In re G.S. , 2021 Ohio 3201 ( 2021 )

[Cite as In re G.S., 2021-Ohio-3201.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
IN RE G.S. :
: No. 110198
A Minor Child :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 16, 2021
Civil Appeal from the Cuyahoga County Court of Common Pleas
Juvenile Division
Case No. DL-19-109927
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Fallon Radigan and Warren Griffin,
Assistant Prosecuting Attorneys, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Britta Barthol, Assistant Public Defender, for appellant.
SEAN C. GALLAGHER, P.J.:
Defendant-appellant G.S. appeals the disposition ordered by the
Cuyahoga County Court of Common Pleas, Juvenile Division (“juvenile court”), after
he was adjudicated delinquent of multiple felony and misdemeanor counts arising
from a hazing incident. Upon review, we affirm the juvenile court’s disposition that
committed appellant to the Ohio Department of Youth Services (“ODYS”).
Background
On August 15, 2019, the state filed a 29-count complaint against
appellant in the juvenile court. The complaint included charges of rape, kidnapping,
abduction, sexual battery, unlawful restraint, and hazing. The charges arose from a
hazing incident that occurred in June 2019 at a high school football camp during
which appellant was accused, among other conduct, of sexually violating several
underclassmen with the use of a Theragun.1 Appellant initially entered a denial to
the charges.
On September 9, 2020, the juvenile court held a pretrial at which the
state placed an offer on the record, though the parties had not yet reached an
agreement. The juvenile court addressed pending motions and safety protocols
related to the Covid-19 pandemic. The juvenile court denied a motion to continue
filed by appellant’s trial counsel, recognizing the length of time the matter had been
pending, the safety protocols for trial, and latitude that would be provided in cross-
examination.
Another pretrial was held on September 11, 2020, at which the plea
agreement was stated on the record. The juvenile court recognized that serious
charges were involved, emphasized that the court was “not presuming that you’re
1 A Theragun is a percussive massage therapy device.
guilty or delinquent of anything[,]” informed appellant that serious penalties could
be imposed, including placement within the ODYS, and indicated that the court was
keeping an “open mind” about confinement. The juvenile court engaged in a
thorough colloquy with appellant and informed him of the trial rights he would be
giving up. Appellant expressed his understanding and acknowledged that he was
entering his plea of his own free will and that he was not forced to enter his plea.
The state briefly set forth the facts relating to the hazing incident that gave rise to
the complaint, stating in part:
On or about June 10th, 2019, [G.S.], along with codefendant[s]
* * * were inside of a room of their dormitory.
They recruited young men on the football team to come into the
room. At this time those young men were told that they needed to be
initiated by having a Theragun, which is a percussive therapy device, a
massage therapy gun, placed up against and up their butt hole, the anal
opening of their posterior.
This happened to a number of young men. There were five felony
victims in this case, your Honor, and the evidence would have been that
the Theragun went up into the anus of a number of those young men.
Each of those young men felt that they were unable to leave due
to either peer pressure exerted by the upperclassmen to include [G.S.
and the codefendants], or in addition, physical pressure exerted by
(inaudible) and/or [G.S.] to keep them inside the room.
The juvenile court then reviewed the charges one by one. Appellant
entered an admission to 19 counts of the complaint including 3 counts of sexual
battery, in violation of R.C. 2907.03(A)(1), a felony of the third degree; an amended
count of kidnapping, in violation of R.C. 2905.01(A)(2), a felony of the second
degree; 11 counts of hazing, in violation of R.C. 2903.31(B)(1), a misdemeanor of the
fourth degree; and 4 counts of unlawful restraint, a misdemeanor of the third
degree. The remaining ten counts were nolled. The juvenile court found the
admissions were knowingly, voluntarily, and intelligently entered and adjudicated
appellant delinquent. The matter was continued for a dispositional hearing to be
held on November 23, 2020. The court ordered a juvenile sex offender registration
and notification (“JSORN”) assessment and a probation report.
The state and the defense each filed a sentencing memorandum. At
the dispositional hearing, appellant was present, along with counsel and his parents.
A co-delinquent (J.M.), his parents, and his counsel also were present. Appellant’s
investigating probation officer (“IPO”) was not present because of a Covid-19
quarantine. However, the co-delinquent’s IPO was present on behalf of the
probation department. The assistant prosecutors also were present.
