[Cite as In re C.B., 2012-Ohio-5143.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

AUGLAIZE COUNTY 

 

IN THE MATTER OF: CASE NO. 2-11-13 

 C.B., 

 O P I N I O N 

ADJUDICATED DELINQUENT CHILD. 

 

IN THE MATTER OF: CASE NO. 2-11-14 

 C.B., 

 O P I N I O N 

ADJUDICATED DELINQUENT CHILD. 

 

Appeals from Auglaize County Common Pleas Court 

Juvenile Division 

Trial Court Nos. 2010 DEL 173 and 2010 DEL 154 

Judgments Reversed and Causes Remanded 

Date of Decision: November 5, 2012 

 

APPEARANCES: 

Amanda J. Powell for Appellant 

Edwin Pierce and R. Andrew Augsburger for Appellee 
Case Nos. 2-11-13, 2-11-14 

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WILLAMOWSKI, J.

{¶1} Defendant-appellant C.B., a minor child, brings these appeals from the 

judgments of the Court of Common Pleas of Auglaize County, Juvenile Division. 

The trial court found that C.B. had violated the terms of his community control 

and sentenced him to a minimum of six months in the custody of the Department 

of Youth Services (“DYS”). For the reasons set forth below, the judgments are 

reversed. 

{¶2} On September 20, 2010, C.B. was charged with delinquency for 

committing what would be a gross sexual imposition in violation of R.C. 

2907.05(A)(4) if he were an adult. He admitted to the offense and was adjudicated 

to be a delinquent on September 28, 2010. C.B. was thirteen years of age at the 

time and was not represented by counsel. On December 16, 2010, the trial court 

held a hearing on a claim that C.B. was delinquent for violating the terms of his 

community control for failing to follow basic directions at the West Central 

Rehabilitation Center. C.B. proceeded without counsel and entered an admission. 

He was subsequently found to be delinquent. The dispositional hearing was held 

on January 11, 2011, and C.B. was returned to the West Central Rehabilitation 

Center. 

{¶3} On April 14, 2011, C.B. was again charged with delinquency for 

failing to comply with the terms of his community control. The complaint alleged 
Case Nos. 2-11-13, 2-11-14 

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that C.B. was delinquent for committing criminal mischief. C.B. again proceeded 

without counsel and admitted to the allegation. Based upon the admission, C.B. 

was found to be delinquent and was again returned to the West Central 

Rehabilitation Center. 

{¶4} On May 23, 2011, another hearing was held because the State filed 

another complaint alleging that C.B. was delinquent for another violation of his 

community control. At this hearing, C.B. again agreed to proceed without an 

attorney, but denied the allegations in the complaint. The matter was set for trial. 

The trial was held on June 23, 2011. C.B. again agreed to proceed without 

counsel and the trial was held. At the conclusion, the trial court found C.B. to be 

delinquent for violating the terms of his community control. The trial court 

sentenced C.B. to a minimum of six months in the custody of DYS. C.B. appeals 

from this judgment and raises the following assignments of error. 

First Assignment of Error 

The Auglaize County Juvenile Court violated [C.B.’s] right to 

counsel and to due process under the Fifth and Fourteenth 

Amendments to the United States Constitution; Section 16, 

Article I of the Ohio Constitution; Ohio Revised Code 2151.352; 

and Juvenile Rules 3, 4, and 29. 

Second Assignment of Error 

The State’s improper actions in failing to inform [C.B.] of his 

right to present witnesses if indigent deprived [C.B.] of his right 

to a fair trial as guaranteed by the Fourteenth Amendment to 

the United States Constitution. 
Case Nos. 2-11-13, 2-11-14 

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{¶5} In the first assignment of error, C.B. alleges that the trial court did not 

adequately determine that he was knowingly, voluntarily, and intelligently 

entering a waiver of counsel. The United States Supreme Court has recognized 

that the due process clause of the Fourteenth Amendment applies to juvenile 

delinquency proceedings. In re Gault, 387 U.S. 1, 87 S.Ct. 142 8, 18 L.Ed.2d 

527 (1967). In Gault, the Court determined that juveniles must be informed of 

their right to counsel. Id. The Ohio Supreme Court adopted the holding of Gault

in In re Agler, 19 Ohio St.2d 70 (1969). Additionally, the Ohio legislature has 

guaranteed juveniles the right to counsel. 

