[Cite as In re A.R., 2017-Ohio-8058.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

Nos. 104869, 104870, 104871, 

104872, 104873, 104875, and 104876 

IN RE: A.R.

JUDGMENT:

REVERSED AND REMANDED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Juvenile Division 

Case Nos. DL-14112213, DL-15102047, DL-15105955, 

DL-15103378, DL-15102238, DL-15105280, and DL-15114582 

BEFORE: Laster Mays, J., E.A. Gallagher, P.J., and E.T. Gallagher, J. 

RELEASED AND JOURNALIZED: October 5, 2017 

-i- 
ATTORNEYS FOR APPELLANT 

Timothy Young 

Ohio Public Defender 

By: Victoria Bader 

Assistant Public Defender 

250 East Broad Street, Suite 1400 

Columbus, Ohio 43215 

ATTORNEYS FOR APPELLEE 

Michael C. O’Malley 

Cuyahoga County Prosecutor 

By: Vencot Brown 

Assistant County Prosecutor 

Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
ANITA LASTER MAYS, J.: 

{¶1} Defendant-appellant A.R. appeals his admission to a probation violation and 

asks this court to vacate his adjudication and remand for a new hearing. We vacate and 

remand. 

{¶2} A.R. was found to be in violation of the terms of his probation. The trial 

court invoked the suspended sentences on seven prior cases where A.R. was the 

defendant. A.R. was sentenced to the Ohio Department of Youth Services (“DYS”) for 

five years with 487 days credit on all seven cases. 

I. Facts 

{¶3} A.R. was first adjudicated delinquent in the Cuyahoga County Juvenile Court 

on November 20, 2014, for robbery, a second-degree felony if committed by an adult, in 

violation of R.C. 2911.02(A)(2). The court sentenced A.R. to DYS for a minimum 

period of 12 months, but stayed the commitment for 45 days, and placed him on 

community control for one year. On March 9, 2015, A.R. was adjudicated delinquent 

for theft, a fourth-degree felony if committed by an adult, in violation of R.C. 

2913.51(A). The court sentenced A.R. to DYS for six months, but suspended that 

commitment under the condition that A.R. participate and successfully complete a 

treatment program. The court ordered A.R. to complete 50 hours of community service 

and pay $250 in restitution. 
{¶4} Again that year, on September 28, 2015, the court adjudicated A.R. 

delinquent on six additional cases. In the first case, he was adjudicated delinquent for 

robbery, a second-degree felony, in violation of R.C. 2911.02(A)(2). The court 

sentenced A.R. to a 12-month suspended sentence to DYS, and placed him on community 

control for one year. In the second case, A.R. was adjudicated delinquent for burglary, a 

second-degree felony, in violation of R.C. 2911.12(A)(1); and theft, a first-degree 

misdemeanor, in violation of R.C. 2913.02(A)(1). The court sentenced A.R. to a 

six-month suspended sentence to DYS. A.R.’s third adjudication was for receiving 

stolen property, a fourth-degree felony, in violation of R.C. 2913.51(A); and burglary, a 

second-degree felony, in violation of R.C. 2911.12(A). The court sentenced A.R. to a 

six-month suspended sentence to DYS. 

{¶5} A.R. was adjudicated delinquent in the fourth case for burglary, a 

second-degree felony, in violation of R.C. 2911.12(A); and criminal damaging or 

endangering, a second-degree misdemeanor, in violation of R.C. 2909.06(A)(1). A.R. 

was sentenced to a 12-month suspended sentence on the burglary count, and 90 days 

suspended sentence on the criminal damaging count, to be served concurrently. In the 

final two cases, A.R. was adjudicated delinquent for burglary, a third-degree felony, in 

violation of R.C. 2911.12(A). The court sentenced A.R. to a six-month suspended 

sentence in both cases. The court ordered the sentences on all six cases to be served 

consecutively. 
{¶6} On December 4, 2015, the probation department filed a motion for violation 

of probation in the November 2014 case alleging that A.R. failed to follow the terms of 

his probation by not reporting his whereabouts and failing to attend school. On March 

16, 2016, A.R. admitted to the court that he violated his probation. In addition, he was 

adjudicated delinquent for attempted grand theft, a fifth-degree felony, in violation of 

R.C. 2923.21(A)(1) and 2913.02(A)(1); and criminal trespass, a fourth-degree 

misdemeanor, in violation of R.C. 2911.21(A)(1). On April 1, 2016, the court 

maintained the suspended one- year commitment on the violation of probation as long as 

A.R. participated in treatments and placement at Hillcrest Academy until he successfully 

completed the program. 

