[Cite as In re D.P., 2014-Ohio-5414.]

Appeal From: Hamilton County Juvenile Court 

 

Judgment Appealed From Is: Reversed and Cause Remanded 

Date of Judgment Entry on Appeal: December 10, 2014 

Gordon C. Magella for Appellant D.P., 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman 

Curran, Assistant Prosecuting Attorney, for Appellee State of Ohio. 

Please note: this case has been removed from the accelerated calendar. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

IN RE: D.P. 

 

 

 

:

: 

: 

APPEAL NO. C-140158 

TRIAL NO. 13-487Z 

 

 O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS 

 

 2 

FISCHER, Judge.

{¶1} D.P. appeals the February 27, 2014 judgment of the Hamilton County 

Juvenile Court that committed him to the Department of Youth Services (“DYS”) and 

credited him with the 99 days he had been “confined” at the Hamilton County Youth 

Center towards his DYS commitment. He argues that he was also “confined” at the 

Hillcrest School, and that the juvenile court erred by failing to credit him with the 

days he had spent there prior to his commitment to DYS. 

{¶2} After reviewing the applicable statute, R.C. 2152.18(B), the case law, 

and the record, we cannot determine whether D.P. was “confined” for purposes of 

R.C. 2152.18(B), because it requires our consideration of facts relating to nature of 

the Hillcrest School and the staff’s control regarding D.P.’s personal liberties during 

his time there, which are not a part of the record on appeal. We, therefore, reverse 

the judgment of the juvenile court and remand the matter for the development of the 

record with respect to those issues. 

Factual and Procedural Posture 

{¶3} D.P. was charged by complaint with committing acts which, had they 

been committed by an adult, would have constituted the offense of aggravated 

robbery with two firearm specifications, one for possession and one for facilitation. 

A magistrate adjudicated D.P. delinquent of aggravated robbery with both firearm 

specifications. The matter of disposition was heard by the juvenile court judge. Prior 

to the dispositional hearing, D.P. moved to dismiss the firearm specifications. The 

juvenile court judge denied D.P.'s motion as it related to the firearm-possession 

specification, but held in abeyance the portion of D.P.’s motion seeking to dismiss 

the facilitation specification. The juvenile court judge then placed D.P. on probation 

and ordered that he attend the Hillcrest School. 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

 3 

{¶4} The state appealed the disposition. See In re D.P., 1st Dist. Hamilton 

Nos. C-130293 and C-130298, 2014-Ohio-467. It argued that the juvenile court had 

erred in failing to commit D.P. to DYS. Id. at ¶ 6. It further asserted that the juvenile 

court's disposition was tantamount to a dismissal of the firearm-facilitation 

specification and that such a dismissal was not within the court's discretion. Id. This 

court agreed with the state. Id. at ¶ 7. 

{¶5} This court held that D.P.’s commitment to DYS was mandatory under 

the plain language of R.C. 2152.17(A)(2), which provides that 

If a juvenile, were he an adult, * * * would be guilty of a specification of 

the type set forth in R.C. 2941.145 of the Revised Code [a firearm 

facilitation specification], the court shall commit the child to the 

department of youth services for the specification for a definite period 

of not less than one and not more than three years, and the court also 

shall commit the child to the department for the underlying delinquent 

act under sections 2152.11 to 2152.16 of the Revised Code. 

{¶6} Thus, we held that the juvenile court did not have the discretion to 

dismiss the firearm-facilitation specification, and that D.P.’s motion to dismiss the 

facilitation specification was a nullity. Id. at ¶ 10. We further held that the juvenile 

court “did not have the discretion, under R.C. 2152.17(A)(2) to place D.P. on 

probation and order him to attend Hillcrest.” Id. at ¶ 9. As a result, we reversed the 

judgment of the juvenile court and remanded the matter for disposition pursuant to 

R.C. 2152.17(A)(2). Id. at ¶ 10. 

{¶7} On February 20, 2014, the juvenile court held a dispositional hearing. 

It committed D.P. to DYS for a minimum of one year on the firearm-facilitation 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

 4 

specification, and to an indefinite term of one year to age 21 on the underlying 

aggravated robbery, and ordered that the commitments be served consecutively. 

