Bolden, In re

• Decision Date: 17 October 1973
• Citation: 37 Ohio App.2d 7,66 O.O.2d 26,306 N.E.2d 166
• Parties: , 66 O.O.2d 26 In re BOLDEN (3 cases).
• Court: Ohio Court of Appeals

Page 7

37 Ohio App.2d 7

306 N.E.2d 166, 66 O.O.2d 26

In re BOLDEN (3 cases).

Court of Appeals of Ohio, Third District, Allen County.

Oct. 17, 1973.

Syllabus by the Court

1. A finding of delinquency by the juvenile court accompanied only by a commitment to the temporary custody of the Ohio Youth Commission for the purpose of diagnostic study and report as provided by division (B) of R.C. 5139.05, is not a final order subject to appeal and such commitment constitutes merely a procedural incident.

2. The guarantee of the right to be represented by counsel set forth in Juvenile Rule 4(A) does not, as to a non-indigent party, require that trial be continued, indefinitely until counsel can be obtained, but merely requires, if it does not appear that counsel cannot be obtained through the exercise of reasonable diligence and a willingness to enter into reasonable contractual arrangements for counsel's services, that a reasonable opportunity be given to the party before trial to employ such counsel.

3. Error cannot be predicated on the juvenile court's holding a dispositional hearing immediately following an adjudicatory hearing and its failure to continue the dispositional hearing for a reasonable time to enable the party to obtain or consult counsel, as prescribed by Juvenile Rule 34(A), unless it affirmatively appears in the record that the affected non-indigent party has requested such continuance.

4. A final order of disposition of a child found to be delinquent, as prescribed by R.C. 2151.355, may not include, as punishment or otherwise, confinement (or detention) in a juvenile detention home.

5. Although the statutes relating to juvenile delinquency contemplate that more than one act of delinquency occurring in the same time reference may be the predicate for more than one complaint and, upon trial, for more than one finding of delinquency, the plural findings that a child is a delinquent child constitute a finding of a single legal status existing at that point of time and permit one disposition common to all the complaints and findings of delinquency, or permit a disposition for each finding based on a single complaint which must be consistent with and not mutually exclusive of the disposition for each other finding made pursuant to some other complaint.

William J. Davis, Cleveland, for appellant James Bolden, Jr.

Lawrence S. Huffman, Pros. Atty., and David R. Kinworthy, Lima, for appellee state of Ohio.

GUERNSEY, Presiding Judge.

Case number 1-73-52 in this Court originated as case number 14808 in the Juvenile Division, Common Pleas Court of Allen County. In that case James Bolden, Jr., was charged with being a delinquent child by reason of committing an act of assault and battery upon one Treece (a schoolteacher) on February 21, 1973.

Case number 1-73-53 in this Court originated as case number 14809 in the same trial court, in which Bolden was charged with being a delinquent child by reason of committing an act of assault and battery upon one Sherri White (a fellow student) on February 21, 1973.

Case number 1-73-54 in this Court originated as case number 14810 in the same trial court, in which Bolden was charged with being a delinquent child by reason of committing an act of assault and battery upon one Terri White (a fellow student) on February 21, 1973.

The complaint in each case was filed on February 22, 1973, and hearing was scheduled originally for March 8, 1973, with one Vandemark entering his appearance as attorney of record for Bolden. At Vandemark's request, because of his being engaged in trial in another court, the March 8th hearing was vacated and the cases reassigned for hearing on March 19, 1973. On March 16, 1973, Vandemark withdrew as attorney for Bolden and on that date Bolden's mother by letter sought a continuance of the hearing so that she could obtain counsel. The cases were thereupon reassigned for hearing on April 5, 1973, and, for some reason not apparent in the record, further reassigned for hearing on April 18, 1973.

On April 18, 1973, the cases were heard together by the Juvenile Court. At that time Mrs. Bolden indicated that she had been having difficulty in obtaining counsel 'due to the publicity on the case' which 'made it extremely hard to obtain an attorney locally.' She did not specifically object to the court proceeding and the court did proceed with the cases. On that date the court filed its journal entry in case number 14808, finding Bolden to be a delinquent child and ordering that he 'be committed to the temporary care and custody of The Ohio Youth Commission, for study only' and that a warrant issue to the Sheriff to convey him to the Juvenile Diagnostic Center in Columbus. On the same date and apparently at the same hour, the Juvenile Court filed its journal entry in case number 14809 finding Bolden to be a delinquent child and ordering:

'Fined $50.00 and court costs and sentenced to 30 days in the Allen County Juvenile Detention, and the fine and the 30 days are suspended on the following conditions: Placed on probation with the Probation Department of this court; released into the physical care and custody of his parents, * * * (upon certain stated conditions).'

