[Cite as In re S.J., 2016-Ohio-7540.]




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




IN RE:                                                       CASE NO. 17-16-16

       S.J.
                                                             OPINION
ADJUDGED DELINQUENT CHILD




IN RE:                                                       CASE NO. 17-16-17

       S.J.
                                                             OPINION
ADJUDGED DELINQUENT CHILD




                 Appeals from Shelby County Common Pleas Court
                                  Juvenile Division
                Trial Court Nos. 2016-FEL-0001 and 2013-FEL-0007

                                        Judgments Affirmed

                            Date of Decision: October 31, 2016



APPEARANCES:

        Michael P. Walton for Appellant
Case No. 17-16-16


WILLAMOWSKI, J.

        {¶1} Defendant-appellant S.J. brings these appeals from judgments of the

Court of Common Pleas of Shelby County, Juvenile Division denying S.J.’s motions

to vacate the judgment ordering the sentence to be served consecutively to another

juvenile commitment. For the reasons set forth below, the judgments are affirmed.

        {¶2} The first case, identified in the trial court as Case No. 2013-FEL-0007

and on appeal as Case No. 17-16-17, began in 2013. On March 22, 2013, a

complaint was filed alleging that S.J. was a delinquent child in that if she were an

adult, she allegedly would have committed the crime of receiving stolen property in

violation of R.C. 2913.51(A). 2013 Doc. 1.1 On April 10, 2013, S.J. entered an

admission to the complaint and was adjudicated to be a delinquent child. 2013 Doc.

13. The trial court then ordered that S.J. serve 30 days at the West Central Detention

Center (“WCDC”) and ordered that she be placed under the supervision of the

Department of Youth Services (“DYS”) for a minimum of six months to a maximum

of her 21st birthday. 2013 Doc. 18. However, the DYS commitment was suspended.

Id. S.J. was released from WCDC back into the custody of her father on May 18,

2013. 2013 Doc. 20.

        {¶3} On June 10, 2013, a complaint was filed alleging that S.J. had violated

the terms of her probation by leaving the home when she was on house arrest. 2013


1
 As there are multiple cases involved in this appeal, the docket from Trial Court Case Number 2013-FLE-
0007 is identified as “2013 Doc.” The docket from Trial Court Case Number 2016-FEL-0001 is identified
as “2016 Doc.”

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Case No. 17-16-16


Doc. at 24. S.J. was then returned to the custody of WCDC. 2013 Doc. at 28.

However, on June 28, 2013, the State requested that this complaint be dismissed as

part of a plea bargain in different cases. 2013 Doc. 36. The trial court then

dismissed the probation violation. Id.

       {¶4} On October 3, 2013, the State filed a complaint again alleging that S.J.

had violated the terms of her house arrest. 2013 Doc. 39. A hearing was held on

the matter on November 13, 2013. 2013 Doc. 57. At that time, S.J. admitted to the

violation as well as to receiving stolen property and petty theft in two other cases

arising from the violation. Id. The trial court ordered S.J. to be held in WCDC

pending disposition. Id. A dispositional hearing was held on December 4, 2013.

2013 Doc. 70. The trial court then ordered that S.J. serve three consecutive

minimum sentences of six months in the custody of DYS on the probation violation

and two other charges. Id. The commitment was suspended and S.J. was placed on

probation with placement in the Miami Valley Juvenile Rehabilitation Program

(“MVJRP”). The trial court then ordered S.J. to serve “90 days in detention on each

charge, concurrently, credit for 62 days served, balance suspended on completion

of rehab.” Id. at 2.

       {¶5} On June 10, 2014, the State filed a complaint alleging that S.J. had

violated the terms of her probation by not completing the program at MVJRP. 2013

Doc. 84. A hearing was held on June 11, 2014, and S.J. admitted to the violation.

2013 Doc. 93. The trial court continued the terms of probation and also ordered that

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S.J. serve 90 days at WCDC. 2013 Doc. 94. On July 24, 2014, S.J. was released

from detention early due to good behavior and the 47 days remaining in the sentence

were suspended. 2013 Doc. 102. On October 1, 2014, custody of S.J. was changed

from her father to her older sister. 2013 Doc. 105. The trial court then placed the

case on inactive status. 2013 Doc. 107.

