[Cite as In re Keeling, 2010-Ohio-1713.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

ALLEN COUNTY 

 

IN RE: 

 CASE NO. 1-09-51 

 DUSTIN KEELING, 

ADJUDICATED DELINQUENT O P I N I O N 

CHILD - APPELLANT. 

 

Appeal from Allen County Common Pleas Court 

Juvenile Division 

Trial Court No. 09 JG 26494 

Judgment Reversed and Cause Remanded 

Date of Decision: April 19, 2010 

 

APPEARANCES: 

Elizabeth R. Miller for Appellant 

Christina L. Steffan for Appellee 
Case No. 1-09-51 

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ROGERS, J. 

 

{¶1} Defendant-Appellant, Dustin Keeling, appeals the judgment of the 

Court of Common Pleas of Allen County, Juvenile Division, adjudicating him a 

delinquent child, ordering him to serve a minimum period of one year and a 

maximum period not to exceed his twenty-first birthday at the Ohio Department of 

Youth Services (hereinafter “DYS”), and ordering him to pay $531 in restitution. 

On appeal, Keeling argues that his admission to the charge of delinquency was not 

knowing, intelligent, and voluntary; that the trial court abused its discretion in 

failing to consider community service prior to ordering him to pay a financial 

sanction; and, that he was denied effective assistance of counsel. Finding that 

Keeling’s admission was not knowing, intelligent, and voluntary, we reverse the 

judgment of the trial court and remand for further proceedings consistent with this 

opinion. 

{¶2} In May 2009, the Allen County Sheriff’s Office filed a complaint 

alleging that Keeling was a delinquent child on one count of burglary in violation 

of R.C. 2911.12(A)(2), a felony of the second degree if committed by an adult. 

The complaint arose from an incident during which Keeling entered the residence 

of a neighbor, Brandon Daniels, and removed a total of approximately $962 to 

$972 in cash from a bank bag, the kitchen counter, and a vehicle parked in the 

garage. Subsequently, Keeling entered a denial to the allegations. 
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{¶3} In June 2009, the trial court appointed Keeling counsel. 

{¶4} In July 2009, the trial court held an adjudicatory hearing at which 

Keeling withdrew his prior denial of the offense and entered an admission to 

burglary pursuant to a plea agreement. In exchange, the State agreed to 

recommend his commitment to a juvenile residential center in lieu of DYS. The 

transcript reflects that the following colloquy took place: 

[Trial Court]: Do you understand that part of [the plea] 

agreement includes that you would be entering an admission to 

the charge of delinquency by reason of burglary, a felony of the 

second degree? 

[Keeling]: I do, sir. 

[Trial Court]: That means there won’t be a trial? 

[Keeling]: Yes, sir. 

[Trial Court]: You’re giving up your right to cross examine 

witnesses. You’re giving up your right to challenge any 

evidence. You’re giving up your right to present evidence on 

your own behalf, and you’re giving up your right to remain 

silent. Do you understand all of that? 

[Keeling]: Yes, sir. 

[Trial Court]: Do you also understand, as I think the attorneys 

have made clear, that this is a recommendation the prosecutor is 

going to make. Apparently the Department of Youth Services is 

also going to make that recommendation. The ultimate 

dispositional order is going to be up to the Court? 

[Keeling]: Yes, sir. 

* * 

[Trial Court]: Dustin, I need to ask then, at this time, do you 

now plead . . . how do you now plead to the charge of the 

delinquency by reason of burglary, a felony of the second degree. 

[Keeling]: Admission. 

[Trial Court]: Are you entering the admission voluntarily? 

[Keeling] Yes, sir. 
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[Trial Court]: No one promised you anything or threatened you 

in any way to enter the admission other than the agreement that 

the attorneys just outlined to the Court. Is that correct? 

[Keeling]: Yes. 

[Trial Court]: And you’re entering the admission, then, simply 

because what it says there in the complaint is true. 

[Keeling]: Yes, sir. 

(July 2008 Adjudicatory Hearing Tr., pp. 9-11). 

{¶5} Thereafter, the trial court accepted Keeling’s plea and the State 

recited the following facts: 

[The State]: * * * On or about May 11, 2009, here in Allen 

County, Ohio, the defendant went into his neighbor’s house at 

11635 Reservoir Road and took out of it a bank bag which 

contained within it approximately $830. This was inside their 

residence . . . the residence of Brandon Daniels and Shelly 

Daniels. He went inside their home without permission and took 

the $8301

 and left. He spent an unknown amount of money and 

ended up returning roughly $400. $431. 

(July 2008 Adjudicatory Hearing Tr., p. 11). 

{¶6} Thereafter, the trial court found Keeling to be a delinquent child 

beyond a reasonable doubt. Later that month, the trial court held a hearing on the 

issue of restitution, to which Keeling did not object. 

