In re Caldwell

[This opinion has been published in Ohio Official Reports at 

76 Ohio St.3d 156

.]




                                    IN RE CALDWELL.
                       [Cite as In re Caldwell, 

1996-Ohio-410

.]
Juvenile court authorized to impose consecutive terms of commitment upon a
        delinquent minor for separate delinquent acts whether or not they arise
        from the same set of operative facts—R.C. 2151.355.
A juvenile court is authorized to impose consecutive terms of commitment upon
        a delinquent minor for separate delinquent acts whether or not they arise
        from the same set of operative facts.
(Nos. 95-574 and 95-718—Submitted March 19, 1996—Decided July 31, 1996.)
 APPEAL from and CERTIFIED by the Court of Appeals for Franklin County, Nos.
                           94APF07-996 and 94APF07-997.
                                  __________________
        {¶ 1} On December 1, 1993, fifteen-year-old appellee, William Caldwell,
was driving a stolen car. Thinking he was being pursued by the owner or the police,
he drove through a residential area in the dark and ran several stop signs at speeds
in excess of seventy miles per hour. Caldwell crashed the stolen car into another
car and fled the scene. As a result of his late night escapade, four persons, including
a passenger in Caldwell’s car, suffered serious physical injury.
        {¶ 2} Caldwell was charged in two separate cases, the first with two counts
of aggravated vehicular assault against William Manns, the driver of the other car,
and Wade Reed, his passenger, the two who suffered the most serious permanent
physical injuries, and the second with one count of receiving stolen property. The
juvenile court found Caldwell delinquent on all counts. At the dispositional
hearing, the court learned that Caldwell had been on probation for an auto theft at
the time of this incident on December 1, 1993, and had twice been suspended from
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school while the instant cases were pending.    Furthermore, the court found that
Caldwell showed no signs of remorse for his misconduct.
       {¶ 3} After finding that Caldwell was not amenable to rehabilitation within
six months, and citing the need for the protection and safety of the community, the
juvenile court committed Caldwell to the Ohio Department of Youth Services
(“ODYS”) for an indefinite term consisting of a minimum period of six months and
a maximum period not to extend beyond his twenty-first birthday. The court
imposed the indefinite term on each of the three counts and ordered Caldwell to
serve the three terms consecutively, thereby requiring that Caldwell serve at least
eighteen months in ODYS.
       {¶ 4} Caldwell appealed and the cases were consolidated for purposes of
appeal. Caldwell maintained that the juvenile court was without jurisdiction under
the Revised Code to order consecutive commitments. The Court of Appeals for
Franklin County concluded that the juvenile court did not have authority to order
Caldwell to serve consecutive commitments. Accordingly, the court reversed and
remanded the cases to the juvenile court for further proceedings.
       {¶ 5} The court of appeals also entered an order certifying that its judgment
was in conflict with decisions from the Court of Appeals for Cuyahoga County in
In re Samkas (1992), 

80 Ohio App.3d 240

, 

608 N.E.2d 1172

, and In re Bremmer
(Apr. 1, 1993), Cuyahoga App. No. 62088, unreported, on the following question:
“Whether or not juvenile courts have jurisdiction to impose consecutive
commitment orders to the Ohio Department of Youth Services.”
       {¶ 6} This cause is now before this court upon determination that a conflict
exists and pursuant to the allowance of a discretionary appeal.
                              __________________
       Michael Miller, Franklin County Prosecuting Attorney, and Steven L.
Taylor, Assistant Prosecuting Attorney, for appellant.
       Kevin Durkin, for appellee.




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                                  January Term, 1996




        Betty D. Montgomery, Attorney General, Jeffrey S. Sutton, State Solicitor,
and Simon B. Karas, Deputy Chief Counsel, urging reversal for amicus curiae,
Ohio Attorney General.
        David H. Bodiker, Ohio Public Defender, Pamela A. Conger and Scott
Lorenzo, Assistant Public Defenders, Judith Stevenson, Franklin County Public
Defender, Paul Skendelas and David L. Strait, Assistant Public Defenders, urging
affirmance for amici curiae, Ohio Public Defender and Franklin County Public
Defender.
                                __________________
        STRATTON, J.
        {¶ 7} The issue before the court is whether juvenile courts may impose
consecutive terms of commitment upon a delinquent minor. To reach the proper
conclusion in this matter, the court must look at the legislative intent behind
juvenile commitment orders.
        {¶ 8} Juvenile delinquency is a serious issue in our society. The question
has been and continues to be - What does one do with a child who commits serious
offenses? The legislative purpose regarding such errant children has been laid out
in R.C. 2151.01: to provide for the care, protection, and mental and physical
development of children, to protect the public from the wrongful acts committed
by juvenile delinquents, and to rehabilitate errant children and bring them back to
productive citizenship, or, as the statute states, to supervise, care for and rehabilitate
those children. Punishment is not the goal of the juvenile system, except as
necessary to direct the child toward the goal of rehabilitation.
        {¶ 9} We as a society believe that our goal should be to rehabilitate,
wherever possible, a child who may be young enough that the behavior can be
molded and the child directed away from delinquent and criminal acts and toward
a productive and responsible future. Therefore, our inquiry must begin with the




