[Cite as In re T.W., 2016-Ohio-8371.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


IN RE: T.W., A MINOR CHILD                  :       JUDGES:
                                            :       Hon. Sheila G. Farmer, P.J.
                                            :       Hon. W. Scott Gwin, J.
                                            :       Hon. Craig R. Baldwin, J.
                                            :
                                            :
                                            :       Case No. 16-CA-38
                                            :
                                            :       OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Licking County
                                                    Court of Common Pleas, Juvenile
                                                    Division A2015-0632




JUDGMENT:                                           Reversed and Remanded




DATE OF JUDGMENT:                                   December 20, 2016




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

KENNETH W. OSWALT                                   MICHEAL P. WALTON
Licking County Prosecutor                           VICTORIA BADER
                                                    Assistant State Public Defender
By: KARRIE PRATT KUNKEL                             250 East Broad Street, Suite 1400
Assistant Prosecuting Attorney                      Columbus, Ohio 43215
20 S. Second Street, Fourth Floor
Newark, Ohio 43055
Licking County, Case No. 16-CA38                                                       2

Baldwin, J.

      {¶1}    Appellant T.W. appeals a judgment of the Licking County Common Pleas

Court, Juvenile Division, revoking his probation and sentencing him to a commitment of

one year and six months to the Department of Youth Services (DYS). Appellee is the

State of Ohio.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    On October 26, 2015, a complaint was filed in the Licking County Common

Pleas Court, Juvenile Division, alleging that appellant was delinquent by reason of eight

counts of rape. Counsel for appellant filed a motion for a competency evaluation on

November 30, 2015. The competency report reflected that appellant was unclear about

some of the specifics, but seemed to generally understand the nature and purpose of the

court proceedings and the potential consequences to him. The court found appellant

competent for the purpose of proceeding in the case.

      {¶3}    A change of plea hearing was held on February 19, 2016. The State

amended four of the counts of rape to charges of gross sexual imposition and moved to

dismiss two of the remaining counts. Appellant entered a plea of true to two counts of

rape and four counts of gross sexual imposition. Appellant was committed to DYS for the

counts of rape for a minimum of one year, and a maximum not to exceed his twenty-first

birthday. On the findings of gross sexual imposition, he was committed to DYS for a

minimum of six months and a maximum not to exceed his twenty-first birthday. The

commitments were ordered to run consecutively. The court suspended the commitments

to DYS, and ordered appellant to be placed in the Butler County Juvenile Rehabilitation

Center for sex offender treatment.
Licking County, Case No. 16-CA38                                                         3


      {¶4}    The State filed a motion to revoke probation on April 26, 2016, alleging that

appellant violated the rules of the rehabilitation center by acting in a violent and

threatening manner towards staff and other youth. At a hearing, appellant indicated to

the court that he had reviewed the rights packet he received and did not have any

questions. Counsel for appellant represented to the court that she had reviewed the

motion with appellant. Counsel waived the reading of the complaint, and stated that

appellant intended to enter an admission to the probation violation. The court then

informed appellant of the rights he was waiving by his admission, but did not read the

complaint or otherwise ascertain that appellant understood the nature of the allegations.

Following appellant’s admission to the complaint, the court terminated appellant’s

probation and committed appellant to DYS for a minimum of one year on the counts of

rape and a minimum of six months on the counts of gross sexual imposition, all to run

consecutively.

      {¶5}    Appellant assigns two errors to this Court on appeal:

      {¶6}    “I.   THE LICKING COUNTY JUVENILE COURT COMMITTED PLAIN

ERROR WHEN IT ACCEPTED T.W.’S ADMISSION TO A PROBATION VIOLATION

WHEN HIS ADMISSION WAS NOT KNOWINGLY, INTELLIGENTLY, OR VOLUNTARY

[SIC] MADE, IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO

THE UNITED STATES CONSTITUTION, ARTICLE I, SECTIONS 10 AND 16 OF THE

OHIO CONSTITUTION, AND JUV. R. 29.

      {¶7}    “II. T.W. WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AS

GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED

STATES       CONSTITUTION      AND    ARTICLE     I,   SECTION     10   OF    THE    OHIO
Licking County, Case No. 16-CA38                                                           4


CONSTITUTION WHEN COUNSEL FAILED TO OBJECT TO THE JUVENILE COURT’S

FAILURE TO COMPLY WITH JUV. R. 29.”

                                                 I.

       {¶8}   In his first assignment of error, appellant argues that his plea of true to the

probation violation was not knowing, voluntary and intelligent because the trial court did

not inform him of the nature of the allegations against him as required by Juv. R. 29(D)(1),

which provides:

              (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 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[.]

