[Cite as In re N.G., 2014-Ohio-3190.]

 

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

HANCOCK COUNTY 

 

IN RE: 

 CASE NO. 5-13-35 

 N.G., 

 O P I N I O N 

ALLEGED DELINQUENT CHILD. 

 

Appeal from Hancock County Common Pleas Court 

Juvenile Division 

Trial Court No. 20920318 

Judgment Reversed and Cause Remanded 

Date of Decision: July 21, 2014 

 

APPEARANCES: 

 

Amanda J. Powell for Appellant 

Mark C. Miller and Rebecca S. Newman for Appellee 

 
Case No. 5-13-35 

-2- 

WILLAMOWSKI, P.J.

{¶1} Appellant N.G. (“N.G.”) brings this appeal from the judgment of the 

Court of Common Pleas of Hancock County, Juvenile Division, denying his 

motion to vacate his sentence for being void. For the reasons set forth below, the 

judgment is reversed. 

{¶2} On July 6, 2009, the State filed a complaint in the juvenile court 

alleging that N.G., who was thirteen years of age at that time, appeared to be a 

delinquent child by engaging in sexual conduct with a child under the age of 

thirteen, which would constitute a charge of rape if committed by an adult. Doc. 

1. N.G. entered a plea of deny to the allegations. Doc. 3. On September 8, 2009, 

a case in which N.G. was a defendant and which was filed in the Court of 

Common Pleas of Hancock County, General Division, was transferred to the 

juvenile division. Doc. 12. This case was based upon a bill of information filed 

that set forth seven counts of rape with specifications that N.G. was a serious 

youthful offender. Id. On September 9, 2009, N.G. waived his right to be charged 

by indictment and consented to prosecution by information. Doc. 14. A hearing 

was held to arraign N.G. on the information on that same day. Doc. 15. At that 

time, N.G. admitted to the charges. Id. The trial court accepted the admission, 

found N.G. to be delinquent, and proceeded to impose a blended sentence upon 

N.G. Doc. 19. 
Case No. 5-13-35 

-3- 

Having heard statements of counsel for the State of Ohio and 

counsel for the Defendant along with parents of the victims, the 

Court made inquiry of the Defendant if he has anything to say in 

mitigation of sentence in his own behalf and the Court being so 

advised considered al [sic] relevant factors finds the offender is 

not amenable to available community sanctions and ORDERS 

that the Defendant serve a stated term of ten (10) years in prison 

for count one and ten (10) year [sic] for count two, to be served 

consecutively, and the sentences in counts three through seven 

shall run concurrently with counts one and two, and that a 

minimum sentence would be demeaning and would not 

adequately protect the public. 

The Court finds for reasons stated on the record, pursuant to 

[R.C. 2929.14(E)], that consecutive sentences are necessary to 

protect the public from future crime or to punish the Defendant 

and not disproportionate to the seriousness of the Defendant’s 

conduct and the danger the Defendant poses to the public. 

The Court has notified the Defendant that post released [sic] 

control imposed by the Parole Board under [R.C. 2967.28]. The 

Defendant is ORDERED to serve as part of this sentence any 

term of post released [sic] control imposed by the Parole Board, 

and any prison term for violation of the post release control. 

Whereupon, the Court ORDERS that the Adult portion of this 

sentence is hereby suspended on the condition that said child 

successfully completes the Juvenile Residential Center of 

Northwest Ohio or the Ohio Department of Youth Services 

commitment and aftercare as outlined below. 

As to the Juvenile portion of this sentence, and there being no 

objections, the Court finds said child to be a serious youth 

offender as defined by [R.C. 2911.01, 2909.04, and 2152.02] in 

committing the seven counts of rape, felonies of the first degree. 

Upon due consideration of all facts in said matter, the Court 

ORDERS that said child is hereby committed to the legal 

custody of the Ohio Department of Youth Services for 

institutionalization for an indefinite term consisting of a 
Case No. 5-13-35 

-4- 

minimum period totaling one (1) year for each count to be 

served consecutively, and a maximum period not to exceed the 

child’s attainment of the age of twenty-one (21) years. 

