COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71245 IN RE: ROY WARD, A MINOR CHILD : : : JOURNAL ENTRY APPELLANT : : AND : : OPINION : : DATE OF ANNOUNCEMENT OF DECISION: JUNE 12, 1997 CHARACTER OF PROCEEDING: Civil appeal from Juvenile Court, Case No. 9608151. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Appellant: Darin Thompson, Esq. Assistant Public Defender 1200 W. Third Street, N.W. 100 Lakeside Place Cleveland, OH 44113 For State of Ohio: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Kestra Smith Crutcher, Esq. Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Avenue Cleveland, OH 44113 -2- DAVID T. MATIA, J. Appellant Roy Ward, a minor, appeals from the decision of the Cuyahoga County Court of Common Pleas, Juvenile Division, Case No. 9608154, in which the trial court adjudged appellant to be a delinquent child. Appellant assigns two errors for this court's review. This appeal is well taken. I. THE FACTS On June 13, 1996, a two-count complaint was filed against appellant alleging that he was a delinquent child. The first count of the complaint alleged that on June 3, 1996, appellant did unlawfully receive, retain, or dispose of property of another, to- wit: a 1984 Pontiac automobile, license plate number NXU027, in violation of R.C. 2913.51(A). The second count of the complaint alleged that appellant did unlawfully possess or have under his contr ol, with purpose to use criminally, certain instruments, devices,or articles, to-wit: a screwdriver, in violation of R.C. 2923.24(A). On June 23, 1996, the trial court magistrate conducted an informal detention hearing in the underlying matter pursuant to Juv.R. 7. At the hearing, the trial court magistrate made the following findings regarding appellant's right to counsel: The parties herein having been informed of their right to counsel, or to the right to have counsel appointed if indigent, and of the right of the child to remain silent, I find: that said minor, appearing alone and after indicating that the foregoing rights are understood, expressly waives right to -3- counsel and the right to have counsel appointed if indigent for this detention hearing. Mother failed to appear for hearing. An adjudicatory hearing on this matter was held before a trial court magistrate on July 31, 1996. According to the state, appellant waived his right to counsel and admitted the truth of the underlying charges. The referee's report and journal entry for the hearing consisted of a typed form with blanks to be marked indicating whether counsel was waived and whether the minor admitted or denied the allegations of the underlying complaint. These blanks were not marked in any way. The second portion of the trial court form was entitled supplemental finding of referee and it consisted of handwritten notations which provided: Child admits being in possession of stolen auto- child on parole to ODYS - child has viol. filed - worker requests recommitment. Child was on psychotrophic drugs when release[d] - child appears to have psychiatric problems needing continuing care. On August 2, 1996, the trial court adopted the decision of the trial court magistrate. Appellant was then committed to the custody of the Ohio Department of Youth Services until December 12, 1996. The record does not contain a transcript for any of the trial court proceedings. On September 6, 1996, appellant filed a timely notice of appeal from the judgment of the trial court. II. FIRST AND SECOND ASSIGNMENTS OF ERROR Appellant Roy Ward's first assignment of error states: -4- MASTER WARD'S ADMISSION MUST BE VACATED BECAUSE THERE IS NO AFFIRMATIVE DEMONSTRATION THAT A WAIVER OF COUNSEL OCCURRED. Appellant Ray Ward's second assignment of error . THE TRIAL COURT ERRED IN ADOPTING THE MAGISTRATE'S DECISION WHICH DID NOT AFFIRMATIVELY DEMONSTRATE THAT A WAIVER OF COUNSEL HAD OCCURRED. -5- . THE ISSUE RAISED: WHETHER A VALID WAIVER OF COUNSEL OCCURRED. Having a common basis in both law and fact, this court shall onsider appellant's first and second assignments of error imultaneously. Appellant argues, through his first and second assignments of rror, that the trial court record fails to adequately demonstrate hat an affirmative waiver of the right to counsel occurred. pecifically, appellant maintains that the trial court's failure to ake a record of the adjudicatory hearing of July 31, 1996 in ccordance with the mandates of Juv.R. 37(A) and Juv.R. 40(D)(2) revents a finding that an affirmative waiver of the constitutional ight to counsel took place. In addition, appellant maintains that review of the trial court's journal entry for the adjudicatory earing in question also fails to demonstrate that a proper waiver f counsel occurred. In the absence of such record, it is ppellant's position that the trial court magistrate's acceptance f appellant's alleged admission must be vacated along with the rial court's adoption of the magistrate's decision. Appella nt's first and second assignments of error are well aken. STANDARD OF REVIEW FOR WAIVER OF COUNSEL BY A JUVENILE. The United States Supreme Court has held