In re: T.M. , 115 N.E.3d 5 ( 2018 )

[Cite as In re: T.M., 2018-Ohio-2450.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
IN THE MATTER OF: : OPINION
T.M., DELINQUENT CHILD :
CASE NOS. 2017-G-0113
2017-G-0114
Criminal Appeals from the Geauga County Court of Common Pleas, Juvenile Division,
Case No. 15 JD 106.
Judgment: Reversed and remanded.
James R. Flaiz, Geauga County Prosecutor, and Melissa J. Lee, Assistant Prosecutor,
Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH 44024 (For Plaintiff-
Appellee, State of Ohio).
Timothy Young, Ohio Public Defender, and Charlyn Bohland, Assistant State Public
Defender, 250 East Broad Street, Suite 1400, Columbus, OH 43215 (For Defendant-
Appellant, Truxton Mullett).
THOMAS R. WRIGHT, J.
{¶1} Appellant, T.M., appeals the trial court’s decision that he is not entitled to
an immediate hearing to modify or terminate his classification as a Tier III sex offender.
He contends that the hearing is required because he has satisfied all requirements
placed upon him. Since we agree that an immediate hearing is mandated under the
circumstances, we reverse and remand the case for further proceedings.
{¶2} In November 2014, appellant admitted to a charge of rape, a first-degree
felony under R.C. 2907.02(A)(2) in the Cuyahoga County Court of Common Pleas,
Juvenile Division. On the date of this admission, appellant was 15 years old, having
been born December 10, 1998. The underlying offense occurred when he was 14. His
victim was 6.
{¶3} In light of the admission, the Cuyahoga County court found appellant to be
a juvenile delinquent. But, because appellant was a resident of Geauga County, the
Cuyahoga County court transferred the case to the Geauga County juvenile court for
final disposition.
{¶4} The final dispositional hearing was held before the Geauga County trial
court on April 10, 2015. The trial court ordered that appellant be committed to the
custody of the Ohio Department of Youth Services (ODYS) “for an indefinite term
consisting of a minimum period of one year and a maximum period not to exceed the
juvenile’s twenty first birthday.” The court further ordered appellant to undergo sex
offender treatment during commitment. Last, the court ordered appellant to have no
contact with the victim or his family until appellant turns 21 years old.
{¶5} In February 2016, ODYS notified the trial court that its release review
panel had approved appellant for release on parole on or after April 10, 2016. As a
result, the trial court classified appellant a Tier III sexual offender. That decision was
affirmed in In re T.M., 11th Dist. Geauga No. 2016-G-0067, 2017-Ohio-156.
{¶6} Notwithstanding the pendency of his prior appeal, appellant was released
on parole on April 10, 2016. Nine months later, in December 2016, ODYS notified the
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trial court that appellant had been approved for discharge from parole on January 6,
2017.
{¶7} Within three weeks of discharge, appellant moved the trial court to
review/modify his classification as a Tier III juvenile sex offender. The state opposed,
maintaining that although appellant was no longer on parole, his request was premature
because he was still subject to the no-contact order.
{¶8} On February 23, 2017, the trial court heard oral arguments on whether a
“review” hearing could be held prior to the termination of the no-contact order.
Appellant’s counsel argued that once discharged from parole, the trial court no longer
has jurisdiction to enforce the no-contact order. The trial court rejected that argument,
holding that its jurisdiction continues despite parole discharge. However, the trial court
also stated that it would accept additional briefing whether the no-contact order should
be vacated so that the “review” hearing could go forward.
{¶9} Appellant immediately moved the trial court to vacate the no-contact order,
arguing that the order was void since its issuance because a juvenile court has no
authority to impose such an order unless it is part of a community control sentence,
citing State v. Anderson, 143 Ohio St. 3d 173, 2015-Ohio-2089, ¶17.
{¶10} Without waiting for a response, the trial court denied appellant’s motion to
vacate ruling that a juvenile court has discretion to impose a no-contact order in
conjunction with a commitment sentence.
{¶11} Appellant appeals both judgments. This court consolidated the appeals.
Appellant raises one assignment of error:
{¶12} “The Geauga County Juvenile Court erred when it failed to vacate its no-
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contact order in this case and when it denied T.M.’s right to an end-of-disposition
hearing required under R.C. 2152.84, Fifth and Fourteenth Amendments to the U.S.
Constitution, and Article I, Section 16, Ohio Constitution.”
{¶13} In challenging the trial court’s conclusion that he had not fulfilled all of the
orders in the April 10, 2015 dispositional judgment, appellant asserts two arguments for
review. First, he argues that the no-contact order is invalid because the trial court does
not have the statutory authority to impose such a requirement as part of a commitment
order. Second, he claims that by ordering his commitment to the Ohio Department of
Youth Services, the court lost its authority to enforce a no-contact order.
