COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71134 IN RE: STEVEN HOLLIS, A MINOR : : Appellant : : JOURNAL ENTRY : AND : OPINION : : : : DATE OF ANNOUNCEMENT OF DECISION JULY 10, 1997 CHARACTER OF PROCEEDING Appeal from Court of Common Pleas Juvenile Division Case No. 9601215 JUDGMENT Reversed DATE OF JOURNALIZATION APPEARANCES: For Appellant: For Appellee: JAMES A. DRAPER STEPHANIE TUBBS JONES Cuyahoga County Public Defender Cuyahoga County Prosecutor JEAN M. GALLAGHER, Assistant Justice Center - 9th Floor Public Defender 1200 Ontario Street 1200 West Third Street, N.W. Cleveland, Ohio 44113 100 Lakeside Place Cleveland, Ohio 44113-7583 - 2 - JAMES M. PORTER, P.J., Appellant Steven Hollis, a minor, appeals from Juvenile Court's finding of delinquency for what would be felonious assault (R.C. 2903.11) if he was an adult, on the grounds that he did not voluntarily and with understanding admit the offense. We find merit to the appeal and reverse. On February 8, 1996, a delinquency complaint was filed against appellant Steven Hollis, a thirteen year old juvenile in Case No. 9601215. The complaint alleged that he had committed acts against Luke Creed, which, had he been an adult, would have violated R.C. 2903.11 (felonious assault). On March 11, 1996, an adjudicatory hearing was held before a magistrate and appellant admitted to the charge. The transcript of hearing does not reveal that the magistrate had a colloquy with appellant respecting the rights he was waiving by entering his admission. At the March 11, 1996 initial hearing, the magistrate told appellant that the charge of felonious assault "has a potential one year (sic) sentence." He admonished that if appellant did not follow the rules of home detention, he would send him away until he was twenty-one. He also told appellant, "You need to admit or deny the charge. If you deny the charge, then we'll get you a lawyer and you come back to Court for a pre-trial." Appellant replied, "I plead guilty." (Tr. 9-11). The March 11, 1996, entry concerning the adjudicatory hearing states that the magistrate read the complaint in open court and - 3 - explained legal rights, procedures, and possible consequences of the hearing, pursuant to Juv.R. 29. It also stated that the juvenile waived counsel, that he admitted the allegations of the complaint, and that the admission was accepted pursuant to Juv.R. 29. However, the transcript reveals that counsel was present and there was no mention of any rights or the waiver of those rights. Defendant was represented by counsel at the March 11, 1996 adjudicatory or preliminary hearing and the July 9, 1996 dispositional hearing. While in both instances defendant's counsel was "unidentified" for the record, defendant was clearly represented by counsel. The magistrate must have mistakenly checked the wrong box on the referee's report and journal entry form. It is well settled that a court speaks only through its journal entries. State v. King (1994), 70 Ohio St.3d 158, 162; In re Adoption of Gibson (1986), 23 Ohio St.3d 170, 173. However, when it is in the interest of justice for a reviewing court to ascertain the grounds upon which the judgment of a lower court is founded, then the reviewing court must examine the entire proceedings including the transcript. Joyce v. General Motors Corp. (1990), 49 Ohio St.3d 93, 95; A.D. Jac., Inc. v. Liquor Comm. (1972), 29 Ohio St.2d 139. See, also, State ex rel. Kinnear Div., Harsco Corp. v. Indus. Comm. (1997), 77 Ohio St.3d 258, 263. In any event, defendant was represented by counsel when he gave his plea. Further, had defendant, in fact, waived counsel the trial court was under a duty to determine if the waiver was - 4 - knowingly, intelligently and voluntarily given. State v. Gibson (1976), 45 Ohio St.2d 366; In re Johnson (1995), 106 Ohio App.3d 38. The trial court did not inquire as to the waiver issue as defendant was represented by counsel. The magistrate entered a journal entry which stated that appellant was delinquent. A dispositional hearing was held on July 9, 1996, at which the magistrate entered a second journal entry which stated that appellant was committed to the Ohio Department of Youth Services (ODYS) for an indefinite term consisting of a minimum period of one year and a maximum period not to exceed the child's attainment of the age of twenty-one years. The trial court adopted the magistrate's decisions. A timely notice of appeal was filed. Appellee has filed no brief herein. Appellant's sole assignment of error states: I. THE JUDGMENT ADJUDICATING STEVEN HOLLIS A DELINQUENT MUST BE REVERSED WHERE THE RECORD DOES NOT DISCLOSE THAT HE VOLUNTARILY AND WITH UNDERSTANDING ENTERED AN ADMISSION. Juv.R. 29(D) states: 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 *** 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. - 5 - Although the March 11, 1996 journal entry concerning the adjudicatory hearing states that the admission was accepted pursuant to Juv.R. 29, the transcript reveals that the journal entry is inaccurate. In fact, the entry also states that counsel was waived, but a review of the transcript reveals that, in fact, counsel (Ms. Unidentified, Esq.) clearly advocated for appellant. Similarly, the July 9, 1996 dipositional entry states that the complaint was read, the magistrate explained legal rights, procedures, and possible consequences of the hearing, the child admitted the allegations and the magistrate accepted the admission pursuant to Juv.R. 29. The transcript reveals that none of that happened. That was not surprising since this was the dispositional hearing rather than the adjudicatory hearing where the child already admitted his delinquency. The