The co-delinquent’s IPO spoke regarding appellant’s probation
report, which the court stated it had read. The juvenile court was informed that this
was appellant’s first involvement in the court, he graduated high school, he was
working, and was enrolled to attend community college. Appellant also had no
diagnosed or reported mental-health or substance-abuse issues, and there were no
reported problems in the home. Appellant had a very low risk score of “3.” The
juvenile court was aware that appellant’s IPO had not made a recommendation
because the Ohio Guidestone’s JSORN assessment was not yet completed and that
appellant did not cause the delay.2 Appellant’s IPO was available to be contacted by
phone; however, the judge did not find this necessary and indicated the co-
delinquent’s IPO had answered the court’s questions.
The state addressed the court and offered as exhibits into evidence a
photograph, victim impact letters, and a Snapchat video. The state indicated that
there were 11 victims, some that experienced worse treatment than others. Some of
the victims had the Theragun “forced” up their anus by appellant. For instance, one
of the victims repeatedly asked to leave the room, appellant told him he could not
leave, and he was held down and there “was penetration.” The state indicated that
from the investigation it was known that appellant “did it worse to these
individuals,” that when appellant used the Theragun, “these boys were penetrated,”
and there was no penetration when the co-delinquent J.M. used the Theragun.
Some victims were “tapped on the buttocks versus being penetrated.” A statement
was read from one victim’s family expressing that appellant had not shown any
remorse for his actions, had not truly taken accountability, and engaged in conduct
demonstrating a disregard for the victims and the justice system. The state indicated
that appellant deleted messages about the incident. He posted a Snapchat video that
says, “Innocent until proven guilty, preservation boy” and includes a heart symbol.
As argued by the state, “[T]his is not a joke. There were 11 victims here, some of
2 It appears that there was a delay in the referral: appellant
completed the first part
of the assessment with Ohio Guidestone, and the second part of the assessment was
scheduled after the date of the dispositional hearing.
[whom] were sexually assaulted, * * * these individuals deserve better * * * it went
way too far, and [the victims’ lives] have been changed forever * * *.”
Appellant’s trial counsel indicated that appellant was sorry for what
happened and discussed mitigating factors. Appellant addressed the court and
apologized to those involved. He indicated he was taking steps to be a better person,
he was residing in Columbus with roommates, he was working, and he was planning
to attend Columbus State with the goal of transferring to Ohio State University. He
explained the Snapchat video he created was “[s]tupidity, ignorance, lack of
knowledge.” He indicated he had no prior juvenile court history and he had no
substance-abuse issues. Appellant’s father indicated that appellant and the co-
delinquent were “good kids,” they had never been in trouble, and that they made a
bad decision and things got out of hand.
On Count 3, the kidnapping count, the juvenile court committed
appellant to the ODYS for an indefinite term consisting of a minimum period of 12
months and a maximum period not to exceed the child’s attainment of the age of 21.
On each of the sexual battery counts, the juvenile court committed appellant to the
ODYS for an indefinite term consisting of a minimum period of 6 months and a
maximum period not to exceed the child’s attainment of the age of 21, and the court
ordered the commitment to be served concurrent to Count 3. On each of the
remaining counts, which were misdemeanor counts, the court imposed a 90-day
commitment and ordered the commitment to be served concurrent with Count 3.
The juvenile court denied appellant’s motion for reconsideration and
for a new dispositional hearing. Appellant timely filed this appeal.
Law and Analysis
Appellant raises three assignments of error for our review. Under the
first assignment of error, appellant claims the juvenile court committed plain error
by imposing a disposition without the completion of the court-ordered assessment
and the probation report.
Appellant argues it was plain error for the juvenile court to proceed
to disposition without the completion of the JSORN assessment and without
appellant’s IPO’s presence and recommendation because he claims these would
have assisted the juvenile court in imposing an appropriate disposition. Appellant
represents that his IPO stated in a letter attached to the motion for reconsideration
that she realistically would have been looking at a community control sanction with
the proper counseling services to address any recommendations from the JSORN
assessment. However, the juvenile court was in possession of the probation report,
heard from a representative from the probation department, was informed of
mitigating facts, and acted within its discretion in proceeding to disposition.
Appellant fails to cite any authority, and we have found none, to support a finding
of plain error under these circumstances.
A judge enjoys a great deal of discretion in sentencing. In re D.S., 148
Ohio St.3d 390, 2016-Ohio-7369, 71 N.E.3d 223, ¶ 20. Our review of the transcript
reflects that the co-delinquent’s IPO was present on behalf of the probation
department and discussed appellant’s probation report. The juvenile court was
aware that the report did not include a recommendation because the JSORN
assessment had not yet been completed. The juvenile court indicated that its
questions had been answered by the co-delinquent’s IPO, and the court did not find
speaking to appellant’s IPO, who was available by phone, to be necessary. No
motion to continue the dispositional hearing was made, and the juvenile court
proceeded to impose disposition without any objection.