During the hearing, D.P.’s counsel orally moved the court to credit D.P. with the time 

he had spent at the Hamilton County Youth Center and the Hillcrest School against 

his DYS commitment. The state agreed that D.P. should be credited with the time he 

had spent at the Hamilton County Youth Center, but it opposed D.P.’s motion to the 

extent he sought to be credited for the time at the Hillcrest School. 

{¶8} The trial court stated that it would take the matter under advisement, 

and asked counsel for D.P. and the state to brief the matter. On February 21, 2014, 

and February 24, 2014, the state and D.P. filed opposing briefs. On February 27, 

2014, the juvenile court journalized an entry, which committed D.P. to DYS and 

credited him with the 99 days he had spent at the Youth Center towards the balance 

of his DYS commitment. 

Analysis 

{¶9} In a single assignment of error, D.P. argues that the juvenile court 

erred by failing to credit the 310 days he had spent at the Hillcrest School towards 

the balance of his commitment to DYS, in violation of R.C. 2152.18. 

{¶10} In 2012 the General Assembly amended R.C. 2152.18, the statute 

relating to credit that juveniles are entitled to receive towards their DYS 

commitment. Under the former version of the statute, a youth committed to a DYS 

facility could only receive credit for days the youth was held in “detention.” See

former R.C. 2152.18(B). The statute defined detention as “the temporary care of 

children pending court adjudication or disposition, or execution of a court order, in a 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

 5 

public or private facility designed to physically restrict the movement and activities 

of children.” See R.C. 2151.011(B)(14). 

{¶11} The General Assembly amended R.C. 2152.18(B), effective September 

28, 2012, deleting the word “detention” and replacing it with “confined.” As a result, 

the statute now provides: 

When a juvenile court commits a delinquent child to the custody of the 

department of youth services pursuant to this chapter, the court shall 

state in the order of commitment 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. The court 

shall not include days that the child has been under electronic 

monitoring or house arrest or days that the child has been confined in 

a halfway house. The department shall 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 additional days that the 

child has been confined subsequent to the order of commitment but 

prior to the transfer of physical custody of the child to the department. 

{¶12} Under the plain language of the statute, the juvenile court, upon D.P.'s 

commitment to DYS, was required to calculate the total number of days D.P. had 

been “confined” in connection with the delinquent-child complaint upon which his 

order of commitment was based. The court could not include any days that D.P. had 

been on electronic monitoring, house arrest, or “confined in a halfway house.” See

R.C. 2152.18(B). 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

 6 

{¶13} The term “confined” is not defined in R.C. Chapter 2152. D.P. and the 

state dispute the meaning of the term. The state argues that the term “confine” is 

synonymous with imprison, incarcerate, and jail. It contends that because Hillcrest 

School is not a lockdown facility, D.P. was not “confined,” and therefore, he is not 

entitled to credit for any days he spent there. D.P. argues that this court should 

apply the definition of “confinement” in R.C. 2967.191, the adult-jail-time credit 

statute, as articulated by the Ohio Supreme Court in State v. Napier, 93 Ohio St.3d 

646, 648, 758 N.E.2d 1127 (2001). 

{¶14} In Napier, the Ohio Supreme Court addressed whether time in a 

community-based corrections facility (“CBCF”) should be credited against prison 

time under R.C. 2967.191 since inmates have much greater opportunities to leave the 

facilities than those confined in prison or jail. In that case, the defendant had 

pleaded guilty to felony drug possession and had been sentenced to three years of 

community-control sanctions, including evaluation and treatment at a residential 

CBCF. Id. at 649. After the defendant had violated his community-control 

sanctions, the trial court imposed an eight-month prison sentence, and the 

defendant claimed he was entitled to credit for 110 days spent at the CBCF. The trial 

court granted the defendant credit for only 30 days at the facility when he had been 

in a “lockdown” status, and not permitted to leave the facility. Id. at 647. 

{¶15} The Supreme Court reversed the trial court's decision, holding that the 

defendant was entitled to credit for all the time he had spent at the facility. Id. at 

648. In reaching this conclusion, the Supreme Court focused on its prior opinion in 

State v. Snowder, 87 Ohio St.3d 335, 720 N.E.2d 909 (1999), where, in considering 

whether a CBCF was “confinement,” it had looked to the definition of a CBCF, which 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

 7 

“must be a secure facility that contains lockups and other measures sufficient to 

ensure the safety of the surrounding community.” Napier at 648. The Supreme 

Court looked at the exact qualities of the facility, as well as the specific nature of the 

defendant's experience at the facility as compared to the experience of the defendant 

in Snowder, to determine whether he had been sufficiently restricted so as to 

constitute “confinement.” Id. 