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premise that the goal of the juvenile code is to rehabilitate, not to punish, while
protecting society from criminal and delinquent acts during rehabilitation.
        {¶ 10} We also recognize that juvenile delinquency is a serious and
increasing problem in our society. There is an increasing level of violence in the
delinquent acts committed by juveniles. The more common acts of vandalism and
truancy seem to be replaced by more violent acts of assault, robbery, and even
murder. Juvenile courts struggle constantly with the need to protect society, the
goal of rehabilitation, and this rising tide of violent juvenile delinquency.
        {¶ 11} R.C. 2151.355 governs how juvenile courts deal with the
commitment of a child when necessary for his or her rehabilitation.1 Paragraphs
A(1) through A(10) set forth a number of options, ranging from a simple fine or
restitution to commitment of the juvenile to the custody of ODYS. The relevant
subsection in effect at the time of Caldwell’s delinquent acts permitted the court to
do the following:
        “(4) If the child was adjudicated delinquent by reason of having committed
an act that would be * * * a felony of the third or fourth degree if committed by an
adult, commit the child to the legal custody of the department of youth services for
institutionalization for an indefinite term consisting of a minimum period of six
months and a maximum period not to exceed the child’s attainment of the age of
twenty-one years.” Am.Sub.H.B. No. 725, 144 Ohio Laws, Part IV, 6371.
        {¶ 12} After a careful review of the legislative intent, this court disagrees
with the court of appeals’ conclusion and finds that the juvenile court did have
authority to order consecutive terms of commitment under the provisions of R.C.
2151.355(A)(11), which authorized a court to:




1. R.C. 2151.355 has been amended since the incident occurred which gave rise to this case. The
revised statute expressly provides for consecutive terms of commitment. R.C. 2151.355(B)(2), as
amended by 1995 Am.Sub.H.B. No. 1.




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          “(11) Make any further disposition that the court finds proper, except that
the child shall not be placed in any state penal or reformatory institution, county,
multicounty or municipal jail or workhouse, or any other place where any adult
convicted of crime, under arrest, or charged with crime is held.” (Emphasis added.)
Am.Sub.H.B. No. 725, 144 Ohio Laws, Part IV, 6372.
          {¶ 13} In this case, the court of appeals found that because R.C. 2921.34
required a trial judge to impose consecutive terms of commitment on a juvenile
found to be guilty of escape, lack of any specific authorization for consecutive
terms of commitment in R.C. 2151.355 meant that the phrase “[m]ake any further
disposition that the court finds proper” could not be read broadly enough to
authorize consecutive terms.
          {¶ 14} The Eighth District Court of Appeals reached the opposite
conclusion in In re Samkas (1992), 

80 Ohio App. 3d 240

, 

608 N.E.2d 1172

. In
Samkas, the court found that the phrase “[m]ake any further disposition that the
court finds proper” grants authority to the juvenile court to impose consecutive
commitment terms.        In rejecting the contention that consecutive terms were
punitive rather than rehabilitative, that court summed up its rationale:
          “It is beyond cavil that each individual learns at his own pace through
different means and methods. Some individuals learn quickly and others take
longer to learn that one does not take property of another without permission either
by violence or otherwise. Some children learn this lesson early in life; appellant
obviously had not learned this lesson at age seventeen years. Some juveniles learn
only through detention which is itself a means and method of education and
rehabilitation. Therefore, the General Assembly passed R.C. 2151.355(A)(10)
[now (A)(11)], which reads as follows:
          “‘(10) Make any further disposition that the court finds proper.’ (Emphasis
added.)




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       “Obviously the General Assembly by adding the word any, which it was not
required to do, gave the trial judge discretion to further implement the rehabilitative
disposition of a juvenile under R.C. 2151.355.” 

