COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71073 IN THE MATTER OF: : : MATTHEW FRIES, A MINOR : JULY 31, 1997 Appeal from Juvenile Court Division Case No. 9506675 DATE OF ANNOUNCEMENT JUDGMENT VACATED AND CASE OF DECISION: REMANDED. CHARACTER OF PROCEEDING: JUDGMENT: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor JOCELYN CONWELL DATE OF JOURNALIZATION: Assistant Prosecuting Attorney The Justice Center - 8th Floor APPEARANCES: 1200 Ontario Street Cleveland, Ohio 44113 For Appellee State of Ohio: JAMES A. DRAPER Cuyahoga County Public Defender SCOTT ROGER HURLEY Assistant Public Defender 1200 West Third Street N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 For Appellant Matthew Fries: : : JOURNAL ENTRY : : AND : : OPINION : O'DONNELL, J.: Matthew Fries appeals from a July 3, 1996 judgment of the Cuyahoga County Juvenile Court which adjudicated him delinquent for violating probation in being AWOL from home, bringing stolen property home, and for an incident involving a weapon, for which the court revoked probation and imposed his one year commitment to the Ohio Department of Youth Services. The record before us reveals the factual history of this case beginning on November 13, 1995, when the juvenile court found Fries delinquent for conduct which, if committed by an adult, would have constituted aggravated robbery, and ordered him to be committed for one year to the Ohio Department of Youth Services, but suspended that commitment and placed him on probation. Thereafter, on February 6, 1996, Todd Hendrix, a juvenile court probation officer filed a complaint against Fries for violation of probation alleging that he acted in a disorderly manner at the Berea Children's Home, which resulted in staff needing to take action to restrain him from causing harm to himself or others. On May 30, 1996, Linda Miller, a probation counselor, filed an additional delinquency complaint against Fries for violation of probation alleging that he repeatedly left his mother's without her consent, and during these times, his whereabouts were unknown. The juvenile court conducted a hearing on these alleged probation violations. At that hearing Fries admitted to leaving home without permission, bringing stolen property to his mother's home, and being involved in an incident with a gun. Consequently, 3 the court found him in violation of his probation and reinstated his one year commitment to the Ohio's Department of Youth Services. The court journalized its entry on July 3, 1996, and Fries now appeals, assigning one error for our review: I. THE JUVENILE COURT COMMITTED PLAIN ERROR BY FAILING TO ADVISE APPELLANT-CHILD OF HIS RIGHT TO COUNSEL AT A PROBATION VIOLATION HEARING AND BY FAILING TO INDICATE THE RIGHT TO COUNSEL HAD BEEN WAIVED BY APPELLANT-CHILD, IN VIOLATION OF JUV.R. 35, THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION. In his sole assignment of error, Fries asserts that juvenile court violated his right to counsel during the probation violation hearing and accordingly, requests this court to vacate his commitment and remand the case to juvenile court. The state agrees. The issue then presented for our review is whether the court accorded the juvenile his right to counsel in this case. R.C. 2151.352 states, in part: A child***is entitled to representation by legal counsel at all stages of the proceedings***. If a party appears without counsel, the court shall ascertain whether he knows of his right to counsel and of his right to be provided with counsel if he is an indigent person. Juvenile Rule 4(A) states, in part: Every person shall have the right to be represented by counsel and every child, parent, custodian, or other person in loco parentis the right to appointed counsel if indigent. These rights shall arise when a person becomes a party to a juvenile court proceeding.*** Juvenile Rule 35(B) states: The court shall not revoke probation except after a hearing at which the child shall be present and apprised of the grounds on which revocation is proposed. The parties shall have the right to counsel and the right to 4 appointed counsel where entitled pursuant to Juv.R. 4(A). Probation shall not be revoked except upon a finding that the child has violated a condition of probation of which the child had, pursuant to Juv.R. 34(C), been notified. In In re Agler (1969), 19 Ohio St.2d 70, the Ohio Supreme Court stated in the first paragraph of the syllabus: In order to sustain commitment of a juvenile offender to a state institution in a delinquency proceeding, where such commitment will deprive the child of his liberty, the alleged delinquent must have been afforded representation by counsel, appointed at state expense in case of indigency. Our court in In re East (1995), 105 Ohio App.3d 221, at 223, stated regarding a juvenile's right to counsel: ***[T]here is no material difference with respect to the constitutional right to counsel between adult and juvenile proceedings. Therefore, case law regarding an adult's waiver of the right to counsel provides guidance. These cases indicate that an effective waiver of the right to counsel by an adult must be voluntarily, knowing and intelligent. (Citations omitted.) The court must fully and clearly explain to defendant his right to counsel and the defendant must then affirmatively waive that right on the record. (Citations omitted.) Here, a review of the record reveals that following colloquy between the trial court and Fries: THE COURT: All right. Now Matthew, the probation officer said that you were not abiding by the terms of the probation, that you violated the probation and that you were not keeping care if you were AWOL from home, bringing stolen property into the house and there was an incident with a weapon. Do you disagree with what she has to say? MASTER FRIES: No, sir. THE COURT: All right, So you admit that that's what you did do? MASTER FRIES: Yes, sir. THE COURT: The Court will find you in violation of the probation.*** (Tr. 2-3) 5 At no time during these proceedings, which resulted in a juvenile offender ordered committed, did the trial court advise Fries of his right to counsel nor did it ascertain whether he knew of his right to counsel or of his right to have counsel provided for him. Accordingly, this assignment of error is well taken and consequently, we vacate Fries' commitment and remand the case to the juvenile court for further proceedings consistent with this opinion. Judgment vacated and case remanded to juvenile court. Judgment vacated and case remanded to juvenile court. It is, therefore, considered that said appellant(s) recover of said appellee(s) costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PORTER, P.J., and KARPINSKI, J., CONCUR JUDGE TERRENCE O'DONNELL 6 N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .