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[Cite as In re Kirby, 101 Ohio St.3d 312, 2004-Ohio-970.]


IN RE KIRBY.
[Cite as In re Kirby, 101 Ohio St.3d 312, 2004-Ohio-970.]
Juvenile court -- Adjudicatory hearing -- Juvenile in Ohio does not have a
constitutional right to enter an Alford plea -- Juv.R. 29, construed and
applied.
(No. 2003-0189 -- Submitted October 21, 2003 -- Decided March 17, 2004.)
APPEAL from the Court of Appeals for Clinton County, No. CA2002-03-015,
2002-Ohio-6881.
O'DONNELL, J.
{1} Gary Lee Kirby, a juvenile, appeals from the appellate court's
decision affirming the judgment of the Warren County juvenile court, which
found him delinquent, based upon conduct that, if committed by an adult, would
have resulted in convictions for two counts of rape of a child under the age of 13
(R.C. 2907.02[A][1][b]).
{2} Kirby has maintained that he is innocent of any wrongdoing. He
complains on appeal that he had attempted to admit to less serious charges,
pursuant to an agreement with the prosecuting attorney, but that the juvenile court
magistrate refused to accept his admission to lesser charges because he failed to
admit to any facts that would form the basis for a finding of delinquency.
{3} Kirby argues that the magistrate should have accepted his proposed
admission in accordance with North Carolina v. Alford (1970), 400 U.S. 25, 91
S.Ct. 160, 27 L.Ed.2d 162. In Alford, the court determined that an adult charged
with criminal conduct could both enter a guilty plea to a charge and
simultaneously maintain his innocence. Kirby seeks to have us accord juveniles
the right to enter such Alford pleas. After full consideration, however, we have
concluded that material differences exist between adult and juvenile court

SUPREME COURT OF OHIO
proceedings and that Ohio bars juvenile offenders from simultaneously admitting
to criminal conduct and maintaining their innocence. Accordingly, we affirm the
judgment of the court of appeals.
I
{4} The record before us reflects that in June 2000, 11-year-old Gary
Kirby accompanied his parents to visit his half-sister, Heather, who needed a
babysitter for her grandmother and her five-year-old son. While there, Kirby
watched television on a bed in Heather's bedroom together with her son and her
nine-year-old niece. When the girl began to fall off the bed, Kirby caught her,
touching her breast. She left the room to tell Kirby's mother what he had done to
her. At that time, Kirby allegedly performed fellatio on Heather's five-year-old
son and had the boy perform fellatio on him.
{5} Upon investigation of these matters, Patrolman J. Slyder signed a
delinquency complaint in juvenile court alleging that Kirby had committed two
counts of rape, in violation of R.C. 2907.02(A)(1). In addition, Kirby faced an
allegation of gross sexual imposition, in violation of R.C. 2907.05(A)(4).
{6} Kirby denied these allegations and has maintained throughout
these proceedings that he did not do any of the things of which he is accused.
{7} When the matter came before the juvenile court for an adjudicatory
hearing, a court magistrate initially ruled the five-year-old competent to testify.
At that point, defense counsel for Kirby and the prosecutor informed the court that
they had reached a negotiated case resolution whereby Kirby would admit to one
count of gross sexual imposition and one count of attempted sexual imposition.
{8} The magistrate then asked Kirby for his version of what had
occurred. Kirby stated that he and the others simply watched a movie and played
outside. Because Kirby made no admission of culpability, the magistrate
concluded that no factual basis existed for his admission. Defense counsel argued
that Kirby should be allowed to enter an Alford plea to reduced charges,
2

