In Re Reed , 147 Ohio App. 3d 182 ( 2002 )

As I would affirm the sentence imposed by the trial court in this matter, I must respectfully dissent. Despite the majority's contention that the trial court's amendment of the indictment increased the potential for confinement if the appellant violated probation, the record clearly demonstrates that the actual sentence of probation with conditions which was imposed by the trial court, as opposed to a theoretical sentence of confinement that could have been imposed, was within the sentencing guidelines under either R.C. 2151.355(A)(4) or R.C. 2151.355(A)(C).

The juvenile law exists in large part to promote the rehabilitation of juvenile offenders. Kent v. United States (1966), 383 U.S. 541, 554,16 L.Ed.2d 84, 86 S.Ct. 1045 ([i]nterpreting the Juvenile Court Act as providing measures of guidance and rehabilitation for the child and protection for society * * *.). Juveniles are not technically found guilty, but rather are adjudicated delinquent, unruly, or not. Juvenile court is neither criminal nor penal in nature, but is an administrative police regulation. The concept relative to juvenile offenders is one of a corrective nature emphasizing reformation rather than punishment. In ReHaas (1975), 45 Ohio App.2d 188.

The majority finds prejudice in the amendment of the indictment due to the fact that the minimum period of institutionalization is greater for a level two offense than a level three offense. This distinction totally misses the point. The appellant was not committed to the legal custody of the department of youth services, rather he was placed on probation and ordered to deliver five turkeys to the court for distribution.

The maximum punishment for felonious assault, regardless of whether it would constitute a second or third degree felony if committed by an adult, is incarceration until the age of twenty-one. The "sentence" handed down by the court was well within the sentencing range for either the offense as charged or the offense under which the trial court ultimately found the appellant delinquent.

R.C. 2151.255(A)(2) which authorizes a sentence of probation with accompanying conditions as prescribed by the court makes no distinction between delinquent acts which would be a second degree felony if committed by an adult and those which would be a third degree felony if committed by an adult. R.C. 2151.355(A)(2) is the subsection under which the appellant was actually sentenced, not the sections referenced by the majority under which the appellant could have been committed to the custody of the department of youth services. Thus, the appellant was not prejudiced in any manner by the court's amendment of the indictment.

Because there was no prejudice to the appellant from the court's amendment of the indictment, I would find the same to be harmless error. Error that occurs during sentencing proceedings is deemed harmless where it does not "affect the sentence imposed by the trial court." State v.Johnson (Apr. 20, 1989), Cuyahoga App. Nos. 55295, 55811, 55812, unreported.

Additionally, the majority's argument concerning the potential length of incarceration should the appellant violate probation is moot given the amount of time which has passed since sentencing, which is due in large part to the repeated extensions of time requested by the appellant to file the record and his appellate brief.

The sentencing hearing at issue took place on November 1, 1999, more than two years ago. The notice of appeal was filed on January 6, 2000 and this court heard oral arguments on February 7, 2001. Thus, the majority's speculation that "[i]f the appellant were ordered into confinement, he would now be confined for a minimum of one year, rather than six months * * *" is no longer relevant. Remanding this matter for resentencing at this time under the proper charge is utterly pointless.

Because the trial court's amendment of the indictment after trial in this case clearly constituted harmless error and in no way prejudiced the appellant, I would affirm.