[Cite as In re D.G., 2014-Ohio-650.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

ROSS COUNTY 

IN THE MATTER OF: : 

 : 

 D. G. : Case Nos. 13CA3382 

 : 13CA3383 

Adjudicated Delinquent Child : 

 : DECISION AND JUDGMENT 

 : ENTRY

 : 

 : Released: 02/19/14 

APPEARANCES:

Timothy Young, Ohio State Public Defender, and Charlyn Bohland, Assistant State 

Public Defender, Columbus, Ohio, for Appellant. 

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Robert C. Hess, 

Assistant Prosecuting Attorney, Chillicothe, Ohio, for Appellee. 

McFarland, J. 

{¶ 1} Appellant, D.G., appeals the trial court’s decisions that committed 

him to the Department of Youth Services (DYS) for a minimum period of six 

months and a maximum period not to exceed his 21st birthday. D.G. first argues 

that the magistrate erred by finding him competent to stand trial. D.G. failed to 

object to the magistrate’s competency determination. Thus, he waived all but plain 

error. Because the record contains some reliable and credible evidence to support 

the magistrate’s competency determination, the court did not plainly err by finding 

D.G. competent. 
Ross App. Nos. 13CA3382 and 13CA3383 2 

{¶ 2} D.G. next asserts that the court plainly erred by failing to appoint a 

guardian ad litem to represent his interests during the proceedings. He contends 

that Juv.R. 4(B) and R.C. 2151.281(A) required the court to appoint a guardian ad 

litem because his interests conflicted with those of his parents. We disagree. The 

record does not contain any suggestion that D.G’s parents held interests 

inconsistent with D.G.’s interests. Because the record fails to show a potential for 

conflict between D.G. and his parents, the trial court did not plainly err by failing 

to appoint a guardian ad litem. 

{¶ 3} D.G. additionally contends that his trial counsel was ineffective by 

stipulating to the competency evaluation and by failing to object to the magistrate’s 

competency determination. D.G. cannot establish that the result of the proceedings 

would be different if counsel had not stipulated to the evaluation or if counsel had 

objected. D.G. merely speculates that if trial counsel had not stipulated to the 

evaluation or had objected, the court would have found D.G. incompetent to stand 

trial. Speculation is not sufficient to establish an ineffective assistance of counsel 

claim. Thus, D.G.’s ineffective assistance of counsel argument is without merit. 

{¶ 4} Accordingly, we overrule D.G.’s three assignments of error and affirm 

the trial court’s judgment. 
Ross App. Nos. 13CA3382 and 13CA3383 3 

I. FACTS 

{¶ 5} This case involves a consolidated appeal from two juvenile court 

judgments that committed D.G. to the Department of Youth Services for a 

minimum period of six months and a maximum period not to exceed his 21st

birthday. 

A. Case Number 2011DEL208 

{¶ 6} On June 17, 2011, a complaint was filed that alleged D.G. was a 

delinquent child for committing domestic violence (case number 2011DEL0208). 

On June 20, 2011, the court appointed attorney Walter Bevins to act as D.G.’s 

counsel and guardian ad litem. 

{¶ 7} On August 16, 2011, the magistrate held a hearing regarding D.G.’s 

competency. The state and D.G. stipulated to the accuracy of the competency 

evaluation. The magistrate stated: “Based on the evaluation that has been 

stipulated into evidence[, t]he Court finds the child to be competent.” After the 

magistrate found D.G. competent, she asked D.G. if he thought that he could “get 

along at home.” D.G. responded affirmatively. The magistrate continued to 

question him: 

 “Q. Follow the rules at home? 

 A. Yeah. 

 Q. Stay out of trouble? 

 A. Yeah. 

 Q. Take your medication? 

 A. Yeah. 
Ross App. Nos. 13CA3382 and 13CA3383 4 

 Q. Do you know what happens if you don’t? 

 A. Yeah. 

 Q. What? 

 A. I go back to JDC.” 

After engaging in this conversation with D.G., the magistrate again stated that she 

found D.G. competent to stand trial. 

{¶ 8} On September 26, 2011, the magistrate held a hearing. The parties 

agreed that D.G. would admit to domestic violence. The magistrate questioned 

D.G. regarding his admission to the charge of domestic violence: 

 “[Q.] Mr. Gearhart you understand the charges of domestic violence? 

 [A.] Yes. 

 [Q.] States that * * * you did * * * knowingly cause attempt * * * 

attempt to cause physical harm to family or house hold [sic] member to wit. 

You bit your mother on the (undistinguishable) and that you have previously 

been * * * convicted of domestic violence in this Court. Do you understand 

that? 

 [A.] Not really. 

 [Q.] What don’t you understand? * * * 

 * * * * 

 [Q.] Look at me * * * you understand your charged with domestic 

violence which is * * * causing or attempting to cause physical harm to 

family or household member. In this case, it’s your mother. They state that 

you bit your mother on the hand. Do you understand that charge? 

 [A.] Alright. 

 [Q.] I’m sorry, I need a yes or no * * * did you bite your mother on 

the hand? 

 [A.] I guess. 

 [Q.] And you [have] been here before, for causing harm to a family or 

household member. 

 [A.] Yes. 

 [Q.] Ok. You understand that if you admit this charge that means 

there will not be a trial today. Do you understand that? 

 [A.] Yes.” 
Ross App. Nos. 13CA3382 and 13CA3383 5 

{¶ 9} The magistrate then asked D.G. whether he understood that she could 

place him in a juvenile facility or commit him to DYS. D.G. stated that he did not 

understand, so the magistrate questioned him: 

 “[Q.] What don’t you understand? You understand that I can take you 

away from your home and place you elsewhere? 

 [A.] No. 

 [Q.] Ok, well I’m telling you that now. Do you understand that, I can 

do that? 

 [A.] No. 

 [Q.] Tell me what you don’t understand. 

 [A.] I don’t know. 

 [Q.] Well look at me. You understand I can take you away from your 

parents, do you understand that? 

 [A.] No. 

 [Q.] You understand what it means? 

 [A.] No. 

 Q. How old are you * * *? 

 A. 14. 

 Q. 14, do you go to school at Roweton. 

 A. Yeah. 

 Q. * * * Can you read? 

 A. No. 

 Q. Can you write? 

 A. No. 

 * * * * 

 Q. Can you write your name? 

 A. Barely. 

 Q. Whether you do or you don’t, don’t play games with this. 

 A. I can write sometimes.” 

{¶ 10} The magistrate permitted D.G.’s attorney to question him about the 

domestic violence charge. The following exchange occurred: 

 “Q. State your name for the record. 

