[Cite as In re A.S., 2019-Ohio-2558.]



                           IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO



IN RE: A.S.                             :         APPEAL NOS. C-180045
                                                               C-180046
                                        :         TRIAL NOS. 16-7750Z
                                                             17-2985Z
                                        :

                                        :            O P I N I O N.




Appeals From: Hamilton County Juvenile Court

Judgments Appealed From Are: Affirmed in Part, Reversed in Part, and Cause
                             Remanded in C-180045; Vacated in C-180046

Date of Judgment Entry on Appeal: June 26, 2019




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney, for Appellee State of Ohio,

Raymond T. Faller, Hamilton County Public Defender, and Julie Kahrs Nessler and
Caitlin J. Burgess, Assistant Public Defenders, for Appellant A.S.
                    OHIO FIRST DISTRICT COURT OF APPEALS


WINKLER, Judge.

        {¶1}   Appellant A.S. appeals the judgments of the juvenile court revoking his

probation in two delinquency cases, and committing him to the Department of Youth

Services (“DYS”). We determine that the juvenile court violated A.S.’s due-process

rights by revoking his probation in the case numbered 17-2985Z without following

Juv.R. 29 and 35. With respect to the case numbered 16-7750Z, we determine that

the juvenile court erred in failing to give A.S. credit toward his DYS commitment for

the days he spent at Abraxas Youth Center (“Abraxas”).

                              I.     Facts and Procedure

        {¶2}   In November 2016, the state filed a delinquency complaint against A.S.

alleging that he had committed what would be the offense of burglary, if committed

by an adult. The juvenile court adjudicated A.S. delinquent, imposed a suspended

commitment to DYS, and placed A.S. on probation. In May 2017, the state filed

another delinquency complaint against A.S. for receiving stolen property (“RSP”),

accompanied by a firearm specification.        The juvenile court adjudicated A.S.

delinquent, imposed a suspended commitment to DYS, and placed A.S. on probation

at Abraxas—a residential, behavioral-health facility.

        {¶3}   In November 2017, the state filed a probation-violation complaint in

A.S.’s 2016 burglary case, alleging that A.S. had violated his probation by absconding

from Abraxas. The state did not file a probation-violation complaint in A.S.’s RSP

case.

        {¶4}   The magistrate held a hearing on the probation violation and A.S.

indicated that he was prepared to admit to the violation. The magistrate told A.S.

that by admitting to the probation violation, he could be sent to DYS for a minimum

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of six months, up to the age of 21. Neither the state nor the magistrate mentioned

A.S.’s RSP case.    A.S. admitted to violating his probation, and the matter was

continued for disposition.

       {¶5}   At the dispositional hearing, the state asked the juvenile court to

“reopen” A.S.’s RSP case in order to impose the suspended commitment in that case,

in addition to imposing the suspended commitment in the burglary case. A.S.’s

attorney objected to the imposition of the suspended commitment in the RSP case on

notice grounds.     The juvenile court followed the state’s recommendation and

imposed a DYS commitment of six months, up to the age of 21, in A.S.’s burglary

case, and also imposed a DYS commitment of six months, up to the age of 21, in

A.S.’s RSP case, plus an additional 12 months for the firearm specification. The

juvenile court imposed the commitments in both cases consecutively.

       {¶6}   A.S. filed a motion requesting confinement credit for the time he spent

at Abraxas to reduce the minimum period of his DYS commitment. The juvenile

court held an evidentiary hearing to consider whether Abraxas had measures

sufficient to ensure the safety of the surrounding community, and whether staff

controlled the youths’ personal liberties, such that Abraxas constitutes confinement.

The juvenile court determined that Abraxas did not constitute confinement.

       {¶7}   A.S. has appealed.

                    II.      Due Process under Juv.R. 29 and 35

       {¶8}   We address A.S.’s second assignment of error first. In this assignment,

A.S. argues that his due-process rights were violated when the juvenile court

imposed the suspended commitments without following the procedures laid out in

Juv.R. 29 and 35.

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        {¶9}   Similar to adults facing criminal charges, juveniles who are subject to

delinquency proceedings “are entitled to proceedings that ‘measure up to the

essentials of due process and fair treatment.’ ” In re J.V., 134 Ohio St.3d 1, 2012-

Ohio-4961, 979 N.E.2d 1203, ¶ 14, citing Kent v. United States, 383 U.S. 541, 562, 86

S.Ct. 1045, 16 L.Ed.2d 84 (1966). Due-process protections apply when the state

seeks to revoke a juvenile’s probation, and those protections are embodied in Juv.R.

