[Cite as In re C.B., 2012-Ohio-5143.]




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




IN THE MATTER OF:                                       CASE NO. 2-11-13

        C.B.,
                                                        OPINION
ADJUDICATED DELINQUENT CHILD.




IN THE MATTER OF:                                       CASE NO. 2-11-14

        C.B.,
                                                        OPINION
ADJUDICATED DELINQUENT CHILD.




                Appeals from Auglaize County Common Pleas Court
                                 Juvenile Division
                 Trial Court Nos. 2010 DEL 173 and 2010 DEL 154

                      Judgments Reversed and Causes Remanded

                           Date of Decision: November 5, 2012




APPEARANCES:

        Amanda J. Powell for Appellant

        Edwin Pierce and R. Andrew Augsburger for Appellee
Case Nos. 2-11-13, 2-11-14


WILLAMOWSKI, J.

      {¶1} Defendant-appellant C.B., a minor child, brings these appeals from the

judgments of the Court of Common Pleas of Auglaize County, Juvenile Division.

The trial court found that C.B. had violated the terms of his community control

and sentenced him to a minimum of six months in the custody of the Department

of Youth Services (“DYS”). For the reasons set forth below, the judgments are

reversed.

      {¶2} On September 20, 2010, C.B. was charged with delinquency for

committing what would be a gross sexual imposition in violation of R.C.

2907.05(A)(4) if he were an adult. He admitted to the offense and was adjudicated

to be a delinquent on September 28, 2010. C.B. was thirteen years of age at the

time and was not represented by counsel. On December 16, 2010, the trial court

held a hearing on a claim that C.B. was delinquent for violating the terms of his

community control for failing to follow basic directions at the West Central

Rehabilitation Center. C.B. proceeded without counsel and entered an admission.

He was subsequently found to be delinquent. The dispositional hearing was held

on January 11, 2011, and C.B. was returned to the West Central Rehabilitation

Center.

      {¶3} On April 14, 2011, C.B. was again charged with delinquency for

failing to comply with the terms of his community control. The complaint alleged


                                       -2-
Case Nos. 2-11-13, 2-11-14


that C.B. was delinquent for committing criminal mischief. C.B. again proceeded

without counsel and admitted to the allegation. Based upon the admission, C.B.

was found to be delinquent and was again returned to the West Central

Rehabilitation Center.

       {¶4} On May 23, 2011, another hearing was held because the State filed

another complaint alleging that C.B. was delinquent for another violation of his

community control. At this hearing, C.B. again agreed to proceed without an

attorney, but denied the allegations in the complaint. The matter was set for trial.

The trial was held on June 23, 2011. C.B. again agreed to proceed without

counsel and the trial was held. At the conclusion, the trial court found C.B. to be

delinquent for violating the terms of his community control.        The trial court

sentenced C.B. to a minimum of six months in the custody of DYS. C.B. appeals

from this judgment and raises the following assignments of error.

                           First Assignment of Error

       The Auglaize County Juvenile Court violated [C.B.’s] right to
       counsel and to due process under the Fifth and Fourteenth
       Amendments to the United States Constitution; Section 16,
       Article I of the Ohio Constitution; Ohio Revised Code 2151.352;
       and Juvenile Rules 3, 4, and 29.

                          Second Assignment of Error

       The State’s improper actions in failing to inform [C.B.] of his
       right to present witnesses if indigent deprived [C.B.] of his right
       to a fair trial as guaranteed by the Fourteenth Amendment to
       the United States Constitution.

                                        -3-
Case Nos. 2-11-13, 2-11-14



       {¶5} In the first assignment of error, C.B. alleges that the trial court did not

adequately determine that he was knowingly, voluntarily, and intelligently

entering a waiver of counsel. The United States Supreme Court has recognized

that the due process clause of the Fourteenth Amendment applies to juvenile

delinquency proceedings. In re Gault, 387 U.S. 1, 87 S.Ct. 142          8, 18 L.Ed.2d

527 (1967). In Gault, the Court determined that juveniles must be informed of

their right to counsel. Id. The Ohio Supreme Court adopted the holding of Gault

in In re Agler, 19 Ohio St.2d 70 (1969). Additionally, the Ohio legislature has

guaranteed juveniles the right to counsel.

