[Cite as In re R.H., 2016-Ohio-746.]




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




IN RE:
                                                       CASE NO. 1-15-37
        R.H.,
                                                       OPINION
ALLEGED DELINQUENT CHILD.




                   Appeal from Allen County Common Pleas Court
                                  Juvenile Division
                             Trial Court No. 13JG30562

                       Judgment Reversed and Cause Remanded

                          Date of Decision: February 29, 2016




APPEARANCES:

        Brooke M. Burns for Appellant

        Holly N. Urbanick for Appellee
Case No. 1-15-37


ROGERS, J.

         {¶1} Defendant-Appellant, R.H., appeals the judgment of the Court of

Common Pleas of Allen County, Juvenile Division, finding that he violated the

terms of his probation, committing him to the Ohio Department of Youth Services

(“DYS”) for a minimum period of one year, and classifying him as a tier III

juvenile sex offender.1 On appeal, R.H. argues that (1) the juvenile court erred in

accepting his admission to a probation violation and (2) R.C. 2152.83(A), Ohio’s

statute governing juvenile sex offender classification, is unconstitutional. For the

reasons that follow, we reverse the judgment of the juvenile court.

         {¶2} On May 14, 2013, a complaint was filed in the Court of Common

Pleas of Allen County, Juvenile Division, alleging that 17-year-old R.H. was

delinquent of one count of rape in violation of R.C. 2907.02(A)(2), a felony of the

first degree if committed by an adult. The complaint stemmed from a report that

R.H. had forced his younger sibling to engage in sexual activities with him.

         {¶3} On November 20, 2013, an adjudicatory hearing was held, and

pursuant to a negotiated plea agreement, R.H. entered an admission to an amended

charge of attempted rape in violation of R.C. 2907.02(A)(2) and 2923.02(A), a

felony of the second degree if committed by an adult. In exchange, the State

recommended a stayed commitment at DYS provided that R.H. completed a

1
  Although the January 2014 judgment entry placed R.H. on “community control”, the juvenile court later
referred to this aspect of the disposition as “probation.” For sake of clarity, we will also refer to this aspect
of the disposition as “probation.”

                                                      -2-
Case No. 1-15-37


treatment program at the Juvenile Residential Center (“JRC”). Pursuant to Juv.R.

29(D), the juvenile court accepted R.H.’s admission and adjudicated him

delinquent of the charge.

       {¶4} On January 8, 2014, a dispositional hearing was held, and the juvenile

court committed R.H. to the legal care and custody of DYS for an indefinite term

of one year and a maximum period not to exceed the age of 21. Pursuant to the

State’s recommendation, the DYS commitment was stayed, and R.H. was

committed to JRC for treatment.

       {¶5} On December 12, 2014, R.H.’s probation officer filed an affidavit of

failure to comply, alleging that R.H. had been “unsuccessfully discharged from his

commitment to [JRC] because of non-compliance and lack of progress in the

program.    All being in violation of established rules and regulations of

[probation].” (Docket No. 50, p. 1). As a result, the juvenile court terminated

R.H.’s commitment at JRC and ordered that he be detained at the Allen County

Juvenile Detention Center until further order.

       {¶6} A few days later, on December 19, 2014, the State filed a motion

requesting that R.H. be committed to the legal care and custody of DYS due to his

probation violation.

       {¶7} On February 9, 2015, an adjudicatory hearing was held on the

affidavit, and R.H. entered an admission to the allegations. After determining that


                                        -3-
Case No. 1-15-37


R.H. understood the nature of the allegations and was acting voluntarily, the

juvenile court accepted the admission.

       {¶8} Next, R.H.’s probation officer reiterated the facts underlying the

allegations, and “[b]ased on the admission [sic] the facts as recited,” the juvenile

court “enter[ed] a finding that [R.H.] ha[d] violated the terms and conditions of

probation * * *.” Feb. 9, 2015 Hrg., p. 7.

       {¶9} On May 20, 2015, a dispositional hearing was held concerning R.H.’s

probation violation and the State’s motion to impose R.H.’s stayed commitment.

The State offered a copy of R.H.’s discharge summary from JRC into evidence,

after which the State and R.H.’s probation officer recommended that R.H. be

committed to DYS.

       {¶10} Ultimately, the juvenile court granted the State’s motion, imposed

R.H.’s stayed commitment, and classified him as a tier III juvenile sex offender

registrant. The juvenile court further ordered that R.H. pay court costs as a result

of his probation violation.