29 and 35. See In re L.A.B., 121 Ohio St.3d 112, 2009-Ohio-354, 902 N.E.2d 471, ¶

56.

        {¶10} Juv.R. 29 governs adjudicatory hearings, including probation-

revocation hearings. See id. at syllabus. An “adjudicatory hearing” is conducted by

the juvenile court “to determine whether a child is * * * delinquent * * * or otherwise

within the jurisdiction of the court.” Juv.R. 2(B). Juv.R. 29 provides in relevant

part,

        (B) Advisement and Findings at the Commencement of the

        Hearing. At the beginning of the [adjudicatory] hearing, the court

        shall do all of the following: (1) Ascertain whether notice requirements

        have been complied with and, if not, whether the affected parties waive

        compliance; (2) Inform the parties of the substance of the complaint,

        the purpose of the hearing, and possible consequences of the hearing *

        * *.

                                         ***

        (C) Entry of Admission or Denial. The court shall request each

        party against whom allegations are being made in the complaint to

        admit or deny the allegations.


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                   OHIO FIRST DISTRICT COURT OF APPEALS


                                         ***

       (D) Initial Procedure Upon Entry of an Admission. The court

       may refuse to accept an admission and shall not accept an admission

       without addressing the party personally and determining []: (1) The

       party is making the admission voluntarily with understanding of the

       nature of the allegations and the consequences of the admission[.]

       {¶11} Juv.R. 35 applies specifically to proceedings after judgment, including

probation revocation, and it provides in relevant part,

       (A) Continuing Jurisdiction; Invoked by Motion.                      The

       continuing jurisdiction of the court shall be invoked by motion filed in

       the original proceeding, notice of which shall be served in the manner

       provided for the service of process.

       (B) Revocation of Probation.               The court shall not revoke

       probation except after a hearing at which the child shall be present and

       apprised of the grounds on which revocation is proposed. The parties

       shall have the right to counsel and the right to appointed counsel

       where entitled pursuant to Juv. R. 4(A).           Probation shall not be

       revoked except upon a finding that the child has violated a condition of

       probation of which the child had, pursuant to Juv. R. 34(C), been

       notified.

       {¶12} Here, with respect to A.S.’s RSP case, no motion was filed alleging a

probation violation, which is required under Juv.R. 35 to invoke the continuing

jurisdiction of the court. The juvenile court never held a hearing to determine

whether A.S. violated a probation condition in his RSP case as required by Juv.R. 35.


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                    OHIO FIRST DISTRICT COURT OF APPEALS


Furthermore, with respect to A.S.’s RSP case, the juvenile court did not hold a

hearing to determine whether the notice requirements had been met or waived, and

whether A.S. admitted to the probation violation, and the possible consequences of

an admission, as required by Juv.R. 29. Therefore, we hold that the juvenile court’s

failure to follow Juv.R. 29 and 35 with respect to revoking A.S.’s probation in his RSP

case violated his right to due process.

       {¶13} With respect to A.S.’s burglary case, A.S. argues that the juvenile court

failed to follow Juv.R. 35(B) by revoking his probation without determining whether

he had been previously notified of the probation condition as required by Juv.R. 34.

Juv.R. 34(C) provides: “In all cases where a child is placed on probation, the child

shall receive a written statement of the conditions of probation. If the judgment is

conditional, the order shall state the conditions.”

       {¶14} Ohio appellate courts have held that a juvenile court errs in revoking a

juvenile’s probation without determining whether the juvenile had received notice of

the conditions of probation as required by Juv.R. 35(B). See In re L.S., 6th Dist.