Id. at 244

, 

608 N.E.2d at 1174

.
       {¶ 15} In In re Bremmer (Apr. l, 1993), Cuyahoga App. No. 62088,
unreported, relying on Samkas, the court further examined the legislative intent of
the statute and concluded that by using the word “any” in paragraph (A)(11), which
the General Assembly was not required to do, it gave the trial judge discretion to
take “any” steps the judge believes necessary to fully and completely implement
the rehabilitative disposition of a juvenile under R.C. 2151.355. This includes the
authority to order consecutive terms of commitment.
       {¶ 16} By including this catchall provision in R.C. 2151.355, the General
Assembly must have intended to leave to the discretion of the trial judge, who is
able to view the evidence and witnesses at the dispositional hearing, whether some
further disposition is required to fully and completely rehabilitate the delinquent.
       {¶ 17} As the Bremmer court realized, the requirement of consecutive terms
for escape actually buttresses this statutory interpretation. As in R.C. 2929.71,
requiring actual incarceration for a felony carried out with a firearm, the legislative
intent was to remove discretion from the trial court when escape is involved and to
make it mandatory that a trial court require the juvenile to serve a term of
commitment for escape consecutively to any other terms of commitment. This in
no way suggests that other terms of commitment cannot also be consecutive on a
discretionary basis. When read together, R.C. 2921.34 and 2151.355(A)(11)
require consecutive terms for escape, but allow them on a discretionary basis for
other types of offenses.
       {¶ 18} The Caldwell court of appeals attempted to distinguish Samkas and
Bremmer on the basis that they involved unrelated acts rather than separate
delinquent acts arising out of one course of conduct such as those committed by
Caldwell. This type of analysis ignores the purposes of rehabilitation, as well as




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the plain language of the statute. A child who commits two separate robberies, each
with a single victim on two separate days may need less rehabilitation than a child
who robs ten different people in a store at one time. The court must look at not only
the delinquent act but also the overall conduct and behavior of the juvenile, the
juvenile’s history, the remorse shown by the juvenile and other societal factors that
determine what length of commitment is appropriate for rehabilitation.
       {¶ 19} In addition, R.C. 2151.355(A)(4) stated that the court may order
commitment of a child “adjudicated delinquent by reason of having committed an
act * * * for an indefinite term consisting of a minimum period of six months.”
(Emphasis added.) When this subsection is read together with the phrase “[m]ake
any further disposition that the court finds proper,” it is clear that a term of
commitment applies to an individual act. The court may order a separate disposition
for each separate act committed. If the legislature had intended the court to order
commitment for a minimum term of six months for multiple acts, as well as a single
act, presumably the legislature would have used the phrase “by reason of having
committed acts.”
       {¶ 20} As a safety valve, the juvenile court maintains supervisory powers
over early release of the delinquent child. If the court, after ordering consecutive
terms of commitment, determines that the child has been rehabilitated before the
minimum commitment period ends and could be safely returned to the custody of
his or her parents or the community, R.C. 2151.38 authorizes the supervising court
to grant early release of the delinquent. The provisions of the early release statute
coupled with the discretionary power of a juvenile court to order concurrent or
consecutive terms of commitment strike a desired balance between the goals of
confining the juvenile for purposes of rehabilitation and the release of the juvenile
to society once satisfactory progress has been made toward rehabilitation.
       {¶ 21} Our decision is consistent with the underlying purposes and goals of
the juvenile court system, i.e., supervision, care and rehabilitation of the delinquent




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youth. When a delinquent child has exhibited little remorse for his or her actions,
has committed multiple delinquent acts and exhibited little respect for the safety of
others, a court may determine that a longer period may be necessary for the child
to be rehabilitated. The trial court has the opportunity to see and hear the delinquent
child, to assess the consequences of the child’s delinquent behavior, and to evaluate
all the circumstances involved. The statute authorizes the court to issue orders of
disposition appropriate to each child.
        {¶ 22} This interpretation does not tend to promote punishment rather than
rehabilitation.   Some juveniles exhibit more serious criminal tendencies and
behavior than do other juveniles. It would be unfair to require that a child who has
committed numerous delinquent acts be committed for the same period of time as
a child who was determined to be delinquent for only one act. The first child should
not be rewarded for a crime spree by an interpretation that limits the discretion of a
juvenile court. The juvenile court is in the best position to evaluate the facts of each
case to determine whether a longer period of rehabilitation may be needed under
each separate fact pattern. The juvenile court’s discretion is balanced by the
provisions of R.C. 2151.38 which provide for a child’s early release from ODYS.
        {¶ 23} We are instructed by R.C. 2151.01 to liberally interpret and construe
R.C. Chapter 2151 to effectuate its purposes. We believe it was the purpose and
intent of the General Assembly to authorize consecutive terms of commitment
pursuant to R.C. 2151.355(A)(4) and (11) as they existed in 1993.
        {¶ 24} In light of the serious nature of appellee’s actions on December 1,
1993, his obvious lack of remorse for his conduct, his disregard for school, and his
prior probation for auto theft, the juvenile court acted well within its discretion to
order consecutive terms of commitment. The court deemed it to be in the interest
of public safety and necessary for the appellee’s rehabilitation to require him to
spend more than one period of commitment with the ODYS.




