Login | August 13, 2020

9th District issues partial reversal in juvenile rape, murder case

TRACEY BLAIR
Legal News Reporter

Published: July 28, 2020

A then-15-year-old boy was adjudicated delinquent in a Summit County Juvenile Court for the rape and murder of his 3-year-old sister, M.R.J., while she was in his care.
The juvenile court found that D.J. was a serious youthful offender and committed him to the custody of the Ohio Department of Youth Services through his 21st birthday.
The juvenile court also imposed an adult sentence on the rape charge of life imprisonment with parole eligibility after 25 years, but stayed the adult portion of the sentence pending D.J.’s completion of the juvenile disposition.
During periodic dispositional reviews, the juvenile court found D.J.’s progress to be mixed.
In 2016, the state moved to invoke the adult portion of D.J.’s sentence, arguing that he had not engaged in sex offender treatment while in the custody of ODYS. Because D.J. was within two months of his 21st birthday, the state also moved for an expedited hearing on the motion.
The juvenile court granted the motion to invoke the adult sentence five days before D.J.’s 21st birthday, noting D.J.’s failure to participate in sex offender programming until January 2016 and his “superficial” participation thereafter. The juvenile court noted that “[D.J.]’s defiance and failure to timely engage in treatment constitutes conduct that demonstrates that [D.J.] has not been rehabilitated during the course of his ODYS commitment and cannot complete treatment so that he can safely enter the community in the few days that remain before his 21st birthday.”
On Nov. 23, 2016, the trial court imposed the adult portion of D.J.’s sentence. D.J. appealed the juvenile court’s order that granted the state’s motion to invoke the adult portion of his sentence.
While that appeal was pending, D.J. petitioned the juvenile court for post-conviction relief, claiming his attorney was ineffective during the invocation proceedings on five grounds, including by failing to adequately cross-examine witnesses who testified regarding their use of a sex offender assessment tool and by failing to seek a trial by jury during the invocation proceedings.
In February 2018, the 9th District Court of Appeals affirmed the juvenile court’s order that granted the state’s motion to invoke the adult portion of D.J.’s sentence. The juvenile court then determined D.J. would be allowed an evidentiary hearing on all the claims except the trial by jury request.
The state successfully argued D.J.’s claims for relief were barred by res judicata or otherwise without merit, and D.J. appealed.
“D.J.’s fifth basis for his ineffective-assistance claim—that trial counsel failed to request a trial by jury in connection with his invocation proceedings, to object to the trial court’s findings of fact, and to object on equal protection grounds—could have been determined based on the original record in his direct appeal,” 9th District Judge Lynne Callahan said in her majority opinion. “The trial court properly dismissed this portion of his fifth claim for relief as res judicata. “
The panel disagreed with the trial court on other aspects, however.
“There is no evidence in the record from which this court could have determined, on direct appeal, whether trial counsel was ineffective based on the decision not to retain an expert and present testimony regarding the limitations of the J-SOAP-II assessment tool,” Judge Callahan added. “Accordingly, the trial court erred by determining that D.J.’s second argument in his fifth claim for relief was barred by res judicata.
“With respect to the third and fourth arguments in D.J.’s fifth claim for relief, the trial court also erred. This court has concluded that a claim of ineffective assistance of counsel based on failure to raise lack of Miranda warnings cannot be addressed on direct appeal when evidence necessary to address the claim is absent from the record. Similarly, there was no evidence in the record on appeal from which this court could have determined D.J.’s argument that trial counsel failed to raise the fact that he was unrepresented during his treatment and evaluation process had that argument been raised. The trial court, therefore, erred by rejecting D.J.’s third and fourth arguments in his fifth claim for relief on the basis of res judicata.”
Ninth District judges Donna J. Carr and Jennifer Hensal concurred.
The case is cited In re D.J., 2020-Ohio-3528.


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