[Cite as In re N.S., 2017-Ohio-163.]


                                           COURT OF APPEALS
                                       COSHOCTON COUNTY, OHIO
                                       FIFTH APPELLATE DISTRICT



                                                      JUDGES:
                                                      Hon. W. Scott Gwin, P. J.
                                                      Hon. John W. Wise, J.
IN RE:                                                Hon. Craig R. Baldwin, J.

         N.S.                                         Case No. 2016 CA 0005

                                                      OPINION




CHARACTER OF PROCEEDING:                           Civil Appeal from the Court of Common
                                                   Pleas, Juvenile Division, Case No.
                                                   21420057


JUDGMENT:                                         Affirmed



DATE OF JUDGMENT ENTRY:                            January 17, 2017



APPEARANCES:

For Appellee State of Ohio                         Appellant N. S.

BENJAMIN E. HALL                                   CHARLYN BOHLAND
ASSISTANT PROSECUTOR                               250 East Broad Street
318 Chestnut Street                                Suite 1400
Coshocton, Ohio 43812                              Columbus, Ohio 43215
Coshocton County, Case No. 2016 CA 0005                                                   2

Wise, J.

       {¶1}   Appellant N.S., a delinquent child, appeals his conviction and SYO

sentencing, in the Coshocton County Court of Common Pleas, Juvenile Division, on two

counts of rape. Appellee is the State of Ohio. The relevant facts leading to this appeal are

as follows.

       {¶2}   On April 28, 2014, appellant was indicted on four counts of rape, each with

a serious youthful offender (“SYO”) specification. Counts One and Two involved a child

victim born in 2003. Counts Three and Four involved a child victim born in 2004.

       {¶3}   The Coshocton County Court of Common Pleas thereafter transferred the

case to Coshocton County Juvenile Court.

       {¶4}   On September 19, 2014, a change of plea hearing took place. Appellant

entered pleas of guilty to Counts Two and Four, both charged under R.C.

2907.02(A)(1)(b).

       {¶5}   The trial court thereupon adjudicated N.S. delinquent of two counts of rape,

R.C. 2907.02(A)(1)(b), first-degree felonies if committed by an adult, enhanced with

Serious Youthful Offender (SYO) specifications. The court determined that the victim in

Count Four was under the age of ten and that N.S. was age fourteen or fifteen at the time

of the offense. As its disposition, the juvenile court committed N.S. to the Ohio Department

of Youth Services for a minimum period of two years, maximum to his twenty-first birthday.

In discussing the issue of a blended sentence, the juvenile court noted the following at

the change of plea hearing:

              Through that entire period of time, [the second victim] would have

       been *** under 10 years of age. As a result of that, you are subject to a
Coshocton County, Case No. 2016 CA 0005                                                    3


       different disposition or a different potential sentence in Count 4. That is you

       are subject to a sentence of 15-years-to-life on that and it is a possibility of

       parole after the 15 years can occur. There is some law-and if you were an

       adult, which you would be sentenced as, that you could receive a sentence

       or a penalty of life without parole. But it is at least this court's opinion that

       juveniles under constitutional precedence established by the United States

       Supreme Court, and I think it was last summer - I mean the summer of

       2013, that juveniles, regardless of where they go through the system, can't

       be subjected-meaning juveniles by age, not by court, cannot be subject to

       life sentences without parole. * * *

      {¶6}   Tr., September 19, 2014, at 21.

      {¶7}   Because the juvenile court's written judgment entry did not contain all of the

terms of N.S.'s disposition; the juvenile court issued a subsequent nunc pro tunc entry on

November 3, 2014. Rendering a blended serious-youth-offender (“SYO”) sentence, the

juvenile court sentenced N.S. to 11 years in prison on Count Two; and, life in prison with

parole eligibility after 15 years on Count Four pursuant to R.C. 2971.03(B)(1)(b), to be

served concurrently. For juvenile disposition, the court ordered a minimum of one-year

commitment to DYS on each count, to be served consecutively. Tr., October 24, 2014, at

69-71; Nunc Pro Tunc Judgment Entry of Sentencing, at 2.

      {¶8}   On March 30, 2016, appellant filed a notice of appeal. He herein raises the

following two Assignments of Error:

      {¶9}   “I.   THE MANDATORY SENTENCING SCHEME IN R.C. 2971.03 IS

UNCONSTITUTIONAL BECAUSE IT DOES NOT PERMIT THE TRIAL COURT TO
Coshocton County, Case No. 2016 CA 0005                                                  4


MAKE AN INDIVIDUALIZED DETERMINATION ABOUT N.S.'S SENTENCE OR THE

ATTRIBUTES OF HIS YOUTH, IN VIOLATION OF HIS RIGHT TO BE FREE FROM

CRUEL AND UNUSUAL PUNISHMENTS AND HIS RIGHT TO DUE PROCESS OF LAW,

AS GUARANTEED BY THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE U.S.

CONSTITUTION, AND ARTICLE I, SECTION 9, OHIO CONSTITUTION.