The Court further ORDERS that the Ohio Department of Youth 

Services Commitment is hereby suspended on a day-to-day basis 

upon said child’s successful completion of the treatment 

program at the Juvenile Residential Center of Northwest Ohio 

(JRC) at 1012 Dunbridge Road, Bowling Green, Ohio 43402 

(Public Safety Bed) and the aftercare program upon his release. 

Doc. 19, 2-4. 

{¶3} On July 8, 2011, an arrest warrant was issued when N.G. violated the 

terms of his probation by violating curfew by spending the night away from home 

without permission and without notifying his parents of where he would be. Doc. 

24. A further notice of probation violation was filed on July 13, 2011, and alleged 

that N.G. had sent an inappropriate photo of his penis to another juvenile and was 

engaging in sending text messages of a sexual nature. Doc. 25. On July 15, 2011, 

the State filed a motion to invoke the adult portion of his sentence as a result of 

these activities. Doc. 26. A hearing was held on the motions on July 26, 2011. 

Doc. 30. The trial court made findings that N.G. had successfully completed the 

treatment program at JRC, and was then placed on probation. Id. The trial court 

determined that N.G. had not successfully completed his aftercare portion (the 

probation), found that the parties had stipulated to the fact that he had violated the 

terms of his probation, and ordered that the adult portion of the sentence be 
Case No. 5-13-35 

-5- 

invoked. Id. N.G. was then remanded back to the Wood County Juvenile 

Detention Center pending a pre-sentence investigation. Id. 

{¶4} A sentencing hearing was held on September 8, 2011. Doc. 32. The 

trial court then sentenced N.G. as follows. 

This Court has previously found that said youth has not 

successfully completed the subsequent aftercare and finds that 

all parties stipulate that said youth has been in violation of his 

supervision and ORDERS that the adult portion of said youth’s 

sentence shall be invoked. 

The Court also finds that all parties stipulate that said child is at 

least fourteen years of age; had been admitted to a department 

of youth services facility (Juvenile Residential Center of 

Northwestern Ohio); is serving the juvenile portion serious 

youthful offender dispositional sentence; has committed an act 

in violation of his supervision; demonstrates that he is unlikely 

to be rehabilitated during the remaining period of juvenile 

jurisdiction; and has engaged in conduct that creates risk to 

victims and/or the community. ORC 2152.14(E)(1)

* * * 

It is therefore ORDERED that said child serve a term of 

seven(7) [sic] years in prison for count one and seven(7) [sic] 

years for count two, to be served concurrently. Said child shall 

be granted credit for time served of 129 days along with future 

custody days while Defendant awaits transportation to the 

appropriate state institution. In counts three(3) [sic] through 

seven(7) [sic], court costs shall be assessed only. 

The Court ORDERS that said child is also subject to a period of 

five(5) [sic] years post release control, which is imposed by the 

Parole Board under [R.C. 2967.28]. 
Case No. 5-13-35 

-6- 

Doc. 32, 2-3. N.G. filed a delayed appeal from this judgment on April 9, 2012. 

Doc. 33. On May 25, 2012, this court dismissed the appeal as untimely. Doc. 40. 

{¶5} On July 24, 2013, N.G. filed a motion to vacate his sentence as being 

void. Doc. 42. The motion alleged the sentence was void because the trial court 

erred in invoking the adult portion of his sentence. Id. N.G. argued that he had 

not previously been admitted to a department of youth services (“DYS”) facility. 

Id. On September 25, 2013, the trial court denied the motion claiming that it 

lacked jurisdiction to rule on it. Doc. 46. N.G. filed a notice of appeal from this 

judgment on October 25, 2013. Doc. 47. On appeal, N.G. raises two assignments 

of error. 

First Assignment of Error 

The Hancock County Juvenile court erred when it determined 

that it was without jurisdiction to rule on N.G.’s request to 

vacate a void sentence. 

Second Assignment of Error 

The Hancock County Juvenile Court was without authority to 

invoke the adult portion of N.G.’s serious youthful offender 

disposition; therefore, the sentence is void and must be vacated. 

