[Cite as In re S.L. McC. Jr., 2014-Ohio-2485.]


                                       COURT OF APPEALS
                                   COSHOCTON COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


IN THE MATTER OF                                 :   JUDGES:
                                                 :
        S. L. McC. JR.                           :   Hon. William B. Hoffman, P.J.
        A DELINQUENT CHILD.                      :   Hon. W. Scott Gwin, J.
                                                 :   Hon. Craig R. Baldwin, J.
                                                 :
                                                 :
                                                 :   Case No. 2013CA0016
                                                 :
                                                 :   OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Coshocton County
                                                     Court of Common Pleas, Juvenile
                                                     Division, Case No. 20920043



JUDGMENT:                                            Reversed and Remanded



DATE OF JUDGMENT:                                    June 5, 2014




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JASON GIVEN                                          BROOKE M. BURNS
Prosecuting Attorney                                 Assistant State Public Defender
                                                     250 East Broad Street, Suite 1400
By: BENJAMIN E. HALL                                 Columbus, OH 43215
Assistant Prosecuting Attorney
318 Chestnut Street
Coshocton, OH 43812
Coshocton County, Case No. 2013CA0016                                                    2



Baldwin, J.

      {¶1}    Appellant S.L. Mc.C. Jr. appeals from the May 21, 2013 Judgment Entry of

the Coshocton County Court of Common Pleas, Juvenile Division, committing him to the

legal custody of the Ohio Department of Youth Services.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    On April 22, 2009, a complaint was filed alleging that appellant (DOB

1/4/96) was delinquent of four counts of statutory rape in violation of R.C.

2907.02(A)(1)(b), felonies of the first degree if committed by an adult, and two count of

gross sexual imposition in violation of R.C. 2907.05(A)(4), felonies of the third degree if

committed by an adult. The offenses were alleged to have occurred on or between

November 1, 2008 and February 28, 2009.

      {¶3}    On June 17, 2009, appellant entered admissions to two of the counts of

rape and one of the counts of gross sexual imposition. The trial court found appellant

delinquent and the remaining counts were dismissed. A dispositional hearing was

scheduled for July 21, 2009. As memorialized in a Judgment Entry filed on the same

date, the trial court imposed a minimum one year commitment to the Ohio Department

of Youth Services (DYS) for the offenses of rape and a minimum six month commitment

to DYS for the offense of gross sexual imposition, to be served consecutively. The trial

court suspended the sentence and placed appellant on probation for an indefinite period

of time under specified terms and conditions.

      {¶4}    The State, on April 16, 2013, filed a motion alleging that appellant had

violated his probation and asking that appellant’s suspended sentence to DYS be

invoked.
Coshocton County, Case No. 2013CA0016                                                  3


      {¶5}   At the start of a hearing on May 21, 2013, the State withdrew its motion

with regard to one of the counts of rape and the count of gross sexual imposition. The

trial court, pursuant to a Judgment Entry filed on May 21, 2013, found that appellant had

failed to abide by the terms and conditions of his probation and granted the motion to

invoke his suspended DYS commitment. The trial court ordered that appellant be

committed to the legal custody of DYS for the charge of rape.

      {¶6}   Appellant appealed from the trial court’s May 21, 2013 Judgment Entry,

raising the following assignments of error on appeal:

      {¶7}   THE COSHOCTON COUNTY JUVENILE COURT VIOLATED SCOTT

M.’S RIGHT TO DUE PROCESS WHEN IT COMMITTED HIM TO DYS BASED ON AN

UNCONSTITUTIONAL ADJUDICATION. IN RE D.B., 129 OHIO ST.3D 104, 2011-

OHIO-2671,    950    N.E.2D 528.     (VOL.    II,   T.PP. 14-17;   A-1).   FOURTEENTH

AMENDMENT TO THE UNITED STATES CONSTITUTION; OHIO CONSTITUTION,

ARTICLE I, SECTION 16.

      {¶8}   SCOTT M. WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL

WHEN COUNSEL FAILED TO OBJECT TO THE COSHOCTON COUNTY JUVENILE

COURT’S INVOCATION OF SCOTT’S SUSPENDED COMMITMENT TO DYS FOR AN

OFFENSE       THAT     THE     SUPREME        COURT       OF      OHIO     HAS   FOUND

UNCONSTITUTIONAL. (VOL. II, T.PP. 14-17; A-1). IN RE D.B., 129 OHIO ST.3D 104,

2011-OHIO-2671,      950   N.E.2D    528,    APPLIED.     SIXTH    AND     FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION; OHIO CONSTITUTION,

ARTICLE I, SECTION 10.
Coshocton County, Case No. 2013CA0016                                                   4


      {¶9}    Appellant, on January 10, 2014, filed a Motion for Limited Remand to the

Juvenile Court. Appellant, in his motion, stated that on December 5, 2013, he had filed

a Motion to Vacate or in the Alternative Relief from Judgment in the juvenile court

asking that such court vacate its July 21, 2009 Judgment Entry committing him to DYS.

