[Cite as In re J.D., 2020-Ohio-3225.]




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




IN RE:
                                                          CASE NO. 13-19-51
        J.D.,
                                                          OPINION
A MINOR CHILD.




                  Appeal from Seneca County Common Pleas Court
                                 Juvenile Division
                             Trial Court No. 21720127

                       Judgment Reversed and Cause Remanded

                               Date of Decision: June 8, 2020




APPEARANCES:

        Lauren Hammersmith for Appellant

        Eleanor J. Anderson for Appellee
Case No., 13-19-51


SHAW, P.J.

           {¶1} Appellant J.D., a delinquent child, appeals the November 25, 2019

judgment of the Seneca County Court of Common Pleas, Juvenile Division,

overruling his Motion to Vacate Void Adjudication. On appeal, J.D. argues the trial

court erred in determining that his motion was an untimely petition for post-

conviction relief and as such, also erred in concluding that it did not have

jurisdiction to entertain the motion. J.D. further argues that his adjudication for

statutory rape is unlawful under the holding by the Supreme Court of Ohio in In re

D.B., 129 Ohio St. 3d 104, 2011-Ohio-2671.

                              Relevant Facts and Procedural History

           {¶2} On April 6, 2017, the State filed a delinquency complaint alleging that

J.D. committed the offense of statutory rape, in violation of R.C. 2907.02(A)(1)(b),

a first degree felony if committed by an adult.1 Specifically, the complaint alleged

that J.D. engaged in sexual conduct with a nine-year-old child on multiple occasions

in the fall of 2016. J.D. was twelve-years-old at the time the allegations in the

complaint occurred.



1
    Section 2907.02(A)(1)(b) of the Revised Code states:

           (A)(1) 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:
           ***
            (b) The other person is less than thirteen years of age, whether or not the offender
           knows the age of the other person.

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       {¶3} On April 28, 2017, J.D. entered an admission to the statutory rape

charge. The trial court accepted the admission and found J.D. to be a delinquent

child. The trial court imposed a one-year commitment to the Department of Youth

Services (“DYS”) suspended upon J.D.’s compliance with certain conditions.

Specifically, the trial court placed J.D. on probation and ordered him to participate

in and successfully complete a sex offender treatment program at the Northern Ohio

Juvenile Community Corrections Facility.

       {¶4} On March 25, 2019, the State filed a motion requesting the trial court

impose J.D.’s suspended DYS commitment for violating his probation based upon

his unsuccessful discharge from sex offender treatment programs at several juvenile

facilities. The next day, the trial court conducted a hearing on the matter. J.D.

entered an admission to the probation violation. The trial court held in abeyance its

ruling on the State’s motion to invoke J.D.’s suspended DYS commitment to give

J.D. a “last chance” opportunity to complete the required program.

       {¶5} On June 14, 2019, the trial court was notified of J.D.’s failure to

successfully complete the court-ordered program. The trial court conducted an

evidentiary hearing on the State’s motion to invoke J.D.’s suspended DYS

commitment. The trial court heard testimony from several witnesses involved with

J.D. at various juvenile facilities. They each established that J.D.’s persistent




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disruptive behavior, insubordination, and non-compliance all contributed to his

unsuccessful discharges from the sex offender treatment programs at their facilities.

        {¶6} On June 19, 2019, the trial court issued a judgment entry finding that

J.D. had violated his probation by failing to complete the sex offender treatment

program and imposed J.D.’s suspended commitment to DYS. The trial court

ordered that J.D. must complete the sex offender treatment program at DYS prior to

his release.

        {¶7} On October 23, 2019, J.D. filed a Motion to Vacate Void Adjudication.2

In this motion, J.D. argued that the trial court’s April 28, 2017 Judgment Entry

adjudicating him delinquent by reason of statutory rape in violation of R.C.

2907.02(A)(1)(b) is unlawful because approximately six years prior to the

commission of the acts alleged in the delinquency complaint and the Juvenile

Court’s subsequent adjudication thereon, the Supreme Court of Ohio had ruled that

a child under the age of 13 years of age may not be adjudicated delinquent for

violating R.C. 2907.02(A)(1)(b). In re D.B., 129 Ohio St.3d 104, 2011-Ohio-2671.

