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

“The only issue we have is whether he had notice, correct?”

Justice DeWine to the Assistant Public Defender

“I’m asking, between January and April, was that his fault that he wasn’t in a program?”

Chief Justice O’Connor, to the Assistant County Prosecutor

On December 10, 2019, the Supreme Court of Ohio heard 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 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. The Juvenile Court judge 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, the judge 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, the judge 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, the judge  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, 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.

The dissent 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. Also, the dissenting judge would find that 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.

Read the oral argument preview of the case here.

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.)

At Oral Argument

Arguing Counsel

Frank Cavallo, Assistant Cuyahoga County Public Defender, for Appellant A.W.

Anthony T. Miranda, Assistant Cuyahoga County Prosecutor, for Appellee State of Ohio

A.W.’s Argument

At the very least, a juvenile who is facing the possibility of an adult prison sentence is entitled to know exactly what conduct would cause that sentence to be invoked. The juvenile court judge told A.W. that the only thing that would cause his adult sentence to be invoked was getting into fights, acting out, or causing disruptions in the institution. That is consistent with the language in R.C.  2152.14 but it is not ultimately the standard the judge used to gauge his compliance in this case. A.W. did not do any of those things, and yet, the adult portion of his sentence was invoked.

A.W. should have been put on notice when the SYO case began, of the standard by which the court was going to measure his conduct. After the disposition, the judge embarked upon a series of review hearings at which time she began to change the standard to which she was holding A.W. She kept moving the goalposts of what was expected of him until they were impossible for him to reach. First it was further bad acts or misconduct. Then it was participation in treatment. Then, when that treatment was not forthcoming because ODYS dropped the ball and didn’t put the treatment in place in a timely fashion, it was at least do as much as you can, and I won’t invoke the SYO. And finally, I’m invoking the SYO because you didn’t complete the treatment. If A.W. doesn’t know exactly what standard he is going to be held to, then there is no way for him to conform his conduct to the standards that the judge would like.

It is true that A.W. was initially reluctant to participate in treatment, which is not uncommon.  But after a second review hearing, he did decide he was willing to participate fully in the program and he did so, going forward.  The injustice here is that at the end of this program, which everyone knew was only going to be 7 months, the judge told him she was invoking his adult sentence because he hadn’t completed what eventually amounted to a 9-month treatment program. Even if he had started immediately upon his arrival at DYS, the best he could have done was almost finish. You can’t put an impossible condition on someone, recognizing they are only going to be there 7 months, and then say you didn’t complete enough.  A violation should only be found if the juvenile is engaged in some act or committed some conduct that puts his rehabilitation in jeopardy. In this situation, the judge essentially just skipped over that. She decided that despite the absence of any bad acts, A.W. had not been rehabilitated. She simply said the failure to complete treatment equals that act and that’s enough to invoke the SYO statute.

State’s Argument

First of all, this case should be dismissed as improvidently accepted. The only proposition of law accepted by the court is uncontested and does not present a substantial constitutional question, although A.W. continues to raise issues not accepted for review by the court. Resolving this case on the proposition accepted would result in nothing more than error correction, which would not even particularly benefit A.W., who is now out of prison, although still on post release control.

The juvenile court invoked the SYO specification in this case because A.W. did not do anything to substantially reduce the risk of recidivism he posed to the community. The court’s journal entry from January used the phrases “participate and engage.” The judge repeatedly and consistently stated that she expected participation. A.W. was given the opportunity to participate and to reduce his risk of recidivism substantially, but he didn’t. The order to participate in treatment was proper even as an ODYS order internally ordering him to participate in treatment.

Regardless of whether or not A.W. was ordered to participate in treatment, the question before the court is whether he had notice of that expectation. At the dispositional hearing it’s clear that he had notice of this requirement. The judge specifically said she was going to bring him back in 90 days and was going to ask him if he was participating in group therapies. She specifically mentioned sex offender treatment being put in place and said she wanted him at that 90-day mark to have a better understanding of what’s appropriate and what’s not. The only question before the court is whether or not A.W. was on notice—he knew of this expectation at the time of sentencing. The plea hearing is irrelevant to notice.

A.W.’s initial refusal to participate in treatment meant there was nothing available until April, so the failure to complete that treatment is at least partly his fault. But that initial refusal was not the only reason his adult sentence was invoked. The testimony at the invocation hearings was that even when he was participating, he was just going through the motions and he was only superficially engaged. He was not buying into it or benefiting from the therapy. To be clear—the trial court never required completion of the program, just meaningful participation.  A.W.’s failure to participate in this treatment did not meaningfully reduce his risk of recidivism. So, the trial court made the determination that he still posed a risk of harm to the community. The appeals court affirmed that as a legitimate basis to invoke the SYO.

What Was On Their Minds

Lack of a Judicial  Order to Participate in Treatment

After the first hearing, even though the judge told A.W. from the bench that she wanted him to participate, there wasn’t an order that went on, noted Justice French. So, what would have been required of him at that point? What could he have done at that point? It is not ordered, it is not part of the entry, DYS isn’t requiring it, so why are we putting the burden on him to somehow initiate treatment?

When did the judge require treatment, asked Chief Justice O’Connor?

The problem I have is at least from December to January it doesn’t seem clear that there was an order to participate in treatment, noted Justice Stewart. It is clear that when he was ordered to do something, he told the judge he was doing it. From that December-January period, there seems to be some clear doubt that there was an order by anybody. If he was invited to do something, then that’s not an order. How can he be held responsible for something he wasn’t ordered to do until January?