that juvenile oceedings must comply with the requirements of due process. Due ocess in a juvenile court proceeding must include adequate written tic e, advice as to the right to counsel, retained or appointed, -6- nfirmation and cross-examination of witnesses and the privilege ainst self-incrimination. In re Gault (1967), 387 U.S. 1, 87 Ct. 1428, 18 L.E.2d 527. In addition, Juv.R. 4(A) and 29(B), as ll as R.C. 2151.352, entitle a juvenile to be represented by legal uns el at all stages of juvenile court proceedings. In re East 995), 105 Ohio App.3d 221, 223. There is no material difference th respect to the constitutional right to counsel between adult d juvenile proceedings. Therefore case law pertaining to an ult's waiver of counsel is applicable to juvenile court cases. ult, supra. In order for an adult waiver of counsel to be effective, the cord must demonstrate that the waiver was knowing, voluntary and te lligent. State v. Gibson (1976), 45 Ohio St.2d 366; State v. erho lt (1991), 77 Ohio App.3d 111, 116. The trial court must lly and clearly explain to the defendant his right to counsel and e defendant must then affirmatively waive that right on the cord. Garfield Hts. V. Brewer (1984), 17 Ohio App.3d 216. At an adjudicatory hearing, prior to accepting an admission, e trial court magistrate must personally address the juvenile fendant and insure the validity of the waiver. In re Mayer (Jan. , 1992), Hamilton App. Nos. C-910292 and C-910404, unreported. A urna l entry indicating that the juvenile waived his right to u nsel was not adequate to demonstrate that the trial court plai ned the statutory right to counsel and informed him that unsel would be appointed if he were indigent. In re Kriak (1986), Ohio App.3d 83. A trial court violates Juv.R. 29 when it accepts -7- juvenile's admission of delinquency where the trial court did not d ress the juvenile personally in order to determine if the venil e understood the consequences of the admission and the nsti tutional rights waived. In re McKenzie (1995), 102 Ohio p.3d 275; In re Montgomery (Jan. 9, 1997), Cuyahoga App. No. 279, unreported. THE RECORD FAILS TO DEMONSTRATE THE EXISTENCE OF A VALID WAIVER OF COUNSEL. In the instant case, the trial court record is devoid of idence demonstrating the existence of a valid waiver of the nstitutional and statutory right to counsel. Juv.R. 37(A), which came effective on July 1, 1996, provides: The juvenile court shall make a record of adjudicatory and dispositional proceedings in abuse, neglect, dependent, unruly, and delinquent cases; perm anent custody cases; and proceedings before magist rates. In all other proceedings governed by these rules, a record shall be made upon request of a party or upon motion of the court . The record shall be taken in shorthand, stenotype, or by any othe r adequate mechanical, electronic, or video recording device. The adjudicatory hearing in question took place on July 31, 1996, approximately one month after the effective date of the Juvenile Rule. See Juv.R. 47(K). Therefore the trial court was required to make a record of that hearing. Since, no record was made, this court is unable to determine whether an affirmative waiver of the right to counsel occurred. In fact, the trial court magistrate's July 31, 1996 journal entry, which is the only record of the adjudicatory hearing in question, fails to even minimally satisfy the requirements of Juv.R. 29 since the magistrate did not -8- check the box indicating whether the juvenile admitted or denied the allegations of the complaint and whether counsel was waived. While it is true that the informal detention hearing journal entry dated June 23, 1996 sets forth that an express waiver of counse l took place, under the circumstances of this case, the journal entry is not adequate evidence of a knowing, voluntary and intelligent waiver of counsel given the lack of an appropriate record from the adjudicatory hearing. As the Ninth District appellate court stated in Kriak, supra at 84: Without a record establishing that the trial court fulfilled its statutory duty to advise a juvenile of his right to appointed counsel if indigent and to determine indigency if claimed, we find that the trial court violated [defendant's] statutory right to representation of counsel. For the foregoing reasons, this court finds that the trial court erred when it adopted the magistrate's report and journal entry without sufficient findings to enable the trial court to make an independent determination that appellant knowingly, voluntarily and intelligently waived his right to counsel. Appellant's first and second assignments of error are well taken. Judgment of the trial court is hereby reversed and remanded for further proceedings consistent with this opinion. -9- This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant recover of said appellee his 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. BLACKMON, P.J. and SPELLACY, J., CONCUR. DAVID T. MATIA 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 journa lization of this court's announcement of decision by the .