entry also states that appellant was advised of the right to expungement, to appeal and to file objections to the report of the magistrate, but the transcript is silent on those matters as well. The steps the Juvenile Court must follow before accepting an admission to the offense charged were set forth recently by this Court in In re Flynn (1995), 101 Ohio App.3d 778, 781-83: As in a criminal case in which a defendant offers a plea of guilty pursuant to Crim.R. 11(C), the juvenile court must, pursuant to Juv.R. 29(D), make a careful inquiry before accepting an admission in a juvenile case. In re Green (1982), 4 Ohio App.3d 196, 198, 4 OBR 300, 301, 447 N.E.2d 129, 130. Juv.R. 29(D) provides in part: - 6 - "The court may refuse to accept an admission and shall not accept an admission without addressing the party personally and determining that: "(1) He is making the admission voluntarily with understanding of the nature of the allegations and the consequences of the admission; and "(2) He understands that by entering his admission he is waiving his rights to challenge the witnesses and evidence against him, to remain silent and to introduce evidence at the adjudicatory hearing." While an admission in a juvenile case is not deemed to be a guilty plea under Crim.R. 11(C), it is a waiver of the right to challenge the allegations raised in the complaint. State v. Penrod (1989), 62 Ohio App.3d 720, 723, 577 N.E.2d 424, 425; In re Allen (Jan. 13, 1994), Cuyahoga App. No. 64441, unreported, 1994 WL 11326. Our review, however, of the juvenile adjudication hearing is similar to that of a Crim.R. 11(C) hearing. In determining whether a guilty plea is voluntarily, intelligently and knowingly made, courts look to the totality of the circumstances. State v. Calillo (1991), 76 Ohio App.3d 714, 719, 603 N.E.2d 325, 328; State v. Carter (1979), 60 Ohio St.2d 34, 14 O.O.3d 199, 396 N.E.2d 757; State v. Billups (1979), 57 Ohio St.2d 31, 11 O.O.3d 150, 385 N.E.2d 1308. It is clear that the trial court need not inform the defendant of each element of the offense, but must ensure that he understands the charge brought against him. State v. Rainey (1982), 3 Ohio App.3d 441, 442, 3 OBR 519, 520, 446 N.E.2d 188, 190: "In order for a trial court to determine that a defendant is making a plea with an understanding of the nature of the charge to which he is entering a plea, it is not always necessary that the trial court advise the defendant of the elements of the crime, or to specifically ask the defendant if he understands the charge, so long as the totality - 7 - of the circumstances are [sic] such that the trial court is warranted in making a determination that the defendant understands the charge. In other words, under some circumstances, the trial court may be justified in concluding that a defendant has drawn an understanding from sources other than the lips of the trial court. See unreported decisions of this court in State v. Moore (Feb. 5, 1981), No. 80AP-643, [1981 WL 2982], and State v. Kimble (Aug. 23, 1979), No. 79AP-71." Looking at the totality of the circumstances, there can be no doubt that appellant understood the charges against him. On June 2, 1994, the charges were read to him by the referee who explained all of his rights under Juv.R. 29. On June 9, 1994, prior to accepting the admission, the referee literally asked appellant if the complaint was accurate. He acknowledged that what was alleged was true without question or hesitation. Although we find that the appellant understood the charges against him, a review of the totality of the circumstances indicates the lower court did not adequately explain to the appellant the rights he was waiving by choosing to enter an admission. Recently in In re McKenzie (Mar. 30, 1995), Cuyahoga App. No. 67843, unreported, 1995 WL 143553, this court held: "Juv.R. 29 requires the judge to address the youth personally and conduct an on the record exchange to determine whether the admission is knowing and voluntary. In re Meyer (Jan. 15, 1992), Hamilton App. Nos. C-910292 and C- 910404, unreported [1992 WL 5843]. In re Green (1982), 4 Ohio App.3d 196, 198 [4 OBR 300, 301, 447 N.E.2d 129, 130]; see In re Smith (1991), 77 Ohio App.3d 1, 15 [601 N.E.2d 45, 54]. Such an on the record personal exchange is required for a valid guilty plea pursuant to Crim.R. 11(C)(2). McCarthy v. United States (1969), 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed. 2d 418, State v. Caudill (1976), 48 Ohio St.2d 342 [2 O.O.3d 467, 358 N.E.2d 601]; State v. Ballard (1981), 66 Ohio St.2d 473 [20 O.O.3d 397, 423 N.E.2d 115]. - 8 - "The prosecutor must affirmatively demonstrate that the requirements of Juv.R. 29(D) or Crim.R.11 (C)(2) were met. Id. Repre-sentations by the defendant's attorney that the defendant understood the rights waived and the consequences of his plea, are not sufficient to demonstrate a knowing and voluntary waiver. State v. Caudill, supra; McCarthy, supra." Id. at 3-4. See, also, In re Brooks (1996), 112 Ohio App.3d 54, 57. We find that the Juvenile Court failed to follow the requirements of Juv.R. 29(D) in advising the appellant of his rights and the consequences of his plea. Appellant's sole assignment of error is sustained. Judgment reversed and remanded for a new hearing consistent with the principles set forth in this opinion. - 9 - It is ordered that appellant recover of appellee his costs herein taxed. It is ordered that a special mandate be sent to the Court of Common Pleas Juvenile Division 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. NAHRA, J., and KARPINSKI, J., CONCUR. JAMES M. PORTER PRESIDING JUDGE 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 .