January Term, 2004
explaining that, after considering the seriousness of the charges and the risk of an
adverse outcome, his client and his client's mother agreed to the negotiated
resolution.
{9} The magistrate explained that Kirby need not admit the facts as
alleged in the case, but that he must admit to some facts that constituted an
offense. The magistrate therefore treated Kirby's refusal to admit the allegations
as a denial, rejected the proposed resolution, and conducted an adjudicatory
hearing on the merits of the charges, pursuant to Juv.R. 29.
{10} At the conclusion of the evidence, the magistrate dismissed the
gross sexual imposition charge but adjudicated Kirby delinquent on the two
charges of rape. The trial court overruled Kirby's objections and adopted the
magistrate's decision.
{11} On appeal, the appellate court noted that Crim.R. 11 defines a plea
of guilty as a complete admission of guilt, whereas Juv.R. 29 requires either an
admission or denial of the facts in the complaint. The appellate court affirmed the
judgment of the juvenile court, concluding that it had not abused its discretion in
rejecting Kirby's proposed admission to lesser charges.
{12} We accepted jurisdiction to consider whether a juvenile in Ohio
has a constitutional right to enter an Alford plea.
II
{13} In Alford, the court did not determine that adult offenders have a
constitutional right to enter a guilty plea and simultaneously maintain innocence;
rather, the opinion merely states that courts may, in certain circumstances, accept
guilty pleas of defendants who maintain their innocence.
{14} The facts there show that Alford had been charged with the crime
of first-degree murder, a capital offense in North Carolina. "Faced with strong
evidence of guilt and no substantial evidentiary support for the claim of
innocence, Alford's attorney recommended that he plead guilty but left the
3

SUPREME COURT OF OHIO
ultimate decision to Alford himself," who eventually pled guilty to second-degree
murder. Alford, 400 U.S. at 27, 91 S.Ct. 160, 27 L.Ed.2d 162. After hearing a
summary of the state's case against him and finding that a substantial factual basis
existed for the charge, the trial court accepted Alford's guilty plea to the lesser
charge and sentenced him to the maximum prison sentence of 30 years.
{15} In federal habeas corpus proceedings, Alford argued that he was
coerced into pleading guilty to avoid the death penalty. The Fourth Circuit
granted the writ. The United States Supreme Court vacated that judgment and
remanded the cause, holding that a criminal defendant may enter a guilty plea
while maintaining his innocence provided that the plea is entered voluntarily,
knowingly, and intelligently and that some factual basis exists to support the
allegations in the indictment. The court concluded that Alford, faced with such a
strong case against him, voluntarily and intelligently agreed to plead to a lesser
charge and avoid the possibility of the death penalty.
{16} The court never stated that every defendant has a constitutional
right to enter a guilty plea while maintaining his innocence. The court explained:
{17} "Our holding does not mean that a trial judge must accept every
constitutionally valid guilty plea merely because a defendant wishes so to plead.
A criminal defendant does not have an absolute right under the Constitution to
have his guilty plea accepted by the court, [citation omitted], although the States
may by statute or otherwise confer such a right." (Emphasis added.) Id. at 38, 91
S.Ct. 160, 27 L.E.2d 162, fn. 11.
{18} The court continued, "Likewise, the States may bar their courts
from accepting guilty pleas from any defendants who assert their innocence."
(Emphasis added.) Id.
{19} Having concluded that no absolute constitutional right to enter an
Alford plea exists and that states may bar courts from accepting Alford pleas, we
consider here whether juveniles in Ohio may enter such a plea.
4