       {¶6} On December 8, 2014, a review hearing was held and it was learned

that S.J. was again in trouble and that she could no longer reside with her sister.

2013 Doc. 109. The trial court then returned custody of S.J. to her father and her

probation was reactivated. Id. On December 15, 2014, the State filed a complaint

alleging that S.J. again violated the terms of her probation by leaving the home

without permission. 2013 Doc. 110. S.J. was then returned to the custody of WCDC

pending trial. 2013 Doc. 115. A hearing was held on January 7, 2015, regarding

the probation violation. 2013 Doc. 120. S.J. admitted the violation. Id. The trial

court then released S.J. back into the custody of her father. 2013 Doc. 121.

       {¶7} On February 11, 2015, the State filed a complaint alleging that S.J. had

violated the terms of her probation by leaving home without permission and going

to Portsmith, Ohio in a stolen vehicle. 2013 Doc. 125. S.J. was again returned to

WCDC pending trial. 2013 Doc. 132. A hearing was held on February 18, 2015,

and S.J. admitted to the violation. 2013 Doc. 138. On March 4, 2015, the trial court

held a dispositional hearing and ordered S.J. to be committed to the legal custody of

DYS for institutionalization for a minimum of six months to a maximum period not

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Case No. 17-16-16


to exceed her 21st birthday. 2013 Doc. 149. S.J. was given credit of 385 days of

time served. Id.    S.J. was released on parole from her commitment at DYS on

September 30, 2015, and returned to the custody of her father. 2013 Doc. 154 and

155.

       {¶8} On October 23, 2015, the State filed a complaint alleging that S.J. had

violated the terms of her parole by being suspended from school. 2013 Doc. 156.

A hearing was held and S.J. admitted to the violation of her parole. 2013 Doc. 160.

The trial court then found that S.J. had violated the terms of her parole and ordered

her to serve 20 days in WCDC, with 17 days suspended upon good behavior. 2013

Doc. 160, 161.

       {¶9} On November 6, 2015, four days after her release from WCDC, the

State filed a complaint alleging that S.J. had again violated the terms of her parole

by taking her father’s car without permission, driving without a license, driving

through a stop sign, and driving after dark with no headlights. 2013 Doc. 164. S.J.

admitted to this violation at the initial appearance and was adjudicated to be a

delinquent child. 2013 Doc. 168. At the dispositional hearing, the trial court

ordered S.J. to serve 90 days in WCDC for the parole violation, with 45 days

suspended if she behaved. 2013 Doc. 169. Parole was also continued. Id. A

hearing was held on December 23, 2015, and the trial court granted early release of

S.J. for good behavior, suspended the balance of the commitment, and placed S.J.

on house arrest for 30 days. 2013 Doc. 177.

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Case No. 17-16-16


       {¶10} On January 6, 2016, the State filed a complaint alleging that S.J. had

again violated the terms of her parole by being truant from school, stealing cash

from her father, and violating curfew. 2013 Doc. 179. Pending a hearing on the

parole violation, S.J. was returned to WCDC. 2013 Doc. 183. On February 17,

2016, a hearing was held and S.J. admitted to the parole violation. 2013 Doc. 190.

The trial court then ordered that S.J. be “re-committed to the legal custody of [DYS]

for institutionalization in a secure facility for a minimum period of 30 days.” 2013

Doc. 191. The trial court later amended this order to a minimum period of 90 days

by nunc pro tunc entry. 2013 Doc. 194.

       {¶11} The second case, identified in the trial court as Case No. 2016 FEL 01

and on appeal as Case No. 17-16-16, began on January 5, 2016, when a complaint

was filed alleging that S.J. was a delinquent child in that if she were an adult, she

allegedly would have committed the crime of robbery in violation of R.C.

2911.02(A). 2016 Doc. 1. S.J. denied the allegations, but was held at WCDC

pending trial. 2016 Doc. 6. On February 17, 2016, S.J. admitted to what would be

a charge of attempted robbery if committed by an adult. 2016 Doc. 19. The trial

court then ordered that S.J. be institutionalized by DYS for a minimum period of six

months. 2016 Doc. 19. This sentence was ordered to be served consecutive to the

sentence for the parole violation. Id.