Notice

Isn’t the only issue we have whether A.W. had notice at the dispositional hearing, asked Justice DeWine, adding that was the only proposition of law accepted for review.  He quoted the judge telling A.W., “I’m going to bring you back in 90 days and see how you’re doing. That means are you getting your education, doing what you are supposed to, are you participating in group therapy, are you part of a gang.  All those things will matter when you come back and we have a hearing. I’m going to bring you in so that I can look at you face to face.  If you’re in fact not doing what you are supposed to, I’m going to cut the sentence at ODYS and send you to prison.” Doesn’t that sound like notice that he had to participate in the group therapy, DeWine asked? We didn’t accept the proposition of whether he could be violated for not participating in group therapy, did we? The proposition that was accepted was whether A.W. had notice that he could be violated for that. Wasn’t what the judge told A.W. at the disposition hearing about participation pretty clear?

How could A.W. have notice that even if he went through all this treatment and did everything he was supposed to do until he turned 21 and left the institution, why didn’t he have the expectation that he was compliant, asked Chief Justice O’Connor? She added that you can’t hold something against someone if you don’t do it when it happens.

A.W.’s Treatment Options and His Participation

When A.W. entered the institution, what would have been available to him, asked Justice French? Could he himself have said, I want to enter sex offender treatment, or would DYS have taken it upon itself to offer that kind of treatment? Is there any indication that when he entered the institution, that he refused any type of treatment?

Isn’t it up to the professionals in the institution to figure out the treatment options available to a child, asked Chief Justice O’Connor? So, the judge really can’t say I expect you to go to the XYZ treatment program at DYS and here’s how many sessions you must have? Did A.W. do anything to drag his heels or not participate once treatment and what he was supposed to do was identified? Wasn’t timing one of the major problems? He was close to 21. Was it that DYS failed to start the programming in sufficient time for A.W. to complete the program by age 21 or did he turn 21 and there was still more to do? Didn’t the judge tell him to complete as much as he could?

Didn’t the proposition of law we accepted deal with being able to complete the program, asked Justice Stewart? The proposition specifically says the adult portion of the SYO sentence cannot be invoked for failure to complete programming. So, there was no way to complete the programming had he complied from day one.  If we find he was expected to participate in treatment from January on, as opposed to December, what could he be held responsible for not doing? In reading the journal entry, one of the things the court says is “youth places the community at risk since he did not participate in appropriate sex offender treatment while placed at ODYS.” But he did.

Who’s to Blame Here

Doesn’t the record reflect that the ire of the trial court was not directed at A.W. but at ODYS asked Justice Donnelly? He commented that notice doesn’t mean a lot if you are not provided with the opportunity to comply with that notice.

If the judge had initially told A.W.  he had to successfully complete a sexual offender treatment program in DYS and at their direction, would we still be here, asked Chief Justice O’Connor? How long was it before DYS put him into a treatment program? Between January and April, was it his fault that he wasn’t in a program? He wasn’t refusing to participate in January. He went back to the judge and she laid down the expectations and he’s ready to get into a program.  Where was the bad conduct?

Because of A.W.’s initial refusal to participate, he only had seven months to participate in treatment, noted Justice Fischer. Since he didn’t participate from the beginning he couldn’t have done as much as he could possibly do. He didn’t even fully participate for the seven months, he added.

The Invocation of the SYO Specification

The invocation of the SYO was for failure to complete, noted Justice Stewart. Wasn’t that impossible from the get-go?

Does the judge’s reason for invoking the SYO specification comply with the statute, asked Justice Donnelly?  Doesn’t the statute require an act in violation of the rules and the conditions of supervision that could be charged as any felony or first degree misdemeanor to invoke the SYO?

Is this just a case where we think the judge just factually made the wrong determination, asked Justice DeWine?

How it Looks from the Bleachers

To Professor Emerita Bettman

I agree with student contributor Maggie Pollitt that this will be a win for A.W. I think it will probably be by a 4-3 split. The Chief and Justices Stewart and French seemed particularly concerned that there was never an order entered for A.W. to participate in and complete treatment, and that he could hardly be blamed for the fact that there was no treatment available from January until April. Justice Donnelly seemed concerned that there was never an act of conduct by A.W. that met the statutory requirement for invoking the S.Y.O. specification. (This was actually A.W’s second proposition of law, which was not accepted for review.)  A.W.’s lawyer did an effective job of showing how the juvenile court judge kept changing her expectations for what A.W. was supposed to do.

Justice DeWine, on the other hand, was having none of it, quoting verbatim from what the Judge said at the dispositional hearing to show A.W. had notice, and emphasizing that was the only proposition of law the court accepted.  Justice Kennedy will probably join him, and Justice Fischer felt that it was A.W.’s own conduct that made it impossible to complete the required treatment.

Very active bench in this one!

To Student Contributor Maggie Pollitt

I think the Court will find for A.W. in this case. At the very least, the majority of the Court was obviously unhappy with the fact that, at A.W.’s dispositional hearing, sex offender treatment was not ordered. The Court, apart from Justice DeWine, seemed to agree that A.W.’s adult sentence should not have been invoked based on his failure to initially comply with a treatment program that was not formally ordered by the trial judge. However, Justice DeWine seemed to believe that the judge’s statements at the dispositional hearing constituted sufficient notice that sex offender treatment was expected of A.W, even though it wasn’t officially ordered.

The Court seemed displeased that A.W. could be held accountable for his lack of treatment during the period of January to April of his youth sentence, when he was willing to undergo treatment, but there were no group sex offender classes available. The State responded to this argument in part by stating that even when treatment was available to A.W. in April, A.W. was only superficially engaged in this treatment and did not reduce his risk of recidivism. The Court seemed to disagree with the State that a lack of enthusiasm for treatment could be considered a bad act sufficient to trigger an SYO sentence. For these reasons, I think A.W. will win.