Even if appellant’s IPO had provided a specific recommendation of
community control, it is not clear that this would have changed the outcome of the
juvenile court’s disposition. The juvenile court had reviewed the probation report
and was informed that appellant had no history in the courts, he had no reported
problems, he was working and was planning to attend community college in
Columbus, and he had a risk score of “3.” Further, appellant’s father described him
as a good kid without any issues or cause for concern. Appellant addressed the court
directly, apologized for his actions, noted the positive steps he was taking toward his
future, and explained the Snapchat video he posted. Appellant’s attorney requested
a disposition of community control sanctions in his sentencing memorandum and
presented mitigating factors to the court. However, the state ensured that the
seriousness of the offenses and the impact upon the victims were not overlooked.
Our review reflects that the trial court acted within its discretion in
proceeding to disposition and that no plain error occurred. Moreover, appellant
fails to demonstrate that the asserted error affected the outcome of the proceedings
or that he was otherwise prejudiced. Accordingly, the first assignment of error is
overruled.
Under the second assignment of error, appellant claims the juvenile
court abused its discretion in determining a commitment to the ODYS was the
appropriate disposition for appellant.
A disposition ordered by the juvenile court will not be reversed absent
an abuse of discretion. In re D.S., 111 Ohio St.3d 361, 2006-Ohio-5851, 856 N.E.2d
921, at ¶ 6; In re K.M.C., 8th Dist. Cuyahoga No. 103449, 2016-Ohio-5322, ¶ 4. An
abuse of discretion implies that the court’s attitude is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983). When reviewing for an abuse of discretion, “‘an appellate court is not free
to substitute its judgment for that of the trial judge.’” State v. Herring, 94 Ohio
St.3d 246, 255, 762 N.E.2d 940 (2002), quoting Berk v. Matthews, 53 Ohio St.3d
161, 169, 559 N.E.2d 1301 (1990).
Pursuant to R.C. 2152.19(A), “If a child is adjudicated a delinquent
child, the court may make any of the [listed] orders of disposition, in addition to any
other disposition authorized or required by [R.C. Chapter 2152] * * *.” “Dispositions
imposed under the delinquency statutes are to be ‘reasonably calculated to achieve
the overriding purposes’ of R.C. 2152.01” and “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.’” State v. Morgan, 153 Ohio St.3d 196, 2017-Ohio-7565, 103 N.E.3d 784,
¶ 46, quoting R.C. 2152.01(B). The overriding purposes for dispositions that a
juvenile court must consider under R.C. Chapter 2152 are “to provide for the care,
protection, and mental and physical development of children subject to this chapter,
protect the public interest and safety, hold the offender accountable for the
offender’s actions, restore the victim, and rehabilitate the offender.” R.C.
2152.01(A). “These purposes shall be achieved by a system of graduated sanctions
and services.” Id.Appellant claims that the ODYS commitment was purely punitive
rather than rehabilitative, that the juvenile court did not properly weigh the
available dispositions, and that he was not offered any services and received the
most severe disposition for a juvenile. He argues that the victims were not
requesting an ODYS commitment and his probation officer was realistically looking
at a community control sanction. Appellant states that this was his first time in the
court system, he was working and living in the community for 15 months without
incident, and he was enrolled to begin classes at a community college. Appellant
also states that he showed remorse and apologized to the victims, and he claims that
he could have been rehabilitated without an order of commitment. Appellant
focuses his argument on the rehabilitative purpose of delinquency dispositions.
However, holding the offender accountable for his actions and restoring the victims
also are among the “overriding purposes” of juvenile disposition under
R.C. 2152.01(A).
Appellant admitted to kidnapping and multiple counts of sexual
battery, unlawful restraint, and hazing. The charges stemmed from a hazing
incident during which multiple victims had a Theragun forced up their anuses.
Appellant initially made light of the situation. The hazing incident that occurred was
not a joking matter. At the pretrial hearing at which appellant entered his admission
to the charges, the juvenile court informed appellant that serious penalties could be
imposed for the felonies including “a minimum of one year [in ODYS] up to [his]
21st birthday * * *.” Appellant indicated his understanding. The juvenile court
expressed that it was “keeping an open mind” with regard to the disposition.
At the dispositional hearing, the juvenile court heard from the
probation department, the state, appellant’s counsel, appellant, and his parents.