{¶6} In the first assignment of error, N.G. claims that the trial court erred in 

finding it lacked jurisdiction to hear his motion to vacate the sentence. On review, 

the trial court determined that it did not have jurisdiction to hear the motion 

because it was actually an untimely motion for post-conviction relief. The trial 
Case No. 5-13-35 

-7- 

court also indicated that the alleged error could have been raised on direct appeal, 

but was not. The Ohio Supreme Court has held that if an imposed sentence is not 

authorized by law, it is void. State v. Billiter, 134 Ohio St.3d 103, 2012-Ohio5144, 980 N.E.2d 960, ¶ 10. 

The effect of determining that a judgment is void is well 

established. It is as though such proceedings had never 

occurred; the judgment is a mere nullity and the parties are in 

the same position as if there had been no judgment. 

Id. (quoting State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, 

¶ 12). A sentence that is void is not subject to the limits of the doctrine of res 

judicata and may be reviewed at any time, either on direct appeal or by collateral 

attack. Billiter, supra at ¶ 10. If the sentence is void, then it can be raised at any 

time and is not a petition for post-conviction relief. State v. Holcomb, 184 Ohio 

App.3d 577, 2009-Ohio-3187, 921 N.E.2d 1077, ¶ 19 (9th Dist.) (citing State v. 

Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, 906 N.E.2d 422, ¶ 13, holding that 

a trial court has an obligation to recognize a void sentence and to vacate it and 

may not ignore it). See also State v. Rogers, 8th Dist. Cuyahoga NO. 98059, 2012-

Ohio-4598 and State v. Thomas, 1st Dist. Hamilton Nos. C-100411, C-100412, 

2011-Ohio-1331. 

{¶7} In this case, N.G. filed a motion to have his sentence vacated because 

he alleged that the sentence was contrary to law and was thus void. Because it 

raises the question of whether the sentence was contrary to law and void, the trial 
Case No. 5-13-35 

-8- 

court must first determine whether the argument is colorable before deciding the 

motion is actually an untimely petition for post-conviction relief and dismissing 

the motion for lack of jurisdiction. Thus, this court must first determine whether 

N.G. raised a colorable claim that the sentence was contrary to law before it can 

rule on the trial court’s decision to dismiss the motion for a lack of jurisdiction. 

That is the topic of the second assignment of error. 

{¶8} In the second assignment of error, N.G. claims that the trial court erred 

by invoking the adult portion of his sentence because it did not comply with the 

statutory requirements. R.C. 2152.14 governs the requirements for invoking the 

adult portion of a blended juvenile sentence. 

(E)(1) The juvenile court may invoke the adult portion of a 

person’s serious youthful offender dispositional sentence if the 

juvenile court finds all of the following on the record by clear 

and convincing evidence: 

(a) The person is serving the juvenile portion of a serious 

youthful offender dispositional sentence. 

(b) The person is at least fourteen years of age and has been 

admitted to a [DYS] facility, or criminal charges are pending 

against the person. 

(c) The person engaged in the conduct or acts charged under 

division (A), (B), or (C) of this section, and the person’s conduct 

demonstrates that the person is unlikely to be rehabilitated 

during the remaining period of juvenile jurisdiction. 
Case No. 5-13-35 

-9- 

R.C. 21523.141

 The sole dispute in this case is whether N.G. had ever been 

admitted to a DYS facility at the time the adult portion of the sentence was 

invoked. 

{¶9} Here, the trial court made a specific finding that N.G. had previously 

been at a DYS facility based upon a stipulation of the parties. A stipulation may 

be defined as a voluntary agreement made in a judicial proceeding by the parties 

as to some relevant point to eliminate the need to present proof of a fact. State v. 

Small, 162 Ohio App.3d 375, 2005-Ohio-3813, 833 N.E.2d 774 (10th Dist.). 

Although parties may stipulate to facts, they may not stipulate to legal 

requirements. Wilson v. Harvey, 164 Ohio App.3d 278, 2005-Ohio-5722, 842 

N.E.2d 83 (8th Dist.). Stipulations as to legal requirements do not relieve the trial 

court of its duty to independently determine whether the statutory requirements are 

met. Crow, et al. v. Nationwide Mut. Ins. Co., 159 Ohio App.3d 417, 2004-Ohio7117, 824 N.E.2d 127 (5th Dist.). R.C. 2152.14(E) requires that the facility be a 

DYS facility in order to invoke the adult portion of the sentence, thus this is a 

legal requirement which must be independently determined by the trial court. 