{¶14} As to the validity of the no-contact order, appellant asserts that the Ohio
Supreme Court’s holding in State v. Anderson, supra, is controlling. In Anderson, the
adult defendant was convicted of rape and kidnapping. In addition to imposing an
aggregate prison term of 17 years, the trial court ordered the defendant to have no
contact with the victim. On appeal, the defendant asserted that the trial court had no
authority under the adult sentencing scheme to impose a no-contact order in
conjunction with a prison term. The Ohio Supreme Court agreed.
{¶15} The Anderson court first emphasized that a trial court does not have
inherent power to create a sentence; i.e., a trial court can impose only what is expressly
authorized by statute. Id. at ¶10-12. Second, the Anderson court concluded that a no-
contact order is a community control sanction. Id. at ¶17. Third, the court found the
statutory scheme governing adult sentencing for prison terms and community control
sanctions to be alternative remedies. Id. at ¶28. Therefore, since a no-contact order is
a community control sanction, it cannot be imposed when the adult defendant has been
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ordered to serve a prison term.
{¶16} The juvenile statutes, however, differ and sanction the no-contact order in
conjunction with confinement.
{¶17} R.C. 2152.16 governs commitments to the youth services department for
secure confinement. Division (A)(1)(c) states that if a child is found to have committed
the crime of rape under R.C. 2907.02(A)(2), a juvenile court may commit the child to the
legal custody of the department “for an indefinite term consisting of a minimum period of
one to three years, * * * and a maximum period not to exceed the child’s attainment of
twenty-one years of age[.]” Division (A)(2) provides that when a juvenile court commits
a juvenile to confinement, the court retains control over the commitment for the stated
minimum period.
{¶18} R.C. 2152.19 sets forth additional dispositional orders a juvenile court may
impose:
{¶19} “(A) If a child is adjudicated a delinquent child, the court may make any of
the following orders of disposition, in addition to any other disposition authorized or
required by this chapter:
{¶20} “* * *
{¶21} “(4) Place the child on community control under any sanctions, services,
and conditions that the court prescribes. * * *”
{¶22} R.C. 2152.19(A)(8), a catchall provision, provides that a juvenile court can
“[m]ake any further disposition that the court finds proper,” except that it cannot place
the child in a correctional institution or a community corrections facility where adults are
held.
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{¶23} In the second appealed judgment, the trial court concluded that it had the
authority to impose a no-contact order either as a specific sanction under community
control or in conjunction with an order of commitment to ODYS relying on R.C.
2152.19(A)(8). We agree.
{¶24} In In re Caldwell, 76 Ohio St. 3d 156, 666 N.E.2d 1367 (1996), the Ohio
Supreme Court concluded a juvenile court has the authority to impose consecutive
terms of commitment upon a delinquent relying on the catchall provision. “[B]y using
the word ‘any’ in [the provision], which the General Assembly was not required to do, it
gave the trial judge discretion to take ‘any’ steps the judge believes necessary to fully
and completely implement the rehabilitative disposition of a juvenile * * *.” Id. at 159.
The Caldwell court also stated that its broad interpretation of the catchall provision “is
consistent with the underlying purposes and goals of the juvenile court system, i.e.,
supervision, care and rehabilitation of the delinquent youth.” Id. at 160. See also, In re
H.V., 138 Ohio St. 3d 408, 2014-Ohio-812 7 N.E.3d 1173; In re G.L.L., 11th Dist.
Geauga Nos. 2014-G-3189 & 2014-G-3190, 2015-Ohio-3539, ¶55-57.
{¶25} Given Caldwell, the extent of a juvenile court’s sentencing authority in a
delinquency case is manifestly broader than in an adult criminal case. To this extent,
the minimal limitation upon a juvenile court’s authority under the catchall provision is
that disposition cannot directly conflict with another statute governing juveniles. See,
e.g., In re Williams, 4th Dist. Washington No. 05CA56, 2006-Ohio-4657. Appellant has
not noted a conflicting statute.
{¶26} Moreover, given that a no-contact order serves the purposes and goals of
the juvenile system, the trial court’s order is sanctioned under the governing statutes
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and, therefore, was not void ab initio.
{¶27} However, this leads to the question of whether the no-contact order was
still enforceable when appellant filed his motion to review/modify his sex offender status
in January 2017. After a juvenile court has committed a delinquent child to the custody
of the youth services department, its continuing authority over the child is governed by
two statutory provisions. The first statute is R.C. 2152.16(A)(2). As noted above, R.C.