       A child * * * is entitled to representation by legal counsel at all
       stages of the proceedings under this Chapter or Chapter 2152 of
       the Revised Code. If, as an indigent person, a party is unable to
       employ counsel, the party is entitled to have counsel provided
       for the person pursuant to Chapter 120 of the Revised Code * *
       *. If a party appears without counsel, the court shall ascertain
       whether the party knows of the party’s right to counsel and of
       the party’s right to be provided with counsel if the party is an
       indigent person.

R.C. 2151.352. This right is also provided by the Rules of Juvenile Procedure.

“Every party shall have the right to be represented by counsel and every child * *

* the right to appointed counsel if indigent.” Juv.R. 4(A). At the beginning of any

adjudicatory hearing, the trial court must address the right to counsel if the

juvenile is unrepresented. Juv.R. 29(B).



                                         -4-
Case Nos. 2-11-13, 2-11-14


         At the beginning of the hearing, the court shall do all of the
         following:

         ***

         (3) Inform unrepresented parties of their right to counsel and
         determine if those parties are waiving their right to counsel;

         (4) Appoint counsel for any unrepresented party under Juv.R.
         4(A) who does not waive the right to counsel;

         (5) Inform any unrepresented party who waives the right to
         counsel of the right: to obtain counsel at any stage of the
         proceedings, to remain silent, to offer evidence, to cross-examine
         witnesses, and, upon request, to have a record of all proceedings
         made, at public expense if indigent.

Juv.R. 29(B).

         A child’s right to be represented by counsel at a hearing
         conducted pursuant to Juv.R. 30 may not be waived. Other
         rights of a child may be waived with permission of the court.

Juv.R. 3.1

         {¶6} The Ohio Supreme Court has addressed this issue in In re C.S., 115

Ohio St.3d 267, 2007-Ohio-4919. The Court held as follows.

         [I]n a delinquency proceeding, a juvenile may waive his
         constitutional right to counsel, subject to certain standards
         articulated below, if he is counseled and advised by his parent,
         custodian, or guardian. If the juvenile is not counseled by his
         parent, guardian, or custodian and has not consulted with an
         attorney, he may not waive his right to counsel.

         ***

1
   This is the old rule which was in effect at the time of the hearing in question in this appeal. The new rule
is much more detailed about how a waiver may be obtained. The new version went into effect on July 1,
2012.

                                                     -5-
Case Nos. 2-11-13, 2-11-14



      In holding that the constitutional right to counsel may be waived
      by a juvenile, we apply the definition of waiver used in State v.
      Foster – an “intentional relinquishment or abandonment of a
      known right.” * * * As in cases involving adults, there is a
      strong presumption against waiver of the constitutional right to
      counsel. Johnson v. Zerbst (1938), 304 U.S. 458, 464, 58 S.Ct.
      1019, 82 L.Ed. 1461.

      An effective waiver of the right to counsel by a juvenile must be
      voluntary, knowing and intelligent. State v. Gibson (1976), 45
      Ohio St.2d 366, 74 O.O.2d 525, 345 N.E.2d 399, paragraph one
      of the syllabus. In a juvenile court proceeding in which the
      judge acts as parens partriae, the judge must scrupulously
      ensure that the juvenile fully understands, and intentionally and
      intelligently relinquishes, the right to counsel. Id. at paragraph
      two of the syllabus; * * *.

      In the discharge of that duty, the judge is to engage in a
      meaningful dialogue with the juvenile. Instead of relying solely
      on a prescribed formula or script for engaging a juvenile during
      the consideration of the waiver, * * * the inquisitional approach
      is more consistent with the juvenile court’s goals, and is best
      suited to address the myriad factual scenarios that a juvenile
      judge may face in addressing the question of waiver.

