Agler, In re

• Decision Date: 09 July 1969
• Docket Number: No. 68-620,68-620
• Citation: 19 Ohio St.2d 70,48 O.O.2d 85,249 N.E.2d 808
• Parties: , 48 O.O.2d 85 In re AGLER.
• Court: Ohio Supreme Court

Page 70

19 Ohio St.2d 70

249 N.E.2d 808, 48 O.O.2d 85

In re AGLER.

No. 68-620.

Supreme Court of Ohio.

July 9, 1969.

Syllabus by the Court

1. In order to sustain commitment of a juvenile offender to a state institution in a delinquency proceeding, where such commitment will deprive the child of his liberty, the alleged delinquent must have been afforded representation by counsel, appointed at state expense in case of indigency. (In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527. Section 2151.351, Revised Code. Paragraph two of the syllabus of Cope v. Campbell, 175 Ohio St. 475, 195 N.E.2d 475, overruled.)

2. Delinquency proceedings in Juvenile Court do not require indictment or trial by jury under the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States or under Sections 5 and 10 of Article I of the Constitution of Ohio. (Cope v. Campbell, 175 Ohio St. 475, 196 N.E.2d 457, except the second paragraph of the syllabus thereof, and In re Darnell, 173 Ohio St. 335, 182 N.E.2d 321, approved and followed.)

3. Any adjudication of delinquency must he supported by clear and convincing evidence.

On June 16, 1967, Donald Agler, age 16, was charged in the Juvenile Court of Defiance County with being a delinquent child. It was alleged that he caused malicious damage to three farm tractors to the extent of $575.

Counsel for Donald filed a written, pretrial motion for a trial by jury, and at the hearing on the charge, orally moved that the charge be dismissed for the reason that Donald had not been indicted by a grand jury. These motions were overruled. At the conclusion of the hearing, the Juvenile Judge found Donald to be a delinquent child and subsequently committed him to the Ohio Youth Commission. It is agreed by the prosecuting attorney that the standard of proof applied in this case was that of a preponderance of the evidence.

Upon appeal, a divided Court of Appeals affirmed the disposition of Donald's case by the Juvenile Court (15 Ohio App.2d 240, 240 N.E.2d 874), holding that Donald had no right to be charged by indictment, to trial by jury, or to be held to account only by proof beyond a reasonable doubt. In arriving at these conclusions, the Court of Appeals relied upon Cope v. Campbell (1964), 175 Ohio St. 475, 196 N.E.2d 457, and In re Darnell (1962), 173 Ohio St. 335, 182 N.E.2d 321.

The cause is before this court to resolve the substantial constitutional questions raised as a result of In re Gault (1967), 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527.

Shaw, Clemens, Williams & Hines and Douglas W. Brown, Definance, for appellant.

John W. Weaner, Pros. Atty., and John E. Zimmerman, Defiance, for appellee.

HERBERT, Judge.

The Juvenile Court stands as a monument to the enlightened conviction that wayward boys many become good men and that society should make every effort to avoid their being attainted as criminal before growing to the full measure of adult responsibility. Its Existence, together with the substantive provisions of the Juvenile Code, reflects the considered opinion of society that childish pranks and other youthful indiscretions, as well as graver offenses, should seldom warrant adult sanctions and that the decided emphasis should be upon individual, corrective treatment.

As early as 1857, the General Assembly mde provision for a special disposition of infants accused of crime. In legislation establishing houses of refuge, it was added that 'the grand jurors may, in their discretion, instead of finding an indictment against the accused (infant), return to the court that it appears to them that the accused is a suitable person to be committed to the guardianship of the directors of the house of refuge.' (54 Ohio Laws, pp. 163, 166, Section 8.) This provision remained, in substance at the foundation of Ohio's juvenile law for over 80 years (see State v. Worden (1955), 162 Ohio St. 593, 124 N.E.2d 817) until a major revision of the Juvenile Code in 1937, which conferred exclusive jurisdiction over minors upon the Juvenile Court. (17 Ohio Laws, pp. 520, 524, 529.) It was attacked as a denial of the constitutional right to trial by jury in 1869, in the case of a 14-year old accused of burning a barn and committed upon the finding of the grand jury, and upheld. Prescott v. State, 19 Ohio St. 184. Therein, the court described the nature of a juvenile proceeding:

'* * * It is neither a criminal prosecution, nor a proceeding according to the course of the common law, in which the right to a trial by jury is guaranteed.