2152.16(A)(1) delineates the length of commitment a juvenile court can impose for the
commission of a felony offense, including rape. Division (A)(2) of the statute then
provides:
{¶28} “In each case in which a court makes a disposition under this section, the
court retains control over the commitment for the minimum period specified by the court
in divisions (A)(1)(a) to (e) of this section. During the minimum period, the department
of youth services shall not move the child to a nonsecure setting without the permission
of the court that imposed the disposition.”
{¶29} The extent of a juvenile court’s control over a child following a commitment
order is also addressed in R.C. 2152.22(A):
{¶30} “When a child is committed to the legal custody of the department of youth
services under this chapter, the juvenile court relinquishes control with respect to the
child so committed, except as provided in divisions (B), (C), (D), and (H) of this section
or in sections R.C. 2152,82 to 2152.86 of the Revised Code. Subject to divisions (B),
(C), and (D) of this section, sections 2151.353 and 2151.412 to 2151.421 of the Revised
Code, sections 2152.82 to 252.86 of the Revised Code, and any other provision of law
that specifies a different duration for a dispositional order, all other dispositional orders
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made by the court under this chapter shall be temporary and shall continue for a period
that is designated by the court in its order, until terminated or modified by the court or
until the child attains twenty-one years of age.
{¶31} “The department shall not release the child from a department facility and
as a result shall not discharge the child or order the child’s release on supervised
release prior to the expiration of the minimum period specified by the court in division
(A)(1) of section 2152.16 of the Revised Code and any term of commitment imposed
under section 2152.17 of the Revised Code or prior to the child’s attainment of twenty-
one years of age, except upon the order of a court pursuant to division (B), (C), or (D) of
this section or in accordance with section 5139.54 of the Revised Code.”
{¶32} Given the provisions in R.C. 2152.16(A)(2) and 2152.22(A), the extent of a
juvenile court’s authority over a child, i.e., its jurisdiction, is very limited once an order of
commitment is issued. First, pursuant to R.C. 2152.16(A)(2), the court can only control
the child’s placement within the youth services system for the minimum period of the
commitment. As noted above, the minimum period of appellant’s commitment was one
year. Second, pursuant to R.C. 2152.22(A), the type of orders the juvenile court can
issue regarding a child is limited. Divisions (B), (C), and (D) of R.C. 2152.22 only permit
the court to grant the child judicial release at various stages throughout the commitment
period. For example, division (B) governs the granting of judicial release during the first
half of the minimum period. Distinct from orders concerning judicial release, a juvenile
court also has jurisdiction under R.C. 2152.22(H) to issue orders pertaining to the child’s
supervised release under the sole authority of the youth services department. These
orders are limited to stating the terms of the release and determining whether those
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terms have been subsequently violated. See R.C. 5139.51 and 5139.52. In addition, if
the child was also classified as a juvenile offender registrant, the juvenile court retains
the authority following commitment to issue orders regarding a child’s petition to modify
or terminate his sexual offender status. See R.C. 2152.82 et seq.
{¶33} None of the exceptions set forth in R.C. 2152.22(A) grant a juvenile court
the general authority to enforce other pending orders in the case. Instead, the provision
only allows for the issuance of new orders pertaining to three specific subjects: judicial
release, supervised release granted by the youth services department, and modification
or termination of the child’s sexual offender status.
{¶34} As to the extent of the trial court’s authority under R.C. 2152.16(A)(2), the
ability to “control” the child’s commitment would necessarily entail the authority to limit
the persons with whom the child could communicate while in the secured facility. As a
result, a no-contact order is enforceable under that provision. However, as previously
noted, the authority granted under R.C. 2152.16(A)(2) can only be exercise during the
minimum period of the child’s commitment.
{¶35} The one-year minimum period of appellant’s commitment ended in April
2016. Therefore, when appellant moved to review/modify his sex offender classification
in January 2017, R.C. 2152.16(A)(2) no longer applied, and the trial court no longer had
any authority to enforce its prior no-contact order.
{¶36} In turn, this means that when appellant’s motion to review/modify came
before the trial court for consideration in February 2017, all dispositional orders in the
April 10, 2015 final judgment had either been satisfied or were no longer enforceable.
Under these circumstances, the trial court was required to proceed on the motion and
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conduct a hearing regarding appellant’s continuing sex offender status. Accordingly,
appellant’s sole assignment has merit.
{¶37} The judgments of the Geauga County Court Common Pleas, Juvenile
Division, are reversed, and the case is hereby remanded for further proceedings.
CYNTHIA WESTCOTT RICE, J.,
TIMOTHY P. CANNON, J.,
concur.
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