{¶7} In July 2016, the probation department filed a motion for violation of 

probation on Cuyahoga C.P. Juv. No. DL-14112213, the first case he was adjudicated 

delinquent, stating A.R. violated the terms of his probation when he was unsuccessfully 

discharged from Hillcrest. No other motions regarding any other cases were filed. 

Later on that month, the court held a hearing on the probation violation motion. During 

the proceedings, the court addressed A.R. stating, 

COURT: [T]he penalty for this is going to be to send you to ODYS. I 

will give you credit for time served, but the balance of 

whatever time that you have not served, you may have to 

serve at ODYS. 

Do you understand?” 
(Tr. 8.). The court then asked A.R. if he admitted or denied that he violated his 

probation. He admitted. The court then sentenced A.R. to the Ohio Department of 

Youth Services (“DYS”) for five years with 487 days credit on all seven cases. 

{¶8} A.R. has filed this timely appeal and argues three assignments of error for our 

review. 

I. A.R.’s admission to this probation violation 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; 

II. The juvenile court violated A.R.’s right to due process of law when 

it failed to follow the requirements of Juv.R. 35; Fifth and 

Fourteenth Amendments to the United States Constitution; Article I, 

Section 16 of the Ohio Constitution; and 

III. A.R. was denied the effective assistance of counsel when trial 

counsel failed to object to the juvenile court’s failure to comply with 

Juv.R. 35, Sixth and Fourteenth Amendments to the United States 

Constitution, and Article I, Section 10 of the Ohio Constitution. 

II. Probation Violation Admission 

A. Standard of Review 

{¶9} “We employ a de novo standard of review in determining the juvenile 

court’s degree of compliance with Juv.R. 29. See In re Beckert, 8th Dist. Cuyahoga No. 

68893, 1996 Ohio App. LEXIS 3319.” In re E.L., 8th Dist. Cuyahoga No. 90848, 

2010-Ohio-1413, ¶ 12. 
B. Law and Analysis 

{¶10} In A.R.’s first assignment of error, he argues that his admission to the 

probation violation was not knowing, intelligent, and voluntary because the juvenile court 

failed to substantially comply with Juv.R. 29(D). We agree. 

In accepting an admission from a juvenile, the court is required to 

personally address the juvenile and conduct an on-the-record discussion to 

determine whether the admission is being made voluntarily and with an 

understanding of the nature of the allegations and the possible 

consequences of the admission. Juv.R. 29(D)(1); In re McKenzie, 102 Ohio 

App.3d 275, 277, 656 N.E.2d 1377 (1995). 

In re Stone, 5th Dist. Coshocton No. 04-CA-013, 2005-Ohio-1831, ¶ 17. 

{¶11} The juvenile court did not inform A.R. of the possible consequences of his 

plea. 

The Ohio Supreme Court has stated that “[a]n 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 that a trial court personally 

address the defendant on the record with respect to the issues set forth in the 

rules.” In re C.S., 115 Ohio St. 3d 267, 285, 2007-Ohio-4919, 874 

N.E.2d 1177, quoting In re Smith, 3d Dist. Union No. 14-05-33, 

2006-Ohio-2788. In determining whether a trial court complied with the 

requirements of Crim.R. 11, “only substantial compliance is required.” 

