author: Kennedy, J.

text:
    The STATE of Ohio, Appellee, v. MORGAN, Appellant.
    No. 2015-0924
    Supreme Court of Ohio.
    Submitted February 8, 2017 Decided September 13, 2017
    Ron O'Brien, Franklin County Prosecuting Attorney, and Seth L. Gilbert, Assistant Prosecuting Attorney, for appellee.
    Timothy Young, Ohio Public Defender, and Charlyn Bohland, Assistant Public Defender, for appellee.
   Kennedy, J.

I. Introduction

{¶ 1} In this discretionary appeal, we consider whether the Tenth District Court of Appeals correctly held that a juvenile court's failure, during an amenability hearing, to appoint a guardian ad litem ("GAL") pursuant to R.C. 2151.281(A)(1) and Juv.R. 4(B)(1) to protect the interests of a juvenile whose parents are deceased was not plain error.

{¶ 2} For the reasons that follow, we hold that when a juvenile whose parents are deceased appears at an amenability hearing, the juvenile is not required to ask for the appointment of a GAL; a GAL must be appointed as mandated by R.C. 2151.281(A)(1) and Juv.R. 4(B)(1). We further hold that the juvenile court's failure to appoint a GAL in a delinquency proceeding is subject to criminal plain-error review. However, because the evidence presented failed to prove that the error affected the outcome of the proceeding, we affirm the judgment of the court of appeals, albeit on different grounds.

II. Facts and Procedural History

{¶ 3} Appellant, Raymond Morgan, was 16 years old when he went on a two-day crime spree during which three victims were shot. The state filed three separate delinquency complaints against Morgan in the Franklin County Court of Common Pleas, Division of Domestic Relations and Juvenile Branch. The first complaint alleged that on February 8, 2012, Morgan and an accomplice committed felonious assaults against two separate victims, shooting one in the back and the second in the leg. The second complaint alleged that on February 9, 2012, Morgan committed aggravated robbery, robbery, felonious assault, and kidnapping. During this incident, Morgan was joined by two accomplices, one of whom was Morgan's brother. The victim was shot in the leg by one of the accomplices.

The third complaint alleged that Morgan had received stolen property on February 8, 2012. The state moved to transfer all three cases to the general division of the court of common pleas for criminal prosecution.

{¶ 4} Morgan's father was deceased, but Morgan's mother was present at a preliminary hearing on March 5, 2012, when the state asked that a gun specification under R.C. 2941.145 be added to each count. On June 14, 2012, Morgan's mother attended a probable-cause hearing, at which the state requested a continuance. At that hearing, Morgan's attorney informed the court that Morgan wanted him removed as his attorney. Morgan's attorney stated that Morgan was frustrated with the "pace of the case and being in the Detention Center." Morgan stated that he wanted his attorney discharged because the attorney was not trying to help him get home. The judge responded, "Because he's not gonna let you go home?" Morgan stated: "He's not trying to help me go home. It's-it's everybody story against mines [sic]." The judge then asked Morgan if he had anything to add. Morgan gave a nonverbal response. The judge then explained that Morgan's counsel was "one of the pretty good lawyers" and in the years that the attorney had appeared before the judge he had never acted less than zealously for his clients. The judge further explained that although there is a lot of process in this case, it inured to Morgan's benefit. The judge noted that he thought that Morgan was receiving adequate representation. Finally, the judge stated that appointing new counsel would require that counsel to get up to speed, which was contrary to Morgan's complaint that the process was too slow. The judge refused to dismiss Morgan's attorney and then continued the hearing as requested by the state.

{¶ 5} On August 9, 2012, Morgan's mother was again in attendance at the rescheduled probable-cause hearing. Morgan stipulated that there was probable cause that he had committed all the charged offenses. The judge ordered a social and mental-health examination of Morgan and scheduled an amenability hearing.

{¶ 6} On August 24, 2012, Barbra A. Bergman, Ph.D., conducted an evaluation of Morgan. Dr. Bergman interviewed Morgan's mother, who provided background information for the report. After that interview, Morgan's mother died.

{¶ 7} On October 24, 2012, the court held the amenability hearing. The state argued that based on the factors in R.C. 2152.12(D), Morgan should be bound over to the adult court because (1) three victims suffered physical harm and the fourth victim suffered economic harm, (2) Morgan committed the acts as part of a gang or organized criminal activity, that is, the offenses were committed in the same general area with the same codefendants, (3) a firearm was used to facilitate these crimes and Morgan was at the least complicit in its use, (4) Morgan had prior offenses, one of which had been held open by the court, and (5) Morgan had a history of bad behavior in school. Moreover, the state argued that Morgan was emotionally, physically, and psychologically mature enough for transfer to adult court.

{¶ 8} Morgan's attorney opposed the bindover, citing the court-ordered psychological report of Dr. Bergman. Counsel argued that (1) Dr. Bergman's report indicated that Morgan had a high degree of amenability to rehabilitation in the juvenile-justice system, (2) no resources available in the juvenile-justice system had previously been used to rehabilitate Morgan because he had not had significant contact with that system, and (3) Morgan's propensity for future violence was low. Moreover, Morgan exhibited remorse for the criminal acts in which he had participated, and he had behaved himself while being held in detention.

{¶ 9} Morgan's counsel also informed the court of the recent death of Morgan's mother, but neither Morgan nor his counsel requested the appointment of a GAL. Counsel indicated to the court, however, that a godchild of Morgan's mother, who described herself as Morgan's godsister, was in the courtroom. Counsel stated that the woman had "taken over the role of mom since [the mother's] recent death."

{¶ 10} The judge stated that he had reviewed the amenability packet, which included a presentence-investigation report and the results of the social and mental-health examination. He also stated that he had weighed the factors for and against transfer, pursuant to R.C. 2152.12(D) and (E). The judge concluded that of the nine possible factors in favor of bindover listed in R.C. 2152.12(D), four existed in Morgan's case: three of the victims suffered significant physical harm, Morgan committed the offenses charged as part of an organized criminal activity, he had a firearm and used it in the commission of the offenses, and he was mature enough to be bound over. The judge also found that none of the eight factors listed in R.C. 2152.12(E) weighing against transfer existed.

{¶ 11} Having significantly discounted Dr. Bergman's "conclusions and recommendation," the judge held that Morgan was not amenable to care and rehabilitation in the juvenile system and that for the "safety of the community," Morgan was to be transferred to adult court.

{¶ 12} In common pleas court, the state charged Morgan with 13 criminal counts, including one count of burglary, three counts of theft, three counts of felonious assault, one count of attempted aggravated burglary, one count of attempted aggravated robbery, one count of aggravated robbery, two counts of robbery, and one count of tampering with evidence. Each count included a firearm specification. Morgan pleaded guilty to one count of burglary, two counts of felonious assault, and one count of aggravated robbery, each including the firearm specification. The court imposed an 18-year aggregate prison sentence.

{¶ 13} On appeal to the Tenth District, Morgan raised the following assignment of error, among others: "The juvenile court committed plain error when it failed to appoint a guardian ad litem for Raymond Morgan's amenability hearing, in violation of Juv.R. 4(B)(1) and R.C. 2151.281(A)(1)." (Emphasis added.)

{¶ 14} The court of appeals held that the juvenile court erred in failing to appoint a GAL, but after concluding that the failure was not a rare, exceptional case in which it was not necessary to show prejudice, it held that Morgan was unable to demonstrate prejudice and thereby overruled Morgan's first assignment of error. 10th Dist. Franklin No. 13AP-620, 2014-Ohio-5661, 2014 WL 7274036, ¶ 29. However, because the trial court did commit a sentencing error, the court of appeals reversed the trial court's judgment in part, affirmed Morgan's convictions, and remanded for resentencing. Id . at ¶ 62.

{¶ 15} We accepted two of four propositions of law asserted by Morgan for review: (1) a juvenile does not need to request a GAL in the absence of his parents, guardian, or legal custodian at a juvenile-court hearing and (2) a juvenile does not need to show prejudice to support a reversal on appeal when the juvenile court fails to appoint a GAL when required by law.

{¶ 16} Morgan presents the court with alternative resolutions to his second proposition of law: if the court agrees with the appellate court that the plain-error standard of review applies, then the court must "presume prejudice" in the failure to appoint a GAL, but if the court finds that plain-error analysis does not apply, then a structural-error analysis must be used.

{¶ 17} The state argues that although Morgan's arguments are phrased as "alternatives," his arguments are one and the same. The state asserts that even if his arguments are alternative ones, they fail because "there is no such thing as a presumptively prejudicial error in plain error review" and the failure to appoint a GAL fails to "satisfy the strict criteria for structural error."

III. Analysis

A. Under R.C. 2151.281(A)(1), a Juvenile Is Not Required to Ask for the Appointment of a GAL

{¶ 18} Morgan presents this court with a very broad first proposition of law: "A child does not need to request a GAL in the absence of his parents , guardian, or legal custodian at a juvenile court hearing ." (Emphasis added.) While we agree, based on the facts of this case and the statute at issue here, that Morgan was not required to ask for the appointment of a GAL, Morgan's proposition of law is stated more broadly than the command of the statute.

{¶ 19} R.C. 2151.281(A)(1) provides, "The court shall appoint a guardian ad litem * * * to protect the interest of a child in any proceeding concerning an alleged or adjudicated delinquent child or unruly child when * * * [t]he child has no parent , guardian, or legal custodian." (Emphasis added.) See also Juv.R. 4(B)(1). {¶ 20} A court's main objective in statutory construction is to determine and give effect to the legislative intent. State ex rel. Solomon v. Police & Firemen's Disability & Pension Fund Bd. of Trustees , 72 Ohio St.3d 62, 65, 647 N.E.2d 486 (1995). To determine the intent of the General Assembly, we look primarily to the language of the statute itself. Stewart v. Trumbull Cty. Bd. of Elections , 34 Ohio St.2d 129, 130, 296 N.E.2d 676 (1973).

{¶ 21} "Where a statute defines terms used therein, such definition controls in the application of the statute * * *." Good Samaritan Hosp. of Dayton v. Porterfield , 29 Ohio St.2d 25, 30, 278 N.E.2d 26 (1972), citing Terteling Bros. v. Glander , 151 Ohio St. 236, 241, 85 N.E.2d 379 (1949), and Woman's Internatl. Bowling Congress, Inc. v. Porterfield , 25 Ohio St.2d 271, 275, 267 N.E.2d 781 (1971). Terms that are undefined by the legislature are accorded their common, everyday meaning. R.C. 1.42.

{¶ 22} "In statutory construction, * * * the word 'shall' shall be construed as mandatory unless there appears a clear and unequivocal legislative intent that [it] receive a construction other than [its] ordinary usage." (Emphasis added.) Dorrian v. Scioto Conservancy Dist. , 27 Ohio St.2d 102, 271 N.E.2d 834 (1971), paragraph one of the syllabus.

