In re T.W. , 2012 Ohio 1305 ( 2012 )

[Cite as In re T.W., 2012-Ohio-1305.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
IN RE: ) CASE NO. 11 MA 35
)
T.W. )
) OPINION
)
)
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas, Juvenile Division, of
Mahoning County, Ohio
Case No. 10 JA 1723
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Rhys B. Cartwright-Jones
42 N. Phelps Street
Youngstown, Ohio 44503-1130
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Dated: March 21, 2012
[Cite as In re T.W., 2012-Ohio-1305.]
WAITE, P.J.
{¶1} This is an appeal of a judgment from the Mahoning County Court of
Common Pleas, Juvenile Division, regarding the juvenile delinquency of minor child
T.W. A delinquency complaint was filed in juvenile court charging T.W. with
aggravated robbery (with a gun specification), resisting arrest, and carrying a
concealed weapon. He and an accomplice were alleged to have robbed the
Campbell Pharmacy on September 7, 2010. T.W. was brandishing a .357 Taurus
revolver during the robbery. Afterwards, he fled and hid under a porch, and a K-9
police dog had to be used to retrieve T.W. from his hiding place. T.W. was 13 years
old when the crimes occurred. Counsel was appointed and the case was assigned to
a magistrate. T.W. entered a plea of admission to aggravated robbery, a first degree
felony if committed by an adult, along with an accompanying gun specification. The
gun specification called for a mandatory term of commitment of one to three years.
The court’s dispositional order imposed a mandatory thirty-six month term of
commitment for the gun specification, along with twelve months for the aggravated
robbery, to be served consecutively. T.W. appealed, and counsel was appointed on
appeal.
{¶2} T.W.'s attorney has filed a motion to withdraw as appointed counsel in
this appeal, pursuant to State v. Toney, 23 Ohio App.2d 203, 262 N.Ed.2d 419 (7th
Dist.1970). T.W.’s counsel has determined, after examining the record and finding
no reasonable arguments on appeal, that this appeal is wholly frivolous and that he
should be permitted to withdraw. Counsel's motion to withdraw is well-taken and for
the reasons that follow, we grant the motion and affirm the judgment of the trial court.
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{¶3} T.W. was arrested on September 7, 2010. A juvenile delinquency
complaint was filed against him on September 8, 2010. He was charged with
aggravated robbery with a gun specification, resisting arrest, and carrying a
concealed weapon. He initially entered a denial to the charges and counsel was
appointed. He later agreed to change his plea, and a change of plea hearing was
held on December 9, 2010. T.W. admitted to aggravated robbery, R.C. 2911.01 (a
first degree felony), and the accompanying gun specification, R.C. 2941.145 and
R.C. 2152.17, and the state agreed to dismiss the remaining charges. The gun
specification carried a mandatory penalty of one to three years of confinement with
the department of youth services. R.C. 2152.17(A)(2). The court reviewed all the
constitutional rights T.W. was waiving by entering the plea of admission. The court
accepted the plea and adjudicated T.W. a delinquent child. The judgment entry was
filed on December 16, 2010.
{¶4} The disposition of the case was originally heard before a magistrate,
who recommended a minimum 12-month period of confinement for the aggravated
robbery charge, and an additional 12 months for the gun specification. The probate
judge did not accept the recommendation of the magistrate and held its own
dispositional hearing on January 31, 2011. At that hearing, T.W. indicated that he
disagreed somewhat with some of the facts in the police report surrounding his
arrest. The court reset the hearing so that the arresting officer could testify. At the
continued hearing on February 14, 2011, and prior to any testimony by the police
officer, T.W. changed his testimony and agreed with the facts as contained in the
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police report. He agreed that he resisted arrest, that a police dog was sent in to pull
him out from under the porch, that he continued to resist arrest, that the dog was
released again, and that he sustained an injury to his thigh during the arrest. T.W.’s
counsel did not want the officer to testify, and no more was said about the
circumstances of the arrest. The court concluded there was no suggestion of police
brutality in the circumstances of T.W.’s arrest.
