COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72277 IN RE: CHRISTOPHER COLLINS, : JOURNAL ENTRY A Minor : and : OPINION Plaintiff-appellant : : DATE OF ANNOUNCEMENT OF DECISION : APRIL 9, 1998 CHARACTER OF PROCEEDING : Civil appeal from : Court of Common Pleas : Juvenile Division : Case No. 9608566 JUDGMENT : REVERSED AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For appellant : JAMES A. DRAPER Cuyahoga County Public Defender KATHLEEN W. WOOD, Assistant 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113 For appellee State of Ohio: STEPHANIE TUBBS-JONES Cuyahoga County Prosecutor SUZIE DEMOSTHENES, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 KENNETH A. ROCCO, J.: Appellant appeals the lower court's ruling committing him to an Ohio Department of Youth Services facility following an -2- adjudicatory hearing in which, appellant alleges, the trial court failed to comply with the applicable Juvenile Rules. Since the trial court failed to make a record as mandated by Juv.R. 37(A), appellant's appeal is well taken, and this matter is reversed and remanded for a new adjudicatory hearing. On June 17, 1996, a complaint was filed against appellant, Christopher Collins, a fifteen-year-old child. The complaint alleged appellant was a delinquent because he had stolen a purse using force or the threat of force. Pursuant to R.C. 2911.02(A), the offense, if committed by an adult, would be an aggravated felony of the second degree. On October 15, 1996, a hearing was held before a magistrate in the Cuyahoga County Court of Common Pleas, Juvenile Division. The magistrate's report was issued on a pre-printed form consisting of short statements with boxes for check marks. On this form, the magistrate found appellant to be unruly. 1 The court approved the magistrate's report on October 18, 1996. The following statements were also checked: The referee explained the legal rights, proce- dures, and possible consequences of hearing pursuant to Juvenile Rule 29. Parties waived counsel. Whereupon the referee requested the child to admit or deny the allegation(s) of the com- 1 There is apparently a mistake in the record since the referee report and journal entry documenting the October 15 hearing and signed by the judge adjudged appellant as unruly while the transcript of docket entries notes that appellant was adjudged delinquent at that hearing. -3- plaint. The child voluntarily admitted the allegation(s) of the complaint. A dispositional hearing was then held on November 19, 1996. On this form, the following statements were checked: Upon the complaint of affiant as to child herein heretofore adjudged: delinquent2 The referee explained legal rights, proce- dures, and possible consequences of hearing pursuant to Juvenile Rule 29. Parties waived counsel. The court approved the referee report and journal entry on November 21, 1996, and ordered that appellant be placed in shelter care at Lincoln Place. A delinquency complaint filed on February 10, 1997, by the Cuyahoga County Department of Children and Family Services alleged that appellant was delinquent pursuant to R.C. 2151.02(B) due to noncompliant behavior at Lincoln Place. Following a hearing on February 18, 1997, the report issued by the referee included checks by the following: The parties waive counsel. The child voluntarily admitted the allegations of the complaint and the referee accepted such admission. 2 The statement that appellant was previously adjudged delinquent in this referee report and journal entry may not be accurate. As noted above, the record is inconsistent regarding whether appellant was adjudged unruly or delinquent at the October 15 hearing. It is unclear why appellant failed to seek a writ of habeas corpus and/or to file an appeal and seek a stay in the lower court to determine whether appellant could be committed to the custody of the Ohio Department of Youth Services when the October 15 referee report and journal entry signed by the judge stated that appellant was found to be unruly, not delinquent. -4- The court approved the entry, which also committed appellant to the custody of Ohio Department of Youth Services in a secure facility for an indefinite term, from a minimum of twelve months to a maximum of the date appellant attains the age of twenty-one. Appellant timely filed his Notice of Appeal. Appellant states the following three assignments of error: I. IN ACCEPTING UNRECORDED, UNCOUNSELED ADMISSIONS FROM A CHILD, THE JUVENILE COURT VIOLATED THE SIXTH AMENDMENT RIGHT TO COUNSEL AND THE ABSOLUTE MANDATE OF JUVENILE RULES 37(A) AND 40(D)(2). II. BY FAILING TO CREATE A RECORD SHOWING THAT A CHILD'S ADMISSIONS WERE KNOWING AND VOLUNTARY, THE JUVENILE COURT VIO- LATED THE DUE PROCESS REQUIREMENTS OF JUV.R. 29(D). III. THE COMMITMENT OF CHRISTOPHER COLLINS TO THE OHIO DEPARTMENT OF YOUTH SERVICES WAS ILLEGAL BECAUSE IT IS NOT AUTHORIZED UNDER R.C. 2151.355(A)(5)(c). Appellant's first and primary contention is that the trial court erred by conducting the hearings without making a record of the proceedings. Juv.R. 37(A), effective July 1, 1996, provides: The juvenile court shall make a record of adjudicatory and dispositional proceedings in abuse, neglect, dependent, unruly, and delin- quent cases; permanent custody cases; and proceedings before magistrates. 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 other adequate mechanical, electronic, or video re- cording device. -5- (Emphasis added.) The state does not oppose appellant's position, and, since no record was made, it is clear that the trial court failed to comply with the mandates of Juv.R. 37(A). Appellant's first assignment of error is well taken. This matter is reversed and remanded to the lower court for a new adjudicatory hearing in compliance with the applicable Juvenile Rules. Appellant's remaining assignments of error are, therefore, moot. Upon agreement of counsel for both appellant and appellee, and for good cause shown, the appellant is to be committed to the emergency care and custody of the Cuyahoga County Children and Family Services pending the re-hearing by the Cuyahoga County Court of Common Pleas, Juvenile Division. The trial judge shall make the necessary arrangements for the placement of appellant upon his release from the custody of the Ohio Department of Youth Services. -6- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. 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. ANN DYKE, P.J. and TERRENCE O'DONNELL, J. CONCUR JUDGE KENNETH A. ROCCO 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 .