[Cite as In re Keeling, 2010-Ohio-1713.]




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




IN RE:
                                                           CASE NO. 1-09-51
        DUSTIN KEELING,

ADJUDICATED DELINQUENT                                     OPINION
CHILD - APPELLANT.




                   Appeal from Allen County Common Pleas Court
                                  Juvenile Division
                            Trial Court No. 09 JG 26494

                       Judgment Reversed and Cause Remanded

                             Date of Decision:   April 19, 2010




APPEARANCES:

        Elizabeth R. Miller for Appellant

        Christina L. Steffan for Appellee
Case No. 1-09-51


ROGERS, J.

      {¶1} Defendant-Appellant, Dustin Keeling, appeals the judgment of the

Court of Common Pleas of Allen County, Juvenile Division, adjudicating him a

delinquent child, ordering him to serve a minimum period of one year and a

maximum period not to exceed his twenty-first birthday at the Ohio Department of

Youth Services (hereinafter “DYS”), and ordering him to pay $531 in restitution.

On appeal, Keeling argues that his admission to the charge of delinquency was not

knowing, intelligent, and voluntary; that the trial court abused its discretion in

failing to consider community service prior to ordering him to pay a financial

sanction; and, that he was denied effective assistance of counsel. Finding that

Keeling’s admission was not knowing, intelligent, and voluntary, we reverse the

judgment of the trial court and remand for further proceedings consistent with this

opinion.

      {¶2} In May 2009, the Allen County Sheriff’s Office filed a complaint

alleging that Keeling was a delinquent child on one count of burglary in violation

of R.C. 2911.12(A)(2), a felony of the second degree if committed by an adult.

The complaint arose from an incident during which Keeling entered the residence

of a neighbor, Brandon Daniels, and removed a total of approximately $962 to

$972 in cash from a bank bag, the kitchen counter, and a vehicle parked in the

garage. Subsequently, Keeling entered a denial to the allegations.



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       {¶3} In June 2009, the trial court appointed Keeling counsel.

       {¶4} In July 2009, the trial court held an adjudicatory hearing at which

Keeling withdrew his prior denial of the offense and entered an admission to

burglary pursuant to a plea agreement.          In exchange, the State agreed to

recommend his commitment to a juvenile residential center in lieu of DYS. The

transcript reflects that the following colloquy took place:

       [Trial Court]: Do you understand that part of [the plea]
       agreement includes that you would be entering an admission to
       the charge of delinquency by reason of burglary, a felony of the
       second degree?
       [Keeling]: I do, sir.
       [Trial Court]: That means there won’t be a trial?
       [Keeling]: Yes, sir.
       [Trial Court]: You’re giving up your right to cross examine
       witnesses. You’re giving up your right to challenge any
       evidence. You’re giving up your right to present evidence on
       your own behalf, and you’re giving up your right to remain
       silent. Do you understand all of that?
       [Keeling]: Yes, sir.
       [Trial Court]: Do you also understand, as I think the attorneys
       have made clear, that this is a recommendation the prosecutor is
       going to make. Apparently the Department of Youth Services is
       also going to make that recommendation.             The ultimate
       dispositional order is going to be up to the Court?
       [Keeling]: Yes, sir.
       **
       [Trial Court]: Dustin, I need to ask then, at this time, do you
       now plead . . . how do you now plead to the charge of the
       delinquency by reason of burglary, a felony of the second degree.
       [Keeling]: Admission.
       [Trial Court]: Are you entering the admission voluntarily?
       [Keeling] Yes, sir.




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        [Trial Court]: No one promised you anything or threatened you
        in any way to enter the admission other than the agreement that
        the attorneys just outlined to the Court. Is that correct?
        [Keeling]: Yes.
        [Trial Court]: And you’re entering the admission, then, simply
        because what it says there in the complaint is true.
        [Keeling]: Yes, sir.

(July 2008 Adjudicatory Hearing Tr., pp. 9-11).

        {¶5} Thereafter, the trial court accepted Keeling’s plea and the State

recited the following facts:

         [The State]: * * * On or about May 11, 2009, here in Allen
         County, Ohio, the defendant went into his neighbor’s house at
         11635 Reservoir Road and took out of it a bank bag which
         contained within it approximately $830. This was inside their
         residence . . . the residence of Brandon Daniels and Shelly
         Daniels. He went inside their home without permission and took
         the $8301 and left. He spent an unknown amount of money and
         ended up returning roughly $400. $431.

(July 2008 Adjudicatory Hearing Tr., p. 11).

        {¶6} Thereafter, the trial court found Keeling to be a delinquent child

beyond a reasonable doubt. Later that month, the trial court held a hearing on the

issue of restitution, to which Keeling did not object.