January Term, 2004
{20} Kirby maintains that juvenile offenders in this state should be
permitted to enter Alford pleas because adult offenders in Ohio are permitted to
do so and because the criminal procedure in adult court is analogous to the
procedure for adjudicatory hearings in juvenile court.
{21} Procedural and systemic differences, however, exist between the
juvenile courts and the adult criminal courts in Ohio. See, e.g., In re Agler
(1969), 19 Ohio St.2d 70, 48 O.O.2d 85, 249 N.E.2d 808. Notably, a juvenile
adjudicatory hearing is not at all similar to a criminal trial. In those hearings,
juveniles are asked to admit or deny the allegations; they are not asked to enter
pleas of guilty or not guilty. The objective of entering an Alford plea is
incongruent with the stated purposes of the juvenile court -- to "provide for the
care, protection, and mental and physical development of children, to protect the
public from the wrongful acts committed by juvenile delinquents, and to
rehabilitate errant children and bring them back to productive citizenship, or, as
[R.C. 2151.01] states, to supervise, care for and rehabilitate those children." In re
Caldwell (1996), 76 Ohio St.3d 156, 157, 666 N.E.2d 1367.
{22} Next, we recognize that the procedures for the acceptance of a
guilty plea in an adult criminal court are found in Crim.R. 11, while the
procedures for the acceptance of an admission or denial in juvenile court are set
forth in Juv.R. 29. We shall consider each in turn.
{23} Crim.R. 11(B)(1) provides that a guilty plea is "a complete
admission of the defendant's guilt." When a defendant enters a guilty plea to a
felony charge under Crim.R. 11, the court may not accept the plea unless it
addresses the defendant personally and determines (1) that the defendant is
entering the plea voluntarily; (2) that the defendant understands the effect of the
plea; and (3) that the defendant understands that he is waiving his rights to a jury
trial, to confront witnesses against him, to have compulsory process for obtaining
witnesses in his favor, to require the state to prove his guilt beyond a reasonable
5

SUPREME COURT OF OHIO
doubt, and asserts the right against self-incrimination. Crim.R. 11(C)(2)(a) to (c).
Additional procedures apply when the defendant is unrepresented by counsel and
when the defendant is accused of aggravated murder. Crim.R. 11(C)(3). And, in
cases other than felony or aggravated murder, "the court need not take testimony
upon a plea of guilty or no contest." Crim.R. 11(C)(4).
{24} Juv.R. 29, on the other hand, provides that a juvenile admit or deny
the allegations. Before accepting an "admission," the juvenile court is required to
address the juvenile personally and determine (1) that the juvenile is making the
admission "voluntarily with understanding of the nature of the allegations and the
consequences of the admission" and (2) that the juvenile "understands that by
entering an admission the party is waiving the right to challenge the witnesses and
evidence against the party, to remain silent, and to introduce evidence at the
adjudicatory hearing." Juv.R. 29(D)(1) and (2).
{25} Further, when the juvenile court is deciding whether to accept the
admission, it "may hear testimony, review documents, or make further inquiry, as
it considers appropriate, or it may proceed directly to the action required by
division (F) of this rule." Juv.R. 29(D).
{26} While Crim.R. 11 and Juv.R. 29 are similar, they are not identical.
Significantly, Juv.R. 29 has a provision not found in Crim.R. 11: a juvenile's
"failure or refusal to admit the allegations shall be deemed a denial." (Emphasis
added.) Juv.R. 29(C). In the case of a denial, the juvenile court is required to
follow the procedure set forth in division (E) of Juv.R. 29, which provides that the
juvenile court considers the evidence and determines the issues. Juv.R. 29(E)(3)
and (4).
{27} Thus, Juv.R. 29(C) mandates the procedure for the juvenile court
to follow when a juvenile offender fails or refuses to admit to allegations: the
court must treat that failure or refusal as a denial. Therefore, acceptance of an
6

January Term, 2004
Alford plea by a juvenile court is inconsistent with the objectives, procedures, and
rules of the juvenile court system.
{28} We therefore affirm the judgment of the court of appeals.
Judgment affirmed.

MOYER, C.J., F.E. SWEENEY, PFEIFER, LUNDBERG STRATTON and
O'CONNOR, JJ., concur.

RESNICK, J., concurs in judgment only.
______________________
Ruppert, Bronson, Ruppert & D'Amico Co., L.P.A., Rupert E. Ruppert
and Jeffrey A. Ruppert, for appellant.
William E. Peelle, Clinton County Prosecuting Attorney, and David M.
Henry, Assistant Prosecuting Attorney, for appellee.
______________________
7

 

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