COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71074 IN THE MATTER OF: : : ALLEN KECK, a Minor : JOURNAL ENTRY : and : OPINION : : : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 14, 1997 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Juvenile Division : Case No. 9516729 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : ______________________ APPEARANCES: : For appellant : BEVERLY A. CALEY Attorney at Law 1422 Euclid Avenue, #717 Cleveland, OH 44115 For appellee : STEPHANIE TUBBS JONES Cuyahoga County Prosecutor VICTOR P. RAUSER, Assistant 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 HOLMES, J. 2 Appellant, Allen Keck, appeals the decision of the Cuyahoga County Common Pleas Court, Juvenile Division, finding him delinquent and placing him in the custody of the Ohio Department of Youth Services ( ODYS ). The record reflects that appellant was charged with being a delinquent child for acts that, if committed by an adult, would constitute rape in violation of R.C. 2907.02(A)(1)(b), attempted auto theft in violation of R.C. 2923.02(A) and R.C. 2913.02, and receiving stolen property in violation of R.C. 2913.51(A). The latter two charges each included counts for possessing criminal tools in violation of R.C. 2923.24(A). In exchange for withdrawing the state's motion to transfer the proceedings to common pleas court for criminal prosecution as an adult, appellant agreed to enter admissions to the aforementioned charges. In accepting appellant's admissions, the court addressed appellant as follows: THE COURT: All right. Well, nevertheless, I have to tell your client what his rights are. Allen, you have a right to have an adjudicatory hearing for these charges. It's the burden of the prosecution to prove the case beyond a reasonable doubt. That means that Mr. Rauser has to bring in witnesses to do that. And you will have a right through your attorney to cross-examine those witnesses. If Mr. Rauser is successful, the Court will adjudicate you delinquent. If he is not successful, the Court will dismiss the charges. You have a right to call witnesses on your own behalf. You also have a right to take the stand. You will not be compelled to do 3 that. That must be done voluntarily. Do you understand the rights? APPELLANT: Yes, Your Honor. THE COURT: I assume you went over these, Mr. Hurley? The other thing is that the Court wishes to know whether or not anyone coerced you or promised you anything if you admitted these charges. MR. HURLEY: Have there been any promises to you what's going to happen if you admit to this stuff? APPELLANT: No, ma'am. THE COURT: Okay. 9516729. That is a rape charge. Rape charge, Mr. Hurley, is he admitting that? MR. HURLEY: That's correct, Your Honor. Withdrawing previous entered denials to that complaint at this point, and enter an admission on behalf of Allen, and respectfully request to be heard at disposition when appropriate. THE COURT: All right Is that so, Allen? You admit that charge? APPELLANT: Yes, Your Honor. THE COURT: The next count is 9516728, and that is an attempted there's one count there're two counts in this one. This is an -- MR. HURLEY: Attempted auto theft. THE COURT: Is it an auto theft or receiving stolen property? Auto theft. MR. HURLEY: The case number is an attempted auto theft. 4 THE COURT: All right. Auto theft. Correct. All right. Is he admitting that? MR. HURLEY: That's correct, your Honor. THE COURT: Is that so, Allen? This is alleged to have occurred on the 17th of December in the vicinity of 63rd and Andover Boulevard in Garfield Heights. APPELLANT: Yes, Your Honor. THE COURT: Theft of a 1985 Buick Riviera. MR. HURLEY: Attempted. THE COURT: Attempted theft. Do you recall that? APPELLANT: Yes. THE COURT: Are you admitting it? APPELLANT: Yes, Your Honor. THE COURT: The next one is possessing criminal tools. MR. HURLEY: Again, we would withdraw any previous entered denial to that count and enter an admission on behalf of Allen. THE COURT: Is that so, Allen? You admitting that? APPELLANT: Yes, Your Honor. THE COURT: Adjudicated delinquent. And the last file is 9516569. And that this complaint has two counts. The first one is receiving stolen property. This has to do with a 1986 Chevrolet. This was alleged to have occurred on November 3, 1995 at 601 Erieside in Cleveland. Are you admitting that? 5 APPELLANT: Yes, Your Honor. THE COURT: Adjudicated delinquent. And the second count is possessing criminal tools. Admitting that? APPELLANT: Yes, Your Honor. THE COURT: Adjudicated delinquent. All right. *** The court proceeded to the dispositional phase wherein the court heard the recommendations of the probation officer and counsel. During this phase, the court entered into a lengthy allocution of the hazards likely to befall appellant if his criminal conduct were to continue and herein discussed the potential penalty for rape if charged as an adult and the likelihood of returning