COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71625 IN RE: SERAFIN SOLIS, : JOURNAL ENTRY A MINOR, : AND : OPINION Appellant : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 11, 1997 CHARACTER OF PROCEEDING: Civil appeal from the Court of Common Pleas, Juvenile Division Case No. 9508695 JUDGMENT: Affirmed in part, Reversed in part and Remanded. DATE OF JOURNALIZATION: APPEARANCES: For Appellant: For Appellee: SCOTT HURLEY, ESQ. KESTRA SMITH-CRUTCHER, ESQ. Assistant Public Defender Assistant Prosecuting Attorney 1200 West Third Street N.W. The Justice Center 100 Lakeside Place 1200 Ontario Street Cleveland, Ohio 44113 Cleveland, Ohio 44113 -2- DYKE, J.: Appellant, Serafin Solis, a minor, is appealing his adjudication of delinquency and disposition, committing him to the Ohio Department of Youth Services for a minimum of one year and a maximum of the appellant's twenty-first birthday. For the following reasons, we affirm in part, reverse in part and remand. The following statement of facts is based on the docket and journal entries. No transcripts were taken. The complaint alleged that appellant had participated in acts which, if committed by an adult, would constitute aggravated robbery and petty theft. The case came on for hearing on August 23, 1995. A journal entry states that the court explained to appellant his legal rights, procedures and possible consequences of a hearing pursuant to Juv. R. 29. The court, on its own motion, found the child dependent and placed him in the emergency care and custody of the Cuyahoga County Department of Children and Family Services. The appellant requested counsel, so the matter was continued. On September 25, 1995, appellant appeared with his attorney. Appellant, through his attorney, admitted the allegations of the complaint. The court found appellant delinquent, and continued the matter for disposition. The court also found that appellant was a dependent child, and committed him to the temporary custody of CCDCFS, to enter therapeutic foster placement. The order of August 23, 1995 was terminated. On January 10, 1996, a hearing was held. The court ordered -3- appellant remain in the temporary custody of CCDCFS and maintain current placement. The case was continued. At a hearing on September 5, 1996, the Juvenile Court committed appellant to the Department of Youth Services, and remanded appellant to the detention center. The journal entry is printed on a standard form. The form stated that the court explained legal rights, procedures and consequences of a hearing pursuant to Juv. R. 29. A box was checked, indicating appellant waived his right to counsel. Appellant's sole assignment of error states: THE JUVENILE COURT'S FAILURE TO RECORD PROCEEDINGS OF CHILD-APPELLANT'S CASE, IN VIOLATION OF JUV. R. 37(A), PRECLUDES MEANINGFUL APPELLATE REVIEW OF THE LOWER COURT'S DECISION AND OF CHILD APPELLANT'S WAIVER OF RIGHT TO COUNSEL, AND REQUIRES REVERSAL. The adjudication hearing on September 25, 1995 is appealable now because a delinquency adjudication without a disposition is not a final appealable order. In re Sekulich (1981), 65 Ohio St.2d 13. Appellant's counsel was present at the adjudication hearing. This court can not reverse the adjudication of delinquency based on the denial of appellant's right to counsel. The record does not state whether the court informed appellant of his rights and the consequences of his plea at the adjudication hearing. A knowing, intelligent waiver will not be presumed from a silent record. See In re McKenzie (1995), 102 Ohio App.3d 275. Appellant has not assigned as error that his plea was not knowingly and voluntarily. Plain errors may be noticed, although they were not brought to the attention of the court. Crim. R. 52, -4- see also App. R. 12(A), C. Miller Chevrolet, Inc. v. Willoughby Hills (1974), 38 Ohio St.2d 298. To rise to the level of plain error, it must appear on the face of the record not only that error was committed, but that except for the error, the result clearly would have been otherwise. State v. Bock (1984), 16 Ohio App.3d 146. Appellant does not claim the plea was not knowing and voluntary, so this court can not assume the plea was involuntary. Cf. State v. Kelly (Nov. 2, 1989), Cuyahoga App. No. 55905, unreported. This court will not address the issue of whether the admission was knowing and voluntary. Appellant did not have counsel at the disposition hearing on September 5, 1996. A child is entitled to counsel at all stages of the proceedings. In re East (1995), 105 Ohio App.3d 221, Juv. R. 4(A), 29(B), R.C. 2151.352. Appellant was entitled to counsel at the disposition hearing. In re Johnson (1995), 106 Ohio App.3d 38, 42. Appellee argues counsel was not required because the child was told that if the foster care did not work out, he could be re- sentenced to a correctional facility. Whether counsel is necessary at a probation revocation hearing is at the discretion of the trial judge. In re Burton (Aug. 14, 1997), Cuyahoga App. No. 70141, unreported. However, the hearing on 9-5-96 was a dispositional hearing, not a revocation of probation. The journal entry in question states that the child waived counsel, after the judge informed him of legal rights, procedures and possible consequences of hearing pursuant to Juvenile Rule 29". -5- This court has found that such a journal entry is sufficient to establish a knowing and voluntary waiver of counsel. See In re East(1995), 105 Ohio App.3d 221, Cf. In re Kriak (1986), 30 Ohio App.3d 83. We based the East decision on the fact that Juv. R. 37, as written at that time, did not require a record of the proceed- ings be made. Juv. R. 37 has since been amended, and effective July 1, 1996, dispositionalproceedings of delinquency cases must be recorded by shorthand, stenotype, or other adequate mechanical, electronic or video recording device. Some type of transcript is now required, so a notation in the journal entry that the child waived counsel is not sufficient. See In re Ward (June 12, 1997), Cuyahoga App. No. 71245, unreported, see also In re Montgomery (Jan. 9, 1997), Cuyahoga App. No. 69279, unreported. In an adult proceeding, a written waiver signed by the defendant is insufficient to show the defendant knowingly and voluntarily waived his right to counsel. Garfield Heights v. Brewer(1984), 17 Ohio App.3d 216. The United States Constitution mandates that the waiver affirmatively appear on the record. Id. The same rule should apply to a juvenile proceeding, now that a transcript of the proceedings is required. There is no material difference in the constitutional right to counsel in a juvenile as in an adult proceeding. In re Gault (1967), 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527. Accordingly, appellant's assignment of error is sustained in part, and overruled in part. -6- The trial court's journal entry dated 10-25-96, concerning the hearing of 9-5-96, is reversed. All other orders of the trial court are affirmed. This case is remanded for further proceedings consistent with this opinion. -7- This cause is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. It is ordered that appellant and appellee split the costs herein taxed. It is ordered that a special mandate issue out of this Court directing the Juvenile Division of the Court of Common Pleas 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. SWEENEY, C.J., AND KARPINSKI, J., CONCUR. ANN DYKE 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 .