       {¶10} “II. N.S. WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN

VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE U.S.

CONSTITUTION; AND, ARTICLE I, SECTION 10, OHIO CONSTITUTION.”

                                  Timeliness of Appeal

       {¶11} As an initial matter, we will address the State’s renewed responsive

procedural argument that the present appeal is untimely, even though this Court issued

a procedural order on May 4, 2016 rejecting the State’s position. As noted in our above

recitation of facts, appellant filed his notice of appeal in March 2016, roughly seventeen

months after the issuance of the nunc pro tunc dispositional judgment entry under appeal.

In a memorandum in support of his notice of appeal, appellant relied upon In re Anderson,

92 Ohio St.3d 63, 2001-Ohio-131, 748 N.E.2d 67 (2001), for the proposition that the civil

rules and the appellate rules pertaining to the filing of a civil notice of appeal apply to

appeals from a juvenile court. Appellant then asserted that he had never been served

with the November 3, 2014 dispositional entry in accordance with Civ.R. 58(B), making

his notice of appeal timely.

       {¶12} The State presently urges in response that App.R. 5(A) was amended in

2003 to add “delinquency and serious youthful offender proceedings” to the classes of

cases specified in App.R. 5, which addresses delayed appeals in criminal matters, and
Coshocton County, Case No. 2016 CA 0005                                                      5


these amendments were enacted to abrogate the Ohio Supreme Court's decision in

Anderson. See In re T.M., 6th Dist. Lucas Nos. L–10–1245, L–10–1246, 2010-Ohio-5506,

¶ 12. The State thus maintains that appellant’s notice of appeal is untimely and that

appellant was required to seek leave to appeal in this instance.

       {¶13} However, despite our potential reassessment of the applicability of

Anderson herein, we find we have jurisdiction to sua sponte grant leave for a delayed

appeal where a party has filed an untimely notice of appeal in a proceeding which is

subject to App.R. 5. See State v. Ronny, 8th Dist. Cuyahoga No. 102968, 2016-Ohio-

3448, ¶ 20. We choose to do so at this juncture in the interest of justice, and we will thus

proceed to the merits of the present appeal.

                                              I.

       {¶14} In his First Assignment of Error, appellant contends the mandatory

sentencing aspects of R.C. 2971.03 are unconstitutional. We disagree.1

       {¶15} The Ohio Supreme Court has summarized as follows: “A serious-youthful-

offender disposition consists of a ‘blended’ sentence: a traditional juvenile disposition and

a stayed adult sentence. R.C. 2152.13(D)(2). The court may enforce the adult portion of

the sentence at a later time if the juvenile commits certain acts that indicate that the




1  It is undisputed that appellant did not raise his present constitutional claims at the trial
court level, in addition to the fact that this case involved a joint sentencing
recommendation. It is well-established that failure to raise objections to proceedings on
constitutional grounds results in a waiver of such assignments of error. In re Willis, 5th
Dist. Coshocton No. 02CA15, 2002–Ohio–6795, ¶ 10, citing State v. Awan (1986), 22
Ohio St.3d 120, 489 N.E.2d 277. Application of the Awan waiver doctrine is discretionary.
In re M.D., 38 Ohio St.3d 149 (1988). However, because appellant has also invoked an
ineffective assistance claim on similar grounds, we will proceed to address his arguments
at this point in the interest of judicial economy.
Coshocton County, Case No. 2016 CA 0005                                                    6

juvenile disposition has been unsuccessful in rehabilitating him. R.C. 2152.14.” State v.

D.H., 120 Ohio St.3d 540, 2009-Ohio-9, ¶ 2.

       {¶16} R.C. 2152.13(D)(1)(a) states as follows: "The juvenile court shall impose

upon the child a sentence available for the violation, as if the child were an adult, under

Chapter 2929. of the Revised Code, except that the juvenile court shall not impose on the

child a sentence of death or life imprisonment without parole."

       {¶17} Furthermore, R.C. 2971.03(B)(1)(b) states that if a person is convicted of or

pleads guilty to rape in violation of R.C. 2907.02(A)(1)(b), committed on or after January

2, 2007, the sentencing court shall, with certain qualifications, impose upon the person, if

the victim was less than ten years of age, an indefinite prison term consisting of a

minimum term of fifteen years and a maximum of life imprisonment.

       {¶18} Appellant in the case sub judice thus correctly maintains that because

Ohio's serious-youthful-offender (“SYO”) statute requires the juvenile court to impose an

adult sentence under the adult sentencing statutes when choosing to impose a blended

sentence, the mandatory sentencing requirements of R.C. 2971.03(B)(1)(b) apply to him

in this instance, in regard to Count Four.