The juvenile court also had reviewed the sentencing memoranda, the probation
report, the victim impact letters, and the Snapchat video. The court was aware of
mitigating factors and the commendable efforts that appellant was taking toward
his future. The seriousness of the conduct and the impact upon the victims were
also considered. See R.C. 2152.01. The court indicated at the dispositional hearing
that it had received defense counsel’s sentencing recommendation, which was for
community control sanctions. The state indicated at the hearing that it would defer
to the court on sentencing. The state also requested the court punish appellant “as
[the court] see[s] fit” in the state’s sentencing memorandum.
Although appellant argues that the juvenile court gave disparate
treatment to a similarly situated co-delinquent, appellant fails to recognize that he
engaged in distinct and more serious conduct from the co-delinquent.3 Appellant
was adjudicated delinquent on four felony counts, which included three counts of
sexual battery and one count of kidnapping, in addition to the misdemeanor counts.
There were 11 victims. The investigation showed some victims were treated worse
than others, appellant would not permit a victim to leave, and appellant used much
more force and penetrated several victims, whereas the co-delinquent did not
penetrate any victims.
It is evident that the juvenile court considered the statutory purposes
in rendering the disposition. As the juvenile court stated in its journal entry, “[t]his
court is guided for dispositional purposes by ORC 2152.01,” which the court set forth
and gave due consideration. Upon the record before us, it cannot be said that the
juvenile court’s disposition was not reasonably calculated to achieve those purposes,
commensurate with and not demeaning to the seriousness of the appellant’s conduct
and its impact on his 11 victims, and consistent with dispositions for similar acts
committed by similar delinquent children. The ODYS sanction was well within the
broad discretion of the juvenile court, and there is nothing in the record to suggest
that the juvenile court acted unreasonably, arbitrarily, or unconscionably.
The juvenile court did not abuse its discretion in committing
appellant to the ODYS. Appellant’s second assignment of error is overruled.
3 Appellantstates that the co-delinquent received a suspended ODYS commitment
and a 90-day commitment to a juvenile detention center that could be reduced. The co-
delinquent was adjudicated delinquent on one felony count for kidnapping, and the
remaining counts were misdemeanors.
Under the third assignment of error, appellant claims he was denied
his constitutional right to effective assistance of counsel when his trial counsel failed
to request a continuance of the dispositional hearing. He argues that a continuance
should have been requested in order to obtain the presence of appellant’s IPO and
to allow for the completion of the JSORN assessment and probation report.
“[A]ppellate courts generally review ineffective assistance of counsel
claims on a de novo basis * * *.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-
6679, 860 N.E.2d 77, ¶ 53. In order to prevail on an ineffective assistance of counsel
claim, the defendant must show that his trial counsel’s performance was deficient
and that the deficient performance prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Grate, 164 Ohio St.3d 9, 2020-Ohio-5584, 172 N.E.3d 8, ¶ 49. “[A] court must
indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance * * *.” Strickland at 689. To establish prejudice,
the defendant must demonstrate there is a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694.
Appellant cannot demonstrate that counsel’s performance was
deficient or that any resulting prejudice occurred. Although the JSORN assessment
had not been completed and the probation report lacked a specific recommendation,
the probation report included the mitigating facts and was reviewed by the court.
Also, the co-delinquent’s IPO was present on behalf of the probation department to
address appellant’s probation report, appellant’s IPO could have been reached by
phone, and the court expressed that its questions had been adequately answered by
the co-delinquent’s IPO. Appellant’s counsel presented mitigating factors, and he
requested a disposition of community control sanctions in his sentencing
memorandum that was reviewed by the juvenile court. The juvenile court was
guided by the dispositional purposes set forth under R.C. 2152.01 in rendering its
disposition.
Upon the record before us, it cannot be said that counsel was
ineffective for failing to request a continuance, and there is nothing to suggest a
reasonable probability that the disposition would have been any different if the
JSORN assessment had been completed and a recommendation for community
control had been made by appellant’s IPO.4 Accordingly, we overrule the third
assignment of error.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court, juvenile division, to carry this judgment into execution. The
4 Insofar as the JSORN assessment had not been completed, a juvenile offender
classification hearing is not required until appellant is released from the secure facility.
R.C. 2152.83(B)(1) and (D)(6). Nonetheless, we recognize that appellant’s IPO was
awaiting this assessment to make a recommendation.
finding of delinquency having been affirmed, any bail or stay of execution pending
appeal is terminated. Case remanded to the trial court for execution of commitment.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_______________________________
SEAN C. GALLAGHER, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
LISA B. FORBES, J., CONCUR