Update: On April 16, 2020, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

Read the analysis of the oral argument in this case here.

On December 10, 2019, the Supreme Court of Ohio will hear oral argument in In re A.W., A Minor Child, 2018-1182. At issue in this case is whether a juvenile’s due process rights are violated when a stayed adult prison sentence is invoked due to the juvenile’s failure to complete sex offender treatment that was not formally ordered by the trial court at the time of the juvenile’s disposition.

Case Background

In 2013, A.W. met up with A.A., the victim, at a community festival. The two had begun texting a few days earlier on social media. A.W. led A.A. into a wooded area nearby where he vaginally and anally raped her. A.W. was 17 years old and A.A. was 13 years old. In 2014, A.W. was charged in juvenile court with two counts of rape, two counts of gross sexual imposition, and one count of kidnapping. Because A.W. failed to appear, a warrant was issued for his arrest and he was finally arraigned in May of 2015.

In 2016, as part of an agreement, A.W. admitted to one count of rape with a serious youthful offender specification, and the state dismissed the remaining charges and withdrew its bindover request.  A.W. was sentenced to seven months (until his 21^st birthday) in the Ohio Department of Youth Services (“ODYS”) with a Serious Youthful Offender (“SYO”) specification of three years. Cuyahoga County Juvenile Court Judge Denise Rini told A.W. that if he complied with all terms of the juvenile portion of his sentence, the SYO specification would not be imposed. At the dispositional hearing, Judge Rini told A.W. that the court wanted sex offender treatment in place for him. However, the journal  entry providing the disposition did not order sex offender treatment.

At the first of several review hearings in January 2017, A.W.’s probation officer informed the court that A.W. was not participating in sex offender treatment. At this hearing, Judge Rini told A.W. that if he did not participate in sex offender treatment, the adult portion of his sentence would be imposed. A.W. agreed to participate in sex offender treatment but there were no available group classes until April 2017. Because of the limited amount of time remaining before A.W.’s twenty-first birthday, and therefore the end of his juvenile sentence, ODYS started A.W. in sex offender group classes and individual therapy. Although he started the class, A.W. could not finish the class before the end of his juvenile sentence.

In May 2017, the State filed a motion to invoke the adult portion of A.W.’s SYO sentence because A.W. was only superficially engaged in his treatment and had only completed seven of the thirty-five classes of the sex offender treatment. At the invocation hearing, Judge Rini found that A.W. had failed to participate in his treatment in a meaningful way, and invoked the adult portion of his sentence, but reduced the adult sentence to two years in adult prison followed by five years of mandatory postrelease control. A.W. then appealed the imposition of the adult sentence.

The Appeal

In a split decision authored by Judge Eileen T. Gallagher, joined by Judge Frank Celebrezze, Jr., the Eight District Court of Appeals affirmed the trial court’s judgment. The Eighth District found that the trial court did not have to order sex offender treatment officially for ODYS to require the treatment. The appeals court majority also found A.W. was put on notice that the failure to comply with sex offender treatment could trigger the adult portion of his sentence because the trial court specifically told A.W. that treatment was necessary. Finally, A.W. did not have to complete the entire sex offender treatment to avoid the adult sentence. Rather, A.W. needed to be rehabilitated. Because the juvenile court judge did not believe that this rehabilitation had occurred, the invocation of the adult portion of the SYO sentence was proper.

Judge Kathleen Ann Keough dissented. She would find that A.W.’s due process rights were violated because the juvenile court failed to order sex offender treatment for A.W., thus making A.W.’s compliance with treatment optional, and because the court did not notify A.W. of the consequences of failing to complete the sex offender treatment. Lastly, Judge Keough found it was factually impossible for A.W. to complete sex offender treatment at the time treatment became available to him because of the timing of his 21^st birthday.

Votes to Accept the Case

Yes: Chief Justice O’Connor,* Justices French,** Fischer,*** and former Justice DeGenaro** (all would accept on Proposition I)

*Would accept the appeal on all propositions of law.

**Would also accept the appeal on proposition of law No. II.

***Would also accept the appeal on proposition of law No. IV.

No: Justices Kennedy, DeWine, and former Justice O’Donnell

Key Precedent

RC 2152.14(A)(2) (stating that the adult portion of an SYO dispositional sentence may be invoked where “[t]he person committed an act that is a violation of the rules of the institution and that could be charged as any felony or as a first degree misdemeanor offense of violence if committed by an adult” or “[t]he person engaged in conduct that creates a substantial risk to the safety or security of the institution, the community, or the victim.”)

Lambert v. California, 355 U.S. 225 (1957) (“[e]ngrained in [the] concept of due process is the requirement of notice.”)

Rose v. Locke, 423 U.S. 48 (1975) (the notice requirement of due process prevents an individual from being held “criminally responsible for conduct which he could not reasonably understand to be proscribed.”)