A child * * * is entitled to representation by legal counsel at all 

stages of the proceedings under this Chapter or Chapter 2152 of 

the Revised Code. If, as an indigent person, a party is unable to 

employ counsel, the party is entitled to have counsel provided 

for the person pursuant to Chapter 120 of the Revised Code * * 

*. If a party appears without counsel, the court shall ascertain 

whether the party knows of the party’s right to counsel and of 

the party’s right to be provided with counsel if the party is an 

indigent person. 

R.C. 2151.352. This right is also provided by the Rules of Juvenile Procedure. 

“Every party shall have the right to be represented by counsel and every child * * 

* the right to appointed counsel if indigent.” Juv.R. 4(A). At the beginning of any 

adjudicatory hearing, the trial court must address the right to counsel if the 

juvenile is unrepresented. Juv.R. 29(B). 
Case Nos. 2-11-13, 2-11-14 

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At the beginning of the hearing, the court shall do all of the 

following: 

* * * 

(3) Inform unrepresented parties of their right to counsel and 

determine if those parties are waiving their right to counsel; 

(4) Appoint counsel for any unrepresented party under Juv.R. 

4(A) who does not waive the right to counsel; 

(5) Inform any unrepresented party who waives the right to 

counsel of the right: to obtain counsel at any stage of the 

proceedings, to remain silent, to offer evidence, to cross-examine 

witnesses, and, upon request, to have a record of all proceedings 

made, at public expense if indigent. 

Juv.R. 29(B). 

A child’s right to be represented by counsel at a hearing 

conducted pursuant to Juv.R. 30 may not be waived. Other 

rights of a child may be waived with permission of the court. 

Juv.R. 3.1

{¶6} The Ohio Supreme Court has addressed this issue in In re C.S., 115 

Ohio St.3d 267, 2007-Ohio-4919. The Court held as follows. 

[I]n a delinquency proceeding, a juvenile may waive his 

constitutional right to counsel, subject to certain standards 

articulated below, if he is counseled and advised by his parent, 

custodian, or guardian. If the juvenile is not counseled by his 

parent, guardian, or custodian and has not consulted with an 

attorney, he may not waive his right to counsel. 

* * * 

 

1

 This is the old rule which was in effect at the time of the hearing in question in this appeal. The new rule 

is much more detailed about how a waiver may be obtained. The new version went into effect on July 1, 

2012. 
Case Nos. 2-11-13, 2-11-14 

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In holding that the constitutional right to counsel may be waived 

by a juvenile, we apply the definition of waiver used in State v. 

Foster – an “intentional relinquishment or abandonment of a 

known right.” * * * As in cases involving adults, there is a 

strong presumption against waiver of the constitutional right to 

counsel. Johnson v. Zerbst (1938), 304 U.S. 458, 464, 58 S.Ct. 

1019, 82 L.Ed. 1461. 

An effective waiver of the right to counsel by a juvenile must be 

voluntary, knowing and intelligent. State v. Gibson (1976), 45 

Ohio St.2d 366, 74 O.O.2d 525, 345 N.E.2d 399, paragraph one 

of the syllabus. In a juvenile court proceeding in which the 

judge acts as parens partriae, the judge must scrupulously 

ensure that the juvenile fully understands, and intentionally and 

intelligently relinquishes, the right to counsel. Id. at paragraph 

two of the syllabus; * * *. 