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       {¶ 25} The statute in effect at the time of appellee’s delinquent acts did not
prohibit consecutive terms of commitment. It provided several alternatives from
which the juvenile court might tailor its disposition of each particular case,
including the authority to make any further disposition that the court found proper.
We hold that a juvenile court is authorized to impose consecutive terms of
commitment upon a delinquent minor for separate delinquent acts whether or not
they arise from the same set of operative facts. Therefore, we reverse the court of
appeals and order that the judgment of the juvenile court be reinstated in accordance
with this decision.
                                                                 Judgment reversed
                                                               and cause remanded.
       MOYER, C.J., DOUGLAS, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.
       DOUGLAS and RESNICK, JJ., concur separately.
                               __________________
       ALICE ROBIE RESNICK, J., concurring.
       {¶ 26} I concur in the syllabus and the judgment, but write separately in
order to further underscore the fact that R.C. 2151.355 allows the juvenile court
broad discretion in fashioning the juvenile’s disposition order upon a finding of
delinquency and that there is no abuse of that discretion when consecutive
sentences are imposed.
       {¶ 27} R.C. 2151.01 directs the courts to liberally interpret and construe
R.C. Chapter 2151 so as to effectuate the following purposes:
       “(A) To provide for the care, protection, and mental and physical
development of children subject to Chapter 2151. of the Revised Code;
       “(B) To protect the public interest in removing the consequences of criminal
behavior and the taint of criminality from children committing delinquent acts and
to substitute therefor a program of supervision, care, and rehabilitation;




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        “(C) To achieve the foregoing purposes, whenever possible, in a family
environment, separating the child from its parents only when necessary for his
welfare or in the interests of public safety[.]”
        {¶ 28} By authorizing courts to liberally construe the juvenile court statutes,
the General Assembly recognized the multitude of situations which come before
courts requiring them to employ various sanctions when disposing of juvenile
delinquency cases. Therefore, the General Assembly provided the courts with
broad discretion in R.C. 2151.355(A)(11) to fashion creative dispositions that will
effectuate the statutory purposes. I fail to see how commitment for consecutive
terms would be excluded from the discretion granted in the language “any further
disposition that the court finds proper.” To give this phrase its plain and ordinary
meaning and the only sensible effect, we must interpret it as giving the juvenile
judge broad discretionary authority to fashion dispositions for delinquents that are
not specifically enumerated in the juvenile code as long as the dispositions are to
further implement the rehabilitation of the delinquents. The juvenile court is best
able to view the evidence and witnesses at the dispositional hearing and therefore
determine what is required to fully and completely rehabilitate the delinquent
juvenile.
        {¶ 29} As noted in a footnote in the majority opinion, the General Assembly
revised R.C. 2151.355 to include a provision specifically authorizing the juvenile
courts to order commitment for consecutive terms. By adding this provision, the
General Assembly intended to end the apparent confusion among the courts of
appeals as to juvenile courts’ authority to make such a disposition.
        {¶ 30} The juvenile involved in this case makes clear that the court in In re
Samkas (1992), 

80 Ohio App.3d 240

, 

608 N.E.2d 1172

, was correct when it found
that the needs of rehabilitation vary from juvenile to juvenile. One type of
commitment does not fit all juveniles. Juvenile courts need broad discretion to
fashion the appropriate time for complete and lasting rehabilitation. The trial court




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did not abuse its discretion by determining that the juvenile in this case required
consecutive terms of commitment in order to better effectuate rehabilitation.
       DOUGLAS, J., concurs in the foregoing concurring opinion.
                               ________________




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