        {¶7} In August 2009, the trial court held a dispositional hearing and

ordered Keeling to pay $531 in restitution to Daniels, representing the amount

Keeling took reduced by the amount recovered by law enforcement. Additionally,



1
  At the July 2009 restitution hearing, the victim testified that a total of approximately $962 to $972 was
taken from the residence including from the bank bag, the kitchen counter, and a vehicle in the garage.


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the trial court ordered Keeling to serve at DYS a minimum period of one year and

maximum period not to exceed his twenty-first birthday.

      {¶8} It is from this judgment that Keeling appeals, presenting the

following assignments of error for our review.

                            Assignment of Error No. I

       DUSTIN K.’S ADMISSION TO THE DELINQUENCY
       CHARGE WAS NOT KNOWING, INTELLIGENT, AND
       VOLUNTARY IN VIOLATION OF THE FIFTH AND
       FOURTEENTH AMENDMENTS TO THE UNITED STATES
       CONSTITUTION, ARTICLE I, SECTIONS 10 AND 16 OF
       THE OHIO CONSTITUTION, AND JUVENILE RULE 29.
       (ADJUDICATION, T.PP. 9-10).

                           Assignment of Error No. II

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
       KNEW DUSTIN K. WAS INDIGENT AND FAILED TO
       CONSIDER   COMMUNITY         SERVICE     PRIOR     TO
       ORDERING HIM TO PAY FINANCIAL SANCTIONS, IN
       VIOLATION OF R.C. 2152.20(D). (DISPOSITION, T.PP. 2-8);
       (A-3).

                           Assignment of Error No. III

       DUSTIN K. WAS DENIED THE EFFECTIVE ASSISTANCE
       OF COUNSEL IN VIOLATION OF THE SIXTH AND
       FOURTEENTH AMENDMENTS TO THE UNITED STATES
       CONSTITUTION; SECTION 10, ARTICLE I OF THE OHIO
       CONSTITUTION.           (RESTITUTION, T.PP. 3-36);
       (DISPOSITION, T.PP. 2-8); (A-2—A-5).

      {¶9} Due to the nature of Keeling’s arguments, we elect to address his

second and third assignments of error together.



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                             Assignment of Error No. I

       {¶10} In his first assignment of error, Keeling argues that his admission to

the delinquency allegation was not knowing, intelligent, and voluntary in violation

of the Fifth and Fourteenth Amendments to the United States Constitution, Article

I, Sections 10 and 16 of the Ohio Constitution, and Juv.R. 29. Specifically,

Keeling asserts that the trial court did not even minimally comply with Juv.R.

29(D)(1), claiming that it failed to ensure that he understood the nature of the

burglary allegation prior to accepting his admission; that the trial court failed to

ascertain whether he understood the consequences of his admission, specifically

that he could be committed to DYS for a minimum period of one year and

maximum period up to his twenty-first birthday; and, that the trial court failed to

advise him that he could be ordered to pay restitution and court costs, or that,

alternately, the court could impose a term of community service in lieu of financial

sanctions.

       {¶11} The State responds that the record demonstrates Keeling understood

the nature of the allegation because after he entered his admission, the State

recited the facts of the offense, and Keeling then admitted he committed the acts

recited. The State contends that, had Keeling denied the State’s recitation of the

facts or given a conflicting version of events, the trial court would have sua sponte

withdrawn his admission and set the matter for a hearing. Further, the State argues



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that Keeling was aware of the consequences of his admission because there was a

lengthy discussion at the beginning of the hearing between the State, trial counsel,

and the trial court concerning the State’s recommendation that Keeling be sent to a

juvenile residential center; because Keeling was on parole at the time of the

hearing and had already served time at DYS; because the trial court had advised

him that, despite the State’s recommendation that he be sent to a juvenile

residential center, the final disposition was in the trial court’s discretion; and,

because the trial court indicated early in the hearing that there would be a

restitution hearing.

       {¶12} Juv.R. 29(D) provides, in pertinent part:

       The court may refuse to accept an admission and shall not
       accept an admission without addressing the party personally and
       determining both of the following:

       (1)   The party is making the admission voluntarily with
       understanding of the nature of the allegations and the
       consequences of the admissions;

       (2)   The party understands that by entering an admission the
       party is waiving the right to challenge the witnesses and
       evidence against the party, to remain silent, and to introduce
       evidence at the adjudicatory hearing.

