[Cite as In re D.H., 2014-Ohio-5140.]




                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA



                                  JOURNAL ENTRY AND OPINION
                                          No. 101034




                                            IN RE: D.H.
                                            A Minor Child




                                            JUDGMENT:
                                             VACATED



                                       Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                         Juvenile Division
                                      Case No. DL 09101346


        BEFORE:         Boyle, A.J., Celebrezze, J., and Jones, J.

        RELEASED AND JOURNALIZED: November 20, 2014
ATTORNEYS FOR APPELLANT

Timothy Young
Ohio Public Defender
BY: Sheryl Trzaska
Assistant State Public Defender
250 E. Broad Street, Suite 1400
Columbus, Ohio 43215


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Lindsay Raskin
        Colleen Reali
        Joseph J. Ricotta
Assistant County Prosecutors
Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
MARY J. BOYLE, A.J.:

       {¶1}    Appellant D.H. appeals from the decision of the Cuyahoga County Court of

Common Pleas, Juvenile Division, granting the state’s motion to invoke the adult portion of

D.H.’s serious youthful offender (“SYO”) sentence pursuant to R.C. 2152.14(A). Finding merit

to the appeal, we reverse the trial court’s decision and vacate its orders.

                                    Procedural History and Facts

       {¶2}    In January 2009, pursuant to a plea agreement, the trial court found D.H. (then 16

years old) delinquent and guilty of one count of involuntary manslaughter, one count of

aggravated robbery, and the attendant firearm and SYO specifications. D.H. was 15 years old at

the time of committing the offenses. The court imposed a blended sentence: incarceration at the

Ohio Department of Youth Services (“ODYS”) up until the age of 21 (a “juvenile-life sentence”)

and a stayed adult sentence of six years. Specifically, the suspended adult sentence consisted of

a three-year prison term for involuntary manslaughter, a one-year prison term for aggravated

robbery, and a two-year prison term for the firearm specification, all to be served consecutively.

       {¶3}    As part of its journal entry, the trial court specifically stated that D.H.’s “[a]dult

sentence is stayed on condition of the child’s successful completion of the juvenile portion of the

disposition of this matter.”

       {¶4}    On December 4, 2013, Sheryl Trzaska, an assistant state public defender, filed a

“notice of limited appearance and motion for judicial release” on behalf of D.H. and requested a

hearing. The motion indicated that D.H. “will successfully complete his [ODYS] commitment

on his 21st birthday, February 20, 2014” and requested that the court “order [D.H.] released to

[ODYS] parole prior to February 20, 2014, so that parole may assist him with the transition back
into society, and provide the necessary guidance and coordinate the community services that he

will require.”

       {¶5}      On December 13, 2013, the state filed an objection to D.H.’s motion for judicial

release, urging the court to deny D.H.’s request on the grounds that (1) D.H. was sentenced to a

mandatory term of juvenile life (up until his 21st birthday), and (2) “it is the position of the state

that upon completion of his sentence at ODYS, the state would ask the court to impose his adult

six-year sentence.”

       {¶6}      The court set the matter for a hearing on January 17, 2014, and ordered that

ODYS transport D.H. from his correctional facility to participate in the scheduled hearing.

       {¶7}      On January 14, 2014, D.H. filed a “notice of withdrawal of request for judicial

release,” withdrawing his request for judicial release and asking the court to cancel the upcoming

hearing and transport order. The trial court accepted D.H.’s notice of withdrawal and cancelled

the scheduled hearing and transport order.

       {¶8}      On January 14, 2014, pursuant to R.C. 2152.22, ODYS filed its written treatment

and rehabilitation plan for D.H., seeking approval and journalization by the court.               The

following day, the court approved the plan and made it part of the trial court’s journal entry.

The written plan specifically identified February 20, 2014, as D.H.’s tentative discharge date.

       {¶9}      The day before D.H.’s 21st birthday, on February 19, 2014, the state moved to

invoke the adult portion of D.H.’s SYO sentence. In its motion, the state argued that the

“Director of ODYS requested that the Cuyahoga County Prosecutor’s Office file a motion

seeking to invoke the adult portion of [D.H.’s] sentence.” Specifically, the state argued that the

requirements of R.C. 2152.14(A)(1) were met and that D.H. had “committed approximately 22

assaults on other residents, four assaults on staff members, and more than two dozen other
disruptive and violent acts.” Based on these violations, the state moved the court to invoke the

adult portion of D.H.’s SYO sentence pursuant to R.C. 2152.14(A). The state served its motion

to both assistant state public defender, Sheryl Trzaska, and assistant Cuyahoga County public

defender, Laura Molica.

       {¶10} On February 19, 2014, Laura Molica, on behalf of D.H., filed a memorandum in

opposition to the state’s motion to invoke the adult portion of the SYO disposition, noting that

D.H.’s “suspended prison terms for aggravated robbery and corresponding firearm specifications

are not authorized by law, and are legally void.” D.H. further argued that the court could not

invoke a SYO term that is contrary to law.