See State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). The 

same is true for juvenile proceedings pursuant to Juv.R. 29; however, strict 

compliance is the preferred practice. In re C.S. at 285. But if the trial 

court substantially complies with Juv.R. 29 in accepting an admission by a 

juvenile, the plea will be deemed voluntary absent a showing of prejudice 

by the juvenile or a showing that the totality of the circumstances does not 

support a finding of a valid waiver. Id. In juvenile proceedings, 

“substantial compliance means that in the totality of the circumstances, the 

juvenile subjectively understood the implications of his plea.” Id.; In re 

L.A.B. at 113. 

In re E.L. at ¶ 11. 
{¶12} The juvenile court failed to explain to A.R. that his admission to the 

probation violation would result in him being sentenced on all of his previous cases. 

“Failure of the trial court to substantially comply with the provisions of Juv.R. 29(D) 

requires reversal, allowing the juvenile to plead anew.” (Internal citations omitted.) In 

re Stone at ¶ 19. “[T]he trial court bears the burden of explaining to a juvenile the 

consequences of an admission by explaining the minimum and maximum terms of 

commitment to ODYS that might result from the court’s accepting the juvenile’s 

admission.” In re T.B., 8th Dist. Cuyahoga Nos. 93422 and 93423, 2010-Ohio-523, ¶ 

10. 

An admission in a juvenile proceeding pursuant to Juv.R. 29(D) is 

analogous to a guilty plea made by an adult pursuant to Crim.R. 11(C). In 

re Christopher R., 101 Ohio App. 3d 245, 247, 655 N.E.2d 280 (1995); In 

re Jenkins, 101 Ohio App. 3d 177, 179, 655 N.E.2d 238 (1995). Both 

rules require the respective trial courts to make careful inquiries in order to 

insure that the admission or guilty plea is entered voluntarily, intelligently 

and knowingly. In re Flynn, 101 Ohio App. 3d 778, 781, 656 N.E.2d 737 

(1995) and In re McKenzie, 102 Ohio App. 3d 275, 277, 656 N.E.2d 1377 

656 N.E.2d 737. 

In re Beechler, 115 Ohio App.3d 567, 685 N.E.2d 1257 (4th Dist.1996). 

{¶13} In stating “[t]he penalty for this is going to be to send you to ODYS. I will 

give you credit for time served, but the balance of whatever time that you have not served, 

you may have to serve at ODYS. Do you understand?” (tr. 8), the juvenile court did not 

substantially comply where looking at the totality of the circumstances, A.R. could 

understand the implications of his admission. Although the juvenile court stated that it 
was going to send A.R. to ODYS, it did not explain the minimum or maximum terms of 

commitment that may result in the acceptance of an admission. 

{¶14} Appellant’s first assignment of error is sustained. 

III. Jurisdiction 

A. Standard of Review 

{¶15} We review violation of due process rights under a de novo standard. In re 

D.C., 2017-Ohio-114, 75 N.E.3d 1040, ¶ 14 (10th Dist.). 

More generally, however, appellate courts review constitutional questions 

under a de novo standard. State v. Rodgers, 166 Ohio App.3d 218, 

2006-Ohio-1528, ¶ 6, 850 N.E.2d 90 (10th Dist.). Indeed, the Supreme 

Court directs that constitutional issues are questions of law, even in the 

context of a juvenile court proceeding, and thus subject to de novo review. 

Id. 

B. Law and Analysis 

{¶16} In A.R.’s second assignment of error, he contends that the juvenile court 

violated his due process rights when it imposed a suspended commitment without 

jurisdiction and without finding that he violated a condition of probation of which he had 

been properly notified. We agree. 

The Ohio Supreme Court has held that juveniles are entitled to certain due 

process rights. In re C.S., citing In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 

L.Ed.2d 527 (1967). “Juv.R. 35(B) recognizes a juvenile’s due process 

rights through its requirements.” In re Royal, 132 Ohio App.3d 496, 725 

N.E.2d 685 (7th Dist.1999), citing In re Davis, 12th Dist. Clinton No. 

CA97-12-016, 1998 Ohio App. LEXIS 4170 (Sept. 8, 1998). Juv.R. 35 

provides, in pertinent part: 

“(A) Continuing jurisdiction; invoked by motion. The continuing 

jurisdiction of the court shall be invoked by motion filed in the original 
proceeding, notice of which shall be served in the manner provided for the 

service of process. 