Appellant argued that he was under 13 when his rape adjudications occurred and that,

under In re D.B., supra, he could not be culpable for violating R.C. 2907.02(A)(1)(b).

Appellant asked that the trial court vacate his rape adjudications.         Pursuant to a

Judgment Entry filed on January 17, 2014, this Court granted the motion and remanded

the matter to the trial court to rule on appellant’s pending motion to vacate.

      {¶10}   The trial court, in a Judgment Entry filed on February 6, 2014, invoked

appellant’s suspended DYS sentence on Count 5, gross sexual imposition. The trial

court also ordered that appellant’s prior commitment for the invoked Count 1, rape, be

terminated.

                                                   I

      {¶11}   Appellant, in his first assignment of error, now argues that the trial court

violated his right to due process when it committed him to DYS based on an

unconstitutional adjudication. We agree.

  {¶12}       We note that In In Re: Gault , 387 U.S. 1, 87 S.Ct. 1428 (1967), the United

States Supreme Court held that courts must afford juveniles the protections of the Due

Process Clause of the Fourteenth Amendment, including notice of the charges, trial

rights, and the effective assistance of counsel.

  {¶13}       Appellant specifically cites to In re D.B., 129 Ohio St.3d 104, 2011-Ohio-

2671, 950 N.E.2d 528, in support of his argument that his probation violation was based
Coshocton County, Case No. 2013CA0016                                                   5


on an underlying adjudication for rape in violation of R.C. 2907.02(A)(1)(b) which has

been deemed unconstitutional. In the Ohio Supreme Court case In re D.B., 129 Ohio

St.3d 104, 2011–Ohio–2671, 950 N.E.2d 528, a 12 year old child was found to be

delinquent by reason of committing the offense of statutory rape against a child under

the age of 13 in violation of R.C. 2907.02(A)(1)(b). R.C. 2907.02(A)(1)(b) provides that

“No person shall engage in sexual conduct with another who is not the spouse of the

offender or who is the spouse of the offender but is living separate and apart from the

offender, when any of the following applies:…

      {¶14}   “(b) The other person is less than 13 years of age, whether or not the

offender knows the age of the other person.”

      {¶15}   The Supreme Court, in D.B., held as follows in analyzing whether or not

the 12 year old child’s due process rights had been violated : “As applied to children

under the age of 13 who engage in consensual sexual conduct with other children under

the age of 13, R.C. 2907.02(A)(1)(b) is unconstitutionally vague because the statute

authorizes and encourages arbitrary and discriminatory enforcement. When an adult

engages in sexual conduct with a child under the age of 13, it is clear which party is the

offender and which is the victim. But when two children under the age of 13 engage in

sexual conduct with each other, each child is both an offender and a victim, and the

distinction between those two terms breaks down.” (Emphasis added.) Id at paragraph

24. The Court held in the syllabus that R.C. 2907.02(A)(1)(b) was unconstitutional as

applied to a child under the age of 13 who engages in sexual conduct with another child

under 13.
Coshocton County, Case No. 2013CA0016                                                 6


     {¶16}   In the case sub judice, the victim was under the age of 13. The complaint

alleged that the offenses occurred on or between November 1, 2008 and February 28,

2009. Thus, during most of such time frame, appellant, who was born on January 4,

1996, was under the age of 13.

     {¶17}   Based on the holding of the Ohio Supreme Court in D.B., we find that

appellant’s due process rights were violated when he was adjudicated delinquent for

rape in violation of R.C. 2907.02(A)(1)(b) and subsequently committed to DYS with

respect to such adjudication.

     {¶18}   Appellant’s first assignment of error is, therefore, sustained.

                                               II

     {¶19}   Appellant, in his second assignment of error, argues that his trial counsel

was ineffective in failing to object when the trial court invoked appellant’s suspended

commitment to DYS for rape in violation of R.C. 2907.02(A)(1)(b).

     {¶20}   Based on our disposition of appellant’s first assignment of error,

appellant’s second assignment of error is moot.
Coshocton County, Case No. 2013CA0016                                               7


      {¶21}   Accordingly, the judgment of the Coshocton County Court of Common

Pleas, Juvenile Division, is reversed. This matter is remanded to the trial court with

directions to vacate appellant’s adjudication and commitment to DYS for the offense of

rape in violation of R.C. 2907.02(A)(1)(b).


By: Baldwin, J.

Hoffman, P.J. and

Gwin, J. concur.