        {¶8} The Supreme Court of Ohio’s 2011 decision in In re D.B. involved a

12-year-old child who was found to be delinquent by reason of committing the




2
  Counsel for J.D. initially filed a direct appeal from the trial court’s judgment entry of June 19, 2019
imposing the DYS commitment. However, the record reveals that counsel voluntarily dismissed that appeal
to pursue the Motion to Vacate Void Adjudication in the trial court.

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offense of statutory rape against another child under the age of 13 in violation of

R.C. 2907.02(A)(1)(b), which states 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:

       ***

       (b) The other person is less than 13 years of age, whether or not
       the offender knows the age of the other person.

       {¶9} The Supreme Court in D.B. held 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. In re D.B., 129 Ohio St.3d 104, 2011-Ohio-

2671, syllabus. In analyzing whether or not the 12 year old child’s due process

rights had been violated, the Supreme Court determined that:

       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.

Id. at ¶ 24.

       {¶10} The Supreme Court also concluded that the application of R.C.

2907.02(A)(1)(b) violated the equal protection clause because both children

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engaged in sexual conduct with a person under the age of thirteen, but only D.B.

was charged. D.B., 129 Ohio St.3d 104, 2011-Ohio-2671, at ¶ 31-32. Specifically,

the Supreme Court stated that under the plain language of the statute, “every person

who engages in sexual conduct with a child under the age of 13 is strictly liable for

statutory rape, and the statute must be enforced equally and without regard to the

particular circumstances of an individual’s situation.” Id. at ¶ 30. Thus, because

D.B. and the victim were both under the age of 13 at the time of the alleged offense,

the Supreme Court found that “they were both members of the class protected by

the statute, and both could have been charged under the offense. Application of the

statute in this case to a single party violates the Equal Protection Clause’s mandate

that persons similarly circumstanced shall be treated alike.” Id.

       {¶11} On November 18, 2019, the trial court held a hearing on J.D.’s motion

to vacate his adjudication.

       {¶12} On November 25, 2019, the trial court overruled the Motion to Vacate

Void Adjudication, finding that the motion was in effect an untimely petition for

post-conviction relief that failed to meet the requirements of R.C. 2953.21 and R.C.

2953.23. As a result, the trial court found that it was without jurisdiction to consider

the merits of the Motion to Vacate Void Adjudication.

       {¶13} J.D. filed this appeal, asserting the following assignments of error.

                        ASSIGNMENT OF ERROR NO. 1


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       THE SENECA COUNTY JUVENILE COURT ERRED WHEN
       IT DETERMINED THAT IT WAS WITHOUT JURISDICTION
       TO RULE ON J.D.’S REQUEST TO VACATE HIS VOID
       SENTENCE [SIC]. IN RE N.G., 3D DIST. HANCOCK NO. 5-13-
       35, 2014-OHIO-3190, ¶ 7; 11/25/2019 ENTRY.

                       ASSIGNMENT OF ERROR NO. 2

       THE SENECA COUNTY JUVENILE COURT ERRED WHEN
       IT DENIED J.D.’S MOTION TO VACATE HIS
       ADJUDICATION FOR STATUTORY RAPE UNDER R.C.
       2907.02(A)(1)(b) WHEN HE WAS UNDER THE AGE OF 13
       WHEN THE OFFENSES IN THIS CASE WERE ALLEGED TO
       HAVE OCCURRED. IN RE D.B., 129 OHIO ST.3D 104, 2011-
       OHIO-2671, 950 N.E.2D 525, ¶ 33.

                             First Assignment of Error

       {¶14} In his first assignment of error, J.D. argues that the trial court erred

when it elected to treat his Motion to Vacate Void Adjudication as an untimely

petition for post-conviction relief under R.C. 2953.21 and R.C. 2953.23, and

concluded that it lacked jurisdiction to rule on the merits.         In reaching this

determination, the trial court relied on a prior case from this Court, In the matter of

J.P., 3d Hancock No. 5-12-31, 2013-Ohio-1007.

