Ind. 431, 437, 288 N.E.2d 138 (1972).
       {¶ 66} In light of the long-held understanding of the unique place
juveniles occupy in the law and the Supreme Court’s decisions in Gault and
Miranda, state high courts, in the era in which R.C. 2151.352 was enacted, often
held that the government may not use a juvenile’s statement or confession at a
subsequent trial or hearing unless the juvenile and the juvenile’s parents were
informed of the juvenile’s rights to counsel and to remain silent. See, e.g., People
v. Burton, 6 Cal.3d 375, 99 Cal.Rptr. 1, 491 P.2d 793 (1971); Lewis at 438; In re
S.H., 61 N.J. 108, 293 A.2d 181 (1972). The decisions of our sister, the Indiana
Supreme Court, are illustrative of this history.
       {¶ 67} By 1973, the Indiana high court would simply and succinctly
announce, “[I]t is clear under the United States Supreme Court rule that a juvenile
who is alleged to be delinquent is entitled to the assistance of counsel at any
interrogation that may take place, and at the hearing before the juvenile judge at
which disposition of this status is made.” Bridges v. State, 260 Ind. 651, 653, 299
N.E.2d 616 (1973). Since then, it properly recognized that juveniles should be
afforded safeguards that are in addition to those required by Miranda when
subjected to custodial interrogation; those holdings were often codified into state
statutes. See, e.g., D.M. v. State, 949 N.E.2d 327, 333 (Ind.2011).
       {¶ 68} The Indiana approach is consistent with our decision in In re C.S.,
in which we more clearly enunciated our protective philosophy of juvenile justice




                                          22
                                      January Term, 2012




that recognizes the realities of modern delinquency proceedings. That philosophy
is not reserved only for our courtrooms.                    Rather, it permeates custodial
interrogation as well, consistent with the Supreme Court’s teachings in Miranda,
Gault, and J.D.B., and the fundamental fairness that due process rights are
intended to protect.
         {¶ 69} The majority opinion defies law, logic, and common sense in
suggesting that a statute that goes beyond constitutional requirements must be
considered without any consideration of constitutional requirements.6 Thus, the
majority casts aside those constitutional commands, as well as our precedent, and
reframes the issue before us as simply one of statutory language. In doing so, the
majority approach impermissibly fails to consider the protections set forth in
Miranda simply because M.W. purportedly waived those rights under the statute.
                                          CONCLUSION
         {¶ 70} The General Assembly enacted R.C. 2151.352 in response to a
series of directives from the United States Supreme Court calling for courts to
ensure fundamental fairness in juvenile proceedings, including protecting
juveniles’ right, from custodial interrogation through adjudication, not to
incriminate themselves. Given those purposes, the majority’s construction of
R.C. 2151.352 improperly vitiates the very purpose of the statute and thus violates
the canon of statutory construction that forbids reading statutes in a manner that

6. The majority’s opinion is curious, at best, given that its author dissented from the holding in In
re C.S. because he concluded that the holding “invades the province of a parent’s role in raising
his or her child” and in making important decisions that have significant repercussions in the
child’s life. In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, at ¶ 125
(O’Donnell, J., dissenting). Undoubtedly, parents can play a critical role in assisting their minor
children during a custodial interrogation, as the Supreme Court has made clear. See, e.g.,
Gallegos, 370 U.S. at 54, 82 S.Ct. 1209, 8 L.Ed.2d 325; Haley v. Ohio, 332 U.S. 596, 599-600, 68
S.Ct. 302, 92 L.Ed. 224 (1948). But the majority’s analysis here does not foreclose the use of a
statement made by a 15-year-old boy who did not have the benefit of counsel or his parents or
guardian during a custodial interrogation. The custodial interrogation is at least as important as
the events that subsequently unfold in court, and given its repercussions, a child must be afforded
the right to counsel and parents during that period.




                                                 23
                              SUPREME COURT OF OHIO




leads to absurd results or that defeats the purpose for which the statute was
passed. More importantly, it offends fundamental notions of due process and
fairness.
          {¶ 71} The majority’s holding implicitly endorses a system in which the
rights our federal and state constitutions were designed to protect, as expressed in
Miranda, Gault, and C.S., are offended. I cannot countenance such a holding, and
thus I strongly dissent.
          PFEIFER and MCGEE BROWN, JJ., concur in the foregoing opinion.
                               __________________
          William D. Mason, Cuyahoga County Prosecuting Attorney, and Daniel T.
Van and Richard Hanrahan, Assistant Prosecuting Attorneys, for appellee, state of
Ohio.
          Timothy Young, State Public Defender, and Amanda J. Powell, Assistant
Public Defender, for appellant, M.W.
          Marsha L. Levick, urging reversal for amicus curiae Juvenile Law Center.
          Kim Brooks Tandy, urging reversal for amicus curiae Children’s Law
Center.
          Nadia Seeratan, urging reversal for amicus curiae National Juvenile
Defender Center.
          Joshua Tepfer, urging reversal for amicus curiae Center on Wrongful
Convictions of Youth.
          James L. Handiman, urging reversal for amicus curiae American Civil
Liberties Union of Ohio.
                             ______________________




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