State v. D.H., 2009-Ohio-9 (2009) (a juvenile cannot be sent to an adult facility for acts that led to the SYO status and the adult portion of a sentence can be enforced only “if the juvenile commits acts that indicate that the juvenile disposition has been unsuccessful in rehabilitating him.”)

In re C.P., 131 Ohio St. 3d 513 (2012) (a juvenile with an SYO disposition must engage in additional misconduct before the invocation of an adult sentence.)

In re D.J., 2018-Ohio-569 (2018) (9th Dist.) (a failure to participate actively in sex offender treatment may constitute misconduct.)

A.W.’s Argument

A.W.’s fundamental rights to due process were violated by the trial court. An SYO sentence is a “blended sentence,” which contains a juvenile disposition and a stayed adult sentence. The adult portion of the blended sentence can only be imposed for further misconduct under R.C. 2152.14(A) or (B). In this case, the invocation of the adult sentence violated A.W.’s constitutional due process rights for three reasons: (1) A.W. did not receive proper notice; (2) A.W.’s sex offender treatment was impossible to complete; and (3) A.W.’s adult sentence was arbitrarily imposed. Even if this Court declines to decide this case on the constitutional violations present, A.W.’s failure to complete sex offender treatment does not qualify as “further misconduct” under R.C. 2152.14.

First, A.W. did not receive proper notice that his failure to complete sex offender treatment could trigger his adult sentence. The trial court stated that A.W.’s adult sentence would not be invoked unless he “act[ed] out so badly at ODYS” that ODYS could not handle him. A.W. thought that the type of behavior that could trigger his adult sentence included new crimes or behavior that created a substantial risk to the community or institution, as R.C. 2152.14 prescribes. Further, once A.W. was put on notice in January 2017 that his failure to participate in sex offender treatment could invoke the adult portion of his sentence, he consented to the treatment.

Second, A.W.’s sex offender treatment was impossible to complete. A.W.’s short ODYS disposition did not allow sufficient time for the sex offender treatment to be completed. A.W. complied with sex offender treatment as soon as he was on notice that his adult sentence could be invoked for a failure to comply. However, even if he began treatment on the first day of his ODYS commitment, he still would not have been able to complete the sex offender treatment, given how long the sex offender treatment takes and how short his disposition at ODYS was. Therefore, the completion of the treatment was factually impossible and should not be a requirement for A.W. to avoid an adult prison sentence.

Third, the imposition of A.W.’s adult sentence was arbitrarily imposed. A.W. fully complied with sex offender treatment as soon as he was on notice that the failure to do so could trigger his adult sentence. The trial court told A.W. that his participation would guarantee that his adult sentence would not be invoked and that completing as much of the treatment program as possible would be sufficient to avoid the adult sentence. A.W. went to treatment, fully participated in activities, asked questions, and was open to sharing. The court’s choice to continue A.W.’s punishment despite A.W.’s full compliance with the court’s orders constitutes arbitrary imposition of the adult sentence.

Finally, this Court should reverse the lower court’s decision even if the Court declines to decide the case on constitutional grounds. The statutory interpretation of R.C. 2152.14 requires a further bad act while in ODYS custody for the invocation of the adult sentence. R.C. 2152.14 limits the acts that can invoke the adult portion of the sentence to acts that “could be charged as any felony or first degree misdemeanor offense of violence if committed by an adult,” or acts that cause “a substantial risk to the safety or security of the community or of the victim.” The Supreme Court of Ohio in State v. D.H. stated that further wrongdoing must extend beyond the original charge. According to the statutory language of R.C. 2152.14, A.W.’s failure to attend sex offender treatment is not misconduct that could trigger the imposition of the adult sentence. Furthermore, A.W.’s failure to attend treatment does not extend beyond the original charge but is in direct connection with his SYO status. Allowing the lower court to impose an adult sentence where further bad acts do not statutorily exist allows for a subjective and capricious standard. Administrators of ODYS would have “unchecked discretion” to invoke an adult sentence. It would also make it virtually impossible for a trial court to advise a juvenile properly of the potential consequences of an SYO plea.

State’s Argument

The central question in this case is whether A.W. was provided with sufficient notice that he must participate in the sex offender treatment. First, A.W. was given sufficient notice at both the plea hearing and the dispositional hearing. Second, despite what A.W. states, A.W.’s participation in the program was not impossible because the trial court did not require A.W. to complete the program, but only required A.W. to make progress. Thirdly, the process by which A.W.’s adult sentence was invoked was not constitutionally arbitrary. Finally, even under the statute, A.W.’s conduct posed a substantial risk to the safety of the community and therefore, his adult sentence was properly imposed.

A.W. was adequately notified of the requirement to participate in sex offender treatment. He was given notice at the plea hearing, though such notice at the plea hearing is not required, and A.W. did not argue below that it was. The trial court’s sentencing conditions are only required at the dispositional hearing. At the plea hearing, however, the trial court gave sufficient notice when the judge said, “if in fact you don’t do what you’re supposed to do in ODYS . . . they can impose the sentence.”