{¶ 23} R.C. 2151.281 does not provide a "clear and unequivocal legislative intent" that the word "shall" should be construed as meaning something other than its ordinary meaning. Therefore, the legislature imposed a mandatory duty on the juvenile court to appoint a GAL for a juvenile when certain conditions are met.

{¶ 24} First, the General Assembly restricted the appointment of a GAL to proceedings concerning "an alleged or adjudicated delinquent child or unruly child." R.C. 2151.281. Second, the legislature restricted such an appointment to situations when the child has no parent, guardian, or legal custodian or there is a conflict between the child and the child's parent, guardian, or legal custodian. Id .

{¶ 25} As it is used in the statute, "no" means "not any." Webster's Third New International Dictionary 1532 (2002).

{¶ 26} The parties do not contest that an amenability hearing is a proceeding that concerns an alleged delinquent child. Moreover, they do not dispute that Morgan had no parent after the death of his mother.

{¶ 27} However, Morgan's proposition of law uses the phrase "at a juvenile court hearing" without any qualification as to the type of juvenile-court hearing and substitutes the word "absence" for the word "no." "Absence," which is defined as the "state of being absent or missing from a place or from companionship,"

Webster's Third New International Dictionary 6 (2002), is not synonymous with the word "no."

{¶ 28} In construing the meaning of a statute, " 'we may not restrict, constrict, qualify, narrow, enlarge, or abridge the General Assembly's wording.' " Dillon v. Farmers Ins. of Columbus, Inc. , 145 Ohio St.3d 133, 2015-Ohio-5407, 47 N.E.3d 794, ¶ 17, quoting State ex rel. Carna v. Teays Valley Local School Dist. Bd. of Edn. , 131 Ohio St.3d 478, 2012-Ohio-1484, 967 N.E.2d 193, ¶ 18. Therefore, based on these facts, the legislature mandates that a juvenile court appoint a GAL for a juvenile when the juvenile appears at an amenability hearing and the juvenile's parents are deceased and the juvenile has no guardian or legal custodian.

{¶ 29} The fact that Morgan's godsister appeared at the amenability hearing is of no consequence. While the General Assembly allows a guardian or legal custodian to stand in for a parent, and counsel indicated that the adult present had "taken over the role of mom since [Morgan's mother's] recent death," the juvenile court made no finding that the adult was Morgan's guardian or legal custodian. There was no evidence in the record that the godsister had been appointed by a court to serve as Morgan's guardian or legal custodian as defined in R.C. 2151.011(B)(11) (as used in R.C. Chapter 2151, a "custodian" is a person who has legal custody of a child) or (17) (as used in R.C. Chapter 2151, a "guardian" is a person authorized by a probate court to exercise parental rights over a child).

{¶ 30} The General Assembly placed no burden on the juvenile to make the request. Therefore, in deciding Morgan's first proposition of law, we hold that a juvenile is not required to ask for the appointment of a GAL when the juvenile appears at an amenability hearing and has no parent.

B. Criminal Plain-Error Standard of Review Applies

{¶ 31} Morgan asserts in his second proposition of law that he does not need to show that he was prejudiced by the juvenile court's failure to appoint a GAL. As discussed above, Morgan provides us with alternative resolutions. Therefore, if plain-error review applies, this court need not reach a decision on the second alternative resolution.

{¶ 32} Before squarely addressing Morgan's second proposition of law, we recognize that this court has never addressed the question whether plain-error review should be applied in juvenile-delinquency proceedings in the same manner that it is applied in criminal proceedings or in civil proceedings. Morgan acknowledges in his brief that "there are competing versions" of plain-error review: the civil version focuses on the "error's impact on the fairness of the proceedings; while [the criminal version] focuses on * * * whether the error impacts the outcome of the proceedings."

{¶ 33} Our research has revealed that the First, Fifth, Sixth, and Eighth District Courts of Appeals have exclusively cited the criminal plain-error standard of review in delinquency cases. See, e.g., In re Jones , 1st Dist. Hamilton Nos. C-090497, C-090498, and C-090499, 2010-Ohio-3994, 2010 WL 3365804, ¶ 33 ; In re Anderson , 5th Dist. Tuscarawas No. 2001AP030021, 2002 WL 253855, ¶ 14 ; In re Jerry W., 6th Dist. Erie No. E-98-042, 1999 WL 575823, *5 (Aug. 6, 1999) ; In re A.F. , 8th Dist. Cuyahoga No. 91251, 2008-Ohio-5479, 2008 WL 4681848, ¶ 19. The remaining districts-the Second, Third, Fourth, Seventh, Ninth, Tenth, Eleventh, and Twelfth District Courts of Appeals-have most often cited the criminal plain-error standard of review but occasionally have also cited the civil plain-error standard of review. See, e.g., In re Williams , 116 Ohio App.3d 237, 241, 687 N.E.2d 507 (2d Dist.1997) (criminal); In re Harper , 2d Dist. Montgomery No. 19948, 2003-Ohio-6666, 2003 WL 22927248, ¶ 7 (civil); In re Forbess , 3d Dist. Auglaize No. 2-09-20, 2010-Ohio-2826, 2010 WL 2488064, ¶ 31 (criminal); In re Gibson , 3d Dist. Allen No. 1-06-24, 2006-Ohio-5145, 2006 WL 2795565, ¶ 9 (civil); In re Lower , 4th Dist. Highland No. 06CA31, 2007-Ohio-1735, 2007 WL 1098292, ¶ 13 (criminal);

In re D.G., 4th Dist. Ross Nos. 13CA3382 and 13CA3383, 2014-Ohio-650, 2014 WL 720851, ¶ 21 (civil); In re C.S., 7th Dist. Columbiana No. 09-CO-7, 2010-Ohio-867, 2010 WL 780001, ¶ 22 (criminal); In re A.K., 7th Dist. Belmont No. 14 BE 54, 2016-Ohio-351, 2016 WL 531193, ¶ 9 (civil); In re Lovejoy , 9th Dist. Lorain No. 97CA006838, 1998 WL 114400, *3 (Mar. 4, 1998) (criminal); In re Hall , 9th Dist. Summit No. 20658, 2002 WL 388905, ¶ 14 (civil); In re B.P.K. , 10th Dist. Franklin No. 12AP-343, 2012-Ohio-6166, 2012 WL 6738377, ¶ 15 (criminal); Morgan , 10th Dist. Franklin No. 13AP-620, 2014-Ohio-5661, 2014 WL 7274036 (civil); In re J.C., 2013-Ohio-2819, 994 N.E.2d 919, ¶ 10 (11th Dist.) (criminal); In re L.P.R. , 11th Dist. Lake No. 2010-L-144, 2012-Ohio-1671, 2012 WL 1269006, ¶ 16 (civil); In re Reynolds , 12th Dist. Madison No. CA95-10-034, 1996 WL 379343, *4 (July 8, 1996) (criminal); and In re Johnson , 12th Dist. Butler Nos. CA2000-03-041 and CA2000-05-073, 2000 WL 1818546, *2 (Dec. 11, 2000) (civil).

{¶ 34} In this case, the appellate court applied the civil plain-error standard of review. However, both Morgan and the state refer to criminal plain-error standards when discussing the court of appeals' opinion. Even though neither of the parties directly raised the issue, we find that its resolution is necessary in this case. See Belvedere Condominium Unit Owners' Assn. v. R.E. Roark Cos., Inc. , 67 Ohio St.3d 274, 279, 617 N.E.2d 1075 (1993) ("When an issue of law that was not argued below is implicit in another issue that was argued and is presented by an appeal, we may consider and resolve that implicit issue").

1. History of plain error, generally

{¶ 35} ''Prior to the adoption of Crim.R. 52(B), Ohio appellate courts would not consider 'any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court.' " State v. Wolery , 46 Ohio St.2d 316, 326, 348 N.E.2d 351 (1976), quoting State v. Gordon , 28 Ohio St.2d 45, 50, 276 N.E.2d 243 (1971) ; accord State v. Lancaster , 25 Ohio St.2d 83, 267 N.E.2d 291 (1971), paragraph one of the syllabus; State v. Glaros , 170 Ohio St. 471, 166 N.E.2d 379 (1960), paragraph one of the syllabus.

Any other rule would relieve counsel from any duty or responsibility to the court, and place the entire responsibility upon the trial court to give faultless instructions upon every possible feature of the case, thereby disregarding entirely the true relation of court and counsel, which enjoins upon counsel the duty to exercise diligence and to aid the court, rather than by silence mislead the court into commission of error.

State v. Driscoll , 106 Ohio St. 33, 39, 138 N.E. 376 (1922).

{¶ 36} However, the adoption of Crim.R. 52(B), which became effective July 1, 1973, altered that practice. Wolery at 327, 348 N.E.2d 351. Crim.R. 52(B) provides that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." "By its very terms, the rule places three limitations on a reviewing court's decision to correct an error" that was not preserved at trial. State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). First, an error, "i.e. a deviation from a legal rule," must have occurred. Id ., citing State v. Hill , 92 Ohio St.3d 191, 200, 749 N.E.2d 274 (2001), citing United States v. Olano , 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Second, the error complained of must be plain, that is, it must be "an 'obvious' defect in the trial proceedings." Id ., citing State v. Sanders , 92 Ohio St.3d 245, 257, 750 N.E.2d 90 (2001), citing State v. Keith , 79 Ohio St.3d 514, 518, 684 N.E.2d 47 (1997). "Third, the error must have affected 'substantial rights.' We have interpreted this * * * to mean that the trial court's error must have affected the outcome of the trial." Id .

{¶ 37} Even when a defendant demonstrates that the factors under Crim.R. 52 exist, "we have 'admonish[ed] courts to notice plain error "with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." ' " (Emphasis and brackets in Rogers .)

State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 23, quoting Barnes at 27, 759 N.E.2d 1240, quoting State v. Long , 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. However, Crim.R. 52(B) is a rule of criminal procedure.

{¶ 38} We declined to find plain error in Yungwirth v. McAvoy , 32 Ohio St.2d 285, 288, 291 N.E.2d 739 (1972), a civil case that predated the adoption of Crim.R. 52(B). Nine years after adopting the rule of criminal procedure, we again determined that plain error did not exist in a civil case in Schade v. Carnegie Body Co ., 70 Ohio St.2d 207, 209, 436 N.E.2d 1001 (1982). But in 1985, while recognizing that "the plain-error doctrine is a principle applied almost exclusively in criminal cases," we noted that this court had stated that it could apply to a civil case "if the error complained of 'would have a material adverse effect on the character and public confidence in judicial proceedings.' " Reichert v. Ingersoll , 18 Ohio St.3d 220, 223, 480 N.E.2d 802 (1985), quoting Schade at 209, 436 N.E.2d 1001.