      We agree with the Supreme Court of Nebraska’s recent holding
      that a totality-of-the-circumstances analysis is the proper test to
      be used in ascertaining whether there has been a valid waiver of
      counsel by a juvenile. * * * The judge must consider a number of
      factors and circumstances, including the age, intelligence, and
      education of the juvenile; the juvenile’s background and
      experience generally and in the court system specifically; the
      presence or absence of the juvenile’s parent, guardian, or
      custodian; the language used by the court in describing the
      juvenile’s rights; the juvenile’s conduct; the juvenile’s emotional
      stability; and the complexity of the proceedings. * * *

      In cases such as this one, in which a juvenile is charged with a
      serious offense, the waiver of the right to counsel must be made

                                      -6-
Case Nos. 2-11-13, 2-11-14


       in open court, recorded, and in writing * * * If a written waiver
       has been executed, the juvenile court judge must consider the
       form used and the juvenile’s literacy level to ensure that the
       juvenile has an intelligent understanding of the document and
       an appreciation of the gravity of signing it.

In re C.S., supra at ¶105-109, see, also In re Ramon, 3d Dist. No. 4-07-03, 2007-

Ohio-5768 (reversing a waiver of counsel by juvenile for violating the provisions

of C.S. and Juv.R. 29). The rights dialogue discussed in C.S. and provided for by

Juv.R. 29 is mandatory and the failure to advise the juvenile of the rights is

reversible error. Ramon, supra at ¶17 (quoting In re Kimble, 114 Ohio App.3d

136, (3d Dist. 1996)).

       {¶7} The Ohio Supreme Court has previously provided guidance as to what

is needed to have a valid waiver of counsel. The Court has required that the

warning be sufficient to impose on the defendant the seriousness of the offense

and the consequences of having a trial or not could have on his or her life. State v.

Gibson, 45 Ohio St.2d 366 (1976).

       This protecting duty imposes the serious and weighty
       responsibility upon the trial judge of determining whether there
       is an intelligent and competent waiver by the accused.' To
       discharge this duty properly in light of the strong presumption
       against waiver of the constitutional right to counsel, a judge
       must investigate as long and as thoroughly as the circumstances
       of the case before him demand. The fact that an accused may tell
       him that he is informed of his right to counsel and desires to
       waive this right does not automatically end the judge's
       responsibility. To be valid such waiver must be made with an
       apprehension of the nature of the charges, the statutory offenses
       included within them, the range of allowable punishments

                                         -7-
Case Nos. 2-11-13, 2-11-14


       thereunder, possible defenses to the charges and circumstances
       in mitigation thereof, and all other facts essential to a broad
       understanding of the whole matter.

Id. at 376-77. The Court has also required that a defendant be “made aware of the

dangers and disadvantages of self-representation' so that the record established that

‘he [knew] what he [was] doing and his choice [was] made with eyes open.’”

State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, ¶44 (quoting Faretta v.

California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562).

       {¶8} Here, the following dialogue took place at the preliminary hearing.

       The Court: Now throughout the course of these proceedings,
       [C.B.], you have the right to have an attorney represent you. If
       you cannot afford an attorney one can be appointed to represent
       you at little or no cost to you. Do you understand that?

       C.B.: Yes, Sir.

       The Court: Do you wish to go on today without an attorney or
       would you like to have time to talk with an attorney first?

       C.B.: Sir, I would like to go on.

       The Court: Mr. Kiefer is going to give you a piece of paper,
       [C.B.], which is your written waiver of your right to an attorney.
       I want you to read it. If you agree with it, sign it at the bottom
       where it says, “Juvenile” and then give it to your custodian for
       her review and if she agrees with your decision she may sign it as
       well. ([C.B.] reading and signing waiver.)