       {¶15} In J.P., the juvenile offender (J.P.) filed a petition for post-conviction

relief in February of 2012 alleging that his 2005 adjudication for statutory rape in

violation R.C. 2907.02(A)(1)(b) was unconstitutional based upon the subsequently

released Supreme Court of Ohio’s 2011 decision In re D.B., 129 Ohio St.3d 104,

2011-Ohio-2671. J.P., 2013-Ohio-1007 at ¶ 7. We affirmed the trial court’s


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judgment dismissing J.P.’s petition for post-conviction relief on the basis that the

petition did not meet the criteria stated in R.C. 2953.23(A)(1).     These statutory

criteria must be established in order for the trial court to obtain jurisdiction to

entertain a post-conviction petition that has been filed after the expiration of the

prescribed statutory time limit, which in J.P.’s case would have been 180 days after

the trial transcript was filed with the court of appeals in the direct appeal from the

trial court’s 2005 judgment of disposition. Id. at ¶ 19.

       {¶16} Specifically, R.C. 2953.23(A)(1) states that:

       (A) Whether a hearing is or is not held on a petition filed
       pursuant to section 2953.21 of the Revised Code, a court may not
       entertain a petition filed after the expiration of the period
       prescribed in division (A) of that section or a second petition or
       successive petitions for similar relief on behalf of a petitioner
       unless division (A)(1) or (2) of this section applies:

            (1) Both of the following apply:

            (a) Either the petitioner shows that the petitioner was
            unavoidably prevented from discovery of the facts upon
            which the petitioner must rely to present the claim for relief,
            or, subsequent to the period prescribed in division (A)(2) of
            section 2953.21 of the Revised Code or to the filing of an
            earlier petition, the United States Supreme Court recognized
            a new federal or state right that applies retroactively to
            persons in the petitioner’s situation, and the petition asserts
            a claim based on that right.

            (b) The petitioner shows by clear and convincing evidence
            that, but for constitutional error at trial, no reasonable
            factfinder would have found the petitioner guilty of the
            offense of which the petitioner was convicted or, if the claim
            challenges a sentence of death that, but for constitutional

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Case No., 13-19-51


            error at the sentencing hearing, no reasonable factfinder
            would have found the petitioner eligible for the death
            sentence.

R.C. 2953.23(A)(1).

       {¶17} In his petition, J.P. did not allege any new factual evidence in his case,

but instead he claimed that a new state “right” had been recognized by the Supreme

Court of Ohio in D.B. J.P., 2013-Ohio-1007 at ¶ 15. However, we determined that

J.P. had failed to establish that the Supreme Court of Ohio’s holding in D.B. satisfied

the requirements of R.C. 2953.23(A)(1)(a) because it was not a new “right”

recognized by the United States Supreme Court, and there was also no indication

that D.B. was intended to be applied retroactively. Id. at ¶¶ 17-18. Accordingly,

we concluded that J.P. failed to meet the requirements to invoke the trial court’s

jurisdiction to entertain an untimely petition for post-conviction relief under R.C.

2953.21 and R.C. 2953.23.

       {¶18} There are several aspects of the instant case that distinguish it from

our prior case, J.P. At the outset, J.D. did not seek relief pursuant to R.C. 2953.21

and R.C. 2953.23. Moreover, at the time the complaint in this case was filed and

the trial court adjudicated J.D. delinquent in 2017, the Supreme Court had already

issued its decision in D.B. six years prior, rendering it unlawful for J.D. to be

adjudicated delinquent by reason of a violation of R.C. 2907.02(A)(1)(b).




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       {¶19} Although perhaps not articulated as specifically as it could be, it is

apparent that the Motion to Vacate Void Adjudication is challenging J.D.’s entry of

an admission, the trial court’s acceptance of that admission and subsequent

adjudication of delinquency to a statutory offense that the Supreme Court of Ohio

had already held cannot be a basis for such an adjudication. As such, the record in

this case demonstrates that beginning with the complaint itself, the entire process

underlying the trial court’s adjudication of J.D. as a delinquent child was fatally

flawed. Specifically, the parties and the trial court were all operating under a mutual

mistake of law when J.D. was charged with statutory rape in violation of R.C.

2907.02(A)(1)(b), when J.D. entered an admission to the unlawful charge, when the

trial court accepted J.D.’s admission, and when the trial court entered an

adjudication of delinquency thereon.