       {¶11} The trial court set a hearing on the motion the same day that it was filed. At the

start of the hearing, D.H.’s counsel objected, stating, among other things, the following:

               First, I would like to raise several issues to preserve our record. We do
       object to going forward on the State’s motion to invoke the adult portion of the
       sentence. That motion was filed today. He turns 21 at midnight tonight. The
       State waited till the very 11th hour to file that motion. I was served with it today.
        I don’t even know if my client was served with it, so we object to going forward
       based on that.

              I’ve also just met him literally 15 minutes ago. I’ve had no opportunity to
       discuss this with him — or he’s had no opportunity to discuss this with me. He’s
       had no opportunity to prepare a defense. We’ve had no opportunity to talk about
       any potential witnesses. I haven’t had any opportunity to contact any potential
       witnesses to thoroughly prepare a defense.

               The State is filing a motion asking that he be given an adult prison

       sentence.    In addition, what would go along with that would be an adult

       conviction. I think at the very minimum due process would apply, and he is

       being denied his due process rights by being forced to go forward today without

       thorough preparation for a defense.
        {¶12} The state responded, indicating that the “state of Ohio became aware of this

delinquent’s conduct yesterday” and, based on such conduct, filed the appropriate motion to

invoke the adult portion of his sentence.

        {¶13} The trial court proceeded to hear evidence on the state’s motion and ultimately

granted the state’s motion in part.         The trial court invoked the three-year prison term for

involuntary manslaughter; the court determined that the other consecutive three-year term for

aggravated robbery and the firearm specification, however, were legally void and therefore not

subject to invocation.1

        {¶14} The trial court gave D.H. credit for 1,856 days he served in the Cuyahoga County

Juvenile Detention Center as well as the time he served in the ODYS facilities. The court

further recognized that D.H. had already served time that would be equivalent to the three-year

prison term (1,095 days), and therefore placed D.H. “on parole via the adult parole authority.”2

        {¶15} Because the parole authority could not place D.H. on postrelease control without a

prison number from the Department of Rehabilitation and Correction, the juvenile court issued a


        1
           Because the original sentence stated that the child was to be sentenced for the adult portion
to a term of one year on the aggravated robbery count and two years for the gun specification, which
contravenes the minimum requirement of no less than three years on each, the sentence was contrary
to law and therefore not enforceable. The state concedes this point.

            Pursuant to R.C. 2152.14(F), the trial court was required to give D.H. credit for the days
        2


that he served in the juvenile facility. Specifically, the statute provides in relevant part: “The time
the person must serve on a prison term imposed under the adult portion of the dispositional sentence
shall be reduced by the total number of days specified in the order plus any additional days the person
is held in a juvenile facility or in detention after the order is issued and before the person is transferred
to the custody of the department of rehabilitation and correction. In no case shall the total prison term
as calculated under this division exceed the maximum prison term available for an adult who is
convicted of violating the same sections of the Revised Code.” Id.
transport order on February 21, 2014, instructing D.H. to turn himself in to the Lorain

Correctional Institution to be “assessed for Post Release Control.” Three days later, the juvenile

court filed a “corrected journal entry” that included the same language of the earlier order but

also added the following language: “It is therefore ordered that the child is sentenced to the

Lorain Correctional Institution for a period of three (3) years, and is remanded to the custody of

the Cuyahoga County Sheriff’s Department for that purpose.”

       {¶16} D.H. appeals, raising the following seven assignments of error:

               I. The juvenile court was without jurisdiction to conduct D.H.’s SYO
       invocation hearing, because notice of the proceedings had not been served on the
       parties, in violation of Juv.R. 20(A), the Fourteenth Amendment to the United
       States Constitution and Article I, Section 16 of the Ohio Constitution.

               II. The juvenile court erred when it failed to appoint a guardian ad litem
       to protect D.H.’s interests when his parents or guardians were not present at the
       SYO invocation, in violation of R.C. 2151.281(A) and Juv.R. 4(B)(1).

               III. The juvenile court violated D.H.’s right to due process of law when it
       conducted a hearing on the State’s motion to invoke the adult portion of a SYO
       sentence the same day that the motion was filed, in violation of Juv.R. 18(D), the
       Fourteenth Amendment to the United States Constitution and Article I, Section 16
       of the Ohio Constitution.

               IV. The juvenile court violated D.H.’s right to effective assistance of
       counsel when it conducted the hearing on the State’s motion to invoke the adult
       portion of a SYO sentence the same day that the motion was filed, in violation of
       the Sixth and Fourteenth Amendments to the United States Constitution, and
       Article I, Section 10 of the Ohio Constitution.

              V. The juvenile court was without authority to place D.H. on post-release
       control at the invocation hearing, and acted in violation of R.C. 2967.28(D)(1),
       the Fourteenth Amendment to the United States Constitution and Article I,
       Section 16 of the Ohio Constitution.