{¶ 39} Twelve years after Reichert , this court again considered the application of plain error in a civil matter in Goldfuss v. Davidson , 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997). We recognized that " 'the idea that parties must bear the cost of their own mistakes at trial is a central presupposition of our adversarial system of justice.' " Id. at 121, 679 N.E.2d 1099, quoting Montalvo v. Lapez , 77 Hawai'i 282, 305, 884 P.2d 345 (1994) (Nakayama, J., concurring in part and dissenting in part). A litigant who fails to follow procedural rules might forfeit his or her rights and "may not obtain a new trial based upon the bare assertion that his or her attorney was ineffective." Id . at 122, 679 N.E.2d 1099.

{¶ 40} Nevertheless, this court reaffirmed the application of the plain-error doctrine in civil cases even though "no analogous provision exists in the Rules of Civil Procedure." (Emphasis sic.) Goldfuss at 121, 679 N.E.2d 1099. However, application of the doctrine was strictly limited to those occasions when the error impugned the character and public image of the judicial process.

In appeals of civil cases, the plain error doctrine is not favored and may be applied only in the extremely rare case involving exceptional circumstances where error , to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself .

(Emphasis added.) Id. at the syllabus.

{¶ 41} Therefore, in order for a court to find plain error in a civil case, an appellant must establish (1) a deviation from a legal rule, (2) that the error was obvious, and (3) that the error affected the basic fairness, integrity, or public reputation of the judicial process and therefore challenged the legitimacy of the underlying judicial process. Id. As when they apply criminal plain-error review, reviewing courts applying civil plain-error review "must proceed with the utmost caution, limiting the doctrine strictly to those extremely rare cases where exceptional circumstances require its application to prevent a manifest miscarriage of justice." Id . at 121, 679 N.E.2d 1099.

2. Application of plain-error review in juvenile-delinquency proceedings

{¶ 42} In 1962, this court recognized that juvenile proceedings were civil, not criminal, in nature. Cope v. Campbell , 175 Ohio St. 475, 196 N.E.2d 457 (1964), paragraph one of the syllabus. In Cope , a juvenile court adjudicated a minor delinquent for an act of malicious entry and committed him to the Ohio State Reformatory. "The Juvenile Court did not provide [the juvenile] with legal counsel; it did not advise him of his constitutional rights prior to the hearing; and it did not inform him that he could have an attorney to represent him if he so wished." Id . at 476, 196 N.E.2d 457. On appeal, the juvenile alleged that former R.C. 2151.35(E), which allowed a juvenile court, under certain conditions, to commit a delinquent juvenile to the reformatory "without an indictment or a jury trial," violated the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Id. at 477, 196 N.E.2d 457. The court rejected this argument, concluding that "the whole import of the section implie[d] protection for the minor and not punishment." Id.

{¶ 43} However, not long after Cope was decided, the United States Supreme Court recognized that juveniles are entitled to certain constitutional protections in juvenile-delinquency proceedings. See Kent v. United States , 383 U.S. 541, 555, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966) ("While there can be no doubt of the original laudable purpose of juvenile courts, studies and critiques in recent years raise serious questions as to whether actual performance measures well enough against theoretical purpose to make tolerable the immunity of the process from the reach of constitutional guaranties applicable to adults"). In Kent , the court held that a hearing on a juvenile court's waiver of jurisdiction is a critically important stage in juvenile proceedings, so the hearing must "measure up to the essentials of due process and fair treatment." Id. at 562, 86 S.Ct. 1045. Since Kent , the Supreme Court has determined that juveniles should be afforded other protections afforded to adult criminal offenders. See, e.g., In re Gault , 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (juvenile is entitled to notice of charges, assistance of counsel, the right against self-incrimination, the right of confrontation, and the right of cross-examination); In re Winship , 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (the state must prove its case against a juvenile beyond a reasonable doubt); Breed v. Jones , 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975) (holding that a delinquency proceeding places a juvenile in jeopardy for purposes of the Double Jeopardy Clause).

{¶ 44} We have also recognized that "there are criminal aspects to juvenile court proceedings." In re Anderson , 92 Ohio St.3d 63, 66, 748 N.E.2d 67 (2001). For instance, we acknowledged in Anderson that the United States Supreme Court had specifically held in Gault that the privilege against self-incrimination, the notice of the charges, the assistance of counsel, and the rights of confrontation and cross-examination are to be afforded to juveniles. Id . We have also recognized that " 'civil labels and good intentions do not themselves obviate the need for criminal due process safeguards in juvenile courts,' " because a proceeding in which the issue is whether a child is delinquent and subject to the loss of his liberty for years is comparable in seriousness to a felony prosecution. In re Cross , 96 Ohio St.3d 328, 2002-Ohio-4183, 774 N.E.2d 258, ¶ 22, quoting Winship at 365-366, 90 S.Ct. 1068.

{¶ 45} "Just as we cannot ignore the criminal aspects inherent in juvenile proceedings for purposes of affording certain constitutional protections, we also cannot ignore the criminality inherent in juvenile conduct that violates criminal statutes." State v. Walls , 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 26, citing former R.C. 2151.02(A), now R.C. 2152.02(E)(1) (defining "delinquent child" as a child who commits an act that would be a crime if committed by an adult).

{¶ 46} Responding to Kent and Gault , the General Assembly enacted former R.C. 2151.01, Am.Sub.H.B. No. 320, 133 Ohio Laws, Part II, 2040, as well as other changes in Ohio's juvenile laws, in 1969. See Willey, Ohio's Post-Gault Juvenile Court Law , 3 Akron L.Rev. 152 (1970). That statute mandated that the statutes in R.C. Chapter 2151 should be liberally construed to promote certain purposes. Those purposes included providing for the "care, protection, and mental and physical development of children" subject to the chapter, former R.C. 2151.01(A), 133 Ohio Laws, Part II, at 2041; protecting the public's interest in "removing the consequences of criminal behavior and the taint of criminality from children" and substituting "a program of supervision, care, and rehabilitation," former R.C. 2151.01(B), id .; accomplishing those goals by leaving the child in a "family environment" unless the child's "welfare or * * * the interests of public safety" required otherwise, former R.C. 2151.01(C), id .; and providing procedures that ensured a fair hearing and that juveniles' constitutional and other legal rights were recognized and enforced, former R.C. 2151.01(D), id .

{¶ 47} The General Assembly revised these statements regarding delinquency proceedings when it enacted R.C. 2152.01 in 2000. While the "overriding purposes" for delinquency dispositions continued to be for "the care, protection, and mental and physical development of children," the legislature amended the statute to acknowledge the additional purposes of protecting "the public interest and safety," of holding the delinquent accountable, and of restoring the victim and rehabilitating the delinquent. R.C. 2152.01(A). Dispositions imposed under the delinquency statutes are to be "reasonably calculated to achieve the overriding purposes" of R.C. 2152.01 but must also be "commensurate with and not demeaning to the seriousness of the * * * conduct and its impact on the victim, and consistent with dispositions for similar acts committed by similar delinquent children." R.C. 2152.01(B).

{¶ 48} While we continue to characterize juvenile proceedings as civil rather than criminal in nature, State v. Hand , 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448, ¶ 15, citing Anderson , 92 Ohio St.3d at 65, 748 N.E.2d 67, and In re C.S. , 115 Ohio St.3d 267, 2007-Ohio-4919, 874 N.E.2d 1177, ¶ 40, the criminal aspect of delinquency proceedings is undeniable. To apply the plain-error doctrine in a juvenile-delinquency case only if an error "seriously affects the basic fairness, integrity, or public reputation of the judicial process," Goldfuss , 79 Ohio St.3d 116, 679 N.E.2d 1099, at syllabus, is inconsonant with the legislative purpose of R.C. 2152.01.

{¶ 49} Our jurisprudence requires that protections afforded adult criminal defendants, when appropriate, be extended to juveniles who stand in equal jeopardy of having their liberties taken. The protection of individual liberty should never depend on an individual's ability to prove that the error affected the fairness of the whole judicial process in order to seek redress. That is too great a burden to bear. To hold otherwise erodes the "pragmatism and * * * understanding of [the] modern realities" of delinquency proceedings, which we have long recognized. In re C.S. at ¶ 75. Therefore, we are persuaded that the plain-error standard that we apply in criminal proceedings should apply when errors that are not preserved arise in juvenile-delinquency proceedings.

{¶ 50} We now turn our attention to Morgan's second proposition of law, asserting that there is no burden upon a juvenile to prove prejudice when a juvenile court fails to appoint a GAL as mandated by statute. We disagree.

{¶ 51} In the past, we have been faced with the question whether this court would recognize a "presumed prejudicial" plain-error standard and we have declined to do so. "We have never recognized the hybrid type of plain error * * * that is presumptively prejudicial and is reversible error per se." Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, at ¶ 24. An expansion of Crim.R. 52(B), without justification, would upset the careful balancing of the need to encourage trial participants to seek a fair and accurate trial the first time against an insistence that any obvious injustice be promptly redressed. Id. at ¶ 24. In the end, "our holdings should foster rather than thwart judicial economy by providing incentives (and not disincentives) for the defendant to raise all errors in the trial court-where, in many cases, such errors can be easily corrected."

State v. Perry , 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 23. There is nothing about the issue before us that compels us to deviate from these holdings and, therefore, we again decline to recognize a "presumed prejudicial" plain-error standard.

{¶ 52} There is no doubt that an obvious error occurred when the juvenile court failed to appoint a GAL for Morgan at the amenability hearing. However, showing that an error occurred is not enough. Morgan also has the burden to prove that the error affected the outcome of the proceeding, that is, that he would not have been bound over to the adult court.

{¶ 53} Morgan was represented by counsel at all stages of the bindover process. Counsel advocated against bindover by specifically directing the court's attention to the findings of Dr. Bergman's report. Morgan's mother was present at all the hearings, except the amenability hearing, and prior to her death, she had participated in the completion of the social-background section of the court-ordered psychological examination. At the time of the amenability hearing, all that remained was an opportunity for a presentation of arguments for or against bindover and for the court to announce its judgment.