       {¶13} An admission in a juvenile proceeding, pursuant to Juv.R. 29, is

analogous to a guilty plea made by an adult pursuant to Crim.R. 11 in that both

require a trial court to personally address the offender on the record with respect to

the issues set forth in the rules. In re Messmer, 3d Dist. No. 16-08-03, 2008-Ohio-


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4955, ¶9, citing In re Smith, 3d Dist. No. 14-05-33, 2006-Ohio-2788, ¶13, citing In

re C.K., 8th Dist. No. 79074, 2002-Ohio-1659; In re Royal (1999), 132 Ohio

App.3d 496, 504; In re Jenkins (1995), 101 Ohio App.3d 177, 179. Both Crim.R.

11 and Juv.R. 29 require the respective courts to make careful inquiries in order to

ensure that the guilty plea or admission is entered voluntarily, intelligently, and

knowingly. Id., citing In re Smith, 2006-Ohio-2788, at ¶13, citing In re Flynn

(1995), 101 Ohio App.3d 778, 781; In re McKenzie (1995), 102 Ohio App.3d 275,

277. “‘In order to satisfy the requirements of [Juv.R. 29], the court must address

the youth personally and conduct an on-the-record discussion to determine

whether the admission is being entered knowingly and voluntarily.’” Id., quoting

In re Smith, 2006-Ohio-2788, at ¶13, quoting In re West (1998), 128 Ohio App.3d

356, 359. Juv.R. 29(D) also places an affirmative duty upon the juvenile court to

personally address the juvenile and determine that the juvenile, and “not merely

the attorney, understands the nature of the allegations and the consequences of

entering the admission.” Id., quoting In re Smith, 2006-Ohio-2788, at ¶13, citing

In re Beechler (1996), 115 Ohio App.3d 567, 571.

      {¶14} The best method for assuring compliance with Juv.R. 29(D) is for a

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

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

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



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Miller (1997), 119 Ohio App.3d 52, 58, citing State v. Ballard (1981), 66 Ohio

St.2d 473. Although strict compliance with Juv.R. 29(D) is preferred in a juvenile

delinquency case, the Supreme Court of Ohio has required only “substantial

compliance” with the rule in accepting a juvenile’s admission. Id., quoting In re

C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, ¶113. In the context of juvenile

delinquency proceedings, “‘[s]ubstantial compliance means that in the totality of

the circumstances, the juvenile subjectively understood the implications of his

plea.’” Id., quoting In re C.S., 115 Ohio St.3d 267, at ¶113. Failure of a juvenile

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

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

Id., citing In re C.S., 115 Ohio St.3d 267, at ¶112; In re Smith, 2006-Ohio-2788, at

¶14, citing In re Doyle (1997), 122 Ohio App.3d 767, 772.

       {¶15} In order to substantially comply with Juv.R. 29(D)(1), courts have

found that “[a] defendant need not be informed of every element of the charge

brought against him, but he must be made aware of the ‘circumstances of the

crime.’” In re Wood, 9th Dist. No. 04CA0005-M, 2004-Ohio-6539, ¶18, quoting

State v. Lane, 11th Dist. Nos. 97-A-056, 97-A-0057, 97-A-0058, 1999 WL

1080329. Additionally, courts have found that there is a presumption, where a

defendant is represented by counsel, that counsel informed the defendant of the

nature of the charge. In re Wood, 2004-Ohio-6539, at ¶18, citing In re Argo, 5th



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Dist. No. CT2003-055, 2004-Ohio-4938, ¶32. Further, courts have found that

there is a presumption where a complaint is served on a defendant that he is

apprised of the nature of the charge contained in the complaint. Id., citing Bousley

v. U.S. (1998), 523 U.S. 614, 618.

       {¶16} In In re S.M., 8th Dist. No. 91408, 2008-Ohio-6852, the Eighth

Appellate District found that a trial court did not substantially comply with Juv.R.

29(D)(1) where, although the trial court reviewed the rights the juvenile waived in

accordance with Juv.R. 29(D)(2), the trial court did not review the elements of the

felonious assault offense or inquire as to whether he understood the nature of the

offense prior to accepting his admission. This was so even though the prosecutor

recited the evidence that would constitute the felonious assault offense at the trial

court’s direction, in the juvenile’s presence, and prior to the trial court’s

acceptance of the juvenile’s admission. See In re S.M., 2008-Ohio-6852, at ¶¶33,

35 (Dyke, J., dissenting). Additionally, the Eighth Appellate District has found

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

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

admission. See In re Holcomb, 147 Ohio App.3d 31, 2002-Ohio-2042. See, also,

In re Pritchard, 5th Dist. No. 2001 AP 080078, 2002-Ohio-1664 (finding no

substantial compliance with Juv.R. 29(D)(1) where trial court thoroughly reviewed

the rights that the juvenile would waive upon entering her admission, but did not



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review the charge with the juvenile or discuss the possible penalties it could

impose); In re Jones, 4th Dist. No. 99 CA 4, 2000 WL 387727 (finding no

substantial compliance with Juv.R. 29(D)(1) where the trial court did not explain

the charge, ask the juvenile whether he understood the charge, or inform him of

the maximum sentence it could impose prior to accepting his admission); In re

Beechler, supra (finding no substantial compliance with Juv.R. 29(D)(1) where the

trial court recited the juvenile’s constitutional rights, but did not determine

whether he understood the nature of the charges or the consequences of an

admission to the charges).

