In re T.D.R.

[Cite as In re T.D.R., 2015-Ohio-3541.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
IN THE MATTER OF: T.D.R., JR., : OPINION
DELINQUENT CHILD.
:
CASE NO. 2014-L-109
:
Appeal from the Lake County Court of Common Pleas, Juvenile Division, Case No.
2014 IN 01291.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Appellee – State of Ohio).
Charles R. Grieshammer, Lake County Public Defender, and Charles E. Langmack,
Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For
Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, T.D.R., an adjudicated delinquent child, appeals from the
judgment of the Lake County Court of Common Pleas, Juvenile Division, classifying him
as a serious youthful offender (“SYO”) and accordingly entering a dispositional sentence
pursuant to R.C. 2151.13. We affirm the trial court.
{¶2} The incident leading to the underlying charges occurred in Painesville,
Lake County, Ohio on July 10, 2014, at a Sunoco station on 265 East Erie Street.
Appellant entered the station with another male. A separate customer was at the
counter conducting a transaction with the cashier. When that customer left the store,
the male accompanying appellant also left. Appellant then brandished a BB gun and
ordered the cashier to “give him [the] money. This is a robbery.” The cashier asked if
he was serious and, as he walked behind the counter, appellant stated he was. The
cashier told appellant to take the money; appellant did and left the store. The cashier
subsequently called police and appellant was captured by police near the Sunoco
station.
{¶3} On July 11, 2014, appellant was charged by complaint with one count of
robbery, in violation of R.C. 2911.02(A)(2), and one count of obstruction of official
business, in violation of R.C. 2921.31; these charges constituted a second-degree
felony and a second-degree misdemeanor, respectively, if committed by an adult. The
complaint further alleged an offense of violence specification and an SYO specification
relating to the robbery charge.
{¶4} On September 11, 2014, appellant pleaded guilty to the charges and
specifications. After entry of the guilty pleas, the trial court submitted the matter to a
staffing team to prepare a recommendation for disposition/sentencing.
{¶5} On October 1, 2014, a disposition and sentencing hearing was held. For
the robbery count, the trial court sentenced appellant to a term of four years
imprisonment, with a three-year period of post-release control following his release. The
term of imprisonment was stayed pending successful completion of his juvenile
disposition. In its juvenile disposition, the court ordered appellant committed to the
Department of Youth Services (“DYS”) for a minimum of one year and a maximum
period not to exceed appellant’s 21st birthday. The disposition was stayed based upon
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appellant’s compliance with court orders and state laws. Appellant was also ordered to
serve 90 days in juvenile detention; the court stated appellant may be released from the
detention center for admission into a Community Correction Facility (“CCF”) with the
balance of his detention time suspended based upon compliance with probation rules,
court orders, and state laws.
{¶6} For the misdemeanor obstructing official business count, the trial court
ordered appellant to serve a 90-day commitment in the Lake County Juvenile Detention
Facility. This detention was ordered to be served immediately consecutive to the 90-
day detention relating to the robbery count. Appellant now appeals and assigns the
following as error:
{¶7} “The trial court erred to the prejudice of the delinquent child-appellant
when it classified him as a serious youthful offender and sentenced him to an adult term
of four (4) years in the Lorain Correctional Facility, a sentence that does not comport
with the factors a trial court must consider before imposing such a sentence as set forth
in ORC 2152.13(D)(2)(a).”
{¶8} Under his sole assignment of error, appellant argues the trial court erred
by imposing an SYO dispositional sentence after he entered a plea of guilty to an SYO
specification. Appellant asserts the trial court failed to consider all relevant factors
before entering the SYO adult sentence. Thus, he maintains the trial court abused its
discretion when it imposed the SYO dispositional sentence. We do not agree.
{¶9} A juvenile charged as a potential SYO does not face a bindover to the
adult court of common pleas. Instead, the case remains under the juvenile court’s
jurisdiction. Under R.C. 2152.11(A), a juvenile who commits certain acts is eligible for “a
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more restrictive disposition,” i.e. an SYO disposition. State v. D.H., 120 Ohio St. 3d 540,
2009-Ohio-9, ¶18. An SYO disposition “includes what is known as a blended sentence
-- a traditional juvenile disposition coupled with the imposition of a stayed adult
sentence.” Id., citing R.C. 2152.13.
{¶10} Due to appellant's delinquency adjudication for robbery, a second-degree
felony, the imposition of the adult sentence was discretionary, not mandatory. See R.C.
2152.11(E)(1). R.C. 2152.13(D)(2)(a) controls a juvenile court's discretion to impose a
blended juvenile/adult sentence on a serious youthful offender and states:
{¶11} If a child is adjudicated a delinquent child for committing an act
under circumstances that allow, but do not require, the juvenile
court to impose on the child a serious youthful offender
dispositional sentence under section 2152.11 of the Revised
Code, all of the following apply:
{¶12} (i) If the juvenile court on the record makes a finding that, given the
nature and circumstances of the violation and the history of the
child, the length of time, level of security, and types of programming
and resources available in the juvenile system alone are not
adequate to provide the juvenile court with a reasonable
expectation that the purposes set forth in section 2152.01 of the
Revised Code will be met, the juvenile court may impose upon the
child a sentence available for the violation, as if the child were an
adult, under Chapter 2929. of the Revised Code, except that the
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juvenile court shall not impose on the child a sentence of death or
life imprisonment without parole.