{¶ 54} As Morgan's counsel admitted at oral argument, some of the information a GAL would have provided at the amenability hearing might have been duplicative of what was already before the court. Morgan also speculates in his brief about how a GAL and counsel might give conflicting support to a juvenile: if a juvenile wanted bindover in hopes of receiving a community-control sanction in an adult court, counsel would be obligated to advocate for the juvenile's wishes, while the GAL would be free to argue that remaining in the juvenile court was in the child's best interest. But speculation cannot prove prejudice. St. Paul Mercury Ins. Co. v. Natl. Sur. Corp., N.D.W.Va. No. 1:14-cv-45, 2015 WL 222477, *6 (Jan. 14, 2015) (a party "must prove prejudice with specific facts and cannot rely on speculation"). This is particularly true here, when Morgan did not argue that counsel was ineffective for arguing against bindover and community-control sanctions would not have been available to Morgan because he was convicted of firearm specifications, which carried a mandatory term of incarceration.

{¶ 55} Our decision today should not be interpreted as diminishing the need for or the role of parents or GALs in delinquency proceedings. While the juvenile court should have appointed a GAL as the law mandates, and we caution juvenile courts to strictly adhere to the letter of the law, we cannot find that Morgan met his burden of proof that he was prejudiced by the juvenile court's error in not appointing a GAL on the facts of this case. Because criminal plain-error review applies to unpreserved errors that occur in a juvenile-delinquency proceeding, and because a showing of prejudice is required, we decline to address Morgan's alternative resolution to the second proposition of law.

IV. Conclusion

{¶ 56} When a juvenile whose parents are deceased, appears at an amenability hearing, the juvenile is not required to ask for the appointment of a GAL; a GAL must be appointed. R.C. 2151.281(A)(1) and Juv.R. 4(B)(1). A juvenile court errs when it fails to appoint a GAL when a juvenile appears at an amenability hearing with no parent. If the juvenile does not object, the error is subject to the criminal plain-error standard of review and the juvenile must show that the error affected the outcome of the proceeding. Because Morgan did not make this showing, we affirm the judgment of the court of appeals.

Judgment affirmed.

O'Donnell, Fischer, and DeWine, JJ., concur.

O'Connor, C.J., dissents, with an opinion joined by French and O'Neill, JJ.

O'Connor, C.J., dissenting.

{¶ 57} I agree with the majority that "a juvenile is not required to ask for the appointment of a [guardian ad litem ('GAL') ] when the juvenile appears at an amenability hearing and has no parent." Majority opinion at ¶ 30. I also agree that "[t]here is no doubt that an obvious error occurred when the juvenile court failed to appoint a GAL for Morgan at the amenability hearing." Majority opinion at ¶ 51. But I disagree with the majority's application of the criminal plain-error standard of review for the purported protection of the juvenile offender when the result is to remove important protections. And it is particularly troubling that the majority uses this case, in which the parties have not raised the issue, see majority opinion at ¶ 34, to generally hold that "criminal plain-error review applies to unpreserved errors that occur in a juvenile-delinquency proceeding," majority opinion at ¶ 54.

{¶ 58} The majority claims that the criminal plain-error standard of review is appropriate in juvenile-delinquency cases because it would be "too great a burden" to meet the civil plain-error standard, which requires proof that "the error affected the fairness of the whole judicial process in order to seek redress." Majority opinion at ¶ 48. But the standard that the majority has imposed is unattainable.

{¶ 59} To meet the criminal plain-error standard here, the majority requires Morgan to prove a specific prejudice: that the outcome of the amenability hearing would have been different. The majority faults Morgan for speculating about the outcome if a court had approved a GAL, stating that "speculation cannot prove prejudice,"

majority opinion at ¶ 53, before concluding, based on its own speculation, that a GAL would not have changed the result of the hearing. This approach sets the bar so high that it is difficult to imagine a successful plain-error challenge to a court's failure to appoint a GAL.

{¶ 60} In adult criminal proceedings, a plain error that affects substantial rights is reviewable by an appellate court if not objected to at trial. Crim.R. 52(B). And the majority is correct that we have interpreted "a plain error that affects substantial rights" to mean an error that affected the outcome of the trial. This standard is particularly appropriate in the typical plain-error scenario in which a criminal defendant seeks to challenge an evidentiary ruling or a jury issue that he or she did not object to at trial, and the court can readily evaluate whether the result of the proceeding would be the same if the error had not occurred. This approach also comports with the purpose behind the plain-error limitation; that is, it is a recognition of counsel's duty "to exercise diligence and to aid the court, rather than by silence mislead the court into commission of error." State v. Driscoll , 106 Ohio St. 33, 39, 138 N.E. 376 (1922).

{¶ 61} But this is not a situation in which counsel's (or Morgan's) silence misled the court. As the majority notes, the statute mandates that a GAL be appointed to protect a child without a parent regardless of whether a GAL is requested. And this is not a situation in which the alleged error relates to an evidentiary ruling or something affecting the jury deliberations, when the court can look to the other evidence in the case to determine whether the guilty verdict would have been otherwise.

{¶ 62} The GAL serves a specific role in the juvenile-delinquency proceeding: "to protect the interest of a child." R.C. 2151.281(A). If that role is not filled as required by the General Assembly, we cannot presume that the court has considered the child's best interest. The failure to appoint a GAL is particularly troublesome in the amenability-hearing context, in which the juvenile-court judge must investigate the child's social history, education, family situation, "and any other factor bearing on whether the child is amenable to juvenile rehabilitation." R.C. 2152.12(C). Thus, whether the obvious error here affected Morgan's substantial rights deserves a different analysis than that applied in the adult criminal context, or even that applied in other aspects of a juvenile-delinquency proceeding not before us.

{¶ 63} The plain-error doctrine "is founded upon considerations of fairness to the court and to the parties and of the public interest in bringing litigation to an end after fair opportunity has been afforded to present all issues of law and fact." United States v. Atkinson , 297 U.S. 157, 159, 56 S.Ct. 391, 80 L.Ed. 555 (1936). But those considerations weigh differently in the adult criminal context than in the context of a juvenile court's failure to appoint a GAL, like in this case, when the child offender has lost both parents, including one parent just prior to the amenability hearing at issue. In this context, asking the child offender to step into the role of the GAL to prove a different outcome offends considerations of fairness. Here, by being denied a GAL, Morgan has not had a fair opportunity to present all issues of fact in the amenability hearing.

{¶ 64} The United States Supreme Court has specifically declined to limit appellate review to only those plain errors that affect the outcome of the criminal case. United States v. Olano , 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). In Olano , the court explained that "in most cases," the requirement that the plain error affect substantial rights "means that the error must have been prejudicial." (Emphasis added.) Id. at 734, 113 S.Ct. 1770. But it noted:

There may be a special category of forfeited errors that can be corrected regardless of their effect on the outcome, but this issue need not be addressed. Nor need we address those errors that should be presumed prejudicial if the defendant cannot make a specific showing of prejudice. Normally, although perhaps not in every case , the defendant must make a specific showing of prejudice to satisfy the "affecting substantial rights" prong of [Fed.R.Civ.P.] 52(b).

(Emphasis added.) Id. at 735, 113 S.Ct. 1770.

{¶ 65} In contrast to today's majority opinion, in an opinion concurring in judgment only in In re D.S. , 148 Ohio St.3d 390, 2016-Ohio-7369, 71 N.E.3d 223, the justice who authors today's decision would have applied a criminal plain-error standard of review to vacate the juvenile's admission of guilt "[b]ecause an admission in a juvenile-delinquency proceeding under Juv.R. 29 'is analogous to a guilty plea made by an adult.' " Id . at ¶ 28, quoting In re Hall , 9th Dist. Summit No. 20658, 2002 WL 388905. Without discussing the effect on the outcome of the case, that opinion concluded that the error was reversible "to prevent a manifest injustice" because there was a mutual mistake of law regarding whether the juvenile was entitled to credit for time already served in detention, a mistake that was material to whether he entered his admission of guilt knowingly, intelligently, and voluntarily. Id. at ¶ 40.

{¶ 66} Similarly, in this case, there was a mistake of law by the juvenile-court judge and both sides' counsel about the need for a GAL to be appointed. And a manifest injustice occurred: Morgan was denied his statutory right to have a GAL present to protect and act in his best interest. But here, the majority is willing to look past this manifest injustice to impose a higher standard: "Morgan also has the burden to prove that the error affected the outcome of the proceeding, that is, that he would not have been bound over to the adult court." Majority opinion at ¶ 51.

{¶ 67} This double standard is particularly troubling here because, unlike the similarity between a juvenile admission and an adult guilty plea, which the concurrence recognized in D.S. , there is no adult equivalent to an amenability hearing. It is purely a juvenile-court proceeding. And although the outcome of the proceeding has serious and adult-punitive consequences, it is an outcome left entirely to the juvenile-court judge's discretion after consideration of, among other things, whether the child is emotionally, physically, or psychologically mature enough for the transfer. R.C. 2152.12(D) and (E). It is impossible to know how a judge's discretionary considerations might be affected by hearing from a GAL regarding the child offender's circumstance. As the appellate court recognized, "[W]e have no way of knowing what a guardian would have argued because one was not appointed." 2014-Ohio-5661, 2014 WL 7274036, ¶ 25. In fact, neither does Morgan. Asking Morgan to prove otherwise raises serious fairness concerns.

{¶ 68} Indeed, juvenile proceedings are fundamentally different than adult criminal ones. Although it is true that there are criminal aspects of juvenile-delinquency proceedings, courts have consistently found juvenile-court proceedings to be "civil in nature" and extended criminal-law protections only when they act as just that-protections. In re Anderson , 92 Ohio St.3d 63, 66, 748 N.E.2d 67 (2001), citing In re Gault , 387 U.S. 1, 29-30, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Accordingly, courts have determined that juveniles are entitled to certain constitutional safeguards, including procedures and rights guaranteed to adult criminal defendants. See Kent v. United States , 383 U.S. 541, 562, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966) ; In re Winship , 397 U.S. 358, 367-368, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (applying reasonable-doubt standard to juvenile offenders); Gault at 41, 87 S.Ct. 1428 (recognizing juveniles' right to counsel in certain juvenile proceedings); State v. Walls , 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 26 ("numerous constitutional safeguards normally reserved for criminal prosecutions are equally applicable to juvenile delinquency proceedings"). Today's majority decision reinforces the criminal aspects of juvenile proceedings, not for the purpose of safeguarding a juvenile's constitutional rights, but to limit appellate review of juvenile proceedings. The exercise is misguided and ultimately, intended or not, serves to further limit the efficacy of the juvenile-justice system in rehabilitating child offenders.

{¶ 69} It is important to note that juvenile proceedings are still governed by Ohio's Rules of Juvenile Procedure, which contain no analogous provision to Crim.R. 52(B). In the context of civil litigation, which has no analogous provision to Crim.R. 52(B), we have recognized that the plain-error doctrine "may be applied only in the extremely rare case involving exceptional circumstances where error, to which no objection was made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the judicial process, thereby challenging the legitimacy of the underlying judicial process itself." Goldfuss v. Davidson , 79 Ohio St.3d 116, 679 N.E.2d 1099 (1997), syllabus.