 * * * * 

 A. Zeek cotade. 
Ross App. Nos. 13CA3382 and 13CA3383 6 

 * * * * 

 Q. What [did] you say? 

 A. Zeek cotade. 

 Q. [D.G.] do you recall biting your mother? 

 A. No. 

 Q. You recall * * * [at]temping to set the house on fire? 

 A. No. 

 Q. Do you know what kind of medication you’re on today? 

 A. No.” 

{¶ 11} On September 27, 2011, the magistrate adjudicated D.G. a 

delinquent child for committing domestic violence. On October 21, 2011, the 

magistrate ordered that D.G. be committed to DYS for a minimum period of six 

months and a maximum period not to exceed his 21st birthday. The magistrate 

suspended the commitment and placed D.G. on probation. On that same date, the 

court adopted the magistrate’s decision 

B. Case Number 2012DEL0153 

{¶ 12} On April 25, 2012, a complaint containing two counts of domestic 

violence was filed (case number 2012DEL0153). On April 26, 2012, the court 

appointed attorney Bevins to act as counsel for D.G. The court did not appoint 

Bevins as guardian ad litem, and it did not appoint anyone else as D.G.’s guardian 

ad litem. 

{¶ 13} On June 1, 2012, the magistrate adjudicated D.G. a delinquent child 

for committing two acts of domestic violence. On July 12, 2012, the magistrate 

committed D.G. to DYS for a minimum of six months and a maximum period not 
Ross App. Nos. 13CA3382 and 13CA3383 7 

to exceed his 21st birthday. The magistrate suspended the commitment and placed 

D.G. on probation. On that same date, the trial court adopted the magistrate’s 

decision. 

C. Appeals 

{¶ 14} On March 26, 2013, D.G. filed notices of appeal from the trial 

court’s October 21, 2011 and July 12, 2012 judgments. D.G. argued that under the 

rule set forth in In re Anderson, 92 Ohio St.3d 63, 67, 748 N.E.2d 67 (2001), his 

time to appeal had not expired. D.G. asserted that the docket failed to indicate that 

D.G. was served with notice of the court’s October 21, 2011 judgment entry. 

{¶ 15} On March 14, 2013, this Court directed D.G. to address whether the 

court’s judgment entries constituted “separate and distinct” entries and thus final, 

appealable orders. 

{¶ 16} On March 25, 2013, appellant filed a motion that requested the trial 

court to issue final, appealable orders. 

{¶ 17} On March 26, 2013, the court committed D.G. to DYS for 

institutionalization in a secure facility for an indefinite term of a minimum period 

of six months and a maximum period not to exceed his 21st birthday. The court 

suspended the commitment and placed D.G. on probation. 

II. ASSIGNMENTS OF ERROR 
Ross App. Nos. 13CA3382 and 13CA3383 8 

{¶ 18} Appellant timely appealed the trial court’s judgments and raises 

identical assignments of error in each case: 

First Assignment of Error: 

The juvenile court abused its discretion when it found [D.G.] 

competent to stand trial, in violation of the Fifth and Fourteenth 

Amendments to the United States Constitution; Article I, Section 16 

of the Ohio Constitution; and R.C. 2945.37 

Second Assignment of Error: 

The juvenile court committed plain error when it failed to appoint a 

guardian ad litem for [D.G.], in violation of R.C. 2151.281(A) and 

Juv.R. 4(B). 

Third Assignment of Error: 

[D.G.] 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 Constitution. 

III. ANALYSIS 

A. COMPETENCY 

{¶ 19} In his first assignment of error, D.G. asserts that the trial court 

incorrectly determined that he was competent to stand trial. He contends that the 

record shows that he did not understand the charges against him or the potential 

penalties that he faced and thus that he did not have a rational or factual 

understanding of the proceedings against him. 

1. Failure to Object to the Magistrate’s Decision 
Ross App. Nos. 13CA3382 and 13CA3383 9 

{¶ 20} D.G. did not object to the magistrate’s decision finding him 

competent to stand trial. Juv.R. 40(D)(3)(b)(i) requires a party to file written 

objections to the magistrate’s decision within fourteen days. If no one files 

objections, the court may adopt a magistrate’s decision, unless it determines that 

there is an error of law or other defect evident on the face of the magistrate’s 

decision. Juv.R. 40(D)(4)(c). Juv.R. 40(D)(4)(e)(i) allows the court to enter 

judgment within the fourteen–day period, but the timely filing of objections 

operates as an automatic stay until the court disposes of those objections. 

{¶ 21} Juv.R. 40(D)(3)(b)(iv) provides that “[e]xcept for plain error, a party 

shall not assign as error on appeal the court’s adoption of any finding of fact or 

legal conclusion, whether or not specifically designated as a finding of fact or 

conclusion of law under Juv.R. 40(D)(3)(a)(ii), unless the party has objected to that 

finding or conclusion as required by Juv.R. 40(D)(3)(b).” Thus, the failure to file 

written objections challenging a finding of fact or conclusion of law precludes a 

party from assigning as error on appeal the court’s adoption of that finding or 

conclusion, absent plain error. “The waiver under [former] Juv.R. 40(E)(3)(b) 

embodies the long-recognized principle that the failure to draw the trial court’s 

attention to possible error, by objection or otherwise, when the error could have 

been corrected, results in a waiver of the issue for purposes of appeal.” In re Etter, 

134 Ohio App.3d 484, 492, 731 N.E.2d 694 (1st Dist. 1998). The plain-error 
Ross App. Nos. 13CA3382 and 13CA3383 10 

doctrine is applicable in civil cases only when the error “seriously affects the basic 

fairness, integrity, or public reputation of the judicial process.” Goldfuss v. 

Davidson, 79 Ohio St.3d 116, 122–123, 679 N.E.2d 1099 (1997). 

{¶ 22} In the case at bar, D.G. has not shown that the court committed plain 

error. 

2. Standard for Determining Competency 

{¶ 23} “Due process principles forbid subjecting a legally incompetent 

criminal defendant to trial.” State v. Braden, 98 Ohio St.3d 354, 785 N.E.2d 439, 

2003–Ohio–1325, ¶114, citing State v. Berry, 72 Ohio St.3d 354, 359, 650 N.E.2d 

433 (1995). “[T]he right not to be tried or convicted while incompetent is as 

fundamental in juvenile proceedings as it is in criminal trials of adults.” In re 

Bailey, 150 Ohio App.3d 664, 2002–Ohio–6792, 782 N.E.2d 1177, ¶10 (2nd Dist.). 