Ottawa Nos. OT-17-021 and OT-17-025, 2018-Ohio-4758, ¶ 49; In re A.R.D., 12th

Dist. Butler Nos. CA2008-04-095 and CA2008-04-103, 2009-Ohio-1306, ¶ 13. One

appellate court held that the juvenile court failed to comply with Juv.R. 35(B) by

failing to inquire whether a juvenile had received a written statement of probation

conditions, even though a written, signed statement of probation conditions

appeared in the record. See In re T.W., 11th Dist. Ashtabula No. 2011-A-0035, 2011-

Ohio-6855. By contrast, another appellate court held that the juvenile court did not

commit reversible error under Juv.R. 35(B) in revoking the juvenile’s probation

where the record showed that the juvenile signed a written list of probation


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                     OHIO FIRST DISTRICT COURT OF APPEALS


conditions, the juvenile admitted to violating probation, and the juvenile never

argued before the juvenile court that he did not have notice of his probation

conditions. See In re J.G., 12th Dist. Butler No. CA2007-10-250, 2008-Ohio-2260, ¶

42.

        {¶15} Here, the juvenile court found that A.S. violated a condition of

probation in his burglary case; however, it failed to affirmatively find that A.S. had

been notified of that condition. Nevertheless, the record shows that the juvenile

court sent A.S. to Abraxas, and that the state filed a complaint alleging that A.S. had

violated rule 12 of his probation conditions, requiring him to adhere to all rules of

placement and successfully complete Abraxas.         The state alleged that A.S. had

absconded from Abraxas. At the hearing on the probation-violation charge in A.S.’s

burglary case, the state again notified the court and A.S. of the specific charge against

A.S. A.S. admitted to violating this condition by absconding. The record also reflects

a document containing the conditions of probation, which A.S. signed, and one of the

conditions is adhering to all rules of placement and successfully completing Abraxas.

Furthermore, A.S. never argued in the juvenile court that he did not receive notice of

his probation conditions. Therefore, we hold that A.S.’s due-process rights were not

violated by the juvenile court’s failure to make an affirmative finding on the record

that A.S. had notice of his probation conditions prior to revoking A.S.’s probation in

his burglary case.

        {¶16} We sustain A.S.’s second assignment of error with respect to A.S.’s RSP

case, and we overrule A.S.’s second assignment of error with respect to his burglary

case.




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                    OHIO FIRST DISTRICT COURT OF APPEALS


                     III.    The Consequences of an Admission

       {¶17} We next address A.S.’s first assignment of error, in which A.S. argues

that his admission to the probation violation was not knowing, voluntary, and

intelligent, because the juvenile court failed to inform him of the potential

commitment to DYS as a consequence of the admission. A.S. argues that the juvenile

court should have explained to him that an admission to a probation violation would

result in the revocation of his probation in both of his cases.

       {¶18} Admissions in delinquency proceedings are analogous to guilty pleas

in adult criminal proceedings. In re C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, 874

N.E.2d 1177, ¶ 112. Juv.R. 29(D) requires the juvenile court to personally address the

juvenile on the record prior to accepting an admission to delinquency allegations. Id.

Juv.R. 29(D) provides:

       Initial Procedure Upon Entry of an Admission. 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 admission; (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.

       {¶19} The Ohio Supreme Court has held that strict compliance with Juv.R.

29(D) is preferred, but “[i]f the trial court substantially complies with Juv.R. 29(D)

in accepting an admission by a juvenile, the plea will be deemed voluntary absent a

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                    OHIO FIRST DISTRICT COURT OF APPEALS


showing of prejudice by the juvenile or a showing that the totality of the

circumstances does not support a finding of a valid waiver.” In re C.S. at paragraph

six of the syllabus. “For purposes of juvenile delinquency proceedings, substantial

compliance means that in the totality of the circumstances, the juvenile subjectively

understood the implications of his plea.” Id. at ¶ 113.

       {¶20} In support of A.S.’s argument that the juvenile court had a duty under

Juv.R. 29(D) to explain to him that an admission to a probation violation in the

burglary case would result in the imposition of the suspended commitment in his

RSP case, A.S. cites two Eighth District cases: In re T.B., 8th Dist. Cuyahoga Nos.

93422 and 93423, 2010-Ohio-523, and In re A.R., 8th Dist. Cuyahoga Nos. 104869,

104870, 104871, 104872, 104873, 104875 and 104876, 2017-Ohio-8058.

       {¶21} In In re T.B., the juvenile court found the juvenile delinquent of two

charges in two separate cases. The juvenile court placed the juvenile on probation

with suspended commitments to DYS. The state filed a notice of probation violation

in only one of the juvenile’s cases. The juvenile court conducted a hearing on the

juvenile’s admission to the violation, and the magistrate stated, “I could impose the

sentence that has been previously stayed against you.” After accepting the juvenile’s

admission, the juvenile court imposed the suspended commitments in both of the

juvenile’s cases. The Eighth District held that the juvenile court did not substantially

comply with Juv.R. 29(D) because “it failed to advise [the juvenile] of the specific

term he faced if committed to ODYS.” In re T.B. at ¶ 9.