{¶ 70} Here, the "obvious error" recognized by the majority seriously affected the basic fairness, integrity, and public reputation of the judicial process when the juvenile court conducted the amenability hearing without a GAL. An amenability hearing "must measure up to the essentials of due process and fair treatment." Kent at 562, 86 S.Ct. 1045. The General Assembly has, in enacting R.C. 2151.281, specifically recognized that children do not assume the burden of representing their own best interest. That is true whether the proceeding is a juvenile adjudication or a neglect or abuse determination.

{¶ 71} The juvenile system, as established by the General Assembly, does not require Morgan to advocate for himself. Thus, it is fundamentally unfair to demand that after losing both parents in short succession, Morgan not only have the maturity and legal shrewdness to request that a GAL be appointed, but then, on appeal, and without speculation, develop a post hoc record of what the GAL would have presented on his behalf. Because the juvenile court's failure to appoint a GAL was an obvious error that seriously affected the basic fairness, integrity, and reputation of the judicial process, I would vacate Morgan's conviction and remand the cause for the juvenile court to conduct a proper amenability hearing after the appointment of a GAL.

French and O'Neill, JJ., concur in the foregoing opinion.

      R.C. 2151.011 was revised effective April 6, 2017. The subdivisions cited here were renumbered, but the language was not changed.

      The child's attorney is tasked with representing the child's wishes, which may, but not always will, align with the child's best interest. See Sup.R. 48(D)(7). For this reason, the GAL's role is distinct from others in a juvenile-delinquency proceeding. The Rules of Superintendence for the Courts of Ohio recognize that a conflict may arise between the child's wishes and the child's best interest and describe a GAL's duties in more detail. Sup.R. 48(D). Those obligations include:
      (1) A guardian ad litem shall represent the best interest of the child for whom the guardian is appointed. Representation of best interest may be inconsistent with the wishes of the child whose interest the guardian ad litem represents.
      * * *
      (13) A guardian ad litem shall make reasonable efforts to become informed about the facts of the case and to contact all parties. In order to provide the court with relevant information and an informed recommendation as to the child's best interest, a guardian ad litem shall, at a minimum, do the following, unless impracticable or inadvisable because of the age of the child or the specific circumstances of a particular case:
      (a) Meet with and interview the child and observe the child with each parent, * * * and conduct at least one interview with the child where none of these individuals is present;
      * * *
      (c) Ascertain the wishes of the child;
      * * *
      (g) Interview school personnel, medical and mental health providers, child protective services workers and relevant court personnel and obtain copies of relevant records;
      (h) Recommend that the court order psychological evaluations, mental health and/or substance abuse assessments, or other evaluations or tests of the parties as the guardian ad litem deems necessary or helpful to the court; and
      (i) Perform any other investigation necessary to make an informed recommendation regarding the best interest of the child.

      The Ohio plain-error rule mirrors the language in the federal rules. Compare Fed.R.Crim.P. 52(B) and Crim.R. 52(B). See also State v. Long , 53 Ohio St.2d 91, 96, 372 N.E.2d 804 (1978) (noting that the court has followed federal precedents in applying Crim.R. 52(B) since its adoption).


source: Caselaw Access Project

author: O'Connor, C.J.

license: Public Domain

text:
    The STATE of Ohio, Appellant, v. PAIGE, Appellee.
    No. 2016-1848
    Supreme Court of Ohio.
    Submitted December 5, 2017 Decided March 7, 2018
    Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Frank Romeo Zeleznikar and Kerry Sowul, Assistant Prosecuting Attorneys, for appellant.
    Mark A. Stanton, Cuyahoga County Public Defender, and Paul A. Kuzmins, Assistant Public Defender, for appellee.
   O'Connor, C.J.

{¶ 1} In this appeal, we review a sentence consisting of community-control sanctions, including a community-residential sanction, imposed for one offense, to run concurrently with a prison term imposed for a separate offense. We conclude that the concurrent term of community control was proper but that the residential-sanction portion of the sentence was not authorized by statute. Accordingly, we reverse the judgment of the Eighth District Court of Appeals.

RELEVANT BACKGROUND

{¶ 2} Appellee, Michael T. Paige, pleaded guilty to one count each of sexual battery, abduction, and domestic violence. For sentencing purposes, the trial court merged the sexual-battery and abduction counts, and the state elected to proceed with sentencing on the sexual-battery count.

{¶ 3} On the sexual-battery count, the trial court sentenced Paige to serve a 42-month prison term, minus jail-time credit, followed by five years of mandatory postrelease control. On the domestic-violence count, the court sentenced Paige to five years of community-control supervision. The community-control sentence included several conditions, including that upon his release from prison for the sexual-battery count, Paige must return to the county jail for assessment and transfer to a community-based correctional facility ("CBCF"). As additional conditions of the community-control sentence, the trial court ordered Paige to successfully complete an anger-management program and prohibited him from having contact with the victim while on community control. The trial court also imposed three years of mandatory postrelease control and classified Paige as a Tier III sex offender.

{¶ 4} On appeal to the Eighth District Court of Appeals, Paige asserted the following assignment of error:

The trial court erred in [imposing] a sentence, which included both a prison term and community control sanctions at the same time, and where the community control sanctions continued after the completion of the prison sentence, which also included additional confinement in CBCF.

(Brackets sic.) 2016-Ohio-7615, 2016 WL 6575332, ¶ 1. The appellate court agreed and vacated the sentence on the domestic-violence count. It concluded that because Paige was ordered to serve a portion of the community-control sentence in prison and a portion upon release in a CBCF, the sentence on the domestic-violence count was a "split sentence" not permitted by statute. Id. at ¶ 8.

{¶ 5} We accepted jurisdiction over the state's discretionary appeal. 150 Ohio St.3d 1407, 2017-Ohio-6964, 78 N.E.3d 908.

ANALYSIS

{¶ 6} Split sentences are prohibited in Ohio. Generally, pursuant to the felony-sentencing statutes, a court must impose either a prison term or a community-control sanction as a sentence for a particular felony offense-a court cannot impose both for a single offense. State v. Anderson , 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, ¶ 31. The trial court complied with that rule here by imposing a prison sentence on the sexual-battery count and, separately, a five-year period of community control on the domestic-violence count. Thus, the trial court did not impose a split sentence.

{¶ 7} Paige argues, however, that the "effective sentence" on the domestic-violence count is both a prison term and community-control supervision because the prison term is "incorporated" into the term of community control as a result of the concurrently running sentences on each offense. The court of appeals also seemed to view the sentences on each offense together when it concluded that "by making the community control sentence longer than that imposed for the sexual battery count, the trial court imposed a split sentence for the domestic violence count, which is prohibited." 2016-Ohio-7615, 2016 WL 6575332, at ¶ 10.

{¶ 8} We have been clear that the "sentencing package" doctrine, by which federal courts may consider multiple offenses as a whole and impose an overarching sentence, is not applicable in Ohio's state courts, and "appellate courts may not utilize the doctrine when reviewing a sentence or sentences." State v. Saxon , 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 10. Thus, the court of appeals erred to the extent that it considered the sentences for each offense together as a whole. The only task before us is to determine whether the community-control sentence imposed on the domestic-violence count was proper.

{¶ 9} We agree with the state that the mere fact that the sentences on each offense were to run concurrently does not mean that the community-control sentence imposed on the domestic-violence count included a prison term. The prison term was imposed on the sexual-battery count, and a period of community-control supervision was imposed separately on the domestic-violence count. This complies with our recent decision in Anderson .

{¶ 10} Additionally, nothing in the sentencing statutes requires the duration of a community-control sanction to match that of a concurrent prison term. The only applicable requirement is that "[t]he duration of all community control sanctions imposed upon an offender under this division shall not exceed five years." R.C. 2929.15(A)(1). Thus, we do not accept the appellate court's conclusion that the length of the community-control sentence resulted in an improper split sentence here.

{¶ 11} However, the trial judge specifically ordered, as part of the community-control sentence imposed on the domestic-violence count, that Paige be placed in a CBCF upon completion of the prison term imposed on the sexual-battery count. Paige argues that this constitutes an improper consecutive term of imprisonment.

{¶ 12} Notably, the state concedes that the trial court erred when it ordered Paige's placement in a CBCF upon his release from prison. R.C. 2929.41(A) provides that a "prison term, jail term, or sentence of imprisonment shall be served concurrently with any other prison term, jail term, or sentence of imprisonment imposed" unless a statutory exception applies. (Emphasis added.) Pursuant to R.C. 1.05(A), "imprisonment" includes a term in a CBCF. Thus, a term of confinement in a CBCF is a "sentence of imprisonment" under R.C. 2929.41(A).

{¶ 13} A confinement term in a CBCF is a permissible community-residential sanction for certain felony offenders pursuant to R.C. 2929.16(A)(1). But here, none of the statutory exceptions in R.C. 2929.41(A) apply to permit the CBCF term to run consecutively to the prison term imposed on the sexual-battery count. State v. Anderson , 2016-Ohio-7044, 62 N.E.3d 229, ¶ 16 (8th Dist.) ; see also State v. Barnhouse , 102 Ohio St.3d 221, 2004-Ohio-2492, 808 N.E.2d 874 (concluding that because the General Assembly expressly provided statutory exceptions to the general rule that sentences of imprisonment must be run concurrently and because jail sentences did not qualify as an exception under R.C. 2929.41(A), jail sentences may not be imposed consecutively). Accordingly, the trial court had no statutory authority to order, as part of the community-control sanction, that Paige be placed in a CBCF after his completion of the separate prison term. Judges must impose only those sentences provided for by statute. Anderson , 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, at ¶ 12. Thus, the trial court's imposition of a CBCF term as a community-control sanction, to be served consecutively to a prison term imposed on a separate offense, was improper.

{¶ 14} We turn, then, to the remedy. The state asserts that the proper remedy is to vacate only the improperly imposed residential sanction and leave the remaining conditions of the community-control sentence intact. We agree with this approach here. Under R.C. 2929.15(A)(1), a court may impose on a felony offender who is not required to serve a mandatory prison term one or more community-control sanctions authorized by statute. Here, the trial court imposed a five-year period of community-control supervision with a number of conditions, including completion of anger-management training, a no-contact order, and placement in a CBCF (as discussed above). Because vacating the improperly imposed CBCF term does not disturb the remainder of the community-control sentence, we conclude that the proper remedy is to vacate only that portion of the community-control sentence.

CONCLUSION

{¶ 15} Accordingly, we reverse the judgment of the Eighth District Court of Appeals and reinstate the sentence imposed on the domestic-violence count except for the condition requiring Paige's placement in a CBCF upon his release from prison, which we vacate.