       {¶20} Juvenile Rule 29(D) states that a court “shall not accept an admission

without addressing the party personally and determining” that “[t]he party is making

the admission voluntarily with understanding of the nature of the allegations and the

consequences of the admission* * *.” Juv.R. 29(D)(1). Clearly, J.D.’s admission

to a statutory offense that the Supreme Court has deemed to be unconstitutional as

applied to him cannot be said to be voluntarily entered “with understanding of the

nature of the allegations and the consequences of the admission.” Id. Therefore,

we cannot conclude that Juv.R. 29(D) was complied with when J.D. entered and the


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Juvenile Court accepted his admission to statutory rape in violation of R.C.

2907.02(A)(1)(b), in direct contravention of the law as set forth in the Supreme

Court’s holding in D.B.

       {¶21} By way of analogy, we have recognized in the context of Crim. R.

32.1, when an adult offender files a motion to withdraw a guilty plea, that a

“manifest injustice” has occurred when the parties are under a mutual mistake of

law at the time the plea was entered. See State v. Youngpeter, 3d Dist. Van Wert

Nos. 15-04-09, 15-04-10, 2005-Ohio-329, ¶ 16 (“After reviewing the record, it

appears that there was a specific misunderstanding and mistake of law by the court

and the prosecution as to whether Youngpeter could be charged with violating the

protection order that she obtained against Roger Lewis. A fundamental error of this

nature is sufficient to constitute a manifest injustice under Crim.R. 32.1.”).

Moreover, we also have previously determined that a “specific misunderstanding

and mistake of law by court and counsel * * *, which is corroborated by the record,

is sufficient to void the plea and is therefore sufficient to constitute a manifest

injustice under Crim. R. 32.1.” State v. Cook, 3d Dist. Putnam No. 12-01-15, 2002-

Ohio-2846, ¶ 12.

      {¶22} In general, “[c]ourts may recast irregular motions into whatever

category necessary to identify and establish the criteria by which the motion should

be judged.” See State v. Schlee, 117 Ohio St.3d 153, 2008-Ohio-545, ¶ 12. We


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acknowledge that a motion to vacate might under certain circumstances be properly

characterized as a petition for post-conviction relief when it is filed subsequent to a

direct appeal (or the expiration of the time for filing a direct appeal), it claims the

denial of a constitutional right, it seeks to void a voidable judgment, and asks for

the vacation of the judgment and sentence. See id.; State v. Reynolds, 79 Ohio St.3d

158 (1997). “Where, on the other hand, the judgment is void, not voidable, the trial

court can act under its inherent authority to vacate the void judgment, and it need

not construe a motion to vacate as a petition for post-conviction relief.” State v.

Moore, 2d Dist. Clark No. 2013 CA 97, 2014-Ohio-4411, ¶ 13.

       {¶23} Here, the record establishes a fundamental error in the acceptance of

J.D.’s admission sufficient to render the admission and subsequent adjudication of

delinquency thereon void. Therefore, we find that J.D.’s motion does not fall within

the purview of R.C. 2953.21 and R.C. 2953.23. Accordingly, we believe it was

error for the trial court to dismiss J.D.’s Motion to Vacate Void Adjudication as an

untimely petition for post-conviction relief. Rather, we conclude that the record

demonstrated a legitimate basis for the trial court to consider the merits of the

motion as a motion to withdraw and/or vacate the admission under Juv.R. 29(D), as

we have just done. See In re D.D., 3d Dist. Putnam No. 12-18-19, 2019-Ohio-2073

(considering a motion to withdraw an admission under a Juv.R. 29(D) analysis).

For these reasons, we sustain the first assignment of error.


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                           Second Assignment of Error

       {¶24} In his second assignment of error, J.D. argues that the trial court

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

unconstitutional adjudication. Again, J.D. cites In re D.B., 129 Ohio St.3d 104,

2011-Ohio-2671, in support of his argument that his probation violation was based

on an unlawful underlying adjudication for statutory rape in violation of R.C.

2907.02(A)(1)(b). Based upon our discussion and disposition of the first assignment

of error, we agree. Accordingly, we also sustain the second assignment of error.

       {¶25} Based upon the foregoing, the assignments of error are sustained, the

judgment of the trial court is reversed and the cause is remanded for further

proceedings consistent with this opinion.

                                                          Judgment Reversed and
                                                               Cause Remanded

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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