{¶ 24} Until September 30, 2011, the Revised Code did not contain any 

provisions for determining a juvenile’s competence to stand trial. In re Stone, 12th

Dist. Clinton No. CA2002–09–035, 2003–Ohio–3071, ¶7. With the enactment of 

2011 H.B. 86 (effective September 30, 2011), the juvenile code now contains 

statutory provisions that govern juvenile competency determinations. R.C. 

2152.51-2152.59. However, because D.G’s competency hearing was held before 

September 30, 2011, we apply the law that existed before the enactment of R.C. 

2152.51 through 2152.59. 
Ross App. Nos. 13CA3382 and 13CA3383 11 

{¶ 25} Under prior law, R.C. 2945.37, which governs competency for adults, 

also governed competency for juveniles, so long as the standards applied were 

consistent with juvenile norms. In re York, 142 Ohio App.3d 524, 536, 756 N.E.2d 

191 (8th Dist. 2001); In re McWhorter, 12th Dist. Butler No. CA94-02-047 (Dec. 5, 

1994). Under R.C. 2945.37(G), a “defendant is presumed competent to stand trial 

unless it is proved by a preponderance of the evidence in a hearing under this 

section that because of his present mental condition he is incapable of 

understanding the nature and objective of the proceedings against him or presently 

assisting in his defense.” The test for competency is whether the defendant has a 

sufficient present ability to consult with his lawyer with a reasonable degree of 

rational understanding and whether he has a rational as well as factual 

understanding of the proceedings against him. Dusky v. United States, 362 U.S. 

402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); In re Anderson, 5th Dist. Tuscarawas No. 

2001AP030021, 2002-Ohio-776; In re Kristopher F., 5th Dist. Stark No. 

2006CA00312, 2007–Ohio–3259, ¶ 25. 

{¶ 26} In Kristopher F., ¶¶26-28, the court set forth a more specific analysis 

that applies in juvenile competency determinations: 

“In performing competency evaluations, the courts have 

recognized that there are practical differences between juvenile 

delinquency proceedings and adult criminal prosecutions. As a result, 

these differences have been taken into consideration by the juvenile 

court in determining whether an alleged juvenile delinquent is capable 
Ross App. Nos. 13CA3382 and 13CA3383 12 

of understanding the nature and objective of the proceedings and in 

assisting in his or her own defense. In re McWhorter, Supra.

Factors which have been considered in juvenile competency 

evaluations include, appellant’s age and cognitive and intellectual 

development, appellant’s problems with receptive or expressive 

language, the ability to understand and communicate during 

competency testing, the complexity of the case and the attorney’s 

ability to simplify and explain complex issues, the seriousness of the 

charges in relation to the stress they could cause appellant during trial, 

any mental condition that would adversely affect appellant’s ability to 

understand the proceedings or work with counsel, appellant’s ability 

to understand the nature of the charges and the potential penalties, 

appellant’s ability to provide an adequate definition of the judge, 

defense attorney and prosecutor. In re McWhorter, Supra. 

Furthermore, a separate and important consideration is the manner in 

which the system affords the juvenile additional protections such as 

having a parent, guardian, or other person present with the child 

during the proceedings. In re Stone, Clinton App. No. CA2002-09-

035, 2003-Ohio-3071. These factors provide a gauge to evaluate a 

juvenile’s competency to stand trial and take into consideration the 

best interest of the child. A below average verbal IQ alone does not in 

and of itself, indicate that a defendant is not competent to stand trial. 

In re McWhorter, Supra. 

When reaching a competency determination, the adequacy of 

the data relied upon by the expert who examined the defendant is a 

question for the trial court as the trier of fact. State v. Williams

(1986), 23 Ohio St.3d 16, 19, 490 N.E.2d 906. An appellate court will 

not disturb a competency determination if there was “some reliable 

credible evidence supporting the trial court’s conclusion that [the 

defendant] understood the nature and objective of the proceeding 

against him.” State v. Williams, supra.” 

3. Application 

{¶ 27} In the case at bar, the record contains some reliable, credible evidence 

to support the court’s conclusion that D.G. understood the nature and objective of 

the proceedings against him. The competency evaluation constitutes some reliable, 
Ross App. Nos. 13CA3382 and 13CA3383 13 

credible evidence to support the trial court’s competency determination. The 

August 4, 2011 evaluation observed that D.G. “reportedly” has been diagnosed 

with schizophrenia and attention deficit hyperactivity disorder and that D.G. 

“complains of short-term memory problems, saying that he often forgets names, 

phone numbers, or similar information.” According to the evaluator, D.G. reported 

that in June 2011, he bit his mother and tried to set the house on fire. D.G. claims 

that “he heard voices commanding him to do this.” 

{¶ 28} The evaluator determined that D.G. was competent and explained: 

“Regarding the competency to undergo legal proceedings, 

[D.G.] clearly understood the charges. He acknowledged that he did 

have an attorney and that he had talked with him but did not know his 

name. He was not sure what plea, if any, had been entered on his 

behalf. He was able to correctly identify the various roles and 

responsibilities in the courtroom. He related that the judge ‘rules on 

what he thinks people did.’ He described the jury as ‘giving their 

view on what they saw.’ He identified the job of his attorney [as] ‘to 

defend me,’ and of the prosecuting attorney of ‘the opposite of that.’ 

He is unsure of what the penalty would be for the allegations against 

him and he continued to emphasize that he did not remember the most 

recent event involving assaulting his mother and attempting to start a 

fire. He did say, ‘I don’t [know] why I would be found guilty[;] I 

think it was the schizophrenia that caused it[,]’ suggesting that he is 

certainly able to formulate a defense strategy. 

[D.G.] was well oriented in all spheres. He was able to 

correctly identify the month, the date, the year, and the most recent 

important holiday. He knew his current whereabouts and the purpose 

for the interview. He was able to count backwards from 20 by 3’s 

correctly with one mistake. He could spell the word WORLD 

forwards and backwards. Although he reported a history of hearing 

voices, he was not currently showing signs or symptoms suggestive of 

gross distortions or misinterpretations of reality. 

* * * * 
Ross App. Nos. 13CA3382 and 13CA3383 14 

His current mental status suggests that he is well oriented and 

reasonably knowledgeable about the roles and responsibilities of the 

legal system. He understands the charges against him and 

understands the trial proceedings. He appears to have an adequate 

ability to assist counsel in presenting a defense.” 