{¶10} There is no question that N.G. was sent to JRC. There is also no 

question that the parties believed that this was a DYS facility. However, the trial 

court was required to determine if this was the case. Upon review, this court holds 

 

1

 This is the version of the statute in effect at the time of N.G.’s adult portion of his sentence was invoked. 

A similar version went into effect on September 30, 2011. 
Case No. 5-13-35 

-10- 

that JRC was statutorily not a DYS facility, but rather was a community 

corrections facility (“CCF”). In support of N.G.’s motion, he filed Exhibits C and 

D. Exhibit C was a list of CCFs identified by DYS as providing dispositional 

alternatives to a DYS facility. Doc. 42. On this list is JRC, where N.G. was 

placed. JRC was identified as providing programming for sex offenders from 

Hancock County. Id. Exhibit D, on the other hand, lists the juvenile correctional 

facilities. These were identified as Circleville JCF, Cuyahoga Hills JCF, Indian 

River JCF, and Scioto JCF. Id. CCFs are statutorily defined as “a county or 

multicounty rehabilitation center for felony delinquents who have been committed 

to [DYS] and diverted from care and custody in an institution and placed in the 

rehabilitation center pursuant to [R.C. 5139.36(E)].” R.C. 5139.01(A)(14) 

(emphasis added). The statute also provides that DYS may make referrals to place 

children in its custody in CCFs in lieu of placing them in a DYS facility. R.C. 

5139.36(C)(3)(a), (E)(2). The trial court in its original judgment entry of 

sentencing recognized the difference between placement in a DYS facility and 

placement in a CCF. The trial court specifically imposed a DYS commitment, 

then suspended that commitment to place N.G. in JRC, which is a CCF. 

{¶11} Finally the Ohio Supreme Court has recognized that these treatment 

facilities are not detention at DYS. In re Thomas, 100 Ohio St.3d 89, 2003-Ohio5162, 796 N.E.2d 908. In Thomas, the Supreme Court held that the time spent in a 
Case No. 5-13-35 

-11- 

rehabilitation center, i.e. a CCF, did not count towards the DYS commitment as it 

was not “detention.” The Supreme Court said that the time spent in a CCF could 

only be counted if 1) the juvenile was held in the facility awaiting final 

adjudication of disposition, 2) the juvenile was held there while awaiting transport 

to a DYS facility, or 3) the juvenile was held in the facility awaiting disposition of 

a probation violation. Id. at ¶ 13. Otherwise, the Ohio Supreme Court held that 

time spent in a CCF was distinct from the DYS commitment and the time does not 

count towards the commitment. Although this is not the issue before us, it further 

bolsters the argument that time spent in a CCF does not equate to being admitted 

to a DYS facility. 

{¶12} Here, N.G. had not been committed to a DYS facility. The 

commitment to a DYS facility was suspended and N.G. was placed in a CCF and 

then upon probation after successfully completing the program. Given this fact, 

the trial court erroneously determined that N.G. had been placed in a DYS facility 

based solely upon the mistaken belief of the parties. The statutory requirements 

for invoking the adult portion of a blended sentence were not met. Therefore, the 

sentence invoking the adult portion is contrary to law and is void. The second 

assignment of error is sustained. 

{¶13} Having found that the sentence was void ab initio because the 

statutory requirements to invoke the adult portion of the sentence were not met, we 
Case No. 5-13-35 

-12- 

can now address the dismissal of the motion. The motion to vacate the sentence 

was not an untimely petition for post-conviction relief and should have been 

addressed by the trial court. In addition, the doctrine of res judicata would not 

apply because the sentence was void. The first assignment of error is sustained. 

{¶14} Having found errors prejudicial to the defendant, the judgment of the 

Court of Common Pleas of Hancock County, Juvenile Division, is reversed and 

the matter is remanded to the trial court. 

Judgment Reversed and 

Cause Remanded 

ROGERS and PRESTON, J.J., concur. 

/jlr