       {¶22} In In re A.R., the juvenile court invoked the suspended commitments

for the juvenile on seven separate cases, even though the state had filed a notice of

violation in only one of the cases. At the hearing on the probation violation, the


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                    OHIO FIRST DISTRICT COURT OF APPEALS


juvenile court addressed the juvenile as follows: “The penalty for this is going to be to

send you to ODYS. I will give you credit for time served, but the balance of whatever

time that you have not served, you may have to serve at ODYS.” In re A.R. at ¶ 7. In

determining that the juvenile court did not substantially comply with Juv.R. 29(D),

the Eighth District held that “[a]lthough the juvenile court stated that it was going to

send [the juvenile] to ODYS, it did not explain the minimum or maximum terms of

commitment that may result in the acceptance of an admission.” In re A.R. at ¶ 13.

       {¶23} Although the underlying facts in In re T.B. and In re A.R. are similar to

the appeals here in that the state filed a notice of probation violation in only one case

and the juvenile court revoked probation in other cases, the analysis in those appeals

is distinguishable. The courts in In re T.B. and In re A.R. focused solely on whether

the juvenile court had substantially complied with Juv.R. 29(D) in accepting the

juveniles’ admissions. In these appeals, A.S. argues, and this court agrees, that the

juvenile court violated A.S.’s due-process rights by revoking his probation in a case in

which the juvenile court did not comply with Juv.R. 29(B), (C), and (D), and 35.

Therefore, the question before this court is whether, at the time A.S. entered an

admission to violating probation in his burglary case, the juvenile court had a duty to

explain to A.S. that he could face probation revocation in his RSP case, even though

no motion had been filed alleging a probation violation in the RSP case.

       {¶24} Juv.R. 35, governing probation violations, requires the filing of a

motion in the original delinquency proceeding in order to invoke the juvenile court’s

continuing jurisdiction.    See Juv.R. 35(A).     Because the state never alleged a

probation violation in A.S.’s RSP case as required by Juv.R. 35, the juvenile court’s

continuing jurisdiction in A.S.’s RSP case had not been invoked at the time of A.S.’s


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                    OHIO FIRST DISTRICT COURT OF APPEALS


probation-revocation hearing in his burglary case. Therefore, we determine that the

juvenile court had no duty to notify A.S. that a potential consequence of an

admission to a probation violation could result in the revocation of probation in a

separate case not before the court.

       {¶25} The magistrate informed A.S. that a potential consequence of an

admission to a probation violation in his burglary case could be a commitment to

DYS for a minimum of six months, up to the age of 21, which was the term imposed

by the juvenile court. As a result, we hold that the juvenile court substantially

complied with Juv.R. 29(D) in accepting A.S.’s admission to violating probation in

his burglary case. We overrule A.S.’s first assignment of error.

                       IV.    Confinement Credit for Abraxas

       {¶26} In his third assignment of error, A.S. argues that the juvenile court

erred in denying him confinement credit for his time spent at Abraxas.           R.C.

2152.18(B) governs confinement credit for juveniles, and it states:

       When a juvenile court commits a delinquent child to the custody of the

       department of youth services pursuant to this chapter, the court shall

       state in the order of commitment the total number of days that the

       child has been confined in connection with the delinquent child

       complaint upon which the order of commitment is based. The court

       shall not include days that the child has been under electronic

       monitoring or house arrest or days that the child has been confined in

       a halfway house. The department shall reduce the minimum period of

       institutionalization that was ordered by both the total number of days

       that the child has been so confined as stated by the court in the order


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                    OHIO FIRST DISTRICT COURT OF APPEALS


       of commitment and the total number of any additional days that the

       child has been confined subsequent to the order of commitment but

       prior to the transfer of physical custody of the child to the department.

The juvenile-delinquency statutes do not define the term “confined” as used in R.C.

2152.18(B).

       {¶27} This court first sought to define confinement as used in R.C.