{¶7} In August 2009, the trial court held a dispositional hearing and 

ordered Keeling to pay $531 in restitution to Daniels, representing the amount 

Keeling took reduced by the amount recovered by law enforcement. Additionally, 

 

1

 At the July 2009 restitution hearing, the victim testified that a total of approximately $962 to $972 was 

taken from the residence including from the bank bag, the kitchen counter, and a vehicle in the garage. 
Case No. 1-09-51 

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the trial court ordered Keeling to serve at DYS a minimum period of one year and 

maximum period not to exceed his twenty-first birthday. 

{¶8} It is from this judgment that Keeling appeals, presenting the 

following assignments of error for our review. 

Assignment of Error No. I 

DUSTIN K.’S ADMISSION TO THE DELINQUENCY 

CHARGE WAS NOT KNOWING, INTELLIGENT, AND 

VOLUNTARY IN VIOLATION OF THE FIFTH AND 

FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION, ARTICLE I, SECTIONS 10 AND 16 OF 

THE OHIO CONSTITUTION, AND JUVENILE RULE 29. 

(ADJUDICATION, T.PP. 9-10). 

Assignment of Error No. II 

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT 

KNEW DUSTIN K. WAS INDIGENT AND FAILED TO 

CONSIDER COMMUNITY SERVICE PRIOR TO 

ORDERING HIM TO PAY FINANCIAL SANCTIONS, IN 

VIOLATION OF R.C. 2152.20(D). (DISPOSITION, T.PP. 2-8); 

(A-3). 

Assignment of Error No. III 

DUSTIN K. WAS DENIED THE EFFECTIVE ASSISTANCE 

OF COUNSEL IN VIOLATION OF THE SIXTH AND 

FOURTEENTH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION; SECTION 10, ARTICLE I OF THE OHIO 

CONSTITUTION. (RESTITUTION, T.PP. 3-36); 

(DISPOSITION, T.PP. 2-8); (A-2—A-5). 

{¶9} Due to the nature of Keeling’s arguments, we elect to address his 

second and third assignments of error together. 
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Assignment of Error No. I 

{¶10} In his first assignment of error, Keeling argues that his admission to 

the delinquency allegation was not knowing, intelligent, and voluntary 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. Specifically, 

Keeling asserts that the trial court did not even minimally comply with Juv.R. 

29(D)(1), claiming that it failed to ensure that he understood the nature of the 

burglary allegation prior to accepting his admission; that the trial court failed to 

ascertain whether he understood the consequences of his admission, specifically 

that he could be committed to DYS for a minimum period of one year and 

maximum period up to his twenty-first birthday; and, that the trial court failed to 

advise him that he could be ordered to pay restitution and court costs, or that, 

alternately, the court could impose a term of community service in lieu of financial 

sanctions. 

{¶11} The State responds that the record demonstrates Keeling understood 

the nature of the allegation because after he entered his admission, the State 

recited the facts of the offense, and Keeling then admitted he committed the acts 

recited. The State contends that, had Keeling denied the State’s recitation of the 

facts or given a conflicting version of events, the trial court would have sua sponte 

withdrawn his admission and set the matter for a hearing. Further, the State argues 
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that Keeling was aware of the consequences of his admission because there was a 

lengthy discussion at the beginning of the hearing between the State, trial counsel, 

and the trial court concerning the State’s recommendation that Keeling be sent to a 

juvenile residential center; because Keeling was on parole at the time of the 

hearing and had already served time at DYS; because the trial court had advised 

him that, despite the State’s recommendation that he be sent to a juvenile 

residential center, the final disposition was in the trial court’s discretion; and, 

because the trial court indicated early in the hearing that there would be a 

restitution hearing. 

{¶12} Juv.R. 29(D) provides, in pertinent part: 

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 admissions; 

(2) The party understands that by entering an admission the 

party is waiving the right to challenge the witnesses and 

evidence against the party, to remain silent, and to introduce 

evidence at the adjudicatory hearing. 

{¶13} An admission in a juvenile proceeding, pursuant to Juv.R. 29, is 

analogous to a guilty plea made by an adult pursuant to Crim.R. 11 in that both 

require a trial court to personally address the offender on the record with respect to 

the issues set forth in the rules. In re Messmer, 3d Dist. No. 16-08-03, 2008-Ohio-
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4955, ¶9, citing In re Smith, 3d Dist. No. 14-05-33, 2006-Ohio-2788, ¶13, citing In 

re C.K., 8th Dist. No. 79074, 2002-Ohio-1659; In re Royal (1999), 132 Ohio 

App.3d 496, 504; In re Jenkins (1995), 101 Ohio App.3d 177, 179. Both Crim.R. 