               VI. The juvenile court erred when it issued a transport order without
       jurisdiction to do so, and instructed D.H. to turn himself in to the Sheriff for
       transport to the Department of Rehabilitation and Correction to be assessed for
       post-release control.
                VII. The juvenile court erred when it improperly modified its final order

        with the February 24, 2014 “Corrected Journal Entry,” in violation of D.H.’s right

        to due process of law as guaranteed by the Fourteenth Amendment to the United

        States Constitution, and Article I, Section 16 of the Ohio Constitution.

        {¶17} Finding the third and fourth assignments of error dispositive of the appeal, we will

address those first.

                        Due Process and Ineffective Assistance of Counsel

        {¶18} In his third assignment of error, D.H. argues that he was deprived due process

when the trial court failed to comply with Juv.R. 18(D) by allowing the state’s motion to be

heard in less than seven days after it was filed. He further contends in his fourth assignment of

error that he was denied effective assistance of counsel by holding the SYO invocation hearing

on the same day the motion was filed, preventing his counsel from having the opportunity to

adequately prepare and defend the motion.

        {¶19} Juv.R. 18(D) provides that “[a] written motion * * * and notice of hearing thereof

shall be served not later than seven days before the time specified for the hearing unless a

different period is fixed by rule or order of the court.”

        {¶20} The state fails to offer any argument as to why Juv.R. 18(D) does not apply, nor

does it dispute that it failed to comply with the rule. Instead, the state counters that D.H. was

first put on notice in June 2009 that the state could move to invoke his SYO classification and

subsequently reminded of the same when the state opposed D.H.’s motion for judicial release on

December 13, 2013. Specifically, the state relies on the following statement contained in its

brief in opposition: “it is the position of the State that upon completion of his sentence at ODYS,

the state would ask the court to impose [h]is adult six-year sentence.” The state seems to
suggest that these actions are sufficient to negate Juv.R. 18(D) notice requirements because the

state previously had alerted D.H. of its desire for the court to invoke the adult portion of his SYO

sentence.

       {¶21} We find these arguments unpersuasive. Despite the state’s mention of its intention

to seek invocation of the adult portion of the SYO sentence in the brief in opposition that it filed

in December 2013, the state never sought to do so at that time. The state’s failure to timely file

the motion should not be imputed on D.H.

       {¶22} In the alternative, the state argues that any error should be deemed harmless

because D.H. suffered no prejudice.       According to the state, D.H.’s trial counsel “amply

cross-examined, and re-cross-examined the state’s witnesses,” establishing mitigating evidence

in D.H.’s favor. The state further argues that it was “under the same time restraints” as D.H. and

that D.H.’s claim of not having enough time to prepare a defense “is speculative at best.” We

disagree.

       {¶23} We find ample evidence that D.H. was prejudiced by the hearing being held on the

same day that the motion was filed. D.H.’s counsel specifically informed the court that she was

unprepared and that the late filing essentially deprived D.H. of the opportunity to prepare a

defense. Indeed, the lack of timely notice of the hearing essentially deprived D.H. of his right to

effective assistance of counsel.

       {¶24} This court has previously recognized that a defendant was deprived of his

constitutional right to assistance of counsel when the trial court appointed counsel one hour prior

to the defendant’s repeat violent offender plea, a sentencing, and a sexual predator hearing. See

State v. Walton, 8th Dist. Cuyahoga No. 90140, 2008-Ohio-3550. Emphasizing the short time

frame between the appointment of counsel and the critical proceedings themselves, the court
found a “per se violation of an appellant’s right to assistance of counsel.” Id. at ¶ 44. Indeed,

under such circumstances, “‘[t]he likelihood that any lawyer, even a fully competent one, could

provide effective assistance is so small that a presumption of prejudice is appropriate without

inquiry into the actual conduct of the trial.’” Id. at ¶ 42, quoting Hunt v. Mitchell, 261 F.3d 575,

585 (6th Cir.2001).

       {¶25} In this case, it is clear that the untimely filing of the motion by the state and

expedited scheduling of the hearing denied D.H. his constitutional right to assistance of counsel.

Notably, D.H.’s defense counsel expressly stated on the record her objection to moving forward

given (1) her inability to confer with D.H., who she met 15 minutes prior to the hearing, and (2)

her inability to adequately prepare a defense. Based on this record, we find that D.H. was

prejudiced.

       {¶26} The third and fourth assignments of error are sustained.

       {¶27} Based on our disposition of these assignments of error, we find the remaining

assignments of error to be moot.

       {¶28} Accordingly, having found that the trial court should not have held the hearing the

same day that the state’s motion was filed and that such action effectively denied D.H. of his

constitutional rights to due process and counsel, we vacate the trial court’s decision to invoke the

adult portion of D.H.’s SYO dispositional sentence and its subsequent orders. We further note

that D.H. has reached the age of 21, and the juvenile court therefore no longer has jurisdiction

over him.

       {¶29} Judgment vacated.

       It is ordered that appellant recover from appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
       It is ordered that a special mandate be sent to said court to carry this

judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




MARY J. BOYLE, ADMINISTRATIVE JUDGE

FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, SR., J., CONCUR