2152.18(B) in In re D.P., 1st Dist. Hamilton No. C-140158, 2014-Ohio-5414. In In re

D.P., this court rejected the notion that juveniles should only receive confinement

credit for time spent in a lockdown facility, and instead adopted the interpretation of

confinement from the adult criminal system as laid out in State v. Napier, 93 Ohio

St.3d 646, 647, 758 N.E.2d 1127 (2001). The D.P. court determined that juvenile

courts must conduct a fact-intensive inquiry to determine whether the time a

juvenile spends at a residential facility counts as confinement:

       [J]uvenile courts must review the nature of the facility, to see if it is a

       secure facility with measures sufficient to ensure the safety of the

       surrounding community. They must also review the nature of the

       restrictions on the juvenile at the facility to determine if the juvenile

       was ‘free to come and go as he wished’ or if he was ‘subject to the

       control of the staff regarding personal liberties’ as contemplated by

       Napier.

(Internal citations omitted.) In re D.P. at ¶ 18, quoting Napier.

       {¶28} Several appellate districts have also applied the Napier standard to

determine whether a juvenile has been confined under R.C. 2152.18(B). See In re

D.P., 3d Dist. Auglaize Nos. 2-15-13 and 2-15-14, 2016-Ohio-747, ¶ 20; In re K.A., 6th


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                    OHIO FIRST DISTRICT COURT OF APPEALS


Dist. Lucas No. L-12-1334, 2013-Ohio-3847, ¶ 5; In re J.K.S., 8th Dist. Cuyahoga

Nos. 101967 and 101968, 2015-Ohio-1312, ¶ 12; In the Matter of J.C.E., 11th Dist.

Geauga No. 2016-G-0062, 2016-Ohio-7843, ¶ 31; In re J.A., 2018-Ohio-1609, 100

N.E.3d 447, ¶ 43-45 (5th Dist.).

       {¶29} This court applied the Napier standard as outlined in In re D.P. in

considering whether a juvenile housed at Hillcrest School was entitled to

confinement credit. See In re T.W., 2016-Ohio-3131, 66 N.E.3d 93 (1st Dist.). In In

re T.W., this court first examined the measures Hillcrest staff used to ensure the

safety of the surrounding community. The court determined that the youths needed

staff permission to leave Hillcrest, and that staff members would physically stop a

youth who left without permission. If a youth did abscond, the staff contacted police,

who issued a warrant.

       {¶30} With respect to Hillcrest staff members’ control over the juveniles’

personal liberties, the court determined that staff escorted juveniles around the

campus, and staff restricted the juveniles’ access to their rooms.      If a juvenile

attempted to leave the room without permission, an alarm sounded.           Juveniles

needed staff permission to use the restroom or get a drink of water. The Hillcrest

staff monitored the youths 24 hours a day, and the campus had 111 cameras. Based

on these facts, the In re T.W. court determined that the juvenile’s time spent at

Hillcrest constituted confinement for purposes of R.C. 2152.18(B).

       {¶31} In this case, in determining whether Abraxas constitutes confinement,

we examine the measures used to ensure the safety of the surrounding community,

and the staff control over the juveniles’ personal liberties.




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                   OHIO FIRST DISTRICT COURT OF APPEALS


          A. Measures for the Safety of the Surrounding Community

       {¶32} With regard to the safety of the community surrounding Abraxas, the

evidence shows that the 88-acre facility is located in a somewhat rural area of Ohio,

with the closest city being two to three miles away in Shelby, Ohio. The interior and

exterior doors of the facility operate with a key-fob locking mechanism. Although a

juvenile could physically open a door without a key fob, an alarm sounds if a door is

opened without the key.      Only staff members have access to the key fobs. The

Abraxas staff members use security checklists daily to make sure that doors and

windows are secure. The staff use “eyeball” supervision over the youths 24 hours a

day, and the facility has 79 cameras. At night, the staff perform bed checks where a

staff member must see a child’s head, neck, and skin.

       {¶33} In determining that Abraxas does not have measures sufficient to

ensure the safety of the surrounding community, the juvenile court found relevant

that the interior doors remain unlocked during the day, and at night the children

could open the doors in such a way to prevent the alarm from sounding. The juvenile

court also noted that the windows did not have alarms, even though a window could

only open by removing an air-conditioning unit. The juvenile court also found

relevant that Abraxas staff did not routinely monitor their cameras, and that the

Abraxas staff would not attempt to physically restrain a child who leaves without

permission.

