[Cite as In re J.K.O. , 2021-Ohio-1215.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

IN RE: J.K.O. : : : : : : : : : : Appellate Case No. 28899

Trial Court Case Nos. 2019-3814 and 2020-909(Appeal from Common Pleas CourtJuvenile Division)

. . . . . . . . . . . O P I N I O N Rendered on the 9th day of April, 2021.

. . . . . . . . . . . MATHIAS H. HECK, JR., by JAMIE J, RIZZO, Atty. Reg. No. 0099218 , Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, Dayto n, Ohio 45422 Attorney for Appellee, State of Ohio KEITH A. FRICKER, Atty. Reg. No. 0037355, 10 North Ludlow Stree t, Suite 920, Dayton, Ohio 45402 Attorney for Appellant, J.K.O.

. . . . . . . . . . . . .

TUCKER, P.J.-2- {¶ 1} J.K.O. was adjudicated delinquent for committing acts which, if committed by an adult, would constitute the offenses of rape and kidnapping. He appeals, asserting that the juvenile court erred by failing to give him credit for the time he was incarcerated pending disposition. We conclude the court did not err in its denial of credit for time served. However, the juvenile court did err by failing to incl ude in the commitment order that J.K.O. was entitled to zero days of jail time credit. I. Factual and Procedural Background {¶ 2} In 2018, J.K.O. was adjudicated delinquent after committing an act that would constitute rape of a child under the age of 13 if he were an ad ult. He was committed to the Ohio Department of Youth Services (“DYS”), but the sentence was suspended. J.K.O. was placed on probation, the terms of which required him to attend treatment in a facility located in Columbus. {¶ 3} It was subsequently discovered that J.K.O. had committed offens es against a second child. In August 2019, J.K.O. was charged by complain t with two counts of gross sexual imposition and one count of kidnapping. In Novemb er 2019, an amended complaint was filed which added a charge of rape in relation to the same victim. {¶ 4} J.K.O. was also charged with violating the terms of his probati on in the 2018

case. 1 On January 28, 2020, a hearing was conducted during which J.K .O. admitted violating the terms of his probation in the 2018 case. The juv enile court found him in violation, and it entered the following order: The Juvenile is remanded pursuant to Juvenile Rule 7. Continua tion of

1 The 2018 case is not part of the record before us. Thus, any i nformation we have regarding that case is gleaned from the parties’ briefs and an order of the juvenile court filed on January 28, 2020, which pertains to both the 2018 and 2019 cases.-3- residence in the home is contrary to the welfare and removal is in the best interest of the child. The child is hereby placed in and order ed to complete the cognitive rehabilitation program through JCARE-STP, the Juv enile Cognitive Alternative Rehabilitat ion Effort as a condition of t he suspension of his commitment to the custody of the ODYS, or until further order of this Court; the JCARE-STP Program shall prepare and present to the a ssigned Judge a Report and Recommendation on the child’s progress in JC ARE no later than three (3) business days prior to a review hearing. A review hearing was scheduled for April 27, 2020. {¶ 5} On February 27, 2020, J.K.O. was charged by complaint with rape of a third child. On March 4, 2020, J.K.O. entered an admission to one co unt of rape and one count of kidnapping in the 2019 case. He also entered an admis sion to the sole count of rape in the 2020 case. {¶ 6} A disposition hearing on the 2019 and 2020 cases was conducted on August 10, 2020, at which time the juvenile court committed J.K.O. to the Ohio Department of

Youth services for a minimum term of 18 months on each count an d a maximum term not to exceed his attainment of age 21. The court ordered the thre e sentences to run consecutively for a minimum commitment term of 54 months. The placement in JCARE

was terminated. {¶ 7} J.K.O. appeals.

II. Jail Time Credit Analysis {¶ 8} The sole assignment of error asserted by J.K.O. states:-4- THE TRIAL COURT ERRED IN NOT GRANTING THE JUVENILE CREDIT

FOR TIME SERVED IN DETENTION AND TREATMENT FACILITY

CENTER WHILE AWAITING DISPOSITION. {¶ 9} J.K.O. claims that the time he was in the custody from January 28, 2020, until the disposition date of his 2019 and 2020 offenses on August 10 , 2020, should have been credited against the minimum comm itment term for those offenses . In support, he cites R.C. 2152.18(B), which states , in pertinent part, as follows: When a juvenile court commits a delinquent child to the custody of the department of youth services pursuant to this chapter, the cour t shall state in the order of commitment the total number of days that the ch ild has been