{¶ 29} The evaluator thus concluded “that beyond a reasonable psychological 

certainty, [D.G.] is competent to undergo juvenile court proceedings. His 

psychiatric condition appears well managed at present. His intellectual functioning 

and fund of information is adequate to the task.” Because the evaluator’s report 

constitutes some reliable and credible evidence to support the trial court’s 

competency determination, we will not disturb its determination. 

{¶ 30} We do not agree with D.G. that his memory problems should have led 

the court to conclude that he was incompetent. 

“In Ohio, ‘amnesia alone is not sufficient to render the accused 

incompetent to stand trial.’ State v. Brooks (1986), 25 Ohio St.3d 144, 495 

N.E.2d 407. ‘Although “there are no definitive judicial explanations” of 

what constitutes the ability to assist in one’s own defense, * * * it is clear 

that the cases without exception reject the notion that an accused possesses 

that ability only if he is able to remember the circumstances of the crime 

with which he is charged.’ Id. at 151, 495 N.E.2d 407, quoting Morrow v. 

State (1980), 47 Md.App. 296, 423 A.2d 251.” 

State v. Lennox, 11th Dist. Lake No. 2010-L-104, 2011-Ohio-5103, ¶56. 

{¶ 31} To the extent D.G. asserts that his conduct at the adjudicatory hearing 

shows that he was incompetent, the magistrate reasonably could have believed that 

D.G.’s conduct was a charade. At one point, the magistrate stated: “[D]on’t play 

games with this.” It is well-established that the credibility of the witnesses and the 
Ross App. Nos. 13CA3382 and 13CA3383 15 

weight to be given to their testimony are matters for the trier of facts to resolve. 

State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). Thus, the magistrate 

was not required to believe D.G’s statements that he thought his name was “Zeke 

cotade” and that he did not recall biting his mother or attempting to set the house 

on fire. 

{¶ 32} Accordingly, based upon the foregoing reasons, we overrule D.G.’s 

first assignment of error. 

B. 

GUARDIAN AD LITEM

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

plainly erred by failing to appoint a guardian ad litem to represent his interests in 

the 2012 case. He asserts that the court should have appointed a guardian ad litem

to represent his interests because the record shows that an actual conflict existed 

between D.G. and his parents. 

{¶ 34} D.G. further argues that although the juvenile court appointed 

attorney Bevins to act as both counsel and guardian ad litem in the 2011 case, 

Bevins never actually acted as D.G.’s guardian ad litem during the juvenile court 

proceedings and thus the court should have appointed a new guardian ad litem. 
Ross App. Nos. 13CA3382 and 13CA3383 16 

{¶ 35} We addressed these same arguments in In re D.A.G., 4th Dist. Ross 

Nos. 13CA3366 and 13CA3367, 2013-Ohio-3414, ¶¶44-55, and rejected both. We 

explained: 

“Initially, we note that D.G. did not request the court to appoint 

a guardian ad litem in the 2012 case. D.G. also did not object to the 

court’s failure to appoint a guardian ad litem in the 2012 case. He 

further did not object to attorney Bevins’s dual role in the 2011 case 

or raise any suggestion that Bevins failed to act as his guardian ad 

litem.

Some courts have held that a juvenile need not request a trial 

court to appoint a guardian ad litem or object to a court’s failure to 

appoint one when a mandatory duty to do so exists. In re Dennis,

11th Dist. No.2006–A–0040, 2007–Ohio–2432, ¶29. Other courts 

have reviewed an appellant’s failure to request the trial court to 

appoint a guardian ad litem or to object using a plain error analysis. 

In re M.T., 6th Dist. No. L–09–1197, 2009–Ohio–6674, ¶¶14–15; In 

re A.K., 9th Dist. No. 09CA0025–M, 2009–Ohio–4941, ¶8, reversed 

on other grounds sub nom In re Cases Held for the Decision in D.J.S.,

130 Ohio St.3d 253, 2011–Ohio–5349, 957 N.E.2d 288; In re Smith,

3rd Dist. No. 14–05–33, 2006–Ohio–2788, ¶35; In re McHugh 

Children, 5th Dist. No.2004CA00091, 2005–Ohio–2345, ¶37. In In 

re Slider, 160 Ohio App.3d 159, 2005–Ohio–, 826 N.E.2d 356 (4th 

Dist.), we briefly mentioned the plain error doctrine but did not 

explicitly apply it. We stated: 

“Ordinarily, rights are deemed waived it they are not raised 

before the trial court and will be enforced upon appeal only if the 

error constitutes plain error. However, this court has previously 

reversed a finding of delinquency when the trial court failed to 

appoint a guardian ad litem or at least inquire further whether a 

guardian ad litem was necessary, even though an objection was not 

made.” 

Id. at ¶ 11 (citations omitted). Cf. In re A. G.B., 173 Ohio App.3d 

263, 2007–Ohio-4753, 878 N.E.2d 49, ¶15 (plurality opinion, with 

one judge concurring in judgment only and one judge dissenting). 

Thus, based upon our Slider decision, D.G.’s failure to object or to 

request a guardian ad litem does not preclude appellate review. 

* * * 
Ross App. Nos. 13CA3382 and 13CA3383 17 

A guardian ad litem is a “person appointed to protect the 

interests of a party in a juvenile court proceeding.” Juv.R. 2(O). “The 

role of guardian ad litem is to investigate the ward’s situation and then 

to ask the court to do what the guardian feels is in the child’s best 

interest.” In re Baby Girl Baxter, 17 Ohio St.3d 229, 232, 479 N.E.2d 

257 (1985). 

Both R.C. 2151.281(A) and Juv.R. 4(B) require a juvenile court 

to appoint a guardian ad litem in certain circumstances. R.C. 

2151.281(A) provides: 

The court shall appoint a guardian ad litem to protect the 

interest of a child in any proceeding concerning an alleged or 

adjudicated delinquent child or unruly child when either of the 

following applies: 

(1) The child has no parent, guardian, or legal custodian. 

(2) The court finds that there is a conflict of interest between 

the child and the child's parent, guardian, or legal custodian. 

Juv.R. 4(B) provides: 

The court shall appoint a guardian ad litem to protect the 

interests of a child or incompetent adult in a juvenile court proceeding 

when: 

(1) The child has no parents, guardians, or legal custodian; [or] 

(2) The interests of the child and the interests of the parent may 

conflict * * *. 