Again, on the same day and apparently at the same hour, the Juvenile Court filed its journal entry in case number 14810 finding Bolden to be a delinquent child and ordering:

Fined $50.00 and court costs and sentenced to 30 days in the Allen County Juvenile Detention, and the fine and 30 days are suspended on the following conditions: Placed on probation with the Probation Department of this court. He is to abide by the same terms as set forth in Case No. 14,809.'

On April 20, 1973, William J. Davis wrote a letter to the trial court requesting that his appearance as attorney be entered in each case and on May 4, 1973, filed notice of appeal to this court from the judgment in each case entered on April 18, 1973, on behalf of the child and his parents.

On appellants' motion the three appeals were consolidated for hearing only in this court and were submitted on the briefs of the parties and the oral argument of the appellee, neither the appellants nor their counsel appearing for the assigned hearing.

The appellants' assign error of the trial court (1) in denying Bolden his right to be represented by counsel, (2) in abusing its discretion by failing to grant a continuance pursuant to Juvenile Rules 23 and 34(A), and (3) in that the verdict was against the weight of the evidence as the State failed to prove its case beyond a reasonable doubt.

Although the State has never moved to dismiss the appeal in case number 1-73-52, it states in its brief on the merits that the order or judgment appealed from entered in Juvenile Court Case number 14808 is not a final appealable order and the appeal therefrom should be dismissed on the authority of In re Whittington, 17 Ohio App.2d 164, 173, 245 N.E.2d 364, 369, wherein it was held:

'* * * It is our finding that such order of referral to the Juvenile Diagnostic Center (after a finding of delinquency) is not a final appealable order; rather such referral is but a procedural incident such as is analogous to the referral of an adult under the provisions of Section 2947.25, Revised Code, to an approved state facility for observation. See State v. Thomas, 175 Ohio St. 563, 197 N.E.2d 197, which holds such a referral of an adult not to be a final appealable order.'

This holding by the Fifth District Court of Appeals represents a reversal of its previous holding in In re Whittington, 13 Ohio App.2d 11, 233 N.E.2d 333. From the earlier holding motion to certify was filed to the Supreme Court of Ohio which was overruled and the appeal dismissed on March 15, 1967, in case number 40712. Similarly, a motion to certify was filed after the Court of Appeals rendered its decision reported in 17 Ohio App.2d, 245 N.E.2d, and the Supreme Court again overruled the motion to certify and dismissed the appeal on March 4, 1970, in case number 69-287. However, the decision reported in 17 Ohio App.2d, 245 N.E.2d, constitutes a decision in four different appeals and it is not clear from the reports that that part of the decision pertaining to the appealability of the order in case number 421 in the Fifth District Court of Appeals was subject either to the ruling by the Supreme Court on the motion to certify or subject to its dismissal entered in Supreme Court case number 69-287. We thus have no authoritative decision of the Supreme Court relating specifically to the appealability of such an order.

We feel it then appropriate to further analyze the situation. Prior to State v. Thomas, 175 Ohio St. 563, 197 N.E.2d 197, State v. Theisen, 91 Ohio App. 489, 108 N.E.2d 854, was the primary authority on the appealability of an order made under the provisions of G.C. 13451-20 (now R.C. 2947.25) wherein persons convicted of certain offenses were committed to the Lima State Hospital for observation for a period of not more than sixty days. It was held in that case, page 493, 108 N.E.2d page 857:

'The order of reference made after conviction and before sentence is incident to final imposition of sentence and is an indirect affirmance and recognition of the conviction. It is a part and parcel of the final sentence and in effect is a preliminary sentence. The order of commitment deprives the defendant of his liberty in the same manner, if not to the extent, as in the case of final sentence and judgment. The order is a judgment having the attributes of a sentence. * * *'

In State v. Thomas, supra, the Supreme Court of Ohio, had had certified to it a judgment of the Fifth District Court of Appeals finding such an order not to be a final appealable order to be in conflict with the judgment in State v. Theisen. The Supreme Court rejected Theisen and held:

'After a defendant's conviction of the crime of sodomy under Section 2905.44, Revised Code, and before sentence, his...