       {¶12} On April 13, 2016, S.J. filed a motion in both cases to vacate the void

judgment alleging that the trial court erred by ordering her commitment for the

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Case No. 17-16-16


parole violation to run consecutive to the commitment in 2016 FEL 01.2 2013 Doc.

195 and 2016 Doc. 30. The trial court overruled the motion in both cases on April

14, 2016. 2013 Doc. 197 and 2016 Doc. 32. The denial was based upon a prior

opinion from the Ohio Supreme Court finding that the juvenile court had discretion

to impose consecutive terms. Id. S.J. then filed notices of appeals from both

judgments.       2013 Doc. 198 and 2016 Doc. 33.                   On appeal, S.J. claims one

assignment of error.

        The Shelby County Juvenile court erred when it failed to vacate
        its February 17, 2016 order committing S.J. to [DYS] in Case No.
        2013-FEL-0007 and 2016-FEL-0001[.]

        {¶13} The sole assignment of error on appeal alleges that the trial court’s

judgment violates the statutory provisions of R.C. 5139.52(F). This statute states in

pertinent part as follows.

        If the court of the county in which the child is placed on
        supervised release conducts a hearing and determines at the
        hearing that the child violated one or more of the terms and
        conditions of the child’s supervised release, the court, if it
        determines that the violation was a serious violation, may revoke
        the child’s supervised release, reinstate the original order of
        commitment of the child, and order the child to be returned to the
        department of youth services for institutionalization or, in any
        case, may make any other disposition of the child authorized by
        law that the court considers proper. If the court orders the child
        to be returned to a department of youth services institution, the
        child shall remain institutionalized for a minimum period of
        ninety days, the department shall not reduce the minimum ninety-
        day period for any time that the child was held in secure custody
        subsequent to the child’s arrest and pending the revocation

2
 Amended motions were filed the next day to correct a typographical number in the case number of the
parole violation. 2013 Doc. 196 and 2016 Doc. 31.

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Case No. 17-16-16


       hearing and the child’s return to the department, the release
       authority, in its discretion may require the child to remain in
       institutionalization for longer than the minimum ninety-day
       period     of    institutionalization, and    the    period   of
       institutionalization shall be served concurrently with any other
       commitment to the department of youth services.

R.C. 5139.52(F). This statute went into effect on September 19, 2014, so was in

effect at the time of this case. The trial court held that the consecutive sentences

were specifically allowed by the Ohio Supreme Court in its opinion in In Re H.V.,

138 Ohio St.3d 408, 2014-Ohio-8012, 7 N.E.3d 1173. As appellant correctly

asserts, this case is not applicable in this instance. That case was decided on March

13, 2014, using the prior version of the statute. That version did not require that the

sentence for violation of parole be served concurrently. The current version does.

Thus, the trial court was incorrect in its reasoning for denying the motion to vacate

the sentence.

       {¶14} Although the trial court’s basis for its decision was incorrect, the

analysis does not end there. “[T]he definitely established law of this state [is] that

where the judgment is correct, a reviewing court is not authorized to reverse such

judgment merely because erroneous reasons were assigned as the basis thereof.”

Agricultural Ins. Co. v. Constantine, 144 Ohio St. 275, 284, 58 N.E.2d 658 (1944).

The statute in question in this case specifically states that the commitment for the

parole violation may not be ordered to be served consecutive to another

commitment. The commitment order in this case based upon the parole violation


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was not ordered to be served consecutive to another. The commitment for the new

offense was the sentence ordered to be served consecutive to the other. The statute

does not prevent the trial court from ordering that sentence to be served

consecutively to the commitment for the violation.       As there is no statutory

prohibition, the trial court had discretion to order the commitment in 2016 FEL 01

to be served consecutive to that in 2013 FEL 07. The assignment of error is

overruled.

       {¶15} Having found no error prejudicial to the appellant, the judgments of

the Court of Common Pleas of Shelby County, Juvenile Division, are affirmed.

                                                             Judgments Affirmed

SHAW, P.J. and PRESTON, J., concur.

/hls




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