to ODYS. The following is a part of this dialogue between the judge and the minor: THE COURT: *** [Y]ou should be grateful for having gotten a decision here today, which is going to keep you in the juvenile system. *** In other words, it's one more opportunity for you to demonstrate that you can take responsibility for yourself, and that you can do what you're supposed to do. See. Because I am afraid that unless and it's kind of a last resort because - how old are you? APPELLANT: Sixteen (16). THE COURT: When are you going to be seventeen (17)? APPELLANT: December 2nd. 6 THE COURT: Well, all right, but by the time you come out of the Ohio Department of Youth Services, you're going to be pretty close to eighteen (18) years of age. *** A representative of ODYS likewise addressed appellant as follows: MS. DAVIS: Your Honor, if I could say something to Allen to make sure he understands. THE COURT: Yes. MS. DAVIS: He is in the sex offender program, the minimum sentence simply means his release will be reviewed on that date. He will not be released until he's had until he completes the counseling, and that, in many cases, is many months beyond the minimum sentence date. *** [A]fter he spends one year of the one-year sentence, two months before his release, his material, the report from how he has done in the institution, will be sent to a release review committee and sex offender specialist in Columbus. They will review how he has progressed in the program -- THE COURT: I see. MS. DAVIS: and decide if he is ready to be released. If he is not ready to be released, it is continued for like two months or three months, when the material is submitted again and again considered. But until they feel that he has satisfa ctorily committed completed the sex offender treatment program, he is not 7 released. And then once he is released, he has to continue the sex offender counseling in the community. THE COURT: All right. Allen, do you understand that? MR. HURLEY: Your Honor well, I just on a related note, I would also add to the Court --excuse me at this point, that Allen has been in a detention center for about five months, at this point, and I would certainly ask, at this point, the credit for time served. THE COURT: Well, of course he'll get the time credit for time served. MR. HURLEY: Right. I certainly also, additionally understand I think Allen understands, too, that it (sic) if, in fact, the Court refers him to any program, then obviously the satisfaction of that program is going to be required. Appellant was ultimately sentenced to consecutive indefinite terms consisting of minimum periods of one year on the rape charge and six months each on the attempted auto theft and receiving stolen property charges, with maximum periods not to exceed appellant's twenty-first birthday. In its journal entry finding appellant delinquent for rape, the court specifically stated that appellant was not to be released prior to his eighteenth birthday without prior court review. Appellant timely appeals this decision, assigning the following errors for our review: 8 . THE TRIAL COURT ERRED WHEN IT ACCEPTED APPELLANT'S PLEA BECAUSE IT DID NOT EXPLAIN THE POSSIBLE CONSEQUENCES AS REQUIRED BY JUV.R. 29. II. THE DISPOSITION ORDERED BY THE COURT WAS NOT IN APPELLANT'S BEST INTEREST. III. THE COURT EXCEEDED ITS AUTHORITY WHEN IT ORDERED THAT APPELLANT COULD NOT BE RELEASED PRIOR TO HIS EIGHTEENTH BIRTHDAY WITHOUT REVIEW OF THE COURT. I. Appellant challenges the court's acceptance of his admissions to the aforementioned charges on the basis that he was never informed of the consequences of the admissions as required by Juv.R. 29(D)(1). The state, on the other hand, maintains that the court's protracted discussion of the possible penalties during the disposition phase of the proceedings sufficiently apprised appellant of the consequences of his admissions. Juv.R. 29(D) governs the initial procedure upon an entry of an admission and provides: The court may refuse to accept an admission and 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 admissions; (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. 9 In order to satisfy the requirements of this rule, the court must address the youth personally and conduct an on-the-record discussion to determine whether the admission is being entered knowingly and voluntarily. In re McKenzie (1995), 102 Ohio App.3d 275, 277 citing In re Meyer (Jan. 15, 1992), Hamilton App. Nos. C- 910292 and C-910404, unreported. An admission once made is reviewed for substantial compliance with these requirements. Id. See, also, In re William H. (1995), 105 Ohio App.3d 761, 766. Absent a showing of prejudice, if there is substantial compliance with the rule, the plea is voluntarily and intelligently entered and will not be disturbed on appeal. See State v. Stewart (1977), 51 Ohio St.2d 86, 92-93. Substantial compliance means that under the totality of