In Re Predmore

187 Ohio App.3d 100

931 N.E.2d 181

In re PREDMORE, Appellant. (Three cases.)

Nos. 8-09-03, 8-09-04 and 8-09-05.

Court of Appeals of Ohio,Third District, Logan County.

Decided April 12, 2010.

COPYRIGHT MATERIAL OMITTED.

Elizabeth R. Miller, for appellant.

Deborah K. Wolf, for appellee.

ROGERS, Judge.

{¶ 1} Appellant, Cody Predmore, appeals the judgment of the Court of Common Pleas of Logan County, Domestic Relations-Juvenile-Probate Division, adjudicating him a delinquent child and ordering him to serve a six-month minimum commitment at the Department of Youth Services (“DYS”) and two 90-day commitments at the Juvenile Detention Center (“JDC”), suspended on the condition that he comply with all court orders upon his release from DYS. Additionally, Predmore appeals the judgment of the Court of Common Pleas of Marion County, Domestic Relations-Juvenile-Probate Division, adjudicating him a delinquent child. In this consolidated appeal, Predmore contends that the trial court violated his right to counsel and to due process; that his admission to delinquency was not knowing, intelligent, and voluntary; that the trial court erred in failing to appoint him a guardian ad litem; that the trial court violated his right to due process when it adjudicated him delinquent of burglary absent proof of every element of the charge against him by sufficient, competent, and credible evidence; and that he was denied effective assistance of counsel. Based upon the following, we affirm Predmore's adjudication as a delinquent child for burglary and six-month minimum commitment to DYS and his adjudication as a delinquent child for illegal possession of drug paraphernalia and one 90-day commitment to JDC, but we reverse his adjudication as a delinquent child for petty theft and the other 90-day commitment to JDC.

I. Case No. 8-09-04

{¶ 2} In October 2007, in case No. 8-09-04, ¹ the Court of Common Pleas of Marion County, Domestic Relations-Juvenile-Probate Division (“Marion County court”), held a detention hearing pursuant to Juv.R. 7. The hearing arose from the Marion County police department's filing of a complaint alleging that Predmore was a delinquent on one count of illegal possession of drug paraphernalia in violation of R.C. 2925.14(C)(1), a misdemeanor of the fourth degree if committed by an adult. The complaint related to an incident during which police discovered a marijuana bong in a vehicle in which Predmore had been riding.

{¶ 3} At the hearing, Predmore and his father, Daniel Predmore, signed a record of statement of rights that stated “We, ______ and Dan, Parents, and Cody Predmore hereby acknowledge being advised of the foregoing items. We wish to: ___ 1) Talk to an Attorney before going further. ___ 2) I am presently represented by __________. ___ 3) We wish t[sic] have an Attorney appointed by the Court. ___ 4) We, ________ and ________ and Cody Predmore having been advised of our right to legal counsel on this 23rd day of October 2007, and (do) or (do not) desire the services of an Attorney, and (do) or (do not) knowingly waive the same.” None of the blanks were completed or checked to indicate Predmore's and his father's preferences regarding counsel.

{¶ 4} In December 2007, the Marion County court transferred the case to the Court of Common Pleas of Logan County, Domestic Relations-Juvenile-Probate Division (“Logan County court”).

{¶ 5} In January 2008, the case came before the Logan County court for an initial hearing. Prior to the hearing, Predmore and his father signed a form that enumerated the rights available upon denial of the offense: the right to an attorney, right to request an attorney at any stage in the proceedings, the right to remain silent, the right to court-appointed counsel when indigent, the right to cross-examine the state's witnesses, and the right to subpoena witnesses to testify on one's behalf. Additionally, Predmore indicated on the form that he denied the allegation.

{¶ 6} In March 2008, the Logan County court transferred the case to the Marion County court for adjudication.

{¶ 7} In July 2008, the Marion County court held a hearing, ² during which Predmore and his father signed another form entitled “Record of Statement of Rights,” which advised them that, among other things, he had a right to appointed counsel. The form reflected that the magistrate had read Predmore the statement of rights. However, the boxes reflecting elections pertaining to counsel were unchecked. Thereafter, the Marion County Court filed a judgment entry reflecting that Predmore had waived counsel and admitted to illegal use or possession of drug paraphernalia, a misdemeanor of the fourth degree if committed by an adult. Additionally, the trial court transferred the case back to Logan County for disposition.