In the discharge of that duty, the judge is to engage in a 

meaningful dialogue with the juvenile. Instead of relying solely 

on a prescribed formula or script for engaging a juvenile during 

the consideration of the waiver, * * * the inquisitional approach 

is more consistent with the juvenile court’s goals, and is best 

suited to address the myriad factual scenarios that a juvenile 

judge may face in addressing the question of waiver. 

We agree with the Supreme Court of Nebraska’s recent holding 

that a totality-of-the-circumstances analysis is the proper test to 

be used in ascertaining whether there has been a valid waiver of 

counsel by a juvenile. * * * The judge must consider a number of 

factors and circumstances, including the age, intelligence, and 

education of the juvenile; the juvenile’s background and 

experience generally and in the court system specifically; the 

presence or absence of the juvenile’s parent, guardian, or 

custodian; the language used by the court in describing the 

juvenile’s rights; the juvenile’s conduct; the juvenile’s emotional 

stability; and the complexity of the proceedings. * * * 

In cases such as this one, in which a juvenile is charged with a 

serious offense, the waiver of the right to counsel must be made 
Case Nos. 2-11-13, 2-11-14 

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in open court, recorded, and in writing * * * If a written waiver 

has been executed, the juvenile court judge must consider the 

form used and the juvenile’s literacy level to ensure that the 

juvenile has an intelligent understanding of the document and 

an appreciation of the gravity of signing it. 

In re C.S., supra at ¶105-109, see, also In re Ramon, 3d Dist. No. 4-07-03, 2007-

Ohio-5768 (reversing a waiver of counsel by juvenile for violating the provisions 

of C.S. and Juv.R. 29). The rights dialogue discussed in C.S. and provided for by 

Juv.R. 29 is mandatory and the failure to advise the juvenile of the rights is 

reversible error. Ramon, supra at ¶17 (quoting In re Kimble, 114 Ohio App.3d 

136, (3d Dist. 1996)). 

{¶7} The Ohio Supreme Court has previously provided guidance as to what 

is needed to have a valid waiver of counsel. The Court has required that the 

warning be sufficient to impose on the defendant the seriousness of the offense 

and the consequences of having a trial or not could have on his or her life. State v. 

Gibson, 45 Ohio St.2d 366 (1976). 

This protecting duty imposes the serious and weighty 

responsibility upon the trial judge of determining whether there 

is an intelligent and competent waiver by the accused.' To 

discharge this duty properly in light of the strong presumption 

against waiver of the constitutional right to counsel, a judge 

must investigate as long and as thoroughly as the circumstances 

of the case before him demand. The fact that an accused may tell 

him that he is informed of his right to counsel and desires to 

waive this right does not automatically end the judge's 

responsibility. To be valid such waiver must be made with an 

apprehension of the nature of the charges, the statutory offenses 

included within them, the range of allowable punishments 
Case Nos. 2-11-13, 2-11-14 

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thereunder, possible defenses to the charges and circumstances 

in mitigation thereof, and all other facts essential to a broad 

understanding of the whole matter. 

Id. at 376-77. The Court has also required that a defendant be “made aware of the 

dangers and disadvantages of self-representation' so that the record established that 

‘he [knew] what he [was] doing and his choice [was] made with eyes open.’” 

State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, ¶44 (quoting Faretta v. 

California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562). 

{¶8} Here, the following dialogue took place at the preliminary hearing. 

The Court: Now throughout the course of these proceedings, 

[C.B.], you have the right to have an attorney represent you. If 

you cannot afford an attorney one can be appointed to represent 

you at little or no cost to you. Do you understand that? 

C.B.: Yes, Sir. 

The Court: Do you wish to go on today without an attorney or 

would you like to have time to talk with an attorney first? 

C.B.: Sir, I would like to go on. 

The Court: Mr. Kiefer is going to give you a piece of paper, 

[C.B.], which is your written waiver of your right to an attorney. 

I want you to read it. If you agree with it, sign it at the bottom 

where it says, “Juvenile” and then give it to your custodian for 

her review and if she agrees with your decision she may sign it as 

well. ([C.B.] reading and signing waiver.) 