       {¶11} It is from this judgment that R.H. appeals, presenting the following

assignments of error for our review.

                              Assignment of Error No. I

       THE ALLEN COUNTY JUVENILE COURT ERRED WHEN
       IT ADJUDICATED R.H. DELINQUENT OF A PROBATION
       VIOLATION BECAUSE IT DID NOT SUBSTANTIALLY
       COMPLY WITH THE REQUIREMENTS OF JUV.R. 29. IN

                                         -4-
Case No. 1-15-37


       RE L.A.B., 121 OHIO ST.3D 112, 2009-OHIO-354, 902 N.E.2D
       471.    FOURTEENTH AMENDMENT TO THE U.S.
       CONSTITUTION; OHIO CONSTITUTION, ARTICLE 1,
       SECTION 16. (2/9/15 T.PP. 1-10; A-1).

                            Assignment of Error No. II

       THE ALLEN COUNTY JUVENILE COURT ERRED WHEN
       IT CLASSIFIED R.H. AS A TIER III JUVENILE SEX
       OFFENDER REGISTRANT UNDER R.C. 2152.83(A), IN
       VIOLATION OF R.H.’S RIGHT TO DUE PROCESS, EQUAL
       PROTECTION, AND HIS RIGHT TO BE FREE FROM
       DOUBLE JEOPARDY. FIFTH AND FOURTEENTH
       AMENDMENTS TO THE U.S. CONSTITUTION; OHIO
       CONSTITUTION, ARTICLE I, SECTIONS 2, 9, AND 16.
       (5/10/15 T.PP. 8; A-1).

                             Assignment of Error No. I

       {¶12} In his first assignment of error, R.H. claims that the juvenile court

failed to conduct a proper Juv.R. 29(D) colloquy prior to accepting R.H.’s

admission to the allegations in the affidavit. Specifically, R.H. claims that the trial

court did not ascertain whether he understood (1) the rights that he would be

giving up if he entered an admission and (2) the consequences of entering an

admission. We agree.

       {¶13} Under Juv.R. 29(D), the juvenile court 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 admission;



                                         -5-
Case No. 1-15-37


      (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.

This rule applies to all juvenile adjudicatory hearings, including probation

revocation hearings. In re L.A.B, 121 Ohio St.3d 112, 2009-Ohio-354, ¶ 65. “The

juvenile court has an affirmative duty under Juv.R. 29(D) to ‘determine that the

child, and not merely the attorney, understands the nature of the allegations and

the consequences of entering the admission.’ ” In re T.N., 3d Dist. Union No. 14-

12-13, 2013-Ohio-135, ¶ 11, quoting In re Beechler, 115 Ohio App.3d 567, 571

(4th Dist.1996).     The best method for complying with Juv.R. 29(D) is for a

juvenile court to tailor the language of the rule 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 Smith, 3d

Dist. Union No. 14-05-33, 2006-Ohio-2788, ¶ 14, quoting In re Miller, 119 Ohio

App.3d 52, 58 (2d Dist.1997).

      {¶14} While 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.       “[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



                                       -6-
Case No. 1-15-37


prejudicial effect necessitating a reversal of the adjudication so that the juvenile

may plead anew.” In re T.N. at ¶ 12, quoting In re Smith at ¶ 14.

      {¶15} Here, the State concedes that the juvenile court failed to substantially

comply with the colloquy requirements of Juv.R. 29(D) prior to accepting R.H.’s

admission to the allegations in the affidavit. The only relevant exchange between

the juvenile court and R.H. concerned the nature of the allegations and the

voluntariness of R.H.’s admission; the juvenile court failed to discuss the

consequences of an admission or the rights that a juvenile waives by entering an

admission.

      {¶16} The State argues, however, that the error only affects the juvenile

court’s adjudication and disposition of the affidavit, as opposed to its decision to

revoke R.H.’s probation and impose his stayed commitment at DYS. Specifically,

the State argues that “the [juvenile] court had a multitude of evidence to support

invoking the stayed commitment based on the stipulated JRC discharge summary

and the recommendation of both the State and R.H.’s probation officer.”

Appellee’s Brief, p. 7. We find this argument unpersuasive.