{¶13} (ii) If a sentence is imposed under division (D)(2)(a)(i) of this
section, the juvenile court also shall impose upon the child one or
more traditional juvenile dispositions under sections 2152.16,
2152.19, and 2152.20 and, if applicable, section 2152.17 of the
Revised Code.
{¶14} (iii) The juvenile court shall stay the adult portion of the serious
youthful offender dispositional sentence pending the successful
completion of the traditional juvenile dispositions imposed.
{¶15} R.C. 2152.01, referenced in R.C. 2152.13(D)(2)(a), sets forth the
purposes for juvenile dispositions and provides, in relevant part:
{¶16} (A) The overriding purposes for dispositions under this chapter 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. * * *
{¶17} Accordingly, R.C. 2152.13(D)(2)(a) sets out a three-tiered process a court
must follow once a minor is adjudicated delinquent under circumstances that allow, but
do not require, a blended juvenile/adult SYO sentence; to wit: (1) the court must make
findings that, given the circumstances of the case, the juvenile system is not adequate
to meet the purposes in R.C. 2152.01; (2) once the court makes those findings, then it
may impose an adult sentence along with one or more traditional juvenile dispositions;
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and (3) after exercising its discretion, and imposing a blended juvenile/adult sentence,
the court must stay the adult portion pending successful completion of the traditional
juvenile disposition. See, e.g., State v. D.H., 169 Ohio App. 3d 798, 2006-Ohio-6953,
¶44 (10th Dist.). “[H]ow the juvenile responds to that disposition will determine whether
the stay is lifted on the adult sentence.” D.H., 2009-Ohio-9, supra, at ¶30.
{¶18} Although not directly at issue, it bears noting that the stay on the adult
portion of the blended sentence may not be lifted unless certain procedural safeguards
are satisfied. R.C. 2152.14(E) governs the circumstances under which a juvenile court
may invoke the adult portion of an SYO’s sentence. The statute requires the juvenile
court, upon motion of the prosecutor, to hold a hearing to determine whether the stay
should be lifted. R.C. 2152.14(A) – (D). After taking evidence, the court may invoke the
adult portion of the SYO sentence if it finds, by clear and convincing evidence, “that the
juvenile is ‘unlikely to be rehabilitated during the remaining period of juvenile jurisdiction’
and that the juvenile has engaged in further bad conduct pursuant to R.C. 2152.14(A) or
(B).” D.H., 2009-Ohio-9, supra, at ¶31.
{¶19} With the foregoing framework in mind, we shall proceed to analyze the
various issues raised in this appeal. Initially, the state asserts appellant’s argument is
not ripe for review because, to the extent he successfully completes the juvenile
disposition, appellant will not actually serve the adult sentence. The state maintains
that the validity of appellant’s SYO sentence will be ripe only if he fails to meet the
requirements of the juvenile disposition. The state therefore concludes, the adult
sentence, at this point, is merely hypothetical and does not rise to the level of an actual
controversy. We do not agree.
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{¶20} R.C. 2152.13(D)(3) provides
{¶21} A child upon whom a serious youthful offender dispositional
sentence is imposed under division (D)(1) or (2) of this section has
a right to appeal under division (A)(1), (3), (4), or (5) of section
2953.08 of the Revised Code the adult portion of the serious
youthful offender dispositional sentence when any of those
divisions apply. The child may appeal the adult portion, and the
court shall consider the appeal as if the adult portion were not
stayed.
{¶22} Appellant is, in effect, arguing his dispositional sentence, imposed as
provided under R.C. 2152.13(D)(2), is contrary to law, pursuant to R.C. 2953.08(A)(4).
The statutory framework allowing a court to impose a discretionary SYO adult sentence
requires a court to make specific findings. If, after entering its findings, the court deems
the adult sentence appropriate, it may impose the sentence. It must, however, stay that
sentence pending the juvenile offender’s compliance with the juvenile disposition
entered contemporaneously with the SYO sentence. If a court fails to meet these
requirements, the imposition of the SYO sentence may be deemed contrary to law.
Pursuant to R.C. 2152.13(D)(3), therefore, appellant has the right to appeal the adult
portion of the sentence as if it were not stayed. Accordingly, the state’s argument
claiming appellant’s dispositional sentence is not ripe for review is unavailing.
{¶23} With respect to appellant’s argument, he does not dispute that his criminal
conduct was subject to a discretionary SYO disposition and sentence. Rather, he
contends the trial court failed to properly consider the necessary statutory factors before
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imposing that disposition. Appellant also appears to argue the trial court erred by
actually sentencing him to a four-year term of incarceration, despite his age and the
surrounding circumstances.
