Oral Argument Preview: Does a Juvenile Need to Show Prejudice When the Court Fails to Appoint a Guardian Ad Litem? State of Ohio v. Raymond Morgan

Read the analysis of the oral argument here.

On February 8, 2017, the Supreme Court of Ohio will hear oral argument in the case of State of Ohio v. Raymond Morgan, 2015-0924. At issue in this case is whether a juvenile court committed reversible error when failing to appoint a Guardian Ad Litem for an amenability hearing.

Case Background

In February of 2012, Raymond Morgan (“Morgan”) was involved in a string of crimes near Columbus, Ohio. Morgan was sixteen years old when he faced allegations of delinquency in juvenile court for these offenses. Had these crimes been committed by an adult, they would have been considered felonies. Based on this, the state moved to transfer the case to the Franklin County Court of Common Pleas and to try Morgan as an adult.

Before the amenability hearing to determine whether Morgan would be bound over, he had a disagreement with his appointed counsel. In June of 2012, Morgan requested new counsel, but this request was denied.

Morgan’s father was not present at any of the juvenile proceedings because he died  a few weeks before the offenses were committed. Morgan’s mother had regularly been attending the proceedings, but she died in October 2012.

The amenability hearing occurred on October 24, 2012. Morgan’s attorney was present, but there was not a parent, guardian, or other legal custodian present on his behalf. A “godsister” was at the amenability hearing and asked to be pointed out to the court, but her name is absent from the record. She never assumed guardianship of Morgan in any official capacity. Despite being aware of Morgan’s familial situation, the court did not appoint a Guardian Ad Litem (“GAL”), nor did Morgan request one.

For the hearing, a psychological evaluation was conducted on Morgan by Dr. Barbara Bergman. Based on her findings, Dr. Bergman found that Morgan was amenable to care within the juvenile system, and recommended to the court that Morgan not be transferred to adult court. However, the court chose to transfer anyway, given the severity and “egregious nature” of the gun violence crime spree.

After the case was transferred, Morgan was indicted on thirteen counts. He pled guilty to one count of burglary, two counts of felonious assault, and one count of robbery, with accompanying firearm specifications. He was sentenced to a total of 18 years in prison.

Morgan appealed, asserting that it was reversible error for the court not to appoint a GAL at the amenability hearing. In a unanimous decision authored by Judge Luper Shuster, joined by Judges Brown and Sadler, the Tenth District Court of Appeals agreed that it was error to fail to appoint a GAL. But while acknowledging that some appellate districts have found that an appellant need not object to the failure to appoint a GAL to warrant reversal, the Tenth District believed plain error to be the proper standard where an appellant never requested a GAL. Since Morgan never requested a GAL, he would have to show prejudice to warrant reversal, and the appeals court found that he did not. The case was reversed and remanded on sentencing issues unrelated to this appeal.

Votes to Accept the Case

This appeal was originally turned down, but accepted on reconsideration on the first two propositions of law only.

Yes: Justice O’Neill, as to all propositions of law. Chief Justice O’Connor and Justices Lanzinger and French on the first and second propositions only.

No: Justices Pfeifer, O’Donnell and Kennedy.

Key Precedent and Statutes

Ohio Juv.R. 4(B)(1) (If a child is without parents or a legal guardian, then the court must appoint a GAL.)

Prof.Cond.R. 1.2 (An attorney is bound to represent his or her client’s expressed interests.)

Sup.R. 48 (Outlines the requirements and obligations owed by court appointed GALs.)

R.C. 2151.281(A)(1) (“The court shall appoint a GAL, subject to rules adopted by the supreme court, 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.”)

R.C. 2152.12(B) (Juvenile court may transfer case involving an alleged delinquent child if that child was at least fourteen years of age, and the crime would be a felony offense if committed by an adult.)

In re Gault, 387 U.S. 1 (1967) (Holding that children, like adults, are entitled to due process and fair treatment.)

State v. Barnes, 94 Ohio St.3d 21 (2002) (Plain error requires a three-prong showing: (1) an error, (2) that was “plain” or “obvious,” and (3) that this error affected “substantial rights,” affecting the outcome of the proceedings. These errors should only be recognized in order to “prevent a manifest miscarriage of justice.”)

In re D.R.B., 2015-Ohio-3346 (8th Dist.) (Rejected plain-error analysis. Due to the mandatory nature of the statute, no objection is necessary for reversible error when a court failed to appoint a GAL.)

State v. D.W., 2012-Ohio-4544 (“Procedural protections are vital” during transfer proceedings. One of these protection is the amenability hearing, which is critical stage of juvenile court proceeding and is rooted in federal due process protections.)

