2017 All-Ohio Legal Forum. In Re Gault: Due Process, Procedural Safeguards, Children, and Avoiding a Repeat of History

Transcription

1 2017 All-Ohio Legal Forum In Re Gault: Due Process, Procedural Safeguards, Children, and Avoiding a Repeat of History Juvenile Law Committee 1.0 General CLE Hour August 23 August 25, 2017 Cleveland

2 Speaker Biographies Laura Austen, Esq. Office of the Ohio Public Defender Columbus, Ohio Ms. Austen received her BA from Wittenberg University and her JD from Capital University Law School, where she was a Child Welfare and Adoption Law Fellow. She is the Director of Policy and Outreach for the Office of the Ohio Public Defender. Ms. Austen joined OPD in 2009 and has served as a law clerk, staff attorney, and supervising attorney in the Juvenile Department. At OPD, she is a member of the Kids in Adult Prison Working group and the Racial Justice Initiative. Prior to entering the practice of law, Ms. Austen worked in the mental health field as a mental health worker on an acute care psychiatric unit for adults, a youth leader in a residential treatment facility for adolescents, and as a case manager for children at a community behavioral health center. She is coauthor of the article, Advocacy for Young or Expectant Parents in Foster Care, published by the American Bar Association s Child Law Practice Journal, Vol. 28 No. 7. Ms. Austen was certified in November 2014 by the Department of Justice as a Prison Rape Elimination Act (PREA) Auditor for both adult and juvenile facilities. Charlyn E. Bohland, Esq. Office of the Ohio Public Defender Columbus, Ohio Ms. Bohland received her BA from The University of Akron and her JD from Capital University Law School. Her professional memberships include the Ohio State Bar Association (Juvenile Law Committee) and the Juvenile Law Center s National Working Group on Juvenile Records. She is an assistant state public defender in the Juvenile Department. Ms. Bohland represents youth in appeals, post-conviction actions, and release proceedings. She is especially interested in juvenile competency, children in adult court, juvenile life-without-parole sentences, and sealing/expungement proceedings. At the OPD, Ms. Bohland supervises the department s interns and law clerks, and she is a member of the Kids in Adult Prison and Racial Justice working groups. During law school, she was an Adoption Law Fellow, a member of the National Moot Court Team, and Executive Research Editor of the Law Review. Ms. Bohland is the author of No Longer a Child: Juvenile Incarceration in America, published in Capital s Law Review. Brooke Burns, Esq. Office of the Ohio Public Defender Columbus, Ohio Ms. Burns received her BA from The Ohio State University and her JD from The Ohio State University Michael E. Moritz College of Law. Ms. Burns is Chief Counsel of the Juvenile Department at the Office of the Ohio Public Defender. She joined the agency in 2006 as an appellate staff attorney, where a significant portion of her postdisposition advocacy focused on challenging the application of Ohio s Sex Offender Registration and Notification Act (SORNA) to children. Ms. Burns now manages a team of juvenile justice advocates who represent youth throughout Ohio s juvenile and criminal justice systems in trail-level proceedings, in state and federal appeals, in post-conviction actions, and in conditions of confinement. She is a member of a number of statewide juvenile justice initiatives, including JDAI and the Juvenile Justice Subcommittees of the Criminal Sentencing Commission and the Governor s Task Force on Criminal Justice and Mental Illness. Ms. Burns is a certified JTIP Trainer, a member of the National Juvenile Defender Center s Central Region Advisory Board, and an adjunct professor of law at Capital University Law School, where she teaches Juvenile Law.

3 What s Happening in Juvenile Justice: Case Law and Legislative Update Brooke Burns Chief Counsel, Juvenile Department Office of the Ohio Public Defender Columbus, Ohio Laura Austen Deputy Director, Policy and Outreach Office of the Ohio Public Defender Columbus, Ohio Charlyn Bohland Assistant State Public Defender, Juvenile Department Office of the Ohio Public Defender Columbus, Ohio Table of Contents What s Happening in Juvenile Justice: Case Law and Legislative Update PowerPoint Presentation... 1 What s Happening in Juvenile Justice: Case Law and Legislative Update i