{¶5} At the dispositional hearing, the court reviewed T.W.’s extensive
criminal history, which included convictions for domestic violence, drug use,
vandalism, disorderly conduct, and prior charges of burglary and attempted
aggravated menacing. T.W. was part of a gang, often ran away from home, and
repeatedly violated his probation. The judge noted that T.W. had no remorse for the
crime, although he did show some remorse over the fact that he had been caught.
The judge reviewed the circumstances of the crime, including the fact that drug and
alcohol use was involved. The judge was aware that the gun T.W. used in the crime
was not loaded. The court also reviewed the turbulent and dire circumstances of
T.W.’s upbringing, which included family members sustaining gunshot wounds or
being killed by gun violence. Although his mother tried to control T.W.’s behavior, it
was very difficult and she would lock him out of the house at times.
{¶6} The prosecutor made no recommendation regarding the punishment for
the gun specification. The victim described the terror she felt at having a gun held to
her head, and she requested the maximum sentence.
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{¶7} The court committed T.W. to twelve months of minimum confinement
on the aggravated robbery charge, and a mandatory three years of minimum
confinement on the gun specification, up to a maximum confinement to last until
T.W.’s twenty-first birthday. He was given credit for time served. The judgment entry
was filed on February 24, 2011. This appeal followed.
{¶8} An attorney appointed to represent an indigent criminal defendant on
his first appeal as of right may seek permission to withdraw if the attorney can show
that there is no merit to the appeal. See, generally, Anders v. California, 386 U.S.
738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Toney, supra. To support such a
request, appellate counsel is required to undertake a conscientious examination of
the case and accompany his or her request for withdrawal with a brief referring to
anything in the record that might arguably support an appeal. Toney at 207. The
reviewing court must then decide, after a full examination of the proceedings,
whether the case is wholly frivolous. Id.
{¶9} In Toney, this Court established guidelines to be followed when counsel
of record determines that an indigent's appeal is frivolous:
{¶10} 3. Where a court-appointed counsel, with long and
extensive experience in criminal practice, concludes that
the indigent's appeal is frivolous and that there is no
assignment of error which could be arguably supported on
appeal, he should so advise the appointing court by brief
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and request that he be permitted to withdraw as counsel of
record.
{¶11} 4. Court-appointed counsel's conclusions and
motion to withdraw as counsel of record should be
transmitted forthwith to the indigent, and the indigent
should be granted time to raise any points that he chooses,
pro se.
{¶12} 5. It is the duty of the Court of Appeals to fully
examine the proceedings in the trial court, the brief of
appointed counsel, the arguments pro se of the indigent,
and then determine whether or not the appeal is wholly
frivolous.
{¶13} 6. Where the Court of Appeals makes such an
examination and concludes that the appeal is wholly
frivolous, the motion of an indigent appellant for the
appointment of new counsel for the purposes of appeal
should be denied.
{¶14} 7. Where the Court of Appeals determines that an
indigent's appeal is wholly frivolous, the motion of court-
appointed counsel to withdraw as counsel of record should
be allowed, and the judgment of the trial court should be
affirmed. (Emphasis sic.) Id. at syllabus.
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{¶15} T.W.’s counsel has not listed any non-frivolous issues to review on
appeal. The record contains the facts surrounding T.W.’s crime and subsequent
arrest. Counsel was appointed to represent T.W. throughout the juvenile court
proceedings and on appeal.
{¶16} When accepting a plea of admission in juvenile proceedings, the court
must strictly comply with Juv.R. 29(D) as it pertains to the waiver of critical
constitutional rights. In re Onion, 128 Ohio App.3d 498, 503, 715 N.E.2d 604 (11th
Dist.1998).