Now even though you have signed that, [C.B.], if at any time you 

change your mind and you decide you do want an attorney all 

you have to do is tell me, okay. 

C.B.: Yes, Sir. 
Case Nos. 2-11-13, 2-11-14 

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May 23, 2011 Hearing, 5. This court notes that all of the discussions at prior 

hearings were substantially the same. 

{¶9} On June 23, 2011, the trial took place. Before the trial, the trial court 

reaffirmed that C.B. wished to proceed without an attorney. 

The Court: [C.B.], I explained to you before when you were here 

that you do have the right to have an attorney represent you in 

these proceedings, and if you cannot afford an attorney one can 

be appointed to represent you. Do you understand that? 

C.B.: Yes, Sir. 

The Court: Do you want to go ahead today with this trial 

without an attorney assisting you? 

C.B.: Yes Sir. 

The Court: Do you understand that you are going to be held to 

the same standards as any other lawyer with regard to the 

presentation of evidence and so forth? 

C.B.: Yes, Sir. 

The Court: And you still want to go on without an attorney? 

C.B.: Yes, Sir. 

The Court: You understand, [C.B.], that if the Court finds that 

you violated the terms and conditions of probation your 

protective supervision could be placed with the Department of 

Jobs and Family Services; your temporary or permanent 

custody placed with another person; you could be placed into a 

foster home; you could be placed on Community Control 

Probation for an indefinite period of time; could be fined up to 

fifty dollars ($50.00), assessed the court costs; if you have a 

driver’s license it can be suspended or revoked; you could be 
Case Nos. 2-11-13, 2-11-14 

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detained for a period of up to a hundred and eighty (180) days 

or your legal custody can be committed to the Department of 

Youth Services for a minimum period of six (6) months to a 

maximum period of the attainment of the age of twenty-one (21). 

Do you understand all of those things? 

C.B.: Yes Sir, I do. 

The Court: And you still wish to go forward without an 

attorney? 

C.B.: Yes, Sir. 

The Court: You’re certain of that? 

C.B.: Yes, Sir. 

The Court: Mr. Kiefer, then is going to give you a piece of 

paper, [C.B.] which is your written waiver of your right to an 

attorney. I want you to read it. If you do agree with it, sign it at 

the line where it says “Juvenile”, then give it to your guardian 

for her review and if she agrees with your decision she may sign 

it as well. 

June 23, 2011, Hearing, 6-7. The trial court did not engage in any dialogue with 

C.B. that would insure that he was counseled either by an attorney or his guardian 

before waiving his right to counsel. Absent a showing that C.B. received counsel 

before the waiver, the waiver cannot be accepted. C.S., supra at ¶98. There was 

no evidence that he fully understood what rights he was waiving. He was not fully 

informed of his right to remain silent, his right to cross-examine witnesses, or his 

right to a transcript prior to the waiver as was required by Juv.R. 29(B). There 

was also no discussion of the possible defenses and claims of mitigation as 
Case Nos. 2-11-13, 2-11-14 

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required by the Ohio Supreme Court. Gibson, supra at 377. Finally, the trial 

court did not inform C.B. of the dangers and disadvantages that self-representation 

entailed. Martin, supra at ¶44. A review of the record indicates that the trial court 

neither conducted the required dialogue with the defendant nor conducted the 

totality of the circumstances analysis to determine if the waiver was intelligently, 

knowingly, and voluntarily made. This is in violation of Juvenile Rule 29 and the 

precedent set forth by the Ohio Supreme Court and this court. Therefore, the 

waiver of counsel was not valid and the first assignment of error is sustained. 

{¶10} Having found prejudicial error with the first assignment of error, the 

second assignment of error is moot and need not be addressed by this court. 

{¶11} The judgments of the Court of Common Pleas of Auglaize County, 

Juvenile Division are reversed and these matters are remanded. 

Judgment Reversed and 

Cause Remanded 

SHAW, P.J. and PRESTON, J., concur. 

/jlr