11 and Juv.R. 29 require the respective courts to make careful inquiries in order to 

ensure that the guilty plea or admission is entered voluntarily, intelligently, and 

knowingly. Id., citing In re Smith, 2006-Ohio-2788, at ¶13, citing In re Flynn

(1995), 101 Ohio App.3d 778, 781; In re McKenzie (1995), 102 Ohio App.3d 275, 

277. “‘In order to satisfy the requirements of [Juv.R. 29], the court must address 

the youth personally and conduct an on-the-record discussion to determine 

whether the admission is being entered knowingly and voluntarily.’” Id., quoting 

In re Smith, 2006-Ohio-2788, at ¶13, quoting In re West (1998), 128 Ohio App.3d 

356, 359. Juv.R. 29(D) also places an affirmative duty upon the juvenile court to 

personally address the juvenile and determine that the juvenile, and “not merely 

the attorney, understands the nature of the allegations and the consequences of 

entering the admission.” Id., quoting In re Smith, 2006-Ohio-2788, at ¶13, citing 

In re Beechler (1996), 115 Ohio App.3d 567, 571. 

{¶14} The best method for assuring compliance with Juv.R. 29(D) is for a 

court to use the language of the rule, “carefully tailored to the child’s level of 

understanding, stopping after each right and asking whether the child understands 

the right and knows he is waiving it by entering an admission.” Id., quoting In re 
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Miller (1997), 119 Ohio App.3d 52, 58, citing State v. Ballard (1981), 66 Ohio 

St.2d 473. Although strict compliance with Juv.R. 29(D) is preferred in a juvenile 

delinquency case, the Supreme Court of Ohio has required only “substantial 

compliance” with the rule in accepting a juvenile’s admission. Id., quoting In re 

C.S., 115 Ohio St.3d 267, 2007-Ohio-4919, ¶113. In the context of juvenile 

delinquency proceedings, “‘[s]ubstantial compliance means that in the totality of 

the circumstances, the juvenile subjectively understood the implications of his 

plea.’” Id., quoting In re C.S., 115 Ohio St.3d 267, at ¶113. Failure of a juvenile 

court to substantially comply with Juv.R. 29(D) has a prejudicial effect 

necessitating a reversal of the adjudication so that the juvenile may plead anew. 

Id., citing In re C.S., 115 Ohio St.3d 267, at ¶112; In re Smith, 2006-Ohio-2788, at 

¶14, citing In re Doyle (1997), 122 Ohio App.3d 767, 772. 

{¶15} In order to substantially comply with Juv.R. 29(D)(1), courts have 

found that “[a] defendant need not be informed of every element of the charge 

brought against him, but he must be made aware of the ‘circumstances of the 

crime.’” In re Wood, 9th Dist. No. 04CA0005-M, 2004-Ohio-6539, ¶18, quoting 

State v. Lane, 11th Dist. Nos. 97-A-056, 97-A-0057, 97-A-0058, 1999 WL 

1080329. Additionally, courts have found that there is a presumption, where a 

defendant is represented by counsel, that counsel informed the defendant of the 

nature of the charge. In re Wood, 2004-Ohio-6539, at ¶18, citing In re Argo, 5th 
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Dist. No. CT2003-055, 2004-Ohio-4938, ¶32. Further, courts have found that 

there is a presumption where a complaint is served on a defendant that he is 

apprised of the nature of the charge contained in the complaint. Id., citing Bousley 

v. U.S. (1998), 523 U.S. 614, 618. 

{¶16} In In re S.M., 8th Dist. No. 91408, 2008-Ohio-6852, the Eighth 

Appellate District found that a trial court did not substantially comply with Juv.R. 

29(D)(1) where, although the trial court reviewed the rights the juvenile waived in 

accordance with Juv.R. 29(D)(2), the trial court did not review the elements of the 

felonious assault offense or inquire as to whether he understood the nature of the 

offense prior to accepting his admission. This was so even though the prosecutor 

recited the evidence that would constitute the felonious assault offense at the trial 

court’s direction, in the juvenile’s presence, and prior to the trial court’s 

acceptance of the juvenile’s admission. See In re S.M., 2008-Ohio-6852, at ¶¶33, 

35 (Dyke, J., dissenting). Additionally, the Eighth Appellate District has found 

that a trial court did not substantially comply with Juv.R. 29(D)(1) where it failed 

to inform the juvenile of his possible term of commitment prior to accepting his 

admission. See In re Holcomb, 147 Ohio App.3d 31, 2002-Ohio-2042. See, also, 

In re Pritchard, 5th Dist. No. 2001 AP 080078, 2002-Ohio-1664 (finding no 

substantial compliance with Juv.R. 29(D)(1) where trial court thoroughly reviewed 

the rights that the juvenile would waive upon entering her admission, but did not 
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review the charge with the juvenile or discuss the possible penalties it could 

impose); In re Jones, 4th Dist. No. 99 CA 4, 2000 WL 387727 (finding no 

substantial compliance with Juv.R. 29(D)(1) where the trial court did not explain 

the charge, ask the juvenile whether he understood the charge, or inform him of 

the maximum sentence it could impose prior to accepting his admission); In re 

Beechler, supra (finding no substantial compliance with Juv.R. 29(D)(1) where the 

trial court recited the juvenile’s constitutional rights, but did not determine 

whether he understood the nature of the charges or the consequences of an 

admission to the charges). 