{¶17} The court should also try to strictly comply with the remaining aspects
of Juv.R. 29(D). It must, at a minimum, substantially comply with the parts of the rule
that do not implicate critical constitutional rights. Juv.R. 29(D) states that the court
“shall not accept an admission without addressing the party personally and
determining both of the following: (1) The party is making the admission voluntarily
with understanding of the nature of the allegations and the consequences of the
admission; (2) The party understands that by entering an admission the party is
waiving the right to challenge the witnesses and evidence against the party, to
remain silent, and to introduce evidence at the adjudicatory hearing.” In re C.S., 115
Ohio St.3d 267, 2007-Ohio-4919, ¶113. “For purposes of juvenile delinquency
proceedings, substantial compliance means that in the totality of the circumstances,
the juvenile subjectively understood the implications of his plea.” Id.{¶18} The record of the change of plea hearing indicates that the court strictly
complied with Juv.R. 29(D). The judge specifically explained that T.W. had the right
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to trial, to present evidence and subpoena witnesses, to challenge the evidence
against him, to remain silent, and to require the state to prove the charges against
him beyond a reasonable doubt. T.W. clearly waived all those rights at the hearing.
The judge described the charges and explained the minimum and maximum periods
of confinement T.W. was facing. The court found that T.W. intelligently and
voluntarily waived his rights and entered the plea.
{¶19} The juvenile court has wide latitude in issuing its dispositional order
after a plea of admission to delinquency charges. “The order of disposition in a
juvenile case is a matter within the court's discretion.” State v. Matha, 107 Ohio
App.3d 756, 760, 669 N.E.2d 504 (9th Dist.1995). In fact, a juvenile court is allowed
more discretion in its dispositional sentencing than for comparable actions under
criminal law. In re Tiber, 154 Ohio App.3d 360, 2003-Ohio-5155, 797 N.E.2d 161,
¶25. Abuse of discretion means the decision of the trial court was unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450
N.E.2d 1140 (1983).
{¶20} There is a discussion in the record regarding the use of the K-9 dog to
pull T.W. from underneath a porch as he was resisting arrest. The court was
concerned that certain comments that T.W. had made could be interpreted as a
suggestion of police brutality, but T.W.’s counsel denied that he had ever raised the
issue or that there was any problem that arose from use of the police dog. (2/14/11
Tr., pp. 4-5.) The court reviewed the facts of T.W.’s apprehension by the police, and
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nothing further was mentioned about the subject. Nothing in the record suggests any
legal issues arising from T.W.’s arrest or the use of the police dog in the arrest.
{¶21} The record contains substantial evidence supporting the juvenile court’s
disposition. The crime involved T.W. pressing a gun to the victim’s head and cocking
the gun. T.W. showed little or no remorse for his actions. He has an extensive
juvenile record, including prior violent crimes. The trial court reviewed all the facts of
the case and the facts of T.W.’s life history, including the statements made by T.W.
and by his counsel at the final hearing. The penalty imposed was permitted by law
and was within the court’s discretionary authority.
{¶22} The record indicates that the juvenile judge did not agree completely
with the disposition recommended by the magistrate, and after reviewing the facts the
judge imposed a harsher penalty for the gun specification than was recommended by
the magistrate. The magistrate suggested imposing a one-year sentence, but the
trial court decided to impose three years of confinement. There is no error here. The
juvenile judge has the authority to hold additional hearings or correct or modify a
magistrate’s decision even if no objections are filed. Davis v. Davis, 115 Ohio App.3d
623, 625, 685 N.E.2d 1292 (7th Dist.1998). Juv.R. 40(D)(4)(b) states: “Whether or
not objections are timely filed, a court may adopt or reject a magistrate's decision in
whole or in part, with or without modification. A court may hear a previously-referred
matter, take additional evidence, or return a matter to a magistrate.” Thus, no issues
arise from the fact that the magistrate’s recommendation was not accepted by the
court.
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{¶23} In conclusion, there are no non-frivolous issues to be reviewed in this
appeal. T.W. admitted to the crime and a lawful punishment was imposed by the
juvenile court. All the appropriate hearings were held, and T.W. intelligently and
voluntarily waived his rights and entered an admission. The record supports the
punishment that was imposed. Counsel’s motion to withdraw pursuant to Toney and
Anders is hereby granted and the judgment of the juvenile court is affirmed.
Donofrio, J., concurs.
Vukovich, J., concurs.