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5 What s Happening in Juvenile Justice: Case Law & Legislative Update Brooke Burns Chief Counsel Juvenile Department Laura Austen Deputy Director Policy & Outreach Supreme Court of Ohio Decisions O Confinement Credit O In re D.S., 2016-Ohio-7369 O De Facto LWOP O State v. Moore, 2016-Ohio-8288 O Apprehension Over 21 O State v. Orr, 2017-Ohio-552 O Reasonableness of a public school s search protocol warrantless searches O State v. Polk, 2017-Ohio-2735 O Mandatory Sentencing O State v. Anderson, 2017-Ohio-5656 O Transfer O State v. Aalim, 2016-Ohio-8278; 2017-Ohio-2956 O State v. Lee, 2016-Ohio-8469 O State v. D.B., 2016-Ohio-8334 What's Happening in Juvenile Justice: Case Law and Legislative Update 1

6 In re D.S Ohio 7369 O R.C (B): A juvenile is to receive credit for time he or she was confined in connection with the complaint upon which the order of commitment is based. O Held: Judges must grant confinement credit under R.C (B) if the confinement stems from an original complaint and is sufficiently linked to adjudication. O [I]t would be fundamentally unfair to deny juveniles credit earned while awaiting the final disposition... by interpreting R.C (B) so narrowly that juveniles could lose all the credit they have earned simply because the original complaint was dismissed and a new complaint or indictment filed on the basis of the same incident for which the juvenile initially was charged and detained. State v. Moore 2016 Ohio 8288 O Graham v. Florida held that life without parole for a juvenile, nonhomicide offender is unconstitutional. O A State need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term. Graham, 50 U.S. at 82, 130 S.Ct. 2011, 176 L.Ed.2d 825. O State v. Moore: A term-of-years prison sentence that exceeds a defendant s life expectancy violates the Eighth Amendment to the United States Constitution when it is imposed on a juvenile nonhomicide offender. 2 In Re Gault

7 State v. Orr 2017 Ohio 552 O Defendant apprehended after the age of 21, and charged as an adult for a rape that occurred when he was 13 years old. O State s Proposition of Law: O R.C (C)(3), R.C (I) and R.C (J) do not violate the ex post facto clause of the U.S. Constitution or the retroactivity clause of the Ohio Constitution when applied a person who committed the crime of rape prior to attaining the age of 15. O Dismissed as improvidently accepted. State v. Polk 2017 Ohio 2735 O A school s protocol requiring searches of unattended book bags to determine ownership and whether the contents are dangerous furthers the compelling governmental interest in protecting public-school students from physical harm. O Rationale: O In light of school shootings and terrorism, schools have a compelling government interest in ensuring that bags are not dangerous. O Unattended bags are subject to a highly diminished expectation of privacy. O Because dangerous items may be small, the initial, cursory inspection may not be sufficient to ensure that there were no dangerous items. What's Happening in Juvenile Justice: Case Law and Legislative Update 3

8 State v. Anderson 2017 Ohio 5656 O Mandatory Sentencing for Juveniles in Adult Court O Does not violate 8th Amendment Imposing mandatory minimum prison sentence of three years on juvenile offenders for aggravated robbery and for kidnapping O Mandatory three-year prison sentence imposed on a juvenile offender tried as an adult for a conviction of a firearm specification O O Rationale: O Anderson s aggregate 19 year sentence does not constitute cruel and unusual punishment because there is no national consensus against mandatory sentencing for juveniles; the sentence is proportional to the crimes he committed O Court of Appeals affirmed; sentence affirmed Aalim I, Lee, and D.B. O State v. Aalim I Mandatory transfer of category 2 offense with a firearm. O Held: The mandatory transfer statutes violate due process under Ohio Constitution. O State v. Lee Mandatory transfer of a category 1 offense. O Reversed and remanded to the court of appeals for further proceedings consistent with Aalim. O State v. D.B. Certified Conflict O When a juvenile is convicted of charges that would constitute both mandatory and discretionary transfer offenses, is that court permitted to sentence the juvenile under R.C. Chapter 2929 on all charges in the case, or must the adult court complete a separate analysis under R.C (B) for each charge individually? O Reversed and remanded to the juvenile court for application of State v. Aalim. 4 In Re Gault

9 Reconsideration Where Are We Now? O The State filed Motions for Reconsideration in Aalim, D.B., and Lee. O Several District Courts of Appeal began applying Aalim. O O O State v. Jones (6th), 2017-Ohio-342 State v. Armstead-Williams (11th), 2017-Ohio-2596 State v. D.F. (2nd), 2017-Ohio-2882 O On May 25, 2017, the Supreme Court vacated its decision in Aalim I. O On July 27, 2017, the Supreme Court granted the State s motion for reconsideration. State v. Aalim II 2017 Ohio 2956 O Mandatory transfer does not violate a child s right to due process of equal protection under the Ohio or U.S. Constitutions. O Rationale: O Due process provisions of both constitutions predate the creation of juvenile courts and therefore cannot create a substantive right to an amenability hearing. O Juveniles are not a suspect class under either federal or Ohio s Equal Protection Clause. O The Court vacated its decision in Aalim I; affirmed judgment of the Court of Appeals. What's Happening in Juvenile Justice: Case Law and Legislative Update 5