{¶17} In light of the preceding, we find that the trial court did not 

substantially comply with the requirements of Juv.R. 29(D)(1). Here, the record 

reflects that the trial court did not explain the nature or elements of the burglary 

charge and did not ask Keeling whether he understood the charge. Further, 

although the State argues that the prosecutor recited the facts underlying the 

burglary charge after Keeling entered his admission, we note that the Fourth 

Appellate District has found that “[t]he provisions of Juv.R. 29(D) specify that the 

juvenile must be made aware of the consequences of his admission before that 

admission is accepted. A trial court cannot retroactively cure its omission under 

this rule by informing the juvenile after the fact.” In re Jones, supra; see, also, In 

re S.M., supra. 
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{¶18} Additionally, even assuming arguendo that Keeling’s trial counsel 

and the complaint sufficiently apprised him of the nature of the charge, as urged 

by In re Wood and Argo, supra, the record reflects that the trial court also failed to 

explain the consequences of entering an admission to the burglary charge. The 

State urges us to assume that Keeling was aware of the consequences due to 

discussion between the trial court, the State, and trial counsel concerning the 

State’s recommendation that Keeling be sent to a juvenile residential center; 

because Keeling was on parole at the time of the hearing and had already served 

time at DYS; and, because the trial court warned Keeling that, despite any 

recommendation, the final disposition was in its discretion. However, we cannot 

find that substantial compliance was present here. Juv.R. 29(D) requires that the 

trial court “refuse to accept an admission and shall not accept an admission 

without addressing the party personally” and determining that he understands the 

consequences of the admission. (Emphasis added). See, also, In re Smith, 2006-

Ohio-2798, at ¶13. Thus, we cannot find that a discussion held between the trial 

court, trial counsel, and the State as to the possible consequences satisfies the 

express requirements of Juv.R. 29(D)(1). Further, although the trial court 

informed Keeling that the final disposition was in the trial court’s discretion, we 

cannot find that this advisement was sufficient to relay the possible consequences 
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of an admission, as it conveyed no possible range of sentences or mention of 

commitment to DYS. See Jones, supra. 

{¶19} Accordingly, we find that the trial court failed to determine that 

Keeling’s admission to burglary was knowing, intelligent, and voluntary in 

accordance with Juv.R. 29(D), and we sustain Keeling’s first assignment of error. 

Assignments of Error Nos. II & III 

{¶20} In his second assignment of error, Keeling argues that the trial court 

abused its discretion because it knew that he was indigent, but failed to consider 

imposing community service in lieu of financial sanctions in violation of R.C. 

2152.20(D). Specifically, Keeling argues that he filed an affidavit of indigency in 

order to obtain court appointed counsel, but that, despite his demonstrated 

indigency, nothing in the record, including the transcript and judgment entry, 

demonstrates that the trial court considered imposing community service before 

ordering him to pay restitution. 

{¶21} In his third assignment of error, Keeling argues that he was denied 

effective assistance of counsel in violation of the Sixth and Fourteenth 

Amendments to the United States Constitution and Section 10, Article I of the 

Ohio Constitution. Specifically, Keeling argues that his trial counsel was 

ineffective because she allowed him to admit to the burglary allegation without 

first ensuring that he understood the nature of the allegations and the consequences 
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of entering an admission; because she was aware of his indigent status, yet failed 

to object to the trial court’s imposition of financial sanctions without first 

considering community service; because she failed to familiarize herself with R.C. 

2152.18 and informed the trial court that she did not know if Keeling was entitled 

to detention credit toward his term in DYS for the burglary offense; and, because 

she failed to “zealously advocate” for Keeling at disposition because she did not 

suggest to the court any alternative dispositions to DYS. 

{¶22} Our disposition of Keeling’s first assignment of error renders his 

second and third assignments of error moot, and we decline to address them. 

App.R. 12(A)(1)(c). 

{¶23} Having found error prejudicial to the appellant herein, in the 

particulars assigned and argued in the first assignment of error, we reverse the 

judgment of the trial court and remand for further proceedings consistent with this 

opinion. 

Judgment Reversed and 

 Cause Remanded 

WILLAMOWSKI, P.J. and PRESTON, J., concur. 

/jlr