       {¶19} It is well-established in Ohio that statutes are presumed to be constitutional

unless shown beyond reasonable doubt to violate a constitutional provision. See Fabrey

v. McDonald Police Dept. (1994), 70 Ohio St.3d 351, 352, 639 N.E.2d 31. Although he is

not challenging the overall constitutionality of the SYO statute (see Appellant’s Reply Brief

at 2), appellant argues that the mandatory sentencing scheme in R.C. 2971.03 should be

found unconstitutional as applied to children because it does not permit the juvenile court

to make an individualized determination about a child's sentence or consider the
Coshocton County, Case No. 2016 CA 0005                                                    7


mitigating circumstances and/or attributes of youth. Appellant couches his claims under

both the Eighth Amendment’s prohibition against cruel and unusual punishments and the

Fourteenth Amendment’s guarantee of due process of law, and corresponding provisions

of the Ohio Constitution.

       {¶20} However, as cogently explained in In re Wilson, 11th Dist. No. 2003-L-160,

2005-Ohio-3262: “* * * [I]n determining whether a SYO finding is appropriate, the juvenile

court must consider the circumstances of the violation and the child's history with specific

aspects of the juvenile system, i.e., the length of time the child can be in the juvenile

system, the level of security available in the juvenile system, and the types of

programming and resources available in the juvenile system. If the juvenile court finds

these aspects of the juvenile system are not adequate to provide the court a reasonable

expectation that the purposes set forth in R.C. 2152.01 will be met, the trial court may

sentence the child as if the child were an adult.” Id. at ¶ 11.

       {¶21} Thus, discretion is built into the statutory scheme, allowing juvenile judges

in Ohio to consider, with certain exceptions, whether an alleged delinquent child’s actions

even warrant SYO classification and sentencing. Appellant herein nonetheless urges that

the United States Supreme Court has mandated that individualized sentencing for

juvenile offenders is constitutionally required despite the existence of such initial

discretionary decision. See Miller v. Alabama, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407

(2012). However, we first note the discretion involved in Miller was primarily the

prosecutor's choice under the Alabama statute "to seek removal of the case to adult

court," to which the juvenile court could agree or disagree. See id. at 2462, citing Ala.Code

§ 12–15–34 (1977). In the companion case, the law at issue was an Arkansas statute that
Coshocton County, Case No. 2016 CA 0005                                                 8


gave prosecutors discretion to charge 14–year–olds as adults when they were alleged to

have committed certain serious offenses. See id. at 2461, citing Ark.Code Ann. § 9–27–

318(c)(2) (1998). Thus, we find the Alabama and Arkansas statutory schemes distinct

from Ohio’s SYO system, although we recognize the Supreme Court in Miller did go on

to state that “[e]ven when States give transfer-stage discretion to judges, it has limited

utility.” Id. at 2474. Indeed, the Supreme Court further reasoned: “*** [T]he discretion

available to a judge at the transfer stage cannot substitute for discretion at post-trial

sentencing in adult court—and so cannot satisfy the Eighth Amendment.” Id. Ultimately,

however, the vital issue in Miller was whether children can constitutionally be sentenced

to a mandatory term of life in prison without the possibility of parole, which is not the

concern in the present appeal.

       {¶22} Accordingly, we find no Eighth or Fourteenth Amendment constitutional

violations resulting from appellant’s SYO sentencing pursuant to R.C. 2971.03.

Appellant's First Assignment of Error is therefore overruled.

                                            II.

       {¶23} In his Second Assignment of Error, appellant contends he was deprived of

the effective assistance of trial counsel. We disagree.

       {¶24} Our standard of review for ineffective assistance claims is set forth in

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Ohio

adopted this standard in the case of State v. Bradley (1989), 42 Ohio St.3d 136, 538

N.E.2d 373. These cases require a two-pronged analysis in reviewing a claim for

ineffective assistance of counsel. First, we must determine whether counsel's assistance

was ineffective; i.e., whether counsel's performance fell below an objective standard of
Coshocton County, Case No. 2016 CA 0005                                                    9


reasonable representation and was violative of any of his or her essential duties to the

client. If we find ineffective assistance of counsel, we must then determine whether or not

the defense was actually prejudiced by counsel's ineffectiveness such that the reliability

of the outcome of the trial is suspect. This requires a showing that there is a reasonable

probability that but for counsel's unprofessional error, the outcome of the trial would have

been different. Id. Trial counsel is entitled to a strong presumption that all decisions fall

within the wide range of reasonable professional assistance. State v. Sallie (1998), 81

Ohio St.3d 673, 675, 693 N.E.2d 267

       {¶25} Appellant specifically argues he was deprived of his right to the effective

assistance of counsel when his trial counsel failed to raise objections to the mandatory

nature of the blended sentence. However, based on our conclusions in regard to

appellant’s first assigned error, we find he has failed to demonstrate a reasonable

probability of success had the constitutional claims been raised by trial counsel, making

further analysis of the ineffective assistance issue moot. Cf. State v. Allen, 8th Dist.

Cuyahoga No. 97820, 2013-Ohio-258, ¶ 15.
Coshocton County, Case No. 2016 CA 0005                                            10


      {¶26} Appellant's Second Assignment of Error is therefore overruled.

      {¶27} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Juvenile Division, Coshocton County, Ohio, is hereby affirmed.


By: Wise, J.

Gwin, P. J., and

Baldwin, J., concur.

JWW/d 0105