Judgment reversed, and sentence vacated in part and reinstated in part.

O'Donnell, Kennedy, French, Fischer, DeWine, and Rice, JJ., concur.

Cynthia W. Rice, J., of the Eleventh District Court of Appeals, sitting for O'Neill, J.


author: O'Donnell, J.

text:
    PORTAGE COUNTY BOARD OF DEVELOPMENTAL DISABILITIES, Appellant, v. PORTAGE COUNTY EDUCATORS' ASSOCIATION FOR DEVELOPMENTAL DISABILITIES, Appellee.
    No. 2017-0696
    Supreme Court of Ohio.
    Submitted January 24, 2018 Decided April 25, 2018
    Ronald J. Habowski, Aurora, for appellant.
    Green, Haines, Sgambati Co., L.P.A., Ira J. Mirkin, Charles W. Oldfield, Youngstown, and Danielle L. Murphy, for appellee.
   O'Donnell, J.

{¶ 1} The Eleventh District Court of Appeals certified that its judgment in this case, which holds that the standard of review for appellate courts reviewing a trial court decision vacating an arbitration award is de novo, conflicts with the judgments in Cleveland State Univ. v. Fraternal Order of Police, Ohio Labor Council, Inc. , 2015-Ohio-4772, 50 N.E.3d 285 (8th Dist.), and In re Hamilton v. Internatl. Union of Operating Engineers, Local 20 , 2016-Ohio-5565, 69 N.E.3d 1253 (12th Dist.), which hold that the proper standard is abuse of discretion, and as a result, the appellate court certified the following question to us pursuant to Article IV, Section 3(B)(4) of the Ohio Constitution and App.R. 25 :

What standard of review governs appellate review of a decision by the court of common pleas confirming, modifying, vacating, or correcting an arbitration award?

{¶ 2} When reviewing a trial court's decision to confirm, modify, vacate, or correct an arbitration award, an appellate court should accept findings of fact that are not clearly erroneous but should review questions of law de novo. In conformity with our resolution of the certified question, we recognize that the court of appeals conducted a proper de novo review of the trial court's decision in this case that vacated the arbitration award, reversed its decision, reinstated the arbitration award, and therefore we affirm its judgment.

Facts and Procedural History

{¶ 3} Patricia Byttner is a member the Portage County Educators' Association for Developmental Disabilities, and that organization is a party to a collective bargaining agreement with the Portage County Board of Developmental Disabilities.

{¶ 4} In November 2008, the board hired Byttner to fill the position of "Account Clerk 1" in its transportation department. This position required that Byttner perform bookkeeping, secretarial, and clerical duties. Although it was not part of her job description, during her interview for the position, Byttner agreed that she would substitute as a bus driver or aide in emergency situations.

{¶ 5} In August 2012, Byttner's supervisor, Jennifer Weaver, directed her to fill in as a bus aide. Byttner refused, and told Weaver that she could not squat down or secure wheelchairs on the bus due to pending scheduled knee surgery, and further stated that her job description did not require her to perform bus aide duties.

{¶ 6} Approximately two months later, the board unilaterally amended her job description and required her to serve as a vehicle operator or vehicle attendant as needed.

{¶ 7} The association subsequently filed a grievance on her behalf asserting that the board had misinterpreted the collective bargaining agreement by selectively changing Byttner's job description to include driving or acting as an attendant on a bus even though that duty was not included in any other clerical position. The board denied the grievance, and the association requested binding arbitration.

{¶ 8} Following a hearing, the arbitrator found that the board violated the collective bargaining agreement when it arbitrarily added the additional duty to the Account Clerk 1 classification and therefore directed the board to remove that duty from Byttner's job description. The arbitrator also determined, however, that Byttner could not arbitrarily renege on her commitment to serve as a bus driver or aide on limited occasions, but also recognized that the board had an obligation to evaluate her ability to serve as a substitute bus driver or aide if she offered documentation establishing that she was medically unable to periodically substitute.

{¶ 9} Thereafter, the board filed a motion in the common pleas court to vacate the arbitration award, and the association filed a motion to confirm it. The trial court granted the board's motion based on R.C. 2711.10(D) because it had determined that the arbitrator departed from the essence of the collective bargaining agreement and exceeded his powers and authority.

{¶ 10} The Eleventh District Court of Appeals reversed the trial court and reinstated the arbitration award. It stated that it had reviewed "the trial court's decision de novo to determine whether any of the limited grounds contained in R.C. 2711.10 regarding a motion to vacate exist," and it held that "the trial court erred in finding that the arbitrator exceeded his authority in imposing reasonable limits that he drew from the essence of the parties' Agreement." 2017-Ohio-888, 86 N.E.3d 580, ¶ 13, 46.

{¶ 11} The court certified that its judgment conflicts with Cleveland State , 2015-Ohio-4772, 50 N.E.3d 285, ¶ 12, and In re Hamilton , 2016-Ohio-5565, 69 N.E.3d 1253, ¶ 12, where the courts of appeal concluded that the standard of review for an appellate court reviewing a trial court decision confirming or vacating an arbitration award is abuse of discretion.

{¶ 12} We determined that a conflict exists and agreed to resolve the matter. 150 Ohio St.3d 1406, 2017-Ohio-6964, 78 N.E.3d 907.

Positions of the Parties

{¶ 13} Initially, in its brief filed in this court, the board argued that the abuse of discretion standard of review best aligns with a public policy that favors arbitration. However, in its reply brief and at oral argument, it urged the question of whether an arbitrator exceeded authority is a question of fact and that an appellate court should accept a trial court's finding that an arbitrator exceeded his authority unless it is clearly erroneous.

{¶ 14} The association, on the other hand, asserts that an appellate court should conduct a de novo review of a trial court's judgment vacating an arbitration award because Ohio law does not grant a trial court any discretion when determining whether to confirm, vacate, or modify an arbitration award. It noted that nine of Ohio's appellate districts and the Supreme Court of the United States, applying an analogous federal statutory provision, have concluded that the proper standard of review is de novo. The association also contends that de novo review comports with Ohio's public policy favoring arbitration and that it ensures trial courts do not substitute their judgment for that of the arbitrator.

Issue

{¶ 15} We recognize that the question regarding the standard of appellate review regarding a trial court decision confirming, modifying, vacating, or correcting an arbitration award is a matter of first impression for this court.

Law and Analysis

Ohio Appellate Courts

{¶ 16} All 12 appellate districts in Ohio have addressed this question: nine have applied a de novo standard, and three have utilized abuse of discretion in these situations.

{¶ 17} Those that apply the de novo standard include: H.C. Nutting Co. v. Midland Atlantic Dev. Co., L.L.C. , 2013-Ohio-5511, 5 N.E.3d 125, ¶ 10 (1st Dist.) ; Kettering Health Network v. CareSource , 2d Dist. Montgomery No. 27233, 2017-Ohio-1193, 2017 WL 1193798, ¶ 10 ; Northwest State Community College v. Northwest State Community College Edn. Assn., OEA/NEA , 2016-Ohio-8393, 79 N.E.3d 1127, ¶ 33 (3d Dist.) ; Adams Cty./Ohio Valley Local School v. OAPSE/AFSCME, Local 572 , 2017-Ohio-6929, 94 N.E.3d 937 (4th Dist.) ; Massillon City School Dist. Bd. of Edn. v. Massillon Edn. Assn., OEA/NEA , 2014-Ohio-3197, 17 N.E.3d 56, ¶ 23 (5th Dist.) ; Bowden v. Weickert , 6th Dist. Sandusky No. S-05-009, 2006-Ohio-471, 2006 WL 259642, ¶ 51 ; Creatore v. Robert W. Baird & Co. , 154 Ohio App.3d 316, 2003-Ohio-5009, 797 N.E.2d 127, ¶ 8 (7th Dist.) ; Lauro v. Twinsburg , 9th Dist. Summit No. 23711, 2007-Ohio-6613, 2007 WL 4322559, ¶ 9 ; and the present case, 11th Dist. Portage No. 2016-P-0032, 2017-Ohio-888, 86 N.E.3d 580, ¶ 13 (11th Dist.).

{¶ 18} The appellate districts employing abuse of discretion as the standard are reported in Cleveland State , 2015-Ohio-4772, 50 N.E.3d 285, ¶ 12 (8th Dist.), Dodge v. Dodge , 2017-Ohio-7087, 95 N.E.3d 820, ¶ 19 (10th Dist.), and In re Hamilton , 2016-Ohio-5565, 69 N.E.3d 1253, ¶ 12 (12th Dist.).

Statutory Review

{¶ 19} R.C. 2711.13 provides: "After an award in an arbitration proceeding is made, any party to the arbitration may file a motion in the court of common pleas for an order vacating, modifying, or correcting the award * * *." In reviewing a motion to vacate an arbitration award, courts are bound by R.C. 2711.10, which states:

In any of the following cases, the court of common pleas shall make an order vacating the award upon the application of any party to the arbitration if:
(A) The award was procured by corruption, fraud, or undue means.
(B) There was evident partiality or corruption on the part of the arbitrators, or any of them.
(C) The arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced.
(D) The arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

{¶ 20} In Cedar Fair, L.P. v. Falfas , 140 Ohio St.3d 447, 2014-Ohio-3943, 19 N.E.2d 893, ¶ 5, we stated that R.C. 2711.10 is "substantively equivalent" to 9 U.S.C. 10, a provision of the Federal Arbitration Act, and "we have often used federal law in aid of our application of the statute," Cedar Fair at ¶ 5.

National Judicial Perspective

{¶ 21} In First Options of Chicago, Inc. v. Kaplan , 514 U.S. 938, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995), where the Third Circuit Court of Appeals had used the de novo standard to review a district court's denial of a motion to vacate a commercial arbitration award under 9 U.S.C. 10, the Supreme Court affirmed its decision and concluded that appellate review "should proceed like review of any other district court decision finding an agreement between parties, e.g. , accepting findings of fact that are not 'clearly erroneous' but deciding questions of law de novo ," id. at 947-948, 115 S.Ct. 1920. In rejecting an argument that an abuse of discretion standard applied, the Supreme Court noted that "courts grant arbitrators considerable leeway when reviewing most arbitration decisions; but that fact does not mean that appellate courts should give extra leeway to district courts that uphold arbitrators." (Emphasis sic.) Id. at 948, 115 S.Ct. 1920.