      {¶17} “During a probation revocation hearing, the juvenile court

determines whether a juvenile has violated a condition of probation.” In re L.A.B.,

2009-Ohio-354 at ¶ 49. Under Juv.R. 35(B), “Probation shall not be revoked

except upon a finding that the [juvenile] has violated a condition of probation of


                                        -7-
Case No. 1-15-37


which the [juvenile] had * * * been notified.” (Emphasis added.) “A juvenile

court must comply with Juv.R. 35(B) before it revokes probation and imposes a

previously suspended commitment.”        In re A.R.D., 12th Dist. Butler Nos.

CA2008–04–095, CA2008–04–103, 2009–Ohio–1306, ¶ 11.

      {¶18} In this case, whether the juvenile court had a multitude of evidence

before it at the May 2015 hearing to support imposing R.H.’s stayed commitment

is immaterial because the juvenile court never found—at the May 2015 hearing or

in its subsequent entry—that R.H. had violated a condition of probation.

      {¶19} Instead, at the February 2015 hearing, the juvenile court found that

R.H. had violated a condition of probation “[b]ased on the admission [sic] the

facts as recited.” Feb. 9, 2015 Hrg., p. 7. Clearly, the juvenile court based its

probation-violation finding, in part, on R.H.’s admission to the allegations in the

affidavit—an admission which the State concedes was accepted in violation of

Juv.R. 29(D).

      {¶20} In sum, the juvenile court erred by failing to substantially comply

with the colloquy requirements of Juv.R. 29(D) prior to accepting R.H.’s

admission to the allegations in the affidavit, and this error directly affected the

juvenile court’s ability to invoke R.H.’s stayed commitment.

      {¶21} Accordingly, we sustain R.H.’s first assignment of error.




                                        -8-
Case No. 1-15-37


                             Assignment of Error No. II

       {¶22} In his second assignment of error, R.H. argues that R.C. 2152.83(A),

Ohio’s statute governing juvenile sex offender classification, is unconstitutional.

Specifically, R.H. argues that this subsection offends the Equal Protection Clause,

the Due Process Clause, and the Double Jeopardy Clause of the U.S. Constitution

and the Ohio Constitution.

       {¶23} R.H. did not challenge the constitutionality of R.C. 2152.83(A)

before the trial court. “Failure to raise at the trial court level the issue of the

constitutionality of a statute or its application, which issue is apparent at the time

of trial, constitutes a waiver of such issue and a deviation from this state's orderly

procedure, and therefore need not be heard for the first time on appeal.” State v.

Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 64, quoting State v.

Awan, 22 Ohio St.3d 120 (1986), paragraph one of the syllabus. Although it is

“within the reviewing court’s discretion to address the constitutional argument

under a plain error analysis”, we decline to exercise that discretion here. Haller at

¶ 64, citing In re M.D., 38 Ohio St.3d 149 (1988), paragraph one of the syllabus.

       {¶24} Alternatively, R.H. argues that his constitutional claims relate to the

juvenile court’s subject-matter jurisdiction. Subject-matter jurisdiction goes to the

power of the court to adjudicate the merits of a case, and it can never be waived

and may be challenged at any time. United States v. Cotton, 535 U.S. 625, 630,


                                         -9-
Case No. 1-15-37


122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). Absent a proper bind-over procedure, a

juvenile court has exclusive subject-matter jurisdiction over any case concerning a

child who is alleged to be delinquent. State v. Wilson, 73 Ohio St.3d 40, 43

(1995); see generally R.C. Chapter 2151.

       {¶25} R.H. fails to explain how his claim concerning R.C. 2152.83(A)

affected the juvenile court’s ability to hear and adjudicate R.H.’s delinquency

proceedings. Under App.R. 12(A)(2), we are not required to address arguments

that have not been sufficiently presented for review or supported by proper

authority, as required by App.R. 16(A)(7). In re A.M., 3d Dist. Marion No. 9-14-

46, 2015-Ohio-2740, ¶ 19 citing Black v. St. Marys Police Dept., 3d Dist. Mercer

No. 10–11–11, 2011–Ohio–6697, ¶ 14.

       {¶26} Accordingly, we overrule R.H.’s second assignment of error.

       {¶27} Having found error prejudicial to R.H., in the particulars assigned

and argued, we reverse the judgment of the juvenile court and remand the matter

for further proceedings consistent with this opinion.

                                                          Judgment Reversed and
                                                               Cause Remanded

SHAW, P.J. and WILLAMOWSKI, J., concur in Judgment Only.

/jlr




                                        -10-
