Juvenile Probation Revocation Hearing Must Meet Juv.R. 29 Requirements for ‘Adjudicatory Hearing’
2007-0895 and 2007-0912. In re L.A.B., Slip Opinion No. 2009-Ohio-354.
Summit App. No. 23309, 2007-Ohio-1479. Certified question answered in the affirmative, judgment reversed, and cause remanded to the trial court.
Moyer, C.J., and Pfeifer, Lundberg Stratton, O'Connor, and Lanzinger, JJ., concur.
O'Donnell and Cupp, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-354.pdf 
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(Feb. 5, 2009) The Supreme Court of Ohio held today that a juvenile probation revocation hearing is an “adjudicatory” hearing as defined by R.C. 2152.02, and therefore when the state’s juvenile courts conduct such hearings they must meet the procedural requirements for adjudicatory hearings set forth in Juv.R. 29 as well as the requirements for probation revocation set forth in Juv.R. 35(B).
The Court’s 5-2 majority decision was authored by Justice Judith Ann Lanzinger.
In August 2005, a 13-year-old identified by the initials L.A.B. was found delinquent by the Juvenile Division of the Summit County Court of Common Pleas for entering an enclosed porch and stealing a mini-bike. He was placed on juvenile probation. Over the following 10 months, L.A.B. appeared before the juvenile court on seven additional occasions because of violations of the terms of his probation. At each hearing, he waived his right to counsel. Until the last, each hearing ended with L.A.B. either being placed on probation or remaining on probation. On June 8, 2006, he again appeared before the court and waived his right to counsel. But at this last hearing, which the magistrate initially termed a “preliminary hearing on a probation violation,” L.A.B’s probation was revoked and he was sent to the Ohio Department of Youth Services for at least one year and potentially until he reached the age of 21.
L.A.B appealed, contending that his constitutional right to counsel was violated. The Ninth District Court of Appeals affirmed the juvenile court’s judgment, holding in part that procedural requirements imposed by Juv.R. 29 for “adjudicatory” hearings do not apply to probation revocation hearings, and that because the trial court satisfied the requirements for a probation revocation hearing set forth in Juv.R. 35(B), L.A.B.’s waiver of counsel at the June 8, 2006 hearing was valid. The court of appeals certified, however, that its holding with regard to the applicability of Juv.R. 29 was in conflict with the judgment of the 7th District Court of Appeals in a 2007 case, In re Lohr. The Supreme Court agreed to hear arguments to resolve the conflict between appellate districts, and also agreed to review two related legal questions.
Writing for the majority in today’s decision, Justice Lanzinger first determined that, “Because the conditions of probation are established through a court order, a violation of probation also constitutes a violation of a court order. Since a probation revocation hearing may result in a finding that the juvenile has violated a court order and is delinquent, a probation hearing qualifies as an adjudicatory hearing under the Ohio Rules of Juvenile Procedure.”
After reviewing the provisions of Juv.R. 29 and Juv.R. 35, she wrote: “Juv.R. 35 … merely sets forth a minimal procedure for probation revocation hearings. It provides that probation shall be revoked only if the child is present at the hearing and has been apprised of the grounds for revocation, that the parties have the right to counsel and appointed counsel pursuant to Juv.R. 4(A), and that probation shall be revoked only upon a finding by the court that the juvenile has violated a condition of probation after having been notified of that condition pursuant to Juv.R. 34(C). … Juv.R. 29, on the other hand, enumerates detailed procedures for an adjudicatory hearing. This rule guides the court through the process for the entire hearing, including the initial scheduling of the hearing, the advisement of rights at the commencement of the hearing, the entry of an admission or denial, and the court’s determination of the issues. None of this material, save the right to counsel, is addressed in Juv.R. 35. The procedure in Juv.R. 35 is not, as appellee claims, different from that in Juv.R. 29. Rather, Juv.R. 35 supplements Juv.R. 29.