{¶24} With respect to the latter issue, appellant misunderstands the portion of
the SYO dispositional order. As discussed above, the trial court did not send appellant
to prison. Instead, pursuant to the SYO specification, the court imposed that sentence,
but stayed the same pending successful completion of his time at CCF. To the extent
appellant’s argument is based upon a false premise, it is without merit.
{¶25} Moreover, a review of the record reveals the juvenile court considered all
applicable factors in exercising its discretion to enter the blended juvenile/SYO adult
sentence. At the dispositional hearing, the trial court stated:
{¶26} Well, young man, you’ve made choices in your life. Doesn’t seem
that you have much respect for anybody. You don’t have any
respect for our community, you don’t have any respect for yourself.
Says in this report that you told the psychologist that you’re not
scared of anything, detention, the Court, or any authority. You’re
not afraid of the police, you’re not afraid of me. You don’t have any
respect for authority. That doesn’t make you very responsible or
accountable. * * *
{¶27} * * *
{¶28} The report states he’s been acting out in the community since
elementary school; he’s been caught lying, stealing, and
manipulating; he steals food from stores and clothing and
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electronics from other students at school. He shows little to no
remorse for his actions. He steals from his mother and has taught
his brothers to do so. His peer associations are older, criminally-
involved and drug-dependent and dealing youth. He latches on to
this older gang involved group for acceptance. It sounds to me like
this young man needs help.
{¶29} It is the disposition of the Court, [T.D.R.], that you are hereby
committed to the legal custody of the Ohio Department of Youth
Services for institutionalization in a secure facility for an indefinite
term of one year and a maximum not to exceed your 21st birthday.
{¶30} In addition, the Court has considered the factors set forth in the
applicable provisions of the Ohio Revised Code; to wit: 2929.12,
2929.13 and 2929.14 and other related sections, as well as
[T.D.R.’s] criminal history here with the court, the seriousness of the
act, the length of time we have in order to rehabilitate him and the
types of programs that are available here and at the CCF.
{¶31} I’ve also considered the Ohio youth assessment full inventory and
the psychological evaluation as performed by the Court’s staff, the
staffing team recommendation, and the victim’s statement at the
prior hearing, the arguments of counsel and the lack of statement,
even though given an opportunity, by the Juvenile.
{¶32} After making the foregoing findings, the court proceeded to enter its
relative dispositional orders on the blended juvenile/SYO adult sentence. It then
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informed appellant that both the adult sentence as well as the disposition ordering
appellant to DYS would be stayed as long as he successfully completed his time at the
CCF.
{¶33} Given appellant’s actions, his apparent attitude toward authority, and
disregard for others in the community, the court could reasonably conclude the juvenile
system alone would be inadequate to meet the purposes of the administration of
juvenile justice, as set forth under R.C. 2152.01. The findings made by the court on
record reflect this view. We therefore hold the trial court complied with all necessary
statutory requirements for entering a discretionary blended juvenile/SYO adult
sentence.
{¶34} Appellant’s assignment of error lacks merit.
{¶35} For the reasons discussed in this opinion, the judgment of the Lake
County Court of Common Pleas, Juvenile Division, is affirmed.
TIMOTHY P. CANNON, P.J., concurs,
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
_______________________
COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.
{¶36} Appellant was committed to DYS for a minimum of one year, and a
maximum period not to exceed his twenty-first birthday. He was given 90 days in
juvenile detention. He was further committed to a CCF. His DYS commitment was
stayed pending his successful treatment at the CCF. And, of course, his four year
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sentence to prison pursuant to the SYO dispositional sentence was stayed pending
behavior complying with the law.
{¶37} Appellant was only 14 years old at the time of the disposition in this case.
While the crime he committed was serious indeed – robbery – he does not have a
lengthy history of delinquency. The state did not recommend any sentence on the SYO.
Most significant, when and if he completes his stay at the CCF, his remaining detention
time is suspended, and he is simply subject to community control.
{¶38} When an SYO dispositional sentence is discretionary with the trial court,
R.C. 2152.13(D)(2)(a)(i) provides that the trial court must make a finding on the record
that, “given the nature and circumstances of the violation and the history of the child, the
length of time, level of security, and types of programming and resources available in
the juvenile system alone are not adequate to provide the juvenile court with a
reasonable expectation that the purposes set forth in section 2152.01 of the Revised
Code will be met,” before imposing the SYO sentence. As the majority notes, the trial
court made the finding in this case. However, if appellant’s conduct was serious
enough to justify an SYO dispositional sentence, I cannot understand why the balance
of his juvenile disposition is just community control. We review imposition of an SYO
sentence under R.C. 2152.13(D)(2)(a)(i) for abuse of discretion. In re Wilson, 11th Dist.
Lake No. 2003-L-160, 2005-Ohio-3262, ¶8. A trial court abuses its discretion when its
judgment does not comport with reason, or the record. State v. Ferranto, 112 Ohio St.
667, 676-678 (1925). Fundamentally, I find the blended sentence in this case
incongruous, because the finding made by the trial court that an SYO sentence is
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needed does not comport with the juvenile disposition made. I would find this an abuse
of discretion.
{¶39} I find merit in the assignment of error, and respectfully dissent.
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