       Now even though you have signed that, [C.B.], if at any time you
       change your mind and you decide you do want an attorney all
       you have to do is tell me, okay.

       C.B.: Yes, Sir.

                                         -8-
Case Nos. 2-11-13, 2-11-14



May 23, 2011 Hearing, 5. This court notes that all of the discussions at prior

hearings were substantially the same.

      {¶9} On June 23, 2011, the trial took place. Before the trial, the trial court

reaffirmed that C.B. wished to proceed without an attorney.

      The Court: [C.B.], I explained to you before when you were here
      that you do have the right to have an attorney represent you in
      these proceedings, and if you cannot afford an attorney one can
      be appointed to represent you. Do you understand that?

      C.B.: Yes, Sir.

      The Court: Do you want to go ahead today with this trial
      without an attorney assisting you?

      C.B.: Yes Sir.

      The Court: Do you understand that you are going to be held to
      the same standards as any other lawyer with regard to the
      presentation of evidence and so forth?

      C.B.: Yes, Sir.

      The Court: And you still want to go on without an attorney?

      C.B.: Yes, Sir.

      The Court: You understand, [C.B.], that if the Court finds that
      you violated the terms and conditions of probation your
      protective supervision could be placed with the Department of
      Jobs and Family Services; your temporary or permanent
      custody placed with another person; you could be placed into a
      foster home; you could be placed on Community Control
      Probation for an indefinite period of time; could be fined up to
      fifty dollars ($50.00), assessed the court costs; if you have a
      driver’s license it can be suspended or revoked; you could be

                                        -9-
Case Nos. 2-11-13, 2-11-14


       detained for a period of up to a hundred and eighty (180) days
       or your legal custody can be committed to the Department of
       Youth Services for a minimum period of six (6) months to a
       maximum period of the attainment of the age of twenty-one (21).
       Do you understand all of those things?

       C.B.: Yes Sir, I do.

       The Court:        And you still wish to go forward without an
       attorney?

       C.B.: Yes, Sir.

       The Court: You’re certain of that?

       C.B.: Yes, Sir.

       The Court: Mr. Kiefer, then is going to give you a piece of
       paper, [C.B.] which is your written waiver of your right to an
       attorney. I want you to read it. If you do agree with it, sign it at
       the line where it says “Juvenile”, then give it to your guardian
       for her review and if she agrees with your decision she may sign
       it as well.

June 23, 2011, Hearing, 6-7. The trial court did not engage in any dialogue with

C.B. that would insure that he was counseled either by an attorney or his guardian

before waiving his right to counsel. Absent a showing that C.B. received counsel

before the waiver, the waiver cannot be accepted. C.S., supra at ¶98. There was

no evidence that he fully understood what rights he was waiving. He was not fully

informed of his right to remain silent, his right to cross-examine witnesses, or his

right to a transcript prior to the waiver as was required by Juv.R. 29(B). There

was also no discussion of the possible defenses and claims of mitigation as


                                       -10-
Case Nos. 2-11-13, 2-11-14


required by the Ohio Supreme Court. Gibson, supra at 377. Finally, the trial

court did not inform C.B. of the dangers and disadvantages that self-representation

entailed. Martin, supra at ¶44. A review of the record indicates that the trial court

neither conducted the required dialogue with the defendant nor conducted the

totality of the circumstances analysis to determine if the waiver was intelligently,

knowingly, and voluntarily made. This is in violation of Juvenile Rule 29 and the

precedent set forth by the Ohio Supreme Court and this court. Therefore, the

waiver of counsel was not valid and the first assignment of error is sustained.

       {¶10} Having found prejudicial error with the first assignment of error, the

second assignment of error is moot and need not be addressed by this court.

       {¶11} The judgments of the Court of Common Pleas of Auglaize County,

Juvenile Division are reversed and these matters are remanded.

                                                           Judgment Reversed and
                                                                Cause Remanded

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

/jlr




                                        -11-