With regard to the standard for determining whether a juvenile validly waived legal counsel at an adjudicatory hearing, Justice Lanzinger wrote: “Because probation revocation hearings are subject to Juv.R. 29, the totality-of-the-circumstances test established in In re C.S. must be used to ascertain whether the child has validly waived the right to counsel. … To determine whether a child’s waiver of counsel is valid under the totality of the circumstances, judges must consider a variety of factors and circumstances. These include the juvenile’s age, intelligence, and education; the juvenile’s general background and experience; the juvenile’s background and experience in the court system; the presence or absence of the juvenile’s parent or guardian; the language used by the court in describing the juvenile’s rights; the juvenile’s conduct; and the complexity of the proceedings.”
Applying that standard to the hearing at which L.A.B.’s parole was revoked, Justice Lanzinger noted that “When his probation was revoked, L.A.B. was 13 years old. At this age and corresponding level of education, he was relatively young to be before the court and unlikely to have a refined understanding of the judicial process and his right to counsel. L.A.B. had been before the court seven times after his initial hearing, but had only brief interactions with the court during each of these hearings, which took on an almost cursory and administrative tone. Because he had never been sent to the Department of Youth Services at the conclusion of any hearing, it is likely that he did not fully understand and appreciate the potential of his confinement for one to eight years. This final hearing abruptly changed from a probation revocation hearing into a dispositional hearing. It was more complex than L.A.B.’s previous hearings, and the quick transition could easily have confused a 13-year-old juvenile and hindered his ability to advocate on his own behalf. … While L.A.B.’s mother was present at the hearing, her statement indicates that her interests likely ran counter to those of her son. She asked the court not to order L.A.B. to undergo intensive probation and instead to commit him to the Department of Youth Services. Significantly, her suggestion conflicted with the recommendation of L.A.B.’s probation officer, who had suggested intensive probation. Any effect of Ms. B.’s presence to assist L.A.B. in making a valid waiver of counsel was nullified by her potentially adverse interest.”
“At the hearing, L.A.B. was merely told of his right to an attorney and that one would be appointed to him if he wished. The court gave no specific information about what this right entailed. During L.A.B.’s minimal interaction with the court throughout the hearing, he gave no indication that he fully understood his right to counsel. … Based on the totality of the circumstances in this case, we hold that L.A.B. did not make a valid waiver of his right to counsel. Accordingly, we vacate the judgment of the court of appeals that the trial court did not err by accepting L.A.B.’s waiver of his right to counsel and remand the case to the juvenile court.”
Justice Lanzinger’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Paul E. Pfeifer, Evelyn Lundberg Stratton and Maureen O’Connor.
Justice Terrence O’Donnell entered a dissent, joined by Justice Robert R. Cupp, stating that he would affirm the court of appeals judgment that L.A.B.’s waiver of counsel was valid based on the fact that his mother was not only present but actively participated in a dialogue with the judge regarding the appropriate sanction for her son’s latest in a series of probation violations.
Rejecting the majority’s conclusion that the mother’s support for commitment to DYS rather than intensive probation was presumptively “adverse” to her son’s best interest, Justice O’Donnell wrote that in his view Ms. B.’s comments to the court were “a difficult and strong expression of tough love. … The fact that L.A.B.’s mother did not advocate for intensive probation – which the trial court agreed had been tried and had failed – does not mean that L.A.B.’s mother did not act in her child’s best interests in recommending commitment to the Department of Youth Services. The suggestion by the majority that the only action in L.A.B.’s best interest is more intensive probation is false; sometimes, when a child is not getting the message from probation, intensive or otherwise, committing the child to the Department of Youth Services may be in the child’s best interest.”
Citing L.A.B.’s extensive experience with the juvenile court system despite his youth, the numerous prior occasions on which his right to an attorney had been explained to him and the presence and participation of his mother during the revocation hearing, Justice O’Donnell wrote that in his opinion, “the facts of this case support a finding that, under the totality of the circumstances, L.A.B. validly waived his right to counsel.”
Contacts
Philip B. Bogdanoff, 330.643.2791, for the state and Summit County prosecutor’s office.
Amada J. Powell, 614.466.5394, for juvenile offender L.A.B.