{¶16} The Supreme Court ruled that because a CBCF exercises effective 

control over the ability of the offender to leave the facility and the facility is secured 

in such a way to prevent offenders from entering the community without approval of 

the facility's managers, “all time served in a CBCF constitutes confinement for the 

purposes of R.C. 2967.191” even though the offender may be permitted to leave to 

participate in employment and other activities outside the CBCF. Id. at syllabus and 

648. 

{¶17} In In re K.A., 6th Dist. Lucas No. L-12-1334, 2013-Ohio-3847, the only 

case interpreting the amended version of R.C. 2152.18(B), the Sixth Appellate 

District, in determining whether a juvenile was entitled to credit for time spent at the 

Youth Treatment Center, a community corrections facility, followed the Supreme 

Court's definition of “confinement” in Napier. Id. at ¶ 5. 

{¶18} We, too, adhere to that interpretation of “confinement.” In light of the 

Supreme Court's interpretation of “confinement” in Napier, we cannot agree with the 

state that juveniles are never entitled to credit for “confinement” unless they are in a 

lockdown facility. Rather, juvenile courts must review the nature of the facility, to 

see if it is a secure facility with measures sufficient to ensure the safety of the 

surrounding community. Napier at 648. They must also review the nature of the 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

 8 

restrictions on the juvenile at the facility to determine if the juvenile was “free to 

come and go as he wished” or if he was “subject to the control of the staff regarding 

personal liberties” as contemplated by Napier. Id.

{¶19} After an exhaustive review of the record, we are unable to determine 

whether D.P.’s time at Hillcrest School constitutes “confinement” for purposes of 

R.C. 2152.18(B). At the dispositional hearing, D.P.’s counsel and the state did not 

point to any evidence in the record related to the nature of the Hillcrest facility or the 

conditions affecting D.P.’s personal liberties during his time at Hillcrest. While the 

parties were given the opportunity to brief the matter, their briefs consist largely of 

argument without any evidentiary support. The trial court, likewise, did not make 

any findings relative to the nature of either Hillcrest School or D.P.’s time there. On 

appeal, D.P. and the state present contradictory arguments as to the nature of 

Hillcrest School and D.P.’s time there without supporting evidence in the record. 

{¶20} Without further evidence as to the nature of Hillcrest and the nature of 

the staff’s control regarding D.P.’s personal liberties, we are unable to determine the 

severity of the restrictions placed upon D.P.’s freedom and, thus, we cannot conduct 

a meaningful review of whether D.P. was “confined” as that term has been defined by 

the Supreme Court in Napier so as to be entitled to credit for time spent at Hillcrest 

School. See State v. Ventra, 11th Dist. Geauga No. 2010-G-2968, 2011-Ohio-156, ¶ 

19-20. We, therefore, sustain D.P.’s assignment of error to the extent that the record 

does not contain enough evidence to support the trial court’s judgment, and the 

cause must be remanded so that the record can be developed as to the nature of the 

Hillcrest School and the staff’s control regarding D.P.’s personal liberties, and a 

determination can be made as to whether he was “confined” within the meaning of 
OHIO FIRST DISTRICT COURT OF APPEALS 

 

 9 

R.C. 2152.18(B). We reverse the judgment of the trial court, and remand this matter 

for further proceedings consistent with this opinion and the law. 

Judgment reversed and cause remanded. 

CUNNINGHAM, P.J., concurs. 

HENDON, J., concurs separately. 

HENDON, J., concurring separately. 

{¶21} While my experience on the juvenile court bench leads me to perhaps a 

general conclusion as to the nature of Hillcrest School and its similarities and 

differences from the language used in the adult statute defining “confinement,” R.C. 

2967 et seq., I concur with the majority in believing that this matter should be 

remanded to give the trial court the opportunity to develop evidence for the record of 

the characteristics of that facility and to make its determination of the issue of credit 

for days served in the Hillcrest setting based on that evidence. 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.