COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72642 IN RE: JUSTIN GARDNER, A MINOR : JOURNAL ENTRY : Defendant-Appellant : AND : : OPINION DATE OF ANNOUNCEMENT OF DECISION: JUNE 18, 1998 CHARACTER OF PROCEEDING: Civil appeal from the Cuyahoga County Common Pleas Court, Juvenile Division, Case No. 9600436 JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: ______________________________ APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant: State of Ohio: STEPHANIE TUBBS JONES PATRICIA J. SMITH Cuyahoga County Prosecutor 4403 St. Clair Avenue NORMAN E. INCZE Cleveland, Ohio 44103 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 TERRENCE O'DONNELL, P.J.: -2- Justin Gardner appeals from an order of the Juvenile Court committing him to the Ohio Department of Youth Services, alleging denial of his right to counsel at the commitment hearing. For the following reasons, we agree and remand the matter to the court for appointment of counsel and re-hearing. The history of the case reveals that on January 11, 1996, the court conducted an adjudicatory hearing on charges that Gardner had raped his three-year-old nephew. After Gardner waived his right to counsel, the court found him delinquent and placed him in detention; thereafter, on April 2, 1996, the court ordered placement at Parmadale School in Parma, Ohio. Subsequently, on April 1, 1997, in response to a delinquency complaint, alleging that Gardner failed to comply with the rules set for him at Parmadale, the court conducted an additional hearing on April 29, 1997, and found Gardner in violation of the earlier court order and then committed him to the Ohio Department of Youth Services for a minimum term of twelve months and a maximum not to exceed the age of 21. Gardner now appeals raising one assignment of error for our review which states: I. THE APPELLANT'S SIXTH AND FOURTEENTH AMENDMENT RIGHT TO COUNSEL WAS VIOLATED WHEN THE TRIAL COURT PROCEEDED TO A HEARING OF A VIOLATION OF COURT ORDER WITHOUT INFORMING HIM OF HIS RIGHT TO COUNSEL. Gardner contends the court violated his Sixth and Fourteenth Amendment rights when it failed to re-advise him at the April 29, 1997 hearing of his right to counsel. -3- The state concedes this assignment of error. The issue then presented for our review is whether Gardner's original waiver of counsel at the adjudicatory hearing applies to the second delinquency complaint filed on April 1, 1997 on charges that he violated a previous court order. In his assignment of error, Gardner refers to the United States Constitution, Ohio statutes and local Juvenile Rules as authority for his entitlement to be represented by counsel. However, in Gagnon v. Scarpelli (1973), 411 U.S. 778, the court considered a similar case where a probationer admitted to having committed a second offense and drew a distinction between the right to counsel on an original charge and the right to counsel at a probation revocation hearing. The court stated at 782-783: *** Probation revocation, like parole revocation, is not a stage of a criminal prosecution, but does result in a loss of liberty. * * * The second, and more difficult, question posed by this case is whether an indigent probationer or parolee has a due process right to be represented by appointed counsel at these hearings ***. The court stated at 790: We think, rather, that the decision as to the need for counsel must be made on a case-by- case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system. Although the presence and participationof counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings, there will remain certain cases in which fundamental fairness the touchstone of due process will require -4- that the State provide at its expense counsel for indigent probationers or parolees. * * * Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. * * * In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself ***. Here, the transcript of the April 29, 1997 hearing reveals both that the court did not inform Gardner of his right to counsel at the hearing on the second delinquency charge and that Gardner tried to approach the bench with a written explanation for his behavior, but that the court interrupted him and summarily committed him to the Ohio Department of Youth Services. While we make no judgment regarding the propriety of the actions taken by the court, we recognize the inability of Gardner, a juvenile, to effectively articulate his defense pro se, and we believe the court abused its discretion in this instance in not providing counsel for him at this hearing. Accordingly, the matter is remanded for an additional hearing in accordance with this opinion. -5- Reversed and remanded. -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(s) recover of said appellee(s) 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. DIANE KARPINSKI, J., LEO M. SPELLACY, J., CONCUR PRESIDING JUDGE TERRENCE O'DONNELL 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 .