State v. Morgan (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

v. Morgan, Slip Opinion No. 2017-Ohio-7565.]

NOTICE

This slip opinion is subject to formal revision before it is published in an

advance sheet of the Ohio Official Reports. Readers are requested to

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65

South Front Street, Columbus, Ohio 43215, of any typographical or other

formal errors in the opinion, in order that corrections may be made before

the opinion is published.

SLIP OPINION NO. 2017-OHIO-7565

THE STATE OF OHIO, APPELLEE, v. MORGAN, APPELLANT.

[Until this opinion appears in the Ohio Official Reports advance sheets, it

may be cited as State v. Morgan, Slip Opinion No. 2017-Ohio-7565.]

Juvenile procedure—R.C. 2151.281—Juv.R. 4—Appointment of guardian ad

litem—Juvenile court’s error in failing to appoint a guardian ad litem

during amenability hearing is subject to criminal plain-error standard of

review—Juvenile is required to show that any error in failing to appoint a

guardian ad litem affected the outcome of the proceeding.

(No. 2015-0924—Submitted February 8, 2017—Decided September 13, 2017.)

APPEAL from the Court of Appeals for Franklin County, No. 13AP-620,

2014-Ohio-5661.

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)

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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

a felonious assault 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

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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

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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 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

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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, ¶ 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,

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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).

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{¶ 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.

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{¶ 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.

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2151.011(B)(11)1 (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, ¶ 33; In re Anderson, 5th Dist.

Tuscarawas No. 2001AP030021, 2002-Ohio-776, ¶ 14; In re Jerry W., 6th Dist.

1

R.C. 2151.011 was revised effective April 6, 2017. The subdivisions cited here were renumbered,

but the language was not changed.

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Erie No. E-98-042, 1999 WL 575823, *5 (Aug. 6, 1999); In re A.F., 8th Dist.

Cuyahoga No. 91251, 2008-Ohio-5479, ¶ 19. The remaining districts—the Second,

Third, Fourth, Fifth, Seventh, 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, ¶ 7 (civil); In re

Forbess, 3d Dist. Auglaize No. 2-09-20, 2010-Ohio-2826, ¶ 31 (criminal); In re

Gibson, 3d Dist. Allen No. 1-06-24, 2006-Ohio-5145, ¶ 9 (civil); In re Lower, 4th

Dist. Highland No. 06CA31, 2007-Ohio-1735, ¶ 13 (criminal); In re D.G., 4th Dist.

Ross Nos. 13CA3382 and 13CA3383, 2014-Ohio-650, ¶ 21 (civil); In re C.S., 7th

Dist. Columbiana No. 09-CO-7, 2010-Ohio-867, ¶ 22 (criminal); In re A.K., 7th

Dist. Belmont No. 14 BE 54, 2016-Ohio-351, ¶ 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-Ohio-1107, ¶ 14 (civil); In re B.P.K., 10th

Dist. Franklin No. 12AP-343, 2012-Ohio-6166, ¶ 15 (criminal); Morgan, 10th Dist.

Franklin No. 13AP-620, 2014-Ohio-5661 (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, ¶ 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

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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

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).

{¶ 35} However, the adoption of Crim.R. 52(B), which became effective

July 1, 1973, altered that practice. Wolery at 327. 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

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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.

{¶ 36} 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,

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.

{¶ 37} 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 criminal rule of 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.

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{¶ 38} 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, 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.

{¶ 39} 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. 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.

{¶ 40} 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

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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.

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

{¶ 41} 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. 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. The

court rejected this argument, concluding that “the whole import of the section

implie[d] protection for the minor and not punishment.” Id.

{¶ 42} 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

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important stage in juvenile proceedings, so the hearing must “measure up to the

essentials of due process and fair treatment.” Id. at 562. 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).

{¶ 43} 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.

{¶ 44} “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

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{¶ 45} 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.

{¶ 46} 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).

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{¶ 47} 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.

{¶ 48} 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.

{¶ 49} 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.

{¶ 50} 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

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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.

{¶ 51} 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.

{¶ 52} 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.

{¶ 53} 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

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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.

{¶ 54} 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

{¶ 55} 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.

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O’CONNOR, C.J., dissents, with an opinion joined by FRENCH and O’NEILL,

JJ.

_________________

O’CONNOR, C.J., dissenting.

{¶ 56} 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.

{¶ 57} 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.

{¶ 58} 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

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January Term, 2017

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.

{¶ 59} 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).

{¶ 60} 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.

{¶ 61} The GAL serves a specific role in the juvenile-delinquency

proceeding: “to protect the interest of a child.” R.C. 2151.281(A).2 If that role is

2

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:

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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.

{¶ 62} 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).

(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.

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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.

{¶ 63} 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. 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).3

(Emphasis added.) Id. at 735.

3

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).

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{¶ 64} 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-Ohio-1107. 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.

{¶ 65} 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.

{¶ 66} 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

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January Term, 2017

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, ¶ 25. In fact, neither does Morgan. Asking

Morgan to prove otherwise raises serious fairness concerns.

{¶ 67} 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 (1996); 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 (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.

{¶ 68} 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

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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.

{¶ 69} 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. 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.

{¶ 70} 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.

_________________

Ron O’Brien, Franklin County Prosecuting Attorney, and Seth L. Gilbert,

Assistant Prosecuting Attorney, for appellee.

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January Term, 2017

Timothy Young, Ohio Public Defender, and Charlyn Bohland, Assistant

Public Defender, for appellee.

_________________

27