       {¶9}   In a juvenile delinquency case, the preferred practice is strict compliance

with Juvenile Rule 29(D). In re C.S., 115 Ohio St.3d 267, 874 N.E.2d 1177, 2007–Ohio–

4919, ¶ 113. However, if the trial court substantially complies with Juv. R. 29(D) in

accepting an admission from a juvenile, the plea is deemed voluntary absent a showing

of prejudice or a showing that the totality of the circumstances does not support a finding

of a valid waiver. Id. Substantial compliance for purposes of juvenile delinquency

proceedings means that under the totality of the circumstances, the juvenile subjectively

understood the implications of his plea. Id.

       {¶10} The plea colloquy in the instant case did not include a reading of the

complaint or a determination by the court that appellant understood the nature of the
Licking County, Case No. 16-CA38                                                            5


allegations. The court did not inform appellant of the substance of the complaint, as

counsel represented to the court that appellant would waive a reading of the complaint

and intended to enter an admission to the probation violation.

       {¶11} Appellee argues that appellant has waived all but plain error by failing to

object and waiving the reading of the complaint, citing to this Court’s opinion in In re Argo,

5th Dist. Muskingum No. CT2003-055, 2004-Ohio-4938. However, subsequent to our

decision in Argo, we implicitly overruled Argo and concluded that based on the Ohio

Supreme Court’s analysis of similar language in Crim. R. 32(A)(1), the use of the word

“shall” in Juv. R. 29 imposes a mandatory obligation on the court to comply with the rule:

              Juv. R. 29(D) provides that the juvenile court “shall not accept an

       admission” without determining that the juvenile understands the

       implications of the plea. Like the language in Crim. R. 32(A)(1), the use of

       the word “shall” connotes the imposition of a mandatory obligation on the

       court which cannot be waived by a failure to object. We, therefore, conclude

       that appellant has not waived all but plain error by his failure to object, and

       the appropriate standard of review to apply is that set forth in In re C.S.:

       whether the trial court substantially complied with Juv. R. 29(D), meaning

       that under the totality of the circumstances, the appellant subjectively

       understood the implications of his plea. In re C.S. at ¶ 113.

       {¶12} In re David G., 5th Dist. Stark No. 2008 CA 00243, 2008 CA 00244, 2009-

Ohio-4002, ¶34, citing In re C.S., supra.

       {¶13} Therefore, in the instant case appellant need not demonstrate plain error,

and the issue before us is whether the trial court substantially complied with Juv. R. 29(D),
Licking County, Case No. 16-CA38                                                           6


meaning whether, under the totality of the circumstances, appellant subjectively

understood the implications of his plea.

       {¶14} The State argues that pursuant to our decision in Argo, the trial court did

substantially comply with Juv. R. 29(D), as when a defendant is represented by counsel,

there is a presumption that counsel explained the nature of the offense in sufficient detail

to give the accused notice of what he is being asked to admit. However, once again we

implicitly overruled this portion of Argo in our later decision in In re David G., holding as

follows:

              We further reject the state's claims that we can infer appellant

       understood the charges against him and the rights he was waiving because

       he was represented by counsel and signed a written waiver form.

       Representations by the defendant's attorney that the juvenile understood

       the rights waived and the consequences of the plea are not enough to

       demonstrate a voluntary and knowing waiver. In re Flynn (1995), 101 Ohio

       App.3d 778, 783, 656 N.E.2d 737. A written waiver form is not a substitute

       for the court's duty to personally address the juvenile. In re Royal (1999),

       132 Ohio App.3d 496, 504, 725 N.E.2d 685.

       {¶15} In re David G., supra, ¶38.

       {¶16} In the instant case, the court failed to inform appellant of the probation rule

he was alleged to have violated or of the conduct underlying the complaint to revoke his

probation. The record does not demonstrate that appellant was subjectively aware of the

substance of the complaint or the nature of the allegations. While counsel represented

that she had a chance to speak to appellant about the motion, when the court asked
Licking County, Case No. 16-CA38                                                      7


appellant if he understood the possible punishments that could result from the probation

violation, he responded that he did not. Tr. 4/27/16 hearing, p. 9. The record does not

demonstrate that the court substantially complied with Juv. R. 29(D) in accepting

appellant’s admission.

       {¶17} The first assignment of error is sustained.

                                               II.

       {¶18} Appellant’s second assignment of error is rendered moot by our disposition

of his first assignment of error.

       {¶19} The judgment of the Licking County Common Pleas Court, Juvenile

Division, is reversed.    This case is remanded to that court for further proceedings

according to law, consistent with this opinion. Costs are assessed to appellee.

By: Baldwin, J.

Farmer, P.J. and

Gwin, J. concur.