       {¶34} We do not see any meaningful distinction between the safety measures

used at Abraxas and those used at Hillcrest as outlined in In re T.W. Although staff

members at Abraxas cannot physically restrain a child attempting to leave without

permission, staff members will attempt to counsel a child to return to the facility. If

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                   OHIO FIRST DISTRICT COURT OF APPEALS


a child does abscond, staff members immediately contact law enforcement. The staff

members also conduct a search of the property and surrounding areas looking for a

missing youth. Depending on a child’s situation, law enforcement may choose to

detain a missing child once found. As shown in this case, A.S. left Abraxas without

permission and faced a probation violation and a DYS commitment as a result.

Therefore, the safety measures used at Abraxas weigh in favor of a finding of

confinement.

       B. Abraxas Staff Control over the Juveniles’ Personal Liberties

       {¶35} With regard to staff control over the children’s personal liberties at

Abraxas, the evidence shows that the youths are constantly monitored, and this

includes headcounts every 15 minutes throughout the day and night. Abraxas staff

members control the youths’ schedules throughout the day, and staff members escort

the juveniles around the campus in groups. Juveniles cannot have cell phones, and

they have limited, supervised internet access. Juveniles must have staff permission

to use the restroom.    The children can have visitors, but these visits must be

preapproved and supervised. The children cannot leave the facility unless they earn

home or day passes through positive progress in their school and treatment

programs.

       {¶36} In determining that the staff have “little” control over the juveniles’

personal liberties at Abraxas, the juvenile court found relevant that the children can

choose how to spend their recreation time, and that the children cannot be physically

forced to do an activity. The juvenile court also noted that the children can choose

their clothing. The juvenile court also noted that the children can leave the Abraxas




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                     OHIO FIRST DISTRICT COURT OF APPEALS


campus to participate in an activity in the community, and can earn time to visit

home.

        {¶37} Even though children cannot be physically forced to do any activity, if

a child does not complete his or her treatment program, then a probation violation

may result. The children can “choose” what color polo shirt to wear, but it must be

one of four colors. Although children are permitted to leave the Abraxas campus,

staff control when and where the children may go, so that children cannot leave at

their discretion. Again, the evidence of staff control over the children’s personal

liberties at Abraxas is not distinguishable from the staff control over the children’s

personal liberties at Hillcrest.

        {¶38} Accordingly, we determine that A.S.’s time spent at Abraxas

constitutes confinement for purposes of R.C. 2152.18(B).       Therefore, we sustain

A.S.’s third assignment of error.

                                    V.     Conclusion

        {¶39} We vacate the juvenile court’s judgment in the appeal numbered C-

180046 revoking A.S.’s probation in his RSP case. We affirm the portion of the

judgment in the appeal numbered C-180045 revoking A.S.’s probation in his

burglary case, but we reverse that portion of the judgment calculating A.S.’s

confinement credit. We remand the matter with instructions to the juvenile court to

recalculate A.S.’s confinement credit allowing him to receive credit for his time at

Abraxas.

                                                               Judgment accordingly.




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                     OHIO FIRST DISTRICT COURT OF APPEALS


BERGERON, J., concurs.
MOCK, P.J., concurs in part and dissents in part.


MOCK, P.J., concurring in part and dissenting in part.

         {¶40} While I agree with the majority’s determination of the appeal in the

case numbered 17-2985Z, I would hold that the trial court properly determined A.S.’s

credit toward his DYS commitment for the days he spent at Abraxas Youth Center. I

therefore dissent from the determination of the appeal in the case numbered 16-

7750Z.

         {¶41} The majority relies heavily on this court’s decision in In re T.W., 2016-

Ohio-3131, 66 N.E.3d 93 (1st Dist.). And I dissent for the same reasons that I

dissented in that case. The nature of confinement between adults and juveniles is

simply not comparable, and I do not believe that we can consider the same types of

factors when determining whether a child has been “confined” as that term is used in

R.C. 2152.18(B). Id. at ¶ 22-25. But even considering those factors, I would conclude

that A.S. was not confined while residing at Abraxas. The confinement at Abraxas

was even less restrictive than the confinement at issue in T.W. As a result, I would

conclude that the trial court properly declined to give A.S. credit for the time. I

therefore dissent from that portion of the majority’s opinion.


Please note:
         The court has recorded its own entry on the date of the release of this opinion.




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