The rule requires a juvenile court to appoint a guardian ad litem

upon the possibility of conflict, but the statute requires the juvenile 

court to appoint a guardian ad litem if the court determines that a 

conflict indeed exists. Both the statute and the rule are mandatory, 

and a court’s failure to appoint a guardian ad litem when required 

constitutes reversible error. In re S.B., 183 Ohio App.3d 300, 2009–

Ohio–3619, 916 N.E .2d 110 (10th Dist.), ¶12, citing In re K.J.F., 2nd 

Dist. No. 2003–CA–41, 2004–Ohio–263, ¶23, citing In re Sappington,

123 Ohio App.3d 448, 452, 704 N.E.2d 339 (2nd Dist.1997), and In re 

Spradlin, 140 Ohio App.3d 402, 406, 747 N.E.2d 877 (4th Dist.2000). 

“[T]he juvenile court is in the best position to weigh the 

relevant facts in determining whether a potential conflict of interest 

exists between the parent and child.” Sappington, 123 Ohio App.3d at 

453–454, citing Trickey v. Trickey, 158 Ohio St. 9, 13, 106 N.E.2d 

772 (1952). We thus review the trial court’s determination regarding 
Ross App. Nos. 13CA3382 and 13CA3383 18 

whether a potential conflict of interest exists between the parent and 

child for an abuse of discretion. In re Wilson, 4th Dist. No. 04CA26, 

2004–Ohio–7276, ¶21; Spradlin, 140 Ohio App.3d at 407; 

Sappington, 123 Ohio App.3d at 453–454. But, see, In re A.K., 9th 

Dist. No. 26291, 2012–Ohio4430, ¶12; In re C.W., 4th Dist. No. 

10CA892, 2010–Ohio–5633, ¶9 (stating that whether the court 

possessed a mandatory duty to appoint a guardian ad litem is a 

question of law). The question is whether the record “reveals a strong 

enough possibility of conflict of interest between parent and child to 

show that the juvenile court abused its discretion” by not appointing a 

guardian ad litem. Sappington, 123 Ohio App.3d at 454. 

A “colorable claim of conflict” frequently arises in a 

delinquency proceeding when the parent speaks against the child’s 

penal interests or files delinquency charges against the child. In re 

Bostwick, 4th Dist. No., 2005–Ohio5123, ¶¶ 8–9, citing In re Howard,

119 Ohio App.3d 201, 207, 695 N.E.2d 1 (1st Dist.1997). The 

potential for conflict results because the parent’s interests in seeking 

the juvenile court’s assistance may be wholly inconsistent with the 

child’s interests. Sappington, 123 Ohio App.3d at 454. Thus, when a 

parent or legal guardian instigates a delinquency proceeding or speaks 

out against the child’s penal interests, the juvenile court ordinarily 

must conduct “a ‘thorough inquiry’ * * * to determine whether a 

conflict of interest exists such that the court must appoint a guardian 

ad litem.” Bostwick at ¶8. However, courts have been unwilling to 

adopt a bright-line rule that would require the appointment of a 

guardian ad litem in every case in which a child's parents or legal 

guardians initiate a delinquency proceeding against their child. 

Howard, 119 Ohio App.3d at 207. Instead, the courts have examined 

the record to determine whether the parent or legal guardian expressed 

any interest inconsistent with the child’s interests. 

For instance, courts have found no potential for conflict when 

the victim of the child’s delinquent act was a family member and 

when neither parent (nor a legal guardian) spoke against the child’s 

penal interests or expressed a desire inconsistent with the child’s 

interests. In In re Wilkins, 3rd Dist. No. 5–96–1 (June 26, 1996), the 

court found no conflict of interest between the father and the child 

even though the delinquency charge involved the child hitting his 

father. In reaching its decision, the court observed that the father did 

not attempt to persuade the court to act in any manner inconsistent 

with the child's interests. The court explained: 
Ross App. Nos. 13CA3382 and 13CA3383 19 

“Timothy’s father did not attempt to persuade the court in any 

manner that would be consistent with an understanding that he was 

not acting in Timothy’s best interests. Indeed, the record reveals just 

the opposite; that Timothy’s father was acting in Timothy’s best 

interests. When the court suggested an institution remedial in nature, 

as opposed to the harsher environment of a DYS facility, Timothy’s 

father did not object or demand that Timothy be placed in the latter 

facility. Timothy and his father did not argue or have any contentious 

words at hearing. In fact, Timothy’s father seemed most concerned 

with the court understanding and helping Timothy with his substance 

abuse addiction.” 

Similarly, in In re A.K., 9th Dist. No. 09CA0025–M, 2009–

Ohio4941, supra, the court determined that a potential for conflict did 

not exist even when the child’s parents called law enforcement after 

the child’s sister alleged that the child had sexually assaulted her. In 

concluding that a potential for conflict did not exist, the court 

observed that the child’s parents did not testify against him and did 

not recommend that he be committed. Id. at ¶11. Moreover, the 

child’s parents “appeared with him at his adjudication and disposition 

hearings and, more than once, expressed concern over the length and 

severity of the disposition that [the child] might receive.” Id.

In contrast, we have found that a trial court abused its discretion 

by failing to appoint a guardian ad litem—or by failing to inquire 

further into whether a conflict of interest existed sufficient to warrant 

the court in appointing a guardian ad litem—when the facts showed 

that the child's legal guardians’ interests were not aligned with the 

child’s interests. In Slider, for example, we determined that a 

sufficient potential for conflict between the child and the child’s legal 

guardians existed when the child’s legal guardians were unwilling to 

hire an attorney for the child, when they refused to take the child 

home with them because they feared for their daughter’s safety, and 

when they requested the trial court to institutionalize the child. In re 

Slider, 160 Ohio App.3d 159, 2005–Ohio–1457, 826 N.E.2d 356 (4th 

Dist.), ¶12. Accord In re Wilson at ¶18 (concluding that trial court 

abused its discretion by failing to appoint guardian ad litem when the 

child’s step-brother was the victim, the child’s mother testified for the 

prosecution, the child’s mother and father recommended that the child 

be committed to DYS, and the child previously victimized other 

family members); Sappington, 123 Ohio App.3d at 454–455 

(determining that the juvenile court abused its discretion by failing to 
Ross App. Nos. 13CA3382 and 13CA3383 20 

appoint a guardian ad litem for the child when the child’s parents 

previously filed domestic violence charges against the child, had 

sought to place the child out of the home, and had convinced the 

minor that he did not need an attorney); In re K.J.F., supra

(concluding that the juvenile court abused its discretion by failing to 

appoint a guardian ad litem for the child’s delinquency-related 

proceedings, which included his original adjudication and the 

subsequent revocation of probation for the rape of his half-sister, 

when the child’s step-father stated that the family did not want the 

child to return to their home where the victim lived and when the 

child's mother informed the court that she “did not feel [she] could 

make choices in [the child's] best interest”). 