A.W. was also given explicit notice of the requirement to participate in sex offender treatment at the dispositional hearing. The trial court said that it wanted sex offender treatment put in place so that A.W. would understand what is appropriate. However, A.W. refused to comply with this requirement when it was not officially ordered by the court, though notice was provided.

A.W.’s compliance with the sex offender treatment was not impossible. The trial court did not require completion of the program. Rather, the trial court stated that it wanted A.W. “to have a better understanding of what’s appropriate and what’s not.” A.W. first refused to participate at all, then only engaged in the program superficially and “went through the motions.” The completion of A.W.’s treatment was not required. The only requirement of this program was progress, which A.W. failed to demonstrate.

Despite what A.W. claims, the invocation of A.W.’s adult sentence was not constitutionally arbitrary. A.W. worsened his situation by refusing to begin treatment and failing to engage genuinely with the treatment. At the end of his treatment, A.W. still posed a high risk of recidivism to the community. This risk justified the invocation of the adult sentence. A.W.’s risk of recidivism also proves that the trial court had the right, based on R.C. 2152.14, to invoke the adult sentence because A.W. posed a substantial risk to the safety of the community. A.W.’s failure to participate meaningfully in treatment inhibited his ability to safely engage in society.

A.W.’s Proposition of Law Accepted for Review

Proposition 1

The adult portion of an SYO sentence cannot be invoked for failure to complete ODYS programming unless the offender was given notice that the failure to comply could trigger invocation of the adult sentence and it was possible for the offender to have completed it.

A.W.’s Propositions of Law Not Accepted for Review

Proposition 2

A juvenile court may not invoke the adult portion of an SYO sentence without evidence of further affirmative misconduct that creates a substantial risk to the safety or security of the institution, the community, or the victim.

Proposition 3

When a juvenile court relies on evidence admitted in violation of the Fifth Amendment in invoking the adult portion of an SYO sentence, the invocation must be reversed unless admission of the improperly admitted evidence is harmless beyond a reasonable doubt.

Proposition 4

The only evidence that may be considered to invoke the adult portion of an SYO sentence is that which is admitted at the invocation hearing.

Amici in Support of A.W.

The Juvenile Law Center, Office of the Ohio Public Defender, and National Juvenile Law Defender Center filed an amicus brief in support of A.W. The Juvenile Law Center advocates for rights, dignity, equity and opportunity for youth in the child welfare and justice systems. The Office of the Ohio Public Defender (“OPD”) is a state agency designed to represent criminal defendants, adults, and juveniles, and to coordinate defense efforts throughout Ohio. The National Juvenile Defender Center (“NJDC”) was created to ensure excellence in juvenile defense and promote justice for all children.

The ultimate goal of due process requirements for juveniles is fundamental fairness. Juveniles are entitled to the same due process rights as adults, which includes adequate notice. Notice in the juvenile system must include sufficient particularity to provide the child with clear guidance. In this case, due process required the trial court to inform A.W., in writing, at the plea hearing about the specific requirements he must meet. In this case that meant A.W. had to be informed, in writing, of the express condition that he comply with sex offender treatment to avoid the adult portion of the sentence being invoked.

A.W. has a substantial liberty interest in avoiding the adult prison system. Children who are subject to the adult prison system face a devastating loss of liberty. Young people who are incarcerated are particularly vulnerable to assault and sex crimes in prison. A.W. will experience more backlash in his ability to lead a healthy and productive life once he leaves prison because of the collateral consequences of his record.

The trial court in this case departed from the serious wrongdoing requirement of the statute. The statute requires additional action for the adult portion of the sentence to be imposed. Here, A.W. was not even aware that his failure to attend sex offender therapy could trigger the adult sentence until only five months of his juvenile sentence remained. Even then, the classes weren’t made available to him for another 72 days. The SYO sentence should have only been invoked for willful conduct that violated the statute. This was not willful but was an impossible condition for A.W. to complete. Imposing an adult sentence for a failure to complete an impossible treatment regimen violates fundamental fairness.

Even if A.W. was on notice of the requirement to complete sex offender treatment, the juvenile court did not have the authority to order sex offender treatment and make it a condition of release. Once A.W. was committed to ODYS, that department had the sole authority to create a treatment plan for him.

Juveniles are to be treated differently than adults because juveniles are not developmentally mature, nor are their characters yet fully formed. Juveniles do not have the same sense of responsibility as adults. Juveniles are more vulnerable to negative influences and peer pressure than adults and have limited control over their environments. This is especially important when considering juvenile sex offenders. A.W.’s adult sentence is dependent upon a wrongdoing he committed when he was only 17 years old. Research shows that the rates of recidivism for juvenile sex offenders is very low. It is unlikely that A.W. is a danger to society, and therefore, should not have been subject to a harsh adult sentence based on this theory.

The amici would adopt A.W.’s proposition of law.

Student Contributor: Maggie Pollitt