       {¶17} In light of the preceding, we find that the trial court did not

substantially comply with the requirements of Juv.R. 29(D)(1). Here, the record

reflects that the trial court did not explain the nature or elements of the burglary

charge and did not ask Keeling whether he understood the charge.             Further,

although the State argues that the prosecutor recited the facts underlying the

burglary charge after Keeling entered his admission, we note that the Fourth

Appellate District has found that “[t]he provisions of Juv.R. 29(D) specify that the

juvenile must be made aware of the consequences of his admission before that

admission is accepted. A trial court cannot retroactively cure its omission under

this rule by informing the juvenile after the fact.” In re Jones, supra; see, also, In

re S.M., supra.



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       {¶18} Additionally, even assuming arguendo that Keeling’s trial counsel

and the complaint sufficiently apprised him of the nature of the charge, as urged

by In re Wood and Argo, supra, the record reflects that the trial court also failed to

explain the consequences of entering an admission to the burglary charge. The

State urges us to assume that Keeling was aware of the consequences due to

discussion between the trial court, the State, and trial counsel concerning the

State’s recommendation that Keeling be sent to a juvenile residential center;

because Keeling was on parole at the time of the hearing and had already served

time at DYS; and, because the trial court warned Keeling that, despite any

recommendation, the final disposition was in its discretion. However, we cannot

find that substantial compliance was present here. Juv.R. 29(D) requires that the

trial court “refuse to accept an admission and shall not accept an admission

without addressing the party personally” and determining that he understands the

consequences of the admission. (Emphasis added). See, also, In re Smith, 2006-

Ohio-2798, at ¶13. Thus, we cannot find that a discussion held between the trial

court, trial counsel, and the State as to the possible consequences satisfies the

express requirements of Juv.R. 29(D)(1).         Further, although the trial court

informed Keeling that the final disposition was in the trial court’s discretion, we

cannot find that this advisement was sufficient to relay the possible consequences




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of an admission, as it conveyed no possible range of sentences or mention of

commitment to DYS. See Jones, supra.

       {¶19} Accordingly, we find that the trial court failed to determine that

Keeling’s admission to burglary was knowing, intelligent, and voluntary in

accordance with Juv.R. 29(D), and we sustain Keeling’s first assignment of error.

                        Assignments of Error Nos. II & III

       {¶20} In his second assignment of error, Keeling argues that the trial court

abused its discretion because it knew that he was indigent, but failed to consider

imposing community service in lieu of financial sanctions in violation of R.C.

2152.20(D). Specifically, Keeling argues that he filed an affidavit of indigency in

order to obtain court appointed counsel, but that, despite his demonstrated

indigency, nothing in the record, including the transcript and judgment entry,

demonstrates that the trial court considered imposing community service before

ordering him to pay restitution.

       {¶21} In his third assignment of error, Keeling argues that he was denied

effective assistance of counsel in violation of the Sixth and Fourteenth

Amendments to the United States Constitution and Section 10, Article I of the

Ohio Constitution.     Specifically, Keeling argues that his trial counsel was

ineffective because she allowed him to admit to the burglary allegation without

first ensuring that he understood the nature of the allegations and the consequences



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of entering an admission; because she was aware of his indigent status, yet failed

to object to the trial court’s imposition of financial sanctions without first

considering community service; because she failed to familiarize herself with R.C.

2152.18 and informed the trial court that she did not know if Keeling was entitled

to detention credit toward his term in DYS for the burglary offense; and, because

she failed to “zealously advocate” for Keeling at disposition because she did not

suggest to the court any alternative dispositions to DYS.

       {¶22} Our disposition of Keeling’s first assignment of error renders his

second and third assignments of error moot, and we decline to address them.

App.R. 12(A)(1)(c).

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

particulars assigned and argued in the first assignment of error, we reverse the

judgment of the trial court and remand for further proceedings consistent with this

opinion.

                                                            Judgment Reversed and
                                                                 Cause Remanded

WILLAMOWSKI, P.J. and PRESTON, J., concur.

/jlr




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