{¶ 8} In August 2008, the Logan County court, at a combined hearing for case Nos. 8-09-04, 8-09-03, and 8-09-05, held the dispositional hearing in case No. 8-09-04. However, the trial court elected to continue disposition of case No. 8-09-04 until December 2008 for a combined dispositional hearing for all three cases.

{¶ 9} In December 2008, the case proceeded to the dispositional hearing on all three cases. In case No. 8-09-04, the trial court ordered Predmore to serve a 90-day term in JDC, suspended on the condition that he “compl[y] with all orders of the court upon his release from the ODYS.”

II. Case No. 8-09-03

{¶ 10} In January 2008, in case No. 8-09-03, ³ the Logan County police department filed a complaint alleging that Predmore was a delinquent on one count of petty theft in violation of R.C. 2913.02(A)(1), a misdemeanor of the first degree if committed by an adult. The complaint arose from an incident during which Predmore allegedly took a DVD player and speakers from his mother's home and attempted to sell them to a neighbor. Thereafter, at the initial hearing on the complaint, Predmore and his father signed a form advising them in part:

The young person has a right to an attorney, the right to request an attorney at any stage of the proceedings, the right to remain silent, the right to court appointed counsel in appropriate cases where indigent, the right to cross-examine the prosecutor's witnesses, in addition to the right to subpoena witnesses of their own to testify on their behalf. Upon request, the juvenile also has a right to a record of all proceedings at public expense, if indigent * * *

Additionally, Predmore indicated on the form that he denied that the allegations made were true.

{¶ 11} In August 2008, at the combined hearing, the trial court held the adjudicatory hearing in case No. 8-09-03.

{¶ 12} Virginia Gammell, Predmore's mother, testified that her surround sound and DVD player were missing; that a family friend in the home mentioned he had seen Predmore leave the home with “something silver”; that she never gave Predmore permission to remove the items from the home; and that she contacted law-enforcement officers, who recovered the property from an adjacent apartment. Officer Jason Lapp of the Bellefontaine police department testified that he investigated the incident and the neighbor informed him that Predmore had attempted to sell him the equipment missing from Gammell's home.

{¶ 13} After the close of testimony, the trial court found that Predmore was guilty beyond a reasonable doubt of petty theft in violation of R.C. 2913.02(A)(1), a misdemeanor of the first degree if committed by an adult, and adjudicated him a delinquent child.

{¶ 14} In December 2008, at the combined dispositional hearing, the trial court ordered Predmore to serve a 90-day term in JDC, suspended on the condition that he comply with “all orders of the court upon his release from the ODYS.”

III. Case No. 8-09-05

{¶ 15} In June 2008, in case No. 8-09-05, ⁴ the Logan County Police Department filed a complaint alleging that Predmore was delinquent on one count of burglary in violation of R.C. 2911.12(A)(4), a felony of the fourth degree if committed by an adult. The complaint arose from an incident during which Predmore allegedly entered an elderly woman's home without her permission.

{¶ 16} In August 2008, at the combined hearing, the trial court held the initial hearing in case No. 8-09-05. The trial court addressed case No. 8-09-05 first, engaging in the following colloquy with Predmore and his father:

THE COURT: All right. Let's deal with the initial appearance first. Do you understand your rights?

[PREDMORE]: Yes, sir.

THE COURT: Did anybody discuss those with you?

[PREDMORE]: Yes, sir.

THE COURT: Tell me what you believe your rights are.

[PREDMORE]: I have the right to speak, get an attorney.

THE COURT: Okay. At an initial appearance, your Rule 5 rights include, among other things, that you will be advised of the nature of the charge against you. * * * You have the right to an attorney, and you have a right for a reasonable continuance in the proceedings to secure counsel. And pursuant to Criminal Rule 4, you have a right to have counsel assigned to you without cost if you're unable to employ counsel. You, further, have a right to make no statement, and any statement made may be used against you. Two other provisions of Rule 5 if you are an adult that would apply would be the requirement of a preliminary hearing * * * and, further, you would have a right in the adult court to a jury trial. * * * Do you have any questions about those rights?

[PREDMORE]: No, sir.

* * *

THE COURT: You have both your mom and dad here?

[PREDMORE]: Yes, sir.

* * *

THE COURT: * * * All right. Do you understand your rights to counsel in this case?

[PREDMORE]: Yes, sir.

THE COURT: What do [sic] wish to do with regard to the attorney?

[PREDMORE]: I don't understand what you're saying.

THE COURT: Statute gives you a right to have counsel involved. This is a serious felony, or would be a felony. Have you had any discussion with your dad or your mother about that?

[PREDMORE]: No, sir.

THE COURT: Dad, do you...