'The proceeding is purely statutory; and the commitment, in cases like the present, is not designed as a punishment for crime, but to place minors of the description, and for the causes specified in the statute, under the guardianship of the public authorities named, for proper care and discipline, until they are reformed, or arrive at the age of majority. The institution to which they are committed is a school, not a prison; nor is the character of their detention affected by the fact that it is also a place where juvenile convicts may be sent, who would otherwise be condemned to confinement in the common jail or the penitentiary.' (Id., at 187-188.) See also Roth v. House of Refuge (1869), 31 Md. 329.

The observations of the court in Prescott have been reflected in the tenor of juvenile proceedings in Ohio for over 100 years. See Cope v. Campbell (1964), 175 Ohio St. 475, 196 N.E.2d 457; In re Darnell (1962), 173 Ohio St. 335, 182 N.E.2d 321. In this period, there have been numerous reforms and refinements in juvenile law. In 1902, the first Ohio Juvenile Court was established in Cuyahoga County (95 Ohio Laws, p. 785), and the immediately succeeding General Assemblies enacted extensive, substantive, juvenile legislation and conferred juvenile jurisdiction on courts throughout the state. (97 Ohio Laws. p. 561; 98 Ohio Laws, p. 314; 99 Ohio Laws. p. 192.) With the 1937 amendments, supra, the Ohio Juvenile Courts functioned under a model act, not unlike Juvenile Codes adopted in other states. See Whitlatch, The Juvenile Court, 18 W.Res.L.Rev. 1239, 1244-45 (1967). Subsequent enactments have added refinement, but the essential elements of the Juvenile Court system of dealing with children embodied in this act remain unchanged.

Judge Whitlatch, an Ohio juvenile jurist, describes the Juvenile Court as 'an uneasy partnership of law and social work.' The Juvenile Court, supra, at 1246. This partnership is formed with a purpose to inquire into youthful misconduct, misdirection, or mistreatment, and provide an appropriate remedy or course of correction in an unceremonious, but institutionalized and thus reliable manner. Accordingly, the original jurisdiction of the court over children, whether involving an issue of support for a neglected or dependent youngster or the disposition of a murder charge, is exclusive. (Section 2151.23, Revised Code.) A child is not a criminal by reason of any Juvenile Court adjudication, and civil disabilities ordinarily following conviction do not attach. Hearings are informal, non-public and separate from those involving adults. Section 2151.35, Revised Code.) Records are non-public. (See Section 2151.18, Revised Code.) Finally, detention of children, even temporary, must be separate from adult facilities. (E. g., Section 2151.34, Revised Code.)

The Ohio Juvenile Code has long provided for service of notice of complaints against children upon parents and guardians, and such service is jurisdictional. Sections 2151.28 and 2151.29, Revised Code. In re Frinzl (1949), 152 Ohio St. 164, 87 N.E.2d 583. Section 2151.35 assures the right to representation by counsel, and in the evidence of indigency, counsel may be appointed to represent the child and his parents under a 1968 amendment enacting Section 2151.351, Revised Code. Jurisdiction to review the judgments of Juvenile Courts is conferred upon the Courts of Appeals by Section 2501.02, Revised Code. Such refinements are the contribution of the law partner to the sociologal enterprise of the Juvenile Court system, intended to secure due process to children and their parents.

The infusion of the foregoing due process features into the hybrid juvenile procedure has not resulted in the creation of a parallel system of criminal courts for Ohio children. Paragraph one of the syllabus of Cope v. Campbell, supra, reads:

'Proceedings in the Juvenile Court are civil in nature and not criminal. Section 2151.35, Revised Code, implies protection of the minor and not punishment.'

Section 2151.35 provides in part: 'The court shall hear and determine all cases of children without a jury.' In Cope, this court held that the provisions of the Constitutions of the United States and of Ohio relating to trial by jury, indictment and appointment of counsel in criminal cases, are inapplicable to juvenile proceedings. See also In re Darnell, supra. Statutory provision for appointment of counsel has since been enacted (Section 2151.351, supra), but the essentially civil nature of juvenile proceedings remains unaltered by the General Assembly.

In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, presented an unfortunate and clear example of the deficient administration of juvenile justice. Therein, a 15-year-old boy was adjudged delinquent and committed to the Arizona State Industrial School until reaching majority, for alleged misconduct which would have been punishable by a fine or two-months imprisonment if committed by an adult. Neither parent nor child was informed by notice of the factual basis of the charge which might have enabled preparation of a defense, nor were they afforded counsel. At the hearing, evidence in support of the charge was adduced solely by patent hearsay and the compulsory testimony of the minor involved. The Supreme Court of the United States held such procedure constitutionally defective. Emphasizing that it was 'here concerned only with a proceeding to...