The case at bar bears more similarity to A.K. and Wilkins than 

the Slider/Sappington line of cases. Unlike the parents in Slider and 

Sappington, D.G.’s parents did not request the court to institutionalize 

D.G. Instead, D.G.’s mother wrote a heart-felt note to the court 

requesting that the court not commit her child to DYS and imploring 

the court to return D.G. to his home. At no point during the hearing 

did either D.G.’s mother or father speak against his penal interest. 

Thus, even though the charges involved domestic violence against 

D.G.’s family members, the record does not demonstrate that a 

potential for conflict existed so as to warrant the court in appointing a 

guardian ad litem. Consequently, we disagree with D.G. that the trial 

court plainly erred by failing to appoint a guardian ad litem to 

represent him during the probation violation proceedings in the 2012 

case. 

D.G. further asserts that the trial court should have appointed a 

guardian ad litem to represent him during the probation violation 

proceedings in the 2011 case. However, on June 20, 2011, the court 

appointed attorney Bevins to act as counsel and guardian ad litem for 

D.G. Although D.G. claims that Bevins failed to act as his guardian ad 

litem, he has not raised Bevins's alleged failure as a separate 

assignment of error and also has not asserted that Bevins's roles as 

counsel and guardian ad litem conflicted.FN3 Therefore, we do not 

consider either issue. Nor do we express any opinion regarding the 

merits of either argument. Nothing in the record affirmatively 

demonstrates that attorney Bevins failed to act as D.G.'s guardian ad 

litem and counsel throughout the probation violation proceedings filed 

in the 2011 case.” 
Ross App. Nos. 13CA3382 and 13CA3383 21 

{¶ 36} Thus, based upon similar reasons, we do not believe the trial court 

plainly erred by failing to appoint a guardian ad litem in the 2012 case or a new 

guardian ad litem in the 2011 case. The record as a whole does not demonstrate a 

strong enough possibility of a conflict such that the court was required to appoint a 

guardian ad litem.

C. EFFECTIVE ASSISTANCE OF COUNSEL 

{¶ 37} In his third assignment of error, D.G. argues that he did not receive 

effective assistance of counsel. D.G. asserts that trial counsel was ineffective by 

stipulating to the evaluation report and by failing to object to the trial court’s 

finding of competency. 

{¶ 38} The Sixth Amendment to the United States Constitution and Section 

10, Article I, of the Ohio Constitution provide that defendants in all criminal 

proceedings shall have the assistance of counsel for their defense. The United 

States Supreme Court has generally interpreted this provision to mean a criminal 

defendant is entitled to the “reasonably effective assistance” of counsel. Strickland 

v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An accused 

juvenile has a constitutional right to counsel, and the same rights to effective 

assistance of counsel as an adult criminal defendant. In re Lower, 4th Dist. 

Highland No. 06CA31, 2007-Ohio-1735, ¶37, citing In re Gault, 387 U.S. 1, 41, 

87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Thus, we apply the same Sixth Amendment 
Ross App. Nos. 13CA3382 and 13CA3383 22 

effective assistance of counsel principles that apply in criminal proceedings. See 

In re B.C.S., 4th Dist. Washington No. 07CA60, 2008-Ohio-5771. 

{¶ 39} To prevail on a claim of ineffective assistance of counsel, D.G. must 

show (1) his counsel’s performance was deficient in that it fell below an objective 

standard of reasonable representation, and (2) the deficient performance prejudiced 

his defense so as to deprive him of a fair trial. E.g., State v. Smith, 89 Ohio St.3d 

323, 327, 731 N.E.2d 645 (2000), citing Strickland, 466 U.S. at 687; State v. 

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. 

To establish prejudice, D.G. must show that there is a reasonable probability that, 

were it not for counsel’s errors, the result of the proceeding would have been 

different. E.g., State v. White, 82 Ohio St.3d 16, 23, 693 N.E.2d 772 (1998); 

Bradley, paragraph three of the syllabus. “Failure to establish either element is 

fatal to the claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-Ohio968, ¶14. Therefore, if one element is dispositive, a court need not analyze both. 

State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000) (stating that a 

defendant’s failure to satisfy one of the elements “negates a courts need to consider 

the other.”). 

{¶ 40} In the case at bar, even if trial counsel performed deficiently by 

stipulating to the competency evaluation and by failing to object to the court’s 

competency determination, D.G. cannot establish that the alleged deficient 
Ross App. Nos. 13CA3382 and 13CA3383 23 

performance affected the outcome of the proceedings. As we explained in our 

discussion of D.G.’s first assignment of error, some competent and reliable 

evidence supports the trial court’s competency finding. Thus, even if trial counsel 

had had objected, D.G. cannot show that the trial court would have refused to 

consider the evaluation and found D.G. incompetent. Moreover, D.G. fails to 

show that if trial counsel had not stipulated to the evaluation, the proceedings 

would have turned out any differently. D.G. fails to establish that if trial counsel 

had not stipulated to the evaluation, then a competency hearing would have been 

held and the trial court would have determined D.G. was incompetent. D.G. only 

speculates that the result would have been different. Speculation is insufficient to 

demonstrate the prejudice component of an ineffective assistance of counsel claim. 

E.g., State v. Leonard, 4th Dist. Athens No. 08CA24, 2009-Ohio-6191, ¶68. 

Consequently, D.G. cannot show that the outcome would have been any different if 

trial counsel had not stipulated to the evaluation or had objected. 

{¶ 41} Accordingly, based upon the foregoing reasons, we overrule D.G.’s 

third assignment of error and affirm the trial court’s judgment. 

 JUDGMENT AFFIRMED. 
Ross App. Nos. 13CA3382 and 13CA3383 24 

Hoover, J., concurs in judgment only and dissents in part: 

{¶ 42} I concur in judgment only and dissent in part from the principal 

opinion. The principal opinion uses a similar analysis to the one used by this court 

in In re D.A.G., 4th Dist. Ross Nos. 13CA3366 and 13CA3367, 2013-Ohio-3414, 

¶¶ 44-55 to overrule D.G.'s second assignment of error. Because the appeals at bar 

pertain to proceedings that occurred before the revocation proceedings at issue in 

the previous appeals, the facts of the case at bar should be analyzed using the 

appropriate standards and a similar analysis should not necessarily be relied upon 

in deciding the issues regarding the failure to appoint the guardian ad litem in Case 

No. 2012DEL0153 and the duality of attorney/guardian ad litem in Case No. 