the circumstances, the defendant subjectively understands the implications of his plea and the rights he is waiving. State v. Nero (1991), 56 Ohio St.3d 106, 108; In re Jenkins (1995), 101 Ohio App.3d 177, 181. The test for prejudice is whether the plea would otherwise have been made. Stewart, supraat 93; see, also, In re Palmer (Nov. 21, 1996), Franklin App. No. 96APF03-281, unreported. Although the court discussed the rights that appellant would be waiving as required by Juv.R. 29(D)(2), at no point prior to accepting his admissions1 did the court determine that the appellant understood the consequences of admitting the charges in the three complaints. While the term consequences, as used in 1The transcript before us does not include an admission to the delinquency charge as it relates to the second count of case number 9516569, possessing criminal tools. 10 this rule, has received minimal attention by the courts of this state, we agree with the Second District Court of Appeals that commitment to ODYS for period of several years is a significant enough consequence to warrant mention by the trial court. See In re Hendrickson (Sep. 27, 1996), Greene App. No. 95-CA-84, unreported; see, also, In re Beechler (July 25, 1996), Ross App. No. 95CA2147, unreported. While we are of the opinion that there is no compliance with Juv.R. 29(D)(1) when the trial court, prior to accepting an admission, fails to personally inform a juvenile defendant of the potential penalties associated with the offense giving rise to allegations of delinquency, appellant has failed to demonstrate how he has been prejudiced by his admissions. There is no showing that appellant would not have entered the admissions had he known of the possible penalties associated with the offenses for which he was charged. Indeed, appellant agreed to enter admissions in exchange for the state's withdrawal of its motion to try appellant as an adult. It is highly unlikely that appellant would have risked trial as an adult, with the possibility of lengthy prison terms if found guilty, rather than accept the state's offer to enter admissions as a juvenile and be committed to ODYS. Accordingly, appellant's first assignment of error is not well taken. II. 11 In his second assignment of error, appellant contends that the consecutive sentences imposed by the trial court are not in his best interests. Appellant committed acts that would constitute felonies of the first, third and fourth degrees, if committed by an adult. Because of this, the court acted well within its authority to make a disposition of commitment for the minimum terms as provided by R.C. 2151.355. Appellant argues that, rather than serve consecutive minimum sentences, he should be released when his treatment is complete. A juvenile court, however, is authorized to impose consecutive terms of commitment upon a delinquent minor for separate delinquent acts. In re Caldwell (1996), 76 Ohio St.3d 156, syllabus; see, also, In re Samkas (1992), 80 Ohio App.3d 240, 244. Nonetheless, R.C. 2151.38 provides a mechanism for appellant to seek early release should he be sufficiently rehabilitated. Accordingly, appellant's second assignment of error is not well-taken. III. In its order finding appellant delinquent for rape and committing appellant to ODYS, the juvenile court added that appellant may not be released prior to 18th birthday without review of court. Appellant, in his third assignment of error, argues that once the court ordered commitment to ODYS, it was without jurisdiction to make such a disposition. 12 In support of his argument, appellant relies on R.C. 2151.38(A), which provides: When a child is committed to the legal custody of the department of youth services, the jurisdiction of the juvenile court with respect to the child so committed shall cease and terminate at the time of commitment, except as provided in divisions (B) and (C) of this section *** . The statute continues with describing the circumstances and procedures under which child can petition early release from the court. While this statutory provision does address the jurisdiction of the juvenile court following an order of commitment to ODYS, we find it unnecessary to address the merits of this argument. Appellant will turn eighteen before he completes serving the minimum terms of the consecutive sentences ordered by the court. Consequently, he can demonstrate no prejudice from the trial court's verbiage relative to its further review. Accordingly, appellant's third assignment of error is not well-taken. Judgment affirmed. 13 It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Court of Common Pleas, Juvenile Division, to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, C.J. AND JOHN T. PATTON, J. CONCUR JUDGE ROBERT E. HOLMES* *SITTING BY ASSIGNMENT: Robert E. Holmes, retired Justice of the Ohio Supreme Court. 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 .