{¶ 22} In addition, state supreme courts that have recently reviewed this question have announced standards that parallel the First Options standard, i.e., when reviewing an arbitrator's award, an appellate court should accept findings of fact that are not clearly erroneous and review questions of law de novo. See Vold v. Broin & Assocs., Inc. , 2005 S.D. 80, 699 N.W.2d 482, ¶ 10 ("In examining a circuit court's order vacating an arbitration award, we review the court's findings of fact under the clearly erroneous standard, but decide questions of law de novo");

Richey v. Autonation, Inc. , 60 Cal.4th 909, 918, 182 Cal.Rptr.3d 644, 341 P.3d 438 (2015), fn. 1 ("As the Court of Appeal recognized, the question whether the arbitrator exceeded his powers and thus whether we should vacate his award on that basis is generally reviewed on appeal de novo").

{¶ 23} We concur with the standard set forth in First Options and followed by other state supreme courts that have considered this question. When reviewing a trial court's decision to confirm, modify, vacate, or correct an arbitration award, appellate courts are to accept findings of fact that are not clearly erroneous but decide questions of law de novo.

{¶ 24} In the instant matter, the trial court vacated the arbitration award pursuant to R.C. 2711.10(D), after it determined that the arbitrator had exceeded his powers and authority. In reversing the trial court, the court of appeals conducted a de novo review of the trial court's decision and concluded that the trial court erred in finding that the arbitrator had exceeded his authority.

{¶ 25} Applying our standard of accepting findings of fact that are not clearly erroneous, but reviewing questions of law de novo, we conclude the appellate court properly applied a de novo review of the trial court's decision because "[t]he question whether an arbitrator has exceeded his authority is a question of law," Green v. Ameritech Corp. , 200 F.3d 967, 974 (6th Cir.2000).

Conclusion

{¶ 26} Accordingly, we answer the conflict question as follows: when reviewing a decision of a common pleas court confirming, modifying, vacating, or correcting an arbitration award, an appellate court should accept findings of fact that are not clearly erroneous but decide questions of law de novo. In this case, the court of appeals properly reviewed the trial court's judgment, and therefore we affirm its judgment.

Judgment affirmed.

O'Connor, C.J., and Kennedy, French, Sadler, Fischer, and DeWine, JJ., concur.

Lisa L. Sadler, J., of the Tenth District Court of Appeals, sitting for O'Neill, J.


author: Per Curiam.

text:
    The STATE EX REL. GADELL-NEWTON v. HUSTED et al.
    No. 2018-0563
    Supreme Court of Ohio.
    Submitted May 8, 2018 Decided May 11, 2018
    Fitrakis & Gadell-Newton, L.L.C., Columbus, and Robert J. Fitrakis, for relator.
    Michael DeWine, Attorney General, and Steven T. Voigt and Renata Y. Staff, Assistant Attorneys General, for respondent Secretary of State Jon Husted.
    Ronald J. O'Brien, Franklin County Prosecuting Attorney, and Timothy A. Lecklider, Assistant Prosecuting Attorney, for respondent Franklin County Board of Elections.
    Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Brendan R. Doyle, Assistant Prosecuting Attorney, for respondent Cuyahoga County Board of Elections.
   Per Curiam.

{¶ 1} In this expedited election case, relator, Constance Gadell-Newton, seeks a writ of mandamus to compel respondents, Ohio Secretary of State Jon Husted, the Franklin County Board of Elections, and the Cuyahoga County Board of Elections, to preserve digital ballot images created by voting equipment used in the May 8, 2018 primary election. We dismiss the complaint for lack of jurisdiction.

I. Background

{¶ 2} Franklin County employs two voting systems. It uses optical-scan paper ballots for six categories of voters: those using absentee ballots to vote by mail, provisional voters, qualified 17-year-old voters, hospitalized voters, nursing-home residents voting by absentee ballots, and election-day voters who request to vote using paper ballots in lieu of voting on a machine. The county processes these ballots using DS850 digital scanners. A paper ballot is fed into the scanner, which reads the ballot and tabulates the votes. The Cuyahoga County Board of Elections uses DS850 high-speed scanners for all absentee ballots (in-person and mail-in) and DS200 digital scanners for ballots cast at polling places on election day.

{¶ 3} According to the evidence submitted by Gadell-Newton in this case, a DS850 scanner works by creating a digital image of each paper ballot that it scans. The scanner's software then uses the digital image to interpret the vote and generate a cast-vote record ("CVR"). The scanner accumulates the votes represented by the CVRs to create vote totals for each candidate and issue. The DS850 stores the ballot image and the CVR as separate, retrievable files.

{¶ 4} Gadell-Newton was a candidate for the Green Party nomination for election as governor of Ohio. On April 10, 2018, Gadell-Newton's counsel sent letters to the Franklin and Cuyahoga County boards of elections in which counsel asserted that the digital ballot images are public records within the meaning of Ohio's Public Records Act, R.C. 149.43, and must therefore be preserved. Counsel also alleged that the boards of elections had a duty under 52 U.S.C. 20701 to preserve the ballot images for a minimum of 22 months following a federal election. Counsel demanded "written documentation that you have instructed your staff to comply with the legal requirement to preserve all election materials and data, including digital ballot images." On the same day, counsel sent a letter to Secretary Husted demanding that the secretary instruct county elections officials to preserve all digital ballot images.

{¶ 5} The recipients did not answer the letters. Therefore, on April 19, Gadell-Newton filed the instant complaint for a writ of mandamus. As in the letters, she alleged that digital ballot images are public records that under R.C. 149.351(A) may not be removed, destroyed, or disposed of and that elections officials are under an affirmative duty, imposed by 52 U.S.C. 20701, to preserve these records. In her prayer for relief, she requested "[a] judgment or order that digital ballot images are public records" and "[a] writ of mandamus ordering Respondents to preserve all digital ballot images from the May 8, 2018 Primary Election." Pursuant to S.Ct.Prac.R. 12.08(A), the case was automatically expedited because it was filed within 90 days of the May 8 election.

II. Legal Analysis

{¶ 6} To be entitled to a writ of mandamus, a party must establish, by clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the respondent to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth , 131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6, 13. With respect to the second element, Gadell-Newton alleges the existence of a duty arising under both federal and state law.

{¶ 7} 52 U.S.C. 20701 provides:

Every officer of election shall retain and preserve, for a period of twenty-two months from the date of any general, special, or primary election of which candidates for the office of * * * Member of the Senate [or] Member of the House of Representatives * * * are voted for, all records and papers which come into his possession relating to any application, registration, payment of poll tax, or other act requisite to voting in such election * * *. Any officer of election or custodian who willfully fails to comply with this section shall be fined not more than $1,000 or imprisoned not more than one year, or both.

Gadell-Newton contends that digital ballot images are "records * * * relating to any * * * other act requisite to voting in such election," 52 U.S.C. 20701, and must therefore be preserved for 22 months.

{¶ 8} As for the state-law duty she seeks to enforce, Gadell-Newton cites R.C. 149.351(A), which provides that all records of a public office "are the property of the public office concerned and shall not be removed, destroyed, mutilated, transferred, or otherwise damaged or disposed of, in whole or part." She contends that the digital ballot images constitute records of a public office and must therefore not be destroyed.

{¶ 9} In her complaint, Gadell-Newton seeks a declaratory judgment that "digital ballot images are public records." As a general rule, a writ of mandamus will not issue when there is a plain and adequate remedy in the ordinary course of the law. R.C. 2731.05. However, "where declaratory judgment would not be a complete remedy unless coupled with extraordinary relief in the nature of a mandatory injunction, the availability of declaratory judgment does not preclude a writ of mandamus." (Emphasis added.) State ex rel. Arnett v. Winemiller , 80 Ohio St.3d 255, 259, 685 N.E.2d 1219 (1997). If the allegations of a complaint indicate that the real objects sought are a declaratory judgment and a prohibitory injunction, then the complaint does not state a claim in mandamus and must be dismissed for lack of jurisdiction. State ex rel. Grendell v. Davidson , 86 Ohio St.3d 629, 634, 716 N.E.2d 704 (1999).

{¶ 10} The difference between the two forms of relief is simple: "a prohibitory injunction is used to prevent a future injury, but a mandatory injunction is used to remedy past injuries." State ex rel. Gen. Motors Corp. v. Indus. Comm. , 117 Ohio St.3d 480, 2008-Ohio-1593, 884 N.E.2d 1075, ¶ 12. The court distinguishes between the two by "examining the complaint to determine whether it actually seeks to prevent, rather than compel, official action." State ex rel. Evans v. Blackwell , 111 Ohio St.3d 437, 2006-Ohio-5439, 857 N.E.2d 88, ¶ 20 ; see also State ex rel. Smith v. Indus. Comm. , 139 Ohio St. 303, 306, 39 N.E.2d 838 (1942) ("The functions of an injunction are ordinarily to restrain motion and enforce inaction, while those of mandamus are to set in motion and to compel action").

{¶ 11} Gadell-Newton characterizes this action as one to compel affirmative action by forcing the boards of elections to preserve digital ballot images that will otherwise be lost, whereas Secretary Husted presents the case as an effort to enjoin the boards of elections from destroying images that will otherwise continue to exist. The complaint invokes both scenarios:

Respondents have been and will be violating Ohio and federal public records laws by instructing or allowing election officials and workers under their supervision to destroy all digital ballot images following the election.
Respondents have been and will be violating Ohio and federal public records laws by failing to instruct election officials and workers under their supervision to preserve all digital ballot images following the election.

Elsewhere in the complaint, however, Gadell-Newton makes clear that the problem, from her perspective, is that in previous elections, the boards of elections have allowed their employees to "destroy all digital ballot images following the election." The fact that it requires an affirmative act to eliminate the ballot images is confirmed by Gadell-Newton's proffered expert witness, Dr. Thomas W. Ryan, who decries the harm to election integrity caused by "deleting" ballot images. The affidavit from Michael M. Dvorak, an employee of Elections Systems & Software, is consistent with this conclusion: "encrypted ballot images temporarily stored on Franklin County's DS850's internal memory are cleared each time a different ballot type is scanned, such as when provisional ballots are scanned following the scanning of absentee ballots."

{¶ 12} There is no evidence or allegation that the digital ballot images will disappear if left alone, with no affirmative actions taken to preserve them. The converse is true: the images will be destroyed only by affirmative actions that Gadell-Newton seeks to block. This scenario is similar to other situations in which we have dismissed a purported mandamus complaint for lack of jurisdiction. See, e.g. , State ex rel. Esarco v. Youngstown City Council , 116 Ohio St.3d 131, 2007-Ohio-5699, 876 N.E.2d 953, ¶ 10-12 (mandamus claim alleging that city had an affirmative duty to remove invalid charter amendment from the ballot sought a prohibitory injunction); State ex rel. Beane v. Dayton , 112 Ohio St.3d 553, 2007-Ohio-811, 862 N.E.2d 97, ¶ 29 (dismissing mandamus claim that sought to compel city to comply with newly enacted statute because it actually sought an injunction to prevent the city from following preenactment law).