2011DEL0208. 

{¶ 43} Because D.G. (also referred to as D.A.G.) failed to object to the fact 

that he was not appointed a guardian ad litem in Case No. 2012DEL153, his appeal 

is subject to a plain error analysis. Although I believe that a guardian ad litem

should have been appointed in Case No. 2012DEL153, I believe that the outcome 

of the trial would not have been any different had a guardian ad litem been 

appointed; therefore, I would affirm the judgment of the trial court in Case No. 

2012DEL153/ App. Case No.13CA3382. 

{¶ 44} In Case No. 2011DEL208, D.G. failed to object to the fact that his 

purported guardian ad litem did not act in the capacity of a guardian ad litem. 
Ross App. Nos. 13CA3382 and 13CA3383 25 

Therefore, D.G.'s appeal is again subject to a plain error analysis. Likewise, even 

though I agree with D.G. that the appointed guardian ad litem never acted in the 

capacity of a guardian ad litem, when applying the plain error analysis, I do not 

believe that the outcome of the trial would have been any different even if the 

guardian ad litem had completed an evaluation and a report. Consequently, I would 

also affirm the judgment of the trial court in Case No. 2011DEL208/ App. Case 

No. 13CA3383. 

{¶ 45} The procedural postures of these two consolidated cases (13CA3382 

and 13CA3383) are anomalous. The cases, In re D.A.G., 4th Dist. Ross Nos. 

13CA3366 and 13CA3367, 2013-Ohio-3414, were appeals from the trial court's 

decisions in January 2013 to revoke the probation of appellant, D.G. (also referred 

to as D.A.G.) The cases sub judice are the cases underlying the revocation 

proceedings. Normally, the appeals on these underlying cases would have been 

decided prior to any appeals on the revocation proceedings; however, the notices of 

appeal on these consolidated cases were not filed until April 25, 2013. This delay 

in filing the notices of appeal was justified due to the fact the D.G. was not served 

notice of the filing of the dispositional entries. In re Anderson, 92 Ohio St.3d 63, 

67, 748 N.E.2d 67 (2001). 

{¶ 46} In Case No. 2011DEL208, the victim of the domestic violence was 

D.G.'s mother, Mrs. G. On June 17, 2011, at D.G.'s initial appearance or 
Ross App. Nos. 13CA3382 and 13CA3383 26 

arraignment, the Court appointed attorney Walter Bevins to represent D.G. in the 

dual capacity of attorney and guardian ad litem. After the appointment, the 

following exchange took place between the trial court magistrate and Mrs. G: 

Mrs. G: I want for him to be held at...uh...JDC until this Trial. 

Magistrate: Do you feel like you can't control his conduct? 

Mrs. G: Uh...no he's out of control. 

{¶ 47} In the adjudicatory hearing, Mrs. G. testified for the State and against 

her own son as follows: 

Mrs. G.: He went off on another one of his tirades 

and...he...was hitting me and Samantha and yelling, calling me 

every name in the book and he tried to set the house on fire 

and he grabbed my lighter from me to set the house on fire. 

He did not once but twice and when I grabbed the lighter from 

him, he bit me on the hand and...(sigh) I ended up calling the 

police and...trying to get Samantha calm down and...that's 

pretty much it. 

{¶ 48} As for Case No. 2012DEL153, the victims on the two counts of 

domestic violence were D.G.'s mother and sister. The trial court did not appoint a 

guardian ad litem for D.G. In April 2012, at the initial appearance or arraignment 

in this matter, the following exchange took place: 
Ross App. Nos. 13CA3382 and 13CA3383 27 

Attorney: On behalf of my client your Honor....uh...he has 

asked me to request the Court that foster care placement be 

looked into as an alternative as opposed to this gentlemen, this 

young man just being locked...uh...it seems to me that the 

majority of his problems stem from the home setting and I 

would ask that some-some placement other than home be 

considered. Nothing further your Honor. 

Magistrate: Parents have anything they want to tell me? 

Mrs. G: I disagree I think it is his medication and he needs to 

be put into a psychiatric facility. 

Magistrate: Has he been going to school? 

Mrs. G.: No, he has not, he has been refusing to. 

The trial court then decided to remand D.G. to the custody of the sheriff's 

department to be held at the juvenile detention center pending disposition or trial. 

{¶ 49} On May 11, 2012, an adjudicatory hearing was scheduled. The State 

and D.G.'s attorney purportedly had an agreement; however, the trial court was not 

satisfied that D.G. agreed to the terms of the agreement; and therefore, the 

adjudication was rescheduled. 

{¶ 50} On May 25, 2013, D.G. appeared for his adjudication on the two 

counts of domestic violence in Case No. 2012DEL153, an unruly charge, and the 
Ross App. Nos. 13CA3382 and 13CA3383 28 

probation violation for Case No. 2011DEL208. In that trial, the probation officer 

testified that Mrs. G. reported that D.G. was not taking his medications and was 

not following the rules in the home and was leaving without permission. D.G. also 

had not attended school as required. 

{¶51} Mrs. G. once again testified for the State. D.G.'s mother testified that 

D.G. had kicked her in the leg and hit her in the head. She stated that D.G. had 

"targeted" her leg as he was aware of her condition that it had been broken in two 

places. She also told the court that on the same day, D.G. punched his sister in the 

head and bit her a couple of times. Mrs. G. said the altercation was "pretty 

violent." She said there was not much she could do as she was in a wheelchair. 

Mrs. G. also testified that D.G. had not been obeying her or her husband. 

{¶ 52} D.G.'s sister, Miss G., also testified against him at the trial. She 

testified that D.G. knocked her down, hit her in the head and was "punch-biting" 

her. Miss G. also stated that D.G. bit her on her hand and her arm. 

{¶ 53} D.G. testified at the trial also. D.G. testified that he missed school 

because a person was making him smoke weed under duress. D.G. admitted to 

biting his sister and hitting her in the head several times. D.G. further admitted to 

kicking his mother "with like the back of [his] heel or something." 

{¶54} This court stated in In re Wilson, 4th Dist. Washington No. 04CA26, 

2004-Ohio-7276, ¶¶ 12-13: 
Ross App. Nos. 13CA3382 and 13CA3383 29 

R.C. 2151.281(A)(2) states that a court shall appoint a guardian ad 

litem to protect the interest of a child in any proceeding concerning 

an alleged or adjudicated delinquent child when “[t]he court finds 

that there is a conflict of interest between the child and the child's 

parent ...” (Emphasis added.) Similarly, Juv.R. 4(B) requires that a 

guardian ad litem be appointed to protect the interests of a child 

whenever the interests of the child and the interests of the parent may 

conflict. 