(B) Revocation of probation. The court shall not revoke probation except 

after a hearing at which the child shall be present and apprised of the 

grounds on which revocation is proposed. The parties shall have the right 

to counsel and the right to appointed counsel where entitled pursuant to 

Juv.R. 4(A). Probation shall not be revoked except upon a finding that the 

child has violated a condition of probation of which the child had, pursuant 

to Juv.R. 34(C), been notified.” 

In re T.B., 8th Dist. Cuyahoga Nos. 93422 and 93423, 2010-Ohio-523, ¶ 14. 

{¶17} The record reveals that the state only filed a probation violation motion in 

A.R.’s first case (DL-14112213) from November 20, 2014, but did not file probation 

violation motions in the remaining six cases. The state should have notified A.R. that he 

had violated in his remaining six cases, as required by Juv.R. 35. See, e.g., In re T.B. at ¶ 

14. Therefore, A.R. had not been properly notified. “And the court must comply with 

Juv.R. 35 and inquire whether the juvenile has been notified of the rules of probation 

pursuant to Juv.R. 34(C).” Id. at ¶ 15. Without notification, the juvenile court erred 

when it sentenced A.R. on the remaining cases. 

{¶18} A.R.’s second assignment of error is sustained. 
IV. Ineffective Assistance of Counsel 

A. Standard of Review 

{¶19} “To succeed on a claim of ineffective assistance, a defendant must 

establish that counsel’s performance was deficient and that the defendant was prejudiced 

by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 

2052, 80 L.Ed.2d 674 (1984).” State v. Jackson, 8th Dist. Cuyahoga No. 104132, 

2017-Ohio-2651, ¶ 39. 

When reviewing counsel’s performance, this court must be highly 

deferential and “must indulge a strong presumption that counsel’s conduct 

[fell] within the wide range of reasonable professional assistance.” To 

establish resulting prejudice, a defendant must show that the outcome of the 

proceedings would have been different but for counsel’s deficient 

performance. (Internal citations omitted.) 

Id. at ¶ 40. 

B. Law and Analysis 

{¶20} In the third assignment of error, A.R. argues that he was denied effective 

assistance of counsel when his counsel failed to object to the juvenile court’s failure to 

comply with Juv.R. 35. 

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 

Gault, 387 U.S. 1, 41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Reversal of 

a conviction for ineffective assistance of counsel requires a defendant to 

show that (1) counsel’s performance was deficient, and (2) the deficient 

performance prejudiced the defense. State v. Smith, 89 Ohio St.3d 323, 

327, 731 N.E.2d 645 (2000), citing Strickland v. Washington, 466 U.S. 668, 

687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Defense counsel’s 

performance must fall below an objective standard of reasonableness to be 

deficient in terms of ineffective assistance of counsel. See State v. 

Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). Moreover, the 
defendant must show that there exists a reasonable probability that, were it 

not for counsel’s errors, the results of the proceeding would have been 

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

In re J.G., 2013-Ohio-583, 986 N.E.2d 1122, ¶ 22 (8th Dist.). 

{¶21} The record is clear that A.R.’s counsel did not object to the juvenile court’s 

failure to follow Juv.R. 35. Had A.R.’s counsel objected to the juvenile court’s failure 

to follow Juv.R. 35, A.R. may not have been sentenced on the other adjudications. If the 

court had sentenced A.R. in accordance with Juv.R. 35, notification on case 

DL-14112213 only, A.R. would have been sentenced to 12 months in DYS instead of five 

years. We find that trial counsel’s performance was deficient and to the prejudice of 

A.R. 

{¶22} A.R.’s final assignment of error is sustained. 

{¶23} Judgment is reversed and remanded. 

It is ordered that the appellant recover from appellee costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate be sent to said court to carry this judgment into 

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

the Rules of Appellate Procedure. 

__________________________________________ 

ANITA LASTER MAYS, JUDGE 

EILEEN A. GALLAGHER, P.J., and 

EILEEN T. GALLAGHER, J., CONCUR