10 Justice Kennedy s Opinion O Aalim I usurped the General Assembly s exclusive constitutional authority to define the jurisdiction of the courts. O Due Process: Substantive Due Process: Because the Ohio and federal due process clauses predate the creation of juvenile courts, those provisions cannot have created a substantive right to a specific juvenile-court proceeding. Fundamental Fairness: Mandatory bindover does not violate fundamental fairness because children receive a hearing before a juvenile court judge to determine age and probable cause prior to transfer. Justice Kennedy s Opinion O Equal Protection O Court reviewed under rational-basis test. O The mandatory transfer statutes are rationally related to the legitimate state interest of fighting rising juvenile crime because it allows the most serious juvenile offenders to be prosecuted in the general division, where harsher punishments are available. O Therefore, mandatory transfer does not violate a child s right to equal protection. 6 In Re Gault

11 Justices Dewine and Fischer Concurring O Justice Dewine voted for reconsideration and wrote separately to emphasize that the rationale in Aalim I invites courts to substitute their policy preferences for those of the legislature. O Justice Fischer voted to deny reconsideration, but participated in the merit decision. Chief Justice O Conner s Dissent O The majority s holding does not bring justice for Ohio s children, who are among our weakest citizens. O O Connor believes that the court remains an important check on the legislature ensuring the rights of children in juvenile proceedings. O Fundamental fairness requires an individualized determination prior to transfer. United States v. Kent, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966) What's Happening in Juvenile Justice: Case Law and Legislative Update 7

12 Justice O Neill s Dissent O There is nothing new to reconsider here; the only thing that has changed is the makeup of this court as a result of the 2016 election. State v. D.B Ohio 6952 O When a criminal court determines that a 16-year- old or 17-year-old has been convicted of at least one offense that is subject to mandatory transfer, the court shall sentence the juvenile under R.C. Chapter 2929 for all charges in the case. O Motion for reconsideration granted court of appeals judgment reversed. 8 In Re Gault

13 What does this mean for your clients? O Aalim and D.B. are still within the window to file a cert petition to the U.S. Supreme Court. O Talk to your clients. O Make arguments for your clients with Aalim in mind. O Keep objecting to preserve the issue for your clients. Pending Supreme Court of Ohio Cases O Guardians Ad Litem in Delinquency Cases O State v. Raymond Morgan, , argued 2/8/17 O Constitutionality of GSI Statutes as applied to a child under 13 O In re D.S., , argued 5/17/17 O Interlocutory Appeals Juvenile Transfer O In re D.H., , oral argument on 9/12/17 What's Happening in Juvenile Justice: Case Law and Legislative Update 9

14 District Courts of Appeal Other Issues O In re A.R., 2017-Ohio-1575, 10th District O After the juvenile court denied state's initial motion for mandatory bindover to common pleas court, juvenile court did not err in dismissing state's second motion for mandatory bindover to common pleas court since res judicata barred state's attempt to relitigate same issue. O In re J.B., 2017-Ohio-406, 6th District O The trial court erred in denying motion to suppress an alleged confession where failure to preserve the videotape of the police interview rose well above the level of mere negligence and constituted bad faith. O In re L.G., 2017-Ohio-2781, 2nd District O Trial court did not err in suppressing statements made by juvenile when he was questioned by retired police detective after a bomb threat was made at a school where retired officer was acting in conjunction with law enforcement officers, juvenile was in custody of law enforcement, and he did not receive Miranda warnings. District Courts of Appeal Other Issues O In re C.L., 2017-Ohio-2654, 8th District O The juvenile court was barred from sealing records of appellant's attempted rape delinquency, because the "main" offense of rape was listed as an excepted offense under R.C (A). O In re C.J., 2017-Ohio-4198, 2nd District O Sentence for a juvenile offender firearm specification is statutorily limited to one year when the specification is based on complicity with another's conduct, but the juvenile did not personally "furnish, use or dispose" of any firearm. R.C (B)(1). 10 In Re Gault