These provisions do not require that an actual conflict of interest be 

demonstrated. Rather, a showing that the interests “may conflict” 

will suffice to trigger the need to appoint a guardian ad litem. See In 

re Spradlin (2000), 140 Ohio App.3d 402, 407, 747 N.E.2d 877; In 

re Sappington (1997), 123 Ohio App.3d 448, 453, 704 N.E.2d 339. 

The failure to appoint a guardian ad litem, when required by R.C. 

2151.281(A) and Juv.R. 4(B), constitutes reversible error. In re 

Spradlin, supra, at 406, 747 N.E.2d 877 In re Sappington, supra, at 

452, 704 N.E.2d 339; In re K.J.F., Clark App. No.2003–CA–41, 

2004–Ohio–263, at ¶ 23. 

{¶55} In light of the above cited case law, it would appear that a guardian ad 

litem would be required in both cases. At the initial appearance in Case No. 
Ross App. Nos. 13CA3382 and 13CA3383 30 

2011DEL208, Mrs. G. testified that D.G. was out of control and that she could not 

handle him. She wanted the court to hold D.G. in the juvenile detention center. At 

the initial appearance in Case No. 2012DEL153, Mrs. G. testified that D.G. should 

be held in a psychiatric facility while D.G.'s attorney asked that he be placed in 

foster care due to home issues. At these early points in these proceedings, the trial 

court should have determined that a "conflict of interest between the child and the 

child's parent" existed. In Case No. 2012DEL153, the trial court should have 

appointed a guardian ad litem then. In Case No. 2011DEL208, the appointed 

guardian ad litem should have acted as such and proceeded with his investigation 

as a guardian ad litem. 

{¶56} During the adjudicatory hearings in both cases, it was clear that the 

victims of the cases were family members, D.G.'s mother and sister. Even if the 

conflict of interest was not clear at the arraignment, the conflict should have been 

clear at this point. The case at bar is similar to the facts in Wilson, Id. at ¶¶15-16. 

The perpetrator and the victims were in the same family unit. As the court in 

Wilson stated, "[t]his placed the appellant's parents, particularly his mother, in a 

very awkward position. Appellant's mother testified for the prosecution at the 

adjudicatory hearing...* * * The fact that a conflict of interest may exist required 

the appointment of a guardian ad litem." 
Ross App. Nos. 13CA3382 and 13CA3383 31 

{¶57} When overruling D.G.'s second assignment of error, the principal 

opinion relies on the fact that "D.G.'s parents did not request the court to 

institutionalize D.G. Instead, D.G.'s mother wrote a heart-felt note to the court 

requesting that the court not commit her child to DYS and imploring the court to 

return D.G. to his home." However, this "heartfelt letter" did not even exist at the 

time of these underlying cases. This "heartfelt letter" is not in the record for these 

underlying cases. When determining whether to appoint a guardian ad litem, the 

appointment should be made early in the proceedings, not after the disposition. In 

order to be effective in the process, the guardian ad litem needs to be active 

throughout the proceedings. 

 {¶58} Even though in Case No. 2011DEL208, a guardian ad litem was 

actually appointed, the record is completely devoid of any evidence that the 

appointed guardian ad litem actually acted in that capacity. There is no guardian 

ad litem report. There is no evidence that the guardian ad litem did any type of 

investigation into D.G.'s home or family life. Furthermore, there is no evidence 

that the guardian ad litem reviewed D.G.'s medical, psychological, or psychiatric 

records, if any. No evidence in the record exists that the guardian ad litem reviewed 

any of D.G.'s school records either. Therefore, even though the Court appointed a 

guardian ad litem in Case No. 2011DEL208, the guardian ad litem did not act in 

such capacity. 
Ross App. Nos. 13CA3382 and 13CA3383 32 

{¶59} This court stated in State v. Alexander, 4th Dist. Adams No. 

12CA945, 2013-Ohio-1913, ¶¶ 10-11: 

Under Crim.R. 52(B) “[p]lain errors or defects affecting substantial 

rights may be noticed although they were not brought to the attention 

of the court.” “Thus, there are ‘three limitations on a reviewing 

court's decision to correct an error despite the absence of a timely 

objection at trial. First, there must be an error, i.e., a deviation from a 

legal rule. * * * Second, the error must be plain. To be “plain” within 

the meaning of Crim.R. 52(B), an error must be an “obvious” defect 

in the trial proceedings. * * * Third, the error must have affected 

“substantial rights.” Courts have interpreted this aspect of the rule to 

mean that the trial court's error must have affected the outcome of 

the trial.’ “ State v. Lynn, 129 Ohio St.3d 146, 2011–Ohio–2722, 950 

N.E.2d 931, ¶ 13, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 

N.E.2d 1240 (2002). 

 “Even when all three prongs are satisfied, a court still has discretion 

whether or not to correct the error.” Lynn at ¶ 14. The Supreme 

Court of Ohio has acknowledged the discretionary aspect of Crim.R. 

52(B) by cautioning courts to notice plain error “with the utmost 

caution, under exceptional circumstances and only to prevent a 
Ross App. Nos. 13CA3382 and 13CA3383 33 

manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 

372 N.E.2d 804 (1978), paragraph three of the syllabus. 

{¶60} In the case at bar, although I believe that an error has occurred, the 

error is not obvious, as my opinion differs from the principal opinion. In addition, I 

do not believe that the trial court's error affected the outcome of the trial. Thus, I 

believe that only one of the three prongs has been satisfied. This is not a case 

wherein plain error needs to be noticed to prevent a manifest miscarriage of justice. 

{¶ 61} Therefore, I would affirm the judgments of the trial court with 

respect to each case. 
Ross App. Nos. 13CA3382 and 13CA3383 34 

JUDGMENT ENTRY

 It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing the Ross County 

Common Pleas Court, Juvenile Division, to carry this judgment into execution. 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS 

BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is 

temporarily continued for a period not to exceed sixty days upon the bail previously posted. The 

purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an 

application for a stay during the pendency of proceedings in that court. If a stay is continued by 

this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of 

the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day 

appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. 

Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, 

the stay will terminate as of the date of such dismissal. 

 A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 

Abele, P.J.: Concurs in Judgment and Opinion. 

Hoover, J: Concurs in Judgment Only and Dissents in Part with Opinion. 

 

For the Court, 

 BY: ___________________________________ 

 Matthew W. McFarland, Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and 

the time period for further appeal commences from the date of filing with the clerk.