confined in connection with the delinquent child complaint upon which the

order of commitment is based . The court shall not include days that the child has been under electronic monitoring or house arrest or d ays that the child has been confined in a halfway house. The department shal l reduce the minimum period of institutionalization that was ordered by both the total number of days that the child has been so confined as stated by the court in the order of commitment and the total number of any addition al days that the child has been confined subsequent to the order of commitme nt but prior to the transfer of physical custody of the child to the departm ent. (Emphasis added.) {¶ 10} In the case of In re O.H. , 4th District Washington No. 09CA38, 2010-Ohio1244, the Fourth Appellate District analyzed a R.C. 2152.18(B) jail-time credit issue similar to the one presented in J.K.O.’s appeal. In 2007, O.H. was adjudicated-5- delinquent by reason of committing an assault against a teacher . The juvenile court committed O.H. to DYS but suspended the sentence, provided that O.H. complied with the terms of his probation. {¶ 11} In July 2009, a complaint was filed against O.H. alleging that he committed an act against his sister that would constitute the offense of domestic violence if he were an adult; O.H. was placed in detention pending resolution of th at charge. Thereafter, a complaint for probation violation was filed, alleging that O.H had violated the terms of his probation in the prior assault case by committing the domestic violence offense. No detention hearing was conducted on the probation violation. {¶ 12} In September 2009, the juvenile court conducted a hearing on bo th the domestic violence charge and the probation violation. O.H. adm itted to the domestic violence charge and was adjudicated delinquent. The juvenile c ourt admonished O.H. but did not impose any further punishment regarding the domesti c violence offense. O.H. also admitted to the probation violation. The juvenile co urt revoked his probation and imposed the sentence previously imposed for the 2007 assaul t case. O.H. claimed he was entitled to credit for time served on the assault adjudi cation while awaiting adjudication on the domestic violence charge. But the juvenile court did not credit O.H. with the requested jail-time credit. {¶ 13} On appeal, the court noted that the “Supreme Court of Ohio has found that a juvenile is entitled to credit for time spent in detention wh ile awaiting the final disposition of an alleged probation violation because this detention ‘relat es back to the complaint of delinquency and is in “connection with” that complaint[.]’ ” In re O.H. , 4th Dist. Washington No. 09CA38, 2010-Ohio-1244, at ¶ 10, citing In re Thomas , 100 Ohio St.3d-6- 89, 2003-Ohio-5162, 796 N.E.2d 908, ¶ 13. “Such detention goes to the original disposition in the case and is sufficiently linked to the adjud ication of the original charges that credit is required by the statutory language.” Id . “And although the Thomas Court reached these conclusions by analyzing former R.C. 2151.355(F)( 6), the Court clearly intended its holding to also apply to R.C. 2152.18(B) -- the cu rrent, similarly worded

statute.” Id ., citing Thomas at ¶ 11, fn. 1. {¶ 14} In re O.H. went on to conclude that, although the probation violation and the new domestic violence offense were factually related in that th e probation violation was based upon the commission of the new domestic violence offense, the new domestic violence offense was separate from the original assault and car ried with it the risk of a separate sentence. Id. at ¶ 11. Thus, the Fourth District concluded the juvenile cou rt properly denied any credit for time served in connection with t he domestic violence case against the sentence imposed on the assault case. 2 {¶ 15} Here, the record shows J.K.O. was taken into custody on January 28, 2020, following his admission to violating the terms of probation imp osed in the 2018 case. There is nothing in this record to indicate that this detention was related to the 2019 or the 2020 cases. In fact, the record does not contain any order reflecting that J.K.O. was

detained in connection with those later cases until after the c ourt conducted the disposition hearing and imposed the minimum 54-month commitment . After imposing sentences for the 2019 and 2020 cases, the court terminated the requirement that J.K.O. participate in JCARE regarding the 2018 case.

2 The Supreme Court of Ohio has stated that the issue in O.H. was correctly decided. See In re D.S. , 148 Ohio St.3d 390, 2016-Ohio-7369, 71 N.E.3d 223, ¶ 18, fn. 1.-7- {¶ 16} Based upon this record, as well as the above-cited relevant sta tutory language and case law, we conclude that the juvenile court did not err in failing to credit J.K.O. for the time spent in detention related to the probation violation in the 2018 case against the sentences imposed in the 2019 and 2020 cases. {¶ 17} The first assignment of error is overruled. {¶ 18} However, as conceded by the State, we note that the order of co mmitment

in the 2019 and 2020 cases does not set forth “the total number of days that the child has been confined in connection with the delinquent child complaint upon which the order of commitment is based.” In this case, that number was zero, but the statute mandates the inclusion of that number in the commitment order. Thus, we wil l remand this matter to the juvenile court for the issuance of a nunc pro tunc order co rrecting what appears to be simply a clerical error.

III. Conclusion {¶ 19} The judgment of the trial court is affirmed, but we remand to t he trial court for the filing of a nunc pro tunc commitment order correcting a clerical error identified in this opinion.

. . . . . . . . . . . . . DONOVAN, J. and HALL, J., concur.

Copies sent to: Mathias H. Heck, Jr. Jamie J. Rizzo Keith A. Fricker Hon. Helen Wallace