15 District Courts of Appeal Other Issues O In re S.J., 2017-Ohio-5499, 2nd District O The trial court committed plain error by failing to determine whether Appellant was age-eligible to be designated as a juvenile offender registrant under R.C (B). O In re B.H., 2017-Ohio-6966, 5th District O (1) The juvenile court lacked jurisdiction to impose a new classification after the child had been discharged from probation; and O (2) Juveniles are not classified by operation of law and the juvenile court must conduct a hearing and engage in a two-step process prior to classifying a child as a juvenile offender registrant. District Courts of Appeal Other Issues O In re D.G., 2017-Ohio-4261, 1st District O The trial court did not err in denying the juvenile's motion to suppress his arrest for violating the city of Norwood's daytimecurfew ordinance, because, under the totality of the circumstances, the arrest was supported by probable cause: where traveling to and from school was an exception to the daytime-curfew ordinance, the juvenile's statement that he was on his way to school was to be evaluated along with all other circumstances to determine whether he had violated the curfew. Where the juvenile had continually shouted profanities at the arresting officer, spit on the officer, and threatened to kill the officer, the officer's belief that the juvenile would cause him harm was reasonable, and the juvenile's adjudication for menacing was supported by sufficient evidence. What's Happening in Juvenile Justice: Case Law and Legislative Update 11

16 District Courts of Appeal Other Issues O State v. Brandeberry, 2017-Ohio-5676, 6th District O The juvenile court did not err in transferring appellant juvenile's case to the general division of the common pleas court because R.C (A)(1)(a) and (a)(1)(a)'s mandatory transfer provisions were constitutional and did not violate her right to due process; O With respect to appellant's unpreserved claim that the mandatory sentencing statutes were unconstitutional as applied to children for not allowing an individualized determination about a sentence, her facial plain error challenge failed since the error was not plain, as this question had not been decided by the Ohio Supreme Court; O Appellant presented no evidence that her counsel's performance was objectively unreasonable or that she was prejudiced by counsel's failure to object to the constitutionality of the transfer of her case or the application of adult mandatory sentencing statutes. District Courts of Appeals Other Issues O State v. Armstead-Williams, 2017-Ohio-5643, 11th District The trial court did not err in failing to merge the convictions of aggravated robbery and aggravated burglary because the aggravated burglary was completed when defendant trespassed into the victim's apartment by force to commit theft and threatened harm, and the aggravated robbery was completed when defendant inflicted serious physical harm on the victim while committing the theft; O The trial court properly sentenced defendant for his kidnapping convictions, which were non-mandatory transfer offenses, as at least one of the convictions was from an offense that was subject to mandatory transfer under R.C (B)(4), and upon transfer of the entire case the trial court retained authority to impose and carry out a sentence on all convictions. O 12 In Re Gault

17 District Courts of Appeals Other Issues O In re B.Z., 2017-Ohio-5638, 11th District O Trial court did not err in concluding that the juvenile failed to meet his burden of persuasion on his claim of self-defense, as it heard the conflicting evidence and properly elected to believe the version of events defendant's father gave to the investigating officer over his and defendant's trial testimony. Policy Update O Ohio Criminal Justice Recodification Committee O Ohio Criminal Sentencing Commission O Ohio General Assembly What's Happening in Juvenile Justice: Case Law and Legislative Update 13

18 Ohio Criminal Justice Recodification Committee O Statutorily created committee O Edited Chapter 2929 O Final version available at : O Awaiting action by legislature Ohio Criminal Sentencing Commission O Committees: O Sentencing and Criminal Justice O Data Collection O Juvenile O Current issues: O Bail reform O Probation O Rights restoration 14 In Re Gault

19 Ohio General Assembly O HB 4: Gonzalez fix O HB 38: Increased Protection for EMS/Law Enforcement/Veterans O HB 56/ SB 4: Expungement for Victims of Human Trafficking O HB 63: (Judy s Law) O HB 64: Mistaken Arrest Expungement O HB 318: School Resource Officers O HB 141: Involuntary Manslaughter for Traffickers O SB 7: pertains to notice in a violation of a protection order case O SB 33: LEADS disclosure to defendant O SB 67: Violent Offender Registry Ballot Issue O Marsy s Law What's Happening in Juvenile Justice: Case Law and Legislative Update 15

20 Questions? Brooke Burns Chief Counsel Juvenile Department Laura Austen Deputy Director Policy & Outreach opd.ohio.gov 16 In Re Gault