Kent v. U.S., 383 U.S. 541 (1966) (While courts are given discretion regarding transfer proceedings, this does not “confer upon the Juvenile Court a license for arbitrary procedure.” Juveniles still retain fundamental guarantees of fair treatment and due process.)

State v. Perry, 2004-Ohio-297 (Structural errors are “constitutional defects” in the “framework” of the trial proceedings that are considered to be “per se prejudicial.” These errors are rarely found, and there is a strong presumption against such a finding when an individual is represented by counsel.)

Morgan’s Argument

The appeals court must be reversed, whether using a plain error or a structural error analysis.

To ensure fairness in the proceedings, a juvenile court must appoint a GAL to protect a child’s interest when the parents are unable to do so. The job of a lawyer and of a GAL are different—a lawyer must represent the child’s stated interest, while a GAL must protect the child’s best interest.

The Tenth District erroneously required a showing of prejudice when conducting its plain-error review. Prejudice ought to be presumed given the mandatory nature of R.C. 2151.281(A)(1) and Ohio Juv.R. 4(B)(1). The burden was on the juvenile court to appoint a GAL. It is inconsistent with In re Gault to hold that failure against Morgan.

Since the law is a requirement on the court, the moment the court became aware of Morgan’s familial situation, a GAL should have been appointed. This duty does not fall to Morgan or his attorney at the time.

Morgan stressed that requiring prejudice when a GAL is not appointed is an impossible standard to meet. Even the Tenth District chose not to speculate what a GAL would have done to affect the hearing. This weight on the outcome of the proceedings is misplaced. A greater priority should be put on the integrity of the framework enacted to protect the rights of juveniles. Failure to appoint a GAL is a fatal flaw sufficient for reversal, because procedural arbitrariness undermines the system as a whole.

Alternatively, Morgan argues that failure to appoint a GAL was so egregious that it amounted to structural error. Structural error occurs when procedures have been violated that affect the validity and framework of the proceeding. Such an error is automatically reversible and is not subject to the same limitations as plain-error review.

The state’s argument, that presuming prejudice would open the floodgates to gamesmanship, is misplaced. If R.C. 2151.281(A)(1) were enforced, there would be no opportunity for gamesmanship because pursuant to the law, the court would appoint a GAL. This point would be mooted by simply following the laws prescribed by our General Assembly.

Morgan reiterated the importance of procedural protections and fundamental fairness. These equitable considerations are why prejudice should not be required in instances of GAL appointment error, and why the Tenth District should be reversed.

State’s Argument

The state argues that because Morgan did not request a GAL, the appeal can only be reviewed under a plain error standard. And there is no such thing as presumptively prejudicial error in plain error review. Second, the GAL error as alleged falls short of a structural error.

Even though the court failed to provide a GAL, Morgan’s interests were adequately represented even without one. Dr. Bergman recommended amenability, Morgan’s attorney also sought to prevent Morgan from being bound over, and Morgan’s “godsister” was present for support during the hearing. The duties of a GAL were sufficiently covered during this crucial juvenile proceeding.  Furthermore, a juvenile has no personal or due process right to a GAL in a delinquency proceeding. A GAL’s duties are owed to the court, not to the juvenile. A juvenile’s right to parental involvement in juvenile proceedings do not transfer or carry over to a GAL.

Furthermore, Morgan misinterprets plain-error review in his argument. Plain error should be utilized with the utmost caution, to prevent a manifest miscarriage of justice. The court has never recognized and should continue to reject any special presumed prejudice plain error rule for GAL errors. To find per se prejudice is contrary to plain-error review and the policy rationale behind it. There cannot be “plain error per se.”

Morgan’s structural argument is similarly deficient. In order for an error to be structural, it must be constitutional, and a GAL appointment is not a constitutional right. Furthermore, these errors are subject to plain-error review if they have not been properly preserved, which did not occur in this case. It thwarts judicial economy and undermines the rationale in offering a limited error review. Allowing automatic reversal in these instances only serves to promote gamesmanship.

Morgan failed to preserve the GAL error and has also failed to demonstrate any prejudice resulting from this error. To allow presumptive prejudice would be inappropriate and inconsistent with Ohio precedent. Therefore, the Tenth District should be affirmed.

Morgan’s Proposed Proposition of Law No. 1

A child does not need to request a GAL in the absence of his parents, guardian, or legal custodian at a juvenile court hearing

Morgan’s Proposed Proposition of Law No. 2

A child 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.

Student Contributor: Jefferson Kisor

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