{¶ 13} Stated differently, and as noted above, the difference between a request for a writ of mandamus in the nature of a mandatory injunction (over which this court has original jurisdiction) and a request for a writ of mandamus in the nature of a prohibitory injunction (over which it does not) is temporal. Gadell-Newton is attempting to prevent an injury that has not yet occurred but that she anticipates will occur. That is the function of a prohibitory injunction.

Gen. Motors Corp. , 117 Ohio St.3d 480, 2008-Ohio-1593, 884 N.E.2d 1075, at ¶ 12. The relief she seeks is not within our original jurisdiction to grant.

III. Conclusion

{¶ 14} Because we lack subject-matter jurisdiction over this case, we dismiss the complaint and we decline to answer the substantive questions presented, i.e., whether digital ballot images fall within the scope of the Public Records Act or the federal document-preservation statute.

Cause dismissed.

O'Connor, C.J., and Kennedy, French, and DeGenaro, JJ., concur.

Fischer, J., concurs in judgment only.

O'Donnell, J., dissents, with an opinion.

DeWine, J., not participating.

O'Donnell, J., dissenting.

{¶ 15} Respectfully, I dissent from the analysis presented in the majority opinion. Relator, Constance Gadell-Newton, filed a complaint on April 19, 2018, with respect to the primary election held on May 8, 2018. The complaint seeks two forms of recovery: one, a judgment from this court declaring that the digital ballot images are public records; the other, independent of the first claim, an order compelling respondents to preserve and not destroy all digital ballot images from the May 8, 2018 primary election.

{¶ 16} The complaint fails as to each cause of action for different reasons: the first, asking us to issue a declaratory judgment fails because we lack authority to do so; the other, seeking an order to preserve the digital images, fails because Gadell-Newton has delayed in seeking the relief and is guilty of laches. Accordingly, I would dismiss the request for a declaratory judgment and deny the claim for preservation of the records.

{¶ 17} The Ohio Constitution prescribes the jurisdiction of this court. Article IV, Section 2(B)(1) of the Ohio Constitution states that this court shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition, procedendo, any cause on review as may be necessary to its complete determination, and all matters relating to the practice of law.

{¶ 18} Nowhere is there authority for this court to issue a declaratory judgment. Rather, that authority is the province of trial courts of general jurisdiction in this state, and we have on numerous occasions stated so and declined to issue such judgments, see, e.g. , State ex rel. Governor v. Taft , 71 Ohio St.3d 1, 2, 640 N.E.2d 1136 (1994) ;

State ex rel. Ministerial Day Care Assn. v. Zelman , 100 Ohio St.3d 347, 2003-Ohio-6447, 800 N.E.2d 21, ¶ 22 ; State ex rel. Whitehead v. Sandusky Cty. Bd. of Commrs. , 133 Ohio St.3d 561, 2012-Ohio-4837, 979 N.E.2d 1193, ¶ 19.

{¶ 19} The concept of laches, the negligent delay in presenting a matter to a court, is often a basis for dismissal of a cause of action. See, e.g. , State ex rel. SuperAmerica Group v. Licking Cty. Bd. of Elections , 80 Ohio St.3d 182, 186-187, 685 N.E.2d 507 (1997) ; State ex rel. Chillicothe v. Ross Cty. Bd. of Elections , 123 Ohio St.3d 439, 2009-Ohio-5523, 917 N.E.2d 263, ¶ 18-19 ; State ex rel. Duclos v. Hamilton Cty. Bd. of Elections , 145 Ohio St.3d 254, 2016-Ohio-367, 48 N.E.3d 543, ¶ 13-14.

{¶ 20} Here, it is apparent from the complaint that Gadell-Newton knew of the alleged destruction of digital ballot images long ago: indeed, as the majority points out, "Gadell-Newton makes clear that the problem, from her perspective, is that in previous elections, the boards of elections have allowed their employees to 'destroy all digital ballot images following the election.' " Majority opinion at ¶ 11.

{¶ 21} But instead of presenting the matter to the court in a timely manner, Gadell-Newton delayed until April 19, 2018, just 19 days prior to the election, and has unnecessarily delayed seeking relief.

{¶ 22} Apart from the analysis offered in the majority opinion as to prohibitory and mandatory injunctions, the relief Gadell-Newton seeks is precluded by laches.

Conclusion

{¶ 23} I would dismiss the request for a declaratory judgment because this court is without authority to grant such relief, and I would deny relief on the claim to preserve the digital ballot images on the basis of laches.

      All other Franklin County voters-electors who vote in person at their polling place on election day or who vote using an in-person absentee ballot at the early-voting center-use Election Systems & Software iVotronic electronic-voting machines.


text:
    [The STATE EX REL.] JOHNSON, Appellant, v. KRAL, Appellee.
    No. 2017-0969
    Supreme Court of Ohio.
    Submitted December 5, 2017 Decided June 21, 2018
    Tyrone R. Johnson, pro se.
    Adam W. Loukx, Toledo Director of Law, and Jeffrey B. Charles, Assistant Director of Law, for appellee.
   Per Curiam.

{¶ 1} Appellant, Tyrone R. Johnson, appeals the decision of the Sixth District Court of Appeals dismissing the complaint for a writ of mandamus that he filed against appellee, George Kral, Chief of Police of the Toledo police department. We affirm the judgment of the court of appeals.

{¶ 2} In his complaint, Johnson alleged that on August 25, 2000, Lucas County Court of Common Pleas Judge Charles Wittenberg granted a motion for the return from the Toledo police department of property to him in the amount of $324. Rather than comply with the order, the police department allegedly deposited the money "into the Lucas County Treasury." Johnson requested a writ of mandamus compelling Chief Kral and the police department to return the $324 and to award him compensatory and punitive damages.

{¶ 3} On June 27, 2017, the court of appeals dismissed the complaint sua sponte.

{¶ 4} A writ of mandamus will not issue if the relator has a plain and adequate remedy in the ordinary course of the law. State ex rel. Blandin v. Beck , 114 Ohio St.3d 455, 2007-Ohio-4562, 872 N.E.2d 1232, ¶ 18. Based on the allegations in the complaint, Johnson has two separate remedies that preclude the issuance of a writ of mandamus.

{¶ 5} Johnson alleged that the police department has not complied with a trial-court order directing a return of the property. If that allegation is true, then a motion for contempt for the failure to abide by a court order is an adequate remedy in the ordinary course of the law. State ex rel. Weaver v. Adult Parole Auth. , 116 Ohio St.3d 340, 2007-Ohio-6435, 879 N.E.2d 191, ¶ 6. In addition, he has an adequate remedy by filing an action for replevin. Blandin at ¶ 18 ; State ex rel. Harris v. Toledo , 74 Ohio St.3d 36, 38, 656 N.E.2d 334 (1995). "The proper action to reclaim possession of property based on unlawful seizure or detention is an action for replevin." State ex rel. Jividen v. Toledo Police Dept. , 112 Ohio App.3d 458, 459, 679 N.E.2d 34 (6th Dist.1996). Dismissal of the complaint was therefore proper, because Johnson failed to state a claim in mandamus.

Judgment affirmed.

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, and DeWine, JJ., concur.

DeGenaro, J., not participating.


text:
    The STATE EX REL. SMITH, Appellant, v. SCHWEITZER, Warden, Appellee.
    No. 2017-1331
    Supreme Court of Ohio.
    Submitted January 23, 2018 Decided June 28, 2018
    Herbert Allen Smith, pro se.
    Michael DeWine, Attorney General, and Jerri L. Fosnaught, Assistant Attorney General, for appellee.
   Per Curiam.

{¶ 1} Appellant, Herbert Allen Smith, appeals the dismissal of his petition for a writ of habeas corpus that he filed against appellee, Thomas Schweitzer, warden of the Lebanon Correctional Facility, where Smith is incarcerated. We affirm.

Background

{¶ 2} In 1977, Smith was convicted of kidnapping and was sentenced to 5 to 15 years in prison. On August 3, 1981, he was released on parole. While under supervision, he committed a new felony. Between December 2, 1981, and May 7, 1991, he was a parole violator at large. On October 17, 1994, Smith pleaded guilty to one count of robbery. The common pleas court judge sentenced him to 6 to 15 years' imprisonment. The sentencing entry did not indicate whether this term was to be served concurrently with or consecutively to the time remaining on his kidnapping sentence.

{¶ 3} Smith received parole a second time in 2005 and escaped detention. He remained at large for the next six years, until he was returned to confinement in September 2012.

{¶ 4} On May 22, 2017, Smith filed a petition for a writ of habeas corpus against Schweitzer, alleging that Smith had now served more than 15 years on his robbery sentence and was therefore entitled to immediate release. Smith asserted that he had also completed his sentence on the original kidnapping charge because, he said, the two sentences had run concurrently, and the Department of Rehabilitation and Correction has no authority to alter a prison sentence.

{¶ 5} On August 29, 2017, the Twelfth District Court of Appeals granted Schweitzer's motion to dismiss, concluding that Smith was not entitled to immediate release because his sentences ran consecutively by operation of law. Smith appealed.

Analysis

{¶ 6} Smith claims that he is entitled to a writ of habeas corpus because he has served more than 16 years' imprisonment on a 15-year prison sentence. He blames the department for unilaterally extending his sentence by running his two terms consecutively without judicial authority. The first issue to resolve, then, is whether the two sentences were consecutive or concurrent.

{¶ 7} In 1994, when Smith received his second sentence, the Revised Code stated:

A sentence of imprisonment shall be served consecutively to any other sentence of imprisonment, in the following cases:
* * *
(3) When it is imposed for a new felony committed by a probationer, parolee, or escapee.

Former R.C. 2929.41(B), Sub.H.B. No. 51, 142 Ohio Laws, Part I, 1875, 1885. Because Smith was on parole when he reoffended, his sentences ran consecutively by operation of the statute, even though the sentencing entry was silent. See, e.g., State ex rel. Thompson v. Kelly , 137 Ohio St.3d 32, 2013-Ohio-2444, 997 N.E.3d 498, ¶ 8-10 (holding that consecutive sentences for offenses committed while on parole were mandatory under statute then in effect); see also Richards v. Eberlin , 7th Dist. Belmont No. 04-BE-1, 2004-Ohio-2636, ¶ 10 (same).

{¶ 8} Based on this law, it is clear that the department did not change Smith's sentence or aggregate his sentences on its own initiative. The court of appeals correctly denied the petition for a writ of habeas corpus.

Judgment affirmed.

O'Connor, C.J., and O'Donnell, Kennedy, French, Fischer, and DeWine, JJ., concur.

DeGenaro, J., not participating.